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539 U.S. 948
Brownv.Shannon, Superintendent, State Correctional Institution at Mahanoy, et al.
No. 02-10322.
Supreme Court of United States.
June 23, 2003.
1
Appeal from the C. A. 3d Cir.
2
Certiorari denied. Reported below: 322 F. 3d 768.
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Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
8-9-2000
United States v. Baptiste
Precedential or Non-Precedential:
Docket 99-1353
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000
Recommended Citation
"United States v. Baptiste" (2000). 2000 Decisions. Paper 162.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/162
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
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact [email protected].
Filed June 8, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 99-1353
UNITED STATES OF AMERICA,
Appellant,
v.
STANLEY BAPTISTE
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Crim. No. 91-cr-00132-1)
Chief District Judge: Honorable James T. Giles
Submitted Pursuant to Third Circuit LAR 27.4 and
I.O.P. 10.6 Motions Panel
April 20, 2000
Before: Becker, Chief Judge, McKee and Barry,
Circuit Judges
(Filed June 8, 2000)
OPINION OF THE COURT
PER CURIAM
Appellant Stanley Baptiste was convicted of conspiracy to
distribute cocaine base in violation of 21 U.S.C.S 846 and
possession with intent to distribute cocaine base in
violation of 21 U.S.C. S 841(a)(1) following a jury trial in
1991. In January, 1992 he was sentenced to a term of
imprisonment of 240 months, and we thereafter affirmed
the judgment of conviction and sentence.
On April 28, 1997, Baptiste filed a motion to vacate, set
aside, or correct his sentence, pursuant to 28 U.S.C.
S 2255. He claimed that the evidence of his alleged
leadership role in the drug conspiracy was insufficient to
warrant a four-point enhancement under U.S.S.G.
S 3B1.1(a), and that counsel was ineffective for not
objecting to the enhancement. By order entered September
10, 1997, the District Court denied relief. Baptiste did not
appeal.
In January 1999 Baptiste filed a motion for permission to
file a second or successive motion under 28 U.S.C.S 2255.
He again wished to challenge the application of U.S.S.G.
S 3B1.1(a), and, in addition, he sought to challenge the
"enhancement" he received under U.S.S.G. S 2D1.1(c) on the
basis of Amendment 487. That Amendment became
effective on November 1, 1993. We denied that motion on
February 23, 1999.
On March 12, 1999, Baptiste filed a motion for relief from
judgment under Federal Rule of Civil Procedure 60(b) in the
District Court in which he again sought to litigate the
applicability of Amendment 487. Baptiste argued that he
should not have been subjected to the enhancement for
crack cocaine, because the government failed to prove by a
preponderance of the evidence that the cocaine base
involved in his crimes actually was crack cocaine. He also
again argued that he had not played a leadership role in
the offense, that counsel had been ineffective at sentencing,
and that the amount of drugs attributed to him was not
reasonably foreseeable. The District Court denied the Rule
60(b) motion in part because it viewed the motion as an
impermissible attempt to file a successive section 2255
motion without prior authorization from this Court.
In April 1999 Baptiste filed the instant petition for writ of
error coram nobis in yet another attempt to have his
guidelines claims (the Amendment 487 claim, the challenge
to his leadership role, and the claim that the amount of
drugs attributed to him was not reasonably foreseeable)
and ineffective assistance of counsel at sentencing claim
2
heard. The District Court denied the motion, and this
appeal followed.
We will summarily affirm the order denying the coram
nobis petition.1 Although a writ of error coram nobis is
available in federal courts in criminal matters, see 28
U.S.C. S 1651(a), coram nobis has traditionally been used
to attack convictions with continuing consequences when
the petitioner is no longer "in custody" for purposes of 28
U.S.C. S 2255. See, e.g., United States v. Stoneman, 870
F.2d 102, 105-06 (3d Cir. 1989). It is an extraordinary
remedy and a court's jurisdiction to grant relief is of limited
scope. There is no basis here for coram nobis relief,
because Baptiste is still in custody.
Baptiste argues that second collateral challenges to a
conviction and sentence, like his, are now barred under the
Antiterrorism and Effective Death Penalty Act, see 28
U.S.C. SS 2255 and 2244 ("AEDPA"), and therefore coram
nobis relief should be available. However, the procedural
barriers erected by AEDPA are not sufficient to enable a
petitioner to resort to coram nobis merely because he/she
is unable to meet AEDPA's gatekeeping requirements. 2 The
safety valve provided under 28 U.S.C. S 2255 is narrow. We
explained in In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997),
that it is a complete miscarriage of justice when the AEDPA
prohibition against successive section 2255 motions makes
this collateral remedy unavailable altogether to someone
with no earlier opportunity to bring his/ her claim. Id. at 251.
That is not Baptiste's situation. He had an earlier
_________________________________________________________________
1. Neither the statute making the writ of error coram nobis available in
federal courts in criminal matters, see 28 U.S.C. S 1651(a), nor any
Federal Rule of Appellate Procedure requires a certificate of
appealability
before an appeal may be taken, nor does such a requirement appear in
the case law.
2. Under AEDPA, the second or successive motion must be certified by
a court of appeals to contain a prima facie showing of newly discovered
evidence that would be sufficient to establish that no reasonable
factfinder would have found the movant guilty of the offense or a new
rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable, see 28 U.S.C.
S 2255. This is not an easy standard to satisfy.
3
opportunity to raise all of his claims (including the
Amendment 487 claim) in his 1997 section 2255 motion.
We will therefore affirm the order of the District Court
denying the petition for writ of error coram nobis pursuant
to Third Circuit LAR 27.4 and I.O.P. 10.6,3 because no
substantial question is presented by this appeal.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
________________________________________________________________
3. LAR 27.4 and IOP 10.6 provides that we may summarily affirm an
order or motion of a party, or sua sponte when "no substantial question"
is presented by the appeal.
4
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833 F.2d 1002
Lamoutainv.Foote
NO. 86-2237
United States Court of Appeals,Second Circuit.
NOV 12, 1986
1
Appeal From: N.D.N.Y.
2
AFFIRMED.
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[Cite as Wells Fargo Bank, N.A. v. Aey, 2013-Ohio-5381.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
WELLS FARGO BANK, N.A., )
) CASE NO. 12 MA 178
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
MICHELE AEY, et al., )
)
DEFENDANTS-APPELLANTS. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,
Case No. 11CV1603.
JUDGMENT: Reversed and Remanded.
APPEARANCES:
For Plaintiff-Appellee: Attorney Scott King
Attorney Jeremy Smith
Austin Landing I
10050 Innovation Drive, Suite 400
Dayton, Ohio 45342
For Defendants-Appellants: Attorney Bruce Broyles
5815 Market Street, Suite 2
Boardman, Ohio 44512
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 4, 2013
[Cite as Wells Fargo Bank, N.A. v. Aey, 2013-Ohio-5381.]
VUKOVICH, J.
{¶1} Defendants-appellants Michele and Mark Shane appeal the decision of
the Mahoning County Common Pleas Court granting summary judgment for plaintiff-
appellee Wells Fargo Bank, N.A. in its foreclosure action. We conclude that the
borrowers’ response to summary judgment raised a genuine issue of material fact as
to the bank’s compliance with regulations of the Secretary of HUD dealing with
whether a face-to-face meeting was offered and whether the bank evaluated the
borrowers for loss mitigation after starting the process.
{¶2} Contrary to the bank’s position, we hold that it was not the borrowers’
burden to additionally show that none of the exceptions applied in order to avoid
summary judgment. Rather, after the borrower sufficiently demonstrated that no
face-to-face meeting was offered and the bank improperly refused to complete the
loan modification evaluation that it began, it would then fall to the bank to explain
what exception applied or how those regulations were inapplicable in this particular
case. We thus reverse the entry of summary judgment and remand for further
proceedings.
STATEMENT OF THE CASE
{¶3} In 2003, Mark Shane and Michele Aey nka Shane signed a promissory
note in favor of Wells Fargo for approximately $98,000 and entered a corresponding
mortgage on their condominium at 3682 Mercedes Place in Canfield. They defaulted
on the loan in September 2010 and began the loan modification process.
{¶4} On May 20, 2011, the bank filed a complaint seeking judgment on the
note and mortgage and asking for foreclosure on the property. The Shanes wrote a
letter to the court asking for mediation because they were in the process of
attempting a loan modification. Six months later, the bank filed a motion for default
judgment. The Shanes then obtained counsel, and the court granted leave to file an
answer.
{¶5} The answer stated that they lacked sufficient information or knowledge
as to whether the bank fulfilled all conditions precedent to acceleration of the debt
-2-
and filing of the foreclosure complaint. The answer listed two affirmative defenses:
failure to state a claim and failure to meet all conditions precedent to the filing of a
foreclosure complaint, alleging a failure to comply with all requirements of the HUD
Secretary’s regulation as required by paragraph 9(d) of the mortgage.
{¶6} The bank filed a motion for summary judgment stating that under the
note and mortgage, they had the absolute right to accelerate the balance of the loan
upon default and to then file the foreclosure action. The motion stated that there was
no evidence that it failed to comply with HUD regulations and that this claim was
false. Attached to the bank’s motion for summary judgment was an affidavit reciting
the loan, the default, the failure to cure the default, and the amount owed. The
affidavit stated that debt was accelerated pursuant to the terms of the loan. Also
attached to the motion for summary judgment was an April 12, 2011 notice of default
and acceleration from the bank to the Shanes, showing a delinquency of $4,672.36.
{¶7} The Shanes filed a memorandum in opposition. They claimed that the
acceleration letter did not sufficiently set forth the dollar amount that must be paid
because after setting forth the specific amount due, it stated that they must pay any
additional amounts due after the date of the notice. (The Shanes do not pursue this
argument on appeal). Also regarding the acceleration letter, they noted the letter
could not be used to show that the bank gave notice of its intent to accelerate the
loan because it was unauthenticated summary judgment evidence; however, they
never alleged that they did not receive a required notice. The Shanes also argued
that Wells Fargo failed to offer a face-to-face meeting as required by Secretary of
HUD regulation § 203.604(b) and made no legitimate effort to evaluate them for loss
mitigation as required by other HUD regulations.
{¶8} The affidavit of Michele Shane was attached to their response. She
stated that they fell behind in payments in September 2010 after she lost her job
while on Family Medical Leave, noting that she had to retain counsel to retain her job.
She spoke to the bank about her circumstances. She stated that they were in the
loan modification process at the time the complaint was filed, they provided the bank
with all documents requested, but the bank said the documents were missing, had
-3-
been lost, or had become outdated. She also alleged that the bank did not attempt to
arrange a face-to-face meeting, that they did not receive a letter offering such a
meeting, and that no representative offered a face-to-face meeting. The
memorandum concluded that this established a genuine issue as to whether the
bank completed the required loss mitigation evaluation and offered a face-to-face
meeting prior to filing the complaint.
{¶9} On August 23, 2012, the trial court granted summary judgment in favor
of the bank. The Shanes filed a timely notice of appeal. They set forth one
assignment of error, generally stating that the trial court erred in granting summary
judgment for the bank because they raised genuine issues of material fact. Three
separate issues presented under this assignment of error discuss the following
topics: (1) the alleged failure to offer a face-to-face meeting; (2) the alleged failure to
make a legitimate effort to evaluate appellants for loss mitigation; and (3) the
unauthenticated acceleration letter attached to the motion for summary judgment.
SUMMARY JUDGMENT
{¶10} Summary judgment can be granted where there remain no genuine
issues of material fact for trial and where, after construing the evidence most strongly
in favor of the nonmovant, reasonable minds can only conclude that the moving party
is entitled to judgment as a matter of law. Byrd v. Smith, 110 Ohio St.3d 24, 850
N.E.2d 47, 2006-Ohio-3455, ¶ 10, citing Civ.R. 56(C). The burden of showing that
there are no genuine issues of material fact initially falls upon the party who files for
summary judgment. Id., citing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d
264 (1996).
{¶11} Thereafter, the nonmovant may not rest upon mere allegations or
denials in the party's pleadings but must respond by setting forth specific facts
showing that there is a genuine issue for trial. Id., citing Civ.R. 56(E). If the non-
movant does not so respond, summary judgment, if appropriate, shall be entered
against him. Civ.R. 56(E). Summary judgment is not to be discouraged where a
nonmovant fails to respond with evidence supporting the essentials of his claim, but
courts are cautioned to construe the evidence in the light most favorable to the
-4-
nonmoving party. Leibreich v. A.J. Refrigeration, Inc., 67 Ohio St.3d 266, 269, 617
N.E.2d 1068 (1993).
BORROWERS’ RESPONSE TO SUMMARY JUDGMENT
{¶12} The trial court released its entry granting summary judgment for the
bank on August 23, 20012. Notably, the entry states that the cause was submitted
upon the complaint, the amended answer, the plaintiff’s motion for summary
judgment, and the evidence. It does not mention the borrower’s memorandum in
opposition. This may suggest that the court did not consider the borrower’s
opposition evidence.
{¶13} Mahoning County Local Rule of Civil Procedure 6(A)(2) generally
provides that opposition briefs to all motions shall be filed no later than 14 days from
the date the motion was filed unless an extension is granted with leave of court. That
rule continues to state, “In no event shall an opposition brief be filed later than 5 days
prior to the non-oral hearing date.”
{¶14} The bank’s motion for summary judgment was filed on July 9, 2012; we
note that the date on the certificate of service is not filled in the copy of the motion
filed with the court. Prior to the expiration of the fourteen-day period provided in the
local rule, a July 19 magistrate’s decision set the motion for non-oral hearing on
August 20, 2012. The borrowers filed their memorandum in opposition on August 17,
2012.
{¶15} Civ.R. 56(C) provides that a motion for summary judgment shall be
served at least fourteen days before the time fixed for hearing. The rule continues:
“The adverse party, prior to the day of hearing, may serve and file opposing
affidavits.” Civ.R. 56(C). As the borrower’s affidavit was filed prior to the day the trial
court expressly set for the hearing, it was timely under Civ.R. 56(C) alone.
{¶16} The particular question here becomes: Where a scheduling order,
which is entered prior to the 14-day deadline set by local rule, sets a non-oral hearing
date and does not otherwise specify submission deadlines, does a local rule that
provides that an opposition must be filed within 14 days and no later than five days
prior to the non-oral hearing date justify the exclusion of an opposition brief and
-5-
attached affidavits even though Civ.R. 56(C) provides that the opposing affidavit may
be filed on the day prior to the hearing date?
{¶17} Civ.R. 56(C) anticipates a cutoff date for a response to a motion for
summary judgment, but the rule does not explicitly apprise the parties of that date
and thus notice of the deadlines must come from some other source. Hooten v. Safe
Auto Ins. Co., 100 Ohio St.3d 8, 2003-Ohio-4829, 795 N.E.2d 648, ¶ 22.
Fundamental fairness is one of the overriding goals of Civ.R. 56 as a summary
judgment motion involves high stakes. Id. at ¶ 34. Summary judgment should be
granted only after all parties have had a fair opportunity to be heard. Id.
{¶18} “Obviously, if the trial court does set an explicit hearing date for the
summary judgment motion, it succeeds in providing the requisite notice.” Id. at ¶ 23.
Alternatively, if the trial court sets actual dates for each parties’ filings, the requisite
notice is provided. Id. And, local rules can be sufficient to provide notice of the date
of the summary judgment hearing or of deadlines for submission of memoranda and
Civ.R. 56 materials. Id. at ¶ 33, 35 (the better practice is to explicitly set cut-off dates
for submission of materials and any hearing date, but if a local rule provides notice of
either of these dates, then Civ.R. 56 is not violated).
{¶19} However, the local rule must complement the basic structure of Civ.R.
56 and not contradict it. See id. at ¶ 29. Local rules cannot be inconsistent with the
rules promulgated by the Supreme Court, and thus, the Civil Rules will prevail over
inconsistent local rules. Vance v. Roedersheimer, 64 Ohio St.3d 552, 554, 597
N.E.2d 153 (1992).
{¶20} Civ.R. 56(C) states that the non-movant can file his or her affidavit prior
to the day set for the hearing, but the local rule states that this is untimely as it must
be done five days prior to the day set for non-oral hearing. This is a direct conflict.
We also note that the local rule provides 14 days from the day the motion is filed
whereas Civ.R. 56(C) provides at least 14 days from the day the motion is served,
and here the service date is not filled in. In addition, before the local rule’s 14-day
deadline had passed, the magistrate’s order expressly set a non-oral hearing date.
Applying the plain language of Civ.R. 56(C), the submission deadline would have
-6-
been the day prior to the non-oral hearing date. In other words, the magistrate’s
scheduling order essentially extended the local rule’s 14-day deadline.
{¶21} We conclude that where the non-oral hearing date was set by the
magistrate’s scheduling order, especially where such order was issued prior to the
14-day submission deadline set by local rule, the timeframe in Civ.R.56(C) prevails
over that contained in the local rule. Compare Vinylux Prods., Inc. v. Commercial
Financial Group, 9th Dist. No. 22553, 2005-Ohio-4801, ¶ 8 (where no hearing
scheduled, time for filing opposition brief is determined by consulting local rule
requiring an opposition brief to be filed within 14 days of summary judgment motion);
Gaul v. Sterling Plate Glass & Paint Co., Cuyahoga App. No. 64842 (Aug. 25, 1994)
(where no hearing was scheduled, local rule’s thirty-day response time applied).
Accordingly, we shall consider the borrowers’ response and affidavit in conducting
our de novo review of summary judgment.
CONTRACTS & DISPUTED HUD REGULATIONS
{¶22} Both the note and mortgage incorporate by reference HUD regulations.
Paragraph 6(B) of the note states that if the borrower defaults, the lender may require
immediate payment in full of the principal balance and accrued interest “except as
limited by regulations of the [HUD] Secretary in the case of payment defaults * * *.”
This paragraph continues to explain: “In many circumstances, regulations issued by
the Secretary will limit Lender’s rights to require immediate payment in full in the case
of payment defaults. This Note does not authorize acceleration when not permitted
by HUD regulations.”
{¶23} Paragraph 9(a)(i) of the mortgage similarly provides that if the borrower
defaults, the lender may “except as limited by regulations issued by the Secretary, in
the case of payment defaults, require immediate payment in full of all sums * * *.”
Paragraph 9(d) of the mortgage, entitled “Regulations of HUD Secretary,” continues:
“In many circumstances regulations issued by the Secretary will limit Lender’s rights,
in the case of payment defaults, to require immediate payment in full and foreclose if
not paid. This Security Instrument does not authorize acceleration or foreclosure if
not permitted by regulations of the Secretary.”
-7-
{¶24} The borrowers rely upon certain regulations contained in 24 U.S.C. §
203. As to the face-to-face meeting, appellants cite, § 203.604(b), which provides:
“The mortgagee must have a face-to-face interview with the mortgagor, or make a
reasonable effort to arrange such a meeting, before three full monthly installments
due on the mortgage are unpaid.”
{¶25} As to the loan modification argument, appellants cite the following
regulations:
{¶26} § 203.471 Special forbearance.
{¶27} “If the mortgagee finds that a default is due to circumstances beyond
the mortgagor’s control, as defined by the Secretary, the mortgagee may grant
special forbearance relief to the mortgagor in accordance with the conditions
prescribed by the Secretary.”
{¶28} § 203.501 Loss mitigation.
{¶29} “Mortgagees must consider the comparative effects of their elective
servicing actions, and must take those appropriate which can reasonably be
expected to generate the smallest financial loss to the Department. Such action
include, but are not limited to, deeds in lieu of foreclosure under § 203.357, pre-
foreclosure sales under § 203.370, partial claims under § 203.414, assumptions
under § 203.512, special forbearance under §§ 203.471 and 203.614, and recasting
of mortgages under § 203.616. HUD may prescribe conditions and requirements for
the appropriate use of these loss mitigations actions, concerning such matters as
owner-occupancy, extent of previous defaults, prior use of loss mitigation, and
evaluation of the mortgagor’s income, credit and property.”
{¶30} § 203.605 Loss mitigation performance.
{¶31} “(a) Duty to mitigate. Before four fully monthly installments due on the
mortgage have become unpaid, the mortgagee shall evaluate on a monthly basis all
of the loss mitigation techniques provided at 203.501 to determine which is
appropriate. Based upon such evaluations, the mortgagee shall take the appropriate
loss mitigation action. * * * ”
{¶32} § 203.614 Special forbearance.
-8-
{¶33} “If the mortgagee finds that a default is due to circumstances beyond
the mortgagor’s control, as defined by HUD, the mortgagee may grant special
forbearance relief to the mortgagor in accordance with conditions prescribed by
HUD.”
{¶34} To bolster the claim that the regulations are mandatory, the borrowers
cite Mortgagee Letter 00-05 issued by HUD, which states that although the bank has
great latitude in selecting loss mitigation strategies, the bank’s participation in the
loss mitigation program is not optional and the bank must: consider all reasonable
means to address a delinquency at the earliest moment; inform borrowers of
available loss mitigation options and the availability of housing counseling within the
second month of delinquency; evaluate each delinquent loan no later than the 90th
day of delinquency to determine which loss mitigation option is appropriate; and
utilize loss mitigation whenever feasible to avoid foreclosure. The letter also states
that when the cause of the default is curable and the borrower is committed to
remaining in the home, HUD expects lenders to consider reinstatement options in the
following order: special forbearance, loan modification, and partial claim.
{¶35} The bank initially contends that non-compliance with the HUD
regulations is not a defense to foreclosure as the regulations merely set forth the
standards for programs in which the lender can participate in order to receive benefits
from the government. The bank cites an Ohio Supreme Court case in support. See
Farmers Production Credit Assn. of Ashland v. Johnson, 24 Ohio St.3d 69, 493
N.E.2d 946 (1986) (holding that a regulation that required the bank to “adopt”
forbearance policies if the borrower is cooperative, makes an honest effort to meet
conditions of loan, and is capable of working out of debt did not provide a defense to
a foreclosure action).
{¶36} However, the Court’s decision in Farmers was based upon the finding
that the regulation discussed did not have the force and effect of law. Whereas, the
HUD regulations at issue here are clearer in their requirements, and these
requirements have been codified in detail. See GMAC Mtge. of Pennsylvania v.
Gray, 10th Dist. No. 91AP-650 (Dec. 10, 1991). See also CitiMortgage, Inc. v.
-9-
Carpenter, 2d Dist. No. 24741, 2012-Ohio-1428, ¶ 21, 23 (stating that HUD
regulations were codified and have the force and effect of law, unlike the directives at
issue before that court).
{¶37} Even if the regulation at issue in Farmers is comparable to the
regulations at issue here, that case is distinguishable because the contractual
language in the case at bar incorporated the HUD regulations into the acceleration
and foreclosure portions of the note and mortgage. See BAC Homes Loans Serv.,
LP v. Taylor, 9th Dist. No. 26423, 2013-Ohio-355, ¶ 19. As set forth above, the
documents provide that acceleration and foreclosure are not authorized when not
permitted by HUD regulations and that the regulations may limit the bank’s right to
accelerate on default.
{¶38} Thus, courts regularly hold that failure to comply with the HUD
regulations can be used defensively in an action on a note and mortgage, especially
where they are said to apply in the contract. See id. See also CitiMortgage, Inc. v.
Carpenter, 2d Dist. No. 24741, 2012-Ohio-1428, ¶ 18-19, 21, 25; Wells Fargo Bank,
N.A. v. Favino, N.D.Ohio No. 1:10 CV 571 (Mar. 31, 2011); Washington Mut. Bank v.
Mahaffey, 154 Ohio App.3d 44, 2003-Ohio-4422, 796 N.E.2d 39. We conclude that
noncompliance with cited HUD regulations can be utilized by the borrower in a
foreclosure action where the contractual terms require such compliance, and we thus
turn to the arguments raised by the borrowers in their appeal from summary
judgment.
FACE-TO-FACE MEETING
{¶39} The borrowers argue that their response to the bank’s motion for
summary judgment sufficiently demonstrated that there is a genuine issue of material
fact on the offer of a face-to-face meeting. As quoted supra, § 203.604(b) requires
the bank to make a reasonable effort to engage in a face-to-face meeting with a
borrower who has defaulted. The affidavit of Michele Shane states that she was
never offered a face-to-face meeting.
{¶40} The bank had no chance to reply to the borrowers’ response before
summary judgment was granted, and thus the bank did not address the contention
-10-
regarding the offer of a face-to-face meeting below. On appeal, the bank states that
the borrowers did not raise a genuine issue of material fact regarding this defense
because the affidavit did not set forth facts showing that the exceptions to the offer of
a face-to-face meeting applied.
{¶41} On this point, the remainder of § 203.604 states that a face-to-face
meeting is not required under certain circumstances. For instance, a face-to-face
meeting is not required if the property is not located within 200 miles of the
mortgagee, its servicer, or a branch office of either or if the borrower does not live in
the mortgaged property. (We note that all notices were served on the borrowers at
the property, and they called it their home in their initial pleading.)
{¶42} The bank concludes that, before a genuine issue could be created, the
borrowers had to show by affidavit that there existed no exceptions to regulation’s
requirement of a face-to-face meeting, e.g. the borrower had to state that there was a
branch office within 200 miles. To the contrary, the borrowers urge that they need
not negate the existence of exceptions to the requirement of a meeting in order to
avoid summary judgment. The bank urges that in cases cited by appellants, the
borrower did set forth a claim that a branch was located within 200 miles.
{¶43} In Phillabaum, the borrower responded to the bank’s request for
summary judgment and filed a cross-motion for summary judgment, stating in an
affidavit that the bank has at least one branch office within 200 miles of the home and
that the borrower had visited that office. The court found that this shifted the burden
to the bank. Wells Fargo v. Phillabaum, 192 Ohio App.3d 712, 2011-Ohio-1311, 950
N.E.2d 245 (4th Dist.). The bank had responded by arguing in a memorandum that
the location identified by the borrower was a regular branch office of the bank and
that the regulation requires the branch within 200 miles to be a mortgage servicing
location. After disagreeing with this legal interpretation of the regulation, the Fourth
District alternatively stated that the bank failed to meet its burden in reply because it
did not support its claim with an affidavit stating that there were no mortgage
servicing personnel at the branch identified by the borrower or that the nearest
-11-
mortgage servicing center was in Maryland. Id. at ¶ 13-14. See also Isaacs, 1st
Dist. No. C-100111.
{¶44} As Phillabaum involved a borrower’s cross-motion for summary
judgment, that court’s statements are not dispositive as to whether a non-movant
who alleges that they were not offered a face-to-face meeting must also prove that a
branch is within 200 miles in order to avoid summary judgment.
{¶45} The Tenth District has placed the burden for the exceptions to the HUD
regulations on the bank. Pennsylvania v. Gray, 10th Dist. No. 91AP-650 (Dec. 10,
1991). After stating that the borrower met his burden by responding to the bank’s
motion for summary judgment with an affidavit raising the lack of an offer of a face-to-
face meeting and a failure to discuss loan modification, the Tenth District found that
the bank’s reply insufficiently established the 200-mile exception. Id. Thus, after
placing the burden on the borrower to raise non-compliance with HUD regulations in
his response, no further burden was placed upon the borrower to state that the
exceptions are not applicable. See id.
{¶46} A reasonable effort to schedule a face-to-face meeting is required.
There are exceptions. But, if an exception to the bank’s obligation applied, the bank
would have evaluated it and found it existed in deciding that it had no obligation to
offer a meeting. This is especially true where one of the exceptions the bank relies
upon on appeal is whether that very bank has a branch within 200 miles of the
residence.
{¶47} The borrower responded to summary judgment by stating in an affidavit
that they were not provided with an offer of a face-to-face meeting in any manner.
This created a genuine issue as to this defensive use of the HUD regulations. The
burden was not on the non-moving borrower to plead the lack of each exception in
order to prove a genuine issue. Rather, once the borrower asserts that they were not
offered such a meeting, we conclude that the burden is on the bank to assert which
exceptions to the required meeting applied. Thus, summary judgment for the bank
was improper here as the borrower demonstrated a genuine issue of material fact as
to the offer of a face-to-face meeting.
-12-
LOSS MITIGATION/LOAN MODIFICATION EFFORTS
{¶48} The borrowers next argue that their response to the bank’s motion for
summary judgment sufficiently raised a genuine issue of material fact as to the
existence of proper loss mitigation efforts. The borrowers acknowledge that they
have no contractual right to actually have their loan modified. They assert, however,
that their contracts required the bank to comply with HUD regulations and the HUD
regulations obligated the bank to properly evaluate them for loss mitigation,
especially once the process was started by the bank. The borrowers rely on the
allegations in the affidavit that they provided the bank with all requested documents,
the foreclosure complaint was filed in the midst of the loan modification process, and
the bank’s only explanation was that the documents supplied were missing, have
been lost, or have become outdated.
{¶49} The bank contends that the affidavit’s statement that they were in loan
modification at the time of the complaint and that documents were requested by the
bank shows that the bank did in fact evaluate them for loss mitigation. However,
these statements can also suggest that the bank allowed the borrowers to begin the
process but never actually conducted the evaluation.
{¶50} The bank then contends that the borrowers did not show that the loan
modification regulations would apply to them. For instance, the bank cites
regulations providing that special forbearance may only be allowed if the bank finds
the default was due to circumstances beyond the borrower’s control. However, the
affidavit of Michele Shane specifically stated that they fell behind in payments
because she took a Family Medical Leave but was terminated by her employer,
which required her to retain counsel in order to retain her position.
{¶51} Similarly, the bank posits that, in order to avoid summary judgment, the
borrowers had to show that they were viable candidates for loan modification, noting
that the loan could only be recast to a new term if the borrower could afford the new
loan. However, this is akin to the arguments regarding the exceptions to a face-to-
face meeting.
-13-
{¶52} That is, such claim does not fall within the burden of the non-moving
borrower, especially where the borrower is claiming that the loss mitigation evaluation
was never performed (as the bank kept creating ways not to conduct it) after the bank
collected the requested information. See Gray, 10th Dist. No. 91AP-650 (finding that
the borrower met his burden by responding to the bank’s motion for summary
judgment with an affidavit raising the lack of an offer of a face-to-face meeting and a
failure to discuss loan modification and not placing a burden on the borrower to state
that the exceptions are not applicable).
{¶53} If the bank started the borrowers on the path of loss mitigation but then
never completed the evaluation, the homeowners would remain unaware of whether
they could afford a new loan or qualify for some other loss mitigation option. We
conclude that the borrower’s affidavit here set forth sufficient evidence of a genuine
issue of material fact regarding the failure to complete the evaluation for loss
mitigation that was started by the bank.
{¶54} At this point, the bank argues that the borrowers’ contentions regarding
both the face-to-face meeting and the loss mitigation evaluation would not prohibit
judgment on the note but would only apply to the ability to foreclose under the
mortgage. The bank cites to § 203.606(a), which states that the bank must ensure all
servicing requirements are met before initiating foreclosure.
{¶55} However, the language of the note and mortgage and the potential
result of the loss mitigation evaluation belie this argument. See Paragraph 9 of the
mortgage and Paragraph 6 of the note, quoted supra. The mortgage states, under a
heading “Grounds for Acceleration of Debt,” that if the borrower defaults by failing to
pay a full monthly payment prior to the due date of the next payment, the “Lender
may, except as limited by regulations issued by the Secretary, in the case of payment
defaults, require immediate payment in full of all sums secured by this Security
Instrument[.]” The mortgage further states: “regulations issued by the Secretary will
limit Lender’s rights, in the case of payment defaults, to require immediate payment
in full and foreclose if not paid. This Security Instrument does not authorize
acceleration or foreclosure if not permitted by regulations of the Secretary.”
-14-
{¶56} Similarly, the note states that if the borrower defaults, the “Lender may,
except as limited by regulations of the Secretary in the case of payment defaults,
require immediate payment in full of the principal balance remaining due and all
accrued interest.” The note further states that regulations issued by the Secretary
can limit the bank’s “rights to require immediate payment in full in the case of
payment defaults.” And, it expresses, “This Note does not authorize acceleration
when not permitted by HUD regulations.”
{¶57} The mortgage states that the debt secured by the mortgage is
evidenced by the note dated the same day and that the mortgage secures repayment
of the debt evidenced by the note and the performance of the agreements under the
mortgage and the note. The note similarly states that the promise to pay is secured
by a mortgage dated the same day.
{¶58} Both the note and mortgage provide that it is not only the right to
foreclose that will be affected by the non-compliance but also the right to accelerate
and require immediate payment that will be affected. We also note that if a loss
mitigation evaluation is required, then the right to accelerate (which required full
payment) and then obtain a judgment based upon that acceleration would not arise
until after the evaluation is complete since a successful loss mitigation can include
reinstatement options, which necessarily preclude a judgment for the entire balance.
Under such circumstances, when reversing summary judgment due to a genuine
issue of material fact regarding compliance with HUD regulations, we shall not permit
the entry of summary judgment on the note to stand.
ACCELERATION LETTER
{¶59} Appellants also suggest that in granting summary judgment, the trial
court improperly relied upon the unauthenticated acceleration letter attached to the
bank’s motion for summary judgment. Appellants briefly state that because the letter
was not proper summary judgment evidence and they objected to it, the letter could
not be considered to determine whether the bank provided notice of acceleration.
{¶60} In ruling on a motion for summary judgment, unless the other party has
failed to object, the court can only consider evidence properly submitted under Civ.R.
-15-
56, which includes pleadings, depositions, answers to interrogatories, written
admissions, affidavits, transcripts of evidence, and written stipulations of fact. Civ.R.
56(C); State ex rel. Gilmour Realty, Inc. v. Mayfield Heights, 122 Ohio St.3d 260, 910
N.E.2d 455, 2009-Ohio-2871, ¶ 17 (courts may consider evidence that does not
comply with Civ.R. 56(C), such as unsworn and unauthenticated documents, if there
is no objection). Here, the affidavit did not authenticate or even refer to the April 12,
2011 letter, and appellants objected to this fact.
{¶61} Thus, the bank does not contest the argument that the acceleration
letter should not be considered. Rather, the bank contends that receipt of the notice
was never placed at issue and thus the unauthenticated letter was superfluous to the
motion for summary judgment. The bank points out that notice of acceleration is not
required under the language of the note and mortgage and that appellants did not
provide any citation as to why notice of acceleration was required and they did not
assert that they did not receive it (or that it was faulty in some way that is maintained
on appeal).
{¶62} The note provides that the borrower waives the right of presentment
and explains that presentment means the right to require the Lender to demand
payment of amounts due. The note states that the promise to pay is secured by the
mortgage, and the mortgage similarly states that the debt secured by it is evidenced
by a note of date the same date. The mortgage does not contain a specific
requirement concerning written notice prior to acceleration or the filing of a
foreclosure action. Compare Bank of New York Mellon v. Roarty, 7th Dist. No.
10MA42, 2012-Ohio-1471, ¶ 22, 24, 34 (where contracts specifically provided for
written notice of acceleration within a certain time by a certain method and borrower
raised genuine issue in response); Federal Natl. Mtg. Assn. v. Brunner, 6th Dist. No.
L-11-1319, 2013-Ohio-128, ¶ 22; Bank of America, N.A. v. Gray, 5th Dist. No. 2012-
CA-116, 2010-Ohio-712, ¶ 21; National City Mtg. Co. v. Richards, 182 Ohio App.3d
534, 2009-Ohio-2556, 913 N.E.2d 1007, ¶ 16, 30.
{¶63} The uncontested affidavit of the bank employee states that payments
were not made as required under the terms of the note and mortgage, that default
-16-
has not been cured, and the entire balance of $99,555.94 (as of January 5, 2012)
was due because the debt was “accelerated pursuant to the terms of the loan.”
However, the borrowers did not assert in response that they did not receive notice or
under what authority it was required. Nor did they provide an affidavit regarding the
notice. Rather, they argued below that the face of the notice (which they urged
should not be considered in any event) provided insufficient notice of the amounts
that would be due after the date of the notice. Yet, this argument is not maintained
on appeal.
{¶64} We conclude that because the borrowers did not claim through
summary judgment evidence (or even allege) that they did not receive the
acceleration letter, a genuine issue regarding the notice of acceleration was not
raised to the trial court. Compare National City Mtge. Co. v. Richards, 182 Ohio
App.3d 534, 2009-Ohio-2556, 913 N.E.2d 1007, ¶ 24-27 (10th Dist.) (where borrower
raised the notice issue in her response, the court analyzed that response and the
bank’s reply to that response to determine that the notice was not provided pursuant
to the terms of the contract); First Financial Bank v. Doellman, 12th Dist. No.
CA2006-02-029, 2007-Ohio-222, ¶ 13-16, 20-21, 28 (reversing summary judgment
where borrower raised the lack of notice in response to bank’s motion, borrower’s
affidavit claimed that they were not provided the contractual notice, and bank’s reply
failed to authenticate an attached letter)
{¶65} Moreover, at both the trial and appellate levels, the borrowers failed to
cite any provision of the mortgage, note, or law that requires notice of acceleration
here (as they did for their other arguments). See LaSalle Bank, N.A. v. Tirado, 5th
Dist. No. 2009CA22, 2009-Ohio-2589, ¶ 21, 31-34 (borrower cannot claim that failure
to provide notice of acceleration is a violation of the law without citing appellate court
to such law and where mortgage provided right to accelerate without notice and note
waived right to presentment). It is the duty of appellant, not the court to scour the
law to support its general assertions that notice is required under the law. Id. at ¶ 33.
See also App.R. 16(A)(7) (appellants shall include in their brief “[a]n argument
containing the contentions of the appellant with respect to each assignment of error
-17-
presented for review and the reasons in support of the contention, with citations to
the authorities, statutes and parts of the record on which appellant relies.”). We
conclude that the borrowers failed to establish that the bank’s attachment had an
effect on the asserted defenses maintained on appeal. In any event, the two HUD
arguments presented in detail below and to this court have been sustained, requiring
remand for further summary judgment proceedings.
{¶66} For the foregoing reasons, the judgment of the trial court is reversed
and the case is remanded for further proceedings.
Donofrio, J., concurs.
Waite, J., concurs.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
HOMERO MENDIOLA, DOC #C06024, )
)
Appellant, )
)
v. )
) Case No. 2D16-3001
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed December 21, 2018.
Appeal from the Circuit Court for
Hillsborough County; William Fuente,
Judge.
Howard L. Dimmig, II, Public Defender,
and Maureen E. Surber, Assistant Public
Defender, Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Chelsea S. Alper,
Assistant Attorney General, Tampa, for
Appellee.
PER CURIAM.
Affirmed.
SLEET, ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.
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569 N.W.2d 836 (1997)
224 Mich. App. 437
Karen HALBROOK, as personal representative of the estate of James Edward Bondie, deceased, Plaintiff-Appellant,
v.
HONDA MOTOR COMPANY, LTD., Honda R & D Company, Ltd., American Honda Motor Company, Inc., and Honda R & D North America, Inc., Defendants-Cross Defendants-Appellees, and
Anderson Sales And Service, Defendant-Cross Plaintiff-Appellee.
Wayne LODER, as personal representative of the estates of Stephen Loder and Stephanie Loder, decedents, and Patricia Loder, individually, Plaintiffs-Appellants,
v.
HONDA MOTOR COMPANY, LTD., Honda R & D Company, Ltd., American Honda Motor Company, Inc., and Honda R & D North America, Inc., Defendants-Cross Defendants-Appellees, and
Anderson Sales And Service, Defendant-Cross Plaintiff-Appellee.
Docket Nos. 181561, 181562.
Court of Appeals of Michigan.
Submitted November 12, 1996, at Detroit.
Decided July 11, 1997, at 9:00 a.m.
Released for Publication October 8, 1997.
*838 Nemeir, Tolari, Landry, Mazzeo & Johnson, P.C. by Douglas S. Loomer, Farmington Hills, for Karen Halbrook.
David A. Yurenka, St. Clair Shores, Klein, Wegis, Bakersfield, CA by Denise A. Martin, Detroit, and Bendure & Thomas by Mark R. Bendure, Detroit, for Wayne and Patricia Loder.
Bowman and Brooke by Lawrence C. Mann and Ronald C. Wernette, Jr., Detroit, for Honda Motor Co., Ltd. and others.
Nill, Rockwell, Shannon & Keene, P.C. by Dan C. Keene, Flint, for Anderson Sales & Service.
Before MARILYN J. KELLY, P.J., and JANSEN and M. WARSHAWSKY,[*] JJ.
*837 MARILYN J. KELLY, Presiding Judge.
In this wrongful death action, plaintiff's appeal as of right from a grant of summary disposition to defendants pursuant to MCR 2.116(C)(8) and (C)(10). Plaintiffs argue that there were factual issues to be resolved by the jury. We affirm.
I
On March 21, 1990, plaintiff Patricia Loder was driving her automobile. Along with her as passengers were her two children, Stephanie and Stephen. While heading eastbound on Sleeth Road in Commerce Township, Loder stopped in preparation to turn left onto Half Penny Court. A motorcycle traveling westbound on Sleeth passed her at a high rate of speed. Loder then began to turn left. As she did, her automobile was struck in the right hand side by another westbound motorcycle driven by James Bondie. Upon impact, Stephen, Stephanie and Bondie were killed. Loder sustained serious injuries.
Patricia Loder and Wayne Loder, as personal representative of his two children, and Karen Halbrook, as personal representative of Bondie's estate, sued each other for negligence. Thereafter, the Loders sued defendants, claiming negligence in the design, manufacture, marketing and distribution of Bondie's motorcycle. The Loders claimed that defendants created and sold a vehicle that could travel and accelerate too fast. Neither the inexperienced rider nor other drivers on the road could appreciate its capabilities. Therefore, they claimed, the motorcycle was dangerous and unsuitable for public highways. The Loders also asserted that defendants deliberately marketed the motorcycle to young male riders with special emphasis on speed.
Halbrook filed a similar complaint. The cases were consolidated by the lower court which granted summary disposition for defendants. It found that defendants were not responsible for Bondie's reckless acts.
II
A
We review a grant of summary disposition de novo. Plieth v. St. Raymond Church, 210 Mich.App. 568, 571, 534 N.W.2d 164 (1995). A motion brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim to determine whether the opposing party's pleadings allege a prima facie case. Wortelboer v. Benzie Co., 212 Mich.App. 208, 217, 537 N.W.2d 603 (1995). All well-pleaded *839 facts are considered in favor of the non-moving party. The motion should be granted only where the claim, based on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could justify a right to recover. Paul v. Bogle, 193 Mich.App. 479, 495-496, 484 N.W.2d 728 (1992).
It appears that the trial court's grant of defendants' motion for summary disposition was made after a finding that defendants did not owe a duty to plaintiffs. Duty is a legally recognized obligation to conform to a particular standard of conduct toward another. Ross v. Glaser, 220 Mich. App. 183, 559 N.W.2d 331 (1996); Chivas v. Koehler, 182 Mich.App. 467, 475, 453 N.W.2d 264 (1990). If the court determines as a matter of law that a defendant owed no duty to a plaintiff, summary disposition is properly granted under MCR 2.116(C)(8). Ross, supra; Dykema v. Gus Macker Enterprises, Inc., 196 Mich.App. 6, 9, 492 N.W.2d 472 (1992).
In general, our courts recognize that a manufacturer has a duty to bystanders adversely affected by its products. Moning v. Alfono, 400 Mich. 425, 433, 254 N.W.2d 759 (1977), modified 402 Mich. 958 (1978). However, the duty to bystanders is not absolute. Product manufacturers are not insurers. Thus, they are not absolutely liable for any and all injuries sustained from the use of their products. See Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 388, n. 8, 491 N.W.2d 208 (1992). In Buczkowski v. McKay, 441 Mich. 96, 100-101, 490 N.W.2d 330 (1992), our Supreme Court stated:
Duty is actually a "`question of whether the defendant is under any obligation for the benefit of the particular plaintiff' and concerns `the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.'" "`Duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." [Citations omitted.]
The following policy considerations are often relevant: (1) the foreseeability of the harm, (2) the degree of certainty of injury, (3) the closeness of connection between the conduct and injury, (4) the moral blame attached to the conduct, (5) the public policy of preventing future harm, and (6) the burdens and consequences of imposing a duty and the resulting liability for breach. Colangelo v. Tau Kappa Epsilon Fraternity, 205 Mich.App. 129, 132, 517 N.W.2d 289 (1994). Whether defendants had a duty to protect the Loders depends on the relationship between the parties, the nature and foreseeability of the risk and any other considerations that may be relevant on the issue. Buczkowski, supra at 103, 490 N.W.2d 330.
B
We find that it is foreseeable to manufacturers of motor vehicles that motorists speed and that excessive speed may cause accidents. This is especially true, as in this case, where it is alleged that defendants advertised the speed and acceleration capabilities of their motorcycle. However, the determination of whether a duty exists does not turn solely on foreseeability.
The second factor, degree of certainty of injury, weighs against the Loders. It is not certain that a motorcycle designed to travel in excess of the speed limit and accelerate quickly will cause injury to others. The risk of harm is dependent, in part, on the way the driver handles the vehicle. Even if vehicles were designed to travel no faster than the maximum highway speed limit, there is no certainty that injuries to others could be averted. For instance, in this case, we will assume that Bondie's motorcycle was traveling approximately 80 miles per hour in a 45 mile per hour zone. If it had been capable of traveling no faster than 70 miles per hour, there is no certainty that the injuries would have been avoided. Moreover an automobile traveling at 70 miles per hour in a 25 mile per hour zone could be just as deadly.
The third factor, closeness of connection between the conduct and the injury to the Loder plaintiffs, weighs in favor of defendants. The deaths were not closely connected to the fact that the vehicle could be driven *840 in excess of the speed limit and could accelerate quickly. Rather, the accident was more closely connected to the failure of Patricia Loder to yield the right of way and Bondie's reckless driving.
The fourth factor, moral blame attached to the conduct, requires this Court to look at the participants to the tragedy and determine which were the most blameworthy. Colangelo, supra at 134, 517 N.W.2d 289. We find that defendants are the least blameworthy. They did not cause Bondie to disobey the law nor did they cause Patricia Loder to ignore the oncoming motorcycle. To shift the moral blame to the motor vehicle manufacturer merely because the accident involved automotive speed is a step we are not willing to take. See Haupt v. Kerr Mfg. Co., 210 Mich.App. 126, 532 N.W.2d 859 (1995).
The policy of preventing future harm might be advanced by imposing a legal duty on motor vehicle manufacturers to design and market vehicles with limited speed and acceleration capabilities. However, the danger of a moving vehicle is heavily dependent on its driver. Moreover, in the highly regulated area of motor vehicles, it is preferable that the Legislature, not the courts, determine if speed limitations should be set for motor vehicles. See King v. R.G. Industries, Inc., 182 Mich.App. 343, 345, 451 N.W.2d 874 (1990).
Finally, considering the burdens and consequences of imposing a duty and the resulting liability for breach, we find that automobile manufacturers should not be potentially liable to innocent persons in this type of case. If we impose a burden on motor vehicle manufacturers to protect persons who could be injured by the misuse of their products, the result would be a great increase in litigation. In some instances a product manufacturer is in a better position to assume the costs of litigation and redistribute them to the general public. However, in this case, we find it to be too great a burden. Automobile manufacturers are not insurers. We find they are not bound to guard against the careless misuse of their products by negligent drivers, as in the case before us.
Therefore, we hold that the trial court properly granted summary disposition to defendants with respect to the Loders' claims.
C
We turn now to James Bondie. Our courts have generally held that motor vehicle designers, manufacturers and distributors owe a duty to users or occupants to eliminate any unreasonable risk of foreseeable injury. Haberkorn v. Chrysler Corp., 210 Mich.App. 354, 364, 533 N.W.2d 373 (1995). The next inquiry is whether defendants were unreasonable in manufacturing, designing, marketing and distributing a motor vehicle that could travel in excess of the speed limit and accelerate quickly. It is usually a question for the jury. Moning, supra at 438, 254 N.W.2d 759. However, when there are overriding public policy concerns, the question of reasonable care is for the court to decide as a matter of law. Scott v. Harper Recreation, Inc., 444 Mich. 441, 448, 506 N.W.2d 857 (1993); Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 500-501, 418 N.W.2d 381 (1988). Such public policy concerns exist in the present case.
We find as a matter of public policy that an automobile manufacturer's duty of reasonable care does not extend to reducing the speed and acceleration capabilities of its vehicles, as plaintiffs ask in this case. While automobile manufacturers can limit defects in their products, as a matter of public policy, we are not willing to hold them liable for the consumers' misuse of their products. We limit our decision to the specific claims brought before us in this case.
D
Plaintiffs also argue that defendants' advertising campaigns were responsible for the accident. They argue that Bondie was an impressionable young man who was concerned with his image. He was enticed into breaking the law by defendants' advertisement which encouraged him to speed.
Plaintiffs rely on Moning, supra, to support their argument. There, the Supreme Court stated:
*841 "One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them." [Moning, supra at 425, 254 N.W.2d 759, quoting 2 Restatement Torts, 2d, § 390.]
However, the Moning Court was concerned with whether marketing slingshots directly to children created an unreasonable risk of harm. The Supreme Court later noted that Moning does not support a duty to third parties with regard to marketing, except where children are concerned, as children are an historically protected class. Buczkowski, supra at 103, n. 8, 490 N.W.2d 330.
Here, there is no question that Bondie was not a child. He was twenty-six years old and licensed to drive a motorcycle. Plaintiffs' attempts to liken Bondie to the children at issue in Moning is unpersuasive. There is no duty for an advertiser to change its advertising pitch on the basis that the target adult audience may be swayed by the advertisement. The claims of speed and fast acceleration in the advertisements were mostly puffing. Overton v. Anheuser-Busch Co., 205 Mich.App. 259, 261, 517 N.W.2d 308 (1994).
Moreover, after reviewing the record, we find that plaintiffs failed to provide any evidence that the advertisements were the proximate cause of the accident. Normally, the issue of causation is for the jury. However, if there is no issue of material fact, the trial court may decide the issue itself. Babula v. Robertson, 212 Mich.App. 45, 54, 536 N.W.2d 834 (1995). The trial court correctly dismissed plaintiffs' complaint after finding that no evidence was presented that defendants' advertising caused the accident.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 3, 2007
No. 07-10444 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00101-CR-KD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY CLIFFORD JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 3, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Latisha V. Colvin, appointed counsel for Henry Clifford Johnson on this
direct criminal appeal, has filed a motion to withdraw on appeal supported by a
brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18
L.E.2d 493 (1967). Our independent review of the record reveals that counsel’s
assessment of the relative merit of the appeal is correct. Because independent
examination of the entire record reveals no arguable issues of merit, counsel’s
motion to withdraw is GRANTED, and Johnson’s conviction and sentence are
AFFIRMED. Johnson’s motion for new counsel is, accordingly, DENIED.
2
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Case: 10-51213 Document: 00511697032 Page: 1 Date Filed: 12/15/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 15, 2011
No. 10-51213
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ANGEL ISLAS-MACIAS, also known as Eduardo Mendoza-Macias,
Defendant-Appellant
Cons. w/ No. 10-51227
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ANGEL ISLAS-MACIAS,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 4:09-CR-212-1
USDC No. 4:10-CR-289-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
*
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: 10-51213 Document: 00511697032 Page: 2 Date Filed: 12/15/2011
No. 10-51213
c/w No. 10-51227
Miguel Angel Islas-Macias (Islas) appeals his sentence following his guilty
plea conviction for being found unlawfully present in the United States. He also
appeals his revocation sentence imposed after Islas violated the terms of
probation arising from a prior improper entry conviction.
Islas contends that, because he argued in the district court that he should
receive a lower sentence, plain error review is improper, even though he failed
to object on unreasonableness grounds. As Islas concedes, this court has held
that an objection to the substantive unreasonableness of a sentence is required
to preserve error. United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007);
see also Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999)
(holding that a panel of this court cannot overturn a prior panel’s decision).
Islas further challenges the application of the plainly unreasonable
standard of review to his revocation sentence although he likewise concedes that
this court has held otherwise. See United States v. Miller, 634 F.3d 841, 843 (5th
Cir. 2011), petition for cert. filed, (U.S. May 27, 2011) (No. 10-10784). Because
Islas did not object to his revocation sentence, this contention is nevertheless
irrelevant, and review of his revocation sentence is also limited to plain error.
See United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009); Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009).
In asserting unreasonableness, Islas first argues that the illegal reentry
guideline, U.S.S.G. § 2L1.2, is not empirically supported and a sentence under
that Guideline is therefore unreasonable. But “[a] discretionary sentence
imposed within a properly calculated guidelines range is presumptively
reasonable,” United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.
2008), and this court has held that examination of the empirical basis for
sentencing guidelines is not necessary before applying the presumption of
reasonableness. See United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.),
cert. denied, 130 S. Ct. 378 (2009). This court has also rejected Islas’s argument
2
Case: 10-51213 Document: 00511697032 Page: 3 Date Filed: 12/15/2011
No. 10-51213
c/w No. 10-51227
that the non-violent nature of illegal reentry warrants reversal of the district
court’s ruling. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir.
2006).
As for Islas’s revocation sentence, his sentencing range was 8-14 months,
under the policy statements. See § 7B1.4(a), (b)(3)(A). The statutory maximum
sentence that could be imposed upon revocation of Islas’s parole was a one-year
term of imprisonment because the offense resulting in his term of probation was
a Class E felony. 18 U.S.C. § 3583(e)(3). Islas’s violation of his probation was
a Grade B violation, see § 7B1.1(a)(2), and at the time of his original sentencing
to probation, Islas’s criminal history category was III. The 11-month sentence
imposed was therefore within the policy statement guidelines range and below
the statutory maximum penalty.
Islas contends that all of the goals of sentencing could have been met by
a far lower combined sentence. However, “[a] defendant’s disagreement with the
propriety of the sentence imposed does not suffice to rebut the presumption of
reasonableness that attaches to a within-guidelines sentence.” United States v.
Ruiz, 621 F.3d 390, 398 (5th Cir. 2010). The record demonstrates that the
district court considered the 18 U.S.C. § 3553(a) factors and Islas’s arguments
at sentencing before determining that a within-guidelines sentence was fair and
reasonable. The district court pointed out that Islas had been voluntarily
returned seven times to Mexico and indicated that further deterrence was
necessary under those circumstances. The district court’s comments indicate
that it considered the § 3553(a) factors as well as the Chapter 7 policy
statements. Islas has not shown that the revocation sentence imposed was
plainly unreasonable.
Accordingly, Islas has not offered sufficient reasons to disturb the
judgment of the district court, and the sentences are AFFIRMED.
3
| {
"pile_set_name": "FreeLaw"
} |
Cite as 2015 Ark. App. 441
ARKANSAS COURT OF APPEALS
DIVISION II
No.CV-14-1006
Opinion Delivered September 2, 2015
JUSTIN WAYNE HOLLIS and KAHLA APPEAL FROM THE GARLAND
ALISE HOLLIS COUNTY CIRCUIT COURT
APPELLANTS [No. 26PR-13-303]
V. HONORABLE JOHN HOMER
WRIGHT, JUDGE
MELINDA NICOLE HOLLIS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellants Justin and Kahla Hollis appeal the order of the Garland County Circuit
Court, denying their petition to adopt Kahla’s stepson, E.H. On appeal, Justin and Kahla
argue that (1) the trial court erred as a matter of law in denying the petition for adoption
because it failed to employ the required two-part adoption analysis; (2) the trial court’s order
was clearly erroneous because they proved that consent to the adoption by E.H.’s mother,
appellee Melinda “Nicole” Hollis, was not required; and (3) the trial court clearly erred in
finding that adoption was not in the best interest of E.H. We affirm.
Justin and Nicole were married on December 2, 2002, and had one child, E.H., born
January 23, 2004. The parties were divorced on December 17, 2009. The divorce decree granted
Justin custody of E.H. and Nicole supervised visitation. Justin married Kahla on July 31, 2010.
They, their eighteen-month-old son, R.H., and E.H. have lived together in Hot Springs,
Arkansas, since July 2012. Prior to that time, they lived in Fort Polk, Louisiana.
Cite as 2015 Ark. App. 441
On June 3, 2011, an order was entered by the trial court granting Nicole’s motion for
unsupervised visitation. Certain conditions were included in the order, dictating with whom
Nicole and E.H. could have contact and prohibiting Nicole from using illicit drugs or abusing
prescription drugs. This order further ordered Nicole to pay $82 per week in child support.
On May 24, 2013, Justin and Kahla filed a petition to adopt E.H. They alleged, among
other things, that Nicole owed child support and had not exercised visitation with E.H. since
October 2011. Based on these allegations, Justin and Kahla claimed that Nicole’s consent to
adoption was not required under Arkansas Code Annotated section 9-9-207(a)(2).
A hearing on the petition for adoption was held on June 20, 2014. Kahla, who was
twenty-six years old, testified that she worked in a hospital emergency room as a student nurse
and was in nursing school with an expected graduation date of May 2015. Kahla stated that she
and Justin had full custody of E.H. for four years and that she had raised, disciplined, and loved
him.
Kahla testified that Nicole had not visited E.H. regularly. For example, Kahla stated that
Nicole did not visit E.H. for one year after the divorce. After the June 2011 order granting
Nicole unsupervised visitation, the first three visits took place as scheduled; however, the visits
thereafter became more inconsistent. Sometimes Nicole picked up E.H., and other times her
parents did.1 According to Kahla, there were two occasions when she and Justin drove E.H. to
Shreveport for an exchange, and no one was there. Kahla testified that Nicole’s last visit with
1
During this time, Nicole lived in El Dorado, Arkansas, and Justin and Kahla lived in
Fort Polk, Louisiana. The custody exchange took place at a midway point in Shreveport,
Louisiana.
2
Cite as 2015 Ark. App. 441
E.H. was on October 22, 2011. Kahla said that since October 2011, Nicole had made only one
child-support payment and that she owed back child support in the amount of $11,764. Kahla
denied preventing or frustrating visitation between E.H. and Nicole or her parents.
While E.H. did not see his mother after October 2011, Kahla testified that he did see his
maternal grandparents six or seven times. And after Nicole’s father passed away, Kahla said that
E.H. continued to visit with Nicole’s mother. Kahla confirmed that the last communication she
had with Nicole was November 25, 2011. According to Kahla, E.H. has been in counseling since
2010. During one counseling session in 2011, E.H. reported an incident that the counselor
reported as child abuse.2 Kahla testified that in the spring of 2014, Nicole sent an Easter basket,
which included a money order to E.H., and she visited E.H. at his school.
Justin testified that Kahla and E.H. have a good relationship; that E.H. sees Kahla as his
mother; that he calls her “mother”; and that she is one of the best mothers he (Justin) knows.
Justin stated that after his divorce from Nicole, her visitation was restricted because of her
lifestyle, which included drinking and drug abuse. He testified that in May 2011, Nicole was
granted unsupervised visitation, which, according to him was sporadic after the third visit. He
stated that he and Kahla did everything they could to facilitate visitation.
E.H., a fourth grader at the time, testified that Kahla was his mom but that “Nikki” was
his real mom. He said that recently he received an Easter basket from Nikki and that she visited
him at school. He said that Nikki stayed during lunch and recess and took pictures. He added
2
The petition details the alleged abuse, stating that in November 2011, E.H. told his
counselor, Justin, and Kahla that during his last visit with Nicole, he had to sleep on the floor
beside her bed; he watched Nicole and her boyfriend have sex; he was stepped on and choked
by the boyfriend; and he witnessed the boyfriend physically abuse Nicole.
3
Cite as 2015 Ark. App. 441
that he had a “little bit of fun” with her. E.H. testified that, before the school visit, the last time
he had seen Nikki was two years ago. E.H. said that he calls Nikki’s mother “Nana.” According
to E.H., Nana is great and made him happy. She visited him every Christmas and sent him
presents for his birthday and Christmas. He said that he hugged and kissed her.
E.H. testified that he wanted to be adopted by Kahla and that he had a good relationship
with her. He said that she took care of him and helped him with his problems. He added that
he did not want to be with Nikki because “bad things” happened to him when he was with her.
He said that a man punched him in the stomach. While he said that he did not tell Nikki that he
had been hit, he added that she would not take him home when he told her he was not feeling
well and wanted to leave. He also talked about a boyfriend of Nikki’s who made him eat food
off the floor and choked him. He said Nikki only saw him being choked, after which she left
with E.H. He also said he saw Nikki and the boyfriend having sex and that he did not feel safe
with Nikki.
Nicole testified that the last time she saw E.H. was when she visited him at his school.
She said that E.H. was very shocked but happy to see her. He introduced her to his friends, they
collected rocks, played with his friends, and she took some photographs. She said that the last
time she had seen him prior to the visit at his school was in October 2011. Nicole testified that
she was told by her mother that she (Nicole) would not be permitted by Justin and Kahla to visit
E.H. Nicole said that she and Justin were not on speaking terms and that she spoke more often
with Kahla. However, after speaking with Kahla, she (Nicole) felt belittled because Kahla would
bring up Nicole’s past, which Nicole admitted included drugs and alcohol (including a DWI) and
4
Cite as 2015 Ark. App. 441
relationship problems. Nicole testified that she did not hire an attorney to petition for visitation
with E.H. because she lacked funds. She did, however, testify that she tried to send five child-
support money orders to E.H. in 2014, although not all of the money orders were dated and
four of them were sent to the wrong address. She testified that she stopped sending child
support because Justin and Kahla would not let her see E.H. She conceded that the last child-
support payment she made before the 2014 payments was over two years ago.
When asked about E.H.’s testimony that he was choked by Nicole’s boyfriend, she
denied witnessing the event. She further testified that, to her knowledge, none of her boyfriends
had abused E.H. and that she did not have sex in his presence intentionally.
Nicole stated that she was working two jobs—at a department store and as a server at
a restaurant. She said that she was also in college, made straight As her first semester, and
planned to attend nursing school. She was sharing an apartment with a friend in order to split
her living expenses. Nicole stated that she did not want the adoption to be approved, that she
loved E.H., and that she wanted to reestablish a relationship with him. She added that she no
longer had substance-abuse or relationship problems.
Nicole’s mother, Debbie Allen, was the final witness at the hearing. She testified that the
last time she saw E.H. was December 28, 2013. She said that she saw him at Kahla’s parents’
home in El Dorado, where she brought Christmas gifts for E.H. She said that she did not make
efforts to see E.H. after that time because she believed that Justin and Kahla would not permit
it. Debbie said that Nicole had changed her life—she was not addicted to drugs, she was going
5
Cite as 2015 Ark. App. 441
to school, and she was staying out of trouble. Debbie believed that Nicole wanted to spend time
with E.H. and had the right to do so.
Thereafter, the trial court entered a letter opinion denying Justin and Kahla’s petition for
adoption. The trial court’s order provided:
The Petition for Adoption is denied. I find that [Justin and Kahla] have failed to
establish by clear and convincing evidence that the adoption is in the best interest of the
child. I appreciate the effort that [Kahla] has made to establish a strong and loving
relationship with [E.H.] and I hope that this decision will not interfere with that
relationship continuing to flourish, but I do not think the evidence supports the
termination of the parent-child relationship. I do find that the failure of [Nicole] to
provide care and support for the child has stemmed, at least in part, from financial
considerations and I am very hesitant to terminate when that is a significant factor. I also
find that she is curing those problems . . . .
On August 4, 2014, the trial court entered an order consistent with the letter opinion. This
appeal followed.
In adoption proceedings, we review the record de novo, but we will not reverse the lower
court’s decision unless it is clearly erroneous or against a preponderance of the evidence, after
giving due regard to its superior opportunity to determine the credibility of the witnesses.
Ducharme v. Gregory, 2014 Ark. App. 268, at 6, 435 S.W.3d 14, 18. We have said that in cases
involving minor children a heavier burden is cast upon the court to utilize to the fullest extent
all its power of perception in evaluating the witnesses, their testimony, and the children’s best
interest; that the appellate court has no such opportunity; and that we know of no case in which
the superior position, ability, and opportunity of the trial court to observe the parties carry as
great a weight as one involving minor children. Id., 435 S.W.3d at 18. When the issue is one of
terminating parental rights, the appellate courts have referred to the “heavy burden” upon the
6
Cite as 2015 Ark. App. 441
party seeking to terminate the relationship. Id., 435 S.W.3d at 18. Adoption proceedings are in
derogation of the natural rights of parents, and statutes permitting such are to be construed in
a light favoring continuation of the rights of natural parents. Id., 435 S.W.3d at 18.
Generally, consent to an adoption is required by the mother of the minor child to be
adopted. Ark. Code Ann. § 9-9-206(a)(1) (Supp. 2013). Under certain circumstances, however,
the consent of the mother may not be required. Arkansas Code Annotated section 9-
9-207(a)(2)(i) & (ii) (Repl. 2009) provides that consent to adoption is not required of a parent
of a child in the custody of another, if the parent for a period of at least one year has failed
significantly without justifiable cause to communicate with the child or to provide for the care
and support of the child as required by law or judicial decree. Additionally, before an adoption
petition can be granted, the trial court must find from clear and convincing evidence that the
adoption is in the best interest of the child. In re Adoption of M.K.C., 2009 Ark. 114, at 2, 313
S.W.3d 513, 514 (citing In re Adoption of A.M.C., 368 Ark. 369, 246 S.W.3d 426 (2007); Dixon v.
Dixon, 286 Ark. 128, 689 S.W.2d 556 (1985)). See also Ark. Code Ann. § 9-9-214(c) (Repl. 2009)
(providing that the trial court can issue a final decree of adoption if at the conclusion of the
hearing the court determines that the required consents have been obtained or excused and that
the adoption is in the best interest of the individual to be adopted). The mere fact that a parent
has forfeited her right to have her consent to an adoption required does not mean that the
adoption must be granted—the court must further find from clear and convincing evidence that
the adoption is in the best interest of the child. Waldrip v. Davis, 40 Ark. App. 25, 26, 842 S.W.2d
49, 50 (1992).
7
Cite as 2015 Ark. App. 441
Justin and Kahla’s first argument on appeal is that the trial court erred as a matter of law
in denying the petition for adoption because the court failed to employ the required two-part
adoption analysis—determining whether required consent must be obtained or excused and
whether the adoption is in the best interest of the child. They contend that the trial court’s error
includes reaching a best-interest conclusion without providing an analysis and failing to make
any findings on the issue of whether Nicole’s consent to adoption was required. We disagree.
If a trial court finds that an adoption is not in the best interest of a child, it is of no
significance whether consent to adoption is required. In other words, if a trial court determines
that consent to an adoption is not required, pursuant to section 9-9-207(a)(2), there can be no
adoption if the trial court also finds that adoption is not in the best interest of the child.
Therefore, we hold that the trial court did not err as a matter of law in not addressing both parts
of the two-part adoption analysis.
For their second point on appeal, Justin and Kahla argue that the trial court’s order is
clearly erroneous because they proved that Nicole’s consent to the adoption was not required.
They contend that the facts were undisputed that, for at least one year without justifiable cause,
she did not maintain significant contact with E.H. and that she did not provide for his care and
support. However, we need not reach the merits of this argument because the trial court did not
8
Cite as 2015 Ark. App. 441
make any findings on this issue3 and such findings were not necessary based on the trial court’s
conclusion that Kahla’s adoption of E.H. was not in his best interest.
That brings us to Justin and Kahla’s third point on appeal—the trial court clearly erred
in finding that adoption was not in the best interest of E.H. They cite undisputed evidence that
Nicole did not visit, contact, or support E.H. for two years. They also cite evidence that her
boyfriend(s) physically abused E.H., that she had a drug problem, and that she was convicted
for DWI. They point out that Kahla has served as E.H.’s mother for the past four years, that she
and E.H. have a loving relationship, and that E.H. wanted Kahla to adopt him. Finally, they
point to E.H.’s testimony that he did not want to be with Nicole and that he was afraid when
he was with her.
There is no question that Kahla has been a dutiful stepparent/mother to E.H. and that
she should be commended for fostering a loving relationship with E.H. However, under our
standard of review, we hold that the trial court’s finding that adoption is not in E.H.’s best
interest is not clearly erroneous. While the trial court’s specific findings on this issue are sparse,
the court did find that Nicole’s failure to provide care and support for E.H. was due, in part, to
her financial problems, which the court found she was curing. The evidence supports this
finding. Nicole was working two jobs, had completed a semester in college—earning all As, and
3
There is nothing in the record to show that Justin and Kahla requested specific findings
of fact and conclusions of law on the issue of consent either prior to or after entry of the order.
Rule 52(a) of the Arkansas Rules of Civil Procedure provides, in relevant part, that if requested
by a party, in all contested actions tried upon the facts without a jury, the court shall find the
facts specially and state separately its conclusions of law thereon. Ark. R. Civ. P. 52(a) (2015).
Because Justin and Kahla made no request for findings, they waived their right under Rule 52.
See Smith v. Quality Ford, Inc., 324 Ark. 272, 276, 920 S.W.2d 497, 499–500 (1996).
9
Cite as 2015 Ark. App. 441
planned to attend nursing school. There was also evidence that in 2014 she attempted to send
five money orders, with one of the money orders actually reaching E.H. She testified that she
had an apartment with a roommate to split living expenses.
In our de novo review, we also hold that other evidence supports the trial court’s best-
interest decision. There is evidence that, when Nicole visited E.H. at school, he was happy about
it. All of the pictures introduced into evidence show both he and Nicole smiling. Nicole said that
he introduced her to his friends, and E.H. testified that he had a “little bit of fun” with her.
Furthermore, it is clear that E.H. had a loving relationship with Nicole’s parents, visiting with
them fairly regularly and continuing to visit Nicole’s mother after Nicole’s father’s death. E.H.
said that Nicole’s mother, “Nana,” was great and that she made him happy. Finally, there was
evidence that tension existed between Justin/Kahla and Nicole/Debbie, which could have also
troubled the trial court and served as a basis for finding that the adoption was not in E.H.’s best
interest. See In re Adoption of J.P., 2011 Ark. 535, at 19, 385 S.W.3d 266, 278 (affirming trial
court’s denial of a stepmother’s petition to adopt her husband’s child where there was evidence
of tension between her and the maternal family).
This evidence demonstrates that Nicole had made significant strides to improve her
lifestyle and relationships, including her relationship with E.H. This evidence also demonstrates
that E.H. had a positive relationship with his maternal grandmother and that it would not be in
his best interest to terminate that relationship. We must give due regard to the trial court’s
personal observations and assessment of the credibility of the witnesses. Therefore, we hold that
the trial court’s decision that Justin and Kahla failed to meet their burden by clear and
10
Cite as 2015 Ark. App. 441
convincing evidence that adoption was in E.H.’s best interest was not clearly erroneous.
Affirmed.
WHITEAKER and HIXSON, JJ., agree.
E. J. Reynolds Law Firm, P.A., by: Emily J. Reynolds, for appellant.
Depper Law Firm, by: Robert L. Depper, Jr., for appellee.
11
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ACCEPTED
06-14-00105-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
4/6/2015 1:46:42 PM
DEBBIE AUTREY
CLERK
NO. 06-14-00105-CR
____________________________________________________________
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS TEXARKANA, TEXAS
4/6/2015 1:46:42 PM
SIXTH DISTRICT DEBBIE AUTREY
Clerk
AT TEXARKANA, TEXAS
____________________________________________________________
TIMOTHY BATES, Appellant
VS.
THE STATE OF TEXAS, Appellee
____________________________________________________________
APPEAL IN CAUSE NUMBER CR1301437
IN THE COUNTY COURT AT LAW NO. 2
OF HUNT COUNTY, TEXAS
____________________________________________________________
STATE’S BRIEF
____________________________________________________________
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now The State of Texas, and submits this brief pursuant to the provisions of the
Texas Rules of Appellate Procedure in support of her request that the conviction be affirmed in
Cause No. 06-14-00105.
1
TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................................................2
INDEX OF AUTHORITIES............................................................................................................3
STATEMENT OF THE CASE........................................................................................................4
STATEMENT OF THE FACTS .....................................................................................................4
SUMMARY OF THE ARGUMENT ..............................................................................................5
ARGUMENT............................................................................................................................... 5-6
State’s Response to Point of Error Number One........................................................ 5-6
The evidence is legally and factually sufficient to sustain Appellant’s conviction
of driving while intoxicated.
CONCLUSION AND PRAYER .................................................................................................... 7
CERTIFICATE OF SERVICE ....................................................................................................... 8
2
INDEX OF AUTHORITIES
STATE CASES:
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 ........................................................................5,6
Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120
S.Ct. 2008, 146 L.Ed.2d 958 (2000) ...............................................................................................5
Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.Crim.App.2007).........................................................5
STATUTORY AUTHORITY
TEXAS PENAL CODE ANN., §49.01 ..........................................................................................6
TEXAS PENAL CODE ANN., §49.04 ...........................................................................................6
3
STATEMENT OF THE CASE
Appellant was tried and convicted by a jury of Driving While Intoxicated in the Hunt
County Court at Law #2 on May 13, 2014. The Court assessed punishment at 180 days in the
Hunt County jail, probated for twelve months with a fine of $400 plus court costs, as well as 50
hours of community service.
STATEMENT OF FACTS
The State accepts as true Appellant’s Statement of Facts with the following
supplementation.
Phillip Erickson, a clerk at the Kwik-Check Convenience Store in Greenville, TX, was
accosted by the Appellant on the evening of September 1, 2013 at approximately 1 a.m.
(Reporter’s Record, herein R.R., Vol. 2, pp. 24, 25). After a conversation with the Appellant at
the counter, Mr. Erickson decided to call the non-emergency line of the Greenville Police
Department to report that he believed Appellant to be intoxicated. (R.R. Vol. 2, p. 30). This was
not something that Mr. Erickson did often. Id. Mr. Erickson was scared due to Appellant’s
intoxication and behavior. Id. at 32-33. He attributed Appellant’s behavior to intoxication, not to
nervousness. Id. at 44.
Officer Brandon West of the Greenville Police Department initiated a stop based on the
report from the clerk. Id. at 52. Officer West testified that once the stop was initiated and
Appellant was removed from the vehicle, he brought a Snickers candy bar with him, which
struck Officer West as odd. Id. at 53. Officer West had to give the instructions for the HGN
several times before Appellant was able to comply. Id. at 54. Officer West testified that he
observed six out of the six total “clues” on the horizontal gaze nystagmus test. Id. at 60.
Appellant told Officer West during the stop that he had taken prescription medication earlier that
evening. Id. at 74. An arrest was made based on the totality of the circumstances of Officer
4
West’s investigation. Id at 79.
SUMMARY OF THE ARGUMENT
The evidence is legally sufficient to sustain conviction. The jury was able to base its
decision to convict on numerous pieces of evidence, including the testimony of a lay witness, a
police officer’s testimony, video evidence, and the defendant’s own statements. The court must
defer to the jury’s decision to convict after weighing all the evidence.
ARGUMENT: STATE’S RESPONSE TO POINT OF ERROR ONE
Legal Sufficiency of Evidence
When reviewing the sufficiency of the evidence, the court views the evidence in the light
most favorable to the verdict to determine whether any rational fact finder could have found the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781. This standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Id., at 319. Thus, when performing a legal sufficiency review, the court
may not re-evaluate the weight and credibility of the evidence and substitute its judgment for that
of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529
U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). Instead, the court should “determine
whether the necessary inferences are reasonable based upon the combined and cumulative force
of all the evidence when viewed in the light most favorable to the verdict.” Hooper v. State, 214
S.W.3d 9, 16–17 (Tex.Crim.App.2007). the court should presume that the factfinder resolved
any conflicting inferences in favor of the conviction and defer to that resolution. Jackson, 443
U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.
5
Driving While Intoxicated
The law states that a person is guilty of driving while intoxicated if they (1) operate a
motor vehicle (2) in a public place (3) while intoxicated. TEXAS PENAL CODE ANN., §49.04
Intoxication is defined as (a) not having the normal use of mental or physical faculties by reason
of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of
two or more of those substances, or any other substance into the body; or (b) having an alcohol
concentration of 0.08 or more. TEX. PENAL CODE ANN. § 49.01.
Analysis
Based on the evidence presented to the jury, a rational jury could have convicted based
on the evidence presented. There was testimony of Appellant’s odd behavior from both the store
clerk and the officer who made the stop. There was evidence of the results of the standardized
field sobriety tests, which indicated intoxication. The jury was able to watch a dashcam video of
the incident and observe Appellant as he appeared on that evening. After viewing all of this
evidence, the jury came to the conclusion that Appellant was guilty of driving while intoxicated
beyond a reasonable doubt. The jury was allowed to accept or reject some or all of the testimony
given by both of state’s witnesses. Instead, they chose to resolve the case in favor of the
prosecution. The court should not overturn the conviction because it is not irrational for a jury to
find beyond a reasonable doubt that Appellant was guilty of driving while intoxicated based on
the evidence before them, as is the standard put forth by the Jackson court.
6
CONCLUSION AND PRAYER
It is for the reasons contained herein, that the State would respectfully pray that this Court
of Appeals for the Sixth District affirm the conviction for driving while intoxicated.
Respectfully submitted,
JOEL D. LITTLEFIELD
Hunt County Attorney
P.O. Box 1097
Greenville, TX 75403-1097
(903) 408-4112 - telephone
(903) 408-4297 - fax
By:/s/Joseph T. O’Neill_______
Joseph T. O’Neill
Assistant County Attorney
State Bar No. 24076953
CERTIFICATE OF WORD COUNT
I certify that this document brief/petition was prepared with Microsoft Word 2012, and that,
according to that program’s word-count function, the sections covered by TRAP 9.4(i)(1) contain
940 words.
Sincerely,
/S/_JOSEPH T O’NEILL__
JOSEPH T. O’NEILL
Assistant County Attorney of Hunt County
State Bar Number – 24076953
Hunt County Courthouse
P.O. Box 1097
Greenville, Texas 75403-324
(903) 408-4112
(903) 408-4297 Fax
7
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
forwarded to counsel for Appellant, Jessica Edwards, on this the 6th day of April, 2015 via email.
/s/Joseph T. O’Neill_______
Joseph T. O’Neill
Assistant County Attorney
8
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35 B.R. 485 (1983)
In re David W. ABRAMS, Debtor.
HOUSEHOLD FINANCE CORPORATION, Plaintiff,
v.
David W. ABRAMS, Defendant.
Bankruptcy No. 83-0638, Related Case: 83-00272.
United States Bankruptcy Court, N.D. Ohio, W.D.
October 27, 1983.
*486 Richard J. Szczepaniak, Toledo, Ohio, for plaintiff.
Jim Slagle, Marion, Ohio, for defendant.
MEMORANDUM OPINION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
This cause came before this Court upon the Motion to Dismiss the Complaint filed by the Defendant. The Complaint was filed by a creditor who objects to the Debtor's discharge. For the reasons set forth below the Motion to Dismiss is Denied.
FACTS
The Debtor filed his voluntary Chapter 7 Petition on February 15, 1983. The Order setting the date for the first meeting of creditors established July 7, 1983, as the last day for the filing of complaints objecting to discharge. On June 24, 1983, counsel for the Plaintiff sent a letter to the Debtor's counsel indicating that if their dispute could not be resolved by July 1, 1983, a Complaint would be filed. The Debtor's counsel returned the Plaintiff's counsel's letter on July 1, 1983, in which he indicated that the differences could not be settled. Counsel for the Plaintiff states that the letter was received on July 5, 1983, and that the Complaint was dictated the same day. The Complaint was not filed until July 8, 1983. The present Motion asks this Court to dismiss the Complaint on the grounds that it was not timely filed.
LAW
Bankruptcy Rule 906(b) states in pertinent part:
"When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion . . . upon application made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect . . . "
Bankruptcy Rule 404(c) states that:
"The court may for cause, on its own initiative or on application of any party in interest, extend the time for filing a complaint objecting to discharge."
These provisions indicate that the Court in its discretion is permitted to grant extensions of time to a party when a proper showing has been made. These provisions should be applied liberally so as to afford the parties the opportunity to have the issues decided on their merits, provided the rights of any party are not prejudiced. In re Murphy, 1 B.R. 736 (Bkrtcy.S.D.Cal. 1979), Recile v. Ward, 496 F.2d 675 (5th Cir.1974). The circumstances of each case must be examined on a case-by-case basis to determine the merits of the request for extension. In re Magouirk, 16 B.R. 883 (Bkrtcy.App. 9th Cir.1982).
*487 In the present case, the Plaintiff should have applied for an extension of time prior to filing its Complaint. However, enforcement of this otherwise technical error would not serve the expeditious handling of this case and would not change the outcome of the Motion once the error was corrected.
In In re Peterson, 15 B.R. 598 (Bkrtcy.N. D.Iowa 1981), the Court held that the Plaintiff's complaint, which was filed three days after the deadline, was not timely filed, and was dismissed. The Plaintiff had mailed the complaint to the Court on the Friday deadline, but it was not received and filed until the following Monday. The Court did not indicate why the Plaintiff had waited until the deadline was upon him to file the Complaint.
In In re Lowther, 33 B.R. 586 (Bkrtcy.N. D.Ohio W.D.1983), a case just recently decided by this Court, it was held that the failure to obtain service within the prescribed time was grounds upon which to dismiss the complaint. The primary basis for dismissal was that the Plaintiff made no showing as to why he had waited until the deadline to file the complaint, and did not request an extension until one month after the Defendant requested a dismissal.
In the present case the record indicates that the parties were aware of the dispute prior to the deadline for filing, and were apparently attempting to resolve the matter without litigation. Although it remains unclear as to why the Plaintiff waited until the deadline to pursue a settlement, it does appear as though it made an earnest effort to avoid litigation, and that it attempted to file the Complaint on time once the effort to settle became futile. It does appear that the Debtor was advised as to the potential for litigation prior to the expiration of the deadline. In the light of that knowledge, a one day delinquency should not deprive him of his right to a determination as to which debts will and will not be discharged. Therefore, the Court concludes that the Plaintiff should be allowed to pursue the merits of its Complaint.
In reaching these conclusions this Court has considered all of the evidence and arguments of counsel, whether or not they are specifically referred to in this Opinion.
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lN THE SUPREME COURT OF PENNSYLVANlA
EASTERN D|STR|CT
CO|\/||\/|ONWEALTH OF PENNSYLVAN|A, 1 No. 111 EAL 2014
Respondent :
: Petition for A||owahce of Appea| from the
: Order of the Superior Court
JA|\/|ES BLAKN EY,
Petitioner
ORDER
PER CUR|AM
AND NOW, this 17th day of September, 2014, the Petition for A||owahce of
Appea| is DEN|ED.
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184 S.E.2d 611 (1971)
STATE of West Virginia ex rel. David S. BOWEN, Individually and doing business as Bowen Pharmacy
v.
Edwin F. FLOWERS, Commissioner, Department of Welfare for the State of West Virginia.
No. 13122.
Supreme Court of Appeals of West Virginia.
Submitted September 29, 1971.
Decided November 9, 1971.
*612 Leo Catsonis, Charleston, for relator.
Chauncey H. Browning, Jr., Atty. Gen., James G. Anderson, III, Phillip D. Gaujot, Asst. Attys. Gen., Charleston, for respondent.
BERRY, Judge:
This mandamus proceeding was instituted under the original jurisdiction of this Court by the petitioner, David S. Bowen, doing business as Bowen Pharmacy in Madison, West Virginia, against Edwin S. Flowers, the Commissioner of the Department of Welfare for the State of West Virginia, to compel the respondent to hold a hearing so that the petitioner could defend himself against certain unspecified "irregularities" which resulted in the petitioner's suspension on June 28, 1971, from further participation in the medical pharmaceutical programs administered by the Department of Welfare. A rule was issued by this Court on September 13, 1971, returnable September 28, 1971, directing the respondent to show cause why the writ should not be awarded as prayed for by the petitioner. The respondent filed an answer to the petition which was demurred to by the petitioner and the case was submitted for decision on arguments and briefs of the parties.
The petitioner is a registered and licensed pharmacist who commenced business on December 1, 1969, at Bowen Pharmacy in Madison, West Virginia. Prior to the opening of his own store, the petitioner *613 had been employed at a drug store in Madison and had dealt with the Department of Welfare in the dispensing of drugs and medications to welfare recipients under various aid programs administered by the Department of Welfare. After commencing his own business, petitioner qualified as a participating vendor-pharmacy with the Department and began furnishing medical prescription service to recipients of the various welfare programs. The petitioner received periodic payments from the Welfare Department, the amount depending on the invoices that the department received from the petitioner.
On March 26, 1971, the respondent requested the Purchasing Practice Procedures Commission to investigate Bowen Pharmacy. On June 28, 1971, the respondent suspended petitioner from participation in the programs administered by the Welfare Department because of alleged irregularities in petitioner's procedures. At the time of the suspension, Bowen alleged that the Department owed him approximately $36,000 for unpaid invoices which he had submitted. The respondent replied that the Department had invoices and checks made to petitioner, which were being held, that amounted to approximately $29,000, but denied the Department owed petitioner this amount.
On July 9, 1971, petitioner asked the respondent, in writing, for a hearing so that he could defend himself against the "charges". Petitioner states that he never received a reply to this request. The respondent claims that petitioner was told that the audit and investigation were not complete and that the matter was still under investigation.
The petitioner alleges that his reputation and business have been damaged as a result of this suspension and he asks that a writ of mandamus be awarded requiring respondent to afford him notice and hearing on the suspension or to reinstate him and pay to him the amounts due and owing him for goods and services rendered.
The petitioner claims his rights to due process have been denied as a result of the respondent's refusal to give him a hearing. The respondent replies that he is not required to give a hearing in these circumstances, as the rules and regulations do not provide for such hearing. Furthermore, the respondent contends that summary suspension is proper when an overriding public interest is involved.
There is no question that the petitioner is entitled to a hearing and be given the opportunity to defend himself under the due process clause of the federal and state constitutions. Article XIV, Section 1, Federal Constitution and Article III, Section 10, State Constitution; Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L. Ed.2d 287; Simpson v. Stanton, 119 W.Va. 235, 193 S.E. 64; In Re Downs, 82 N.M. 319, 481 P.2d 107. The opportunity to be heard is a fundamental requirement of the due process clause. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62. However, where there is an overriding public interest involved the hearing may be postponed for a reasonable period of time in order to allow an investigation to be conducted. Boddie v. Connecticut, 401 U. S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113.
The petitioner relies on the case of Goldberg v. Kelly, supra, in which it was held that a welfare recipient was entitled to a hearing before his welfare benefits could be terminated. It should be noted, however, that the court further stated that in some instances government benefits may be administratively terminated without affording the recipient an evidentiary hearing before the suspension or termination of benefits.
The petitioner strongly relies on the case of State ex rel. Bronaugh v. City of Parkersburg, 148 W.Va. 568, 136 S.E.2d 783, and asserts that it is indistinguishable from the case at bar. In that case the petitioner's privileges as a staff member of a hospital were summarily suspended for a period *614 of three months, at the expiration of which his application for reinstatement was denied without giving any reason or affording him a hearing, and it was held that mandamus would lie to compel the hospital to give the petitioner a hearing with respect to his application.
It has been repeatedly held that where a public interest is involved it outweighs an infringement of a private interest and a temporary suspension may be warranted for a reasonable period of time pending an investigation. R. A. Holman & Co. v. Securities and Exchange Commission, 112 U. S.App.D.C. 43, 299 F.2d 127, cert. denied 370 U.S. 911, 82 S.Ct. 1257, 8 L.Ed.2d 404; Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 70 S.Ct. 870, 94 L.Ed. 1088; Gonzalez v. Freeman, 118 U.S.App.D.C 180, 334 F.2d 570. It has also been held that the Fourteenth Amendment to the Federal Constitution does not impair the police power of the state. City of Huntington v. State Water Commission, 137 W.Va. 786, 73 S.E.2d 833.
It clearly appears from the authorities that if the respondent had reason to believe irregularities were taking place he would be justified in temporarily suspending the petitioner's participation in the medical pharmaceutical programs administered by the respondent without first affording him a hearing, because the public welfare is involved in the dispensing of drugs in this program. However, the suspension cannot be for an indefinite period of time. The investigation in such case must be promptly and properly conducted and the hearing must be held within a reasonable period of time after the suspension. Gonzalez v. Freeman, supra. The length of temporary suspension depends upon the needs and circumstances of the individual case. See Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 61 S.Ct. 524, 85 L.Ed. 624, and Gonzalez v. Freeman, supra.
The petitioner has no right to obtain a contract to dispense drugs for the state under the program involved. However, where this contract or privilege is granted, the state cannot act arbitrarily, either substantively or procedurally, against the person granted the contract. Gonzalez v. Freeman, supra. The investigation in the instant case apparently has been conducted for a period of about seven months and the suspension has been in effect for about four months and the matter has not been referred to law enforcement officials in connection with suspected fraudulent practices. The petitioner's place of business is located in Madison, Boone County, West Virginia, which is not a thickly populated area, and it would appear, under the circumstances of this case, that a reasonable period of time has elapsed in which to conduct a proper investigation. The petitioner has demanded a hearing and has not been granted one by the respondent, which would appear, under the facts and circumstances of this case, to be arbitrary or capricious on the part of the respondent, and in such cases mandamus will lie to control the action of the administrative officer. Beverly Grill, Inc. v. Crow, 133 W.Va. 214, 57 S.E.2d 244. This principle is clearly stated in the syllabus of the Beverly Grill, Inc. v. Crow, supra, case, wherein it is stated: "Mandamus lies to control the action of an administrative officer in the exercise of his discretion when such action is arbitrary or capricious."
It has also been held that due process of law extends to the actions of administrative officers as well as the judicial branch of the government. This principle is stated in point 2, syllabus, of the case of State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641, as follows: "Due process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments."
For the reasons stated herein, the writ of mandamus prayed for will be granted directing the respondent to conduct and hold a proper hearing to determine whether *615 or not the petitioner's privileges under the program involved should be suspended and to allow the petitioner an opportunity to be heard and present his defense. It is further directed that such hearing be conducted within a period of thirty days from the date of the decision of this Court granting the writ which period this Court has determined is a reasonable time in the case at bar in which to complete any investigation in connection with the suspension of the petitioner's privileges.
Writ granted.
CARRIGAN, Judge (dissenting):
I respectfully dissent from the majority opinion for the following reasons:
I do not believe that petitioner had any legal right to do business with the State of West Virginia, and specifically with the Department of Welfare. The department's medical service program was enacted and placed in operation for the benefit of welfare recipients and not for the benefit of the vendors of pharmaceutical services.
As Mr. Justice Black stated in Perkins v. Lukens Steel Co., 310 U.S. 113, 127-128, 60 S.Ct. 869, 876-877, 84 L.Ed. 1108 (1940):
Like private individuals and businesses, the Government enjoys the unrestricted power to produce its own supplies, to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases. Acting through its agents as it must of necessity, the Government may for the purpose of keeping its own house in order lay down guide posts by which its agents are to proceed in the procurement of supplies, and which create duties to the Government alone. * * * [The Public Contracts] Act does not depart from but instead embodies the traditional principle of leaving purchases necessary to the operation of our Government to administration by the executive branch of Government, with adequate range of discretion free from vexatious and dilatory restraints at the suits of prospective or potential sellers. It was not intended to be a bestowal of litigable rights upon those desirous of selling to the Government, it is a self-imposed restraint for violation of which the Governmentbut not private litigantscan complaint. * * * Courts have never reviewed or supervised the administration of such an executive responsibility even where executive duties "require an interpretation of the law." Judicial restraint of those who administer the Government's purchasing would constitute a break with settled judicial practice and a departure into fields hitherto wisely and happily apportioned by the genius of our policy to the administration of another branch of Government. (Emphasis added.)
Even in Gonzalez v. Freeman, 118 U.S. App.D.C. 180, 334 F.2d 570, 574 (1964), the court recognized that "It is equally correct, broadly speaking, to say that no citizen has a `right,' in the sense of a legal right, to do business with the government."
Unfortunately, in the Gonzalez case, the court having recognized the lack of such "legal right," then illogically proceeded to make an exception on the basis that since the government had entered into a contract, it would result in a severe economic loss to Gonzalez not to grant the enforcement of the right, which the court had stated did not exist; and apparently further qualifying the exception's applicability on whether the economic loss would be great or small. Such reasoning is certainly not affording "equal protection" to all.
Even accepting the Gonzalez case as correctly stating the law, as the majority did, it is distinguishable in that in Gonzalez the "debarment," i.e., the suspension, was made permanent without a hearing, while in the case before us petitioner was only suspended pending investigation.
Pursuant to Code, 9-4-1, as amended, respondent promulgated various rules and regulations, including regulation 520.1 dealing *616 with "Order of Suspension" and regulation 520.2 "Causes for Suspension." It therefore appears that respondent was authorized to suspend petitioner's participation in this program pending investigation.
The demands of due process do not require a hearing, at the initial stage or at any particular point or at more than one point in an administrative proceeding so long as the requisite hearing is held before the final order becomes effective. Opp Cotton Mills, Inc. v. Administrator, 312 U.S. 126, 152-153, 61 S.Ct. 524, 536, 85 L.Ed. 624 (1941).
The record shows that petitioner participated in the medical service program from December 16, 1969 to June 28, 1971, and that during this eighteen month period he sold between $100,000 and $108,000 in drugs to welfare recipients. During the period petitioner had participated in this program, he had been paid all but approximately $36,000, which he claims to be due. An investigation of these sales had been in process for about seven months, although the suspension of petitioner had only existed for four months prior to his application to this Court.
In view of the public interest involved in determining that proper drugs are dispensed and also in view of the expenditure of public funds in the amount of over $100,000, as well as the probable difficulty in verifying petitioner's invoices, I do not feel that respondent has been afforded ample time to complete its investigation. Assuming, for this purpose, that petitioner had a right to a hearing, even under Gonzalez and Opp Cotton Mills, it would not be necessary to hold such a hearing until it was determined that petitioner would be permanently barred from participating in the program.
The West Virginia decisions cited are, in my opinion, distinguishable from the present case in that under the facts of those cases the party was deprived from earning a living by being prevented from engaging in his business or calling, or was refused a hearing before final determination. In the case before us, petitioner has only been deprived of one customer and he can still continue his business.
For these reasons, I would refuse the writ of mandamus.
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Ignacio Martin Gonzalez v. The State of Texas
Appellate case number: 01-13-00901-CR
01-13-00902-CR
01-13-00903-CR
Trial court case number: 1377914
1377915
1377916
Trial court: 184th District Court of Harris County
On April 2, 2014, appellant, Ignacio Martin Gonzalez, filed his opening brief. The brief
identifies by name a child under the age of 17 who is the victim of a sexual assault. We
STRIKE appellant’s brief and order it redrawn with appropriate editing to conceal the identity of
the victim. Initials or redacting should be utilized to remove the child’s name from the brief. No
other changes are to be made to the appellant’s brief. Appellant’s redrawn brief is due within 7
days of the date of this order.
Upon filing of appellant’s redrawn brief, the reply brief filed by the State of Texas on
July 22, 2014 will be considered timely filed as of that date, and this appeal may be set for
submission at any time.
The State’s Motion to Seal Appellant’s Brief, and the State’s Final Motion for Extension
of Time Within Which to File Appellate brief, both filed on July 22, 2014, are DISMISSED AS
MOOT.
It is so ORDERED.
Judge’s signature: /s/ Harvey Brown
X Acting individually
Date: July 24, 2014
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Filed: March 20, 1996
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 95-2434
(CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1774-17AJ)
Darrell Wayland Gilliam, Jr., et al,
Petitioners - Appellees,
versus
James Lee Foster, etc., et al,
Respondents - Appellants.
O R D E R
The Court amends VOLUME 2 of its opinion filed January 29,
1996, as follows:
On page 45, second full paragraph, line 6 -- "See Id." is
corrected to read "See id."
On page 61, first paragraph, line 2 -- another closing paren-
thesis is inserted after the word "added."
On page 65, first paragraph, line 1 after indented quotation
-- the cross-reference is corrected to read "Ante at 7-8, 27-28,
35."
- 2 -
On page 66, footnote 4, lines 5 and 28 -- the cross-references
are corrected to read "ante at 26-27, 33" and "ante at 30-31, 35,"
respectively.
On page 67, first line after indented quotation -- the cross-
reference is corrected to read "Ante at 10 & n.6, 35."
On page 68, first full paragraph, line 5 -- the cross-
reference is corrected to read "ante at 34 n.25."
On page 68, first full paragraph, line 15 -- the period after
the word "positions" is moved; it will now be directly after the
word "positions" rather than between the closing quotation marks.
On page 69, first full paragraph, lines 1 and 3 -- the cross-
references are corrected to read "ante at 32-34" and "ante at 34
n.25," respectively.
On page 69, second full paragraph, line 3 -- the cross-
reference is corrected to read "ante at 24-28, 24 n.19."
On page 70, first paragraph, line 6 -- the comma after the
word "photographs" is deleted.
On page 77, first full paragraph, lines 7 and 9 -- the cross-
references are corrected to read "Ante at 2, 8" and "ante at 21,
24, 28," respectively.
- 3 -
On page 77, second full paragraph, lines 8-9 and 11 -- the
cross-references are corrected to read "ante at 12, 13, 16, 22,
23, 23 n.18" and "ante at 2, 13-14, 22-28, 29-30, 32, 35-36,"
respectively.
On page 78, continuation of footnote 9, line 3 -- the cross-
reference is corrected to read "Ante at 13-14, 22-23, 35-36."
On page 78, footnote 10, line 5 -- the cross-reference is
corrected to read "ante at 22-23, 28."
On page 79, first paragraph, lines 19 and 23 -- the cross-
references are corrected to read "ante at 33-34, 33 n.19, 35" and
"infra at 83 & n.14," respectively.
For the Court - By Direction
/s/ Bert M. Montague
Clerk
Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARRELL WAYLAND GILLIAM, JR.;
PAMELA OWINGS; JAMES MATTHEW
SWAIN,
Petitioners-Appellees,
v.
JAMES LEE FOSTER, Sheriff of No. 95-2434
Newberry County; CHARLES M.
CONDON, Attorney General for the
State of South Carolina; JAMES W.
JOHNSON, JR., Circuit Court Judge of
South Carolina,
Respondents-Appellants.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1744-17AJ)
Argued: September 26, 1995
Decided: January 29, 1996
Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINSON, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the majority
opinion in which Chief Judge Ervin and Judges Hall, Murnaghan,
Hamilton, Williams, Michael, and Motz joined; Judge Wilkinson
wrote a dissenting opinion in which Judges Russell, Widener, Nie-
meyer, and Luttig joined; Judge Niemeyer wrote a dissenting opinion
in which Judge Widener joined; and Judge Luttig wrote a dissenting
opinion in which Judges Russell, Widener, Wilkinson, and Niemeyer
joined.
_________________________________________________________________
COUNSEL
ARGUED: Donald John Zelenka, Assistant Deputy Attorney Gen-
eral, Columbia, South Carolina, for Appellants. Joy Scherffius Good-
win, LEVY & GOODWIN, Columbia, South Carolina, for Appellees.
ON BRIEF: J. Christopher Mills, FAIREY, PARISE & MILLS,
Columbia, South Carolina, for Appellee Gilliam; Samuel M. Price,
Jr., Newberry, South Carolina, for Appellee Owings.
_________________________________________________________________
OPINION
WILKINS, Circuit Judge:
Petitioners Darrell Wayland Gilliam, Jr., Pamela Owings, and
James Matthew Swain brought this action pursuant to 28 U.S.C.A.
§ 2254 (West 1994). They maintain that because a state trial judge
granted a mistrial over their objection and in the absence of manifest
necessity during their first trial, subjecting them to a second criminal
prosecution would violate their rights under the Double Jeopardy
Clause of the United States Constitution.
The principal issue presented is whether the state trial judge exer-
cised sound discretion in granting the prosecution's motion for a mis-
trial because the jury viewed certain photographs prior to their formal
admission into evidence. These photographs had been authenticated
properly, were relevant, were material, and were otherwise unobjec-
tionable. Further, the witness who had authenticated the photographs
2
was available to retake the witness stand to permit their formal intro-
duction.
The district court granted the writ of habeas corpus.1 The State2
appeals, claiming that the second prosecution would not violate Peti-
tioners' double jeopardy rights, and that in any event the district court
should have abstained from granting habeas corpus relief under
Younger v. Harris, 401 U.S. 37 (1971). For the reasons set forth more
fully below, the judgment of the district court is affirmed.
I. FACTS
Although the facts underlying this appeal have been fully set forth
in the decision of the district court, we include them here in some
detail in order to facilitate a better understanding of our decision.
A. Background
The incidents giving rise to the criminal charges against Petitioners
began on the afternoon of January 5, 1993, when Hope Icard physi-
cally attacked Christie Gilliam, Petitioner Gilliam's sister. A short
time later that afternoon, this altercation led to a confrontation
between family members of the two women at the residence of
Icard's sister and brother-in-law, the Silvers. Petitioners arrived out-
side the Silvers' mobile home in Petitioner Gilliam's truck. Although
the subsequent events are subject to some dispute, it is uncontested
_________________________________________________________________
1 Although the district court ordered that the writ issue, by separate
order dated July 24, 1995, it refused to permit the release pending appeal
of Gilliam--who, although initially released on bond, was later taken
into physical custody for a violation of that bond--or the removal of the
restrictions placed on Swain and Owings--both of whom had been
released on bond pending trial in state court. See Fed. R. App. P. 23(c)
(authorizing district court to continue custody in its discretion pending
appeal). Petitioners have not sought review of this order of the district
court.
2 We refer to Respondents--James Lee Foster, Sheriff of Newberry
County, South Carolina; Charles M. Condon, Attorney General for the
State of South Carolina; and James W. Johnson, Jr., Circuit Court Judge
of South Carolina--as "the State."
3
that gunshots were ultimately exchanged. From inside the mobile
home, Ernest Silvers and his stepson discharged firearms. Petitioner
Gilliam, who was outside the mobile home, was injured by this gun-
fire in the lower leg. Petitioner Swain was charged with murdering
Ernest Silvers by shooting him in the chest with a rifle as Silvers
stood in the front doorway of the mobile home. Petitioners Gilliam
and Owings, who were unarmed, were charged with aiding and abet-
ting Swain. In addition, Petitioners were charged with lynching in
connection with Silvers' death;3 Petitioner Swain was charged with
assault with the intent to kill; and Petitioner Gilliam was charged with
indecent exposure. This latter charge against Gilliam alleged that he
had exposed himself to the occupants of the Silvers' mobile home
while taunting them prior to the exchange of gunfire.
B. Initial State Trial Proceedings
Petitioners' trial began in state court in late 1994. On the third day
of trial, the prosecution presented the testimony of Officer Counts, a
former special agent with the South Carolina Law Enforcement Divi-
sion (SLED). Officer Counts had been present at the scene soon after
the altercation and could testify about the investigation and identify
photographs of the scene.
On cross-examination, defense counsel asked Officer Counts
whether he had found blood outside the Silvers' mobile home. Officer
Counts stated that he would like to look at the photographs of the
scene to refresh his memory. The photographs to which Officer
Counts referred were ones that had been taken either by Officer
Counts or in his presence by another SLED agent; copies of these
photographs had been provided to the defense prior to trial. Defense
counsel showed a group of seven photographs (Set 1) to one of the
prosecuting attorneys and then handed them to Officer Counts. The
prosecuting attorney--believing that the photographs were being
offered into evidence--said, "Without objection." The trial judge then
_________________________________________________________________
3 South Carolina law defines lynching as an act of violence inflicted by
a mob--an "assemblage of two or more persons . . . for the premeditated
purpose and with the premeditated intent of committing an act of vio-
lence upon the person of another"--that results in death. S.C. Code Ann.
§§ 16-3-210, 16-3-230 (Law. Co-op. 1985).
4
inquired whether defense counsel was offering the photographs into
evidence at that time, and defense counsel responded that he was
using them only to refresh the officer's recollection. The prosecuting
attorney noted that he had spoken prematurely.4
After Officer Counts reviewed the photographs in Set 1, and
defense counsel established that Officer Counts was familiar with the
photographs because he was there when they were taken or actually
had taken them, defense counsel inquired:
Q. Looking at those photographs were you able to refresh
your recollection as to whether or not any blood was found
on the scene?
A. Yes, sir. There was a red substance. I am not a serolo-
gist, but there was a red substance that appeared to be blood
found at the scene.
Q. And when blood is found on the scene, how[is it] typi-
cally marked in terms of when you find blood outside a
trailer and it indicates blood, is it marked as part of your
_________________________________________________________________
4 The pertinent colloquy when defense counsel began to show Officer
Counts the photographs of the scene outside the mobile home to refresh
his recollection was:
PROSECUTING ATTORNEY: Do you mind if I see those?
(Photographs were handed to the prosecuting attorney.)
PROSECUTING ATTORNEY: Just one minute.
(Pause)
PROSECUTING ATTORNEY: Without objection.
THE COURT: Were those being offered at this time?
DEFENSE ATTORNEY: No, sir. We were just using these to
refresh Mr. Counts' recollection.
PROSECUTING ATTORNEY: I'm sorry. That was prema-
ture.
J.A. 60-61.
5
investigation? Do you mark the ground in some way to indi-
cate that you found something?
A. Yes, sir. We would circle the area, surround it with
crime scene tape, we would [put] a cone out or anything to
keep somebody from walking and disturbing that.
Q. Based on those photographs that you had used to
refresh your recollection, do you see such a photograph that
would indicate that sighting of blood that was marked?
A. Yes, sir. I could.
Q. And if you could, hand us that. If you could, flip
through and find the photograph or photographs that would
indicate that.
A. Basically all of these [are] the same area where the
blood was found. Just overall views of it.
Q. I hand you what has been marked as Defendant's
exhibits 16, 8, 13, 12 and 14 [Photo Set 2]. Would it be your
testimony that those [photographs] mark the finding of
blood but just from different angles?
A. Yes, sir. I can't tell you that that substance is in fact
blood. I am not a serologist, but I can tell you that these
were photographs that myself or Agent Gainey of SLED
took, and the substance resembles blood, and these five pho-
tographs depict the same area adjacent to the trailer where
we found [the] substance that resembled blood.
J.A. 61-62 (emphasis added). At this point in the examination,
defense counsel asked Officer Counts to approach a diagram of the
scene prepared by the prosecution and, using the photographs, to
mark on an overlay the location where what appeared to be blood was
found. Officer Counts then marked the three places where red spots
were observed, testifying, "This is basically where the blood was
found, in this vicinity here to the left of the trailer, almost to the road-
6
way." J.A. 63. In response to defense counsel's follow-up questions
concerning the distance from the area where blood was found to the
mobile home and the roadway, Officer Counts referred to the notes
made by the serologist on the scene and testified that "there were
three areas of blood in this location," that the distance between "these
portions of blood here" was seven feet, and that the corner of the
mobile home was 70 feet from the road with the blood depicted in the
photographs being "right off the roadway in this area." J.A. 64.
During the remaining cross-examination of Officer Counts, two of
the three groups of SLED photographs of the scene (Sets 2 and 3)
were introduced into evidence by the defense without objection. The
photographs referred to as Set 2 included Exhibits 8, 12, 13, 14, and
16. The photographs referred to as Set 1--Exhibits 9, 10, 11, 15, 17,
18, and 19--were not offered into evidence.5
A description of these photographs and a comparison of the photo-
graphs included in Set 1 vis-a-vis those in Set 2 is instructive. The
photographs in Set 2, with the exception of Exhibit 16, are identical
in every material aspect and show the area outside the Silvers' mobile
home. Each of these photographs was taken from near Highway 32,
the public roadway in front of the Silvers' mobile home, from the left-
hand side of the mobile home and looking down the driveway toward
it. The mobile home and the adjacent yard and driveway are shown
in the background of these photographs, and all of them show the
same three pieces of yellow tape in the foreground--the closest two
_________________________________________________________________
5 When defense counsel offered the Set 2 photographs into evidence,
the following colloquy occurred:
DEFENSE ATTORNEY: Mr. Counts, you have previously
identified these photographs?
OFFICER COUNTS: Yes, ma'am.
DEFENSE ATTORNEY: Your Honor, I would move to intro-
duce them into evidence. I believe they are numbers 16, 8, 13,
12 and 14.
PROSECUTING ATTORNEY: Without objection.
THE COURT: Without objection.
J.A. 77.
7
pieces are circular in shape, one to the left and one to the right, and
one strand of yellow tape is behind the two circular pieces and a few
feet closer to the mobile home. The remaining photograph in Set 2,
Exhibit 16, shows the same location, but reveals only the circular
piece of tape to the right and one-half of the circular piece to the left.
As noted above, these five photographs were admitted into evidence
without objection from the prosecution and with no specific testimony
by Officer Counts concerning the location depicted or the relevance
of the scene they depicted.
Of the seven photographs in Set 1, four of them, Exhibits 10, 17,
18, and 19, are close-ups of the three pieces of yellow tape: Exhibit
10 shows a close-up of the circular piece of tape on the left of the
photographs in Set 2; Exhibit 17 is a close-up of the two circular
pieces of tape shown in the photographs in Set 2; Exhibit 18 is a
close-up of the strand of tape behind the two circles of yellow tape
in the photographs in Set 2; and Exhibit 19 is a photograph of the cir-
cle of tape on the right in the photographs in Set 2. These photographs
show red spots within or near the areas marked with the yellow tape
more clearly than the photographs in Set 2. Exhibit 15 is virtually
identical to those in Set 2, taken from the same camera angle and
depicting all three pieces of yellow tape. The two remaining photo-
graphs in Set 1, Exhibits 9 and 11, reveal the same three pieces of
tape, but were taken from approximately the opposite location from
those in Set 2; in other words, they are taken from near the mobile
home facing up the driveway and toward Highway 32. These latter
two photographs depict more clearly the same tire tracks shown in the
photographs in Set 2.
Following Officer Counts' testimony, the state trial judge recessed
for lunch with instructions that all of the photographs and other evi-
dence that had been published remain in the courtroom. During the
lunch break, the court reporter discovered that the photographs in
Set 1--which had not been admitted into evidence--had been placed
on the jury rail in a stack along with the photographs in Sets 2 and
3--which had been properly introduced into evidence. Concerned that
the jury may have viewed evidence that had not been properly admit-
ted, the trial judge conducted a bench conference during which he
brought this to the attention of counsel and then provided the parties
with an opportunity to evaluate the situation.
8
When the trial proceedings resumed, the prosecution moved for a
mistrial, blaming defense counsel for the error and stressing that the
defense had "placed something that is easily accessible, has been
accessible by the jury, which is not in evidence . .. and that is
improper." J.A. 87. The defense strenuously objected. It disagreed
with the prosecuting attorney's suggestion that defense counsel had
been responsible for placing the unadmitted photographs in Set 1
where the jury could view them. Defense counsel argued that a mis-
trial was completely unnecessary and offered to"recall [Officer
Counts] and move [the photographs] into evidence," explaining that
Officer Counts had already identified the photographs and had testi-
fied about them. J.A. 88-89. Further, defense counsel emphasized that
even if the jury actually saw the photographs, there was no prejudice
to the prosecution because all of the Set 1 photographs depicted the
same scene as other photographs that had already been admitted into
evidence.
The state trial judge called the foreman of the jury into the court-
room and asked him whether the jury had looked at all of the photo-
graphs that had been in the stack on the jury rail before lunch.
Although the foreman was not given an opportunity to examine each
photograph individually, he responded that as far as he knew all the
photographs had been viewed by the jury. The defense requested that
the trial judge ask additional questions to ascertain whether the jury
had in fact seen the unadmitted photographs, noting that it was
entirely possible that the photographs had been placed in the stack on
the railing during the lunch break since defense counsel recalled that
the photographs had been left in the witness box when the court
recessed. The state trial judge, however, refused to do so and declared
a mistrial over defense counsel's objection. The state trial judge stated
that he had no choice but to grant a mistrial because the photographs
had not been admitted, were not identified, had not been testified to,
and had been circulated to the jury. He further indicated that he had
no way of knowing whether the photographs would later be offered
and admitted into evidence.
Defense counsel requested that the state trial judge ask the court
reporter to read back Officer Counts' testimony because he, in fact,
had identified the photographs and testified using them. Again, how-
ever, the state trial judge summarily declined to do so, noting that if
9
he was incorrect the record would bear that out. At no point did the
state trial judge indicate that double jeopardy concerns were impli-
cated by the grant of a mistrial. And, neither the prosecution nor the
state trial judge indicated that the photographs were in any way preju-
dicial to the prosecution or the defense.6
C. Post-trial State Proceedings
In March 1995, prior to the second trial, Petitioners filed a motion
before the state trial judge requesting dismissal of the charges against
them on double jeopardy grounds, arguing that manifest necessity had
not existed to justify the grant of the mistrial over their objections.
The state trial judge denied the request. Although the state trial judge
did not make a finding that the jury's having seen the photographs
was prejudicial and did not offer any possible explanation of how the
jury's viewing the unobjectionable photographs actually might have
improperly biased or influenced the jury for or against either the pros-
ecution or the defense, the state trial judge did refer to the incident
at one point as a "prejudicial occurrence," J.A. 38, and opine that he
was "concerned about the origin of the prejudice," J.A. 39. He
explained only that the mistrial had been necessary because he could
not have foreseen whether the photographs would have been offered
into evidence and, if so, whether they would have been admitted. The
state trial judge did not address the fact that the prosecuting attorney
had offered no objection to the admission of the photographs when he
believed that they were being offered into evidence or that the defense
had offered to recall Officer Counts and formally move their introduc-
tion.
Petitioners appealed this ruling to the South Carolina Supreme
Court. That court, however, dismissed the appeal as interlocutory
under South Carolina law.
_________________________________________________________________
6 The state trial judge did not make a finding of manifest necessity or
a finding of prejudice. Indeed, he did not use the word "prejudice" during
this proceeding. Further, the state trial judge gave no hint of what preju-
dice might possibly exist such that a reviewing court could conclude that
prejudice resulted from the jury's viewing the photographs in Set 1.
10
D. Federal Habeas Proceedings--District Court
Petitioners then filed this action in district court pursuant to 28
U.S.C.A. § 2254 (West 1994),7 claiming that the upcoming second
trial violated their right not to be twice put in jeopardy for the same
offense because no manifest necessity existed to support the grant of
the mistrial in the first trial. The State responded that the mistrial was
necessary to "alleviate prejudice" caused by the jury's consideration
of unadmitted evidence; however, the State did not identify or in any
way suggest what possible prejudice may have resulted. On June 29,
1995, Petitioners sought either a temporary injunction of the sched-
uled state criminal trial or expedited consideration of their habeas
petition.
On July 7, 1995, a United States Magistrate Judge issued a report
and recommendation concluding that a temporary stay of the sched-
uled state court proceedings was appropriate because: Petitioners
would suffer irreparable harm if the temporary relief was not granted;
the balance of harms tipped decidedly in favor of Petitioners; Petition-
ers had demonstrated serious and substantial questions that were fair
ground for litigation on the merits of their double jeopardy claim; and
the public interest favored the grant of temporary injunctive relief.
On July 10, 1995, the district court conducted an expedited, non-
evidentiary hearing of the motion for a temporary restraining order
and adopted the majority of these recommended findings of the mag-
istrate judge. The district court, however, determined that Petitioners
had shown no likelihood of succeeding on their double jeopardy claim
and therefore were not entitled to injunctive relief. The court reasoned
that because questions of provocation and self-defense were being
_________________________________________________________________
7 There is no question concerning the propriety of a federal court con-
sidering the habeas petition. Petitioners are in custody, either in actual
custody or subject to bond restrictions, and have exhausted their state
remedies. See Justices of Boston Mun. Court v. Lydon, 466 U.S. 294,
300-03 (1984). A federal habeas court is the only forum in which Peti-
tioners may attempt to protect their double jeopardy right not to be tried
twice for the same offense. See id. And, it should be noted that there is
no suggestion that Petitioners have not proceeded in as timely a manner
as possible in bringing this issue to a prompt resolution.
11
raised, the location of the parties when the gunshots were fired--i.e.,
whether on a public roadway or the Silvers' property--was relevant
and that several of the photographs in Set 1, being close-ups of the
ground showing what appeared to be blood, could be used to more
clearly document their locations. This conclusion was based only on
purely speculative statements of the State's attorney, not on any evi-
dence in the record. Significantly, although the district court con-
cluded that the photographs could be used to demonstrate more
clearly where the shooting had occurred, it did not find that the photo-
graphs were unduly prejudicial, as opposed to simply relevant.8
_________________________________________________________________
8 The district court also accepted an argument raised by the State for
the first time during oral argument on the motion. The State asserted that
defense counsel may have been attempting to place this evidence before
the jury improperly to allow them to make the last closing argument to
the jury. Under a South Carolina procedural rule, the defense may make
the last argument if it does not present evidence. The State argued that
although the defense had introduced 28 exhibits into evidence during the
prosecution's case in chief, some state court judges might nevertheless
have permitted the defense to have the last argument if it had not intro-
duced evidence in its own case.
This argument is baseless. First, it is well-settled law in South Carolina
that if the defense introduces any evidence, whether in its own case or
in the State's case, it loses the right to have the last argument. State v.
Gellis, 155 S.E. 849, 855 (S.C. 1930); State v. Battle, 403 S.E.2d 331,
333 (S.C. Ct. App. 1991). And, it is undisputed that the defense previ-
ously had offered into evidence a series of exhibits that had been admit-
ted without objection and therefore had already lost its right to make the
last argument before the incident with the unadmitted photographs
occurred. Second, and more fundamentally, the State's argument is logi-
cally flawed. If, as the State maintained, the defense had been motivated
by a desire to place this evidence before the jury without losing its right
to make the final argument, and, further, if some confusion among state
trial judges concerning the law may have permitted the defense to retain
the right to make the last argument even though evidence was introduced
by the defense during the prosecution's case, obviously the defense
would have simply moved the introduction of the photographs in Set 1
during Officer Counts' testimony. Alternatively, if there was no dispute
concerning whether the introduction of other evidence by the defense
during the prosecution's case waived the right to final argument, then
defense counsel would have already known it was waived. In either cir-
cumstance, there would have been no point in attempting to place the
evidence before the jury without having it admitted first. The State has
now abandoned this position.
12
E. Federal Habeas Proceedings--Circuit Court--Stay Request
After the district court denied their request for a temporary stay of
the scheduled state criminal proceedings or expedited consideration of
their habeas petition, Petitioners submitted to a panel of this court a
request for emergency relief from the order of the district court. See
Fed. R. App. P. 8. The panel heard oral arguments on Saturday, July
15, 1995. Questions during argument demonstrated that the panel was
particularly concerned with whether the State had identified any prej-
udice to the prosecution or Petitioners resulting from the jury's having
viewed the photographs in Set 1 without their formal admission into
evidence. As the following colloquy reveals, the State's attorney con-
ceded that the photographs in Set 1 were relevant, were not unduly
prejudicial, and were, in fact, admissible:
THE COURT: All right. Is there any question in your
mind, Mr. Zelenka, as an experienced attorney that, had the
Defense said, "Your Honor, we move [the Set 1 photo-
graphs] into evidence," and the State had said, "No objec-
tion," that they would have been marked as an exhibit?
STATE'S ATTORNEY: At the time of that trial I do not
see any reason why they would not have been introduced as
an exhibit. That's right.
THE COURT: Today -- today, Mr. Zelenka, can you give
this Court any reason why these photographs shown as[Set
1] are not relevant evidence and properly admissible either
by the State or by the Defense?
STATE'S ATTORNEY: This evidence could have been
admitted at the time of that particular trial.
THE COURT: That's not my question. . . . Is there any
reason why these photographs in [Set 1] are not relevant
evidence and properly admissible either offered by the State
or by the Defense?
STATE'S ATTORNEY: No, sir.
13
THE COURT: All right, sir. . . . So, this is relevant evi-
dence. There's no reason it should not have been before the
jury, other than the fact [that] the Defendant didn't say, "We
move into evidence"?
STATE'S ATTORNEY: That's correct.
....
THE COURT: Was there any reason other than the tech-
nical reason [that the defense failed to move the photo-
graphs into evidence], that these photographs should not
have properly been shown to the jury, as [Set 2 and Set 3]
were during the course of the trial?
STATE'S ATTORNEY: In my analysis of these photo-
graphs, these are not the type of photographs that the state
court system would have excluded from evidence based
upon a prejudicial factor.
THE COURT: So you offer no reason why it would have
been improper for these photographs to have been admitted
into evidence and shown to the jury?
STATE'S ATTORNEY: No reason at all once Mr. Counts
authenticates the documentation.
Transcript of July 15, 1995 Arguments at 28-31 (emphasis added).
The State also conceded that there was no rule of law or procedure
that prevented Officer Counts from being recalled to the stand so that
the defense could move the admission of the photographs. In further
questioning from the panel, the State opined that the photographs in
Set 1 showed more clearly what appeared to be blood in or near the
areas marked with yellow tape. Following a conference at the conclu-
sion of the hearing, the panel, by a vote of two to one, denied the
requested relief.
On Monday, July 17, 1995, Petitioners sought en banc review of
the order denying temporary relief. And, on July 20, 1995, a majority
14
of the active circuit judges voted in favor of granting temporary relief
from the order of the district court. We remanded to the district court
with instructions to rule on the merits of the habeas petition as expedi-
tiously as possible. Gilliam v. Foster, 61 F.3d 1070 (4th Cir. 1995)
(en banc).
F. State Criminal Proceedings--Second Trial
While the poll of the en banc court was proceeding, Petitioners'
retrial began in state court on July 17. Prior to the second trial, the
state judge who presided over the first trial and who is a named
respondent in this litigation, sua sponte recused himself before the
retrial began. During the course of the retrial, the photographs in Set
1 were offered into evidence by the defense. The prosecuting attorney
objected to their admission on the ground that the photographs were
cumulative and confusing.9 The presiding state trial judge overruled
the objection and admitted the photographs into evidence. On Thurs-
day, July 20, upon learning that this court had stayed the state crimi-
nal proceedings, the state trial judge suspended the trial pending
further notice.
G. Federal Habeas--District Court on Remand
On July 21, immediately following our remand, the district court
conducted a lengthy and thorough evidentiary hearing. Subsequently,
it entered comprehensive findings of fact based upon the evidence and
testimony presented and held that the retrial of Petitioners was,
indeed, barred by the Double Jeopardy Clause.
_________________________________________________________________
9 In my opinion for the en banc court granting Petitioners' request for
a temporary stay of the state criminal proceedings, I noted that Petition-
ers had represented to us that during the second trial, the photographs
were admitted without objection by the State and that subsequently the
State objected to their admission. As the testimony before the district
court made clear, this was not correct: Although defense counsel recalled
that in a discussion with opposing counsel off the record, the State had
indicated that it would not have any objection to a number of photo-
graphs, including those that composed Set 1, the State did object to the
introduction of the photographs prior to their admission. In any event,
whether the State objected to the photographs during the second trial is
irrelevant.
15
The district court rejected the State's claim that manifest necessity
for the mistrial existed because the jury's viewing the Set 1 photo-
graphs was unduly prejudicial, finding as a factual matter that the
photographs in Set 1 had been "authenticated by Officer Counts, were
used by him to refresh his recollection as to whether there were blood
stains on the ground, and were actually relied upon by him in fashion-
ing a demonstrative exhibit showing the location of what appeared to
him to be blood stains, tire tracks, and other evidentiary items." The
court also found that because Officer Counts had already testified
concerning the relative locations of the objects depicted in the Set 1
photographs, the disputed photographs were of "no real significance
to either party" viewed in the context of the trial.
Further, the district court rejected the State's argument that the
photographs would likely cause juror confusion because the location
of the areas marked with yellow tape depicted in the photographs had
not been explained sufficiently by Officer Counts and because the
"red spots" that were more visible in the Set 1 photographs might lead
the jury to conclude that the photographs showed Gilliam's blood.
The court determined as a factual matter that during his testimony
Officer Counts adequately identified the location of the three areas
marked with yellow tape. In addition, the court concluded that the
photographs did not present an undue risk of juror confusion concern-
ing whether the "red spots" were blood because Officer Counts, the
State's witness, and the investigating officer, had already testified that
these areas were marked with yellow tape based on the investigators
having discovered what appeared to be blood there, and the fact that
a serologist had not tested the red spots would not have provided a
basis for exclusion of the photographs,10 nor was it necessary to lay
a proper foundation for introduction of the photographs.
Additionally, the district court held that even assuming the photo-
graphs in Set 1 were somehow prejudicial, manifest necessity did not
support the grant of the mistrial by the state trial judge because obvi-
_________________________________________________________________
10 One of the prosecuting attorneys testified before the district court that
so far as she knew no serological test had been conducted on the swabs
of blood taken from the scene. Prior to oral argument before the en banc
court, the parties informed us that, in fact, serological testing had been
performed and that the results indicated that the spots were human blood.
16
ous and adequate alternatives to the mistrial were available. For
example, allowing Officer Counts to be recalled to the witness stand
would have resolved any possible problem.
Finally, the district court concluded that the state trial judge acted
improvidently and precipitately in granting the mistrial. The district
court based this conclusion on the facts that the state trial judge had
failed to evince any concern for the possible double jeopardy ramifi-
cations of his actions, had failed to permit the parties an opportunity
to fully explain their positions, and had declined to permit further
inquiry into whether the photographs had been authenticated during
Officer Counts' testimony.
Accordingly, the district court granted the writ of habeas corpus.
By separate order, however, it declined to enlarge the Petitioners
pending appeal.11
From the order of the district court granting the writ of habeas cor-
pus, the State appeals.12 A majority of the members of the en banc
_________________________________________________________________
11 It appears that upon notification that the district court had granted the
writ of habeas corpus, the state trial judge released the jurors, but did not
dismiss them or grant a mistrial.
12 Following the decision of the district court granting the writ, the
State sought relief from the order of the district court before this court
in order to permit the resumption of Petitioners' criminal trial during the
pendency of this appeal. This relief was denied. Gilliam v. Foster, 63
F.3d 287 (4th Cir. 1995) (en banc). The State also requested that this
court prevent the enlargement of Petitioners; however, the district court
had already stayed Petitioners' enlargement pending appeal, and Peti-
tioners had not appealed from this ruling, so no relief from this court was
necessary to ensure that Petitioners remained subject to the same custo-
dial arrangements to which they had been subjected during the state
criminal proceedings. After this court ruled, the State moved Chief Jus-
tice Rehnquist, sitting as the Circuit Justice for the Fourth Circuit, to
grant temporary relief from the order of the district court pending appeal.
Chief Justice Rehnquist refused to permit the State to proceed with the
criminal prosecution pending appeal, but granted the State's application
for a stay of enlargement. Foster v. Gilliam, 116 S. Ct. 1 (Rehnquist, Cir-
cuit Justice 1995).
17
court voted to grant en banc hearing of the State's appeal on an expe-
dited basis.
II. DOUBLE JEOPARDY
The Double Jeopardy Clause of the Fifth Amendment, made appli-
cable to the states through the Fourteenth Amendment, provides that
no one shall "be subject for the same offence to be twice put in jeop-
ardy of life or limb." U.S. Const. amend. V; Benton v. Maryland, 395
U.S. 784, 794 (1969). Among the protections provided by this Clause
is the assurance that a criminal defendant will not be subjected to "re-
peated prosecutions for the same offense." Oregon v. Kennedy, 456
U.S. 667, 671 (1982). This protection encompasses a right to have a
particular tribunal decide guilt or innocence once jeopardy has
attached.13 Id. at 672-73.
The reasons why this "valued right" merits constitutional
protection are worthy of repetition. Even if the first trial is
not completed, a second prosecution may be grossly unfair.
It increases the financial and emotional burden on the
accused, prolongs the period in which he is stigmatized by
an unresolved accusation of wrongdoing, and may even
enhance the risk that an innocent defendant may be con-
victed. The danger of such unfairness to the defendant exists
whenever a trial is aborted before it is completed.
Arizona v. Washington, 434 U.S. 497, 503-04 (1978) (footnotes omit-
ted). For these reasons, a prosecutor generally is permitted only one
opportunity to compel a defendant to stand trial. Id. at 505.14
_________________________________________________________________
13 It is well settled that jeopardy attaches in a jury trial when the jury
is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 35 (1978).
14 Because the Supreme Court has made plain that the Double Jeopardy
Clause affords protection against retrial even when the first trial has not
been completed, we are not free to adopt the position advanced by one
of the dissenting members of this court that the Double Jeopardy Clause
furnishes protection only when the first trial has been completed or the
prosecution has acted in bad faith. See United States v. Schooner Peggy,
5 U.S. (1 Cranch) 103 (1801).
18
Nevertheless, if a criminal proceeding is terminated by mistrial
without a final resolution of guilt or innocence, a defendant may be
retried in certain circumstances.15 Id. When a defendant seeks or con-
sents to the grant of a mistrial, there is no bar to his later retrial.16
Kennedy, 456 U.S. at 672-73. But, when a defendant opposes the
grant of a mistrial, he may not be retried unless there was a manifest
necessity for the grant of the mistrial or the failure to grant the mis-
trial would have defeated the ends of justice. United States v. Dinitz,
424 U.S. 600, 606-07 (1976); Wade v. Hunter, 336 U.S. 684, 690
(1949). This proposition of law was first recognized in United States
v. Perez, 22 U.S. (9 Wheat.) 579, 580 (1824), where Mr. Justice Story
wrote:
We think, that in all cases of this nature, the law has
invested Courts of justice with the authority to discharge a
jury from giving any verdict, whenever, in their opinion,
taking all the circumstances into consideration, there is a
manifest necessity for the act, or the ends of public justice
would otherwise be defeated. They are to exercise a sound
discretion on the subject; and it is impossible to define all
the circumstances, which would render it proper to interfere.
To be sure, the power ought to be used with the greatest
caution, under urgent circumstances, and for very plain and
obvious causes; and, in capital cases especially, Courts
should be extremely careful how they interfere with any of
the chances of life, in favour of the prisoner. But, after all,
they have the right to order the discharge; and the security
which the public have for the faithful, sound, and conscien-
tious exercise of this discretion, rests, in this, as in other
cases, upon the responsibility of the Judges, under their
oaths of office.
_________________________________________________________________
15 Of course, if a criminal prosecution has "ended in an acquittal or con-
viction," the government is absolutely barred from prosecuting him fur-
ther for the same offense. See Arizona v. Washington, 434 U.S. at 505.
16 This proposition is subject to an exception when the defendant estab-
lishes that his request for the mistrial was motivated by prosecutorial or
judicial misconduct that was intended to provoke the defendant into
moving for a mistrial. Kennedy, 456 U.S. at 673-79.
19
Based on this explication in Perez, the Supreme Court has consis-
tently stressed the great deference to be accorded to the decision of
the trial judge to grant a mistrial. See, e.g. , Illinois v. Somerville, 410
U.S. 458, 461-66 (1973). A reviewing court must"accord the highest
degree of respect to the trial judge's evaluation of the likelihood" that
the circumstances giving rise to the mistrial would have affected the
impartiality of the deliberations of the jury. Arizona v. Washington,
434 U.S. at 511. Indeed, when some event creates the possibility that
the jury may have been biased, the decision of the trial judge who has
had the opportunity to observe the sequence of events in the context
of the trial is entitled to special respect.17 Id. at 512-14. The trial judge
need not make an explicit finding of manifest necessity or articulate
the factors that led to the exercise of his discretion, and his decision
is not subject to attack on this basis when the record adequately dis-
closes the basis for his ruling. Id. at 516-17.
The deference owed to the decision of the trial judge to grant a
mistrial, although great, is not unlimited. Id. at 514 ("Our conclusion
that a trial judge's decision to declare a mistrial based on his assess-
ment of the prejudicial impact of improper argument is entitled to
great deference does not, of course, end the inquiry."). The Supreme
Court has made absolutely clear that "[i]n order to ensure that [the
defendant's constitutionally protected interest in having a particular
empaneled jury decide his guilt] is adequately protected, reviewing
courts have an obligation to satisfy themselves that, in the words of
Mr. Justice Story, the trial judge exercised `sound discretion' in
declaring a mistrial." Id. at 514. If the grant of a mistrial by the trial
judge amounts to an irrational or irresponsible act, he must be found
to have abused his discretion in finding that manifest necessity for the
mistrial existed, for a trial judge "`must always temper the decision
whether or not to abort the trial by considering the importance to the
defendant of being able, once and for all, to conclude his confronta-
tion with society through the verdict of a tribunal he might believe to
_________________________________________________________________
17 This level of deference falls on a spectrum between the strictest
appellate scrutiny that applies when a trial judge grants a mistrial in order
to permit the prosecution an opportunity to garner more evidence against
the accused and the highest level of appellate deference that applies
when a trial judge dismisses a hopelessly deadlocked jury. Arizona v.
Washington, 434 U.S. at 507-10.
20
be favorably disposed to his fate.'" Id. (quoting United States v. Jorn,
400 U.S. 470, 486 (1971) (Harlan, J.) (plurality opinion)).
Although the Supreme Court has never explicitly articulated a test
for a reviewing court to apply in analyzing whether the exercise of
discretion by the trial judge in granting a mistrial was sound as
opposed to irrational or irresponsible, we are able to distill some fac-
tors that are relevant to this inquiry by looking to the considerations
that have framed that Court's analysis of this issue. First, a reviewing
court should look to whether a trial judge rationally could conclude
that the grant of the mistrial was compelled by manifest necessity or
whether the ends of public justice demanded that one be granted on
the peculiar facts presented. See Arizona v. Washington, 434 U.S. at
514-16 (noting that the trial judge had been presented with a situation
in which the jury had been exposed to inadmissible and highly preju-
dicial material, creating manifest necessity to support the mistrial);
Somerville, 410 U.S. at 468-71 (holding ends of public justice sup-
ported the grant of a mistrial in first proceeding when "defect was
found to exist in the indictment that was, as a matter of Illinois law,
not curable by amendment," rendering any conviction obtained sub-
ject to being "upset at will" on appeal or in collateral proceedings);
Downum v. United States, 372 U.S. 734, 735-38 (1963) (examining
facts to determine whether grant of mistrial supported by manifest
necessity when based on absence of prosecution witness); Wade, 336
U.S. at 691-92 (concluding that record was sufficient to show that
rapidly advancing army brought about tactical situation responsible
for the withdrawal of charges from first court-martial and thus was
supported by manifest necessity). In addition, a reviewing court may
find relevant whether the trial judge acted precipitately or whether the
trial judge expressed concern regarding the possible double jeopardy
consequences of an erroneous declaration of a mistrial, heard exten-
sive argument on the appropriateness of such a measure, and gave
appropriate consideration to alternatives less drastic than granting a
mistrial. See Arizona v. Washington, 434 U.S. at 514-16; see also
Jorn, 400 U.S. at 486-87 (plurality opinion) (concluding that based on
circumstances surrounding sua sponte grant of mistrial, trial judge
made no effort to exercise sound discretion). We turn to address the
application of these factors.
21
A. Did Manifest Necessity or the Ends of Public Justice Support
the Grant of a Mistrial?
Whether a grant of a mistrial is manifestly necessary is a question
that turns on the facts presented to the trial court. Somerville, 410 U.S.
at 464; Wade, 336 U.S. at 690-91. It is not a mechanically applied
standard, but rather is a determination that must be made in the con-
text of the specific difficulty facing the trial judge. Arizona v.
Washington, 434 U.S. at 506; see Somerville , 410 U.S. at 467 (reject-
ing application of rigid rules in which categories of errors support or
fail to support manifest necessity for the grant of a mistrial). And,
while manifest necessity for a mistrial does not require that a mistrial
be "necessary" in the strictest sense of the word, it does require a high
degree of necessity. Arizona v. Washington, 434 U.S. at 506. Perhaps
the clearest example of a situation in which manifest necessity exists
for a mistrial is when a jury is unable to reach a verdict. Id. at 509.
At the other extreme are situations in which a prosecuting attorney
seeks a mistrial in order to have additional time to marshal evidence
to strengthen the case against the defendant. Id. at 508. Between these
two extremes exists a spectrum of trial errors and other difficulties,
some creating manifest necessity for a mistrial and others falling far
short of justifying a mistrial. See id. at 510.
The State concedes, as it has previously to this court, that the pho-
tographs in Set 1 were relevant evidence and that assuming they had
been offered into evidence after a proper foundation had been laid for
their admission, the photographs would have been admitted into evi-
dence. As pictures of the scene where the altercation occurred, the
photographs in Set 1 were relevant evidence. See State v. Gilbert, 283
S.E.2d 179, 181 (S.C. 1981) (holding crime scene photographs prop-
erly admissible to show circumstances of the crime), cert. denied, 456
U.S. 984 (1982); State v. Wells, 426 S.E.2d 814, 818 (S.C. Ct. App.
1992) (noting that photographs of crime scene are admissible to cor-
roborate other evidence). And, as the State also previously conceded,
there is no basis for concluding that these photographs were subject
to exclusion on the basis that they "are unfairly prejudicial so as to
outweigh the probative value." See State v. Franklin, 456 S.E.2d 357,
361 (S.C.) (holding that "[t]o constitute unfair prejudice, the photo-
graphs must create a `tendency to suggest a decision on an improper
basis, commonly, though not necessarily, an emotional one'") (quot-
22
ing State v. Alexander, 401 S.E.2d 146, 149 (S.C. 1991) (adopting
unfair prejudice portion of Federal Rule of Evidence 403 as South
Carolina law)), cert. denied, 116 S. Ct. 357 (1995); State v. Campbell,
191 S.E.2d 770, 773 (S.C. 1972) (noting that court should exclude
photographs that "are calculated to arouse the sympathy or prejudice
of the jury," that "are entirely irrelevant," or that are "not necessary
to substantiate facts").
We also note that the State appears to concede that the mere fact
that the photographs in Set 1 were relevant and material evidence
does not support a finding that the jury was biased by viewing the
photographs or that its deliberations were adversely affected.
Undoubtedly, as counsel for Petitioners noted during oral argument,
all relevant evidence by definition is prejudicial to some extent in that
it is intended to support the proponent's case and prejudice the
opponent's.18 But, the "prejudice" engendered simply by the jury's
viewing of relevant evidence, when that evidence could not improp-
erly bias the jury or adversely affect its deliberations, generally could
not support a finding of manifest necessity for a mistrial.
Consideration of the analysis leading the Supreme Court to con-
clude in Arizona v. Washington that the state trial judge had not
abused his discretion in granting the prosecution's motion for a mis-
trial over the defendant's objection is instructive. During the opening
argument in Washington's state criminal trial, defense counsel
informed the jury that the prosecution had intentionally withheld
exculpatory evidence from the defense in a prior trial and that, as a
result of the prosecution's misconduct, the state supreme court had
ordered that Washington be given a new trial. Arizona v. Washington,
_________________________________________________________________
18 The dissents attempt to make much of Petitioners' counsel's "conces-
sion" in argument before the court that the Set 1 photographs were "prej-
udicial." This attempt is misdirected. Counsel acknowledged, as she
must, that all relevant evidence is by definition"prejudicial." However,
Petitioners' counsel was careful to draw the distinction between evidence
that is unduly or improperly prejudicial and evidence that is prejudicial
only in the sense that it is relevant. Petitioners have consistently main-
tained that the Set 1 photographs were prejudicial only in the sense that
they were relevant, not in the sense that they could have improperly
biased the jury.
23
434 U.S. at 499. The Supreme Court found this information--that the
prosecution had committed misconduct in the prior trial--to be imma-
terial, inadmissible, and highly inflammatory. See id. at 510-11. And,
for this reason, the Supreme Court began its analysis of whether the
trial court had abused its discretion in granting the mistrial on the
premise that the improper argument "may have affected the impartial-
ity of the jury." Id. at 511. The type of bias the Supreme Court consid-
ered to be germane in evaluating the possibility that the jury's
deliberations would be adversely affected, and thus to determining
whether manifest necessity existed for a mistrial, was that arising
from the exposure of the jury to inadmissible and inflammatory mate-
rial. See id. at 514-15. Clearly, no fair reading of Arizona v.
Washington can support a conclusion that a jury's viewing of rele-
vant, largely cumulative, and unobjectionable photographs could give
rise to the type of adverse effect on the jury's deliberations sufficient
to create a manifest necessity for a mistrial.
Rather, the State asserts that Officer Counts did not lay a proper
foundation for the jury's consideration of the photographs in Set 1
because he did not identify the photographs in Set 1 by number in the
presence of the jury and because he did not specifically explain to the
jury either the location depicted in the photographs or their relevance.
The State claims that in the absence of this proper identification and
foundation testimony, the jury's viewing of the photographs unduly
prejudiced the prosecution because the jury may have been confused.
It asserts that without this proper foundation testimony, the jury may
not have been able to determine that the different photographs
depicted the same areas marked with yellow tape and, thus, may have
been misled as to the location of these areas. Further, the State con-
tends that in the absence of foundational proof of serological tests
performed on the red spots shown in the photographs in Set 1, the jury
could not properly have relied on photographs to conclude that the red
spots were blood. We cannot agree.19
_________________________________________________________________
19 Not content with the arguments advanced by the State, one of the dis-
senting members of the court contends that the majority is incorrect in
concluding that the State's principal argument is that the potential for
jury bias resulted from the jury's viewing of the Set 1 photographs with-
out the authentication necessary for their formal admission. To the con-
trary, this has consistently been the State's position in its brief and at oral
argument.
24
The State cites no authority for the proposition that before a jury
may properly view photographs of a crime scene, the sponsoring wit-
_________________________________________________________________
In response to the repeated questions by various members of the en
banc court during oral argument to the State's attorney concerning how
the prosecution's case had been prejudiced by the jury's viewing of the
Set 1 photographs, the State acknowledged that it previously had con-
ceded that the photographs themselves were not prejudicial and main-
tained on at least six separate occasions that any prejudice to the
prosecution resulted from the fact that the jury saw the Set 1 photographs
before they were properly authenticated and formally admitted into evi-
dence. Following these repeated assertions, the dissenting judge asked:
[O]n top of that, I asked you a specific question during a three-
hour panel hearing in which you quite clearly argued that it . . .
was significant that you could see clearly the spots[of blood] on
the unadmitted photographs . . . . Defense counsel in response to
my question specifically said that, "Yes, it was prejudicial to the
government's case." But, in response to [the court's] question
today you say that it wasn't prejudicial except to the extent that
in some technical sense they hadn't been authenticated. Do you
have an argument that they were prejudicial? That's what we're
interested in--a substantive argument of prejudice to the govern-
ment's case. If not, then you've got to argue under Arizona that
prejudice isn't required, which you just conceded . . . it is.
STATE'S ATTORNEY: We don't argue that prejudice is not
required. We submit that . . . prejudice under Arizona v.
Washington, the way that I submit that Judge Wilkins is inter-
ested in prejudice, is required.
COURT: O.K., then what is the prejudice . . . ?
STATE'S ATTORNEY: The prejudice, I submit is, first off,
the fact the photographs which were not . . .
COURT: Other than that. The substantive case of[prejudice
to] the prosecution. I assume there was no prejudice to the prose-
cution at this point in these proceedings.
STATE'S ATTORNEY: Certainly, [they were] prejudicial to
the prosecution because [the defense] never sought to introduce
those photographs.
In response to further questions from the members of the court to the
State's attorney concerning the possibility that its case was prejudiced by
the jury's viewing of the Set 1 photographs, the State reiterated that the
25
ness must refer to each photograph by exhibit number, describe the
location depicted in each photograph individually, or explain the rele-
vance of each of the photographs individually. In other words, the
State offers no support for its contention that this testimony is a nec-
essary part of the foundation for admission of photographs into evi-
dence in South Carolina state courts. This is not surprising because
under South Carolina law, "[n]ormally it is sufficient to justify admit-
tance of photographs into evidence if a person familiar with the scene
can say that the pictures truly represent the scene involved."
Campbell, 191 S.E.2d at 773.20
There is no dispute that Officer Counts was present at the scene
when the photographs were taken, either by himself or another SLED
agent, or that the photographs accurately represented the scene out-
side the Silvers' mobile home. As the district court found, these facts
were adequately established during Officer Counts' testimony; so, a
_________________________________________________________________
failure to formally introduce the photographs into evidence may have led
to juror confusion. In an apparent attempt to get to the bottom of the mat-
ter one final time, the dissenting judge again questioned the State's attor-
ney concerning whether he was asserting that the fact that the
photographs in Set 1 showed the blood more clearly was independently
significant. Conceding that it was not, the State's attorney responded that
Officer Counts had testified to the existence of blood at the scene.
Having again reviewed the briefs and arguments before the court, we
remain confident that the State has now abandoned any argument that the
photographs themselves could have biased the jury. But, even if the dis-
sent were correct that the State had pursued this contention that the jury
may have been biased as a result of viewing the Set 1 photographs
because they disclosed information that was different from and more
prejudicial than the photographs in Set 2, this claim would lack merit for
the reasons discussed at length in the text.
20 The dissents complain that we are delving into South Carolina evi-
dentiary law concerning matters that are quintessentially within the dis-
cretion of the trial judge. As we have made plain, however, the state trial
judge refused to rule on the admissibility of the Set 1 photographs. So,
we are not called upon to speculate over the correctness of a contempora-
neous ruling. Instead, our examination ensues from the State's post hoc
assertion that a proper foundation for admission was not laid.
26
proper authentication was laid for the admission of the photographs.21
This finding is buttressed by the fact that the photographs in Set 2
were admitted into evidence with the same foundational testimony as
those in Set 1--except for the fact that the Set 2 photographs were
referred to by number--and without objection from the prosecuting
attorney. Additionally, there is no requirement of South Carolina law
that before crime scene photographs showing what appears to be
blood may be admitted into evidence, the results of a serological test
first must be introduced.
Moreover, even if the State were correct that Officer Counts had
not laid the proper foundation for admission of the photographs into
evidence, there was no possibility that the jury could have been con-
fused by seeing the photographs in Set 1 prior to having heard this
testimony. Officer Counts had testified that yellow tape marked three
areas on the ground outside the Silvers' mobile home where what
appeared to be blood was located. In addition, he had testified that
these areas were located to the left of the mobile home and just beside
the roadway, and he had marked the location of these three areas on
an overlay of a diagram of the crime scene prepared by the prosecu-
tion. Further, he testified that all of the photographs (Sets 1 and 2)
showed the same scene but from different angles. Given this testi-
mony, it strains credibility to suggest that the Set 1 photographs could
have misled the jury into believing that there were a greater number
of areas where blood was located or that the blood was discovered in
a location other than the one indicated by Officer Counts. And,
whether the photographs actually showed blood was a matter properly
within the jury's discretion; no additional testimony or foundation
was necessary to guide their discretion prior to viewing the photo-
graphs.
_________________________________________________________________
21 Although the State does not assert that the district court erred in ren-
dering this factual finding based on the evidence presented during the
hearing, one of the dissenting members of the court suggests that the dis-
trict court improperly failed to defer to a contrary statement made by the
state trial judge. However, because Petitioners were not provided with a
full, fair, or adequate hearing at the state level, to the limited extent that
the state trial court resolved the facts, the district court was not bound by
them. See 28 U.S.C.A. § 2254(d).
27
Finally, in determining whether a high degree of necessity was
shown for the mistrial, it is important to bear in mind that there is
simply no rational argument that viewing the photographs in Set 1
somehow improperly biased the jury. Cf. Arizona v. Washington, 434
U.S. at 510-11 (beginning analysis of whether trial court exercised
sound discretion with the premise that counsel's improper and highly
inflammatory remarks to the jury during opening argument may have
affected the jury's impartiality). As the State previously conceded, the
only error was in the fact that the photographs had not been formally
admitted into evidence. The State's own witness, Officer Counts, tes-
tified that what appeared to be blood had been located at the scene
outside the Silvers' mobile home. And, the difference in perspective
of the two sets of photographs did not add any information concern-
ing the location of the blood spots or tire tracks because Officer
Counts testified, and indicated on a diagram prepared by the State,
where SLED investigators had located blood at the scene and the
location of the tire tracks.
Particularly revealing is the testimony of one of the prosecuting
attorneys given before the district court: He testified that the prosecu-
tion did not actually want to move for a mistrial and that the reason
the motion was made was because the state trial judge sent a signal
as big as "I have ever seen" that he desired the prosecution to so move.22
_________________________________________________________________
22 Theorizing why, in his opinion, the state trial judge might have been
motivated to invite a mistrial motion from the prosecution, this prosecut-
ing attorney speculated that he thought the state trial judge may have
been influenced by an incident that occurred earlier in the trial in which
one of the defense attorneys looked in a prosecution notebook. Accord-
ing to the undisputed evidence presented before the district court, this
incident was brought to the attention of the state trial judge, who raised
the matter with defense counsel at a bench conference. Counsel denied
wrongdoing, stating that she had inadvertently looked in the notebook
while attempting to find her own. The state trial judge made no finding
of wrongdoing and did not reference this incident in granting the mistrial.
Later, this incident was addressed in a footnote to the original order
entered denying Petitioners' motion to dismiss their indictment on dou-
ble jeopardy. After this order--which was prepared by the prosecution
and signed by the state trial judge without change--was entered, defense
counsel moved the state trial judge to amend the order and omit reference
28
J.A. 428. In view of the state trial judge's "signal" to the prosecution
that the court was seeking a motion for a mistrial, it is understandable
why the motion was made. This admission is strong evidence that the
prosecution did not actually believe that the jury had been biased or
that its deliberations were somehow affected as a result of seeing the
photographs in Set 1. Indeed, nowhere in the prosecuting attorney's
testimony did he indicate that the prosecution was in some way preju-
diced by the jury's viewing of the Set 1 photographs. And, the prose-
cution's lack of awareness of the serological test that had been
performed and its decision not to conduct further serological testing
to attempt to determine whose blood was found further illustrates the
fact that the prosecution did not believe that the existence of drops of
blood outside the mobile home was significant; it was undisputed that
Gilliam bled from a gunshot wound to the lower leg and, therefore,
that blood was present at the scene outside the mobile home.
Alternatively, the State argues that even if the jury was not biased
by viewing the Set 1 photographs, the state trial judge nevertheless
properly may have concluded that the ends of public justice were
served by the grant of a mistrial because the procedures for the proper
admission of evidence for the jury's consideration had been violated
through defense counsel's negligence. In fact, one of the prosecuting
attorneys testified that this factor, rather than any perceived prejudice
to the prosecution's case, motivated the decision to seek a mistrial. In
our view, this question forms the true issue raised by this appeal:
Does a trial judge exercise sound discretion in concluding that a mis-
trial is supported by the ends of public justice when defense counsel
negligently permits the jury to view photographs that have not been
admitted into evidence, but that undoubtedly could and would be
admitted if so offered?
_________________________________________________________________
to the incident. The prosecution did not object to removal of this lan-
guage, and the state trial judge entered the amended order, which is
included as an appendix to one of the dissents.
This record does not support a suggestion that the state trial judge con-
cluded that defense counsel engaged in a pattern of misconduct or that
the state trial judge based its decision to grant the mistrial on this basis.
29
In examining some of the situations in which the ends of public
justice were held to support the grant of a mistrial, the Supreme Court
has written:
A trial judge properly exercises his discretion to declare a
mistrial if an impartial verdict cannot be reached, or if a ver-
dict of conviction could be reached but would be reversed
on appeal due to an obvious procedural error in the trial. If
an error would make reversal on appeal a certainty, it would
not serve "the ends of public justice" to require that the Gov-
ernment proceed with its proof when, if it succeeded before
the jury, it would automatically be stripped of that success
by an appellate court.
Somerville, 410 U.S. at 464.
As noted above, because these photographs could have been admit-
ted into evidence, could not have caused the jury to have been con-
fused or misled, and could not have biased or inflamed the jury, there
is no basis upon which to conclude that the jury could not have
reached an impartial verdict.
And, any error in the jury's viewing of these photographs would
not have amounted to reversible error under South Carolina law. First,
because there was no reason why the photographs could not have
been formally admitted by the defense, any technical error in the
jury's viewing of the photographs could have been easily remedied
before the case was submitted to the jury. Second, even if the techni-
cal error could not have been corrected, this error could not possibly
have resulted in reversal of Petitioners' convictions because harmless
error does not necessitate the reversal of a South Carolina criminal
conviction. See State v. Gaskins, 326 S.E.2d 132, 141 (S.C. 1985),
cert. denied, 471 U.S. 1120 (1985). The erroneous consideration of
evidence is not a ground for reversal unless it results in prejudice. See
State v. Knight, 189 S.E.2d 1 (S.C. 1972). And, when a jury considers
a crime scene photograph, when other photographs of the same scene
are already in evidence without objection, no prejudice can be
inferred. See State v. Bellue, 194 S.E.2d 193, 194 (S.C. 1973). More-
over, a jury's exposure to evidence that is admissible, but not admit-
ted, does not require reversal of a conviction. See Campbell, 191
30
S.E.2d at 772-73 (stating that display before the jury by the solicitor
of an axe found at the crime scene did not warrant reversal of defen-
dant's conviction, when although not admitted into evidence, the axe
properly could have been admitted). Thus, there is no possibility that
if the trial had resulted in a conviction of Petitioners, the verdicts
would have been reversed on appeal because the jury viewed the Set
1 photographs.
Although the circumstances presented to the state trial judge cre-
ated neither a risk that the jury would be unable to reach an impartial
verdict nor a risk that a verdict of guilty would have been overturned
on appeal or collateral review, an argument is made that the state trial
judge's grant of a mistrial under these circumstances nevertheless was
supported by the ends of public justice. A trial judge must be permit-
ted to ensure the integrity of the trial and its evidentiary procedures
through the grant of a mistrial, the State maintains, and any rule that
fails to recognize this institutional necessity would place unscrupu-
lous defense counsel in a "no lose" situation: Unethical defense coun-
sel will be undaunted from violating evidentiary procedures because,
in the event a mistrial is granted, they obtain a real opportunity for
a reviewing court to conclude that retrial is barred by the Double
Jeopardy Clause or, in the event the trial judge does not grant a mis-
trial, they obtain the benefit of having the jury consider unadmitted
or improperly admitted evidence. This parade of horribles rings hol-
low.
Undoubtedly a trial judge possesses wide latitude to maintain con-
trol over the courtroom to ensure the integrity of the proceedings, but
the traditionally broad discretion afforded in such matters necessarily
accedes to the Constitution, requiring that the exercise of the discre-
tion in favor of granting a mistrial over a defendant's objection and
after the jury has been sworn be exercised only when a high degree
of necessity or the ends of public justice compel the act. We are
unable to accept the State's argument that a trial court may deprive
a defendant of his constitutionally protected right to have an empan-
eled and unbiased jury decide his guilt on the ground that his attorney
committed a technical and harmless error.23 See Harris v. Young, 607
_________________________________________________________________
23 The State asserted at oral argument that even if the photographs in
Set 1 had been exact duplicates of photographs that had already been
admitted into evidence, the state trial judge would have been justified in
concluding that a mistrial was manifestly necessary.
31
F.2d 1081, 1086 (4th Cir. 1979) (concluding that trial court did not
exercise sound discretion in granting mistrial in part because "there
[was] no indication that the traditional remedies for attorney miscon-
duct, including censure, reprimand, contempt, or recommendation of
disciplinary proceedings were not available"), cert. denied, 444 U.S.
1025 (1980). And, the State's argument is particularly unconvincing
on the present facts because there has never been any allegation that
all of the defense attorneys were responsible for the error. Thus, the
Petitioners whose separate counsel were not responsible for the error
were deprived of a constitutional right in the absence of even uninten-
tional harmless error by their own attorney.
Our conclusion that the ends of public justice do not support the
grant of a mistrial under the present circumstances--i.e., when admis-
sible and largely cumulative evidence that was not unduly prejudicial,
that would not cause juror confusion, and that had been properly
authenticated, was inadvertently placed where the jury could view it
--does not signal that a trial judge would be incorrect in concluding
that the ends of justice supported the grant of a mistrial in other cir-
cumstances. For example, when evidence that would not have been
admitted, or that may have biased the jury in some way, was aired
before the jury, a mistrial may very well be appropriate. Accordingly,
unscrupulous defense counsel will find no encouragement in our
opinion to evade the rules of evidence: If counsel were to air evidence
that might tend to improperly bias the jury or adversely affect its
impartiality, any reviewing court applying the teachings of Arizona v.
Washington would conclude that the trial judge acted within his dis-
cretion in granting a mistrial. And, if counsel seeks to improperly
place only innocuous, admissible evidence before the jury, no advan-
tage is gained, and a significant risk exists that counsel may find that
they face sanctions for their conduct. All in all, we do not view this
scenario as creating any real possibility for abuse.
In sum, we conclude that neither manifest necessity nor the ends
of public justice required a mistrial.
B. Do Other Factors Indicate that the State Trial Judge Exercised
Sound Discretion?
The other factors that the Supreme Court has indicated are relevant
to a determination of whether a trial court exercised sound discretion
32
in granting a mistrial also weigh against that finding here. First, as the
district court found, the state trial judge acted precipitately: He
refused defense counsel's request to determine whether the jury had
actually seen the photographs in question; he refused to determine
whether Officer Counts had in fact authenticated the photographs dur-
ing his testimony; he refused simply to look at the photographs and
rule on their admissibility; and he refused to allow defense counsel's
request to recall Officer Counts and formally move the admission of
the photographs into evidence. The manner in which the state trial
judge examined the appropriateness of the grant of a mistrial fur-
nishes no indication of the exercise of sound discretion.
In addition, the state trial judge never evinced any awareness that
the grant of a mistrial might implicate or deprive Petitioners of their
constitutional right to have the empaneled jury decide their guilt.
Indeed, at no point during the brief colloquy with counsel concerning
the State's motion for a mistrial did the state trial judge allude to the
Fifth Amendment, the Double Jeopardy Clause, or the proposition
that in order to retry a criminal defendant after a mistrial has been
granted over his objection, manifest necessity or the ends of public
justice must require that it be granted.
Finally, the state trial judge ignored an obvious and adequate alter-
native to the grant of a mistrial. See United States v. Sloan, 36 F.3d
386, 400 & n.11 (4th Cir. 1994); United States v. Shafer, 987 F.2d
1054, 1057 (4th Cir. 1993) ("If alternatives existed, then society's
interest in fair trials designed to end in just judgments was not in con-
flict with the defendant's right to have the case submitted to the
jury.") (internal quotation marks & citation omitted); Harris, 607 F.2d
at 1085 n.4 ("If obvious and adequate alternatives to aborting the trial
were disregarded, this suggests the trial judge acted unjustifiably.").
The State conceded in argument before this court that there was noth-
ing to prevent the state trial judge from simply allowing Officer
Counts (who was under subpoena and available) to be recalled to the
witness stand to have the photographs formally introduced, as defense
counsel offered to do prior to the state trial judge's ruling on the pros-
ecution's motion for a mistrial.24 Without question, this would have
_________________________________________________________________
24 The State asserts that if the defense had been permitted to recall Offi-
cer Counts to the stand in order to formally move the introduction of the
33
cured the technical, and only, error that had occurred. Thus, in the
absence of any prejudicial error, the state trial judge refused to con-
sider or implement an obvious and completely adequate course of
action to correct any possible error in the jury's having viewed cumu-
lative photographs that had not been formally moved and received
into evidence. This factor, then, also weighs in favor of a conclusion
that the state trial court acted irresponsibly in granting the mistrial.25
_________________________________________________________________
photographs, the jury might have placed too much emphasis on the Set
1 photographs. This argument obviously lacks merit. Litigants are always
free to highlight evidence of their choosing by referring back to it several
times during a witness' examination or by questioning multiple witnesses
about the same evidence. Consequently, if the Set 1 photographs had
been introduced into evidence during Officer Counts' testimony, nothing
would have prevented defense counsel from emphasizing these photo-
graphs to the jury if it chose to do so. Accordingly, even if we assume
that the introduction of the photographs would have to have occurred
before the jury, recalling Officer Counts to the stand to do so would not
have unduly prejudiced the prosecution.
25 One dissent considers the order entered by the state trial judge deny-
ing Petitioners' motion to dismiss their indictments as essential to a
determination that the state trial judge did not act precipitately and criti-
cizes us for focusing on the circumstances surrounding the grant of the
mistrial at the time it occurred rather than the later order. Our lack of
focus on this order--which was filed some five months after the mistrial
had been granted--results from our conclusion that the order adds virtu-
ally nothing to the analysis of whether the state trial judge acted precipi-
tately in granting the mistrial. With the exception of the state trial judge's
statement that he considered giving a curative instruction, all of the sub-
stantive factual information to which the dissent points is already
reflected in the trial transcript and considered in the text of the majority
opinion. To the extent that the order further discloses that the state trial
judge considered and rejected giving a curative instruction, it is irrele-
vant. We would not fault a state trial judge for declining to pursue a rem-
edy that might not have cured possible prejudice to the prosecution;
indeed, we expressly note that a trial court acts well within the broad dis-
cretion afforded to it if it declines to impose a remedy that could fail to
cure potential jury bias. The problem here is that the state trial judge
granted the mistrial in the absence of any circumstances that could have
improperly biased the jury and failed to pursue a remedy that indisputa-
bly would have cured the potential bias, if any had been shown. Further,
it is not surprising that the order discusses double jeopardy concerns,
34
C. Summary
In sum, we agree with the district court that the state trial judge did
not exercise sound discretion in granting the mistrial. The record will
not support a conclusion that manifest necessity existed: The jury was
not exposed to any inadmissible evidence; the photographs in Set 1
could not have adversely affected the impartiality of the jury; and in
light of Officer Counts' testimony, the Set 1 photographs did not pres-
ent any realistic potential for juror confusion. Additionally, the grant
of the mistrial was not compelled by the ends of public justice: There
was no reason a just verdict could not have been reached by the jury;
there was no error that could have resulted in reversal if the trial had
ended in conviction; and there was no necessity for the state trial
judge to grant a mistrial to vindicate any institutional interest protect-
ing the integrity of evidentiary procedures. Moreover, the state trial
judge acted precipitately and ignored an obvious and completely ade-
quate alternative offered to remedy any error arising from the jury's
consideration of the photographs.
In reaching this conclusion, we consider it important to emphasize
what we do not hold. We are not called upon to second guess a discre-
tionary ruling on the admissibility of evidence by a state trial judge
in a criminal proceeding or a finding that the jury was potentially
biased or prejudiced. The state trial judge plainly refused to rule on
the admissibility of the Set 1 photographs and made no finding that
the impartiality of the jury had been, or may have been, affected by
viewing the photographs in dispute. Nor are we faced with a situation
in which the admissibility of evidence or the possibility of juror bias
is subject to some doubt. Indeed, the State has repeatedly conceded
that the Set 1 photographs were admissible and without question
properly would have been admitted into evidence during the first trial
if they had simply been moved into evidence when Officer Counts
_________________________________________________________________
given that the Petitioners' motion that precipitated the order was based
on the Double Jeopardy Clause. But, this discussion cannot reasonably
impute that concern back to the time the state trial judge acted. And, in
fact, the order does not purport to say that the state trial judge actually
considered the double jeopardy implications of its actions before grant-
ing the mistrial.
35
was on the stand; and, the testimony of Officer Counts foreclosed any
possibility of juror confusion. As a result, we do not confront a situa-
tion in which a state trial judge has exercised his discretion to choose
a mistrial in lieu of some other measure designed to remedy juror bias
or prejudice.
If the situation facing this state trial court could be found to support
a conclusion that manifest necessity or the ends of public justice
required the grant of a mistrial, those words have little meaning, and
the standard for trial judges to employ in deciding the appropriateness
of the grant of a mistrial may as well be articulated in terms of
whether a trial judge in good faith deems the mistrial advisable.
Moreover, if the circumstances surrounding the grant of this mistrial
could be found to sustain a determination that the state trial judge
exercised sound discretion in granting a mistrial, there would be little
point to providing any level of judicial review of such decisions. For
better or worse, however, the Double Jeopardy Clause has been con-
strued by the Supreme Court to permit the retrial of a defendant after
a mistrial is granted over his objection only when manifest necessity
or the ends of public justice compelled that the mistrial be granted,
and the Supreme Court has directed reviewing courts to examine the
ruling of the trial judge to determine whether sound discretion was
exercised in granting the mistrial. Were we to hold otherwise, the pro-
tection afforded by the Double Jeopardy Clause would no longer safe-
guard a defendant's right to have a trial completed by an empaneled
jury--a right long held to be encompassed within the protections
afforded by the Clause--but would provide protection only against
demonstrable prosecutorial or judicial misconduct. Further, the
review for sound discretion reaffirmed in Arizona v. Washington
would be relegated to a ministerial rubber stamp of a state trial
judge's decision to grant a mistrial irrespective of the irrationality of
that decision. While we abhor the result--because, as in all cases in
which the Double Jeopardy Clause bars reprosecution, the defendants
will not be held to account for their alleged crimes--our application
of the law as we understand it compels us to affirm the judgment of
the district court.
36
III. Younger Abstention
Although the State did not initially raise this issue,26 it now asserts
that the abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971),
barred the district court from granting federal habeas corpus relief. It
maintains that having concluded that there was no bad faith on the
part of the prosecution in proceeding with the trial, the court should
have declined further review.
In Younger, the Supreme Court plainly declared that federal court
equitable interference with state criminal proceedings should not be
undertaken except in the most narrow and extraordinary of circum-
stances. Basic tenets of equity jurisprudence dictate that a court "`of
equity should not act, and particularly should not act to restrain a
criminal prosecution, when the moving party has an adequate remedy
at law and will not suffer irreparable injury if denied equitable
relief.'" Kugler v. Helfant, 421 U.S. 117, 123 (1975) (quoting
Younger, 401 U.S. at 43-44). And, concerns of comity and federalism
justify additional caution when a federal court is petitioned to inter-
vene in a pending state criminal action. Id. Consequently, federal
courts may intervene in state criminal proceedings, either by way of
declaratory relief or by injunction, only when there has been a "show-
ing of bad faith, harassment, or any other unusual circumstance that
would call for equitable relief." Younger , 401 U.S. at 54 (emphasis
added); Kugler, 421 U.S. at 123 ("[I]n the absence of exceptional cir-
cumstances creating a threat of irreparable injury both great and
immediate, a federal court must not intervene by way of either injunc-
tion or declaratory judgment in a pending state criminal prosecu-
tion.") (internal quotation marks omitted).
_________________________________________________________________
26 Because the State did not rely upon the Younger abstention doctrine
in opposing Petitioners' request for a temporary stay of the state criminal
proceedings pending resolution of the merits of the§ 2254 petition, we
might be justified in refusing to consider this argument. See Swisher v.
Brady, 438 U.S. 204, 213 n.11 (1978) ("If the State voluntarily chooses
to submit to a federal forum, principles of comity do not demand that the
federal court force the case back into the State's own system.") (internal
quotation marks omitted). Nevertheless, because the State advances the
abstention argument now, and because the issue is one of considerable
importance, we will address it.
37
It is undisputed that the state proceeding against Petitioners was not
undertaken in bad faith or for purposes of harassment. Moreover,
there is no suggestion that the prosecutors who sought the mistrial on
behalf of the State during the first trial or the judge who granted it
were acting in bad faith in doing so. Nevertheless, a federal court may
provide equitable intervention in a state criminal proceeding "`even
in the absence of the usual prerequisites of bad faith and harassment'"
when "`extraordinary circumstances in which the necessary irrepara-
ble injury can be shown'" are present. Kugler , 421 U.S. at 124 (quot-
ing Younger, 401 U.S. at 53).
The State argues that Petitioners have not shown extraordinary cir-
cumstances for federal court intervention in the state criminal pro-
ceedings because they have failed to show that they will suffer
irreparable injury if they are forced to undergo the trial of their crimi-
nal charges and raise their double jeopardy claim on direct appeal if
they are convicted. The State stresses that "the cost, anxiety, and
inconvenience of having to defend against a single criminal prosecu-
tion alone [does] not constitute `irreparable injury.'" Id. (quoting
Younger, 401 U.S. at 46).
The State is correct that ordinarily irreparable harm cannot be
shown simply because a defendant will be subject to a single criminal
prosecution in which he must raise any constitutional claims he
wishes as a defense to his conviction. "The policy of equitable
restraint expressed in Younger v. Harris . .. is founded on the premise
that ordinarily a pending state prosecution provides the accused a fair
and sufficient opportunity for vindication of federal constitutional
rights." Id. However, because the Double Jeopardy Clause of the Fifth
Amendment protects not only against multiple convictions but also
"against being twice put to trial for the same offense," Abney v.
United States, 431 U.S. 651, 660-62 (1977), a portion of the constitu-
tional protection it affords would be irreparably lost if Petitioners
were forced to endure the second trial before seeking to vindicate
their constitutional rights at the federal level, 27 see Justices of Boston
Mun. Court v. Lydon, 466 U.S. 294, 303 (1984); Abney, 431 U.S. at
_________________________________________________________________
27 Obviously, Petitioners already had been required to defend them-
selves in one criminal proceeding, and it was their second criminal trial
from which they sought federal habeas relief.
38
662. Thus, the irreparable deprivation of this Fifth Amendment Dou-
ble Jeopardy right is an extraordinary circumstance warranting federal
court equitable intervention in Petitioners' state criminal proceeding.
Our conclusion is in accord with the decisions of the other courts
of appeals that have addressed this question. They have unanimously
recognized that a colorable claim that a second trial will violate a
defendant's double jeopardy right is a preeminent example of one of
the very few extraordinary circumstances justifying federal court
intervention in a pending state criminal proceeding. See Satter v.
Leapley, 977 F.2d 1259, 1261 (8th Cir. 1992); Mannes v. Gillespie,
967 F.2d 1310, 1312 (9th Cir. 1992), cert. denied, 113 S. Ct. 964
(1993); Showery v. Samaniego, 814 F.2d 200, 201 n.5 (5th Cir. 1987);
Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984) (per curiam); United
States ex rel. Stevens v. Circuit Court of Milwaukee Co., Wis. Branch
VIII, 675 F.2d 946, 947-48 (7th Cir. 1982); Gully v. Kunzman, 592
F.2d 283, 286-87 (6th Cir.), cert. denied, 442 U.S. 924 (1979);
Drayton v. Hayes, 589 F.2d 117, 120-21 (2d Cir. 1979); United States
ex rel. Webb v. Court of Common Pleas of Philadelphia County, 516
F.2d 1034, 1037-39 (3d Cir. 1975).
Moreover, this conclusion is buttressed by the fact that the
Supreme Court has never refused on the basis of the Younger absten-
tion doctrine to decide the merits of a double jeopardy claim raised
in a § 2254 petition. Instead, the Supreme Court has on several occa-
sions addressed whether a forthcoming second state criminal trial was
barred on double jeopardy grounds. See Lydon, 466 U.S. at 304-13;
Arizona v. Washington, 434 U.S. at 503-17. In Lydon, the Supreme
Court specifically ruled that a state habeas corpus petitioner had satis-
fied the § 2254 custody and exhaustion requirements to permit federal
habeas review of his double jeopardy claim prior to his retrial on state
criminal charges. Discussing the exhaustion requirement, and without
referring to Younger, the Court wrote that because the Double Jeop-
ardy Clause "protects interests wholly unrelated to the propriety of
any subsequent conviction, a requirement that a defendant run the
entire gamut of state procedures, including retrial, prior to consider-
ation of his claim in federal court, would require him to sacrifice one
of [its] protections." Lydon, 466 U.S. at 303 (internal quotation marks
& citation omitted). See generally Winston v. Moore, 452 U.S. 944
(1981) (Rehnquist, J., dissenting) (without indicating that Younger
39
abstention principles applied, opining that Court should have granted
certiorari to address the merits of the double jeopardy claim);
Willhauck v. Flanagan, 448 U.S. 1323, 1325 (Brennan, Circuit Justice
1980) (noting that double jeopardy claims may present an exception
to Younger abstention); Mincey v. Arizona, 434 U.S. 1343, 1344
(Rehnquist, Circuit Justice 1977) (distinguishing claim that second
state trial should be stayed based on alleged error in introduction of
evidence from a claim that the second trial would violate double jeop-
ardy and stating that the former should be raised through the normal
state appellate channels).
Equitable federal court interference with ongoing state criminal
proceedings should be undertaken in only the most limited, narrow,
and circumscribed situations. However, when the record demonstrates
that a second state criminal trial will constitute a violation of the
defendant's double jeopardy rights, federal court intervention is
appropriate.
IV. CONCLUSION
Our decision that the Double Jeopardy Clause bars a retrial of Peti-
tioners is an enormously difficult one. Frequently, when this court
concludes either on direct appeal or on habeas corpus review that a
trial judge has committed an error during a criminal trial, we are able
to determine that the error was a harmless one and does not require
that the conviction be set aside. And, even when this court concludes
that a ruling by a trial judge in a criminal prosecution was erroneous
and prejudicial, in the vast majority of cases the defendant may be
retried. The unique constitutional protection afforded by the Double
Jeopardy Clause, however, dictates that when a trial court abuses the
ample discretion afforded to it in granting a mistrial in a criminal case
over a defendant's objection, the defendant may not be retried. As a
result of the error committed by the state trial judge in Petitioners'
first trial, the State of South Carolina may not retry them.
It is our duty to apply the law to uphold the convictions of those
who are unable to demonstrate harmful error and to order appropriate
relief for those who do. And, just as surely, it is our duty to apply to
the best of our understanding the interpretation given to the Constitu-
40
tion by the Supreme Court even when that application prevents the
retrial of criminal defendants.
Chief Judge Ervin, Judge Hall, Judge Murnaghan, Judge Hamilton,
Judge Williams, Judge Michael, and Judge Motz join in this opinion.
AFFIRMED
41
Volume 2 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARRELL WAYLAND GILLIAM, JR.;
PAMELA OWINGS; JAMES MATTHEW
SWAIN,
Petitioners-Appellees,
v.
JAMES LEE FOSTER, Sheriff of No. 95-2434
Newberry County; CHARLES M.
CONDON, Attorney General for the
State of South Carolina; JAMES W.
JOHNSON, JR., Circuit Court Judge of
South Carolina,
Respondents-Appellants.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-95-1742-17AJ, CA-95-1743-17AJ, CA-95-1744-17AJ)
Argued: September 26, 1995
Decided: January 29, 1996
Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL,
MURNAGHAN, WILKINSON, WILKINS, NIEMEYER,
HAMILTON, LUTTIG, WILLIAMS, MICHAEL, and MOTZ,
Circuit Judges.
Affirmed by published opinion. Judge Wilkins wrote the majority
opinion in which Chief Judge Ervin and Judges Hall, Murnaghan,
Hamilton, Williams, Michael, and Motz joined; Judge Wilkinson
wrote a dissenting opinion in which Judges Russell, Widener, Nie-
meyer, and Luttig joined; Judge Niemeyer wrote a dissenting opinion
in which Judge Widener joined; and Judge Luttig wrote a dissenting
opinion in which Judges Russell, Widener, Wilkinson, and Niemeyer
joined.
_________________________________________________________________
COUNSEL
ARGUED: Donald John Zelenka, Assistant Deputy Attorney Gen-
eral, Columbia, South Carolina, for Appellants. Joy Scherffius Good-
win, LEVY & GOODWIN, Columbia, South Carolina, for Appellees.
ON BRIEF: J. Christopher Mills, FAIREY, PARISE & MILLS,
Columbia, South Carolina, for Appellee Gilliam; Samuel M. Price,
Jr., Newberry, South Carolina, for Appellee Owings.
_________________________________________________________________
OPINION
WILKINSON, Circuit Judge, dissenting:
I respectfully dissent. When a mistrial is declared through no fault
of the prosecution and indeed as the direct result of defense error, a
federal court may not enjoin a subsequent state criminal trial while it
is ongoing. The majority disregards this fundamental axiom, leaving
two mainstays of our federal system, Younger v. Harris, 401 U.S. 37
(1971), and Arizona v. Washington, 434 U.S. 497 (1978), in a badly
damaged state.
I.
I will first take up the damage to the Younger decision. That dam-
age falls into two broad categories: (1) doctrinal damage to Younger;
and (2) the practical damage of disruption visited upon the relation-
ship of state and federal courts. The damage is compounded by the
44
fact that the pronouncements in this case are those of an en banc
court.
The doctrinal damage to Younger stems from the majority's insis-
tence on a duty on the part of federal courts to intervene in ongoing
state criminal proceedings even when defense error causes the decla-
ration of an earlier mistrial. The majority adopts a single standard for
federal judicial intervention into ongoing state trials -- one which
ignores the source of the earlier error in state court. In so doing, the
majority also ignores two critical findings that the district court made
in this very case: first, that "[t]here is nothing in the record to indicate
that the prosecutors acted with bad faith or improper motive in mov-
ing for a mistrial," and, second, that the trial judge found "that it was
defense counsel who erroneously placed Photo Set 1 on the jury rail,"
thus precipitating the mistrial.
Intervention under these circumstances turns Younger on its head.
Younger envisioned the federal courts as a last line of defense against
gross abuses of prosecutorial power. See Younger, 401 U.S. at 47-53.
It never envisioned episodic federal interventions into ongoing state
proceedings whenever a federal habeas court thinks that the earlier
grant of a mistrial by a state trial judge was simply a mistake. See id.
at 43-47. The language of Younger makes plain that the evil sought
to be remedied by federal equitable intervention was that of prosecu-
torial malfeasance or bad faith. Id. at 53. The Court declared that the
"fundamental policy against federal interference with state criminal
prosecutions," id. at 46, could only be abandoned in the face of "bad
faith, harassment, or any other unusual circumstances that would call
for equitable relief." Id. at 54. As the Court elaborated in a companion
case: "Only in cases of proven harassment or prosecutions undertaken
by state officials in bad faith without hope of obtaining a valid con-
viction and perhaps in other extraordinary circumstances where irrep-
arable injury can be shown is federal injunctive relief against pending
state prosecutions appropriate." Perez v. Ledesma, 401 U.S. 82, 85
(1971). Over thirty years of litigation since Younger testify to the
strength of its presumption against federal interference; in no case has
the Supreme Court found the bad faith exception to apply. 17A
Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure, § 4255 at 254 (1988).
45
The majority asserts that double jeopardy claims are an "extraordi-
nary circumstance" warranting a departure from Younger. Younger,
401 U.S. at 54; Perez, 401 U.S. at 85. Such claims are extraordinary,
the majority contends, because forcing a defendant to endure a second
trial that violates the Double Jeopardy Clause constitutes irreparable
injury. This effort ignores the warning of the Supreme Court that the
exceptions to Younger are narrow. Huffman v. Pursue, Ltd., 420 U.S.
592, 611 (1975). None of the decisions invoked by the majority to
support its proposition are applicable here. None of those courts
enjoined, or even contemplated enjoining, an ongoing state criminal
trial, let alone on the basis that an earlier mistrial provoked by defense
error was not supported by "manifest necessity." In fact, though they
considered the claims presented by state petitioners, most of those
courts did not grant relief on the merits. Satter v. Leapley, 977 F.2d
1259, 1260 (8th Cir. 1992); Showery v. Samaniego, 814 F.2d 200, 201
(5th Cir. 1987); Doe v. Donovan, 747 F.2d 42, 44 (1st Cir. 1984);
United States ex rel. Stevens v. Circuit Court of Milwaukee, Wis.
Branch VIII, 675 F.2d 946, 949 (7th Cir. 1982); Gully v. Kunzman,
592 F.2d 283, 289-90 (6th Cir.), cert. denied, 442 U.S. 924 (1979);
Drayton v. Hayes, 589 F.2d 117, 118 (2d Cir. 1979). Pre-trial relief
was granted in only a few cases. In one, Younger was not implicated
because the petitioner had not requested an injunction against an
ongoing criminal proceeding. United States ex rel. Webb v. Court of
Common Pleas of Philadelphia County, 516 F.2d 1034, 1039 n.18 (3d
Cir. 1975). In the others, the petitioner had been acquitted previously,
the most compelling double jeopardy claim a defendant can advance.
Mannes v. Gillespie, 967 F.2d 1310, 1316 (9th Cir. 1992), cert.
denied, 113 S.Ct. 964 (1993) (judicial acquittal bars retrial); Davis v.
Herring, 800 F.2d 513, 519 (5th Cir. 1986) (implicit jury acquittal
bars retrial).1
_________________________________________________________________
1 The majority's attempt to invoke Supreme Court decisions to suggest
that a double jeopardy claim like the one presented here is an exception
to the dictates of Younger is unsuccessful. In no case cited by the major-
ity did the Court enjoin an ongoing state criminal trial based on an
improper declaration of a mistrial that resulted from a defense error.
Abney v. United States, 431 U.S. 651 (1977), was a direct appeal, where
Younger's admonitions about federalism and comity are not relevant. In
Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984), the
Court considered a double jeopardy claim unlike the one presented here,
and did not grant the requested pre-trial relief.
46
The majority creates a broad exception to Younger abstention
whenever a petitioner on federal habeas raises a claim of double jeop-
ardy. Assuming arguendo that double jeopardy claims do warrant a
departure from the doctrine of Younger abstention, they should never
occasion such a departure when, like here, there is not the slightest
accusation of misconduct by the state. See Gilliam v. Foster, 61 F.3d
1070, 1089-90 (4th Cir. 1995) (Luttig, J., dissenting). I cannot accept
the majority's view that pre-trial habeas review is available irrespec-
tive of the nature of the double jeopardy claim. See Stevens, 675 F.2d
at 948-49 (availability of pre-trial consideration of habeas depends on
nature of double jeopardy claim). The principal evil to be avoided in
the double jeopardy context is that the state may receive a second shot
at a defendant as a result of its own failings or misconduct. For exam-
ple, in Downum v. United States, 372 U.S. 734 (1963), the Supreme
Court prohibited retrial when a mistrial was declared due to a prose-
cutor's inability to locate a critical witness of whose absence the pros-
ecution was aware when it proceeded to trial. Id. at 735-38. In United
States v. Shafer, 987 F.2d 1054 (4th Cir. 1993), this court prohibited
retrial when a mistrial was declared due to the prosecution's failure
to turn over discovery materials to the defense. Id. at 1056-59. The
errors in Downum and Shafer suggested that the mistrial would allow
the prosecution to "buttress weaknesses in [its] evidence," Arizona,
434 U.S. at 507, only to be used to its advantage in a second prosecu-
tion.
This danger of prosecutorial overreaching is totally absent here.
There is no suggestion that this prosecution was anything other than
legitimate. "There is nothing in the record," as the district court found,
"to indicate that the prosecutors acted with bad faith or improper
motive in moving for a mistrial." There is no indication that the prose-
cution sought the mistrial to recover from a false start in its case. To
the contrary, the state judge declared the mistrial because he was
obviously disturbed that the jury was exposed to close-up photo-
graphs of the crime scene that were never properly admitted into evi-
dence. The majority, however, disregards both the source and the
nature of the error occasioning the mistrial. In so doing, it fashions
an exception to Younger so broad that federal court intrusion into
state criminal trials will become an ordinary, rather than an extraordi-
nary, event. See Hicks v. Miranda, 422 U.S. 332, 352 (1975).
47
To protest generally the dangers of federal intervention into pend-
ing state proceedings fails to adequately convey the specific harm vis-
ited by this court. Its intervention came at the worst possible moment
in the state criminal proceedings -- when a trial was well underway.
On July 15th, just two days before the start of the state trial, a panel
of this court heard argument and affirmed the district court's initial
ruling denying petitioners' request for injunctive relief. Then, on the
fourth day of the state trial, July 20th, the en banc court reversed the
panel's decision and halted the state trial in its tracks. Younger itself
prohibits intervention in any pending state criminal proceeding. But
here a criminal prosecution was far more than pending; it had pro-
ceeded to trial, and almost as if the judge, jury, witnesses, and parties
were participants in some illicit gathering, the federal court ordered
them dispersed.
The majority has, in short, cut Younger at its core. It sanctions dis-
ruption of an ongoing state criminal trial when there is no allegation
whatsoever of misconduct by the state. It disregards the principles of
comity and federalism that underpin the Younger decision; Younger
is, after all, designed to "permit state courts to try state cases free
from interference by federal courts." Younger, 401 U.S. at 43 (empha-
sis added). The intervention countenanced here shows scant respect
for the capacity of state courts to safeguard constitutional rights,
Trainor v. Hernandez, 431 U.S. 434, 443 (1977), and thus creates
unwarranted friction between state and federal courts at a time when
state courts are, if anything, more responsible guardians of constitu-
tional guarantees than at the time of Younger itself.
But to speak generally of the harm to comity and federalism is
again to muffle the point. The damage is best calculated by canvass-
ing what happened in this very case. This circuit's intervention forced
the state to divert resources away from its ongoing prosecution to
lengthy collateral proceedings and litigation of this habeas claim
drove the state trial judge to recuse himself. Attorneys argued repeat-
edly, and often simultaneously, before state and federal courts about
the admissibility, relevance and prejudicial effect of crime scene pho-
tographs exposed to the jury in a state criminal trial. State criminal
processes and federal habeas consideration -- erratic as it was -- pro-
ceeded on parallel tracks. The district court denied, and then after
prodding from the en banc court, granted the writ of habeas corpus.
48
Gilliam, 63 F.3d 287 (4th Cir. 1995); Gilliam, 61 F.3d 1070. The en
banc court issued an emergency stay of an ongoing state criminal trial
without hearing argument and without sufficient opportunity to view
the disputed photographs. A state jury was sent home and a trial was
placed in limbo as a result of the federal intervention. Now, finally,
the majority finds a double jeopardy violation and forever bars a mur-
der prosecution of state defendants based on its own view that the
state trial judge's response to an admitted evidentiary error at trial
was improper.
Incapacitating state criminal processes in this way is precisely what
Younger sought to avoid. Any disruption of state criminal proceedings
undermines a state's ability to enforce its own criminal laws and thus
fails to show a "proper respect for state functions." Younger, 401 at
44. And federal disruption is most debilitating when an ongoing trial
is cut short; such a mid-course suspension destroys the very purpose
of a trial, to require the state and defense to marshall their evidence
before a jury in the course of one continuous proceeding.
The majority now attempts a belated exercise in damage control,
suggesting that these sorts of disruptions will not happen very often.
The events giving rise to the majority's decision, however, are not out
of the ordinary. Mistrials occur in state courts with some regularity
and for a variety of reasons. The majority's action invites the prema-
ture relitigation of all these decisions in federal court. Its opinion con-
tains no limiting principle other than the general and subjective one
of manifest necessity. That standard, however, was not developed
with the disruption of ongoing trials in mind. It was never envisioned
as a routine exception to the bar on federal equitable intervention in
pending state proceedings. Moreover, even when the state ultimately
wins, the state loses. It has been forced to suspend its own criminal
proceedings while the litigants climb up and down the ladder of the
federal system contesting the manifest necessity standard. This court
has ignored the wisdom of the Younger doctrine. It will surely regret
the immeasurable damage it has done to this constitutional canon of
our federal system.
II.
I will next address the damage to Arizona v. Washington, 434 U.S.
497 (1978).
49
Arizona reaffirmed that the Double Jeopardy Clause is not an abso-
lute bar to reprosecution when a first trial ends in mistrial over the
objection of the defendant. Id. at 505; see also Illinois v. Somerville,
410 U.S. 458, 463-64 (1973); Gori v. United States, 367 U.S. 364,
367-68 (1961); United States v. Perez, 9 Wheat. 579, 580 (1824).
Arizona emphasizes on at least five separate occasions that a trial
court's judgment on the manifest necessity for a mistrial is entitled to
"the highest degree of respect." 434 U.S. at 511, 510-14; see also
Somerville, 410 U.S. at 462; Gori, 367 U.S. at 368; Wade v. Hunter,
336 U.S. 684, 691-92 (1949). The Arizona Court examined the broad
spectrum of reasons that give rise to mistrials, noting that some war-
ranted more scrutiny than others. As in Younger, the principal concern
of the Arizona Court was with prosecutorial overreaching or bad faith.
On the one hand, "the strictest scrutiny" is to be applied "when the
basis for the mistrial is the unavailability of critical prosecution evi-
dence, or when there is reason to believe that the prosecutor is using
the superior resources of the State to harass or to achieve a tactical
advantage over the accused." 434 U.S. at 508 (footnotes omitted). On
the other hand, in a case like Arizona, where the defense attorney
"aired improper and highly prejudicial evidence before the jury," id.
at 515, "the trial judge's determination is entitled to special respect."
Id. at 510. The Court explained in detail why this deference was nec-
essary: "There are compelling institutional considerations militating
in favor of appellate deference to the trial judge's evaluation of the
significance of possible juror bias. He has seen and heard the jurors
during their voir dire examination. He is the judge most familiar with
the evidence and the background of the case on trial. He has listened
to the tone of the argument as it was delivered and has observed the
apparent reaction of the jurors." Id. at 513-14 (footnote omitted). It
concluded: "In short, he is far more `conversant with the factors rele-
vant to the determination' than any reviewing court can possibly be."
Id. at 514 (quoting Wade, 336 U.S. at 689).
The Arizona lesson is completely lost on the court majority. The
majority not only fails to accord deference to the state trial court's
decision. It affirmatively takes its seat on the state trial bench. The
majority makes a series of evidentiary decisions that are quintessen-
tially within the discretion of a state trial judge. First it finds that the
disputed photographs were relevant, largely cumulative, and admissi-
ble. Then it weighs the effect of the photographs on the jury and
50
deems any resulting prejudice insufficient to support a mistrial. Next
it sifts through the admitted and unadmitted photo sets, dismissing the
possibility that the jury could have been confused or misled by the
close-up photographs, even though the jury viewed them without the
benefit of explanatory testimony and even though the unadmitted
photographs appear to depict blood spots that were not evident on the
properly admitted photographs.2
The majority's review of every item of evidence is exacting and
meticulous. It describes twelve photographs, five that were admitted
and the seven that were not, in great detail. For instance, the majori-
ty's abbreviated description of four of the five admitted photographs
is as follows: They were "taken from near Highway 32, the public
roadway in front of the Silvers' mobile home, from the left-hand side
of the mobile home . . . [A]ll of them show the same three pieces of
yellow tape in the foreground -- the closest two pieces are circular
in shape, one to the left and one to the right, and one strand of yellow
tape is behind the two circular pieces and a few feet closer to the
mobile home." The majority applies the same degree of scrutiny to
the unadmitted pictures: "four of [the photographs in Set 1], Exhibits
10, 17, 18 and 19, are close-ups of the three pieces of yellow tape:
Exhibit 10 shows a close-up of the circular piece of tape on the left
of the photographs in Set 2; Exhibit 17 is a close-up of the two circu-
lar pieces of tape shown in the photographs in Set 2; Exhibit 18 is a
close-up of the strand of tape behind the two circles of yellow tape
in the photographs in Set 2; and Exhibit 19 is a photograph of the cir-
cle of tape on the right in the photographs in Set 2. These photographs
show red spots within or near the areas marked with the yellow tape
more clearly than the photographs in Set 2." In addition, the majority
_________________________________________________________________
2 Officer Counts, the majority maintains, provided sufficient authenti-
cation and explanation of the photographs for the jury. The majority's
hindsight judgment, however, conflicts directly with the judge's determi-
nation at trial, namely, that the photographs were "not in evidence, had
not been testified to, [and] had not been identified." While Counts
referred to the photographs to refresh his memory, there is no indication
that the jury ever knew which photographs he relied upon to do so.
Counts' testimony and diagram did provide a general overview of the
crime scene, but this did not explain the significance of and exact loca-
tion depicted in the disputed close-up photographs.
51
dissects -- quoting at length and assessing its meaning -- the testi-
mony of Officer Counts, the witness who used the unadmitted photo-
graphs to refresh his memory about the crime scene, which he then
described for the jury. The state trial, in sum, is rerun in excruciating
detail.
This conscientious review of the evidence in all its detail is the
majority opinion's strength. Ironically, the very elaborateness of its
review reveals a far more fundamental weakness -- namely, the com-
plete transposition of appropriate judicial roles and functions. See
Gilliam, 61 F.3d at 1089 (Luttig, J., dissenting). That a federal habeas
court would be reweighing the minutiae of state evidence in this en
banc proceeding, devoting months of hindsight to a judgment a state
trial court was required to make on the spot, is nothing short of aston-
ishing.
And the lack of deference does not end with the trial court's view
of the matter of evidence. The majority finds further fault with the
trial judge's explanation of his mistrial decision and his consideration
of alternatives to mistrial. Among its complaints, the majority notes
that the trial judge failed to grant defense counsel's request to ask fur-
ther questions of the jurors, refused to determine if the photographs
had been authenticated, refused to rule on the admissibility of the
photographs, failed to exhibit proper sensitivity for double jeopardy
concerns, and "ignored an obvious and adequate alternative to the
grant of a mistrial."
This exacting review of the state court's decision totally eviscerates
Arizona. The majority applies strict scrutiny to a decision which
Arizona emphasizes is "entitled to great deference." 434 U.S. at 514;
see also Gilliam, 61 F.3d at 1084-86 (Niemeyer, J., dissenting). The
trial judge -- who observed the jury, the litigants, and the witnesses
face-to-face -- was in a far better position than this court to assess
the effects of the jury's exposure to unadmitted close-up crime scene
photographs. Arizona, 434 U.S. at 510-16; United States v. Treas-
Wilson, 3 F.3d 1406, 1410 (10th Cir. 1993), cert. denied, 114 S.Ct.
739 (1994) (evidentiary rulings regarding crime scene photographs
rarely disturbed on appeal). The majority's demand that the trial judge
engage in extended debate with defense counsel and articulate reasons
for rejecting alternatives to a mistrial is flatly contrary to the teach-
52
ings of Arizona. There, the Supreme Court found that manifest neces-
sity existed even though the mistrial was not "necessary" in a strict
sense, the trial judge did not make any finding of manifest necessity,
and other trial judges would not have declared a mistrial given the
same factual circumstances. 434 U.S. at 511, 516-17; see also Abdi
v. State of Georgia, 744 F.2d 1500, 1504 (11th Cir. 1984), cert.
denied, 471 U.S. 1006 (1985); Cherry v. Director, State Board of
Corrections, 635 F.2d 414, 418-19 (5th Cir.), cert. denied, 454 U.S.
840 (1981).
Although the majority second-guesses the state trial judge no less
than one dozen times, his mistrial declaration was fully justified. On
the day the trial judge was faced with what he viewed to be a serious
breach of the evidentiary admissions process, he knew that the jury,
"because of the actions of defense counsel," had examined close-up
crime scene photographs that were never offered or admitted into evi-
dence. (Denial of Motion to Dismiss Indictment). The judge also
knew that some of the unadmitted pictures showed tire tracks and oth-
ers showed possible blood spots that were not easily discernable in
the admitted photographs. Because many of the unadmitted pictures
were close-ups, moreover, it was difficult to determine the location of
scenes depicted in the photographs. These photographs were shown
to the jury in the early stages of a trial in which the location of the
parties and the injuries they sustained promised to be sources of con-
troversy -- the defendants evidently intended to raise the defenses of
provocation or self-defense.3
The majority mistakes the trial judge's firm handling of this matter
for precipitate action. The trial judge was obviously concerned that
_________________________________________________________________
3 It is not fair to claim that the unadmitted photographs were merely
cumulative of other evidence or otherwise of little significance. In the
second trial the defense vigorously fought to have these photographs
admitted. Defense counsel also "all but conceded" in argument before a
panel of this court that the photographs were prejudicial to the prosecu-
tion because they supported the defense's theories of self-defense or
provocation. Gilliam, 61 F.3d at 1087 (Luttig, J., dissenting). And in en
banc argument before this court, defense counsel also acknowledged that
the photographs, because they corroborated the defense's theory of the
case, were prejudicial to the prosecution.
53
the jury's exposure to unadmitted photographs of the murder scene
constituted a threat to the integrity of the trial proceedings. See
Gilliam, 61 F.3d at 1085 (Niemeyer, J., dissenting). Forced to resolve
what he termed a "dilemma," the judge invited argument from the liti-
gants because, as he said, he "want[ed] to hear everybody fully on this
issue before I make a decision." Although the defendants claim that
the trial judge failed to consider their arguments, the record reflects
otherwise. Defense counsel contested whether the jurors actually saw
the photographs and suggested that they were properly identified. The
judge considered these assertions but, after he consulted his own "de-
tailed notes" and heard the jury foreman twice confirm that the jurors
had viewed the photographs, he disagreed with the defense.4 It is true
that the judge prevented defense counsel from interrupting the judge's
colloquy with the jury foreman, but this action was hardly unreason-
able. Finally, once the judge knew that the jury had reviewed the
unadmitted photographs, it was within his discretion to conclude that
the available remedies could not retrospectively correct the problem;
recalling a witness or issuing a curative instruction always runs a risk,
as the judge noted, of compounding the difficulty by calling special
attention to the earlier error or distorting the significance of particular
items of evidence.
The trial judge was also rightly concerned that defense counsel was
responsible for the jury's exposure to these photographs. Although
there is no "mechanical formula by which to judge the propriety of
declaring a mistrial," Somerville, 410 U.S. at 462, many courts have
recognized that a variety of defense errors that provoke a mistrial
should not bar a retrial even though the defendant objects to the mis-
trial. United States v. Simonetti, 998 F.2d 39, 42 (1st Cir. 1993)
(defense attorney's conflict of interest in representing defendant cre-
ated manifest necessity for mistrial); Thomas v. Municipal Court of
Antelope Valley J.D., 878 F.2d 285, 290 (9th Cir. 1989) (defendant's
failure to waive conflict of interest created manifest necessity for mis-
trial); United States v. Shaw, 829 F.2d 714, 719-20 (9th Cir. 1987),
_________________________________________________________________
4 The judge asked the jury foreman: "To your knowledge, had all of
those photographs been circulated through the jury?" The foreman
replied, "Yes, sir. To my knowledge they all had." The judge then asked
again whether the jurors had looked at all the photographs, and the fore-
man replied, "Yes, sir. As far as I know."
54
cert. denied, 485 U.S. 1022 (1988) (defense counsel's opening
remarks that potentially provoked juror bias created manifest neces-
sity for mistrial); Abdi, 744 F.2d at 1502-04 (defense counsel's
improper cross-examination of prosecution witness created manifest
necessity for mistrial); United States v. Willis, 647 F.2d 54, 59 (9th
Cir. 1981) (defendant's failure to appear for trial created manifest
necessity for mistrial). The reason for treating defense error that pro-
vokes a mistrial in this manner is clear. In such situations, a trial
judge may understandably be concerned that the defense is seeking
either to gain the benefit of the error, or to provoke the declaration
of a mistrial in the hope of barring reprosecution. See Arizona, 434
U.S. at 512-13.5
Again: the trial judge was faced with nothing less than a threat to
the integrity of trial proceedings. As he said: "The twelve jurors had
seen and touched physical evidence not properly admitted." The
judge's mistrial declaration responded to this breach of the evidenti-
ary admissions process -- a process that ensures a proper foundation
for the introduction of evidence and provides notice to all trial partici-
pants and appellate courts of what is appropriately before the ultimate
trier of fact. And it was defense counsel that compromised the eviden-
tiary process. The judge here sought to do no more than gain control
of his courtroom; a trial judge should not be placed in the position of
having to make a formal finding of attorney bad faith or initiate sanc-
tions or contempt proceedings in order to have his decisions sus-
tained. It was enough for the court not to countenance a trial where
important evidence inexplicably made its way before the jury. It was
sufficient to say what the trial judge said here: it"would be unfair,
unjust and improper" to "reward defendants by granting their Motion
to Dismiss" the second prosecution.
_________________________________________________________________
5 This is not to suggest, categorically, that prosecutorial overreaching
that leads to a mistrial is the only time retrial will be barred. United
States v. Jorn, 400 U.S. 470, 485-86 (1971). But a reviewing court owes
particular deference to a trial court's judgment on the necessity of a mis-
trial caused by defense error. Jorn does not suggest otherwise. There,
defense counsel did not commit the error that led to the judge's sua
sponte declaration of a mistrial, id.; rather, the decision "dealt with action
by a trial judge that can fairly be described as erratic." Somerville, 410
U.S. at 469.
55
It is no wonder that under these circumstances Chief Justice Rehn-
quist, considering the state's stay application as Circuit Justice, deliv-
ered what can only be described as a shot across our bow: "the trial
court's judgment about the necessity [for a mistrial] is entitled to
great deference, never more so than when the judgment is based on
an evaluation of such factors as the admissibility of evidence, any
prejudice caused by the introduction of such evidence, and the court's
familiarity with the jurors." Foster v. Gilliam, 116 S.Ct. 1, 2 (1995)
(Rehnquist, Circuit Justice) (citing Arizona, 434 U.S. at 513-14). With
respect, I suggest that the majority has failed to heed what was plainly
stated in the Arizona decision and plainly reinforced in the prior stay
proceedings in this case.
This decision will reverberate far beyond the circumstances of this
single case. The ability of state judges to declare mistrials in response
to trial errors will be undermined. The strict scrutiny applied to the
trial judge's decision here signals that habeas courts may appropriate
for themselves the discretionary judgments normally reserved to state
trial courts. The predictable result is that state judges will be forced
to tolerate errors in their own proceedings, particularly those caused
by the defense. Arizona itself warned against the dangers of such a
development: "The interest in orderly, impartial procedure would be
impaired if [the trial judge] were deterred from exercising [the power
to declare mistrials] by a concern that any time a reviewing court dis-
agreed with his assessment of the trial situation a retrial would auto-
matically be barred." 434 U.S. at 513. The state trial bench may not
be willing to bear the costs now associated with the declaration of a
mistrial: interruption of state criminal proceedings to permit months
of collateral litigation on the propriety of the mistrial declaration; a
stay of state proceedings; injunction of a state criminal trial; and,
potentially, placing "the accused irrevocably beyond the reach of fur-
ther prosecution." United States v. Tateo, 377 U.S. 463, 466 (1964).
It bears repeating that there is a larger public interest in these proceed-
ings -- "the public's interest in fair trials designed to end in just judg-
ments," Wade, 336 U.S. at 689 -- one which is not served by windfall
dismissals of a murder prosecution due to defense counsel's own mis-
take.
III.
It is no coincidence that Justice Hugo Black was at once a great
advocate of incorporating the guarantees of the Bill of Rights against
56
the states and the author of the Younger v. Harris decision. There is
no contradiction in these dual positions. The state courts are obliged
to respect federal constitutional guarantees, but the federal courts are
equally obliged to respect state trial proceedings. For the reasons
expressed above, I believe the majority has impaired the balance so
essential to the proper functioning of our criminal justice system. It
was this balance that Justice Black referred to as Our Federalism.
I would remand this case to the district court with directions to dis-
miss the petition.
Judge Russell, Judge Widener, Judge Niemeyer, and Judge Luttig
join in this dissent.
NIEMEYER, Circuit Judge, dissenting:
I share Judge Wilkinson's and Judge Luttig's concern that the
majority today "cut Younger at its core," supra at 55, by intervening
in an ongoing criminal trial--where the state's interest in being free
from federal intervention is at its zenith, see infra at 80 n.3 (describ-
ing "debacle that has ensued since our initial intrusion into the affairs
of South Carolina"). As I expressed in my earlier dissent in this case,
the majority's decision is "a bold affront to the principles of comity
and federalism." Gilliam v. Foster, 61 F.3d 1070, 1084 (4th Cir.
1995) (en banc).
As important to my decision to dissent, however, is my belief that
the majority opinion, by mechanically applying judicial formulations,
has distorted the Double Jeopardy Clause's historically recognized
protections. I would hold that absent any indication of prosecutorial
misconduct or judicial overreaching on behalf of the prosecution, the
Double Jeopardy Clause permits the state one complete trial to con-
vict those it accuses of crime. While I agree with Judges Wilkinson
and Luttig that "manifest necessity" existed for the state trial judge's
decision to grant a mistrial, I do not agree with their suggestion that
prejudice, to any extent, is required for finding"manifest necessity."
I
In this case, the state trial judge aborted petitioners' murder trial on
its third day after discovering that the jury had, through defense coun-
57
sel's neglect, viewed several photographs that had been neither
offered nor admitted into evidence. The mistrial was in no way attri-
buted to any prosecutorial misconduct. Because he could not at the
time guess whether either party would offer the photographs into evi-
dence, the trial judge felt compelled to declare a mistrial to ensure a
"fair and proper" trial.
At the threshold of their retrial, however, petitioners moved to dis-
miss the charges against them on double jeopardy grounds. The state
trial judge denied petitioners' motion and the Supreme Court of South
Carolina dismissed their appeal as interlocutory. On petition for the
writ of habeas corpus, the federal district court refused to enjoin peti-
tioners' second trial. But after a divided panel of this court affirmed,
the full court, sitting en banc, directed the district court to grant an
injunction and consider the merits of the habeas petition. See Gilliam,
61 F.3d at 1074. Reversing its field, the district court then granted the
writ. This appeal followed.
Now, on rehearing en banc, the majority have voted to affirm the
district court, concluding that the state trial judge abused his discre-
tion in declaring the mistrial. By affirming the issuance of the habeas
writ, the majority have (1) overruled the trial judge's discretionary
rulings on evidence and the conduct of trial; (2) denied the State of
South Carolina one complete trial of petitioners notwithstanding the
absence of any prosecutorial or judicial misconduct; and (3) ordered
released into the public three individuals accused of murder. I cannot
agree that the Double Jeopardy Clause dictates such unseemly results.
II
The Supreme Court has recognized that the constitutional protec-
tion against being "twice put in jeopardy of life or limb" for "the same
offense," U.S. Const. amend. V, is "rooted in history" and "is not an
evolving concept." Gore v. United States, 357 U.S. 386, 392 (1958).
The Double Jeopardy Clause, as included in the Bill of Rights, was
actually a redraft of James Madison's initial formulation-- "No per-
son shall be subject, except in cases of impeachment, to more than
one punishment or one trial for the same offence . .. ." Sources of Our
Liberties 422 (Richard L. Perry & John C. Cooper eds. 1991). But its
framers intended for the Clause only to declare the law as it stood at
58
the time and to guarantee the protections established by the common
law. See United States v. Jenkins, 490 F.2d 868, 873 (2d Cir. 1973),
aff'd, 420 U.S. 358 (1975); Joseph Story, Commentaries on the Con-
stitution of the United States § 930 (Roland D. Rotunda & John E.
Nowak eds. 1987).
Those common law protections were well known. According to
Blackstone, they emanated from four pleas in bar: autrefois acquit
(former acquittal), autrefois convict (former conviction), autrefois
attaint (former attainder), and pardon. 4 Sir William Blackstone,
Commentaries on the Laws of England §§ 377-81. The Double Jeop-
ardy Clause, therefore, shields defendants from multiple trials and
multiple punishments for the same criminal offense. As a corollary,
however, the state is entitled, absent misconduct by the prosecution
or the trial judge on behalf of the prosecution, to one complete trial,
and if the defendant is convicted, one punishment. Cf. Illinois v.
Somerville, 410 U.S. 458, 463 (1973) ("[t]he interests of the public in
seeing that a criminal prosecution proceed to verdict . . . need not be
forsaken by the formulation or application of rigid[double jeopardy]
rules").
Thus understood, the Double Jeopardy Clause serves its important
purpose: to prevent "the State with all its resources and power [from]
mak[ing] repeated attempts to convict an individual for an alleged
offense, thereby subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continued state of anxiety and insecu-
rity, as well as enhancing the possibility that even though innocent he
may be found guilty." United States v. DiFrancesco, 449 U.S. 117,
127-28 (1980) (quoting Green v. United States, 355 U.S. 184, 187-88
(1957)). But where defense counsel neglect precipitates a mistrial and
there is no suggestion of prosecutorial misconduct or judicial over-
reaching in support of the prosecution's effort to convict, the concerns
that underlie the Double Jeopardy Clause are not triggered.
Unfortunately, without finding any such prosecutorial or judicial
misconduct in this case, the majority deny the South Carolina prose-
cutors even one complete trial to bring petitioners to justice. They do
so by rigidly applying the "manifest necessity" principle and over-
looking that principle's limitations. See United States v. Perez, 22
U.S. (9 Wheat.) 579, 580 (1824). In Perez, the defendant was sub-
59
jected to a jury trial, but the jury was unable to agree on a verdict. In
holding that the Double Jeopardy Clause did not bar a retrial, Justice
Story stated, "[t]he prisoner has not been convicted or acquitted, and
may again be put upon his defence." Id. He explained that courts may
discharge juries from rendering verdicts when there is a "manifest
necessity" for doing so "or the ends of public justice would otherwise
be defeated." Id. And in allowing the defendant to be retried, the
Perez Court deferred to the "sound discretion" of the trial judge. Id.
Yielding to trial judges' discretion in determining when "manifest
necessity" exists remains the double jeopardy jurisprudence. See
Arizona v. Washington, 434 U.S. 497, 514 (1978).
III
There is no allegation of misconduct by the prosecution or trial
judge in the case sub judice. Indeed, defense counsel was responsible
for creating the situation that caused the state judge to declare a mis-
trial in the interest of ensuring a "fair and proper" trial. Like a repro-
secution after a hung jury, petitioners' retrial here would not implicate
the interests that the Double Jeopardy Clause was historically
designed to secure. I conclude, therefore, that the public interest
demands and the Double Jeopardy Clause permits one complete trial
for these three petitioners charged with murder.
I am authorized to say that Judge Widener joins in this opinion.
LUTTIG, Circuit Judge, dissenting:
The Chief Justice, in denying the State's belated stay application
filed in August, admonished our court in language whose import is
unmistakable, that under Arizona v. Washington, 434 U.S. 497
(1978), a trial court's determination of manifest necessity is never
entitled to greater deference than where, as in this case, "the judgment
is based on an evaluation of such factors as the admissibility of evi-
dence, any prejudice caused by the introduction of such evidence, and
the trial court's familiarity with the jurors." Foster v. Gilliam, 116 S.
Ct. 1, 2 (1995) (Rehnquist, Circuit Justice). This admonition, of
course, was merely a reaffirmation of Justice Stevens' observation on
behalf of the full Court in Arizona, 434 U.S. at 513-14 & n.33 (1978)
60
(quoting Wade v. Hunter, 336 U.S. 684, 687 (1949) (emphasis
added)), that,
[t]here are compelling institutional considerations militating
in favor of appellate deference to the trial judge's evaluation
of the significance of possible juror bias. He has seen and
heard the jurors during their voir dire examination. He is the
judge most familiar with the evidence and the background
of the case on trial. He has listened to the tone of the argu-
ment as it was delivered and has observed the apparent reac-
tion of the jurors. In short, he is far more `conversant with
the factors relevant to the determination' than any reviewing
court possibly can be.
...
These considerations must be at least as weighty where a
federal court, in considering a state prisoner's collateral
challenge to his conviction on the ground that it violated the
Double Jeopardy Clause, reviews the determination of a
state trial judge as to juror bias.
See Foster v. Gilliam, 116 S. Ct. at 2 (citing Arizona, 434 U.S. at 513-
14).1 In confident disregard of the Chief Justice and the Court --
indeed, without even a mention of the Chief Justice's admonition --
the majority today completes the wholesale substitution of its judg-
ment for that of the state trial judge, on what the Chief Justice point-
edly explained is the quintessential discretionary matter of whether
the jury was potentially prejudiced by viewing the unadmitted crime
scene photographs placed before it by defense counsel.
I.
The majority, as an appellate court in habeas, has literally sat down
with some 26 individual photographs of the crime scene, compared
_________________________________________________________________
1 As Justice Marshall explained in Holtzman v. Schlesinger, 414 U.S.
1304, 1313 (1973), when a single Justice sits in his capacity as a Circuit
Justice, he does not act alone, but rather "as a surrogate for the entire
Court, from whence [his] ultimate authority . . . derives."
61
them one with another, and without any familiarity with the evidence
in the case, any understanding of the jurors, or any knowledge of
either the prosecutorial or defense trial strategies, found as a matter
of fact that the unadmitted photographs seen by the jury were not
unduly prejudicial. This, despite a contrary finding by both the state
trial judge, who knew the jury and the evidence, and the federal dis-
trict court (before it was instructed by the en banc court to find
otherwise),2 and despite the express and repeated concession of preju-
dice even by defense counsel. The extent to which the majority has
completely usurped the role of the state trial court, see Arizona, 434
U.S. at 513-14, is apparent throughout its opinion, but perhaps is
_________________________________________________________________
2 The district court had no choice but to abandon its firmly-held views
in light of our first en banc opinion, which reads as an undisguised man-
date to the district court to reach the conclusions that the en banc major-
ity had reached on appeal:
It cannot be seriously disputed that the ongoing state criminal
proceedings violate Petitioner's constitutional right not to be
placed twice in jeopardy for the same offense. . . . The undis-
puted facts demonstrate that the state trial judge acted without
any rational justification in granting a mistrial. .. . [T]he federal-
ism concerns expressed in Younger v. Harris . . . do not counsel
against the grant of relief under these circumstances.
Gilliam v. Foster, 61 F.3d 1070, 1074 (4th Cir. 1995) (en banc).
Prior to our first en banc opinion, the federal district court had con-
cluded that,
the disputed photographs were more important than might first
appear. . . . [I]ssues of provocation and self-defense are present
in this case. One factor that is important in resolving these issues
is whether one of the Defendants was on the decedent's property
or on the public roadway at the time he fired his weapon. The
disputed photographs are close up photographs of the ground
which show blood stains. Because of this, they could be used to
more clearly document where the shooting occurred.
...
[T]he court . . . concludes that the Petitioners have virtually no
likelihood of success on the merits of their double jeopardy claim
....
J.A. at 211, 213 (emphasis added).
62
illustrated best in the following passages, which constitute the essen-
tial reasoning underlying its finding that no prejudice arose by virtue
of the jury having seen the unadmitted crime scene photographs:
The photographs referred to as Set 2 included Exhibits 8, 12,
13, 14, and 16. The photographs referred to as Set 1--
Exhibits 9, 10, 11, 15, 17, 18, and 19 -- were not offered
into evidence.
A description of these photographs and a comparison of the
photographs included in Set 1 vis-a-vis those in Set 2 is
instructive. The photographs in Set 2, with the exception of
Exhibit 16, are identical in every material aspect and show
the area outside the Silvers' mobile home. Each of these
photographs was taken from near Highway 32, the public
roadway in front of the Silvers' mobile home, from the left-
hand side of the mobile home and looking down the drive-
way toward it. The mobile home and the adjacent yard and
driveway are shown in the background of these photo-
graphs, and all of them show the same three pieces of yel-
low tape in the foreground -- the closest two pieces are
circular in shape, one to the left and one to the right, and one
strand of yellow tape is behind the two circular pieces and
a few feet closer to the mobile home. The remaining photo-
graph in Set 2, Exhibit 16, shows the same location, but
reveals only the circular piece of tape to the right and one-
half of the circular piece to the left.
...
Of the seven photographs in Set 1, four of them, Exhibits
10, 17, 18, and 19, are close-ups of the three pieces of yel-
low tape: Exhibit 10 shows a close-up of the circular piece
of tape on the left of the photographs in Set 2; Exhibit 17
is a close-up of the two circular pieces of tape shown in pho-
tographs in Set 2; Exhibit 18 is a close-up of the strand of
tape behind the two circles of yellow tape in the photo-
graphs in Set 2; and Exhibit 19 is a photograph of the circle
of tape on the right in the photographs in Set 2. These pho-
tographs show red spots within or near the areas marked
63
with the yellow tape more clearly than the photographs in
Set 2. Exhibit 15 is virtually identical to those in Set 2, taken
from the same camera angle and depicting all three pieces
of yellow tape. The two remaining photographs in Set 1,
Exhibits 9 and 11, reveal the same three pieces of tape, but
were taken from approximately the opposite location from
those in Set 2; in other words, they are taken from near the
mobile home facing up the driveway and toward Highway
32. These latter two photographs depict more clearly the
same tire tracks shown in the photographs in Set 2.
...
. . . [T]here was no possibility that the jury could have been
confused by seeing the photographs in Set 1 prior to having
heard [Officer Counts'] testimony. Officer Counts had testi-
fied that yellow tape marked the three areas on the ground
outside the Silvers' mobile home where what appeared to be
blood was located. In addition, he had testified that these
areas were located to the left of the mobile home and just
beside the roadway, and he had marked the location of these
areas on an overlay of a diagram of the crime scene pre-
pared by the prosecution. Further, he testified that all of the
photographs (Sets 1 and 2) showed the same scene but from
different angles. Given this testimony, it strains credibility
to suggest that the Set 1 photographs could have misled the
jury into believing that there were a greater number of areas
where blood was located or that the blood was discovered
in a location other than the one indicated by Officer Counts.
...
. . . [T]here is simply no rational argument that viewing the
photographs in Set 1 somehow improperly biased the jury.
...
...
. . . [T]he photographs in Set 1 could not have adversely
affected the impartiality of the jury; and in light of Officer
64
Counts' testimony, the Set 1 photographs did not present
any realistic potential for juror confusion.
Ante at 7-8, 27-28, 35. From these passages, the substance and detail
of which do not appear in any state or federal opinion other than ours,
it is evident that the majority's utter disregard of Arizona (and
Younger v. Harris, 401 U.S. 37 (1971)), is no different from the Ninth
Circuit's disregard of United States v. Perez, 22 U.S. (9 Wheat.) 579
(1824), in United States v. Sanford, 536 F.2d 871 (9th Cir.), rev'd per
curiam, 429 U.S. 14 (1976). And the ultimate disposition of this mat-
ter should be no different. The majority's error under Arizona and
Younger is plain, and full review will reveal nothing more about the
unadmitted photographs at issue and their potential to prejudice the
jury than we know now. As in Arizona, the conclusion is inescapable
-- that only the trial court could possibly assess the potential impact
of these photographs on the jury that sat in Newberry, South Carolina.
Additionally, it would be difficult to imagine a case wherein the dis-
ruption to the state proceedings caused by a federal appellate court
could be any greater.3
_________________________________________________________________
3 In the debacle that has ensued since our initial intrusion into the
affairs of South Carolina, the original state trial judge recused himself
because he was named as a defendant in this matter, and the second state
trial judge was forced to halt the trial four days into it -- literally while
a witness was on the stand. The chaos that we have created is exempli-
fied in the revealing exchange before the district court that follows:
THE COURT: Can you hold one second. I'm sorry. Let me say
that during the last break I was faxed a new copy of an opinion
by the Fourth Circuit. I don't want to give anybody heart attacks.
A three/four dissenting opinion written by three other minority
members of the court. Three other separate opinions. I didn't
know if you seen them.
THE STATE: No, sir.
THE COURT: I will have them copied for you so you will
have them. Go ahead. This is the first time I ever had the Fourth
Circuit law being made as we progressed.
DEFENSE COUNSEL: I think this is a first for all of us,
judge.
J.A. at 432-33 (emphasis added).
65
II.
There are only two assertions in the entire majority opinion that,
if they were not demonstrably wrong, might at least suggest that the
disposition of this case is not directly controlled by Arizona.4
A.
First, the majority states repeatedly that the trial court acted "pre-
cipitately," making no findings that would possibly support a mistrial:
_________________________________________________________________
4 None of the majority's other asserted bases for invalidating the trial
court's judgment even remotely supports the majority's conclusion that
the trial court abused its discretion. First, that Officer Counts had already
laid an adequate foundation for admission of the unadmitted photo-
graphs, see ante at 26-27, 33, even if true, is irrelevant to the question
of potential jury prejudice. Even assuming that a foundation already
existed, the fact remains that Officer Counts' testimony was easily sub-
ject to impeachment based upon the Set 2 photographs alone; thus, as
defense counsel has consistently argued, the Set 1 photographs were
essential corroboration of Counts' testimony. To invoke the adage, the
pictures were worth a thousand of Officer Counts' words. Second, that
the prosecution originally said, "no objection" when it mistakenly
thought the unadmitted photographs were being offered into evidence,
see ante at 5 n.4, is of no moment, as the majority itself seems to
acknowledge, because the prosecution immediately thereafter withdrew
that statement as "premature." J.A. at 60-61. Third, that the trial judge
chose not to inquire further whether the jury had seen the unadmitted
photographs in particular, after he had already recalled the jury foreman
and been told that "all" of the photographs (including the unadmitted
ones) had been "circulated through the jury," see J.A. at 38, 92-94, and
confirmed this fact with the court reporter, J.A. at 93, was by no means
irrational. Fourth, that the motion for mistrial may have been invited by
the trial court, see ante at 28-29, is not supported by the record and is
denied by defense counsel, J.A. at 87, 304; regardless, it is irrelevant
because, as the federal district court observed, even if the mistrial was
invited, "the standard for judging the grant of mistrial remains the same."
J.A. at 498. And fifth, the fact that an error might not result in reversal
of a conviction, see ante at 30-31, 35, is plainly not dispositive of
whether that error was sufficiently prejudicial to support a mistrial.
66
At no point did the state trial judge indicate that double
jeopardy concerns were implicated by the grant of a mistrial.
And, neither [did] the state trial judge indicate[] that the
photographs were in any way prejudicial to the prosecution
or the defense.
The state trial judge did not make a finding of manifest
necessity or a finding of prejudice. Indeed, he did not use
the word "prejudice" during this proceeding. Further, the
state trial judge gave no hint of what prejudice might possi-
bly exist such that a reviewing court could conclude that
prejudice resulted from the jury's viewing the photographs
in Set 1.
...
The state trial judge . . . made no finding that the impartial-
ity of the jury had been, or may have been, affected by
viewing the photographs in dispute.
Ante at 10 & n.6, 35. This assertion is possible only through artifi-
cially focusing upon the trial court's colloquy with counsel when the
mistrial was granted, to the complete exclusion of the trial court's
extensive explanation of the reasons it granted the mistrial, which
appear in its subsequent opinion and order denying Defendants'
Motion to Dismiss. See J.A. at 35-41.5
_________________________________________________________________
5 See Grand Jury Proceedings Under Seal v. United States, 947 F.2d
1188, 1190 (4th Cir. 1991) (cited by the federal habeas court, J.A. at
491, as support for its authority to issue a subsequent written opinion
explaining the reasons for its earlier grant of the writ of habeas corpus).
Cf. Arizona 434 U.S. at 517 n.39 ("The Court of Appeals was concerned
that the trial judge may [not] have . . . consider[ed] the possible impact
of [the improper] comments on the impartiality of the jurors. We think
this concern is unwarranted. . . . We are unwilling to assume that a judge,
who otherwise acted responsibly and deliberately, simply neglected to
consider one of the central issues presented by the mistrial motion and
argued by the parties when he made his ruling.").
67
In that opinion and order, which I include as an appendix because
it reflects the seriousness and thoroughness with which the mistrial
motion was addressed, the trial court explained what the majority
concedes was the court's reasoning at the time it granted the mistrial,
see ante at 34 n.25, that it had been "grave[ly]" concerned about
the "prejudicial occurrence" of the jury having reviewed unadmitted
photographs of the murder scene. Id. at 30-31. The court identified the
problem that it had confronted when it learned of this occurrence,
namely, that it could not foresee whether the photographs, even if
ultimately offered into evidence, would have been admitted under
Fed. R. Evid. 403. J.A. at 36.6 It then reminded the parties that the
court had been so concerned that it had "brought [the dilemma] to the
attention of the litigants for a hearing as to how best then to proceed,"
and "allowed all counsel in th[e] matter `full opportunity to explain
their positions.'" Id. at 37-38. The court outlined the steps that it had
taken to ensure that the jury had in fact reviewed the unadmitted
crime scene photographs, including interrogating the jury foreman
and the court reporter in open court. Id. at 37-38. And it emphasized
that it had considered, as an alternative to a mistrial, a curative
instruction, but concluded that such an instruction "would simply
highlight and compound the error already existent." Id. at 38. As the
court observed, "[t]his was not merely an opening statement by an
adversary that could have been cured by any instruction of th[e]
court." Id. at 39-40.
The court then noted that, although an explicit finding of manifest
necessity is not required under Arizona, in the court's view an "im-
plicit finding of manifest necessity exist[ed]" in the court's expression
of grave concern over the "origin of the prejudice as well as the extent
of the publication [of the unadmitted photographs] to the jury." Id. at
39. Finally, the court pointed out that more than just "manifest neces-
sity" had justified the mistrial, because to have granted the defen-
dants' motion to dismiss would have been to "reward" them for their
own negligent action in allowing the photographs to be seen by the
jury. Id. at 40. In language that captures perfectly the rationale under-
lying the "special respect" that the Supreme Court has said must be
accorded the trial courts in determinations such as these, the court
_________________________________________________________________
6 The State of South Carolina adopted Fed. R. Evid. 403 in State v.
Alexander, 401 S.E.2d 146, 149 (S.C. 1991).
68
concluded by saying that it would not "second guess" what "it [had]
observed, heard and felt at the time of its . . . ruling." Id. at 40-41.
The majority's holding notwithstanding, ante at 32-34, this deliber-
ate consideration by the trial court, which again, as the majority con-
cedes, ante at 34 n.25, mirrors the deliberate consideration by the
trial court at the time the mistrial was granted, is not even arguably
"precipitous," "irrational," or "irresponsible," see Arizona, 434 U.S. at
514.
B.
The majority's second assertion is that the State's only argument
of prejudice is that the Set 1 photographs had not been formally
admitted and properly authenticated. See ante at 24-28, 24 n.19.
Like its first assertion, this, too, is flatly wrong. The State does argue
that the unadmitted photographs were not properly authenticated, but
that is not its only, or even its principal, argument. The State has
explained throughout these proceedings that the unadmitted photo-
graphs differed from the admitted photographs and prejudiced the
State in two significant ways.7
First, the unadmitted photographs are the only close-ups of the
scene and the only photographs from which it is possible to discern
the presence of blood or a blood-like substance. 8 And, as both parties
_________________________________________________________________
7 To support the claim that the government conceded that the photo-
graphs had no "prejudicial" effect, the majority relies upon a statement
by the prosecution made during argument before the panel on whether
to stay the state court's order of retrial pending a further hearing before
the federal district court. See ante at 14. But the majority omits the prose-
cution's later clarification during that argument in response to a follow-
up question, that, by "prejudice," the prosecution meant "inflammatory";
thus, the prosecution explained that the photographs are not like "autopsy
photographs," in that they were not likely to inflame the passions of the
jury. The prosecution did not concede that their submission to the jury
was not prejudicial, but rather, argued that they were "inherently prejudi-
cial." Transcript of Oral Argument, July 15, 1995, at 49-50.
8 It is now known that a serological test had been performed on the
dots. The test confirmed that the dots were human blood, but no determi-
69
concede, the presence or absence of blood at this precise location is
central to the case, given the defenses of provocation and self-
defense. The defense counsel candidly admitted that it was for this
reason that the photographs were important to the defense. Second,
the State has consistently maintained that the unadmitted photographs
show more clearly than the admitted photographs the tire tracks that
are believed to have been made by Gilliam's truck, thus confirming
whether the truck was on or off decedent's property at the time of the
crime.
At oral argument before the panel on the original motion to stay the
state trial, the State argued as follows:
THE STATE: When I look at the [admitted] photographs,
I do not see the stain [that appears to be blood-- the unad-
mitted photographs did show this stain].
...
THE STATE: The presence of the stains might be relevant
to the case because it would reveal the -- who shot first and
where they shot, to the extent that Mr. Gilliam was injured
at the scene and shooting from the victim's area. Where he
was bleeding and where blood would be located and the
amount of blood would be located would assist in making
a determination whether Mr. Gilliam had a duty to retreat,
to act in self-defense, join in the self-defense of Mr. Swain's
action. He may have been coming to his defense. And
whether the . . . victim was securing his property, whether
he had the ability to defend his habitat at the time from
_________________________________________________________________
nation was made as to whose blood it was, a failing that could be signifi-
cant in light of the testimony that another violent incident had occurred
at the same location between two other people earlier that same day, J.A.
at 622-23. The prosecution has represented to us that it did not know at
the time that any such test had been performed. Most important, though,
neither party disputes that the state trial judge did not know of the test.
Of course, it is only the trial court's state of knowledge concerning the
dots that is relevant to the question of whether it acted precipitously.
70
intruders. Those are both factual questions that the jury may
have been presented with . . . .
...
THE STATE: . . . You see the rust area . . . in the [admit-
ted] photographs, but the red spots [that appear to be blood]
do not appear to show up in any of the other photographs
from my study of the photographs.
Transcript of Oral Argument, July 15, 1995, at 9-10, 51.
Similarly, in its brief before the en banc court on the merits, the
State argued,
[a] review of the photographs reveals the existence of vari-
ous "red dots." The Petitioners now concede that whether
the blurs represented blood was a critical fact, although the
testimony of Officer Counts was essentially that he lacked
the knowledge or expertise to state that the "dots" were
blood. Although the defense concedes that at the time of the
trial it had not subjected the photographs to such a test, it
still asserts that it was relevant as representing Gilliam's
blood. Under the evidence presented at the time of the trial,
the location of Gilliam at the time of the shooting was in
dispute with some witnesses placing him in the yard of the
deceased and others placing him on the roadway. Similarly
the questioned photographs showing tire tracks not repre-
sented in the admitted photographs touched uniquely (and
possibly confusingly) on the location of [Gilliam's] truck.
Appellants Br. at 34-35 (footnote omitted). And, at oral argument
before the en banc court, the prosecution again explained the preju-
dice that resulted from the jury seeing the unadmitted photographs:
THE STATE: . . . [Defense] [c]ounsel Price in the testi-
mony before the State, in the habeas corpus hearing, testi-
fied that these photographs could lead to jury confusion.
Betty Strom, the prosecutor, testified that they could lead to
71
jury confusion because they reveal the red dots which are
not revealed in the admitted photographs.
...
THE COURT: What is the taint now?
THE STATE: The taint was that the jury got information
that had never been revealed to them.
...
THE COURT: The photographs were little different, were
they not?
THE STATE: Yes, sir. They were very different.
Transcript of Oral Argument, September 26, 1995.
If there were any doubt about the potential prejudice of the unad-
mitted photographs, defense counsels' repeated, candid concessions
lay it to rest; in fact, throughout these proceedings, the defense has
quite articulately described the prejudice to the State. At the hearing
before the federal district court, defense counsel testified as follows:
A. [Defense counsel] The question is what is useful
about the unadmitted photographs which was helpful to the
defense, is that it?
Q. [The State, cross-examining] Yes, sir.
A. [Defense counsel] . . . [P]art of photo set one [the
unadmitted photographs] is a close-up that shows a red sub-
stance that would appear to be blood.
Q. [The State] And it shows a number of spots, as you
already conceded, that is not evident in any other photo-
graphs which were introduced; is that correct?
72
A. [Defense counsel] There are some red spots that are
hard to see in admitted exhibit 12 of photo 2. . . . Clearly
they are easier to see in the unadmitted number 10.
...
Q. [The State] If you didn't know [that the blood] was
there . . . ?
A. [Defense counsel] It would be difficult to see the
blood. . . .
...
A. [Defense counsel] I spent a lot of time with these get-
ting ready for this trial. It could be argued that a jury would
be confused if we had both sets. It could be argued that they
would be confused if they had only one set.
...
Q. [The State] Why would [unadmitted] defendant's
exhibit 9 be of use to the defense in this case?
A. [Defense counsel] Well, it would show for the pur-
poses of the defense that there were tire tracks and why
weren't they analyzed for purposes of argument.
...
A. [Defense counsel] [Unadmitted exhibit 15 would be
relevant because] [i]t would depict the area of the driveway
where the mud puddle is. There had been earlier testimony
as to how close this truck had driven up to the trailer. We
can see these two trees that become landmarks in the testi-
mony in the development of the crime scene.
Q. [The State] Why would that have been useful in the
defense in this case . . . ?
73
A. [Defense counsel] The state's position was that the
defendants had been on the property of the decedent and it
was necessary to show exactly where the truck had parked.
The way that was to be done was the blood that was coming
from defendant Gilliam would be located in the area where
he got in the truck.
...
A. [Defense counsel] . . . [T]he location of the truck is
relevant. My client was standing behind the truck. She got
into the truck when the parties fled the scene.
...
Q. [The State] . . . [Y]our statements about [unadmitted]
exhibits 17, 18 and 19 are that they reveal the blood drop-
pings that are not represented or evident in the other photo-
graphs; is that correct?
A. [Defense counsel] It shows them clearer and more
precise than in the others.
...
A. [Defense counsel] There are some admitted photo-
graphs that it would be very difficult to see the red dots
within the circle of the yellow tape, yes.
...
Q. [The State] Then you concede that the blood like sub-
stance, if it was able to be seen from any of the photographs
was only able to be seen in the admitted photographs in one
photograph; is that correct?
A. [Defense counsel] On the copies that I am looking at,
I have trouble finding it in other than one.
J.A. at 324-34.
74
Likewise, at oral argument before the en banc court, defense coun-
sel explained:
THE COURT: Then tell me how the introduction of those
photographs were intended by you to influence the jury to
acquit your defendants.
DEFENSE COUNSEL: Those photographs were to cor-
roborate the testimony of [Officer Counts] when he came
down here and drew on this diagram in front of the jury and
showed them where the blood was found. That's relevant as
to where Mr. Gilliam was when he was shot.
...
THE COURT: Without the corroboration, your case was
not as strong. The degree to which, we don't need to decide.
It was not as strong.
DEFENSE COUNSEL: Certainly, the corroboration
strengthens our case.
THE COURT: And thereby prejudices to some extent the
government's case.
...
DEFENSE COUNSEL: If you're using prejudice in the
sense of does it support one side or the other.
THE COURT: Well, of course.
DEFENSE COUNSEL: Then all evidence is prejudicial to
either side and in that sense I would say "yes, it was prejudi-
cial," just as the photographs in sets two and three were. Just
as all the evidence that the state introduced against us theo-
retically prejudiced our case.
Transcript of Oral Argument, September 26, 1995.
75
Indeed, in my view, no one examining the unadmitted Set 1 photo-
graphs and the admitted Set 2 photographs could fail to appreciate the
enormous significance (or, at the very least, the enormous potential
significance) of the Set 1 photographs, given that the precise location
of Gilliam's truck and of Gilliam himself when he was shot in the
foot by the decedent are central to, if not dispositive of, the defen-
dants' guilt. As the defense concedes, the Set 1 photographs all but
confirm the existence of tire tracks at the location, whereas it is diffi-
cult (if not impossible) to confirm from the Set 2 photographs that the
same markings are in fact tire tracks. Most important, the Set 1 photo-
graphs all but confirm the presence of a significant amount of blood
(or a blood-like substance) at the location depicted in the photo-
graphs, whereas it is virtually impossible to infer even the presence
of blood, much less a large quantity of blood, from the Set 2 photo-
graphs. In sum, the Set 1 photographs are not "just" close-ups of the
same area depicted in the Set 2 photographs, as the majority would
have one believe; they are the only photographs that depict the infor-
mation that both parties agree is absolutely critical to the case.
Even the federal district court that granted the writ of habeas
corpus that we are now reviewing specifically found that, although
the photographs were not "unfairly prejudicial," they "may have been
`prejudicial' to the State in the sense that they may have supported the
Defendants' defenses of self-defense or provocation." J.A. at 505. As
that court explained when it initially denied the writ, and before we
effectively directed it to hold otherwise,
it is now apparent that the disputed photographs were more
important than might first appear. From the argument of
counsel at the hearing, the court was able to determine that
the murder victim in this case had himself fired shots at one
of the Defendants shortly before or contemporaneously with
the shot by which he was killed. Therefore, issues of provo-
cation and self-defense are present in this case. One factor
that is important in resolving these issues is whether one of
the Defendants was on the decedent's property or on the
public roadway at the time he fired his weapon. The dis-
puted photographs are close up photographs of the ground
76
which show blood stains. Because of this, they could be
used to more clearly document where the shooting occurred.
J.A. at 211; see also supra note 2.
Tellingly, even the majority must acknowledge the potential preju-
dice that inhered in the unadmitted photographs: "These photographs
. . . were relevant [and] material. . . . These photographs show red
spots within the areas marked with the yellow tape more clearly than
the photographs in Set 2. . . . [The Set 1] . . . photographs [also] depict
more clearly the same tire tracks shown in the photographs in Set 2."
Ante at 2, 8. Under Arizona, this concession of prejudice is all but
dispositive. For Arizona did not turn, as the majority mistakenly
believes, see ante at 21, 24, 28, on the fact that the improper argu-
ment was "highly prejudicial," as the Court characterized it at one
point, see 434 U.S. at 515. Rather, Arizona turned on whether the
error gave rise to "possible juror bias," see id. at 512; see also id. at
502 n.10 (implying that "the probability of juror prejudice" is the rele-
vant inquiry, not the "certainty of prejudice"); id. at 509 ("significant
risk that a verdict may result from pressures"); id. at 511 ("may have
affected") ("possible bias") ("likelihood that the impartiality . . . may
have been affected"); id. at 512 ("possibility of bias") ("it is possible")
("perhaps") ("possibility of bias") ("tends to frustrate") ("create a
risk"); id. at 513 ("risk of bias") ("possible juror bias").
Because the majority concedes prejudice, and thus a fortiori the
possibility of jury bias, the only way it can avoid the conclusion that
the trial court unquestionably acted within its discretion is by holding
(as it does) that the state trial judge acted "irrationally" in not attempt-
ing to cure that prejudice. Ante at 32-34. In order to so hold, the
majority creates out of whole cloth a distinction of per se legal signif-
icance between prejudice and "unfair" or "undue" prejudice (which it
presumably imports from Fed. R. Evid. 403), ante at 12, 13, 16,
22, 23, 23 n.18, and then finds that the prejudice in this case was
not "unfair" because the photographs, in its opinion, would have been
admissible, ante at 2, 13-14, 22-28, 29-30, 32, 35-36.9 Of course,
_________________________________________________________________
9 The majority's conclusion that the photographs would have been
admissible in the state trial is based in large part upon the forced specula-
77
whether or not, as a technical matter, the photographs would have
been admissible or admitted, is ultimately irrelevant.10
The relevant question is not whether the photographs would have
been admissible, but rather, whether it was an abuse of discretion for
the state trial court to decline to formally consider their admission
after they had already been seen by the jury. Most assuredly, it was
not.
The trial court had at least four obvious and sound reasons for
declining to attempt this cure. First, the court was confronted with the
distinct possibility that the jury had already formed impressions, if not
drawn conclusions, from the photographs -- not about some ancillary
issue of little consequence, but about the critical issues of the precise
_________________________________________________________________
tion by the prosecution that, if the State had not objected to their admis-
sion, the photographs would have been admissible. Ante at 13-14, 22-23,
35-36. However, as the state trial judge understood, J.A. 36-37, 93-94,
admissibility of the photographs is irrelevant to the question of whether
the trial judge abused his broad discretion. The only possibly relevant
inquiry would be whether the photographs would have been actually
admitted. Neither party is in a position to know, much less to "concede,"
this. The ultimate determination of whether particular evidence will be
admitted rests with the trial judge and must be made with knowledge of
how the trial has unfolded and how the evidence is to be used at the
moment when it is offered.
10 In any event, that the Supreme Court in Arizona assumed from the
inadmissibility of the statement there in question both that the statement
was improper and that it may have affected the jury's impartiality, 434
U.S. at 511, does not mean, contrary to the majority's belief, ante at 22-
23, 28, that if evidence is admissible, then ipso facto it could not
affect the impartiality of the jury. The only error alleged in Arizona was
that the statement was inadmissible as a matter of law, see 434 U.S. at
499-500; respondent's argument in defense of the statement was that the
evidence "was admissible as a matter of Arizona law, and therefore that
the opening statement was proper." Id. at 511. Here, in contrast, there
was a more fundamental and antecedent error -- that the entire process
by which evidence is allowed before the jury was corrupted, depriving
the court of the opportunity even to consider the admissibility of the evi-
dence at the appropriate time.
78
locations where defendant Gilliam was shot and where his truck was
parked. Given this distinct possibility, it was reasonable to decide that
subsequent foundation testimony (itself an oxymoron) could not cor-
rect those unguided impressions, any more than a curative instruction
could. Second, for reasons that will never be known, the defense
apparently had made the tactical decision not to introduce the Set 1
photographs during Officer Counts' testimony, and the prosecution
had no doubt relied upon that choice. Aware that the timing of the
admission of evidence is critical to the force of that evidence, it was
reasonable for the trial court to determine that it was an unacceptable
alternative to require the admission of the photographs at a time when
the defense had not intended to introduce them, and thereby to require
the prosecution to respond to the photographs at a time when it would
not otherwise have been required to respond. Third, it was reasonable
for the trial court to conclude that recalling Officer Counts and con-
sidering the admission of the photographs after they had already been
seen by the jury would only have highlighted their importance,
increasing the potential for prejudice. J.A. at 36-37, 39-40, 93-94. But
see ante at 33-34, 33 n.19, 35. And fourth, it was clearly within the
trial court's discretion to conclude that defense counsel's unautho-
rized placement of these crime scene photographs before the jury,
together with the earlier incident of possible defense misconduct, see
discussion infra at 83 & n.14, had so far stripped the proceeding
of any semblance of fairness that any attempted cure would have been
meaningless.
For these reasons, the state trial court was no more required to
attempt to cure the error by recalling Officer Counts and then ruling
on the admissibility of the photographs (even though the majority
might have done so if it were hearing the case), than the trial court
in Arizona was required to give a curative instruction (even though
other trial judges might have done so if they were hearing the case).
434 U.S. at 511.
III.
Once the majority's two misconceptions about the trial court and
the prosecution are corrected, it is apparent that this case is squarely
controlled by Arizona and that the ultimate disposition of the case
should be a straightforward, unexceptionable application of that deci-
79
sion; indeed, the case for not disturbing the trial court is even stronger
here.
In Arizona, there was no allegation of prosecutorial misconduct.
Here, too, there was no such allegation, and in fact, the federal district
court expressly found that there was no prosecutorial misconduct
whatsoever, J.A. at 498, a fact that the majority ignores altogether.
In Arizona, the trial error was caused by defense counsel. 434 U.S.
at 510. Here, too, and also ignored by the majority, defense counsel
caused the error -- as the defense concedes and the state trial court
expressly found. J.A. at 36, 89, 497.
In Arizona, the improper argument "may have affected the impar-
tiality of the jury." 434 U.S. at 511 (emphasis added). Here, too, the
unadmitted crime scene photographs at the very least"may have
affected" the jury's impartiality. See J.A. at 38.
In Arizona, the improper argument "create[d] a risk, often not pres-
ent in the individual juror bias situation, that the entire panel may
[have been] tainted." 434 U.S. at 512. Here, too, because the crime
scene photographs were given to the entire jury, the risk was that the
entire panel became biased by the photographs. J.A. at 38, 94.
In Arizona, the trial court heard argument from both sides before
granting the mistrial. 434 U.S. at 515-16. Here, too, the trial court "al-
lowed all counsel in this matter `full opportunity to explain their
positions.'"11 J.A. at 38.
_________________________________________________________________
11 In Arizona, the trial court delayed granting the mistrial for a day to
allow defense counsel the extra time it had requested to conduct legal
research on the mistrial, 434 U.S. at 514 n.34. Here, "[a]t no time did any
counsel for the defendants ask for more opportunity to be heard or to
review other legal precedent prior to the Court's ruling." J.A. at 39.
However, the judge first conducted a bench conference about the matter
and recessed court in order to give counsel for the parties an opportunity
to conference and discuss the matter. J.A. at 90-91, 303. Thus, the major-
ity's attempt to disparage the opportunity for counsel to be heard on the
matter, ante at 27 n.21, rings hollow. See Sumner v. Mata, 449 U.S. 539,
546-48 (1981).
80
In Arizona, the trial court considered a curative instruction, but
rejected such an instruction as inadequate to cure the improper com-
ment. 434 U.S. at 511, 514 n.34. Here, too, the trial court considered
a curative instruction, but concluded that such an instruction could not
cure the effect of the jury having seen the unadmitted photographs.
J.A. at 38.
And in Arizona, the defendants did not "attempt to demonstrate
specific prejudice from the mistrial ruling, other than the harm which
always accompanies retrial." 434 U.S. at 516 n. 35. Here, too, the
only harm that the defendants allege is that "which always accompa-
nies retrial." See ante at 36.
In fact, the reasons for reversing the en banc court here (and
affirming the state trial court's judgment) are even more compelling
than they were in Arizona.
In Arizona, the trial court failed to articulate the reasons for declar-
ing the mistrial. 434 U.S. at 516-17.12 Here, the trial court did articu-
late its reasons for declaring the mistrial. J.A. at 35-41, 93-94.
In Arizona, there was no explicit finding of manifest necessity. 434
U.S. at 516. Here, the trial court found manifest necessity. J.A. at 39.13
_________________________________________________________________
12 The Ninth Circuit, which was reversed by the Supreme Court in
Arizona, described the Arizona trial court as having made "no findings
whatsoever." 546 F.2d 829, 832 (9th Cir.), rev'd 434 U.S. 497 (1977).
According to the court of appeals, the trial judge,
at no time . . . indicate[d] the reason(s) why he granted the mis-
trial. Furthermore, his short order . . . is not susceptible to any
inference that will fill this void. In the absence of any finding by
the trial court or any indication that the court considered the effi-
cacy of alternatives such as an appropriate curative instruction to
the jury, we must conclude that neither of the tests of Perez . . .
has been met.
13 As the trial court noted, J.A. at 39, Arizona does not even require that
it make an explicit finding of manifest necessity. 434 U.S. at 517.
Indeed, a fundamental error of the majority is that it has fixed upon the
mantra of "manifest necessity" while failing to realize that none of the
concerns that underlie the actual constitutional prohibition against double
81
In Arizona, the trial court made no explicit finding of prejudice.
434 U.S. at 517 n.39. Here, the trial court made an express finding
of prejudice. J.A. at 38, 39.
In Arizona, there is no suggestion that the defense acknowledged
the prejudice to the government's case. Here, the defense has consis-
tently admitted that introduction of the photographs did prejudice the
government's case. See J.A. at 324-34; Transcript of Oral Argument,
September 26, 1995.
In Arizona, the error was an improper opening statement. Here, as
the trial judge recognized, the jury had "not merely [heard] an open-
_________________________________________________________________
jeopardy are implicated in this case. As the Supreme Court explained
long before Arizona, "[t]he double jeopardy provision of the Fifth
Amendment . . . does not mean that every time a defendant is put to trial
before a competent tribunal he is entitled to go free if the trial fails to end
in a final judgment. Such a rule would create an insuperable obstacle to
the administration of justice in many cases in which there is no sem-
blance of the type of oppressive practices at which the double-jeopardy
prohibition is aimed." Wade, 336 U.S. at 688-89 (emphasis added). Cf.
Duckworth v. Eagan, 492 U.S. 195, 203 (1989) ("The prophylactic
Miranda warnings are `not themselves rights protected by the Constitu-
tion but [are] instead measures to insure that the right against compulsory
self-incrimination [is] protected.'" (quoting Michigan v. Tucker, 417
U.S. 433, 444 (1974)); Stone v. Powell, 428 U.S. 465, 479, 481-82, 490-
91 (1976) (`"[T]he exclusion of illegally seized evidence [pursuant to
Mapp v. Ohio, 367 U.S. 643 (1961)] is simply a prophylactic device
intended generally to deter Fourth Amendment violations by law
enforcement officers.'" (quoting Kaufman v. United States, 394 U.S.
217, 224 (1969)).
The primary evil that "manifest necessity" was created to prevent --
the threat of the State bringing its awesome power repeatedly to bear in
an effort to convict a criminal defendant, see Arizona, 434 U.S. at 507-
08 & n.23 -- is simply not present here. The mistrial was prompted
solely by the negligence of the defense; there is no allegation either of
prosecutorial misconduct or of pretext in the motion for mistrial. See
generally Arizona, 434 U.S. at 506-10, 514-15 (describing the "spec-
trum" of scrutiny given declarations of mistrial and explaining that that
scrutiny is far lower when there is no prosecutorial misconduct).
82
ing statement by an adversary that could have been cured by any
instruction of this Court," it "had seen and touched physical evidence
not properly admitted." J.A. at 39-40.
In Arizona, defense counsel expressly argued for a curative instruc-
tion by the trial court. 434 U.S. at 514 n.34. Here, defense counsel
never urged that a curative instruction be given, yet the trial court
considered such an instruction sua sponte. J.A. at 87-94, 37-38.
Significantly, here, unlike in Arizona, there was evidence before
the state trial court that permitted a conclusion that defense counsel
was engaged in a pattern of misconduct during this very trial.14
_________________________________________________________________
14 The prosecution explained as follows an event that occurred prior to
defense counsel's placing the unadmitted photographs before the jury:
Earlier in the trial an incident had occurred where it was brought
to the court's attention at a bench conference that an officer, I
believe it was Major Gonza Hunter, brought to my attention that
he had seen [defense counsel] looking in our notebook during
one of the breaks. As opposed to announcing that in open court,
I simply brought that to the court's attention with counsel at the
bench. My recollection of that conference was that I brought it
to the court's attention. [Defense counsel] stated to the court that
she had in fact looked in our notebook, that she had done it in
an attempt to find her own notebook. I pointed out to the court
that I felt that a little extreme concerning the notebook she
looked into had a large gold South Carolina Law Enforcement
Officers Association seal on it. That was one of the first inci-
dents that we had.
J.A. at 384-85. Before the federal district court, the prosecution stated
that this incident was "a motivating factor" in its motion for mistrial, J.A.
at 423-24, and, when asked for its views of why the mistrial was
declared, explained that,
[i]t seems to me that the reason for that was[Judge Johnson's]
concern for what had happened, vis-a-vis two incidents. The first
one involving Ms. Goodwin. I don't know what was said at the
bench conference. I did not go there. The second matter was the
business about the impropriety of photographs being not just
admitted to the jury but picked up and handled by every member
of the jury. Those two things I think said to Judge Johnson that
83
And finally, here, unlike in Arizona, the federal courts stopped an
ongoing state murder trial -- literally with a witness on the stand --
on the basis of their assessment of the evidentiary significance of the
crime scene photographs, in open defiance of the principles that lie
at the core of Younger v. Harris.
That the state trial court in this case evidenced the grave concern
that it did, J.A. at 36-40, 90-94, and in response, allowed counsel for
both parties to argue their positions as to whether a mistrial should be
granted, J.A. at 38-39, 90-91, 93, is probably alone sufficient to ren-
der the trial court's grant of a mistrial an exercise of "sound discre-
tion," as it was for the Supreme Court in Arizona:
[E]vincing a concern for the possible double jeopardy con-
sequences of an erroneous ruling, he gave both defense
counsel and the prosecutor full opportunity to explain their
positions on the propriety of a mistrial. We are therefore
persuaded by the record that the trial judge acted responsi-
bly and deliberately . . . .
434 U.S. at 515-16 (emphasis added).
Given the deliberate, conscientious manner in which the court in
this case determined to grant the mistrial -- as evidenced by the
attached detailed trial court opinion reciting the court's contempora-
neous reasoning -- there can be no question that the state trial court's
judgment is entitled at least to the same"special respect" accorded the
state trial court's ruling in Arizona, which read in full:
_________________________________________________________________
this was some sort of a pattern and his concern for what had
happened had reached --
Before counsel could complete his thought, Ms. Goodwin interrupted
him:
Your Honor, I object to Mr. Delgado saying what was in Judge
Johnson's mind, that it is not reflected in this record. I move to
strike all of what he thinks Judge Johnson was thinking.
J.A. at 428-29 (emphasis added). Because the witness "moved on," there
was no occasion for the court to rule on the motion to strike.
84
Based upon defense counsel's remarks in his opening state-
ment concerning the Arizona Supreme Court opinion and its
effect for the reasons for the new trial, the motion for mis-
trial will be granted.
Quoted in Arizona v. Washington, 546 F.2d 829, 831 (9th Cir.), rev'd,
434 U.S. 497 (1977); see also Joint Appendix, Arizona v.
Washington, U.S. Supreme Court, No. 76-1168 at 271-72 (1977).
*****
Arizona was written precisely to prevent our trial courts, who are
"far more `conversant with the factors relevant to the determination'
[of potential jury bias] than any reviewing court can possibly be," 434
U.S. at 514, from being second-guessed by appellate courts engaged
in the kind of rank speculation that the majority engages in today. If
Arizona means anything at all, it must mean that a federal appellate
court in habeas should never find itself in the posture of comparing
and contrasting individual crime scene photographs wrongfully
placed before a jury by defense counsel and determining de novo
whether those photographs might have been admitted and whether
they might have somehow prejudiced the jury in a trial about which
the appellate court knows little to nothing. As the majority so ironi-
cally, if not presciently, assures, "[i]f counsel were to air evidence
that might tend to improperly bias the jury or adversely affect its
impartiality, any reviewing court applying the teachings of Arizona v.
Washington would conclude that the trial judge acted within his dis-
cretion in granting a mistrial." Ante at 32.
Because, applying the teachings of Arizona, I believe that the
majority is destined for reversal, if not summary reversal, I dissent.
Judges Russell, Widener, Wilkinson, and Niemeyer concur in this
opinion.
85
APPENDIX
STATE OF SOUTH CAROLINA
COUNTY OF NEWBERRY
THE COURT OF
GENERAL SESSIONS
The State,
EIGHTH JUDICIAL
vs. CIRCUIT
CASE NO.:
James Swain, Wayland Gilliam, Jr.
and Pamela Owings,
Defendants.
AMENDED ORDER
This matter comes before me on the motion of attorneys for the
three defendants captioned above, James Swain, Wayland Gilliam, Jr.
and Pamela Owings. The Defendants have moved this Court pursuant
to the prohibition against double jeopardy found in the Fifth Amend-
ment to the United States Constitution and Article 1, Section 12, of
the South Carolina Constitution, to dismiss the charges pressed
against them in the General Sessions Court of Newberry County. All
three defendants are charged with Murder and Lynching in the First
Degree. Additionally, Defendant Swain, alone, is charged with
Assault with Intent to Kill, and Defendant Gilliam, alone, is charged
with Indecent Exposure. All of these indictments arise out of the same
factual setting. Indictment 93-GS-36-70 charges Murder, Lynching
and Assault with Intent to Kill and Indictment 93-GS-36-183 charges
Indecent Exposure. This Court held a hearing on Tuesday, April 11,
1995, wherein counsel for the defendants and the state were present
and argued their respective positions in this matter.
It must be noted at the outset that the State moved for a mistrial
only after this Court brought certain matters to the attention of the
parties. More specifically, this Court observed that certain physical
items, namely photographs of the murder scene, had been taken by
the jury and reviewed by each of the jurors without these photographs
being admitted into evidence. The Defendants' argument notwith-
standing, it is of no consequence whether the Defendants either inad-
86
vertently, intentionally or mistakenly allowed this activity to occur.
The principle remains the same: Exhibits that had not been introduced
into evidence were in fact given to the jury for their review without
proper documentation and prior to being finally passed on by this
Court before being admitted into evidence.
The South Carolina Supreme Court in State v. Alexander, 303 S.C.
377, 401 S.E.2d 146 (1991) adopted Federal Rule of Evidence 403
which provides "Although relevant, evidence may be excluded if its
probative value is substantially outweighed by . . . confusion of the
issues, or misleading the jury, or by considerations of undue delay,
waste of time or needless presentation of cumulative evidence." This
Court was never given the opportunity to make a determination pursu-
ant to Rule 403 on the admissibility of the questioned photographs
because of the actions of defense counsel. Counsel for one of the
three defendants has acknowledged that it was possibly his action that
allowed such an occurrence. "Now that was certainly sloppy house-
keeping and I take responsibility for that, but that was certainly not
a tactical move to put anything before the jury." (Transcript at Page
41). In the same way that a Motion In Limine does not ultimately
decide the admissibility of evidence because of changed circum-
stances occurring during a trial, State v. Flood, 295 S.C. 518, 369
S.E.2d 842 (1988), this Court could not foresee if the questioned pho-
tographs would have been offered and, if offered, then admitted into
evidence. Contrast the Court's remarks on page 12 line 25 through
page 13 line 4 with the Court's comments on page 46 lines 6-9 of the
Transcript "And I don't know of anyway at this point in time, even
if they were later offered and admitted, at this point in time I have no
way of guessing that".
This Court is under an obligation to provide a fair and just trial for
both the defendants and for the state. (See Transcript at page 46). This
Court was left with the dilemma as to how to proceed after it was
brought to its attention that evidence had been published to the jury
that had not been properly admitted. It concerned this Court to the
extent that it was brought to the attention of the litigants for a hearing
as to how best then to proceed.
The Defendants argue that this Court did not consider any other
reasonable alternative except to grant the State's Mistrial Motion after
87
the publication to the jury of the questioned photographs. To the con-
trary, recognizing that the jury in this case had been empaneled for
little over a day, the Court considered reasonable alternatives by call-
ing out the jury foreman and inquiring with him in open court as to
the extent of the publication of the questioned photographs. As noted
on Transcript page 43 at line 9 the Court brought out the foreman of
the jury, Mr. William C. Cunningham, and queried him as to what had
been observed by himself as well as other members of the jury. Mr.
Cunningham acknowledged that all the photographs had been circu-
lated throughout the jury.
Mr. Cunningham: "Yes Sir, to my knowledge they all had."
The Court: "All right, Sir. To your knowledge, all of them had as
far as you know?"
Mr. Cunningham: "Yes Sir. As far as I know."
The Court: "All right, Sir. That is what I needed to know. You
can step back into the jury room."
Transcript page 44 lines 3 through 7.
Further, the Court then inquired of the court reporter whether or not
the Court's understanding of the extent of the publicity was in fact
accurate. (See Transcript at page 45). The court reporter confirmed by
responding "Yes Sir. It was a big stack. Those were included in the
group that were over there." (Transcript page 45, lines 4-5). It was the
Court's feeling that because of the nature of the exhibits and the
extent of the publication to the jury that no curative instruction could
be issued. This Court's concern about a curative instruction is implic-
itly reflected in the Transcript at page 46 lines 6-9. Unlike the Court
in United States v. Sloan, 36 F.3d 386 (4th Cir. 1994) a case cited by
the defendants as supporting their position, this Court did consider the
alternative of a curative instruction. It was this Court's decision at the
time, however, that a curative instruction would simply highlight and
compound the error already existent.
The Court did not engage in any sua sponte determination of a mis-
trial, see State v. Prince, ___ S.C. ___, 301 S.E.2d 401 (1983) but
88
rather, allowed all counsel in this matter "full opportunity to explain
their positions". (Transcript page 45, lines 9-11). It was of grave con-
cern to this Court that this prejudicial occurrence had transpired and
this Court wished to hear from each of defendants' counsel as to their
feelings before ruling on the Motion for a Mistrial. See Transcript
pages 39-41. At no time did any counsel for the defendants ask for
more opportunity to be heard or to review other legal precedent prior
to this Court's ruling.
"When a mistrial is declared over a criminal defendant's objection,
retrial is permitted only when 'there is a manifest necessity for the act
or the ends of public justice would otherwise be defeated.'" United
States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824) as
cited in United States v. Sloan, supra. The Sloan court noted that this
bedrock principle has been reiterated and followed consistently in the
intervening 171 years. See, e.g., Arizona v. Washington, 434 U.S.
497, Illinois v. Somerville, 410 U.S. 458 (1973) and United States v.
Jorn, 400 U.S. 470 (1971). As noted by the Somerville court, a trial
judge has "broad discretion" in determining whether manifest neces-
sity requires declaration of a mistrial. While this Court "need not
make an explicit finding of manifest necessity" Sloan, id. at 394, cit-
ing Arizona v. Washington, id., the transcript adequately reflects that
the court was so concerned with the origin of the prejudice as well as
the extent of the publication to the jury that an implicit finding of
manifest necessity exists. A "manifest necessity" standard cannot be
"applied mechanically" Jorn, 400 U.S. at 487 and this Court declines
to conclude that it acted "irrationally or irresponsibly", Arizona v
Washington, 434 U.S. at 514, in making its decision to grant a mis-
trial. "Each case must turn on its facts", United States v. Sartori, 730
F.2d 973, 976 (4th Cir. 1984).
The twelve jurors had seen and touched physical evidence not
properly admitted. While the defendants claim the photographs would
have been introduced later, this is speculative and conjectural. This
was not merely an opening statement by an adversary that could have
been cured by any instruction of this Court as was the case in United
States v. Sloan, id. Moreover, Defendants have not produced a case
where a mistrial was declared improvidently granted when inadmissi-
ble evidence by the way of photographs had been published to the
jury.
89
Moreover, it is more than "manifest necessity" which requires the
granting of a mistrial in this case. The public interest in and its right
to a fair trial that is designed to end in a just judgment further requires
that this Court deny the Defendants' Motion to Dismiss under the
Fifth Amendment. It would be unfair, unjust and improper under
these circumstances, which may have come about as a direct result of
actions of defense counsel, to reward the defendants by granting their
Motion to Dismiss. "The interest of the public in seeing that a crimi-
nal prosecution proceed to verdict, either of acquittal or conviction,
need not be forsaken by the formulation or application of rigid rules
that necessarily preclude the vindication of that interest" Illinois v.
Somerville, 410 U.S. at 463, 93 S.C. at 1070. The Court's broad dis-
cretion was exercised under the facts existent and a mistrial was, of
necessity, declared.
"Where for reasons deemed compelling by the trial judge, who is
best situated intelligently to make such a decision, the ends of sub-
stantial justice cannot be obtained without discontinuing a trial, a mis-
trial may be declared without the defendant's consent and even over
his objection, and he may be retried consistently with the Fifth
Amendment." State v. Gamble, ___ S.C. ___, 272 S.E.2d 796 (1980)
quoting Gori v. United States, 367 U.S. 364, 368, 81 S.C. 1523, 1526,
6 L.Ed.2d 901 (1961). This Court will not second guess itself now,
four months later, by what it observed, heard and felt at the time of
its initial ruling. The Defendants' Motion to Dismiss the Indictments
and to prosecution on the ground of double jeopardy is denied.
AND IT IS SO ORDERED.
/S/
_____________________________
James W. Johnson, Jr.
Judge--Eighth Judicial Circuit
Laurens, South Carolina
May 15, 1995
90
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<pre> United States Court of Appeals <br> For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1163 <br> <br> JULIO ELVIN RUIZ-TROCHE, ET AL., <br> <br> Plaintiffs, Appellees, <br> <br> v. <br> <br> PEPSI COLA OF PUERTO RICO BOTTLING COMPANY, ET AL., <br> <br> Defendants, Appellants. <br> <br> <br> <br> APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br> FOR THE DISTRICT OF PUERTO RICO <br> <br> [Hon. Raymond L. Acosta, Senior U.S. District Judge] <br> <br> <br> <br> Before <br> <br> Selya, Circuit Judge, <br> <br> Aldrich, Senior Circuit Judge, <br> <br> and Boudin, Circuit Judge. <br> <br> <br> <br> Stephen A. Cozen with whom Elizabeth J. Chambers, Cozen and <br>O'Connor, Francisco J. Coln-Pagn, Francisco E. Coln-Ramrez, and <br>Coln, Coln & Martinez were on brief, for appellants. <br> Jos F. Quetglas Jordan and Jorg Carazo-Quetglas, with whom <br>Eric M. Quetglas Jordan, Quetglas Law Offices, and Toledo Toledo & <br>Carazo-Quetglas, P.C. were on brief, for appellees. <br> <br> <br> <br> <br> <br>December 1, 1998 <br> <br> <br> <br>
SELYA, Circuit Judge. This appeal requires us to explore <br>the limits of a trial court's authority to exclude scientific <br>evidence in this instance, evidence of alleged cocaine use by the <br>driver of a motor vehicle involved in a fatal accident and evidence <br>of his ensuing impairment under Daubert v. Merrell Dow Pharm., <br>Inc., 509 U.S. 579 (1993). We conclude that the court below abused <br>its discretion in excluding certain of this evidence and that the <br>magnitude of the error necessitates a new trial. <br>I. BACKGROUND <br> On an afternoon in September of 1992, Julio Elvin Ruiz <br>Cintrn (Ruiz) was driving a Toyota automobile westerly along a <br>two-lane road in Puerto Rico. At what proved to be the critical <br>moment, Ruiz left his lane to pass a slow-moving vehicle. Seconds <br>later, his car collided with an oncoming eastbound tractor-trailer <br>rig. Ruiz, his wife, son, and three other passengers (all minors) <br>were killed. Ruiz's four-year-old daughter survived, but sustained <br>permanent brain damage. <br> In due course, Ruiz's daughter, joined by other relatives <br>of the various decedents (all of whom, at the time of suit, were <br>citizens of mainland states), invoked diversity jurisdiction, 28 <br>U.S.C. 1332(a), and brought suit for damages in Puerto Rico's <br>federal district court. They named as defendants the driver of the <br>tractor-trailer unit, Juan Hernndez Rosario (Hernndez); his <br>employer, Los Vaqueros de Transporte y Carga; the consignor, Pepsi <br>Cola of Puerto Rico Bottling Company; and several insurers. The <br>plaintiffs averred (1) that Hernndez needlessly accelerated his <br>rig as the Toyota approached, thereby shortening the available time <br>within which Ruiz could complete his passing maneuver and return to <br>his own side of the road, and (2) that Hernndez refused to veer to <br>the right to avoid the accident, despite having sufficient space <br>and time to do so. The defendants denied the essential allegations <br>of the complaint. They argued that Ruiz, and Ruiz alone, had <br>caused the accident by recklessly initiating a passing maneuver in <br>the face of obvious danger and placing his vehicle on the wrong <br>side of the road. To bolster this thesis, the defendants sought to <br>show that cocaine intoxication provoked Ruiz's recklessness. <br> The district court stymied the defendants' anticipated <br>trial strategy by refusing to admit into evidence either the <br>toxicology section of the autopsy report (which reflected the <br>presence of cocaine and cocaine metabolites in Ruiz's bloodstream) <br>or expert testimony regarding the significance of these findings. <br>In the court's view, the proposed expert testimony failed to meet <br>the standard of reliability required under Daubert. Having <br>rejected the expert testimony, the court then excluded the <br>toxicology results under Fed. R. Evid. 403, concluding that those <br>results, standing alone and unexplained, were more prejudicial than <br>probative. <br> In diversity cases, local law provides the substantive <br>rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 <br>(1938); Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir. <br>1994). Puerto Rico law recognizes comparative negligence <br>principles. See P.R. Laws Ann. tit. 31, 5141 (1990). The trial <br>judge instructed accordingly, and the jury found both drivers <br>negligent, assigning 59% of the fault to Ruiz and 41% to Hernndez. <br>It then awarded damages totaling approximately $13,000,000 to the <br>various plaintiffs. Due to Puerto Rico's combination of <br>comparative negligence and joint and several liability rules, the <br>defendants will be required to pay the full amount of these damages <br>if the judgment becomes final. <br> In the aftermath of the jury verdict, the defendants <br>moved for judgment as a matter of law, Fed. R. Civ. P. 50, or, <br>alternatively, for a new trial, Fed. R. Civ. P. 59. The district <br>court rejected the defendants' plaints, including those that <br>centered on the allegedly wrongful exclusion of the expert <br>testimony and toxicology results. This appeal ensued. <br>II. DISCUSSION <br> The Daubert questions in this case are complex and <br>implicate four interrelated pieces of evidence: (1) the toxicology <br>results contained in the autopsy report; (2) the so-called "dosage" <br>testimony, i.e., the expert opinions of a pharmacologist relating <br>to the amount of drugs that Ruiz consumed and the time of their <br>consumption, arrived at by interpolation from the toxicology <br>results; (3) the so-called "impairment" testimony, i.e., the <br>pharmacologist's expert opinions regarding the effects of cocaine <br>on behavior; and (4) the so-called "causation" testimony, i.e., <br>certain expert opinions of the defense's accident <br>reconstructionist. After surveying the legal landscape, we discuss <br>how these items came before the district court and how the court <br>handled them. We then explicate the standard of review and proceed <br>to test the correctness of the district court's rulings. <br> A. Daubert Revisited. <br> The Evidence Rules generally confine the testimony of a <br>lay witness to matters about which he or she has personal <br>knowledge, see Fed. R. Evid. 602, although such a witness may offer <br>opinions that are "rationally based on [his or her] perception" and <br>"helpful to a clear understanding of the witness' testimony or the <br>determination of a fact in issue," Fed. R. Evid. 701. The Rules <br>afford expert witnesses much more leeway. "If scientific, <br>technical, or other specialized knowledge will assist the trier of <br>fact to understand the evidence or determine a fact in issue, a <br>witness qualified as an expert by knowledge, skill, experience, <br>training, or education, may testify thereto in the form of an <br>opinion or otherwise." Fed. R. Evid. 702. Despite its apparent <br>breadth, this language does not give experts carte blanche, but, <br>rather, envisions some regulation of expert testimony by trial <br>judges. The Court's opinion in Daubert furnishes the principal <br>source of guidance on the proper fulfillment of this gatekeeping <br>role. <br> We start with an historical perspective. Prior to <br>Daubert, courts and commentators regarded Frye v. United States, <br>293 F. 1013 (D.C. Cir. 1923), as the watershed case on the <br>admission of expert opinion testimony. Under Frye, the <br>admissibility of an expert opinion or technique turned on its <br>"general acceptance" vel non within the scientific community. Id.at 1014. Daubert tackled the question of whether the Frye standard <br>survived the passage of the Federal Rules of Evidence (and, in <br>particular, Rule 702) and answered that question in the negative, <br>holding that Rule 702 displaced the Frye test. See Daubert, 509 <br>U.S. at 587-89. <br> The Daubert Court's interpretation of Rule 702, drawn <br>from its text, requires the trial judge to evaluate an expert's <br>proposed testimony for both reliability and relevance prior to <br>admitting it. See id. at 589-95. The requisite review for <br>reliability includes consideration of several factors: the <br>verifiability of the expert's theory or technique, the error rate <br>inherent therein, whether the theory or technique has been <br>published and/or subjected to peer review, and its level of <br>acceptance within the scientific community. See id. at 593-95. <br>The Court reasoned that due investigation of such matters will <br>ensure that proposed expert testimony imparts "scientific <br>knowledge" rather than guesswork. Id. at 592. Withal, the factors <br>that the Court enumerated do not function as a "definitive <br>checklist or test," but form the basis for a flexible inquiry into <br>the overall reliability of a proffered expert's methodology. Id.at 593. <br> Along with the reliability requirement, the Daubert Court <br>imposed a special relevancy requirement. See id. at 591-92. To be <br>admissible, expert testimony must be relevant not only in the sense <br>that all evidence must be relevant, see Fed. R. Evid. 402, but also <br>in the incremental sense that the expert's proposed opinion, if <br>admitted, likely would assist the trier of fact to understand or <br>determine a fact in issue, see Daubert, 509 U.S. at 591-92. In <br>other words, Rule 702, as visualized through the Daubert prism, <br>"requires a valid scientific connection to the pertinent inquiry as <br>a precondition to admissibility." Id. at 592. <br> In General Elec. Co. v. Joiner, 118 S. Ct. 512 (1997), <br>the Justices established the appropriate standard of appellate <br>review for Daubert determinations, concluding that a reviewing <br>tribunal should scrutinize a trial court's decision to allow or <br>disallow the admission of expert testimony on Daubert grounds for <br>abuse of discretion. See id. at 517. Joiner also placed a gloss <br>on Daubert's insistence that trial courts focus on an expert's <br>methodology, rather than his conclusions, in order to determine the <br>reliability of his testimony. See Daubert, 509 U.S. at 595. The <br>Joiner Court moderated this position, acknowledging that <br> conclusions and methodology are not entirely <br> distinct from one another. Trained experts <br> commonly extrapolate from existing data. But <br> nothing in either Daubert or the Federal Rules <br> of Evidence requires a district court to admit <br> opinion evidence which is connected to <br> existing data only by the ipse dixit of the <br> expert. A court may conclude that there is <br> simply too great an analytical gap between the <br> data and the opinion proffered. <br> <br>Joiner, 118 S. Ct. at 519. Thus, while methodology remains the <br>central focus of a Daubert inquiry, this focus need not completely <br>pretermit judicial consideration of an expert's conclusions. <br>Rather, trial judges may evaluate the data offered to support an <br>expert's bottom-line opinions to determine if that data provides <br>adequate support to mark the expert's testimony as reliable. <br> Daubert and Joiner, though critically important, do not <br>represent the sum total of available jurisprudential insights. <br>Since Daubert hove into view, the courts of appeals have made <br>significant contributions to an understanding of how to separate <br>reliable from unreliable science and how to apply the intuitive <br>idea of "fit" as courts have come to call the special kind of <br>relevance that Daubert demands to live litigation scenarios. <br>See, e.g., Baker v. Dalkon Shield Claimants Trust, 156 F.3d 248, <br>252-54 (1st Cir. 1998); Daubert v. Merrell Dow Pharm., Inc., 43 <br>F.3d 1311, 1316-22 (9th Cir. 1995). Nonetheless, choreographing <br>the Daubert pavane remains an exceedingly difficult task. Few <br>federal judges are scientists, and none are trained in even a <br>fraction of the many scientific fields in which experts may seek to <br>testify. Moreover, even though Daubert and its progeny require <br>trial judges to evaluate the level of support provided by complex <br>scientific studies and experiments in myriad disciplines, <br>reliability and relevance remain legal judgments. Trial judges <br>cannot abdicate the responsibility for making those judgments by <br>delegating them to the scientific community. <br> To complicate matters further, Daubert issues rarely <br>arise in a vacuum, but, rather, frequently collide in practice with <br>the requirements of other rules of evidence, especially Fed. R. <br>Evid. 403. This phenomenon adds yet another dimension to the <br>decisional calculus. See, e.g., Baker, 156 F.3d at 254. <br> B. The Challenged Evidence. <br> We turn now from the general to the particular, and <br>canvass the evidence tendered below insofar as it bears on this <br>appeal. Following Ruiz's death, the authorities ordered an <br>autopsy. The autopsy report included toxicology results indicating <br>that Ruiz's body contained 0.45 mcg/ml of cocaine and 0.15 mcg/ml <br>of a cocaine metabolite (benzoylecgonine) in its blood, cocaine <br>metabolites in its urine and vitreous humor, and cocaine in its <br>nasal passages. The defendants proffered Dr. James O'Donnell, a <br>well-credentialed pharmacologist, to comment upon the significance <br>of these findings. Dr. O'Donnell was prepared to testify, based on <br>the autopsy report, that in his opinion Ruiz had snorted 200 <br>milligrams of cocaine within an hour prior to the accident. Dr. <br>O'Donnell also proposed to testify that cocaine impairs senses and <br>capabilities affecting driving, diminishes perception, and <br>increases the willingness to take risks. The district court <br>excluded not only Dr. O'Donnell's testimony, but also the <br>toxicology results. And, though the court permitted the <br>defendants' accident reconstruction expert, Eric Cintrn, to <br>testify, the court apparently precluded counsel from eliciting his <br>opinion that Ruiz would not have initiated the fateful passing <br>maneuver had it not been for his cocaine intoxication. <br> <br> C. Proceedings Below. <br> The evidentiary issues in this case came to the fore on <br>February 28, 1997, when the plaintiffs filed motions in limine <br>seeking the exclusion of both Dr. O'Donnell's testimony and the <br>toxicology results. The plaintiffs argued that levels of cocaine <br>and metabolites in the bloodstream could not be correlated to <br>initial dosage or levels of impairment with the degree of certainty <br>required for scientific evidence, and they produced several <br>articles to this effect. They sought exclusion of the toxicology <br>results mainly on the theory that the chain of custody of the <br>samples of bodily fluids had been compromised. The defendants <br>promptly submitted an opposition. They proffered Dr. O'Donnell's <br>report, the report of the plaintiffs' expert toxicologist <br>(suggesting that he used a methodology similar to that employed by <br>Dr. O'Donnell), and portions of plaintiffs' expert's deposition. <br>Based on these materials, they argued that Dr. O'Donnell's <br>methodology was sufficiently reliable to withstand Daubertscrutiny. As to the toxicology results, the defendants contended <br>that the plaintiffs' argument was factually wrong, and that, in all <br>events, any gaps in the chain of custody went to the weight of the <br>evidence, not to its admissibility. See, e.g., United States v. <br>Ladd, 885 F.2d 954, 956 (1st Cir. 1989). <br> The district court held a pretrial conference on March 5, <br>1997. At the court's request, defense counsel agreed to furnish <br>copies of the 18 articles cited by Dr. O'Donnell in his report, and <br>submitted 14 of them within the next few days. Without waiting for <br>the remainder, the district court ruled on March 10. It concluded <br>that there was "no scientific basis" for Dr. O'Donnell's dosage <br>opinion (i.e., his opinion that Ruiz had snorted at least 200 mg of <br>powdered cocaine within an hour before the accident) and that Dr. <br>O'Donnell's impairment opinion (i.e., his opinion that cocaine <br>ingestion had impaired Ruiz's driving ability) likewise failed to <br>pass the Daubert reliability screen. To close the circle, the <br>court barred introduction of the toxicology results "in light of" <br>the exclusion of Dr. O'Donnell's testimony. <br> Trial began the next day. On March 26, the plaintiffs <br>moved in limine to exclude the testimony of Eric Cintrn. Noting <br>a statement in Cintrn's report to the effect that Ruiz "appears to <br>have been driving under the influence of drugs as it is evidenced <br>by the toxicological report," and his conclusion that "this may <br>explain the reason for [the] . . . passing maneuver," the <br>plaintiffs argued for exclusion both because the trial court had <br>banished the toxicology results and because Cintrn was unqualified <br>to opine on the relationship between cocaine and driving ability. <br>Although the district court never formally ruled on this motion, <br>Cintrn was not asked his opinion on these matters when he <br>testified, and the parties treat this omission as flowing from the <br>district court's prohibition on any mention of the toxicology <br>results. <br> On March 31 the same day that the plaintiffs completed <br>their case in chief the defendants filed a motion to admit Dr. <br>O'Donnell's testimony and attached to it copies of numerous <br>additional articles and portions of learned treatises regarding <br>cocaine's absorption, excretion, detection in bodily fluids, and <br>effects on the senses and behavior. Judge Acosta denied the motion <br>the following day, terming it "untimely." Other motions for <br>reconsideration, made at divers points during the presentation of <br>the defense's case, met a similar fate. <br> D. Standard of Review. <br> Nobody questions that testimony regarding dosage what <br>quantity of drugs Ruiz consumed, and when and the effect of <br>Ruiz's cocaine consumption on his driving ability would be relevant <br>as long as it could be reliably determined that Ruiz ingested an <br>appreciable amount of cocaine shortly before the accident and that <br>such dosage probably would impair one's ability to drive. Thus, <br>although the Daubert standard requires that expert testimony be <br>both reliable and relevant as a precondition to admissibility, the <br>reliability inquiry is central in this case. <br> The district court concluded that Dr. O'Donnell's <br>testimony on both dosage and impairment lacked scientific <br>reliability and precluded the testimony on that basis. Forbidding <br>the toxicology results and Cintrn's opinion on causation followed <br>directly from this exclusionary ruling. We review all these <br>determinations for abuse of discretion. See Joiner, 118 S. Ct. at <br>517. <br> While this standard of review ordinarily is "not <br>appellant-friendly," Lussier v. Runyon, 50 F.3d 1103, 1111 (1st <br>Cir. 1995), it does not render trial court decisions impervious to <br>scrutiny. On abuse-of-discretion review, we will reverse a trial <br>court's decision if we determine that the judge "committed a <br>meaningful error in judgment." Anderson v. Cryovac, Inc., 862 F.2d <br>910, 923 (1st Cir. 1988); see also Foster v. Mydas Assocs., Inc., <br>943 F.2d 139, 143 (1st Cir. 1991) (explaining that an abuse of <br>discretion occurs "when a material factor deserving significant <br>weight is ignored, when an improper factor is relied upon, or when <br>all proper and no improper factors are assessed, but the court <br>makes a serious mistake in weighing them") (quoting Independent Oil <br>& Chem. Workers of Quincy, Inc. v. Procter & Gamble Mfg. Co., 864 <br>F.2d 927, 929 (1st Cir. 1988)). <br> E. Analysis. <br> To determine whether the nisi prius court committed "a <br>meaningful error in judgment" here, we assay its evaluation of each <br>contested piece of evidence under the Daubert standard. <br> 1. The Dosage Testimony. We first consider the <br>exclusion of Dr. O'Donnell's testimony concerning the approximate <br>time of Ruiz's cocaine consumption and the amount of cocaine <br>actually ingested by him. Based on autopsy data cocaine and <br>cocaine metabolites found in Ruiz's blood, urine, nasal passages, <br>and vitreous humor and half-life values for the substances <br>involved, Dr. O'Donnell applied a mathematical formula and <br>concluded "with reasonable pharmacological certainty" that Ruiz <br>"'snorted' at least 200-mg of cocaine powder into his nose thirty <br>(30) to sixty (60) minutes prior to the accident." Although Dr. <br>O'Donnell's report cites numerous scientific writings in support of <br>the methodology underlying this proposition, the lower court found <br>none of these sources adequate to imbue the proffered opinions with <br>the patina of reliability required by Daubert. <br> We have read the articles mentioned by Dr. O'Donnell and <br>supplied to the district court. Several of them discuss a half- <br>life for cocaine or its metabolites and/or the times after <br>ingestion at which cocaine and its metabolites reach peak <br>concentrations in the body. One of these sources is a standard <br>medical textbook. See Matthew J. Ellenhorn & Donald G. Barceloux, <br>Medical Toxicology 648-49 (1988) (placing half-life in blood plasma <br>for cocaine administered intransally at 1.3 hours and citing the <br>average half-life for such cocaine in urine at 75 minutes). <br>Another is a published article in a prestigious, peer-reviewed <br>medical journal. See Peter M. Marzuk, et al., Fatal Injuries After <br>Cocaine Use As a Leading Cause of Death Among Young Adults in New <br>York City, 332 New Eng. J. Med. 1753, 1754 (1995) (using half-life <br>of cocaine metabolites in urine to determine use of cocaine by <br>victims of fatal car accidents). The publication of these pieces <br>and their exposure to peer review serve as independent indicia of <br>the reliability of the half-life technique. By the same token, <br>publication and peer review also demonstrate a measure of <br>acceptance of the methodology within the scientific community. <br> Secondary sources cited by Dr. O'Donnell lack publication <br>and peer review, see, e.g., Daniel S. Isenschmid, Cocaine (Plasma <br>Concentrations of Cocaine Metabolites in Humans) 11-12 (collecting <br>and reporting studies finding half-lives for cocaine metabolites in <br>urine and peak levels of cocaine in plasma after intranasal <br>administration of cocaine), but this circumstance does not make <br>such sources per se unacceptable, see Daubert, 509 U.S. at 593 <br>(explaining that neither publication nor peer review is "a sine quanon of admissibility"). Under ordinary circumstances, an <br>unpublished, unreviewed work, standing alone, probably would be <br>insufficient to demonstrate the reliability of a scientific <br>technique. But when such an article makes the same point as <br>published, peer-reviewed pieces, it tends to strengthen the <br>assessment of reliability. <br> Other works referenced by Dr. O'Donnell detail controlled <br>studies correlating dosages with levels of cocaine (and its <br>metabolites) remaining in the body after certain periods of time. <br>See, e.g., Randall C. Baselt & Robert H. Cravey, Disposition of <br>Toxic Drugs and Chemicals in Man 208-09 (1989) (collecting <br>studies); H.E. Hamilton, et al., Cocaine and Benzoylecgonine <br>Excretion in Humans, 22 J. Forensic Sci. 697, 698-706 (1987) <br>(reporting results of a study that administered cocaine <br>intranasally to healthy subjects and tested urine for levels of <br>cocaine and its metabolites after 1, 2, 4, 8, 12, 24, 48, 72, 120, <br>144, and 168 hours). These manuscripts further confirm the <br>reliability of Dr. O'Donnell's approach by providing information <br>that can be used to test the accuracy of the technique upon which <br>he relied. And, finally, the fact that the plaintiffs' expert <br>employed essentially the same technique furnishes added validation. <br> To be sure, the scientific literature does not make out <br>an open-and-shut case. In defense of the trial court's ruling, the <br>plaintiffs point to statements (some of which appear in works <br>referenced by Dr. O'Donnell) that the half-life of cocaine varies <br>among individuals due to many factors, and that cocaine metabolites <br>can be found in the body days after ingestion. See, e.g., <br>Ellenhorn & Barceloux, supra at 649 (stating that the half-life of <br>cocaine in urine "varies significantly between individuals"); <br>Hamilton, et al., supra, at 703 (finding cocaine metabolites in <br>subjects' urine up to 120 hours after insufflation of cocaine). <br>The plaintiffs posit that these statements indicate the inherent <br>unreliability of Dr. O'Donnell's dosage opinion. If half-life <br>varies, they ruminate, it cannot be used to determine initial <br>dosage with any accuracy and the discovery of metabolites offers <br>no more information because these may remain in the body long after <br>the drug's effects on behavior have subsided. Thus, the plaintiffs <br>asseverate, Daubert forbids the admission of Dr. O'Donnell's <br>testimony. <br> We think that the plaintiffs (and the district court) set <br>the bar too high. Although the statements that they assemble cast <br>doubt on Dr. O'Donnell's position for example, those statements <br>suggest that the half-life technique for calculating dosage has an <br>uncertain rate of error no single factor disposes of a <br>reliability inquiry. See Daubert, 509 U.S. at 592-95. Dr. <br>O'Donnell's technique has been subjected to, and survived, the <br>rigors of testing, publication, and peer review, and it appears to <br>have won significant (if not universal) acceptance within the <br>scientific community. Daubert does not require that a party who <br>proffers expert testimony carry the burden of proving to the judge <br>that the expert's assessment of the situation is correct. As long <br>as an expert's scientific testimony rests upon "good grounds, based <br>on what is known," Daubert, 509 U.S. at 590 (internal quotation <br>marks omitted), it should be tested by the adversary process <br>competing expert testimony and active cross-examination rather <br>than excluded from jurors' scrutiny for fear that they will not <br>grasp its complexities or satisfactorily weigh its inadequacies, <br>see id. at 596. In short, Daubert neither requires nor empowers <br>trial courts to determine which of several competing scientific <br>theories has the best provenance. It demands only that the <br>proponent of the evidence show that the expert's conclusion has <br>been arrived at in a scientifically sound and methodologically <br>reliable fashion. See Kannankeril v. Terminix Int'l, Inc., 128 <br>F.3d 802, 806 (3d Cir. 1997); In re Paoli R.R. Yard PCB Litig., 35 <br>F.3d 717, 744 (3d Cir. 1994). <br> On balance, we find that Dr. O'Donnell's dosage opinion, <br>incorporating a range of time in which he believed Ruiz took the <br>cocaine, satisfies this standard. The opinion was premised on an <br>accepted technique, embodied a methodology that has significant <br>support in the relevant universe of scientific literature, and was <br>expressed to a reasonable degree of pharmacological certainty. <br>While the literature does not irrefutably prove the accuracy of Dr. <br>O'Donnell's dosage conclusions, it furnishes a sufficient <br>underpinning for those conclusions to forfend preclusion of his <br>testimony as unreliable. Thus, the district court's refusal to <br>entertain Dr. O'Donnell's dosage opinion constituted an abuse of <br>discretion. See Baker, 156 F.3d at 252-54; see also Ed Peters <br>Jewelry Co. v. C & J Jewelry Co., 124 F.3d 252, 258-61 (1st Cir. <br>1997) (finding, prior to Joiner, exclusion of expert testimony <br>erroneous under either abuse of discretion or a more stringent <br>standard of review). <br> 2. The Impairment Testimony. Although Dr. O'Donnell's <br>opinion on dosage contained sufficient indicia of reliability to <br>warrant its admission into evidence, the defendants needed other <br>expert evidence to flesh out their theory as to how the accident <br>occurred. In particular, they had to show a correlation between <br>cocaine use in the dosage suggested by Dr. O'Donnell's opinion and <br>an impairment affecting the cocaine user's fitness to drive. Dr. <br>O'Donnell was ready to supply the missing link: he opined that <br>cocaine intoxication resulting from a dose such as Ruiz insufflated <br>results in impairments of perception, reflexes, reaction time, and <br>judgment, and that such a degree of intoxication increases one's <br>"sense of mastery" and thus promotes risk taking. Virtually all of <br>these sequelae would adversely affect the ability to drive safely. <br> The plaintiffs urged the trial court to hold that Dr. <br>O'Donnell's impairment testimony failed Daubert's reliability prong <br>because science cannot correlate particular impairments to cocaine <br>concentrations within the body. See, e.g., Peter M. Marzuk, et <br>al., Prevalence of Recent Cocaine Use Among Motor Vehicle <br>Fatalities in New York City, 253 J. Am. Med. Ass'n 250, 255 (1990). <br>In the plaintiffs' view, only an immediate neurological examination <br>could have provided sufficiently reliable evidence as to whether <br>Ruiz suffered from cocaine intoxication at the time of the accident <br>(and if so, to what extent) and no such examination was <br>performed. <br> The court granted the plaintiffs' motion to exclude the <br>impairment testimony. We quote the core of the court's reasoning, <br>as explicated in its subsequent denial of the defendants' motion <br>for a new trial: <br> All the scientific literature submitted to the <br> Court on this issue unanimously concluded that <br> unlike alcohol, a correlation between a <br> particular amount of cocaine in the system and <br> the degree of impairment produced has not been <br> scientifically determined because the effects <br> of this substance var[y] from one individual <br> to another. Thus, from the scientific <br> evidence reviewed by the Court it was <br> concluded that even though it is generally <br> accepted that cocaine causes impairment in an <br> individual [it] cannot be scientifically <br> deduced from the amount found in his or her <br> system because persons metabolize cocaine <br> differently. <br> <br> We believe that the court's rationale conflated the <br>dosage and impairment issues. The court agreed that "cocaine <br>causes impairment," but rejected Dr. O'Donnell's proposed testimony <br>on this point because of its distrust of the witness's dosage <br>testimony. By relying so heavily on an improper factor in the <br>decisional calculus the dosage testimony, as we have said, was <br>sufficiently reliable to satisfy Daubert the district court <br>abused its discretion. See Foster, 943 F.2d at 143; Independent <br>Oil Workers, 864 F.2d at 929. <br> To compound this error, the court applied a standard of <br>scientific certainty to the impairment testimony beyond that which <br>Daubert envisions. The court imposed a threshold requirement that <br>science be able to declare that a precise quantity of cocaine in <br>the bloodstream produces an equally precise degree of impairment. <br>This requirement solicits a level of assurance that science <br>realistically cannot achieve and that Daubert does not demand. SeeDaubert, 509 U.S. at 590 (commenting that "arguably, there are no <br>certainties in science"). The adoption of such a standard <br>impermissibly changes the trial judge's role under Daubert from <br>that of gatekeeper to that of armed guard. That mistaken <br>application of the law likewise constitutes an abuse of discretion. <br>See United States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998) <br>(holding that a per se abuse of discretion occurs when a district <br>court commits an error of law). <br> 3. The Remaining Evidence. Having decided to ban Dr. <br>O'Donnell's proffered testimony, the district court held that the <br>prejudicial effect of admitting the toxicology results would <br>substantially outweigh their probative value and excluded this <br>evidence under Rule 403. This is perfectly understandable: to <br>allow the jury to be told that traces of cocaine were found in <br>Ruiz's body without any accompanying explanation of the meaning of <br>the test results or of cocaine's capacity to impair driving skills <br>would sow the seeds for an horrific harvest. It is evident, <br>however, that the lower court's rulings regarding the admissibility <br>of Dr. O'Donnell's proffered testimony influenced the calibration <br>of the Rule 403 balance. The error inherent in those rulings <br>requires vacation of this aspect of the district court's order vis- <br>-vis the toxicology results. <br> The district court's prohibition of Cintrn's causation <br>opinion also must be reconsidered. Cintrn's proposed testimony as <br>to cocaine's role in the accident was based on other evidence <br>(e.g., the toxicology results) that the district court erroneously <br>excluded. This bevue nullifies the most obvious reason for <br>precluding Cintrn from testifying anent causation. As with the <br>toxicology results, this ruling will have to be revisited by the <br>district court on remand. <br> F. Effect of the Errors. <br> Our odyssey is not yet concluded. The plaintiffs contend <br>that even if the trial court erred in excluding evidence anent <br>Ruiz's use of cocaine, the mistakes are harmless and do not require <br>a new trial. See Fed. R. Civ. P. 61; Fed. R. Evid. 103. <br> The plaintiffs' argument is not without some force. <br>Puerto Rico is a comparative negligence jurisdiction that imposes <br>joint and several liability on joint tortfeasors. This doctrinal <br>combination means that a driver whose negligence is found to have <br>contributed to causing an accident may be solely responsible for <br>compensating the victims even though the other driver involved in <br>the accident was more negligent. See generally Ramos Acosta, 116 <br>P.R. Offic. Trans. at 81-82. <br> In this case, the district court properly directed the <br>jury to make findings anent comparative negligence, and the jury <br>assigned fault to both drivers (59% to Ruiz, 41% to Hernndez). <br>The plaintiffs maintain that the evidence of cocaine use was <br>relevant only to Ruiz's negligence and that its prohibitation did <br>not undermine the jury's finding that Hernndez's negligence <br>contributed significantly to the accident's occurrence. Since <br>Hernndez's negligence subjects the defendants to liability for the <br>full amount of the verdict, see supra note 1, the plaintiffs <br>hypothesize that the improper exclusion of the cocaine evidence <br>does not require a new trial. We reject this hypothesis. <br> The draconian potential of the Puerto Rico rules is <br>mitigated by the theories of efficient cause and absorption. Under <br>the principle of efficient cause, when one party is the "sole, and <br>efficient cause of the damage," another's negligence during the <br>accident, if it did not cause it, does not subject him to <br>liability. Toro Lugo v. Ortiz Martnez, 113 P.R. Offic. Trans. 73, <br>75, 113 P.R. Dec. 56, 56 (1982). Under the absorption theory, if <br>one tortfeasor is only slightly responsible, the overwhelming <br>negligence of the other tortfeasor "absorbs" the minimal negligence <br>of the former and the latter bears all liability. See id.; seealso Santiago v. Becton Dickinson & Co., 571 F. Supp. 904, 911-14 <br>(D.P.R. 1983) (comparing efficient cause and absorption <br>principles). <br> These theories have particular pertinence here. Ruiz's <br>alleged cocaine intoxication formed the foundation not only for the <br>defendants' insistence that Ruiz was guilty of negligence, but also <br>for their insistence that Hernndez was not negligent. With the <br>benefit of the cocaine evidence, the jurors may well have balanced <br>the proofs of negligence quite differently. After all, they found <br>Ruiz 59% negligent even without the damaging evidence suggesting <br>that his judgment and driving ability may have been impaired by <br>cocaine at the time of the crash. The additional evidence, if <br>ultimately shown to be admissible, easily could lead a rational <br>jury to find Ruiz's negligence to have been so great as to <br>overwhelm Hernndez's negligence. <br> An erroneous evidentiary ruling requires vacation of a <br>jury verdict if the ruling excludes evidence and "the exclusion <br>results in actual prejudice because it had a substantial and <br>injurious effect or influence in determining the jury's verdict." <br>United States v. Shay, 57 F.3d 126, 134 (1st Cir. 1995) (citation <br>and internal quotation marks omitted). In order to determine <br>whether a particular ruling had a sufficiently pernicious effect on <br>a verdict, a reviewing court must resist the temptation to deal in <br>abstractions, and must mull the ruling in context, giving due <br>weight to the totality of the relevant circumstances. See Nieves- <br>Villanueva v. Soto-Rivera, 133 F.3d 92, 102 (1st Cir. 1997). To <br>sustain the verdict, the reviewing court must be able to say with <br>a fair degree of assurance that the erroneous ruling did not <br>substantially sway the jury. See Ladd, 885 F.2d at 957 (citing <br>Kotteakos v. United States, 328 U.S. 750, 765 (1946)). We can <br>muster no such assurance here. <br> We reach this conclusion despite the somewhat awkward <br>procedural posture in which this appeal arises. In the <br>prototypical "exclusion of evidence" case, the court of appeals <br>assesses the effect that a piece of evidence, wrongly withheld from <br>the jury, likely would have had if introduced. See, e.g., <br>Espeaignnette v. Gene Tierney Co., 43 F.3d 1, 5-9 (1st Cir. 1994). <br>This case is different. Even with the misplaced Daubert obstacle <br>removed, the dosage testimony is not necessarily admissible. <br>Rather, its admissibility depends to some extent upon whether <br>certain other evidence, specifically, the toxicology results and <br>the impairment testimony, prove to be admissible. Without the <br>former (to establish the basis for Dr. O'Donnell's dosage opinion) <br>and the latter (to explain the probable effects of Ruiz's cocaine <br>use on his driving), the dosage testimony, though deemed reliable <br>in the Daubert sense, might not be admissible in the long run. <br>Yet, when a trial court erroneously excludes evidence, and the <br>exclusion meets the standard criteria of harmfulness, the harm is <br>not cured by a mere possibility that other appropriate grounds for <br>exclusion of the same evidence may later be found to exist. The <br>question is one of degree and the choice of remedies (including <br>whether to require a new trial or merely remand for further <br>findings) is ours. See 28 U.S.C. 2106. <br> In this instance, we think that the defendants' chances <br>of succeeding in their effort to introduce the cocaine-related <br>evidence are promising enough that the improper exclusion of the <br>dosage testimony, coupled with the errors regarding the court's <br>consideration of the impairment testimony, can be said to have <br>materially curtailed the defendants' opportunity to present their <br>theory of the case to the jury. This, in turn, worked a <br>substantial and injurious effect on the jury's ability to evaluate <br>liability. Taking into account all aspects of the situation, we <br>are persuaded that vacation of the judgment, rather than a remand <br>for further findings, is the fairest course. A new trial will <br>allow a judge appropriately to ascertain the admissibility of <br>expert testimony and a jury armed with all reliable and relevant <br>evidence to weigh issues of comparative fault on a scale that is in <br>balance. To this end, we reject the plaintiffs' claim that any <br>error committed by the trial court was benign. <br>III. CONCLUSION <br> We need go no further. By excluding Dr. O'Donnell's <br>dosage testimony, the district court exceeded the scope of its <br>discretion under Daubert. This fundamental error infected certain <br>other evidentiary rulings. On the facts of this case, there is too <br>great a risk that these rulings, in cumulation, had a substantial <br>and injurious influence upon the jury's determinations. Hence, we <br>reverse the district court's Daubert ruling, vacate the judgment <br>below, and order a new trial. We emphasize that, in doing so, we <br>hold only that the dosage testimony is sufficiently reliable to be <br>admissible. We do not pass upon the ultimate admissibility of that <br>evidence (which, as we have said, depends upon the admissibility of <br>the toxicology results, see supra note 7, and the admissibility of <br>the correlative impairment testimony). By like token, we do not <br>pass upon the ultimate admissibility of either the impairment or <br>causation testimony. That evidence must be reexamined within the <br>limits dictated by Daubert and its progeny. <br> <br>Reversed and remanded for a new trial.</pre>
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991 F.2d 725
UNITED STATES of America, Plaintiff-Appellee,v.Ernest Lee JENNINGS, Defendant-Appellant.
No. 92-6117.
United States Court of Appeals,Eleventh Circuit.
May 26, 1993.
John A. Lentine, Sheffield, Sheffield, Sheffield & Lentine, P.C., Birmingham, AL, for defendant-appellant.
Frank W. Donaldson, U.S. Atty., and Raymond L. Johnson, Jr., Asst. U.S. Atty., Birmingham, AL, for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before COX and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.
DUBINA, Circuit Judge:
1
Appellant Ernest Lee Jennings ("Jennings") was charged with (1) knowingly forcibly assaulting, resisting, impeding and interfering with Officer Kevin Lee Poole ("Poole") of the Bureau of Prisons while he was engaged in his official duties, in violation of 18 U.S.C. § 111(a)(1) (Count I); and (2) knowingly forcibly assaulting, resisting, impeding and interfering with Lieutenant Edwin L. Hughston ("Hughston") of the Bureau of Prisons while he was engaged in his official duties, in violation of 18 U.S.C. § 111(a)(1) (Count II). After a trial by jury, Jennings was acquitted on Count I but convicted on Count II.
2
Jennings appeals his conviction on the grounds that the district court (1) committed reversible error by refusing to quash the indictment, declare a mistrial or grant a continuance based on prosecutorial misconduct or improprieties regarding the grand jury that indicted him; (2) abused its discretion by failing to grant an evidentiary hearing regarding his motion to quash the indictment and dismiss prosecution on the ground of selective prosecution; and (3) committed reversible error by failing to give his proposed jury instructions. In addition, Jennings appeals his sentence on the ground that the district court erred in applying the United States Sentencing Guidelines ("U.S.S.G." or the "Guidelines"). While we find no merit in Jennings' arguments regarding his conviction, we hold that the district court erred in applying the Guidelines. Accordingly, we affirm Jennings' conviction but vacate his sentence and remand for resentencing.
I. BACKGROUND FACTS
3
At the time of the offenses charged in the indictment, Jennings was incarcerated at the Federal Correctional Institute, Talladega, Alabama, serving a prison sentence for several convictions. Poole, a correctional officer, stopped Jennings and asked him to produce his identification card. Jennings responded that he did not have the card. Poole told Jennings to get the card and Jennings refused. Poole detained Jennings and called Hughston, who was Poole's supervisor. Hughston had basically the same conversation with Jennings and then told Poole to handcuff Jennings and take him to segregation. With Hughston watching, Poole began to handcuff Jennings, and Jennings struck Poole in the mouth with his right fist causing him to lose consciousness for a moment. Jennings then turned on Hughston and struck him twice. Additional correctional officers arrived and subdued Jennings.
4
As a result of the altercation, Poole had a three-quarter inch cut through his upper lip requiring a three-level suture and several other abrasions and cuts. Hughston also received multiple abrasions and cuts. Both men were treated at a local hospital and immediately released.
II. ANALYSIS
A. Grand Juror
5
During the trial the government disclosed the grand jury testimony of the single grand jury witness pursuant to the Jencks Act, 18 U.S.C. § 3500 (requiring government to disclose to criminal defendant any prior statement made by government witness that relates to the witness' trial testimony). The disclosed portion of the grand jury proceeding contained a statement by an unidentified grand juror that he/she was a friend of Hughston. After thanking the grand juror for that information, the Assistant United States Attorney promised to get back to the grand juror concerning his/her statement. Although it is not part of the record, the government alleges that it did get back to the grand juror and that it asked additional questions about the relationship between the grand juror and Hughston. The government did not disclose the additional information, however, because it was not related to the witness' trial testimony, and therefore was not Jencks material.
6
After Jennings received the disclosed portion of the grand jury proceeding, he moved the court to conduct an evidentiary hearing on the matter and to give him additional time to investigate; in the alternative he moved for a mistrial or to quash the indictment on the basis of prosecutorial misconduct.1 The district court denied the motion because Jennings failed to show how he was prejudiced by the relationship between the grand juror and Hughston.
7
Jennings contends that the district court erred in requiring him to show that he was prejudiced by the grand juror's relationship with Hughston because the district court refused to grant a continuance or conduct an evidentiary hearing to allow him to discover evidence of prejudice. Jennings' argument is flawed because he has failed to consider the impact of the harmless error rule, Fed.R.Crim.P. 52(a). We have applied the harmless error rule to similar facts in a habeas corpus case and have determined that a conviction on an indictment makes this type of grand juror problem harmless. Porter v. Wainwright, 805 F.2d 930 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987).
8
In Porter a grand juror was related by marriage to the murder victims, but we held that even assuming arguendo that the grand juror's presence was error, the error was harmless because the defendant was convicted of the murders. Following United States v. Mechanik, 475 U.S. 66, 70, 106 S.Ct. 938, 941-42, 89 L.Ed.2d 50 (1986), in which the Supreme Court held that a subsequent conviction on an indictment made harmless the error of having two witnesses testify before a grand jury simultaneously, we stated that while a grand jury's function is to prevent a defendant from having to defend against a crime for which there is no probable cause, a petit jury's guilty verdict establishes both probable cause and guilt. Porter, 805 F.2d at 941. We went on to say that the error of a grand juror knowing a victim was no different from the error held harmless by the Supreme Court in Mechanik of having two witnesses testify before a grand jury simultaneously. Id. at 942. Furthermore, we held that Mechanik controlled the issue of whether any error created by the prosecutor failing to reveal the grand juror's relationship with the victims was harmless. Id. We held that the conviction made harmless the government's failure to disclose the relationship between the grand juror and one of the victims and since the defendant could not prevail on this claim he was not entitled to an evidentiary hearing on the issue. Id.
9
While the holding in Porter is directly applicable to this case and would dictate that Jennings' conviction renders harmless the grand juror's relationship with Hughston and any prosecutorial misconduct related to the disclosure of the relationship, its holding may have been cast in doubt by the Supreme Court's decision in Bank of Nova Scotia v. United States, 487 U.S. 250, 254, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988). In Bank of Nova Scotia the Court addressed the appropriate standard for determining whether to dismiss an indictment for nonconstitutional error prior to the conclusion of a trial. The Court adopted the standard articulated by Justice O'Connor in her concurring opinion in Mechanik: "dismissal of the indictment is appropriate only 'if it is established that the violation substantially influenced the grand jury's decision to indict,' or if there is 'grave doubt' that the decision to indict was free from the substantial influence of such violations." Bank of Nova Scotia, 487 U.S. at 256, 108 S.Ct. at 2374 (quoting Mechanik, 475 U.S. at 78, 106 S.Ct. at 945-46 (O'Connor, J., concurring)). In Mechanik Justice O'Connor had stated that this standard rather than the majority's reliance on the defendant's subsequent conviction should be used to determine whether an error in grand jury proceedings is harmless. 475 U.S. at 76-78, 106 S.Ct. at 945.
10
We do not need to decide the impact of Bank of Nova Scotia on Porter, however, because even if we apply the Bank of Nova Scotia standard here the errors, if any, remain harmless. A grand jury need find only that there is probable cause to believe that a crime was committed and that the defendant was the party who committed the crime. See United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 617, 38 L.Ed.2d 561 (1974). Applying the Bank of Nova Scotia standard, we must determine whether the grand juror's friendship with Hughston substantially influenced the grand jury's decision to indict or whether there is grave doubt that the decision to indict was free from the substantial influence of the relationship. The government presented overwhelming evidence to the grand jury for it to find probable cause to believe that Jennings committed the offenses against Hughston and Poole. The grand jury witness testified that Jennings intentionally forcibly struck and injured Hughston and Poole, both federal officers engaged in their official duties at the time, and Jennings was not acting in self-defense. Therefore, we do not have a grave doubt that the grand juror's friendship with Hughston had a substantial influence on the decision to indict. Likewise, the government's failure to disclose the remainder of the colloquy with the grand juror is also harmless. Even if Jennings had this information, whatever it may be, his argument still fails because there was overwhelming evidence to support the grand jury's decision to indict.
11
Regardless of whether we apply the Mechanik/Porter conviction standard or the Bank of Nova Scotia substantial influence standard the errors, if any, regarding the grand juror's relationship with Hughston and the government's failure to disclose the remainder of the colloquy with the grand juror are harmless. Thus, the district court did not err in refusing to quash the indictment, declare a mistrial, grant a continuance or conduct an evidentiary hearing.
B. Selective Prosecution
12
Three days before the trial was scheduled to begin, Jennings filed a motion to quash the indictment and dismiss prosecution on the ground of selective prosecution. Jennings requested an evidentiary hearing on his motion. The motion was filed forty-two days after the cutoff date for pretrial motions. Jennings attached no affidavits or other evidence to the motion. The district court denied the motion on the grounds that it was not timely and that it was insufficient to raise a claim of selective prosecution.
13
Jennings contends that the district court erred by refusing to grant him an evidentiary hearing regarding the motion. His contention is meritless, however, because of the two reasons given by the district court at the time it denied the motion.
14
First, the district court denied the motion because it was not timely. We review a denial of a motion to quash an indictment on the basis that it was not timely under an abuse of discretion standard. See Brooks v. United States, 416 F.2d 1044, 1047 (5th Cir.1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970).2 Federal Rule of Criminal Procedure 12(c) requires that a defendant raise "defenses and objections based on defects in the indictment" prior to trial. Rule 12 further provides that if a defendant fails to raise this defense by the time set by the local court (forty-five days prior to trial in this case), or by the expiration of any extension given by the court, the court will consider the objections waived. Fed.R.Crim.P. 12(f). The court may grant relief from the waiver if the defendant shows cause. Id.
15
Jennings filed his motion forty-two days after the deadline for pretrial motions, so he waived his objection to the indictment and the district court could consider the motion only if Jennings showed cause for his delay. Jennings, however, made only a general allegation in his motion that he did not file it earlier because he did not have the knowledge on which to base the motion. He never alleged that he could not have discovered the facts on which he based his motion through the exercise of reasonable diligence. As a result, Jennings did not show cause for his delay, and the district court did not abuse its discretion in denying the motion as untimely filed.
16
A second basis for the district court's denial of the motion was that it did not state a claim for selective prosecution.
17
In order to prevail in a selective prosecution defense, a defendant must meet the heavy burden of (1) making a prima facie showing that he has been singled out for prosecution although other similarly situated persons who have committed the same acts have not been prosecuted; and (2) demonstrate that the government's selective prosecution was unconstitutional because actuated by impermissible motives such as racial or religious discrimination. An evidentiary hearing is not automatically required; instead, the defendant must present facts "sufficient to create a reasonable doubt about the constitutionality of a prosecution...."
18
United States v. Silien, 825 F.2d 320, 322 (11th Cir.1987) (per curiam) (citations omitted) (upholding denial of motion to quash indictment on basis of selective prosecution and denial of evidentiary hearing on motion). "This heavy burden imposed upon defendants is indicative of the policy of restraint that derives from a respect for executive, prosecutorial discretion implicit in constitutional separation of powers." United States v. Lichenstein, 610 F.2d 1272, 1281 n. 4 (5th Cir.1980).
19
Here, Jennings presented only an offer of proof that an inmate would testify that he had assaulted a Mexican or Spanish officer at Talladega and was not federally prosecuted and that another officer at Talladega would testify that she had been assaulted by an inmate who was not prosecuted. Jennings' attorney stated that he expected the evidence to show that inmates were federally prosecuted for assault on prison officers only when the officers were white. This offer of proof is insufficient because Jennings failed to show that either situation involved "similarly situated persons who have committed the same acts." Jennings' conduct involved an assault on two correctional officers requiring both officers to receive medical treatment. Both incidents fail to help Jennings' selective prosecution claim because he did not allege that they were of the same severity. See Owen v. Wainwright, 806 F.2d 1519, 1524 (11th Cir.1986) (holding that habeas petitioner failed to make claim of selective prosecution because he did not allege that prior offenders' crimes "approached the magnitude or recklessness" of his conduct). In addition, the alleged incident involving the female prison guard is unavailing to Jennings because he is attempting to show that his prosecution had a race based motive and he failed to allege the race of either the officer or the inmate. As a result, the statements of the two witnesses are not sufficient to create a reasonable doubt as to the constitutionality of Jennings' prosecution. We conclude that the district court did not err in denying Jennings' motion to dismiss or quash the indictment on the basis of selective prosecution or in refusing to grant an evidentiary hearing on the motion.
C. Jury Instructions
20
At the end of the trial, Jennings requested two jury instructions regarding the amount of force a correctional officer may use and the scope of a correctional officer's employment. The district court rejected both instructions as improper and refused to give them. Jennings now argues that the district court erred in refusing to give the instructions.
21
A trial court's refusal to give a requested instruction is reversible error only if (1) the substance of the instruction was not covered in an instruction given, (2) the requested instruction is a correct statement of the law, (3) the requested instruction deals with an issue properly before the jury, and (4) the party seeking the requested instruction suffered prejudicial harm by the court's refusal.
22
United States v. Hooshmand, 931 F.2d 725, 734 (11th Cir.1991). Since these four elements are in the conjunctive, if the requesting party cannot show any one of the elements, then the district court did not commit reversible error. See Id.
23
Jennings argues first that the district court erred by refusing to give his requested charge number eight, which states:
24
I charge you ladies and gentlemen of the jury as to the following rule and regulation of the Bureau of Prisons:
25
That prior to any calculated use of force, the ranking custodial official (ordinarily the captain or shift lieutenant), a designated mental health professional, and others shall confer and gather pertinent information about the inmate and the immediate situation. Based on their assessment of that information, they shall identify a staff member(s) to attempt to obtain the inmate's voluntary cooperation and, using the knowledge they have gained about the inmate and the incident, determine if force is necessary.
26
I further charge you that staff of the Bureau of Prison staff shall use only that amount of force necessary to gain control of the inmate.
27
(28 CFR Ch. V, § 552.21(c), § 552.22(a) (7-1-91 ed.)).
28
Jennings' argument fails because the first part of the requested instruction does not deal with an issue that was properly before the jury and the second part of the instruction was covered in an instruction given by the district court.
29
The first part of the instruction, dealing with the use of calculated force, does not apply to the facts of this case. The federal regulation upon which Jennings based this part of the instruction states that the requirement for a conference and an attempt to secure voluntary cooperation applies "in situations where an inmate is in an area that can be isolated (e.g. a locked cell, a range) and where there is no immediate, direct threat to the inmate or others." 28 C.F.R. § 552.20(c). Jennings was in an open area near the dining hall with many other inmates present; thus, the provision does not apply here.
30
Furthermore, the second part of the instruction dealing with the amount of force a staff member may use to gain control of an inmate was covered by the instruction given by the district court: "[s]uch correctional officers are prohibited from using unnecessary force against prison inmates. Any force used by a correctional officer must be reasonable given all the surrounding circumstances." R4-419. The given instruction correctly stated the law regarding the amount of force a staff member may use against an inmate.
31
Jennings also contends that the district court committed reversible error by refusing to give his requested charge number nine, which states:I further charge you ladies and gentlemen of the jury that you may consider whether the alleged victims in this case were in compliance with the rules and regulations of the Bureau of Prisons that I have previously instructed you on in considering whether the alleged victims were acting outside or beyond the reasonable scope of their employment.
32
Jennings is mistaken in his contention because this requested instruction is not a correct statement of the law. A correctional officer may commit what is later determined to be an illegal act in handling a prisoner but still may be acting within the scope of his employment. United States v. Cunningham, 509 F.2d 961, 963 (D.C.Cir.1975). The test is not whether the officer is abiding by laws and regulations in effect at the time of the incident, but whether the officer is on some "frolic of his own." See, e.g., United States v. Kelley, 850 F.2d 212, 214 & n. 6 (5th Cir.), cert. denied, 488 U.S. 911, 109 S.Ct. 267, 102 L.Ed.2d 255 (1988); Cunningham, 509 F.2d at 963. A prisoner may not forcibly resist an officer, even if the officer is committing an illegal act, unless the officer is outside the scope of his employment. Cunningham, 509 F.2d at 963.
33
Since neither of Jennings' requested jury instructions meet the criteria for determining reversible error for failure to give a jury instruction, the district court is due to be affirmed on this issue.
D. Sentence
34
The district court sentenced Jennings to the statutory maximum thirty-six month sentence for assault of a federal official, 18 U.S.C. § 111(a), to run consecutively with his existing sentences.3 The district court classified the offense as aggravated assault under U.S.S.G. § 2A2.2, resulting in a base offense level of fifteen, because it found that even though Hughston suffered only bodily injury, Poole suffered serious bodily injury. Although Jennings was acquitted of assaulting Poole, the district court determined that Poole's injuries could be considered for sentencing purposes because the court was satisfied by a preponderance of the evidence that Jennings assaulted Poole. The district court then added four points to the base offense level under U.S.S.G. § 2A2.2(b)(3)(B) because the "victim," Poole, suffered serious bodily injury. The district court also increased Jennings' base offense level three points for assaulting an official victim in a manner creating a substantial risk of serious bodily injury under U.S.S.G. § 3A1.2. The district court calculated a criminal history category of five for Jennings and a total offense level of twenty-two. While this results in a sentence of seventy-seven to ninety-six months under the Guidelines, the district court applied the statutory maximum sentence under 18 U.S.C. § 111(a) of thirty-six months.4
35
Jennings argues that the district court committed error by classifying his offense as aggravated assault under U.S.S.G. § 2A2.2 and increasing his base offense level for a victim's serious bodily injuries merely because of Poole's injuries. He contends that Poole's injuries were not serious, but, even if they were, his base offense level should not be increased based on an assault for which he was acquitted. Jennings further argues that the district court erred in increasing his base offense level for a substantial risk of serious bodily injury to an official victim under § 3A1.2(b).
36
We review a district court's findings of fact during sentencing for clear error, 18 U.S.C. § 3742(e), and we review de novo the district court's application of the Guidelines to the facts, United States v. Kirkland, 985 F.2d 535, 537 (11th Cir.1993); United States v. Shriver, 967 F.2d 572, 574 (11th Cir.1992).
37
Guideline § 1B1.2(a) requires that a court first "determine the offense guideline section ... most applicable to the offense of conviction (i.e., the offense conduct charged in the count of the indictment or information of which the defendant was convicted)." We have determined that "offense of conviction" refers "only to the conduct charged in the indictment for which the defendant was convicted," while "offense conduct" is broader and "refers to the totality of the criminal transaction in which the defendant participated and which gave rise to his indictment, without regard to the particular crimes charged in the indictment." United States v. Ignancio Munio, 909 F.2d 436, 438 n. 2 (11th Cir.1990); United States v. Scroggins, 880 F.2d 1204, 1209 n. 12 (11th Cir.1989). Thus, the appropriate guideline section is determined solely by conduct charged in the indictment for which the defendant has been convicted.
38
Here, Jennings was convicted of assaulting Hughston under 18 U.S.C. § 111(a), so only that assault may be considered in determining the appropriate guideline section. The two possible guideline sections for assault of a federal officer under 18 U.S.C. § 111(a) are U.S.S.G. § 2A2.2 (Aggravated Assault) and § 2A2.4 (Obstructing or Impeding Officers). Under the Guidelines " '[a]ggravated assault' means a felonious assault that involved (a) a dangerous weapon with intent to do bodily harm (i.e., not merely to frighten), or (b) serious bodily injury, or (c) an intent to commit another felony," U.S.S.G. § 2A2.2, comment. (n. 1), while obstructing or impeding an officer merely involves "a victim [who] was a governmental officer performing official duties," U.S.S.G. § 2A2.4, comment. (n. 1). The assault against Hughston involved none of the three bases for aggravated assault, so that guideline section cannot apply for the assault against Hughston. Guideline § 2A2.4 (Obstructing or Impeding Officers) is the applicable guideline section because at the time of the assault Hughston was "a governmental officer performing official duties."
39
The next step in determining the sentence is to determine the guideline range by considering relevant conduct, if appropriate. U.S.S.G. § 1B1.3. While we have held that relevant conduct includes "evidence of the defendant's conduct relating to counts on which the defendant was indicted but acquitted at trial," United States v. Averi, 922 F.2d 765, 765 (11th Cir.1991) (per curiam); cf. U.S.S.G. § 1B1.3(a) comment. (n. 1 & backg'd), this conduct can be considered "unless otherwise specified [only when determining] (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics, (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three," U.S.S.G. § 1B1.3(a).
40
The cross reference provision for § 2A2.4 (Obstructing or Impeding Officers) states that "[i]f the defendant is convicted under 18 U.S.C. § 111 and the conduct constituted aggravated assault, apply § 2A2.2 (Aggravated Assault)." U.S.S.G. § 2A2.4(c)(1). Since § 1B1.3(a) requires that relevant conduct be applied to determine cross references "unless otherwise specified," we must decide whether this cross reference requires the application of relevant conduct or specifies otherwise. If the cross reference specifies that only conduct related to the offense of conviction can be used to determine whether the cross reference applies, the district court erred in considering Jennings' conduct related to Poole in applying § 2A2.2 (Aggravated Assault).
41
While other circuits generally have held that conduct for which the defendant was acquitted must be considered when a relevant cross reference does not specify that such conduct should be excluded,5 we could find no case from this or any other circuit in which a court considered whether a cross reference fell within the "unless otherwise specified" exception to the requirement in § 1B1.3 that relevant conduct be considered. Since the cross reference in § 2A2.4 requires conviction and then states "and the conduct constituted aggravated assault," it seems plain that "conduct" refers to conduct related to conviction. Therefore, this cross reference falls within the "unless otherwise specified" exception, and a court cannot consider relevant conduct in deciding whether to apply it. Because the district court could not consider Jennings' conduct regarding Poole and Jennings' conduct regarding Hughston does not satisfy any of the three bases for aggravated assault, the district court erred in applying § 2A2.2 (Aggravated Assault). Thus, the district court also erred in applying the four point increase in § 2A2.2(b)(3)(B) for serious bodily injury to a victim of aggravated assault because § 2A2.2 itself is inapplicable.6
42
Furthermore, the district court erred in applying the increase for an assault against an official victim, § 3A1.2(a), for two reasons. First, rather than § 2A2.2 (Aggravated Assault), the district court should have applied § 2A2.4 (Obstructing or Impeding Officers), and Application Note 1 to § 2A2.4 states that "[t]he base offense level reflects the fact that the victim was a governmental officer performing official duties. Therefore, do not apply § 3A1.2 (Official Victim) ..." Second, the official victim increase applies only when the offense of conviction was motivated by the victim's status as a law enforcement or corrections officer, U.S.S.G. § 3A1.2(a), or when the defendant commits an assault against a law enforcement or corrections officer during the course of an offense or the flight therefrom creating a risk of serious bodily injury, U.S.S.G. § 3A1.2(b). The district court here applied the increase for the latter reason. Application Note 5, however, states that for the second ground to apply the assault must occur while "in the course of, or in the immediate flight following, another offense." U.S.S.G. § 3A1.2, comment. (n. 5) (emphasis added). Here there was no other offense, so the increase cannot apply.
43
Because the district court erred in sentencing Jennings under U.S.S.G. § 2A2.2 and § 3A1.2, we must vacate Jennings' sentence and remand this case for resentencing.
III. CONCLUSION
44
We find no error in the district court's refusal to quash the indictment, declare a mistrial or grant a continuance based on prosecutorial misconduct and/or improprieties regarding the grand jury that indicted Jennings. Nor did the district court abuse its discretion in refusing to grant an evidentiary hearing regarding Jennings' motion to quash the indictment and dismiss prosecution on the grounds of selective prosecution. The district court's refusal to give Jennings' proposed jury instructions was also correct. Accordingly, we affirm Jennings' conviction. Nonetheless, because we hold that the district court erred in applying the Guidelines, we vacate Jennings' sentence and remand for resentencing.
45
AFFIRMED in part, VACATED in part and REMANDED.
1
Jennings had filed an earlier motion to dismiss or quash the indictment on the basis of selective prosecution. The merits of that motion are discussed below
2
Decisions of the former Fifth Circuit, handed down prior to October 1, 1981, are binding precedent in this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)
3
Because Jennings was sentenced on February 11, 1992, the district court applied the Sentencing Guidelines contained within the November 1991 Guidelines Manual
4
Guideline § 5G1.1(a) states that "[w]here the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence."
5
See United States v. Kussmaul, 987 F.2d 345 (6th Cir.1993) (holding that cross reference in § 2G3.1, Importing, Mailing, or Transporting Obscene Matter, to § 2G2.2 for an "offense involv[ing] transporting, distributing, receiving, possessing, or advertising to receive material involving the sexual exploitation of a minor" applies where defendant was acquitted of ordering child pornography through the mails); United States v. Concepcion, 983 F.2d 369, 385-89 (2d Cir.1992) (holding that court must apply cross references in § 2K2.1, possession of firearms by previously convicted felon, and § 2K2.2, possession of unregistered firearms, which specified that a court apply higher offense levels "[i]f the defendant used the firearm in committing or attempting another offense," despite defendant's acquittal of narcotics conspiracy and use of a firearm in relation to narcotics trafficking when the court is persuaded by a preponderance of the evidence that defendant used firearm in connection with narcotics conspiracy); United States v. Masters, 978 F.2d 281, 284-85 (7th Cir.1992) (holding that the court could consider evidence of defendant murdering his wife as underlying racketeering activity under § 2E1.1(a)(2) even though defendant was not convicted of murder because the guideline "speaks of the underlying activity and not an underlying conviction ")
6
Since the guideline for aggravated assault does not apply in this case, we need not reach the issue of whether the district court properly considered Poole's injuries when applying the increase for injuries to the "victim" under § 2A2.2(b)(3)
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210 P.3d 780 (2007)
WITHEROW
v.
STATE, BD. OF PAROLE COMM'RS.
No. 42499.
Supreme Court of Nevada.
September 21, 2007.
Decision without published opinion. Affirmed/Reversed/Remanded.
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16 F.3d 1223NOTICE: 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.
UNITED STATES of America, Plaintiff-Appellee,v.Tony THOMAS, Defendant-Appellant.
No. 93-5740.
United States Court of Appeals, Sixth Circuit.
Feb. 1, 1994.
Before: KENNEDY, JONES and SUHRHEINRICH, Circuit Judges.
ORDER
1
This cause having come on to be heard upon the record, the briefs and the oral argument of the parties, and upon due consideration thereof,
2
It is ORDERED that the judgment of the district court be, and it hereby is, affirmed upon the opinion of the district court.
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Order Michigan Supreme Court
Lansing, Michigan
May 10, 2019 Bridget M. McCormack,
Chief Justice
David F. Viviano,
Chief Justice Pro Tem
157930(17)
Stephen J. Markman
Brian K. Zahra
IN THE MATTER OF Richard H. Bernstein
Elizabeth T. Clement
THERESA M. BRENNAN, JUDGE Megan K. Cavanagh,
Justices
53rd DISTRICT COURT SC: 157930
JTC Formal Complaint No. 99
BEFORE THE JUDICIAL TENURE COMMISSION
____________________________________________/
On order of the Chief Justice, the motion of respondent judge to exceed the page
limitation for her brief in support of the petition is GRANTED. The 69-page brief
submitted on May 9, 2019, is accepted for filing.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
May 10, 2019
Clerk
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9 F.3d 1544
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.Daughton W. LACEY, JR., Plaintiff-Appellant,and Melvin R. Jenkins; J. Strother; C. Anderson; E.Asher; David Maddox Plaintiffs,v.Lonnie M. SAUNDERS, Defendant-Appellee.
No. 93-6536.
United States Court of Appeals,Fourth Circuit.
Submitted: October 25, 1993.Decided: November 15, 1993.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke.
Daughton W. Lacey, Jr., Appellant Pro Se.
Robert Harkness Herring, Jr., Assistant Attorney General, for Appellee.
Before ERVIN, Chief Judge, and PHILLIPS and WILKINSON, Circuit Judges.
PER CURIAM:
OPINION
1
Appellant appeals from the district court's orders denying relief on his 42 U.S.C. § 1983 (1988) complaint and denying his motion for reconsideration. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Lacey v. Saunders, No. CA-9296-R (W.D. Va. Mar. 22, 1993; Apr. 15, 1993). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
AFFIRMED
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951 F.2d 353
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Peter James WILLIAMS, Defendant-Appellant.
No. 88-2528.
United States Court of Appeals, Seventh Circuit.
Dec. 16, 1991.
Before CUMMINGS, COFFEY and KANNE, Circuit Judges.
ORDER
1
Peter James Williams pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a), for which he was sentenced to 63 months imprisonment. We affirmed. United States v. Peter James Williams, 901 F.2d 1394 (7th Cir.1990). The Supreme Court in turn vacated that judgment and remanded the matter for our reconsideration in light of United States v. Burns. 111 S.Ct. 2182 (1991). Williams now asks us to reverse and remand his case for resentencing on the grounds that the district court failed to provide him adequate notice of its intention to make an upward departure from the sentencing guidelines.
2
The facts underlying Williams' sentence are fully stated in our previous opinion and only need brief mention here. At the sentencing hearing, the district judge determined that Williams' total offense level was 20 and that his criminal history category was 3, resulting in an applicable Guidelines sentencing range of 41 to 51 months imprisonment. The judge concluded, however, that an upward departure from the Guidelines was warranted and accordingly sentenced Williams to 63 months. In reaching this conclusion, the judge reasoned that: (1) Williams' criminal history points did not reflect his true criminal history due to a consolidated sentence he received for two previous bank robberies; (2) the Guideline range did not adequately account for the repeat nature of Williams' bank robberies; and (3) the Guideline range did not address the increased danger created by Williams' possession of a firearm while under the influence of drugs.
3
We affirmed Williams' sentence, holding that the district judge relied on proper grounds to justify a departure from the Sentencing Guidelines. Williams, 901 F.2d at 1397. We also rejected Williams' contention that he did not receive adequate notice that the district court would depart on the grounds of his pattern of bank robberies and the added danger created by his firearm possession:
4
The transcript of Williams' sentencing illustrates that during the course of the hearing and before imposing sentence, the district judge highlighted all of the grounds he relied upon to justify the departure. In addition, the judge gave Williams' counsel several opportunities to orally object to both the grounds for departure and the factual bases underlying those grounds. Before imposing sentence, the district judge stated that he was disturbed by the fact that Williams was under the influence of drugs at the time he possessed a firearm during the bank robbery at issue in this case. Defense counsel was afforded and took the opportunity to respond to the judge's concerns on this issue. The judge also informed defense counsel that Williams' pattern of conduct was almost troublesome factor to him. Again, defense counsel was afforded and took the opportunity to respond to the judge's concern about Williams' pattern of conduct. In addition, the judge stated that he was seriously considering an upward departure because of the number of incidents in which Williams had threatened bank tellers with harm, with no assurance that Williams would not carry out those threats since he was under the influence of drugs at the time.
5
Id. at 1401.
6
In Burns, the Supreme Court confronted a similar notice issue. There, the Court held that a district court may not depart upward from the sentencing range established by the Sentencing Guidelines without first providing the parties with reasonable notice of its basis for such a ruling. Burns, 111 S.Ct. at 2187. In reaching this conclusion, the Court explained that permitting district court's to depart from the Guidelines sua sponte without first affording notice to the parties would render meaningless the parties' express right under Rule 32 of the Federal Rule of Criminal Procedure "to comment upon ... matters relating to the appropriate sentence." Id. at 2186-87. Although the Court did not define "reasonable notice," it did indicate that such notice must identify the ground on which the district court is contemplating an upward departure. Id. at 2187. Williams now contends that he did not receive reasonable notice within the meaning of Burns because the district court failed to expressly state that it intended to depart on the basis of Williams' prior conduct and possession of a firearm while under the influence of drugs. We agree.
7
The sentencing procedure used in this case (apparently the first contested guidelines case in the Northern District of Illinois) was sufficiently analogous to that used in Burns to warrant our returning the matter to the district judge rather than affirming the sentence under United States v. Dillon, 905 F.2d 1034 (7th Cir.1990). Although the district court had expressed his concern over certain factors which might increase Williams' sentence, the court never specifically identified two of these factors as a basis for departure as required by Burns. Only at the actual imposition of his sentence did Williams first learn that his prior conduct and possession of a firearm would be cited as grounds for a departure.
8
Therefore, this cause is ordered remanded to the district court with direction to vacate the sentence imposed and to resentence the defendant consistent with the requirements of United States v. Burns.
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111 F.3d 899
Lacey Welchv.Lonnie Mixon, U.S. Bankruptcy Court, Southern District of Alabama
NO. 95-6713
United States Court of Appeals,Eleventh Circuit.
Mar 18, 1997
S.D.Ala., 98 F.3d 1353
1
DENIALS OF REHEARING EN BANC.
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J-S17027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN EDWARD THOMAS,
Appellant No. 1006 WDA 2014
Appeal from the PCRA Order Entered May 24, 2014
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0004562-2009
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 10, 2015
Justin Edward Thomas (“Appellant”) appeals from the order dismissing
his petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541–9546. We affirm.
We have gleaned the relevant facts and procedural history of this case
from the record as follows: Appellant and Nicole Keppler (“Ms. Keppler”) are
the parents of a daughter, S.T. Appellant was alone with then three-week-
old S.T. during the afternoon hours of September 21, 2009. When Ms.
Keppler left Appellant and S.T. around noon that day, S.T. was in good
health and was drinking from a bottle. Several hours later, Appellant
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S17027-15
telephoned Ms. Keppler and stated that S.T. would not wake up. When Ms.
Keppler returned home, S.T. was unresponsive. Appellant and Ms. Keppler
took S.T. to Conemaugh Hospital in Johnstown. From there, S.T. was
transferred to Children’s Hospital of Pittsburgh. S.T. was diagnosed with a
subdural hematoma and retinal bleeding resulting from physical abuse. As a
result of her severe brain injuries, S.T. requires a feeding tube and is unable
to speak or sit by herself. Appellant was twenty years old at the time of the
incident.
When questioned by Detective Robert Weaver of the Westmoreland
County Detective Bureau, Appellant stated that he had been playing a game
with S.T. while she was lying on his lap; the game involved pumping S.T.’s
arms up and down while saying, “choo choo.” Appellant told Detective
Weaver that he may have shaken S.T. too hard during the game. As a
result of Detective Weaver’s investigation, Appellant was charged on October
8, 2009, with aggravated assault, endangering the welfare of children, and
recklessly endangering another person.
While waiting for discovery from the Commonwealth, appointed trial
counsel began searching for a pediatric radiologist to serve as an expert but
encountered difficulty in finding a suitable candidate. In the meantime, trial
counsel reached out to an acquaintance, forensic pathologist Dr. Karl
Williams, Chief Medical Examiner of Allegheny County, who provided pro
bono assistance to Appellant’s defense. Based on Dr. Williams’
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J-S17027-15
recommendation, trial counsel contacted Dr. James Smith, Chief Medical
Examiner of Beaver and Lawrence Counties. Dr. Smith was familiar with the
Commonwealth’s expert, Dr. Janice Squires. After speaking with Dr. Smith,
trial counsel petitioned for and received fees to hire him as an expert.
Order, 9/22/10. Based on their review of S.T.’s medical records, Drs.
Williams and Smith suggested that trial counsel contact Dr. Patrick Barnes, a
pediatric radiologist from Stanford Hospital, because of his expertise in
“shaken baby syndrome.”1 To enlist Dr. Barnes’ expertise, trial counsel
again requested fees from the trial court. Following a hearing, the trial court
denied trial counsel’s request. Order, 4/23/12.
Appellant entered a negotiated guilty plea on June 5, 2012, to all three
charges. At the guilty plea hearing, the trial court heard testimony from Ms.
Keppler, Detective Weaver, and Appellant. The trial court conducted an oral
guilty plea colloquy, and Appellant completed a written guilty plea colloquy.
Appellant was sentenced the same day to incarceration for a term of six to
____________________________________________
1
“A diagnosis of Shaken Baby Syndrome . . . indicates that a child found
with the type of injuries described above has not suffered those injuries by
accidental means. Thus, . . . expert testimony shows that the child was
intentionally, rather than accidentally injured.” Commonwealth v. Smith,
956 A.2d 1029, 1038 n.5 (Pa. Super. 2008) (quoting Commonwealth v.
Passarelli, 789 A.2d 708, 715 (Pa. Super. 2001)) (internal quotation marks
and brackets omitted).
-3-
J-S17027-15
twelve years, followed by five years of probation.2 Appellant did not file
post-sentence motions or a direct appeal.
On June 3, 2013, Appellant filed a timely pro se PCRA petition, raising
claims of an invalid guilty plea allegedly caused by trial counsel’s ineffective
assistance. Counsel filed an amended petition on November 12, 2013. The
PCRA court held an evidentiary hearing on February 27, 2014, at which trial
counsel testified regarding his unsuccessful search for a pediatric radiologist,
consultation with Dr. Williams, and his retention of Dr. Smith as a medical
expert. N.T. (PCRA), 2/27/14, at 10–30. According to trial counsel, both
Drs. Williams and Smith advised him to contact Dr. Barnes. Id. at 15–16.
Trial counsel stated that Dr. Smith would be able to provide a “good
defense,” but Dr. Barnes could have testified “beyond reproach” to
diagnostic tests that could have been conducted to rule out other possible
causes of S.T.’s injuries, such as a genetic condition. Id. at 20–21. Trial
counsel explained that his defense strategy was to argue that Appellant did
not hurt S.T. intentionally or negligently. Id. at 34–36. When his motions
to exclude Appellant’s damaging statements to Detective Weaver were
denied, trial counsel believed a plea was advisable. Id. at 43.
____________________________________________
2
If convicted, Appellant faced possible incarceration for twelve and one-half
to twenty-five years. N.T. (Motion), 4/23/12, at 9; N.T. (Plea), 6/5/12, at
36–38.
-4-
J-S17027-15
The PCRA court denied Appellant’s petition, concluding that “the
colloquy between the Court and [Appellant] more than satisfies the
requirement that the defendant was freely, knowingly, intelligently and
voluntarily entering his plea of guilty to the charges” and that trial counsel
was not ineffective. PCRA Court Opinion, 5/24/14, at 9. This appeal
followed.
Appellant states two questions for our consideration:
I. Was Appellant’s plea counsel constitutionally ineffective
because he initially retained the wrong type of medical
expert to properly defend the case?
II. Was Appellant’s plea counsel constitutionally ineffective
because he failed to counsel Appellant at the plea hearing
that his plea lacked a sufficient factual basis?
Appellant’s Brief at 3.
Our standard of review of an order denying PCRA relief is whether the
record supports the PCRA court’s determination and whether the PCRA
court’s determination is free of legal error. Commonwealth v. Phillips, 31
A.3d 317, 319 (Pa. Super. 2011) (citing Commonwealth v. Berry, 877
A.2d 479, 482 (Pa. Super. 2005)). The PCRA court’s findings will not be
disturbed unless there is no support for the findings in the certified record.
Id. (citing Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. Super.
2001)). Where supported by the record, a PCRA court’s credibility
determinations are binding on a reviewing court. Commonwealth v.
Mitchell, 105 A.3d 1257, 1277 (Pa. 2014) (citation omitted).
-5-
J-S17027-15
Both of Appellant’s questions challenge trial counsel’s representation.
In order to succeed on a claim of ineffective assistance of counsel (“IAC”),
an appellant must demonstrate (1) that the underlying claim is of arguable
merit; (2) that counsel’s performance lacked a reasonable basis; and (3)
that the ineffectiveness of counsel caused the appellant prejudice.
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001). “A failure to
satisfy any prong of the ineffectiveness test requires rejection of the claim of
ineffectiveness.” Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa.
2009) (citing Commonwealth v. Sneed, 899 A.2d 1067 (Pa. 2006)). We
have explained that trial counsel cannot be deemed ineffective for failing to
pursue a meritless claim. Commonwealth v. Loner, 836 A.2d 125, 132
(Pa. Super. 2003) (en banc). It is presumed that the petitioner’s counsel
was effective, unless the petitioner proves otherwise. Commonwealth v.
Williams, 732 A.2d 1167, 1177 (Pa. 1999). We are bound by the PCRA
court’s credibility determinations where there is support for them in the
record. Commonwealth v. Battle, 883 A.2d 641, 648 (Pa. Super. 2005)
(citing Commonwealth v. Abu-Jamal, 720 A.2d 79 (Pa. 1998)).
With regard to the second IAC prong, we have reiterated that trial
counsel’s approach must be “so unreasonable that no competent lawyer
would have chosen it.” Commonwealth v. Ervin, 766 A.2d 859, 862-863
(Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d 233 (Pa.
1981)). Our Supreme Court has long defined “reasonableness” as follows:
-6-
J-S17027-15
Our inquiry ceases and counsel’s assistance is deemed
constitutionally effective once we are able to conclude that the
particular course chosen by counsel had some reasonable basis
designed to effectuate his client’s interests. The test is not
whether other alternatives were more reasonable, employing a
hindsight evaluation of the record. Although weigh the
alternatives we must, the balance tips in favor of a finding of
effective assistance as soon as it is determined that trial
counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting
Commonwealth ex rel. Washington v. Maroney, 235 A.2d 349 (Pa.
1967)) (emphasis in original).
Appellant first claims that trial counsel was ineffective in hiring the
wrong medical expert. Appellant’s Brief at 9. According to Appellant, “[a]
defense expert with specialized knowledge, like Dr. Patrick Barnes, could
have argued to the jury one of the many differential explanations for the
appearance of a subdural hematoma including accidents, prenatal
conditions, genetic conditions, metabolic disorders and infectious disease.”
Appellant’s Brief at 13 (footnote omitted). The Commonwealth responds
that trial counsel “exercised a reasonable defense strategy in retaining Dr.
Smith as the defense expert, but also managed to secure qualified experts
as resources for the defense at no cost.” Commonwealth’s Brief at 15.
The PCRA court recounted trial counsel’s testimony regarding selection
of an expert as follows:
[Trial counsel] testified that he received full discovery from
the District Attorney’s Office in this case and his estimate was
that the medical records were at least a banker box full of said
records.
-7-
J-S17027-15
[Trial counsel] further testified that he went through all of
the discovery materials that he had been provided and that he
subsequently retained an expert for possible testimony at trial.
[Trial counsel] testified that while he was waiting for the
complete discovery in this matter he began to approach and
correspond with numerous experts to determine what their level
of interest would be in testifying as an expert in the instant case.
[Trial counsel] testified that because the Commonwealth’s
expert was a doctor from UPMC that many doctors in the
Pittsburgh area would not be willing to testify at trial.
[Trial counsel] then testified that he looked for a pediatric
radiologist outside of the UPMC network but someone who was
within a reasonable distance.
[Trial counsel] indicated that he had spoken with doctors
from [The] Johns Hopkins [Hospital], Hershey, NYU and Ohio
State, however they all wished to have a retainer of $10,000
upfront before they would begin looking at the records in this
case.
Prior to [trial counsel] talking with the pediatric
radiologists . . ., he indicated that he had hired a Dr. Smith who
had testified in these types of cases in the past. Also, [trial
counsel] testified that he had spoken to another doctor in the
Pittsburgh area who was very familiar with “shaken baby
syndrome.” The name of that doctor would be Dr. [K]arl
Williams and it was Dr. [K]arl Williams who suggested that
[defense counsel] contact Dr. Smith as a possible expert witness
in this case.
** *
[Trial counsel] indicated that Dr. Smith then agreed to do
a file review and said file review was done . . . .
[Trial counsel] testified that Dr. Smith was the Chief
Medical Examiner of Beaver County and that when [trial counsel]
asked Dr. Smith if he had handled any previous shaken baby
cases, he had indicated that Dr. Smith had told him that he had
handled several.
-8-
J-S17027-15
Also, [trial counsel] testified that it was important to him
([trial counsel]) that every time Dr. Smith had handled a case
like the present case, the Commonwealth’s witness was Dr.
Janice Squire from UPMC Children’s Hospital and this was the
witness that the Commonwealth intended to call as an expert in
their case-in-chief.
[Trial counsel] indicated that initially he was satisfied with
Dr. Smith, however, as more medical records were delivered to
[trial counsel] it was suggested to him [by Dr. Williams who was
acting pro bono and Dr. Smith] that one Dr. Patrick Barnes
should be consulted in this matter.
* * *
[Trial counsel] testified that because Dr. Barnes was a
professional acquaintance of Dr. Williams, [the latter] contacted
Dr. Barnes and Dr. Barnes agreed to review the medical records
and write an opinion as to what he thought. At this time, Dr.
Williams selected the necessary medical records from the
banker’s box and those records were mailed to Dr. Barnes. Dr.
Barnes wrote a report and sent it back to [trial counsel].
* * *
[Trial counsel] testified that after he had reviewed Dr.
Smith’s report [he believed] that Dr. Smith had provided [trial
counsel] and his client with a defense.
[Trial counsel] testified that he thought it was a good
defense[;] however, for other reasons outside of that, it was a
bad idea to go to trial but there was a defense that was a viable
option in this case.
[Trial counsel] testified that Dr. Barnes had provided to
him a report and that the conclusion of his report was that there
were a series of diagnostic tests that need to have been
performed to rule out other possible causes relative to the injury
to the child. Some of those causes could have been genetic and
it was possible that a certain genetic disorder may have caused
the injury in question.
* * *
-9-
J-S17027-15
When [trial counsel] was asked by the [PCRA] court
[whether] one of the biggest problems that he would face as a
defense attorney in the instant case was the fact that [Appellant]
made a statement saying that he was in sole custody of the child
and that the mother had related that when the child was placed
in [Appellant’s] custody, the child was perfectly fine and when
the mother had returned home, the child was in a very damaged
condition. [Trial counsel] answered that question by indicating
that the Court’s question was 100% accurate. [Trial counsel]
testified that he filed motions to try to keep that type of
information out[;] however motions filed by [trial counsel] were
denied by the [trial court]. [Trial counsel] further testified that
[Appellant] had made admissions in Children’s Hospital which
Detective Weaver had put in his report. When asked by counsel
for [Appellant] if it was [of] utmost importance in this case to
hire the right expert, [trial counsel] answered by saying that he
believed he did have the correct expert.
[Trial counsel] testified that he did go to Judge Hathaway
for a second expert and had requested that Judge Hathaway . . .
hire Dr. Barnes. [Trial counsel] testified that there was a
hearing held before Judge Hathaway and that after hearing on
the matter, [Judge Hathaway] felt that Dr. Smith first of all was
more competent to testify and second, she indicated that there
was not any more money available for experts in this case.
[Trial counsel] was asked why he did not hire Dr. Barnes
as his expert first and [trial counsel] responded by saying that
he was not aware of Dr. Barnes until he had already hired Dr.
Smith and had consulted with Dr. Williams.
PCRA Court Opinion, 5/24/14, at 11–14. Based on trial counsel’s testimony,
the PCRA court concluded as follows:
The Court finds [trial counsel’s] testimony credible and
encompassing as to the efforts he made in representing
[Appellant].
* * *
It is clear from the record that [trial counsel] spent a great
deal of time discussing the medical records and a possible
defense with his client between the time of the Preliminary
- 10 -
J-S17027-15
Hearing and the time that the case was called to trial at which
time a plea of guilty was entered by [Appellant].
* * *
At the date set for trial [trial counsel] faced an extremely
difficult and complicated situation. [Trial counsel] had a client
who maintained that he had not injured the infant child in any
manner, however, there was scientific evidence to be presented
by the Commonwealth that showed that [Appellant] was the sole
custodian of the child in question when the child received
massive traumatic brain injuries. Also, [trial counsel] knew that
his client has made additional inculpatory statements to
Detective Weaver and that his client could face an extremely
long period of time of incarceration if he were convicted of the
crimes facing him in this case. . . .
In reviewing this case, this Court finds that every effort
that [trial counsel] made in this case was designed to effectuate
the best interest of [his] client. [Trial counsel] requested and
received discovery, he attempted to find various medical experts
that would be a benefit to his client in this matter and in fact he
located two (2) doctors who had experience in “shaken baby
syndrome” cases and had retained one of those doctors to testify
at trial. Further, [trial counsel] had a second doctor advising
him about a possible defense in this matter. [Trial counsel] also
attempted to receive additional funds from the Court of
Westmoreland County through The Honorable Rita D. Hathaway
and after a hearing she determined that Westmoreland County
was not in a position to pay additional monies for additional
experts in this matter.
In reading the records it becomes clear to this Court that
[trial counsel] did everything possible that he could as a defense
attorney to protect the best interests of [Appellant] in this case.
* * *
In point of fact, this Court finds that the handling of [Appellant’s]
case by [trial counsel] was exemplary because he had taken
every possible step necessary to protect the best interests of his
client[.]
Id. at 17, 18, 20, 21.
- 11 -
J-S17027-15
Our review of the record reveals significant support for the PCRA
court’s determination and leads us to conclude that the PCRA court’s
determination is free of legal error. Trial counsel consulted with three
physicians, all notably employed and experienced with shaken baby cases.
Dr. Williams provided pro bono assistance in the form of consultations and
recommendations. N.T. (PCRA), 2/27/14, at 15–16, 51. Trial counsel
learned about Dr. Smith from Dr. Williams four or five months after the
preliminary hearing. Dr. Smith reviewed the medical records, provided a
written report, and was prepared to testify as an expert at trial. Id. at 12–
13, 17–18. Trial counsel learned about Dr. Barnes six to eight months after
he had hired Dr. Smith. Dr. Barnes provided pro bono assistance in the
form of consultations, a review of medical records, and a report. Id. at 15,
18–19, 21. Although trial counsel requested funds to hire Dr. Barnes, Judge
Hathaway denied the request because Dr. Smith could provide a good
defense and because no funds were available for a second expert. N.T.
(Motion), 4/23/12, at 20.3 Moreover, trial counsel testified that, if Appellant
had gone to trial, Dr. Barnes would have been the preferred expert, but Dr.
Smith’s testimony was a “viable option.” N.T. (PCRA), 2/27/14, at 20–21.
____________________________________________
3
According to Judge Hathaway, trial counsel could not be deemed
ineffective because he, in fact, requested a second medical expert, but she
exercised her discretion in refusing that request. N.T., 4/23/12, at 19.
- 12 -
J-S17027-15
The PCRA court deemed trial counsel’s testimony credible, and we may
not disturb that credibility determination because it is supported by the
record. PCRA Court Opinion, 5/24/14, at 17; Mitchell, 105 A.3d at 1277.
Based on trial counsel’s testimony, we discern nothing in the record even
remotely suggesting that trial counsel’s approach was “so unreasonable that
no competent lawyer would have chosen it.” Ervin, 766 A.2d at 862-863.
Given his training and experience as a forensic pathologist and his familiarity
with the Commonwealth’s expert, who also is a forensic pathologist, Dr.
Smith was qualified to provide expert testimony regarding S.T.’s injuries and
differential causes. Moreover, Dr. Smith would have access to Dr. Barnes’
report in formulating his opinions and presenting testimony to the jury.
Thus, we affirm the PCRA court’s determination that trial counsel was not
ineffective in hiring Dr. Smith as a medical expert.
Appellant’s second IAC claim is that trial counsel advised him to plead
guilty even though the Commonwealth failed to provide a sufficient factual
basis for the mens rea element of the aggravated assault charge.
Appellant’s Brief at 16, 20. Contrarily, the Commonwealth relies on
Appellant’s trial preparation with counsel and the testimony of Ms. Keppler
and Detective Weaver to demonstrate that Appellant was fully aware of the
facts surrounding S.T.’s injury when he pled guilty to aggravated assault.
Commonwealth’s Brief at 17, 20.
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The right to the constitutionally effective assistance of
counsel extends to counsel’s role in guiding his client with regard
to the consequences of entering into a guilty plea.
Allegations of ineffectiveness in connection with the
entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to
enter an involuntary or unknowing plea. Where the
defendant enters his plea on the advice of counsel,
the voluntariness of the plea depends on whether
counsel’s advice was within the range of competence
demanded of attorneys in criminal cases.
Thus, to establish prejudice, the defendant must show that there
is a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going
to trial. The reasonable probability test is not a stringent one; it
merely refers to a probability sufficient to undermine confidence
in the outcome.
Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa. Super. 2013) (internal
quotation marks and citations omitted).
A factual basis for the plea means:
the facts acknowledged by the defendant constitute a prohibited
offense. This salutary requirement is to prevent a plea where in
fact the legal requirements have not been met; and, to name
and define the offense, supported by the acts, so the defendant
will know the legal nature of the guilt to which he wishes to
plead.
Commonwealth v. Fluharty, 632 A.2d 312, 314 (Pa. Super. 1993)
(quoting Commonwealth v. Anthony, 475 A.2d 1303, 1307 (Pa. 1984)
(footnote omitted)).
Here, Appellant challenges the factual basis for the offense of
aggravated assault, which is defined as follows: “A person is guilty of
aggravated assault if he attempts to cause serious bodily injury to another
- 14 -
J-S17027-15
or causes such injury intentionally, knowingly or recklessly under the
circumstances manifesting extreme indifference to the value of human life.
18 Pa.C.S.A. § 2702(a)(1).” Commonwealth v. Smith, 956 A.2d 1029,
1036 (Pa. Super. 2008).
A person acts recklessly with respect to a material element of an
offense when he consciously disregards a substantial and
unjustifiable risk that the material element exists or will result
from his conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s conduct
and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable
person would observe in the actor’s situation.
18 Pa.C.S. § 302(b)(3). “The circumstances showing intent to cause serious
bodily injury apply with equal force to prove recklessness to a degree that
one would reasonably anticipate serious bodily injury as a likely and logical
result.” Smith, 956 A.2d at 1037 (citing Commonwealth v. Bruce, 916
A.2d 657, 663–664 (Pa. Super. 2007)). “Direct proof of [an a]ppellant’s
subjective thought process is unnecessary, because the Commonwealth
may prove its case through circumstantial evidence.” Id. at 1037–1038
(citation omitted).
The trial court expressly relied on the testimony of Detective Weaver
and Ms. Keppler “to form a factual basis for the entrance of the guilty plea in
this matter.” N.T. (Plea), 6/5/12, at 40. In response to the prosecutor’s
questioning, Ms. Keppler answered affirmatively that Appellant caused
serious bodily injury to S.T.; that S.T. did not have any physical or mental
problems prior to this incident; that S.T. cannot eat or move by herself, and
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she cannot speak; that Appellant endangered S.T.’s welfare by inflicting
serious bodily injury to S.T.; that Appellant acted knowingly or recklessly
when he inflicted the trauma upon S.T., but not intentionally as far as the
consequences of the injuries to S.T.. Id. at 8–13.
Detective Weaver testified as follows:
Well, my investigation began at Children’s Hospital where
[S.T.] had been taken. I then interviewed the emergency room
doctor at Conemaugh Hospital. I interviewed the pediatrician to
ascertain if there [were] any preexisting conditions. The ER
doctor at Conemaugh told me he felt it was a child abuse case.
Then when the child was at Children’s, they ran the tests,
and due to the findings they found, they agreed that it was a
physical trauma case, an abuse case, shaken baby case.
I interviewed the mom, her aunt, another lady that was
with them on the day that this happened, September 21 st of
2009. Basically the information I had was about noon they left
[Appellant] with [S.T.] and when they left, [S.T.] was finishing
up a bottle. [Appellant] was holding her. And they were taking
[Ms. Keppler’s] sister back to the airport to fly back home. They
didn’t return home until about 4:00 in the afternoon. When they
returned home, [S.T.] was limp. She was unresponsive. And at
that point they took her to the emergency room at Conemaugh.
And then the diagnosis began. And due to the fact that
from the information I received from Children’s Hospital that the
doctor said that if [S.T.] was drinking a bottle at noon, this
injury had not occurred yet because she wouldn’t have been able
to drink a bottle because it was such a severe injury.
And both [Appellant’s] statement and the statement of
[Ms. Keppler], [that] he was feeding her a bottle when they left
[indicate that] . . . she was able to drink the bottle. The doctor
advised me that . . . the fact they came home at four and she
was in an unresponsive condition, and the fact that [Appellant]
told me that he was alone with the baby from noon to four, no
one else was there, based on these facts I filed the criminal
charges.
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J-S17027-15
* * *
The medical people did not advise me of any preexisting
conditions.
* * *
[Appellant] said that he was alone with the baby sitting on
the couch in the living room. He said that he had finished giving
[S.T.] her bottle and burped her. Laid down on the couch with
[S.T.] on top of him laying [sic] on his chest. The baby fell
asleep and [Appellant] put her in the rocker. About 3:00 p.m.
she woke up fussy. He changed her diaper and she was still
fussy. Then he tried to feed her and she was still fussy.
[Appellant] said that he then put her on his lap and she was
laying [sic] on her back with her head at his knees and her feet
at his waist. He said that he plays a game with her and would
pump her arms up and down and say “choo choo”. He said that
he started doing this.
At this point of the interview he began to cry and said, I
just wanted to wake her up. I was freaking out. He said that he
grabbed her by her forearms and shook her while she was on his
lap. He was just trying to wake her up. [Appellant] said first
that he shook her too hard, then he said he might have shaken
her too hard. And then I asked him if her head was moving back
and forth, and he said, a little but not a lot. He said he never
picked her up and shook her. He said, I was doing “choo choo,”
and it was probably too hard.
N.T. (Plea), 6/5/12, at 18–19, 47–48.
Although the PCRA court did not specifically address Appellant’s
second IAC claim in its decision, it concluded that counsel “did everything
possible that he could as a defense attorney to protect the best interests of
[Appellant]” and “it did everything possible to protect the rights of
[Appellant] and make sure his plea of guilty was freely, knowingly,
- 17 -
J-S17027-15
intelligently, and voluntarily made.” PCRA Court Opinion, 5/24/14, at 20.
We agree.
Detective Weaver’s and Ms. Keppler’s testimony, along with
Appellant’s incriminating statements, provide a sufficient factual basis to
support the mens rea element of aggravated assault—that Appellant acted
knowingly or recklessly when he played a game of “choo choo” with his
three-week-old daughter that, by his own admission, was “too hard.” N.T.
(Plea), 6/5/12, at 8–13, 18–19, 47–48. Appellant consciously disregarded a
substantial and unjustifiable risk that his conduct would result in serious
bodily injury to S.T. Thus, because Appellant’s underlying claim of an
insufficient factual basis lacks merit, we conclude that counsel was not
ineffective in advising Appellant to enter a guilty plea to the charge of
aggravated assault.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
- 18 -
| {
"pile_set_name": "FreeLaw"
} |
772 S.W.2d 497 (1989)
Joseph Alvin MORELOS, Appellant,
v.
The STATE of Texas, Appellee.
No. A14-87-439-CR.
Court of Appeals of Texas, Houston (14th Dist.).
May 18, 1989.
*499 Allen C. Isbell, Houston, for appellant.
Cathleen Herasimchuk, Houston, for appellee.
J. CURTISS BROWN, C.J., and ROBERTSON and CANNON, JJ.
OPINION
CANNON, Justice.
This is an appeal from a murder conviction. TEX.PENAL CODE ANN. § 19.02 (Vernon 1989). A jury found Joseph Alvin Morelos guilty of murder, as charged in the indictment, and the trial court assessed punishment at life imprisonment in the Texas Department of Corrections. Appellant's five points of error challenge the trial court's overruling his pre-trial motion to suppress and his trial objections to two State's exhibits and an allegedly improper question by the prosecutor. We affirm.
Shortly before midnight on November 15, 1985, Robert Norman Dale died from a gunshot wound to the face and neck inflicted at close range. Earlier that evening, Dale and his wife attended a movie shown at 9 p.m. at a theater in the Baybrook Mall in Houston. They had parked their pickup truck in the lot of the Sears store nearby because the mall parking lot was full. Robert watched only a little of the movie; after complaining of a headache, he left the theater and went to his truck to take a nap and wait for Mrs. Dale.
Mrs. Dale left the theater when the movie ended, shortly after 11 p.m. She walked to the pickup truck, looked in and saw that her husband was asleep. He had stretched out across the seat from a sitting position on the passenger side so that his head was near the steering wheel. As Mrs. Dale started to open the door on the driver's side, she looked up suddenly and saw the appellant open the door of his nearby car, get out quickly, walk around his car and walk directly toward her. She could see a gun in his raised hand. After opening the truck door, Mrs. Dale frantically tried to get inside while trying to rouse her husband. When she looked up, appellant had reached the front of the truck. He was looking directly at her and she got an almost full view of his face. As Mrs. Dale continued to struggle to get inside by trying to push up her husband's shoulders and torso, appellant stepped between the still open door and the driver's seat. Robert had awakened by then and had started to sit up; he only had time to scream before appellant aimed and fired a single, fatal shot into Robert's face at point blank range. Mrs. Dale was still attempting to get further inside the truck, but saw appellant's face a second time as he stood firing at her husband, whose body then slumped into her lap. Appellant aimed and fired two more shots, which hit Mrs. Dale in the arm and the leg, before fleeing in his car. Robert Dale died at the scene.
Police officers interviewed Mrs. Dale at a hospital emergency room later that night. *500 She told the officers she could recognize the assailant. She and another witness both said the murderer was wearing a green jacket.
Another witness who testified at the trial had attended the same movie as the Dales that evening. He left the theater at approximately the same time as Mrs. Dale. He had also parked near the Sears store and was walking toward the lot when he heard three shots. He saw a man walk briskly away from a pickup truck to a nearby car, get in and speed away. The witness wrote down the license plate numbers and call letters of the fleeing car as "694 GOW." He told the Houston Police Sergeants dispatched to the scene of the murder that he knew the "O" he had written was not correct. Sergeant John Swain knew this was so because Texas does not print the letter "O" on its license plates.
About an hour and a quarter after the killing, at 12:17 a.m., Officer Davidson of the Brazoria County Sheriff's Department saw a car in the ditch by the side of Highway 35 at a location about thirty miles from the Baybrook Mall. Appellant was in the car, a 1980 yellow Plymouth with the license plate 694 GDW. He had driven into the ditch and could not get out. When Officer Davidson investigated, appellant told him he must have fallen asleep and had no idea where he was. The officer could tell appellant had been drinking, although he did not appear intoxicated. Officer Davidson called a wrecker to pull appellant's car out of the ditch.
In the meantime and continuing through the early morning hours of Saturday, November 16, Sergeant Swain had searched twenty-four possible license combinations through the Department of Safety computer, substituting various letters for the "O" the witness had given him. Swaim eventually found a 1980 four door Plymouth with the license plate number, 694GDW, although he had other possible addresses based on different letter combinations. After investigating several of these addresses during the day on November 16, Swain and his associate, Sergeant Johnny Moore, located a yellow 1980 Plymouth in the driveway at 927 Gober Street. They also learned that Joseph Alvin Morelos, the appellant, and Joseph Ernest Morelos, among others, were apparently living at the address. Believing that the address and car were their "best possibility" based on their investigation, the officers began surveillance at the Gober Street address at approximately midnight that same night.
The officers saw a male jogger enter the house on Gober Street late Sunday evening, November 18. They later learned the man was the appellant. At 6:50 a.m. the next morning, November 19, the officers saw appellant come out of the house at 927 Gober Street, get into the Plymouth and drive away. Sergeant Swain radioed for a patrol unit to stop appellant's car. The officers then proceeded to follow and arrested appellant a short distance away after giving him his legal warnings. After appellant consented in writing to a search of his car, the officers found a black belt, key ring, double clip holder for an automatic weapon, camera, cassette recorder, .38 bullet and a green jacket which appeared to match eyewitness descriptions of the assailant's clothing. Mrs. Dale was transported from the hospital that afternoon to view a lineup. She identified appellant as the murderer without hesitation and also identified him at trial.
When he testified in his own behalf at trial, appellant claimed he was with friends at the house of Curtis Smith until about 10:30 p.m. on the night of the murder. Appellant testified he and Robbie Andrews left Smith's house to eat at a fast food restaurant. Appellant claimed he drove Andrews home, left "to go home" himself at around 11:15 p.m., but then drove alone down Almeda Genoa Road to "waste" time, although he was planning to return to pick up Andrews at 2:30 a.m. to leave on a hunting trip. Appellant admitted wearing a green jacket that night and drinking a substantial amount of alcohol. He also admitted he had placed his gun in the glove compartment of his car early in the evening of the murder. Andrews testified also; he confirmed the appellant was wearing a green jacket that evening.
*501 Appellant's first and second points of error question the trial court's overruling his motion to suppress the items the arresting officers recovered from his vehicle. Both points of error focus on testimony concerning a green jacket the officers seized from the vehicle. In his first point of error, appellant maintains his illegal, warrantless arrest tainted the admissibility of the items and any trial testimony relating to the items. Appellant raises an alternative argument in his second point of error: he concedes he executed a written consent for a search of his vehicle, but claims the form was invalid and therefore tainted the fruits of the search and any related testimony, based either on his illegal arrest or his failure to freely and voluntarily consent. Because the trial court alone resolves factual issues at a hearing on a motion to suppress, we will uphold its decision to overrule appellant's motion, provided it has support in the record. Green v. State, 615 S.W.2d 700, 707 (Tex.Crim.App. [Panel Op.]), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981); accord, Daniels v. State, 718 S.W.2d 702, 704 (Tex.Crim.App. 1986) (en banc), overruled on other grounds in Juarez v. State, 758 S.W.2d 772, 780 n. 3 (Tex.Crim.App.1988) (en banc) (appellate court views facts at hearing on motion to suppress in light most favorable to the ruling).
An arrest obtained without a warrant is inherently unreasonable as a general rule. Beasley v. State, 728 S.W.2d 353, 355 (Tex.Crim.App.1987) (en banc). Although a case-by-case assessment determines probable cause to support a warrantless arrest under the federal constitution, e.g., Pyles v. State, 755 S.W.2d 98, 109 (Tex.Crim.App.) (en banc), cert. denied, ___ U.S. ___, 109 S.Ct. 543, 102 L.Ed.2d 573 (1988), Texas law requires the State to satisfy one of the exceptions set forth in the Code of Criminal Procedure when police fail to obtain a warrant to arrest the accused. Id.; DeJarnette v. State, 732 S.W.2d 346, 349 (Tex.Crim.App.1987).
Appellant bases his objections on the exception created by TEX.CODE CRIM. PROC.ANN. art. 14.04 (Vernon 1977), which governs "Arrests when Felony Has Been Committed" and states:
Where it its shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused (emphasis added).
The statute safeguards against unreasonable seizure of the person and facilitates apprehension of suspects who would escape pending procurement of a warrant. See DeJarnette, 732 S.W.2d at 350.
Officers Swain and Moore pursued and arrested appellant without taking the time to procure a warrant when they followed him in his car from the 927 Gober Street address on the morning of November 19, 1985. For Article 14.04 to justify the arrest, the State had to show the officers had "satisfactory proof" that: 1) a felony had been committed; 2) the appellant was the offender; and 3) the appellant was "about to escape." DeJarnette, 732 S.W.2d at 349; accord, Sklar v. State, 764 S.W.2d 778, 780 (Tex.Crim.App.1987) (citing same).[1]
Evaluating compliance with the "about to escape" exception in Article 14.04 has proved difficult for Texas courts. See Stanton v. State, 743 S.W.2d 233 (Tex. Crim.App.1988) (en banc, McCormick, J., concurring). At a minimum, the facts of the particular case, the "concrete factual *502 situation spread on the record," must justify an Article 14.04 arrest. Stanton, 743 S.W.2d at 235, quoting King v. State, 631 S.W.2d 486, 497 (Tex.Crim.App.) (en banc), cert. denied, 459 U.S. 928, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982); DeJarnette, 732 S.W.2d at 352. As a general rule, the arresting officer's personal observations, or information the officers receive from a credible person, can supply the "satisfactory proof," Stanton, 743 S.W.2d at 235, and the State need not show that the accused was "actually escaping." West v. State, 720 S.W.2d 511, 514 (Tex.Crim.App. 1986) (en banc), cert. denied, 481 U.S. 1072, 107 S.Ct. 2470, 95 L.Ed.2d 878 (1987); cf., DeJarnette, 732 S.W.2d at 349; Fry v. State, 639 S.W.2d 463 (Tex.Crim.App. [Panel Op.] 1982), cert. denied, 460 U.S. 1039, 103 S.Ct. 1430, 75 L.Ed.2d 790 (1983) (opinion on State's motion for rehearing, en banc) (State need not "in fact" prove that offender was about to escape or that there was not time to obtain a warrant). Further, the information before the arresting officer need not convince him beyond a reasonable doubt that the accused would escape to be "satisfactory" under Article 14.04. DeJarnette, 732 S.W.2d at 349. Proof is "satisfactory" if it leads the arresting officers to reasonably believe the offender "would take flight if given the opportunity to do so," Stanton, 743 S.W.2d at 236, quoting West, 720 S.W.2d at 518, so that there is no time to procure a warrant. Fry, 639 S.W.2d at 476.
In our opinion, the State offered sufficient proof that Article 14.04 justified the warrantless arrest of the appellant. Officers Swain and Moore knew from their investigation and the eyewitness reports that a felony had been committed, thereby satisfying the first element of Article 14.04. They also knew the offender had escaped in a car whose general description matched, and whose license plates might match, the car parked in the driveway at 927 Gober Street, the site of their surveillance.
But the officers were not at all certain of the second element required by Article 14.04, that appellant was the offender. Although their investigation showed a car bearing license number 694GDW registered to the appellant, the officers' initial search for his address revealed only a post office box. Further investigation disclosed that several people, including two Messrs. Morelos, lived at the Gober Street address. The officers had "no idea" what either Mr. Morelos looked like when they began surveillance, although the description of the assailant obtained from eyewitnesses was "close" to the description of appellant the officers obtained through Department of Public Safety license records.[2] Moreover, the officers' search for prior addresses revealed one for appellant, two additional addresses for Joseph Ernest Morelos and a third prior address they shared. Under the totality of information apparent to the officers, Robert Dale's murderer was a person meeting appellant's description who might live at 927 Gober Street, where someone had parked what might be the escape vehicle. As of late Sunday, November 17, although Officer Swain conceded there had been time to get an arrest warrant, he lacked basis for a warrant since nothing more than suspicion connected appellant to the murder.
Only when the officers saw appellant leave the house on the morning of November 18 and enter the suspect vehicle did they have probable cause to believe he was the offender. A similar scenario occurred in DeJarnette, when police officers realized, only immediately before his arrest, that the accused met a witness's description of the offender. 732 S.W.2d at 353. By connecting appellant to the offense through the total circumstances perceived by the arresting officers, i.e., the eyewitnesses descriptions and his entering and *503 driving away in what was probably the suspect vehicle, the officers then had "satisfactory proof" that appellant was the offender, the second element required by Article 14.04. See King v. State, 631 S.W.2d at 497. This element, taken together with the officers' awareness that the suspect had previously fled the scene of the murder in what was probably the same car, provided the officers with "satisfactory proof" of the third element: reasonable belief that appellant would take flight again "if given the opportunity." West, 720 S.W.2d at 518. As in Trammell v. State, 445 S.W.2d 190 (Tex.Crim.App.1969), the officers' knowledge of the suspect's having once escaped justified a fear he would attempt to flee again. See Stanton, 743 S.W.2d at 237, citing Trammell, 445 S.W.2d at 193; see also, King, 631 S.W.2d at 497 (probable cause to believe accused was the offender, coupled with "circumstances already within the officers' knowledge" provided "well founded" basis for suspicion that accused would try to flee).
The instant case, like DeJarnette, differs markedly from cases like Sklar and Stanton. In Sklar, the court of criminal appeals held that police should have obtained a warrant because they knew the name and address of the accused and their informant gave no indication the accused would attempt to escape. 764 S.W.2d at 780. And although "[t]he mere fact of driving away from one's own house in the morning, without more, is not sufficient to show escape" under Article 14.04, Stanton, 743 S.W.2d at 236, that case is also distinguishable. In Stanton, the court of criminal appeals held that it would abrogate the escape provision of Article 14.04 to uphold the warrantless arrest of a suspect who was simply going from one place to another when the arresting officer knew the offender's name, knew the place where he was, lay in wait to arrest him if he left that place and admitted there was no other reason to justify a belief that escape might occur. 743 S.W.2d at 235. Under the concrete factual situation presented by this case, we conclude Article 14.04 authorized the officers' warrantless arrest of the appellant.[3]
Tex Code Crim.Proc.Ann. art. 14.03 (Vernon Supp.1989) provides an alternative basis for the warrantless arrest. Under Article 14.03(a), a peace officer may arrest persons without a warrant who are "found in suspicious places and under circumstances which reasonably show that such persons have been guilty of some felony." As in Woodward v. State, 668 S.W.2d 337 (Tex.Crim.App.1982), cert. denied, 469 U.S. 1181, 105 S.Ct. 939, 83 L.Ed.2d 952 (1985) (opinion on State's motion for rehearing, en banc), the arresting officers' had a well founded suspicion that appellant was the offender when they saw him driving what the officers reasonably believed was the car in which the suspect had made his getaway. See Thomas v. State, 681 S.W.2d 672 (Tex.App.Houston [14th Dist.] 1984, pet.ref'd) (a "suspicious place" can be any place where a person's actions or the circumstances give rise to a reasonable belief that the person had committed or was committing a felony). Under the totality of information before the officers, Article 14.03 also justified appellant's warrantless arrest.
Although appellant concedes he executed a written consent permitting Officers Swain and Moore to search his car, he disputes that document on two grounds in his second point of error. He first questions his consent "in light of the illegal arrest." While we overrule this contention because we have concluded that appellant's arrest was valid, we note that even an illegal arrest will not categorically exclude evidence obtained as a result of a consent search. E.g., Juarez v. State, 758 S.W.2d at 780. Appellant also contends the State failed to show he consented to the search by clear and convincing evidence. We cannot agree.
Warrantless searches, like warrantless arrests, are inherently unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 *504 L.Ed.2d 854 (1973). But a showing that appellant consented to the search of his vehicle can remove any taint from the evidence seized which would have resulted from: any illegality in the arrest, the arresting officers' acknowledged failure to first obtain a search warrant, or their lack of probable cause to search the car, provided the State offered clear and convincing evidence that appellant "freely and voluntarily" consented. See Juarez, 758 S.W.2d at 776, citing Schneckloth; Kolb v. State, 532 S.W.2d 87, 89 (Tex.Crim.App.1976); cf., Brown v. Illinois, 422 U.S. 590, 601-03, 95 S.Ct. 2254, 2260-61, 45 L.Ed.2d 416 (1975) (voluntary consent which is "sufficiently an act of free will" can even vitiate taint from evidence seized pursuant to an illegal arrest). The totality of circumstances determines whether appellant voluntarily consented to the search of his vehicle. Juarez, 758 S.W.2d at 776; cf., Eishenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.) (en banc), cert. denied, ___ U.S. ___, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988) (totality of circumstances test controls probable cause determinations for both warrantless and warrant seizures of persons and property). Voluntariness is a question of fact to be determined from the totality of all the circumstances, Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48.[4]
While noting the distinction between cases which dispute the accused's consent to search, like Juarez and the instant case, and cases which dispute the voluntariness of a confession, like Brown v. Illinois, the Juarez court nonetheless approved the four factors enunciated in Brown as "guidelines" for determining whether the totality of circumstances indicates voluntary consent to a search. 758 S.W.2d at 780. While the factors are "not absolutely controlling," they include: 1) whether the accused received a Miranda warning; 2) the time between the arrest and the consent to search; 3) the presence of intervening circumstances; and 4) the purpose and flagrancy of the official misconduct. Juarez, 758 S.W.2d at 780, 781.
Before applying the above factors, we note that the form which appellant signed indicates he had a constitutional right to require a search warrant and could refuse to consent. Appellant nonetheless authorized Officers Swain and Moore to search his vehicle and take any property found therein. The form further recites that the permission "is being given ... voluntarily without threats or promises of any kind and is given with my full and free consent."
Officers Swain and Moore and the appellant testified at the hearing on the motion to suppress. Although appellant denied receiving any warnings until he arrived at the police station, both officers testified that Officer Swain warned appellant of his Miranda rights at the scene before attempting to obtain his consent to the search. Since the officers' testimony supports the trial court's denial of appellant's motion to suppress, we are not at liberty to disturb its implied finding that appellant received a Miranda warning based only on appellant's disputed version of the facts. Green, 615 S.W.2d at 707; Daniels v. State, 718 S.W.2d at 704. Accordingly, we conclude the record reflects that appellant received a Miranda warning.
The second Brown factor is the time between the arrest or stop and the consent. Juarez, 758 S.W.2d at 781. The record indicates that very little time passed between the initial stop and arrest and Officer Swain's obtaining appellant's consent. This factor might ordinarily favor an accused, generally indicates a likelihood that "the taint of the illegal arrest or stop has not been purged," Id. (emphasis added)," but is the "least determinative" of the Brown factors. Id. The factor is thus of minimal importance when, as in the instant case, the police officers validly arrested the accused.
*505 The facts of appellant's case require that we address the third and fourth factors together: the presence of intervening factors and the purpose and flagrancy of official misconduct. Free and voluntary execution of a written consent to the search is an intervening factor that weighs heavily in favor of the State, Juarez, 758 S.W.2d at 782, but allegations of official misconduct in obtaining the consent would necessarily weaken the consent. Here again, however, the record contains conflicting versions of how freely and voluntarily appellant consented to the search.
Officer Swaim claimed he told appellant he could refuse to consent to a search of his automobile.[5] According to Swain, appellant stated he "didn't mind" and signed the form.[6] Swain denied using physical force and verbal and non-verbal intimidation to coerce the consent and stated that appellant was not handcuffed when he signed the form. Swain also testified that appellant indicated he understood the contents of the form. Appellant claimed Officer Swain coerced his consent by telling him "they were going to search the car and that I might as well go ahead and sign the consent that he was bringing up, because they were going to get a warrant to search the car anyway ... [h]e told me I didn't have any choice, and if I signed it things would go better." Although appellant claimed he was "intimidated" because the officers approached him with drawn guns, he conceded, under cross-examination, that the officers had holstered their guns by the time they had arrested him and placed him in the rear of the police car, where Officer Swain approached him to obtain his consent. He also conceded that no officer struck him at the scene. Faced with these conflicting versions of the incident, we must presume that by overruling appellant's motion to suppress, the trial court impliedly found that the officers did not coerce appellant's consent by overreaching or other misconduct and that appellant gave his written consent to the search freely and voluntarily. Green, 615 S.W.2d at 707; Daniels v. State, 718 S.W.2d at 704.
After applying all four Brown factors to the record before us, we conclude that the proof supports the trial court's implied finding that the State offered "clear and convincing" evidence of appellant's free and voluntary consent to the search of his vehicle.
Furthermore, we cannot agree with appellant's contention that the real evidence of the jacket and testimony that the fleeing suspect was wearing a green jacket both contributed to his conviction. Mrs. Dale's pre-trial and trial identification of the appellant were alone sufficient to sustain his conviction. We further note that in his "Statement of Person in Custody," appellant described his clothing on the night of the murder as a "real heavy Army field jacket" which "was that Army green in color ... It's real bright green in color...." In addition, Robbie Andrews testified the appellant was wearing a green jacket that evening. Accordingly, while we do not agree that the trial court erred in overruling appellant's motion to suppress, we hold that any possible error in admitting the evidence seized from appellant's vehicle was harmless beyond a reasonable doubt. TEX.R.APP.P. 81(b)(2). After reviewing the entire record, we conclude "that the minds of an average jury would not have found the State's case significantly less persuasive" had the trial court granted appellant's motion to suppress. Smith v. State, 744 S.W.2d 86, 94 (Tex. Crim.App.1987) (en banc), quoting Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972) (emphasis by court of criminal appeals).
In sum, we find no error in the trial court's denying appellant's motion to suppress because appellant's arrest was valid *506 under either Article 14.04 or 14.03 of the Code of Criminal Procedure and because the State offered clear and convincing evidence that appellant freely and voluntarily executed a written consent authorizing the arresting officers to search his vehicle. Alternatively, we hold that any error in overruling the motion was harmless beyond a reasonable doubt. We overrule the first and second points of error.
In his third point of error, appellant maintains the trial court erred by overruling his objection to State's Exhibit 62, a photograph of the Dale family. Appellant argues the photograph had no probative value and was prejudicial in view of his simultaneous offer to stipulate to the identity of the deceased. He also complains of the prosecutor's referring to the photograph during her closing argument. Before the State offered the photograph into evidence, Mrs. Dale had already testified that she and Robert Dale were husband and wife and that they had three sons, one of whom was her stepson. The photograph depicted those five individuals. There is no error in admitting a photograph when testimony offered without objection shows the same proof. Brown v. State, 696 S.W.2d 913, 914 (Tex.Crim.App.1985) (en banc); Brooks v. State, 599 S.W.2d 312, 318 (Tex. Crim.App.1979) (en banc); cf., Green v. State, 682 S.W.2d 271, 292 (Tex.Crim.App. 1984) (en banc), cert. denied, 470 U.S. 1034, 105 S.Ct. 1407, 84 L.Ed.2d 794 (1985) (a trial court abuses its discretion by admitting a photograph only when the probative value of a photograph is very slight and its prejudicial value very high); see also, TEX. R.CRIM.EVID. 403 (exclusion of relevant evidence on special grounds).
Appellant maintains admitting the photograph was highly prejudicial in this case because the prosecutor referred to the photograph in her closing argument, stating that the beauty of the Dale family unit, had been "shattered by the blackness of this defendant's heart." In addressing this contention, we note that appellant failed to object to the prosecutor's reference to the photograph of the Dale family and thereby waived any error, except that which contributed to conviction or punishment, by the combined effect of Tex.R. App.P. 81(b)(2) & 52(a). Accord, Sawyers v. State, 724 S.W.2d 24, 38 (Tex.Crim.App. 1986) (en banc) (steps for preserving claimed jury argument error). But even if appellant had objected, the prosecutor's argument would have been proper in this case as a response to argument initiated by appellant's trial counsel. See Modden v. State, 721 S.W.2d 859, 862 (Tex.Crim.App. 1986) (en banc) (response to opposing counsel's arguments is one of four permissible areas of jury argument). Appellant's trial counsel had referred to the "lovely Dale family" and "that fantastic family" at the beginning of his closing argument and referred again to "this family and these wonderful people" as he closed his argument. Under the circumstances, trial counsel invited the prosecutor's comments. Lastly, appellant's verbal offer to stipulate is not dispositive of his contentions because the stipulation was signed only after the jury returned its verdict. We overrule the third point of error.
Appellant's fourth point of error questions the trial court's overruling his objections to the probative value and "inherently prejudicial effect" of admitting two knives seized from his person at the time of his arrest. Texas law generally favors the admissibility of evidence which shows the circumstances surrounding the arrest of the accused, but evidence which is inherently prejudicial or irrelevant to any issue in the case is inadmissible. Maddox v. State, 682 S.W.2d 563, 564 (Tex.Crim. App.1985) (en banc). The standard for reversible error resulting from admission of such evidence is whether the trial court clearly abused its discretion. Id.; cf., Tex. R.App.P. 81(b)(2) (to warrant reversal, error must contribute to either conviction or punishment). Although appellant used a gun and not a knife to murder Robert Dale, we hold the State was entitled to show, as a circumstance surrounding appellant's arrest, that the officers found the two knives on his person. Maddox, 682 S.W.2d at 565, citing Williams v. State, 535 S.W.2d 637, *507 640 (Tex.Crim.App.1976). Finding no error, we overrule the fourth point of error.
Appellant's fifth point of error challenges the trial court's overruling his objection to questions the prosecutor posed to Robbie Andrews, his alibi witness, while cross-examining Andrews to impeach his alibi testimony. The prosecutor first questioned him by showing that although he could remember details which took place up until about 11:15 p.m. of the night of the murder, he could not remember whether he and the appellant actually went hunting at 2:30 a.m. as they had allegedly planned. The following exchange took place as the prosecutor was attempting to ask Andrews why he had not come forward earlier with his testimony:
THE PROSECUTOR: You know, of course, that your friend has been in jail this whole time?
ANDREWS: Yes, ma'am, I do.
THE PROSECUTOR: And even though he's been in jail this whole time, you haven't seen fit to go forward
APPELLANT'S TRIAL COUNSEL: Your Honor, I would object to that question and the entire subject of that, please. Would we remove the jury please?
THE COURT: Take the jury out.
Appellant moved for a mistrial outside the presence of the jury. He now maintains the prosecutor's question was "highly prejudicial and violated his constitutional right to the presumption of innocence."
Although appellant complains of the reference to jail confinement, he did not object until the prosecutor's second question. This was not a timely objection to the jail reference. See Tex.R.App.P. 52(a) (objection must be "timely"); accord, Turner v. State, 719 S.W.2d 190, 194 (Tex. Crim.App.1986) (en banc) (same). But even if appellant had objected, the prosecutor's questions were within the permissibly broad scope of proper impeachment of an alibi witness for bias. See Koehler v. State, 679 S.W.2d 6, 9-10 (Tex.Crim.App. 1984) (en banc). Moreover, we find beyond a reasonable doubt that error, if any, in the trial court's ruling made no contribution to appellant's conviction or punishment because appellant himself had already testified to having been released from jail on bond the day after his arrest. Further, the trial court's charge included an instruction on the presumption of innocence which informed the jury that the fact of arrest, confinement, indictment or other charge does not give rise to an inference of guilt. We may presume the jury followed the court's instruction. E.g., Rose v. State, 752 S.W.2d 529, 554 (Tex.Crim.App.1987) (opinion on court's own motion for rehearing, en banc). We overrule the fifth point of error.
We affirm the judgment of the trial court.
NOTES
[1] In Brooks v. State, 707 S.W.2d 703, 705 (Tex. App.Houston [1st Dist.] 1986, pet. ref'd), our sister court held that the showing required by Article 14.04 is the equivalent of "constitutional probable cause." Contra, Stanton v. State, 743 S.W.2d 233, 237 (Tex.Crim.App.1988) (en banc, McCormick, J., concurring). To meet constitutional muster, the facts of each case must show that at the moment of arrest, the facts and circumstances which are within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, would warrant a reasonable person's believing the accused has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964); E.g., Pyles, 755 S.W.2d at 109; Brown v. State, 481 S.W.2d 106, 110 (Tex.Crim.App.1972).
[2] Although the officers' investigation showed that appellant was shorter and heavier than Joseph Ernest Morelos, both men were under age thirty and had black hair and brown eyes. Accordingly, while the officers later learned that it was appellant whom they saw jogging and returning to the Gober street address late in the evening of Sunday, November 17, nothing beyond a "close" physical description tied him to the offense: the officers were not even certain that the jogger had come from the house they were watching.
[3] Although the record lacks testimony by the officers that they believed appellant would escape, this does not preclude our conclusion. See King, 631 S.W.2d at 497 n. 20.
[4] We refer to Schneckloth only for general principles since the Supreme Court expressly narrowed its decision to cases in which "the subject of the search is not in custody (emphasis added)." 412 U.S. at 248, 93 S.Ct. at 2059. Appellant was already under arrest when he executed the consent form.
[5] A peace officer need not inform the accused that he has a right to withhold his consent. Juarez, 758 S.W.2d at 781 n. 5.
[6] Appellant did not object during trial when Officer Swain denied any hesitancy in appellant's signing the consent form. Appellant also failed to object to Swain's testimony that appellant "indicated he didn't have anything to hide, that he was innocent" before signing the consent form.
| {
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IN THE SUPREME COURT OF IOWA
No. 09–0040
Filed October 29, 2010
THE TRAVELERS INDEMNITY COMPANY,
Appellant,
vs.
D.J. FRANZEN, INC.,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Douglas F.
Staskal, Judge.
Workers’ compensation assigned risk insurer seeks further review
of court of appeals’ decision affirming district court’s summary judgment
ruling for insured on insurer’s claim for additional premiums after
reclassification of insured’s workers. DECISION OF COURT OF
APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED
AND CASE REMANDED WITH INSTRUCTIONS.
CeCelia C. Ibson of Ibson Law Firm, Des Moines, for appellant.
Stanley J. Thompson of Davis Brown Law Firm, Des Moines, for
appellee.
2
BAKER, Justice.
The Travelers Indemnity Company (Travelers), a workers’
compensation assigned risk insurer, seeks further review of the court of
appeals’ decision affirming the district court’s summary judgment ruling
for the insured on Travelers’ claim for payment of additional premiums
as a result of Travelers’ reclassification of the insured’s workers as
employees. Travelers asserts that the court of appeals erred in
(1) determining Travelers could not raise the doctrine of exhaustion of
administrative remedies to bar the insured from presenting a defense to
Travelers’ suit and (2) determining the employment status of the
insured’s workers, arguing the court of appeals’ decision conflicts with
case law supporting the administrative resolution of the underlying
premium rate dispute. We hold the administrative exhaustion doctrine
bars the insured from raising a defense to Travelers’ claim. Accordingly,
the decision of the court of appeals is vacated, and the district court
judgment reversed.
I. Background Facts and Proceedings.
In September 2003, D.J. Franzen, Inc. (Franzen), an over-the-road
trucking company, applied for workers’ compensation insurance through
the State of Iowa’s assigned risk plan. Iowa’s assigned risk plan is a
statutorily created program that matches insurance providers with
employers who are unable to obtain workers’ compensation insurance on
the open market. See Iowa Code § 515A.15 (2003) 1 (outlining Iowa’s
assigned risk plan). Under Iowa law, employers are required to carry
workers’ compensation insurance for certain employees. See id. § 87.14A
(“An employer subject to this chapter and chapters 85, 85A, 85B, and 86
1The legislature has made several nonrelevant changes to some of the applicable
provisions. Unless otherwise noted all references are to the 2003 Iowa Code.
3
shall not engage in business without first obtaining insurance covering
compensation benefits or obtaining relief from insurance as provided in
this chapter . . . .”).
The National Council on Compensation Insurance, Inc. (NCCI) has
been licensed as an approved rating organization in Iowa. See id.
§ 515A.6 (providing authority for organizations to apply to the insurance
commissioner of Iowa to become licensed rating organizations for specific
types of insurance). NCCI administers Iowa’s assigned risk plan. See id.
§ 515A.15B (“An agreement among licensed insurers to offer workers’
compensation insurance for applicants unable to procure workers’
compensation insurance through ordinary methods shall be
administered by a rating organization licensed under this chapter.”).
NCCI selected Travelers to be Franzen’s workers’ compensation
insurance carrier.
Travelers’ contract with Franzen offered insurance coverage for one
year, starting September 15, 2003. At the time Travelers offered Franzen
the coverage, Travelers calculated Franzen’s deposit premium to be
$1775. This figure was computed using figures Franzen had provided on
its application to the assigned risk plan. On this application, Franzen
was required to identify its total number of employees, its estimated
annual payroll, and the class code of each employee that needed to be
covered under the policy. The cost of the insurance plan varies based on
the covered employees’ class code and total payroll. Franzen listed seven
clerical office employees with an estimated annual payroll of $230,000.
Franzen did not list drivers on its application because it considered its
drivers to be owner-operators, not employees.
As the administrator of Iowa’s assigned risk plan, NCCI prepares
reports for the insurers participating in the plan. These reports contain
4
information concerning the insured’s workers’ compensation coverage
and claims for three years prior to the date of the report. NCCI prepared
a report for Travelers, revealing that in the previous three years Franzen
carried workers’ compensation insurance for its drivers in addition to its
clerical employees. After receiving this report and discovering that
Franzen owned Hartland Lease Inc., a truck lease company, a Travelers’
underwriter became concerned with the status of Franzen’s drivers.
The underwriter for Travelers, Joseph Pinto, attempted to perform
a preliminary audit of Franzen’s employment practices, but Franzen was
allegedly uncooperative. Travelers claims that Franzen refused to give
Travelers’ auditors access to any documentation regarding the company’s
relationship with its drivers. As a result, Travelers sent Franzen a letter
stating that Franzen’s policy would be cancelled on January 14, 2004.
The letter stated that the coverage would not be reinstated until Franzen
cooperated with the preliminary audit. Franzen then provided copies of
contracts that stated the drivers were in fact owner-operators and did not
need to be covered by the policy.
After reviewing the sample contract between Franzen and its
drivers, Pinto declared that “any trucker signing these documents would
be excluded from coverage under our policy.” Thus, Travelers would
consider any driver who had signed a contract to be an owner-operator,
but all other drivers would be deemed employees and included in the
workers’ compensation policy. Travelers, however, determined that it
needed to perform a second audit in early 2004. After performing this
second audit, which included a review of Franzen’s payroll documents for
drivers, Travelers determined that only eight of Franzen’s drivers were
owner-operators, but the rest of the drivers were employees and should
5
be included under the insurance policy. This reclassification of drivers
significantly increased Franzen’s premium for the policy.
On April 16, 2004, Travelers sent Franzen a premium adjustment
notice showing that the company’s total premium had increased to
$580,601. Franzen refused to pay the increased premium, insisting it
had no employee drivers, only owner-operators that did not need to be
covered under the policy. Travelers refused to revise its audit. Travelers,
on several occasions, informed Franzen that if the company wished to
appeal the premium determination it must file a written request with the
NCCI. Franzen did not appeal the determination, nor did the company
pay the additional premium. The policy was cancelled on June 4, 2004.
After cancelling the policy, Travelers again adjusted Franzen’s premium.
The adjusted premium for the pre-cancellation term of the policy was
$552,436.
In June 2007, Travelers filed a petition seeking judgment against
Franzen for the increased premium. Franzen filed a motion for summary
judgment, arguing that its drivers were independent contractors and
should not have been included in the insurance policy. Travelers filed a
resistance to Franzen’s motion and a cross-motion for summary
judgment. Franzen also sought to strike Travelers’ cross-motion as
untimely. After a hearing on the motions, the district court denied
Travelers’ motion for summary judgment and granted Franzen’s motion.
The court did not address the motion to strike the cross-motion.
Travelers appealed and argued that as a matter of law, Travelers
alone was authorized to determine all matters related to the calculation
of premiums; the majority of Franzen’s drivers were correctly determined
to be employees; and Franzen’s failure to appeal Travelers’ decision to
6
NCCI constitutes a failure to exhaust administrative remedies and bars
Franzen’s defense of any and all claims.
The court of appeals determined Franzen did not need to exhaust
its administrative remedies to defend Travelers’ claims, and Travelers did
not generate a fact question as to whether the drivers at issue were
employees or independent contractors. The court of appeals affirmed the
district court’s grant of Franzen’s motion for summary judgment.
Travelers filed an application for further review with this court,
which we accepted.
II. Scope of Review.
The scope of review on a district court’s grant of summary
judgment is well established. We review rulings on motions for summary
judgment for the correction of errors at law. Farm Bureau Life Ins. Co. v.
Chubb Custom Ins. Co., 780 N.W.2d 735, 739 (Iowa 2010). A grant of
summary judgment is only appropriate when the “ ‘moving party [has]
affirmatively establish[ed] the existence of undisputed facts entitling that
party to a particular result under controlling law.’ ” Id. (quoting
Interstate Power Co. v. Ins. Co. of N. Am., 603 N.W.2d 751, 756 (Iowa
1999)). In determining whether this standard has been met, the record
must be viewed in the light most favorable to the nonmoving party.
Schoff v. Combined Ins. Co. of Am., 604 N.W.2d 43, 45 (Iowa 1999).
When no extrinsic evidence is offered on the meaning
of language in a policy, “the interpretation and construction
of an insurance policy are questions of law for the court.”
“[W]e adhere to the rule ‘that the intent of the parties must
control’ ” when construing insurance contracts. Except in
cases of ambiguity, the intent of the parties is determined by
what the policy says.
Farm Bureau Life Ins. Co., 780 N.W.2d at 739 (quoting Lee v. Grinnell
Mut. Reins. Co., 646 N.W.2d 403, 406 (Iowa 2002) (first quote); Swainston
7
v. Am. Family Mut. Ins. Co., 774 N.W.2d 478, 481 (Iowa 2009) (second
quote)). “We review questions of statutory construction for the correction
of errors at law.” Zimmer v. Vander Waal, 780 N.W.2d 730, 733 (Iowa
2010).
III. Discussion and Analysis.
A. Failure to Exhaust Administrative Remedies. Travelers first
claim of error is that the court of appeals erred in determining Travelers
could not use the doctrine of exhaustion of administrative remedies to
bar Franzen from presenting a defense in a suit for damages. Travelers
appears to be making two separate arguments for why the district court
erred in this determination.
First, Travelers argues that the language of the insurance contract
signed by Franzen incorporated the entirety of the NCCI Basic Manual’s
policies and procedures into the contract, and the dispute resolution
section of the Manual requires exhaustion of NCCI’s offered
administrative procedures.
Section IX of the Manual outlines NCCI’s dispute resolution
procedures. The pertinent provisions of this section provide:
Any person affected by the operation of the Plan
including, but not limited to, participating companies,
insureds . . . and assigned carriers, who may have a dispute
with respect to any aspect of the Plan . . . may seek a review
of the matter by the Plan Administrator by setting forth in
writing with particularity the nature of the dispute, the
parties to the dispute, the relief sought, and the basis
thereof. . . .
Appeals from employers and insurers on Plan matters
. . . shall be within the jurisdiction of the mechanism
established to handle such appeals under the applicable
rating law.
While the language of this section does provide the insured with an
administrative remedy to challenge the provider’s rate determinations,
8
there is nothing in this section that makes exhaustion of this remedy
mandatory.
Further, we are unable to find any language within Travelers’ and
Franzen’s insurance contract that incorporates the entirety of the NCCI
Basic Manual’s policies and procedures into the contract. At two
separate locations in the contract the contract states that “[t]he premium
for this policy will be determined by our Manuals of Rules,
Classifications, Rates and Rating Plans.” The NCCI Manual contains
specific sections with the titles “Premium Basis and Payroll Allocation,”
“Rules,” and “Rating Definitions and Application of Premium Elements.”
It is these Manual sections that are incorporated into Franzen’s contract,
not the section outlining NCCI’s dispute resolution procedures. We find
that the language of the insurance contract signed by Franzen did not
incorporate NCCI’s dispute resolution procedures into the contract.
Further, even if the dispute resolution section of the Manual had been
incorporated into the contract, there is no language in that section
making exhaustion of NCCI’s offered administrative procedure
mandatory.
Alternatively, Travelers argues that exhaustion of NCCI’s
administrative remedy was required by statute and case law. Travelers
asserts that under Iowa Code section 515A.9, use of the administrative
procedure offered by NCCI is required. This Code section provides:
Every rating organization and every insurer which makes its
own rates shall provide within this state reasonable means
whereby any person aggrieved by the application of its rating
system may be heard, in person or by the person’s
authorized representative, on the person’s written request to
review the manner in which such rating system has been
applied in connection with the insurance afforded the
person. If the rating organization or insurer fails to grant or
reject such request within thirty days after it is made, the
applicant may proceed in the same manner as if the
9
application had been rejected. Any party affected by the
action of such rating organization or such insurer on such
request may, within thirty days after written notice of such
action, appeal to the commissioner, who, after a hearing held
upon not less than ten days’ written notice to the appellant
and to such rating organization or insurer, may affirm or
reverse such action.
Iowa Code § 515A.9.
As a threshold matter, we must determine if section 515A.9 applies
to the dispute at issue here, premium disputes. Section 515A.9 provides
that Travelers and NCCI have the ability to set its own rates. “Rates” and
“rating systems” refer to overall rates applicable to classes of insurance
based on
past and prospective loss experience within and outside this
state; to the conflagration and catastrophe hazards, to a
reasonable margin for underwriting profit and contingencies,
to dividends, savings, or unabsorbed premium deposits
allowed or returned by insurers to their policyholders,
members, or subscribers, to past and prospective expenses
both countrywide and those specially applicable to this state,
and to all other relevant factors within and outside this
state.
Id. § 515A.3(1)(b); see also Iowa Admin. Code r. 191—60.4.
Pursuant to Travelers’ policy, premiums are then determined based
on “rates, rating plans, and classifications.” Section 515A.9 authorizes
dispute resolution procedures not only for both rates and rating systems
but also for those “aggrieved by the application of its rating system.”
Iowa Code § 515A.9. Since premiums are derived from rates and rating
plans, entities paying premiums “are aggrieved by the application” of the
rating system. Therefore, section 515A.9 provides a procedure for
premium disputes. Next, we turn to whether section 515A.9 requires
administrative exhaustion.
Administrative exhaustion is only imposed when two conditions
are present: (1) “an administrative remedy must exist for the claimed
10
wrong,” and (2) “the statutes must expressly or impliedly require that
remedy to be exhausted before resort to the courts.” N. River Ins. Co. v.
Iowa Div. of Ins., 501 N.W.2d 542, 545 (Iowa 1993). We address each
requirement in turn.
NCCI is a rating agency organization licensed to do business in the
State of Iowa under chapter 515A. However, this Court has noted that
“[t]he legislature has delegated to the commissioner of insurance
authority to determine whether rates charged by companies providing
workers’ compensation insurance are excessive.” Travelers Indem. Co. v.
Comm’r of Ins., 767 N.W.2d 646, 650 (Iowa 2009) (citing Iowa Code
section 515A.1 for the proposition that chapter 515A’s purpose “is to
promote the public welfare by regulating insurance rates to the end that
they shall not be excessive”). The Commissioner of Insurance has
exercised this statutory authority by delegating a portion of its charged
task to NCCI. See Iowa Code § 515A.15B (stating Iowa’s assigned risk
plan for workers’ compensation insurance “shall be administered by a
rating organization licensed under this chapter”). NCCI is acting, at least
when offering these dispute resolution procedures, as an arm of the
Commissioner of Insurance and in an administrative manner.
Furthermore, the statutory scheme spells out a remedial
administrative process for premium disputes. Iowa Code section 515A.9
clearly outlines the process to be followed and allows for appeals of NCCI
decisions to the commissioner. Id. § 515A.9 (“Any party affected by the
action of such rating organization or such insurer on such request may,
within thirty days after written notice of such action, appeal to the
commissioner, who, after a hearing held upon not less than ten days’
written notice to the appellant and to such rating organization or insurer,
may affirm or reverse such action.”). These procedures are coupled with
11
Iowa Code section 515A.18, which provides that judicial review of the
commissioner’s decisions must be done in accordance with Iowa Code
chapter 17A. See id. § 515A.18(3) (“Judicial review of the actions of the
commissioner may be sought in accordance with the terms of the Iowa
administrative procedure Act.”). Because NCCI is acting pursuant to the
commissioner’s delegation of authority and the statutory scheme
expresses a clear administrative remedial process an administrative
remedy exists for the claimed wrong in this case.
With respect to the second requirement, we must determine
whether Iowa Code section 515A.9 expressly or implicitly requires
administrative exhaustion. Travelers has not provided us with any
statutory language that expressly requires NCCI’s dispute resolution
procedures be exhausted before the parties may resort to the courts, nor
have we found any.
Iowa Code section 515A.9 states that rating organizations licensed
under chapter 515A, “shall provide . . . reasonable means whereby any
person aggrieved by the application of its rating system may be heard.”
The statute does not explicitly require that the aggrieved individual
utilize those means. There is also nothing in the administrative rules
which requires parties to exhaust the dispute resolution procedures
offered by NCCI before resorting to judicial review. See generally Iowa
Admin. Code r. 191—60.4 (detailing the rate or manual filing
procedures). Finally, the language contained in NCCI’s Basic Manual is
permissive. It states that any aggrieved party “may seek a review of the
matter by the Plan Administrator.” (Emphasis added.) Since section
515A.9 does not expressly require administrative exhaustion we consider
whether the section’s remedial scheme impliedly requires exhaustion.
12
We look to the intent of the legislature in determining whether to
imply a requirement that administrative remedies be exhausted. Keokuk
County v. H.B., 593 N.W.2d 118, 125 (1999).
We consider the objectives the legislature sought to
accomplish and construe the statute to best affect legislative
intent. Where no explicit statutory direction exists, we
consider whether the exhaustion requirement would be
consistent with the statutory scheme, so that any implied
exhaustion requirement is tailored to fit the role the
legislature assigned to the agency.
Id. (citation omitted).
We find the comprehensive nature of the statute’s remedial scheme
implies that section 515A.9 is mandatory. The section provides detailed
procedures as well as means for an appeal to the commissioner of NCCI’s
determination. Iowa Code § 515A.9. In addition, Iowa Code section
515A.18 specifically provides that “[j]udicial review of the actions of the
commissioner may be sought in accordance with the terms of the Iowa
administrative procedure Act, chapter 17A.” The comprehensive
statutory scheme suggests exhaustion is implied under section 515A.9.
The purposes of the exhaustion doctrine further support a finding
that Franzen exhaust all available administrative remedies. The doctrine
is a highly utilitarian principle of administrative law both as
an expression of administrative autonomy and a rule of
sound judicial administration. The agency has been
legislatively created as an entity vested with its own powers
and duties. It should be free to work out its own problems,
and courts should not interfere with its work until the
agency has completed its task.
Pro Farmer Grain, Inc. v. Iowa Dep’t of Agric. & Land Stewardship, 427
N.W.2d 466, 469 (Iowa 1988). The exhaustion requirement is intended
to honor agency expertise by mandating that most matters be handled
within the agency. See IES Utils. Inc. v. Iowa Dep’t of Revenue & Fin., 545
13
N.W.2d 536, 538 (Iowa 1996). It is also intended to preserve judicial
resources. Id.
The exhaustion rule serves a legitimate state interest
in requiring parties to exhaust administrative remedies
before proceeding to court, thereby preventing an
overworked court from considering issues and remedies that
were available through administrative channels. It also
encourages the use of more economical and less formal
means of resolving disputes and is credited with promoting
accuracy, efficiency, agency autonomy, and judicial
economy.
2 Am. Jur. 2d Administrative Law § 474, at 402 (2004).
Mandating that Franzen exhaust its available administrative
remedies furthers these purposes. NCCI has expertise on how premiums
for workers’ compensation insurance should be calculated, as well as
how an employee’s status is determined. In addition, a determination by
NCCI may have finally resolved this controversy—thus preserving judicial
resources. The clear implication of this statutory scheme is that
individuals must exhaust the administrative remedies provided for in
Iowa Code chapter 515A before seeking review by the courts.
Franzen argues Travelers, as plaintiff, cannot use the exhaustion
doctrine offensively to bar Franzen from raising a defense to Travelers’
claim. Franzen cites attenuated authority for this position, and Travelers
does not argue the issue. We find two Supreme Court cases arising in
the Vietnam War and Selective Service System setting to be instructive.
See McGee v. United States, 402 U.S. 479, 91 S. Ct. 1565, 29 L. Ed. 2d
47 (1971); McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 23 L.
Ed. 2d 194 (1969). In these cases the Court considered whether the
government could offensively use the exhaustion doctrine to bar the
defendants from raising a defense to their respective criminal charges.
In McKart, the defendant alleged he was exempt from service as a matter
14
of statutory construction, and in McGee the defendant sought to raise a
conscientious objector defense; both defendants failed to exhaust these
defenses during the Selective Service’s administrative classification
process. McGee, 402 U.S. at 489, 91 S. Ct. at 1571, 29 L. Ed. 2d at 56;
McKart, 395 U.S. at 189–190, 193, 89 S. Ct. at 1660, 1662, 23 L. Ed. 2d
at 201.
The Court weighed the interests of the defendants against the
government’s interests that underlie the exhaustion doctrine. McGee,
402 U.S. at 484–86, 91 S. Ct. at 1569–70, 29 L. Ed. 2d at 53–54; McKart,
395 U.S. at 198–99, 89 S. Ct. at 1665, 23 L. Ed. 2d at 205–06. The
Court conceded “the harsh impact of the doctrine when it is invoked to
bar any judicial review” of the defendants’ claims. McGee, 402 U.S. at
484, 91 S. Ct. at 1569, 29 L. Ed. 2d at 53. Application of the exhaustion
doctrine to the defendants would ensure criminal convictions against the
defendants and bar them from raising potentially viable legal defenses.
However, the Court noted several important government interests
support the exhaustion doctrine such as permitting the development of
an administrative record, utilizing agency expertise, and deterring
deliberate flouting of the administrative process. Id. (citing McKart, 395
U.S. at 194–95, 89 S. Ct. at 1663, 23 L. Ed. 2d at 204).
In McKart the issue was one of pure statutory interpretation and
the court concluded the government’s interest in exhaustion did not
outweigh the harsh burden imposed on the defendant because statutory
interpretation does not require agency fact finding or expertise. McKart,
395 U.S. at 197–99, 89 S. Ct. at 1665, 23 L. Ed. 2d at 205–06. In
McGee, however, the primary issue was whether the defendant was in
fact a conscientious objector, an issue of fact. McGee, 402 U.S. at 490,
91 S. Ct. at 1571–72, 29 L. Ed. 2d at 56. The Court held the
15
government’s interest in agency fact finding, agency expertise, and
deterrence of deliberate refusal to participate in the administrative
process outweighed the harm to the defendant. Id. at 489–91, 91 S. Ct.
at 1571–72, 29 L. Ed. 2d at 56–57. The Court held the defendant in
McGee could not argue he was a conscientious objector as a defense to
his criminal charges. Id. at 491, 91 S. Ct. at 1572, 29 L. Ed. 2d at 57.
Using these balancing principles as a guide, we believe on these
facts the policies that underlie the exhaustion doctrine require us to
permit Travelers to offensively use the exhaustion doctrine. First, we
believe the “harsh impact” faced by Franzen if it is barred from asserting
its defenses is less than the impact imposed upon the defendant in
McGee. McGee is a criminal case, whereas here only a money judgment
is at issue. Id. at 480, 91 S. Ct. at 1567, 29 L. Ed. 2d at 51. We also
find these facts implicate the governmental interests that support the
exhaustion doctrine. The Commissioner of Insurance is charged with
setting applicable rates and the commissioner and, at times through
delegation, NCCI have the duty to resolve premium disputes. Franzen,
by refusing to utilize available administrative remedies, has inhibited the
opportunity for the input of agency expertise. Franzen also prevented
the development of an administrative record despite Franzen’s defense
requiring a factual analysis. Finally, Franzen made a deliberate decision
not to exercise its administrative remedies for at least three years despite
being notified in writing at least twice of its right to appeal to NCCI. As
the Supreme Court stated in McGee, “it is not fanciful to think that
‘frequent and deliberate flouting of administrative processes’ might occur
if [Franzen] and others similarly situated were allowed to press their
claims in court despite . . . failure to exhaust.” Id. at 491, 91 S. Ct. at
16
1572, 29 L. Ed. 2d at 57 (quoting McKart, 395 U.S. at 195, 89 S. Ct. at
1663, 23 L. Ed. 2d at 204).
Thus we hold that Franzen was required to exhaust the remedy in
section 515A.9 before asserting its defense in the courts. Franzen had
the ability to contest both the rate and the employment status of its
drivers. Having failed to do so, Franzen may not now litigate that which
could have been dealt with three years before this action was
commenced.
B. Motions for Summary Judgment. Because we hold that
Franzen was required to exhaust its remedy before NCCI, it may not now
contest either Travelers’ determination that the drivers were employees or
the premium charged. We need not address Franzen’s motion to strike
Travelers’ motion for summary judgment for lack of timeliness. The
district court summarily denied Franzen’s motion. Franzen has not
asserted the timeliness issue on appeal. It is therefore waived. Pierce v.
Staley, 587 N.W.2d 484, 486 (Iowa 1998) (“When a party, in an appellate
brief, fails to state, argue, or cite authority in support of an issue, the
issue may be deemed waived.).
Therefore, it must be taken as undisputed that the drivers were
employees and the appropriate premium was $550,661 which is
computed by the amount of the adjusted premium of $552,436 less the
$1775 previously paid. Because of this determination, the district court
erred in granting Franzen’s motion for summary judgment. It further
erred in determining that the drivers were not employees. Travelers’
cross-motion for summary judgment should have been granted and
judgment entered accordingly.
IV. Disposition. We therefore vacate the decision of the court of
appeals. We further reverse the decision of the district court granting
17
summary judgment to Franzen and remand with instructions to enter
summary judgment in favor of Travelers in the amount of $550,661.
DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF
DISTRICT COURT REVERSED AND CASE REMANDED WITH
INSTRUCTIONS.
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4340
_____________________________
BOBBY RICHARDSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Levy County.
Mark W. Moseley, Judge.
July 11, 2019
PER CURIAM.
AFFIRMED.
LEWIS, B.L. THOMAS, and ROBERTS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Bobby Richardson, pro se, Appellant.
Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.
2
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61 F.3d 799
Rhea Dawn JONES, Plaintiff-Counter-Defendant-Appellant,v.NEW YORK LIFE & ANNUITY CORPORATION, a Delaware corporation,Defendant-Counter-Claimant-Appellee.
No. 94-4059.
United States Court of Appeals,Tenth Circuit.
July 31, 1995.
R. Paul Van Dam of Anderson & Watkins, P.C., Salt Lake City, UT, for appellant.
Casey K. McGarvey of Van Cott, Bagley, Cornwall & McCarthy (Stephen Marshall with him on the brief), Salt Lake City, UT, for appellee.
Before ANDERSON, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BROWN, Senior District Judge.*
McWILLIAMS, Senior Circuit Judge.
1
Rhea Dawn Jones, the beneficiary under a policy of life insurance issued her deceased husband, Kelly Jones, by New York Life & Annuity Corporation (New York Life), brought suit in the United States District Court for the District of Utah, Central Division, against New York Life to recover under the terms of the policy. Jurisdiction was based on diversity. 28 U.S.C. Sec. 1332(a)(1). New York Life denied liability under the policy based on misrepresentations in the application for the insurance concerning Kelly Jones' health and asserted a counterclaim seeking rescission of the policy.
2
After a four-day trial to the court, the district court entered judgment in favor of Jones and against New York Life in the amount of $164,300, $100,000 thereof representing the face amount of the policy, and the remaining $64,300 representing prejudgment interest.
3
The principal issue at trial was whether Rhea Jones was bound by the several undisputed misrepresentations1 in the application for insurance. Jones' position on this matter was that, although there were misrepresentations in the application, her husband, Kelly Jones, had, in fact, given correct verbal answers to the agent of New York Life, Richard Doerr, concerning his blood pressure and his "blood condition," and that the latter had incorrectly recorded Kelly Jones' answers to questions propounded to him by agent Doerr. As concerns Kelly Jones' dependency on narcotic pain medications, Rhea Jones' position was that agent Doerr never asked Kelly Jones about that particular matter. In this regard, the district court agreed with Rhea Jones and found that Kelly Jones had made no misrepresentations to agent Doerr, that the misrepresentations in the application were solely attributable to Doerr and that his acts could not be attributed to Kelly Jones so as to bar his wife, Rhea Jones, from recovery on the policy issued by New York Life.
4
On appeal we reversed and remanded for further proceedings. See Jones v. New York Life, 985 F.2d 503 (10th Cir.1993). (No petition for rehearing was filed.) The gist of our opinion was that under Theros v. Metropolitan Life Insurance Co., 17 Utah 2d 205, 407 P.2d 685 (1965), Kelly Jones and his wife, Rhea Dawn Jones, the beneficiary under the policy of insurance issued Kelly Jones by New York Life, were bound by the misrepresentations contained in the application. In this connection, we noted that on August 8, 1984, Kelly Jones, Rhea Jones and Doerr had all signed the application, which was completed in the Jones' residence, and that immediately above their signatures appeared the following:
THOSE PERSONS WHO SIGN BELOW AGREE THAT:
5
1. All of the statements which are part of the application are correctly recorded, and are complete and true to the best of the knowledge and belief of those persons who made them.
6
2. No agent or medical examiner has any right to accept risks, make or change contracts, or give up any of NYLIC's [New York Life Insurance Company] or NYLIAC's [New York Life Insurance and Annuity Corporation] rights or requirements.
7
However, even though we concluded that Rhea Jones was bound by the misrepresentations in the application, we remanded the case with direction that the district court consider, and determine, whether Rhea Jones could still recover under the provisions of Utah Code Ann. Sec. 31-19-8(1), repealed in 1986, which provided that misrepresentations in an application for insurance would not prevent recovery on the policy unless the misrepresentations were (1) fraudulent, or (2) material either to the acceptance of the risk or to the hazard assumed by the insurer, or (3) the insurer would not have issued the policy if the true facts had been made known to the insurer either by the application for the policy or otherwise.
8
On remand, New York Life filed a motion for entry of judgment in its favor based on its belief that the evidence presented at the earlier trial showed that each of the three statutory grounds for precluding recovery on the policy as set forth in Utah Code Ann. Sec. 31-19-8(1) had been met, "any one of which would be sufficient to justify rescission under Utah Code Sec. 31-19-8(1), repealed 1986." Jones filed a response to New York Life's motion in which Jones asked that judgment be entered in her favor. Hence, both parties apparently were willing to have the district court resolve the remaining issues on the record as previously made.
9
After hearing, the district court granted New York Life's motion and later entered judgment rescinding the policy here involved and dismissing the action "in its entirety with prejudice and on its merits," and in line therewith also dismissed Rhea Jones' claim for punitive damages. In so doing, the district court found that the misrepresentations in the application were material to the risk assumed by New York Life and that, if it had known the true facts, it would not have issued the policy, and further that New York Life was not equitably estopped from relying on the representations in the application.
10
As indicated, there was more than one misrepresentation2 in the application, and the district court in its judgment made special note of the fact that Kelly Jones had never in any way disclosed to New York Life or its agent that he "had been counseled, treated and hospitalized because of dependency on narcotic analgesic medication" and that "New York Life is not estopped from relying on the misrepresentations in Mr. Jones' application for life insurance that he had not been so counseled, treated or hospitalized to avoid liability on the insurance policy."
11
Jones now appeals the judgment thus entered. Her position on appeal is, necessarily, that on the record as made the district court, as a matter of law, was compelled to deny New York Life's motion and to grant her request for judgment in her favor. That is not our view of the matter.
12
Our present task, of course, is to simply review the judgment of the district court entered on remand. Although the district court, in its Supplemental Findings of Fact, Amended Conclusions of Law and Amended Judgment, recognized that there were "misrepresentations" in the application, it identified only one, the misrepresentation in the application that Kelly Jones had not been counseled, treated or hospitalized because of dependency on narcotic analgesic pain medications.3 The district court held that, under all the facts and circumstances, such representation was material to the risk assumed, that New York Life was not estopped from relying thereon, and that accordingly, New York Life was entitled to rescission, and the further holding that Rhea Jones was not entitled to recover under the policy. Our study on the matter indicates that the record supports such a finding and conclusion, and on that basis, we affirm.
13
On appeal, Rhea Jones concedes that under Theros, even though Kelly Jones may have given agent Doerr correct answers to questions contained in the application, which answers Doerr incorrectly recorded in the application, she is nonetheless bound by those misrepresentations by his act of signing the application, where, as here, immediately above his signature was the statement that by his signature the signatory agreed that all statements in the application had been "correctly recorded."
14
Counsel would escape the rule of Theros, however, on the ground that New York Life did not rely on any misrepresentation in the application and, on the contrary, either knew, or should have known, of Kelly Jones medical and health problems, and either conducted, or should have conducted, its own investigation of Kelly Jones' condition. In such circumstances, Jones argues here that New York Life is estopped from seeking rescission and, consequently, is estopped from denying liability under the policy, citing Hardy v. Prudential Ins. Co. of America, 763 P.2d 761 (Utah 1988) and Major Oil Co. v. Equitable Life Assurance Soc'y, 457 F.2d 596 (10th Cir.1972).4
15
Both cases cited by Appellant stand for the proposition that an insurance company cannot escape liability on a policy if it is established that there should have been no actual reliance on the applicant's misrepresentations, concealment, or omission. See Hardy, 763 P.2d at 770; Major Oil, 457 F.2d at 602 (citations omitted). Appellant's reliance on this rule, however, is misplaced. In the instant case, although New York Life had information from a previous application for life insurance by Kelly Jones regarding the possibility of hemophilia, there is nothing in the record to indicate that New York Life should have known of Jones' dependence on narcotic analgesic pain medications.
16
On the question of estoppel, the district court specifically held that New York Life was not estopped from relying on the misrepresentation in Mr. Jones' application for life insurance that he had not been so counseled, treated, or hospitalized because of dependency on narcotic analgesic medication.5 Such was a fact issue, and contrary to Jones' suggestion, the district court was not compelled, as a matter of law, to find that New York Life was estopped from relying on that particular misrepresentation. We reject any suggestion that before issuing the policy New York Life knew or should have known that Kelly Jones had been treated for his addiction to pain medications. The record reveals that the only evidence received by New York Life was an attending physician's statement submitted by Kelly Jones' doctor indicating that Jones was hospitalized for stomach and back pain and listing the medications prescribed to Jones. There was nothing in the physician's statement to suggest that Kelly Jones was hospitalized or treated for his addiction. Consequently, New York Life did not possess the information necessary to put it on notice of the possible falsity in Kelly Jones' application and to make a further inquiry into Kelly Jones' drug problems, sufficient to invoke the above stated rule.
17
Counsel also argue that the misrepresentation relating to alcohol or drug problems was not material to the risk assumed by New York Life. The district court found that such misrepresentation was material and in our view the record amply supports such finding. There was testimony that the misrepresentation relating to Kelly Jones' drug problem was "material," which would seem to us rather obvious.
18
Judgment affirmed.
*
The Honorable Wesley E. Brown, Senior District Judge, District of Kansas, sitting by designation
1
In a pretrial order it was stipulated, inter alia, that Kelly Jones had, within two years prior to his signing the application for insurance, been treated for elevated blood pressure, and from his birth had a genetic blood condition known as Christmas Disease, and, within five years prior to his signing the application, had been counseled because of dependency on narcotic analgesic pain medication, and had been diagnosed as suffering from depressive neurosis accompanied by some organic impairment and residual effect of substance abuse, none of which was set forth in answers to questions contained in the application for insurance
2
There were at least three misrepresentations in Jones' application for insurance. In addition to the misrepresentation regarding Kelly Jones' dependence on narcotic analgesic medication, they were the representations that Kelly Jones had not been treated within the last two years for elevated blood pressure and the representation that Kelly Jones had not been treated within the last two years for a blood disorder. It is undisputed that on the date that the application was signed, both Rhea and Kelly Jones knew that Kelly Jones suffered from high blood pressure and had an incurable blood condition known as Christmas Disease, and in 1983, had been counseled, treated and hospitalized due to his dependency on narcotic analgesic pain medication. Moreover, evidence adduced at trial showed that Kelly Jones had a long history of alcohol and drug abuse, including the use of marijuana, cocaine, "speed," and pain medications, and as a result had suffered from schizophrenia, depressive neurosis and organic impairments
3
The district court in its order made no mention of "elevated blood pressure" or "blood condition."
4
In her complaint Rhea Jones alleged, inter alia, that if there were misrepresentations in the application, New York Life was "estopped from claiming ignorance of such...." In its amended answer New York Life alleged, inter alia, that Rhea Jones was "estopped from asserting [her] ... claim," because of Kelly Jones' misrepresentations relating to his "health history."
5
At the conclusion of the hearing, upon remand, on New York Life's Motion for Entry of Judgment, the district judge stated that "it appears to me as well as I remember the record and look at the record that the company issued the policy in reliance upon the application."
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Fourth Court of Appeals
San Antonio, Texas
June 3, 2019
No. 04-19-00168-CV
IN THE INTEREST OF Y.M.L., a Child,
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-02836
Honorable Charles E. Montemayor, Judge Presiding
ORDER
In this accelerated appeal of the order terminating Appellant A.R.’s parental rights to her
child, Appellant’s brief was due on May 6, 2019. See TEX. R. APP. P. 38.6(a). To date,
Appellant has not filed a brief or a motion for extension of time to file the brief.
We ORDER Appellant to show cause in writing within TEN DAYS of the date of this
order why this appeal should not be dismissed for want of prosecution. See id. R. 38.8(a). If
Appellant fails to respond as ordered, we will abate this appeal to the trial court for an
abandonment hearing. Cf. id. R. 38.8(b)(2); Herndon v. Tex. Dep’t of Family & Protective
Servs., No. 03-11-00030-CV, 2012 WL 896010, at *1 (Tex. App.—Austin Mar. 13, 2012, no
pet.) (mem. op.); In re T.V., 8 S.W.3d 448, 449 (Tex. App.—Waco 1999, order).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 3rd day of June, 2019.
___________________________________
KEITH E. HOTTLE,
Clerk of Court
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678 So.2d 797 (1996)
Larry Glenn HINKLE
v.
BURGREEN CONTRACTING COMPANY, INC., and Benjamin Townsend.
2950334.
Court of Civil Appeals of Alabama.
June 14, 1996.
*798 Robert E. Patterson, Huntsville, for Appellant.
Byrd R. Latham, Athens, for Appellees.
L. CHARLES WRIGHT, Retired Appellate Judge.
Larry Glenn Hinkle filed an action against Burgreen Contracting Company (Burgreen) and Benjamin Townsend, seeking damages resulting from an automobile accident. In his complaint he alleged negligence, negligence per se, and wanton misconduct. In answering the complaint, Burgreen and Townsend asserted the affirmative defense of contributory negligence.
Burgreen and Townsend filed a motion for a summary judgment, with supporting evidence. Hinkle opposed the motion, with supporting evidence. Following a hearing, the trial court granted Burgreen and Townsend's motion. The trial court found as a matter of law that Hinkle was contributorily negligent. Hinkle filed a post-judgment motion, which was denied. Hinkle appeals. This case is before us pursuant to § 12-2-7(6), Code 1975.
Viewing the evidence in a light most favorable to Hinkle, Specialty Container Mfg., Inc. v. Rusken Packaging, Inc., 572 So.2d 403 (Ala.1990), we find that the record reflects the following: On June 10, 1993, Hinkle was injured when his car collided with an asphalt roller owned by Burgreen and operated by Townsend. Hinkle was travelling eastbound on a divided, four-lane highway when the accident occurred shortly before *799 noon. He was travelling 40 or 45 miles per hour at the time of the accident in an area where the posted speed limit was 55 miles per hour. Hinkle did not see the roller until just before impact. He was rendered unconscious and suffered cracked ribs, closed head trauma, a deep cut on his left leg, and a pinched nerve in his wrist.
Prior to the accident Burgreen had completed construction work on private property along the divided, four-lane highway, involving about 12 workers and several pieces of equipment. Around noon Burgreen commenced to move its men and equipment to another site, approximately 3/4 miles down the highway. Townsend was instructed to move the roller. The roller travels at a speed of 5 to 8 miles per hour. It has a triangular reflective marker attached to the back of the machine, but has no other lights, flashers, signs, or warning devices.
Townsend testified that he travelled in the right eastbound lane for a distance and then moved to the left eastbound lane. Townsend stated that prior to changing lanes, he looked behind him and did not see any cars in the left lane. He did not give a turn signal because there were no signals on the roller. Townsend testified that prior to the accident, he was looking straight ahead in the direction which he was travelling, he did not see Hinkle's automobile before impact, and he did not hear any brakes or screeching tires before impact.
Joyce Brewer, a witness to the accident, averred that she was looking out the window and "saw an asphalt roller on U.S. 72 eastbound in the inside lane, and it moved to the right lane and then I saw a brown automobile collide with the asphalt roller. I did not see any escorts at all in the front or rear of the roller."
Townsend testified that he did not have an escort on the route. An employee of Burgreen stated that a Burgreen truck was attempting to escort the equipment, but it was stopped by a traffic light. Burgreen did not have set regulations concerning when to use escorts or when to transport the equipment via trucks or trailers.
In entering a summary judgment in favor of Burgreen and Townsend, the trial court found that "there is no way that a reasonable jury could conclude that [Hinkle] exercised due care when he did not see [Burgreen's] vehicle." It concluded that Hinkle was contributorily negligent as a matter of law. The trial court did not address the wanton misconduct claim. Therefore, the only issue before us is whether the trial court erred in entering a summary judgment on Burgreen and Townsend's affirmative defense of contributory negligence.
A motion for a summary judgment may be granted when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. McDonald v. Servpro, 581 So.2d 859 (Ala.Civ.App.1991). If the moving party makes a prima facie showing that no genuine issue of material fact exists and that it is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to go forward with evidence demonstrating the existence of a genuine issue of fact. Grider v. Grider, 555 So.2d 104 (Ala.1989). In order to defeat a properly supported summary judgment motion, the nonmovant must create a genuine issue of material fact by presenting substantial evidence. McDonald. Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870 (Ala.1989).
As a general rule, the issue of whether one is contributorily negligent is a question for the jury. Adams v. Coffee County, 596 So.2d 892 (Ala.1992). It may be found to exist as a matter of law, however, when the evidence is such that reasonable people must reach the same conclusion that the plaintiff was negligent and that such negligence was the proximate cause of the injury. Gulledge v. Brown & Root, 598 So.2d 1325 (Ala.1992). "Unless the evidence submitted on a summary judgment motion is wholly without adverse inferences or is free from any doubt, summary judgment must not be entered, but the issues must be submitted *800 to the jury." Gossett v. Twin County Cable T.V., Inc., 594 So.2d 635 (Ala.1992).
Viewing the evidence in favor of Hinkle, we conclude that reasonable minds may differ on the question of whether Hinkle was guilty of contributory negligence. Townsend's testimony that he did not see Hinkle before the impact creates a factual question as to whether Townsend was negligent in failing to keep a proper lookout before making a lane change. Hinkle's testimony that he did not see the roller before the impact creates a factual question as to whether Townsend was actually in the lane ahead of Hinkle as Townsend claimed, or had just turned into the right lane prior to impact. Joyce Brewer's statement similarly creates a question of fact concerning the cause of the accident.
A genuine issue of material fact clearly exists. The entry of a summary judgment was error. The judgment is reversed and the cause remanded for proceedings consistent with this opinion.
The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Code 1975.
REVERSED AND REMANDED.
ROBERTSON, P.J., and YATES and CRAWLEY, JJ., concur.
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46 F.3d 65
McFarlandv.Lynaugh*
NO. 94-60135
United States Court of Appeals,Fifth Circuit.
Jan 09, 1995
Appeal From: S.D.Tex., No. 89-CV-142
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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Filed
Washington State
Court of Appeals
Division Two
March 21, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48393-9-II
Appellant,
v. PUBLISHED OPINION
TANYA DESIREE JAMES-BUHL,
Respondent.
MAXA, A.C.J. – The issue in this case is whether a teacher’s mandatory duty under RCW
26.44.030(1)(a) to report to authorities when he or she has reasonable cause to believe that a
child has suffered abuse or neglect applies to information obtained outside the course of his or
her employment as a teacher.
The State charged Tanya James-Buhl, a junior high school teacher, with three counts of
failure to comply with the mandatory reporting law for not reporting to law enforcement that her
daughters had disclosed that their stepfather had touched them inappropriately. The trial court
dismissed the charges, ruling that RCW 26.44.030(1)(a) requires teachers to report suspected
child abuse only when they obtain information regarding child abuse in the course of their
employment. The trial court ruled that RCW 26.44.030(1)(d), which requires adults residing
with children to report only when they have reasonable cause to believe that a child has suffered
“severe abuse” as defined in that subsection, determined James-Buhl’s obligation to report
information she obtained about her own children outside of her course of employment.
No. 48393-9-II
We hold that the plain language of RCW 26.44.030(1)(a), considered in the context of
other subsections in the statute that contain explicit course of employment limitations, does not
limit a teacher’s mandatory reporting duty to information about child abuse obtained in the
course of employment. We also decline to consider James-Buhl’s argument that she did not have
reasonable cause to believe her daughters had been abused, which is the prerequisite for a
mandatory reporting duty. Accordingly, we reverse the trial court’s dismissal of the charges
against James-Buhl and remand for further proceedings.
FACTS
James-Buhl is a junior high school teacher. She was married to Joshua Hodges, who was
the stepfather of James-Buhl’s daughters, MEB, MMB, and KB.1
In late May 2015, MEB’s youth pastor made a report to Child Protective Services that
MEB had told James-Buhl that Hodges had been touching her inappropriately. The youth pastor
stated that James-Buhl had not reported the abuse, but that she was “handling things in the
house.” Clerk’s Papers at 1.
Law enforcement investigated and interviewed the three girls. MEB described how
Hodges had touched her inappropriately. She also said she had told James-Buhl about the abuse
in early January, but nothing had changed. MMB said that Hodges had touched her and that she
had told James-Buhl about it. And KB said that Hodges had touched her once every two to three
weeks and that she had told James-Buhl about it four or five months before the August 2015
forensic interview.
1
James-Buhl also has an older daughter, BJ-K. Although BJ-K was interviewed and made
statements about Hodges having touched her when she was teenager, that information was not
the basis of any charge against James-Buhl.
2
No. 48393-9-II
The State charged James-Buhl with three counts of failure to comply with the mandatory
reporting law, RCW 26.44.030(1)(a), for not reporting suspected child abuse to law enforcement
or the Department of Social and Health Services when her daughters disclosed that Hodges had
touched them inappropriately. The State did not allege that MEB, MMB, and KB were James-
Buhl’s students or enrolled in the school where James-Buhl taught.
James-Buhl moved to dismiss the charges with prejudice, arguing that RCW
26.44.030(1)(a) did not apply because her daughters were not her students and that she learned
about the alleged abuse in her capacity as their mother and not as a teacher. James-Buhl argued
that she was subject to the different standards of reporting provided in RCW 26.44.030(1)(d),
which applies to adults who live with children. James-Buhl did not argue in the trial court that
even if RCW 26.44.030(1)(a) applied, dismissal was appropriate because she did not have
reasonable cause to believe that the children had been abused.
The trial court agreed with James-Buhl that RCW 26.44.030(1)(d) applied instead of
RCW 26.44.030(1)(a) because James-Buhl did not have a teacher relationship with MEB, MMB,
and KB. Accordingly, the trial court dismissed the charges against James-Buhl with prejudice.
The State appeals.
ANALYSIS
A. COURSE OF EMPLOYMENT LIMITATION FOR MANDATORY REPORTING
The State argues that the trial court erred by interpreting RCW 26.44.030(1)(a) to include
an implied course of employment limitation. The State asserts that the plain statutory language
3
No. 48393-9-II
requires mandatory reporters to report suspected child abuse in all circumstances when there is
reasonable cause.2 We agree.
1. Principles of Statutory Interpretation
Statutory interpretation is a matter of law that we review de novo. State v. Evans, 177
Wn.2d 186, 191, 298 P.3d 724 (2013). The primary goal of statutory interpretation is to
determine and give effect to the legislature’s intent. State v. Larson, 184 Wn.2d 843, 848, 365
P.3d 740 (2015). To determine legislative intent, we first look to the plain language of the
statute. Id. We consider the language of the provision in question, the context of the statute in
which the provision is found, related provisions, and the statutory scheme as a whole. Id.
If the plain meaning of a statute is unambiguous, we must apply that plain meaning as an
expression of legislative intent. Id. We will not add language to an unambiguous statute even if
we believe that the legislature intended something else but failed to express it adequately. State
v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997).
A statute is ambiguous when it is subject to more than one reasonable interpretation.
Evans, 177 Wn.2d at 192-93. When a statute is ambiguous, we first attempt to resolve any
ambiguity and determine the legislature’s intent by considering principles of statutory
construction, legislative history, and relevant case law. State v. Reeves, 184 Wn. App. 154, 158,
336 P.3d 105 (2014). If these indications of legislative intent are insufficient to resolve the
2
James-Buhl initially argues that the State did not properly assign error to the trial court’s order
of dismissal. We disagree. The State indicates in both its assignment of error and its issues
pertaining to the assignment of error that the issue for us to decide is whether the trial court
properly interpreted RCW 26.44.030(1)(a) in its order of dismissal.
4
No. 48393-9-II
ambiguity, we must apply the rule of lenity and construe the statute in favor of the defendant. Id.
at 158-59.
2. Language of RCW 26.44.030(1)
RCW 26.44.030(1) identifies certain people who have a mandatory duty to report
suspected child abuse and defines the scope of that duty.3 The statute contains several
subsections that address different groups of people who have reporting responsibilities. RCW
26.44.080 provides that anyone who is required by RCW 26.44.030 to report abuse, “and who
knowingly fails to make, or fails to cause to be made, such report, shall be guilty of a gross
misdemeanor.”
a. RCW 26.44.030(1)(a)
RCW 26.44.030(1)(a) imposes a duty to report on numerous types of people who
regularly have contact with children. It states:
When any practitioner, county coroner or medical examiner, law enforcement
officer, professional school personnel, registered or licensed nurse, social service
counselor, psychologist, pharmacist, employee of the department of early learning,
licensed or certified child care providers or their employees, employee of the
department, juvenile probation officer, placement and liaison specialist, responsible
living skills program staff, HOPE center staff, state family and children’s ombuds
or any volunteer in the ombuds’s office, or host home program has reasonable
cause to believe that a child has suffered abuse or neglect, he or she shall report
such incident, or cause a report to be made, to the proper law enforcement agency
or to the department as provided in RCW 26.44.040.
3
RCW 26.44.030 has been amended since the events in this case transpired, but the amendments
only made minor changes. A 2016 amendment added “host home program” to the list of
mandatory reporters under subsection (1)(a), and a 2015 amendment added language related to
reporting to military law enforcement. LAWS OF 2016, ch. 166, § 4; LAWS OF 2015, 1st Spec.
Sess., ch. 6, § 1. Because these changes are minor and do not impact the language relied on by
the parties, we cite to the current version of the statute.
5
No. 48393-9-II
RCW 26.44.030(1)(a) (emphasis added).4 RCW 26.44.020(19) defines “professional school
personnel” to include teachers. Significantly, RCW 26.44.030(1)(a) does not expressly limit the
mandatory reporting duty to information obtained in the course of the professional’s
employment.
Under RCW 26.44.030(1)(b)(iii), “reasonable cause” means “a person witnesses or
receives a credible written or oral report alleging abuse, including sexual contact.” RCW
26.44.030(1)(b)(v) states that “sexual contact” has the same meaning as in RCW 9A.44.010:
“any touching of the sexual or other intimate parts of a person done for the purpose of gratifying
sexual desire of either party or a third party.” RCW 9A.44.010(2).
b. RCW 26.44.030(1)(b), (c) and (e)
Additional subsections of RCW 26.44.030(1) impose mandatory reporting duties on other
people and contain express course of employment limitations. RCW 26.44.030(1)(b) provides:
When any person, in his or her official supervisory capacity with a nonprofit or
for-profit organization, has reasonable cause to believe that a child has suffered
abuse or neglect caused by a person over whom he or she regularly exercises
supervisory authority, he or she shall report such incident.
(Emphasis added.) Subsection (1)(b) also states, “Nothing in this subsection (1)(b) shall limit a
person’s duty to report under (a) of this subsection.” RCW 26.44.030(1)(b).
RCW 26.44.030(1)(c) provides:
The reporting requirement also applies to department of corrections personnel who,
in the course of their employment, observe offenders or the children with whom the
offenders are in contact. If, as a result of observations or information received in
the course of his or her employment, any department of corrections personnel has
4
RCW 26.44.030(1)(f) adds that the same reporting requirement in subsection (1)(a) “also
applies to administrative and academic or athletic department employees, including student
employees, of institutions of higher education, as defined in RCW 28B.10.016, and of private
institutions of higher education.”
6
No. 48393-9-II
reasonable cause to believe that a child has suffered abuse or neglect, he or she shall
report the incident.
(Emphasis added.) The legislation that added subsection (1)(c)5 included a finding of intent
regarding the course of employment limitation:
The legislature intends . . . to limit the circumstances under which department of
corrections personnel are mandated reporters of suspected abuse or neglect to only
those circumstances when the information is obtained during the course of their
employment. This act is not to be construed to alter the circumstances under which
other professionals are mandated to report suspected abuse or neglect, nor is it the
legislature’s intent to alter current practices and procedures utilized by other
professional organizations who are mandated reporters under RCW
26.44.030(1)(a).
LAWS OF 1996, ch. 278, § 1 (emphasis added).
RCW 26.44.030(1)(e) provides:
The reporting requirement also applies to guardians ad litem, including court-
appointed special advocates . . . who in the course of their representation of children
in these actions have reasonable cause to believe a child has been abused or
neglected.
(Emphasis added.)
c. RCW 26.44.030(1)(d)
RCW 26.44.030(1)(d) imposes a mandatory duty to report suspected child abuse on
adults who reside with children. But when an adult residing with children must report is
different than when people identified in the other subsections of RCW 26.44.030(1) must report.
The duty to report applies only if the child has suffered “severe abuse,” which is given a narrow
definition. RCW 26.44.030(1)(d) provides:
The reporting requirement shall also apply to any adult who has reasonable cause
to believe that a child who resides with them, has suffered severe abuse, and is able
5
What currently is subsection (1)(c) was subsection (1)(b) when first enacted in LAWS OF 1996,
ch. 278, § 2.
7
No. 48393-9-II
or capable of making a report. For the purposes of this subsection, “severe abuse”
means any of the following: Any single act of abuse that causes physical trauma
of sufficient severity that, if left untreated, could cause death; any single act of
sexual abuse that causes significant bleeding, deep bruising or significant external
or internal swelling; or more than one act of physical abuse, each of which causes
bleeding, deep bruising, significant external or internal swelling, bone fracture, or
unconsciousness.
(Emphasis added.)
3. Statutory Analysis
a. Plain Language of RCW 26.44.030(1)(a)
The plain language of RCW 26.44.030(1)(a) does not include any course of employment
limitation. That subsection simply states “[w]hen any . . . professional school personnel . . . has
reasonable cause to believe that a child has suffered abuse or neglect, he or she shall report such
incident.” RCW 26.44.030(1)(a). However, James-Buhl suggests that RCW 26.44.030(1)(a)’s
silence on the scope of the duty creates an ambiguity.
If RCW 26.44.030(1)(a) is read in isolation from the other subsections, it might be
reasonable to interpret that subsection as providing a course of employment limitation.
Identifying the mandatory reporters by profession/occupation could suggest that their duty to
report would arise within the scope of that profession or occupation.
But when determining the plain meaning of a provision, we consider not only the text of
the particular provision but also the context of the provision, related provisions, and the statutory
scheme as a whole. Larson, 184 Wn.2d at 848. Here, three other subsections of RCW
26.44.030(1) contain language that explicitly limits the duty to report to the course of
employment. Subsection (1)(b) applies to an individual who “in his or her official supervisory
capacity with a nonprofit or for-profit organization” has reasonable cause to suspect child abuse.
8
No. 48393-9-II
RCW 26.44.030(1)(b). Subsection (1)(c) applies to department of corrections (DOC) personnel
who “in the course of their employment” and “as a result of observations or information received
in the course of his or her employment” have reasonable cause to suspect child abuse. RCW
26.44.030(1)(c). And subsection (1)(e) applies to guardians ad litem “who in the course of their
representation of children” have reasonable cause to suspect child abuse. RCW 26.44.030(1)(e).
Including an express course of employment limitation for subsections (1)(b), (1)(c) and
(1)(e) and not for subsection (1)(a) clearly shows that the legislature did not intend to include
such a limitation for subsection (1)(a). Otherwise, the legislature would have included a course
of employment limitation in subsection (1)(a) as in the other subsections.
Similarly, implying a course of employment limitation for subsection (1)(a) would render
the limiting language in subsections (1)(b), (1)(c), and (1)(e) superfluous. If the legislature
intended that the general language in subsection (1)(a) would include an implied course of
employment limitation, similar general language in the other subsections would imply the same
limitation without out the need for express course of employment language. We avoid
interpretations of statutory language that would render any portion of the statute superfluous or
meaningless. State v. Roggenkamp, 153 Wn.2d 614, 624, 106 P.3d 196 (2005).
Further, when the legislature amended RCW 26.44.030(1) in 1996 to add subsection
(1)(c), it enacted a statement of intent indicating that its adoption of an express course of
employment limitation for DOC personnel was “not to be construed to alter the circumstances
under which other professionals are mandated to report suspected abuse or neglect.” LAWS OF
9
No. 48393-9-II
1996, ch. 278, § 1.6 This statement of intent clearly shows that the course of employment
limitation for DOC personnel was an exception to the general rule and that mandatory reporting
duty for other occupations did not have the same limitation.
Finally, subsection (1)(b) states that “[n]othing in this subsection (1)(b) shall limit a
person’s duty to report under (a) of this subsection.” RCW 26.44.030(1)(b). This qualification
shows that while a mandatory reporter’s duty under subsection (1)(b) is limited to his or her
official supervisory capacity, subsection (1)(a) is broader and contains no similar limitation.
b. Effect of RCW 26.44.030(1)(d)
James-Buhl argues that subsection (1)(a) must be interpreted in the context of subsection
(1)(d), which provides a different reporting standard for adults residing with children. She
claims that her status as both a teacher and an adult residing with children puts subsection (1)(a)
in conflict with subsection (1)(d), and that a course of employment limitation must be implied in
subsection (1)(a) to harmonize the two subsections.
However, there is no conflict between the two subsections. When a person identified in
subsection (1)(a) must report is different than when an adult residing with children must report
under subsection (1)(d), but the obligations are not inconsistent. A person can comply with
subsection (1)(a) without violating subsection (1)(d). And nothing in RCW 26.44.030(1)
indicates that a person cannot be subject to both subsections. Further, failing to imply a course
of employment limitation in subsection (1)(a) does not render subsection (1)(d) meaningless.
Subsection (1)(d) still applies to adults who reside with children and are not mandatory reporters
6
A statement of purpose of the statute at issue or a related statute can be considered in
determining the plain meaning of the statutory language. See Protect the Peninsula’s Future v.
Growth Mgmt. Hr’gs Bd., 185 Wn. App. 959, 969-70, 344 P.3d 705 (2015).
10
No. 48393-9-II
under subsection (1)(a). And when an individual covered by subsection (1)(a) who resides with
a child has reasonable cause to believe that the child has suffered severe abuse, there is a duty to
report under both subsection (1)(a) and subsection (1)(d).
c. No Absurd Result
James-Buhl relies on the rule of construction that we avoid an interpretation of a statute
that would lead to an absurd or unreasonable result. State v. Shirts, 195 Wn. App. 849, 858, 381
P.3d 1223 (2016). She argues that the State’s interpretation leads to an absurd result because
teachers who live with children would be held to a higher standard of reporting than other adults
who live with children.
However, holding teachers and other subsection (1)(a) mandatory reporters to a higher
standard is not absurd because those people are trained in identifying and reporting child abuse.
Further, because of the status of teachers or other mandatory reporters in the community, a child
might go to them outside of their work to report abuse. And the obvious goal of the mandatory
reporting statute is to prevent child abuse. Holding teachers to a higher standard would help stop
instances of child abuse that otherwise might not be reported.7
d. Conclusion
We hold that when subsection (1)(a) is considered in the context of the other subsections
of RCW 26.44.030(1), the plain language of subsection (1)(a) unambiguously provides that the
mandatory reporting duty for the professionals identified applies in all circumstances and not
only when information about child abuse is obtained in the course of employment.
7
James-Buhl also argues that she complied with her training on the mandatory reporting duty.
However, whether or not James-Buhl complied with her training or what she believed were her
reporting duties does not impact how we interpret the statute.
11
No. 48393-9-II
Requiring the professionals identified in RCW 26.44.030(1)(a) to report suspected child
abuse in all circumstances is a harsh requirement. Not implying a course of employment
limitation means that a teacher can be subject to prosecution for failing to report suspected child
abuse based on information obtained at home, on vacation, or anywhere else. Further, a teacher
may be subject to civil liability for violating RCW 26.44.030(1)(a). Beggs v. Dep’t of Social &
Health Servs., 171 Wn.2d 69, 75-78, 247 P.3d 421 (2011). Nevertheless, the plain statutory
language dictates this result. We have no authority to rewrite statutes, even if the statute seems
unduly harsh. State v. Groom, 133 Wn.2d 679, 689, 947 P.2d 240 (1997). And we will not
second-guess the legislature’s policy decisions. See State v. Peeler, 183 Wn.2d 169, 185, 349
P.3d 842 (2015).
B. REASONABLE CAUSE REQUIREMENT
James-Buhl argues that even if RCW 26.44.030(1)(a) applies in this case, the trial court’s
dismissal was still proper because she did not have reasonable cause to believe her daughters
were being abused. We decline to consider this argument.
Whether James-Buhl had reasonable cause to believe that her children had suffered abuse
clearly is a factual question. Under CrR 8.3(c), the defendant may bring a motion for dismissal
based on “insufficient evidence establishing a prima facie case of the crime charged.” The
motion must be supported by an affidavit or declaration alleging that there are no material
disputed facts and setting out the agreed facts. CrR 8.3(c)(1). The trial court “shall grant the
motion if [1] there are no material disputed facts and [2] the undisputed facts do not establish a
prima facie case of guilt.” CrR 8.3(c)(3).
12
No. 48393-9-II
But James-Buhl did not file a CrR 8.3 motion or otherwise argue in the trial court that the
State had insufficient evidence to show reasonable cause. Further, she did not submit an
affidavit or declaration alleging that there are no material disputed facts and setting out agreed
facts as required under CrR 8.3(c)(1). As a result, the record is inadequate for us to address
James-Buhl’s sufficiency of the evidence argument.
Because there may or may not be disputed facts regarding what James-Buhl knew about
the abuse, we have no way of determining whether dismissal is appropriate under CrR 8.3(c) on
this record. Therefore, we decline to consider this argument.
CONCLUSION
We reverse the trial court’s order of dismissal and remand for further proceedings
consistent with this opinion.
MAXA, A.C.J.
We concur:
LEE, J.
MELNICK, J.
13
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55 F.Supp. 84 (1944)
UNITED STATES
v.
3935 CASES OF DISTILLED SPIRITS.
Civil Action No. 1065.
District Court, D. Minnesota, Fourth Division.
April 12, 1944.
McMeekin & Quinn, of St. Paul, Minn., for claimant.
Wm. P. Murphy, Asst. U. S. Atty., of St. Paul, Minn., for libelant.
JOYCE, District Judge.
It is alleged by the Government that the owners of the seized property, who were licensed to do business as retailers, violated the Internal Revenue laws by engaging in business as wholesalers without payment of the wholesale dealers occupational tax required by Section 3253 of Title 26 U.S.C.A. Int.Rev.Code; without making the reports required to be kept by wholesale liquor dealers pursuant to the provisions of Section 2857 of Title 26 U.S.C.A. Int.Rev.Code, or without securing a basic permit to purchase distilled spirits for resale at wholesale as required by the Federal Alcohol Administration Act of August 29, 1935, as amended, 27 U.S.C.A. § 203.
The Government bases its authority for the seizure on Section 3116 of Title 26 U.S.C.A. Int.Rev.Code, which provides as follows:
"It shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this part, or the internal-revenue laws, or regulations prescribed under such part or laws, or which has been so used, and no property rights shall exist in any such liquor or property. A search warrant may issue as provided in title XI of the Act of June 15, 1917, 40 Stat. 228 (U.S.C., Title 18, §§ 611-633), for the seizure of such liquor or property. Nothing in this section shall in any manner limit or affect any criminal or forfeiture provision of the internal-revenue laws, or of any other law. The seizure and forfeiture of any liquor or property under the provisions of this part, and the disposition of such liquor or property subsequent to seizure and forfeiture, or the disposition of the proceeds from the sale of such liquor or property, shall be in accordance with existing laws or those hereafter in existence relating to seizures, forfeitures, and disposition of property or proceeds, for violation of the internal-revenue laws."
The claimants herein seek return of the goods and equipment seized, contending that the libel of the Government cannot be sustained under Section 3116 for the reason that that act was not intended to include all violation of the internal revenue laws but is limited to violations involving industrial alcohol, none of which is involved in this libel. So that in the final analysis the problem is one of determining the meaning and intent of Section 3116.
It is of course well settled that where a question arises as to the meaning of a statute, it is resolved by determining what was the Congressional intent. At the outset, then, the question is: Did Congress *85 intend that Section 3116 should apply only to violations of industrial alcohol statutes?
With the repeal of the Eighteenth Amendment many of the provisions of Title II of the National Prohibition Act, 27 U.S.C.A. §§ 1, 4 et seq., had fallen, but there remained a number which retained vitality as revenue laws, some of which were vital in enforcement of Title III of the National Prohibition Act, 27 U.S.C.A. § 71 et seq., relating to industrial alcohol, which title did not fall with the repeal of the Eighteenth Amendment. Its provisions constituted an essential revenue measure, having followed similar provisions antedating the prohibition laws and requiring no constitutional amendment for their vitality. Section 25 of Title II of the National Prohibition Act provided that it was unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use or which had been used in violating Title II. It also provided for seizure and forfeiture of the liquor and property. When Title II of the National Prohibition Act was repealed, this provision of course fell and the only provisions for the seizure and forfeiture were, then, the less inclusive provisions of the internal revenue laws. United States v. Zager, D.C., 14 F.Supp. 23. On August 27, 1935, the Liquor Law Repeal and Enforcement Act, 49 Stat. 872, was enacted. Section 8 of that law was modeled after Section 25 of Title II of the National Prohibition Act. When it was reported to the House by the committee on the judiciary, Mr. Duffy, speaking for the committee, explained the purpose and intent of Section 8 as follows:
"Section 8 is modeled after section 25 of title II, which made it unlawful to have or possess any liquor, or property designed for the manufacture of liquor, intended for use in violating title II, or which had been so used, and providing for the destruction thereof unless the court should otherwise order. Search warrants were to be issued as provided in title XI of the so-called `Espionage Act' (18 U.S.C.A. secs. 611-633), which prescribes the authority to issue search warrants; the grounds and conditions thereof, etc. Section 9 [sic] extends this provision by making it unlawful to have or possess any liquor or property used or intended for use, in violating the provisions of this title of the bill, or of title III, or of the internal-revenue laws or of regulations promulgated thereunder. This extension bridges a gap now existing in the internal-revenue laws and in title III with regard to the seizure of property intended for use in violating the designated laws."
And on August 15, 1935, Mr. V. Simonton, a Treasury Department representative who had to do with the drafting of Section 8, explained its purpose and intent to the Senate Committee on the Judiciary as follows:
"The old act read, in section 25: it shall be unlawful to have or possess any liquor or property intended for use in violating the provisions of this title.
"We have extended that to include the possession of liquor or property intended for use in violating the provisions of title III of the National Prohibition Act and of the internal-revenue laws. For the first time we have proposed legislation condemning an attempt to violate the internal-revenue laws. At the present time it is not an offense against the United States to attempt to violate the internal-revenue laws. It is a conspiracy, of course, but an attempt to do so is not strictly a violation of the law."
These reports plainly and unequivocally refer to the internal-revenue laws generally and are not confined to those which have to do with industrial alcohol. Considering the reports and the status of both Title III and the internal-revenue laws prior to the enactment of Section 8 (now Section 3116), it seems clear that Congress meant just what it plainly saidthat "internal-revenue laws", and not merely internal-revenue laws governing industrial alcohol, should be within the provisions of Section 8.
While it is true that in the codification in 1939 of the internal-revenue laws Section 3116 was placed in the code among other sections devoted to matters pertaining to industrial alcohol, the act of the codification editor cannot change the intent of Congress when it enacted the law. Significantly, after 3116 was enacted on August 27, 1935, as section 8 of the Liquor Law Repeal and Enforcement Act, it was made a part of the statutes which dealt with intoxicating liquors. See 27 U.S.C. § 157 from 1935 to 1939.
Moreover, a plain and literal interpretation of the section does not limit its application to industrial alcohol statutes, as claimant argues. Section 3116 says that no property rights shall exist in any liquor *86 or property which is intended for use in violating the provisions of (1) "this part", or (2) "the internal-revenue laws", or (3) "regulations prescribed under such part or laws", or (4) property or liquor "which has been so used". The phrase "this part", and "regulations prescribed under such part", of course refer to the part in which Section 3116 appears in U.S.C.A. and the statutes, and such "part" pertains to industrial alcohol. The phrase "internal-revenue laws" and "regulations prescribed under such * * * laws" of course refer to internal-revenue laws, and since no qualification is made to the effect that only some internal-revenue laws are meant, the plain and literal meaning of the section is that the violation or the intended violation of any valid internal-revenue law or regulation gives rise to operation of Section 3116.
In construing this statute I am guided by the rule enunciated by the Supreme Court in United States v. Hartwell, 6 Wall. 385, 395, 73 U.S. 385, 18 L.Ed. 830, which reads:
"The object in construing penal, as well as other statutes, is to ascertain the legislative intent. That constitutes the law. If the language be clear it is conclusive. There can be no construction where there is nothing to construe. The words must not be narrowed to the exclusion of what the legislature intended * * * and they must be such as to leave no room for a reasonable doubt upon the subject. It must not be defeated by a forced and overstrict construction. The rule does not exclude the application of common sense to the terms made use of in the act in order to avoid an absurdity, which the legislature ought not to be presumed to have intended. When the words are general and include various classes of persons, there is no authority which would justify the court in restricting them to one class and excluding others, where the purpose of the statute is alike applicable to all. The proper course in all cases is to adopt that sense of the words which best harmonizes with the context, and promotes in the fullest manner the policy and objects of the legislature. The rule of strict construction is not violated by permitting the words of the statute to have their full meaning, or the more extended of two meanings, as the wider popular instead of the more narrow technical one; but the words should be taken in such a sense, bent neither one way nor the other, as will best manifest the legislative intent. United States v. Wiltberger, 5 Wheat. [76], 96 [5 L.Ed. 37]; United States v. Morris, 14 P. [464], 475 [10 L. Ed. 543]; United States v. Winn, [Fed. Cas. No. 16,740], 3 Sumn. 209, 211; 1 Bishop's Criminal Law, § 123; Bacon Abridgement tit. Statute, I."
Claimant submits that the penalty resulting from the forfeiture is severe in view of the offenses committed. Whether or not that penalty is justified is not a matter for the courts but for Congress, the branch of the Government which enacted the law. Realistically viewed, however, the opportunity created for unrestricted sales of wholesale unrecorded quantities of liquor by failure to conform to the provisions of the statutes involved might be justification for the seemingly drastic features of the enactment.
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781 F.2d 229
UNITED STATES of America, Appellee,v.Guillermo A. ALEMANY RIVERA, Defendant, Appellant.UNITED STATES of America, Appellee,v.Edgar M. STELLA PEREZ, Defendant, Appellant.
Nos. 83-1713, 83-1733.
United States Court of Appeals,First Circuit.
Heard Sept. 13, 1985.Decided Dec. 26, 1985.
Pedro J. Varela, Hato Rey, P.R., for defendant, appellant Guillermo A. Alemany Rivera.
Harvey B. Nachman, Santurce, P.R., with whom Eduardo Morales-Coll, Hato Rey, P.R., was on brief, for defendant, appellant Edgar M. Stella Perez.
John C. Carver, Trial Atty., Fraud Section, Criminal Div., U.S. Dept. of Justice, with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.
Before CAMPBELL, Chief Judge, ALDRICH and TORRUELLA, Circuit Judges.
LEVIN H. CAMPBELL, Chief Judge.
1
Defendants-appellants Dr. Edgar M. Stella-Perez and Guillermo A. Alemany-Rivera appeal from their convictions in the United States District Court for the District of Puerto Rico. We affirm.
I.
2
On July 7, 1982, defendants-appellants Stella and Alemany were jointly charged in a nine-count indictment. Count one charged Stella, the President, Chairman of the Board of Directors, and former Medical Director of the Hospital Nuestra Senora de la Guadalupe in Hato Rey, Puerto Rico (the "Hospital"), and Alemany, the former controller of the Hospital, with conspiracy to defraud the Departments of Housing and Urban Development ("HUD") and Health and Human Services ("HHS") in connection with a federally insured $12.46 million mortgage loan obtained by the Hospital for remodeling and expansion. Count one alleged that Stella and an unindicted co-conspirator named Jose A. Cardona-Alvarez, the Hospital's former assistant administrator, controlled a furniture company known as Casa Cardona, Inc., and its subsidiary, an equipment company by the name of AAA Hospital Supply, Inc. Stella and Cardona allegedly used these two corporations, with Alemany's assistance, to siphon off the Hospital's mortgage funds by selling equipment and furnishings to the Hospital at inflated prices, and by charging the Hospital for equipment that the corporations never furnished.
3
Counts two through four of the indictment charged Stella and Alemany with submitting and causing to be submitted false documents to HUD to procure mortgage funds. Counts five through seven charged the defendants with submitting and causing to be submitted false Medicare cost reports for the years 1977, 1978, and 1979. Counts eight and nine charged Stella and Alemany with making, aiding, and abetting false oaths in bankruptcy in connection with personal bankruptcy petitions filed by Stella and his wife in 1979.
4
After a 30-day jury trial, Stella was found guilty on all counts, sentenced to a 20-year term of imprisonment, and placed on probation for another five years on condition that he make restitution of $686,349. Alemany was found guilty on counts one, five, and six of the indictment, sentenced to ten years in prison, and fined $10,000. This appeal followed.
II.
5
Stella and Alemany1 were charged under counts five, six, and seven with submitting and causing to be submitted false Medicare cost reports on the Hospital's behalf for the years 1977, 1978, and 1979, in violation of 18 U.S.C. Secs. 1001 & 2 (1982).2 It was alleged in these counts, inter alia, that the cost reports falsely represented to HHS's fiscal intermediaries, Blue Cross of Florida and Cooperativa de Seguros de Vida de Puerto Rico, that none of the costs for which the Hospital sought reimbursement "resulted from transactions with related organizations as defined in the Provider Reimbursement Manual, Part I, Chapter 10," when in fact a number of expenses included in the cost reports arose out of transactions with AAA Hospital Supply.
6
The significance of whether the Hospital had transacted business with a related organization was that equipment acquired from such a source could only be reimbursed "at the cost to the related organization." 1 Medicare & Medicaid Guide (CCH) p 5,679, at 1181 (1983). The Provider Reimbursement Manual contained the following definitions pertaining to related organizations:
7
Definitions.--The term "related to the provider" means that the provider to a significant extent is associated or affiliated with, or has control of, or is controlled by, the organization furnishing the services, facilities, or supplies to the provider.... Common ownership arises when an individual, or individuals, holds significant ownership or equity in both the provider and the organization serving the provider.... The term "control" means that an individual or an organization has the power to influence or direct the actions or policies of both a provider and a related organization to a significant extent....
8
Id., p 5,677, at 1879-3. These definitions substantially track the definitions of "related to the provider," "common ownership," and "control" contained in 42 C.F.R. Sec. 405.427(b) (1984). At trial, the government introduced testimony explaining what related organizations were within the meaning of the Medicare Regulations.3
9
Stella and Alemany argue that counts five, six, and seven of the indictment should have been dismissed, because there was never any finding by HHS or its intermediaries, Blue Cross of Florida and Cooperativa de Seguros de Vida de Puerto Rico, that AAA Hospital Supply was "related to" the Hospital as that term is defined in the Medicare Regulations and the Provider Reimbursement Manual.4 Both defendants contend that, because the Medicare Regulations provide that, in the event of question, a determination of whether a provider has acquired supplies or services from a related organization is to be made in the first instance by an intermediary, and the provider then has a right of appeal to a Provider Reimbursement Review Board, see 42 C.F.R. Secs. 405.1801-07, 405.1835 (1984), the district court was without jurisdiction to decide whether, contrary to the representations in the cost reports, the Hospital was "related to" AAA Hospital Supply.
10
We disagree. The district court's jurisdiction over counts five, six, and seven was predicated on allegations that the defendants had violated a criminal statute, 18 U.S.C. Sec. 1001. See 18 U.S.C. Sec. 3231 (1982). Patently, the district court's assumption of criminal jurisdiction over these counts did not usurp HHS's primary, civil jurisdiction over any claims made by the Hospital for reimbursement. Compare, e.g., Kechijian v. Califano, 621 F.2d 1 (1st Cir.1980) (sustaining district court's refusal to exercise jurisdiction over physician's claims for reimbursement under the Medicare Act where physician had failed to first avail himself of administrative remedies).
11
Whether or not it was clear that AAA Hospital Supply was related to the Hospital would, of course, bear on whether or not the defendants had the requisite criminal intent. If the relationship was sufficiently questionable, the defendants could not be held criminally accountable for denying its existence. But there was overwhelming evidence in this case that the Hospital was "related to" AAA Hospital Supply within the meaning of the Medicare Regulations and the Provider Reimbursement Manual. For example, testimonial and documentary evidence introduced at trial tended to show that (1) Stella was the corporate president of both the Hospital and AAA; (2) Jose Cardona, the Hospital's assistant administrator with responsibility for equipment purchases, was also the sole employee of AAA; and (3) AAA had no stock and no capitalization, and its only source of income was the Hospital's mortgage fund. See Burnham v. United States, 297 F.2d 523, 524-25 (1st Cir.1961); cf. Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 305-06, 96 S.Ct. 1978, 1987-88, 48 L.Ed.2d 643 (1976) ("The standards to be applied in an action for fraudulent misrepresentation are well within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards....").
12
Alemany contends that the district court's assumption of jurisdiction over these counts prevented him from showing that Casa Cardona, AAA Hospital Supply, and the Hospital fell within the exception to the rules governing related organizations. See 42 C.F.R. Sec. 405.427(d) (1984).5 Nothing would have prevented Alemany, however, from presenting this issue to the district court. There is no indication he did so. There is, moreover, little if anything to indicate that the exception was applicable. We find no error on this score.
13
Alemany asserts that our ruling will open a veritable Pandora's box, and result in criminal fraud prosecutions whenever an intermediary determines that a provider has sought reimbursement for supplies or services provided by a related organization. But as we have indicated, a good-faith claim for reimbursement, made without intent to defraud the government, would not support a conviction under 18 U.S.C. Sec. 1001. See, e.g., United States v. Weatherspoon, 581 F.2d 595, 601 (7th Cir.1978) ("[T]he intent element of 18 U.S.C. Sec. 1001 ... precludes a conviction for an honest misinterpretation of a government form.").
III.
14
Stella raises principally four additional arguments on appeal:1. First, Stella contends, as he did in his motion for judgment notwithstanding the verdict below, that the conspiracy count of the indictment should have been dismissed because Jose A. Cardona-Alvarez, an unindicted co-conspirator and a chief witness for the prosecution, testified on cross-examination that the defendants neither intended nor agreed to defraud the government. Stella argues that, in the face of Cardona's denials, no rational finder of fact could have found him guilty of conspiracy beyond a reasonable doubt.
15
We disagree. As we recently observed in United States v. Drougas, 748 F.2d 8, 15 (1st Cir.1984) (citations omitted),
16
The gist of conspiracy is an agreement to disobey or to disregard the law. Two types of intent must be proven: intent to agree and intent to commit the substantive offense.... A conspiratorial agreement may be proven by circumstantial as well as direct evidence.... "A common purpose and plan may be inferred from a development and collocation of circumstances." ... The government need not exclude every reasonable hypothesis inconsistent with guilt with respect to each piece of circumstantial evidence. Rather, "the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant the jury to conclude that defendant is guilty beyond a reasonable doubt."
17
As Drougas makes clear, agreement and intent need not be proven by direct evidence; they may be inferred circumstantially. Furthermore, a conspiratorial agreement need not be express, but may consist of no more than a tacit understanding. United States v. Pintar, 630 F.2d 1270, 1275 (8th Cir.1980).
18
Here, although Cardona denied on cross-examination that he intended or agreed with Stella to defraud the government, there was ample evidence from which the jury could infer the contrary. For example, Cardona testified on direct that he revived Casa Cardona in 1973 at Stella's behest, that AAA Hospital Supply was created to supply the Hospital with medical equipment, and that AAA invoiced the Hospital for equipment that it was unable to purchase because, at Stella's direction, monies that AAA received from the lending institution to pay for equipment were used for payments to both Stella and Stella's personal creditors. In short, the jury could have found that Cardona's conclusions concerning his actions were squarely at odds with his actions themselves.
19
2. Next, Stella argues, as he did below, that his convictions under counts two, three, and four of the indictment should be reversed, because the government failed to prove the materiality of the false representations made in connection with these counts. Counts two, three, and four all alleged violations of 18 U.S.C. Sec. 1001 (1982).6 As the Eleventh Circuit recently observed in United States v. Lopez, 728 F.2d 1359, 1362 (11th Cir.) (per curiam) (citations and footnotes omitted), cert. denied, --- U.S. ----, 105 S.Ct. 112, 83 L.Ed.2d 56 (1984),
20
The requirement [in 18 U.S.C. Sec. 1001] that the falsification be of a "material" fact, while only contained in the first clause of the statute, has been read into the entire statute so as to exclude trivial falsifications from its coverage.... To be "material," a falsification "must have a natural tendency to influence, or be capable of affecting or influencing, a government function." ... It makes no difference that a specific falsification did not exert influence so long as it had the capacity to do so.
21
As Lopez makes clear, the government need not demonstrate that the falsification actually influenced a government function, but only that it might have influenced a government function. See also United States v. Notarantonio, 758 F.2d 777, 785-86 (1st Cir.1985).
22
Counts two, three, and four of the indictment charged Stella7 with submitting letters to the HUD office in Hato Rey, Puerto Rico seeking authorization for the release of mortgage escrow monies to pay for, respectively, a "Pho/sonic Ultrasound Scanner," a "Dynacamera 4/15," and a "Titanos 800MA X-ray Unit" which, contrary to Stella's representations, had not been purchased through AAA Hospital Supply. At trial, the government presented evidence tending to show that the Pho/sonic Ultrasound Scanner was neither purchased through AAA nor received by the Hospital. Instead, Stella attempted to lease an ultrasound scanner from a company in Philadelphia, and purchased such a device only after this attempt failed. Because the HHS engineer responsible for verifying the Hospital's equipment acquisitions for HUD did not find an ultrasound scanner on the premises at the time of his inspections, no escrow funds were ever disbursed for the purchase of the scanner. As to the Dynacamera 4/15 and the Titanos X-ray Unit, the government's evidence tended to prove that, although the Hospital purchased both of these machines, they were not supplied by AAA as represented by Stella, but were supplied by other equipment companies who were not paid for this merchandise by the time the Hospital went into receivership in June of 1979.
23
With respect to all three of these counts, Stella argues that, because under the escrow deposit agreement only $447,000 was held by the Hospital's mortgagee, Merrill Lynch, Hubbard, Inc. for the purchase of hospital equipment, and the HHS engineer responsible for verifying equipment acquisitions for HUD accounted for over $600,000 worth of equipment on the premises, Stella's false representations were immaterial because they did not result in the disbursement of any monies that would not have been disbursed anyway. However, the test for materiality under 18 U.S.C. Sec. 1001 is not whether a false statement actually influenced a government function, but whether it had the capacity to influence a government function. United States v. Notarantonio, 758 F.2d at 785.
24
In the case at bar, Stella's falsifications were clearly capable of resulting in the fraudulent procurement of government funds. With respect to the Dynacamera 4/15 and the Titanos X-ray Unit, Stella's misrepresentations resulted in the disbursement of escrow monies not to the true vendors of the equipment, but to AAA Hospital Supply. Similarly, although HUD did not authorize the disbursement of escrow funds for the Pho/sonic Ultrasound Scanner, HUD plainly could have relied on Stella's misrepresentations to its detriment, because the HHS engineer might well have been tricked into believing that the Hospital had purchased an ultrasound scanner if Stella had been successful in leasing one.
25
3. Next, Stella contends that his conviction on counts eight and nine, the bankruptcy counts, should be reversed because the district court erred in denying his pretrial motion to sever these counts under Fed.R.Crim.P. 8(b). Rule 8(b) provides:
26
Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.
27
Stella argues that the bankruptcy counts were improperly joined, because they were not part of "the same series of acts or transactions" that formed the basis for the remaining counts in the indictment.
28
In support of this contention, Stella relies in part on our analysis of Rule 8(b) in United States v. Turkette, 632 F.2d 896, 907-09 (1st Cir.1980), rev'd on other grounds, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). However, in Turkette we observed that, while the term "series" in Rule 8(b) requires "something more than mere 'similar acts,' " the "[r]elatedness of offenses can be established by demonstrating that essentially the same facts must be shown for each of the consolidated crimes." 632 F.2d at 907-08.
29
Here, although counts eight and nine were not alleged as part of the conspiracy charged in count one of the indictment, they were interrelated with the substantive offenses charged in counts two through seven. For example, both counts eight and nine charged the defendants8 with knowingly and fraudulently failing to disclose to the bankruptcy court that AAA Hospital Supply was one of the businesses operated by Stella during the three years previous to 1979. Plainly, the evidence necessary to prove that Stella operated AAA overlapped with the evidence necessary to prove the frauds alleged in the remaining counts of the indictment. See United States v. O'Connell, 703 F.2d 645, 648-49 (1st Cir.1983) (joinder of offenses under Rule 8(b) proper where "facts necessary to show guilt on the stolen goods charges made up an important subset of those needed to show guilt on the perjury charge").
30
4. Last, Stella argues that there was insufficient evidence to sustain his conviction on counts five, six, and seven. As Stella did not raise this issue below, it is not properly before us here. United States v. Cox, 752 F.2d 741, 747 (1st Cir.1985). In any event, we have reviewed the record and, taking all the inferences that may reasonably be drawn therefrom in the light most favorable to the government, United States v. Quejada-Zurique, 708 F.2d 857, 859 (1st Cir.), cert. denied, 464 U.S. 855, 104 S.Ct. 173, 78 L.Ed.2d 156 (1983), we are satisfied that the evidence was more than sufficient to support Stella's conviction on these counts.
IV.
31
Alemany also raises several additional arguments on appeal:
32
1. First, Alemany contends that the district court erred in denying his motions for dismissal of the indictment at the close of the government's case and, at the close of trial, for a judgment of acquittal notwithstanding the verdict, because there was insufficient evidence to support his conviction. Because the government concedes that its case against Alemany "is not an overwhelming one," we will review the evidence against Alemany in some detail.
33
Alemany was convicted on the conspiracy count of the indictment as well as on counts five and six, which alleged that the defendants had submitted and caused to be submitted false Medicare cost reports for 1977 and 1978. As to the conspiracy count, Alemany contends, inter alia, that contrary to the allegations contained in the indictment, the government failed to produce any evidence that he was involved in the concealment of the relationship between Casa Cardona, AAA Hospital Supply, and the Hospital, or that he derived any gains from the conspiracy.
34
We cannot agree. The government's evidence at trial tended to show that Alemany was employed as the Hospital's controller from May of 1976 to March of 1979, and that he was a skilled accountant familiar with the requirements of the Medicare Regulations. Mr. David Ramos-Usero, a former auditor for Blue Cross of Florida, testified that in July of 1978 he attended a meeting with Alemany and other representatives of the Hospital at which Ramos informed the Hospital representatives that he believed there was a related organization problem with respect to the Hospital's 1976 and 1977 cost reports. Mr. Ramos explained that the basis for Blue Cross's concern was that it appeared that Jose Cardona was working for Casa Cardona and AAA Hospital Supply as well as the Hospital, and was in a position to influence all three of these corporations. In response, Alemany denied that the three corporations were related, because Stella was the only one who made decisions for the Hospital.
35
Sometime after this meeting, Ramos went to the Puerto Rico Department of State and obtained copies of two letters addressed to the Department which indicated that Stella was the corporate president of both Casa Cardona and AAA Hospital Supply. When Ramos telephoned Alemany and confronted him with this information, Alemany told Ramos that the letters were in error and would be corrected, but Ramos never heard from Alemany again on this subject.
36
Furthermore, although Alemany contends that there was no evidence that he profited in any way from the conspiracy, there was testimony that Stella permitted Alemany and one Dr. Edgardo Grovas-Rodriguez to operate a corporation known as the Hato Rey Medical Group out of the Hospital from July of 1977 until early 1979, and that a $190,000 debt owed by the Medical Group to the Hospital was written off the Hospital's books in 1979 while Alemany was working as the assistant to the Hospital's fiduciary in bankruptcy, James Stuckey. Thus, while there may have been no evidence that Alemany had a direct financial stake in the fraudulent diversion of mortgage funds through Casa Cardona and AAA Hospital Supply, there was evidence from which the jury could have inferred that Alemany profited in other ways by cooperating with Stella and furthering the aims of the conspiracy.9
37
In light of this evidence, and given Alemany's position of authority within the Hospital and his control of the Hospital's accounting department, the jury was not obliged to believe that he was an unwitting pawn in a covert conspiracy between Stella and Cardona. We said in United States v. Marsh, 747 F.2d 7, 13 (1st Cir.1984), "if the government proves beyond a reasonable doubt at least a slight, though willing and knowing, connection between a defendant and a conspiracy, an appellate court will affirm the defendant's participation in that conspiracy." Although the evidence implicating Alemany in the conspiracy was largely circumstantial, we are satisfied that, viewed in the light most favorable to the government, it was sufficient to have persuaded a rational jury of the fact that Alemany was guilty beyond a reasonable doubt. See, e.g., United States v. Cincotta, 689 F.2d 238, 240-41 (1st Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (1982).
38
As to count five of the indictment, Alemany argues that there was insufficient evidence to convict him of falsifying the 1977 Medicare cost report, because the cost report was based on certified financial statements prepared not by him, but by an independent accounting firm which also prepared the financial statements for Casa Cardona and AAA Hospital Supply. Similarly, with respect to count six of the indictment, Alemany contends that he could not have played any part in falsifying the 1978 Medicare cost report, because he left his position as Hospital controller in March of 1979, the cost report was submitted by his successor in April, and Alemany did not return to work at the Hospital as an assistant to the fiduciary in bankruptcy until May of 1979.
39
We think there was sufficient evidence on both of these counts to support Alemany's conviction. Not only was Alemany listed as one of the preparers of the 1977 cost report, but he signed the transmittal letter that was sent with the report to Blue Cross of Florida. Although Alemany was not employed at the Hospital when the 1978 cost report was submitted to the Cooperativa de Seguros de Vida de Puerto Rico in April of 1979, Alemany's successor, Mr. Abel Lopez, testified that he frequently consulted with Alemany during this period on Hospital accounting matters. There was also evidence to suggest that the 1978 cost report was prepared from trial balances created during Alemany's tenure as controller. A conviction under 18 U.S.C. Sec. 1001 can rest on evidence that the defendant knowingly and wilfully caused a false statement to be made to a government agency; the defendant need not have prepared the statement himself. United States v. Mouton, 657 F.2d 736 (5th Cir.1981).
40
2. Next, Alemany argues that the district court committed reversible error in denying his motion for severance of his trial from that of Stella under Fed.R.Crim.P. 14. A severance motion made pursuant to Rule 14 is a matter for the district court's discretion, and we will reverse the denial of such a motion only if the defendant is able to make a strong showing that the denial deprived him of a fair trial. United States v. Bautista, 731 F.2d 97, 99-100 (1st Cir.1984); United States v. Arruda, 715 F.2d 671, 679 (1st Cir.1983). Here, Alemany contends in conclusory fashion that he was unfairly prejudiced by the "spillover effect" of the government's case against Stella, and effectively found guilty by association. The district judge, however, expressly cautioned the jury that it was their duty "to give separate personal consideration to the case of each individual defendant." Alemany was acquitted on six of the nine counts with which he was charged. Thus, it would appear that the jury, in fact, gave individualized attention to his case. United States v. Greenleaf, 692 F.2d 182, 187 (1st Cir.1982), cert. denied, 460 U.S. 1069, 103 S.Ct. 1522, 75 L.Ed.2d 946 (1983); United States v. Tashjian, 660 F.2d 829, 834 (1st Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 681, 70 L.Ed.2d 646 (1981).
41
3. Last, Alemany argues that his sentence of ten years in prison and a $10,000 fine, although within the statutory limits of the crimes for which he was convicted, cannot stand because the district judge imposed the sentence mechanistically, without giving individualized consideration to the mitigating factors in his case. The record of the proceedings at Alemany's sentencing hearing has been lost, but the government has filed a summary of these proceedings without objection from the defendant.
42
We have reviewed the government's summary, and are satisfied that there is no merit to Alemany's contentions. Not only did the district judge specifically advert to certain factors that he viewed as aggravating Alemany's conduct but, at the close of the proceedings, he informed the parties of aggravating factors in the presentence report that he had excluded from his deliberations, even though they had apparently not been objected to by the defendant. Alemany's sentence was within the bounds of the district court's discretion, and we see no defect in the manner in which it was imposed. We have no authority to change it. See United States v. Pasarell, 727 F.2d 13, 17-18 (1st Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984).
43
Affirmed.
1
Stella was convicted on all three of these counts. Alemany was convicted only on counts five and six
2
Sections 1001 and 2 provide:
Sec. 1001. Statements or entries generally
Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
Sec. 2. Principals
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
3
For example, Mr. David Ramos-Usero, a former senior auditor in the San Juan Office of Blue Cross of Florida, testified on direct:
Q: What is a related organization in Medicare terms?
A: In Medicare terms, a related organization refers [to] when two or more parties with common ownership or control have business transactions.
Q: All right, and why [does] Medicare[ ] care about that?
A: Medicare would pay the cost only of the related party which would be the company making business with the hospital or the health institution, they would recognize only the cost and would not recognize any profit margin in those business transactions.
Q: And why is that?
A: Because [the] Medicare Program only accepts cost as a cost on the care of the Medicare beneficiaries.
Q: Is there a particular disclosure requirement on the cost report, for related organizations?
A: Yes, there is a work sheet on the cost report ___ which relate[s] to related organizations.
4
Stella raised this issue below, but Alemany moved only to preclude the admissibility of the Provider Reimbursement Manual in evidence. To the extent that Alemany's argument involves an attack upon the subject matter jurisdiction of the district court, Alemany's failure to raise the issue below does not preclude his raising it on appeal. Fed.R.Crim.P. 12(b)(2); Pon v. United States, 168 F.2d 373 (1st Cir.1948)
5
Section 405.427(d) provides:
Exception. An exception is provided to [the related organization] principle if the provider demonstrates by convincing evidence to the satisfaction of the fiscal intermediary (or, where the provider has not nominated a fiscal intermediary, the Health Care Financing Administration), that the supplying organization is a bona fide separate organization; that a substantial part of its business activity of the type carried on with the provider is transacted with others than the provider and organizations related to the supplier by common ownership or control and there is an open, competitive market for the type of services, facilities, or supplies furnished by the organization; that the services, facilities, or supplies are those which commonly are obtained by institutions such as the provider from other organizations and are not a basic element of patient care ordinarily furnished directly to patients by such institutions; and that the charge to the provider is in line with the charge for such services, facilities, or supplies in the open market and no more than the charge made under comparable circumstances to others by the organization for such services, facilities, or supplies. In such cases, the charge by the supplier to the provider for such services, facilities, or supplies shall be allowable as cost.
6
See note 2, supra
7
Alemany was also charged in this part of the indictment, but the jury acquitted him on all three of these counts
8
Alemany was acquitted by the jury on both of these counts
9
A defendant, of course, may be guilty of participation in a criminal conspiracy without actually profiting from or having any financial stake in it. See, e.g., United States v. Noah, 475 F.2d 688, 697 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 119, 38 L.Ed.2d 54 (1973)
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962 F.2d 17
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Christina JAMES, Plaintiff-Appellant,v.Louis W. SULLIVAN, M.D., Secretary of Health and HumanServices, Defendant-Appellee.
No. 91-7075.
United States Court of Appeals, Tenth Circuit.
April 30, 1992.
1
Before EBEL and BARRETT, Circuit Judges, and KANE,* District Judge.
2
ORDER AND JUDGMENT**
3
KANE, District Judge.
4
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
5
Plaintiff Christina James appeals from an order of the district court affirming the Secretary's decision to deny her application for social security disability benefits. We affirm.
6
In her application for benefits, James alleged that she was disabled due to hypertension, kidney problems, probable back cancer, and emotional problems.1 At a hearing before the administrative law judge (ALJ), James alleged that she also had diabetes and arthritic problems with her hands, elbows, knees, and ankles. The ALJ found that James was not disabled at step four2 because she could return to her past relevant work.
7
On appeal, James argues that the ALJ's determination was not based on substantial evidence. In particular, she objects to the ALJ's findings numbers six and seven.3 James states she was ineffectively represented by a paralegal and, therefore, under Dixon v. Heckler, 811 F.2d 506 (10th Cir.1987), the ALJ was required to develop James' case for her. James argues that the ALJ did not fulfill this duty because he did not ask questions regarding her daily activities and medications beyond those asked by the paralegal. Finally, James argues that the record was not properly developed regarding her complaints of pain.
8
"Our review of social security administration cases is usually quite limited. 'The Secretary's decision must be sustained if supported by substantial evidence. The reviewing court does not weigh the evidence and may not substitute its discretion for that of the agency.' " Sorenson v. Bowen, 888 F.2d 706, 710-11 (10th Cir.1989) (quoting Cagle v. Califano, 638 F.2d 219, 220 (10th Cir.1981) (citations omitted)). Substantial evidence is " 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
9
James is now forty-nine years old. She has a ninth grade education and has obtained her GED and completed vocational training as a medication aide. She has worked both as a nurse's aide and a medication aide. James alleges disability since 1984.
10
The record shows that James has the following impairments: (1) hypertension; (2) diabetes; (3) reflux esophagitis; (4) degenerative arthritis; and (5) back pain. James' hypertension has been successfully treated with medication, and there is no medical evidence of any end organ damage. James' diabetes has also apparently been treated successfully with diet only without any resulting disability. Therefore, these impairments cannot be the basis for any finding of disability.
11
The symptoms James experiences associated with reflux esophagitis are relieved when she adheres to the prescribed course of treatment. The record shows James does not follow the prescribed medication regime, apparently due both to side effects she actually experiences and those she fears she will experience.
12
Social Security regulations provide that claimants who fail, without good reason, to follow prescribed treatment will be denied benefits if it appears the treatment can restore the claimant's ability to work. 20 C.F.R. §§ 404.1530, 416.930;4 see also Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir.1985). James' symptoms can be relieved. Her failure to follow the prescribed treatment cannot be excused.5 Further, even untreated, nothing in the record indicates that this impairment is disabling. Therefore, the ALJ correctly found that James is not disabled on the basis of this impairment.
13
Degenerative arthritis is manifested mainly in James' hands by joint stiffness for two hours in the morning and episodic joint pain, swelling, and redness in various joints. Medical evidence shows that disease manifestations are mild with minimal impairment only in her hands. The ALJ determined that this impairment was not disabling but did consider it in finding number six where he held that James could not perform jobs requiring fine dexterity.
14
James argues that her impairments, in combination with the pain she experiences, are disabling. Both reflux esophagitis and degenerative arthritis can be expected to produce pain, and both have been identified as possible causes of James' back pain. See Luna v. Bowen, 834 F.2d 161, 164 (10th Cir.1987) (claimant must produce objective medical evidence showing an impairment " 'which could reasonably be expected to produce the pain ... alleged' ") (quoting 42 U.S.C. § 423(d)(5)(A)).
15
The ALJ found that James' testimony regarding the severity of her pain was not credible. "[W]e generally treat credibility determinations made by an ALJ as binding upon review." Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir.1988). Our review of the record supports the ALJ's determination of credibility. Notes by various physicians indicate that James' complaints of pain appear to be intensified by her somatization and hypochondria. While these reports might, in some instances, support a finding of disability, none contains any indication that James' pain is of such severity as to be disabling. In fact, the record contains no indication by any physician that James is disabled for any reason.
16
While James does experience pain, an inability to work pain-free is not a sufficient reason to hold that she is disabled. Id. No evidence in the record supports a finding that James could not return to her past relevant work.
17
James argues that the ALJ did not fulfill his duty of inquiry. James appears to argue that the ALJ was required to further examine her in order to obtain sufficient evidence to find her disabled. The ALJ gave James every opportunity to offer further statements regarding her condition. Further, the burden of proof remained on James to prove that she was disabled. See Williams, 844 F.2d at 751 n. 2. James offered no objective evidence supporting her position that she could not return to her previous work. Indeed, no physician opined that James was disabled in any manner. Because the ALJ determined that James was not entirely credible, additional subjective testimony would not have helped her meet her burden. The ALJ proceeded properly.
18
The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED.
*
Honorable John L. Kane, Jr., Senior District Judge, United States District Court for the District of Colorado, sitting by designation
**
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
1
There is no evidence in the record that James has kidney problems or cancer nor does she argue that these impairments should be considered in determining whether she is disabled
2
For an explanation of the steps through which the Secretary must proceed in making its determination of disability, see Williams v. Bowen, 844 F.2d 748, 750-52 (10th Cir.1988)
3
These findings state as follows:
6
The claimant has the residual functional capacity to perform the exertional and nonexertional requirements of basic work activity except for lifting and carrying more than 50 pounds maximum and more than 25 pounds frequently. She is unable to perform types of work requiring very fine dexterity. The testimony and statements of impairments and pain of such severity to preclude any substantial gainful activity are unsupported by the medical evidence and are not credible
7
The claimant's past relevant work as a medication aide and nurse's aide, as performed in the national economy, do not require the performance of the activities precluded by the above limitations. Appellant's App., Vol. II, p. 35, Decision of ALJ, August 28, 1989
4
Acceptable reasons for failure to follow prescribed treatment include: (1) the recommended treatment is contrary to the established tenets and teachings of the claimant's religion; (2) the treatment involves cataract surgery for one eye when there is already a significant impairment of vision in the other eye which is not subject to improvement through treatment; (3) the recommended treatment involves surgery which has previously been performed with unsuccessful results; (4) the treatment is very risky; or (5) the treatment involves amputation of an extremity or a major part of an extremity. 20 C.F.R. § 404.1530(c). None of these factors apply here
5
Disability benefits will be denied if a prescribed treatment is expected to restore a claimant's ability to work and the treatment was refused without justifiable excuse, as supported by substantial evidence. Teter, 775 F.2d at 1107
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
******************** *
KATHERINE ANTTI, *
* No. 14-579V
Petitioner, * Special Master Christian J. Moran
*
v. * Filed: October 12, 2016
*
SECRETARY OF HEALTH * Attorneys’ fees and costs; award
AND HUMAN SERVICES, * in the amount to which respondent
* has not objected
*
*
Respondent. *
******************** *
Isaiah Richard Kalinowski, Maglio Christopher and Toale, PA for petitioner;
Debra A. Filteau Begley, U.S. Dep’t of Justice, Washington, DC, for respondent.
UNPUBLISHED DECISION ON ATTORNEYS’ FEES AND COSTS1
On July 8, 2014, Susan Antti filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., (the
“Vaccine Act”) on behalf of her then-minor child Katherine Antti. Katherine
(hereinafter “petitioner”) was substituted as petitioner on October 8, 2014, after she
reached the age of majority. Petitioner alleged that she suffered headaches and
visual changes, including a convergence and focusing disorder. On March 4, 2016,
the undersigned issued a decision awarding compensation to petitioner based on
the parties’ stipulation.
1
Because this unpublished decision contains a reasoned explanation for the action in this case,
the undersigned intends to post it on the United States Court of Federal Claims' website, in
accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services). In accordance with Vaccine
Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review,
the undersigned agrees that the identified material fits within this definition, the undersigned will
redact such material from public access.
Because petitioner received compensation, petitioner is entitled to an award
of attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e).
On October 11, 2016, petitioner filed an unopposed motion for attorneys’
fees and costs.2 Petitioner requests attorneys’ fees and costs in a total amount of
$44,000. In compliance with General Order #9, petitioner has filed a signed
statement indicating petitioner incurred no out-of-pocket expenses.
The Vaccine Act permits an award of reasonable attorneys’ fees and costs.
§ 15(e). Based on the reasonableness of petitioner’s request and the lack of
opposition from respondent, the undersigned GRANTS petitioner’s motion for
attorneys’ fees and costs.
Accordingly, the undersigned awards the total of $44,000.00. Of this
amount $ 44,000.00 shall be payable as a lump sum in the form of a check
jointly payable to petitioner and petitioner’s counsel Isaiah Kalinowski. 3
The clerk of the court shall enter judgment in accordance herewith.4
IT IS SO ORDERED.
s/Christian J. Moran
Christian J. Moran
Special Master
2
In the motion, petitioner states that respondent has no objection to petitioner’s request.
3
This amount is intended to cover all legal expenses incurred in this matter. This award
encompasses all charges by the attorney against a client, “advanced costs” as well as fees for
legal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or
collecting fees (including costs) that would be in addition to the amount awarded herein. See
generally Beck v. Sec’y of Health & Human Servs., 924 F.2d 1029 (Fed. Cir. 1991).
4
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing
of notice renouncing the right to seek review.
2
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720 So.2d 316 (1998)
Margaret ADAIR, Appellant,
v.
Robert ADAIR, Appellee.
No. 97-1811.
District Court of Appeal of Florida, Fourth District.
November 18, 1998.
Deborah Marks, North Miami, for appellant.
Stanley M. Newmark, Miami, for appellee.
WARNER, Judge.
The wife appeals a final judgment of dissolution of marriage in which the trial court designated the husband as the primary residential parent of the parties' children, determined that the husband was entitled to a special equity in the marital residence based on his premarital down payment on the home, and denied her claim for attorney's fees. We hold that the trial court acted within the discretion afforded by statute in designating the father as the primary residential parent. With respect to the calculation of the special equity award and denial of attorney's fees, we reverse.
At the time of the filing of the petition for dissolution, the parties had been married for eleven years. The marriage produced two minor children, both boys, ages seven and ten at the time of the final judgment. Prior to the birth of the children, the wife was employed by Southern Bell, making $26,000 plus benefits, and, at the time of the dissolution, she was able to return to her former employment. The wife had stayed home with the children since 1993, although she had begun working part-time at Publix by the time of dissolution. The trial court determined that the wife could and should re-enter the full-time work force and establish a salary comparable to her former one at Southern Bell. The evidence revealed that both the husband and the wife spent substantial time with the children, and the witnesses agreed that both parties are good parents. While the mother had been the primary caretaker, the witnesses testified to the father's capabilities as caretaker and the deep love between him and his sons, as evidenced by the numerous hunting and fishing trips that he went on with them.
*317 It is well settled that a trial court has broad discretion in child custody matters; its decision in that regard is reviewed for a clear showing of an abuse of discretion. See Ford v. Ford, 700 So.2d 191, 195 (Fla. 4th DCA 1997); Sullivan v. Sullivan, 668 So.2d 329, 329-30 (Fla. 4th DCA 1996); Collier v. Collier, 384 So.2d 697, 699 (Fla. 4th DCA 1980). Despite a conflict in the evidence, an appellate court will not disturb the trial court's custody decision unless there is no substantial competent evidence to support that decision. See Ross v. Bandi, 566 So.2d 55, 55 (Fla. 4th DCA 1990).
The trial court is charged with determining matters relating to the custody of minor children in accordance with their best interests. See § 61.13(2)(b), Fla. Stat. (1997); Race v. Sullivan, 612 So.2d 660, 661 (Fla. 4th DCA 1993). Section 61.13(3) provides a list of factors which the trial court should evaluate in considering issues of shared parental responsibility and primary physical residence. However, there is no statutory requirement that the trial court make specific written findings in a custody decision. See Murphy v. Murphy, 621 So.2d 455, 456-57 (Fla. 4th DCA 1993). In the instant case, the trial court stated that it had considered the criteria of section 61.13 and had concluded that the husband should be primary residential custodian of the children.
From a review of the evidence, we think that this decision is supported by substantial competent evidence. For instance, the first factor listed in the statute in considering to whom to award primary physical residence of the children is "the parent who is more likely to allow the child frequent and continuing contact with the non-residential parent." This factor is actually listed twice in the statute, thus impressing its considerable importance in primary physical residence decisions. See § 61.13(3)(a), (j). Throughout the divorce proceedings, the wife failed to evidence a willingness to encourage a close relationship between the children and the husband. Another factor to consider is the permanence of the existing custodial home. See § 61.13(3)(d), (e). The husband was awarded the marital home, which the wife indicated that she did not wish to retain. The children have grown up in the house, and thus they can continue in their home with their father.
The trial court found that both parties are good parents and that each was important to the lives and the upbringing of the children. Indeed, the evidence amply supports this determination. Yet, the trial court must make a determination that only one parent shall have primary residential custody of the children, and the statute specifies "[a]fter considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child." See § 61.13(2)(b). While the mother claims that the court's decision was based solely on the husband's objection to the wife's relationship with her new boyfriend, whom he classified as a drunk, we can find no indication that the trial court accorded any special significance to the evidence concerning the wife's relationship. Instead, the court's decision was an appropriate exercise of discretion in a very "close call" case. See Baldwin v. Baldwin, 576 So.2d 400, 401 (Fla. 5th DCA 1991).
While the wife does not dispute the husband's entitlement to a special equity in the marital home based on his premarital contribution, in her second issue, she asserts that she too is entitled to a special equity for her own contributions to the property from non-marital sources. However, she was unable to trace her non-marital funds to the purchase of the lot and home. The trial court rejected her claim, and based upon the record, we affirm.
Prior to equitably distributing the parties' other marital assets, the trial court determined that the equity in the marital home was $113,000. Of that amount, the court awarded the husband a $26,200 special equity, based on his premarital $14,800 down payment from non-marital sources plus accumulated gain, which the trial court calculated by using a seven percent per year increase in value. We agree with the wife that the trial court erred in its computation of the husband's special equity in the marital home when it applied an investment rate of return *318 and not the formula espoused in Landay v. Landay, 429 So.2d 1197, 1200 (Fla.1983):[1]
the correct formula to be used in situations where a spouse furnishes some but not all of the consideration for entireties property, may be stated thusly: in addition to that spouse's automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse's contribution bears to the entire consideration.
In Kennedy v. Kennedy, 448 So.2d 1227, 1227 (Fla. 2d DCA 1984), the husband had furnished a $6,000 down payment with non-marital funds in connection with the purchase of the marital home, for which the entire consideration was $46,000. In applying Landay, the second district computed the husband's special equity as follows: (.5)($6000/$46,000)= 6.5%. See id. The court then held that the husband was entitled to 56.5% of the value of the marital residence at the time of the dissolution action (his 50% in equitable distribution plus a 6.5% special equity). Applying Kennedy to the present case, the Husband's special equity should have been computed as follows: (.5)($14,800/38,800)= 19% × [113,000 (value of residence)] = $21,470. Accordingly, pursuant to Kennedy, which purports to apply Landay, the trial court's special equity award of $26,200 was error. We therefore reverse for the trial court to correct the amount of special equity awarded to the husband. We affirm the remaining issues regarding equitable distribution.
Finally, we reverse the trial court's denial of attorney's fees to the wife. Although the court equally divided the marital assets of the parties, the husband has significantly more income than the wife, even at the level she could make after returning to the full-time job market. Cf. Blackburn v. Blackburn, 513 So.2d 1360, 1360 (Fla. 2d DCA 1987). Moreover, the husband has considerably more non-marital assets, which may also be considered in determining a party's ability to pay for the expenses of the dissolution. See Kendall v. Kendall, 677 So.2d 48, 49 (Fla. 4th DCA 1996); Chandler v. Chandler, 624 So.2d 855, 856 (Fla. 4th DCA 1993). We thus reverse and remand for the trial court to award an amount for attorney's fees to the wife.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.
SHAHOOD, J., and BRYAN, BEN L., Associate Judge, concur.
NOTES
[1] Although the home was titled solely in the husband's name, both the trial court and the parties appear to have treated it as entireties property. We, likewise, will treat it that way and apply Landay. We do not express an opinion as to Landay's, continuing viability in light of the equitable distribution statute because it has not been argued to us.
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348 So.2d 1206 (1977)
Hubert E. PENDLETON, Appellant,
v.
STATE of Florida, Appellee.
No. 76-1566.
District Court of Appeal of Florida, Fourth District.
July 22, 1977.
*1207 Richard W. Springer of Kohl, Springer & Springer, Palm Springs, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
KOVACHEVICH, ELIZABETH A., Associate Judge.
Appellant-defendant appeals from a judgment of conviction of sexual battery using slight force, from an order denying motion for a new trial, and from a sentence of fifteen (15) years imprisonment. Of the five points involved in this appeal, one is particularly deserving of comment by this Court. Nevertheless, we affirm the trial court on all points raised.
The trial court was correct in permitting the State to introduce in its case-in-chief the testimony of the defendant that was given at a mistrial, held prior to this trial in which the defendant was convicted.
In the instant case, sub judice, defendant was arrested and charged with the crime of sexual battery pursuant to Florida Statute 794.011(4)(b). In the first trial of this cause before the Honorable Marvin Mounts, Circuit Judge, the jury was unable to reach a verdict and a mistrial was declared. Subsequently, a second trial was held before the Honorable James Stewart, Circuit Judge. During the presentation of the State's case-in-chief, the court allowed the State to call the court reporter from the mistrial as a witness, over the objection of the attorney for the defendant. The court reporter was permitted to testify that he was the official reporter during the mistrial; that the defendant was present at that time, and was the same man that was present in the courtroom for the instant proceedings, further identifying him by pointing to him, describing his clothing, and where he was seated. Continuing, the court reporter related that he had heard and recorded the sworn testimony of the five same witnesses who had testified in this second trial, and that their sworn testimony was given in the presence of the defendant. And then, the court reporter testified that the defendant took the witness stand, and denied under oath that he had given a statement to Detective *1208 Gabbard, who was one of the five said witnesses and had previously testified that the defendant had given him a statement, that the defendant admitted that he had been at the victim's address on the date of the offense, and, that the defendant acknowledged that he had engaged in sexual intercourse with the victim.
Defendant asserts that it would not have been much different if the court had allowed the State to subpoena the defendant and to call him as a witness during the State's case; the State was able to establish things in its case-in-chief through the use of the court reporter's testimony that it would not have been able to prove during its case. Further, the testimony of a defendant at a motion to dismiss or motion to suppress hearing cannot be used in a subsequent trial. The legislature repealed as of January 1, 1971, Section 902.12, Florida Statutes, that indicated that a defendant's testimony at a preliminary hearing was admissible during a trial, from which it may be inferred that it was the intent of the legislature to prevent such action. We disagree with these contentions by defendant, and refer both appellant and appellee to these authorities, cited hereinafter, to which neither side made reference to this Court.
In general, in the absence of a statute governing the situation, it has generally been held that a defendant who has taken the stand in his own behalf in a criminal prosecution, testifying without asserting his privilege against self-incrimination has waived the privilege as to the testimony given so that it may be used against him in a subsequent trial in the same case. See Warde v. United States (1946), 81 U.S.App.D.C. 355, 158 F.2d 651. Even if the defendant does not take the stand at a second trial, that does not prevent the use of his testimony given in a former trial if it would otherwise be admissible. See Edmonds v. United States (1959), 106 U.S.App.D.C. 373, 273 F.2d 108; United States v. Hughes (C.A. 2 1969), 411 F.2d 461. In United States v. Grunewald (D.C.N.Y. 1958), 164 F. Supp. 644, that court stated: "... Nor can it be argued persuasively that the use of the former trial testimony upon the present retrial constitutes improper pressure upon the defendant to take the stand, thus invading his privilege to remain mute. Presumably the defendant told the truth when he testified at the former trial with respect to the same transactions. The prosecution's use of that former testimony constitutes no more pressure than the prosecution's use of any other admission made by the defendant. That the prosecution's proof may tend to incriminate the defendant and the defendant may deem it desirable to take the stand does not spell out improper pressure. Inferences flowing from properly adduced evidence do not constitute a coercive force in violation of a defendant's Fifth Amendment privilege." See also Smith v. Slayton (D.C.W.D. Va. 1973), 369 F. Supp. 1213, and, United States v. Houp (C.A. 8, 1972), 462 F.2d 1338. Further, a court reporter's testimony, read from original shorthand notes taken during robbery trial at which defendant admitted former convictions, was admissible as past recollection recorded. State v. Bailey (1967), 71 Wash.2d 191, 426 P.2d 988.
Notwithstanding the foregoing, this Court notes with more than a passing interest the expressions made by the current members of the Florida Supreme Court in their review of a decision by this District Court of Appeal in Nowlin v. State, Supreme Court of Florida, 346 So.2d 1020, opinion filed May 26, 1977. Nevertheless, on the basis of the aforementioned authorities, we conclude that the trial court did not err in permitting portions of the defendant's testimony at the first trial to be used against him at the second trial, regardless of whether or not he testified at the second trial. Once he voluntarily waived his right against self-incrimination at the first trial, that former testimony was properly introducible at the second trial in the State's case-in-chief. For additional references, see also 5 A.L.R.2d 1408, Previous Trial for Same offense; 23 C.J.S. Criminal Law § 892b, Testimony of Accused, Page 511; 22A C.J.S. Criminal Law § 655, Former Evidence, Page 561, and, Section 733, Judicial Admissions, Page 1061.
*1209 On the other four points raised on appeal, this Court finds no harmful error. The trial court was correct in excluding evidence concerning the background of the victim of the sexual battery in the case at bar that would have allegedly impeached her credibility. It is well recognized in Florida that permission to allow cross examination as to certain subject matter is discretionary with the trial court. Whitley v. State (3 D.C.A. Fla. 1972), 265 So.2d 99; Urga v. State (2 D.C.A. Fla. 1963), 155 So.2d 719. Next, the trial court properly admitted into evidence the testimony of two female witnesses for the state involving similar modus operandi of the defendant which tended to corroborate the testimony given by the victim. Under Williams v. State (Fla. 1959), 110 So.2d 654, and interpretations thereof, Williams rule evidence of similar facts showing a method or scheme of an accused is admissible. The third point raised concerns the refusal of the trial court to instruct the jury concerning the weight to be given to the testimony of the victim of a sexual battery. The trial court decided to use the standard jury instruction rather than the special instruction requested by defendant, pursuant to Section 794.022, Florida Statutes. The trial court did not abuse its discretion; the use of the standard jury instruction cannot be claimed as error. Lastly, the trial court, in excluding evidence that the defendant passed a polygraph examination concerning his guilty, followed State v. Cunningham (3 D.C.A. Fla. 1975), 324 So.2d 173, wherein generally, polygraph test and information gleaned therefrom are not admissible evidence in any criminal proceeding. The results may be admitted into evidence upon stipulation between the state and defense counsel. There was no such stipulation herein, nor other basis that would justify an exception herein.
Accordingly, we affirm the trial court on all points.
AFFIRMED.
MAGER, C.J., and CROSS, J., concur.
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Opinion issued January 13, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00211-CV
CEDRIC CHRISTOPHER EDISON, Appellant
V.
CITY OF HOUSTON, Appellee
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 200234579
MEMORANDUM OPINIONAppellant Cedric Christopher Edison has neither established indigence, nor
paid all the required fees. See Tex. R. App. P. 5 (requiring payment of fees in civil
cases unless indigent), 20.1 (listing requirements for establishing indigence); see also
Tex. Gov’t Code Ann. §§ 51.207, 51.941(a), 101.041 (Vernon Supp. 2004) (listing
fees in court of appeals); Fees Civ. Cases B(1), (3) (listing fees in court of appeals).
After being notified that this appeal was subject to dismissal, appellant Cedric
Christopher Edison filed an application to proceed in forma pauperis. Such an
application is untimely and thus, is overruled. See Tex. R. App. P. 20.1(c).
The appeal is dismissed for nonpayment of all required fees. See Tex. R. App.
P. 5 (allowing enforcement of rule); 42.3(c) (allowing involuntary dismissal of case).
All pending motions are denied.
PER CURIAM
Panel consists of Justices Nuchia, Alcala, and Keyes.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30201
Plaintiff-Appellee, D.C. No.
3:14-cr-05105-RBL-8
v.
MICHAEL ECKENRODE, MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted May 9, 2017**
Seattle, Washington
Before: McKEOWN, BEA, and N.R. SMITH, Circuit Judges.
Michael Eckenrode pled guilty to certain drug and gun offenses. His plea
agreement includes a waiver of appeal, which states that “Defendant acknowledges
that by entering the guilty plea(s) . . . [he] waives to the full extent of the law” any
right to direct appeal of his sentence under 18 U.S.C. § 3742 and any right to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
collateral attack “except as it relates to the effectiveness of legal representation.”
Eckenrode appeals the district court’s denial of his motion for reconsideration of
sentence and to replace counsel. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), and we review de novo the validity of an appeal waiver. See
United States v. Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010). We dismiss.
In general, “[a] defendant’s waiver of his appellate rights is enforceable if
the language of the waiver encompasses his right to appeal on the grounds raised,
and if the waiver was knowingly and voluntarily made.” United States v. Watson,
582 F.3d 974, 986 (9th Cir. 2009) (citation omitted). Eckenrode does not dispute
that his appeal falls within the scope of the plea agreement’s waiver. Rather, he
contends that his situation fits a recognized exception; specifically, Eckenrode
argues that the judge at the Rule 11 change of plea hearing unambiguously
informed him that he retained the right to appeal. See United States v. Buchanan,
59 F.3d 914, 917 (9th Cir. 1995).
Neither the magistrate judge nor the district judge told Eckenrode that he
retained the right to appeal. At the change of plea hearing, the magistrate judge
said that Eckenrode retained the right to bring a collateral attack on his conviction
or sentence for ineffective assistance of counsel. At sentencing, the district court
similarly advised Eckenrode that he “waived [his] right to appeal the sentence” and
that “the only collateral attack that [he could] take against th[e] judgment is in the
2
unlikely event of ineffective assistance of counsel.” Those statements reflect the
exclusion contained in the waiver, so the waiver remains valid and enforceable.
See United States v. Arias-Espinosa, 704 F.3d 616, 619 & n.1 (9th Cir. 2012).
We decline to address the claims of ineffective assistance of counsel on
direct appeal. We note that, by its terms, the waiver preserves Eckenrode’s ability
to initiate a collateral attack on his conviction and sentence for ineffective
assistance of counsel.
DISMISSED.
3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5108
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FARRELL LEE CHATMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:09-cr-00378-D-1)
Submitted: September 29, 2011 Decided: March 8, 2012
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Jennifer P. May-Parker, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Farrell Lee Chatman appeals his conviction and 135-
month sentence imposed following his guilty plea to conspiracy
to distribute and possess with intent to distribute fifty grams
or more of cocaine base and five kilograms or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1), 846 (2006). On appeal,
counsel filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious grounds for
appeal, but setting forth several arguments at Chatman’s request
challenging the validity of the plea and the reasonableness of
the sentence. The Government has filed a motion to dismiss the
appeal on the basis that Chatman explicitly waived his right to
appeal in the plea agreement. Chatman opposes the motion on the
basis that the Government breached the plea agreement and
engaged in prosecutorial misconduct by declining to file a
motion pursuant to U.S. Sentencing Guidelines Manual § 5K1.1
(2009).
We review the validity of a waiver de novo and will
uphold a waiver of appellate rights if the waiver is valid and
the issue being appealed is covered by the waiver. United
States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). A waiver is
valid if the defendant’s agreement to the waiver was knowing and
voluntary. United States v. Marin, 961 F.2d 493, 496 (4th Cir.
2
1992); United States v. Wessells, 936 F.2d 165, 167 (4th Cir.
1991).
To determine whether a waiver is knowing and
intelligent, we examine “the totality of the circumstances,
including the experience and conduct of the accused, as well as
the accused’s educational background and familiarity with the
terms of the plea agreement.” United States v. General, 278
F.3d 389, 400 (4th Cir. 2002) (internal quotation marks and
citation omitted). Generally, if a district court fully
questions a defendant regarding the waiver of appellate rights
during the Fed. R. Crim. P. 11 colloquy, the waiver is valid and
enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th
Cir. 2005).
Our review of the record leads us to conclude that
Chatman knowingly and voluntarily waived his right to appeal the
conviction and sentence. To the extent Chatman claims that the
Government breached the plea agreement or otherwise engaged in
prosecutorial misconduct in declining to file a downward
departure motion based on substantial assistance, we conclude
that his claim is squarely contradicted by the record. Wade v.
United States, 504 U.S. 181, 184-87 (1992).
In accordance with Anders, we have reviewed the entire
record in the case and have found no meritorious issues for
appeal outside the scope of the appellate waiver. Accordingly,
3
we grant the Government’s motion to dismiss and dismiss the
appeal. We deny Chatman’s motion to replace counsel. This
court requires that counsel inform Chatman, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Chatman requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Chatman. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
4
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199 F.2d 941
EMPIRE DISTRICT ELECTRIC CO.v.RUPERT.
No. 14571.
United States Court of Appeals Eighth Circuit.
Nov. 18, 1952.Rehearing Denied Dec. 10, 1952.
E. P. Dwyer, Jr., and A. E. Spencer, Jr., Joplin, Mo., for appellant.
William G. Boatright, Kansas City, Mo., for appellee.
Before THOMAS, JOHNSEN and RIDDICK, Circuit Judges.
THOMAS, Circuit Judge.
1
This is an action for damages for personal injuries. A judgment based upon the verdict of a jury for the plaintiff for $25,000 was entered, and the defendant appeals.
2
Jurisdiction of the federal court is based on diversity of citizenship and the amount involved.
3
The defendant owns and operates an hydroelectric plant on the White river in Taney County, Missouri. In connection with its business it owns and operates a dam on the river approximately 50 feet high from the bed of the river.
4
The plaintiff in his complaint alleged that on June 12, 1950, while navigating the lake above the dam in a small fishing boat with an outboard motor he, without any warning, was sucked, swept or thrown over the dam and severely injured. He charged that his injuries were proximately caused by the negligence of the defendant, in that (a) no warning signs were maintained to advise one approaching that surplus water was being spilled over the top of the dam and that there was danger of boats being sucked, swept or thrown over the top of the dam, and (b) that defendant failed to maintain any barriers, boom, chains, ropes or obstructions in front of the dam to prevent plaintiff and others navigating the river from being swept over the dam.
5
The defendant admitted the jurisdiction of the court and that plaintiff had been injured by going over the dam, denied any negligence, and alleged that plaintiff was guilty of contributory negligence which was the direct and proximate cause of his injury in that he had full knowledge and notice of the existence of the dam; that he knew and saw the situation and the danger existing and that he intentionally operated his boat too near the spillway and within the danger zone for the purpose of taking pictures, all in utter disregard of his safety.
6
It was stipulated that the waters of the White river at and above the dam constitute navigable waters of the United States; that the dam was constructed pursuant to an Act of Congress, see 33 U.S.C.A. § 401, and also Public Law No. 342, 36 U.S.Stat. 897, by defendant's predecessor; and that its authorized crest was 700 feet above sea level plus an additional 5 feet to be maintained by flashboards. The Act of Congress provided that the dam should be constructed and operated in accordance with the provisions of the Act approved June 23, 1910, entitled 'An Act to amend an Act entitled 'An Act to regulate the construction of dams across navigable waters,' approved June twenty-first, nineteen hundred and six,' 36 U.S.Stat. 593, 33 U.S.C.A. note preceding section 401. The latter Act provided that the plans and specifications for such dams were subject to the approval of the Secretary of War and the Chief of Engineers, and that ' * * * it shall not be lawful to deviate from such plans or specifications either before or after completion of the structure unless the modification of such plans or specifications has previously been submitted to and received the approval of the Chief of Engineers and of the Secretary of War: * * * .' The Act provided further that: 'The persons owning or operating any such dam * * * shall maintain * * * such lights and other signals thereon * * * as the Secretary of Commerce (and Labor) shall prescribe * * * .'
7
The entire dam structure including the power house on the right is approximately 1300 feet long. The spillway section is about 593 feet long and 50 feet above the river bed. Water does not flow over the earth embankment on the left which is about 420 feet in length. A lookout observation place where the earth embankment joins the spillway section is about 20 feet higher than the spillway. The power plant at the right including the intake for the engines is 228 feet long. The lake impounded above the dam is approximately 15 miles long and is known as Lake Taneycomo, and the dam is commonly called the Powersite dam. Splashboards 26 inches high were in use over the entire length of the spillway, and on the day of the accident the water going over the top of them was about 24 inches deep, which was equivalent to an elevation of 54.90 feet.
8
The plaintiff-appellee, Captain Oran H. Rupert, Infantry, U.S. Army, testified that in June, 1950, he obtained a leave of absence from his military duties. With his wife he went to Lake Taneycomo where they rented a cabin at Rockaway Beach on the lake. This was his first trip there, and he knew only that it was a recreational area.
9
For the six days prior to the accident on June 12th he fished practically every morning and evening and took pictures during the day. He had fished on lakes in small fishing boats before, had used outboard motors and was familiar with their operation.
10
Photography had been his principal hobby since 1940. June 12th was a beautiful day with the sun shining brightly, and he decided to take some pictures of the lake or of the docks. He had rented a boat for his use and mounted on it a 1 1/2 horsepower Evinrude motor which he had brought with him on his vacation. He then started downstream for the purpose of viewing the lake and taking pictures. The first indication of the dam was the concrete structures on either side of the stream or lake. The structure on the right was large, and some sort of tower was on the left bank (going downstream).
11
No one had ever described the dam to him. He had no information that a 600-foot open spillway was across its center. He had never seen a dam with an open spillway through the center 600 feet and did not know that such type dam was constructed. He saw no warning signs of any kind, no boom across the lake in front of the structures, no floating buoys. No one had given him any warning, and he proceeded downstream with his motor half open, as was customary. There was no turbulence or current in the water. It was more turbulent upstream than immediately above the dam. He did not observe any current nor see any driftwood, twigs or leaves moving down the lake.
12
On his first trip down he did not observe the 600-foot open spillway and did not know it was a spillway until long afterwards. He proceeded toward the low concrete structure and when he got closer to the dam he made a short arc and reversed himself. He was in the middle third of the lake all the time, interested in what scene he could observe for the purpose of taking a picture. As he was approaching the dam, seeing what he could, he made a turn to the left, an arc, turned back and proceeded upstream a couple of hundred yards on the right side going up from the dam. He then let the motor idle, took the cameras from the case, and adjusted a filter to take a cloud picture. He testified 'I intended to retrace my first course and take the picture, and that is the last thing I remember.' He remembered nothing about going over the dam or the fall into the whirlpool below.
13
His testimony was not entirely consistent in every particular. In one part of his testimony, referring to his first trip down to the dam, he stated: ' * * * at a distance of 25 feet above the spillway, seated in the boat, I do not recall ever seeing the river below the dam. I do recall seeing trees and foliage at a lower level than the top of the lake.'
14
Again, he said: 'On my first trip, anticipating the picture downstream, I saw the river below the dam at a distance- the distant scene was my interest and the river below the dam was a part of the scene.'
15
Further, on cross-examination he testified that his last memory was when 200 yards upstream from the dam he turned his boat and started back down to the dam to take the picture of the scene below the dam. He remembered nothing that occurred thereafter, but, he said, ' * * * I am confident that I re-did exactly what I did before.
16
'Q. But that is just a surmise? A. Yes, sir.
17
'Q. On the other hand, from as far as your memory, you might have steered and sailed right over? A. I may have, but I don't know. I know what my intentions were.'His next conscious memory was in the hospital.
18
Engineers familiar with several dams in rivers with open spillways testified in regard to the safety devices or the absence of them at dams with which they were familiar. Their testimony disclosed that at some such dams, booms, buoys, danger signs and lights are used to warn the public of danger or to prevent accidents whereas at many others no such warnings are used.
19
While there is nothing in the record to indicate when the dam was constructed, Leroy Smith, plant superintendent for the defendant, stated that lights have been maintained on the dam for the past 30 years. One red light is at each end of the spillway and white lights, like street lights, are maintained on the upstream side which illuminate the dam at night. No signs are maintained in the daytime, ' * * * because you can see the concrete structure and would know there was a dam.'
20
Lawrence Bartlett, general superintendent of the defendant, testified: 'There is danger when water is flowing over the dam of anybody in a boat getting down very close to the dam where there is a flow or current. There were no warning signs of any kind or character maintained to warn people of the danger of approaching a given area near the dam * * * I * * * felt that it (the danger) was self-evident to any one ;ho might be on the water * * * .'
21
At the close of the plaintiff's case and again at the close of all the evidence the defendant moved the court to instruct the jury to return a verdict for the defendant on the ground that the record failed to show a breach of lawful duty to the plaintiff on the part of the defendant, but that the evidence conclusively showed the the plaintiff was guilty of negligence which directly and proximately contributed to his injuries as a matter of law.
22
Both motions were overruled. The case was submitted to the jury upon instructions to which no exception is taken here. The only contention in this court is that these motions for a directed verdict, or one of them, should have been sustained by the court.
23
The instructions are important, therefore, only as tests to be applied to the testimony to determine whether or not it was sufficient to support a verdict for the plaintiff.
24
On the question of negligence the court instructed that ' * * * if you find and believe from * * * the greater weight of the evidence * * * that there was a dangerous condition existing as a result of the impounding of the water, and that no notice thereof was given, no signs posted, that the plaintiff in the exercise of ordinary care on his part could not have seen or observed the dangers incident to the water flowing over that dam, and that as a result of that carelessness and negligence the boat in which he was riding, propelling, was caused to be sucked over the dam and he was injured, your verdict should be for the plaintiff.
25
'On the contrary, * * * contributory negligence in this case is pleaded as an affirmative defense, and just as the duty is upon the plaintiff to prove his case by the preponderance or greater weight of the evidence, so is the duty upon the defendant to prove the contributory negligence of the plaintiff by the same degree of care * * * if you find that the accident was a result of his own carelessness and negligence in failing to observe that which could have been observed in the exercise of ordinary care, then it would be your duty to find for the defendant.
26
' * * * As I stated to you, if there was a dangerous condition created and existing as a result of the impounding of the waters which could not be observed by a person in the exercise of ordinary care, it would then have been the duty of the defendant to provide such warning. But if the danger, if it existed, was so obvious and appreciable that a person in the exercise of ordinary care could have seen it and understood it, then the question of posting notices or placing buoys or other obstacles, would have no place in this case * * * it isn't required that one be given notice of that which can be seen and observed in the exercise of ordinary care * * * If it (the danger) was apparent to an ordinarily prudent person, the warning would make no difference * * * .'This vital question for determination on this appeal is whether the evidence is such that this court can say as a matter of la; that the plaintiff in the exercise of ordinary care could have seen and avoided the danger created by the dam; that the danger was apparent to an ordinarily prudent person.
27
Under Missouri law the burden of Roof was upon the plaintiff to plead and to prove that the specific negligence of the defendant was the proximate cause of his injury, Semler v. Kansas City Public Service Co., 355 Mo. 388, 196 S.W.2d 197; and upon the defendant to prove the alleged contributory negligence of the plaintiff. Brady v. St. Louis Public Service Co., Mo. Sup., 233 S.W.2d 841, 844. The rule in federal courts is that the burden of showing grounds on which a judgment should be reversed rests on the appellant. Elias v. Clarke, 2 Cir., 143 F.2d 640, certiorari denied323 U.S. 778, 65 S.Ct. 191, 89 L.Ed. 622. And we are well aware that on appeal from a judgment rendered on a jury verdict in favor of plaintiff for personal injuries the testimony must be considered most favorably to support the judgment. St. Paul Hotel Co. v.Lohm, 8 Cir., 196 F.2d 233. Further, we realize that this court is 'an appellate court sitting to review alleged errors of law, and not to try the action de novo.' Twentieth Century Fox Film Corp. v. Brookside Theatre Corp., 8 Cir., 194 F.2d 846, 852. Nor can it be forgotten that 'A jury does not have the power to render a capricious and arbitrary verdict in total disregard of the evidence.' Wetherbee v. Elgin, Joliet & Eastern Ry. Co., 7 Cir., 191 F.2d 302, 310.
28
With all this in mind we find that the plaintiff admitted he knew the dam was there, but he did not know that the spillway was between the high walls on the ends of the dam; that he supposed it was on the right side of the river where the power house was seen to be. The crucial evidence to be considered is plaintiff's testimony that on his first trip down to the dam on June 12th, to determine where he would take a picture, when he approached to within 25 to 50 feet of the dam, looking over the top of it, he saw the river and trees below, and he then decided that was the scene which he desired to photograph. But he testified in substance that he did not appreciate the fact that water was pouring over the dam at that point; he considered it to be only the edge of the 'pond.' The fact was, however, that it was not the edge of a pond. That water was passing over the dam would necessarily have been evident to any observer. No part of the spillway was above the surface of the water; the water was less turbulent near the dam than it was further upstream. It is difficult to understand how any person could fail to see that the water was spilling over the top of the dam at that point. It is true that a person in these circumstances, unless he observed carefully, might not be able to estimate how much water was going over the dam or its velocity.
29
It is well established Missouri law that 'Where one is charged with the duty to look, and to look is to see, he must be held to have seen what looking would have revealed.' Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548; Weis v. Melvin, Mo. Sup., 219 S.W.2d 310; Branscum v. Glaser, Mo. Sup., 234 S.W.2d 626. And 'The law is further well settled that 'a failure on the part of a plaintiff, where a duty to look exists, to see what is plainly visible when he looks, constitutes contributory negligence as a matter of law." State ex rel. Kansas City So. R. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915, 918; Harding v. Triplett, Mo. App., 235 S.W.2d 112. And see, also, Clark v. Missouri Natural Gas Co., Mo. Sup., 251 S.W.2d 27.
30
But, says counsel for plaintiff, the plaintiff on his second and fatal trip down the lake is presumed in the absence of evidence to the contrary to have exercise due care because of loss of memory, citing Stotler v. Chicago & A.R. Co., 200 Mo. 107, 98 S.W. 509, 521. In the cited case plaintiff was injured at a railroad crossing, and the court said that 'Eugenia (the plaintiff) being unable to speak on her own behalf, being left by her injuries as though dead, and having no knowledge of the affair, she is entitled to certain presumptions in her favor, and those presumptions are that, in the absence of evidence to the contrary (because of the natural instinct of love of life), she did exercise due care.'
31
In response to a like contention, Mr. Justice Lamm in Mackowik v. Kansas City, St. J. & C.B.R. Co., 196 Mo. 550, 94 S.W. 256, 262, said: ' * * * presumptions have no place in the presence of the actual facts disclosed to the jury, or where plaintiff should have known the facts had he exercised ordinary care * * * .' And he quoted the adage that 'Presumptions * * * may be looked on as the bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts.' Here it is not necessarily what the plaintiff saw and observed on his second trip to the dam, but it is what he should have seen and observed on his first trip. That is, should he not have observed the water going over the dam at that time and appreciated the danger, since he was bound to exercise the care for his own safety commensurate with the situation in which he found himself? The only excuse for such neglect is that at the time he was interested only in the view below the dam as presenting an attractive scene for a picture.
32
Further, his lapse of memory reached back only to the beginning of his second trip. He recalled with apparent clarity his observations on the first trip to the dam only a few minutes prior to the last trip. His failure to observe what was apparent and to appreciate the danger was carelessness. It was not a case of traumatic amnesia as in Knight v. Richie, Mo. Sup., 250 S.W.2d 972, or of retrograde amnesia as in Prewitt v. Rutherford, 238 Iowa 1321, 30 N.W.2d 141, in which cases doctors testified to the effect of shock on one's memory.
33
We cannot escape the conclusion that the plaintiff was contributorily negligent and that such negligence was the direct and proximate cause of his injury. As said by the Supreme Court of Missouri in Tietze v. New York, C. & St. L.R. Co., 250 S.W.2d 486, 488. 'No one can assume there will not be a violation of the law or negligence of others and then offer such assumption as an excuse for failure to exercise care.'
The judgment must, therefore, be
34
Reversed.
35
JOHNSEN, 0circuit Judge (dissenting).
36
I do not feel able to say as a matter of law at what point of proximity to the dam there existed the danger generally to boatmen, on the basis of all the possible affecting conditions which could obtain on Lake Taneycomo, of being drawn into and over the spillway. And without the establishment and posting of such a general danger zone by appellant, as a legal constant, based on all the possible affecting conditions and taking into account all the possible kinds of boats used on the lake, I no more feel able to declare judicially under the conditions which obtained on the specific occasion and the knowledge of them which appellee could have only from observation, at what point, in relation to such conditions and knowledge, appellee could reasonably have been expected to realize that he would be subjecting himself to this danger.
37
Without an established and posted general danger zone as a legal constant, the point of actual danger was a variable one, as a matter both of fact and of apparency, in that some of the factors by which it was controlled, such as volume of water going over the spillway, extent of existing current, and manifestations of flow, were not at all times the same.
38
Appellee testified that, on his first approach toward the dam, he proceeded to a point some 25 or 50 feet away and then turned his craft around to get his camera ready; that in making this approach there had been no feeling or suggestion of pull or tow upon the boat at any time; and that, while he knew, of course, that the river flowed generally into the lake and on beyond again, the lake itself had a placid appearance and was without any movement of twigs, driftwood or other debris indicative of a special current. There was evidence on the part of appellant that a movement of debris in the lake existed 'under all conditions.' There further was testimony by appellant's general superintendent that, under the specific conditions existing at the time of the accident, 'a man in a rowboat who had never seen the place before- I believe the current of the water would move his boat to the extent that he would feel it.' He admitted, however, that, when an outboard motor was used, as appellee did, under the conditions which existed on the occasion, 'he might not be able to detect from the current as to how much water was going over, or the velocity.'
39
In so far, therefore, as the volume of water, the extent of current, and the manifestations of flow were material factors in relation to appellee's responsibility of knowing from observation how close to the dam he could prudently go, the facts as to the existing conditions and their observable significance were clearly, it seems to me, for the jury to resolve.
40
There also are other considerations shown by the evidence which I think tended to make the question of fixing the observational point of danger under the existing conditions one for the jury and not for the court. Thus, it appeared that appellant did not require its workmen to cross the lake in connection with their work at any certain point but allowed them to cross in varying proximity to the dam on the basis of the existing volume of water. But, while insisting that a boatman on the lake, inexperienced though he might be, should be sufficiently able to determine the volume of water at any time to know how close to the dam he could safely go, appellant apparently did not believe that this standard could be safely applied to its own experienced workmen, for, according to its plant superintendent, employees were not permitted to pick their point of crossing on the basis of observation, but 'we have a river gauge which tells us the depth of the water over the spillway and we go upstream according to the depth of the water.'
41
Another circumstance seems to me further to point up the impossibility of saying with legal absoluteness that an approach to within 50 feet of the dam (which distance is entitled to be taken on appellee's testimony in relation to a directed verdict) was necessarily at the time unsafe and should have been known by appellee to be so. Photographs taken on the lake on behalf of appellant for purposes of the trial, which appellee agreed were made under conditions corresponding to those existing at the time of the accident, were taken from a boat in 75-foot proximity to the dam. If, on the existing conditions, it was safe as a matter of fact and apparency to approach within this distance to take pictures, it seems to me that it would be drawing a fine legal line to say that nevertheless no boatman was at all warranted in proceeding to a 50-foot proximity for such a purpose- and this though the observational elements might present the same apparent condition.
42
As I have said, I do not think that, on the varying conditions of the lake, both of fact and of apparency, it can legally be declared how close to the dam a boatman was warranted in going at any particular time. It is entitled to be borne in mind in this connection that no general danger zone, with posted warnings, taking into account all the possible elements and conditions which could exist, had been established by appellant. In the absence of such a legal constant, I do not believe that any possible basis exists, under the varying conditions which could obtain and the inabsolute possibilities of observational appreciation to which they might be subject, to hold that anyone who ran a motorboat to within a distance of 50 feet from the dam was necessarily guilty of contributory negligence.
43
If appellee's conduct was imprudent, it seems to me that that brand can in the circumstances only be placed upon it by the branding iron of fact, and not by the branding iron of law. I am unable to see in the variableness of the conditions, both of fact and of apparency, such absoluteness of realizable danger of being drawn into and over the spillway, at a distance of 50 feet from the dam, as would require the question of contributory negligence to be taken from the jury.
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771 N.W.2d 654 (2009)
IN RE C.L.W.
No. 09-0369.
Court of Appeals of Iowa.
May 29, 2009.
Decision without published opinion. Affirmed.
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218 N.W.2d 759 (1974)
STATE of Minnesota ex rel. John J. DOHERTY, Appellant,
v.
Richard DUGGAN, Captain of Sheriffs, Hennepin County Jail, Respondent.
No. 44333.
Supreme Court of Minnesota.
June 7, 1974.
Emanuel Z. Kopstein, Palm Springs, Cal., for appellant.
Warren Spannaus, Atty. Gen., St. Paul, Gary W. Flakne, County Atty., Theodore R. Rix, Michael McGlennen and Vernon E. Bergstrom, Asst. County Attys., Minneapolis, for respondent.
Considered and decided by the court without oral argument.
PER CURIAM.
This is an appeal from an order discharging a writ of habeas corpus in an extradition proceeding. In response to a demand by the governor of the State of Colorado, the governor of Minnesota issued a rendition warrant for petitioner's surrender to Colorado authorities for trial on a charge of escape from custody. Petitioner's application for a writ of habeas corpus followed. We affirm.
The facts are undisputed. On October 5, 1970, petitioner was convicted in the State of Colorado of possessing burglary tools and sentenced to a term not exceeding 2 years. On June 17, 1971, he left a Denver work-release program, conducted by Colorado correctional authorities, and went to Canada. Shortly thereafter he came to Minnesota. On May 28, 1972 he was arrested on a charge of being a fugitive *760 from justice. Following his arraignment on June 2, 1972, petitioner was released on bail pending completion of extradition proceedings by Colorado authorities. However, at the expiration of the maximum statutory period during which a fugitive can be held in jail or released on bail pursuant to a fugitive complaint under Minn.St. 629.17, Colorado authorities had not completed extradition proceedings or obtained a rendition warrant. As a result, the municipal court dismissed the fugitive complaint on September 15, 1972. Thereafter, on October 26, 1972, petitioner was arrested on a rendition warrant signed by the governor. He has remained free on bail pending final outcome of the habeas corpus proceeding.
Petitioner challenges extradition on a number of grounds. He alleges, first, that the municipal court's dismissal of the fugitive complaint operated as a complete bar to this or any subsequent extradition proceeding resulting from the escape charge; second, that he cannot be extradited on a charge of escape because he was not in custody at the time he left Colorado; and, third, that the present proceeding must be dismissed, even if he did escape from custody, because the governor's rendition warrant states that he is wanted for escaping from custody on June 15, 1971, although it is clear from the record that the escape actually occurred on June 17, 1971.
1. In State ex rel. Brown v. Hedman, 280 Minn. 69, 157 N.W.2d 756 (1968), we held that dismissal of an original fugitive complaint does not bar further proceedings under a rendition warrant. That decision here governs.
2. Petitioner in effect attempts to have this court litigate his guilt or innocence by deciding the facts concerning his custody. That function is prohibited by Minn.St. 629.20.
3. We do not believe it is material that the rendition warrant misstates the date on which petitioner committed the act constituting the crime of escape from lawful custody. In State v. Coddington, 275 Minn. 237, 145 N.W.2d 866 (1966), we held that a similar misstatement was insufficient to invalidate the proceeding.
Affirmed.
SCOTT, J., took no part in the consideration or decision of this case.
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61 F.3d 30
Ibekwev.Dorr*
NO. 94-2269
United States Court of Appeals,Eleventh Circuit.
July 06, 1995
1
Appeal From: M.D.Fla., No. 93-00305-CIV-ORL-18
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-19-2008
Hitchens v. Montgomery
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4819
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Hitchens v. Montgomery" (2008). 2008 Decisions. Paper 1213.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1213
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4819
BARBARA HITCHENS
Appellant
v.
MONTGOMERY COUNTY;
MONTGOMERY COUNTY CORRECTIONAL FACILITY;
ED ECHAVARRIA; JULIO M. ALGARIN
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 01-cv-02564)
Magistrate Judge: Hon. M. Faith Angell
Submitted under Third Circuit LAR 34.1 (a)
on March 4, 2008
Before: SCIRICA, Chief Judge, FISHER and ROTH, Circuit Judges
(Opinion Filed May 19, 2008 )
OPINION
ROTH, Circuit Judge:
This appeal involves a Title VII claim by appellant, Barbara Hitchens, against her
former employer, Montgomery County and the Montgomery County Correctional Facility,
alleging a hostile work environment caused by sexual harassment. Because we find that
Hitchens failed to meet her burden to provide sufficient evidence to support all elements of
her Title VII claim, we will affirm the judgment of the District Court.
I. BACKGROUND
As the facts are well known to the parties, we give only a brief description of the facts
and procedural posture of the case.
Hitchens, a corrections officer for the Montgomery County Correctional Facility,
claims she was sexually harassed by Edward Echevarria, a civilian employee of the prison,
in March and April of 2000. The alleged harassment occurred while Hitchens worked in the
staff laundry and Echevarria worked as a laundry supervisor in the inmate laundry. Hitchens
did not report the harassment to her employer. In September 2000, Hitchens filed a
complaint with the Equal Employment Opportunity Commission (EEOC) complaining of the
harassment, and Echevarria was told not to have any further contact with her.
On May 24, 2001, Hitchens filed a complaint with the United States District Court for
the Eastern District of Pennsylvania alleging sexual harassment violations as well as
violations of her Constitutional rights pursuant to 42 U.S.C. §§ 1981, 1982, 1983, 1985, and
1986. Additionally, Hitchens asserted a claim pursuant to Title VII of the Civil Rights Act
2
of 1964 alleging a sexually hostile work environment. In response to a number of motions
filed by the defendants, all the claims, save the Title VII claim, were dismissed.
The case proceeded to jury trial on September 19-20, 2006. At the conclusion of
Hitchens’ case, the District Court indicated in open court that it would grant the defendant
Montgomery County’s renewed motion for judgment as a matter of law pursuant to Federal
Rule of Civil Procedure 50 because Hitchens (1) failed to provide sufficient evidence
establishing respondeat superior liability and (2) failed to provide any evidence of injury or
damages.1 On September 22, 2006, the District Court issued an order granting such motion
on the basis that Hitchens’ Title VII claim could not be supported because of her failure to
provide sufficient evidence establishing respondeat superior liability. Thereafter, the District
Court issued an order denying Hitchens’ motion for reconsideration in granting defendants’
Rule 50 motion. Hitchens timely appealed.
II. DISCUSSION
The District Court had jurisdiction over Hitchens’ Title VII claim under 28 U.S.C. §
1331 and 42 U.S.C. § 2000e-5(f)(3). We have jurisdiction pursuant to 28 U.S.C. § 1291.
Hitchens argues on appeal that the District Court erred in denying her motion to
reconsider the grant of defendant’s Rule 50 motion for judgment as a matter of law.
1
Specifically with regard to respondent superior liability, the District Court concluded
that Hitchens failed to provide sufficient evidence proving that (1) Echevarria was her
supervisor, rather than a mere co-worker, or (2) her employer knew or should have known
of the harassment and failed to take prompt remedial action.
3
Specifically, Hitchens argues that Echevarria was her supervisor and this is sufficient
evidence establishing respondeat superior liability.2
We review a district court’s denial of a motion for reconsideration for an abuse of
discretion. United States v. Herrold, 962 F.2d 1131, 1136 (3d Cir. 1992). Where, as here,
the underlying judgment for review – the judgment granting the defendants’ Rule 50 motion
for judgment as a matter of law – is based in part upon the interpretation and application of
a legal precept, our review is plenary. Id.; see also DiBella v. Borough of Beachwood, 407
F.3d 599, 601 (3d Cir. 2005) (explaining that we exercise plenary review over the grant of
a Rule 50 motion for judgment as a matter of law). However, “to the extent that the district
court's order was based on its factual conclusions, we review under a ‘clearly erroneous’
standard.” Herrold, 962 F.2d at 1136 (citations omitted).
“A motion for judgment as a matter of law under Federal Rule 50(a) should be granted
only if, viewing the evidence in the light most favorable to the nonmoving party, there is no
question of material fact for the jury and any verdict other than the one directed would be
2
We note that Hitchens fails to address the District Court’s conclusion that she did not
provide any evidence of injury or damages, which is a necessary element of a Title VII claim.
See Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293 (3d Cir. 1999). Generally, such
failure to raise an argument on appeal amounts to waiver, and we could affirm the District
Court’s grant of the defendant’s motion for judgment as a matter of law on this basis alone.
See Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006) (explaining that “an appellant’s
failure to identify or argue an issue in his opening brief constitutes a waiver of that issue on
appeal”). However, because the written order granting defendant’s motion indicated only
that Hitchens failed to provide sufficient evidence on the existence of respondeat superior
liability, we will address the merits of her argument.
4
erroneous under the governing law.” Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d Cir.
1996) (internal quotations omitted). In Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153 (3d
Cir. 1993), we explained that “although the court draws all reasonable and logical inferences
in the nonmovant's favor, we must affirm an order granting judgment as a matter of law if,
upon review of the record, it is apparent that the verdict is not supported by legally sufficient
evidence.” Id. at 1166.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to
discriminate against any individual with respect to his [or her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). As this Court has previously noted, “a
plaintiff can demonstrate a violation of Title VII by proving that sexual harassment created
a hostile or abusive work environment.” Kunin v. Sears Roebuck and Co., 175 F.3d 289, 293
(3d Cir. 1999). In order to be successful in his or her claim, a plaintiff must present
sufficient evidence to support the following five elements of a hostile work environment
claim: “(1) the employee[ ] suffered intentional discrimination because of [his or her] sex;
(2) the discrimination was pervasive and regular; (3) the discrimination detrimentally
affected the plaintiff; (4) the discrimination would detrimentally affect a reasonable person
of the same sex in that position; and (5) the existence of respondeat superior liability.” Id.
(quoting Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)).
5
With regard to the fifth element–respondeat superior liability– this Court has
established that “[a]n employer is not always vicariously liable for a hostile work
environment.” Kunin, 175 F.3d at 293. It is well recognized that an employer is vicariously
liable to a victimized employee “for an actionable hostile environment created by a
supervisor with immediate (or successively higher) authority over the employee.” Faragher
v. City of Boca Raton, 524 U.S. 775, 807 (1998). If this is the case, the employer will
ultimately be liable for the supervisor’s conduct, provided that the supervisor took “tangible
employment action” against the employee, see id., which includes employment related
actions such as “discharge, demotion, or undesirable reassignment,” Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742, 765 (1998). However, if the supervisor charged with creating
the hostile environment did not take “tangible employment action” against the employee, the
employer may raise as an affirmative defense to liability the fact that it “exercised reasonable
care to prevent and correct promptly any sexually harassing behavior . . . and that the plaintiff
employee unreasonably failed to take advantage of any preventive or corrective opportunities
provided by the employer or to avoid harm otherwise . . ..” Durham Life Insurance Co. v.
Evans, 166 F.3d 139, 150 (3d Cir.1999)) (quoting Ellerth, 524 U.S. at 765).
On the other hand, if the person charged with creating the hostile environment is the
plaintiff’s co-worker, and not a supervisor, “liability exists [only] where the [employer] knew
or should have known of the harassment and failed to take prompt remedial action.” Kunin,
175 F.3d at 293 (citing Andrews, 895 F.2d at 1486 (citations omitted)). “Prompt remedial
6
action” is conduct “reasonably calculated to prevent further harassment.” Bonenberger v.
Plymouth Township, 132 F.3d 20, 26 (3d Cir.1997) (citing Knabe v. Boury Corp., 114 F.3d
407, 412 (3d Cir.1997)).
In viewing the evidence in a light most favorable to Hitchens, we agree with the
District Court that she failed to provide sufficient evidence establishing the existence of
respondeat superior liability and damages or injury, which are necessary elements of her Title
VII hostile environment claim. See Andrews, 895 F.2d at 1482.
First, we conclude that the District Court’s finding that Echevarria was Hitchens’ co-
worker (rather than her supervisor) was not clearly erroneous given her testimony at trial.
Hitchens testified that Echevarria was not her supervisor. He was not in her chain of
command because he was a civilian employee and thus had no supervisory authority over
Hitchens or any of the corrections officers. Hitchens conceded at trial that Echevarria did
not have the power to hire, fire, or discipline Hitchens, nor did he have the power to set her
hours or review her performance. Rather, Hitchens’ supervisor and shift commander was
Captain Delores Martin, and Echevarria was merely a co-worker.
Second, we agree that, as a matter of law, respondeat superior liability cannot be
imposed upon the defendant employer because the evidence presented at trial was far from
sufficient to prove that the employer knew or should have known of the sexual harassment.
See Kunin, 175 F.3d at 293. Hitchens testified that she never reported the alleged harassment
to her supervisor, to the police, or to the County Equal Employment Opportunity Officer.
7
Hitchens recognized that the sexual harassment policy of the County directed employees to
report any incident of this type to either the employee’s supervisor or, in the alternative, to
the Equal Employment Opportunity Officer, yet she did neither. Only when Hitchens filed
her complaint with the EEOC did her employer have knowledge of her allegations of sexual
harassment, at which time Echevarria was told not to have any further contact with her.
Therefore, because her employer did not know or have reason to know of the alleged sexual
harassment, there was no opportunity for her employer to promptly remedy the situation and
defendants cannot be held liable. See Bonenberger, 132 F.3d at 26; see also Kunin, 175 F.3d
at 293.
III. CONCLUSION
The District Court’s judgment granting defendant County of Montgomery’s Rule 50
motion for judgment as a matter of law was proper because Hitchens failed to provide
sufficient evidence supporting all elements of her Title VII claim.3 Based on the foregoing,
we will affirm the judgment of the District Court.
3
We also find that Hitchens failed to present any evidence supporting the third element
of her Title VII claim– that the discrimination detrimentally affected the plaintiff. We agree
with the District Court that there may have been some purported effect to her ability to sleep
or her comfortableness, but as the evidence at trial showed, she continued to do her job at
apparently the same meritorious level that she displayed prior to the alleged harassment, and
that there was no evidence demonstrating that her employment situation was significantly
affected. Kunin, 175 F.3d at 293.
8
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865 F.2d 252
Patton (Eugene)v.Director, Office of Workers' Compensation Programs, U.S.Department of Labor
NO. 88-3296
United States Court of Appeals,Third Circuit.
NOV 14, 1988
Appeal From: Dept. of Labor
1
REVIEW DENIED; ORDER ENFORCED.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
PAUL R. PRIMAVERA, DOC# U30887, )
)
Appellant, )
)
v. )
) Case No. 2D17-3296
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed February 28, 2018.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Hillsborough County, Kimberly K.
Fernandez, Judge.
Paul R. Primavera, pro se.
PER CURIAM.
Affirmed.
SILBERMAN, BLACK, and SLEET, JJ., Concur.
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6 F.2d 237 (1925)
LUBETICH et al.
v.
POLLOCK, Supervisor of Fisheries, et al.
No. 246E.
District Court, W. D. Washington, S. D.
June 13, 1925.
Van C. Griffin, of Seattle, Wash., for complainants.
John H. Dunbar, Atty. Gen., E. W. Anderson, Asst. Atty. Gen., and John I. O'Phelan, Pros. Atty., of Raymond, Wash., for defendants.
*238 Before GILBERT, Circuit Judge, and CUSHMAN and WEBSTER, District Judges.
WEBSTER, District Judge.
The complaint in this action attacks the constitutionality of section 4, chapter 90, Laws 1923, of the state of Washington, which, as construed by state authorities, prohibits aliens from engaging in commercial fishing in the waters of this state, either in their individual capacity or as employees on fishing vessels owned and operated by citizens of the state. It further assails the constitutionality of certain orders and regulations promulgated by the state fisheries board, pursuant to the authority vested in it by the Legislature, effecting commercial fishing in that portion of the Columbia river and the Pacific Ocean over which the state of Washington has jurisdiction, and also in Grays and Willapa Harbors. The relief prayed is that the defendants be enjoined from enforcing the statute and regulations in question over the waters above mentioned as against the complainants Hroncich, a subject of the government of Italy, lawfully admitted into the United States, and Lubetich, a citizen of the United States and of the state of Washington, engaged in the business of operating a purseseine fishing boat, and in that capacity being the employer of Hroncich, a fisherman.
It is contended that the statute involved prohibiting an alien from being employed on a fishing vessel is a violation of section 12, article 1, of the Constitution of the state of Washington, and also of the Fourteenth Amendment to the Constitution of the United States. The claim is also made that the statute is in contravention of the provisions of the treaty between the United States and the kingdom of Italy. In addition it is asserted that certain orders and regulations of the Fisheries Board are unreasonable, arbitrary and capricious, and therefore in violation of the same constitutional provisions; and finally, that complainants, unless the injunctive relief prayed for be granted, will be arrested and prosecuted in the courts of Pacific County, which have no jurisdiction over offenses committed on the Pacific Ocean within the three-mile limit, thereby depriving them of due process of law. The case was argued to three judges, pursuant to section 266 of the Judicial Code (Comp. St. § 1243), and submitted on the motion of complainants for a temporary injunction and the motion of the defendants to dismiss the bill.
Section 4, chapter 90, Laws 1923, reads:
"It shall be unlawful for any person to fish or take for sale or profit any salmon or other food or shellfish in any of the rivers or waters of this state or over which it has concurrent jurisdiction in civil and criminal cases, unless such person prior to January 1, 1924, be a citizen of the United States or has declared his intention to become such and is and has been, for twelve months immediately prior to the time he engages in such business, a resident of this state or an adjoining state, and from and after January 1, 1924, unless such person be a citizen of the United States and is and has been for twelve months immediately prior to the time he engages in such business an actual resident of this state or an adjoining state; but this section shall not apply to Indians, and nothing in this act shall be construed to prohibit fishing or the taking of fish with a hook and line. The word `fishing' as used in this act shall be deemed and construed to mean the catching or taking of food fish with any appliance, gear or trap, floating or fixed, whatsoever."
It cannot be doubted that the clause of the Fourteenth Amendment guaranteeing equal protection of the laws is of universal application to all persons within the territorial jurisdiction involved, and includes within its protection aliens, without regard to race, color, or nationality. The first question for decision, therefore, is: Does the statute under review amount to a denial of such equal protection? The whole question of the ownership of fish and game and the nature of the title thereto is exhaustively considered by the Supreme Court in the case of Geer v. Connecticut, 161 U. S. 519, 16 S. Ct. 600, 40 L. Ed. 793. In that case the court had under consideration a statute of Connecticut which made it unlawful to kill any woodcock, ruffled grouse, or quail for the purpose of conveying the same beyond the limits of the state. Both the civil and common law authorities were elaborately reviewed, and in the course of the opinion Mr. Justice White declared that from the earliest traditions the right to reduce animals feræ naturæ to possession has been subject to the control of the law giving power; that the wild game within a state belongs to the people in their collective sovereign capacity; that it is not the subject of private ownership except insofar as the people may choose to make it so, and they may, if they see fit, absolutely prohibit the taking of it or the traffic or commerce in it. The following excerpt from *239 the case of Magner v. People, 97 Ill. 320, was quoted with approval:
"The ownership being in the people of the state, the repository of the sovereign authority, and no individual having any property rights to be affected, it necessarily results that the Legislature, as the representative of the people of the state, may withhold or grant to individuals the right to hunt and kill game, or qualify or restrict, as in the opinion of its members will best subserve the public welfare. Stated in other language, to hunt and kill game is a boon or privilege, granted, either expressly or impliedly, by the sovereign authority not a right inherent in each individual; and, consequently, nothing is taken away from the individual when he is denied the privilege, at stated seasons, of hunting and killing game. It is, perhaps, accurate to say that the ownership of the sovereign authority is in trust for all the people of the state, and hence by implication it is the duty of the Legislature to enact such laws as will best preserve the subject of the trust and secure its beneficial use in the future to the people of the state. But in any view, the question of individual enjoyment is one of public policy and not of private right."
The statute was upheld, and in the opinion this language is found:
"The sole consequence of the provision forbidding the transportation of game, killed within the state, beyond the state, is to confine the use of such game to those who own it, the people of that state. The proposition that the state may not forbid carrying it beyond her limits involves, therefore, the contention that a state can not allow its own people the enjoyment of the benefits of the property belonging to them in common, without at the same time permitting the citizens of other states to participate in that which they do not own."
In the more recent case of Lacoste v. Department of Conservation, 263 U. S. 545, 44 S. Ct. 186, 68 L. Ed. 437, it is said:
"The wild animals within its borders are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of all of its people. Because of such ownership, and in the exercise of its police power the state may regulate and control the taking, subsequent use, and property rights that may be acquired therein."
In McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248, there was involved a statute of the state of Virginia which prohibited any person not a citizen of that state from taking oysters or shellfish in certain tide waters. In sustaining the statute against the charge that it violated the Fourteenth Amendment, the court, Mr. Chief Justice Waite writing, said:
"The principle has long been settled in this court that each state owns the beds of all tidewaters within its jurisdiction, unless they have been granted away. * * * In like manner, the states own the tide waters themselves, and the fish in them, so far as they are capable of ownership while running. For this purpose the State represents its people, and the ownership is that of the people in their united sovereignty. * * * The title thus held is subject to the paramount right of navigation, the regulation of which, in respect to foreign and interstate commerce, has been granted to the United States. There has been, however, no such grant of power over the fisheries. These remain under the exclusive control of the state, which has consequently the right, in its discretion, to appropriate its tidewaters and their beds to be used by its people as a common for taking and cultivating fish, so far as it may be done without obstructing navigation. Such an appropriation is, in effect, nothing more than a regulation of the use by the people of their common property. The right which the people of the state thus acquire comes not from their citizenship alone, but from their citizenship and property combined. It is, in fact, a property right, and not a mere privilege or immunity of citizenship."
Later on in the opinion this language is used:
"And as all concede that a State may grant to one of its citizens the exclusive use of a part of the common property, the conclusion would seem to follow, that it might by appropriate legislation confine the use of the whole to its own people alone."
Patsone v. Pennsylvania, 232 U. S. 138, 34 S. Ct. 281, 58 L. Ed. 539, dealt with a statute of Pennsylvania which made it unlawful for any unnaturalized, foreign-born resident to kill any wild bird or animal, except in defense of person or property, and to that end made it unlawful for such foreign-born person to own or be possessed of a shotgun or rifle. The constitutionality of the statute was challenged as being a violation of the Fourteenth Amendment. In upholding the law the court said: "It is to be remembered that the subject of this whole discussion is wild game, which the State may preserve for its own citizens if it pleases. Geer v. Connecticut, 161 U. S. 519, 529."
In the case of McMillan v. Sims (Wash.) 231 P. 943, recently decided by the Supreme *240 Court of this state, this language is employed: "Let us at the outset be reminded that in the regulation of and restrictions upon the taking of the fish from the waters of the state, the state is but dealing with its own property over which its control is as absolute as any other owner has over his property. In State v. Tice, 69 Wash. 403, 125 P. 168, 41 L. R. A. (N. S.) 469, we said: `The decisions of the courts in this country, so far as they have come to our notice, are all in unison in holding that there is no private right in the citizen to take fish or game, except as such right is either expressly or inferentially given by the state.'"
In the light of the foregoing authorities it seems unescapable that the state owns the food fish in the waters over which it has jurisdiction, the same as any other proprietor owns property, and that aliens and nonresidents of the state may be constitutionally denied the right to take fish within its borders. The power to make such disposition of the fish arises out of and is incidental to the ownership of the property.
Is the statute in question open to the charge that it denies Hroncich the right to engage in a lawful occupation, trade, or business, and denies Lubetich the right to contract with whomsoever he pleases, and hence is in conflict with the Fourteenth Amendment? The cases of Heim v. McCall, 239 U. S. 175, 36 S. Ct. 78, 60 L. Ed. 206, Ann. Cas. 1917B, 287, and Crane v. New York, 239 U. S. 195, 36 S. Ct. 85, 60 L. Ed. 218, deal with the constitutionality of statutes forbidding contractors on public works from employing aliens. These statutes were held not to be in violation of the Fourteenth Amendment. In the matter of developing their public works, municipalities are dealing with their own property, and in consequence may prescribe such conditions as they see fit. "The principle that justifies these discriminations is that the common property of the state belongs to the people of the state, and hence that, in any distribution of that property, the citizen may be preferred." People v. Crane, 214 N. Y. 154, 108 N. E. 427. See, also, Atkin v. Kansas, 191 U. S. 207, 24 S. Ct. 124, 48 L. Ed. 148.
Obviously it is a denial of the equal protection of the laws when a lawmaking body, regulating, not its own property, but private business, undertakes to deny to aliens the right to engage in lawful trade or labor; but it is difficult to comprehend how there can be any such violation when the Government, in its capacity of owner and proprietor of property, refuses to allow an alien the right to share therein on equal terms with those for whom the property involved is held in sovereign trust. In such circumstances aliens are denied participation in the property, for the simple reason that they do not own it, either in whole or in part, and in consequence have no right to share its enjoyment. We are not considering a case involving the proper exercise of police power, but a case wherein the state of Washington is making disposition of its own property. The case of Alsos v. Kendall, 227 P. 286, recently considered by the Supreme Court of Oregon, is "on all fours" with the case in hand. In that case it was held:
"The rights of the state in the fish and in the waters from which the fish are to be taken are superior to plaintiff's right to choose fishing for salmon in those waters for an occupation. Such an occupation is not open to an alien against the legislative will of the state, since it involves the appropriation of property belonging to the state in its sovereign capacity. The state, in prohibiting aliens from engaging in the taking of salmon fish, is dealing with the common property of the people of the state; in prohibiting citizens of other states and unnaturalized foreign-born residents from fishing in the public waters of the state the state is, in fact, dealing with a property right of the state, and not with a mere privilege or immunity of a citizen of another state, nor does it amount to a denial to an alien within the state of the equal protection of its laws. Under the police power of the state the Legislature may prescribe any terms or conditions reasonably necessary for the preservation of the fish, but in the enactment of this law the Legislature was not legislating under its police powers, but under its reserved powers as the owner of the property which was the subject of the legislation, and which was to be affected thereby. As such owner it was authorized to prescribe any terms or conditions upon which the property of the state might be converted into private ownership. In legislating to that end it was dealing with its own property, and it had all of the rights and powers of an individual owner subject only to the duties which it owed to its own citizens."
The court concluded that the fact that the Oregon statute prohibited the plaintiff from accepting employment from one lawfully engaged in fishing, and thereby prevented him from earning a livelihood in that particular occupation, did not in the circumstances render the statute unconstitutional. The reasoning of this case commends itself to our judgment *241 as altogether sound. See, also, Curry v. Moran, 76 Fla. 373, 79 So. 637. Haavik v. Alaska Packers' Association, 263 U. S. 510, 44 S. Ct. 177, 68 L. Ed. 414.
We conclude that the statute under review is not unconstitutional, as violative of the Fourteenth Amendment, so far as Hroncich, the subject of Italy, is concerned; and if he is lawfully denied the right to engage in fishing, palpably Lubetich is not deprived of any constitutional protection by being denied the right to enter into a contract for the performance of labor which would be in violation of the laws of Washington. Let it not be forgotten that the right of Lubetich, a citizen of Washington, to take fish from the waters of that state, is subject to the conditions imposed by the state Legislature, and his freedom of contract cannot be asserted to the point where it infringes upon the right of the state to deal with its own property.
Does the statute violate the provisions of the treaty with Italy? The language of the treaty of 1871 upon which reliance is placed by Hroncich, the alien complainant, provides: "The citizens of each of the high contracting parties shall have liberty to travel in the states and territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established. The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are or shall be granted to the natives, on their submitting themselves to the conditions imposed upon the natives." 17 Stat. 846.
There were modifications of these provisions in the Treaty of 1913, as follows: "It is agreed between the high contracting parties that the first paragraph of article III of the Treaty of Commerce and Navigation of February 26, 1871, between the United States and Italy, shall be replaced by the following provision: The citizens of each of the high contracting parties shall receive in the states and territories of the other the most constant security and protection for their persons and property and for their rights, including that form of protection granted by any state or national law which establishes a civil responsibility for injuries or for death caused by negligence or fault and gives to relatives or heirs of the injured party a right of action, which right shall not be restricted on account of the nationality of said relatives or heirs; and shall enjoy in this respect the same rights and privileges as are or shall be granted to nationals, provided that they submit themselves to the conditions imposed on the latter." 38 Stat. 1670.
The Supreme Court, in Patsone v. Pennsylvania, supra, held that the action of the Legislature of the state of Pennsylvania prohibiting the killing of game by aliens did not violate this treaty. After saying that the whole discussion had to do with wild game, Mr. Justice Holmes said: "We see nothing in the treaty that purports or attempts to cut off the exercise of their powers over the matter by the states to the full extent."
This treaty was again invoked in Heim v. McCall, supra, but again the contention based upon it was rejected, the court saying: "Construing the provision of 1871 the Circuit Court of Appeals decided that it `does not limit the power of the state, as a proprietor, to control the construction of its own works and the distribution of its own moneys.' The conclusion is inevitable, we think, from the principles we have announced. We need not follow counsel in dissertation upon the treaty making power or the obligations of treaties when made. The present case is concerned with construction, not power; and we have precedents to guide construction. The treaty with Italy was considered in Patsone v. Pennsylvania, 232 U. S. 138, 145, and a convention with Switzerland (as in the present case) which was supposed to become a part of it. It was held that a law of Pennsylvania making it unlawful for unnaturalized foreign-born residents to kill game, and to that end making the possession of shotguns and rifles unlawful, did not violate the treaty. Adopting the declaration of the court below, it was said `that the equality of rights that the treaty assures is equality only in respect of protection and security for persons and property.' And the ruling was given point by a citation of the power of the state over its wild game which might be preserved for its own citizens. In other words, the ruling was given point by the special power of the state over the subject-matter, a power which exists in the case at bar, as we have seen." See, also, People v. Crane, supra. Leong Mow v. Board of Commrs. (C. C.) 185 F. 223.
The foregoing authorities seem conclusive of the treaty question presented and resolve the point adversely to the contention of complainant Hroncich.
*242 The regulations of the fisheries board which are under attack are too lengthy to be set forth in full. It will perhaps be sufficient to say that the unreasonableness and arbitrariness complained of consist in the prohibiting of the taking of fish from the Pacific Ocean and rivers and harbors adjacent thereto by means of a purse seine, while permitting fish to be taken therefrom with set nets, pound nets, gill nets, and drag seines; it being alleged in the complaint that purse seines are the least destructive of any of the recognized types of net fishing gear. It seems too plain to justify lengthy discussion that this contention presents a legislative, not a judicial, question. It was so ruled by this court in Katick v. Dibble, No. 154E of the files of this court, a case heard before Judges Gilbert, Cushman, and Neterer (no written opinion). The bill in that case presented precisely the same question now urged upon us. The court refused to hear evidence tending to impeach the regulations of the fisheries board and dismissed the bill upon the ground that the matter was one of legislative policy; the board having acted within the scope of its delegated powers. It is well sustained in the authorities that the legislative determination of such questions is conclusive upon the courts, unless it manifestly appears that the regulations imposed cannot have any relation to the accomplishment of the purpose in view. Jacobson v. Mass., 197 U. S. 11, 25 S. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765; Powell v. Pennsylvania, 127 U. S. 678, 8 S. Ct. 992, 32 L. Ed. 253; Louisville & Nashville R. R. Co. v. Garrett, 231 U. S. 298, 34 S. Ct. 48, 58 L. Ed. 229. McMillan v. Sims, supra.
In the case last cited, the Supreme Court of this state said: "By what agency may the state act and speak in the making of such regulations and restrictions as it desires to put into force with reference to the taking of fish from its waters? Of course, it may do so through direct action of its Legislature directly and specifically prescribing rules and territorial limits within which fish may and may not be taken. It is elementary law that, when such regulations and restrictions are directly so prescribed by the Legislature, the courts have no concern with the reasonableness and wisdom of such regulations and restrictions; and, since the Legislature may delegate to some other state agency, in this case to the state fisheries board, the determination of territorial limits within which fish may or may not be taken (Cawsey v. Brickey, supra), we think the action of such agency, within the scope of its legislative prescribed power, is equally beyond judicial control or interference. This, it seems to us, must be true, especially in view of the fact that the state is thereby but creating and empowering an agency for the disposition of its own property."
With respect to the jurisdiction of the superior court of the state of Washington for Pacific county, it is alleged that the western boundary of the state of Washington is one marine league west of the seacoast, while the western boundary of Pacific county is at the seacoast. Hence, it is insisted, there is a strip of water three miles in width and extending the length of Pacific county which is within the state of Washington, but not within Pacific county, or any other county of the state. In consequence of this situation it is asserted that the courts of Pacific county have no jurisdiction over this three-mile strip. Palpably this contention presents no federal question within the competency of this court to determine. The jurisdiction of the courts of Washington as to territory within the authority and control of the state of Washington is a matter within the exclusive cognizance of the judicial tribunals of that state.
A number of situations are suggested in the brief of counsel for complainants, and were referred to in oral argument, raising questions concerning the constitutionality of section 4 under certain supposed conditions; but, since neither of the complainants comes within any of the hypothetical categories assumed, they cannot be heard to make the questions, and this court is without power to consider them in this case.
From the foregoing views, it follows that the bill must be dismissed.
Decree accordingly.
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Filed 5/20/16 P. v. Villapando CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G050497
v. (Super. Ct. No. 10WF0127)
VENSON VILLAPANDO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
W. Michael Hayes, Judge. Affirmed.
Patrick Morgan Ford, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Sharon Rhoades and
Barry Carlton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
INTRODUCTION
Defendant Venson Villapando appeals from the judgment entered after a
jury found him guilty of one count of attempting contact with a minor with the intent to
commit a lewd act. Villapando answered a personal advertisement on Craigslist that was
posted by a Huntington Beach police detective posing as a 13-year-old girl named
“Jessie.” After being told that he was communicating with a 13-year-old girl, Villapando
continued to communicate with Jessie for months, planning to meet her and pay her to
have sex with him.
Villapando contends the trial court erred by (1) admitting his statement to
police that he had previously paid for sex with a prostitute whom he had met on
Craigslist, and (2) excluding evidence that, unlike other individuals who respond to
similar Craigslist advertisements purportedly posted by minors, Villapando did not
express excitement about Jessie’s young age. Villapando also argues the trial court erred
by refusing his request that the jury be instructed on the mistake-of-fact defense.
We affirm. For the reasons we explain, none of Villapando’s contentions
of error has merit.
FACTS
In July 2009, Detective Alan Caouette of the Huntington Beach Police
Department was in the vice unit of the special investigations unit which dealt with sex-
and alcohol-related crimes. He set up stings on prostitutes working the streets and
Internet crimes related to prostitution and child abuse.
Craigslist is a global, online, Internet-based advertisement discussion board
that is used to buy and sell items and services. Caouette used Craigslist as an
investigative tool in the vice unit, by posing as a prostitute or a minor. The casual
encounter section of Craigslist is an online advertisement board for people seeking
companionship.
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I.
CAOUETTE’S CRAIGSLIST ADVERTISEMENT; VILLAPANDO’S JULY 9, 2009 E-MAIL
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EXCHANGES WITH CAOUETTE
On July 9, 2009, Caouette posted an advertisement to Craigslist which bore
the heading, “looking to get by in a hard time” followed by “w4m” and “hb.” Caouette
testified that the term “w4m” referred to “woman for man” in “the prostitution world.”
He testified “hb” stood for the City of Huntington Beach. The advertisement read:
“looking to have a good time are u :).” Caouette intended to portray himself as a
13-year-old female named Jessie Browne.
Caouette received in excess of 100 responses to his advertisement. He sent
out a response, saying, “im only 13 and need a $100 so if still interested let me know,
jess.” He testified that typically, after he communicates that he is a minor, 10 to 15
percent of those who respond to an advertisement, such as the one posted in this case,
continue to correspond with him.
Caouette received an e-mail from Villapando in response to the Craigslist
advertisement, stating: “hey i want to have fun… what do you have in mind… anything
is possible.” After Caouette sent the e-mail communicating that he was 13 years old,
Villapando sent a reply e-mail within 15 minutes. Villapando asked for a picture and a
phone number and also asked what the $100 was for. Caouette told Villapando that he
needed money “cuz I wanta buy something,, i only have text minutes I need to pay my
bill… .”
Villapando responded: “what are you going to do for me? to earn that
$100.” Caouette responded: “what u want,, ill do most anything.” Villapando asked
where the sender was located, and whether that person was trying to set him up.
Villapando and Caouette thereafter exchanged the following e-mails that evening.
1
All grammatical and spelling errors were contained in the original messages.
3
Caouette: “well seeing im 13 i cant drive so i would need to be picked up,, by my house
is cool i can go whereever,,, and NO im not setting u up ,, .” Villapando: “where do you
live? r u down to fck?” Caouette: “sure are u down to give me a 100 bucks ,, and can u
pickme up i cant drive.” Villapando: “im sure...i promise, im a man of my word.”
Caouette: “ok i can do it i guess, but we need a condom cuz i cant get into trouble,,
whats the plan ,, do i need to walk to u.” Villapando: “well tell me where you want to
meet and i will pick you up... just go up to me, i will get out of my car and i will where
my key chain around my neck . . . go up to me and say hi... will take it from there.... but
you need to tell me where to meet.” Caouette: “ok,, what do i call u ,, and what should i
wear and can i shower first ,, and where we going.” Villapando: “just say ‘hey dude do
you have a cigaratte’ where what ever you want... i was think we should get a hotel room
[2]
and chill for like an hour... im only 22!!! tell me where to meet you so when your done
showering im already there.” Caouette: “hotel room, wow ,, maybe i can shower there if
u want.. .” Villapando: “yeah we can shower together... so where do you want me to
pick you up?” Caouette: “where do u live so i can give ur directions.” Villapando:
“fullerton.” Caouette: “shit my mom just cam home,,gota go ill be back.” Villapando:
“ok well im going to play basketball, for like an hour... if you want to do it tonight im
still down or tomorrow afternoon... shoot me an email.”
II.
VILLAPANDO AND CAOUETTE CONTINUE E-MAIL CORRESPONDENCE FROM JULY 10
THROUGH DECEMBER 22, 2009, NEGOTIATING A TIME AND PLACE FOR VILLAPANDO
TO PAY JESSIE $100 TO HAVE SEX WITH HIM.
Villapando and Caouette maintained e-mail communications from July 10
through December 22, 2009. Those e-mail communications included the following
e-mail exchange on July 10. Villapando: “If you still want to hang out... Tell me where
2
Villapando was 25 years old at the time.
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to meet you at.” Caouette: “im not wanting to hang out in need to make some money,,
silli.” Villapando: “Well make that money then... You have to let me know now where
to meet.” Caouette: “yes later ok.” Villapando: “Well I got stuff to do today... But hit
me up n we’ll see! Right now would be the best time.”
On July 11, Villapando wrote: “Hey I’m off work today! Just hitting u up
to see if u want tmake some money? I have $150 that can be urs... Hit me up.” Caouette
did not respond to Villapando that day. On July 14, Caouette responded that he would be
“back on Thursday” and “HAD TO GO OUT OF TOWN WITH GRANDMA.”
On August 4, Villapando wrote: “Hey let me know if you still want to
make money.” On August 7, Caouette wrote, “sure where do u live” and also wrote,
“notta.” On August 8, Villapando wrote, “i live in fullerton... where do you live at?”
From August 12 through 26, Villapando and Caouette engaged in the
following e-mail exchanges. Caouette: “Hb,, did i tell u i was 13 years old,, are u cool
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with that.. and what do you have in mind.” Villapando: “lets meet up and i will tell
you.... r u down for tonight?” Caouette: “maybe but i dont like suprises im a straight
shooter,, i like to know what is expected.. sooo.. .” Villapando: “i want to do it with you,
you know what i mean.... when can you do it? be straight up.” Caouette: “like sex u
mean,,, iil do almost anything.” Villapando: “Yeah, so when can you do it?” Caouette:
“how old r u ,, i think im free thurs or fri.” Villapando: “im 21... lets do it on friday
around noon. where do you want to meet?” Caouette: “how bout thurs at 2 ish.”
Villapando: “I can’t do it on thur at 2, I get off work at 4. I can do it on friday after
11am or thurs after 4 pm.” Caouette did not respond the same day as the last
communication.
From September 4 through December 22, 2009, Villapando and Caouette
continued to discuss plans to meet. Villapando told Caouette that he was on the MySpace
3
Caouette testified that this communication was the third time he had told Villapando
he was 13 years old.
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social media Web site and Caouette should look him up. Caouette told Villapando that
he thought he found Villapando’s MySpace page, and asked him about the picture of the
“nice” car shown on the Web site and if he was going to pick up Caouette in that car.
Villapando asked Caouette how school was going and Caouette told him about school
and about a football game he might be going to. On October 15, Villapando asked if
Caouette “can do it on the weekend or weekdays after 8pm.” Caouette: “yeah after 8 is
fine with me,, we have the same deal right,,,,,,u said 100 for sex.. and since i cant drive
yet at 13 ,, u gonna pick me up..........and where will we go i think my mom will be
home,, :) xoxoxxo.” Villapando: “well tell me a spot where i can pick u up... We’ll
figure it out from there.” Caouette: “coolll sounds fun lets meet this week :).”
Villapando: “just let me know when and where.”
On December 21, Caouette wrote to Villapando: “hi whats new, how r u
im on break from school, so u wanta hook up this week or what. what do u want to do, im
trying to earn some $.” Villapando: “Yea fo sho... You already know what I want to do!
Let me know when you want to do this I’m free after 2pm...$$$.”
On December 22, Villapando and Caouette exchanged the following e-mail
messages. Caouette: “was it a hand job for $100 or what did we negotiate i forgot.
remember im only 13 so u will have to pick me up is that cool, give me ur number and ill
text u later, k,, anytime after 3 is cool. jess.” Villapando: “No that wasn’t it... Shoot me
a text 714[].” Caouette: “first tell me what u want so i know what im in for ahhaha,,, i
wanta make sure ill do it, u know :).” Villapando: “S e x ! :).”
Caouette testified that he was interested in obtaining Villapando’s cell
phone number not only because it constituted information that would help him confirm
Villapando’s identity, it also allowed Caouette’s partner, Huntington Beach Police
Detective Brian Smith, who took over communications with Villapando through text
messaging, to communicate in real time.
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III.
VILLAPANDO ARRANGES TO MEET JESSIE AT A FAST FOOD RESTAURANT WHERE HE IS
CONFRONTED BY CAOUETTE AND SMITH, AND ARRESTED.
Through text messaging on December 22, 2009, Smith, assuming the
identity of Jessie, arranged with Villapando to meet him that day at a particular fast food
restaurant. Their text messages included the following conversation. Villapando: “Cool!
So r u still down to meet?” Smith: “yeah as long as u can pick me up...where u want to
go.” Villapando: “Ummm dunno... I can pick u up n we can get a hotel.” Smith: “okay
I guess ill tell my mom im heading out to eat or something so il be good for a lil bit.”
Villapando: “Ok where should I pick u up... It will probably take me an hour to get there
cuz of traffic.” Smith: “okay... ill get cleaned up... .” Villapando: “Well let me
knwwhere to pick u up.” Smith: “okay...um theres a carls jr around the corner ...I hang
out there.” Villapando: “Wats the cross street.” Smith: “beach and yorktown.”
Villapando: “Ok... Hey ur not a cop r u?lol kind of scared.” Smith: “nope.”
Villapando: “I hope so.” Smith: “:) just.” Villapando: “U wanna meet there around
4:45.” Smith: “sure ...just promise me ur a nice guy and ull wear a condom.”
Villapando: “No worries, I won’t force you to do anything u don’t want.” Smith:
“thanks... its actually been a while since ive done anything lol ur not gonna stick it in my
butt or anything right lol.” Villapando: “Haha do u want me to... Lol.” Smith: “during
the summer... .” Villapando: “When is the last time u had sex.” Villapando: “Have u
done this before?” Smith: “u mean sex for money? Or sumthing else.” Villapando:
“Yea.” Smith: “only once...but it was a guy I knew.” Villapando: “Ok, I’ve never done
it.” Smith: “so is 100 okay with u.” Villapando: “yea.” Smith: “okay :)” and “hey im
gonna hop in the shower real quick so don’t text me pleeeease.”
About 20 minutes later, Smith sent Villapando a text message telling him
he was out of the shower. Villapando confirmed he was on his way to the restaurant
where they would meet.
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Caouette saw Villapando’s car parked at the fast food restaurant and then
saw him drive out of the parking lot. Caouette instructed two officers in a marked police
car to stop Villapando. After Villapando was read his rights under Miranda v. Arizona
(1966) 384 U.S. 436, he told Caouette that he had come to Huntington Beach to meet a
girl and pay her $100 for sex. He told Caouette that he had gone to the fast food
restaurant to talk to Jessie, but then had changed his mind and decided to go to a casino
instead. Villapando also said he intended to go to the casino directly from his house and
stopped at the fast food restaurant to use the bathroom. Villapando acted confused; he
had $100 in his wallet.
After he was transported to the Huntington Beach Police Department,
Villapando admitted he had replied to an advertisement posted on Craigslist, received an
e-mail from a 13-year-old girl, and talked with her about “negotiating sex acts for a
hundred dollars.”
Villapando acknowledged that he had $100—the price negotiated with
Jessie—in his wallet, but stated that he was going to give it to her and not have sex with
her. He said he had won $100 at a casino the day before and he wanted to “just give the
hundred dollars to Jessie.” He explained he was just trying to meet new friends.
Villapando told Caouette and Smith that he had become suspicious because Jessie’s cell
phone number had a 310 area code. He admitted he had paid $100 for a prostitute whom
he had previously met on Craigslist.
IV.
VILLAPANDO’S TESTIMONY
The prosecutor read into the record a transcript of Villapando’s prior
4
testimony at his first trial of the charged offenses. As pertinent to the issues on appeal,
4
Villapando was previously found guilty by a jury of one count each of attempting to
commit a lewd and lascivious act upon a child under the age of 14 years and of
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Villapando testified that he answered the Craigslist advertisement because he just wanted
to talk to someone. He thought there was “no way” a 13 year old would be on Craigslist
because it is an adult Web site. He did not think the pictures that Caouette had sent of
Jessie depicted a minor. He testified that he had not intended to have sex with Jessie
because he “didn’t know who that person was.” Villapando said that when he went to
Huntington Beach on December 22, 2009, to meet Jessie, he had not decided what he was
going to do, even though they had discussed having sex for money, which he knew was
illegal. He acknowledged he had discussed paying Jessie for sex, but that was “[j]ust
talk” and “what people do online.”
During the second trial, Villapando testified that in his mind, if, when he
met Jessie, he discovered she was 13 years old, he would have told her “this is all wrong”
and he was not there to meet a 13 year old but a woman, and then he would have left. On
the other hand, Villapando testified, “[i]f I would have found out that she was an adult
and we both talked about what each other’s needs [are] and we both agreed as adults to
move forward and have sex, then, yes, I would have paid for it.”
PROCEDURAL HISTORY
Villapando was charged in an amended information with attempting to
commit a lewd and lascivious act upon a child under 14 years old, in violation of Penal
Code sections 664, subdivision (a) and 288, subdivision (a) (count 1), and attempted
contact with a minor with the intent to commit a lewd act on a child under 14 years old,
in violation of Penal Code section 288.3, subdivision (a) (count 2). The jury found
Villapando not guilty as to count 1 but guilty as to count 2. The trial court imposed a
attempting contact with a minor with the intent to commit a lewd act upon the minor.
(People v. Villapando (June 10, 2013, G046110) [nonpub. opn.].) On appeal, this panel
reversed the judgment of conviction and remanded for a new trial on the ground the trial
court erred by failing to give an entrapment instruction sua sponte. (Ibid.)
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total prison sentence of three years but suspended execution of the sentence, placing
Villapando on five years’ formal probation on terms and conditions. Villapando
appealed.
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY ADMITTING VILLAPANDO’S ADMISSION THAT HE
HAD PREVIOUSLY PAID TO HAVE SEX WITH A PROSTITUTE WHOM HE HAD MET
THROUGH A CRAIGSLIST ADVERTISEMENT.
Villapando argues that the trial court erred by admitting evidence of
Villapando’s admission to Caouette that he had previously answered an advertisement on
Craigslist, which resulted in him meeting a prostitute in a hotel and paying her $100 to
have sex with him. We review claims of evidentiary error for an abuse of discretion.
(People v. Cooper (2007) 148 Cal.App.4th 731, 740.)
Before trial, the prosecutor sought admission of Villapando’s statement
“that he had answered an ad on Craigslist in the past after a friend told him about it and
he met a girl at a hotel and paid her $100 for sex.” The prosecutor argued that statement
was relevant to show Villapando’s knowledge, intent, and lack of mistake, under
Evidence Code section 1101, subdivision (b). The trial court ruled that the statement was
admissible because Villapando’s full statement was being introduced and it was
admissible under section 1101, subdivision (b) to prove intent or lack of mistake.
Evidence Code section 1101, subdivision (a) prohibits admission of
evidence of a person’s character, including evidence in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion. The
exceptions to the bar on admissibility of evidence of uncharged acts are set forth in
section 1101, subdivision (b), which states, in relevant part: “Nothing in this section
prohibits the admission of evidence that a person committed a crime, civil wrong, or
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other act when relevant to prove some fact (such as motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or accident . . . ) other than his
or her disposition to commit such an act.”
“‘[Evidence Code s]ection 1101, subdivision (b) allows evidence of
uncharged misconduct when it is relevant to establish a material fact other than the
person’s bad character or criminal disposition. [Citation.] The admissibility of such
evidence turns largely on the question whether the uncharged acts are sufficiently similar
to the charged offenses to support a reasonable inference of the material fact they are
offered to prove.’” (People v. Burnett (2003) 110 Cal.App.4th 868, 880-881.)
Evidence of a defendant’s uncharged misconduct, if relevant under
Evidence Code section 1101, subdivision (b), is subject to Evidence Code section 352.
(People v. Ewoldt (1994) 7 Cal.4th 380, 404.) Section 352 gives the trial court discretion
to exclude evidence if its probative value “is substantially outweighed by the probability
that its admission will . . . necessitate undue consumption of time or . . . create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.” To be
admissible, evidence of a defendant’s uncharged misconduct “must have substantial
probative value that is not greatly outweighed by the potential that undue prejudice will
result from admitting the evidence.” (People v. Lenart (2004) 32 Cal.4th 1107, 1123.)
Villapando’s prior conduct of answering a Craigslist advertisement, which
resulted in his paying someone $100 for sex, is sufficiently similar to his conduct in the
instant case so as to be relevant to prove that his intent in meeting Jessie was to actually
have sex with her. Consistent with his prior conduct, Villapando answered a Craigslist
advertisement, negotiated with Jessie to pay her $100 to have sex with him, and arranged
to meet her.
In his opening brief, Villapando argues: “The fact that [Villapando] had
previously met an adult woman on Craigslist and paid $100 for sex did nothing to
advance the idea that he believed the present ‘victim’ was actually under the age of 14.
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While both incidents involved meeting a person on the internet for the purpose of having
or paying for sex, the offenses were qualitatively different because one involved the
crime of soliciting prostitution and the other involved attempting to commit a lewd act
against a child.” He argues the evidence “lacked any probative value on the relevant
question of whether he actually believed he was communicating with a 13 year-old, and
the jury would likely have held the prior incident against him, despite its lack of
relevance.”
The evidence of Villapando’s prior Craigslist experience was not offered to
prove his intent to have sex with a child under 14 years old, but to prove his intent to
meet Jessie to have sex with her. That evidence was particularly probative to show
Villapando’s intent in light of his statements that (1) he did not intend to have sex with
Jessie, (2) his negotiations to have sex with her for money were just talk, and (3) the
money he had with him when he was arrested was his “poker” money that he planned to
give to her.
The probative value of that evidence was not substantially outweighed by
the potential that undue prejudice would result from its admission. We find no error
II.
THE TRIAL COURT DID NOT ERR BY EXCLUDING EVIDENCE THAT, UNLIKE VILLAPANDO,
SOME OTHER INDIVIDUALS WHO HAVE RESPONDED TO SIMILAR ADVERTISEMENTS
EXPRESSED EXCITEMENT ABOUT JESSIE’S YOUNG AGE.
During the cross-examination of Caouette, Villapando’s trial counsel asked:
“In using the persona of Jessie as a 13-year-old, have you engaged with other individuals
who talked about fantasies and what they’d like to do to a 13-year-old?” The trial court
sustained the prosecutor’s objection based on relevance. Out of the presence of the jury,
Villapando’s trial counsel argued:
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“ . . . My question in this regard is going to the fact that he [(Caouette)] has
engaged with other individuals and had conversations about them being 13 and had other
individuals talk about how that excited them sexually and that Mr. Villapando did none
of this.
“As an offer of proof, I can point to other cases where Detective Caouette
has been mentioned in similar reversals that we had in Mr. Villapando’s case.
“The reason I think it’s relevant is because it demonstrates that there are
individuals who are seeking out 13-year-olds and intending to meet with those
13-year-olds, and there’s individuals like Mr. Villapando who is not responding to that.”
The trial court responded: “I think the only question for the jury to decide
is is what Mr. Villapando did enough to create the attempt. So I’m going to stay with my
ruling. I just think it’s irrelevant.”
In his opening brief, Villapando argues: “The trial court erred by ruling the
evidence was not relevant and excluding it on that basis. The primary disputed fact at the
trial was whether [Villapando] believed he was communicating with an adult or a 13
year-old. So evidence from the experienced officer that people seeking contact with 13
year-olds routinely show excitement about that fact, and [Villapando] acted differently,
would have supported the defense position on the disputed issue.”
The trial court did not err by concluding the proffered evidence was
irrelevant. Villapando was in a relatively small group (10 to 15 out of 100), who
continued to correspond with Jessie after being informed that she was only 13 years old.
That Villapando did not express excitement specifically about Jessie’s age, unlike some
others, is not relevant to prove whether he attempted to commit a lewd act upon a child
under 14 or that he attempted contact with a minor for the purpose of committing a lewd
5
act upon a child under 14 years of age.
5
Villapando’s trial counsel did not state, as part of her offer of proof, that people
seeking contact with 13 year olds “routinely” show excitement about that fact. She stated
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III.
THE TRIAL COURT DID NOT ERR BY REFUSING TO INSTRUCT THE JURY ON THE DEFENSE
OF MISTAKE OF FACT BECAUSE EVEN IF VILLAPANDO MISTAKENLY BELIEVED JESSIE
WAS AN ADULT, THAT DEFENSE IS UNAVAILABLE TO HIM BECAUSE HE INTENDED TO
ENGAGE IN THE UNLAWFUL CONDUCT OF PAYING HER FOR SEX.
Villapando argues the trial court erred by denying his request that the jury
be instructed on the mistake-of-fact defense, as set forth in CALCRIM No. 3406, in light
of the trial evidence that he believed he was communicating with an adult. Although the
trial court’s reasoning for refusing to give that instruction was incorrect, CALCRIM
No. 3406 should not have been given to the jury because Villapando’s intended conduct
was unlawful.
A.
Mistake of Fact Is a Defense to the Crime of Attempted Contact with a Minor with the
Intent to Commit a Lewd Act upon a Child Under 14 Years of Age.
The jury found Villapando guilty of attempted contact with a minor with
the intent to commit a lewd act upon a child under 14 years of age. The jury was
instructed with a modified version of CALCRIM No. 1124 regarding the elements of that
offense, as follows: “The defendant is charged in count 2 with attempting to contact a
minor with the intent to commit lewd act upon a child. [¶] To prove that the defendant is
guilty of the crime of contacting a minor with the intent to commit a lewd act upon a
child, the People must prove that: [¶] 1. The defendant contacted or communicated with
a minor; [¶] 2. When the defendant did so, he intended to commit lewd act upon a child
involving that minor; [¶] AND [¶] 3. The defendant knew or reasonably should have
known that the person was a minor. [¶] A minor is a person under the age of 18. [¶]
Under the law, a person becomes one year older as soon as the first minute of his or her
she sought to elicit testimony that some individuals have expressed such excitement,
while Villapando did not in this case.
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birthday has begun. [¶] Contacting or communicating with a minor includes direct and
indirect contact or communication. That contact or communication may take place
personally or by using any electronic communications system or any telecommunications
or a computer. [¶] To decide whether the defendant intended to commit lewd act upon a
child, please refer to the separate instructions that I have given you on that crime.” (First
& fourth italics added, some capitalization omitted.)
The instruction referred to in CALCRIM No. 1124, regarding how the jury
should decide whether Villipando intended to commit a lewd act upon a child, was
CALCRIM No. 1110. It was modified to state, inter alia: “To prove that the defendant is
guilty of the crime of committing a lewd act upon a child, the People must prove that: [¶]
1. The defendant willfully touched any part of a child’s body either on the bare skin or
through the clothing; [¶] 2. The defendant committed the act with the intent of arousing,
appealing to, or gratifying the lust, passions, or sexual desires of himself or the child; [¶]
AND [¶] 3. The child was under the age of 14 years at the time of the act.” (Italics
added, some capitalization omitted.) Thus, the commission of the crime of committing a
lewd act upon a child (as distinguished from an attempt) does not require a finding that
the defendant knew the child was under 14 years old.
The jury was also instructed that in order to prove Villapando guilty of the
crime of attempted contact with a minor with the intent to commit a lewd act upon a child
under 14 years old, the People “must prove,” inter alia, that he intended to commit the
crime of contacting a minor with the intent to commit a lewd act upon a child “as charged
in Count 2.”
The jury was therefore instructed that in order to find Villapando guilty of
attempted contact with a minor with the intent to commit a lewd act upon a child under
14 years of age, with that minor, the jury must have found Villapando believed the minor
whom he contacted was under the age of 14.
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B.
The Trial Court’s Reason for Refusing to Give the Jury CALCRIM No. 3406 Was
Incorrect.
During trial, Villapando’s trial counsel requested that the jury be instructed
6
on the mistake-of-fact defense in the form of CALCRIM No. 3406. The trial court
explained its tentative ruling, denying that request, as follows: “There’s a request for
3406. I have it up on the screen completed, except for some language that will be
required, if applicable. But I wanted to give you a chance because I’m going to let both
sides argue in the morning. [¶] My tentative is to deny the request for mistake of fact as a
defense. I’ll cite People versus Olsen[ (1984)] 36 Cal.3d 638 cited in the head notes. [¶]
I did some independent research, and so far I’ve only found 40 cases that support the
Olsen analysis, including I’ve read Paz when they added the 14- and 15-year-old. So I
wanted to give you my tentative ruling so you’d be prepared for that.” (Last italics
added.)
The following morning, Villapando’s trial counsel argued that the
mistake-of-fact instruction should be given because “in this case we do have evidence of
mistake in fact, that there is evidence that Mr. Villapando believed the person he was
communicating with was over the age of 14.” Villapando’s trial counsel argued that
People v. Olsen (1984) 36 Cal.3d 638 did not apply because that case involved the actual
violation of committing a lewd or lascivious act on a child under 14 years of age, in
6
CALCRIM No. 3406 provides: “The defendant is not guilty of ____ <insert
crime[s]> if (he/she) did not have the intent or mental state required to commit the crime
because (he/she) [reasonably] did not know a fact or [reasonably and] mistakenly
believed a fact. [¶] If the defendant’s conduct would have been lawful under the facts as
(he/she) [reasonably] believed them to be, (he/she) did not commit ____ <insert
crime[s]>. [¶] If you find that the defendant believed that ____ <insert alleged mistaken
facts> [and if you find that belief was reasonable], (he/she) did not have the specific
intent or mental state required for ____ <insert crime[s]>. [¶] If you have a reasonable
doubt about whether the defendant had the specific intent or mental state required for
____ <insert crime[s]>, you must find (him/her) not guilty of (that crime/those crimes).”
16
violation of Penal Code section 288, subdivision (a), which does not include a knowledge
requirement, thereby rendering the mistake-of-fact defense inapplicable. Villapando’s
counsel pointed out that unlike the offense of committing a lewd or lascivious act on a
child under 14 years of age, the two charged offenses in the instant case required proof
that Villapando acted with a specific intent to commit the crimes. The prosecutor stated:
“And I agree with the court and do not believe that it’s appropriate in this case.”
The trial court concluded it would not instruct the jury on mistake of fact as
set forth in CALCRIM No. 3406, stating, “as the court indicated yesterday, it’s done its
own research, including moving forward and looking at amendments to the section, and
the request to add 3406 will be denied.”
As the Attorney General acknowledges in the respondent’s brief, the trial
court’s reliance on People v. Olsen, supra, 36 Cal.3d 638, to refuse to instruct on the
mistake-of-fact defense was in error. In People v. Olsen, the Supreme Court held that the
mistake of fact is not a defense to the offense of committing a lewd or lascivious act on a
child under 14 years old, in violation of Penal Code section 288, subdivision (a). The
Supreme Court explained: “It is true that at common law ‘“‘an honest and reasonable
belief in the existence of circumstances, which, if true, would make the act for which the
person is indicted an innocent act, has always been held to be a good defense.’”’
[Citation.] However, it is evident that the public policy considerations in protecting
children under the age of 14 from lewd or lascivious conduct are substantial—far more so
than those associated with unlawful sexual intercourse. These strong public policies are
reflected in several Penal Code statutes, and they compel a different rule as to
section 288. [¶] The legislative purpose of section 288 would not be served by
recognizing a defense of reasonable mistake of age. Thus, one who commits lewd or
lascivious acts with a child, even with a good faith belief that the child is 14 years of age
or older, does so at his or her peril.” (People v. Olsen, supra, at p. 649.) The Supreme
17
Court in People v. Olsen did not address the crime of attempting to commit a lewd or
lascivious act on a child under 14 years of age.
In People v. Hanna (2013) 218 Cal.App.4th 455, 461 (Hanna), the
appellate court acknowledged that under People v. Olsen, supra, 36 Cal.3d at pages 648,
649, “[t]he mistake-of-fact defense, as a matter of public policy, does not apply to the
commission of a lewd act on a child under the age of 14 years.” The Hanna court
explained that the defendant in the case at bar, “however, was not charged with
committing a lewd act. He was charged with attempting to commit a lewd act.” (Hanna,
supra, at p. 461.) The court held: “We conclude the mistake-of-fact defense applies to
an attempt to commit a lewd act on a child under 14 years of age, and there was sufficient
evidence here to justify instructing on the defense.” (Ibid.)
In Hanna, supra, 218 Cal.App.4th at page 461, the court explained its
holding, as follows: “[Penal Code s]ection 26 codifies the defense of mistake of fact. It
‘provides in pertinent part that persons who “committed the act or made the omission
charged under an ignorance or mistake of fact, which disproves a criminal intent,” are not
criminally liable for the act. Put another way, people do not act unlawfully if they
commit acts based on a reasonable and honest belief that certain facts and circumstances
exist which, if true, would render the act lawful. [Citations.]’ [Citation.]” The court
continued: “‘“‘[A]n attempt to commit any crime requires a specific intent to commit
that particular offense . . . .’”’ [Citation.] In this case, ‘[t]o sustain a conviction of
attempted violation of [Penal Code] section 288[, subdivision] (a), the prosecution [had]
the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious
act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual
step toward committing a lewd and lascivious act with a child under 14 years of age.
[Citation]’ [Citation.]” (Id. at pp. 461-462.)
Furthermore, “[t]o attempt a violation of [Penal Code] section 288,
subdivision (a), the defendant must have specifically intended to commit a lewd act on a
18
child under 14 years of age. If defendant’s intent was to commit a lewd act on an 18 year
old, he cannot by definition be guilty of an attempt to commit a lewd act on a 13 year old.
If the facts were as he allegedly believed, the commission of the acts he attempted would
not have violated section 288, subdivision (a). He would have lacked the specific intent
required to commit the attempt crime. Thus, we conclude a mistake-of-fact defense may
apply to the crime of attempting to commit a lewd act on a child under 14 years of age.”
(Hanna, supra, 218 Cal.App.4th at p. 462.)
Here, in order for Villapando to be found guilty of attempting contact with
a minor with the intent to commit a lewd act on a child under 14 years of age, he must
have intended to attempt contact with a minor with the intent to commit a lewd act on a
child under 14 years old, involving that minor. Therefore, the defense of mistake-of-fact
instruction should have been given if sufficient evidence supported giving it to the jury.
The Attorney General agrees the mistake-of-fact defense “[a]pplies” (boldface omitted)
to the crime of attempted contact with a minor with the intent to commit a lewd act on a
child under 14 years old.
C.
Although There Was Substantial Evidence That Would Have Supported a Finding
That Villapando Believed Jessie Was an Adult to Support a Mistake-of-fact Defense,
Villapando Admitted That He Intended to Pay to Have Sex with Jessie, Thereby
Disqualifying Him from Raising That Defense.
“Evidence of a defense is sufficiently substantial to trigger a trial court’s
duty to instruct on it sua sponte if it is sufficient for a reasonable jury to find in favor of
the defense.” (Hanna, supra, 218 Cal.App.4th at p. 462.) In the respondent’s brief, the
Attorney General concedes Villapando initially testified he thought Jessie was 18 years or
older. Villapando also testified that he did not know Jessie’s actual age and that it was
possible she was 13 years old. Substantial evidence was presented at trial, which would
have supported a finding that Villapando believed Jessie was an adult.
19
However, as the Attorney General points out in the respondent’s brief, and
as expressly set forth in CALCRIM No. 3406, mistake of fact is available as a defense
only if the defendant’s conduct would have been legal under the facts as he or she
believed them to be. The Attorney General argues, “[Villapando]’s plan was at the very
least to pay for sex, in itself an illegal act.”
At trial, Villapando testified regarding his intentions upon meeting Jessie
and confirming that she was adult. He stated that after they “both talked about what each
other’s needs [are] and we both agreed as adults to move forward and have sex, then, yes,
I would have paid for it.” As prostitution is illegal, Villapando was not eligible to claim
mistake of fact as a defense to the charged offenses. (See Pen. Code, § 26 [persons not
capable of committing crimes include “[p]ersons who committed the act or made the
omission charged under an ignorance or mistake of fact, which disproves any criminal
intent” (italics added)].) Thus, although the trial court’s reasons for doing so were not
correct, the court properly refused to instruct the jury on the mistake-of-fact defense.
D.
Even if CALCRIM No. 3406 Should Have Been Given to the Jury,
Any Such Error Was Harmless.
“‘Error in failing to instruct on the mistake-of-fact defense is subject to the
harmless error test set forth in People v. Watson (1956) 46 Cal.2d 818, 836 . . . .
[Citation.]’ [Citation.] Under this standard, a conviction ‘may be reversed in
consequence of this form of error only if, “after an examination of the entire cause,
including the evidence” [citation], it appears “reasonably probable” the defendant would
have obtained a more favorable outcome had the error not occurred [citation].’” (Hanna,
supra, 218 Cal.App.4th at pp. 462-463.)
Here, the evidence admitted at trial, showing that Villapando attempted to
contact a minor with the intent to commit a lewd act upon a child under 14 years of age,
was overwhelming. Villapando’s testimony explaining his actions was inconsistent at
20
best. Based on the record before us, it is not reasonably probable Villapando would have
obtained a more favorable outcome had the jury been instructed with CALCRIM
No. 3406.
DISPOSITION
The judgment is affirmed.
FYBEL, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
21
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512 F.Supp. 135 (1981)
Barbara M. DEIBEL, Plaintiff,
v.
Robert F. DEIBEL, Jr., Defendant.
No. 79-876 C (1).
United States District Court, E. D. Missouri, E. D.
March 30, 1981.
John Shapleigh and Barry Short, St. Louis, Mo., for plaintiff.
Charles Seigel and Jay L. Levitch, St. Louis, Mo., for defendant.
*136 MEMORANDUM
WANGELIN, Chief Judge.
This matter is before the Court for a decision on the merits following a bench trial. Plaintiff brings this suit alleging a breach of contract and intentional infliction of emotional distress, and defendant counterclaims for malicious prosecution of a separate state cause.
After consideration of the testimony adduced at trial, the exhibits introduced into evidence, the briefs of the parties, and the applicable law, the Court hereby makes and enters the following findings of fact and conclusions of law. Any finding of fact equally applicable as a conclusion of law is hereby adopted as such and, conversely, any conclusion of law applicable as a finding of fact is adopted as such.
Findings of Fact
1. Plaintiff, Barbara M. Deibel, is a resident of the State of Pennsylvania.
2. Defendant, Robert F. Deibel, Jr., is a resident of the State of Missouri.
3. The amount in controversy herein, exclusive of interest and costs, is in excess of Ten Thousand Dollars ($10,000).
4. Plaintiff and defendant were married on July 30, 1940, and divorced pursuant to Decree of the Circuit Court of St. Louis County, Missouri on September 17, 1968.
5. On September 10, 1968, prior to the entry of the divorce decree, plaintiff and defendant entered into an agreement which set forth child custody provisions, marital property division, and various alimony provisions. There were eleven portions of the agreement, relevant to the subject matter of this suit, which concerned contract clauses dealing with basically three elements of alimony assessment: (1) the monthly amounts which defendant agreed to pay plaintiff; (2) the nature and extent of medical and health coverage insurance which defendant agreed to provide for plaintiff; and (3) an agreement that the monthly alimony sum would be annually adjusted in accordance with the fluctuation of the cost of living as measured by the Cost of Living Index calculated by the United States Department of Labor. The specific, relevant sub-parts read as follows:
3. Second party [defendant] agrees to pay to first party [plaintiff], as and for alimony, the sum of Thirteen Hundred Dollars ($1,300.00) per month, payable on the first day of the month following the decree of divorce, it being understood that said alimony shall terminate upon the remarriage or demise of the first party.
4. Second party agrees to obtain and pay for major medical policy which policy is to provide for first party medical and health coverage of a quality not less than that in effect at Dixie Mills Company at the time of the execution of this agreement. This coverage may be purchased through Blue Cross and Blue Shield or by a major medical policy with some accredited insurance company and is to be continued in force by second party until the death or remarriage of the first party. Should first party be uninsurable then in such event second party shall be relieved of all liability in connection therewith.
* * * * * *
8. The parties recognize that the cost of living as published by the Department of Labor of the U.S. Government may increase or decrease from time to time over the years, and the parties agree that the above-mentioned alimony in the sum of Thirteen Hundred Dollars ($1,300.00) per month shall be increased or decreased as provided herein in the same percentage as the above-mentioned cost of living may increase or decrease. Said change, if any, shall be made annually when the complete calendar year figures are made available by the Department of Labor, and said change shall be adjusted and made effective for the entire subsequent calendar year. In other words, in the event that the cost of living increases five per cent (5%) during any one year, then, in such event, second party shall increase his payments to first party during the subsequent year by the sum of five per *137 cent (5%). In any year when the cost of living decreases, then, in such event, second party may decrease his payments to first party during the subsequent year, but in no event shall his payments be decreased below the sum of $1,300.00 per month. For the purpose of determining increase or decrease during all subsequent years, the cost of the living index number as of the date of divorce shall be the base for all future calculations. All adjustments shall be based upon the published index closest to the 21st day of December of each year following the divorce.
6. From the day of the divorce in September of 1968 through 1974 the defendant paid the monthly alimony amount as consented to in the agreement signed prior to the divorce in 1968, together with periodic, yearly increases in accordance with the Cost of Living Index and references to its applicability in the divorce agreement. During the calendar year 1975, difficulties arose with defendant's business, the Dixie Mills Company. Defendant communicated to plaintiff the existence of the financial difficulties confronting his business, and the parties began to negotiate for a modification or stay of the continued increased alimony payments linked to the Cost of Living Index.
7. During 1975, both parties communicated with each other in an attempt to agree whether the Cost of Living Index increases should be terminated, or whether the collection of the money accrued should merely be held in abeyance until such further time as the parties agreed upon. In a letter of July 10, 1975 addressed to the defendant, an attorney for the plaintiff set forth the concessions that the plaintiff, Barbara Deibel, was willing to make. The details of the letter appear to be quite clear. Mrs. Deibel agreed to a one year moratorium on the collection of the additional amounts of alimony owed. Although entitled to One Thousand Nine Hundred and Twenty Two Dollars and Seventy Cents ($1,922.70) per month beginning with the calendar year 1975, according to the 1968 base alimony amount of One Thousand Three Hundred Dollars ($1,300.00) per month to which is added the Cost of Living Index increase through 1974, plaintiff agreed to postpone collection of this additional amount. As further detailed in the letter from plaintiff's attorney, Mrs. Deibel agreed to accept monthly checks of One Thousand Seven Hundred Seventy Three Dollars ($1,773.00) for the period from January 1, 1975 until December 31, 1975, postponing collecting the remaining amounts owed to her for this year because of the economic considerations set forth in communication from defendant Robert Deibel. The letter also clearly states that in no way was the proposal to postpone collection of the amounts owed under the divorce agreement to be interpreted as in any way waiving the obligation of Mr. Deibel to forward these monies owed, nor was this an attempt to modify the terms of the divorce agreement for subsequent years.
8. Beginning in January of 1975 for a period running through June of 1979, defendant paid plaintiff One Thousand Seven Hundred Thirteen Dollars ($1,713.00) per month. From July, 1979 through July, 1980 defendant forwarded to plaintiff One Thousand Dollars ($1,000) per month.
9. According to the terms of paragraph 4 of the divorce agreement, defendant consented to obtain and pay for a medical and health insurance coverage for plaintiff as long as she was insurable. On January 25, 1973, defendant wrote to plaintiff to advise her that he believed her to be uninsurable and that he was relieved of the obligation to obtain insurance coverage for plaintiff according to the terms in paragraph 4 of the agreement. However, a letter dated January 24, 1973 from Mr. Ronald Krebs, employed by Standard Underwriters, Inc., to Mr. Robert Deibel states that although plaintiff had a history of alcoholism, and was therefore a substandard risk, insurance coverage was available albeit at a significantly increased premium.
10. Plaintiff obtained health and medical coverage with Philadelphia Blue Cross/Blue Shield commencing in September *138 of 1973. These Blue Cross/Blue Shield premiums amounted to Two Thousand Eight Hundred and Fifteen Dollars and Twenty Eight Cents ($2,815.28) for the period 1973 to 1980. Plaintiff also obtained major medical coverage from Provident Life & Accident Insurance Company during this time at One Hundred Twenty Two Dollars ($122.00) per year. From 1973 to 1980, plaintiff paid an aggregate of Three Thousand Seven Hundred Ninety One Dollars and Twenty Eight Cents ($3,791.28) for health and medical coverage comparable to that which was to be provided to plaintiff under the terms of the divorce agreement.
11. The United States Department of Labor's Cost of Living Index historical table sets forth the following pertinent data. Assigning the base figure of one hundred as a unit of measurement before the year 1968, the Cost of Living Index for the years from 1968 through 1979 may be computed and assigned the following values:
Month and Year CLI Per Cent Increase
Over September, 1968
(105.1)
December, 1974 155.4 47.9%
December, 1975 166.3 58.2%
December, 1976 174.3 65.8%
December, 1977 186.1 77.0%
December, 1978 202.9 93.0%
December, 1979 230.0 118.8%
12. Based upon the figures supplied by the United States Department of Labor an adjustment of the base rate of Thirteen Hundred Dollars ($1,300.00) indicates that for the year 1975 One Thousand Nine Hundred and Twenty Two Dollars ($1,922.00) per month was owed; for the year 1976 Two Thousand Fifty Seven Dollars ($2,057.00) per month was owed; for the year 1977 Two Thousand One Hundred and Fifty Six Dollars ($2,156.00) was owed per month; for the year 1978 Two Thousand Three Hundred and Two Dollars ($2,302.00) per month was owed; for the year 1979 Two Thousand Five Hundred and Nine Dollars ($2,509.00) per month was owed; and for the year 1980 Two Thousand Eight Hundred and Forty Four Dollars ($2,844.00) per month was owed.
13. A listing of the monies paid by defendant together with the monies owed according to the terms of the divorce agreement may be illustrated as follows:
Year Amount Amount Total Arrearage
Due Paid For Year
1975 $1,922[*] $1,713 $2,508[*]
1976 $2,057 $1,713 $4,128
1977 $2,156 $1,713 $5,316
1978 $2,302 $1,713 $7,068
1979 (Jan.-June) $2,509 $1,713 $4,776
1979 (July-Dec.) $2,509 $1,000 $9,054
1980 (Jan.-July) $2,844 $1,000 $12,908
_______
TOTAL ALIMONY ARREARAGES 1975-1980 $50,758
14. Referring to the total yearly amount in arrearage and calculating the simple interest rate at 6% per annum prior to September 1, 1979 and 9% simple interest per annum on amounts owed after September 1, 1979, the sum of Five Thousand Ninety Dollars and Eighty Five Cents ($5,090.85) is the proper amount of interest on the amounts due by defendant under the terms of the divorce agreement.
15. On January 4, 1979, plaintiff filed a motion to hold defendant in contempt of court and to recover attorney's fees against defendant in the Circuit Court of St. Louis County, Missouri in an attempt to have defendant cited for contempt and jailed for his alleged failure to pay alimony and medical and health insurance premiums owed to plaintiff under the terms of the divorce agreement. Plaintiff dismissed the contempt proceeding without prejudice on May 24, 1979.
Conclusions of Law
This Court has jurisdiction over the parties herein and has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. And, because the forum for this cause is Missouri, this Court will apply Missouri law to resolve all legal controversies. McNally v. Pulitzer Publishing Co., 532 F.2d 69, 78 (8th Cir. 1976).
Count 1 of this cause is simply a suit for breach of contract, i.e., the agreement signed by the parties immediately prior to the dissolution of their marriage in September of 1968. In his defense, defendant raises a variety of claims, none of which the Court finds persuasive.
There is no evidence to support defendant's claim that a modification of the contract *139 was agreed upon, or affected by the conduct of the plaintiff. Although it is clear from the record that defendant did suffer financial hardship beginning some time in the early 70's, such difficulties do not in and of themselves modify the divorce agreement. Letters exchanged between both plaintiff and defendant point out the desire of the defendant to reduce his alimony payment, but there is no evidence that the plaintiff consented to any such modification. A letter dated July 10, 1975 underscores the agreement by the plaintiff to temporarily suspend her demand for the defendant to tie his monthly alimony payment to the Cost of Living Index figures for the calendar year 1974. However, it is clear from the terms of the letter that this "modification" was not intended to permanently suspend the duty of the defendant to continue to adjust the base alimony monthly payment according to the Cost of Living Index. Nor was the temporary suspension of the defendant's duty to adjust the base alimony monthly payment to conform to the CLI to be a waiver of the plaintiff's right to later collect the deficit amounts.
In addition, there is no factual basis to support a finding that performance of this contract met the conditions of impossibility. Once a party binds himself to the terms of a contract and the other party performs all conditions and promises which bind the party to its performance, a defendant's insolvency or inability to tender the money owed does not constitute defense of impossibility of performance. See Howard v. Nicholson, 556 S.W.2d 477, 481 (Mo.App. 1977).
Testimony in this case by defendant certainly would lead to a conclusion that defendant had suffered, and may continue to suffer, business setbacks and financial woes which were not contemplated when the original divorce agreement was signed in late 1968. However, performance of the contract may only be excused/rendered impossible by an Act of God, by the law, or by the other party. Kansas City Terminal Railroad Co. v. Atchinson, 512 S.W.2d 415 (Mo.App.1974). Financial difficulties arising to frustrate the ability of the defendant to meet his financial obligations owed under the terms of the agreement do not in themselves suspend or release him from his contractual duties. Stein v. Bruce, 366 S.W.2d 732 (Mo.App.1963). No such fact pattern necessary to justify a defense of impossibility presents itself here.
With respect to defendant's claim that he was released from all obligations to insure plaintiff because the plaintiff was an uninsurable risk, evidence presented at the trial leads this Court to a different conclusion. The letter from Mr. Krebs to defendant, dated January 24, 1973, clearly sets forth that coverage on plaintiff could be obtained, although at a significantly increased premium. The Court does not believe that the increased risk which plaintiff presented after her bout with alcoholism could cause one to fairly characterize her condition as uninsurable.
With respect to Count 2 the plaintiff claims that defendant's breach of the agreement was a tortious intentional infliction of emotional distress the Court finds that the plaintiff's evidence wholly fails to substantiate any such contention. Testimony adduced at trial, as well as letters between the parties entered into evidence, shows that defendant's financial condition during the 1970's was marked by ever increasing regression from the financial status enjoyed in 1968. One element recognized by Missouri courts as constituting the tort allegedly inflicted here is that the defendant's action must be "so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Liberty Loan Corp. of Antioch v. Brown, 493 S.W.2d 664, 667 (Mo.App.1973), quoting Restatement (2d) of Torts, § 46 (1964). The breach of contract which the Court has earlier found defendant to be liable under can in no way be characterized as outrageous conduct. The financial woes of the defendant are clearly documented in the record before this Court, and appear to be the sole motivation of defendant's failure to *140 meet his contractual obligations. In addition, letters from defendant to plaintiff show that defendant was aware of his contractual responsibility. Defendant felt compelled to frequently explain the reasons for his failure to meet his contractual obligations. Thus, the Court finds no merit to plaintiff's contention that defendant's breach of contract rose to the level of intentional infliction of emotional distress.
Defendant counterclaimed that plaintiff was guilty of malicious prosecution. As the facts earlier set forth detailed, plaintiff instituted contempt proceedings against defendant in Circuit Court in St. Louis after the failure of the defendant to tender full monthly alimony payments. Testimony by plaintiff reveals that she was following the advice of her counsel and pursued this contempt action because it was unclear from the terms of the divorce decree whether or not the agreement signed prior to the court's divorce judgment was decretal or contractual in nature. If the terms of the agreement are found to be decretal in nature then the Court which entered such decree has continuing jurisdiction over the parties. Since the alimony provision would be found to be a judgment of the court, failure to abide by the judgment would be considered grounds for contempt of court. However, if the agreement in the instant case would be interpreted as merely contractual in nature, then the court which entered the divorce would have no jurisdiction over the parties, and could not hold the defendant liable for violation of the agreement in the absence of a judgment that a breach of contract was realized. See generally Kirk v. Kirk, 598 S.W.2d 153 (Mo. App.1980).
In the instant cause, questions as to whether the divorce agreement was contractual or decretal in nature could have been legitimately entertained by plaintiff and her counsel. Nothing in the record before this Court indicates that the contempt action filed by plaintiff was terminated in favor of defendant a necessary prerequisite for a successful claim. McFarland v. Union Finance Company, 471 S.W.2d 497, 499 (Mo.App.1971). See also, Stix & Co., Inc. v. First Mo. Bank & Trust Co. of Creve Coeur, 564 S.W.2d 67, 70 (Mo. App.1978). Therefore, defendant has failed to prove all the elements of the cause of action in his counterclaim for malicious prosecution.
Accordingly, judgment on Count 1 will be entered in favor of plaintiff. Defendant shall pay alimony in arrearage in the sum of Fifty Thousand Seven Hundred Fifty Eight Dollars ($50,758.00), together with interest totaling Five Thousand Ninety Dollars and Eighty Five Cents ($5,090.85), and the sum of Three Thousand Seven Hundred Ninety One Dollars and Twenty Eight Cents ($3,791.28) to compensate for the plaintiff's medical and health insurance expenditures. Judgment on Count 2 will be entered in favor of defendant; and judgment on the counterclaim will be entered in favor of plaintiff.
NOTES
[*] $1,763 per month due in 1975; balance ($209.00) payable thereafter by terms of July 10, 1975 letter.
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55 Wis.2d 72 (1972)
197 N.W.2d 802
HANES, Plaintiff in error,
v.
STATE, Defendant in error.
No. State 59.
Supreme Court of Wisconsin.
Argued May 2, 1972.
Decided June 6, 1972.
*73 For the plaintiff in error there was a brief by Peregrine, Marcuvitz, Cameron, Braun & Peltin, S. C., and Alan Marcuvitz, all of Milwaukee, and oral argument by Alan Marcuvitz.
For the defendant in error the cause was argued by Donald W. Smith, assistant attorney general, with whom on the brief was Robert W. Warren, attorney general.
CONNOR T. HANSEN, J.
The defendant's postconviction motions were denied after a hearing, at which he was represented by counsel. A writ of error was issued by this court to review the trial court's denial of those motions.
On appeal, defendant contends (1) that the trial court did not comply with the requirements for accepting a plea of guilty, and (2) that the plea was not voluntary but was induced by a false promise.
*74 Trial court's acceptance of guilty plea.
Defendant was originally charged with first-degree murder. At the time of arraignment on April 30, 1963, the defendant entered a plea of not guilty and requested a jury trial. Trial was set for June 3, 1963.
At the commencement of the trial, the district attorney informed the court that in preparing for trial he had come to the conclusion that the proper charge was second-degree murder. An amended information was filed to which the defendant, through his counsel, entered a plea of guilty. In response to inquiries by the court, defendant stated he understood the charge and wished to plead guilty. He was at all times represented by counsel.
The trial court then proceeded to take extensive testimony relative to the circumstances surrounding the offense. The incident occurred in a residence in the city of Milwaukee. Testimony was taken from a police officer, a deputy county medical examiner, a person present in the residence at the time of the offense, and the defendant. The essence of the testimony is that the defendant and one Isaiah Lockhart became involved in an argument and that the defendant pulled out a knife and stabbed Lockhart twice in the left thigh. The knife was recovered from the front lawn of the defendant's home at the time of his arrest.
The deputy county medical officer testified the cause of death was loss of blood following a transection of the femoral artery and partial transection of the femoral vein caused by either of the two wounds which could have been inflicted by the knife found at defendant's residence.
The defendant's testimony was conflicting in several respects. On one occasion he denied going after Lockhart with a knife. He also testified he must have stabbed Lockhart during an altercation in which a third person was also involved; that the only time he pointed a knife at Lockhart was after he had been hit; that he did not *75 know how many times he had stabbed Lockhart; and, that he went after Lockhart after Lockhart had hit him.
At the conclusion of the testimony, the court found the defendant guilty upon his plea and pronounced sentence.
It is argued that defendant's plea of guilty was not knowingly or intelligently made because nothing appears of record to evidence that defendant was informed of the consequences and effect of such a plea. An identical argument was rejected by this court in State v. Strickland (1965), 27 Wis. 2d 623, 631, 135 N. W. 2d 295:
"Defendant contends his plea of guilty entered through counsel to the charges of armed robbery and theft were not intelligently and understandingly made. This is largely predicated upon the fact that the trial court addressed no inquiries to defendant to ascertain whether he had intelligently and understandingly entered these pleas. This court has not held that such inquiries are necessary where defendant is represented by counsel at time of arraignment. Courts have the right to assume in such a situation that counsel has fulfilled his duty of proper representation by fully explaining to the accused the nature of the offense charged, the range of penalties, and possible defenses thereto, and satisfying himself that the accused understands such explanations, before permitting the accused to authorize the entry of a plea of guilty. There is no allegation in defendant's motion that this was not done."
In Ernst v. State (1969), 43 Wis. 2d 661, 170 N. W. 2d 713, this court implemented the requirements set forth in McCarthy v. United States (1969), 394 U. S. 459, 89 Sup. Ct. 1166, 22 L. Ed. 2d 418, and made applicable to the states in Boykin v. Alabama (1969), 395 U. S. 238, 89 Sup. Ct. 1709, 23 L. Ed. 2d 274. These requirements, however, were expressly held to be prospective only. In the instant case, the plea was accepted prior to the effective date of Ernst and thus the trial court could rely on the assumption that counsel had properly advised the defendant as to the effect and consequences of entering *76 a plea of guilty. See Nelson v. State (1972), 54 Wis. 2d 489, 195 N. W. 2d 629. Defendant has presented no evidence to rebut this presumption. State v. Froelich (1971), 49 Wis. 2d 551, 182 N. W. 2d 267. While defendant argues that the record does not show he was advised of his constitutional rights prior to entering his plea, no claim is made that he was not, in fact, so advised by his attorney.
Voluntariness of plea.
At the hearing held February 19, 1971, on defendant's postconviction motions, defendant testified that his trial attorney talked to him a day or so prior to trial and told him that if he pled guilty to second-degree murder he would probably get it reduced to manslaughter and that he would probably get a year in Green Bay. At the time of trial, defendant also testified that when he pled guilty, he was under the impression that he would get manslaughter and be sentenced to the reformatory. He repeated that his attorney told him he would get him manslaughter, that he would be sentenced to Green Bay, and that he would probably do a year and then be out.
Defendant's trial attorney testified he had no independent recollection of representing the defendant. After a recess was taken during which time he reviewed the entire transcript, he stated that he recalled the case because of the unusual way the victim had died. He testified that if the state would have pursued the charge of first-degree murder he would have defended the case with a jury trial; however, the state had offered a reduction in the charge to second-degree murder and he had discussed the matter with the defendant. He testified he was sure defendant voluntarily accepted the offer. He further testified that there was never any discussion about manslaughter or that the defendant would receive a sentence of one year.
*77 The trial court found that defendant's attorney did not tell the defendant of the possibility that the charge would be reduced to manslaughter, or that the sentence would be one year.
Defendant's contention that he was induced to plead guilty on the promise of his attorney that he would be sentenced to Green Bay for a term of one year, if proved, would constitute a situation of manifest injustice necessitating a withdrawal of the plea. State v. Reppin (1967), 35 Wis. 2d 377, 151 N. W. 2d 9. However, the defendant must sustain the burden of proving such a contention. Martinkoski v. State (1971), 51 Wis. 2d 237, 186 N. W. 2d 302; State v. Froelich, supra; State v. Carlson (1970), 48 Wis. 2d 222, 179 N. W. 2d 851; State v. Reppin, supra, page 385; sec. 974.06 (6), Stats. The findings of the trial court in the instant case are not against the great weight and clear preponderance of the evidence. Defendant has thus failed to meet his burden of proof. LeFebre v. State (1968), 40 Wis. 2d 666, 672, 162 N. W. 2d 544.
Upon an examination of the record, we conclude that it is not probable that justice has miscarried and, therefore, no basis exists for the granting of a new trial pursuant to sec. 251.09, Stats. Bullock v. State (1972), 53 Wis. 2d 809, 193 N. W. 2d 889.
By the Court.Order affirmed.
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304 F.2d 125
COMMISSIONER OF INTERNAL REVENUE, Petitioner,v.José FERRER, Respondent.
No. 248.
Docket 27232.
United States Court of Appeals Second Circuit.
Argued April 24, 1962.
Decided June 5, 1962.
David O. Walter, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., on brief), for petitioner.
Samuel L. Siegel, New York City (Edwin M. Reiskind, New York City, of counsel), for respondent.
Before FRIENDLY, SMITH and MARSHALL, Circuit Judges.
FRIENDLY, Circuit Judge.
1
This controversy concerns the tax status of certain payments received by José Ferrer with respect to the motion picture "Moulin Rouge" portraying the career of Henri de Toulouse-Lautrec. The difficulties Mr. Ferrer must have had in fitting himself into the shape of the artist can hardly have been greater than ours in determining whether the transaction here at issue fits the rubric "gain from the sale or exchange of a capital asset held for more than 6 months," Internal Revenue Code of 1939, § 117(a) (1) and (4), 26 U.S.C.A. § 117(a) (1, 4), as the Tax Court held, 35 T.C. 617 (1961), or constitutes ordinary income, as the Commissioner contends. We have concluded that neither party is entirely right, that some aspects of the transaction fall on one side of the line and some on the other, and that the Tax Court must separate the two.
2
In 1950 Pierre LaMure published a novel, "Moulin Rouge," based on the life of Toulouse-Lautrec. He then wrote a play, "Monsieur Toulouse," based on the novel. On November 1, 1951, LaMure as "Author" and Ferrer, a famous actor but not a professional producer, as "Manager" entered into a contract, called a Dramatic Production Contract, for the stage production of the play by Ferrer.
3
The contract was largely on a printed form recommended by the Dramatists Guild of the Authors League of America, Inc. However great the business merits of the document, which are extolled in Burton, Business Practices in the Copyright Field, in C. C. H., 7 Copyright Problems Analyzed (1952) 87, 109, for a court, faced with the task of defining the nature of the rights created, it exemplifies what a contract ought not to be. Its first six pages include eleven articles, some introduced by explanatory material whose contractual status is, to say the least, uncertain. Here the last of these pages was preceded by three single-spaced typewritten pages of "Additional Clauses," one with a still further insert. Finally come 15 pages of closely printed "Supplemental Provisions," introduced by explanatory material of the sort noted. We shall thread our way through this maze as best we can.
4
By the contract the Author "leased" to the Manager "the sole and exclusive right" to produce and present "Monsieur Toulouse" on the speaking stage in the United States and Canada, and gave certain rights for its production elsewhere. Production had to occur on or before June 1, 1952, unless the Manager paid an additional advance of $1500 not later than that date, in which event the deadline was extended to December 1, 1952. Five hundred dollars were paid as an initial advance against Author's royalties; the Manager was required to make further advances of like amount on December 1, 1951, and January 1, 1952. Royalties were to be paid the Author on all box-office receipts, on a sliding scale percentage basis.
5
Article Seventh said that "In the event that under the terms hereof the Manager shall be entitled to share in the proceeds of the Motion Picture and Additional Rights hereafter referred to, it is agreed that the Manager shall receive" 40% for the first ten years and diminishing percentages thereafter. Among the additional rights so described were "Radio and Television."
6
For the beginning of an answer whether the Manager would be so entitled, we turn to Article IV, § 2, of the Supplemental Provisions. This tells us that "In the event the Manager has produced and presented the play for the `Requisite Performances and Terms,' the Negotiator shall pay the Manager" the above percentages "of the proceeds, from the disposal of the motion picture rights." Article VI, § 3, contains a similar provision as to payment by the Author of the proceeds of the "additional rights" including radio and television. The "Requisite Performances and Terms" are defined in Article XIII, § 9(b); we shall say more about the "Negotiator" hereafter.
7
Further provisions put flesh on these bones. Article IV, § 1(a), says that "The title" to the motion picture rights "vests in the Author, as provided in Article VIII hereof." Article VIII says, even more broadly, "The Author shall retain for his sole benefit, complete title, both legal and equitable, in and to all rights whatsoever (including, but not by way of limitation, the Motion Picture Rights * * * Radio and Television Rights * * *)," other than the right to produce the play. The Motion Picture Negotiator, a person appointed by the Council of the Dramatists Guild, Article V, §§ 1 and 6, has power to dispose of the motion picture rights. However, he may not do this without the written consent of both Author and Manager "prior to the time the play has been playing for any of the respective periods of time referred to in Article XIII, Section 9(b) hereof," Article IV, § 1(b). This prohibition serves a double purpose — it protects the Manager from dilution of the value of the right to produce the play through too early exhibition of a picture, and it promotes realization of the enhancement in the value of the motion picture rights normally resulting from successful dramatic production. Doubtless for similar reasons, the Author could not, without the consent of the Manager, permit the release of radio and television rights until first-class production of the play had ceased. Article V, § 1(b), decrees that the Manager shall "have no right, title or interest, legal or equitable, in the motion picture rights, other than the right to receive the Manager's share of the proceeds * * *" Article V, § 1 (c), lays down that if the Manager deems "himself aggrieved by any disposition of motion picture rights, he shall have no recourse, in law or in equity," against a purchaser, a lessee, or the Negotiator; "the Manager's sole recourse * * * shall be against the Author and only by arbitration as provided hereunder." Article V, § 1(d), says it again: "No claim of the Manager, howsoever arising, shall constitute a cloud on the title to the motion picture rights; and a purchaser or lessee thereof shall have the right to deal freely and exclusively with the Author and Negotiator * * *" Having been somewhat upstaged by these provisions, the Manager then returns toward the center under other clauses. The Negotiator must confer with him, as well as with the Author, on every step in the disposition of the motion picture rights. "It is desirable that the price shall be mutually satisfactory to both Author and Manager," Article V, § 2 (a). If the Manager does not like an offer the Negotiator is planning to accept, he has an opportunity to turn up a better one, ibid. All moneys received for the motion picture rights are to be deposited in a special account, Article V, § 3. An insert to one of the "Additional Clauses" provides that if the Manager desires, the Author, not later than three weeks after the New York opening of the play, will "discuss a proposed deal for the Manager to acquire" the motion picture rights. Finally, another "Additional Clause" prescribes that "All dramatic, motion picture, radio and television rights in the novel MOULIN ROUGE shall merge in and with the play during the existence of this contract," and if the Manager produces and presents the play for a sufficient period, "throughout the copyright period of the play."
8
Shortly after signature of the Dramatic Production Contract, John Huston called Ferrer to ask whether he would be interested in playing Toulouse-Lautrec in a picture based upon "Moulin Rouge." On getting an affirmative indication, Huston said he would go ahead and acquire the motion picture rights. Ferrer replied, in somewhat of an exaggeration, "When you get ready to acquire them talk to me because I own them."
9
Both Huston and Ferrer then had discussions with LaMure. Ferrer expressed a willingness "to abandon the theatrical production in favor of the film production, provided that, if the film production were successful, I would be recompensed for my abandoning the stage production." On the strength of this, LaMure signed a preliminary agreement with Huston's corporation. In further negotiations, Huston's attorney insisted on "either an annulment or conveyance" of the Dramatic Production Contract. LaMure's lawyer prepared a letter of agreement, dated February 7, 1952, whereby Ferrer would cancel and terminate the Contract. Ferrer signed the letter but instructed his attorney not to deliver it until the closing of a contract between himself and the company that was to produce the picture; the letter was not delivered until May 14, 1952.
10
Meanwhile, on May 7, 1952, Ferrer entered into a contract with Huston's company, Moulin Productions, Inc. ("Moulin"), hereafter the Motion Picture Contract. This was followed by an agreement and assignment dated May 12, 1952, whereby LaMure sold Huston all motion picture rights to his novel, including the right to exploit the picture by radio and television. Under this agreement LaMure was to receive a fixed sum of $25,000, plus 5% and 4% of the Western and Eastern Hemisphere motion picture profits, respectively, and 50% of the net profits from exploitation by live television.
11
The Motion Picture Contract said that Romulus Films Limited, of London, proposed to produce the picture "Moulin Rouge," that Moulin would be vested with the Western Hemisphere distribution rights, and that Moulin on behalf of Romulus was interested in engaging Ferrer's service to play the role of Toulouse-Lautrec. Under clause 4(a), Ferrer was to receive $50,000 to cover 12 weeks of acting, payments to be made weekly as Ferrer rendered his services. Ferrer's performance was to begin between June 1 and July 1, 1952. By clause 4(b), Ferrer was to receive $10,416.66 per week for each additional week, but this, together with an additional $50,000 of salary provided by clause 4(c), was "deferred and postponed" and was payable only out of net receipts. Finally, clauses 4(d) and (e) provided "percentage compensation" equal to stipulated percentages of the net profits from distribution of the picture in the Western and Eastern Hemispheres respectively — 17% of the Western Hemisphere net profits until Ferrer had received $25,000 and thereafter 12¾% (such payments to "be made out of sixty-five (65%) percent of the net profits," whatever that may mean), and 3¾% of the Eastern Hemisphere net profits. If Ferrer's services were interrupted by disability or if production of the picture had to be suspended for causes beyond Moulin's control, but the picture was thereafter completed and Ferrer's "acts, poses and appearances therein" were recognizable to the public, he was to receive a proportion of the compensation provided in clauses 4(c), (d) and (e) corresponding to the ratio of his period of acting to 12 weeks. The same was true if Ferrer failed to "conduct himself with due regard to public conventions and morals" etc. and Moulin cancelled on that account. The absence of any similar provision with respect to termination for Ferrer's wilful refusal or neglect to perform services indicates that all his rights, except that for compensation already due under clause 4(a), would be forfeited in that event. Over objections by the Commissioner, Ferrer offered testimony by Huston's attorney, who was also president of Moulin, that in the negotiation "it was said that the ultimate percentage payment to be made to Ferrer would be his compensation for giving up his interest in the dramatization guild," and a letter from the same attorney, dated March 3, 1953, confirming that in the negotiations with Ferrer's attorney "for the sale of the dramatic rights held by you to the property entitled `MONSIEUR TOULOUSE' and the novel `MOULIN ROUGE,' is was understood that the consideration for such sale price was the payments due, or to become due, to you under Clause 4(d) and Clause 4 (e)," and also that LeMure "refused to sell the motion picture rights for the production of the motion picture known as `MOULIN ROUGE' unless you sold the aforesaid dramatic rights." Ferrer's agent testified, again over objection, that the largest salary Ferrer had previously received for a moving picture appearance was $75,000.
12
Moulin's books showed $109,027.74 as a salary payment to Ferrer in August, 1953, and $178,751.46 at various later dates in 1953 as the payment of "Participating Interests" under clause 4(d).1 Ferrer's 1953 return reported the former as ordinary income, and the latter, less expenses of $26,812.72,2 as a long-term capital gain. The Commissioner determined a deficiency on the basis that the difference, $151,938.74, constituted ordinary income; from the Tax Court's annulment of that determination he has taken this appeal.
13
Section 117(a) of the 1939 Code, now § 1221 of the 1954 Code, 26 U.S.C.A. § 1221, tells us, not very illuminatingly, that "`capital asset' means property held by the taxpayer (whether or not connected with his trade or business), but does not include" four (now five) types of property therein defined. However, it has long been settled that a taxpayer does not bring himself within the capital gains provision merely by fulfilling the simple syllogism that a contract normally constitutes "property," that he held a contract, and that his contract does not fall within a specified exclusion, C. I. R. v. Gillette Motor Transport, Inc., 364 U.S. 130, 134-135, 80 S.Ct. 1497, 4 L.Ed.2d 1617 (1960); Surrey, Definitional Problems in Capital Gains Taxation, 69 Harv. L.Rev. 985, 988 (1956). This is easy enough; what is difficult, perhaps impossible, is to frame a positive definition of universal validity. Attempts to do this in terms of the degree of clothing adorning the contract cannot explain all the cases, however helpful they may be in deciding some, perhaps even this one; it would be hard to think of a contract more "naked" than a debenture, yet no one doubts that is a "capital asset" if held by an investor. Efforts to frame a universal negative, e.g., that a transaction can never qualify if the taxpayer has merely collapsed anticipation of future income, are equally fruitless; a lessor's sale of his interest in a 999 year net lease and an investor's sale of a perpetual bond sufficiently illustrate why, as does Ayrton Metal Co. v. C. I. R.., 299 F.2d 741 (2 Cir. 1962).
14
Perhaps we can get more help from analyzing the fact situations in cases in adjacent areas, including those decided since Judge Smith's careful review in C. I. R. v. Pittston Company, 252 F.2d 344 (2 Cir.), cert. denied, 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364 (1958), than from the language of the opinions. Putting aside Jones v. Corbyn, 186 F.2d 450 (10 Cir. 1950), which we have disapproved, C. I. R. v. Starr Bros., Inc., 204 F.2d 673, 674 (2 Cir. 1953) and whose status in its own circuit has now become rather doubtful, Wiseman v. Halliburton Oil Well Cementing Co., 301 F. 2d 654, (10 Cir. 1962), a case to which we refer below, and C. I. R. v. Goff, 212 F.2d 875 (3 Cir.), cert. denied, 348 U.S. 829, 75 S.Ct. 52, 99 L.Ed. 654 (1954), which is only dubiously reconcilable with our Pittston decision, the principal relevant authorities on the two sides of the line in the Supreme Court and in the courts of appeals are as follows: There is no sale or exchange of a capital asset when a lessor receives payment for releasing a lessee from an obligation to pay future rent, Hort v. C. I. R., 313 U.S. 28, 61 S.Ct. 757, 85 L.Ed. 1168 (1941). The same was true of the cancellation of an exclusive distributorship, C. I. R. v. Starr Bros., Inc., 204 F.2d 673 (2 Cir. 1953); Leh v. C. I. R., 260 F.2d 489 (9 Cir. 1958), although § 1241 of the 1954 Code, 26 U.S.C.A. § 1241 now rules otherwise if the distributor has a substantial capital investment therein. The transfer of exclusive agency rights to a third person likewise did not qualify, General Artists Corp. v. C. I. R., 205 F.2d 360 (2 Cir.), cert. denied, 346 U.S. 866, 74 S.Ct. 105, 98 L.Ed. 376 (1953); whether it now does if the capital investment requirement of § 1241 is met is another question. The sale of oil payment rights, C. I. R. v. P. G. Lake, Inc., 356 U.S. 260, 78 S.Ct. 691, 2 L.Ed.2d 743 (1958), the temporary taking of a taxpayer's right to use his own transportation assets, C. I. R. v. Gillette Motor Transport, Inc., supra, and the surrender of an exclusive contract to purchase coal, C. I. R. v. Pittston Co., supra, do not meet the statutory test. Neither does the receipt of a lump sum in liquidation of a percentage of the gross receipts of motion pictures otherwise payable to a producer solely in return for personal services not yet performed, Holt v. C. I. R., 303 F.2d 687 (9 Cir. 1962). On the other hand, a lessee's surrender of his lease to the lessor, C. I. R. v. Golonsky, 200 F.2d 72 (3 Cir. 1952), cert. denied, 345 U.S. 939, 73 S. Ct. 830, 97 L.Ed. 1366 (1953); C. I. R. v. McCue Bros. & Drummond, Inc., 210 F.2d 752 (2 Cir.), cert. denied, 348 U.S. 829, 75 S.Ct. 53, 99 L.Ed. 654 (1954), now in effect ratified by § 1241 of the 1954 Code, his relinquishment of a right to restrict the lessor's renting to another tenant in the same business, C. I. R. v. Ray, 210 F.2d 390 (5 Cir.), cert. denied, 348 U.S. 829, 75 S.Ct. 53, 99 L.Ed. 654 (1954), and his release of his entire interest to a sublessee, Metropolitan Bldg. Co. v. C. I. R., 282 F.2d 592 (9 Cir. 1960), but see Voloudakis v. C. I. R., 274 F.2d 209 (9 Cir. 1960), constitute the sale or exchange of a capital asset. So does the abandonment of an option to acquire a partnership interest, Dorman v. United States, 296 F.2d 27 (9 Cir. 1961).
15
One common characteristic of the group held to come within the capital gain provision is that the taxpayer had either what might be called an "estate" in (Golonsky, McCue, Metropolitan), or an "encumbrance" on (Ray), or an option to acquire an interest in (Dorman), property which, if itself held, would be a capital asset. In all these cases the taxpayer had something more than an opportunity, afforded by contract, to obtain periodic receipts of income, by dealing with another (Starr, Leh, General Artists, Pittston), or by rendering services (Holt), or by virtue of ownership of a larger "estate" (Hort, P. G. Lake). We are painfully aware of the deficiencies of any such attempt to define the wavering line even in this limited area, but it is the best we can do. We add, with greater confidence, that more recent cases, such as McCue & Drummond, Ray, Metropolitan, and Dorman, have moved away from the distinction, relied upon to some extent in Star Brothers and General Artists,3 between a sale to a third person that keeps the "estate" or "encumbrance" alive, and a release that results in its extinguishment.4 Indeed, although reasoning from another section of a statute so full of anomalies is rather treacherous business, we take § 1241 of the 1954 Code as indicating Congressional disenchantment with this formalistic distinction. In the instant case we can see no sensible business basis for drawing a line between a release of Ferrer's rights to LaMure for a consideration paid by Moulin, and a sale of them, with LaMure's consent, to Moulin or to a stranger who would then release them. Moulin's attorney, as we have seen, did not care a fig whether there was "an annulment or conveyance" of the Dramatic Production Contract. Tax law is concerned with the substance, here the voluntary passing of "property" rights allegedly constituting "capital assets," not with whether they are passed to a stranger or to a person already having a larger "estate." So we turn to an analysis of what rights Ferrer conveyed.
16
Two issues can be eliminated before we do this. We need no longer concern ourselves, as at one time we might have been obliged to do, over the alleged indivisibility of a copyright; the Commissioner is now satisfied that sales and exchanges of less than the whole copyright may result in capital gain, Rev.Rul. 60-226, 1960-1 Cum.Bull. 26. See also Gitlin & Woodward, Tax Aspects of Patents, Copyrights and Trademarks (1960 rev.) 18-19; Sargoy, Formalities and Ownership, 9 Bull.Cr.Soc. 20, 43 (1961); Surrey & Warren, Federal Income Taxation, Cases and Materials (1960) 753. Neither do we have in this case any issue of excludability under § 117(a) (1) (A), now § 1221 (1); Ferrer was not in the "trade or business" of acquiring either dramatic production rights or motion picture rights.
17
When Huston displayed an interest in the motion picture rights in November, 1951, Ferrer was possessed of a bundle of rights, three of which are relevant here. First was his "lease" of the play. Second was his power, incident to that lease, to prevent any disposition of the motion picture rights until June 1, 1952, or, on making an additional $1500 advance, to December 1, 1952, and for a period thereafter if he produced the play, and to prevent disposition of the radio and television rights even longer. Third was his 40% share of the proceeds of the motion picture and other rights if he produced the play. All these, in our view, Ferrer "sold or exchanged," although the parties set no separate price upon them. To be sure, Moulin had no interest in producing the play. But Ferrer did, unless a satisfactory substitute was provided. Hence Moulin had to buy him out of that right, as well as to eliminate his power temporarily to prevent a sale of the motion picture, radio and television rights and to liquidate his option to obtain a share of their proceeds.
18
(1) Surrender of the "lease" of the play sounds like the transactions held to qualify for capital gain treatment in Golonsky and McCue Bros. & Drummond, see § 1241 of the 1954 Code. Such cases as Wooster v. Crane & Co., 147 F. 515 (8 Cir. 1906), Underhill v. Schenck, 238 N.Y. 7, 143 N.E. 773, 33 A.L.R. 303 (1924), and Kirke La Shelle Co. v. Paul Armstrong Co., 263 N.Y. 79, 188 N.E. 163 (1933) are a fortiori authority that courts would have enjoined LaMure, or anyone else, from interfering with this, unless the Dramatic Production Contract dictated otherwise. None of its many negations covered this basic grant. Ferrer thus had an "equitable interest" in the copyright of the play.
19
The Commissioner did not suggest in the Tax Court, and does not here, that this interest or, indeed, any with which we are concerned in this case, fell within § 117(a) (1) (C) of the 1939 Code, now § 1221(3), excluding from the term "capital asset" "a copyright; a literary, musical, or artistic composition; or similar property; held by —
20
"(i) a taxpayer, whose personal efforts created such property * * *."
21
He was right in not doing this. In one sense the lease of the play was "created" simply by the agreed advance of $1500. If it be said that this is too narrow an approach and that we must consider what Ferrer would have had to do in order to make the lease productive, the result remains the same. Although the Dramatic Production Contract demanded Ferrer's personal efforts in the play's production, much else in the way of capital and risk-taking was also required. Yet the legislative history, see S.Rep. No. 2375, 81st Cong., 2d Sess., printed in 2 U.S.Code Cong.Serv. p. 3053 (1950), shows that § 117(a) (1) (C), initially added by the Revenue Act of 1950, 64 Stat. 906, 933, was intended to deal with personal efforts and creation in a rather narrow sense.5 See Stern v. United States, 164 F.Supp. 847, 851 (E.D.La. 1958), aff'd per curiam, 262 F.2d 957 (5 Cir.), cert. denied, 359 U.S. 969, 79 S.Ct. 880, 3 L.Ed.2d 836 (1959); McPeters, Taxation of Literary Property Income, 12 Mercer L.Rev. 370, 375-380 (1961); and Rev.Rul. 55-706, 1955-2 Cum.Bull. 300. Ferrer's role as producer, paying large sums to the theatre, the actors, other personnel, and the author, is not analogous to that of the writer or even the "creator" of a radio program mentioned by the Committee. Moreover, the dramatic producer does not normally "sell" the production to a single purchaser, as an author or radio program "creator" usually does — he offers it directly to public custom.
22
We see no basis for holding that amounts paid Ferrer for surrender of his lease of the play are excluded from capital gain treatment because receipts from the play would have been ordinary income. The latter is equally true if a lessee of real property sells or surrenders a lease from which he is receiving business income or subrentals; yet Golonsky and McCue Bros. & Drummond held such to be the sale or exchange of a capital asset, as § 1241 now provides. Likewise we find nothing in the statute that forbids capital gain treatment because the payment to Ferrer might be spread over a number of years rather than coming in a lump sum; although prevention of the unfairness arising from applying ordinary income rates to a "bunching" of income may be one of the motivations of the "capital gain" provisions, the statute says nothing about this. Compare Burnet v. Logan, 283 U. S. 404, 51 S.Ct. 550, 75 L.Ed. 1143 (1931). Finally, with respect to the lease of the play, there was no such equivalence between amounts paid for its surrender and income that would have been realized by its retention as seems to lie at the basis of the Tenth Circuit's recent refusal of capital gain treatment in Wiseman v. Halliburton Oil Well Cementing Co., 301 F.2d 654 (1962), a decision as to which we take no position.
23
(2) Ferrer's negative power, as an incident to the lease, to prevent any disposition of the motion picture, radio and television rights until after production of the play, was also one which, under the cases previously cited, as well as Harper Bros. v. Klaw, 232 F. 609, 613 (S.D.N.Y. 1916) and Manners v. Morosco, 252 U.S. 317, 40 S.Ct. 335, 64 L.Ed. 590 (1920), would be protected in equity unless he had contracted to the contrary, and would thus constitute an "equitable interest" in this portion of the copyright. Although we should not regard Articles IV, § 1 (a) and VIII as outlawing equitable relief to protect the rights granted as to the play, a literal reading of Article V, § 1(c), quoted above, would negate Ferrer's power to enjoin disposition of the motion picture rights prior to production of the play and would remit him to arbitration — a consequence serious from the standpoint of definition of a capital asset, especially in view of the emphasis we placed in Pittston, 252 F.2d at 348, on the unavailability of injunctive relief there. In the absence of authority, we should not read the clause so broadly; we would construe it as relating to disputes as to the manner of disposition of the rights after the Negotiator had become entitled to dispose of them, not as closing the door on the only effective method for protecting the Manager's important interest against premature disposition. As a practical matter, this feature of the Dramatic Production Contract "clouded" LaMure's title, despite the Contract's contrary assertion. Huston would not conclude with LaMure and LaMure would not conclude with Huston unless Ferrer released his rights; Huston's attorney testified that a contract like Ferrer's "imposes an encumbrance on the motion picture rights." Ferrer's dissipation of the cloud arising from the negative covenant seems analogous to the tenant's relinquishment of a right to prevent his landlord from leasing to another tenant in the same business, held to be the sale or exchange of a capital asset in Ray. What we have said in (1) with respect to possible grounds for disqualification as a capital asset is a fortiori applicable here.
24
(3) We take a different view with respect to the capital assets status of Ferrer's right to receive 40% of the proceeds of the motion picture and other rights if he produced "Monsieur Toulouse."
25
We assume, without deciding, that there is no reason in principle why if the holder of a copyright grants an interest in the portion of a copyright relating to motion picture and other rights contingent on the production of a play, or, to put the matter in another way, gives the producer an option to acquire such an interest by producing the play, the option would not constitute a "capital asset" unless the producer is disqualified by § 117(a) (1) (A), now § 1221(1). Although the copyright might not be such an asset in the owner's hands because of that section or § 117(a) (1) (C) (i), now § 1221(3) (A), the latter disqualification would not apply to the producer for reasons already discussed, and the former would not unless the producer was a professional. However, it is equally possible for the copyright owner to reserve the entire "property" both legal and equitable in himself and agree with the producer that a percentage of certain avails shall be paid as further income from the lease of the play — just as the lessor of real estate might agree to pay a lessee a percentage of what the lessor obtained from other tenants attracted to the building by the lessee's operations. In both instances such payments would be ordinary income. If the parties choose to cast their transaction in the latter mold, the Commissioner may take them at their word.
26
Here the parties were at some pains to do exactly that. LaMure was to "retain for his sole benefit, complete title, both legal and equitable, in and to all rights whatsoever" other than the right to produce the play. Ferrer was to "have no right, title or interest, legal or equitable, in the motion picture rights, other than the right to receive the Manager's share of the proceeds"; even as to that, he was to have "no recourse, in law or in equity" against a purchaser, a lessee, or the Negotiator, but only a right to arbitration against the Author. We cannot regard all this as mere formalism. The Contract is full of provisions designed to emphasize the Negotiator's freedom to act — provisions apparently stemming from a fear that, without them, the value of the motion picture rights might disintegrate in controversy. McClintic v. Sheldon, 269 App.Div. 356, 55 N.Y.S.2d 879 (1st Dept. 1945), aff'd, 295 N.Y. 682, 65 N.E.2d 328 (1946), greatly relied upon by the taxpayer, does not show that, despite the contrary language of the Contract, Ferrer had, or ever would have, an affirmative equitable interest in the motion picture or other rights, as distinguished from his temporary negative "encumbrance" on them. Although the Appellate Division's opinion contains some remarks as to the equitable interest of a licensee in a copyright, these were not essential to the holding, namely, that "the clear language" of the agreement entitled the producer to the moneys there in question. Moreover, examination of the papers on appeal shows that the contract between the producer and the author in that case was an earlier form not containing the extensive negation of equitable property interests present here.6
27
It follows that if Ferrer had produced the play and LaMure had sold the motion picture, radio and television rights for a percentage of the profits, Ferrer's 40% of that percentage would have been ordinary income and not the sale or exchange of a capital asset. The decisions in Hort and Holt point to what would seem the inevitable corollary that if, on the same facts, Ferrer had then sold his rights to a percentage of the profits for a lump sum, that, too, would have been ordinary income, see Herman Shumlin, 16 T.C. 407 (1951). The situation cannot be better from Ferrer's standpoint because he had merely a contingent right to, or an option to obtain, the 40% interest; the case differs from Dorman v. United States, supra, in that there the option was to acquire what would admittedly have been a "capital asset."
28
The situation is thus one in which two of the rights that Ferrer sold or exchanged were "capital assets" and one was not. Although it would be easy to say that the contingent contract right to a percentage of the avails of the motion picture, radio and television rights was dominant and all else incidental, that would be viewing the situation with the inestimable advantage of hindsight. In 1952 no one could tell whether the play might be a huge success and the picture a dismal failure, whether the exact opposite would be true, whether both would succeed or both would fail. We cannot simply dismiss out of hand the notion that a dramatic production, presenting an actor famous on the speaking stage and appealing to a sophisticated audience, might have had substantial profit possibilities, perhaps quite as good as a film with respect to a figure, not altogether attractive and not nearly so broadly known then as the success of the picture has made him now, which presumably would require wide public acceptance before returning production costs. At the very least, when Ferrer gave up his lease of the play, he was abandoning his bet on two horses in favor of a bet on only one.
29
In such instances, where part of a transaction calls for one tax treatment and another for a different kind, allocation is demanded, Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Ditmars v. C. I. R., 302 F.2d 481 (2 Cir. 1962). If it be said that to remand for this purpose is asking the Tax Court to separate the inseparable, we answer that no one expects scientific exactness; that however roughly hewn the decision may be, the result is certain to be fairer than either extreme; and that similar tasks must be performed by the Tax Court in other areas, see Webster Investors, Inc. v. C. I. R., 291 F.2d 192 (2 Cir. 1961); Meister v. C. I. R., 302 F.2d 54 (2 Cir. 1962) [determination of portion of purchase price attributable to good-will].
30
Still we have not reached the end of the road. The Commissioner contends that, apart from all else, no part of the payments here can qualify for capital gain treatment, since Ferrer could receive "percentage compensation" only if he fulfilled his acting commitments, and all the payments were thus for personal services. Citing C. I. R. v. Dwight's Estate, 205 F.2d 298, 301 (2 Cir.), cert. denied, 346 U.S. 871, 74 S.Ct. 121, 98 L. Ed. 380 (1953), the Commissioner says it was error for the Tax Court to rely on extrinsic evidence to vary the written contract.
31
Although the parties have taken opposing positions on the applicability of the "parol evidence rule" to a dispute involving a stranger to the contract, a question discussed by Professor Corbin in his usual illuminating fashion in 3 Contracts (rev.ed. 1960) § 596, cf. 9 Wigmore, Evidence (3d ed. 1940) § 2446, at p. 150, and see, with respect to tax controversies, Stern v. C. I. R., 137 F.2d 43, 46 (2 Cir. 1943); Scofield v. Greer, 185 F.2d 551, 552 (5 Cir. 1950); Landa v. C. I. R., 92 U.S.App.D.C. 196, 206 F.2d 431, 432 (1953); Mustard v. United States, 155 F. Supp. 325, 332 (Ct.Cl.1957); Thorsness v. United States, 260 F.2d 341, 345 (7 Cir. 1958); Cooper Foundation v. O'Malley, 121 F.Supp. 438, 444 (D.Neb.1954), no such issue is here presented. No one argued the contract provided anything other than what was plainly said. Huston's attorney did not assert that Ferrer would become entitled to the percentage compensation without fulfilling his acting commitment; what the attorney said in his testimony, as he had earlier in his letter, was that Ferrer was selling two things to Moulin — his services as an actor and his rights under the Dramatic Production Contract — and that the parties regarded the payments under clauses 4 (a), (b) and (c) as the consideration for the former and those under clauses 4(d) and (e) as the consideration for the latter.
32
On the basis of this evidence the Tax Court found that the percentage compensation was not "to any extent the consequence of, or consideration for, petitioner's personal services." In one sense, this is hardly so. Under the Motion Picture Contract, Ferrer would receive no percentage compensation if he wrongfully refused to furnish acting services, and none or only a portion if, for reasons beyond his control, he furnished less than all. Since that must have been as plain to the Tax Court as to us, we read the finding to mean rather that Ferrer and Moulin adopted the percentage of profits formula embodied in clauses 4 (d) and (e) as an equivalent and in lieu of a fixed sum payable in all events for the release of the Dramatic Production Contract. If they had first agreed on such a sum and had then substituted the arrangement here made, it would be hard to say that although payments under their initial arrangement would not be disqualified for capital gain treatment, payments under the substituted one would be. Ferrer was already bound to play the role of Toulouse-Lautrec, at a salary implicitly found to constitute fair compensation for his services; adoption of a formula whereby his receipt of percentage compensation for releasing his rights was made contingent on his fulfilling that undertaking does not mean that the percentage compensation could not be solely for his release of the Contract. The Tax Court was not bound to accept the testimony that this was the intent — it could lawfully have found that the percentage compensation was in part added salary for Ferrer's acting services and in part payment for the release. However, it found the contrary, and we cannot say that in doing so it went beyond the bounds to which our review of its fact findings is confined, Internal Revenue Code of 1954, § 7482(a), 26 U.S.C.A. § 7482(a); F.R.Civ.Proc. 52(a). Since, on the taxpayer's own evidence, the percentage compensation was for the totality of the release of his rights under the Dramatic Production Contract, allocation is required as between rights which did and rights which did not constitute a "capital asset."
33
We therefore reverse and remand to the Tax Court to determine what portion of the percentage compensation under clauses 4(d) and (e) of the Motion Picture Contract constituted compensation for Ferrer's surrendering his lease of the play and his incidental power to prevent disposition of the motion picture and other rights pending its production, as to which the determination of deficiency should be annulled, and what part for the surrender of his opportunity to receive 40% of the proceeds of the motion picture and other rights as to which it should be sustained. The expenses allowed as basis must likewise be allocated. Doubtless further evidence will have to be taken unless the parties can reach some practical adjustment.
34
It is so ordered.
Notes:
1
The record is silent on payments for Eastern Hemisphere profits under clause 4(e), or on whether there will be further payments for Western Hemisphere profits under clause 4(d); we suppose both these will come in later years
2
The record does not disclose the nature of these expenses, but the Commissioner has not questioned them
3
These cases could well have been decided on the basis that the taxpayer held only a contract right giving him an opportunity to earn future income
4
We say this despite certain language in Leh v. C. I. R., 260 F.2d 489 (9 Cir. 1958) and in Holt v. C. I. R., 303 F.2d 687 (9 Cir. 1962), both of which, like the cases referred to in footnote 3, validly rested on the absence of a "capital asset."
5
The Committee introduced its discussion by referring to persons "in the profession of writing books, or creating other artistic works." It then discussed the previous law, whereby an "amateur" can sell "his book or other artistic work" after holding it for 6 months, and thereby receive "long-term capital gain treatment on the product of his personal effort," p. 3097. The bill therefore provided "that when any person sells a book or other artistic work which is the product of his personal effort his income from the sale is taxed as ordinary income." At p. 3140, the Committee characterized its handiwork as follows:
"Under the committee amendment, a person who writes a book or creates some other sort of artistic work will be taxed at ordinary income rates, rather than at capital-gain rates, upon gain from the sale of the work regardless of whether it is his first production in the field or not. The amendment made by section 211 (a) will also exclude from the capital asset category any property similar to that specifically named; for example, a radio program which has been created by the personal efforts of the taxpayer * * * The interest of a sole proprietor in such a business enterprise as a photographic studio is not `similar property' even though the value of the business may be largely attributable to the personal efforts of the sole proprietor."
6
The "Additional Clause" summarized at the end of our analysis of the Dramatic Production Contract does not call for a different conclusion, as Ferrer urges. This simply protected Ferrer against LaMure's dealing with the novel without regard to Ferrer so long as LaMure did not deal with the play; the clause did not alter the character of Ferrer's rights with respect to LaMure's copyright
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129 P.3d 471 (2006)
212 Ariz. 182
Kyle BOHSANCURT, Petitioner/Appellee,
v.
The Honorable Mitchell EISENBERG, Magistrate of the Tucson City Court, Respondent, and
Tucson City Prosecutor's Office, Real Party in Interest/Appellant.
No. 2 CA-CV 2005-0117.
Court of Appeals of Arizona, Division 2, Department A.
February 28, 2006.
*472 Law Office of Stephen Paul Barnard, P.C., By Stephen Paul Barnard, Tucson, for Petitioner/Appellee.
Michael G. Rankin, Tucson City Attorney, By Laura Brynwood and William F. Mills, Tucson, for Real Party in Interest/Appellant.
Gary M. Kula, City of Phoenix Public Defender, By Gary M. Kula and Treasure Van-Dreumel, Phoenix, for Amicus Curiae City of Phoenix Public Defender's Office.
OPINION
PELANDER, Chief Judge.
¶ 1 The state appeals from the superior court's ruling in a special action in which the court concluded that maintenance and calibration records for an Intoxilyzer 5000 breath-testing machine are testimonial in nature under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Based on that conclusion, the court ruled those records are inadmissible in the underlying criminal case against appellee Kyle Bohsancurt unless he has an opportunity to confront and cross-examine the author of the records. We hold that the records do not fall within the purview of Crawford and are admissible under the public records and business records exceptions to the hearsay rule. Therefore, we reverse the superior court's ruling and remand the case for further proceedings.
BACKGROUND
¶ 2 The underlying facts are undisputed. Bohsancurt was cited for driving under the influence of an intoxicant (DUI) while impaired to the slightest degree in violation of A.R.S. § 28-1381(A)(1) and for driving or being in actual physical control of a vehicle with a breath-alcohol concentration of .08 or more within two hours of driving in violation of § 28-1381(A)(2). After those charges were filed in Tucson City Court, Bohsancurt moved in limine to exclude from evidence the periodic calibration and maintenance records ("quality assurance records" or "QARs") of the Intoxilyzer 5000 breath-testing device that had been used to test his breath sample. Under A.R.S. § 28-1323(A)(5), those records are a necessary foundational predicate for admission of Bohsancurt's breath test results.
¶ 3 In his motion, Bohsancurt argued the QARs are inadmissible unless he has an opportunity to cross-examine the Tucson Police Department (TPD) Crime Laboratory employee ("QA specialist") who conducted the *473 calibration and maintenance tests on the Intoxilyzer. Without that opportunity, Bohsancurt argued, admission of the QARs will violate his constitutional rights under the Sixth Amendment's Confrontation Clause as explained in Crawford. The city court magistrate denied Bohsancurt's motion, finding the QARs are "non-testimonial" and "not of a nature that was sought to be protected by the Framers of the Constitution."
¶ 4 Bohsancurt then obtained a stay of the proceedings and filed a complaint for special action in superior court. In addition to his Crawford argument, Bohsancurt contended the QARs also should be excluded because they constitute inadmissible hearsay. The superior court accepted jurisdiction of the special action, finding that the complaint raised a purely legal issue of first impression in Arizona that is likely to recur. The court concluded that "[u]se of calibration records to lay a foundation for the admission of breath testing results when a witness is unavailable and the Defendant has not had prior opportunity to cross-examine the appropriate declarant. . . violates the Confrontation Clause of the Sixth Amendment under Crawford v. Washington." It further found Bohsancurt's hearsay argument "not dispositive" because, under Crawford, "if testimonial in nature, the evidence must comport with the Confrontation Clause, regardless of its evidentiary label."
¶ 5 The state appeals from that ruling. This court has jurisdiction pursuant to A.R.S. § 12-2101(B) and (E) and Rule 8(a), Ariz. R.P. Spec. Actions, 17B A.R.S.
DISCUSSION
I
¶ 6 The state argues "[t]he lower court erroneously found that Intoxilyzer 5000 periodic maintenance records are testimonial under Crawford." That argument challenges the superior court's interpretation of Crawford, a purely legal issue that we review de novo. See State v. Parks, 211 Ariz. 19, ¶ 23, 116 P.3d 631, 636 (App.2005) ("Although we review a trial court's ruling on the admissibility of evidence under exceptions to the hearsay rule for abuse of discretion, we review a trial court's determination of a Confrontation Clause violation de novo."); see also State v. Moody, 208 Ariz. 424, ¶ 62, 94 P.3d 1119, 1140 (2004).
¶ 7 In Crawford, the Supreme Court attempted to reconcile the inherent conflict between the Sixth Amendment's Confrontation Clause and the various exceptions to the general rule excluding hearsay evidence. The Court overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), in which it had held that an unavailable declarant's "statement is admissible only if it bears adequate `indicia of reliability[,]'. . . [i.e., it] falls within a firmly rooted hearsay exception[,] . . . [or has] particularized guarantees of trustworthiness." Id. at 66, 100 S.Ct. at 2539, 65 L.Ed.2d at 608.
¶ 8 Emphasizing that "[r]eliability is an amorphous . . . concept," the Court in Crawford found the Roberts "framework . . . so unpredictable that it fail[ed] to provide meaningful protection from even core confrontation violations." Crawford, 541 U.S. at 62-63, 124 S.Ct. at 1371. Instead, the Court analyzed the common law and historical context surrounding the Confrontation Clause and concluded the Framers had had two main concerns. Id. at 50, 124 S.Ct. at 1363. First, the Court stated, "the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id. Second, the Court found "that the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id. at 53-54, 124 S.Ct. at 1365.
¶ 9 Significantly, the Court in Crawford for the first time distinguished between "testimonial" and "nontestimonial" evidence for Sixth Amendment purposes based on its reasoning that the Confrontation Clause "applies to `witnesses' against the accused in other words, those who `bear testimony.'" Id. at 51, 124 S.Ct. at 1364, quoting 1 Noah Webster, An American Dictionary of the English Language (1828). As the Court explained, "`[t]estimony' . . . is typically `[a] *474 solemn declaration or affirmation made for the purpose of establishing or proving some fact.' An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." Id.
¶ 10 The Court adopted an absolute rule when "testimonial" evidence of a witness who does not appear at trial is involved regardless of reliability, the evidence is inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine him or her. Id. at 68, 124 S.Ct. at 1374. Although the Court decided to "leave for another day any effort to spell out a comprehensive definition of `testimonial,'" id., it did describe a "core class of `testimonial' statements," including,
"ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," . . . [and][s]tatements taken by police officers in the course of interrogations.
Id. at 51-52, 124 S.Ct. at 1364, quoting briefs in case and White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 747, 116 L.Ed.2d 848, 865 (1992) (Thomas, J., concurring in part and concurring in judgment).
¶ 11 The Court held that the "testimonial" characterization "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial and to police interrogations,"[1] reasoning that "[t]hese are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Id. at 68, 124 S.Ct. at 1374. The Court provided further guidance by stating, "Most of the hearsay exceptions covered statements that by their nature were not testimonial for example, business records or statements in furtherance of a conspiracy." Id. at 56, 124 S.Ct. at 1367. Finally, with respect to non-testimonial hearsay, the Court explained "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law," including "an approach that exempt[s] such statements from Confrontation Clause scrutiny altogether." Id. at 68, 124 S.Ct. at 1374.
II
¶ 12 We now turn to the question of whether we should extend the Confrontation Clause protection to QARs because they supposedly are "testimonial" evidence and, therefore, inadmissible under Crawford absent an opportunity to cross-examine their author. The documents in question are created pursuant to R9-14-404 of the Arizona Administrative Code,[2] which requires "[l]aw enforcement agencies or individuals . . . who *475 conduct alcohol concentration determinations by means of breath-testing devices [to] implement a quality assurance program conducted by a quality assurance specialist." The rule also directs "[c]alibration checks of breath testing devices . . . [every] 31 days. . . [and r]ecords of quality assurance testing, calibration checks, device adjustments, and any maintenance for each device in use." Ariz. Admin. Code R9-14-404(A)(3), (6).
¶ 13 Based on those rules, quality assurance testing is performed, and the resultant records are created by criminalists employed by TPD. The QARs are then used by the state in DUI prosecutions as foundation for admitting the defendant's breath test results. See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects "are admissible as evidence in any trial" as long as five "foundational requirements" are met, the last of which is:
The device used to conduct the test was in proper operating condition. Records of periodic maintenance that show that the device was in proper operating condition at a time before and after the test are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test. The records are public records.
§ 28-1323(A)(5) (emphasis added).
¶ 14 As the state points out, the QARs "contain preprinted standard language, and within that standard language, the criminalist fills in the blanks. The blanks include information such as the criminalist's name, the crime laboratory agency, and the date and time of the function and accuracy tests." Based on the content of QARs, the state argues those reports "are . . . neither of the two clearly delineated types of [testimonial] statements [discussed in Crawford]: prior ex parte testimony from a preliminary hearing, []or statements taken by police during interrogation." Therefore, the state posits, "[t]he question necessarily becomes whether the records are of the more ambiguous type of `testimonial' statement" mentioned but not defined in Crawford, which the state urges they are not. Although the QARs are introduced in DUI cases to satisfy the fifth foundational requirement under § 28-1323, the state argues the information contained in those maintenance records "is not testimonial in nature, but is instead the transference of data from an Intoxilyzer 5000 printout onto a preprinted collection form."
¶ 15 Since Crawford was decided, other jurisdictions have grappled with the question of what constitutes "testimonial" evidence in cases like this in which the evidence at issue does not fit neatly into the "core class" discussed by the Supreme Court. A clear majority of courts that have addressed the admissibility of similar quality assurance records for breath-testing machines have held this specific type of evidence is not testimonial. See, e.g., Rackoff v. State, 275 Ga.App. 737, 621 S.E.2d 841, 845 (2005); Rembusch v. State, 836 N.E.2d 979, 982 (Ind.Ct.App.2005); Napier v. State, 820 N.E.2d 144, 149-50 (Ind.Ct.App.2005); State v. Carter, 326 Mont. 427, 114 P.3d 1001, ¶ 32 (2005); State v. Godshalk, 381 N.J.Super. 326, 885 A.2d 969, 973 (Ct. Law Div.2005); State v. Dedman, 136 N.M. 561, 102 P.3d 628, 636 (2004); People v. Kanhai, 8 Misc.3d 447, 797 N.Y.S.2d 870, 875 (N.Y.Crim.Ct.2005); State v. Norman, 203 Or.App. 1, 125 P.3d 15, 18 (2005); Luginbyhl v. Commonwealth, 46 Va.App. 460, 618 S.E.2d 347, 355 (2005).
¶ 16 In many of those cases, courts found that calibration records are made and maintained in the ordinary course of business and, therefore, fall within a clearly delineated exception to Crawford business records. See Crawford, 541 U.S. at 55, 124 S.Ct. at 1367 ("Most of the hearsay exceptions covered statements that by their nature were not testimonial for example, business records. . . ."); Godshalk, 885 A.2d at 973 (inspection certificates are business records that Crawford "specifically excluded . . . from [its] scope"); Kanhai, 797 N.Y.S.2d at 874-75 (maintenance records were not testimonial because they were business records and because they were not made specifically for the case at issue); Norman, 125 P.3d at 19 (documents supporting accuracy of Intoxilyzer machine "are more akin to hearsay statements that were not considered testimonial in nature at common law, such as public or business records").
*476 ¶ 17 The courts in the foregoing cases looked to legislation or administrative rules, similar to R9-14-404, that require the compilation of records of regular maintenance for various breath-testing devices. Based on such requirements, courts have found the maintenance records are not created in anticipation of litigation, but rather, for the purpose of complying with rules and assuring the accuracy of testing devices, which is a regular course of business. See Rackoff, 621 S.E.2d at 845. Further, courts have concluded the records meet the other requirements of a business record in that the technician who conducts the calibration tests records the results at or near the time the testing is done and has firsthand knowledge of the information he or she is recording.[3]See Kanhai, 797 N.Y.S.2d at 872-73.
¶ 18 In our view, similar reasoning applies here. Pursuant to R9-14-404, the Intoxilyzer 5000 machines must be tested and the results recorded every thirty-one days, regardless of whether any particular machine is used in connection with a DUI arrest. In other words, regardless of litigation, the QARs must be kept in the ordinary course of business. Bohsancurt asserts those records constitute "a declaration or affirmation for proving . . . the fact that the periodic maintenance was conducted, and the fact that the indicated calibration test results, et al[.], were obtained." That that may be true and that the records may subsequently be used in DUI prosecutions, however, does not preclude their qualifying as business records. See Kanhai, 797 N.Y.S.2d at 874.
¶ 19 Still, Bohsancurt argues that, even if kept in the regular course of business, the QARs cannot qualify as business records because their "method or circumstances of preparation indicate a lack of trustworthiness." Ariz. R. Evid. 803(6). He contends bias exists because "the QAR's are produced by the State for the State's prosecution of the defendant." Although the breath-testing machines are calibrated by criminalists employed by TPD, that fact alone is not sufficient to establish bias or inherent untrustworthiness.
¶ 20 We are persuaded by the reasoning of other courts that, because the maintenance records contain factual memorializations generated by a scientific machine, see Kanhai, 797 N.Y.S.2d at 874, and the records are prepared by technicians who are not proxies of police investigators and "have no demonstrable interest in whether the certifications produce evidence that is favorable or adverse to a particular defendant," Norman, 125 P.3d at 19, the records do not lack trustworthiness. That the calibration records contain no opinion by the technicians further supports the conclusion that they are trustworthy. Clearly, regardless of any preconceived bias, an individual technician tests the machines and prepares all QARs in the same fashion. The QARs contain the results of machine tests that cannot be influenced by one's point of view.
¶ 21 We conclude that the QARs qualify as business records under Rule 803(6), Ariz. R. Evid.[4] And, although the legislature has *477 characterized the maintenance records as "public records," § 28-1323(A)(5), that classification does not preclude them from also being business records. The essence of a public record is that it is created by a public agency. See State ex rel. McDougall v. Johnson, 181 Ariz. 404, 409, 891 P.2d 871, 876 (App.1994). But, when a public agent keeps records in the ordinary course of business of his or her employer, the records may still constitute business records.[5]See State v. Nez, 130 Idaho 950, 950 P.2d 1289, 1294-95 (Ct.App.1997) (probation records admissible under either public records or business records exception); State v. Rich, 293 S.C. 172, 359 S.E.2d 281, 281 (1987) (police fingerprint records admissible as either business records or public records).
¶ 22 In addition to finding that calibration records qualify as business records, other courts have permitted the admission of such records, without testimony from their preparer, by concluding that the evidence set forth in the records is not "against" any defendant. See Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 (the Confrontation Clause "applies to `witnesses' against the accused"); Rackoff, 621 S.E.2d at 845 (breath-testing inspection certificates not testimonial because author of such certificates does not bear testimony against the defendant); Carter, 114 P.3d 1001, ¶ 32 ("Certification reports are nontestimonial in nature in that they are foundational, rather than substantive or accusatory."); Green v. DeMarco, No.2005/09951, 11 Misc.3d 451, ___, ___ N.Y.S.2d ___, ___, 2005 WL 3421707, *11 (N.Y.Sup.Ct. Dec.12, 2005) (testimonial evidence involves only evidence that is inculpatory); see also Michels v. Commonwealth, 47 Va.App. 461, 624 S.E.2d 675, 678 (2006) (adopting view of other courts that "documents establishing the existence or absence of some objective fact, rather than detailing the criminal wrongdoing of the defendant, are not `testimonial'").
¶ 23 The reasoning and conclusions of those courts make practical sense in light of the historical protections Crawford sought to uphold. The Court explored the historical practice of justices of the peace or other court officials questioning witnesses, ex parte, and then merely reading the witnesses' statements into evidence. See Crawford, 541 U.S. at 43, 124 S.Ct. at 1359. The Court noted that those types of civil law "pretrial examinations became routine . . . during the reign of Queen Mary in the 16th century," id. at 43, 124 S.Ct. at 1360, and were the type of historical vice the Framers had intended to protect against. The Court further explained that "[j]ustices of the peace [who] conduct[ed] examinations . . . were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function." Id. at 53, 124 S.Ct. at 1365.
¶ 24 That the historical concern centered on statements taken by officials who were prosecuting or investigating criminal matters supports an inference that only inculpatory evidence required cross-examination. As did the city court magistrate in this case, several courts have concluded that the type of evidence contained in calibration records primarily abstract data output from a machine with no relationship to a particular defendant is not the sort of evidence with which the Framers were concerned. See Napier, 820 N.E.2d at 149-50 ("[I]t is our view that the inspection . . . certifications are simply not included in the class of evidence. . . identified by the Crawford court as `the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.'"), quoting Crawford, 541 U.S. at 68, 124 S.Ct. at 1374; Rembusch, 836 N.E.2d at 982 (maintenance records not within *478 class of evidence Crawford contemplated as testimonial); Luginbyhl, 618 S.E.2d at 355 ("Guided by . . . Crawford and the historical context in which it was rooted, . . . we hold that the statements in the breath test certificate relating to the machine's good working order . . . are not testimonial statements.").
¶ 25 In fact, several of the cases Bohsancurt cites, which hold that various laboratory reports are testimonial, involved reports that were inculpatory in a way that calibration and maintenance records are not.[6]See Smith v. State, 898 So.2d 907, 915-17 (Ala. Crim.App.2004) (autopsy report of victim found testimonial, when cause of death was "a crucial element of the charge," because report stated death was caused by asphyxiation by use of plastic bag over victim's head and defendant, who admitted having killed victim in self-defense, claimed death was caused by blows to the head by a bat);[7]Belvin v. State, No. 4D04-4235, 2005 WL 1336497, **1, 6 (Fla.Dist.Ct.App. June 8, 2005) (Crawford requires officer who actually administers defendant's breath test to be available at trial);[8]City of Las Vegas v. Walsh, 124 P.3d 203, 207-08 (Nev.2005) (nurse's affidavit describing conditions under which she had drawn blood from the defendant considered testimonial); People v. Rogers, 8 A.D.3d 888, 780 N.Y.S.2d 393, 396-97 (2004) (results of blood test of victim of crime considered testimonial, when state requested test to establish victim's intoxication and lack of consent in rape prosecution). In contrast to the types of reports involved in those cases, the recorded results of calibration testing in the abstract do not relate to any specific defendant or particular case.
¶ 26 Moreover, some courts have found other types of laboratory reports, even though related to specific defendants or victims, are not testimonial under Crawford. See People v. Johnson, 121 Cal.App.4th 1409, 18 Cal.Rptr.3d 230, 233 (2004) (laboratory report analyzing rock cocaine that defendant had been seen selling not testimonial under Crawford because it "was not a substitute for live testimony," but "was routine documentary evidence"); Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701, 705-06 (2005) (laboratory report that detailed weight of cocaine found in defendant's possession not testimonial because "[c]ertificates of chemical analysis are neither discretionary nor based on opinion; rather, they merely state the results of a well-recognized scientific test determining the composition and quantity of a substance"); Moreno Denoso v. State, 156 S.W.3d 166, 182 (Tex.Ct.App.2005) (autopsy report describing victim's physical characteristics at death and cause of death not testimonial because it "d[id] not fall within the categories of testimonial evidence described in Crawford" as "[i]t [wa]s not prior testimony at a preliminary hearing, before a grand jury, or at a former trial").[9]
¶ 27 Arguably, reports analyzing evidence from crime victims or drug samples associated with a specific defendant are actually linked to a specific case and are likely inculpatory. Nonetheless, as noted above, courts have found those types of reports do not fall within the Crawford Court's description of *479 evils the Confrontation Clause was intended to avoid. In our view, those authorities support our conclusion that QARs, which are business records created from objective, scientific data and which do not relate to any particular defendant or case, are not testimonial. If the Court in Crawford intended its description of "testimonial" evidence to include the types of maintenance records involved here, it certainly did not expressly say so and, absent more explicit direction from that Court or our supreme court, we are left with no more than "various levels of abstraction," an insufficient basis for finding any Sixth Amendment violation. Crawford, 541 U.S. at 52, 124 S.Ct. at 1364.
¶ 28 We are not persuaded by Bohsancurt's arguments that the seminal issue under Crawford is whether the declarant can reasonably anticipate that his or her statement will likely be used at trial. As noted earlier, the Court's "core class of `testimonial' statements" included "`statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.'" Id. at 51-52, 124 S.Ct. at 1364, quoting Brief for Nat'l Ass'n of Crim. Defense Lawyers et al. as Amici Curiae at 3. Citing the legislative history of § 28-1323(5), Bohsancurt argues the "very purpose [of the subsection] is to provide a method in introducing necessary testimony as to the accuracy of the machine with[out] the need for live testimony."
¶ 29 We agree with Bohsancurt that QARs undoubtedly are created with an understanding that they may be used in court to verify the working conditions of Intoxilyzers. But we do not think that abstract possibility renders QARs testimonial. The Court in Crawford did not specifically emphasize any of its stated "formulations" as determinative. 541 U.S. at 51-52, 124 S.Ct. at 1364. Further, in our view, the above formulation, as explained in Crawford, was directed at out-of-court statements aimed at a particular defendant or related to a specific case. This inference logically follows from the Court's discussion of the historical evils the Confrontation Clause sought to address-testimony obtained by court officials acting in prosecutorial or investigative roles. See id. at 53, 124 S.Ct. at 1365. Unless or until the Court states otherwise, it is not our prerogative to extend the Court's holding.
¶ 30 Bohsancurt relies on United States v. Cromer, 389 F.3d 662 (6th Cir.2004), for the proposition that a declarant's knowledge that a statement may be used at trial is the dispositive issue under Crawford. But that case supports our conclusion that Crawford is concerned with out-of-court statements that are related to specific cases. The court in Cromer stated, "The proper inquiry [under Crawford] is whether the declarant intends to bear testimony against the accused." Id. at 675 (emphasis added). The court further explained, "That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Id. In other words, the court essentially concluded that, when a declarant intends to bear testimony against a specific person or is aware that the declarant's statement could be used against a defendant in a particular case, then that intent or knowledge is a determinative factor in finding the declarant's out-of-court statement testimonial.
¶ 31 That cannot be said, however, with respect to the QA specialists who prepare QARs. As noted earlier, the QARs are mandated by administrative rule and created regardless of whether the machine to which the QAR relates is ever used or whether a single defendant is arrested. Moreover, the record does not reflect that a QA specialist has any way of knowing which records may be used in litigation and which will not or that a specialist necessarily intends to bear testimony against any specific defendant.[10]
*480 ¶ 32 We also find unpersuasive Bohsancurt's argument that the mere existence of an affidavit renders the QARs testimonial.[11] Other courts have dealt with calibration records that contain affidavits and have concluded, because the affidavit contains no testimony against any particular defendant, and indeed, no reference to any person at all, the affidavit does not render the calibration records testimonial. See Napier, 820 N.E.2d at 149 (affidavit is not testimonial because information within it "does not pertain to the issue of guilt"); Luginbyhl, 618 S.E.2d at 354 (officer's statements in affidavit were not testimonial because they did "not accuse [the defendant] of any wrongdoing").
¶ 33 Further, although the Court in Crawford cited affidavits among its "various formulations" of testimonial material, the Court apparently mentioned affidavits only in two specific contexts, neither of which is presented here. The first type of affidavit the Court considered testimonial was one that is the functional equivalent of ex parte, in-court testimony. See Crawford, 541 U.S. at 51, 124 S.Ct. at 1364 ("Various formulations of this core class of `testimonial' statements exist: [including] `ex parte in-court testimony or its functional equivalent that is, material such as affidavits' . . . ."), quoting Brief of Petitioner at 23. The ex parte statements the Court cited as offensive to the Sixth Amendment included investigative statements by magistrates who acted prosecutorially or statements by Lord Cobham, Sir Walter Raleigh's alleged accomplice. Lord Cobham implicated Raleigh in an examination before an ex parte council and in a letter. See id. at 44, 124 S.Ct. at 1360. The affidavits that accompany QARs, however, do not resemble a sworn memorialization of statements elicited ex parte to inculpate a defendant.
¶ 34 The second context in which the Court referred to affidavits was "`extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'" Id. at 51-52, 124 S.Ct. at 1364, quoting White v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 747, 116 L.Ed.2d 848, 865 (1992) (Thomas, J., concurring in part and concurring in judgment). As far as we can tell, the Court was merely describing various modes of civil law practice that it had addressed and criticized earlier. Again, the affidavits here do not resemble those with which the Court expressed concern. They are not created to formalize statements made at the behest of a party to document specific facts of the case. Rather, they are signed and completed in the ordinary course of business, solely in connection with the QARs themselves, and have no relationship to any specific case or defendant.
¶ 35 Based on our conclusions that QARs are business records and do not contain evidence against individual defendants such as Bohsancurt, we hold the QARs are not testimonial under Crawford. Therefore, the Sixth Amendment does not bar admission of the QARs even though the QA specialist who prepared them is not present in court or subject to cross-examination.[12]
*481 III
¶ 36 Although we have determined that the QARs qualify as business records and fall within that exception to the hearsay rule, we must address another hearsay argument raised by Bohsancurt and amicus curiae. Quoting United States v. Sims, 617 F.2d 1371, 1377 (9th Cir.1980), amicus argues the QARs are not business records because the "plain language of [Rule] 803(8)[, Ariz. R. Evid., the public records hearsay exception] makes it abundantly clear that it is the rule which covers reports made by law enforcement personnel." Rule 803 states:
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(8) . . . [u]nless the sources of information or other circumstances indicate lack of trust worthiness, records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth. . . (B) matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel . . . .
Bohsancurt and amicus argue the QARs are not admissible as public records because they include "matters observed by . . . law enforcement personnel."
¶ 37 It is generally recognized that records excluded by Rule 803(8)(B) cannot be admitted through the "back door" as a business record. See United States v. Cain, 615 F.2d 380, 382 (5th Cir.1980) ("[S]tatements inadmissible as public agency reports under Rule 803(8) may not be received merely because they satisfy Rule 803(6)[;] . . . section (6) does not open a back door for evidence excluded by section (8)."). But it also is clear that a document admissible as a public record may likewise be characterized as a business record. See Nez, 950 P.2d at 1294-95; Rich, 359 S.E.2d at 281. Therefore, we must determine whether the QARs, although statutorily characterized as public records under § 28-1323(A)(5), are nonetheless inadmissible under Rule 803(8)(B).
¶ 38 Bohsancurt cites United States v. Oates, 560 F.2d 45 (2d Cir.1977), in which the court concluded that chemists of the United States Customs Service were law enforcement personnel and, therefore, that their reports could not be admitted under the public records exception. Id. at 68. In State v. Best, 146 Ariz. 1, 703 P.2d 548 (App. 1985), however, this court followed the lead of several circuit courts in rejecting Oates, finding the "law enforcement personnel" exclusion in Rule 803(8)(B) is primarily aimed at observations made by police officers in adversarial roles, for example, when officers are investigating crime scenes or apprehending suspects. In Best, this court ruled that a laboratory report by a deceased fingerprint examiner that detailed where particular fingerprints had been lifted was admissible and not excluded under Rule 803(8)(B). 146 Ariz. at 4, 703 P.2d at 551. We stated:
[L]ifting and recording is, for a fingerprint examiner, the type of routine daily task that has always been thought to be reliably done under both the business and official records exceptions to the hearsay rule[; t]he adversarial, confrontational risk of misperception and misrecording present at an arrest of a criminal at the scene of the crime is about as far removed from this routine exercise in a police laboratory as it is possible to imagine.
Id.
¶ 39 As noted, Best is consistent with decisions of other courts that have scrutinized and severely criticized Oates. See United States v. Wilmer, 799 F.2d 495, 500-01 (9th Cir.1986) (expressly rejecting the Oates court's reasoning and concluding "calibration certificate was admissible under Rule 803(8)(B)" because "the exclusionary provisions of [that rule] were intended to apply to observations made by law enforcement officials at the scene of a crime or the apprehension of the accused and not `records of routine, nonadversarial matters' made in a nonadversarial setting"), quoting United States v. Orozco, 590 F.2d 789, 793 (9th Cir. 1979); see also United States v. Hayes, 861 F.2d 1225, 1229 (10th Cir.1989) ("Oates has been criticized by both courts and commentators as an unduly broad interpretation of Rule 803(8)."); United States v. Metzger, 778 F.2d 1195, 1202 (6th Cir.1985) ("[W]e now *482 join the Second, Ninth and Eleventh Circuits in [refusing to apply] the restriction [in Oates].").[13]
¶ 40 Amicus cites State v. Meza, 203 Ariz. 50, 50 P.3d 407 (App.2002), for the proposition that criminalists who do calibration testing should be considered "law enforcement personnel" and, therefore, that the QARs fall within Rule 803(8)(B)'s exclusion. But that case makes clear "`a law enforcement agency investigating a criminal action operates as an arm of the prosecutor.'" 203 Ariz. 50, ¶ 21, 50 P.3d at 412 (emphasis added), quoting Carpenter v. Superior Court, 176 Ariz. 486, 490, 862 P.2d 246, 250 (App.1993). Therefore, Meza is consistent with Best and with the majority of circuit courts and does not support the inference that any report generated by public safety employees is excluded under Rule 803(8)(B).
¶ 41 We do not equate the calibration testing and reporting by QA specialists with the type of "obser[vations] by police officers and other law enforcement personnel" that the exclusion in Rule 803(8)(B) addresses. See Wilmer, 799 F.2d at 500-01. Rather, the QARs are more analogous to the type of report generated in Best. Calibration testing and recording is a type of "routine daily task" that is "far removed" from any concerns associated with the adversarial circumstances surrounding investigations or arrests. Best, 146 Ariz. at 4, 703 P.2d at 551. Because the QA specialists who calibrate the Intoxilyzers and record the results are not investigating a particular criminal matter when they perform that function, the QARs qualify as both public records and business records both recognized exceptions to the general exclusion of hearsay evidence. Accordingly, the superior court erred in reversing the city court magistrate's denial of Bohsancurt's motion in limine.
DISPOSITION
¶ 42 The ruling of the superior court is reversed, and the case is remanded for further proceedings consistent with this decision.
Concurring: JOSEPH W. HOWARD, Presiding Judge and GARYE L. VÁSQUEZ, Judge.
NOTES
[1] The evidence at issue in Crawford itself a tape-recorded statement by the defendant's wife to the police clearly fell within that category. During a police interrogation, the wife (an eyewitness to the crimes) made statements that did not support her husband's self-defense claim against charges of assault and attempted murder. 541 U.S. at 38-41, 124 S.Ct. at 1356-58. When the wife did not testify at trial because of the state marital privilege, the prosecution was permitted to introduce the wife's statements to the police under the state's statements-against-interest exception to the hearsay rule. Id. at 40, 124 S.Ct. at 1357-58. The Court in Crawford specifically held that admission of the wife's "testimonial statement against [her husband/defendant], despite the fact that he had no opportunity to cross-examine her," violated the Confrontation Clause. Id. at 68, 124 S.Ct. at 1374.
[2] Both parties state QARs were previously mandated by the Arizona Department of Health Services but have since become the subject of Department of Public Safety rules. But R9-14-404, Ariz. Admin. Code, falls under the title on "Health Services," and neither party cites any change to that. In addition, the title in the code on "Public Safety" does not reflect any change. Nonetheless, the focus of our analysis is not dependent on which state agency mandates the QARs, but rather, on which state agency actually conducts the calibration tests and prepares the records and on the essential purpose for which the records are prepared. That the QA specialists are employed by TPD is not disputed.
[3] Under Rule 803(6), Ariz. R. Evid., 17A A.R.S., a document qualifies as a business record, and is excepted from the hearsay rule even when the declarant is available as a witness, if the document was:
(a) Made at or near the time of the underlying event,
(b) by, or from information transmitted by, a person with first hand knowledge acquired in the course of a regularly conducted business activity,
(c) made and kept entirely in the course of that regularly conducted business activity,
(d) pursuant to a regular practice of that business activity; and
(e) all the above are shown by the testimony of the custodian or other qualified witness, or by certification . . . .
The rule further provides:
However, such evidence shall not be admissible if the source of information or the method or circumstances of preparation indicate a lack of trustworthiness . . . .
The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
[4] At oral argument, Bohsancurt cited Palmer v. Hoffman, 318 U.S. 109, 114, 63 S.Ct. 477, 481, 87 L.Ed. 645 (1943), for the proposition that a report should not be admissible as a business record when it is "calculated for use essentially in the court" and its "primary utility is in litigating" rather than "for the systematic conduct of the enterprise." Even had Palmer been timely cited, however, "[w]hat the case has come to stand for is that a record otherwise meeting the requirements of th[e] exception [in Rule 803(8)(B)] ought not be admitted if there was a substantial motive to misrepresent when the report was prepared." Joseph M. Livermore, et al., Law of Evidence § 803.6, at 365 (4th ed.2000); see Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944, 949-50 (App.2001) ("Generally, issues and arguments raised for the first time at oral argument on appeal are untimely and deemed waived."). The record here does not reflect any such motive on the part of QA specialists when the Intoxilyzer calibration checks are performed or the QARs prepared.
[5] In its amicus curiae brief, the Phoenix Public Defender's Office challenges our conclusion, relying on United States v. Sims, 617 F.2d 1371, 1377 (9th Cir.1980). We address that argument below. See ¶¶ 36-41, infra.
[6] The superior court cited, and Bohsancurt relies heavily on, Shiver v. State, 900 So.2d 615 (Fla. Dist.Ct.App.2005). See also Belvin v. State, No. 4D04-4235, 2005 WL 1336497, at **4-5 (Fla. Dist.Ct.App. June 8, 2005). Although at first blush it appears Shiver dealt with records similar to Arizona's QARs, the Florida records actually included breath-test results of the individual defendant in addition to a section in which the officer who conducted the breath-test had certified that another officer had calibrated and checked the machine. 900 So.2d at 618-19. Those facts are clearly distinguishable from those presented here. The records at issue in Shiver contained evidence against the defendant. Further, the Florida records would not necessarily qualify as business records because the calibration results were not recorded by someone with firsthand knowledge, nor does the case reflect that the records were made from information transmitted by a person with firsthand knowledge. See Ariz. R. Evid. 803(6)(b), 17A A.R.S.
[7] Compare Perkins v. State, 897 So.2d 457, 464 (Ala.Crim.App.2004) (in case decided on same day as Smith, same court held that autopsy reports generally are nontestimonial business records).
[8] Belvin has not been released for publication in permanent law reports. "Until released it is subject to revision or withdrawal." 2005 WL 1336497, at *1.
[9] This case does not require us to reach or decide the specific issues addressed in those cases.
[10] Bohsancurt cites People v. Orpin, 8 Misc.3d 768, 796 N.Y.S.2d 512 (N.Y. Justice Ct.2005), in which the court ruled that calibration records are testimonial because, although they qualify as business records, they simultaneously are created by law enforcement agents who expect the documents will be used in later prosecutions. See id. at 517 ("[W]hat matters under the Crawford analysis is that the declarant knows that the statement will be used in a prosecution[; o]nce this test is satisfied, the Confrontation Clause is implicated.. . ."). New York law, however, allows "the discretionary power of [a] supreme court to entertain an action for declaratory relief that, in effect, collaterally attacks a criminal court's interlocutory ruling in favor of a defendant." Green v. DeMarco, No.2005/09951, 11 Misc.3d 451, ___, ___ N.Y.S.2d ___, ___, 2005 WL 3421707, at *1 (N.Y.Sup.Ct. Dec.12, 2005). The Orpin ruling was collaterally attacked pursuant to that rule, and the DeMarco court granted the district attorney's request and declared that calibration records are admissible and not a violation of Crawford. See 11 Misc.3d at ___, ___ N.Y.S.2d at ___, 2005 WL 3421707, at *12. The DeMarco court also stated that, in New York, "except for Orpin, there are no other reported decisions excluding this type of documentary evidence on Crawford grounds." Id. at ___, ___ N.Y.S.2d at ___, 2005 WL at *12.
[11] A QA specialist signs and attaches to the forms associated with testing a document that states: "I hereby certify that the above and foregoing is a true and correct copy of the record of periodic maintenance and calibration checks for the Intoxilyzer Model 5000, Serial Number [#####], TPD No. [##], maintained by the Tucson Police Department Crime Laboratory, pursuant to the requirements of the Arizona Department of Health Services."
[12] Of course, nothing would prevent a defendant such as Bohsancurt from obtaining and serving a subpoena on a QA specialist, compelling his or her attendance at trial and subjecting the specialist to full examination on whatever QARs are relevant to the case.
[13] See also United States v. Rosa, 11 F.3d 315, 332-33 (2d Cir.1993) ("Notwithstanding the breadth of certain dicta in Oates, we are not persuaded that the term `law enforcement personnel' as used in Rule 803(8)(B) should be read to encompass employees of the Medical Examiner's Office. [T]he . . . limitation in clause (B) was the result of Congressional discussion that focused exclusively on `police officers,' and `accuser[s],' and `adversari[es],' and there was no suggestion that the amendment to clause (B) was meant to limit the admissibility of public reports in criminal cases . . . .") (second and third alterations in Rosa), quoting S.Rep. No. 1277, 93d Cong., 2d Sess. (1974), reprinted in 1794 U.S.C.C.A.N. 7051.
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980 P.2d 282 (1999)
STATE of Washington, Respondent,
v.
Bruce G. KLINGER, Appellant.
In re the Personal Restraint Petition of: Bruce G. Klinger, Petitioner.
Nos. 23129-8-II, 24433-1-II.
Court of Appeals of Washington, Division 2.
July 16, 1999.
*283 Bradley W. Andersen, Skamania Co Pros Office, Stevenson, for Respondent.
R.A. Lewis, Knapp O'Dell & Lewis, (Court Appointed), Camas, for Appellant.
BRIDGEWATER, C.J.
In his direct appeal and personal restraint petition, Bruce G. Klinger challenges his conviction for felony possession of marijuana. We hold that Klinger's counsel was ineffective for not bringing a motion to suppress evidence found in the storage shed behind Klinger's cabin. We reverse the conviction.
On November 12, 1997, Skamania County sheriff's deputies went to Klinger's home to serve a district court warrant. When the deputies arrived at Klinger's cabin, they observed a truck in the driveway and smoke coming from the chimney, so they knocked on the door. When no one answered, Deputy Brett Robison went to the window and shined his flashlight into the interior. He saw Klinger inside smoking a hand rolled *284 cigarette and ordered him to come to the door. After a short while, Klinger opened the door. The deputies smelled marijuana smoke emanating from the cabin. They took Klinger into custody on the outstanding warrant.
The day after Klinger's arrest, Deputy Robison applied for a warrant to search Klinger's home, vehicle, and "outbuildings." The warrant was issued and in the subsequent search of the cabin deputies found marijuana pipes, "roach clips," marijuana growing literature, and approximately 154 grams of dried marijuana in the storage shed behind Klinger's cabin.
Klinger was convicted of possession of a controlled substance. His appeal of the conviction has been consolidated with his personal restraint petition (PRP).
I. INEFFECTIVE ASSISTANCE OF COUNSEL
In his PRP, Klinger alleges that his trial counsel was ineffective for failing to bring a motion to suppress the marijuana found in the storage shed. Klinger brings this challenge in the form of a PRP because the record on appeal does not contain the warrant affidavit, which he alleges is insufficient to justify a search of the shed. Because this challenge was brought as a PRP, we may consider items not part of the superior court record to determine if Klinger's claim has merit. See RAP 9.10.
To demonstrate ineffective assistance of counsel in Washington, a defendant must satisfy the two-prong test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Thomas, 109 Wash.2d 222, 743 P.2d 816 (1987). First, a defendant must demonstrate that his attorney's representation fell below an objective standard of reasonableness. Second, a defendant must show that he or she was prejudiced by the deficient representation. Prejudice exists if "there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995); see also Strickland, 466 U.S. at 695, 104 S.Ct. 2052 ("When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.").[1] There is a strong presumption that a defendant received effective representation. State v. Brett, 126 Wash.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121, 116 S.Ct. 931, 133 L.Ed.2d 858 (1996); Thomas, 109 Wash.2d at 226, 743 P.2d 816. A defendant carries the burden of demonstrating that there was no legitimate strategic or tactical rationale for the challenged attorney conduct. McFarland, 127 Wash.2d at 336, 899 P.2d 1251.
A. Deficient Representation
Our Supreme Court has held that the failure to bring a pretrial suppression motion is not per se deficient representation and the defendant bears the burden of showing the *285 absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel. McFarland, 127 Wash.2d at 336, 899 P.2d 1251. Klinger has asserted that there was no reasonable basis or strategic reason for defense counsel's failure to bring this motion to suppress, and the State conceded at oral argument that there was none. We agree that the first prong of the Strickland test has been met.
B. Prejudice
The State argues that although counsel was deficient, Klinger was not prejudiced because a motion to suppress would not have been successful if it had been brought. We must therefore review Klinger's claim that the affidavit was insufficient in order to determine if a motion to suppress would have been granted.
A judge's determination that probable cause exists to issue a search warrant deserves great deference on appeal and doubts should be resolved in favor of the warrant's validity. State v. J-R Distributors, Inc., 111 Wash.2d 764, 774, 765 P.2d 281 (1988); State v. Jackson, 102 Wash.2d 432, 442, 688 P.2d 136 (1984). We are to interpret search warrants in a commonsense, practical way, not in a hypertechnical manner. State v. Perrone, 119 Wash.2d 538, 549-51, 834 P.2d 611 (1992). A judge's finding that probable cause exists is reviewed under an abuse of discretion standard. State v. Remboldt, 64 Wash.App. 505, 509, 827 P.2d 282, review denied, 119 Wash.2d 1005, 832 P.2d 488 (1992).
The reviewing court examines the information available to the issuing judge when determining whether there was probable cause for issuance of the warrant. State v. Murray, 110 Wash.2d 706, 709-10, 757 P.2d 487 (1988). Probable cause is established if the affidavit in support of the warrant sets forth facts sufficient for a reasonable person to conclude that the defendant is probably involved in criminal activity and that evidence of the crime can be found at the place to be searched. Perrone, 119 Wash.2d at 551, 834 P.2d 611; State v. Maxwell, 114 Wash.2d 761, 769, 791 P.2d 223 (1990); State v. Garcia, 63 Wash.App. 868, 871, 824 P.2d 1220 (1992). The affidavit in support of the search warrant must adequately show circumstances that extend beyond suspicion and mere personal belief that evidence of a crime will be found on the premises to be searched. State v. Seagull, 95 Wash.2d 898, 907, 632 P.2d 44 (1981); State v. Rangitsch, 40 Wash.App. 771, 780, 700 P.2d 382 (1985). "This is not to suggest, however, that the information linking the things to be seized with criminal activity must always be of the direct sort or that reasonable inferences cannot be drawn from the surrounding circumstances." Garcia, 63 Wash.App. at 873, 824 P.2d 1220 (citing 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE, § 3.7(d), at 102 (2d ed.1987)).
The issue here is whether the affidavit in support of the warrant provided facts sufficient to convince a reasonable judge that evidence of a crime would be found in the shed. The affidavit offered in support of the warrant alleged that the police had observed Klinger smoking a hand-rolled cigarette in his cabin, smelled marijuana smoke coming from the cabin, and observed Klinger in what appeared to be an intoxicated state. It also offered Klinger's arrest record, of which one arrest was for simple possession of marijuana. The deputy offered no other facts to support a search of the cabin and the storage shed other than to say that he "found it common for persons involved in the distribution of controlled substances to secrete controlled substances within their residences, in vehicles, and in outbuildings." The affidavit provides no facts about the shed, who owns it, how close it is to the cabin, or even that the shed exists at all. While the affidavit clearly provides probable cause to search the cabin, there is no specific evidence linking the storage shed in particular to any evidence of a crime.
The State argues that officer testimony about where marijuana is usually found was sufficient to establish the nexus between the evidence and the shed.
"[T]hat nexus may be established either through direct observation or through normal inferences as to where the articles sought would be located." For that reason, *286 a "warrant may be upheld when the nexus between the items to be seized and the place to be searched rests not upon direct observation, but on the type of crime, nature of the items, and normal inferences [about] where a criminal would likely hide contraband."
... But the general observations must be based on some specific facts which support an inference that the particular individual is involved in drug dealing and evidence of that activity is likely to be found at the place to be searched.
State v. Thein, 91 Wash.App. 476, 485, 957 P.2d 1261 (1998) (footnotes omitted), review granted, 137 Wash.2d 1001, 972 P.2d 467 (1999); see also State v. Gross, 57 Wash.App. 549, 554, 789 P.2d 317, review denied, 115 Wash.2d 1014, 797 P.2d 513 (1990). The evidence in this affidavit was that Klinger was in possession of marijuana in his cabin. There is no evidence that he was involved in the distribution or manufacture of controlled substances. In fact, the State concedes that this was never a drug trafficking case.[2] Thus, these statements about the common behavior of drug traffickers do not establish the required nexus.
Conspicuously missing from the affidavit are any statements by the deputy that it is common for persons who merely possess marijuana to secrete it throughout their premises. At oral argument, the State urged the court to edit the affidavit so that it would leave only the statements that will support the warrant. The only possible reference to persons in possession is on page four of the affidavit, where the deputy states:
I have found that it is common for persons involved in the use and sale of controlled substances to secrete controlled substances and records, concerning the sale and distribution of the substances in and about their residences and property, to include unattached buildings and vehicles, and to actually bury their substances and/or proceeds on the property of their residences, for the purpose of foregoing discovery by law enforcement, and/or persons that might intend to steal their substances.
(emphasis added). But even this reference is focused on the distribution of drugs, rather than mere possession. The State wants us to "redact" the portions of this paragraph that relate to drug dealing so that it reads as follows:
I have found that it is common for persons involved in the use and sale of controlled substances to secrete controlled substances and records, concerning the sale and distribution of the substances in and about their residences and property, to include unattached buildings and vehicles, and to actually bury their substances and/or proceeds on the property of their residences, for the purpose of foregoing discovery by law enforcement, and/or persons that might intend to steal their substances.
But we are not in the business of re-writing affidavits. In order to read the affidavit as the State suggests, we must find some reason to believe that this meaning was intended. We do not. The first sentence says "use and sale," not use or sale, and not just use. And the context indicates that the deputy was talking about the sale of drugs, not mere possession; the paragraph addresses looking for "records of sale or distribution" and "the proceeds of drug sales." Furthermore, if the deputy had meant mere possession, we would expect to see this reflected in the paragraphs following this one we do not. Every other paragraph is directed only at drug sale, manufacturing, or distribution.[3] Therefore, we *287 decline to re-arrange the words in this affidavit to make them say something that was clearly not intended.
The State also argues that it need not show allegations that evidence would be found in the shed specifically because once they have shown probable cause to search the house, they are entitled to search the entire premises. In support of its argument, the State cites two cases dealing with marijuana grow operations. See State v. Helmka, 86 Wash.2d 91, 542 P.2d 115 (1975) (growing marijuana plant seen through an apartment window justified search of entire premises); State v. Christiansen, 40 Wash.App. 249, 252-53, 698 P.2d 1059 (1985) (aerial sighting of marijuana growing on the property was sufficient to justify search of entire "premises," including the house on the property). Those cases that have validated a search warrant for the entire premises without particularized suspicion for each building are drug manufacturing (or marijuana growing) and drug trafficking cases. The scope of a search for evidence of a drug distribution operation is vastly different from a mere possession case. The court in Gross, 57 Wash.App. at 553, 789 P.2d 317, espoused this view, stating that searches in drug trafficking cases may be broader because:
(1) drug trafficking is a much greater evil than drug use, increasing the governmental justification to search, and (2) if the homes of drug users could be searched as readily as the homes of drug traffickers, a much greater invasion of privacy would result.
Granting a greater scope for searches in drug trafficking cases is justified by the general premise of warrant review, which holds that:
[A] warrant may be upheld when the nexus between the items to be seized and the place to be searched rests not upon direct observations, but on the type of crime, nature of the items, and normal inferences where a criminal would likely hide contraband.
Gross, 57 Wash.App. at 554, 789 P.2d 317 (citing United States v. Dubrofsky, 581 F.2d 208, 213 (9th Cir.1978)). But even assuming that the home of a drug trafficker is to be accorded less privacy than a drug user, this case clearly involves a drug user. The affidavit contained no facts upon which the issuing judge could conclude that Klinger was a drug trafficker and the State conceded in oral argument that Klinger was and is not a drug trafficker.
When we apply the nexus requirement to a drug possession case, where there is no evidence of drug trafficking, the scope of the search does not reasonably extend to the entire premises merely by reference to the type of crime. There must be some facts to connect outbuildings or the rest of the property to the crime. See State v. Dalton, 73 Wash.App. 132, 139-40, 868 P.2d 873 (1994). There are no such facts in this case. Therefore, the affidavit must fail and the drugs found in the shed should have been suppressed.
Because there is at least a reasonable probability that a motion to suppress would have been granted, defense counsel's error did prejudice Klinger. Thus, defense counsel's failure to bring the motion to suppress satisfies both prongs of the Strickland test and constitutes ineffective assistance of counsel.
II. APPEAL ISSUES
We need not address the arguments Klinger raised in his direct appeal, including insufficient evidence of constructive possession, prosecutorial misconduct, and the improper admission of evidence, because of our result on the ineffective assistance counsel issue.
*288 Furthermore, because the only evidence was the marijuana found in the shed, a new trial is unlikely.
Klinger's PRP is granted and the conviction is reversed.
ARMSTRONG, J., and HUNT, J., concur.
NOTES
[1] There is some question as to whether the test for prejudice enunciated in McFarland and Strickland has been modified by the U.S. Supreme Court. The recent case of Strickler v. Greene, ___ U.S. ___, 119 S.Ct. 1936, 1952, ___ L.Ed.2d ___ (1999) stated the following rule:
[The defendant] must convince us that "there is a reasonable probability" that the result of the trial would have been different if the [error had not occurred]. As we stressed in Kyles [v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)]: "[T]he adjective is important. The question is not whether the defendant would more likely than not have received a different verdict [without the error], but whether [with the error] he received a fair trial, understood as a trial resulting in a verdict worthy of confidence."
(emphasis added.) Although both Strickler and Kyles are discussing the standard for the materiality of exculpatory evidence wrongfully withheld from the defense by the prosecution, these cases may still impact the test for prejudice because Strickland held that the test for prejudice in ineffective assistance of counsel cases "finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution." 466 U.S. at 694 [104 S.Ct. 2052]. But while we note this possible change in the law, we find that this change does not impact our result in this case. Under either the Strickland or the Strickler test, the error made by Klinger's counsel did result in prejudice.
[2] The prosecutor conceded at oral argument that there was no evidence of trafficking because Klinger lived modestly in an isolated cabin without electricity with no trappings of wealth.
[3] The affidavit in this case is a tribute to modern personal computers. It begins by listing all of the items that the deputy has "good and sufficient reason to believe" are on the premises: There is a page of lists that has six headings, including "items used to facilitate the manufacturing, and/or distribution and/or packaging of marijuana," to "[r]ecords relating to the transportation, ordering, manufacturing, possession, sale, transfer and importation of controlled substances...." It refers to books, invoices, records of real estate transactions, utility bills, money wrappers, photographs of co-conspirators, none of which applies in this case. The affidavit contains two pages of paragraphs concerning what he has found common for persons who deal in and distribute illicit drugs to do within their residence. These include: to divide controlled substances into smaller quantities, to secrete it in outbuildings, to keep records of their crop growing, to disguise their assets, to have records of avoiding C.T.R. requirements, to have assets taken in trade, to maintain cryptic records of drugs they have given on assignment, to use computers, and to have weapons. The prosecutor plainly admitted that the bulk of the affidavit did not pertain to Mr. Klinger because this was not a distribution case. We do not favor this type of affidavit because it imparts no information or legitimate inferences from the possession of marijuana. Affidavits supporting search warrants should be particular about the crime involved. This affidavit proves that the computer must not be used in place of common sense.
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975 F.2d 1550
Lacy (Albert)v.General Electric Company, National Labor Relations Board,Chairman, Kemp (Evan J.), City of Philadelphia, Commonwealthof Pennsylvania, International Union of Electrical, Radioand Machine Workers, Local 119
NO. 92-1226
United States Court of Appeals,Third Circuit.
Aug 06, 1992
Appeal From: E.D.Pa.,
Buckwalter, J.
1
AFFIRMED.
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03/18/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 5, 2019 Session
STEPHEN TEAGUE ET AL. v. SHANE BRUCE
Appeal from the Circuit Court for Campbell County
No. 16616 John D. McAfee, Judge
No. E2018-02104-COA-R3-CV
This is an appeal from a final order granting the petition, filed by the appellees, Stephen
Teague, M.D., Mark Rasnake, M.D., University Infectious Disease, Lori Staudenmaier,
D.O., and UT Family Physicians LaFollette, which sought a permanent restraining order
against the appellant, Shane Bruce. The final order denying the pro se appellant’s motion
to set aside the judgment, which the Trial Court treated as a motion for new trial, was
entered on January 22, 2018. The appellant did not file his Notice of Appeal until
November 21, 2018, more than thirty (30) days from the date of entry of the final order.
The appellees filed a motion to dismiss this appeal arguing that the Notice of Appeal was
not timely filed. We conclude that the appellees’ motion is well-taken and that we have
no jurisdiction to consider this appeal.
Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed
JOHN W. MCCLARTY, J., D. MICHAEL SWINEY, C.J., AND CHARLES D. SUSANO, JR., J.
Shane Bruce, LaFollette, Tennessee, appellant, pro se.
Edward G. White, II and Joshua J. Bond, Knoxville, Tennessee, for the appellees.
MEMORANDUM OPINION1
1
Rule 10 of the Rules of the Court of Appeals provides as follows:
This Court, with the concurrence of all judges participating in the case,
may affirm, reverse or modify the actions of the trial court by
memorandum opinion when a formal opinion would have no
precedential value. When a case is decided by memorandum opinion it
shall be designated “MEMORANDUM OPINION,” shall not be
published, and shall not be cited or relied on for any reason in any
unrelated case.
Pursuant to the requirements of Rule 13(b) of the Tennessee Rules of Appellate
Procedure, we have reviewed the motion to dismiss, as well as the response thereto and
the appellant’s premature brief, together with all accompanying documents, and have
determined that the Notice of Appeal was insufficient to invoke our appellate jurisdiction
to review the final judgment in the proceedings below. The only arguments advanced by
the appellant, in both his premature brief and his response to the motion to dismiss, in
support of his bid to have this appeal decided on the merits are that he never received the
Trial Court’s January 22, 2018 final order and that this appeal was brought pursuant to
Rule 60 of the Tennessee Rules of Civil Procedure, which provides a mechanism for
obtaining relief from a final judgment.
In order to be timely, a notice of appeal must “be filed with the clerk of the
appellate court within 30 days after the date of entry of the judgment appealed from.”
Tenn. R. App. P. 4(a). “The thirty-day time limit for filing a notice of appeal is
mandatory and jurisdictional in civil cases.” Albert v. Frye, 145 S.W.3d 526, 528 (Tenn.
2004); see also Cobb v. Beier, 944 S.W.2d 343, 344 n.2 (Tenn. 1997). If a notice of
appeal is not filed in a civil case in a timely fashion from the date of entry of the final
judgment, we are not at liberty to waive the procedural defect and must dismiss the
appeal. See Arfken & Assocs., P.A. v. Simpson Bridge Co., Inc., 85 S.W.3d 789, 791
(Tenn. Ct. App. 2002); Am. Steinwinter Investor Group v. Am. Steinwinter, Inc., 964
S.W.2d 569, 571 (Tenn. Ct. App. 1997); Jefferson v. Pneumo Services Corp., 699 S.W.2d
181, 184 (Tenn. Ct. App. 1985). In addition, as the Advisory Commission’s Comments to
Rule 4(a) state, nothing in the rules of appellate procedure “or any other rule” allows the
time for filing a notice of appeal “to be extended beyond the specified 30 days,” although
in appropriate circumstances an otherwise untimely appeal may be taken by first securing
relief from the trial court pursuant to Rule 60 of the Tennessee Rules of Civil Procedure.
Tenn. R. App. P. 4(a), Advisory Comm’n Comment. However, such relief “is generally
granted in only the most extraordinary circumstances,” and “usually takes the form of
vacating the original final judgment and then re-entering it thus causing the thirty day
period within which to file a notice of appeal to begin to run again.” Jefferson, 699
S.W.2d at 184-85 (Tenn. Ct. App. 1985). While it appears from the Notice of Appeal that
the initiation of this appeal may have been an attempt by the appellant to obtain relief
from the final judgment pursuant to Rule 60,2 we reiterate that relief pursuant to Rule 60
must be obtained from the Trial Court and not this Court.
Accordingly, we lack jurisdiction to consider this appeal. The motion to dismiss is
granted, and this appeal is dismissed. Costs on appeal are taxed to the appellant, for
which execution may issue if necessary.
PER CURIAM
2
The Notice of Appeal indicated the type of appeal as “relief.”
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219 Ga. 179 (1963)
132 S.E.2d 74
HUDON et al.
v.
NORTH ATLANTA et al.
22072.
Supreme Court of Georgia.
Argued June 10, 1963.
Decided July 3, 1963.
Bagwell & Hames, James A. Bagwell, for plaintiffs in error.
T. B. Higdon, contra.
DUCKWORTH, Chief Justice.
This case falls within the jurisdiction of the Court of Appeals since it is one for a declaration of the rights of the parties and shows that "the status of the respective parties pending the adjudication" should be maintained by the issuance of a temporary injunction. Felton v. Chandler, 201 Ga. 347 (39 SE2d 654); Milwaukee Mechanics' Ins. Co. v. Davis, 204 Ga. 67 (48 SE2d 876); Griffin v. Hardware Mut. Ins. Co., 212 Ga. 130 (91 SE2d 10). To make a case one for equity jurisdiction it must contain allegations and prayers for equitable relief. Decatur County v. Praytor, Howton & Wood Contr. Co., 36 Ga. App. 611 (137 SE 918); City of Summerville v. Georgia Power Co., 204 Ga. 276, 277 (3) (49 SE2d 661); Odom v. Atlanta & West Point R. Co., 204 Ga. 328 (1) (49 SE2d 821); U. S. Cas. Co. v. Georgia Sou. R. Co., 212 Ga. 569 (94 SE2d 422); Hollinshed v. Shadrick, 212 Ga. 624 (94 SE2d 705).
While there is a prayer for permanent injunction, the allegations are insufficient to authorize the grant of such relief, and if such a prayer alone determined jurisdiction, litigants could require *180 this court to review every case as being within the jurisdiction of the court as an equity matter by adding such a spurious prayer. Accordingly, the writ of error is
Transferred to the Court of Appeals. All the Justices concur.
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25 Cal.Rptr.3d 851 (2005)
127 Cal.App.4th 653
Mary ROBBINS, et al., Plaintiffs and Appellants,
v.
The REGENTS OF the UNIVERSITY OF CALIFORNIA, et al., Defendants and Respondents.
No. B169470.
Court of Appeal, Second District.
March 16, 2005.
*852 Law Offices of Tabone, Derek L. Tabone, for Plaintiffs and Appellants.
*853 Cynthia Vroom; Lewis Brisbois Bisgaard & Smith, Alan R. Zuckerman and William Archer, Los Angeles, for Defendants and Respondents.
MOSK, J.
INTRODUCTION
Plaintiffs and appellants Mary Robbins, individually (Mary), and Mary Robbins as guardian ad litem for both Carl Robbins (Carl) and Andy Robbins (Andy)[1] appeal from a judgment in favor of defendants and respondents The Regents of the University of California (the Regents) (erroneously sued as Cooperative Extension, University of California) and Rachel Surls (Surls). The primary issue presented in this appeal is whether the administrator of the 4-H program in Los Angeles County violated the federal constitutional right to free speech (U.S. Const., 1st Amend.) of two 4-H club members and an adult "community leader" of the club when the administrator suspended them while she investigated whether the members, who participated in making a film depicting violent behavior, posed a risk of violent behavior. In light of the Ninth Circuit's decision in LaVine v. Blaine School Dist. (9th Cir.2001) 257 F.3d 981 (LaVine), in which the court held there was no federal constitutional violation under similar circumstances, we affirm the judgment in favor of defendants. In addition, we affirm the award of attorney fees to defendants.
BACKGROUND
4-H is the youth education branch of the Cooperative Extension Service, a program of the United States Department of Agriculture. The purpose of the 4-H program is "to assist children in developing as community leaders and involving themselves in community-based action in positive ways." In California, the 4-H program is part of the University of California Division of Agricultural and Natural Resources (ANR), and is administered by the University of California's Cooperative Extension. Surls is the County Director of the University of California Cooperative Extension for Los Angeles County. As county director, Surls is responsible for administration of, among other programs, the 4-H program in Los Angeles County.
In 2001 and 2002, several members of a 4-H club in Los Angeles County, known as the Eastside Kids 4-H Club (the Club), participated in a film making project. The members, working with an adult advisor, wrote, acted in, and filmed a video in which two teenagers, who had been picked on and teased by other teenagers, go to a party attended by the other teenagers and kill them with machete-type knives. Carl and Andy, who were high school students and members of the Club, participated in the film making project; their mother, Mary, who was a "community leader" of the Club, had no involvement in the project. The members submitted the video to the San Fernando Valley Fair for judging.
In early June, 2002,[2] the Board of the San Fernando Valley Fair (Board) notified 4-H that some 4-H members had submitted a video that the Board refused to judge due to the video's violent content. The Board released a copy of the video to Surls on June 6. After viewing the video, Surls became concerned that the 4-H *854 members who made the video may be risks for committing actual violent behavior, and she arranged a conference call on June 7 with four other ANR officials to discuss her concerns. The other officials concurred that immediate action had to be taken given the violent nature of the video.
On June 10, Surls wrote to the members involved in the project, the adult project leader, and two adult "community leaders" of the Club, notifying them that they were suspended pending an investigation into the making of the video. That investigation included interviewing those members who agreed to be interviewed, consulting with a psychologist who specializes in workplace and youth violence (and who had consulted on the highly publicized Columbine school shooting of April 1999 in Littleton, Colorado, and other cases), and consulting with the juvenile division of the local police department. The interviews with the involved members began the week of June 10, and by July 2, the suspensions of all members who came forward to be interviewed had been lifted.
Carl and Andy did not come forward to be interviewed before July 2. Instead, on June 21, Mary filed the complaint in this action alleging on behalf of herself and Carl and Andy a cause of action for injunctive and monetary relief under section 1983 of title 42 of the United States Code (section 1983) on the ground that The Regents violated their rights to freedom of expression, freedom of association, and due process under the federal Constitution.[3] (U.S. Const., 1st, 5th, & 14th Amends.) On that same day, Mary individually and on behalf of Carl and Andy brought an ex parte application for a temporary restraining order and a preliminary injunction. The trial court continued the hearing on the ex parte application to July 2, at which time it denied the application, stating, "I am not persuaded that the plaintiffs will win this lawsuit. In fact, I am persuaded that the plaintiffs are likely to lose the lawsuit." On July 10, Carl and Andy were interviewed as part of the investigation, and their suspensions were lifted. Mary's suspension was lifted on July 19.
On October 4, the trial court sustained The Regents' demurrer to the complaint on the ground that The Regents is not a "person" and thus is not subject to a claim for relief under section 1983. Surls, who remained as a defendant, filed a motion for summary judgment on October 31, to be heard on January 17, 2003, in which she asserted that the complaint fails as a matter of law because she is entitled to qualified immunity. The motion was supported by Surls's declaration, in which Surls described how she learned of the film making project, what actions she took after viewing the video, and her reasons for taking those actions. Five weeks after the motion was served, plaintiffs served a notice to take Surls's deposition on December 18. On December 10, Surls objected to the notice and refused to appear at the deposition, on the ground that she was entitled to have her qualified immunity defense determined before she had to submit to discovery. Plaintiffs did not move to compel Surls to appear. Instead, on January 6, 2003, plaintiffs filed with their opposition to Surls's summary judgment motion an objection to Surls's declaration, on the ground that Surls refused to appear at her deposition. Plaintiffs also purported to dispute most of the facts set forth in *855 Surls's separate statement of undisputed facts in support of the motion, based solely on their objection to Surls's declaration. Plaintiffs did not cite to any evidence to raise disputed issues with regard to the facts set forth in Surls's separate statement.
The summary judgment motion was heard on April 25, 2003, after numerous continuances, at which time the trial court overruled all of plaintiffs' objections to Surls's declaration and granted Surls's motion, finding there was "no evidence of [a] violation of any constitutional right." The trial court entered judgment in favor of defendants, and defendants moved under section 1988 of title 42 of the United States Code (section 1988) for the attorney fees they incurred after plaintiffs' motion for a preliminary injunction was denied and Carl's and Andy's suspensions were lifted. The court granted the motion and awarded Surls and The Regents fees in the amount of $5,404. Plaintiffs appeal from the judgment and the order awarding attorney fees.
DISCUSSION
A. Plaintiffs' Objection to Surls's Declaration
Plaintiffs contend they were denied due process when the trial court overruled their objection to Surls's declaration and considered the declaration in granting Surls's summary judgment motion, because plaintiffs were denied an opportunity to test by discovery the evidence presented against them. Plaintiffs forfeited this assertion of error.
The Code of Civil Procedure provides that a plaintiff may serve a notice of deposition on a defendant who has appeared in the action, and if the defendant fails to appear, the plaintiff may move to compel the defendant to appear for deposition. (Code Civ. Proc., § 2025, subds. (b)(2), (j)(3).)[4] The Code of Civil Procedure also provides that a party opposing a summary judgment motion may file an application to continue the motion to obtain discovery necessary to oppose it. (§ 437c, subd. (h).)
During the four months that elapsed between Surls's refusal to appear for deposition and the hearing on Surls's summary judgment motion, plaintiffs did not move to compel Surls to appear for her deposition or move for a continuance of the summary judgment motion for the purpose of conducting further discovery. Plaintiffs do not offer any explanation for their failure to move to compel or to move for a continuance for further discovery. Because they "did not take advantage of opportunities to avoid in the trial court the problem about which they now complain on appeal, they have [forfeited] any claim of a due process violation." (Bartold v. Glendale Federal Bank (2000) 81 Cal.App.4th 816, 828, 97 Cal.Rptr.2d 226; see also Zamudio v. City and County of San Francisco (1999) 70 Cal.App.4th 445, 454, 82 Cal.Rptr.2d 664.)
B. Propriety of Summary Judgment
Surls sought summary judgment on the ground that, as a government official, she was entitled to qualified immunity from plaintiffs' claim against her. (See Harlow v. Fitzgerald (1982) 457 U.S. 800, 806, 102 S.Ct. 2727, 73 L.Ed.2d 396 [government officials are entitled to some form of immunity either absolute or qualified from suits for damages].) The trial court *856 agreed that Surls was entitled to immunity, finding there was no evidence of a constitutional violation (and even if there was such a violation, it was not one of clearly established law), by virtue of LaVine, supra, 257 F.3d 981, a case the trial court found was "virtually indistinguishable" from the present case. Plaintiffs contend the summary judgment was improper (1) because qualified immunity does not bar actions for injunctive relief, and their complaint sought injunctive relief as well as damages, and (2) because there were triable issues of fact precluding summary judgment on the basis of qualified immunity. Because we hold the undisputed facts establish there was no constitutional violation as a matter of law and thus no basis for injunctive relief under section 1983 we need not address whether qualified immunity precludes plaintiffs' claim for injunctive relief.
1. Standard of Review
"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... A defendant [moving for summary judgment] bears the burden of persuasion that `one or more elements of' the `cause of action' in question `cannot be established,' or that `there is a complete defense' thereto.'" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, italics and footnotes omitted.) If the moving party carries that burden, the burden of production shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Ibid.) On appeal from a summary judgment, we make "an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law." (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222, 38 Cal.Rptr.2d 35.)
2. Analysis
The United States Supreme Court has instructed that "[a] court required to rule upon the qualified immunity issue must consider ... this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the [government official's] conduct violated a constitutional right? ... [¶] ... If no constitutional right would have been violated were the allegations established, there is no necessity for further inquires concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow [government officials] to avoid the burden of trial if qualified immunity is applicable." (Saucier v. Katz (2001) 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272.)
In the present case, the answer to the threshold question is "No" the facts plaintiffs allege do not show that Surls's conduct violated their constitutional rights. Although the answer is the same regardless of which plaintiff is at issue (that is, Mary in her individual capacity, or Mary as guardian ad litem of Carl and Andy), the analysis differs depending upon the identity of the plaintiff.
Plaintiffs allege that Surls punished Mary, Carl, and Andy for exercising their *857 constitutional right to free speech i.e., creating a video as part of a film making project by suspending them from participation in 4-H activities.[5] But plaintiffs admit in their opening brief on appeal that Mary "had no part in the [film making] project." Thus, plaintiffs admit that if Surls punished Mary at all, the punishment was unrelated to any speech or other expressive act by Mary. Accordingly, the section 1983 claim alleged on behalf of Mary in her individual capacity does not allege a violation of Mary's constitutional right to free speech.
Although there is no dispute that Carl and Andy participated in making the video, and that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments" to the federal Constitution (Joseph Burstyn, Inc. v. Wilson (1952) 343 U.S. 495, 502, 72 S.Ct. 777, 96 L.Ed. 1098), it does not follow that, in the context of this case, Surls violated Carl's and Andy's free speech rights when she suspended them while she investigated the making of the video.
To determine whether Surls violated Carl's and Andy's free speech rights, we must determine what those rights are. We are guided in this determination by the Ninth Circuit's decision in LaVine, supra, 257 F.3d 981, a case in which a high school temporarily expelled a student after the student wrote a violent poem, while the school determined whether the student posed a threat to the safety of himself or others at the school. The Ninth Circuit began its analysis by noting that "we live in a time when school violence is an unfortunate reality that educators must confront on an all too frequent basis. The recent spate of school shootings have put our nation on edge and have focused attention on what school officials, law enforcement and others can do or could have done to prevent these kinds of tragedies." (Id. at p. 987.) The court explained, however, that "the Constitution sets limits as to how far [schools] can go ... [and that schools must] achieve a balance between protecting the safety and well-being of their students and respecting those same students' constitutional rights." (Ibid.)[6]
The Ninth Circuit examined the line of United States Supreme Court cases *858 defining the scope of students' First Amendment right to free speech. The court explained that under those cases, the students' First Amendment rights "`"are not automatically coextensive with the rights of adults in other settings"' and must be `"applied in light of the special characteristics of the school environment."'" (LaVine, supra, 257 F.3d at p. 988, quoting Hazelwood Sch. Dist. v. Kuhlmeier (1988) 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (Hazelwood); Bethel Sch. Dist. No. 403 v. Fraser (1986) 478 U.S. 675, 106 S.Ct. 3159, 92 L.Ed.2d 549 (Fraser); and Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (Tinker).) The court identified three different kinds of student speech, "each of which is governed by different Supreme Court precedent: [¶] (1) vulgar, lewd, obscene and plainly offensive speech is governed by Fraser; [¶] (2) school-sponsored speech is governed by Hazelwood; and [¶] (3) speech that falls into neither of these categories is governed by Tinker." (LaVine, supra, 257 F.3d at pp. 988-989.)
Finding that the student's speech at issue fell into the third category, the Ninth Circuit explained that, under Tinker, supra, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, "school officials must justify their decision [to temporarily expel the student] by showing `facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.'" (LaVine, supra, 257 F.3d at p. 989.) The court listed several facts that supported the school's decision, but the court found the "most important[]" fact was the student's poem itself. (Id. at p. 990.) The poem was "filled with imagery of violent death and suicide. At its extreme it can be interpreted as a portent of future violence, of the shooting of James' fellow students. Even in its most mild interpretation, the poem appears to be a `cry for help' from a troubled teenager contemplating suicide. Taken together and given the backdrop of actual school shootings, we hold that these circumstances were sufficient to have led school authorities reasonably to forecast substantial disruption of or material interference with school activities specifically, that James was intending to inflict injury upon himself or others." (Ibid.) The court noted that the school allowed the student to return to school as soon as he was evaluated by a psychiatrist and found not to be a threat to himself or others, and thus, the court held that the school did not violate the First Amendment by temporarily expelling the student. (Ibid.)
In the present case, as in LaVine, supra, 257 F.3d 981, the person who made the decision to temporarily suspend plaintiffs was shown an expressive work of art in LaVine it was a poem, and here it was a video that raised concerns about the possibility of future violence. Here, as in LaVine, that person suspended plaintiffs for a short period of time while she conducted an investigation to determine whether plaintiffs and the other participants in the film making project were a threat to others. Under the reasoning set forth in LaVine, this temporary suspension did not violate plaintiffs' First Amendment rights.
Plaintiffs argue, however, that LaVine, supra, 257 F.3d 981, does not apply because *859 (1) LaVine was decided in the context of a school environment, unlike this case involving a 4-H club; (2) there were other facts that supported the school's decision in LaVine, but no such facts exist here; (3) the school in LaVine had a written policy regarding discipline, and 4-H did not have such a policy; and (4) the court had read the poem at issue in LaVine, but the trial court in this case had not viewed the video. These differences between LaVine and the present case, however, do not warrant a different conclusion regarding whether there was a First Amendment violation.
Although a 4-H club is not a school, it is an educational program for school children, administered by the University of California. The primary concern described in LaVine, supra, 257 F.3d 981 the safety of other students attending school is equally present in a 4-H club, where school children regularly meet for educational purposes. Thus, the 4-H club in this case is the functional equivalent of the school in LaVine. And even though the school's decision in LaVine was supported by facts in addition to the content of the poem itself, the Ninth Circuit found the content of the poem to be the most important fact, particularly in light of recent school shootings involving "telltale `warning signs'" (id. at p. 987) of future violence.
Although it is true that the trial court in the present case had not viewed the video at issue, there was no dispute as to its content. Moreover, the trial court gave plaintiffs an opportunity to provide a copy of the video and offered to stop the hearing on the summary judgment motion to view the video if plaintiffs believed it was necessary, but plaintiffs did not provide a copy to the court or request the court to view the video.
Finally, the fact that the school in LaVine had a written disciplinary policy was not a factor in the Ninth Circuit's holding that there was no First Amendment violation. Instead, the court found that the actions the school took in deciding to temporarily expel the student show that the school was not trying to discipline him but was instead seeking to protect its students from potential violence. (Id. at p. 991.) Similarly, in this case, it appears from the actions that Surls took when she learned of the video, and the fact that she reinstated the members after they were interviewed and determined not to pose a safety threat, Surls's purpose was to protect the other members of the Club rather than to discipline the members involved in the film making project.
Because the trial court correctly found there was no First Amendment violation in the present case, no further inquiry into qualified immunity was required. Therefore, the court did not err in granting summary judgment in favor of Surls.
C. Award of Attorney Fees
The trial court awarded defendants the attorney fees they incurred after the court denied plaintiffs' motion for a preliminary injunction and plaintiffs' suspensions were lifted, finding that plaintiffs' continued prosecution of the lawsuit was unreasonable and that therefore defendants were entitled to attorney fees under section 1988. Plaintiffs challenge the award of attorney fees, arguing that their lawsuit was neither frivolous nor prosecuted in bad faith.
Section 1988 provides, in relevant part, "In any action or proceeding to enforce a provision of section[] ... 1983, ... the court, in its discretion, may allow *860 the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs...." (42 U.S.C. § 1988(b).) The United States Supreme Court has imposed a limitation, however, on the trial court's discretion to award fees when the prevailing party is a defendant. In such cases, the court may award fees only if it finds that the plaintiff's "`claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.'" (Hughes v. Rowe (1980) 449 U.S. 5, 15, 101 S.Ct. 173, 66 L.Ed.2d 163, italics added.) We review the trial court's award of attorney fees under section 1988 for an abuse of discretion. (McFadden v. Villa (2001) 93 Cal.App.4th 235, 237, 113 Cal.Rptr.2d 80; Franceschi v. Schwartz (9th Cir.1995) 57 F.3d 828, 830.)
In the present case, the trial court found that the law supporting the summary judgment "is really pretty clear" and that plaintiffs continued to litigate their claim even though "the activity complained of by the plaintiffs was remedied in whole or in part pretty quickly." Plaintiffs dispute the trial court's assessment that the law supporting the judgment was clear, noting that the "extensive briefs," "lengthy arguments," delays in ruling on the summary judgment motion, and the trial court's extensive discussion of its rationale for granting the summary judgment demonstrate that their claim was not so utterly devoid of merit as to justify attorney fees. But as the trial court explained at the hearing on the attorney fee motion, "while it is clear that at times the amount of attention that a court gives to an issue can be evidence of its bona fides, I'm not sure that's true in this department. I take a lot of time on a lot of things because I care about giving people respect and giving them a hearing. [¶] Therefore, I don't automatically assume that the amount of time I spend on an issue is an [sic] evidence of its viability as an issue."
We agree with the trial court that in light of LaVine, supra, 257 F.3d 981, plaintiffs' assertion of a violation of their First Amendment right to free speech was unreasonable and that plaintiffs' continued prosecution of their claim after their suspensions were lifted was likewise unreasonable. Therefore, the trial court did not abuse its discretion in awarding defendants their attorney fees.
DISPOSITION
The judgment and order granting attorney fees are affirmed. Defendants shall recover their costs on appeal.
We concur: ARMSTRONG, Acting P.J., and KRIEGLER, J.[*]
NOTES
[1] We refer to plaintiffs by their first names for ease of reference, and not out of disrespect.
[2] Further references to dates are to the year 2002 unless otherwise specified.
[3] At the time the complaint was filed, the only defendant was The Regents (erroneously sued as Cooperative Extension, University of California). Surls was added as a defendant on July 12.
[4] As of July 1, 2005, Code of Civil Procedure sections 2025.210, subdivision (b), 2025.450. Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
[5] Although the complaint alleged violations of the federal constitutional rights to free speech, freedom of association, and due process, plaintiffs limit their argument on appeal to an alleged violation of the right to free speech under the First Amendment to the United States Constitution. Accordingly, plaintiffs have abandoned their claims based upon alleged violations of the right to freedom of association or due process. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785, 79 Cal.Rptr.2d 273.)
[6] The California Supreme Court recently commented on this need to balance the schools' interest in protecting the safety of their students and the students' constitutional right to freedom of expression in a case involving the prosecution of a student for criminal threats arising from a poem the student had written. (In re George T. (2004) 33 Cal.4th 620, 16 Cal.Rptr.3d 61, 93 P.3d 1007.) The Supreme Court explained, "This case implicates two apparently competing interests: a school administration's interest in ensuring the safety of its students and faculty versus students' right to engage in creative expression. Following Columbine, Santee, and other notorious school shootings, there is a heightened sensitivity on school campuses to latent signs that a student may undertake to bring guns to school and embark on a shooting rampage. Such signs may include violence-laden student writings. For example, the two student killers in Columbine had written poems for their English classes containing `extremely violent imagery.' [Citation.] Ensuring a safe school environment and protecting freedom of expression, however, are not necessarily antagonistic goals." (Id. at p. 639, 16 Cal.Rptr.3d 61, 93 P.3d 1007.) Although the court held that the student's poem did not constitute a criminal threat, it noted, "[c]ertainly, school personnel were amply justified in taking action" after they were notified about the violent content of the student's poem. (Ibid.) The court explained, however, that that issue was not before it. (Ibid.)
[*] Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice pursuant to article VI, section 6, of the California Constitution.
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HART PRENDERGAST v. COMMISSIONER
OF MOTOR VEHICLES
(AC 38895)
Lavine, Keller and Pellegrino, Js.
Argued January 5—officially released April 25, 2017
(Appeal from Superior Court, judicial district of New
Britain, Schuman, J.)
Malaina J. Sylvestre, certified legal intern, with
whom was Kristi Thomaston, for the appellant
(plaintiff).
Christine Jean-Louis, assistant attorney general,
with whom, on the brief, was George Jepsen, attorney
general, for the appellee (defendant).
Opinion
PELLEGRINO, J. The plaintiff, Hart Prendergast,
appeals from the judgment of the Superior Court dis-
missing his appeal from the decision of the defendant,
the Commissioner of Motor Vehicles, suspending his
license to operate a motor vehicle pursuant to General
Statutes § 14-227b. The plaintiff claims that the court
improperly (1) found that there was substantial evi-
dence in the record to support a finding that there was
probable cause to arrest him for operating a motor
vehicle while under the influence of alcohol or intox-
icating liquor or drugs, and (2) concluded that his due
process rights were not violated when the hearing offi-
cer continued the hearing to subpoena the police offi-
cers involved in the plaintiff’s arrest. We affirm the
judgment of the court.
The following facts are relevant to our disposition of
this appeal. On March 27, 2015, at approximately 10:46
p.m., Trooper Josue J. Dorelus of the state police
responded to a two car collision on the southbound
side of Route 15 near exit sixty-one in Hamden. While
responding, he learned that one of the vehicles had
left the scene of the accident. Upon arrival, Dorelus
observed damage to the right side of the remaining
vehicle. The operator of the vehicle told Dorelus that
his vehicle was sideswiped by what he believed to be
a blue sedan.
Shortly before midnight that night, Hamden police
received a call about a suspicious vehicle on Marietta
Street in Hamden. The caller had seen the car ‘‘come
in and park.’’ Hamden police responded and observed
the car with four flat tires, parked in the middle of the
road with the operator asleep at the wheel.
When Hamden police put out a dispatch about the
vehicle, the state police responded, and the officers
concluded that they had located a vehicle matching
the description of the evading vehicle from the earlier
accident on Route 15. Dorelus received a state police
dispatch about the matter at 12:11 a.m. At approxi-
mately 12:30 a.m., Dorelus arrived at the scene, which
was the intersection of Marietta Street and Dixwell
Avenue in Hamden, a location immediately off Route
15. Upon Dorelus’ arrival, Hamden police informed him
that they had found a blue Nissan Altima that appeared
to have been in a recent collision. They added that the
operator, who appeared to be incapacitated and under
the influence of alcohol, was sitting in the driver’s seat
with the key fob in his pocket. The motor, however,
was not running at the time.
Dorelus observed that the damage to the vehicle was
consistent with the description provided by the accident
victim. The car was in a stopped position facing south-
bound. The person in the operator’s seat, later identified
as the plaintiff, told Dorelus that he was traveling from
Meriden and arrived at the location. Dorelus observed
that the plaintiff had ‘‘a disheveled appearance’’ and
had vomit on the collar of his jacket. As the plaintiff
spoke, Dorelus detected an odor of alcohol emanating
from his breath, and his eyes appeared to be bloodshot
and glassy.
The plaintiff subsequently failed one standardized
field sobriety test and declined to take two others. At
approximately 12:45 a.m., Dorelus placed the plaintiff
under arrest for operating a motor vehicle under the
influence of alcohol. At the police station, the plaintiff
verbally refused to submit to a breath test for alcohol.
On May 6 and May 27, 2015, the Department of Motor
Vehicles conducted a hearing to determine whether to
suspend the plaintiff’s license pursuant to § 14-227b.1
On May 27, 2015, the hearing officer rendered a written
decision finding that the plaintiff was operating a motor
vehicle, that there was probable cause to arrest the
plaintiff for operating under the influence, and that the
plaintiff refused to submit to a chemical test. On the
basis of these findings, as well as the fact that the
plaintiff had a prior license suspension, the hearing
officer suspended the plaintiff’s license for one year.
See General Statutes § 14-227b (i) (2) (C).
The plaintiff appealed from the decision of the hear-
ing officer to the court pursuant to General Statutes
§ 4-183. On appeal, the plaintiff challenged the hearing
officer’s findings (1) that the police officers had proba-
ble cause to arrest him for operating a motor vehicle
while under the influence of intoxicating liquor, and
(2) that he was operating the motor vehicle. The plaintiff
claimed that the administrative record lacked substan-
tial evidence to support these findings. Additionally,
the plaintiff claimed that his right to due process of
law was violated when the hearing officer, over the
plaintiff’s objection, continued the hearing in order to
subpoena the arresting officer. The court affirmed the
hearing officer’s decision and dismissed the plaintiff’s
appeal. This appeal followed. Additional facts will be
set forth as necessary.
We first set forth our standard of review. ‘‘[J]udicial
review of the commissioner’s action is governed by the
Uniform Administrative Procedure Act [(act), General
Statutes §§ 4-166 through 4-189], and the scope of that
review is very restricted. . . . [R]eview of an adminis-
trative agency decision requires a court to determine
whether there is substantial evidence in the administra-
tive record to support the agency’s findings of basic
fact and whether the conclusions drawn from those
facts are reasonable. . . . Neither this court nor the
trial court may retry the case or substitute its own
judgment for that of the administrative agency on the
weight of the evidence or question of fact. . . . Our
ultimate duty is to determine, in view of all of the evi-
dence, whether the agency, in issuing its order, acted
unreasonably, arbitrarily, illegally or in abuse of its dis-
cretion. . . .
‘‘The substantial evidence rule governs judicial
review of administrative fact-finding under the [act].
[See] General Statutes § 4-183 (j) (5) and (6). An admin-
istrative finding is supported by substantial evidence if
the record affords a substantial basis of fact from which
the fact in issue can be reasonably inferred. . . . The
substantial evidence rule imposes an important limita-
tion on the power of the courts to overturn a decision
of an administrative agency . . . .
‘‘It is fundamental that a plaintiff has the burden of
proving that the commissioner, on the facts before him,
acted contrary to law and in abuse of his discretion [in
determining the issue of probable cause]. . . . The law
is also well established that if the decision of the com-
missioner is reasonably supported by the evidence it
must be sustained. . . .
‘‘We have stated that [p]robable cause, broadly
defined, comprises such facts as would reasonably per-
suade an impartial and reasonable mind not merely
to suspect or conjecture, but to believe that criminal
activity has occurred. . . . Reasonable minds may dis-
agree as to whether a particular [set of facts] establishes
probable cause. . . . Thus, the commissioner need
only have a substantial basis of fact from which [it] can
be inferred . . . that the evidence in the administrative
record supported a finding of probable cause with
respect to the plaintiff’s violation of [General Statutes]
§ 14-227a.’’ (Citations omitted; internal quotation marks
omitted.) Murphy v. Commissioner of Motor Vehicles,
254 Conn. 333, 343–44, 757 A.2d 561 (2000).
I
The plaintiff first claims that there was insufficient
evidence in the record to establish that Dorelus had
probable cause to believe that the plaintiff operated his
motor vehicle while under the influence of intoxicating
liquor or drugs in violation of § 14-227a.2 He argues that
because he was not operating his motor vehicle at the
time the police found him, the record lacked substantial
evidence to support a finding that the police had proba-
ble cause to arrest him for operating a motor vehicle
while under the influence. We are not persuaded.
‘‘It is well settled that operating encompasses a
broader range of conduct than does driving.’’ (Internal
quotation marks omitted.) State v. Lee, 138 Conn. App.
420, 434, 52 A.3d 736 (2012), cert. granted on other
grounds, 321 Conn. 911, 136 A.2d 644 (2016). ‘‘[T]here
is no requirement that the fact of operation be estab-
lished by direct evidence.’’ Murphy v. Commissioner
of Motor Vehicles, supra, 254 Conn. 345. Our Supreme
Court has observed that ‘‘[t]here is no distinction
between direct and circumstantial evidence [so] far as
probative force is concerned . . . . In fact, circum-
stantial evidence may be more certain, satisfying and
persuasive than direct evidence.’’ (Citation omitted;
internal quotation marks omitted.) Id., 345 n.14. In order
for an arresting officer to have probable cause to arrest
someone for a violation of § 14-227a, there must be a
‘‘temporal nexus between liquor and operation.’’ Mur-
phy v. Commissioner of Motor Vehicles, 54 Conn. App.
127, 132, 733 A.2d 892 (1999), rev’d, 254 Conn. 333, 757
A.2d 561 (2000).3 ‘‘Although the police officer may draw
any reasonable, logical inferences from the facts
observed, he may not resort to mere speculation or
conjecture, particularly . . . where there is no evi-
dence of a temporal nexus between liquor and opera-
tion.’’ Id.
Applying these standards, we conclude that there is
substantial evidence in the record to support a finding
that Dorelus had probable cause to arrest the plaintiff
for operating a motor vehicle while under the influence
of liquor or drugs. Dorelus could reasonably and logi-
cally infer, on the basis of the facts known to him at
the time of the arrest, that the plaintiff had consumed
alcohol and had operated his motor vehicle. When the
plaintiff was found asleep inside his vehicle, he dis-
played signs of intoxication.4 He admitted that he had
traveled from Meriden to Hamden. The plaintiff’s car
had four flat tires and was parked in the middle of a
street located immediately off Route 15. The car had
damage that was consistent with the description of the
damage to the car sideswiped on Route 15 less than
two hours before. On the basis of these facts, it was
not mere speculation or conjecture for Dorelus to infer
that the plaintiff had operated his vehicle while under
the influence of liquor. Additionally, the damage to the
plaintiff’s vehicle was consistent with the accident that
had occurred less than two hours before the plaintiff
was found by the police, which supports the hearing
officer’s finding that there was a temporal nexus
between the plaintiff’s consumption of liquor and opera-
tion of his vehicle.5 Accordingly, the plaintiff’s first
claim fails.
II
The plaintiff next argues that he was deprived of his
right to due process of law when the hearing officer
continued his case in order to subpoena the police
officers to testify about his arrest. The plaintiff argues
that because the defendant already had rested his case,
the hearing officer lacked the discretion to continue
the case and subpoena the police officers, and that
the plaintiff was thereby deprived of his right to due
process. We disagree.
The following additional facts are relevant to our
analysis of this claim. The initial administrative hearing
for the petitioner’s case took place on May 6, 2015. Only
the hearing officer and counsel for the plaintiff were
present at this hearing. The hearing officer, on behalf
of the defendant, introduced the police reports from
the plaintiff’s arrest. He then stated, ‘‘All right. You’re
up.’’ The plaintiff’s counsel then argued that there was
insufficient evidence of a nexus between operation and
intoxication. The hearing officer responded, ‘‘[s]o, what
the Department [of Motor Vehicles] wants us to do in
these situations is to give the officer one opportunity
to come in and sort of clarify his report when these
type[s] of questions come up; so, I’m going to have to
continue the hearing. We will, on our side, subpoena
the officer.’’ The plaintiff objected on due process
grounds, but a second day of hearings took place on
May 27, 2015, at which Dorelus and the two Hamden
officers testified.
On appeal, the plaintiff asserts that the hearing offi-
cer’s continuation of the case after the defendant had
rested his case violated his right to due process of law.
The plaintiff, however, has failed to point to any statute,
regulation, or case law that would prohibit a hearing
officer from continuing the hearing in order to obtain
additional evidence under these circumstances. On the
contrary, there are statutes and regulations that explic-
itly permit the hearing officer to grant a continuance.
Section 14-227b (g) provides that ‘‘[a]t the request of
[the motorist] or the hearing officer and upon a showing
of good cause, the commissioner may grant one or more
continuances. . . .’’ Additionally, the Department of
Motor Vehicles’ regulations specifically address this sit-
uation by stating that ‘‘[a]t the hearing the commissioner
shall not require the presence and testimony of the
arresting officer, or any other person, but the hearing
officer may make an appropriate order, as authorized
by section 14-110 of the Connecticut General Statutes,
to obtain the testimony of such arresting officer or other
witness, if the same appears necessary to make a proper
finding on one or more of the issues stated in subsection
(g) or (j) of section 14-227b of the Connecticut General
Statutes.’’6 Regs., Conn. State Agencies § 14-227b-18
(a).7 Here, the hearing officer determined that it was
necessary to subpoena the arresting officers in order
to make a proper finding on the issue of probable cause
to arrest for operation under the influence, and appro-
priately continued the hearing pursuant to § 14-227b
(g). The fact that the defendant had ‘‘rested’’ his case
is immaterial to the hearing officer’s ability to continue
the hearing. Unlike the situation in certain criminal
cases, in administrative proceedings there is no rule that
limits or prevents an agency from presenting further
evidence after it has concluded its case. Cf. State v.
Dunbar, 51 Conn. App. 313, 317–20, 721 A.2d 1229
(1998), cert. denied, 247 Conn. 962, 724 A.2d 1126
(1999); Practice Book § 42-35 (3). ‘‘[H]earings before
administrative agencies, such as those before the com-
missioner of motor vehicles, are informal and are not
governed by the strict or technical rules of evidence.’’
(Internal quotation marks omitted.) Santiago v. Com-
missioner of Motor Vehicles, 134 Conn. App. 668, 673,
39 A.3d 1224 (2012). In addition, the plaintiff had notice
of the hearing and the charges, and was afforded a
full opportunity to cross-examine the police officers
following the continuation of the hearing. Accordingly,
the hearing officer acted within the scope of his author-
ity by continuing the plaintiff’s hearing, and the plaintiff
was not deprived of his right to due process of law.
The court, therefore, properly dismissed the appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 14-227b (g) sets forth a four part test for the adminis-
trative agency to assess whether a license suspension is warranted. The
following issues must be found: ‘‘(1) Did the police officer have probable
cause to arrest the person for operating a motor vehicle while under the
influence of intoxicating liquor or any drug or both; (2) was such person
placed under arrest; (3) did such person refuse to submit to such test or
analysis or did such person submit to such test or analysis, commenced
within two hours of the time of operation, and the results of such test or
analysis indicated that such person had an elevated blood alcohol content;
and (4) was such person operating the motor vehicle. . . .’’
2
The plaintiff challenges the findings made by the hearing officer under
both the first and fourth prongs of the four part test set forth in § 14-227b
(g) under the same theory that there was insufficient evidence to establish
that he operated his vehicle or that there was probable cause for the police
officer to arrest him for operating his vehicle while intoxicated. Because
we conclude that there was sufficient evidence to support a finding of
probable cause to arrest for operating under the influence, our analysis
disproves the plaintiff’s theory as it applies to either the first or fourth
prongs of § 14-227b (g).
3
Although our Supreme Court reversed this court’s decision in Murphy,
it did so by applying the same ‘‘temporal nexus’’ standard. Murphy v. Com-
missioner of Motor Vehicles, supra, 254 Conn. 347.
4
Specifically, Dorelus observed that the plaintiff’s eyes were bloodshot
and glassy, he had a disheveled appearance, and he had vomit on his collar.
Additionally, the plaintiff failed one field sobriety test before refusing to
submit to any additional tests.
5
The plaintiff cites State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960),
for the proposition that there was insufficient evidence to support a finding
of a temporal nexus between liquor and operation on the basis of the
evidence presented in his hearing. In DeCoster, the defendant was convicted
of operating a motor vehicle while intoxicated. Id., 503. The evidence sup-
ported a finding that a police officer found the defendant, who was intoxi-
cated, slumped over the steering wheel of his motor vehicle. Id., 504. The
vehicle’s key was in the ignition, but the ignition was in the off position.
Id. The two right tires on the motor vehicle were flat, and the vehicle
exhibited body damage on its right side. Id. Four traffic signs close to where
the motor vehicle was stopped had been knocked down. Id.
In reversing in part the conviction on the ground of insufficient evidence,
our Supreme Court in DeCoster concluded that the state had failed to demon-
strate the critical temporal nexus between intoxication and operation. Id.,
505. The court noted that although the evidence supported an inference
that the defendant’s motor vehicle had struck the signs along the nearby
intersection, there were no witnesses who had observed the defendant
operating the motor vehicle and no evidence to show how long it had been
stationary. Id., 504–505. The present case is distinguishable in at least two
regards. First, DeCoster was a criminal case requiring proof of operation
beyond a reasonable doubt, whereas the present case is an administrative
case with a lower burden of proof. Second, there were no witnesses in
DeCoster who could help establish the time that the stop signs were hit.
Here, after speaking with the accident victim, Dorelus was able to establish
that the accident had occurred within two hours from when he located the
plaintiff. DeCoster is therefore distinguishable from the plaintiff’s claim.
6
We also note that allowing the hearing officer the option to subpoena
the police officers after reviewing the evidence is in the interests of efficiency
and judicial economy. To require the presence of police officers at every
§ 14-227b hearing would be a significant waste of resources, as police officer
testimony is not always necessary for the hearing officer to arrive at his or
her findings.
7
General Statutes § 14-110 (a) provides that ‘‘[t]he commissioner . . . in
the performance of his duties, may . . . issue subpoenas. . . .’’
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104 Ariz. 451 (1969)
454 P.2d 993
STATE of Arizona, Appellee,
v.
Douglas L. RHODES, Appellant.
No. 9370-PR.
Supreme Court of Arizona. In Banc.
May 29, 1969.
*452 Gary K. Nelson, Atty. Gen., Darrell F. Smith, Former Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.
Vernon B. Croaff, Public Defender, by Grant Laney, Deputy Public Defender, for appellant.
Douglas L. Rhodes in pro. per.
McFARLAND, Justice:
Douglas Rhodes, hereinafter designated as defendant, was charged with the crime of attempting to obtain money or property by means of a false or bogus check, in violation of § 13-311, A.R.S., as amended. Defendant entered a plea of guilty to the charge, and was sentenced by the court. From this sentence he appealed. The Court of Appeals affirmed the judgment of guilty, set aside the sentence of the Superior Court, and remanded the matter to the Superior Court for imposition of sentence at a future date. 7 Ariz. App. 562, 441 P.2d 790. This Court granted defendant's petition for review. Decision of the Court of Appeals is vacated.
The information alleged that the crime was committed on the 12th of November 1965. Defendant left Arizona in 1966, and went to California, where he committed several similar crimes for which he was there sentenced to serve a term in prison.
Defendant had been charged in Arizona on the 24th of September 1963 for the crime of drawing a check without sufficient funds. He was held to answer on the charge, and was released on bail. He did not appear for trial in the Superior Court. On the 8th of January 1966 he turned himself in to the police department of Fresno, California, and admitted to writing numerous bad checks, at which time he informed the authorities about the forgery charges and offenses in other states.
Defendant had written the county attorney of Maricopa County, making known his availability to stand trial, and on the 25th day of May 1967, after a correspondence between defendant and the State of Arizona, defendant was brought from California by executive order for trial in the State of Arizona, to be returned to the State of California for the completion of his sentence after his trial in Arizona.
Upon his return to Arizona, the new charge was filed, and it was to that charge that he entered a plea of not guilty, and thereafter changed his plea from not guilty to guilty. He was represented by Thomas Thinnes, a deputy public defender. The court found him guilty as charged, and sentenced him to be
"imprisoned in the Arizona State Penitentiary at Florence, Arizona for a period of not less than Three (3) nor more than Five (5) years from this date, said sentence to run concurrently with the sentence the Defendant is serving in the State of California.
"IT IS FURTHER ORDERED that the Defendant be returned to the authorities *453 in the State of California for incarceration in the Men's Correctional Institution, Soledad, California, and that he receive credit on this sentence for all times served in that institution.
"IT IS FURTHER ORDERED directing the Sheriff of Maricopa County to return the Defendant to the proper authorities in the State of California.
"IT IS FURTHER ORDERED granting the motion of the State of Arizona to dismiss Cause No. 52204."
Defendant appealed from his sentence. Briefs were filed both by the public defender's office and by defendant in propria personam. He first contends that he was denied the right to a speedy trial under Article II, Sec. 24, of the Arizona Constitution, A.R.S., and the Fourteenth Amendment to the United States Constitution.
The question then is whether defendant under the circumstances has been deprived of due process of law, and whether the delay deprived him of the opportunity to prepare for and defend himself at the trial. We have previously passed upon this question, and have held that the right to a speedy trial attaches at the time the accused is held to answer, and that there is no deprivation prior to that stage of the case. State v. Tafoya, 104 Ariz. 424, 454 P.2d 569 [May 14, 1969]; State v. Burrell, 102 Ariz. 136, 426 P.2d 633; State v. Tuggle, 101 Ariz. 216, 418 P.2d 372; Palmer v. State, 99 Ariz. 93, 407 P.2d 64; and State v. Maldonado, 92 Ariz. 70, 373 P.2d 583. In State v. Tuggle, supra, we said:
"The rights of an accused to a speedy trial are guaranteed by Article 2, § 24, of the Arizona Constitution[1] and the 14th Amendment to the Constitution of the United States of America. The question of denial of the right to a speedy trial resulting from a delay in prosecution was considered by this court in Palmer v. State, 99 Ariz. 93, 407 P.2d 64. In that case, a federal prisoner in Leavenworth, Kansas, petitioned this court for a writ of habeas corpus, asking for dismissal of prosecution on two counts of robbery pending in the Superior Court of Arizona. The petitioner contended, among other things, that he had been deprived of the fundamental right to a speedy trial because of failure of the State of Arizona and the County of Maricopa to prosecute actively or grant a preliminary hearing for eighteen months. We there reaffirmed our holding in State v. Maldonado, 92 Ariz. 70, 373 P.2d 583, cert. denied, 371 U.S. 928, 83 S.Ct. 299, 9 L.Ed.2d 236, that the right to a speedy trial attaches at the time the accused is held to answer, and found no deprivation of this right by the delay in prosecution antecedent to petitioner's being held to answer. As the prosecution was conducted with dispatch in compliance with the applicable rules subsequent to defendant's commitment, Palmer v. State, supra, is controlling in the determination of the question in the instant case and we find no denial of defendant's right to a speedy trial. We held in both Palmer v. State, supra, and State v. Maldonado, supra, that the underlying question is whether a defendant under such circumstances has been deprived of due process of law. The acts complained of must be of such a quality as to necessarily prevent a fair trial. The delay must have deprived defendant of the opportunity to effectively prepare for, or defend himself, at the trial. Defendant pleaded guilty to the charge and there is no showing that the acts complained of deprived the accused of a fair trial. Also, by entering a plea of guilty to the charge defendant thereby waived any question in regard to his right to a speedy trial or due process of law. * * *"
"[1]. Art. 2, § 24, of the Arizona Constitution, A.R.S., provides: `In criminal prosecutions, the accused shall have the right to * * * a speedy public trial * * *.'
Defendant, by entering his plea of guilty, waived any question in regard to his right "to a speedy trial or due process of law."
The next question involves the procedure of the court in the pronouncement of sentence. It is contended in the amicus *454 curiae brief of the public defender's office, in support of the petition for review, that after a verdict or plea of guilty it is the duty of the court to pronounce judgment and sentence "without unreasonable delay." Rule 324, Rules of Crim. Proc., Revised, 17 A.R.S., provides:
"If the defendant is acquitted judgment shall be rendered immediately. If the defendant is convicted judgment shall not be rendered until three days after such conviction and only after overruling any motion for a new trial or in arrest of judgment. If the defendant expressly waives his right to move in arrest of judgment and for a new trial, judgment may be rendered immediately."
The provision which prohibits a judgment from being passed until three days after a conviction is for the purpose of giving the defendant an opportunity to make a showing in mitigation of the sentence. State v. White, 97 Ariz. 196, 398 P.2d 903. The next provision requires that a judgment shall be postponed until after the motions for new trial and arrest of judgment are overruled, unless they are expressly waived, in which case judgment may be rendered immediately.
There is no inference from these provisions that the court may unreasonably delay the passing of sentence. As a matter of fact, a reasonable interpretation of the law is to the contrary. In the case of Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393, cited by the public defender's office, the majority of the Supreme Court held that the court might impose sentence after a two-year delay after holding a previous sentence to be void; however, it is stated that the time of sentence was not "at the will of the judge," and that any delay must not be "purposeful or oppressive." The reason for allowing the sentence to be imposed two years later was that the invalidity of the previous sentence was accidental and was promptly remedied when discovered.
In Hall v. State, Okl.Cr., 306 P.2d 361, where there was a suspension of the imposition of sentence to an uncertain date, the court held:
"* * * It is obvious the trial court in violation of the provisions of the Constitution had placed the defendant on judicial parole. Neither the states nor the Constitution permit such to be done. * * *"
In Grant v. McLeod, Okl.Cr., 325 P.2d 1083, a later case the Oklahoma court stated:
"In the within case the defendant had a record of a previous conviction, so the court was not authorized to impose suspended sentence. 22 O.S.A. §§ 991, 992. The same objective could be attained, or so it seems to have been thought, by permitting the petitioner to go free, and postponing sentence for an indefinite period. There was an attempt to get around the law by doing indirectly what could not be done directly. This delay might be for a year, and if for a year, for any number of years, with the possibility of imposition of sentence summarily at any time at the whim of the then district judge or a remote successor. Thus, unlike where one is sentenced for a definite time and sentence suspended, and where the sentence would expire at a definite future date, the deferred sentence to an indefinite date would ever hang over petitioner's head, with his future life restricted, walled in, and hampered by chance and probability."
See also McLaughlin v. State, 207 Ind. 484, 192 N.E. 753, 97 A.L.R. 800, and annotation in 97 A.L.R. 802. Also Smith v. State, 188 Ind. 64, 121 N.E. 829, 3 A.L.R. 999, followed by annotation at p. 1003, to the effect that sentence must be pronounced within a reasonable time.
Rule 335, Rules of Crim. Proc., 17 A.R.S., specifically provides:
"If cause sufficient under Rule 332 is not alleged, or having been alleged is not proved, or has ceased to exist, the court may either pronounce sentence immediately or postpone pronouncement of *455 sentence to a future certain day or postpone pronouncement for a reasonable time."
It is evident that it was intended to require that sentence be pronounced within a reasonable time. Under the facts in the instant case no good cause for not pronouncing sentence having been shown, it was the duty of the court to pronounce sentence as provided for in Rule 335, Rules of Crim. Proc., 17 A.R.S., or to have suspended the imposition of sentence in accordance with the revised statute, § 13-1657, A.R.S.
The next question is the validity of that part of the court's sentence making it run concurrently with sentence of the court in the State of California. This question is one of first impression with this Court. Rule 338, Rules of Crim. Proc., 17 A.R.S. provides:
"When the sentence imposes imprisonment, it shall state the date at which the imprisonment is to begin." [Emphasis added.]
Sec. 13-1652, A.R.S., provides:
"The term of imprisonment fixed by the sentence commences to run only upon actual delivery of defendant at the place of imprisonment, or from the time fixed by the court as the time when the term of imprisonment begins. If thereafter, during such term, the defendant by legal means is temporarily released from the imprisonment and subsequently returned thereto, the time during which he was at large shall not be computed as part of the term." [Emphasis added.]
Both the rules of this Court, and the statutes give the court authority to fix the date of the beginning of the sentence at a date prior to delivery of the defendant to the Arizona State Penitentiary. It is common knowledge that the courts frequently give a defendant credit for time that he may have been incarcerated in jail prior to sentencing. While this provision is not mandatory, justice requires that the court have this discretion. Otherwise, after a plea of guilty or a verdict of guilty by a jury, a defendant would not be entitled to credit for the time required for an investigation by the probation officers prior to sentencing.
Under Rule 339, Rules Crim. Proc., 17 A.R.S., there can be no question but what this rule was intended to permit the court imposing a second or later sentence to have authority to make the sentence run concurrently with a former sentence imposed by another court. See Odekirk v. Ryan, 6th Cir., 85 F.2d 313.
The question then is whether this provision referring to a prior sentence applies to a prior sentence in a court of another State. The Penal Code of California, Sec. 669, provides, in part:
"When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment shall direct whether the terms of imprisonment or any of them to which he is sentenced shall run concurrently, or whether the imprisonment to which he is or has been sentenced upon the second or other subsequent conviction shall commence at the termination of the first term of imprisonment to which he has been sentenced, or at the termination of the second or subsequent term of imprisonment to which he has been sentenced, as the case may be; * * *."
The California courts have interpreted this section, in In re Stoliker, 49 Cal.2d 75, 315 P.2d 12:
"* * * section 669 of the Penal Code `permits the imposition of concurrent sentences when a defendant is convicted of two or more crimes * * * in different proceedings or courts' (In re Roberts, 40 Cal.2d 745, 749, 255 P.2d 782, 784, emphasis added.)
* * * * * *
The Attorney General further argues that People v. Tucker, 127 Cal. App.2d 436, 273 P.2d 934, holds that Section 669 *456 cannot apply to federal sentences. The trial court, however, had made no attempt there to make the sentences run concurrently, no evidence was introduced on the federal conviction, and no reasons were given by the court why state and federal sentences might not be made to run concurrently in a proper case. The opinion in that case is therefore not persuasive in the determination of the present case."
The interpretation of Section 669 of the California Penal Code, in the Stoliker case, supra, holding that the statutory words "different proceedings or courts" includes federal courts, was broadened to include courts of other States in the case of In re Riddle, 240 Cal. App.2d 707, 49 Cal. Rptr. 919, wherein it is stated:
"`Under the so-called "Stoliker rule" established by California case law [In re Stoliker, 49 Cal.2d 75, 78, 315 P.2d 12], a California prisoner is entitled to be made available for delivery to the prison authorities of another jurisdiction, if his California commitment expressly decrees that the California sentence shall run concurrently with an unexpired sentence in the other jurisdiction.' (In re Portwood, 236 A.C.A. 344, 346, [236 Cal. App.2d 321], 45 Cal. Rptr. 862, 863.) This rule also applies where the sentencing judge has knowledge of the unexpired sentence in the other jurisdiction. (In re Alstatt, 227 Cal. App.2d 305, 307, 38 Cal. Rptr. 616, quoted in In re Portwood, supra.) Pursuant to the provisions of section 669 of the Penal Code and California case law, petitioner at the time of sentencing by the El Dorado County Court was entitled to be made available for delivery to the Oklahoma authorities, so that the remaining time under his Oklahoma sentence will be credited to his California sentence. The California Director of Corrections is authorized and directed by Penal Code section 2900 to designate a California institution to which petitioner may be returned, if his Oklahoma confinement ends before the expiration of his California sentence."
Section 13-1652, A.R.S., in permitting a court to fix a date when sentence is to begin, does not state where the person is to be confined before delivery to the Arizona State Penitentiary; as a result, when the court fixes the date for commencement of sentence at a date prior to the delivery to the Arizona State Penitentiary, we are confronted with the question of whether such sentence can be made to run concurrently with confinement in a penitentiary of another State. An interpretation is required as to the meaning of our statute just as it was required in California to define the meaning of the provision of "other courts" in Sec. 669, supra, which resulted in the holding that a sentence might run concurrently with that pronounced in a court of another State. We are of the opinion that the interpretation given by the California court that a court may make a sentence run concurrently with that of another State is a reasonable interpretation, and should be followed by Arizona.
While we recognize that the application of the rule set forth by California may result in some difficulties, it permits the trial court to exercise a discretion. As in the instant case, the trial court evidently was of the opinion that a sentence of from three to five years' imprisonment regardless of where served was sufficient as far as the Arizona crime was concerned. While the court could have suspended the imposition of sentence during that time, the court was evidently of the opinion that justice would be better served by allowing the sentences to run concurrently, which would give defendant a greater incentive for rehabilitation.
We hold the sentence of the trial court valid. Decision of the Court of Appeals is vacated, and judgment of the lower court affirmed.
UDALL, C.J., LOCKWOOD, V.C.J., and STRUCKMEYER and HAYS, JJ., concur.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIJHA MALCOME BURKE, No. 16-35165
Plaintiff-Appellant, D.C. No. 3:15-cv-05294-RSM
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted December 11, 2017**
Before: THOMAS, Chief Judge, and TROTT and SILVERMAN, Circuit
Judges
Elijha Malcome Burke through counsel appeals the district court’s dismissal
of his case for failure to comply with the statute of limitations after an
administrative law judge (“ALJ”) concluded that Burke was not entitled to Social
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Security child insurance benefits and Supplemental Security Income under Titles II
and XVI of the Social Security Act. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo, Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014), and
we affirm.
Burke’s counsel faxed two requests to the Appeals Council to extend the 60-
day period for commencing a civil action under 42 U.S.C. 405(g). The Appeals
Council granted his first request and did not receive his second request. Burke filed
a civil action 17 days after the filing deadline following his first requested
extension, which was granted by the Appeals Council, and five days after the filing
deadline Burke’s attorney requested in the second extension request.
Sections 405(g) and (h) governs judicial review of final decisions issued by
the Commissioner of the Social Security Act, which provides that any individual
may commence a civil action within sixty days after the mailing to him of notice of
the Appeals Council’s decision or within such further time as the Commissioner of
Social Security may allow. 42 U.S.C. 405(g). The 60-day time limitation for
seeking judicial review of the ALJ’s decision can be extended in two ways. First,
the Appeals Council “may” extend the 60-day period “upon a showing of good
cause,” but that decision is within the Council’s discretion, and the Council is not
required to grant an extension. See 20 C.F.R. § 422.210(c). Second, traditional
equitable tolling or estoppel principles can toll the limitation period under certain
2 16-35165
circumstances, such as where the cause of action is based on duress or undue
influence; or the defendant fraudulently conceals the cause of action, affirmatively
misleads the plaintiff, or engages in misconduct or deception. Bowen v. City of
New York, 476 U.S. 467, 479-80 (1986); Vernon v. Heckler, 811 F.2d 1274, 1277-
78 (9th Cir. 1987). Only in rare cases will the doctrine of equitable tolling allow a
plaintiff to avoid the statute of limitations. See Bowen, 476 U.S. at 480-81.
First, Burke did not show good cause for a second extension of time. Burke
did not demonstrate good cause; rather, Burke’s attorney located Burke nearly
three weeks before the April 17, 2015 deadline, obviating the reason provided for
the requested extension.
Second, equitable tolling should not apply. See Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). Burke failed to demonstrate he pursued his rights diligently.
Burke did not follow the instructions provided by the Appeals Council for
requesting an extension. He faxed his two requests for extensions to the Appeals
Council instead of mailing them as clearly indicated in the Notice of Appeals
Council Action dated December 16, 2014, and stamped “Received” by Talbot &
Associates on December 29, 2014. The continued reliance on fax was not
reasonable considering Burke’s attorney asserted he did not receive a response to
the first fax.
3 16-35165
Further, Burke fails to show an extraordinary circumstance prevented the
timely filing of the complaint. Burke’s attorney located Burke prior to the first
filing deadline granted by the Appeals Council, and the second deadline requested
by Burke’s attorney. Moreover, even if the Appeals Council had granted the
second requested extension until April 29, 2015, his complaint would still be
untimely because he filed it on May 4, 2015.
AFFIRMED.
4 16-35165
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NUMBERS 13-18-00470-CR & 13-18-00471-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE JESSE RIOS
On Petition for Writ of Mandamus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez1
Relator Jesse Rios, proceeding pro se, filed separate petitions for writ of
mandamus in each of the above causes.2 In both of these original proceedings, relator
seeks to compel the trial court to amend the certifications of relator’s right to appeal his
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2 These original proceedings arise from trial court cause number 12-CR-1515-A, docketed in
appellate cause number 13-18-00470-CR, and trial court cause number 11-CR-4192-A, docketed in our
cause number 13-18-00471-CR. Both cases originated in the 28th District Court of Nueces County, Texas.
See also In re Rios, No. 13-17-00511-CR, 2017 WL 4173392, at *2 (Tex. App.—Corpus Christi Sept. 20,
2017, orig. proceeding) (mem. op., not designated for publication); In re Rios, No. 13-17-00182-CR, 2017
WL 1479432, at *1 (Tex. App.—Corpus Christi Apr. 18, 2017, orig. proceeding) (mem. op., not designated
for publication); Rios v. State, No. 13-12-00721-CR, 2013 WL 474841, at *1 (Tex. App.—Corpus Christi
Feb. 7, 2013, no pet.) (mem. op. per curiam, not designated for publication).
underlying convictions. See TEX. R. APP. P. 25.2(a)(2). Relator contends that the
certifications in both cases are defective insofar as they state that he lacks the right to
appeal.
To be entitled to mandamus relief, the relator must establish both that he has no
adequate remedy at law to redress his alleged harm, and that what he seeks to compel
is a purely ministerial act not involving a discretionary or judicial decision. In re Harris,
491 S.W.3d 332, 334 (Tex. Crim. App. 2016) (orig. proceeding); In re McCann, 422
S.W.3d 701, 704 (Tex. Crim. App. 2013) (orig. proceeding). If the relator fails to meet
both of these requirements, then the petition for writ of mandamus should be denied.
State ex rel. Young v. Sixth Jud. Dist. Ct. of Apps. at Texarkana, 236 S.W.3d 207, 210
(Tex. Crim. App. 2007). It is the relator’s burden to properly request and show entitlement
to mandamus relief. Barnes v. State, 832 S.W.2d 424, 426 (Tex. App.—Houston [1st
Dist.] 1992, orig. proceeding) (“Even a pro se applicant for a writ of mandamus must show
himself entitled to the extraordinary relief he seeks.”). In addition to other requirements,
the relator must include a statement of facts supported by citations to “competent
evidence included in the appendix or record,” and must also provide “a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
appendix or record.” See generally TEX. R. APP. P. 52.3. The relator must furnish an
appendix or record sufficient to support the claim for mandamus relief. See id. R. 52.3(k)
(specifying the required contents for the appendix); R. 52.7(a) (specifying the required
contents for the record).
The Court, having examined and fully considered the petitions for writ of
mandamus and the applicable law, is of the opinion that the relator has failed to establish
2
his right to mandamus relief. Accordingly, we deny the petitions for writ of mandamus in
each of these causes.
NELDA V. RODRIGUEZ
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
28th day of August, 2018.
3
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734 N.E.2d 13 (2000)
314 Ill. App.3d 1044
248 Ill.Dec. 305
In re GEORGE O., Asserted to be a Person Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. George O., Respondent-Appellant).
No. 3-99-0279.
Appellate Court of Illinois, Third District.
May 19, 2000.
As Modified July 26, 2000.
*15 Cynthia Z. Tracy (Court-appointed) (argued), Guardianship & Advocacy Commission, Peoria, Jeff Plesko, Managing Attorney, Guardianship & Advocacy Commission, Anna, for George O.
John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Attorney, Peoria, Richard T. Leonard (argued), State's Attorneys Appellate Prosecutor, Ottawa, for the People.
Justice KOEHLER delivered the opinion of the court:
The respondent, George O., appeals from the Peoria County circuit court's final order that he was subject to involuntary admission and ordering him hospitalized in the Zeller Mental Health Institute for 30 days. This court must decide the following question: Does the State's failure to establish that it strictly complied with the Mental Health and Developmental Disabilities Code's (405 ILCS 5/1-100 et seq. (West 1994)) mandatory involuntary admission procedural safeguards warrant a reversal? Because we conclude that the State's noncompliance with the statutorily prescribed involuntary commitment procedures renders the circuit court's judgment erroneous, we reverse.
FACTS
On February 23, 1999, respondent George O.'s sister executed a petition for his emergency involuntary admission (the petition) pursuant to section 3-601 of the Mental Health and Developmental Disabilities Code (the Code) (405 ILCS 5/3-601 (West 1992)). At 1:50 a.m. on February 24, Robert Johnston, M.D., executed a certificate pursuant to section 3-602 (405 ILCS 5/3-602 (West 1992)), but he failed to name George O. on the certificate. At 4 a.m., the Illinois Valley Community Hospital admitted George O. In this first certificate, Dr. Johnston stated that the unnamed individual was mentally ill and reasonably expected to inflict serious physical harm on himself or another and unable to care for his basic needs, but he did not indicate that the individual was in need of immediate hospitalization and subject to involuntary admission. Later that day, the hospital timely filed the petition in La Salle County circuit court. At 2:15 p.m. that day, D. Hinshaw, M.D., examined George O. and executed a second certificate.
On February 25, George O.'s cause was transferred to Peoria County circuit court, where the petition and the two above-mentioned medical certificates were filed at 3:24 p.m. Athena Guzman, M.D., filed a third medical certificate on February 26 at 11 a.m., reflecting her examination of George O. that occurred at 2 p.m. on February 25, in Peoria at Zeller Mental Health Institute (Zeller). The Peoria County circuit court appointed counsel for George O. After a March 3 hearing, during which George O. and Dr. Jayalakshmi Attaluri, George's treating psychiatrist at Zeller, testified, the circuit court concluded that the State proved by clear and convincing evidence that George O. had a serious mental illness and that it could reasonably be expected that, if George O. were discharged, he would inflict serious harm to himself in the near future. Consequently, the circuit court found George O. subject to involuntary admission and ordered him hospitalized in the Department of Mental Health and Developmental Disabilities for 30 days. George O. appeals.
ANALYSIS
At the outset, we note that our standard of review is de novo, as the issue before this court involves a question of law. People v. Carlson, 185 Ill.2d 546, 551, 236 Ill.Dec. 786, 708 N.E.2d 372, 374 (1999).
"Involuntary admission procedures represent the legislature's attempt to balance the individual's interest in liberty against society's dual interests in protecting itself from dangerous mentally ill persons and caring for those who are *16 unable to care for themselves. [Citation.] The Code's procedural safeguards are not mere technicalities. [Citation.] Rather, they are essential tools to safeguard the liberty interests of respondents in mental health cases. [Citation.] Because involuntary admission proceedings pose a grave threat to an individual's liberty interests, the Code's procedural safeguards should be strictly construed in favor of the respondent. [Citation.]" In re Rovelstad, 281 Ill. App.3d 956, 964-65, 217 Ill.Dec. 631, 667 N.E.2d 720, 725 (1996).
George O. contends that the circuit court's order finding him subject to involuntary admission must be reversed because the State (1) failed to comply with section 3-602 when the first certificate required by this section did not state his name, that he was subject to involuntary commitment, and that he required immediate hospitalization; (2) failed to show that he had been examined by a psychiatrist within 24 hours after admission as required by section 3-610; and (3) failed to prove by clear and convincing evidence that he was subject to involuntary admission.
The State conversely maintains that (1) the circuit court's order was proper, as clear and convincing evidence established by Dr. Attaluri's testimony showed that George O. was subject to involuntary admission because he suffered from a severe mental illness and, due to his past abuse of alcohol, depression, suicidal ideations, access to firearms and marital difficulties, he was reasonably expected to inflict serious harm on himself or another in the near future; (2) George O. waived his right to appeal any procedural deficiencies when he failed to preserve the issue in the circuit court; and (3), in the alternative, the circuit court had jurisdiction and any procedural deficiency did not prejudice George O. and was, therefore, harmless.
Section 3-602 of Article VI, governing emergency admissions by certification under the Mental Health and Developmental Disabilities Code, provides:
"The petition shall be accompanied by a certificate executed by a physician, qualified examiner, or clinical psychologist which states that the respondent is subject to involuntary admission and requires immediate hospitalization. The certificate shall indicate that the physician, qualified examiner, or clinical psychologist personally examined the respondent not more that 72 hours prior to admission. It shall also contain the physician's, qualified examiner's, or clinical psychologist's clinical observations, other factual information relied upon in reaching a diagnosis, and a statement as to whether the respondent was advised of his rights under Section 3-208." 405 ILCS 5/3-602 (West 1992).
Section 3-604 states:
"No person detained for examination under this Article on the basis of a petition alone may be held for more than 24 hours unless within that period a certificate is furnished to or by the mental health facility. If no certificate is furnished, the respondent shall be released forthwith." 405 ILCS 5/3-604 (West 1992).
Further, section 3-610 prescribes:
"As soon as possible but not later than 24 hours, excluding Saturdays, Sundays and holidays, after admission of a respondent pursuant to this Article, the respondent shall be examined by a psychiatrist. The psychiatrist may be a member of the staff of the facility but shall not be the person who executed the first certificate. If the respondent is not examined or if the psychiatrist does not execute a certificate pursuant to Section 3-602, the respondent shall be released forthwith." 405 ILCS 5/3-610 (West 1992).
Last, we note section 3-611, which states:
"Within 24 hours, excluding Saturdays, Sundays and holidays, after the respondent's admission under this Article, the facility director of the facility *17 shall file 2 copies of the petition, the first certificate, and proof of service of the petition and statement of rights upon the respondent with the court in the county in which the facility is located. Upon completion of the second certificate, the facility director shall promptly file it with the court. The facility director shall make copies of the certificates available to the attorneys for the parties upon request. Upon the filing of the petition and first certificate, the court shall set a hearing to be held within 5 days, excluding Saturdays, Sundays and holidays, after receipt of the petition. The court shall direct that notice of the time and place of the hearing be served upon the respondent, his responsible relatives, and the persons entitled to receive a copy of the petition pursuant to Section 3-609." 405 ILCS 5/3-611 (West 1992).
In the instant case, the first certificate signed by Dr. Johnson and required by section 3-602 did not include George O.'s name and failed to state that he was subject to involuntary admission and required immediate hospitalization. Accordingly, we conclude that section 3-602, which, when strictly construed, requires that such a statement be contained within this first certificate, was not satisfied. In addition, sections 3-602 and 3-611, strictly construed, require the first certificate to be filed with the petition, while section 3-604 additionally prohibits any person from being detained on the basis of a petition alone beyond 24 hours unless the mental health facility furnishes or is furnished this first certificate. Although the petition was timely filed in La Salle County, the record shows that this first certificate required by section 3-602 was filed after the cause was transferred to Peoria Countymore than 24 hours after the respondent was admitted. When such certificate is not furnished within 24 hours after admission, the respondent "shall be released forthwith." 405 ILCS 5/3-604 (West 1992).
Section 3-610 requires that a psychiatrist must examine the respondent no later than 24 hours after he is admitted. 405 ILCS 5/3-610 (West 1992). The psychiatrist who conducts this examination must execute a certificate similar to that required by section 3-602 and may not be the same individual who executed the first certificate. Again, we note that the record only shows that the first and second certificates were filed when the cause was transferred to Peoria County. Since the cause was not transferred by 4 a.m. on February 25within 24 hours after George O.'s admissionbut at 3:24 p.m. on February 25, we likewise conclude that the second certificate was not properly filed as section 3-610, strictly construed, required.
Additionally, with regard to the section 3-610 mandatory requirement that the second certificate be executed by a psychiatrist, the State concedes that the record does not identify Dr. Hinshaw as a psychiatrist but argues that it is reasonable to presume he is a psychiatrist since he is a medical doctor who practices at the mental health facility. Courts should not engage in speculation to reach such a presumption. See Rovelstad, 281 Ill.App.3d at 965, 217 Ill.Dec. 631, 667 N.E.2d at 725. The record at bar does not provide us with enough information to conclude with certainty that Dr. Hinshaw was a psychiatrist. We, therefore, conclude that the State has not shown that George O. was examined by a psychiatrist within 24 hours of his admission and, thus, George O. should have been "released forthwith." See 405 ILCS 5/3-610 (West 1992); see Rovelstad, 281 Ill.App.3d at 965-66, 217 Ill.Dec. 631, 667 N.E.2d at 726. Because the State failed to comply with the mandatory requirement of section 3-610, we must reverse the order for involuntary admission. See Rovelstad, 281 Ill.App.3d at 965-66, 217 Ill.Dec. 631, 667 N.E.2d at 726. "Any noncompliance with the statutory prescribed involuntary commitment procedures renders the judgment entered in such a cause erroneous and of no effect." *18 People v. Valentine, 201 Ill.App.3d 10, 13-14, 146 Ill.Dec. 844, 558 N.E.2d 807, 810 (1990); see also In re Elkow, 167 Ill. App.3d 187, 193, 118 Ill.Dec. 222, 521 N.E.2d 290, 294 (1988).
We further reject the State's argument that George O. has waived this error by failing to raise an objection in the circuit court. "`[E]rrors demonstrating noncompliance with the statutory provisions that appear on the face of the record may render a judgment erroneous even if not raised at trial; furthermore, such errors may be considered on appeal under a doctrine analogous to plain error.'" Rovelstad, 281 Ill.App.3d at 966, 217 Ill.Dec. 631, 667 N.E.2d at 726, quoting In re Martens, 269 Ill.App.3d 324, 327, 206 Ill.Dec. 895, 646 N.E.2d 27 (1995). We, therefore, decline to apply waiver in this case, since the State's failure to comply with section 3-610 appears on the face of the record and clearly prejudiced George O. In light of these conclusions, we need not address George O.'s other contentions.
CONCLUSION
In sum, the State's noncompliance with the statutorily prescribed involuntary commitment procedures renders the circuit court's judgment erroneous. We, therefore, reverse.
Reversed.
SLATER, P.J., and HOLDRIDGE, J., concur.
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164 So.2d 814 (1964)
Thomas WEBSTER, a minor by his father and next friend, M.B. Webster, and M.B. Webster, individually, Petitioners,
v.
Kreis KEMP, a minor by his father and next friend, George Kemp, and George Kemp, individually, Respondents.
No. 33056.
Supreme Court of Florida.
March 25, 1964.
Rehearing Denied April 20, 1964.
*815 Sams, Anderson, Alper & Spencer and Sam Daniels, Miami, for petitioners.
Smith & Poole, Miami, for respondents.
THORNAL, Justice.
On a petition for a writ of certiorari we have for review a decision of the Third District Court of Appeal, which is alleged to be in conflict with a prior decision of this Court.
We must decide whether the decision in the instant case conflicts with a prior decision of this Court on the same point of law when applied to substantially the same controlling facts.
The decision under review is Webster v. Kemp, Fla.App., 156 So.2d 669. The significant facts are revealed by that opinion. Thomas Webster, a minor, was a guest passenger in an automobile owned by George Kemp and driven at the time by his minor son, Kreis Kemp. Webster was injured when an accident occurred under the following circumstances:
"The posted speed limit was 45 miles per hour. Kreis Kemp admitted he was going between 75 and 80 miles per hour. The road was straight and level. It was daylight and the weather conditions were not a factor in the accident. The minor defendant lost control of the car when the back began to sway, and the car left the road, turning over 2 1/2 times. In his deposition Kreis Kemp stated that he had been driving about five months and that he had noticed the car had a tendency to sway or `fishtail' when going around corners."
On the basis of the cited facts the trial judge granted a summary judgment in favor of the defendants automobile owner and driver. On appeal, the District Court affirmed, holding that the facts revealed simple negligence only as a matter of law. It cited the decision of this Court in Carraway v. Revell, Fla., 116 So.2d 16. A showing of gross negligence under the Florida guest statute would have been essential to recovery. Section 320.59, Florida Statutes, F.S.A. The contention of the petitioner is that the instant decision is in conflict, rather than in harmony, with Carraway v. Revel, supra.
We have held that a jurisdictional conflict arises when a District Court applies a correct rule of law to produce a conflicting result "in a case which involves substantially the same controlling facts as a prior case disposed of by this Court." The petitioner claims the presence of such a conflict. In this type of situation the similarity of the essential facts becomes of vital importance. The conflict arises when the District Court applies a recognized rule of law to lead it to a conflicting conclusion in a case which is substantially the same factually as a prior decision of this Court or another District Court. Nielsen v. City of Sarasota, Fla., 117 So.2d 731; Pinkerton-Hays Lumber Co. v. Pope, Fla., 127 So.2d 441.
The District Court was here confronted with the difficult problem of determining the presence or absence of gross negligence as a matter of law on the basis of admitted facts. In Carraway v. Revell, supra, we announced the rule that "gross negligence is that course of conduct which a reasonable and prudent man would know would probably and most likely result in injury to persons or property." In the instant case the District Court recognized this pronouncement. It then proceeded to apply this measure of gross negligence to the admitted facts here. It reached the conclusion that such facts amounted to simple rather than gross negligence as a matter of law. In order to reach a conflict, therefore, the petitioner has the burden of producing *816 a prior decision on substantially the same controlling facts which led to an opposite result. To meet this burden the petitioner points again to Carraway v. Revell, supra.
In Carraway v. Revell, supra, under substantially similar factual circumstances we held that the presence or absence of gross negligence would have to be resolved by the trier of the facts, rather than by the Court as a matter of law.
The facts which were before us in Carraway v. Revell, supra, are reflected in the opinion of the District Court of Appeal, First District in Revell v. Carraway, Fla. App., 124 So.2d 874, after remand and subsequent reconsideration by the trial judge. The essential facts were that the injury occurred when the automobile was being driven at a speed of fifty miles an hour in a 45 mile zone, and it capsized because of a tire blow-out. The driver had knowledge of the defective tire. It was held that the speed plus knowledge of the defect which was directly related to the occurrence of the accident and injury were sufficient to take the case to the trier of the facts on the question of gross negligence. Section 320.59, Florida Statutes, F.S.A. This was the holding of the Court of Appeal, First District, pursuant to the decision of this Court in Carraway v. Revell, supra.
In the case now before us the admitted facts revealed speed seventy-five to eighty miles per hour plus knowledge of a defect directly related to the occurrence the tendency of the vehicle to sway or "fishtail." Here the trial court, with District Court approval, withdrew the problem from the trier of the facts and concluded the contest as a matter of law.
We are therefore confronted by two situations which are substantially the same in controlling facts but which have produced opposite results when subjected to the same rule of law. In Carraway it was held that the gross negligence issue should be submitted to the trier of facts. In Webster it was held that the issue could be resolved as a matter of law. Nielsen v. City of Sarasota, supra, Hence, we detect the jurisdictional conflict which leads to our ultimate judgment.
It should be noted that in both instances the known defect was directly related to the occurrence. In other words, the known defect, plus speed allegedly combined to produce the proximate cause of the injury. An unrelated defect would not have the same impact. By the same token, the known defect absent the speed, would not necessarily constitute gross, as distinguished from simple, negligence. The combination of these factors, therefore, peculiarly present a problem for resolution by a jury as to whether they constitute gross negligence when measured by Carraway v. Revell standards. In reaching its conclusion the jury would have to decide whether the speed was grossly excessive in the light of the known defect which constituted the other component of proximate causation. In such a situation the jury function becomes particularly important under the Florida Guest Statute by which the Legislature has initially deposited the problem with the jury. Moreover, this Court itself has placed great stress upon the importance of jury participation under the statute. Section 320.59, supra; Carraway v. Revell, Fla., 116 So.2d 16, p. 22.
We conclude that the decision under review which affirmed the summary judgment conflicts with Carraway v. Revell, Fla., 116 So.2d 16, and Revell v. Carraway, Fla.App., 124 So.2d 874, on the same point of law. It is therefore quashed and the cause remanded to the District Court of Appeal, Third District, for further proceedings consistent herewith.
It is so ordered.
DREW, C.J., and ROBERTS, O'CONNELL and CALDWELL, JJ., concur.
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605 So.2d 781 (1992)
Claudia ARLEDGE
v.
Dr. Charles McFATTER.
No. 90-CA-0212.
Supreme Court of Mississippi.
August 5, 1992.
Rehearing Denied October 1, 1992.
*782 Landman Teller, Jr., Teller Martin Chaney & Hassell, Vicksburg, for appellant.
R.E. Parker, Jr., Gail S. Akin, Varner Parker Sessums & Akin, Vicksburg, William R. Lancaster, Ramsey & Sheldon, Mobile, for appellee.
En Banc.
PRATHER, Justice, for the court:
I. INTRODUCTION
This medical malpractice case from the Warren County Circuit Court involves issues of instruction procedures and instruction sufficiency. Perusal of the record leads this Court to reverse and remand for a new trial.
A. Facts
In January 1987, Claudia Arledge approached gynecologist and surgeon, Dr. Charles McFatter, and requested information on liposuction. McFatter examined Arledge; he concluded that liposuction and abdominoplasty might help improve her general appearance described as "obese."
In February 1987, McFatter performed liposuction and abdominoplasty on Arledge; he also performed an appendectomy and hysterectomy. McFatter encountered no complications; he considered the operation to be a success. As time progressed, however, Arledge became upset about the resultant scar and some pain she had begun to experience allegedly due to the scar. So in December 1988, she filed a complaint in the Warren County Circuit Court against McFatter. She alleged that McFatter negligently performed the liposuction and abdominoplasty on her.
In November 1989, Judge Frank Vollor held trial. At the conclusion of the trial, Judge Vollor and the attorneys debated over which instructions should be submitted. Each attorney also complained that the other submitted too many instructions for consideration. The judge noted their complaint and proceeded with the debate.
After four hours of debate, the judge instructed the jury. During its deliberations, the jury handed the bailiff a handwritten note to deliver to the judge:
If we vote one issue for Plaintiff and the other for the Defendant, how do we decide? Read last paragraph.
"Read last paragraph" referred to the last paragraph in Instruction D-9B, which the jury appended to the note:
INSTRUCTION D-9B
The Court instructs the jury that the Plaintiff is seeking damages against Dr. McFatter based on two (2) theories of law: 1) negligence or breach of the applicable standard of care of physicians performing liposuction and abdominoplasty; and 2) failure to obtain the Plaintiff's informed consent for the liposuction and abdominoplasty.
These theories of law involve separate claims and must each be separately proved. If the Plaintiff fails to prove either of these claims by a preponderance or greater weight of the credible evidence, then you should consider the other claim before you may return a verdict. If the Plaintiff fails to prove both of these claims by a preponderance or greater weight of the credible evidence, then your verdict shall be for Dr. McFatter.
*783 Upon reading the note, the judge and counsel debated over the method of response. Over McFatter's objection, the judge instructed Arledge's counsel to draft another instruction. Arledge completed the task in about forty minutes; however, before the judge could provide the jury with this new instruction, the bailiff learned that a verdict had been reached. The jury found for McFatter.
Arledge filed a motion for j.n.o.v. or new trial; she complained that Instruction D-9B was "misleading, confusing and peremptory in nature" and that the jury was not re-instructed in a timely manner. Arledge contended that the untimeliness led the jury to "assume" that "no additional instruction was forthcoming and felt compelled to decide for [McFatter]." The judge denied the motion.
B. Issues
Arledge appealed and presented two issues:
1. Whether the trial judge erroneously failed to instruct the jury after the jury requested further instruction during deliberation?
2. Whether the judge erroneously allowed McFatter to submit more instructions than are allowed by Uniform Circuit Court Rule 3.09?
McFatter cross-appealed and presented one issue:
3. Whether the judge erroneously assessed costs against him for the portion of the record designated by him.?
II. ANALYSIS
A. Issue # 1
1.
Through this issue, Arledge contends that Instruction D-9B confused the jury and that the judge should have re-instructed the jury after being asked for clarification of a point of law. The record does not reflect a "refusal" by the trial judge to reinstruct the jury; rather, the record reflects that the judge and attorneys were constructing a new instruction when the jury reached a verdict.
2.
This Court has reviewed all the instructions and concludes that they adequately state relevant law. See Strickland v. Rosini, 589 So.2d 1268, 1273 (Miss. 1991). Adequacy notwithstanding, this Court is compelled to reverse.
As a matter of institutional imperative, "our law presumes that jurors follow the trial judge's instructions, as upon their oaths they are obliged to do." Parker v. Jones County Community Hosp., 549 So.2d 443, 446 (Miss. 1989); see also Collins v. State, 594 So.2d 29, 35 (Miss. 1992). The facts, however, "take this case out of the general principle." Parker, 549 So.2d at 446 (emphasis added). In other words, the presumption that jurors follow the law as instructed has been sufficiently rebutted.
The jury requested clarification of Instruction D-9B. As Judge Vollor seems to have concluded, the jury's request was indicative of confusion. The judge decided that clarification was appropriate, but he failed to inform the jury that a new instruction was forthcoming. The jury waited about forty-five minutes and, prior to being re-instructed, returned a verdict. One cannot logically "presume" that the jury understood and followed the law as instructed. Indeed, a questionaire which Judge Vollor routinely submits to jurors upon completion of a trial revealed that at least one juror in this case was confused by the instructions.
3.
In sum, this Court reverses and remands this case for a new trial on the merits. To avoid a reversible situation like this in the future, the judge should immediately inform the jury that a response is forthcoming.
B. Issues # 2 and 3
This Court has reviewed the record, briefs, and relevant law and affirms on these issues. However, before concluding, one point must be noted. Neither party in this case complied with Uniform Circuit Court Rule 3.09 regarding the limitation on the number of instructions which may be *784 submitted: "[A]ttorneys may submit no more than six instructions on the substantive law of the case." McFatter submitted approximately twenty-five instructions prior to trial, and Arledge submitted approximately seven instructions.
The circuit court rules were adopted to facilitate orderly and efficient procedure in judicial proceedings. Attorneys are expected to follow the rules, including the limitation on the number of instructions which may be submitted. In complicated cases, the trial judge may waive the limitation and permit additional instructions upon request and when warranted.
The excessive number of instructions submitted by both McFatter and Arledge constitutes an abuse of procedure and must not be repeated unless the judge waives the limitation upon reasonable request.
III. CONCLUSION
On the basis of the foregoing, this Court reverses on the first issue and remands for a new trial on the merits. This Court affirms on the remaining issues on direct and cross-appeal.
REVERSED AND REMANDED FOR A NEW TRIAL.
DAN M. LEE, P.J., and SULLIVAN, BANKS and MCRAE, JJ., concur.
BANKS, J., concurs with separate written opinion, joined by DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ.
ROY NOBLE LEE, C.J., dissents with separate written opinion, joined by HAWKINS, P.J., and ROBERTSON and PITTMAN, JJ.
ROBERTSON, J., dissents with separate written opinion, joined by ROY NOBLE LEE, C.J., and HAWKINS, P.J.
BANKS, Justice, concurring:
I concur in the result reached by the majority. With deference, it is my view that the dissenters miss the point that regardless of how clear and correct the instructions may appear to us, and to appellant's counsel when submitted, there is irrefutable evidence that the jury found them conflicting at a point and no evidence that it resolved the confusion correctly. The trial court could and should have taken steps to clarify the matter. It could have inquired as to whether and how the jury resolved the question it posed in a special polling process. It could have refused to accept the verdict until after it gave a clarifying instruction and allowed further deliberation to confirm the jury's resolve. Having failed to address the issue at all, we are left to speculate.
Reversal is not mandated because D-9A, when read together with other instructions, is confusing when viewed objectively. Reversal is mandated because there is concrete evidence that the instruction was in fact confusing to the jury. Appellant's failure to object to the instruction when given cannot be deemed a waiver of her right to have the jury's manifest confusion resolved to the extent that the instruction has some ambiguity and to the extent that it can be resolved by a clarifying instruction.
Here, D-9A could have been clarified by substituting the words "proves neither" for the words "fails to prove both." Admittedly, this simple solution might not have been readily apparent in the heat of the moment, and the court therefore cannot be faulted for taking some time to get an appropriate instruction. The solution actually suggested by plaintiffs was an additional instruction, or paragraph for D-9A, reading as follows:
The court tells you that if you find the plaintiff has proven either one of the theories or claims by a preponderance of the evidence, you must return a verdict for the plaintiff, Claudia Arledge.
This language does clarify D-9A and should have been given before the verdict was accepted.
The court's error was in not getting assurance on the record that the confusion was correctly resolved.
We should be beyond the point where we are afraid of post-voir dire dialogue with jurors. Surely the court could have inquired of the foreman, on the record, if and *785 how their query was resolved by them. If not, certainly, the prepared clarifying instruction could have been given and a determination made by polling or further deliberation whether the clarifying instruction affected the verdict.
DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ., join this opinion.
ROY NOBLE LEE, Chief Justice, dissenting:
For the reasons stated below, I would affirm this case in its entirety.
I.
In February 1987, Dr. Charles McFatter successfully performed liposuction and abdominoplasty on Claudia Arledge. Arledge later complained about the resultant scar and some pain she had begun to experience allegedly due to the scar. She filed a complaint in the Warren County Circuit Court against McFatter and alleged that he negligently performed the operation. The record does not reveal the specifics of Arledge's allegation; she failed to explain through the record or her brief how McFatter allegedly breached the applicable standard of care and how such breach proximately caused her alleged injuries.
At trial, McFatter's experts testified that McFatter complied with the applicable standard of care and committed no negligence. They explained that any pain which Arledge may have been experiencing from the scar was due to her obesity:
[T]he difference in the skin and the scar is very important and in my view is the ... key to what really happened in this particular case. This woman [Arledge] is complaining ... of pain in this [surgical] wound, and it's from the scar, [which] doesn't contain elastic fibers and you know any of us sitting anywhere in the world knows that if you eat more and you gain more, your belly hangs out more. If you eat less it comes back in because there's elastic fibers inside the skin so it can stretch and get bigger with pregnancy, for instance, and smaller with weight ... loss. [A] scar doesn't [have such elasticity]. That scar doesn't have the same ability. So if this lady [Arledge] would take off fifty to sixty pounds, there would be no pain in her wound, or rather than, if she feels she can't, if she has multiple incisions into that wound to release all the pressure so that the scar itself could separate, and allow more room for her obesity to come through, she'd be relieved of her pain in five minutes.
Because Arledge failed to designate a complete record, this Court will never know what evidence she presented at trial to support her allegations against McFatter.[1]
At the conclusion of the trial, Judge Vollor instructed the jury. During its deliberations, the jury provided the bailiff with a handwritten note for delivery to the judge. This note inquired:
If we vote one issue for Plaintiff and the other for the Defendant, how do we decide? Read last paragraph.
"Read last paragraph" referred to the last paragraph in Instruction D-9B, which the jury appended to the note:
INSTRUCTION D-9B
The Court instructs the jury that the Plaintiff is seeking damages against Dr. McFatter based on two (2) theories of law: 1) negligence or breach of the applicable standard of care of physicians performing liposuction and abdominoplasty; and 2) failure to obtain the Plaintiff's informed consent for the liposuction and abdominoplasty.[2]
These theories of law involve separate claims and must each be separately proved. If the Plaintiff fails to prove either of these claims by a preponderance or greater weight of the credible evidence, then you should consider the other claim before you may return a *786 verdict. If the Plaintiff fails to prove both of these claims by a preponderance or greater weight of the credible evidence, then your verdict shall be for Dr. McFatter.
Before the judge could provide the jury with a new instruction,[3] the jury returned a verdict in favor of McFatter. Arledge moved for a j.n.o.v. or new trial on the basis that Instruction D-9B was "misleading, confusing and peremptory in nature" and that the jury was not re-instructed in a timely manner. Arledge contended that the untimeliness led the jury to "assume" that "no additional instruction was forthcoming and felt compelled to decide for [McFatter]." The judge issued a well-reasoned opinion through which he denied the motion:
OPINION
During the deliberations the jury sent a note to the Court asking "If we vote one issue for the Plaintiff and the other for the Defendant how do we decide? Read last paragraph " and included instruction D-9B, which stated in substance, that if the Plaintiff failed to prove both claims, 1) Negligence or breach of standard of care and 2) failure to obtain informed consent then the verdict must be for Dr. McFatter, the Defendant. The Court inquired if the parties would agree to further instruction, and Defendant objected. The matter was researched and based on the case of Clarke v. Pierce, 34 So. 4, 82 Miss. 462 (1903) the Court determined to give further instruction over objection of Defendant. Another instruction was drafted, objection of Defendant was noted, but before the instruction could be given the Bailiff, the jury announced that it had reached a verdict. Approximately forty-five minutes had lapsed since the note was sent out and the verdict was reached. That verdict was for the Defendant. A poll of the Jury indicated it was a 10-2 decision. The Court as is its standard practice distributed voluntary anonymous questionnaires to the jury panel on their experience as jurors. Three were returned and one of the three complained that the instructions were confusing.
The Court notes that Instruction c-1 informed the Jury, "You are not to single out one instruction alone as stating the law, but you must consider these instructions as a whole"; and further, "You are not to single out any certain witness or individual point or instruction and ignore the others."
Instruction P-2A set forth the standard of reasonable diligence, skill, competence and prudence of minimally competent physicians, and instructed that if the Jury found that the Plaintiff was obese with a large panniculus and that the Defendant determined to perform the liposuction and abdominoplasty and in so doing [failed] to use reasonable and ordinary care as other minimally competent physicians would ordinarily exercise, "then you must return a verdict for Plaintiff, Claudia Arledge." (Emphasis added).
Instruction P-8 set forth the duty to inform Plaintiff of material risk of surgery and defined material risk. The instruction further stated that if the Jury found the Defendant failed to inform of material risk "then it shall be your sworn duty to return a verdict for Claudia Arledge." (Emphasis added).
Instruction D-9B as set forth above, points out that the Plaintiff was proceeding on two separate theories which must be proved separately, that the Jury must consider both theories, further, if the Plaintiff failed to prove one theory, then the Jury was to consider the other; and, if Plaintiff failed to prove both theories, to return a verdict for the Defendant.
The Court notes that the Defendant initially submitted approximately twenty-five (25) instructions. During the course of the trial they withdrew most of those *787 requested instructions and re-submitted and further re-submitted a third draft of some of the requested instructions.
The Plaintiff initially submitted approximately seven (7) instructions and withdrew three (3) or four (4) and re-submitted those instructions with an additional instruction.
The Court spent four hours going over the instructions with the attorneys and is of the opinion that the Jury although not perfectly instructed was adequately instructed.
The question posed by the Jury could have been readily resolved by referring to Instructions P-2A and P-8 if it was not clear in D-9B. The Jury sent Instruction D-9B with the note and kept the other instructions with them. The Court concludes that the Jury must have reviewed the remainder of the instructions and resolved any difficulty any juror may have had for they returned a verdict before the Court responded to their question. To have returned a verdict for the Defendant, the Jury would have had to conclude that Plaintiff did not prove either negligence and breach of care as set forth in P-2A, or lack of informed consent as set forth in P-8, because both instructions require a Plaintiff's verdict if either was proved. The Court cannot conclude or find that the Jury was confused.
The Court further finds that this case involved disputed facts supported by credible evidence upon which reasonable persons could differ and the verdict was not contrary to the clear and overwhelming weight of the evidence.
The Court concludes that Plaintiff's motion for J.N.O.V. or, in the alternative, for a new trial should be overruled.
Arledge appealed and presented two issues:
1. Whether the trial court erred in allowing Dr. McFatter to submit nineteen more instructions than are allowed by Uniform Circuit Court Rule 3.09?
2. Whether the trial court failed to instruct the jury after the jury requested further instruction during deliberation?
A majority of this Court has decided to reverse. This decision is erroneous as a matter of law.
II.
1.
The gist of the majority's decision to reverse is speculation that the jury was confused by and "failed to follow" Instruction D-9B, to which Arledge objects on appeal as "misleading, confusing, and peremptory in nature." Regrettably for Arledge, she failed at trial to object to the instruction in its present form:[4]
INSTRUCTION D-9B: BY THE COURT: You previously had objected to that.
BY MR. TELLER [Arledge's counsel]: We have no objection.
BY THE COURT: It will be given.
Rec. Vol. II, at 5.
Thus, Arledge raised no objection and waived her right to challenge the instruction on appeal. See Capital Transport Co. v. McDuff, 319 So.2d 658, 661-62 (Miss. 1975) ("Interesting here is the fact that at the trial level Capital made no objection to appellee's instruction which expressly authorized the jury to find against Capital only."); Young v. Robinson, 538 So.2d 781, 783 (Miss. 1989) (declining to address appellant's challenge to two instructions because he failed to object to them at trial level); Shell Oil Co. v. Murrah, 493 So.2d 1274, 1276 (Miss. 1986) (same); Todd v. Turnbull, 469 So.2d 71, 76 (Miss. 1985) (same); see also Unif.Cir.Ct.R. 3.09.
The majority conveniently omits from its opinion the fact that Arledge did not raise an objection albeit the majority is well aware that a procedural bar is applicable under entrenched case law. The majority's refusal to apply a procedural bar in this case is inconsistent with its decision in another case: Meena v. Wilburn, 603 So.2d *788 866, 873 (Miss. 1992). In Meena, Justice Prather wrote:
With regard to Meena's contention that submission of Instruction 15 confused the jury, this Court declines to address this "sub-issue" because Meena failed to raise it at the trial level.
Thus, two majority opinions recently have been written by this Court. Each involves an allegation that a particular instruction confused the jury. And each involves a failure by the appellant to object to the instruction at the trial level. In one opinion (Meena v. Wilburn), this Court concluded that the appellant's failure constituted a waiver of his right to raise the issue on appeal. In the other opinion (Arledge v. McFatter), this Court without explanation wholly ignored application of the procedural bar.
This Court should avert the blatant inconsistency and decide to apply a procedural bar in both cases or in neither.
2.
In addition to procedural grounds, this Court should affirm the case sub judice on substantive grounds. In other words, the challenged instruction is correct as a matter of law. The majority certainly agrees that the instruction is correct: "This Court has reviewed all the instructions and concludes that they adequately state relevant law." See op. at 783. The majority then speculates that the jury rendered the verdict in a confused and impatient state of mind. Such speculation flies in the face of the principle upon which the majority relies: As a matter of institutional imperative, "our law presumes that jurors follow the trial judge's instructions, as upon their oaths they are obliged to do." Parker v. Jones County Community Hosp., 549 So.2d 443, 446 (Miss. 1989). Indeed, Justice Prather relied on this principle only three months ago to affirm in a case where an error in instruction was alleged:
Regarding the standard for reviewing jury instructions, an instructional error will not warrant reversal if the jury was fully and fairly instructed by the other instructions. This Court assumes that juries follow the instructions given.
Collins v. State, 594 So.2d 29, 35 (Miss. 1992) (emphasis added); see also Middle-brook v. State, 555 So.2d 1009, 1013 (Miss. 1990); Jerry Lee's Grocery, Inc. v. Thompson, 528 So.2d 293, 295 (Miss. 1988); Shoemaker v. State, 502 So.2d 1193, 1195 (Miss. 1987); Mississippi Farm Bureau Mut. Ins. Co. v. Todd, 492 So.2d 919, 934 (Miss. 1986); Gray v. State, 472 So.2d 409, 414 (Miss. 1985); Evans v. State, 422 So.2d 737, 744 (Miss. 1982); Clanton v. State, 279 So.2d 599, 602 (Miss. 1973); Atwood v. Lever, 274 So.2d 146, 148 (Miss. 1973).
Neither the majority nor Arledge has provided a sufficient reason to "take this case out of the general principle." Parker, 549 So.2d at 446. Indeed, the judge polled the jury and found that ten jurors voted in favor of McFatter and two voted against. Moreover, a questionaire routinely submitted to jurors upon completion of a trial revealed only one juror who admitted to being somewhat confused by the instructions as a whole. Certainly, such revelation does not warrant reversal of this case. The trial judge did not think so, and the record is devoid of anything to show that his thinking should be deemed an abuse of discretion.
In sum, even if Arledge had preserved this issue by contemporaneous objection, this Court should affirm on the basis that the jury was correctly instructed and it presumably followed the law as instructed.
III.
In conclusion, the decision to reverse is erroneously based on mere speculation that the jury was confused by an allegedly misleading instruction. The majority opinion is replete with errors, inconsistencies, and disregard for entrenched law. This Court should affirm the trial judge's well-reasoned and correct decision to deny Arledge's motion for a j.n.o.v. or new trial.
HAWKINS, P.J., and ROBERTSON and PITTMAN, JJ., join this dissent.
ROBERTSON, Justice, dissenting:
I.
I respectfully dissent, because I rather suspect the jury did the same thing with *789 Instruction D-9B I did. The hurried reader will invariably remember most the first and last sentence of a text. When I hurriedly read Instruction D-9B, it struck me something was wrong. In a case where Plaintiff advances two separate and independent theories of recovery, the Defendant does not win if the Plaintiff fails on either but only one. But if you step back from the instruction and read it a couple of times, not only does any confusion disappear, but we quickly see that the instruction is a correct statement of the law.
In its first sentence it tells the jury the Plaintiff presents two claims: (1) negligence and (2) failure to obtain Plaintiff's informed consent. The Court tells the jury that Plaintiff presents "two theories of law" and these "involve separate claims" and that each must be "separately proved." In further clarification the Court then says, if you find the Plaintiff has failed on one of her claims, you should then "consider the other claim before you may return a verdict." At this point, the said-to-be offending sentence,
If the plaintiff fails to prove both of these claims by a preponderance or greater weight of the credible evidence, then your verdict shall be for Dr. McFatter,
makes perfectly good sense. The sentence is legally correct in the sense that, if Plaintiff fails to prove both of her claims, the verdict should be for the Defendant. It is linguistically correct because the Court has just explained that the two claims are separate and distinct and what the jury should do if it finds against Plaintiff on one claim move on to the next! Having told the jury what it should do if it fails to find for Plaintiff on one claim, it makes perfectly good sense for the Court to then tell the jury what to do if it finds Plaintiff has failed in her proof on both claims.
II.
There is a procedural point. Plaintiff Arledge has failed in every way I can imagine to preserve this claim for review. At trial, the record reflects that Instruction D-9B was the subject of considerable discussion. Plaintiff objected to the instruction in its original form. Defendant revised Instruction D-9B and resubmitted it, at which point Plaintiff's counsel reviewed it and stated that he had no objection. The Court then submitted Instruction D-9B to the jury. Ordinarily, we do not consider on appeal the correctness of instructions unless the appellant has noted his objection below and "specifically point[ed] out his ground for objection." Rule 3.09, Uniform Circuit Court Rules; see also, e.g., Young v. Robinson, 538 So.2d 781, 783 (Miss. 1989); Thames v. Eicher, 373 So.2d 1033, 1036 (Miss. 1979).
Not only that, Arledge has not designated the issue for consideration on appeal. Ordinarily, our rule is that "no issue not distinctly identified shall be argued by counsel," Rule 28(a)(3), Miss.Sup.Ct.Rules, although of course, the Court may "notice a plain error." I do not understand Arledge to be suggesting that this is a case in point for plain error, nor does the majority appear to proceed on this premise. Yet, the majority reaches out and seizes upon a perfectly correct instruction and holds it error and the principal grounds for reversal.
III.
There is a broader context. In case after case, we have held we will not reverse for a less than perfect jury instruction where the courts considered as a whole clears up any confusion and provides adequate guidance for the jury. See, e.g., Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 40 (Miss. 1989); Byrd v. F-S Prestress, Inc., 464 So.2d 63 (Miss. 1985). This view is but a function of our rule that juries should not single out any one instruction and certainly should not single out a lone sentence in one instruction and consider them out of context. In fact, we find that in Instruction C-1 the Court told the jury, "You are not to single out any ... individual point or instruction and ignore the others."
In point of fact, Instruction P-2A, granted at Arledge's request, correctly advised the jury of the elements of Arledge's negligence *790 claim.[1] Arledge requested another instruction, number P-8, which the Court gave regarding her informed consent claim.[2] When I read together Instructions P-2A, P-8 and D9-B, I am left with the thought, if we are going to hold these instructions inadequate to submit this case to the jury, we have arrogated to ourselves a weapon with which to reverse any verdict that happens not to suit our fancy.
IV.
None of this is to say that the Circuit Court was without the prerogative to grant a further or supplemental instruction to the jury in the face of the note the Court received regarding Instruction D-9B. I understand the majority to be saying this is a matter within the sound discretion of the Circuit Court, and I certainly agree. I accept the further suggestion that, in cases such as this, the Court advised the jury with reasonable promptness whether the Court will submit a supplemental instruction. None of this detracts from the legal adequacy of the instructions the jury had before it when it returned its verdict for the Defendant. It strikes me the defense violated the spirit, if not the letter, of Rule 3.09 regarding the procedural handling of jury instructions pre-trial and at trial, but I think the Circuit Court's handling of this point was well within its discretion.
ROY NOBLE LEE, C.J., and HAWKINS, P.J., concur in this opinion.
NOTES
[1] Specifically, Arledge failed to include a transcript of her own testimony as well as that of her expert or experts assuming she presented expert testimony.
[2] Curiously, Arledge did not allege a lack of informed consent in her complaint. See Rec. Vol. I, at 18.
[3] The new instruction stated "that if you find the plaintiff has proven [sic] either one of the theories or claims by a preponderance of the evidence, you must return a verdict for the plaintiff, Claudia Arledge." Rec.Vol. 2, at 13.
[4] Arledge had objected to an earlier form of the instruction.
[1] INSTRUCTION NO. P-2A
The Court tells you that Defendant, Charles W. McFatter, did hold himself out to the public and to Plaintiff, Claudia Arledge, as a specialist in liposuction and abdominoplasty and as one being capable of recommending and performing such surgical operations. Therefore, the Court tells you that Charles McFatter had the duty to use his knowledge to treat Claudia Arledge with such reasonable diligence, skill, competence and prudence as other minimally competent physicians in good standing would ordinarily exercise in like cases. Consequently, if you believe from a preponderance of the evidence that:
1. Claudia Arledge was obese with a large panniculus at the time she presented herself to Dr. McFatter for the performance of liposuction; and
2. Charles W. McFatter determined to perform the operation of liposuction and surgery of abdominoplasty on Claudia Arledge in conjunction with a hysterectomy; and
3. In agreeing and determining to perform such procedures, the Defendant, Charles McFatter, failed to use reasonable and ordinary care as other minimally competent physicians in good standing would ordinarily exercise in like cases; and
4. Charles McFatter's agreement to perform, and the performance of such procedures, was the sole proximate cause or a proximate contributing cause of Plaintiff's injuries, if any, Then you must return a verdict for Plaintiff, Claudia Arledge.
[2] NO. P-8
The Court instructs the jury that Mrs. Arledge had four surgical procedures performed on her and the names of them are: liposuction, abdominoplasty, hysterectomy and appendectomy.
Dr. McFatter had the duty to inform Mrs. Arledge of the reasonable material risk of surgery.
The Court instructs the jury that a risk is material if it would be important to a reasonable person and the patients' position in making the decision whether or not to undergo the procedure or treatment. These material known risks include nature and purpose of the proposed treatment, risks and consequences of the proposed treatment and the probability that the proposed treatment will be successful.
The Court further instructs the jury that if you believe from a preponderance of the evidence that Dr. McFatter failed to inform Mrs. Arledge of the material risks known to reasonably prudent physicians performing these procedures and that a reasonably prudent patient would not have undergone the surgical procedures after having been informed of said risks, then it shall be your sworn duty to return a verdict for Claudia Arledge.
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41 F.3d 1516NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
John P. THOMAS, Plaintiff-Appellant,v.JOHNSTOWN, TOWN OF; James C. Noah, Mayor; Debra Arndt,Trustee; Carl Yost, Trustee; Dwight Sullivan, Jr.,Trustee; Ray Wadas, Trustee; Dave Bejerano, Trustee;Chester T. Hays, Trustee; Dale Windsor, Trustee; ElizabethA. Whitmore, Trustee; Michael Engrav, Trustee; LucilleTrefeisen, Private Party; James D. Anderson, PoliceOfficer, W.R. Swearengin, Board Adj.; John L. Marostica,Jr., Board Adj.; Roger L. Lindgren, Board Adj.; Ernest D.Bower, Police Chief; Woodrow W. Collins, Bldg. Indp.; VernTregoning, Bldg. Insp.; John Perrott, Town Attorney;Patricia A. Burger, Attorney Sec.; Jonathan W. Hays, WeldCounty District Judge; Ed Jordan, Weld County Sheriff;Wanda Vroman, Private Party; James Vons, Defendants-Appellees.
No. 94-1279.
United States Court of Appeals, Tenth Circuit.
Nov. 18, 1994.
Before McWILLIAMS, BARRETT and LOGAN, Senior Circuit Judges.
ORDER AND JUDGMENT1
1
After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
2
John P. Thomas, also known as John Paul Thomas, appearing pro se, appeals from the district court's order dismissing his complaint filed October 18, 1993, pursuant to 42 U.S.C.1983 wherein he alleged that the defendants conspired and maliciously violated his rights under the Fourth, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendments to the United States Constitution. Thomas sought both exemplary and punitive damages, attorney fees he had previously expended, expert fees, and injunctive relief.
3
The plaintiff initiated this action following extensive and unsuccessful proceedings in state court resulting in a sheriff's sale of plaintiff's structure in the Town of Johnstown, Colorado, after it was judicially found to be a nuisance in violation of the Town's ordinances.
4
The last act alleged in the plaintiff's complaint is that the town attorney of the Town of Johnstown unlawfully entered upon his property and removed personal items, but no date or time is alleged. Accordingly, the record indicates that the last act committed by any of the defendants with a fixed date is the order by state District Judge Jonathan W. Hays, of Weld County, Colorado, a named defendant, in ratifying the Sheriff's sale of plaintiff's property on September 19, 1991.
5
Wilson v. Garcia, 471 U.S. 261 (1985) established that 1983 claims "are best characterized as personal injury actions," id. at 280, and that for statute of limitations purposes the courts must look to the applicable statute in the state where the action is brought. C.R.S. 13-80-102(1)(a) provides that "tort actions, including but not limited to actions for negligence, trespass, malicious abuse of process, malicious prosecution, outrageous conduct, interference with relationships, and tortious breach of contract" must be brought within two years. In this case, the two-year period expired on or about September 19, 1993. Accordingly, because plaintiff's action was not filed until October 18, 1993, it is barred under the Colorado statute of limitations.
6
The district court recognized, as do we, that a pro se complaint must be liberally construed. Haines v. Kerner, 404 U.S. 519 (1972). The court found/held that: plaintiff's claims are time-barred under the applicable statute of limitations; plaintiff's due process claims are not properly stated and cannot reasonably be inferred from the factual recitations in the complaint; there are insufficient facts alleged upon which to base any 1983 claims; plaintiff failed to state a 1983 claim of conspiracy; and plaintiff's claim for injunctive relief to prevent further prosecution in state court actions is not properly before the court.
7
Following the court's order dismissing plaintiff's complaint, plaintiff filed a motion to amend his complaint which was denied.
8
On appeal, plaintiff contends that (1) the district court abused its discretion in denying his motion to amend his pleadings or complaint in order to comply with Fed.R.Civ.P. 8(a), and (2) the district court erred in holding that his complaint fails to state a cause of action.
9
In Cooper v. Shumway, 780 F.2d 27, 29 (10th Cir.1985), we held that the district court did not abuse its discretion in refusing to grant plaintiff leave to amend his complaint after final judgment. A final judgment on a motion to dismiss precludes plaintiff from amending his complaint as of right pursuant to Fed.R.Civ.P. 15(a). The district court did not abuse its discretion in denying plaintiff's motion to amend his complaint. Justice did not so require. See Rule 15(a).
10
We affirm for substantially the reasons set forth in the district court Order of dismissal dated and filed March 31, 1994.
1
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 the court's General Order filed November 29, 1993. 151 F.R.D. 470
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697 So.2d 1301 (1997)
Cheryl R. FORD, Petitioner,
v.
Larry CAMPBELL, Sheriff of Leon County, Respondent.
No. 97-2528.
District Court of Appeal of Florida, First District.
August 19, 1997.
*1302 Nancy A. Daniels, Public Defender, and Randolph P. Murrell, Assistant Public Defender, Tallahassee, for petitioner.
No appearance for respondent.
PADOVANO, Judge.
Cheryl R. Ford petitions this court for a writ of habeas corpus to challenge the legality of her detention. She contends that the trial court erred in denying her motion for release on recognizance because the state failed to file an information within forty days, the outer time limit set by rule 3.134 of the Florida Rules of Criminal Procedure. We conclude that the petitioner is not entitled to release because she did not file her motion until after the expiration of the forty-day time limit set by the rule, and because the state had filed an information by the time of the hearing on the motion. Therefore we hold that the petitioner is not entitled to relief by habeas corpus and we deny the petition.
The petitioner was arrested on March 8, 1997, for aggravated battery. Because she was unable to post bail in the amount set by the court, she remained in the respondent's custody at the Leon County Jail. On April 29, 1997, fifty-two days after the arrest, the petitioner filed a motion under rule 3.134 for an order releasing her on her own recognizance. The motion was scheduled for a hearing on May 19, 1997, but, in the interim, the state filed an information charging the petitioner with aggravated battery. The trial court denied the petitioner's motion and she then filed her petition for writ of habeas corpus in this court. We denied the petition on June 27, 1997, by an unpublished order in which we explained that this opinion would follow.
Rule 3.134 provides that the state shall file an information against a defendant held in custody, within thirty days of the defendant's arrest. The state's failure to file an information within that time can lead to an order releasing the defendant, but the rule provides that the state must be given notice of the defendant's prospective release, and it contains two provisions allowing the state additional time to file the charge before the defendant is released. Subdivision (1) states that the court shall order the defendant's release on recognizance on the thirty-third day after the arrest if an information has not been filed by that time. This provision affords the state an additional three days to file an information once the issue has been raised. Subdivision (2) authorizes the trial court to defer the defendant's release until the fortieth day after the arrest, on a showing of good cause by the state, if the charging document is not filed by that time. The effect of this outer time limit is underscored by the last sentence of the rule which states that in no event shall a defendant be held beyond forty days after the arrest unless the state has formally charged the defendant with a crime.
The petitioner contends that she is entitled to be released on her own recognizance despite the eventual filing of the information because the rule provides that an uncharged defendant shall not be detained for more than forty days. We disagree. The last sentence of the rule does create an entitlement to release after forty days but that assumes the defendant has previously filed a motion for release. The rule does not *1303 allow a defendant to wait until after the expiration of the forty-day time limit to file a motion for release and then to claim an absolute right to release regardless of the state's response. Such an interpretation would nullify the provision in the rule that requires notice to the state before a defendant is released, and it would deprive the state of its opportunity to cure the error by filing an information within the additional time allowed by subdivision (1) or (2).
Rule 3.134 does not establish an independent duty on the part of the trial court to initiate a proceeding to determine the legality of a defendant's detention. It is true that the rule places the burden on the court to give notice to the state before releasing a defendant, and that it requires the court to enter an order releasing the defendant "automatically" if an information is not filed within the applicable time period, but these provisions cannot be interpreted to mean that the court must raise the issue on its own motion. If that were the case, the trial court would be obligated to monitor the jail population constantly and to compare jail intake data with court records for each defendant in custody to identify those uncharged defendants who remain in custody beyond the initial thirty-day time period set by the rule. We reject this interpretation. Instead we adopt the more practical view that rule 3.134 is not self-executing. The rule creates a right to release but it presumes that the defendant will assert that right by filing an appropriate motion.
Our decision is consistent with the supreme court's interpretation of the rule in effect before the adoption of rule 3.134. In Bowens v. Tyson, 578 So.2d 696 (Fla.1991), the court held that the defendant was not entitled to release on recognizance because the information, although filed more than forty days from the arrest, was ultimately filed before the hearing on the defendant's motion. While Bowens involved the construction of former rule 3.133(b)(6), the part of the rule establishing an outer limit of forty days was not changed in any material respect when the supreme court amended that rule and renumbered it as rule 3.134. See In re Amendment to Florida Rules of Criminal ProcedureRule 3.133(b)(6) (Pretrial Release), 573 So.2d 826 (Fla.1991).[1]
In summary, we hold that the petitioner is not entitled to release on recognizance because she waited until after the outer limit of forty days to file her motion and because the state cured the error by filing an information by the time of the hearing on the motion. For these reasons, we deny the petition for writ of habeas corpus.
Petition denied.
DAVIS and VAN NORTWICK, JJ., concur.
NOTES
[1] The relevant portion of former rule 3.133(b)(6) provided that "[i]n no event shall any defendant remain in custody beyond 40 days unless he or she has been charged with a crime by information or indictment."
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11TH COURT OF APPEALS
EASTLAND, TEXAS
JUDGMENT
Tony Lee Jones, * From the 35th District Court
of Brown County
Trial Court No. CR24776.
Vs. No. 11-17-00049-CR * February 21, 2019
The State of Texas, * Memorandum Opinion by Bailey, C.J.
(Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.,
sitting by assignment)
(Willson, J., not participating)
This court has inspected the record in this cause and concludes that there
is no error in the judgment below. Therefore, in accordance with this court’s
opinion, the judgment of the trial court is in all things affirmed.
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340 F.3d 345
O.J. DISTRIBUTING, INC., a/k/a Great State Beverage, Plaintiff-Appellant,v.HORNELL BREWING COMPANY, INC., d/b/a Ferolito, Vultaggio & Sons, a/k/a AriZona Beverages, Defendant-Appellee.
No. 01-1583.
United States Court of Appeals, Sixth Circuit.
Argued: January 28, 2003.
Decided and Filed: August 14, 2003.
Petition for Rehearing Denied En Banc: September 30, 2003. Pursuant to Sixth Circuit Rule 206
ARGUED: Matthew A. Gibb, GIBB LAW FIRM, Shelby Township, Michigan, for Appellant. John A. Ruemenapp, WEISMAN, YOUNG, SCHLOSS & RUEMENAPP, Bingham Farms, Michigan, for Appellee.
ON BRIEF: Matthew A. Gibb, GIBB LAW FIRM, Shelby Township, Michigan, for Appellant.
John A. Ruemenapp, WEISMAN, YOUNG, SCHLOSS & RUEMENAPP, Bingham Farms, Michigan, for Appellee.
Before: BATCHELDER, MOORE, and CLAY, Circuit Judges.
CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. BATCHELDER, J. (pp. 360-361), delivered a separate opinion concurring in part and dissenting in part.
OPINION
CLAY, Circuit Judge.
1
Plaintiff, O.J. Distributing, Inc., a/k/a Great State Beverage, appeals from the district court's order entered on March 29, 2001 granting the motion brought by Defendant, Hornell Brewing Company, Inc., d/b/a Ferolito, Vultaggio & Sons, a/k/a AriZona Beverages, to confirm an arbitration award, while dismissing Defendant's motion to dismiss Plaintiff's amended complaint as moot, and dismissing Plaintiff's motion for summary judgment as moot. For the reasons set forth below, we VACATE the district court's order confirming the arbitration award, and REMAND the case to the district court with instructions that the case should proceed on the merits of Plaintiff's claims inasmuch as Defendant waived its right to arbitrate under the Agreement.
BACKGROUND
Procedural History
2
Plaintiff, a Michigan corporation, filed suit against Defendant, a New York corporation, in the Eastern District of Michigan on May 11, 1998, on the basis of diversity of citizenship and the amount in controversy being over $75,000, claiming that in May of 1997, Defendant breached the provisions of the "Distributing Agreement" ("the Agreement") held between the parties for the distribution of AriZona beverage products. Plaintiff mailed the complaint to Defendant's corporate counsel along with a request for waiver of service in May of 1998. The waiver had not been returned as of July of 1998, so Plaintiff sent an additional copy of the complaint to Defendant's corporate counsel via overnight courier.
3
On or about August 4 and 5, 1998, Defendant sent two letters to counsel for Plaintiff demanding arbitration. Defendant based its demand on a provision of the Agreement that provided for arbitration of any dispute that arose between the parties and that the arbitration must be commenced within 180 days following the event giving rise to the claim, and further provided that "the failure to abide by such time requirement shall constitute a waiver by the Distributor [Plaintiff] of any rights in respect of, and shall constitute a bar on, any claims by Distributor on the basis of such event or circumstance." (J.A. at 52-53.) Defendant's letters advised counsel for Plaintiff of this provision in the Agreement requiring arbitration of all disputes.
4
On September 4, 1998, via "telecopier and mail," Defendant restated its objections to Plaintiff's attempted service by overnight courier and reiterated that Plaintiff's claims were subject to "mandatory arbitration." The letter also advised Plaintiff that Defendant "was willing to continue a dialogue with you in the hopes of achieving at [sic] an amicable settlement of your claims. Please call if you are interested." (J.A. at 115.) Plaintiff arranged for an entry of default on September 30, 1998, with the Clerk of the United States District Court for the Eastern District of Michigan, and on October 2, 1998, Plaintiff filed a motion for Entry of Default Judgment.
5
Defendant claims that it was not served with any papers regarding Plaintiff's actions with respect to the entry of default, but learned of Plaintiff's actions by way of a voice-mail message from Plaintiff's attorney to Defendant's counsel. Defendant responded by sending a letter to the district court "Via Facsimile" with a copy to Plaintiff's counsel wherein Defendant explained that entry of default was inappropriate because Defendant had not been served in the action, and that Defendant had served Plaintiff with a demand for arbitration as required under the Agreement. At that time, Defendant also filed a cross-motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) for insufficiency of service of process, and moved to dismiss or stay the action pending arbitration.
6
On October 5, 1998, Defendant initiated arbitration proceedings before the American Arbitration Association ("AAA") in New York City, New York and, in accordance with the AAA rules, Defendant served the arbitration papers on Plaintiff via certified mail, return receipt requested. By letter dated October 20, 1998, the AAA acknowledged receipt of Defendant's arbitration demand and requested Plaintiff's responses thereto. The AAA also scheduled an administrative conference regarding the matter for October 27, 1998, and provided information and papers with which the parties were to begin the process of selecting arbitrators and hearing dates.
7
Plaintiff filed a motion on October 28, 1998, seeking a temporary restraining order preventing Defendant from arbitrating the matter. On November 3, 1998, the district court denied Plaintiff's motion for a temporary restraining order, and scheduled a hearing for the various other motions. Thereafter, the district court entered an order on April 2, 1999, denying Defendant's motion to dismiss, while also denying Plaintiff's motion for entry of a default judgment, but granted Defendant's motion to stay the proceedings pending arbitration.
8
In the meanwhile, the arbitration set in New York City was going forward. On April 19, 1999, Plaintiff filed its arbitration summary and statement of issues with the AAA setting forth a claim for damages under the Agreement. Defendant, upon consent of the arbitrators, filed a motion to enforce the 180-day contractual time limitations as set forth in the Agreement, and thereby requested a dismissal of Plaintiff's claims as time-barred. Defendant argued that the 180-day time limit barred Plaintiff's claim and that "[u]nder New York law (which governs this dispute as per ¶ 20.2 of the Agreement), it is well established that only the arbitrators (and not the Courts) are charged with enforcing a contractual time limitation." (J.A. at 531-32 (citation omitted).) Plaintiff responded by claiming that the 180-day period did not begin to run until April 8, 1998, and that Defendant's filing of its demand for arbitration on October 5, 1998 satisfied the time limitation period. In the alternative, Plaintiff argued that because of Defendant's alleged false and deceptive acts throughout the arbitration process, the limitations period should be tolled under the doctrine of equitable tolling. A hearing before the arbitrators was held on March 13, 2000, regarding Defendant's motion to dismiss Plaintiff's claim as untimely.1 Thereafter, on or about March 30, 2000, the arbitrators issued their award dismissing Plaintiff's claims in their entirety.
9
On May 5, 2000, Plaintiff, filed an amended complaint in the district court. Defendant filed a motion on May 22, 2000, seeking to confirm the arbitration award and to dismiss Plaintiff's amended complaint. (J.A. at 216.) Plaintiff, in turn, filed a motion for summary judgment. The district court held a hearing on the various motions on August 11, 2000, and then entered a memorandum opinion and order on March 29, 2001, confirming the arbitration award and finding the remaining motions moot.
10
Plaintiff timely appealed from the district court's March 29, 2001, memorandum opinion and order confirming the arbitration award and denying Plaintiff's motion for summary judgment as moot. Oral argument was heard on January 28, 2003, after which Defendant moved to file a supplemental brief as to a case raised by the panel at oral argument, General Star National Insurance Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434 (6th Cir.2002). Defendant's motion was granted and its supplemental brief has been considered by this Court.
Facts
11
A. Background of the Relationship Between the Parties
12
Defendant is a supplier of certain alcoholic and non-alcoholic beverages including AriZona brand teas and soft drinks.2 Plaintiff is a distributor of non-alcoholic beverage products in the greater Detroit, Michigan area. In April of 1995, Defendant began supplying AriZona beverage products to Plaintiff for distribution in three Michigan counties: Wayne, Oakland, and Macomb. About two months later, on June 16, 1995, Plaintiff entered into a sales agreement ("the Sales Agreement") with a third party for the purchase price of $70,000, for purposes of securing the rights to distribute AriZona products in two additional Michigan counties, Livingston and Washtenaw. According to Plaintiff, Defendant had to consent to Plaintiff purchasing the rights to distribute AriZona products in these two additional counties. Thereafter, on September 16, 1995, Plaintiff and Defendant entered into the Agreement now at issue for the purpose of providing the terms under which Defendant would supply and Plaintiff would distribute AriZona products.
13
Each party not only performed under the Agreement, but Plaintiff allegedly met and exceeded the set sales goals and expended considerable time and resources in exceeding the expected market growth for AriZona products. Plaintiff claims that its efforts resulted in a large and profitable customer list for AriZona products. The performance continued until April of 1997, when AriZona informed Plaintiff that it was terminating the relationship.
B. Events Giving Rise to the Matter at Hand
14
AriZona sent a letter to Plaintiff on April 22, 1997, informing Plaintiff that it was "concluding our non-alcoholic supplier relationship with you" effective May 12, 1997. (J.A. at 155.) The letter was written on AriZona letterhead, signed by Ted Shanahan, Eastern Division Manager, and copied to "Don Vultaggio" at Hornell Brewing in Long Island, New York, as well as to "Lawrence I. Fox" an attorney at McDermott, Will, and Emory ("MW&E") in New York, New York. The letter made no reference the Agreement.
15
In response, on April 24, 1997, Eric Smith, Plaintiff's then counsel, sent a letter to Shanahan acknowledging receipt of the termination letter and informing Shanahan that 1) "[t]he relationship between the parties is subject to an executed Agreement dated September 16, 1995;" 2) the April 22, 1997 letter did not constitute termination "for cause" and under the terms of the Agreement, if Defendant terminated the Agreement without cause, Defendant had to provide Plaintiff with at least thirty days notice; 3) AriZona's legal obligations under the Agreement demanded that certain monies be paid to Plaintiff; and 4) AriZona's actions constituted a breach of the Agreement. (J.A. at 189.) The letter also advised AriZona that if it was not willing to act pursuant to the terms of the Agreement, Plaintiff would not hesitate to take legal action. The letter was copied to, among others, Don Vultaggio and Lawrence I. Fox, and sent by certified mail with return receipt requested. The record indicates that Vultaggio and Fox each received the letter. (J.A. at 191-92.)
16
On April 29, 1997, attorney Lisa S. Derman, of MW&E sent a letter to Plaintiff's former counsel Smith, advising Smith that the "firm [McDermott, Will & Emery] [was] litigation counsel for Hornell Brewing Co., Inc. d/b/a Ferolito, Vultaggio & Sons ("Hornell")." (J.A. at 196.) The letter also apprised Smith that his "letter of April 24, 1997, to Mr. Ted Shanahan ha[d] been forwarded to [Hornell] for response." (J.A. at 196.) Finally, the letter advised that MW&E was in the process of reviewing the matter with Hornell, and would contact Smith after gathering "the relevant information." (J.A. at 196.) The letter was copied to Shanahan and Fox.
17
Smith sent a letter to Derman on May 2, 1997 advising her that he had received a direct communication from Shanahan asking Smith to contact him to "discuss an amicable resolution of the matter." (J.A. at 194.) Smith stated that he was hesitant to contact Shanahan directly inasmuch as Derman had indicated that MW&E was representing Hornell, and asked Derman to advise accordingly.
18
Apparently Derman posted no objection to Smith directly contacting Shanahan, inasmuch as Shanahan sent a letter to Smith on May 7, 1997 indicating that, pursuant to a telephone conversation on May 5, 1997, Smith agreed to send Shanahan a complete copy "of a [sic] what O.J. Distributing claims is their `contract' along with case sales information for Washtenau [sic] and Livingston counties[,]" but that Shanahan had yet to receive the materials. (J.A. at 193.) Shanahan therefore asked Smith as to when the materials would be sent. (J.A. at 193.)
19
Smith replied in a May 9, 1997, letter to Shanahan indicating, among other things, that Shanahan's "summation of our conversation [was] not accurate. I am not sending you a copy of anything O.J. Distributing drafted. It is AriZona's contract that it uses for its distributors in this area. It has been executed by your representative." (J.A. at 197.) Smith also discussed monies owed to Plaintiff under the terms of the Agreement. (J.A. at 197-98.) Smith sent another letter to Shanahan on May 14, 1997, indicating additional monies owed to Plaintiff under the terms of the Agreement. (J.A. at 200.)
20
On June 5, 1997, Shanahan sent a letter to Smith requesting copies of Plaintiff's last twelve months "Sales & Inventory" reports for O.J. Distributing. Shanahan advised that "[w]e are hoping to amicably resolve this matter as soon as possible." (J.A. at 201.) On July 1, 1997, Smith sent a letter to Shanahan in response to the June 5, 1997, correspondence indicating that all of the information requested had been sent, and that Smith therefore had "all of the information required to make the calculations necessary to move forward toward a resolution of this matter." (J.A. at 199.) Thus, Smith asked that Shanahan provide his "calculations by the next week's end so that we know more precisely where this matter is going to ultimately head." (J.A. at 199.) Smith added, "[i]f we are going to resolve the situation, we need to address it immediately." (J.A. at 199.)
21
Plaintiff's current counsel Matthew Gibb, sent a letter to attorney Lawrence I. Fox at MW&E on December 12, 1997, indicating that Gibb was representing Plaintiff and that Gibb was writing regarding the breach of the Agreement by Fox's client, Hornell. Gibb requested that Fox contact him regarding the matter. A few weeks later, on January 9, 1998, Gibb sent letter to Don Vultaggio at Hornell Brewing indicating that Gibb represented Plaintiff, that Hornell terminated the Agreement with Plaintiff, and that Gibb attempted to resolve the matter with Lawrence Fox, but Fox did not return Gibb's letters or phone calls. Gibb asked that Vultaggio contact him regarding the matter.
22
Gibb sent a letter to attorney John Calandra of MW&E on January 15, 1998, regarding Plaintiff's claims against Defendant. The letter states that "[a]ttached is a copy of the Sales Agreement assigning Hornell's Distributor Agreement with [Plaintiff]." (J.A. at 160.) The letter further provides a summary of damages that Plaintiff believes it is due under the terms of the Agreement.
23
Several days later, on January 27, 1998, Gibb sent a letter to Calandra and Fox requesting that they advise how they were going to proceed inasmuch as they had "already stated that attempts at litigation or arbitration would be opposed...." (J.A. at 162.) Gibb added that he "look[ed] forward to discussing how these claims may be settled or if it will be necessary to send this matter to arbitration or the federal court." (J.A. at 162.)
24
On February 11, 1998, Gibb sent yet another letter to Calandra requesting that Calandra respond to Gibb's January 15, 1998 letter and advise how Hornell wished to proceed. Gibb also requested that "[i]n the event this matter does proceed to litigation, would you prefer to accept service or should Hornell be served personally?" (J.A. at 163.) Several weeks later, on March 27, 1998, having heard no reply, Gibb sent a letter to Calandra stating that "[m]y client has not received a response to their claim against Hornell Brewing. As no offer of settlement or request for arbitration appears likely, I am advising my client to seek relief from the United States District Court. Please advise on how service should be perfected in this matter. I understand your client is not registered to do business in Michigan under their corporate name and therefore, they do not have a local resident agent.... If you have a better solution to this matter, please call." (J.A. at 164.)
25
Donna Messina, corporate counsel to Hornell, sent a letter to Gibb on April 8, 1998, indicating that Hornell was not aware of the existence of any Agreement with Plaintiff, and asked that if such a document existed. Gibb forwarded a copy to Messina. On that same day, Gibb responded with a letter to Messina and enclosed Plaintiff's "Notice of Lawsuit and Request for Waiver of Service of Summons." (J.A. at 168.) Gibb added, "[a]s your company is not registered to do business in Michigan, I trust that you, as General Counsel, have the authority to accept this complaint. A self-addressed, stamped envelope is enclosed for your assistance." (J.A. at 168.)
26
Several weeks later, on May 26, 1998, Gibb sent a letter to Fox of MW&E stating:
27
When we last spoke I understood that your client, Hornell Brewing, was going to make a preliminary offer of settlement by May 22, 1998. As of the date of this correspondence, I have not received anything to present to my clients. Is the offer forthcoming? ... If no offer is pending in this matter, I need to know if Hornell is agreeing to waive service of [sic] if they desire to incur costs under Rule 4. Please advise what position your client is taking.
28
(J.A. at 171.) Then, on June 22, 1998, in response to a facsimile, Gibb sent a letter to Messina acknowledging that he was in receipt of the facsimile, and advised that his "previous correspondence [was] clear as to what [his] client requires in this matter," and that if Hornell "ha[d] a counter proposal, [Plaintiff] would be happy to consider it. However, at this point, [Plaintiff] cannot delay any longer." (J.A. at 172.) Gibb concluded:
29
"I have not received the waiver of service as requested with my client's complaint. Therefore, I am forced to effectuate personal service in this matter. Under Rule 4 of FRCP, I will be entitled to all costs, including attorneys fees. I do not believe that this matter is being given its proper attention and therefore, feel the Federal Court is my client's only source of relief. If Hornell has an offer in this matter, please fax it to my office upon your return on June 29, 1998. I look forward to hearing from you."
30
(J.A. at 172.)
31
On August 4, 1998, yet another attorney from MW&E, James R. Anderson, sent a letter to Plaintiff stating:
32
We represent Hornell Brewing Co., Inc. d/b/a Ferolito, Vultaggio & Sons ("Hornell") and have received a copy of a summons and complaint in an action styled O.J. Distributing, Inc. v. Hornell Brewing Co., Inc., No. 98-71940 (E.D.Mich) (the "Action").
33
Under ¶ 20.3(b) of the above-referenced Distributor Agreement (the "Distributor Agreement"), the claims asserted by O.J. Distributing, Inc. ("O.J.") in the Action are subject to mandatory arbitration in New York City. Accordingly, Hornell hereby demands arbitration in New York City of O.J.'s claims and such counterclaims as Hornell may choose to interpose.
34
Hornell reserves its right to assert in such arbitration any and all defenses it may have to O.J.'s claims, including but not limited to those relating to the formation and terms of the Distributor Agreement.
35
Please have your attorney contact me to discuss the selection of arbitrators and other procedural and logistical matters.
36
(J.A. at 112-13.) Anderson copied Messina on the letter.
37
Anderson sent a letter to Gibb on August 5, 1998, indicating that Gibb's service of process was ineffective, and reiterating that Plaintiff's claims were subject to arbitration. Anderson copied Donna Messina on the letter. Anderson sent another letter to Gibb on September 4, 1998, 1) confirming that Hornell's time to answer and/or move in response to Plaintiff's complaint had been extended to September 18, 1998; 2) advising that Hornell was not waiving any objection to the service of complaint; 3) Plaintiff's claims were subject to arbitration; and 4) Hornell was willing to continue in dialogue in the hope of reaching an amicable settlement. (J.A. at 115.)
38
On October 2, 1998, Anderson sent a letter to the district court regarding the entry of default, and adding that "Hornell has advised plaintiff's attorney on numerous occasions that there is no basis for this action because the contract that O.J. seeks to enforce herein requires arbitration of the present dispute." (J.A. at 116.) Thereafter, on October 5, 1998, Anderson sent a letter to Plaintiff enclosing the "Demand for Arbitration, filed today [October 5, 1998], instituting proceedings before the American Arbitration Association in New York." (J.A. at 118.) The letter was copied to Gibb and Messina.
DISCUSSION
I. Entry of Default
39
Plaintiff first argues that the district court erred in setting aside the clerk's entry of default and in dismissing Plaintiff's motion for a default judgment.
40
The decision whether to set aside an entry of default under Federal Rule of Civil Procedure 55(c) is reviewed for an abuse of discretion. United Coin Meter Co., Inc. v. Seaboard Coastline R.R., 705 F.2d 839, 844 (6th Cir.1983) (citing Keegel v. Key West & Caribbean Trading Co., Inc., 627 F.2d 372, 373 (D.C.Cir.1980)).
A. Legal Standards
41
The process by which a default may be entered by the clerk of court, and a default judgment entered thereafter by the district court, has been succinctly stated as follows:
42
The Federal Rules of Civil Procedure require a defendant to serve an answer within twenty days of being served with a summons and complaint. Fed. R.Civ.P. 12(a)(1)(A). Rule 55 permits the clerk to enter a default when a party fails to defend an action as required. The court may then enter a default judgment. Fed.R.Civ.P. 55(b)(1). A party against whom a default judgment has been entered may petition the court to set aside the default judgment under Rules 55(c) and 60(b) for good cause, and upon a showing of mistake, or any other just reason.
43
Weiss v. St. Paul Fire & Marine Ins. Co., 283 F.3d 790, 794 (6th Cir.2002).
44
"[I]t is important to distinguish between an entry of default and a default judgment." United States v. Real Property & All Furnishings Known as Bridwell's Grocery & Video, 195 F.3d 819, 820 (6th Cir. 1999) (hereinafter "Real Property"). That is, "`a stricter standard of review applies for setting aside a default once it has ripened into a judgment.'" Id. (quoting Waifersong, Ltd. Inc. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir.1992)). Specifically, "`once the court has determined damages and a judgment has been entered, the district court's discretion to vacate the judgment is circumscribed by public policy favoring finality of judgments and termination of litigation'" as reflected in Rule 60(b). Weiss, 283 F.3d at 794 (quoting Waifersong, 976 F.2d at 292). However, under Federal Rule of Civil Procedure 55(c), "[f]or good cause shown, the court may set aside an entry of default...."
45
"`[T]he district court enjoys considerable latitude under the "good cause shown" standard of Rule 55(c)' to grant a defendant relief from a default entry." Real Property, 195 F.3d at 820 (quoting Waifersong, 976 F.2d at 292). The criteria used to determine whether "good cause" has been shown for purposes of granting a motion under Rule 55(c) are whether "`(1) the default was willful, (2) set-aside would prejudice plaintiff, and (3) the alleged defense was meritorious.'"3 United Coin Meter Co., 705 F.2d at 844 (citations omitted) (quoting Keegel, 627 F.2d at 373); see also Real Property, 195 F.3d at 820. It has been found that a district court abuses its discretion in denying a motion to set aside an entry of default when two of the three factors have been demonstrated by the defendant: the defendant had a meritorious defense and no prejudice would result to the plaintiff if the matter were to go forward. See Shepard Claims Serv., Inc. v. Willaim Darrah & Assoc., 796 F.2d 190, 193-94 (6th Cir.1986).
46
Due process requires proper service of process for a court to have jurisdiction to adjudicate the rights of the parties. Amen v. City of Dearborn, 532 F.2d 554, 557 (6th Cir.1976). Therefore, if service of process was not proper, the court must set aside an entry of default. Id.; see also Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987) ("Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of service of summons must be satisfied."); Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067 (6th Cir.1990).
B. Analysis
47
Plaintiff attempted to receive a waiver of service from Defendant pursuant to Federal Rule of Civil Procedure 4(d). Rule 4(d)(2) provides in part:
48
An individual, corporation, or association that is subject to service under subdivision (e), (f), or (h) and that receives notice of an action in the manner provided in this paragraph has a duty to avoid unnecessary costs of serving the summons. To avoid costs, the plaintiff may notify such a defendant of the commencement of the action and request that the defendant waive service of a summons. The notice and request
49
(A) shall be in writing and shall be addressed directly to the defendant, if an individual, or else to an officer or managing or general agent (other agent authorized by appointment or law to receive service of process) of a defendant subject to service under subdivision (h);
50
Fed.R.Civ.P. 4(d)(2)(A). Rule 4(h) provides in relevant part:
51
Unless otherwise provided by federal law, service upon a domestic or foreign corporation or upon a partnership or other unincorporated association that is subject to suit under a common name, and from which a waiver of service has not been obtained and filed, shall be effected:
52
(1) in a judicial district of the United States in the manner prescribed for individuals by subdivision (e)(1), or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant....
53
Fed.R.Civ.P. 4(h).
54
The district court noted that despite Plaintiff's attempts, it had not received a waiver of summons pursuant to Rule 4(d), and that, as a result, Plaintiff was required to comply with formal service of process. (J.A. at 716.) Specifically, the court opined:
55
I think the parties agree that [Plaintiff's] request for waiver was in writing. It is unclear whether it was addressed to the appropriate officer or agent of [Defendant], and it's not clear whether the request informed [Defendant] of the consequences of complying or not complying with the request under Rule 4(d).
56
* * *
57
Because [Defendant] didn't give its consent to waive service, [Plaintiff] was then required to follow the formal procedure for service of process; and it's undisputed, I think, that [Plaintiff] did not properly affect [sic] service on [Defendant] under the rules.
58
[Plaintiff] sent [Defendant] the Complaint and Summons by Airborne in care of [Defendant's] in-house counsel.
59
It is not clear to me that under the Federal Rules overnight mail is not a proper is a proper method of serving an officer agent or authorized agent. And even if were proper service, it is not clear that the receptionist — it's clear that the receptionist signed for it. And there isn't any evidence, I don't think, in this record that she is an authorized agent of [Defendant] to receive that kind of document.
60
(J.A. at 716-17.)
61
The district court did not err in concluding that service of process was not effected inasmuch as Plaintiff failed to receive a waiver of summons from Defendant, and failed to demonstrate that it served an "authorized agent" by virtue of an unknown receptionist signing for the overnight package for purposes of complying with Rule 4(d) or Rule 4(h). See LSJ Inv. Co., Inc. v. O.L.D., Inc., 167 F.3d 320, 322 (6th Cir.1999) (noting that where the facts are undisputed, determination of whether there was adequate service of process is a question of law); see also Friedman v. Estate of Presser, 929 F.2d 1151, 1154-156 (6th Cir.1991) (finding that service of process under Rule 4(c)(2)(C)(ii), as amended by current Rule 4(d), requires copy of return of notice and acknowledgment form).
62
Therefore, the question becomes whether Plaintiff effected service of process under the alternative method of Rule 4(h); that being, the manner prescribed for individuals under Rule 4(e)(1). See Fed. R.Civ.P. 4(h)(1). Federal Rule of Civil Procedure 4(e)(1) provides:
63
Unless otherwise provided by federal law, service upon an individual from whom a waiver has not been obtained and filed, other than an infant or an incompetent person, may be effected in any judicial district of the United States:
64
(1) pursuant to the law of the state in which the district court is located, or in which service is effected, for the service of a summons upon the defendant in an action brought in the courts of general jurisdiction of the State;....
65
The district court found that Plaintiff had complied neither with Michigan's procedures for effecting service of process, nor those of New York. On appeal, Plaintiff provides no argument as to whether it complied with the laws of either Michigan or New York for effecting service of process. From our independent review of those procedures, we conclude that the district court did not err in finding that the procedures of both states were not properly met. See Mich. Ct. R. 2.105(D) (stating that service of summons and copy of the complaint must be made upon officer, resident agent, director, trustee, or person in charge of an office or business establishment of the corporation, and sending a summons and copy of the complaint by registered mail to principal office of corporation); N.Y. CPLR § 311 (McKinney 1999) ("Personal service upon a corporation or governmental subdivision shall be made by delivering the summons as follows:... to any other agent authorized by appointment or by law to receive service.")
66
Accordingly, the district court did not err in finding that Plaintiff had not properly effected service of process on Defendant, see LSJ Inv. Co., Inc., 167 F.3d at 322, and therefore did not abuse its discretion in setting aside the entry of default. See Amen, 532 F.2d at 557. In light of this holding, we need not weigh the three factors a court considers when setting aside an entry of default when service of process has been properly effected, and Plaintiff's claim regarding the district court's denial of its motion for a default judgment is moot.
II. Stay Pending Arbitration
67
Plaintiff next argues that the district court erred in granting Defendant's motion to stay the proceedings pending arbitration where Defendant's actions constituted a waiver of the arbitration provision.
68
This Court reviews a district court's determination as to the arbitrability of a matter de novo. M&C Corp. v. Erwin Behr GmbH & Co., 143 F.3d 1033, 1037 (6th Cir.1998).
A. Legal Standards
69
"When a suit is brought in federal court on issues that by written agreement are subject to arbitration, the Federal Arbitration Act requires that `the court in which the suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration ... shall ... stay the trial of the action....'" ATAC Corp. v. Arthur Treacher's Inc., 280 F.3d 1091, 1094-095 (6th Cir.2002) (quoting 9 U.S.C. § 3).
70
"[T]here is a strong presumption in favor of arbitration, and ... waiver of the right to arbitration is not to be lightly inferred." Cotton v. Slone, 4 F.3d 176, 179 (2d Cir.1993); see also E.L. Kellett, Annotation, Delay in Asserting Contractual Right to Arbitration as Precluding Enforcement Thereof, 25 A.L.R.3d 1171, 1969 WL 20191 (1969) (providing cases and general principles regarding when delay in enforcing an arbitration right constitutes waiver, laches, or default). However, as this Court recently recognized:
71
"[a]n agreement to arbitrate may be waived by the actions of a party which are completely inconsistent with any reliance thereon." Germany v. River Terminal Ry. Co., 477 F.2d 546, 547 (6th Cir.1973) (per curiam). Although a waiver of the right to arbitration is "not to be lightly inferred," MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 249 (4th Cir.2001) (internal quotation marks omitted), a party may waive the right by delaying its assertion to such an extent that the opposing party incurs actual prejudice. Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 131 (2d Cir.1997) (recognizing that a party waives the right to arbitrate where it delays the invocation of that right to the extent that the opposing party incurs "unnecessary delay or expense") (internal quotation marks omitted).
72
Gen. Star Nat'l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 438 (6th Cir.2002) (alterations in Gen. Star Nat'l Ins. Co.).
73
In General Star National Insurance Co. v. Administratia Asigurarilor de Stat ("General Star"), the Plaintiff, General Star National Insurance Company, an Ohio corporation, brought suit against Astra, S.A. ("Astra"), a Romanian state-owned insurance company, asserting claims for breach of contract and unjust enrichment. 289 F.3d at 436. Astra had assumed the reinsurance contracts of the defendant, Administratia Asigurarilor de Stat. Id. Astra did not respond to the plaintiff's complaint, and the plaintiff moved for a default judgment which the district court granted. Id. About one year later, Astra filed a motion to vacate the default judgment. Id. Astra claimed that the default judgment was void because of an alleged lack of subject matter jurisdiction due, in part, to a clause in the reinsurance contract requiring the parties to submit any disputes arising under the contract to mandatory arbitration, thereby making the issue of whether Astra was a successor in interest to the defendant a matter for arbitration, not a matter for the district court. Id. at 438. Astra also contended that the default judgment should be set aside based on improper service of process. Id. at 437. The district court denied Astra's motion to set aside the entry of a default judgment, and Astra appealed. Id.
74
On appeal, this Court examined Astra's claim that the district court lacked subject matter jurisdiction to hear the matter due to the contract's mandatory arbitration provision. In doing so, the Court also considered whether Astra waived its right to arbitrate, and opined as follows:
75
Astra did not assert its purported right to arbitrate until it filed its motion to vacate the default judgment on March 16, 2000. General Star gave Astra actual notice of the lawsuit on October 16, 1998. Thus for 17 months, Astra remained idle while General Star incurred the costs associated with this action. Astra, moreover, sought arbitration only after the district court had entered a default judgment against it. Under these circumstances, we believe that Astra has waived its right to arbitrate. Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218, 222 (1st Cir.1995) (concluding that the defendant waived its right to arbitrate where it "chose not to invoke arbitration from July 1992 until October 1993 and [the plaintiff] bore the costs of proceeding to try to obtain the sums it thought owed"); Stone v. E.F. Hutton & Co., 898 F.2d 1542, 1543 (11th Cir.1990) (per curiam) (holding that the defendant waived its right to arbitrate where it delayed its assertion of the right for 20 months).
76
Gen. Star Nat'l Ins. Co., 289 F.3d at 438 (alterations and emphasis in Gen. Star Nat'l Ins. Co.).
77
Thus, while there is a strong presumption in favor of enforcing arbitration rights, both this Court and our sister circuits have been willing to find under appropriate circumstances that a party has waived its right to arbitrate by virtue of its actions in delaying the right to the point of prejudicing the other party. See id.
B. Analysis
78
Like Astra in General Star, Defendant in the matter at hand waived its right to arbitrate due to its actions of engaging in negotiations with Plaintiff for approximately fifteen months (April of 1997 through August of 1998), while at the same time denying the existence of the Agreement and, therefore, the arbitration provision, to the prejudice of Plaintiff. As the record indicates, by way of letter dated April 24, 1997 to Shanahan at AriZona, Plaintiff's former counsel, Eric Smith, informed Shanahan that "[t]he relationship between the parties is subject to an executed Agreement dated September 16, 1995." (J.A. at 189.) The record further indicates that this letter also informed Vultaggio at Hornell and attorney Lawrence I. Fox at MW&E of the Agreement in that Smith's letter was copied to these individuals and received by them. In addition, the record indicates that attorney Lisa S. Derman at MW&E was also aware of the Agreement's existence by way of Smith's April 24, 1997 letter, in that Derman sent a letter to Smith on April 29, 1997, apprising Smith that his letter had been forwarded to her for a "response." (J.A. at 196.)
79
The record goes on to show that, apparently by way of permission from Derman, Smith and Shanahan engaged in negotiations, Shanahan requested a copy of the Agreement from Smith in a telephone conversation that occurred on May 5, 1997, and Smith sent Shanahan a copy of the agreement on or about May 9, 1997. It also appears from the record that from May of 1997 through July of 1997, negotiations continued between Smith and Shanahan as to the amount of monies owed to Plaintiff apparently under the terms of the Agreement.
80
The record indicates that the matter was not resolved, Plaintiff obtained new counsel, Gibb, and on December 12, 1997, Gibb sent a letter to Fox at MW&E regarding Defendant's breach of the Agreement and requested that Fox contact Gibb. Having received no response from Fox, Gibb contacted Vultaggio at Hornell by way of letter dated January 9, 1998, regarding Defendant's breach of the Agreement. The record next indicates that on January 15, 1998, Gibb sent a letter to attorney Calandra at MW&E and stated that "[a]ttached is a copy of the Sales Agreement assigning Hornell's Distributor Agreement with [Plaintiff]." (J.A. at 160.) The letter further provides a summary of damages that Plaintiff believes it is due under the terms of the Agreement. Despite Gibb's repeated letters to Calandra during the period of January of 1998 through March of 1998, wherein Gibb in requested that Calandra respond and advise Gibb how Defendant wished to proceed, particularly with respect to the case going to court, Calandra failed to reply.
81
It was not until April 8, 1998 that Messina, corporate counsel for Hornell, sent a letter to Gibb again denying the existence of the Agreement, and requesting that a copy of the Agreement be sent to her. The record indicates that Gibb complied with the request on that same day, and letters were thereafter exchanged between Messina and Gibb clearly indicating that the two were in the midst of settlement negotiations. For example, in a May 26, 1998 letter to Messina, Gibb stated, "[w]hen we last spoke I understood that your client, Hornell Brewing, was going to make a preliminary offer of settlement by May 22, 1998. As of the date of this correspondence, I have not received anything to present to my clients. Is the offer forthcoming?" (J.A. at 171.) No settlement was reached, and Gibb indicated in a June 22, 1998 letter to Messina that it appeared that federal court was his "client's only source of relief." (J.A. at 172.)
82
Finally, after months of communications and negotiations with at least six representatives or attorneys for Defendant, Plaintiff received a letter from yet another attorney at MW&E, James R. Anderson, indicating that Plaintiff's claims as made in its complaint were subject to the mandatory arbitration provision in the Agreement, and that Defendant was "demand[ing] arbitration in New York City of O.J.'s claims and such counterclaims as [Defendant] may choose to interpose." (J.A. at 112-13.) Anderson sent a similar letter to Gibb on August 5, 1998 reiterating that Plaintiff's claims were subject to arbitration. It was not until October 5, 1998, after the entry of default had been made by the clerk of court, that Defendant made a demand for arbitration in New York.
83
Under these facts, it is clear that Defendant was aware of the Agreement's existence, and in fact had possession of the Agreement by way of Plaintiff's counsel in May of 1997, January of 1998, and April of 1998, and therefore was also aware of the arbitration provision therein. However, Defendant did not maintain that Plaintiff's claims were subject to arbitration until August of 1998, and did not demand arbitration until October of 1998, after the entry of default was made. Thus, as in General Star, Defendant slept on its rights for approximately fifteen months (April of 1997 through August of 1998) while Plaintiff incurred costs associated with the matter and was prejudiced as a result. Accordingly, as in General Star, we find that Defendant waived its right to arbitrate the matter. See 289 F.3d at 438.
84
While these actions by themselves appear to be sufficient to conclude that Defendant waived its right to arbitrate under General Star, the fact that the arbitration provision contains a 180-day limitation provides a further basis to conclude that Defendant waived its right to arbitrate. That is, for about one year Defendant appeared to engage in negotiations with Plaintiff as if the claims were, as Plaintiff has consistently maintained, not subject to arbitration; then, after suit was filed Defendant prolonged the matter for two more months before claiming that the matter was governed by the Agreement's arbitration provision. However, at this point, Defendant made the claim that the matter was one for arbitration under the Agreement, secure in the knowledge that the 180-day limitation had long expired inasmuch as the alleged breach of which Plaintiff complained occurred in April of 1997. In fact, when Defendant submitted the matter to arbitration, it did so making a preliminary motion to dismiss Plaintiff's claims as time-barred. Under these facts, Plaintiff suffered "actual prejudice" by Defendant's "delaying its assertion" regarding arbitrability, see General Star, 289 F.3d at 438, and Defendant should therefore be found to have waived its arbitration rights. Id. In its brief on appeal, Defendant argues that once Plaintiff "formally asserted its claims," Defendant "immediately demanded arbitration, and consistently asserted that [Plaintiff's] claims must be arbitrated." Defendant's Br. at 25. Defendant further argues that "although it had no obligation to do so, [Defendant] commenced the arbitration that [Plaintiff] could have initiated — and in fact was required to initiate under the Agreement within 180 days of the occurrence of the events giving rise to its claims." Defendant's Br. at 25. We are not persuaded by Defendant's arguments. The record indicates that Defendant did not "immediately demand arbitration" after Plaintiff filed its complaint in May of 1998, but waited for sixty days before doing so via Defendant's August of 1998 letter to Plaintiff, and waited approximately five months before formally demanding arbitration in New York. Again, Defendant did so after a year or more of claiming that it was unaware of the Agreement's existence — despite Plaintiff's assertions to the contrary and despite Plaintiff providing Defendant with a copy of the Agreement when requested — and after engaging in talks with Plaintiff, thus providing a basis for Plaintiff to believe that Defendant agreed that the matters were not the type for which arbitration applied.
85
In short, for more than a year Defendant acted "completely inconsistent with any reliance" upon the arbitration provision, and "delay[ed] its assertion to such an extent that the opposing party [Plaintiff] incur[red] actual prejudice" inasmuch as the 180-day period for resolving matters pursuant to the arbitration provision had long passed. General Star, 289 F.3d at 438. The district court found at oral argument that Defendant had not waived its right to arbitrate, noting that Defendant had made Plaintiff aware by way of the August of 1998 letter that the matter was to be arbitrated pursuant to the Agreement. The district court erred in so finding inasmuch as Defendant had denied the Agreement's existence for more than a year and knew by the time that it demanded arbitration that the 180 day limitation had expired.
86
Because Defendant waived its right to arbitrate, all of Plaintiff's claims should have been decided on the merits before the district court, thus making it unnecessary for us to address Plaintiff's claim that the district court erred in finding that all issues raised in its complaint were subject to arbitration, or to address any of Plaintiff's other claims raised on appeal.4
CONCLUSION
87
For the above-stated reasons, the district court's order confirming the arbitration award is VACATED, and the case is REMANDED to the district court with instructions that the case should proceed on the merits of Plaintiff's claims.
Notes:
1
Although Defendant makes reference to testimony taken at this hearing in its brief on appeal, (Defendant's Br. on Appeal at 9), no transcript of the hearing is provided in the joint appendix and, according to Plaintiff, "there is no transcript of this hearing." (Plaintiff's Br. on Appeal at 4.)
2
Unless otherwise specified, throughout this opinion, the term "Defendant" shall refer to Hornell and the names under which it has been known or operated
3
The three-part inquiry made by a district court in determining good cause to set aside an entry of default has also been characterized as whether (1) the plaintiff will be prejudiced; (2) defendant has a meritorious defense; and (3) defendant's culpable conduct led to the defaultBerthelsen v. Kane, 907 F.2d 617, 620 (6th Cir.1990).
4
During the district court's ruling on the various motions, the court "noted and preserved for the record" that Mr. Ruemenapp, counsel for Defendant, stipulated on the record that he "accept[ed] service on behalf of all the claims involved[.]" (J.A. at 727.) Specifically, the district court inquired of defense counsel, "That is your stipulation, and you accept service on behalf of all the claims involved?" (J.A. at 727.) Defense counsel replied, "That's correct." (J.A. at 727.) The district court concluded, "Okay. So noted and preserved for the record." (J.A. at 727.) Thereafter, in its April 2, 1999, order which, among other things, set aside the entry of default and stayed the matter pending arbitration, the district court ordered that "Plaintiff shall serve [sic] have fourteen (14) days from the date of this Order to serve Defendant, and John Ruemenapp stated on the record that he is authorized to accept service of the Summons and Complaint in this case on behalf of Defendant." (J.A. at 203.) Inasmuch as there is nothing in the record to indicate that service of process was not effected in compliance with this order, it would appear that Defendant has been served and that the matter may proceed before the district court on the merits
88
ALICE M. BATCHELDER, Circuit Judge, concurring in part and dissenting in part.
89
I concur in the majority opinion's holding that the district court did not err in finding that the plaintiff failed properly to effectuate service of process on the defendant, and therefore, the court did not abuse its discretion in setting aside the entry of default. Because I believe that the majority opinion's reliance on Gen. Star Nat'l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434 (6th Cir. 2002), is misplaced, I respectfully dissent from the finding that the defendant waived its right to arbitrate. I believe, contrary to the majority's conclusion, that Hornell's denial of the existence of the Distributor Agreement, although arguably suspicious, was not contrary to its rights under that agreement to arbitrate any properly filed complaint brought by the plaintiff pursuant to that agreement.
90
General Star involved a situation in which, following a lawsuit properly filed by the plaintiff, the defendant waited more than one year from the entry of a default judgment, and almost seventeen months following the commencement of the suit, before finally appearing before the court and moving to vacate the judgment on the basis of a mandatory arbitration clause contained within the agreement between the parties. Gen. Star, 289 F.3d at 438 (emphasizing the amount of time between the filing of the complaint and the demand for arbitration, and finding that "a party may waive the right by delaying its assertion to such an extent that the opposing party incurs actual prejudice.")1 In General Star, the defendant's actions were inconsistent with the right to arbitrate because the defendant allowed a complaint to sit for a year and a half while the plaintiff incurred the costs of maintaining the litigation. Hornell's actions in the current case — denying the existence of the agreement prior to O.J. Distributing's filing the complaint and demanding arbitration relatively quickly after the filing of the complaint — are clearly distinguishable from the actions of the defendant in General Star. Furthermore, the only prejudice suffered by the plaintiff arose from its failure to timely file the complaint and not from any delay by the defendant in seeking arbitration once the complaint was filed.
91
The terms of the Distributor Agreement required the plaintiff to "formally" assert its claim "no later than 180 days following the event or circumstances giving rise to the underlying claim...." Although the defendant's denial of the existence of the agreement delayed the plaintiff's attempts to negotiate a settlement of the underlying claim, that denial did not prevent O.J. Distributing from "formally" asserting its claim with a properly filed complaint. The plaintiff has never asserted that it was unaware of either the existence of the Distributor Agreement or the requirement that it formally bring its claim within 180 days of the act giving rise to the complaint. None of the actions of Hornell cited by the majority opinion prevented O.J. Distributing from timely filing the complaint. A party's denial of the existence of an agreement giving rise to a cause of action does not foreclose a complaining party's ability to formally bring its charge within the time period specified in the agreement. The impact of Hornell's denial of the contract is completely separate from the question of whether the plaintiff suffered prejudice from the timing of the demand for arbitration once the complaint was filed. No action or delay by Hornell caused the plaintiff to file its complaint after the 180-day deadline had already expired.2 Unlike the facts in General Star, there was no one-year or greater delay by the defendant in demanding arbitration that prejudiced that plaintiff in the present case.
92
General Star does not stand for the proposition that a party to an agreement containing a mandatory arbitration clause must demand arbitration once it is notified that another party might bring suit to enforce rights allegedly violated under the agreement. This is not a case where the plaintiff filed suit within the deadline and the defendant "participated in the litigation" beyond the specified deadline and then moved to dismiss based on a mandatory arbitration clause, or, as in General Star, failed to appear for over a year, forcing the plaintiff to incur costs and delay while attempting to vindicate their rights in court. The obligation on the part of the defendant to demand arbitration arises once the defendant is faced with a properly filed claim. Only where a plaintiff properly files a complaint against the defendant and the defendant subsequently extends the litigation or delays asserting its arbitration rights does the question of prejudice to the plaintiff raise the possibility that the defendant waived the right to arbitrate — this case presents neither of these scenarios. Accordingly, on the issue of the waiver, I respectfully dissent. I would therefore affirm the district court's decision in its entirety.
Notes:
1
The court inGeneral Star relied upon two cases in which the defendants who waited more than a year following the filing of complaint to assert their rights to arbitrate were found to have waived any right to arbitrate the claim. See Gen. Star, 289 F.3d at 438 (citing Menorah Ins. Co. v. INX Reinsurance Corp., 72 F.3d 218 (1st Cir.1995), and Stone v. E.F. Hutton & Co., 898 F.2d 1542 (11th. Cir. 1990)).
2
The possibility that Hornell acted in bad faith when it denied the existence of the contract is not relevant to the question of whether or not it acted inconsistently with its right to arbitrate any formally filed claim. The only time pertinent to the issue raised byGeneral Star is the time after O.J. Distributing filed the complaint. Accordingly, I disagree with the majority opinion's assertion that the defendant "slept on its rights for approximately fifteen months (April of 1997 through August of 1998) while Plaintiff incurred costs associated with the matter and was prejudiced as a result." Supra majority at 24. Specifically, we hold above that the district court did not err in finding that the plaintiff failed to properly effectuate service of process on the defendant. Supra majority at 18. Therefore, the defendant demanded arbitration before the court gained personal jurisdiction over Hornell, e.g., Omni Capital Int'l v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), which is completely contrary to the facts of General Star. Moreover, the only costs relevant to the analysis under General Star are the costs associated "with the action," Gen. Star, 289 F.3d at 438, which is usually considered an actual judicial proceeding, not the communications between the parties prior to the lawsuit. See Black's Law Dictionary 28-29 (Deluxe 7th ed. 1999).
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909 F.2d 1175
IOWA SOCIALIST PARTY, and William Ross Douglas, Appellants,v.Dale L. NELSON, State Registrar of Voters, Elisabeth Buck,Rhonda Nemke, and Paulee Lipsman, State VoterRegistration Commission, and ElaineBaxter, State Commissioner ofElections, Appellees.
No. 89-1703SI.
United States Court of Appeals,Eighth Circuit.
Submitted March 14, 1990.Decided July 27, 1990.
Connie A. Newlin, Des Moines, Iowa, for appellants.
Julie F. Pottorff, Des Moines, Iowa, for appellees.
Before JOHN R. GIBSON, WOLLMAN and MAGILL, Circuit Judges.
MAGILL, Circuit Judge.
1
The Iowa Socialist party and William Ross Douglas, an active member thereof (hereinafter collectively referred to as "ISP"), appeal the district court's1 entry of judgment in favor of various Iowa state officials. ISP brought suit under 42 U.S.C. Sec. 1983, seeking a declaratory judgment that certain Iowa voter registration procedures were unconstitutional, and an injunction prohibiting state officials from utilizing voter registration forms that do not allow registrants to indicate a preference for or affiliation with ISP.2 The district court concluded that the voter registration procedures serve a rational state interest, do not unfairly or unnecessarily burden ISP, are not so onerous as to freeze the political status quo or chill voters' interest in alternative party affiliation or membership, and do not deny equal protection of the law. On appeal, ISP does not challenge the state requirement that to become a "party," its candidates must poll at least two percent of the total vote cast for president or governor in the most recent general election. Instead, ISP challenges the requirement that only a political party, as so defined, may have its name placed on the voter registration form. Because we hold that the challenged Iowa voter registration provisions do not unfairly or unnecessarily burden the availability of political opportunity, we affirm.
I.
2
The facts of this case are undisputed. ISP, which claims sixty-three identifiable members statewide, was founded in 1900 but did not place a candidate on the ballot until 1976. ISP applied for and was granted a state charter in 1977. ISP placed candidates for nonpartisan city council positions on the ballot in 1979, 1983, 1985 and 1987, and has occasionally run candidates for both president and governor. However, no ISP candidate has ever polled even as much as one-third of one percent (.3%) of the total vote cast in Iowa for president or governor. ISP's showing at the polls in 1988 was even more dismal. In that year, ISP placed a candidate for president on the general election ballot. The ISP candidate polled only 334 votes out of 1,225,614 cast for president and vice president. This represents less than three-hundredths of one percent (.03%) of all votes cast. Finally, in the two previous statewide election years, 1984 and 1986, ISP failed to place a candidate for president or governor on the ballot.
3
Because of ISP's inability to poll at least two percent of the total votes cast for president or governor, the party does not qualify as a "political party" under Iowa Code Sec. 43.2. That section provides:
4
The term 'political party' shall mean a party which, at the last preceding general election, cast for its candidate for president of the United States or for governor, as the case may be, at least two percent of the total vote cast for all candidates for that office at that election.
5
Id. One consequence of the denial of political party status to ISP is that the organization cannot have its name placed on the voter registration form on which persons registering to vote can identify their preference for or affiliation with a particular political party. See Iowa Code Sec. 48.6.3
6
Iowa collects information concerning party affiliation from the voter registration forms and turns the data over to qualifying parties. The information is designed to assist the parties in running their primary elections. Because the primaries are closed, only voters who have expressed a preference for a particular party may vote in its primary. Organizations such as ISP which do not qualify as political parties nominate their candidates by caucus or convention, not by primary. Currently, only the Democratic and Republican parties qualify.
7
Seventeen other minor political organizations have placed candidates on the ballot for the offices of president, vice president or governor from 1968-1986. Although none of these candidates has gained over two percent of the total vote cast, many of them have consistently outpolled ISP. For example, in 1976, the Communist, Socialist Workers, American, Libertarian, and U.S. Labor candidates each polled more votes; in 1978, the Libertarian candidate polled more votes; in 1980, the Libertarian and Citizens candidates polled more votes; and in 1982, the Libertarian candidate polled more votes.
8
It would cost the State of Iowa $45,200 to modify the current voter registration system and computer programs to add ISP to the voter registration form. Thirty-five counties which do not purchase data processing services from the State of Iowa for voter registration would also be forced to incur additional costs. If additional political organizations subsequently obtain political party status, Iowa will incur additional expenses in modifying its registration forms. However, if the current computer programs are modified, these future increased costs, while real, will not be significant.
II.
9
In considering ISP's challenge to Iowa's voter registration procedures, we must first identify the appropriate standard of review. In our most recent decision reviewing a state's restriction on a political organization's access to the ballot, we applied strict scrutiny. Manifold v. Blunt, 863 F.2d 1368, 1372-73 (8th Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989). However, we recognized that "[a] close reading of [recent Supreme Court opinions] reveals that while the ... Court generally purports to subject ballot access requirements to strict scrutiny, [it] has not used that term consistently." Id. at 1373 n. 9. We concluded that the "Court's most recent cases considering equal protection challenges to ballot access requirements seem to broaden traditional strict scrutiny to incorporate a balancing approach." Id. Because the ballot access requirement at issue passed constitutional muster under any standard of review, we explicitly left open for a future case the relationship between the strict scrutiny and balancing tests. Id.
10
We again leave open this issue for another day, because ISP's claim does not involve a state restriction on its access to the ballot. Ballot access cases involve state regulations which burden a candidate's attempts to get on the ballot. See, e.g., id. at 1369 (Libertarian party challenged the constitutionality of Missouri's statutory requirement that new political parties certify their presidential electors earlier than established parties and claimed that the requirement impeded the party's ability to place its candidates on ballot; injunction sought requiring Secretary of State of Missouri to place party's candidates for president and vice president on 1988 general election ballot); McLain v. Meier, 851 F.2d 1045, 1046-48 (8th Cir.1988) (individuals challenged North Dakota statutes requiring (1) third parties to obtain 7,000 signatures 55 days before June primary in order to appear on ballot; and (2) independent candidates to obtain 1,000 signatures 55 days before general election in order to gain access to the ballot); Libertarian Party v. Bond, 764 F.2d 538, 539 (8th Cir.1985) (Libertarian party challenged constitutionality of Missouri statutes which govern the method by which new political parties are formed for the purpose of placing the party's name and the names of its candidates on ballot). ISP's claim is different. Prudently, ISP does not argue that its access to the ballot has been impeded by the state's two percent requirement.4 Instead, ISP argues that the two percent requirement restricts its ability to obtain a list of supporters, thereby impeding its ability to organize. In fact, Iowa law protects ISP's right of access to the ballot.5 Therefore, we need not determine the standard of review now appropriate for ballot access cases. Instead, we must identify the appropriate standard of review when a party challenges a state voter registration statute which allegedly burdens the party's and its supporters' ability to organize, but does not impede their access to the ballot.
11
While we have never inquired into the standard of review appropriate in such cases, the Tenth Circuit has adopted a balancing approach.6 In Baer v. Meyer, 728 F.2d 471 (10th Cir.1984) (per curiam), members of the Citizens and Libertarian parties argued that Colorado unreasonably burdened their ability to organize by not allowing their supporters to note their preference for or affiliation with either party on the state's voter registration forms. Like Iowa, Colorado permitted "registrants to indicate on their registration form their party affiliation only if [it] is with a political party as defined" by state statute. Id. at 473. Otherwise, the registrants must indicate that they are unaffiliated. Id. Colorado defined "political party" as " 'any political organization which at the last preceding gubernatorial election was represented on the official ballot either by regular party candidates or by individual nominees only if it cast for its gubernatorial candidate at least ten percent of the total gubernatorial vote cast in the state at such election.' " Id. at 472 (quoting Colo.Rev.Stat. Sec. 1-1-104(18) (1980)). In Colorado, only the Democratic and Republican parties had previously qualified as political parties. Id.
12
Borrowing from the language of Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), a ballot access case, the Baer court noted that the appropriate " 'inquiry is whether the challenged restriction unfairly or unnecessarily burdens "the availability of political opportunity." ' "7 Baer, 728 F.2d at 473 (quoting Anderson, 460 U.S. at 793, 103 S.Ct. at 1572, quoting Clements v. Fashing, 457 U.S. 957, 964, 102 S.Ct. 2836, 2844, 73 L.Ed.2d 508 (1982) (plurality opinion)); see also Rainbow Coalition v. Oklahoma State Election Bd., 844 F.2d 740, 747 (10th Cir.1988) (balance the state's interest in preventing purely frivolous and insubstantial attempts to designate party affiliation on the registration form with the burden on minority parties' attempts to organize). In resolving this inquiry, the Baer court identified various interests. The court noted that it must "give due regard to the state's duty to provide 'substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.' " Baer, 728 F.2d at 474 (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974)). This interest, the court concluded, must be balanced against a citizen's right to have " 'a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.' " Baer, 728 F.2d at 474 (quoting Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964)).
13
In the context of ISP's claim, we find the Tenth Circuit's balancing approach to be persuasive. Therefore, in determining whether Iowa's refusal to permit registrants to designate their support for ISP unnecessarily burdens the opportunity of the citizen and his party to promote their minority interests, we balance the state's broad interest in controlling frivolous party registration of tiny fractional interests, the administrative and financial burdens imposed on the state if forced to accommodate the requests of political organizations to be listed on the voter registration form, and the burdens on the members of political organizations who are attempting to organize.
14
In two of the most recent and most helpful cases involving challenges to state voter registration procedures, the Tenth Circuit invalidated one state law and upheld another. In Baer, the Tenth Circuit found that the Colorado voter registration procedures unnecessarily burdened the minority parties. However, Baer is distinguishable from the case at bar. First, Baer involved a challenge to a statute with a ten percent threshold requirement for an organization to become a political party. The threshold in Iowa is only two percent. In Baer, a Libertarian party candidate for governor did poll in excess of two percent of the vote. Therefore, under Iowa law, the Libertarian party would have qualified as a political party. Baer v. Meyer, 577 F.Supp. 838, 840 (D.Colo.1984). The lower percentage requirement places a far less onerous burden on ISP supporters in their attempt to organize than Colorado's ten percent requirement placed on Libertarian and Citizens parties. We agree with the district court that Iowa's regulation is reasonable and not unnecessarily burdensome.
15
Second, the Baer court's decision was limited only to two political organizations, the Citizens and the Libertarian parties. No other political organizations had managed to field candidates in recent elections. Baer, 728 F.2d at 476. In Iowa, many political organizations have outpolled ISP in elections at which ISP candidates were on the ballot. These more successful candidates have been members of several parties, including the Communist, Socialist Workers, American, Libertarian, Citizens, and U.S. Labor parties. If the Iowa statute is unconstitutional as applied to ISP, there would be no basis for denying relief to these numerous other parties which outpolled ISP. As a result, Iowa's interest in controlling frivolous party registration of tiny fractional interests and in ensuring that order, rather than chaos, accompanies the democratic process, is much stronger than the interest that existed in Colorado.
16
In a case closer to the one at bar, the Tenth Circuit in Rainbow Coalition upheld an Oklahoma statute which was far more restrictive than the one in Iowa. In Oklahoma,
17
[a] political body desiring to obtain recognized party status must file petitions with the Board 'bearing the signatures of registered voters equal to at least five percent (5%) of the total votes cast in the last General Election either for governor or for electors for President and Vice President.' The party has one year to circulate the petitions, and must file them no later than May 31 of an even-numbered year. A party loses recognized status if its nominee for Governor or its nominees for electors for President and Vice President fail to receive at least ten percent of the total votes cast in any general election. When a party loses recognized status, the party affiliation of those voters registered as members of that party is automatically changed to Independent.
18
Rainbow Coalition, 844 F.2d at 741-42 (citations omitted) (citing Okla.Stat. tit. 26, Secs. 1-108, 1-109, 1-110 (1981 & Supp.1987)). In rejecting the constitutional attack on the statute, the court noted that the state has a substantial interest in preventing purely frivolous and insubstantial attempts to designate party affiliation on the registration form. Furthermore, because the voter registration rolls were computerized in only three Oklahoma counties, the administrative burden, although not insurmountable, was substantial. The facts of our case are much closer to Rainbow Coalition than Baer.
19
First, the Rainbow Coalition court referred to the Libertarian party as a tiny fractional interest although it polled 1.2% of the total votes cast for president in the 1980 general election. Rainbow Coalition, 844 F.2d at 742 n. 4, 747. ISP has never polled even as much as one-third of one percent of the total vote cast for either president or governor. In fact, in the 1988 general election, ISP polled only three-hundredths of one percent of the total vote cast for president. If the Libertarian party did not demonstrate the "modicum of support necessary to receive recognized status," id. at 747, neither could the ISP which has polled only a percentage fraction of the votes of the Libertarian party.
20
Second, as with Oklahoma, and unlike Colorado, Iowa has demonstrated a real burden if it is forced to change its voter registration form to comply with ISP's request. It will not only cost Iowa over $45,000 to change its form, but it will force the thirty-five counties which do not purchase data processing services from the State of Iowa to incur additional costs. Furthermore, the large number of parties which have outpolled ISP may then successfully challenge the statute, thereby creating additional, although not significant, financial burdens.
21
In balancing the interests of the political organization and the state, we conclude that Iowa's refusal to permit registrants to designate ISP on the voter registration form does not unnecessarily burden the opportunity of the citizen or her party to promote minority interests. First, Iowa has broad latitude in controlling frivolous party registration of tiny fractional interests. Because we conclude that ISP is indeed a tiny fractional interest and many other parties have consistently outpolled ISP, the state's interest in preserving order in its democratic process supports the challenged statute. Furthermore, the burden on the state, while not insurmountable, is also relevant. While the state's administrative and financial burden alone would not be sufficient to justify infringing ISP's associational rights, when considered with the state's interest in controlling party registration of tiny fractional interests, the balance falls in favor of Iowa.
22
Finally, we note that the purpose for allowing supporters to identify their affiliation with a political party is to enable the parties to conduct closed primaries. See Iowa Code Secs. 43.1, 43.2, 43.3 (political party as defined by statute must nominate by closed primary). Political organizations, which do not meet the two percent threshold requirement, cannot under state law nominate their candidates by closed primary election. They must nominate by caucus, convention, or petition. See Iowa Code Sec. 43.2. ISP does not argue that this requirement burdens its political opportunity. Therefore, while Iowa's restriction on allowing registrants to indicate their preference for or affiliation with a political party is related to the state's interest in enabling political parties to conduct their closed primaries, it is not related to the burdening of ISP's opportunities.
III.
23
We conclude that the Iowa voter registration procedures, which do not allow ISP supporters to indicate their preference for or affiliation with ISP on the state's registration form, does not unnecessarily burden the opportunity of ISP supporters to organize. Accordingly, we affirm.
1
The Honorable Charles R. Wolle, United States District Judge for the Southern District of Iowa
2
ISP also requested an award of attorney fees pursuant to 42 U.S.C. Sec. 1988
3
Pursuant to Sec. 48.6, a registrant may indicate her preference for or affiliation with a party which meets the definition of Sec. 43.2, or decline to indicate any party affiliation at all
4
In fact, during oral argument both parties conceded that ISP does not present a ballot access claim
5
Section 43.2 provides:
A political organization which is not a 'political party' within the meaning of this section may nominate candidates and have names of such candidates placed upon the official ballot by proceeding under chapters 44 and 45 [i.e., caucus, convention, or petition].
6
We note, however, the Tenth Circuit in Baer, when confronted with the issue we face today, applied its standard used in ballot access cases without any discussion about whether the appellants, the Citizens and Libertarian parties, presented a ballot access claim. While we hold that ISP's claim does not involve a restriction on access to the ballot, we find the standards used by the Tenth Circuit in the context of this case to be persuasive. See infra at 1179
7
ISP urges us to adopt what it considers to be the standard of the Tenth Circuit. Citing Baer v. Meyer, 728 F.2d at 475, ISP argues that Iowa must permit it to allow registrants to indicate their support for a party on the voter registration form if: (1) a political organization already exists in the State under its name; (2) has recognized officials; and (3) has previously placed a candidate on the ballot by petition. We believe ISP misconstrues the Baer opinion. While these factors may have been relevant and sufficient in Baer to require the state to permit party designation, the same factors might not be relevant in a different context. In fact, in Rainbow Coalition, decided four years after Baer, the Tenth Circuit did not even discuss any of these factors in rejecting the appellants' challenge to Oklahoma election statutes which allegedly precluded members of minor political organizations from designating their party affiliation on Oklahoma's voter registration forms. See Rainbow Coalition, 844 F.2d at 747. We too reject these factors as the exclusive or even necessarily the most reliable, indicators of the state registration procedure's constitutionality. In balancing a state's interests against the registrant's interests, we must examine the individual facts of each case. We therefore reject the mechanistic approach urged by ISP
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FILED
NOT FOR PUBLICATION NOV 25 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARDEEP SINGH BHAMRA, No. 13-71377
Petitioner, Agency No. A079-605-153
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Hardeep Singh Bhamra, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order denying his third motion to
reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review for abuse of discretion the BIA’s denial of a motion to reopen. Toufighi v.
*
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).
Mukasey, 538 F.3d 988, 992 (9th Cir. 2008). We deny the petition for review.
The BIA did not abuse its discretion in denying Bhamra’s third motion to
reopen where it was filed over eight years after his order of removal became final,
see 8 C.F.R. § 1003.2(c)(2), and Bhamra failed to establish materially changed
circumstances in India to qualify for the regulatory exception to the time and
number limitations for motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); Toufighi,
538 F.3d at 996-97 (evidence was immaterial in light of prior adverse credibility
determination); Najmabadi v. Holder, 597 F.3d 983, 987-90 (9th Cir. 2010)
(evidence must be “qualitatively different” to warrant reopening). We reject
Brahma’s contention that the BIA did not consider and assess the relevant
evidence. See Najmabadi, 597 F.3d at 990-91 (BIA adequately considered the
evidence and sufficiently announced its decision).
PETITION FOR REVIEW DENIED.
2 13-71377
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ALLSTATE INSURANCE COMPANY §
AS SUBROGEE OF ANGELA J. No. 08-18-00019-CV
VASQUEZ, §
Appeal from the
Appellant, §
205th District Court
v. §
of Hudspeth County, Texas
JAROSLAV J. BARNET, §
(TC# CV-04171-205)
Appellee. §
OPINION
Appellant Allstate Insurance Company (Allstate), as a subrogee of Angela J. Vasquez,
attempts to appeal two orders of the trial court: (1) an order dismissing Allstate’s case for want of
prosecution; and (2) an order denying Allstate’s motion to reinstate. In its underlying suit, Allstate
alleged that Appellee Jaroslav J. Barnet (Barnet) negligently caused property damage to a vehicle
owned by its subrogee. Following the trial court’s dismissal of its case, Allstate filed a verified
motion to reinstate but failed to include a certificate of service asserting that a copy of the motion
had been provided to Barnet as required by Rule 165a(3) of the Texas Rules of Civil Procedure.
As a result, we conclude that Allstate’s motion to reinstate did not extend the timetable for filing
a notice of appeal. Because Allstate did not timely file its notice of appeal, we dismiss for lack of
jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
On October 21, 2011, Allstate filed an original petition alleging Jaroslav Barnet had, on
June 6, 2011, damaged a vehicle owned by Angela J. Vasquez by negligently causing an
automobile collision with the driver of the Vasquez vehicle. Allstate alleged in its petition that it
was a subrogee of Vasquez. The same day Allstate filed its petition, a citation for personal service
was issued for “JAROFLAZ VARNET,” whose residence was designated as being in
Albuquerque, New Mexico. No return of service was ever completed on this citation.
Over two years after the collision date, Allstate filed a motion for substituted service on
Barnet with a newly designated address in Elk Grove Village, Illinois. The motion, which was
filed on February 13, 2014, asserted that process had not yet been served because the process server
had, thus far, been unable to locate Barnet.1 Allstate requested that the trial court authorize service
either by delivering a copy of the petition and citation to anyone over 16 years of age at the Illinois
address, or by attaching a copy of said process to the front entryway or gate at the address. On
February 18, 2014, the trial court granted the motion and entered an order for substituted service
by either of the means requested.
On March 21, 2014, the Clerk of Hudspeth County issued a citation by certified mail
addressed to: “JAROSLAV J. BARNET, 836 S. ARLINGTON HEIGHTS #197, ELK GROVE
VILLAGE, IL 60007 (Or wherever she may be found)[.]” An affidavit of service included in the
1
A due-diligence affidavit from the process server was attached to the motion. In the affidavit, the process server
attested that his full due and diligent effort consisted of the following: (1) on December 21, 2013, the process server
discovered that the Illinois address belonged to a UPS store and confirmed that Barnet was not an employee. The clerk
mentioned that the defendant could be a possible customer, but she would not confirm; and (2) on December 30, 2013,
the process server called the UPS store and asked if he could fax a document to the store for placement “in box 187
for Barnet,” and he was told “yes.”
2
clerk’s record, but not file-stamped, averred that the petition and citation were served on March
31, 2014, by delivery to “Dale Prest/Owner,” at the address of 836 S. Arlington Heights #187, Elk
Grove Village, IL 60007, by substitute service. The delivery receipt (green card) included with
the affidavit, however, showed that the article that was addressed to “Jaroslav J. Barnet, 836 S. Ari
Heights Rd #197, Elk Grove Village, IL, 60007-3667,” was received by “R.S. Johnston, Agent,”
on April 1, 2014. Two months later, on June 16, 2014, Allstate filed a motion for substitution of
counsel, which certified it had been served on Allstate’s prior counsel and on Great West Casualty
Company. The motion, however, failed to certify that a copy was served on Barnet. On June 23,
2014, the trial court granted Allstate’s motion. No further activity occurred for nearly three years.
On May 1, 2017, Allstate filed a motion for default judgment asserting that Barnet had
failed to answer after being properly served with process and the deadline for answering had
passed.2 In its motion, Allstate alleged that “[Barnet], by virtue of his failure to appear, has
admitted all material allegations of Plaintiff’s Petition in this cause.” No further activity seemingly
occurred on Allstate’s default motion, and instead, the County and District Clerk of Hudspeth
County sent a notice to Allstate and to “Jaroflaz Varnet,” dated July 5, 2017, by first-class mail,
notifying each to appear “for a civil docket hearing,” on July 20, 2017, at 9 a.m. The envelope
addressed to “Jaroflaz Varnet,” at 3827 Montgomery Blvd NE, Albuquerque, NM 87109-1077,
was later returned to the clerk with a label marked, “Return to Sender, Insufficient Address, Unable
to Forward, Return to Sender.” On July 21, 2017, the trial court entered an order of dismissal. In
its order, the trial court recited that neither plaintiff nor its counsel were present at the hearing set
2
Barnet did not enter an appearance in either the court below or this Court nor did he file a brief in response to this
appeal. We express no opinion on whether Barnet has been validly served with process as the issue is not presented
for our review. See TEX. R. APP. P. 38.1(f).
3
for July 20, 2017, and that the case was dismissed pursuant to Rule 165a of the Texas Rules of
Civil Procedure and the trial court’s inherent power.
On July 24, 2017, Allstate filed a motion to reinstate pursuant to Rule 165a of the Texas
Rules of Civil Procedure. Allstate’s motion stated, “counsel, though in receipt of the Notice of the
Dismissal Docket, was currently undergoing medical treatment, and his on going serious medical
issues inhibit his ability to travel.” As before, Allstate’s motion lacked a certificate of service
attesting that a copy of the motion was served on Barnet. In setting a hearing on the motion, the
trial court ordered Allstate’s attorney to appear in person on August 3, 2017, at 8 a.m.3
On August 3, 2017, the trial court issued an order granting Allstate’s motion to reinstate.
Thereafter, on October 26, 2017, the County and District Clerk of Hudspeth County sent a second
notice to Allstate and to “Jaroflaz Varnet,” notifying each to appear “for a civil docket hearing”
on November 16, 2017, at 1 p.m. Two first class envelopes addressed to Barnet were mailed by
the clerk on the same day, one to Albuquerque, New Mexico, and the other to Elk Grove Village,
Illinois. On November 16, 2017, the envelope addressed to Barnet in Albuquerque was returned
with a label noting it was returned for insufficient address and could not be forwarded. The day
after the hearing date, or November 17, 2017, the trial court entered another order of dismissal. In
its second order of dismissal, the trial court recited that the plaintiff and its counsel again failed to
appear. The order further recited that the trial court dismissed the case pursuant to Rule 165a and
the trial court’s inherent power due to counsel’s “complete disregard for the orders of this Court,
3
Our record includes a letter dated July 26, 2017, addressed to Barnet at the address in Elk Grove Village, Illinois,
notifying him of a hearing on the Motion to Reinstate after Dismissal and Motion for Default Judgment set for August
26, 2017, at 1 p.m.; and a second letter dated July 27, 2017, addressed to Barnet at the same address, notifying him of
a hearing on the Motion to Reinstate after Dismissal and Motion for Default Judgment beginning promptly at 1 p.m.
on August 17, 2017.
4
as well as his dilatory practices which significantly interfere with the efficient administration of
the Court’s docket[.]”
On December 16, 2017, at 4:34 p.m., Allstate efiled a second motion to reinstate to the
District and County Clerk’s office.4 Although counsel representing Allstate included a notarized
verification of the facts alleged in the motion, once again, there was no certificate of service
attesting that a copy of the motion had been served on Barnet. In its motion, Allstate claimed that
its failure to appear was based on lack of receipt of the notice setting a hearing for November 16,
2017. Counsel for Allstate claimed he had recently retired and had planned to handle only limited
cases that were near conclusion. Accordingly, he had submitted a change of address in anticipation
of closing his law office on September 30, 2017. Counsel further alleged that an employee of the
clerk’s office confirmed that the notice of the hearing had been sent to the law firm’s prior address
but had not been signed for by anyone there.5 Beyond questioning receipt of notice of the hearing,
counsel further stated that a medical appointment involving a member of his family had caused
him to reset hearings in all his cases which had been set on the same day. Within the motion,
Allstate’s counsel urged the court to review the previously filed motion for default and decide
whether a hearing was necessary. Lastly, Allstate requested that the cause be reinstated on the
trial court’s docket and for such other relief to which it was justly entitled.
On January 10, 2018, the trial court entered an order denying the second motion to reinstate.
In so doing, the trial court first noted that Barnet had been arguably served with process through
4
Although the motion is date-stamped as “Filed 12/18/2017 12:00 AM,” the Case Management Index from the
Hudspeth District Clerk’s Office included an entry noting that: “Motion to Reinstate – Efiled on 12/16/2017 4:34
PM.”
5
This allegation from Allstate is belied by a notice of change of address filed in the District Clerk’s office on December
28, 2017, after Allstate filed its second motion to reinstate.
5
substituted service but not until April 1, 2014. But the trial court also noted that the delivery
receipt on file showed service on “R.S. Johnston,” who is not a party to the suit and for whom no
pleading indicates he has any relationship to Barnet. Secondly, the order recited that there was no
good cause shown, nor any explanation from Allstate, for the six-year delay in prosecuting the
case. The order also recited that Allstate’s second motion to reinstate was based on “excuses
aimed, in part, at blaming others,” and that the trial court’s own review of the docket revealed that
no change of address notification was filed by Allstate’s counsel until December 28, 2017. Finally,
the order recited that “[c]ounsel’s explanation that he did not receive notification of the hearing is
not credible.” On February 8, 2018, Allstate filed a notice of appeal challenging the trial court’s
second order of dismissal signed on November 17, 2017, and the court’s order denying Allstate’s
second motion to reinstate entered on January 10, 2018.6 Although later amended, the initial notice
of appeal contained a certificate of service reflecting that a copy of the pleading was served not on
Barnet but on the Clerk of this Court.
DISCUSSION
On appeal, Allstate presents three issues. In Issue One, Allstate contends that the trial court
erred in dismissing the case because it unreasonably failed to rule on Allstate’s motion for default
judgment for over eight months. In Issue Two, Allstate contends that the trial court erred by
dismissing the case for want of prosecution. In Issue Three, Allstate contends that the trial court
erred by denying its second motion to reinstate without a hearing. Before addressing the issues
presented, we turn first to confirm our appellate jurisdiction.
6
We note that Allstate’s Notice of Appeal incorrectly describes the trial court’s order dismissing the case as being
dated November 16, 2017.
6
Jurisdictional Analysis
No party has asserted that Allstate failed to timely file its notice of appeal, however, we
must consider sua sponte issues affecting our jurisdiction. See State ex rel. Best v. Harper, 562
S.W.3d 1, 7 (Tex. 2018); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam).
An appellate court generally has jurisdiction over a case if a notice of appeal is filed either within
30 days after the appealable order is signed, or within 90 days after the appealable order is signed
if a party timely files one of the pleadings listed in Texas Rule of Appellate Procedure 26.1. See
TEX. R. APP. P. 26.1(a); Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.
1986) (per curiam); Young v. Di Ferrante, 553 S.W.3d 125, 128 (Tex.App.—Houston [14th Dist.]
2018, pet. denied). A motion to reinstate under Texas Rule of Civil Procedure 165a is listed as an
exception that extends the 30-day deadline of Texas Rule of Appellate Procedure 26.1. See TEX.
R. APP. P. 26.1(a)(3). To extend the time for perfecting an appeal, the Texas Supreme Court has
held that a proper motion to reinstate must be verified and filed with the clerk within 30 days of
the order of dismissal. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (per curiam); Butts,
705 S.W.2d at 697. An unverified motion is a nullity and does not extend the trial court’s plenary
jurisdiction or the deadlines for perfecting an appeal. See In re Garcia, 94 S.W.3d 832, 833
(Tex.App.—Corpus Christi-Edinburg 2002, no pet.) (citing McConnell, 800 S.W.2d at 194).
The date the order of dismissal is signed determines the beginning of the period of the
court’s plenary power to grant a motion to reinstate where a case has been dismissed for want of
prosecution. TEX. R. CIV. P. 306a(1). If a plaintiff receives timely notice of the dismissal of its
suit, the plaintiff must file a motion to reinstate within 30 days after the trial court signs the order
of dismissal. TEX. R. CIV. P. 165a(3). When the order of dismissal is signed, the clerk of the court
7
must immediately give notice to the parties or their attorneys of record by first-class mail advising
that the order was signed. TEX. R. CIV. P. 306a(3). If within 20 days after the order of dismissal
is signed, a party adversely affected by it or his attorney has neither received the notice required
by Rule 306a(3), nor acquired actual knowledge of the order, then with respect to that party all the
periods mentioned in Rule 306a(1) shall begin on the date that such party or his attorney receives
such notice or acquires actual knowledge of the signing, whichever occurs first, but in no event
shall such period begin more than 90 days after the order of dismissal was signed. TEX. R. CIV. P.
306a(4). Compliance with the time periods prescribed by Rules 165a and 306a is a jurisdictional
prerequisite. Memorial Hosp. of Galveston County v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987)
(per curiam); In re J.S., 392 S.W.3d 334, 337 (Tex.App.—El Paso 2013, no pet.).
A motion to reinstate stands as the only remedy available to a party when the trial court
has dismissed its case for want of prosecution. See Sierra Club v. Texas Comm’n on Envtl. Quality,
188 S.W.3d 220, 222 (Tex.App.—Austin 2005, no pet) (citing Gilbert v. Huber, Hunt, Nichols,
Inc., 671 S.W.2d 869, 870 (Tex. 1984) (per curiam)). By its plain text, Rule 165a(3) imposes
distinct requirements on parties seeking reinstatement after dismissal of a case for want of
prosecution. TEX. R. CIV. P. 165a(3). In pertinent part, Rule 165a(3) provides as follows:
A motion to reinstate shall set forth the grounds therefor and be verified by the
movant or his attorney. It shall be filed with the clerk within 30 days after the order
of dismissal is signed or within the period provided by Rule 306a. A copy of the
motion to reinstate shall be served on each attorney of record and each party not
represented by an attorney whose address is shown on the docket or in the papers
on file. The clerk shall deliver a copy of the motion to the judge, who shall set a
hearing on the motion as soon as practicable. The court shall notify all parties or
their attorneys of record of the date, time and place of the hearing.
TEX. R. CIV. P. 165a(3). In short, a party’s motion for reinstatement shall (1) “set forth the grounds
therefor[;]” (2) “be verified by the movant or his attorney[;]” (3) “be filed with the clerk within 30
8
days after the order of dismissal is signed or within the period provided by Rule 306a[;]” and (4)
“[a] copy of the motion to reinstate shall be served on each attorney of record and each party not
represented by an attorney whose address is shown on the docket or in the papers on file.” Id.
When a party seeking reinstatement meets Rule 165a(3) prerequisites, the trial court must
set a hearing as soon as practicable. See Gulf Coast Inv. Corp. v. NASA 1 Business Center, 754
S.W.2d 152, 153 (Tex. 1988) (per curiam) (“It is clear that an oral hearing is required on any timely
filed motion to reinstate under TEX. R. CIV. P. 165a.”); Thordson v. City of Houston, 815 S.W.2d
550, 550 (Tex. 1991) (per curiam) (finding that the trial court had no discretion about whether to
set a hearing where there is no dispute that movant properly requested a hearing on a timely filed
motion to reinstate); see also In re Marriage of Salas, No. 12–12–00237–CV, 2012 WL 5031429,
at *2 (Tex.App.—Tyler Oct. 17, 2012, no pet.) (mem. op.) (“Once a motion to reinstate meets the
threshold requirements of being timely filed and verified, a hearing must be held on it regardless
of whether the motion states meritorious grounds or whether the facts verified in the motion are
sufficient to sustain the movant’s burden of proof to warrant reinstatement.”); Reed v. City of
Dallas, 774 S.W.2d 384, 385 (Tex.App.—Dallas 1989, writ denied) (trial court has no discretion
as to whether to grant oral hearing on timely and properly verified motion to reinstate). A timely
filed motion to reinstate gives a plaintiff one last chance to convince the trial court to restore the
case to the docket, permits the plaintiff to make a record for appeal, and extends the court’s plenary
power and the appellate deadlines. See TEX. R. CIV. P. 165a(3); Thordson, 815 S.W.2d at 550.
Application
Here, because the trial court signed its order of dismissal on November 17, 2017, the
ordinary filing deadline of thirty days for a notice of appeal would fall on December 18, 2017, if
9
no exception applied.7 The clerk’s record in this instance, however, shows no evidence of the
clerk sending a Rule 306a notice of the trial court’s dismissal of the case to the parties or their
attorneys of record. See TEX. R. CIV. P. 306a(3). Therefore, the period prescribed for the filing of
the motion to reinstate began on the date that Allstate or its attorney received notice or acquired
actual knowledge of the signing of the dismissal, whichever occurs first, but in no event more than
90 days after November 17, 2017. See TEX. R. CIV. P. 165a(3) and 306a(4).
The record establishes that Allstate efiled its verified motion to reinstate on Saturday,
December 16, 2017, at 4:34 p.m., or 29 days after the signing of the trial court’s dismissal order
on November 17, 2017. At minimum, this pleading establishes the date Allstate first learned of
the dismissal given that no other evidence of record shows that Allstate had been earlier notified
or had acquired knowledge of the court’s order of dismissal. Thereafter, on January 10, 2018, the
trial court signed an order denying Allstate’s motion to reinstate reciting that the court considered
the motion sua sponte. On February 8, 2018, Allstate then filed its notice of appeal challenging
both the order of dismissal and the order denying the motion to reinstate.
As a prerequisite to the court’s obligation to set a hearing on a motion to reinstate, the plain
text of Rule 165a(3) requires a timely motion stating its grounds, verification by the movant or its
attorney, and service of a copy of the motion on each attorney of record and each party not
represented by an attorney whose address is shown on the docket or in the papers on file. See TEX.
R. CIV. P. 165a(3). Rule 21a of the Rules of Civil Procedure provides that, when service of a
motion is required, then the party or attorney of record “shall certify to the court compliance with
7
Because the thirtieth day after the signing of the order of dismissal falls on Sunday, December 17, 2017, any
deadline of 30-days’ length would fall on Monday, December 18, 2017. See TEX. R. CIV. P. 4.
10
this rule in writing over signature and on the filed instrument.” See TEX. R. CIV. P. 21a(e). Rule
21a further provides that a certificate by a party or an attorney of record shall be prima facie
evidence of the fact of service. Id.
On review, we note that Allstate’s motion for reinstatement fails to certify that Barnet was
served with a copy at the address shown in the papers on file as required by Rule 165a(3). See
TEX. R. CIV. P. 165a(3). When faced with a lack of verification on a motion for reinstatement,
courts have held that such motion does not comply with Rule 165a(3)’s requirements. See Butts,
705 S.W.2d at 697; McConnell, 800 S.W.2d at 194; Young, 553 S.W.3d at 128; Twist v. McAllen
Nat. Bank, 294 S.W.3d 255, 263-64 (Tex.App.—Corpus Christi-Edinburg 2009, no pet.) (rejecting
attorney’s verification which did not indicate that he had personal knowledge of any facts). We
find the lack of a certificate of service on a motion to reinstate to be analogous to a lack of proper
verification given that both requirements are mandatory based on express terms of Rule 165a(3).
Cf. Butts, 705 S.W.2d at 697; McConnell, 800 S.W.2d at 194; Young, 553 S.W.3d at 128; Twist,
294 S.W.3d at 263-64.
In Twist, the Corpus Christi-Edinburg Court of Appeals compared Rule 165a(3)’s
verification requirement with the verification required in Rule 93 of the Texas Rules of Civil
Procedure and found that sound reasoning underscored the requirement of verification given that
a party filing a motion to reinstate “will likely be raising arguments based on facts that do not
appear of record … to explain the lack of activity in a case.” Twist, 294 S.W.3d at 261. We
believe that the reasoning supporting verification applies equally to the requirement of a certificate
of service to attest that a copy of the motion has been served on the other party. Indeed, our
disciplinary rules establish that any communication with a court about a lawsuit that is not served
11
on opposing counsel is an improper ex parte communication unless there is a specific exception.
See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.05(b)(2). We conclude that Allstate’s motion for
reinstatement, which lacks a certificate of service on Barnet at his address shown on the docket or
in the papers on file, does not comply with Rule 165a(3)’s requirements. Cf. Butts, 705 S.W.2d at
697; McConnell, 800 S.W.2d at 194; Young, 553 S.W.3d at 128.
Given that Allstate’s motion to reinstate failed to meet threshold requirements of Rule
165a(3), the motion is deemed a nullity and did not operate to extend the timetable for filing a
notice of appeal. Cf. McConnell, 800 S.W.2d at 194; In re Garcia, 94 S.W.3d at 833. The deadline
to perfect this appeal fell on Monday, December 18, 2017, or 30 days after the date the dismissal
order was signed taking into account that the last day fell on a Sunday. See TEX. R. CIV. P. 4.
Allstate did not file its notice of appeal until February 8, 2018, or 52 days after the expiration of
the jurisdictional deadline. See TEX. R. APP. P. 26.1. Absent a timely filed notice of appeal or
extension request, we must dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P. 25.1(b);
Chavez v. Housing Authority of City of El Paso, 897 S.W.2d 523, 527 (Tex.App.—El Paso 1995,
writ denied) (material errors as to the timing of a perfection deprived the Court of jurisdiction).
CONCLUSION
Accordingly, we dismiss the appeal for lack of jurisdiction and without need to address the
issues presented.
GINA M. PALAFOX, Justice
October 14, 2019
Before Alley, C.J., Rodriguez, and Palafox, JJ.
12
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0784n.06
Filed: November 8, 2007
No. 05-2300
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THEODORE G. WILLIAMS, )
)
Petitioner-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
WILLIAM MEYER, ) EASTERN DISTRICT OF MICHIGAN
)
Defendant-Appellant, )
)
)
)
)
)
)
)
)
)
)
Before: CLAY and GIBBONS, Circuit Judges; and HOOD, District Judge.*
JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Theodore G. Williams
appeals the district court’s order denying his petition for writ of habeas corpus. Williams is currently
the only person still confined in a psychiatric facility pursuant to Michigan’s now-repealed Criminal
Sexual Psychopath Act (“CSPA”), Mich. Comp. Laws § 780.501-.509 (1968), repealed by 1968
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
-1-
Mich. Pub. Acts 143 (Aug. 1, 1968). Williams claims that his continued confinement violates the
Equal Protection Clause and the Due Process Clause of the United States Constitution. For the
following reasons, we affirm the district court’s decision.
I.
Until its repeal, effective August 1, 1968, the CSPA provided that a criminal defendant in
Michigan who was designated a “criminal sexual psychopathic person” would be committed to the
custody of the state hospital commission to be confined in an appropriate state institution. §
780.505. A criminal sexual psychopathic person was defined as “[a]ny person who is suffering from
a mental disorder and is not feeble-minded, which mental disorder is coupled with criminal
propensities to the commission of sexual offenses.” § 780.501. After the CSPA was repealed, the
Michigan Supreme Court ordered that the discharge of persons in custody pursuant to the Act would
continue to be governed by the Act's discharge provisions until further legislative clarification.
Admin. Order 1969-4, 382 Mich. xxix (1969). Because no clarification ever occurred, the Act's
discharge provisions have continued to apply to such persons. Under those provisions (section 7 of
the Act as enacted), a person in custody “shall be discharged only after there are reasonable grounds
to believe that such person has recovered from such psychopathy to a degree that he will not be a
menace to others.” Mich. Comp. Laws § 780.507 (1968).
With the exception of persons committed pursuant to the CSPA, Michigan's Mental Health
Code (“MHC”) governs the commitment and discharge of persons in the custody of the Michigan
Department of Mental Health. Mich. Comp. Laws § 330.2050(5). Under the MHC, a person must
be discharged when “the patient's mental condition is such that he or she no longer meets the criteria
of a person requiring treatment.” § 330.1476(2). A “person requiring treatment” is defined as an
-2-
individual “who has mental illness” and (1) who as a result of that illness can reasonably be expected
within the near future to intentionally or unintentionally seriously injure himself or herself or another
individual; (2) who as a result of that illness is unable to attend to his or her basic physical needs
necessary to avoid serious harm in the near future; or (3) whose judgment is so impaired that he or
she is unable to understand the need for treatment and whose continued behavior can reasonably be
expected, on the basis of competent clinical opinion, to result in significant physical harm to himself
or herself or others. § 330.1401. Mental illness is defined as “a substantial disorder of thought or
mood that significantly impairs judgment, behavior, capacity to recognize reality, or ability to cope
with the ordinary demands of life.” § 330.1400(g).
This case was the subject of a prior appeal to this court, and the facts of Williams’s case are
set forth in our opinion in that appeal:
In October 1967, Theodore Williams, the petitioner, entered a plea of guilty
in Michigan state court to a charge of first degree murder. Prior to sentencing,
Williams was designated a “criminal sexual psychopath,” under the then-applicable
[CSPA], and committed to the custody of a state mental hospital. He was initially
discharged in September 1973, but he was returned to custody in 1979, following a
determination by the Michigan Supreme Court that he had been improperly released.
See People v. Williams, 406 Mich. 909 (1979). From then until the present, he has
remained in the custody of the Michigan Department of Mental Health. He has filed
a number of petitions for discharge pursuant to section 7 of the repealed [CSPA], all
of which have been denied. Today, he is the only person remaining in the custody
of the Michigan Department of Mental Health who was committed under, and whose
discharge is governed by, the [CSPA].
....
The present action began with the petition for discharge Williams filed on
September 19, 1991. In addition to seeking discharge under section 7 of the [CSPA],
Williams contended that the application of section 7 violated his constitutional rights
to due process and equal protection. On July 29, 1993, the state circuit court rejected
Williams' constitutional challenges. JA 77-100 (People v. Williams, No. 67-4411 FY
(Allegan County, Mich. Cir. Ct. July 29, 1993)). On June 13, 1994, at the conclusion
-3-
of a series of evidentiary hearings, it orally denied Williams' petition. A subsequent
written order stated that “it was established by clear and convincing evidence that the
defendant has not recovered from his criminal sexual psychopathy to a degree that
he will not be a menace to others.” JA 103.
The Michigan Court of Appeals affirmed. It ruled that the constitutional
challenges were without merit and that the circuit court had not clearly erred in
denying discharge. See JA 105-111 (People v. Williams, 228 Mich.App. 546, 580
N.W.2d 438, 441-44 (1998)). On November 24, 1998, the Michigan Supreme Court
denied Williams' application for leave to appeal. See People v. Williams, 459 Mich.
914, 589 N.W.2d 287 (1998).
Williams v. Meyer (Williams I), 346 F.3d 607, 610-11 (6th Cir. 2003) (footnote omitted).
In 1993, Williams filed a petition in federal district court seeking habeas relief under 28
U.S.C. § 2254. The district court dismissed the petition without prejudice, pending final resolution
of the proceedings in state court. The district court granted Williams’s motion to reopen the case
in 1999. After a magistrate judge issued a report and recommendation on his claims, Williams failed
to file timely objections, and the district court accepted the magistrate’s report and recommendation
and denied Williams’s petition for habeas relief. Williams, 346 F.3d at 612. After the district court
denied Williams’s motion for relief from judgment under Fed. R. Civ. P. 60(b), Williams appealed.
Id. This court reversed the district court and remanded the case for the district court to consider
Williams’s objections to the magistrate’s report and recommendation. Id. at 617. After
consideration of Williams’s objections to the original report and recommendation, the magistrate
issued a new report and recommendation concluding that Williams’s petition should be dismissed.
The district court adopted the report and recommendation and Williams timely appealed.
II.
Williams argues that it violates the Equal Protection Clause to require him to satisfy the
release provisions of the CSPA, rather than the different provisions under the MHC that govern the
-4-
release of persons hospitalized after being found not guilty by reason of insanity (“insanity
acquittees”). “The Equal Protection Clause prohibits states from making ‘distinctions which either
burden a fundamental right, target a suspect class, or intentionally treat one differently from others
similarly situated without any rational basis for the difference.’” Wilson v. Morgan, 477 F.3d 326,
333 (6th Cir. 2007) (quoting Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005)).
The parties disagree as to the level of scrutiny with which the court should examine the
legitimacy of any difference in classification. Williams argues that strict scrutiny should apply
because the classification burdens a fundamental right, that of freedom from physical restraint. He
relies exclusively on the plurality opinion in Foucha v. Louisiana, 504 U.S. 71, 85-86 (1992)
(plurality opinion). Even if Foucha were precedential, which Williams concedes is not the case, it
would not control this case because Williams is not physically restrained based upon the
classification he challenges.1 In Foucha, the plurality examined the differing treatment of insanity
acquittees who were no longer insane and criminals who had completed their prison terms. Id. at
85. Based upon this classification, the former could be confined indefinitely until they proved that
they were not dangerous, whereas the latter could not be confined, regardless of dangerousness. Id.
Consequently, the challenged classification determined whether the plaintiff could be physically
restrained. Here, Williams challenges the differences between the release provisions under the
1
For the same reason, this court’s prior holding in Williams I, 346 F.3d at 616 (“Any
difference in treatment of involuntary detainees is subject to strict scrutiny.”), is not dispositive. In
that case, the court was considering the merit of Williams’s objections to the magistrate’s report in
determining whether relief was warranted under Fed. R. Civ. P. 60(b)(1) for his failure to file timely
his objections. See id. at 613, 614. Under that standard, a claim is “meritorious” if there is “some
possibility” of a different outcome. Id. at 614. While the possibility that Foucha would apply to
Williams’s claim was sufficient in that context, it does not preclude a contrary decision on the
merits.
-5-
CSPA and the MHC. Under either statue, Williams can be physically restrained. While, in certain
factual situations, the different release provisions might affect Williams’s liberty, the challenged
classification determines only which procedures apply. The Court has analyzed equal protection
challenges based upon the application of differing sets of rules under the rational-basis test, even
where liberty may ultimately be at stake. See Baxstrom v. Herold, 383 U.S. 107, 111 (1966)
(applying rational-basis test to differential treatment between the civilly and criminally insane);
Minnesota ex rel. Pearson v. Probate Ct. of Ramsey County, Minn., 309 U.S. 270, 274-75 (1940)
(applying rational-basis test to differential treatment of sexual psychopaths); see also Foucha, 504
U.S. at 79 (“Due process requires that the nature of commitment bear some reasonable relation to
the purpose for which the individual is committed.”) (citing Jones v. United States, 463 U.S. 354,
368 (1983), and Jackson v. Indiana, 406 U.S. 715, 738 (1972)); Jones, 463 U.S. at 370 (noting the
“reasonably held view that insanity acquittees constitute a special class that should be treated
differently from other candidates for commitment”). Therefore, the court applies rational-basis
review.
Applying this standard, it is clear that Michigan has a rational basis for treating Williams
differently from insanity acquitees. An insanity acquittee has not been convicted and, consequently,
may not be punished, Jones, 463 U.S. at 369. Williams, however, was convicted of first degree
murder, making him eligible for whatever punishment is authorized by statute, see Chapman v.
United States, 500 U.S. 453, 465 (1991). This dichotomy is further reflected in the differing
rationales for committing rather than incarcerating insanity acquittees versus criminal sexual
psychopaths. Insanity acquittees are not criminally responsible because they do not appreciate the
wrongfulness of their conduct or cannot conform their conduct to the requirements of the law. See
-6-
People v. Ramsey, 375 N.W.2d 297, 302 (Mich. 1985). In contrast, persons were committed under
the CSPA, not because they lacked criminal responsibility, but because it was hoped that civil
commitment would prove more effective “than criminal punishment, the ineffectiveness of which,
as a deterrent, had been demonstrated in the behavior of a number of recidivist sex offenders.”
People v. Smith, 275 N.W.2d 466, 469 (Mich. 1979). While Michigan chose to commit and treat
Williams rather than punish him, it is still rational for Michigan to distinguish between the release
provisions for sex offenders who have been convicted and those who have not. See Doe v. Moore,
410 F.3d 1337, 1347 (11th Cir. 2005); cf. Doe XIV v. Mich. Dep’t of State Police, 490 F.3d 491 (6th
Cir. 2007) (denying Equal Protection claims grounded in differentiation between similar
classifications of sex offenders because such legislative classifications were deemed to serve
legitimate government purposes).
III.
Williams also argues that the release provisions of the CSPA do not comport with the due
process standards set forth in Kansas v. Hendricks, 521 U.S. 346 (1997), as clarified by Kansas
v. Crane, 534 U.S. 407 (2002), and that insufficient evidence was presented to satisfy those
standards in this case.
As an initial matter, respondent argues that Williams’s confinement cannot violate due
process because his conviction for first degree murder eliminated his liberty interest. Therefore,
respondent claims “[t]hat the State once set up a regime that substituted an indefinite period of
civil commitment for life imprisonment should not implicate a liberty interest regarding the
manner in which period of commitment is determined.” Respondent offers no citation, perhaps
because the argument is directly contrary to Supreme Court precedent. See Vitek v. Jones, 445
-7-
U.S. 480, 492 (1980) (“The loss of liberty produced by an involuntary commitment is more than
a loss of freedom from confinement.”); Jackson, 406 U.S. at 738 (“At the least, due process
requires that the nature and duration of commitment bear some reasonable relation to the purpose
for which the individual is committed.”).
In Hendricks, the Supreme Court held that the requirements of due process were satisfied
by a Kansas statute providing for the commitment of persons who have been convicted of or
charged with a sexually violent offense and suffer from a mental abnormality or personality
disorder that makes them likely to engage in the predatory acts of sexual violence. Hendricks,
521 U.S. at 357. In doing so, the court noted that civil commitment statutes have been upheld
when “they have coupled proof of dangerousness with the proof of some additional factor, such
as a ‘mental illness’ or ‘mental abnormality.’” Id. at 358. The additional factor required by these
previously-upheld statutes “serve[d] to limit involuntary civil confinement to those who suffer
from a volitional impairment rendering them dangerous beyond their control,” id., and
distinguished persons subject to civil commitment “from other dangerous persons who are
perhaps more properly dealt with exclusively through criminal proceedings,” id. at 360.
In Crane, the Court revisited the same Kansas statute to clarify the extent to which the
mental abnormality had to render persons subject to commitment unable to control their
dangerous behavior. Crane, 534 U.S. at 411-12. The Court held that while there was no
requirement of total or complete lack of control due to the mental abnormality, “there must be
proof of serious difficulty in controlling behavior.” Id. at 413. As this lack of control “will not
be demonstrable with mathematical precision,” the Court emphasized that the difficulty
controlling behavior,
-8-
when viewed in light of such features of the case as the nature of the psychiatric
diagnosis, and the severity of the mental abnormality itself, must be sufficient to
distinguish the dangerous sexual offender whose serious mental illness,
abnormality, or disorder subjects him to civil commitment from the dangerous but
typical recidivist convicted in an ordinary criminal case.
Id.
Williams argues that the state court did not satisfy the requirements of Crane when it
determined his continued confinement was proper. Specifically, Williams argues that the state
court concluded only that he was “predisposed” to commit future offenses and that this
predisposition does not constitute a serious difficulty in controlling behavior. Williams’s
argument fails on both counts. While it is true that the Michigan Court of Appeals found that the
state had proven Williams had a “mental disorder that predisposes him to commit future sex
offenses,” People v. Williams, 580 N.W.2d 438, 443 (Mich Ct. App. 1998), it also found that he
“continued to suffer from the antisocial, or sociopathic, personality disorder that caused his past
crimes,” id. at 442 (emphasis added); see also id. at 443 (“[D]efendant continued to suffer from
the personality disorder that caused him to commit the sexual assaults and killings . . . .”)
(emphasis added). Furthermore, the Supreme Court concluded that a condition “which
predisposes the person to commit sexually violent offenses,” Kan. Stat. Ann. § 59-29a02(b)
(emphasis added), constituted a “mental condition or personality disorder that makes it difficult,
if not impossible, for the person to control his dangerous behavior,” Hendricks, 521 U.S. at 358
(citing Kan. Stat. Ann. § 59-29a02(b)). These findings satisfy the requirements of Crane because
the typical recidivist convicted in an ordinary criminal case neither suffers from such a mental
condition nor is influenced or caused to reoffend by such a mental condition.
Williams next argues that the CSPA does not satisfy the requirements of Hendricks
-9-
because it does not require a finding of a likelihood of future dangerousness. Alternatively,
Williams argues that even if the CSPA does require such a finding, the state court failed to make
such a finding and insufficient evidence exists to support such a finding. Williams makes much
of the Supreme Court’s statement that “[t]he [Kansas] statute requires proof of more than a mere
predisposition to violence; rather, it requires evidence of past sexually violent behavior and a
present mental condition that creates a likelihood of such conduct in the future if the person is
not incapacitated.” Id. at 357. He argues that “the Court clearly is distinguishing ‘likelihood of
future conduct’ from ‘mental abnormality with a volitional impairment,’ and seems to be saying
that the required finding of both is what satisfies both substantive and procedural due process.”
Williams’s interpretation of the passage to require a separate showing of likelihood of
future conduct is wrong for three reasons. First, it is clear that this statement is describing the
requirements of the Kansas statute, not the minimum requirements of due process. Second, the
Hendricks opinion itself explains the meaning of the statement in question. Immediately after
noting what the Kansas statute requires, the subsequent paragraphs explain how each of these
requirements comports with the Court’s prior precedent. The first subsequent paragraph
addresses the evidence of past violent behavior, and the next paragraph addresses the mental
conditions create a likelihood of future violent conduct because they impair volition. See id. at
357-58. There is no further mention of Williams’s imagined likelihood-of-future-conduct
requirement. Third, in Crane, when the Supreme Court recounted the holding of Hendricks in
great detail and stated the characteristics of commitment statutes that satisfy due process, there is
no mention of a “likelihood” requirement. See Crane, 534 U.S. 409-10. In fact, no form of the
word “likely” appears in the majority opinion at all.
-10-
In fact, Hendricks and Crane explain exactly why Williams’s confinement satisfies due
process requirements. The state courts made a finding of dangerousness. Williams, 580 N.W.2d
at 442-43; see Hendricks, 521 U.S. at 357. The finding of dangerousness was supported by
evidence of past sexually violent behavior. Williams, 580 N.W.2d at 439-40; see Hendricks, 521
U.S. at 357-58. The finding of dangerousness was coupled with proof of an additional mental
abnormality that creates a likelihood of future violent conduct because it impairs volition.
Williams, 580 N.W.2d at 442-43; see Hendricks, 521 U.S. at 358. The state courts found that the
mental abnormality constituted a serious difficulty in controlling dangerous behavior. Williams,
580 N.W.2d at 442; see Crane, 534 U.S. at 413.
IV.
For the foregoing reasons, we affirm the district court’s decision.
-11-
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 98-1413
EULA S. HUGHES, Widow of Carl Hughes,
Petitioner,
versus
DIRECTOR, OFFICE OF WORKER’S COMPENSATION
PROGRAMS, UNITED STATES DEPARTMENT OF LABOR;
CLINCHFIELD COAL COMPANY,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(97-0809-BLA)
Submitted: September 10, 1998 Decided: September 23, 1998
Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eula S. Hughes, Petitioner Pro Se. Patricia May Nece, Edward Wald-
man, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C.; Timothy
Ward Gresham, PENN, STUART, ESKRIDGE & JONES, Abingdon, Virginia
for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Petitioner seeks review of the Benefits Review Board’s deci-
sion and order affirming the administrative law judge's denial of
black lung benefits pursuant to 30 U.S.C.A. §§ 901-945 (West 1986
& Supp. 1995). Our review of the record discloses that the Board’s
decision is based upon substantial evidence and is without revers-
ible error. Accordingly, we affirm on the reasoning of the Board.
Hughes v. DOWCP, BRB No. 97-0809-BLA (B.R.B. Jan. 29, 1998). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
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11 Cal.App.4th 126 (1992)
13 Cal. Rptr.2d 719
THE PEOPLE, Plaintiff and Respondent,
v.
EDGAR MORRIS HENDRICKS, Defendant and Appellant.
Docket No. B056777.
Court of Appeals of California, Second District, Division Seven.
November 25, 1992.
*128 COUNSEL
Stephen Gilbert, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Acting Assistant Attorney General, Donald E. de Nicola and Carol Frederick Jorstad, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
WOODS (Fred), J.
At a sanity retrial a jury found appellant sane at the time he committed two robbery-murders. Appellant claims three trial court errors require reversal: (1) permitting the prosecution to commence the sanity retrial (2) admitting evidence that when psychiatrists and psychologists interviewed appellant he had been sentenced to death and (3) exclusion of family mental illness evidence. We find no error and affirm the judgment.
PROCEDURAL AND FACTUAL BACKGROUND
The initial background is described by Justice Mosk, reviewing appellant's automatic appeal from a judgment of death: "In the summer of 1980 defendant was without money and was working in Los Angeles and San Francisco as a hustler a male prostitute for men. In the course of his trade, he would also rob his customers. He met Harry Carter in Los Angeles and had sex with him for money. A week or two later he saw Carter again, and again engaged in an act of prostitution. He lived with Carter for two or three weeks. At the end of that time Carter told him to get out and called him a `low life'; defendant picked up a knife lying on the kitchen table and fatally stabbed him; defendant took various items belonging to the victim and left.
"About a month later defendant met James Burchell while he was hustling in Hollywood and went home with him. Once there, Burchell agreed to pay *129 him for sex. During intercourse Burchell expressed dissatisfaction with defendant's performance, a fight ensued, and defendant shot him fatally in the neck. After taking various items belonging to Burchell, he left.
"With regard to each victim defendant was charged with murder (Pen. Code,[[1]] § 187) and robbery (§ 211). As to each murder four special circumstances were alleged: (1) defendant's prior conviction for the murder of Parmer (§ 190.2, subd. (a)(2)); (2) his prior conviction for the murder of Haynes; (3) multiple murder in the present proceeding (id., subd. (a)(3)); and (4) felony murder-robbery (id., subd. (a)(17)(i)). Defendant pleaded not guilty and not guilty by reason of insanity.
"At the guilty phase the jury found defendant guilty as charged and found all the special circumstance allegations to be true. At the penalty phase, they fixed the penalty at death and were subsequently discharged.
"On the day set for sentencing, the parties reminded the court that a sanity hearing had not been conducted immediately after the guilt phase, as required by [ ] section 190.1, subdivision (c). Over defendant's objection that the same jury must determine all the issues in a capital trial, the court empaneled a new jury to decide the issue of sanity alone. After deliberations that spanned 11 days the jurors reported they were hopelessly deadlocked, and a mistrial was declared. Over defendant's further objection, the court then called back the original jurors who had been discharged more than five months earlier and reempaneled them without examining them itself or allowing voir dire by the parties. This jury returned a verdict that defendant was sane at the time of the crimes charged. Thereupon the court imposed the sentence of death." (People v. Hendricks (1987) 43 Cal.3d 584, 588-589 [238 Cal. Rptr. 66, 737 P.2d 1350].)
The California Supreme Court affirmed the judgment as to guilt, vacated the sanity verdict, reversed the judgment as to penalty, and remanded the matter to the superior court. (43 Cal.3d at p. 599.)
The instant sanity retrial began in 1990. On September 11, 1990, the jury found appellant sane at the time of the commission of all four offenses.
Thereafter, at the penalty phase, the jury was unable to render a verdict and was discharged. The prosecution declined another penalty trial. Appellant was sentenced to concurrent terms of life without possibility of parole.
*130 DISCUSSION
1. Appellant contends the trial court erred in permitting the prosecution to commence the sanity retrial.
(1) In asserting the defense of not guilty by reason of insanity, the burden of proof by a preponderance of the evidence (§ 25, subd. (b)) is on the accused. For that reason, because he had the burden of proof, appellant contends it was error to permit the prosecution to commence the sanity retrial. Appellant is mistaken.
Section 1093, which prescribes the procedure and chronology of a criminal trial, makes no reference to a sanity trial. Nor does any other statute. (5 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) § 2968, at p. 3646.)
However, pursuant to section 1094,[2] the trial court has discretion to control the order of a trial.
Here, the trial court exercised its discretion by permitting the prosecutor to make the first opening statement, limited to the facts of the offenses, and to first offer evidence, also limited to the facts of the offenses. Following this restricted prosecution evidence, the defense commenced. It introduced evidence of appellant's insanity at the times he committed the offenses. The prosecution then presented evidence of appellant's sanity. The defense was then permitted to open and close argument to the jury. (Cf. People v. Bandhauer (1967) 66 Cal.2d 524 [58 Cal. Rptr. 332, 426 P.2d 900] prescribing order of argument in a penalty trial.)
There was no abuse of discretion. Just as the trial court in People v. Greig found it useful to first hear evidence of the crimes before hearing evidence of insanity[3] (People v. Greig (1939) 14 Cal.2d 548 [95 P.2d 936]), here the trial court properly believed it would be helpful to the jury to first hear evidence of the crimes. The California Supreme Court has consistently approved this procedure. (People v. Greig, supra, 14 Cal.2d 548, 558-559; People v. Letourneau (1949) 34 Cal.2d 478, 495-496 [211 P.2d 865]; People v. Carmen (1954) 43 Cal.2d 342, 347 [273 P.2d 521]; People v. Cotter (1965) 63 Cal.2d 386, 398 [46 Cal. Rptr. 622, 405 P.2d 862]; see also People v. Jones (1964) 225 Cal. App.2d 598, 618 [37 Cal. Rptr. 454]; 5 Witkin & Epstein, Cal. Criminal Law, supra, § 2968, at p. 3646.)
*131 2. Appellant contends the trial court erred in admitting evidence that when a defense psychologist interviewed appellant he had been sentenced to death.
In testifying that appellant was insane when he committed the instant murders in July and August 1980, defense psychiatrists and psychologists based their opinion, in part, on evidence that he was severely depressed and thus mentally ill when interviewed in 1982.
The prosecutor, to impeach this testimony, sought to show that appellant's extreme depression was a normal reaction to having just been sentenced to death and was not evidence of mental illness. In permitting the inquiry the trial court stated: "I really have given this a lot of thought. I have listened to counsel very carefully. I see the potential prejudicial effect, but it is so probative.
"You have to get the state of mind of this defendant on the sanity issue. I said if this were the guilt phase or anything else I would probably not even consider it.
"But based on what I have heard, I think I am going to rule that the People can ask the question[[4]] and that the probative value outweighs the prejudicial effect based on the fact this is a sanity issue."
(2) Appellant does not claim the subject evidence was not relevant[5] but rather that its probative value was outweighed by its prejudicial effects. (Evid. Code, § 352.) Two effects are identified.
First, appellant argues, "it led the jury to believe that appellant was sane at the time of his crimes; otherwise, he would not have been sentenced to death ..." This argument is mistaken for two reasons. The murders for which appellant was sentenced to death were committed at different times (and places) than the subject murders. It was possible for appellant to be sane when committing those murders and insane when committing the subject murders. Additionally, as the jury was informed, sanity was not in issue in the San Francisco murder trials.
The second prejudicial effect was, as appellant phrases it, "it led the jury to believe that their decision in this matter was academic; appellant was going to be executed whatever the jurors here decided."
*132 We disagree. If the effect of learning about the San Francisco death sentence was to undermine the importance of the instant proceedings then why should the jury find appellant sane rather than insane? Further, such psychological speculation is inconsistent with the jury's efforts to arrive at a penalty verdict and to be unable to do so.
We are satisfied the trial court did not exceed its "wide discretion in determining the admissibility of evidence." (People v. Karis (1988) 46 Cal.3d 612, 637 [250 Cal. Rptr. 659, 758 P.2d 1189].) The context of the court's ruling was this: the jury had been informed appellant had committed five murders, had been convicted of four, each in the first degree, and was awaiting trial on the fifth. Further, before the subject question was asked, evidence had been admitted without objection that appellant "was facing the prospect of execution." In this context the prejudicial effect, if any, of the San Francisco death sentence evidence was minimal and harmless.[6]
3. Appellant contends the trial court erred in excluding family mental illness evidence.
During the direct examination of Dr. Kaser-Boyd, a psychologist called by the defense, trial counsel for appellant asked the witness about information she (Dr. Kaser-Boyd) had received from another psychologist, Dr. Jenkins, who had apparently interviewed various members of appellant's family. The prosecutor objected. During a protracted bench conference, when for the first time the prosecutor was provided a copy of the Dr. Jenkins material, the prosecutor argued the following:
"All of the people interviewed in these reports appear to be relatives or distant relatives of the defendant. The majority of the reports go to these people's own family history, regarding their own individual problems, the problems of their sisters, their brothers, their distant aunts and uncles and grandparents.
"Most of the information has absolutely no bearing on the defendant. None of the information most of that information is absolutely irrelevant to the defendant's state of mind when he committed these crimes.
"We have information about great aunts and uncles that committed suicide or killed people or cousins that are schizophrenic." (Italics added.)
*133 Concerned about the relevancy of this family history information gathered by a nonwitness, the trial court stated: "The only relevant information this court is about to receive is information concerning the sanity of this defendant that this doctor has information about. No other information will be relevant. Whether the aunt has problems is just not relevant."
Trial counsel for appellant merely responded: "Or the amount of mental illness in the family?" The trial court rejoined: "I don't think it is relevant" and trial counsel for appellant said "Okay."
(3) Appellant now argues that the evidence was relevant because if members of appellant's family were mentally ill it was more likely he was mentally ill. No such representation or offer of proof was made to the trial court. Evidence Code section 354 provides in pertinent part: "A verdict ... shall not be set aside ... by reason of the erroneous exclusion of evidence unless ... it appears of record that: (a) the substance, purpose, and relevance of the excluded evidence was made known to the court...."
Trial counsel's cryptic question ("Or the amount of mental illness in the family?") falls far short of an offer of proof that Dr. Kaser-Boyd would testify that if members of appellant's family were mentally ill it was more likely he was mentally ill. For this reason appellant's argument fails.
But assuming the trial court's ruling was in error, it was harmless. Notwithstanding its ruling, much, if not all, of the family history information was admitted and it merely duplicated information appellant had himself provided.
DISPOSITION
The judgment is affirmed.
Lillie, P.J., concurred. Johnson, J., concurred in the judgment only.
Appellant's petition for review by the Supreme Court was denied February 25, 1993.
NOTES
[1] Unless otherwise noted, all statutory references are to the Penal Code.
[2] The section provides: "When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order prescribed in the last section may be departed from."
[3] Greig, having withdrawn his not guilty plea, only had a sanity trial.
[4] The prosecutor asked Dr. Kaser-Boyd, a psychologist called by the defense, the following question: "Well, before you interviewed the defendant you knew that he had been convicted of two first-degree murders in San Francisco, received the death penalty and was sent to San Quentin, was on death row?"
[5] Evidence Code section 210 defines relevant evidence as "evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action."
[6] The trial court instructed the jury:
"Certain evidence was admitted for a limited purpose.
"Evidence that the defendant has been given the death penalty in San Francisco was admitted for its effect, if any, on defendant[']s state of mind.
"Do not consider such evidence for any purpose except the limited purpose for which it was admitted."
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84 B.R. 315 (1988)
In re AUGIE/RESTIVO BAKING COMPANY, LTD., Augie's Baking Company, Ltd., Debtors.
Nos. 086-60208-21, 086-60262-21.
United States Bankruptcy Court, E.D. New York.
February 4, 1988.
Sanford P. Rosen, New York City, for debtors.
Dewey, Ballantine, Bushby, Palmer & Woods by Ronald L. Cohen, New York City, for Creditors Committee.
Stroock, Stroock & Lavan by Daniel H. Golden, New York City, for Mfrs. Hanover Trust Co.
Mark Brandoff, New York City, for Credit Alliance & Leasing Service.
Pinks, Brooks, Stern & Arbeit by Steven G. Pinks, Hauppauge, N.Y., for Union Sav. Bank.
Jules V. Speciner, Great Neck, N.Y., for Leon's Bakery, Inc.
OPINION
CECELIA H. GOETZ, Bankruptcy Judge:
Augie/Restivo Baking Company, Ltd. ("Augie/Restivo") and Augie's Baking Company, Ltd. ("Augie's"), as debtors and debtors-in-possession (collectively "debtors"), are moving to substantively consolidate their Chapter 11 cases. The cases have already been procedurally consolidated. The Augie/Restivo unsecured creditors committee and Manufacturers Hanover Trust Company ("Manufacturers Hanover") support the motion. Union Savings Bank ("Union") and First Interstate Credit Alliance, Inc., formerly Credit Alliance Corporation ("Credit Alliance"), object to substantive consolidation, as does one individual creditor.
The order which the debtors are requesting will provide for (a) consolidation of the two Chapter 11 cases into a single case for all purposes; (b) merger of the assets and liabilities of Augie's and Augie/Restivo; (c) treating all claims filed in either of the two cases as having been filed in the consolidated case and expunging all duplicate claims for the same indebtedness; (d) eliminating and disallowing all intercompany claims; (e) eliminating all cross guarantees made by either company to pay the debts of the other; and (f) filing of a single Chapter 11 Plan of Reorganization for both corporations.
The present motion has been precipitated by the fact that a buyer, Leon's Bakery, Inc. ("Leon's) has committed itself to pay over $7 million for the assets of the debtors as a single going enterprise, provided these assets can be sold free and clear of liens, pursuant to the authorization of the Bankruptcy Court. Leon's is currently operating the business of the debtors. It is the *316 debtors' position that because their financial affairs are so intermingled, they cannot meet the conditions laid down by the buyer requiring confirmation of a plan, or plans, unless they are permitted the substantive consolidation they now seek. If they are unable to effect this sale, the likely alternative is piecemeal liquidation.
Until January 1, 1985, the two corporations, now known as Augie's and Augie/Restivo, were unrelated, independent enterprises. Augie's was the corporate vehicle through which three brothers, Agostino Moronese, Angelo Moronese and Nicholas Moronese, conducted a wholesale baking business in Long Island, outside the City of New York. Restivo Brothers Bakers, Inc., (now known as Augie/Restivo, but identified in this description of pre-1985 events as "Restivo"), was the corporate vehicle through which a different set of brothers, Louis D. Restivo and Louis A. Restivo, operated a wholesale baking and distribution business in the New York City metropolitan area.
Prior to 1985, Augie's was financed by Credit Alliance and Union. During 1980, it entered into two equipment lease and three security agreements with Credit Alliance. It also gave Credit Alliance two promissory notes dated, respectively, June 27, 1980 and July 24, 1984. The resulting indebtedness to Credit Alliance, still unpaid, was $415,000. As collateral, Credit Alliance received a security interest in Augie's machinery, equipment, goods, chattels, inventory, accounts and notes receivable and other personal property. In 1984, when Augie's was prospering and its financial statements showed it to be solvent[1], it embarked upon an expansion which ultimately led it to the bankruptcy court. It enlarged or built (the record is unclear) a new facility at 135 Oval Drive, Central Islip, New York ("the real property"). It financed this construction in part from loans by Union, to which it gave mortgages in the face amount of $2,100,000. The debt secured by the mortgages has now grown to $2,955,010.45. On November 10, 1984, Augie's borrowed an additional $300,000 from Union, giving the latter a security interest in the same collateral as it had previously given Credit Alliance. The balance owed on this debt is now $365,006.99.
At the same time as Augie's was expanding its physical facilities, it was negotiating with the Restivo brothers the merger of their two operations into a single enterprise. Restivo at that time maintained its office and manufacturing facilities at 1633 Center Street, Ridgewood, New York. It financed its business through loans from Manufacturers Hanover, which held a first mortgage on its real property, as well as a security interest in its other assets.
On November 27, 1984, Augie's and Restivo entered into an agreement merging the two bakeries to become effective January 1, 1985. Pursuant to this agreement, the Moronese brothers exchanged all their stock in Augie's for 50 percent of the stock in Restivo, making Augie's a wholly owned subsidiary of Restivo. Subsequently the parent corporation changed its name to Augie/Restivo. Neither corporation was dissolved; both survived. Agostino Moronese became President of Augie/Restivo, Angelo Moronese was made Secretary, and Nicholas Moronese, Vice President. Louis D. Restivo was made Chairman and Louis A. Restivo, Vice President.
The two companies ceased to function as separate enterprises; all their activities were integrated into a single operation effective January 1, 1985. The Ridgewood building formerly owned by Restivo was sold. Manufacturers Hanover was paid approximately one million dollars out of the proceeds against a debt of approximately two million dollars. Some, or all, of the Restivo equipment (the record is unclear) *317 was transferred to Augie's premises, where all the operations of the business continued: manufacturing, distribution and selling. After the merger, the two companies maintained only a single set of books and records under the name of Augie/Restivo. Consolidated financial statements were issued in that name.
From the effective date of the merger, all business was conducted in the name of Augie/Restivo. All customers and suppliers were sent a letter advising them that henceforth they would be doing business with Augie/Restivo. Augie's ceased to have any employees. All wages were paid by Augie/Restivo. All invoices and checks were issued in that name. All operating expenses were met from the moneys generated by Augie/Restivo, except that Augie's accounts payable for the period prior to the merger were first paid out of the receipts from Augie's pre-merger accounts receivable. At the present time there are no uncollected accounts receivable belonging to Augie's from the pre-merger period except for some $70,000 due on certain school contracts. These are still outstanding for reasons not pertinent to this opinion. All of Augie's pre-merger debts have presumably been satisfied.
No formal transfer of any assets has ever taken place. Title to the Central Islip property remains in Augie's, as does title to whatever equipment Augie's possessed on the date of merger. Augie/Restivo has never paid anything to Augie's for the use of the building or its equipment. The cost of heating the building, as well as some additional construction costs and all other post-merger liabilities, have been paid out of the proceeds of the operations of Augie/Restivo.
In April 1985, Manufacturers Hanover lent Augie/Restivo $750,000. It received back a guarantee of the debt from Augie's and a security interest in all Augie/Restivo's accounts receivable, inventory, furniture, fixtures, machinery and equipment. Augie's guarantee was also secured by a $750,000 mortgage on the Central Islip real property, subordinate to the earlier mortgages given Union. The total debt to Manufacturers Hanover now exceeds $2,900,000.
The merged enterprise proved to be a financial disaster. The expansion proved fatal to the prosperity that Augie's had previously been enjoying. On March 27, 1986, an involuntary Chapter 11 petition was filed against Augie/Restivo pursuant to 11 U.S.C. § 303 of the Bankruptcy Code. An amended involuntary petition was filed on April 2, 1986. Augie/Restivo consented to entry of an order for relief under Chapter 11 on April 16, 1986. Augie's filed a voluntary petition under Chapter 11 that same day. Each of the debtors was continued as debtors-in-possession under 11 U.S.C. § 1107. The two cases were consolidated for procedural purposes on April 16, 1986.
The schedules filed by Augie's and Augie/Restivo showed a tax liability of approximately $1,000,000 to the Internal Revenue Service and to New York State for failure to pay withholding taxes during 1985 and 1986. The schedules described these taxes as joint and several liabilities of the two debtors. Augie/Restivo's schedules showed an additional three million dollars as owed to unsecured trade creditors located throughout the New York metropolitan area, including Long Island.
Following the Chapter 11 filings, the debtors continued to believe that rehabilitation was feasible. They were able to continue doing business because Manufacturers Hanover, which held a security interest in the debtors' accounts receivable, permitted proceeds from the collection of their accounts to be used to fund the debtors' operations. As a result, the total value of the accounts receivable is less than when these cases began. Furthermore, unpaid administrative debts in the amount of $400,000 have been generated.
On September 30, 1987, in contemplation of a sale to Leon's of the merged enterprise, the debtors entered into a court approved agreement, pursuant to which Leon's undertook to manage the debtors' bakery. Subsequently, on November 30, 1987, Leon's agreed to purchase all the debtors' assets for $7.3 million, conditioned *318 upon confirmation of a Chapter 11 plan, or plans. To meet this condition, the debtors have filed a consolidated plan of reorganization which will be withdrawn if the motion for substantive consolidation is denied.
The consolidated plan provides for complete satisfaction of the mortgages on Augie's real property. Union will be paid the full $2.95 million owed on its mortgages. Manufacturers Hanover will be paid $750,000 on its mortgage. Taxes will be paid over the six years permitted by the Code. All claims secured by assets other than real property will be paid to the extent that the value of the collateral securing those claims is equal to the debt it seeks to secure. To the extent any portion of a secured debt remains unsecured, the creditor will share in the distribution to general creditors. The consolidated plan promises to pay ten cents on the dollar on unsecured claims.
What this means is that most of the debt to Union not secured by real property and the debts to Credit Alliance will not be paid. Union and Credit Alliance will receive only the present value of whatever equipment remains in the possession of the debtors identifiable as belonging to Augie's pre-merger. These assets are stated as having negligible value. They will also receive the uncollected $70,000 in accounts receivable. This Court is not prejudging what else either may have a right to claim.
Both Manufacturers Hanover and the unsecured creditors committee support the consolidation requested by the debtors. They contend that consolidation of the assets and liabilities is appropriate because the two debtors have been operating as a single enterprise since 1985 and that all post-merger receivables and liabilities are a product of the joint enterprise. They point to the fact that the money to fund the plan arises from a sale of the entire business as an on-going enterprise, kept going by both debtors. They contend that the prejudice which Union and Credit Alliance claim they would suffer from the proposed consolidation is the product of what has previously taken place. They argue that substantive consolidation will not impair either Union or Credit Alliance to the extent that either has a valid perfected security interest. The collateral will be valued and paid to them in cash. To the extent that accounts receivable have dissipated or equipment and machinery has depreciated since the time of the merger, they argue that both secured creditors took either a calculated business risk in failing to pursue foreclosure remedies or were less than vigilant in protecting their interests. They argue that since unsecured creditors also took risks in continuing to extend trade credit to the consolidated company, there is no reason why the secured creditors should benefit by being bailed out of the consequences of their gamble to the detriment of all other creditors. They contend that in view of this background, all creditors should share in the consolidated assets of Augie/Restivo.
Neither Union nor Credit Alliance has suggested any way in which the conditions necessary to make the proposed sale of the integrated enterprise can be met absent the substantive consolidation sought by the debtors. They nevertheless oppose such consolidation. Based on the hearing held by this Court, their objections appear to be predicated essentially on three grounds: First, at the time they made their loans to Augie's, it was a solvent corporation, the loans were fully secured, they in no way relied on the credit of Restivo, which at the time had no relationship with Augie's and they, therefore, should not now be paid less than they would have received in 1984 pre-merger; second, the bulk of the purchase price for the integrated enterprise "should be paid for the benefit of creditors of Augie's Baking Company, Ltd." of which they are virtually the only creditors remaining"as that is the entity which owns the bulk of the physical assets being sold;" third, were Augie's to be liquidated today, Augie's unsecured creditors would realize a substantial dividend far in excess of the ten cents to the dollar that the debtors propose to pay and they might even be paid in full. (Union's Objection to Motion for Consolidation, p. 10).
Taking these contentions in turn, the fact that Augie's may have been solvent in *319 1980, or 1984, can scarcely be considered dispositive in 1988. Many of the assets that Augie's owned in 1984, such as accounts receivable and inventory are now gone. If Union and Credit Alliance believed their security interests were adversely affected by the disposition Augie's made of this collateral, remedies were available at that time. Denying consolidation will not restore the former accounts receivable, or the inventory, or any other physical assets that are now gone.
The claim that the creditors of Augie's should receive preferential treatment is closely related to the contention that in liquidation they would receive more than they will now be paid. Both rest on the premise that the assets of the integrated enterprise belong to Augie's and the liabilities to Restivo. That premise is mistaken. It should be noted that Leon's has made no allocation of the purchase price to specific assets. It is paying $7.3 million for the ongoing enterprise, with no breakdown as between the building, the equipment, the routes or goodwill. Of the total purchase price, better than 40 percent will be distributed to pay liens on the physical assets to which Augie's holds title, the land and the equipment. Close to $3 million will go to Union, $750,000 to Manufacturers Hanover and some as yet undetermined amount for the equipment. There is no basis for thinking this allocation results in inadequate compensation for the physical assets.
The contention that Union and Credit Alliance would receive more if Augie's were liquidated rests upon pure speculation and a pyramid of assumptions. It assumes first that Augie's real property would be sold at a figure approximating the four million dollars which the debtors at various times during the past year have claimed to be its fair market value. (The value of the equipment can be disregarded for present purposes since under the proposed plan the security interests in that collateral will be paid their present value.) It further assumes further that the second mortgage held by Manufacturers Hanover in the amount of $750,000 can be voided as a fraudulent conveyance. Third, it assumes that the tax authorities will be unable to assert a priority for their more than one million dollar tax claim because Augie's had no employees after January 1, 1985. Fourth, it assumes that those who became trade creditors of Augie/Restivo after January 1, 1985 will not be able to make any claim against Augie's. Each one of these assumptions is most questionable.
That Augie's building was represented to have a fair market value in 1987 of four million dollars is no guarantee that in a forced sale it will bring anything near that figure or even that it will cover the mortgages which now total approximately $3,750,000. The building is a special purpose building, constructed to serve as a bakery. The debtors lack the money to maintain it while they look for a good price. Although Union has repeatedly maintained that the second mortgage held by Manufacturers Hanover is a fraudulent conveyance, no serious effort has been made to demonstrate this to be the case or even to spell out why a mortgage given in exchange for $750,000 advanced to an affiliated corporation and used, in part, for improvement of the mortgaged building is voidable as a fraudulent transfer. Union has been in possession of all the relevant facts regarding the financial accommodations with Manufacturers Hanover. It nonetheless waited until August 21, 1987, after negotiations to sell the entire bakery business had begun, before demanding that Augie's bring an action pursuant to Section 548 of the Bankruptcy Code to set aside Manufacturers Hanover's mortgage.
It is equally questionable whether Augie's can escape liability for withholding taxes due on wages of employees driving trucks owned or leased by it, delivering its products.
Most questionable of all is whether Augie's could escape liability for post-merger debts which presumably make up a large part of the three million dollars in unsecured obligations and of the $400,000 in administration debt. While Union and Alliance may not have relied on the credit of Restivo or Augie/Restivo in the loans they made Augie's, the holders of this trade debt certainly relied on the fact that in *320 dealing with Augie/Restivo they were dealing with a self-described successor to Augie's and were thereby led to believe that they could look to Augie's for payment.
The arguments of Union and Credit Alliance can be reduced to the following: If substantive consolidation is not permitted and if Augie's Chapter 11 proceeding continues independently; then, if an auction sale of its property realizes in excess of $3,750,000, and if Manufacturers Hanover's mortgage is voided as a fraudulent transfer, and if the taxing authorities are unable to establish any liability in Augie's for withholding taxes, and if the creditors who extended credit to Augie/Restivo are barred from making any claim against Augie's, then if all these events occur, the creditors of Augie's will receive more than the ten cents on the dollar they are slated to receive if the two proceedings are substantively consolidated.
One further argument made by Union and Credit Alliance should be noted. They contend that Augie's has a cause of action against Augie/Restivo for use and occupation of its premises and use of its equipment, which will be lost if the cases are consolidated. This argument assumes that it is possible to balance the credits and debits between the two companies, whereas the very basis of the motion to consolidate is that this is an impossibility. But even more to the point, the contention is virtually frivolous. A cause of action against Augie/Restivo, absent consolidation, has a value of close to zero. From what assets would it be collected? With what other claimants would it compete? For all concerned, the sale to Leon's offers the greatest return and that requires substantive consolidation of the present debtors.
Substantive consolidation treats the assets of all debtors as common assets, satisfies liabilities from a common fund and eliminates all intercompany claims and guarantees made by the debtor companies. Chemical Bank New York Trust Company v. Kheel, 369 F.2d 845, 847 (2d Cir. 1966). Substantive consolidation arises out of the equity power of the bankruptcy court. In re Continental Vending Machine Corp., 517 F.2d 997, 1000 (2d Cir. 1975), cert denied, 424 U.S. 913, 96 S.Ct. 1111, 47 L.Ed.2d 317 (1976). Although not explicitly codified by statute, courts have held that the power is authorized under § 105(a) of the Bankruptcy Code. E.g., In re Donut Queen, Ltd., 41 B.R. 706, 708 (Bankr.E.D.N.Y.1984); In re Richton International Corporation, 12 B.R. 555, 557 (Bankr.S.D.N.Y.1981).
While the power to consolidate must be used sparingly to avoid undue prejudice to creditors, see Chemical Bank v. Kheel, 369 F.2d at 847, its exercise is appropriate when interrelationships among related debtors threatens to deny realization of any net assets for all creditors. Id. Courts have recognized a recent, increased need for substantive consolidation owing to the increased prevalence of parent and subsidiary corporations with interlocking directorates. See In re F.A. Potts & Co., Inc., 23 B.R. 569, 571 (Bankr.E.D.Pa.1982); Richton, 12 B.R. at 557; In re Food Fair, Inc., 10 B.R. 123, 126 (Bankr.S.D.N.Y. 1981); In re Vecco Construction Industry, Inc., 4 B.R. 407, 409 (Bankr.E.D.Va.1980); Matter of Commercial Envelope Manufacturing Co., Inc., 3 B.C.D. 647, 648 (Bankr.S.D.N.Y.1977).
In deciding whether cases should be substantively consolidated various factors have been considered. In Chemical Bank v. Kheel, 369 F.2d, supra at 846, the Second Circuit found the following circumstances justified consolidation: (1) the debtor corporations were operated as a single unit with little or no attention paid to formalities observed in independent corporations; (2) the officers and directors of all the corporations were substantially the same; (3) funds were shifted back and forth between corporations in a complex manner and pooled together; (4) loans were made back and forth among the companies; (5) companies borrowed money to pay the obligations of others; (6) withdrawals and payments made to and from corporate accounts were insufficiently recorded on the corporate books; and (7) auditing the corporations' financial condition and intercompany relationships would have entailed *321 great time and expense without assurance of success.
Bankruptcy Courts have culled from Kheel and other key Second Circuit cases eight elements relevant to substantive consolidation:
(1) the presence or absence of consolidated financial statements;
(2) the unity of interests and ownership between the various corporate entities;
(3) the existence of parent and inter-corporate guarantees or loans;
(4) the degree of difficulty in segregating and ascertaining individual assets and liability;
(5) the transfer of assets, without formal observance of corporate formalities;
(6) the co-mingling of assets and business functions;
(7) the profitability of consolidation at a single physical location; and
(8) whether substantive consolidation will yield an equitable treatment of creditors without undue prejudice to any particular group.
Donut Queen, 41 B.R. at 709; Richton, 12 B.R. at 558; Food Fair, 10 B.R. at 126.
These criteria, however, are not mechanically applied. Donut Queen, 41 B.R. at 709. Rather, consolidation hinges on balancing the equities favoring consolidation against the equities favoring continuation of separate bankruptcy estates. Id.; Richton, 12 B.R. at 558. Moreover, "the inequities it [consolidation] involves must be heavily outweighed by practical considerations such as the accounting difficulties (and expense) which may occur where the interrelationships of the corporate group are highly complex, or perhaps untraceable." Continental Vending Machine, 517 F.2d at 1001. Finally, "where the interrelationships of the group are hopelessly obscured and the time and expense necessary even to attempt to unscramble them so substantial as to threaten the realization of any net assets for all the creditors, equity is not helpless to reach a rough approximation of justice to some rather than deny any to all." Chemical Bank v. Kheel, 369 F.2d at 847. An authoritative text on bankruptcy observes, "Substantive consolidation cases are to a great degree sui generis." 5 Collier on Bankruptcy, ¶ 1100.06, p. 1100-33 (15th Ed. 1985). Thus precedents are of limited value. Instead, the Court must determine what equity requires.
In this case, the Court has no doubt that by consolidating the assets and liabilities of Restivo, Augie's and Augie/Restivo is the fairest outcome for all concerned. Augie's and Augie/Restivo have operated as a single entity since January 1, 1985. They have shared officers and directors. Funds and assets have been pooled. Both corporations have shared equipment and machinery. Cash assets lent to Augie/Restivo have been used to improve real property owned by Augie's. Augie's has guaranteed Augie/Restivo's indebtedness and secured that indebtedness by giving a second mortgage on its real estate. The merged entity issued consolidated financial statements and invited customers and suppliers to deal with it as a successor to both Augie's and Restivo. Furthermore, there is a unity of interests and ownership between the two corporate entities since Augie's is a wholly owned subsidiary of Augie/Restivo. See Richton, 12 B.R. at 558; Food Fair, 10 B.R. at 126. Finally, these affairs of these two enterprises have been so entangled as to render it doubtful if they could ever be unknotted.
For the reasons set forth at length earlier, the equities as strongly favor consolidation as do the factors which the courts have enumerated. In re Flora Mira Candy Corporation, 432 F.2d 1060 (2d Cir.1970) is not on point. Reliance on it is misplaced. Flora Mir involved an intentional scheme to defraud the shareholders of a company that was subsequently acquired by the debtor. Id. at 1061. Those circumstances are wholly absent here. In Flora Mir, the equities were strongly against consolidation. Here they favor it.
If Union and Credit Alliance believed themselves prejudiced by the de facto merger of Augie's and Restivo, they should have taken action during the three years that Augie/Restivo has been operating. Instead, they have stood by while the world at-large has dealt with Augie's and Restivo *322 as a single unit. In authorizing substantive consolidation, all the Court is doing is ratifying what has already taken place.
Therefore, the relief requested is granted.
Submit Order.
NOTES
[1] A financial statement for Augie's dated June 30, 1984 and given Restivo when the two sets of brothers merged their businesses, showed that as of that date, Augie's had assets of $5,172,051, liabilities of $4,096,243, shareholder's equity of $1,014,371, accounts payable of $747,717, accounts receivable of $519,419, and inventory valued at $604,035. The total value of property, plant and equipment was $4,752,406. Updated, October 1984 schedules showed that Augie's accounts receivable totaled $639,055, accounts payable totaled $792,251. The auction value of its machinery and equipment was $1,184,474.
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739 F.2d 858
116 L.R.R.M. (BNA) 3182, 39 Fed.R.Serv.2d 627,101 Lab.Cas. P 11,095,5 Employee Benefits Ca 1878
Robert J. ADAMS, Merredna T. Buckley, William J. Calloway,James Joseph Connell, Anthony Michael Cosella, John R. Cook,Anne Crowley, on behalf of the Estate of William J. Crowley,Deceased, Kathryn M. Cullen, Angelina A. Dicarlo, RoccoDelgrammastro, Kathleen Diehl, as Executrix, of the Estateof John M. Dillenschneider, Deceased, Wanda A. Domarotsky,Frank A. Dregar, Robert J. Egy, Amanda Fay, Martha Flinn,Thomas E. Flood, Cornelius Frazier, Jr., Mary Gerace, RoseT. Guokas, John Guy, Mary F. Habina, James Hickman, JohnHudson, Robert H. Jones, Pearl Kelly, Joseph J. Klein,Elizabeth D. Linder, Augustine Marucci, James McGowan,Elizabeth A. McNally, John Morris, John Mumbower, Anna M.Myers, Agnes M. Myers, John A. Neff, Ruth O'Donnell, GraceMary Papala, Anna Petriccione, Richard M. Phillips, RussellRalls, Florence Raysick, Daniel J. Ronau, Bernard C.Russell, John V. Russell, Margaret Russell, AnthonySantoleri, Walter J. Stanowitch, Madeline T. Stein, John F.Steinmetz, Beatrice L. Stillwell, Marie Smith, NancySwallow, Marion Thompson, William J. Watts, Antoinette W.Weiss, Clifford W. Williams, Robert Williams, James C.Wollner, Frank Umstetter, Marie Venti, James C. Willner,Bridget Barlow, Appellants,v.GOULD INC. and First Trust Company of St. Paul, Minnesota,Individually and as Trustee of the Gould Inc.Pension Trust For Hourly Employees andPension Benefit GuarantyCorporation, Appellees.
No. 83-1352.
United States Court of Appeals,Third Circuit.
Argued Jan. 24, 1984.Decided June 28, 1984.As Amended July 13, 1984.Rehearing and Rehearing In Banc Denied July 25, 1984.
Marvin F. Galfand (argued), Galfand & Galfand, Richard A. Ash, Lyman & Ash, Philadelphia, Pa., for appellants.
Robert E. Mann (argued), J. Stephen Poor, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., John Markle, Jr., Mark M. Wilcox, Drinker, Biddle & Reath, Philadelphia, Pa., for appellees Gould, Inc. and First Trust Co. of St. Paul, Minn.
Richard H. Kyle, Briggs & Morgan, St. Paul, Minn., for appellee First Trust Co. of St. Paul, Minn.
Before GIBBONS and BECKER, Circuit Judges, and ATKINS, District Judge.
OPINION OF THE COURT
BECKER, Circuit Judge.
1
This is a suit by a number of former employees of Gould Inc. against Gould and the First Trust Company of St. Paul Minnesota ("First Trust"), Gould's pension plan trustee, alleging that Gould violated the plaintiffs' rights by underfunding the Gould pension trust and that, despite their long service to the company, the plaintiffs have consequently been deprived of any pension benefits whatsoever. The case was brought in 1978. It has been before this court once before, on a 28 U.S.C. Sec. 1292(b) certification. Adams v. Gould, 687 F.2d 27 (3d Cir.1982).
2
In its simplest terms, the question presented by this appeal is whether the district court abused its discretion in denying plaintiffs' motion to alter or amend the summary judgment it entered in favor of defendants and for contemporaneous leave to file a second amended complaint. The gravamen of the proposed amended complaint was that the labor union representing plaintiffs had breached its duty of fair representation, and that Gould breached the collective bargaining agreement, when Gould and the union reached a settlement implementing an arbitration award settling the underfunding dispute. This contention was asserted earlier in the litigation in plaintiffs' briefs, but was not addressed either by the district court or by this court (which limited its ruling to responding to a certified question that did not subsume that claim).
3
This description, however, masks the complexity of this appeal, the disposition of which will require consideration of procedural issues as well as issues of pension law and labor law. The most important issue before us involves the application of the recent Supreme Court decision in Del Costello v. International Brotherhood of Teamsters, --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983). In Del Costello, the Court held that the six-month statute of limitations of section 10(b) of the National Labor Relations Act applied in the context of a suit by an employee alleging a breach of the collective bargaining agreement by the employer and a breach of the duty of fair representation by the employee's union. The issue before us is whether a different statutory period applies where the subject matter of the suit is collectively bargained pension rights.
4
For the reasons that follow, we believe that the motion to alter or to amend the judgment and for leave to file an amended pleading should have been granted. We therefore vacate the judgment of the district court and remand for further proceedings.
I.
5
In 1962, Gould purchased the Wilkening Manufacturing Company's piston ring plant, assuming the pension plan agreement negotiated in 1953 by Local 416 of the United Automobile Workers Union ("Local 416") and Wilkening. In 1972, Gould and Local 416 entered a collective bargaining agreement, incorporating by reference the "Gould Inc. Pension Plan," ("the Plan"), which thereupon covered the past and present employees of the Wilkening plant.
6
In 1974, Gould decided to close the Wilkening plant. Pursuant to section 7.1 of the Plan, Gould terminated the Plan as to the employees, both currently working and retired, who were covered by the Plan due to their employment at the Wilkening plant (the "Wilkening beneficiaries"). Under section 7.2 of the Plan, the assets in the pension fund attributable to the Wilkening plant were to be used to pay pensions to the Wilkening beneficiaries according to a system of priorities specified therein. Under this system, beneficiaries already retired (the "current retirees") had the first priority, and would receive their pensions to the extent possible given the Plan's assets. If the current retirees were paid their full pensions, then the employees with ten or more years of credited time, whose rights were therefore "vested" under the Plan ("vested employees") would receive their pensions when they reached retirement age, to the extent of the remaining assets.1 When the Wilkening plant was closed, the assets of the pension fund were insufficient to pay the current retirees' pensions in full, and thus the vested employees were not entitled to receive pensions under the Plan when they reached retirement age.
7
Local 416 brought a grievance against Gould under section XVII of the collective bargaining agreement, seeking to force Gould to fund the pension benefits of the Wilkening beneficiaries in full. The grievance proceeded to arbitration. Although the arbitrator held that Gould did not have to fund the Plan in full, he found that Gould had improperly changed its actuarial assumptions in 1969 in such a way that its contributions to the Plan attributable to the Wilkening plant decreased. At about the same time, Gould had begun considering closing the Wilkening plant. The arbitrator held that the use of "less conservative" actuarial assumptions at a time when Gould was considering closing the plant was improper. The arbitrator therefore ordered the parties to determine by negotiations the amount by which Gould's contributions were less than they would have been had the proper actuarial assumptions been used, and directed Gould to pay that amount into the pension fund.
8
After negotiations, Gould and Local 416 agreed that the amount of the undercontribution was $570,600. They also negotiated a settlement of the grievance (the "Settlement"), pursuant to which Gould agreed to guarantee full pension rights to the current retirees in exchange for not having to deposit $570,600 with the Plan's trustee, defendant First Trust. The agreement stated that the Settlement was providing "additional retirement benefits" to the current retirees, and accordingly provided a mechanism in the settlement to increase the benefits paid to the current retirees in the event that the value of the pensions paid under the settlement at any time became less than the value of the pensions that would have been paid if the $570,600 had been deposited. The vested employees, however, were not entitled to any benefits under the Settlement.
9
On July 13, 1978, the plaintiffs, a number of the vested employees, brought this suit. The complaint2 alleged that the Plan provided for stated monthly benefits upon retirement, that the employees were induced to accept a lower wage because of these promised benefits, and that the failure of Gould to fund these benefits was a breach of the collective bargaining agreement and amounted to fraudulent inducement. The complaint also charged First Trust with breach of its fiduciary duty to plaintiffs in failing to pay benefits when due. Defendants moved for summary judgment, arguing that Gould had properly terminated the Plan pursuant to its terms. The defendants also argued that plaintiffs' claims had been resolved by the arbitration proceeding, at which the plaintiffs were represented by Local 416, and that the plaintiffs were thus bound by the arbitrator's decision. The district court denied summary judgment, holding that the arbitrator's award could not dispose of the plaintiffs' "vested" rights in the Plan.
10
The district court then certified, pursuant to 28 U.S.C. Sec. 1292(b), the question "whether plaintiffs are bound by the results of the arbitration award between Gould and their collective bargaining representative and thereby barred from this suit." This court allowed the appeal, and in Adams v. Gould, 687 F.2d 27 (3d Cir.1982), concluded that they were. The certified question raised the issues of the power of Local 416 to negotiate for the vested employees concerning their rights after their employment at the Wilkening plant had ended, and the power of Local 416 to negotiate concerning the "vested" pension rights of the vested employees. The court held that arbitration was a form of adjudication, not negotiation, and that therefore the rule against allowing a Union to negotiate away the vested rights of its members did not apply. We also held that the pension rights of the plaintiffs were not "vested" in the legal sense, because they were dependent on the presence of funds in the Plan, that the subsequent settlement only effectuated the arbitration agreement, and thus that the union did not exceed its power in negotiating on behalf of the vested employees in reaching the Settlement.3 We specifically limited our holding to the certified question, and declined to reach the issue now before us, although the plaintiffs tried to raise it at oral argument. Since the certified question was the only legal theory raised in the plaintiffs' complaint, and its resolution was dispositive, we reversed the judgment of the district court and directed that summary judgment be entered for the defendants. On October 6, 1982, the district court entered summary judgment.
11
On October 19, 1982, the plaintiffs moved to alter or amend the judgment and for leave to file a second amended complaint. In the motion, plaintiffs formally advanced the theory now before us. Succinctly stated, the theory is that the settlement agreement between Local 416 and Gould was in conflict with the arbitration award, because Gould did not deposit the amount of the underpayment with First Trust as ordered by the arbitrator, and that the interests of the vested employees were compromised by the Settlement. Plaintiffs assert that, if the $570,600 had been deposited with the trustee, the trust fund would have invested the money, and because of the tremendous rise in interest rates in the late 1970's and early 1980's, would have received a sufficient return to not only pay the full pensions of the current retirees, but also to pay some pension benefits to the vested employees. Under the Settlement, however, the vested employees get nothing. Plaintiffs assert that the failure of Gould to place the $570,600 in trust violated the arbitrator's award, and thus the collective bargaining agreement. Most importantly, they also allege that, in negotiating the Settlement, Local 416 breached its duty of fair representation.
12
The district court denied plaintiffs' motion to reopen the judgment and amend the complaint on April 14, 1983.4 Plaintiffs appeal, arguing that their motion should have been granted because they have asserted a meritorious claim that entitles them to benefit under the Plan, and on which the courts have not had an opportunity to rule.
II.
13
We are confronted with a situation in which the district court denied a motion to alter or amend a judgment pursuant to Fed.R.Civ.P. 59(e), and refused to allow the plaintiffs to file a second amended complaint pursuant to Fed.R.Civ.P. 15(a). Our problem is complicated, however, by the fact that the district court did not state the grounds on which it denied the plaintiffs' motion. We must, therefore, examine the record to determine whether there are any grounds on which we can sustain the district court's decision.
14
In reviewing the district court's decision, the first issue we must confront is our scope of review. Where a district court refuses to allow a plaintiff to amend his complaint pursuant to Fed.R.Civ.P. 15(a), the decision may only be reversed if the district court abused its discretion. Heyl & Patterson International, Inc. v. F.D. Rich Housing, Inc., 663 F.2d 419, 425 (3d Cir.1981). Similarly, when a district court rejects a motion to alter or amend a judgment, the standard of review is whether the district court abused its discretion. The district court's exercise of discretion, however, must be within the limits of the law. The Sixth Circuit has explicitly held that a court of appeals has plenary review on appeal from the denial of a Fed.R.Civ.P. 59(e) motion, where the decision denying the motion is based on a legal error. Huff v. Metropolitan Life Insurance Co., 675 F.2d 119, 122 n. 5 (6th Cir.1982). See also 6A J. Moore, Moore's Federal Practice Sec. 59.15 at 59-336. We agree, and therefore hold that, in reviewing an order denying a motion to alter or amend a judgment filed pursuant to Fed.R.Civ.P. 59(e), the appropriate scope of review over matters committed to the discretion of the district court is abuse of discretion, but over matters of law the court of appeals has plenary review.
15
Fed.R.Civ.P. 15 embodies the liberal pleading philosophy of the federal rules. Under Rule 15(a), a complaint may be amended once as a matter of right and afterward by leave of the court, which is to be freely granted. See Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594, 597-98 (5th Cir.1981). This liberal amendment philosophy limits the district court's discretion to deny leave to amend. The district court may deny leave to amend only if a plaintiff's delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the opposing party. Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230; Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.1984). The court may also refuse to allow an amendment that fails to state a cause of action. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.1983).
16
Our scope of review in this case turns on the interrelationship between the scope of review applicable to Rule 59(e) motions and that applicable to Rule 15(a) motions. The Fifth Circuit was confronted with a similar situation in Dussouy v. Gulf Coast Investment Corp., 660 F.2d 594 (5th Cir.1981). In Dussouy, the district court had dismissed the complaint without leave to amend. The court of appeals reversed, and in doing so held that, where a timely motion was filed under Fed.R.Civ.P. 59(e), the Rule 15 and Rule 59(e) inquiries turned on the same factors. 660 F.2d at 597 n. 1. We agree and adopt the Fifth Circuit's approach. Thus, in examining each possible ground on which the district court could be sustained, we will apply the standard of review which would be applicable had the motion been brought without the complication of a prior grant of summary judgment, although the factors that must guide our review may be affected by the fact that a summary judgment was granted before plaintiffs sought leave to amend their complaint.
17
Therefore, we must first examine the substance of the theory that plaintiffs attempted to assert in their second amended complaint, to determine whether the amended complaint states a cause of action. Next, we must consider the relationship between that claim and what was decided by the previous panel in this case, to see whether claim is barred by that decision. Third, we must determine whether the cause of action is barred by the statute of limitations. Our scope of review over these three questions is plenary. Finally, we will examine the factors which must inform the district court's discretion in denying a motion to reopen a judgment and amend a complaint under Rules 59(e) and 15(a), to determine whether that discretion was abused.
III.
A.
18
Plaintiffs are members of Local 416 and beneficiaries under the Plan. They seek to sue Gould directly for breach of an obligation under an arbitration award entered pursuant to the grievance procedure of a collective bargaining agreement. The obligation allegedly breached affects the pension rights of the plaintiffs. In their second amended complaint, the plaintiffs also allege that Local 416 breached its duty of fair representation by entering into the settlement with Gould. The plaintiffs thus allege a breach of the collective bargaining agreement by their employers5 and a breach of the duty of fair representation by their union. A direct suit by an employee against an employer which alleges both breaches may be brought in federal court. Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976).6
19
Plaintiffs' theory of liability in this case is (1) that the value of the additional pension benefits that Gould provided to the current retirees under the settlement was substantially less than the value of the additional pension benefits that would have been available if Gould had deposited $570,600, the amount determined to have been the underpayment for the period 1969-1974, into the pension trust fund, and (2) that if Gould had deposited the money, part of the difference would have gone to the vested employees. The linchpin of this theory is that the higher interest rates that have prevailed since the late 1970's would have boosted the amount available for pension benefits. Rather than deposit the cash with the fund trustee, Gould agreed to guarantee specific additional pension benefits to the current retirees, with an expected value roughly equal to $570,600. In essence, Gould chose to assume the risk (or benefit) that a change in interest rates would alter the present value of the pension benefits guaranteed.
20
We are doubtful that this theory can be proved as a matter of practical economics. It may also be quite difficult for the plaintiffs to prove that Local 416 breached its duty of fair representation in entering the Settlement.7 Since we are reviewing this case on a Fed.R.Civ.P. 12(b)(6) standard, however, and we cannot say that there is no set of facts which plaintiffs could prove that would entitle them to recover under this theory, we cannot affirm on the basis that the amended complaint failed to set forth a claim on which relief could be granted.
B.
21
Having determined that the plaintiffs state a cause of action in their second amended complaint, we must next determine whether that cause of action is barred by our previous decision in this case. The issue in the earlier appeal was whether Local 416 was empowered to pursue the rights of the plaintiffs, as their collective bargaining representative, under the pension provisions of the collective bargaining agreement. We answered that question in the affirmative, holding that the plaintiffs were "bound" by the settlement negotiated by Gould and Local 416.
22
Vaca v. Sipes is an exception to the general rule of labor law that members of a collective bargaining unit cannot ordinarily sue individually to vindicate their rights under the collective bargaining agreement. Although we held that general rule of labor law applicable to plaintiffs' claims against Gould in the earlier appeal, we did not pass on the Vaca v. Sipes exception. Since the original complaint did not contain an allegation that Local 416 breached its duty of fair representation in settling the grievance, and since the case was before us on an unrelated certified question, that issue was clearly not before us.8
23
We therefore conclude that our prior holding in this case is not dispositive of the cause of action which plaintiffs attempt to assert in their second amended complaint.9
C.
24
Gould and Local 416 entered into the agreement settling the grievance on March 15, 1977. This suit was brought on July 13, 1978. In Del Costello v. International Brotherhood of Teamsters, --- U.S. ----, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), the Supreme Court held that the six-month statute of limitations in section 10(b) of the National Labor Relations Act, 29 U.S.C. Sec. 160(b), which applies to unfair labor practice cases, was also applicable by analogy in Vaca v. Sipes cases.10 If the Del Costello limitations period is applicable in this case, this suit must be dismissed as untimely.
25
The Court in Del Costello stressed the desirability of a uniform national limitations period in Vaca v. Sipes cases, and noted that the reasons justifying a relatively short limitations period for unfair labor practice suits--primarily the need to resolve disputes quickly to preserve labor peace--are also applicable in the Vaca v. Sipes context. Where the Vaca v. Sipes mechanism is being used to assert a claim against an employer for breach of a pension agreement, however, a second federal statutory period, that provided by the Employment Retirement Income Security Act, is arguably more appropriate. 29 U.S.C. Sec. 1113(a)(2) provides for a three-year statute of limitations dating from "the earliest date (A) on which the plaintiff had actual knowledge of the breach ..." In this case, if the ERISA statute is applicable, the plaintiffs would not be barred from bringing suit.11
26
Since no statute is directly applicable, we must examine the relevant policies in deciding which limitations period should be applied. A Vaca v. Sipes suit normally involves an issue that is intertwined with the day-to-day relationship between management and labor. Speed and finality in the resolution of disputes are the most relevant policies in those situations. In pension dispute, however, that policy is less relevant. Even where the litigated dispute involves the funding of a pension plan involving an entity that remains in business, rather than an entity which ceases operation such as the Wilkening plant, the immediate effect of the dispute on the day-to-day labor-management relationship is slight. The funding issue involves the immediate interests only of retirees currently receiving benefits. In many cases, as here, the funding may be adequate to pay the present beneficiaries. The long-term interests of current employees are at stake, but delay in resolving disputes concerning those interests does not disrupt labor-management relations. Nor does the delay itself prejudice the interests of the employees.12 The absence of an effect on their day-to-day working environment also makes it far more likely that employees will not be aware of their grievance immediately. These factors favor the application of a longer period of limitations. Section 1113 recognizes this, and provides for a three-year period in which to challenge breaches of fiduciary duty by the trustees of a pension plan.
27
Our reading of Del Costello is that it does not preclude the use of a different federal statutory period where the policies underlying the adoption of a six-month period in that case are inapplicable.13 We believe that this is such a case. The primary holding of Del Costello is that, in Vaca v. Sipes suits, a uniform federal standard, rather than a "borrowed" state limitations period, is appropriate. The application of the six-month period provided by section 10(b) was based on the assumption that Vaca v. Sipes suits would involve issued relevant to day-to-day labor-management relations. We believe that there is a distinction between the implication of delay in resolving disputes over pension contribution issues and the implications of delay in resolving disputes over terms of a collective bargaining agreement that affect the day-to-day operations of a business. We also believe that this distinction justifies the use of a different limitations period. Accordingly, we hold that the three-year ERISA statute of limitations applies to this suit, in spite of the fact that the vested employees' suit against Gould's is predicated on a breach of the duty of fair representation by the Union rather than on a breach of a fiduciary duty by a pension fund trustee. Thus, the suit is not time-barred.
IV.
28
Having determined that the plaintiffs' second amended complaint states a cause of action and is not foreclosed by our prior decision or the statute of limitations, we now turn to the factors which must inform a district court's discretion in deciding whether to allow a plaintiff to amend a complaint. As noted above, under the liberal pleading philosophy of the federal rules as incorporated in Rule 15(a), an amendment should be allowed whenever there has not been undue delay, bad faith on the part of the plaintiff, or prejudice to the defendant as a result of the delay. Although we recognize the breadth of the trial court's discretion in this area, the liberal pleading philosophy of the rules requires that a decision not to allow an amendment be justified by one of the factors listed above.
29
The passage of time, without more, does not require that a motion to amend a complaint be denied; however, at some point, the delay will become "undue," placing an unwarranted burden on the court, or will become "prejudicial," placing an unfair burden on the opposing party. See Chitimacha Tribe of Louisiana v. Harry L. Laws Co., 690 F.2d 1157, 1163 (5th Cir.1982); Tefft v. Seward, 689 F.2d 637, 639 (6th Cir.1982). The question of undue delay, as well as the question of bad faith, requires that we focus on the plaintiffs' motives for not amending their complaint to assert this claim earlier; the issue of prejudice requires that we focus on the effect on the defendants.
30
Defendants assert that the plaintiffs' delay in moving to amend the complaint was in "bad faith," but they offer no facts other than the delay in support of the contention. Although, under a theory analogous to laches, delay can itself be evidence of bad faith justifying denial of leave to amend, see 6 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1488 at 443-44 (1971), there is nothing in the facts before us which indicates that this is such a case. Defendants point to no extrinsic evidence of bad faith, and, as noted below, plaintiffs had a colorable excuse for not amending earlier since the district court accepted the facial validity of their original legal theory. The district court made no finding that the plaintiffs were acting in bad faith in seeking leave to amend. Accordingly, we do not find that there was any bad faith justifying the denial of leave to amend.
31
Nor does it appear that the plaintiffs' failure to amend the complaint earlier in the litigation constitutes "undue delay." Plaintiffs originally asserted that they were entitled to litigate their claim for "full funding" of the Plan by Gould in federal court. This claim would have entitled plaintiffs to the entire amount of their pensions as specified by the Plan. The defendants moved for summary judgment, arguing that the plaintiffs were bound by the arbitration proceeding between Local 416 and Gould, which rejected the claim for full funding. The district court denied the motion for summary judgment but certified the question, and we reversed the holding that plaintiffs were bound by the arbitration. Plaintiffs had asserted their alternative theory, that the settlement agreement between Local 416 and Gould did not satisfy the arbitrator's award, in their briefs in the district court, and attempted to raise it on appeal, although this court declined to address it since it was not certified by the district court. Plaintiffs then tried to formalize their alternative contention by amending the complaint.
32
The facts of this case present an unusual situation. Where the legal theory of a complaint is rejected by the district court on a motion for summary judgment, but where an alternative theory has been raised which, on the same facts, is legally sufficient, it would be unusual for a district court not to allow the plaintiff leave to amend because of "undue delay." This case differs from the norm because the legal issue was decided by the court of appeals on a section 1292(b) interlocutory appeal rather than by the district court, but that difference should not affect the plaintiffs' ability to amend upon rejection of their original legal theory. The rationale of most cases rejecting "post-judgment" amendments--that the plaintiff should have raised the new theory before trial--is inapplicable. On the other hand, the rationale of the Supreme Court in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), which held that the district court erred in not allowing plaintiffs an opportunity to allege a new legal theory after the original theory was dismissed on a Fed.R.Civ.P. 12(b)(6) motion, is more closely analogous. See also Wilburn v. Pepsi Cola Bottling Co., 492 F.2d 1288 (8th Cir.1974). Since amendment of a complaint is not unusual at the summary judgment stage of the case, see 6 C. Wright & A. Miller, Federal Practice and Procedure Sec. 1488 at 436 (1971), we would not characterize plaintiffs' failure to amend their complaint earlier as "undue delay."
33
Defendants also assert that they would be "prejudiced" if the plaintiffs are allowed to amend their complaint at this point in the litigation. They assert no particular prejudice except for additional counsel fees, but argue that there must be "finality" in the litigation process, and that allowing this amendment will delay the end of the case. Our disposition of this argument is governed by considerations similar to those discussed above. It is true that a plaintiff may not ordinarily amend his complaint after going to trial on one legal theory and losing. In this case, although the theory of the second amended complaint is based on the same facts as the original theory and could have been raised in the original complaint, the defendants have not had to litigate the facts of this case once, but rather have avoided litigating the facts by having the plaintiffs' legal theory rejected by this court in an interlocutory appeal. The defendants did not go to trial with the plaintiffs relying on one legal theory, only to have the plaintiffs try to change that theory in order to retry the same facts. They also have not obtained judgment on the merits of plaintiffs' new theory; the district court did not rule on that theory, and we specifically declined to address any other issues other than the one certified by the district court.
34
Neither is there anything on the facts of this case which demonstrates any particular prejudice as a result of allowing the plaintiffs to amend their complaint at this point in the proceedings. See, e.g., Serrano Medina v. United States, 709 F.2d 104 (1st Cir.1983) (eleventh-hour amendment adding new parties under conspiracy theory which would require extensive additional discovery would be prejudicial to defendants); DeBry v. Transamerica Corp., 601 F.2d 480 (10th Cir.1979) (where plaintiff seeks to amend complaint to assert "new concepts and theories" that would require extensive additional discovery and create risk that trial scheduled for three months hence will have to be delayed, allowing amendment would be prejudicial to defendant). In light of the procedural posture of this case at the time of judgment and the failure of defendants to specify any particular prejudice, we hold that the defendants are not prejudiced by the plaintiffs' attempt to amend their complaint in order to assert a new legal theory at this point in the litigation.
35
Since we have concluded that the district court was not justified in rejecting the plaintiffs' motion for leave to amend their complaint by undue delay, bad faith on the part of the plaintiffs, or prejudice to the defendants, we cannot hold that the decision to deny leave to amend was within the discretion of the district court. Accordingly, the district court erred in not allowing the plaintiffs to reopen the judgment and in not granting them leave to amend their complaint.
V.
36
In sum, we hold that: (1) the plaintiffs' complaint states a Vaca v. Sipes cause of action against Gould for failure to comply with an arbitrator's award to make additional contributions to a pension plan; (2) the plaintiffs' claim is not barred by the statute of limitations, since the three-year period of 29 U.S.C. Sec. 1113(a)(1), rather than the six-month period of 29 U.S.C. Sec. 160(b), is applicable to a Vaca v. Sipes claim against an employer for failure to make required contributions to a pension plan; (3) the plaintiffs' claim is not precluded by our resolution of the previous appeal in this case; (4) our scope of review over the district court's decision to deny plaintiffs' motion to reopen the judgment and amend their complaint is plenary if the denial is based on a legal error, and otherwise is for abuse of discretion; and (5) under the circumstances of this case, where the defendants have failed to show bad faith, undue delay, or prejudice, and where the plaintiffs' proposed amended complaint states a legal theory that is both sufficient to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6),14 and has not been decided on the merits by the judgment plaintiffs are seeking to reopen, it was an abuse of discretion for the district court to deny plaintiffs' motion to reopen the judgment and amend the complaint.
37
Accordingly, the judgment of the district court will be vacated, and the case remanded for proceedings consistent with this opinion.
1
If the vested employees had been paid in full, the remaining assets in the Plan would then have been used to fund pensions for employees with less than ten years at the plant upon their retirement. These "non-vested" employees are not parties to this case
2
The allegations listed here are those of the amended complaint, filed on January 31, 1979. Summary judgment was entered on the basis of plaintiffs' contentions in that complaint
3
In disposing of the argument that, notwithstanding the fact that arbitration is not a forum of negotiation, the post-arbitration settlement resulted from impermissible bargaining over vested rights, we said:
Although [Local 416] and Gould held further discussions following the arbitration, as their written agreement demonstrates, they merely implemented the arbitrator's award in all its sophisticated ramifications, performing the calculations he had ordered.
687 F.2d at 30.
4
This district court did not assign reasons for its actions. The court may well have felt obliged to deny the motion by reason of our previous opinion. In fairness to the learned district court, we also note that it did not have the benefit of certain intervening decisions of this court and the Supreme Court that bear on the resolution of the issues in this case
5
If the failure of Gould to pay the amount of the underpayment for the 1969-74 period into the pension fund violates the arbitration award, it amounts to a breach of the collective bargaining agreement, which obligates Gould to comply with arbitration awards
6
Plaintiffs have also alleged a breach of fiduciary duty against the trustees of the pension fund, but not of the type that would allow them to sue their employer directly under our recent decision in Struble v. New Jersey Brewery Employees Welfare Fund, 732 F.2d 325 (3d Cir.1984). Although they allege a breach of fiduciary duty by First Trust, the breach is not for failure to pursue remedies against Gould, and thus is not the type of breach necessary to allege a Struble cause of action. Struble allegations may not have been possible on the facts of this case, since it is unclear that either First Trust or the three-person board established by the collective bargaining agreement to decide disputes under the Plan had the power to sue Gould, which is a prerequisite to a Struble cause of action. For whatever reason, plaintiffs in this case sought to pursue Gould based on its violation of the collective bargaining agreement rather than a separate trust agreement, and thus must bring their suit under Vaca v. Sipes rather than Struble
7
It is true, of course, that $570,600 deposited at an interest rate of 12% will yield greater returns than the same amount deposited at a 6% rate. It is simplistic, however, to think that this necessarily means the trust fund would have earned more over the period of high interest rates which began in the late 1970's. For instance, if the money had been deposited in long-term government obligations bearing a 6% rate in 1978, the fact that the same obligations issued today pay over 10% would not mean that the bonds purchased six years ago would now bear the higher rate. Although those obligations have an "effective" rate of return of 10% if purchased today, they cannot be sold for their face value, but only for a discounted price reflecting the low interest rate they bear. The income stream which would be produced by a 1978 investment in such bonds would be unaffected. In order to prove their theory, plaintiffs must prove one of two sets of facts: (1) given the actual investment practices of the fund, the higher returns would have been earned; or (2) that the actual investment practices of the trust fund were not reasonable on the facts as they appeared when the practices were adopted, and that had "reasonable" practices been adopted, the higher returns would have been earned. Neither Gould nor First Trust, however, can be held responsible for failing to anticipate the consequences of the economic policies of the last two administrations, or general economic trends
8
At oral argument on the prior appeal, when plaintiffs' attorney attempted to assert the theory now before the court, Judge Aldisert refused to hear arguments directed at any issue not raised by the certified question, saying:
You can address that to Judge Weis, you are not going to get anywhere with my [sic]. Okay. I'm going to consider precisely the question certified and only the question certified.
9
In our prior decision, we stated that the Settlement "merely implemented the arbitrator's award." 687 F.2d at 30. This statement was addressed to plaintiffs' argument that the Settlement amounted to independent negotiation, which Local 416 was arguably not empowered to engage in because it touched on plaintiffs' "vested rights." We rejected that argument, because the arbitrator's decision had already limited those "vested rights" to the amount available in the pension fund when it rejected plaintiffs' claim for full funding. In this case, however, the plaintiffs raise a completely new and different challenge to the Settlement. They charge that the Settlement agreement substantively failed to effectuate the arbitrator's award, and that Gould therefore must pay additional amounts in order to comply with the award. This issue was not before us in the prior appeal
10
Del Costello applies retroactively. See Perez v. Dana Corp., 718 F.2d 581 (3d Cir.1983); Scott v. Local 863, International Brotherhood of Teamsters, 725 F.2d 226 (3d Cir.1984)
11
It is clear under the facts that the theory asserted in the amended complaint relates back to the date the original complaint was filed under Fed.R.Civ.P. 15(c), since it arises out of "the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading...."
12
Where a funding issue is disputed, as here, an appropriate use of prejudgment interest can eliminate any harm to the employees arising from the delay
13
The Supreme Court has recently held that different policies are applicable in the resolution of pension disputes than are applicable in ordinary labor disputes. Schneider Moving and Storage Co. v. Robbins, --- U.S. ----, ----, 104 S.Ct. 1844, 1849, 80 L.Ed.2d 366 (1984) (presumption of arbitrability applicable in ordinary labor disputes is not applicable in pension fund disputes, since concern with labor peace that underlies presumption is not relevant where dispute arises between employee pension fund and employer)
14
The rule in this circuit is that affirmative defenses, such as the statute of limitations and res judicata, can be asserted on a motion to dismiss. Williams v. Murdoch, 330 F.2d 745, 749 (3d Cir.1964). Even if the defenses had to be raised in an answer, rather than on a motion to dismiss, the test of "legal sufficiency" would not be affected
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439 F.2d 965
76 L.R.R.M. (BNA) 2844, 65 Lab.Cas. P 11,609
NATIONAL LABOR RELATIONS BOARD, Petitioner,v.COMMUNITY MOTOR BUS COMPANY, Inc., Respondent.
No. 15049.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 1, 1971.Decided March 22, 1971.
Joseph E. Mayer, Asst. General Counsel (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Warren M. Davison, Deputy Asst. Gen. Counsel, and Baruch A. Fellner, Washington, D.C., Attorney, on the brief), for petitioner.
M. R. Broudy, Norfolk, Va. (Broudy & Broudy, Norfolk, Va., on the brief), for respondent.
Before BRYAN, CRAVEN, and BUTZNER, Circuit Judges.
BUTZNER, Circuit Judge:
1
On the first day of an economic strike against Community Motor Bus Company, some members of the union (Division 1177, Amalgamated Transit Union, AFL-CIO), engaged in mass picketing at the company's terminal. After the strike was settled and a new collective bargaining agreement signed, the company refused to reinstate 12 of the pickets. Six were belatedly reinstated with loss of seniority. All 18 presented grievances and called for arbitration under the new agreement, but the company refused, claiming it had reserved the right to screen the pickets to determine which had forfeited their right to reinstatement on account of picket line misconduct. The National Labor Relations Board held that the company committed unfair labor practices by denying full reinstatement to the strikers and by refusing to process their grievances.1 We hold that the 18 employees forfeited their rights to reinstatement and that the dispute was not subject to arbitration. Consequently, we deny enforcement.
I.
2
Upon the expiration of their collective bargaining agreement on September 30, 1968, the union and the company entered into negotiations. When talks broke down, some of the unit employees struck and began picketing the employer's premises on October 28. About 24 pickets, including the 18 whose discharge or loss of seniority is the subject of this action, blocked the gates of the terminal, preventing buses from leaving on their scheduled runs and shutting off access by non-striking employees. Following instructions, 20 pickets marched in an elliptical pattern three or four feet apart in front of the main gate.
3
When the first bus tried to leave, the picket line did not break and, after some jockeying back and forth, the bus backed off. After several more unsuccessful attempts by non-striking drivers to leave on their scheduled runs, the company called the police. Under police escort, nine or ten buses left the terminal. By admission of Walter J. Bierwagen, a member of the executive board of the international, after the first police escort left, the strikers reverted to the same style of picketing. 'We continued to picket until the part-time school bus drivers attempted to leave the property. They could not break our picket line. Subsequently they were again escorted our by police.'
4
Later that afternoon the pickets were instructed by union leaders to reduce their number and not to block access to the terminal. The same afternoon, the company obtained an order against the union restraining them from interfering with ingress to and egress from the bus terminal. There was no other mass picketing or picket line misconduct for the duration of the strike.2
5
The Board ruled that the company's refusal to reemploy 12 of the strikers, its delay in rehiring the other six, and denial of seniority rights to them violated 8(a)(3) and (1) of the Act (29 U.S.C. 158(a)(3) and (1)). It ordered the company to reinstate all 18 employees with full seniority rights and back pay. We decline to enforce these provisions of the Board's order because the mass picketing that blocked access to the work site exceeded the permissible scope of economic strike activity and relieved thecompany of the obligation to rehire the strikers.
6
The pickets were not engaged in the company of the obligation to with a basic right guaranteed by statute-- the right of non-striking employees to continue working. The right to strike, guaranteed by 7 of the Act, is the most powerful weapon of organized labor, but 7 also imposes a duty on strikers not to interfere with the right of other employees to refrain from concerted activities. Oneita Knitting Mills v. NLRB, 375 F.2d 385 (4th Cir. 1967), holds that blocking free access to the plant violates this right and is grounds for denying reinstatement. The facts of this case present a stronger argument for denial of reinstatement than in Oneita. There the strike had been precipitated by the unfair labor practices of the employer. The court held the strikers to a less stringent standard of conduct than that of economic strikers, applying the balancing test of NLRB v. Thayer Co., 213 F.2d 748, (1st Cir.), cert. denied, 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694 (1954). The distinction between economic strikers and unfair labor practice strikers disposes of most of the cases cited by the Board where picket line misconduct was held not to forfeit reinstatement rights.3 Since the picket line misconduct in Oneita forfeited the reinstatement rights of unfair labor practice strikers, similar conduct by economic strikers in this case is to be at least as strongly condemned.
7
The Board also relies on Terry Coach Industries, Inc., 166 NLRB 560 (1967), enf'd, 411 F.2d 612 (9th Cir. 1969), which ordered reinstatement of an economic striker. There the employee blocked a truck for a short time, stopped a lunch truck for a few minutes, told the driver not to come back, and used profane language. The trial examiner, ruling that this conduct did not forfeit the protection of the Act, described it as a rough trivial incident.
8
Here, in contrast, the mass picketing that blocked the company's gate was organized and persistent. It does not significantly differ from the conduct that Oneita condemned. Accordingly, we conclude the company was not obligated to reinstate the participants.
II.
9
The Board also ruled that even if the strikers engaged in illegal picketing, the company on two occasions nevertheless condoned their activity, and therefore, it could not refuse reinstatement. On November 1, the first payday after the strike began, the company issued paychecks reflecting deductions for the full amount each striking employee owned the company for his uniform. This was contrary to the regular practice of deducting $3.00 a week for uniforms, prompting union officials to inquire whether the men were being fired. The company's superintendent said they were not fired, that the company wanted all the strikers back, but that he was afraid some of the employees might leave without having reimbursed the company for their uniforms. The union refused to accept this explanation. Fearing that an already tense confrontation might deteriorate into violence, the union and the company agreed to call in a representative from the State Labor Commission. After discussing the situation with him, the company agreed to deduct only the usual $3.00.
10
Since the superintendent, knowing about the illegal picketing, expressed his hope that all the strikers would return, the Board infers that the company intended to condone the picketing. We find the inference unwarranted. The paycheck incident took place only a few days after the strike began and emotions were dangerously high. It was only after long discussion with a neutral party that the company decided not to deduct the full amount owed for uniforms, and, even then, the dicision was made primarily to keep the peace. The superintendent's reassurances that the men were needed and wanted back on the job falls short of condonation. The evidence does not establish a clear showing of an attitude of forgiveness and a willingness to 'wipe the slateclean.' See Kohler Co., 128 NLRB 1062, 1105 (1960), enf'd in part and remanded sub nom. Local 833, UAW-AFL-CIO, International Union United Automobile, Aircraft, and Agricultural Implement Workers of America v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, cert. denied, 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962); Plasti-Line, Inc. v. NLRB, 278 F.2d 482, 486 (6th Cir. 1960); NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 409, 414 (5th Cir. 1955). Even assuming that the superintendent's statements could be construed as an unequivocal invitation to the strikers to return to work regardless of their picket line misconduct, the invitation was rejected. The men continued to strike for another week. In such a case, a spurned offer, which is never renewed, does not forever waive the employer's right to refuse reinstatement for cause. Packers Hide Ass'n v. NLRB, 360 F.2d 59 (8th Cir. 1966).
11
The Board's second reason for holding that the company condoned the mass picketing was the company's reinstatement of six of the drivers. Edgar A. Tugman, the company's labor consultant, drew a distinction between those he believed to have engaged in deliberate illegal picket line activity and those who had been innocently involved. He, therefore, recommended that the company should reemploy six of the pickets and that it should deny reinstatement to 12. The company reemployed the six men early in December. It did not accord them seniority, though it did not rule out reconsidering this at a later date when it believed the impact on non-striking employees might be less.
12
The Board determine on the basis of credibility that the company had not proved misconduct attributed to 12 of the strikers along the bus routes. It also found that all 18 employees participated in the mass picketing that blocked the gates of the terminal. It concluded that the company by reinstating six of the employees had condoned the illegal picket line activity, and, therefore, it ordered reinstatement of all 18 employees with full seniority and back pay.
13
Although we accept as supported by substantial evidence the Board's findings concerning the conduct of the 18 employees, we believe its conclusion overlooks the distinction drawn by NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 259, 59 S.Ct. 490, 83 L.Ed. 627 (1939), between what an employer may do and what it must do. In Fansteel, the Court held illegal strike activity absolved the employer of any duty to reemploy, but the company 'was nevertheless free to consider the exigencies of its business and to offer reemployment if it chose. In so doing it was simply exercising its normal right to select its employees.' 306 U.S. at 259, 59 S.Ct. at 498.
14
The same is true here. The company was free to discharge or rehire any or all of the strikers whose misconduct forfeited reinstatement rights. Any other rule, especially in the absence of anti-union animus, would confront the employer with an all-or-none rehiring choice, which is not required by the Act or by the doctrine of condonation. Kohler Co., 128 NLRB 1062, 1105 (1960), enf'd in part and remanded sub nom. Local 833, UAW-AFL-CIO, International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, cert. denied, 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed.2d 405 (1962).
15
The Board's reliance on NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 85 S.Ct. 171, 13 L.Ed.2d 1 (1964), is misplaced. There the employer was required to reinstate employees who it mistakenly believed had engaged in unprotected activities. Here, in contrast, it is undisputed that all 18 employees repeatedly engaged in illegal picketing that was planned and organized by union leaders.
16
Because the hearing established that the six reemployed strikers had engaged in illegal picket line activities, the company was justified in treating them as new employees. Cf. NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 259, 59 S.Ct. 490, 83 L.Ed. 627 (1939). Cases on which the Board relies for authority that returning strikers may not be denied seniority dealt with strikers who had not engaged in illegal activity.4 Because of this factual difference they are not applicable.
III.
17
At a bargaining session on November 8, the union asked the company if its last contract proposal made nearly a month earlier stood firm. The company replied that the offer remained open, but that the company reserved the right to refuse to hire employees who were guilty of illegal picket line activity. The company declined to state at the meeting which employees it would bar. Instead, Tugman, the company's labor consultant, said that he would screen the employees to determine whether they were entitled to come back.
18
The union called a membership meeting to vote on the company's last offer. Bierwagen, a union official, testified at the NLRB hearing: 'I informed the members as to the nature of the offer, that it was firm, that the company, that Mr. Tugman stated that he was going to reserve the right to screen the people and that we had no idea whether he meant one or two or all. Also that when they vote, they should keep this in consideration.' At this point, the membership could have voted down the company's proposal because of the objectionable reservation attached to it. Instead they accepted it.
19
Bierwagen then informed the company 'that the men had voted to return to work on the basis of the company's last offer and without any other stipulations or conditions.' Whatever conditions Bierwagen may have had in mind, his statement cannot be considered a rejection of Tugman's right to screen, in light of the employees' vote with that very issue impressed upon them.
20
Finally, at a meeting two days later when the contract was signed, the company again reiterated its refusal to reemploy the strikers until they had been screened for illegal activity. The president of the local union, recounting Tugman's statement at the meeting, testified:
21
'That he (Tugman) would take it as his right to do some screening on who would return due to the illegal strike activity at the time. There was nothing in the contract in regard to it. I asked him for a memorandum or names that were involved. He said: 'I will do the screening or some individual will get hurt that is not supposed to get hurt.'
22
'I made it known that if he was going to do the screening it would be done by seniority as the men returned to work on the job.'
23
It is clear, then, that the company's reservation of a right to screen the strikers for illegal conduct was fully understood by the union members when they voted on the contract and by the union officials when they signed the contract. The record is devoid of evidence that the company ever relinquished that right or that any term of the collective bargaining agreement was intended to apply to the reinstatement issue.
24
Several days after the collective bargaining agreement was signed, the superintendent perintendent told 18 of the drivers they could not come back until they were recalled. All 18 filed grievances under provisions of the new collective bargaining agreement that included a clause for binding arbitration 'in the settlement of any disagreement or dispute concerning any matter arising under this Agreement.' In a letter to the union, Tugman replied that the grievances could not be processed under the new contract because the employees participated in allegedly improper picket line activity during a period when there was no contract between the union and the company. The union then proposed to arbitrate the question of the arbitrability of the grievances. Tugman did not reply, but later the company recalled six of the men.
25
The trial examiner found that the company's refusal to process the grievances violated 8(a)(5) and (1) of the Act.5 His conclusion, adopted by the Board, is premised on a finding that the grievance was a dispute arising under the new collective bargaining agreement. We agree that the dispute over reinstatement arose at a time when the new collective bargaining agreement was in force, even though the challenged conduct took place when the parties had no agreement. Boeing v. International Ass'n of Machinists, 381 F.2d 119 (5th Cir. 1967). However, because of the company's express reservation of the right to screen returning employees, we find that the company had no duty to process grievances on that matter.
26
The obligation to arbitrate is founded on contract, and in the absence of agreement neither party can be compelled to submit a dispute to arbitration. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962). In construing the agreement, doubts must be resolved in favor of arbitration. Unied Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). Thus, the parties must arbitrate 'all matters, not explicitly excluded, that reasonably fit within the language used.' United Textile Workers of America, AFL-CIO, Local Union No. 120 v. Newberry Mills, Inc., 315 F.2d 217, 219 (4th Cir.), cert. denied, 378 U.S. 818, 84 S.Ct. 54, 11 L.Ed.2d 53 (1963).
27
Here the contract is completely silent on reinstatement, while the company's position was known and considered by the union membership. It is clear that the terms on which the parties settled the strike did not include arbitration of disputes over the reinstatement of pickets. Consequently, the company did not breach an agreement to arbitrate and its refusal was not an unfair labor practice. Cf. Atkinson v. Sinclair Refining Co., 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962).
28
Enforcement denied.
1
Community Motor Bus Co., 180 NLRB No. 105, 73 LRRM 1223 (1970)
2
The company charged that 12 of the employees engaged in misconduct along bus routes, but the trial examiner rejected the company's proof, and we accept his resolution of credibility. In addition to the mass picketing, the strikers engaged in other activity, such as name-calling and fist-shaking, which the trial examiner properly considered not serious
3
E.g., NLRB v. Buitoni Foods Corp., 298 F.2d 169 (3d Cir. 1962); NLRB v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941 (1st Cir. 1961); Stewart Hog Ring Co., 131 NLRB 310 (1961)
4
NLRB v. Erie Resistor Corp., 373 U.S. 221, 83 S.Ct. 1139, 10 L.Ed.2d 308 (1963); NLRB v. Hilton Mobile Homes, 387 F.2d 7, 11 (8th Cir. 1967); NLRB v. California Date Growers Ass'n, 259 F.2d 587, 589 (9th Cir. 1958)
5
Ordinarily, the scope of grievance and arbitration clauses in collective bargaining agreements is litigated in actions brought under 301 of the Labor Management Relations Act (29 U.S.C. 185). However, the Board, the union, and the company proceeded on the assumption that refusal to process grievances pursuant to a collective bargaining agreement can also be a violation of 8(a) (5) and (1) of the Act (29 U.S.C. 158(a)(5) and (1)). We, in turn, without deciding the issue will adopt the position of all the parties for the purposes of this case. Compare NLRB v. Orkin Exterminating Co., 379 F.2d 972 (5th Cir. 1967), and NLRB v. Ogle Protection Services, Inc., 375 F.2d 497, 500-501 (6th Cir.), cert. denied, 389 U.S. 843, 88 S.Ct. 84, 19 L.Ed.2d 108 (1967), with Amalgamated Clothing Workers v. NLRB, 120 U.S.App.D.C. 47, 343 F.2d 329 (1965)
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615 S.W.2d 225 (1981)
Hector F. MERCADO, Appellant,
v.
The STATE of Texas, Appellee.
No. 60368.
Court of Criminal Appeals of Texas, Panel No. 2.
May 6, 1981.
*226 Alan Brown, San Antonio, for appellant.
Bill M. White, Dist. Atty., C. Michael Schill, Susan D. Reed and Anton Paul Hajek, III, Asst. Dist. Attys., San Antonio, Robert Huttash, State's Atty., Austin, for State.
Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for delivery of heroin for which the jury affixed a punishment of seventeen (17) years' imprisonment.
On appeal appellant raises the sole ground of error that the trial court erred in overruling his first amended motion for new trial because the appellant did not have the effective assistance of counsel, although retained, at the trial of his case on the merits. This contention is based on the fact that counsel did not file a motion for probation or inform the appellant that such a motion could be filed. The trial on a plea of not guilty was before a jury.
Represented by different counsel at the hearing on the amended motion for new trial, appellant testified that his retained attorney on the charge of sale of heroin to an undercover officer had never told him he was qualified for probation and did not file a motion for probation. Appellant also called two experienced criminal defense attorneys. One, who had practiced law for 38 years, testified that in all cases where applicable he would always file a motion for probation as it would be in the best interest of his client. The other attorney testified that whether he filed a motion for probation *227 or not he always informed his client of his right to file such motion; that he would always file such motion unless the client, against his (attorney's) advice, insisted that it not be filed. He admitted he had heard lawyers argue that the filing of a motion for probation would indicate to a jury some acknowledgement of guilt on the part of a defendant and the lawyers had expressed their concern about the matter.
Appellant's trial counsel testified he had been licensed to practice law in Texas since 1973 and was also licensed to practice in the United States Supreme Court. He admitted he did not discuss probation with his client and did not file a probation motion. He explained this as a matter of his trial strategy. He expected the appellant to testify that he was in the military service and became addicted to heroin in Vietnam but that he was not guilty of the offense charged. It is noted the court charged on the defense of alibi. The attorney explained that in view of the not guilty plea the filing of the motion for probation would be like telling the jury "you can be just a little bit pregnant."
In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court wrote:
"A proper respect for the Sixth Amendment disarms petitioner's contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel ... Since the State's conduct of a criminal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers."
The Sixth Amendment of the United States Constitution is applicable to the statutes by virtue of the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), this court, relying on Cuyler v. Sullivan, supra, held that the effectiveness of both appointed and retained counsel are now to be judged by a single standard under the Sixth Amendment which is that of the "reasonably effective assistance of counsel," formerly applied only to appointed counsel cases. The "breach of a legal duty standard," formerly applied in retained counsel cases,[1] is gone with the wind.[2]
The "reasonably effective assistance" standard came from MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. den., 368 U.S. 887, 82 S.Ct. 121, 7 L.Ed.2d 78. In MacKenna, the court said:
"We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance." See also Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974).
This court has previously applied this standard in appointed counsel cases. See Ex parte Gallegos, 511 S.W.2d 510 (Tex.Cr. App.1974), and cases there cited. See also Harrison v. State, 552 S.W.2d 151, 152 (Tex. Cr.App.1977).
In determining whether an accused has been denied the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution, the particular circumstances of each individual case must be considered. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1939); Ex parte Gallegos, *228 supra; Ex parte Prior, 540 S.W.2d 723, 726 (Tex.Cr.App.1976).
The adequacy of an attorney's services must be gauged by the totality of the representation. Ex parte Prior, supra; Williams v. State, 513 S.W.2d 54 (Tex.Cr. App.1974); Satillan v. State, 470 S.W.2d 677 (Tex.Cr.App.1971). The allegations of ineffective representation will be sustained only if they are firmly founded. Faz v. State, 510 S.W.2d 922 (Tex.Cr.App.1974); Long v. State, 502 S.W.2d 139 (Tex.Cr.App.1973).
The constitutional right to counsel, whether counsel is appointed or retained, does not mean errorless counsel or whose competency or adequacy of his representation is to be judged by hindsight. Ex parte Prior, supra; Byrd v. State, 421 S.W.2d 915 (Tex.Cr.App.1967); Duran v. State, 505 S.W.2d 863 (Tex.Cr.App.1974); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973).
In Witt v. State, 475 S.W.2d 259 (Tex.Cr. App.1971), this court quoted from Williams v. Beto, 354 F.2d 698 (5th Cir. 1965): "As no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight."
In Prior v. State, supra, at p. 727, this court wrote:
"An attorney must appraise a case and do the best he can with the facts and the fact that other counsel might have tried the case differently does not show inadequate representation. See Rockwood v. State, 524 S.W.2d 292 (Tex.Cr.App.1975); Witt v. State, 475 S.W.2d 259 (Tex.Cr. App.1971); Carter v. State, 449 S.W.2d 70 (Tex.Cr.App.1969). See also United States v. Rodriquez, 498 F.2d 302 (5th Cir. 1974)."
In the instant case appellant's only complaint as to his counsel's representation is that counsel had never told him he was qualified for probation and did not file a motion for probation. Counsel explained his trial strategy in the matter based upon the circumstances of the case. Since the case was tried before a jury, the appellant would not be eligible for probation unless he had never been convicted of a felony in this or any other state. Article 42.12, § 3a, V.A.C.C.P. We have not had our attention directed to any sworn evidence establishing that appellant was eligible for probation nor have we been able to find any such evidence in the record. Further, under the penalty assessed by the jury under the facts of the case, the jury would not have reached the consideration of any motion for probation, even if one had been filed.
Under the particular facts of the instant case, we reject appellant's claim of ineffective assistance of counsel. The court did not err in overruling the amended motion for new trial.
The judgment is affirmed.
NOTES
[1] Steel v. State, 453 S.W.2d 486, 488 (Tex.Cr. App.1970); Ex parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975); Ex parte Hill, 528 S.W.2d 259 (Tex.Cr.App.1975); Hunnicutt v. State, 531 S.W.2d 618 (Tex.Cr.App.1976); Pete v. State, 533 S.W.2d 808 (Tex.Cr.App.1976); Ewing v. State, 549 S.W.2d 392 (Tex.Cr.App.1977); Earvin v. State, 582 S.W.2d 794, 799 (Tex.Cr.App. 1979).
[2] Hurley v. State, 606 S.W.2d 887 (Tex.Cr.App. 1980).
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785 F.Supp.2d 1253 (2011)
UNITED STATES of America
v.
Milton E. McGREGOR, Thomas E. Coker, Robert B. Geddie, Jr., Larry P. Means, James E. Preuitt, Quinton T. Ross, Jr., Harri Anne H. Smith, Jarrell W. Walker, Jr., and Joseph R. Crosby.
Criminal Action No. No. 2:10cr186-MHT.
United States District Court, M.D. Alabama, Northern Division.
May 18, 2011.
*1254 Justin V. Shur, Peter J. Ainsworth, Barak Cohen, Brenda K. Morris, Edward T. Kang, Emily Rae Woods, Eric Olshan, John Luman Smith, U.S. Department of Justice, Washington, DC, Louis V. Franklin, Sr., Stephen P. Feaga, U.S. Attorney's Office, Montgomery, AL, for Plaintiff.
Joseph Cleodus Espy, III, Benjamin Joseph Espy, Melton Espy & Williams, PC, Ashley Nicole Penhale, Clayton Rushing Tartt, James David Martin, Robert David Segall, Shannon Lynn Holliday, William Martin Espy, Copeland Franco Screws & Gill PA, Montgomery, AL, Fred Sr. D. Gray, Walter Edgar McGowan, Gray Langford Sapp McGowan Gray Gray & Nathanson PC, Tuskegee, AL, Samuel H. Heldman, The Gardner Firm, Washington, DC, for Defendants.
OPINION AND ORDER
MYRON H. THOMPSON, District Judge.
In this litigation involving, among other things, charges of bribery of state legislative officials, defendants Milton E. McGregor, Thomas E. Coker, Robert B. Geddie, Jr., Larry P. Means, James E. Preuitt, Quinton T. Ross, Jr., Jarrell W. Walker, Jr., and Joseph R. Crosby object[1] to an order by the magistrate judge refusing to strike the testimony of government agents at suppression hearings.[2]
For the reasons set forth below, the court will overrule the defendants' objections and affirm the magistrate judge's order.
I. BACKGROUND
A brief partial chronology of the case is warranted.
February 28 March 2, 2011: The magistrate judge held a suppression hearing, in which three government agents testified.
March 10: The government produced to the defendants an additional statement by government agent Douglas Carr. This statement related to testimony that Carr had provided at the suppression hearing.
March 14 and 18: On March 14, McGregor filed a motion urging the court to strike Carr's testimony because the government had produced Carr's additional statement late. McGregor argued that, by failing to disclose this statement at or before the suppression hearing, the government had failed to comply with Federal Rule of Criminal Procedure 26.2. On March 18, Preuitt filed a similar motion.
March 17 23: The government produced additional statements to the defendants relating to agents' testimony at the suppression hearings. Some of these documents were produced to the defendants following an in camera review by the magistrate judge.
March 24: Because the government had produced relevant statements after the *1255 suppression hearing, the magistrate judge held an additional hearing and allowed the defendants to re-question Carr in order to cure any possible harm due to the late production.
March 24 April 1: On March 24, McGregor filed another motion challenging the government's late production of additional statements between March 17 and 23; he again asked the magistrate judge to strike Carr's testimony as well as that of another agent. Between March 24 and April 1, Crosby, Preuitt, Ross, Means, Walker, Coker, and Geddie filed motions incorporating the arguments that McGregor presented in his motion.
March 31: Following the government's production of additional statements to the defendants on March 30, McGregor filed a third motion concerning the late production. He requested that the court strike the testimony of the agents who testified at the suppression hearing; require the government to conduct a new search for discoverable materials and certify the results with the court; and consider other punitive sanctions. Also, Crosby filed a motion incorporating McGregor's arguments.
April 1: The magistrate judge held another hearing and heard arguments from the defendants regarding any prejudice that they suffered as a result of the continued late production. At the hearing, the magistrate judge informed the parties that he would consider imposing additional sanctions upon opposing counsel. The magistrate judge then granted the defendants' motions to the extent that he ordered the government to undertake a search and certify the results.
April 4: The magistrate judge denied the defendants' motions in all other respects concerning the late production of the agents' statement. The magistrate judge gave two reasons for his decision. First, he found that the defendants did not suffer prejudice from the late production of documents. He explained that "the court re-opened the hearing as to the agent in question on March 24, 2011, and the court does not find that Defendants have suffered any new prejudice based on the additional statements that were turned over on March 30, 2011." Magistrate judge order (doc. no. 859) at 2. Second, he found that the government did not willfully disobey his orders with respect to producing documents, explaining that, in fact, "counsel suffered from an ignorance as to what constituted Jencks Act material." Id.
II. STANDARD OF REVIEW
The defendants do not object under a particular statute or procedural rule. However, their objections are best understood as motions for reconsideration under 28 U.S.C. § 636(b)(1)(A). Under § 636(b)(1)(A), magistrate judges may "hear and determine any pretrial matter pending before the court," with eight enumerated exceptions not relevant here. 28 U.S.C. § 636(b)(1)(A). "A judge of the court may reconsider any pretrial matter... where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." Id.; see also Fed.R.Civ.P. 72(a) (district judge may modify or set aside magistrate judge's ruling on referred "nondispostive matters" only if "the order ... is clearly erroneous or is contrary to law.")[3]
III. DISCUSSION
In their objections, the defendants charge that the government failed to comply with Federal Rule of Criminal Procedure *1256 26.2, which governs the production of statements relating to a witness's testimony. Subpart (a) of Rule 26.2 provides that, "After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony." Fed.R.Crim.P. 26.2(a). Subpart (e) of Rule 26.2 sets out sanctions that may arise when a party fails to produce a statement as required under the Rule. It states that, "If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness's testimony from the record." Fed. R.Crim.P. 26.2(e). In general, "Rule 26.2 applies at a suppression hearing." Fed. R.Crim.P. 12(h).
Rule 26.2 was designed to "place in the criminal rules the substance of what is now 18 U.S.C. § 3500 (the Jencks Act)," based on the "notion that provisions which are purely procedural in nature should appear in the Federal Rules of Criminal Procedure rather than in Title 18." Fed. R.Crim.P. 26.2 advisory committee's note (1979); see also United States v. Musick, 291 Fed.Appx. 706, 727 (6th Cir.2008) ("Since Rule 26.2 was intended to provide a counterpart to the Jencks Act, any cases interpreting a provision of the Jencks Act should be applicable to a similar provision of Rule 26.2.").
Like Rule 26.2(e), the Jencks Act contains a subsection setting out sanctions that may arise when a party fails to produce a statement as required under the Act. 18 U.S.C. § 3500(d). Using language that is substantively similar to Rule 26.2(e), subsection (d) of § 3500 states that, "If the United States elects not to comply with an order ... to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared." Id.
The defendants maintain that, because Rule 26.2(e) provides that, "If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness's testimony from the record," Fed.R.Crim.P. 26.2 (emphasis added), this court must strike the testimony of the agents. In addition, while the defendants do not assert that they suffered prejudice, they argue that a finding of prejudice is not necessary under Rule 26.2(e). They finally argue that a finding of willfulness is not required. The court will overrule the defendants' objections to the magistrate judge's order.
First, here the government did produce the required agents' statements, albeit late, and neither Rule 26.2(e) nor the Jencks Act was meant to cover situations, such as this one, where a party does, ultimately, produce required statements. As stated, Rule 26.2(e) applies where a party "disobeys an order to produce or deliver a statement," while § 3500(d) of the Jencks Act applies, "[i]f the United States elects not to comply with an order of the court... to deliver to the defendant any such statement." Fed.R.Crim.P. 26.2(e) (emphasis added); 18 U.S.C. § 3500(d) (emphasis added); see also United States v. Dupuy, 760 F.2d 1492, 1497 (9th Cir.1985) (holding that the government's late disclosure of a statement by a government witness did not require reversal under the Jencks Act where the defendants were allowed a second chance to cross-examine the witness); United States v. Heath, 580 *1257 F.2d 1011, 1019 (10th Cir.1978), cert. denied, 439 U.S. 1075, 99 S.Ct. 850, 59 L.Ed.2d 42 (1979) ("Courts have found that late disclosure caused no prejudice in instances where an opportunity for full cross-examination had been provided and where the trial court found no bad faith on the prosecutor's part."). The defendants have not pointed to any case where a court has struck the testimony of a witness due to a party's late production of required statements. Indeed, courts that have imposed sanctions pursuant to Rule 26.2(e) and § 3500(d) have done so where a party did not produce required statements at all. See, e.g., United States v. Riley, 189 F.3d 802, 806-08 (9th Cir.1999) (finding that a district court should have struck a government agent's testimony where the agent had intentionally destroyed Jencks Act material); United States v. Ramirez, 174 F.3d 584, 587-90 (5th Cir.1999) (remanding a case to determine the government's degree of culpability in failing to disclose Jencks Act material to the defendant). Indeed, it would be illogical to read Rule 26 as requiring a sanction so drastic as striking testimony whenever a statement is produced late, no matter how late and regardless as to whether there was any prejudice. Here, because the government's production of the required statements was merely late, Rule 26.2(e) does not mandate that the agents' testimony be struck.
Second, as a reviewing court, this court finds that, if the magistrate judge did err, the error was harmless because there was no prejudice. See, e.g., United States v. Montgomery, 210 F.3d 446, 451 (5th Cir.2000) ("Even where a violation of the Jencks Act is found, the failure to produce prior statements is subject to harmless error analysis."); United States v. Beasley, 2 F.3d 1551, 1557 (11th Cir. 1993) ("The harmless error doctrine is applicable to Jencks Act violations, but it must be strictly applied."). As stated, the defendants do not claim prejudice in their objections, and as the magistrate judge explained, "the court re-opened the hearing as to the agent in question on March 24, 2011, and the court does not find that Defendants have suffered any new prejudice based on the additional statements that were turned over on March 30, 2011." Magistrate judge order at 2 (doc. no. 859).
Third and finally, this court notes that, despite the "must" word in Rule 26.2(e), other courts have found that there is broad discretion as to whether to impose sanctions under Rule 26.2(e) or the Jencks Act for a refusal to comply with a court order to produce a witness's statement. See, e.g., United States v. Taylor, 13 F.3d 986, 990 (6th Cir.1994) ("When the [Jencks Act] violation occurs through negligence or oversight, the trial court has the discretion to formulate remedies as justice requires under the circumstances of the case."); United States v. Budzyna, 666 F.2d 666, 673 (1st Cir.1981) ("This court and other circuit courts have held that district courts have significant discretion in applying the exclusion provisions of the Jencks Act."). Because, besides finding no prejudice, the magistrate judge determined that the government did not willfully disobey his orders with respect to producing documents, this reading of Rule 26.2(e) would support the magistrate judge's ruling. However, because this court has already given two other independent reasons for overruling the defendants' objections, it need not rely of this reading of Rule 26.2(e).
For the above reasons, the court finds that the defendants have not "shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A).
* * *
Accordingly, it is ORDERED that the objections (doc. nos. 930, 933, 934, 937, 938, 941, 946, 947), filed by defendants Milton *1258 E. McGregor, Thomas E. Coker, Robert B. Geddie, Jr., Larry P. Means, James E. Preuitt, Quinton T. Ross, Jr., Jarrell W. Walker, Jr., and Joseph R. Crosby, are overruled and that the magistrate judge's order (doc. no. 859) is affirmed.
NOTES
[1] The ninth defendant, Harri Anne H. Smith, did not object.
[2] Magistrate judge order (doc. no. 859). McGregor, Coker, and Crosby filed specific objections to the magistrate judge's order. Objections (doc. nos. 933, 941, 947). McGregor's objection appears within the same filing as his objection to the magistrate judge's recommendation that the court deny his motion to suppress the Title III recordings. McGregor objection at 94-97 (doc. no. 933). In their own objections to the magistrate judge's recommendation with respect to their motions to suppress, Geddie, Means, Preuitt, Ross, and Walker elected to incorporate all of McGregor's arguments as to this issue. Objections (doc. nos. 930, 934, 937, 938, 946). Accordingly, the court finds that these five defendants have also incorporated McGregor's objection to the magistrate judge's order refusing to strike the government agents' testimony, with the result that they have also, in effect, filed objections to the magistrate judge's order.
[3] However, even if the court were considering de novo the matter raised by the defendants in their objections, it would reach the same conclusion.
| {
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} |
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DANIELLE L. GREGORY GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
ROBERT J. HENKE
Deputy Attorney General
DAVID E. COREY
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
IN THE MATTER OF: )
)
S. A. (Minor Child), CHILD IN NEED OF )
SERVICES )
) Aug 15 2014, 10:25 am
And )
)
M. H. (Father), )
)
Appellant-Respondent, )
)
vs. ) No. 49A02-1402-JC-74
)
THE INDIANA DEPARTMENT OF )
CHILD SERVICES, )
)
Appellee-Petitioner. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marilyn Moores, Judge
The Honorable Diana Burleson, Magistrate
Cause No. 49D09-1306-JC-16347
August 15, 2014
OPINION - FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Respondent, M.H. (Father), appeals the trial court’s Order continuing
the adjudication of his minor child, S.A. (the Child), as a Child in Need of Services
(CHINS).
We reverse.
ISSUE
Father raises two issues on appeal, one of which we find dispositive and restate as
follows: Whether the trial court erred in adjudicating the Child as a CHINS.
FACTS AND PROCEDURAL HISTORY
A.A. (Mother)1 and Father have a son together, the Child, born on August 18,
2011, in Indianapolis, Indiana. Father spent the first two years of the Child’s life serving
on active duty in the United States Navy. Although Father was present for the Child’s
birth, he did not establish paternity until after the commencement of the CHINS
proceedings at the center of this case. When Father was discharged from the Navy at the
end of 2013, he had seen the Child only one other time since birth. Father concedes that
he has never paid any child support or otherwise furnished any items for the Child’s care.
1
Mother is not a party to this appeal. Facts relating to Mother are included where appropriate.
2
On June 22, 2013, the Indiana Department of Child Services (DCS) received a
report of child neglect involving Mother and the Child. The reporting party alleged, in
part, that Mother’s habitual heroin use prevented her from adequately caring for the Child
and, as a result, the Child’s maternal grandmother (Grandmother) had taken the Child
into her home. In particular, the report conveyed that Mother used heroin in the Child’s
presence; that she and her boyfriend, A.S., were living in a motel; that Mother and A.S.
have a violent relationship; and that the Child has scars on his hands from cigarette burns.
That same day, DCS commenced its investigation by visiting Grandmother’s
home to see the Child and to interview Grandmother. Grandmother informed DCS that
she and the Child’s step-grandfather were seeking temporary guardianship over the Child.
On June 25, 2013, DCS interviewed Mother, who eventually admitted that she had been
using heroin for two years but denied the allegations that she used heroin in the Child’s
presence and that her relationship with A.S. was violent. Because the Child was already
living with Grandmother, DCS did not take the Child into its custody. Having no
information about the Child’s alleged Father other than his name, DCS attempted to
contact him through the social media website Facebook.
On June 27, 2013, the trial court authorized DCS to file a petition alleging the
Child to be a CHINS. In addition to details about Mother’s extensive drug use and lack
of stable housing, DCS supported its CHINS petition by claiming that the Child’s
“alleged [F]ather . . . has not successfully demonstrated the ability and willingness to
appropriately parent his [C]hild, and his whereabouts are currently unknown.”
3
(Appellant’s App. p. 25). That same day, the trial court held a joint detention and initial
hearing and found that the Child’s removal from Mother’s custody “was necessary to
protect the [Child].” (Appellant’s App. p. 37). The trial court granted temporary
wardship of the Child to DCS and ordered that the Child be placed with Grandmother.
Father was not present at the initial hearing. Mother explained that she had not seen
Father for more than a year and was unaware of his whereabouts. The trial court directed
DCS to serve Father or publish notice prior to the next hearing.
On July 19, 2013, the trial court resumed the initial hearing. Father did not
appear. Although it is unclear whether DCS was able to serve Father with notice of the
hearing, it is apparent that Father somehow became aware of the CHINS proceedings
because on July 25, 2013, he filed a motion with the court requesting “scientific paternity
testing.” (Appellant’s App. p. 55). In his motion, Father explained that he was stationed
in Corpus Christi, Texas, and requested that he be permitted to appear at future
proceedings telephonically. On August 2, 2013, the trial court conducted a third initial
hearing. Father appeared by telephone and requested the assistance of counsel.
Accordingly, the trial court entered a denial of the allegations raised in the CHINS
petition on Father’s behalf and appointed a public defender to represent him. Also at this
time, the trial court granted Father’s motion to establish paternity, ordering Father,
Mother, and the Child to undergo DNA testing.
On September 13, 2013, DCS and Mother submitted an agreement to the court in
which Mother admitted to certain allegations raised in the CHINS petition. Pursuant to
4
this agreement, the trial court adjudicated the Child to be a CHINS. The trial court then
held a dispositional hearing and ordered Mother to participate in DCS-recommended
services. Also, having considered, in part, “the alternatives for the care, treatment,
rehabilitation, or placement of the [Child,]” the trial court ordered that the Child’s
placement remain with Grandmother as it “[l]east interferes with family autonomy.”
(Appellant’s App. pp. 84, 86). Because the results of the DNA testing were not available
at this time, the trial court rescheduled the proceedings relating to Father.
Father’s paternity to the Child was conclusively established on November 4, 2013.
At a hearing on November 15, 2013, Father’s attorney appeared on his behalf and
requested a fact-finding hearing. Father’s attorney also conveyed Father’s desire to be
granted custody of the Child. The trial court set the matter for a fact-finding hearing and
granted Father supervised parenting time.
At the end of November 2013, Father was discharged from the Navy. He
subsequently moved in to his parents’ home in Indianapolis and obtained employment
with the United Parcel Service. Upon his return to Indianapolis, Father also contacted
DCS and the Child’s court appointed special advocate (CASA) regarding the CHINS
proceedings. Every day thereafter, Father spent time with the Child at Grandmother’s
house. DCS did not observe any of these visits, but Grandmother reported to DCS that,
with the exception of some nervousness and difficulty with diaper changing, Father
“interacts well with [the Child].” (Transcript p. 21).
5
The day before the fact-finding hearing, on December 19, 2013, Father attended a
Child and Family Team Meeting with DCS and the CASA. There, Father disclosed that
he had been diagnosed and treated for post-traumatic stress disorder (PTSD) while on
active duty. According to Father, he was hospitalized for four months at University
Behavioral Health in Denton, Texas, because he “was having difficulty sleeping, []
couldn’t cope with [his] emotions, [and] was dealing with extreme depression.” (Tr. p.
38). Father explained that after he was released from the hospital in May of 2013, he
briefly continued to attend counseling but was no longer receiving treatment.
On December 20, 2013, the trial court held a fact-finding hearing. During the
hearing, DCS and the CASA recommended that the trial court continue the Child’s
CHINS adjudication. Both testified about their concerns regarding the Child’s
unfamiliarity with Father, as well as Father’s lack of prior parenting experience. In
addition, based upon Father’s revelation that he had been treated for PTSD, DCS and the
CASA agreed that Father should undergo a psychological evaluation. At the close of the
evidence, the trial court acknowledged that Father’s inability “to care for the [C]hild” was
due to his out-of-state military service. (Tr. p. 55). Nevertheless, the trial court criticized
Father for his failure to establish paternity “a lot sooner” and also expressed its concern
that Father could not precisely recall when he had been released from his PTSD treatment
program. (Tr. p. 55). Moreover, the trial court emphasized Mother’s near-completion of
her services and explained its preference that the Child eventually be released to Mother.
6
Accordingly, the trial court issued written findings in support of its decision to
“continue[] the adjudication that [the Child] is a [CHINS].” (Appellant’s App. p. 119).
On January 10, 2014, the trial court conducted Father’s dispositional hearing.
Based on DCS’ recommendation, the trial court ordered Father to complete a parenting
assessment and comply with any subsequent recommended services. The trial court
additionally ordered Father to submit documentation regarding his treatment for PTSD
or, alternatively, to undergo a psychological evaluation.
Father now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
DCS bears the burden of proving that a child is a CHINS by a preponderance of
the evidence. In re Des.B., 2 N.E.3d 828, 835-36 (Ind. Ct. App. 2014). In reviewing a
CHINS determination, our court does not reweigh evidence or assess witness credibility.
In re K.D., 962 N.E.2d 1249, 1253 (Ind. 2012). We consider only the evidence in favor
of the trial court’s judgment, along with any reasonable inferences derived therefrom. Id.
In addition, the trial court entered limited findings of fact and conclusions thereon
sua sponte; thus, our review is governed by Indiana Trial Rule 52(A). The CHINS
statute does not stipulate that formal findings must accompany a CHINS determination.
In re S.D., 2 N.E.3d 1283, 1287 (Ind. 2014). Accordingly, for the issues covered by the
court’s findings, we apply our two-tiered standard of review, first considering whether
the evidence supports the factual findings and then whether those findings support the
7
trial court’s judgment. Id. We will not set aside the findings or judgment unless they are
clearly erroneous. In re Des.B., 2 N.E.3d at 836. Factual findings are clearly erroneous
where there are no facts in the record to support them either directly or by inference. Id.
“A judgment is clearly erroneous if it relies on an incorrect legal standard.” Id. We
accord substantial deference to the trial court’s findings of fact but not to its conclusions
of law. Id. Any issues not covered by the trial court’s findings are reviewed under the
general judgment standard, “under which a judgment will be affirmed if it can be
sustained on any legal theory supported by the evidence.” In re S.D., 2 N.E.3d at 1287
(internal quotation marks omitted).
II. CHINS Adjudication
Father claims that the trial court erred in continuing the Child’s adjudication as a
CHINS. The Fourteenth Amendment to the United States Constitution protects the
“fundamental right to family integrity” against unwarranted government intrusion. In re
T.H., 856 N.E.2d 1247, 1250 (Ind. Ct. App. 2006). This protection encompasses parents’
fundamental right to “direct[] the care, custody, and control of their children.” In re V.H.,
967 N.E.2d 1066, 1071 (Ind. Ct. App. 2012). However, a parent’s rights are not absolute.
Acting under its parens patriae power, the State may interfere with parental autonomy
when it is “necessary to protect the health and safety of children.” Id. at 1072. The
purpose of the CHINS statute is “to help families in crisis—to protect children, not
punish parents.” In re S.D., 2 N.E.3d at 1285.
8
In a CHINS proceeding, which is a civil action, DCS bears the burden of proving
three statutory elements by a preponderance of the evidence. In re K.D., 962 N.E.2d at
1253. Here, because DCS alleged the Child to be a CHINS under the neglect statute,
DCS must establish that
(1) the child’s physical or mental condition is seriously impaired or
seriously endangered as a result of the inability, refusal, or neglect of
the child’s parent, guardian, or custodian to supply the child with
necessary food, clothing, shelter, medical care, education, or
supervision; and
(2) the child needs care, treatment, or rehabilitation that:
(A) the child is not receiving; and
(B) is unlikely to be provided or accepted without the coercive
intervention of the court.
Ind. Code § 31-34-1-1. The third element of a CHINS adjudication is that the Child must
be less than eighteen years of age, which is not disputed in the case at hand. I.C. § 31-34-
1-1. The CHINS statute is intended to protect children who are “endangered by parental
action or inaction”; a court need not “wait until a tragedy occurs” to intervene.” In re
A.H., 913 N.E.2d 303, 306 (Ind. Ct. App. 2009).
On appeal, Father specifically contends that the record is devoid of evidence or
findings by the trial court to support the conclusion that the Child’s “mental or physical
condition continued to be seriously impaired or seriously endangered as a result of the
inability, refusal, or neglect of Father to supply . . . him with necessary food, clothing,
shelter, medical care, education, or supervision.” (Appellant’s Br. p. 13 (emphasis
9
added)). Although raised by neither party, Father’s argument prompts us to first address
some procedural irregularities and their impact on Father’s due process rights.2
A. CHINS Procedure
Three months after the trial court adjudicated the Child to be a CHINS based on
Mother’s admission, the trial court held a fact-finding hearing and found the Child to be a
CHINS “as to [F]ather” based on the allegations in DCS’ initial petition. (Appellant’s
App. p. 109). As our supreme court has established, “a separate analysis as to each
parent is not required” in making a CHINS determination because a CHINS adjudication
reflects the status of a child without establishing the culpability of a particular parent. In
re N.E., 919 N.E.2d 102, 106 (Ind. 2010). A CHINS adjudication is simply a
determination that a child is in need of services and is unlikely to receive those services
without the court’s intervention; it is not a determination of parental fault. Id. at 105. It
is well established that a child may be found a CHINS based on the action or inaction of
both parents or only one parent, or even where neither parent has committed any
wrongdoing. See In re K.D., 962 N.E.2d at 1255. Therefore, Mother’s admitted drug use
could be a sufficient basis for the CHINS adjudication notwithstanding Father’s initial
contribution to the Child’s neglect. See In re J.L., 919 N.E.2d 561, 564 (Ind. Ct. App.
2009). However, our analysis does not end here.
2
In general, our court refrains from considering an issue that has not been raised by a party on appeal.
Yet, our court has previously acted sua sponte to remedy a blatant error that served to deny a criminal
defendant’s fundamental due process. See Spaulding v. State, 533 N.E.2d 597, 603 (Ind. Ct. App. 1989),
trans. denied. Even though there are fundamental liberty interests at stake in a CHINS case, we recognize
that there are different standards governing criminal proceedings and civil actions; therefore, we will
address the due process issue, but we resolve this case on other grounds.
10
Two years after In re N.E. made it clear that a Child is not separately adjudicated a
CHINS as to each parent, our supreme court clarified in In re K.D., 962 N.E.2d at 1256,
that a separate analysis “is sometimes necessary” if allegations have been made against
both parents, and where one parent wishes to admit that the child is a CHINS while the
other denies it. A CHINS adjudication requires that DCS prove each of the elements in
the CHINS statute, and “each parent has the right to challenge those elements.” Id. at
1254. Thus, while Father might not be able to dispute the factual allegations admitted by
Mother, “he has the right to contest the allegation that his [C]hild needs the coercive
intervention of the court.” Id. at 1257. In these situations, due process requires that the
trial court “conduct a fact-finding hearing as to the entire matter.” Id. at 1259. Here,
although Father did, in fact, receive a fact-finding hearing, the trial court had already
determined the Child’s CHINS status based solely on Mother’s admission—
notwithstanding the fact that Father was involved in the case and had denied the
allegations in the CHINS petition. Because a court cannot issue separate adjudications
for each parent, the trial court’s CHINS determination should be based on a consideration
of the evidence in its entirety. Accordingly, by adjudicating the Child as a CHINS prior
to Father’s fact-finding hearing, we find that the trial court deprived Father of a
meaningful opportunity to be heard.
Moreover, after a CHINS adjudication, the trial court must conduct a dispositional
hearing to consider alternatives for the Child’s “care, treatment, rehabilitation, or
placement”; the necessity of a parent’s participation in various services; and the parent’s
11
financial responsibility for said services. I.C. § 31-34-19-1(a). Following the hearing,
the trial court is required to issue a dispositional decree that
(1) is:
(A) in the least restrictive (most family like) and most appropriate
setting available; and
(B) close to the parents’ home, consistent with the best interest
and special needs of the child;
(2) least interferes with family autonomy;
(3) is least disruptive of family life;
(4) imposes the least restraint on the freedom of the child and the child’s
parent, guardian, or custodian; and
(5) provides a reasonable opportunity for participation by the child’s
parent, guardian, or custodian.
I.C. § 31-34-19-6. Furthermore, the dispositional decree must be accompanied by
written findings and conclusions upon the record concerning the following:
(1) The needs of the child for care, treatment, rehabilitation, or
placement.
(2) The need for participation by the parent, guardian, or custodian in
the plan of care for the child.
(3) Efforts made, if the child is a child in need of services, to:
(A) prevent the child’s removal from; or
(B) reunite the child with;
the child’s parent, guardian, or custodian in accordance with federal
law.
(4) Family services that were offered and provided to:
(A) a child in need of services; or
(B) the child’s parent, guardian, or custodian;
in accordance with federal law.
(5) The court’s reasons for the disposition.
I.C. § 31-34-19-10(a).
The trial court conducted two dispositional hearings following the CHINS
adjudications as to each parent. After Father’s dispositional hearing, the trial court issued
a parental participation order requiring Father to complete a parenting assessment and
12
possibly a psychological evaluation. However, the trial court did not issue a dispositional
decree or written findings reflecting its consideration of the statutory factors. The trial
court simply ordered that Father’s participation is necessary for the Child’s care plan.
“[E]very CHINS proceeding ‘has the potential to interfere with the rights of
parents in the upbringing of their children.’” In re T.N., 963 N.E.2d 467, 469 (Ind. 2012)
(quoting In re N.E., 919 N.E.2d at 108). As such, procedural irregularities “may be of
such import that they deprive a parent of procedural due process with respect to a
potential subsequent termination of parental rights.” In re N.E., 919 N.E.2d at 108. In
order to balance the interest of parents in controlling the upbringing of their children
against the State’s legitimate interest in safeguarding children from the harms of
neglectful parents, “the trial court needs to carefully follow the [statutory] language and
logic laid out by our legislature.” Id. By failing to issue a dispositional decree that
specifically addressed, in part, its bases for placing the Child with Grandmother rather
than Father and for ordering participation in services seemingly unrelated to the
allegations in DCS’ petition, the trial court violated the mandates of Indiana code sections
31-34-19-6 and 31-34-19-10, and “may well have interfered with Father’s rights in the
upbringing of [the Child].” Id. Nevertheless, because Father did not raise an argument of
procedural error, we will now address his argument regarding the sufficiency of the
evidence, notwithstanding our finding that the trial court’s CHINS adjudication was
contrary to due process.
B. Sufficiency of the Evidence
13
In addition to Mother’s conduct, DCS also alleged the Child to be a CHINS
because Father failed to “successfully demonstrate[] the ability and willingness to
appropriately parent his [C]hild, and his whereabouts are currently unknown.”
(Appellant’s App. p. 25). As previously discussed, Father lacks the first-hand knowledge
necessary to contest the factual allegations admitted by Mother. However, he still may
challenge that the coercive intervention of the court is unnecessary to ensure that the
Child receives the appropriate care. See In re K.D., 962 N.E.2d at 1256. To this end,
Father asserts that
[t]here was no evidence or any findings that [the Child] required protection
that Father could not provide. [The Child] was removed from Mother’s
care due to her illegal substance abuse issues and Father’s unavailability.
By the time of the fact finding hearing, [the Child] had still not returned to
Mother’s care. Father appeared and expressed an ability and willingness to
parent [the Child], and Father demonstrated his ability to provide for [the
Child’s] basic needs.
(Appellant’s Br. p. 16 (internal citations omitted)). In this case, the trial court identified
two primary concerns for finding that the Child is in need of services that he will be
unlikely to receive without the court’s coercive intervention: (1) Father’s disinterest in
establishing paternity and supporting his Child and (2) Father’s history of PTSD.
1. Prior Non-Involvement
In its factual findings, the trial court relies on the recommendations of DCS and
the CASA in favor of a CHINS adjudication. In particular, DCS and the CASA both
testified that the court’s coercive intervention was necessary based on Father’s lack of
prior parental involvement and parenting skills. According to the CASA, Father needed
14
parenting skills classes because “anybody that has never had a child needs some sort of
level of training to help them know what to do, like some of the questions that he
couldn’t answer.” (Tr. p. 41). DCS added that the Child “still doesn’t know [Father] that
well.” (Tr. p. 21).
The trial court found that Father was not “physically unable” to care for the Child;
rather, his inability to parent the Child was the result of his out-of-state military
assignment. (Tr. p. 55). Father does not dispute the trial court’s findings that he did not
establish paternity until after the CHINS petition was filed and that he never offered any
support, financial or otherwise, for the Child’s care while serving in the military.
Father’s first meaningful contact with the Child was not until the Child was two years
old—just a few weeks before the fact-finding hearing. Nonetheless, Father maintains that
he is now employed and in a position where he can care for and support the Child.
DCS asserts that Father’s argument amounts to a request that we reweigh the
evidence. According to DCS, the trial court appropriately accorded more weight to the
uncontroverted evidence that Father—despite his recent efforts—“had never taken care of
[the] Child and had only seen him twice before.” (DCS’ Br. p. 18). It is well established
that “a CHINS adjudication may not be based solely on conditions that no longer exist.
The trial court should also consider the parents’ situation at the time the case is heard.”
In re R.S., 987 N.E.2d 155, 159 (Ind. Ct. App. 2013) (internal citation omitted). By the
time of the fact-finding hearing, Father had been discharged from the Navy, had moved
back to Indianapolis, and had secured employment. The trial court also found that Father
15
had contacted DCS and the CASA as soon as he returned to Indianapolis and began
developing a relationship with the Child. The record further demonstrates that Father
filed a motion for paternity testing upon learning of the CHINS petition, and he prepared
a bedroom for the Child at his parents’ home. In addition, Father stated that he plans to
stay with his parents—where the Child is welcome—until he saves enough money to
purchase his own home. Father also testified:
I believe that I can take [care] of [the Child] today[] because we get along
amazing, I have an amazing support group, like I said there is
[Grandmother and the Child’s step-grandfather], there’s [Mother], there’s
my mother, there’s my father, there’s my grandmother, there’s my sister in
addition to myself and, and, maybe for the first [two] visits I was nervous
around [the Child] because he was a child, he was my child but that is not
how I feel anymore and yes I’m slower at putting on his diapers and yes
I’m slower at putting on his [pajamas] but I get [t]hem on all the same and
he doesn’t mind.
(Tr. pp. 51-52).
Our supreme court has established that the State’s intrusion into parental rights
should be limited to instances “where parents lack the ability to provide for their children,
not merely where they encounter difficulty in meeting a child’s needs.” In re S.D., 2
N.E.3d at 1287 (internal quotation marks omitted). DCS does not satisfy its burden of
proof by simply highlighting Father’s shortcomings as a parent; rather, DCS must
establish that Father is unlikely to meet the Child’s needs absent coercive court
intervention. Neither the trial court’s findings nor the other evidence in the record
supports such a conclusion. If it were sufficient for the purposes of CHINS adjudications
that a parent has no prior parenting experience or training, then all new parents would
16
necessarily be subject to DCS intervention. Here, Father resolved the allegations raised
in the CHINS petition by the time of the fact-finding hearing—he was present in
Indianapolis and willing to parent his Child.
2. PTSD Diagnosis
DCS and the CASA also proffered “safety” concerns stemming from Father’s
PTSD diagnosis as supporting the need for a CHINS finding. (Tr. p. 41). We first note
that the issue of Father’s PTSD was not raised in the CHINS petition as a basis for DCS
involvement. Instead, after Father disclosed his diagnosis, DCS relied upon it as a post
hoc justification for coercive intervention and now maintains that “[t]he record is clear
that the court still had concerns that Father’s mental health issues posed a problem to
Father’s ability to parent [the] Child.” (DCS’ Br. p. 20). At the close of the fact-finding
hearing, the trial court stated that it was “not convinced that [Father’s] PTSD is under
control” because when asked about his release date from the hospital, Father answered “I
would guess in May.” (Appellant’s App. p. 119; Tr. p. 56).
We find Father’s voluntary admission of his PTSD history to DCS and the CASA
to be indicative of the fact that court intervention would not be necessary to compel
Father into treatment. Father testified that he successfully completed the PTSD treatment
program in the military ward of a behavioral health hospital, and he continued to see a
counselor after his release until it was no longer necessary. Father also testified that part
of his treatment regime was learning how to “understand[] when you have warning signs
of things going awry.” (Tr. p. 51). Although it was certainly within the discretion of the
17
trial court to discredit Father’s testimony, we find no other basis in the record to support
the trial court’s conclusion that even if Father requires additional PTSD treatment, he is
unlikely to obtain such treatment without coercive intervention. See In re K.D., 962
N.E.2d at 1256 (“Speculation is not enough for a CHINS finding.”).
CONCLUSION
Based on the foregoing, we conclude that the trial court erred in adjudicating the
Child to be a CHINS.
Reversed.
MATHIAS, J. and CRONE, J. concur
18
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776 So.2d 753 (2000)
SCHNEIDER NATIONAL CARRIERS, INC.
v.
Kenneth A. TINNEY.
1982136.
Supreme Court of Alabama.
May 26, 2000.
Rehearing Denied July 28, 2000.
John W. Clark, Jr., and Joseph E. Stott of Clark & Scott, P.C., Birmingham, for appellant.
R. Ben Hogan III and J. Lee Roberts, Jr., of Hogan, Smith & Alspaugh, P.C., Birmingham, for appellee.
HOUSTON, Justice.
This case involves the failure of a safety device known as a "rear-impact guard" that was attached to a cargo trailer owned by Schneider National Carriers, Inc. ("Schneider"). On April 17, 1995, Kenneth Tinney was driving an automobile on Interstate Highway 20 when he rear-ended the cargo trailer owned by Schneider. The rear-impact guard failed, and Tinney was injured.
Tinney sued Schneider. (He also sued Alfa Mutual Insurance Company and Wabash National Corporation ("Wabash"). Neither of those defendants is a party to this appeal.) The gravamen of his complaint was that the rear-impact guard had not been reasonably maintained. Schneider moved for a summary judgment. The trial court delayed ruling on the motion until discovery was completed, which was almost seven months after the court had *754 heard oral argument on the motion. After discovery had been completed, Tinney did not oppose the summary-judgment motion; the trial court entered a summary judgment in favor of Schneider on November 9, 1998. That summary judgment read:
"Motion for Summary Judgment was filed on behalf of defendant Schneider National Carriers on March 3, 1998. Same was argued at length on April 13, 1998, at which the plaintiff was given additional time to develop facts in support of [his] case. Plaintiff now has taken the deposition of a representative of Schneider and has furnished nothing in opposition to the defendant Schneider's Motion for Summary Judgment.
"Motion for Summary Judgment is hereby granted as to all claims made by the plaintiff against the Defendant, Schneider National Carriers, Inc. The Court expressly finds that the claims which could be presented by the plaintiff against Schneider were significantly different than those claims that the plaintiff could present against the defendant Wabash National Corporation which [deal] specifically with the design defect as to a bumper allegedly manufactured by Wabash. It is clear from the summary judgment motion that the defendant Schneider National Carriers, had nothing to do with the design or manufacture of the bumper.
"Therefore, the Court determines, pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, the judgment herein is expressly made a final judgment in favor of the defendant Schneider National Carriers and against the Plaintiff."
Tinney continued his action against Alfa and Wabash. On May 21, 1999, Tinney moved to reinstate Schneider as a defendant. The factual basis of the motion was newly discovered evidence. The legal basis of the motion was that the trial court's November 9, 1998, order had not been made a final order because the judge had not used the words "no just reason for delay" in the concluding sentence of the summary judgment, quoted above. Tinney contended that Rule 54(b), Ala. R. Civ. P., required that the judge use those exact words to make an order final under Rule 54(b). On September 1, 1999, almost 10 months after it had entered the summary judgment, the trial court granted the motion to reinstate Schneider, explaining its action in an amended order:
"This Court's ruling is based upon the finding that this Court's previous Order granting summary judgment on November 9, 1998 did not contain the necessary language that `there is no just reason for delay of the entry of final judgment.'
"As the November 9, 1998 Order was insufficient so as to be considered final pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure, the Court finds that it is within its discretion to set aside that November 9, 1998 Order and reinstate the claims of plaintiff against Schneider National Carriers, Inc."
Schneider appeals the trial court's September 1, 1999, order reinstating it as a defendant. Schneider argues that the November 9, 1998, order was a final judgment.
The pertinent portion of Rule 54(b) provides:
"[W]hen multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the ... parties only upon an express[1]determination[2] that there is no just reason for delay and upon an express direction for the entry of judgment."
(Emphasis added.)
In Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Construction Co., 466 So.2d 83 *755 (Ala.1985), this Court held that the following language, which concluded two summary-judgment orders, made the two orders final pursuant to Rule 54(b) even though the language did not mention Rule 54(b) and even though it stated no "express direction" for the entry of final judgments: "The Court further finds there is no just reason for delay in the entry of said final judgment." 466 So.2d at 87. We held in Sho-Me that if it is clear and obvious from the language used by the trial court in its order that the court intended to enter a final order pursuant to Rule 54(b), then we will treat the order as a final judgment:
"Of course, Rule 54(b) requires `an express determination that there is no just reason for delay.' Each of these judgments contains the express language that `the Court further finds that there is no just reason for delay.' Moreover, Rule 54(b) requires `an express direction for the entry of judgment.' Each of these judgments contains the express language `[m]otion for summary judgment granted,' and both continue, `there is no just reason for delay in the entry of said final judgment.' (Emphasis added [in Sho-Me]).
"Apparently [the appellee] contends that these entries were fatally deficient for the absence of the word `directs' from the language used to grant summary judgment. We cannot agree with such an interpretation. In Foster v. Greer & Sons, Inc., 446 So.2d 605, 609 (Ala.1984), this Court announced:
"`The adoption of our rules of civil procedure, which provide for the liberal joinder of claims and parties, created the need for a vehicle to allow an appeal from an order which does not adjudicate the entire case but as to which there is no just reason for delay in the attachment of finality. Cates v. Bush, 293 Ala. 535, 307 So.2d 6 (1975). Rule 54(b) is that vehicle. It allows the court to enter a final judgment immediately if, under the circumstances, to wait until the entire case is decided would create injustice. Its non-use or improper use can lead to the kind of problems encountered in this case and can create, rather than eliminate, unnecessary delay.'
"`In light of the purpose behind Rule 54(b), we take this opportunity to announce a new procedure in this Court. When it appears from the record that the appeal was taken from an order which was not final, but which could have been made final by a Rule 54(b) certification, we will remand the case to the trial court for a determination as to whether it chooses to certify the order as final, pursuant to Rule 54(b), and if it so chooses, to enter such an order and to supplement the record to reflect that certification.'
"In this case, from a reading of the language used, the order entered appears to be a final order under Rule 54(b) and it obviously was so intended. The motion of [the appellee] to dismiss this appeal is denied."
466 So.2d at 87-88.
In this present case, the trial court specifically cited Rule 54(b) as its ground for "expressly" making the summary judgment final. By citing Rule 54(b), the trial court implicitly incorporated the language of Rule 54(b) into its order. It would take a tortured and biased reading of the trial court's summary-judgment order to find anything but an express intent to make the order final under Rule 54(b). We are not generally approving the omission of language stating that the court has made "an express determination that there is no just reason for delay," because Rule 54(b) explicitly calls for such a determination. However, to say the determination is absent in this case would exalt form over substance, given the quoted portion of the trial court's order. Nonetheless, the better practice is for the trial court's order to speak to the point directly. Nothing in Rule 54(b) requires findings to buttress the conclusion "that there is no just reason *756 for delay." All that is required is an "express determination."[3] Therefore, the trial court's November 9, 1998, summary-judgment order was a final judgment pursuant to Rule 54(b).
Pursuant to Rule 60(b), Ala. R. Civ. P., Tinney had four months to seek relief from the November 9, 1998, final judgment, on the grounds of newly discovered evidence. Tinney did not seek such relief until more than six months after the final judgment had been entered. Therefore, the trial court was jurisdictionally barred from reinstating Schneider as a defendant.
REVERSED AND REMANDED.
HOOPER, C.J., and MADDOX, COOK, SEE, LYONS, BROWN, and ENGLAND, JJ., concur.
JOHNSTONE, J., dissents.
JOHNSTONE, Justice (dissenting).
In reversing, we are further eroding the formal requirements for the entry of a final Rule 54(b) judgment. In this case, the summary judgment neither recited nor explained that "there is no just reason for delay." Thus it was merely interlocutory and subject to revision, as the trial judge revised it. We should affirm.
The purpose of the formal requirements is to ensure that the trial judge has considered and has found the criteria for the entry of a final Rule 54(b) judgment. See 10 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2659 at 114. See also Justice Lyons's special concurrence in Ex parte King, 776 So.2d 31, 37 (Ala.2000), and Precision American Corp. v. Leasing Service Corp., 505 So.2d 380 (Ala.1987). In Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996), the Court of Civil Appeals explains:
"Appellate review in a piecemeal fashion is not favored, and trial courts should certify a judgment as final, pursuant to Rule 54(b), only in a case where the failure to do so might have a harsh effect. 10 Charles A. Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2659, at 99. Consequently, a party who seeks immediate appellate review of a judgment which does not adjudicate all of the claims and/or all of the parties must make a showing as to why it is necessary that appellate review of that particular judgment be conducted prior to adjudication of the entire case. 10 C. Wright et al., Federal Practice and Procedure: Civil 2d § 2659, at 100.
"In addition, the trial court, in its order, should list the factors which it considered in reaching its decision regarding whether to certify the judgment, pursuant to Rule 54(b), in order that the appellate court is better equipped to review the trial court's action. 10 C. Wright et al., Federal Practice and Procedure: Civil 2d § 2659, at 114.
"Stated another way, in making the determination as to whether a judgment *757 should be certified under Rule 54(b), the trial court should consider any factor that is relevant to that particular case and should list the factors considered in making its determination. The trial court should consider all factors, in addition to the fact that multiple parties and/or multiple claims were involved, that there has been a final decision as to one of the claims and/or the rights and responsibilities of one of the parties, and that there is `no just reason for delay.' The trial court should indicate why it considers that there is `no just reason for delay.' Hereafter, if a trial court should fail to list the factors considered, then the case will be returned so that the trial court can list those factors."
(Emphasis added.)
Rule 54(b) is clear, sensible, and easy. Why not follow it?
NOTES
[1] The word "express" is defined as: "Clearly and unmistakably communicated; directly stated." Black's Law Dictionary 601 (7th ed.1999).
[2] The word "determination" is defined as: "A final decision by a court or administrative agency." Black's Law Dictionary 460 (7th ed.1999).
[3] The Court of Civil Appeals held in Brown v. Whitaker Contracting Corp., 681 So.2d 226, 229 (Ala.Civ.App.1996): "The trial court should indicate why it considers that there is `no just reason for delay.' Hereafter, if a trial court should fail to list the factors considered, then the case will be returned so that the trial court can list those factors." Rule 54(b) does not require a trial court to list the factors it considered in finding that there is no just reason for delay. To the extent that Brown conflicts with Rule 54(b), Brown is overruled. Nevertheless, the trial court in this case complied with Brown by explaining in the second paragraph of its November 9, 1998, order:
"The Court expressly finds that the claims which could be presented by the plaintiff against Schneider were significantly different than those claims that the plaintiff could present against the defendant Wabash National Corporation which [deal] specifically with the design defect as to a bumper allegedly manufactured by Wabash. It is clear from the summary judgment motion that the defendant Schneider National Carriers, had nothing to do with the design or manufacture of the bumper."
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772 F.2d 1161
AMERICAN HOME ASSURANCE COMPANY, Plaintiff-Appellant,v.LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
No. 84-1294.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 23, 1985.Decided Sept. 26, 1985.
B.I. Stanczyk, Plunkett, Cooney, Rutt, Watters, Stanczyk, Pedersen, Christine D. Oldani (argued), Dennis Rhodes, Detroit, Mich., for plaintiff-appellant.
Ralph W. Barbier, Jr., Susan J. Sadler, Thomas H. Hill (argued), Mt. Clemens, Mich. for defendant-appellee.
Before MARTIN and CONTIE, Circuit Judges; and HOGAN, Senior District Judge.*
PER CURIAM.
1
In this diversity action, American Home Assurance Company appeals from a judgment entered against it after a bench trial on a claim that Liberty Mutual Insurance Company breached a duty of good faith owed to American. The controversy arose when Liberty, the primary insurer of an automobile liability insurance policy, failed to settle a claim made under the policy with the result that American, the excess liability carrier on the automobile, was called upon to satisfy a judgment in excess of $1,000,000. Because the standards by which a primary carrier's duty to an excess carrier have been altered by the Michigan courts subsequent to the district court's decision, we will reverse the judgment of the district court and remand the case for further consideration in light of those new standards.
2
Briefly, the facts are these. A driver for the insured, the United Parcel Service, made a U-turn and collided with an automobile driven by David Kocharoff. David Kocharoff was injured only slightly in the accident, but his wife, Karen Kocharoff, was killed. David filed an action in the Wayne County, Michigan, Circuit Court on behalf of himself and Karen's estate. The complaint sought damages in the amount of $1,750,000. Liberty's policy limit was $200,000 per person and $1,000,000 per occurrence. American's policy limit was $20,000,000.
3
Liberty was notified of the accident on the day that it occurred. An investigation by Liberty was conducted by Sally Swift, who concluded that liability for David's injuries was probable and that liability for Karen's death was clear. Counsel retained by Liberty, Konrad Kohl, also notified Liberty that this was a case of clear liability. Nevertheless, Liberty's claims supervisor, Bryan Lasher, informed American that he believed that the case presented only questionable liability.
4
David (through counsel) originally demanded $250,000 to settle the case. When Liberty offered $100,000, David summarily rejected the offer and raised his demand to $450,000. There was evidence, however, that only the formal demand had been raised and that David would still consider $250,000. When American was notified of this demand change, it hired counsel, B.I. Stanczyck, for the case. Stanczyck reviewed Kohl's files and informed American that Kohl had "strongly recommended" that Liberty authorize a settlement of $200,000 because, in Kohl's words, "there could easily be a jury verdict of $500,000.00 or in excess thereof." Stanczyck also stated in his letter to American that he had suggested to the Liberty claims supervisor, Mr. Pierson, that "if he wanted to negotiate between $100,000.00 and $200,000.00 with [David's counsel], that he do so in person with the $200,000.00 in hand."
5
Although the auto accident occurred in October 1974 and the suit was filed in April 1975, Liberty did not offer its policy limit of $200,000 until April 1979. That offer came about when David escalated his demand to $900,000. Kohl advised Liberty to offer its policy limit at that time so that Liberty would not get "caught in the middle" between American and David. On the day that Liberty offered its limit, Stanczyck tendered $50,000 to Liberty, stating that the case could have been settled in October 1977 for $250,000, which would have required only a $50,000 contribution from American. Stanczyck asserted that Liberty's bad-faith failure to settle the case relieved American of its obligation on the excess policy.
6
When trial commenced on April 25, 1975, David's demand stood at $1,200,000. American, which had taken over the negotiations, offered $710,000, but that offer was rejected. The jury returned a verdict in David's favor which, after reduction for David's twenty percent comparative negligence, amounted to $1,400,000 for Karen's death and $4,000 for David's injuries. American appealed the jury verdict, but Liberty did not. On February 27, 1981, American and David settled the case, and the appeal was dismissed.
7
American then brought this action, asserting that Liberty breached its duty to pursue settlement negotiations in good faith. The district court made exhaustive findings of fact. The court noted that Liberty failed to heed Kohl's advice to seek an early settlement in the $200,000 range because Liberty thought that it could seek contribution from David due to his negligence and because David's and Karen's "lifestyle" (i.e., the fact that she was twenty-six years old and he was nineteen when they were married) made David an unsympathetic plaintiff. The district court also found that an improper purpose could not be inferred from the long delays in the settlement negotiations because (1) Liberty's home office pressured the Detroit office to make progress on the case and (2) the delays were caused in part by the burdensome workload of the Liberty employees. Finally, the court found that Liberty adequately apprised American of the seriousness of the case because Kohl allowed American's counsel to have access to his files on the case. In those files was Kohl's letter to Liberty stating that liability in the case could well exceed $500,000.
8
On appeal, American's primary assertion of error is that the district court evaluated the "bad faith" claim under legal standards that, though perhaps proper at the time of trial, are no longer the law of Michigan. In City of Wakefield v. Globe Indemnity Co., 246 Mich. 645, 225 N.W. 643 (1929), the Supreme Court of Michigan held that
9
[a]rbitrary refusal to settle for a reasonable amount, where it is apparent that suit would result in a judgment in excess of the policy limit, indifference to the effect of refusal on the insured, failure to fairly consider a compromise and facts presented and pass honest judgment thereon, or refusal upon grounds which depart from the contract and the purpose of the grant of power, would tend to show bad faith.
10
246 Mich. at 653, 225 N.W. at 645. In Awrey v. Progressive Casualty Insurance Co., 728 F.2d 352 (6th Cir.1984), we held that a Michigan Appeals Court case, Medley v. Canady, 126 Mich.App. 739, 337 N.W.2d 909 (1983), had refined Wakefield and required a plaintiff to show that the insurer "engaged in the 'conscious doing of wrong because of dishonest purpose or moral obliquity' for a finding of bad faith." Awrey, 728 F.2d at 357 (quoting Medley, 337 N.W.2d at 912). This was the state of the law when the district court rendered judgment.
11
Subsequent to the district court's entry of judgment, the Michigan Court of Appeals held that the "bad faith" standard announced in Medley, which was a case of bad faith failure to pay an uncontested claim under M.C.L.A. Sec. 500.2006(4), is not applicable to cases of bad faith failure to settle. See Commercial Union Insurance Co. v. Liberty Mutual Insurance Co., 137 Mich.App. 381, 357 N.W.2d 861, 865-66 (1984). Specifically, the court held that Medley is applicable only to cases under M.C.L.A. Sec. 500.2006(4) and that, contrary to the implication in Medley, " 'bad faith' pursuant to Wakefield is something less than fraud." Commercial Union v. Liberty Mutual, 357 N.W.2d at 866. The court concluded that, "The language defining 'bad faith' in Wakefield is sufficient." Id.; see also Murphy v. Cincinnati Insurance Co., 772 F.2d 273, 276 n. 1 (6th Cir.1985).
12
A change in the applicable state law does not necessarily require a remand for reconsideration of the case in light of the new standards. Here the district court's conclusion could be upheld under both the old and new standards. Indeed, the district court concluded:
13
Liberty Mutual did not act in bad faith in failing to settle the claim against its insured, UPS. Liberty Mutual clearly made a mistake in judgment, and it probably acted negligently. Neither mistake nor negligence, however, establish bad faith under the law of Michigan, so plaintiff's claim must fail.
14
Were this the only language reflecting the court's application of the law to the facts, we would be inclined to conclude that, despite the court's explicit reliance on Awrey and Medley, the court's analysis was proper under Wakefield. Unfortunately, the court also stated:
15
Applying the standards of Wakefield, Medley, and Awrey to the facts of the present case, the court cannot conclude that plaintiff American Home has met its burden of showing that Liberty Mutual engaged in the "conscious doing of wrong because of dishonest purpose or moral obliquity."
16
(citing Awrey, 728 F,2d at 355 (quoting Medley, 337 N.W.2d at 913)). The language from Awrey and Medley relied upon by the district court is the precise language subsequently disapproved of by the court in Commercial Union v. Liberty Mutual. Permission for leave to appeal has been granted in Liberty Mutual and we believe the appropriate course is to remand this case for reconsideration by the district court in light of the principles that we expect the Michigan Supreme Court to announce.
17
Finally, American argues that application of M.C.L.A. Sec. 600.6013 requires that Liberty pay the prejudgment and post-judgment interest owed by American on the judgment. The district court held that American was not entitled to interest because judgment was not entered on the jury's verdict and because the settlement agreement made no provision for the payment of interest. The settlement agreement, at paragraph 24, specifically states that
18
The parties to this agreement acknowledge that all payments to be made under paragraphs 3 through 15 hereof are made in settlement of a claim, and represent damages, for wrongful death.
19
(emphasis added). The absence of language stating that any part of the payments represents interest adequately distinguishes this case from Celina Mutual Insurance Co. v. Citizens Insurance Co., 133 Mich.App. 655, 349 N.W.2d 547 (1984). The district court did not err in rejecting the claim for interest.
20
The judgment of the district court is affirmed in part, reversed in part, and remanded for further consideration consistent with this opinion.
*
Honorable Timothy S. Hogan, Senior United States District Judge for the Southern District of Ohio, sitting by designation
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12/27/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 8, 2017 Session
BLOUNT COUNTY BOARD OF EDUCATION ET AL. v.
CITY OF MARYVILLE, TENNESSEE ET AL.
Appeal from the Chancery Court for Blount County
No. 2014-053 Telford E. Forgety, Jr., Chancellor
No. E2017-00047-COA-R3-CV
This is one of four separate actions currently before this Court with the common issue of
whether the version of Tennessee Code Annotated § 57-4-306(a)(2)(A) in effect prior to
the July 2014 amendment of that statute required a municipality governed by its own
liquor-by-the-drink referendum and operating its own school system to share one-half of
its liquor-by-the-drink tax revenue with the county in which the municipality was located
when the county had not enacted a liquor-by-the-drink referendum. The county
commenced the instant action by filing a complaint requesting declaratory judgment of its
asserted right to a portion of liquor-by-the-drink tax revenue collected within the two
municipalities involved in this appeal. Following the trial court’s denial of a motion to
dismiss filed by the municipalities, the municipalities filed a motion for summary
judgment. The county subsequently amended its complaint to, in the alternative, request
reimbursement of the portion of liquor-by-the-drink tax revenue it had previously
distributed to the municipalities’ respective school systems from liquor-by-the-drink
gross receipts collected at private clubs located within the county but outside the
incorporated limits of the municipalities. The county then filed a motion for partial
summary judgment on the original issue of the cities’ purported liability to share a
portion of their liquor-by-the-drink tax revenue with the county. Following a hearing, the
trial court granted summary judgment in favor of the municipalities, finding that the
municipalities were entitled, respectively, to keep all liquor-by-the-drink tax monies
distributed to them by the Tennessee Commissioner of Revenue (“the Commissioner”).
The county filed a motion to alter or amend, which the trial court granted insofar as it
found that the county’s claims for alternative relief had not been properly before the court
when the judgment was entered. Upon subsequent competing motions for summary
judgment, the trial court granted summary judgment in favor of the municipalities on the
alternative claims as well. The county has appealed. Determining that the municipalities
were not required under the applicable version of the statute to share their liquor-by-the-
drink tax revenues with the county but that the county was required to share tax revenue
from liquor-by-the-drink sales within unincorporated areas of the county with all school
systems in the county, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and RICHARD H. DINKINS, J., joined.
Robert N. Goddard, Maryville, Tennessee, for the appellant, Blount County Board of
Education.
Craig L. Garrett, Maryville, Tennessee, for the appellant, Blount County, Tennessee.
Stephanie D. Coleman, Richard A. McCall, and Shelly L. Wilson, Knoxville, Tennessee,
for the appellees, City of Maryville, Tennessee, and City of Alcoa, Tennessee.1
Melanie E. Davis, Maryville, Tennessee, for the appellee, City of Maryville, Tennessee.
OPINION
I. Factual and Procedural Background
The facts underlying this action are essentially undisputed. Tennessee Code
Annotated § 57-4-301(c) (2013 & Supp. 2017) provides for a tax “to include each and
every retail” of an alcoholic beverage sold for consumption on the premises by various
establishments delineated in section -301, such as restaurants, hotels, sports facilities, and
private clubs. This tax is commonly referred to as a “liquor-by-the-drink tax.” See Tenn.
Code Ann. § 57-4-306 (2013 & Supp. 2017); Copper Cellar Corp. v. Jackson, 762
S.W.2d 560, 562 (Tenn. 1988). Tennessee Code Annotated § 57-4-306, originally
enacted in 1967, prescribes the manner in which proceeds from the liquor-by-the-drink
tax are to be distributed, primarily in support of public education. At issue in this action
is the version of section -306 in effect prior to the Tennessee General Assembly’s 2014
amendment of that statutory section (“2014 Amendment”). See 2014 Tenn. Pub. Acts,
Ch. 901 § 1 (H.B. 1403). Particularly at issue is statutory language added to subsection
-306(a)(2)(A) through an amendment made by the General Assembly in 1982 (“1982
Amendment”). See 1982 Tenn. Pub. Acts, Ch. 942, §§ 1-2 (S.B. 1817).
1
On December 1, 2017, the appellees filed a notice of substitution, giving notice that Shelly L. Wilson
would be substituted as co-counsel in place of J. Douglas Overbey, who had served as co-counsel on
appeal up to that point.
2
The City of Maryville (“Maryville”) passed a referendum authorizing liquor-by-
the-drink sales in 1996, and the City of Alcoa (“Alcoa”) passed such a referendum in
2004. The citizens of Blount County (“the County”) had not approved a liquor-by-the-
drink referendum at the time this action was commenced. Prior to Maryville’s and
Alcoa’s (collectively, “the Cities’”) respective approval of liquor-by-the-drink sales,
private clubs located within each city’s boundaries legally sold alcohol for consumption
on the premises, and the Commissioner distributed one-half of those revenues to each
municipality pursuant to Tennessee Code Annotated § 57-4-306(a). Each of the Cities
had continually operated its own separate school system since before the 1967 enactment
of the liquor-by-the-drink statutory scheme by the General Assembly, Maryville since
1913 and Alcoa since 1919.
Since passage of their respective referendums, the Cities had continued to receive
fifty percent of gross receipt taxes arising from sales of liquor by the drink. The Cities
had not distributed any of their liquor-by-the-drink revenue to the Blount County Schools
or to Blount County generally. Simultaneously, within the unincorporated areas of the
County, private clubs had legally sold alcohol for consumption on the premises through
the time this action was commenced. The Commissioner had distributed one-half of
those funds to the County, which in turn distributed one-quarter (or one-half of the half it
had received) among the school systems in the County, including those managed by the
Cities.
On May 23, 2014, the Blount County Board of Education (“the County Board”)
filed a complaint against the Cities in the Blount County Chancery Court (“trial court”),
seeking declaratory judgment regarding the rights and responsibilities of the parties
concerning the liquor-by-the-drink tax. The County Board requested, inter alia, an order
directing the Cities to remit to the County “the amount of the Liquor Tax not distributed
by [the Cities] to [the County Board] in the same manner as county property tax for
schools is expended and distributed,” plus prejudgment interest. The County estimated
the amount of back liquor-by-the-drink tax revenue it was purportedly owed to be
approximately $503,212.00 from Maryville and approximately $284,601.00 from Alcoa.
Maryville and Alcoa each filed a separate answer to the complaint on August 29,
2014, asserting, as pertinent to this appeal, that (1) Title 57, Chapter 4 of the Tennessee
Code was not applicable to the County because the County had not authorized liquor-by-
the-drink sales, (2) the County’s complaint failed to state a claim upon which relief could
be granted pursuant to Tennessee Rule of Civil Procedure 12.02(6), and (3) Tennessee
Code Annotated § 57-4-306(a) (2013) did not operate to require the Cities to remit any
part of their respective portions of liquor-by-the-drink tax proceeds received from the
Commissioner to the County’s school system. The Cities further argued, inter alia, that
3
the Blount County Board of Education was not a proper party to initiate and maintain an
action against the Cities.
On November 4, 2014, the County Board filed a motion to amend the complaint in
order to add the County as a plaintiff. The Cities, acting together, filed a response
objecting to the motion to amend on November 18, 2014. The Cities concomitantly filed
a motion to dismiss the original complaint, and the County Board filed a response. On
December 29, 2014, the County Board filed a motion for judgment on the pleadings
pursuant to Tennessee Rule of Civil Procedure 12.03, and, in conjunction with Blount
County, an amended motion to amend the complaint in order to add Blount County as a
plaintiff. The Cities subsequently filed a reply, inter alia, again objecting to the County
Board’s motion to amend the complaint. Following a hearing conducted on June 2, 2015,
the trial court entered an order on June 25, 2015, denying the Cities’ motion to dismiss
and granting the County Board’s motion to amend the complaint. We will hereinafter
refer to the plaintiffs collectively as “the County.”
In its June 2015 order, the trial court set the County’s motion for judgment on the
pleadings for subsequent hearing. The Cities then filed a motion for summary judgment
on June 26, 2015, and the County filed its amended complaint on June 30, 2015, with the
Cities subsequently filing an answer. On August 26, 2015, the County filed another
motion to amend its complaint, adding, as pertinent to this appeal, alternative claims
requesting reimbursement of the portion of liquor-by-the-drink tax revenue it had
previously distributed to the Cities’ respective school systems from liquor-by-the-drink
gross receipts collected at private clubs located within the County but outside the
incorporated limits of the Cities from November 1992 through the commencement of this
action in August 2014. The County requested an alternative judgment against Maryville
in the amount of $270,572.75 and against Alcoa in the amount of $90,602.12. The
County then filed a motion for partial summary judgment on its original claims on
October 1, 2015. Upon the August 2015 motion to amend and the Cities’ supplemental
response, the trial court conducted a hearing on October 20, 2015, and entered an order
on November 9, 2015, granting the County’s motion to amend the complaint to add the
alternative claims.
In the meantime, the General Assembly amended Tennessee Code Annotated §
57-4-306(a)(2), effective July 1, 2014, setting forth, inter alia, a detailed process by
which counties that were owed funds by municipalities under Tennessee Code Annotated
§ 57-4-306 could seek those funds and negotiate settlements as applicable. See 2014
Tenn. Pub. Acts, Ch. 901 § 1 (H.B. 1403). The 2014 Amendment included a distinction
between the liquor-by-the-drink tax proceeds received by a local political subdivision in
the time period spanning July 1, 2014, until June 30, 2015, and those proceeds received
after July 1, 2015, when, according to the 2014 Amendment, the statute would revert
4
back to its pre-amendment language. See Tenn. Code Ann. § 57-4-306(b)-(c) (Supp.
2014); 2014 Tenn. Pub. Acts, Ch. 901 § 1 (H.B. 1403). However, the General Assembly
has also amended Tennessee Code Annotated § 57-4-306 each year since the 2014
Amendment, extending the amended language in subsequent years, one year at a time.
See 2015 Tenn. Pub. Acts, Ch. 220 §§ 1, 2 (S.B. 990); 2016 Tenn. Pub. Acts, Ch. 885 §§
1, 2 (H.B. 1691); 2017 Tenn. Pub. Acts, Ch. 346 §§ 1, 2 (S.B. 1262).
Upon the Cities’ motion for summary judgment filed in June 2015 and the
County’s motion for partial summary judgment filed in October 2015, the trial court
entered an order on December 22, 2015, granting summary judgment in favor of the
Cities and dismissing the County’s amended complaint. In response to the Cities’
argument that Title 57, Chapter 4 was inapplicable to the County, the court found that
because the Commissioner had distributed to the County a portion of liquor-by-the-drink
tax revenue collected from private clubs located within unincorporated areas of the
County, “there has been a long-standing practical construction” that Tennessee Code
Annotated § 57-4-306 applied to the County. The court also concluded that the language
of Tennessee Code Annotated § 57-4-306(a) (2013) was ambiguous as to whether a
municipality that operated its own school system and had passed a liquor-by-the-drink
referendum was required to share the local political subdivision’s portion of liquor-by-
the-drink tax receipts with the County. However, upon analysis of the legislative history
surrounding the 1982 Amendment and contemporaneous attorney general’s opinions, the
court determined that because the Cities operated their own school systems, they were not
required to share their liquor-by-the-drink tax revenue with the County.
In also dismissing the County’s alternative claims, the trial court found that under
Tennessee Code Annotated § 57-4-306 (2013), “it [was] not inappropriate that the
County divided the [liquor-by-the-drink] funds it received (from private clubs, etc.,
located outside the Cities) pro-rata with the Cities.” Upon the County’s subsequent
motion to alter or amend the December 2015 judgment, the court entered an order on
June 21, 2016, finding that the alternative claims had not been properly before the court
and amending the December 2015 order to dismiss solely the County’s original claims.
On June 29, 2016, the Cities filed a motion for summary judgment on the
County’s alternative claims regarding those liquor-by-the-drink tax monies that the
County had previously shared with the Cities’ school systems. The County responded by
filing its own motion for summary judgment on its alternative claims on August 5, 2016.
Following a hearing conducted on December 7, 2016, the trial court again granted
summary judgment in favor of the Cities, dismissing the County’s alternative claims.
The court found that, pursuant to Tennessee Code Annotated § 57-4-306(a) (2013), the
County was required to share the liquor-by-the-drink tax revenue it received from private
club sales collected in unincorporated areas of the County with the Cities’ school systems
5
in the same manner as the county property tax was expended and distributed, by average
daily attendance in each school system located within the County. The court entered an
order to this effect, incorporating its memorandum opinion, on December 22, 2016.
The County timely appealed. Upon a motion to consolidate filed by the appellants
in a separate action sharing the same overarching question of statutory interpretation, this
Court entered an order on May 26, 2017, granting the motion “only to the extent that
these cases shall be set for oral argument on the same docket and on the same day.”2
II. Issues Presented
Blount County presents the following issues on appeal, which we have restated as
follows:
1. Whether the trial court erred by declining to find that the version of
Tennessee Code Annotated § 57-4-306(a)(2)(A) in effect prior to the
2014 Amendment required the Cities, as municipalities governed by
their own liquor-by-the-drink referendums and operating their own
school systems, to share one-half of their liquor-by-the-drink tax
revenue with the County when the County had not enacted a liquor-
by-the-drink referendum.
2. Whether the trial court erred by declining to find that the pre-2014
version of Tennessee Code Annotated § 57-4-306(a)(2) required that
one-half of all liquor-by-the-drink sales tax revenue received by the
Cities must be distributed in support of education in the same
manner as the County property tax is distributed.
3. Whether the trial court erred by finding that the County was required
to share with the Cities the liquor-by-the-drink sales tax revenue
received from the Commissioner, for receipts collected in
unincorporated areas of the County, in the same manner as the
county property tax for schools is distributed.
2
The other three cases currently before this Court on the same overarching issue are Bradley Cty. Sch.
Sys. by and through the Bradley Cty. Bd. of Educ. v. City of Cleveland, No. E2016-01030-COA-R3-CV;
Sullivan Cty. v. City of Bristol, No. E2016-02109-COA-R3-CV; and Washington Cty. Sch. Sys. v. City of
Johnson City, No. E2016-02583-COA-R9-CV.
6
III. Standard of Review
The grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)
(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court
must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250.
“Statutory construction is a question of law that is reviewable on a de novo basis without
any presumption of correctness.” In re Estate of Tanner, 295 S.W.3d 610, 613 (Tenn.
2009).
As our Supreme Court has explained concerning the requirements for a movant to
prevail on a motion for summary judgment pursuant to Tennessee Rule of Civil
Procedure 56:
We reiterate that a moving party seeking summary judgment by attacking
the nonmoving party’s evidence must do more than make a conclusory
assertion that summary judgment is appropriate on this basis. Rather,
Tennessee Rule 56.03 requires the moving party to support its motion with
“a separate concise statement of material facts as to which the moving party
contends there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each
fact is to be set forth in a separate, numbered paragraph and supported by a
specific citation to the record.” Id. When such a motion is made, any party
opposing summary judgment must file a response to each fact set forth by
the movant in the manner provided in Tennessee Rule 56.03. “[W]hen a
motion for summary judgment is made [and] . . . supported as provided in
[Tennessee Rule 56],” to survive summary judgment, the nonmoving party
“may not rest upon the mere allegations or denials of [its] pleading,” but
must respond, and by affidavits or one of the other means provided in
Tennessee Rule 56, “set forth specific facts” at the summary judgment
stage “showing that there is a genuine issue for trial.” Tenn. R. Civ. P.
56.06. The nonmoving party “must do more than simply show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., 475 U.S. [574,] 586, 106 S.Ct. 1348 [(1986)]. The nonmoving party
must demonstrate the existence of specific facts in the record which could
lead a rational trier of fact to find in favor of the nonmoving party. If a
summary judgment motion is filed before adequate time for discovery has
been provided, the nonmoving party may seek a continuance to engage in
additional discovery as provided in Tennessee Rule 56.07. However, after
7
adequate time for discovery has been provided, summary judgment should
be granted if the nonmoving party’s evidence at the summary judgment
stage is insufficient to establish the existence of a genuine issue of material
fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence
the nonmoving party comes forward with at the summary judgment stage,
not on hypothetical evidence that theoretically could be adduced, despite
the passage of discovery deadlines, at a future trial.
Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil
Procedure 56.04, the trial court must “state the legal grounds upon which the court denies
or grants the motion” for summary judgment, and our Supreme Court has instructed that
the trial court must state these grounds “before it invites or requests the prevailing party
to draft a proposed order.” See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316
(Tenn. 2014).
IV. Distribution of Liquor-by-the-Drink Tax Revenue
The County contends that the trial court erred by finding that the version of
Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013) in effect prior to the 2014
Amendment did not require the Cities to share one-half of their liquor-by-the-drink tax
revenue with the County’s school system. The Cities assert that the trial court properly
interpreted the governing statute as directing that because the Cities each operated their
own school systems, the portion of their liquor-by-the-drink revenue not paid into the
state’s general education fund was to be split between each City’s respective school
system and the City itself. Upon careful review, we determine that the governing statute
was ambiguous in that the distribution scheme for a city operating its own school system
could be reasonably interpreted in more than one way. Having therefore analyzed the
surrounding statutory scheme, the legislative history, and other applicable authorities, as
well as the record in this action, we conclude that the trial court did not err in determining
that the Cities were not required to share one-half of their liquor-by-the-drink tax revenue
with the County’s school system.
In conducting this analysis, we adhere to the following longstanding principles of
statutory interpretation:
When dealing with statutory interpretation, well-defined precepts apply.
Our primary objective is to carry out legislative intent without broadening
or restricting the statute beyond its intended scope. Houghton v. Aramark
Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In construing
legislative enactments, we presume that every word in a statute has
meaning and purpose and should be given full effect if the obvious
8
intention of the General Assembly is not violated by so doing. In re
C.K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is clear, we
apply the plain meaning without complicating the task. Eastman Chem.
Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). Our obligation is
simply to enforce the written language. Abels ex rel. Hunt v. Genie Indus.,
Inc., 202 S.W.3d 99, 102 (Tenn. 2006). It is only when a statute is
ambiguous that we may reference the broader statutory scheme, the history
of the legislation, or other sources. Parks v. Tenn. Mun. League Risk
Mgmt. Pool, 974 S.W.2d 677, 679 (Tenn. 1998). Further, the language of a
statute cannot be considered in a vacuum, but “should be construed, if
practicable, so that its component parts are consistent and reasonable.”
Marsh v. Henderson, 221 Tenn. 42, 424 S.W.2d 193, 196 (1968). Any
interpretation of the statute that “would render one section of the act
repugnant to another” should be avoided. Tenn. Elec. Power Co. v. City of
Chattanooga, 172 Tenn. 505, 114 S.W.2d 441, 444 (1937). We also must
presume that the General Assembly was aware of any prior enactments at
the time the legislation passed. Owens v. State, 908 S.W.2d 923, 926
(Tenn. 1995).
In re Estate of Tanner, 295 S.W.3d at 613-14.
A. Ambiguity of Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013)
The version of Tennessee Code Annotated § 57-4-306 in effect when this action
was commenced provided in pertinent part:
(a) All gross receipt taxes collected under § 57-4-301(c) shall be
distributed by the commissioner as follows:
(1) Fifty percent (50%) to the general fund to be earmarked for
education purposes; and
(2) Fifty percent (50%) to the local political subdivision as
follows:
(A) One half (½) of the proceeds shall be expended and
distributed in the same manner as the county property
tax for schools is expended and distributed; provided,
however, that except in counties having a population
of not less than twenty-seven thousand nine hundred
(27,900) nor more than twenty-seven thousand nine
9
hundred twenty (27,920), according to the 1980 federal
census or any subsequent federal census, any proceeds
expended and distributed to municipalities which do
not operate their own school systems separate from the
county are required to remit one half (½) of their
proceeds of the gross receipts liquor-by-the-drink tax
to the county school fund; and
(B) The other one half (½) shall be distributed as follows:
(i) Collections of gross receipts collected in
unincorporated areas, to the county general
fund; and
(ii) Collections of gross receipts in incorporated
cities and towns, to the city or town wherein
such tax is collected.
(b) Notwithstanding subdivision (a)(2), the fifty percent (50%) of the
gross receipt taxes allocated to local political subdivisions by
subdivision (a)(2) and collected in a municipality which is a premier
tourist resort shall be distributed to and expended by such
municipality for schools in such municipality.
Tenn. Code Ann. § 57-4-306 (2013).
The applicable version of Tennessee Code Annotated § 57-4-301(c) (2013),
referenced in subsection -306(a), provided:
(c) In addition to the privilege taxes levied in subdivision (b)(1), there is
further levied a tax equal to the rate of fifteen percent (15%) of the
sales price of all alcoholic beverages sold for consumption on the
premises, the tax to be computed on the gross sales of alcoholic
beverages for consumption on the premises for the purpose of
remitting the tax due the state, and to include each and every retail
thereof.3
3
Effective May 9, 2017, the General Assembly amended Tennessee Code Annotated § 57-4-301(c) to
designate the prior version of subsection -301(c) as -301(c)(1) and add a subsection -301(c)(2). See 2017
Tenn. Pub. Acts, Ch. 338 § 4 (S.B. 798).
10
Subsection -301(b)(1) (2013 & Supp. 2017) sets forth privilege taxes to be paid to the
alcoholic beverage commission by “[e]ach applicant for an on-premises consumption
license” during the application process and on an ongoing basis as the privilege is
exercised, according to such criteria as the type of seller, seating capacity, and percentage
of gross sales. Subsection -301(c), in both its prior and current versions, thus adds to the
privilege taxes levied in -301(b)(1) the fifteen-percent, liquor-by-the-drink tax applied to
alcoholic beverages consumed on the premises. Pursuant to subsection -306(a)(1), which
remains unchanged since the version governing here, all of the gross receipt liquor-by-
the-drink taxes are to be distributed by the Commissioner, with fifty percent allocated to
the state’s general fund, where they are earmarked for education purposes. Tenn. Code
Ann. § 57-4-306(a)(1) (2013 & Supp. 2017). Up to this point, the clarity of section -306
is not in dispute.
At issue in this action is the second fifty percent of the gross receipt taxes, which,
under the governing version of the statute, were to be distributed to the “local political
subdivision.” See Tenn. Code Ann. § 57-4-306(a)(2) (2013). Particularly at issue is the
distribution of the twenty-five percent (half of the fifty percent returned to the local
political subdivision by the Commissioner) as set forth in subsection -306(a)(2)(A). The
phrase, “local political subdivision,” is not expressly defined in Title 57, Chapter 4. In
general, a “political subdivision” may be defined as “[a] division of a state that exists
primarily to discharge some function of local government.” BLACK’S LAW DICTIONARY
1197 (8th ed. 2004). For example, within Tennessee’s Governmental Tort Liability Act,
a “governmental entity” is defined in part as “any political subdivision of the state of
Tennessee including, but not limited to, any municipality, metropolitan government,
county, utility district, school district . . . .” Tenn. Code Ann. § 29-20-102(3)(A) (2012 &
Supp. 2017) (emphasis added). Accordingly, the County and each of the Cities are local
political subdivisions of the state. However, whether the applicable version of Title 57,
Chapter 4 applied to a local political subdivision that had not authorized liquor-by-the-
drink sales is a separate question, which we will address in a subsequent portion of this
analysis.
We note that the plain language of Tennessee Code Annotated § 57-4-
306(a)(2)(B) (2013), which disposed of the final twenty-five percent of liquor-by-the-
drink gross receipt taxes, is not in dispute. This subsection provided that twenty-five
percent of gross receipt taxes (or fifty percent of the revenue returned to the local
political subdivision by the Commissioner) would be distributed to a county’s general
fund if the gross receipt taxes were collected in unincorporated areas of the county and to
a city or town if the gross receipt taxes were collected in that city or town. Tenn. Code
Ann. § 57-4-306(a)(2)(B) (2013). The applicable version of subsection -306(b), which
provided for distribution of gross receipt taxes collected in a municipality that was a
premier tourist resort, as that term was defined in Tennessee Code Annotated § 57-4-
11
102(26) (2013), is also not in dispute. The question of statutory interpretation at issue is
thus narrowed to the distribution scheme set forth for twenty-five percent of the gross
receipt taxes from liquor-by-the-drink revenue in subsection -306(a)(2)(A) (2013).
In the applicable version, subsections -306(a)(2)(A) and -306(a)(2)(B) were joined
by a semi-colon and the coordinating conjunction, “and.” Subsection -306(a)(2)(A), up
to the conjunction joining it to -306(a)(2)(B), stated:
One half (½) of the proceeds shall be expended and distributed in the same
manner as the county property tax for schools is expended and distributed;
provided, however, that except in counties having a population of not less
than twenty-seven thousand nine hundred (27,900) nor more than twenty-
seven thousand nine hundred twenty (27,920), according to the 1980
federal census or any subsequent federal census, any proceeds expended
and distributed to municipalities which do not operate their own school
systems separate from the county are required to remit one half (½) of their
proceeds of the gross receipts liquor-by-the-drink tax to the county school
fund; . . . .
The paragraph began with an independent clause, ending with the first semi-colon, which
provided: “One half (½) of the proceeds shall be expended and distributed in the same
manner as the county property tax for schools is expended and distributed; . . . .” This
statement, which stood as its own sentence prior to the 1982 Amendment, was linked in
the applicable version to an additional clause by the semi-colon, beginning with
“provided, however that . . . .”
We note that when the 1982 Amendment was approved by the General Assembly,
“provided” began a new sentence and that the punctuation was subsequently changed to a
semi-colon, apparently during codification of the 1982 Amendment. However, we find
this distinction immaterial to analysis of the statute. The meaning of “provided,” as it
was utilized here as a conjunction, is “[o]n the condition or understanding (that).” See
BLACK’S LAW DICTIONARY at 1261-62. Combined with “however,” “provided”
functioned as a conjunctive adverbial phrase, with the standard function of “join[ing] two
clauses and indicat[ing] the relationship between them.” See generally BRYAN A.
GARNER, THE REDBOOK, A MANUAL ON LEGAL STYLE, 207 (3d ed. 2013).
A semi-colon, when utilized in its non-listing function, separates two independent
but related clauses and “generally signals addition or contrast.” See CHERYL GLENN &
LORETTA GRAY, HODGES’ HARBRACE HANDBOOK 63 (16th ed. 2007). Of course, a
period also separates independent clauses, but one sentence does not follow another in a
vacuum. In this instance, the amended language began with the conjunctive adverbial
12
phrase, “provided, however,” which through its meaning connected the proviso to the
clause preceding it, whether that connection was signaled by a semi-colon, as in the
printed version of the amended statute, or simply through the neighboring proximity of
two sentences and context of those sentences, as in the version of the 1982 Amendment
passed by the legislature. The phrase, “provided, however,” was followed by the
nominalizer, “that,” signaling what was provided, which in this case was the entire clause
up to the end of subsection -306(a)(2)(A). The use of “provided that” thus created a
proviso, or “a provision that begins with the words provided that and supplies a
condition, exception, or addition.” See BLACK’S LAW DICTIONARY at 1262 (emphasis in
original).
Immediately following “provided, however that . . .” the General Assembly
included an exception, narrowly drawn as applying “in counties having a population of
not less than twenty-seven thousand nine hundred (27,900) nor more than twenty-seven
thousand nine hundred twenty (27,920).” Tenn. Code Ann. § 57-4-306(a)(2)(A) (2013).
As the legislative history of the 1982 Amendment indicates, the General Assembly
designed the exception to the proviso to apply solely to Bedford County. Given that the
above population parameters do not apply to Blount County, we can, for the purpose of
our analysis, omit the exception, yielding the following:
One half (½) of the proceeds shall be expended and distributed in the same
manner as the county property tax for schools is expended and distributed;
provided, however, that . . . any proceeds expended and distributed to
municipalities which do not operate their own school systems separate from
the county are required to remit one half (½) of their proceeds of the gross
receipts liquor-by-the-drink tax to the county school fund; . . . .
See id.
In other words, one-half of the proceeds were to be expended and distributed in
the same manner as the county property tax for schools on the condition or understanding
that “any proceeds expended and distributed to municipalities which [did] not operate
their own school systems separate from the county [were] required to remit one half (½)
of their proceeds of the gross receipts liquor-by-the-drink tax to the county school fund.”
See id. (emphasis added). The underlined clause functioned as a restrictive relative
clause, restricting the “municipalities” to which this proviso applied to those that did not
operate their own school systems.4
4
Although the relative pronoun, “which,” generally would be used to indicate a nonrestrictive relative
clause while the relative pronoun, “that,” would be used to indicate a restrictive clause, interpreting
“which” as nonrestrictive in this instance would be nonsensical because it would mean that no
municipalities operated their own school systems. We note also that this “which” clause is not marked by
13
The Cities rely in part on this proviso as excluding them from remitting any part of
their liquor-by-the-drink proceeds to the County’s school system, whether in the manner
in which the county property tax for schools is distributed or into the County’s school
fund, because the Cities have each operated their own separate school systems since prior
to the 1967 initial enactment of the liquor-by-the-drink tax. We agree that under the plain
language of the applicable version of subsection -306(a)(2)(A), the Cities were excluded
from the proviso of remitting one-half of their proceeds into the County’s school fund
because the Cities operated their own school systems. However, it is not clear from the
structure and plain language of the first part of subsection -306(a)(2)(A) whether the
Cities’ operation of their own school systems excluded them from the general rule that
“one-half of the proceeds [were to] be expended and distributed in the same manner as
the county property tax for schools [was] expended and distributed[.]” See id.
The statute established this general rule and then set forth a condition or
understanding that applied to municipalities not operating their own schools. This
version of the statute did not clarify whether the opposite of the proviso was true, in other
words, whether a municipality operating its own school system could disregard the
general rule of distribution in the manner of county property tax and instead distribute
one-half of its proceeds to its own school system. Although the placement of the
conjunctive adverb, “however,” following “provided” in subsection -306(a)(2)(A) would
typically indicate that the proviso is in some manner antithetical to the general rule of
distribution in the manner of county property tax, it is not clear from the plain language
of subsection -306(a)(2)(A) how it would be so.
To summarize, it is possible to reasonably interpret the proviso as simply
operating to ensure that a municipality without its own school system would remit one-
half of its liquor-by-the-drink proceeds to the county within which it was located. It is
also possible to reasonably interpret the proviso as operating to require solely those
municipalities not operating their own school systems to remit proceeds to the counties in
which they were located, effectively exempting those municipalities that operated their
own school systems. The latter interpretation utilizes the longstanding maxim of
statutory construction maintaining that “the expression of one thing implies the exclusion
of all things not expressly mentioned.” See Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73,
84 (Tenn. 2001) (citing City of Knoxville v. Brown, 260 S.W.2d 264, 268 (Tenn. 1953)).
We do not find this maxim dispositive in this instance, however, because the statute is
ambiguous regarding whether the general rule of distribution in the manner of the
property tax for schools would still apply to municipalities to which the proviso does not
paired commas as a nonrestrictive relative clause normally would be. The drafters appear simply to have
made the very common grammatical error of using “which” rather than “that” as a restrictive relative
pronoun. See generally GARNER, THE REDBOOK, A MANUAL ON LEGAL STYLE at 188-90.
14
apply. Because the requirement in Tennessee Code Annotated § 57-4-306(a)(2)(A)
(2013) that municipalities without school systems must remit proceeds to counties can be
reasonably interpreted in more than one way when municipalities that do operate their
own school systems are at issue, we determine this requirement in the applicable version
of the statute to be ambiguous. See Bryant v. HCA Health Servs. of N. Tenn., Inc., 15
S.W.3d 804, 809 (Tenn. 2000) (“A statute is ambiguous if the statute is capable of
conveying more than one meaning.”).
B. Consideration of Statutory Framework, Legislative History, and Other Sources
Having determined that Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013)
was ambiguous with regard to whether municipalities with their own school systems were
required to remit a portion of liquor-by-the-drink tax proceeds to the counties in which
they were located, we now consider the statutory framework, legislative history, and
other sources surrounding the version of the statute governing this action. See Arden v.
Kozawa, 466 S.W.3d 758, 764 (Tenn. 2015) (“Where statutory language is ambiguous,
we may decipher legislative intent in other ways, including consideration of the broader
statutory scheme, legislative history, and other sources.”). We begin with the Cities’
assertion that Tennessee Code Annotated § 57-4-103(a)(1) (2013) operated to render
subsection -306 inapplicable to a county, such as Blount County, that had not passed a
liquor-by-the-drink referendum. Upon careful review, we conclude that because
subsection -103(a)(1) set forth the effectiveness of the entire statutory chapter in which
the applicable version of subsection -306(a) was located, subsection -103(a)(1) operated
to classify a “local political subdivision” receiving liquor-by-the-drink taxes from the
Commissioner as one that had passed a liquor-by-the-drink referendum. We further
conclude, however, that this did not necessarily exempt the Cities from the general
requirement of subsection -306(a)(2)(A) of distributing one-half of their respective
liquor-by-the-drink revenue in the manner of county property tax distribution.
Title 57 of the Tennessee Code is entitled, “Intoxicating Liquors.” Chapter 4 of
Title 57 is entitled, “Consumption of Alcoholic Beverages on Premises,” and it consists
of three parts: Part 1 – “General Provisions,”; Part 2 – “Administration, Enforcement,
Prohibited Acts”; and Part 3 – “Taxes and Fees.” This overall structure has remained
unchanged since the present action was commenced, as has the language of Tennessee
Code Annotated § 57-4-103(a)(1), which provides within the general provisions of Title
57:
This chapter shall be effective in any jurisdiction which authorizes the sale
of alcoholic beverages for consumption on the premises in a referendum in
the manner prescribed by § 57-3-106; provided, that, in addition to any
other method authorized for holding an election pursuant to § 57-3-106, an
15
election may be held for such sales upon adoption of a resolution by a two-
thirds (2/3) vote of the legislative body of a county or municipality.
We determine this language regarding the effectiveness of Chapter 4 to be clear
and unambiguous. Because Part 3 is within Chapter 4, Part 3 is effective in any
jurisdiction that has authorized liquor-by-the-drink sales by referendum. See In re Estate
of Tanner, 295 S.W.3d at 614 (“Any interpretation of the statute that ‘would render one
section of the act repugnant to another’ should be avoided.”) (quoting Tenn. Elec. Power
Co. v. City of Chattanooga, 114 S.W.2d 441, 444 (Tenn. 1937)). Although the statutory
scheme regarding alcoholic beverages does not provide a definition of “jurisdiction” as it
is used in subsection §-103(a)(1), we further determine that the generally accepted
definition of jurisdiction as it applies to governmental authority is applicable within the
context of a jurisdiction’s authorization of alcoholic beverage sales. Black’s Law
Dictionary defines “jurisdiction” within this context of governmental authority as a
“government’s general power to exercise authority over all persons and things within its
territory,” “geographic area within which political . . . authority may be exercised,” or
“political . . . subdivision within such an area.” BLACK’S LAW DICTIONARY at 867.
Therefore, at the time this action was commenced, Part 3 of Chapter 4 was effective in
the jurisdiction of each of the Cities, which had authorized liquor-by-the-drink sales, but
was not effective in the jurisdiction of the County, which had not authorized such sales.
The Cities argue that the ineffectiveness of Tennessee Code Annotated § 57-4-
306(a) (2013) in the jurisdiction of the County means that the Cities were not required to
remit any portion of their liquor-by-the-drink proceeds distributed by the Commissioner
to the County. However, we do not agree that this conclusion automatically follows from
subsection -103(a)(1) because the Cities, as jurisdictions having authorized the sale of
alcoholic beverages for consumption on the premises, see Tenn. Code Ann. § 57-4-
103(a)(1), and thereby local political subdivisions receiving liquor-by-the-drink gross
receipt taxes from the Commissioner, see Tenn. Code Ann. § 57-4-306(a)(2), were
required to follow the requirements of Chapter 4. This analysis leads us back to the
ambiguity previously identified in subsection -306(a)(2)(A) but does not clarify it. It is
still possible to reasonably interpret the proviso of subsection -306(a)(2)(A) as either
simply ensuring that a municipality without its own school system would remit one-half
of its liquor-by-the-drink proceeds to the county within which it was located or as
actually exempting municipalities with their own school systems, such as the Cities of
Maryville and Alcoa, from the general requirement of distributing one-half of their
liquor-by-the-drink revenue in the manner of county property tax distribution.
Inasmuch as Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013) provided that
“[o]ne half (½) of the proceeds shall be expended and distributed in the same manner as
the county property tax for schools is expended and distributed,” it is important to
16
consider the statutory scheme for expenditure and distribution of the county property tax
for schools. Tennessee Code Annotated § 49-3-315(a) (2016) provides in pertinent part:
For each LEA [local education agency] there shall be levied for current
operation and maintenance not more than one (1) school tax for all grades
included in the LEA. Each LEA shall place in one (1) separate school fund
all school revenues for current school operation purposes received from the
state, county and other political subdivisions, if any. . . . All school funds
for current operation and maintenance purposes collected by any county . . .
shall be apportioned by the county trustee among the LEAs in the county
on the basis of the WFTEADA [weighted full-time equivalent average daily
attendance] maintained by each, during the current school year. For the
purposes of making the apportionment of local school funds as set forth in
this subsection (a), and in defining the WFTEADA for the current school
year, the county director of schools and the county trustee shall be guided
by the following procedure: . . . .5
The above statute goes on to delineate the procedure by which the county director
of schools shall certify to the county trustee the weighted full-time equivalent average
daily attendance (“WFTEADA”) during the preceding school year and, in progressive
fashion, estimate “the WFTEADA in the schools of the LEAs in the county” for
successive quarters of the current and upcoming years. See Tenn. Code Ann. § 49-3-
315(a)(1)-(5). Although the statutory procedure for determining the WFTEADAs
involves county officials, the Cities, as local political subdivisions receiving liquor-by-
the-drink tax revenue, would be able to remit a portion of those gross receipt taxes
received from the Commissioner to the County’s school fund, which arguably could then
be distributed by the County according to the procedure delineated in the above statute.
See Tenn. Code Ann. § 49-3-315(a) (“Each LEA shall place in one (1) separate school
fund all school revenues for current school operation purposes received from the state,
county and other political subdivisions . . . .”) (emphasis added).
The question arises as to whether, if the County were successful in the present
action, funds remitted by the Cities to the County’s school fund would in turn be partially
apportioned to schools operated by the Cities as LEAs geographically existing within the
County. This Court recently interpreted Tennessee Code Annotated § 49-3-315(a) in
light of whether a county was required to apportion funds from its “educational capital
projects fund” to the school boards of cities located within the county. See City of Athens
Bd. of Educ. v. McMinn Cty., 467 S.W.3d 458, 459-60 (Tenn. Ct. App. 2014), perm. app.
denied (Tenn. May 14, 2015). This Court noted that, with one exception for
5
The definitions in brackets are provided pursuant to Tennessee Code Annotated §§ 49-1-103(2) (2016)
(LEA) and 49-3-302(18) (2016) (WFTEADA).
17
transportation levies not relevant here, “[a]ll school funds for current operation and
maintenance purposes collected by any county . . . shall be apportioned by the county
trustee among the LEAs,” including those LEAs operated by the cities located in the
county. Id. at 460 (quoting Tenn. Code Ann. § 49-3-315(a)) (emphasis in City of Athens).
Because the funds at issue in City of Athens had been collected by the county through
levying “a special tax designated for a capital projects fund,” this Court held that the
funds had not been collected “for current operation and maintenance purposes” and
therefore did not fall under the purview of Tennessee Code Annotated § 49-3-315(a).
City of Athens, 467 S.W.3d at 465-66 (affirming the trial court’s grant of summary
judgment in favor of the county).
In the current analysis, the County is requesting that this Court interpret the
language of Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013) to mean that twenty-
five percent (half of the amount returned to the local political subdivision by the
Commissioner) of the gross receipt liquor-by-the-drink taxes collected within the
incorporated limits of the Cities would be paid in the manner of the county property tax
to the county school fund for distribution to all of the LEAs in the County, including
those located within each of the Cities. Because such a distribution within the County of
funds obtained from a “local political subdivision” such as each of the Cities is possible,
see Tenn. Code Ann. § 49-3-315(a), we do not find the statutory scheme for expenditure
and distribution of the county property tax for schools to be dispositive of the ambiguity
previously identified in Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013).6
However, we do find the legislative history surrounding the 1982 Amendment,
which added the ambiguous language at issue to Tennessee Code Annotated § 57-4-
306(a), to be instructive of the General Assembly’s intent. Prior to the 1982 Amendment,
the subject statutory section, then codified at § 57-162, provided in full:
Distribution of collections.—All gross receipt taxes collected under
subdivision (b) of § 57-157 shall be distributed by the commissioner of
revenue as follows:
6
The County also requests that this Court compare the language of the statute at issue to that utilized by
the General Assembly when enacting the local option sales tax in 1963. See Tenn. Code Ann. § 67-6-
712(a) (2013); 1963 Tenn. Pub. Acts, Ch. 329 § 4. The County asserts that because the local sales tax
statute demonstrated a disbursement method involving the county property tax for schools according to
weighted average daily attendance of students, this Court should conclude that proceeds from the liquor-
by-the-drink gross receipts were intended to be distributed solely as in the county property tax for
schools. Finding such a foray to be far afield from the statute at issue, we decline the County’s invitation
to superimpose the local sales tax statutory scheme upon the proviso effected within the liquor-by-the-
drink statutory scheme by the 1982 Amendment to Tennessee Code Annotated § 57-4-306(a)(2)(A).
18
(a) Fifty percent (50%) to the general fund to be earmarked for
education purposes; and
(b) Fifty percent (50%) to the local political subdivision.
(1) One half (½) of the proceeds shall be expended and
distributed in the same manner as the county property
tax for schools is expended and distributed.
(2) The other one half (½) shall be distributed as follows:
(a) Collections of gross receipts collected in
unincorporated areas, to the county general
fund; and
(b) Collections of gross receipts in incorporated
cities, towns, to the city or town wherein such
tax is collected.
Tenn. Code Ann. § 57-162 (1968).
Regarding the original enactment of the statute, the County posits that because the
statute was initially effective solely in “those counties with population in excess of
235,000,” see Tenn. Code Ann. § 57-164 (1968) (emphasis added), the legislature could
not have meant for municipalities to be considered local political subdivisions under the
statute in that municipalities, initially those with a population of at least 110,000, were
not added until a 1971 amendment, see 1971 Tenn. Pub. Acts, Ch. 59 § 1. We note,
however, that by the time of the 1982 Amendment’s enactment, the General Assembly
was well aware that municipalities had been statutorily authorized to adopt liquor-by-the-
drink sales through referendum for several years. See In re Estate of Tanner, 295 S.W.3d
at 614. (“We also must presume that the General Assembly was aware of any prior
enactments at the time the legislation passed.”). Moreover, having determined the
relevant ambiguity to be contained in the proviso of the 1982 Amendment, we further
determine the County’s argument regarding the initial exclusion of municipalities in 1967
to be unavailing.
In introducing the applicable Senate bill to the Finance, Ways and Means
Committee in March 1982, Senator Albright explained the bill’s purpose as follows:
Right now, the law provides that one-half of one percent of the gross
receipts by liquor by the drink tax goes to the, to, into the school system –
19
provide into the school system – goes to the city for the school systems. In
many counties, the cities do not operate a school system. They have been
turning this over to the county because the county provides that school
system for the city. There has been some. There was a couple of ‘em. I
have a whole bunch of little cities around Chattanooga. There was a couple
of them that did not want to return this money over. They simply asked for
an Attorney General’s ruling that the legislative intent was that that’s where
it would go in the school system. And they didn’t have a school system,
they shouldn’t be getting the money. That’s an Attorney General ruling.
Our county simply said rather than have an Attorney General’s ruling,
which – cause they would like to put this in legislation. And this just
provides, however, then if proceeds expanding or distribution to
municipalities which do not operate their own school system separate from
the county, are required to remit one-half of their proceedings from the
gross receipts liquor by the drink tax to the county school fund. And that is
where it is intended to go anyway.
As the sponsoring legislator, Senator Albright then engaged in the following exchange
with a committee member, Senator Crouch:
Senator Crouch: In other words, if, uh, we [are] still operating a city
school system it doesn’t affect –
Senator Albright: It doesn’t affect you at all. It goes to the city –
Senator Crouch: They’re still getting their . . . percent?
Senator Albright: See the legislation . . . says for the school fund.
That’s what the –
Senator Crouch: Okay.
Senator Albright thus assured Senator Crouch that if a municipality were operating its
own school system, the provision added by the 1982 Amendment would not affect the
municipality because the liquor-by-the-drink taxes returned by the commissioner would
still go “to the city.”
In introducing the bill to the committee, Senator Albright referenced a “ruling” of
the attorney general. At this point in time, the attorney general had issued two opinions
interpreting the distribution scheme set forth in Tennessee Code Annotated § 57-4-306,
the first in September 1980 (“1980 AG Opinion”), see Tenn. Op. Atty. Gen. 80-457, 1980
20
WL 103875 (Sept. 19, 1980), and the second in April 1981 (“1981 AG Opinion”), see
Tenn. Op. Atty. Gen. 81-270, 1981 WL 142843 (Apr. 27, 1981). We note that “although
opinions of the Attorney General may be persuasive authority, they are not controlling.”
Beacon4, LLC v. I & L Invs., LLC, 514 S.W.3d 153, 173 (Tenn. Ct. App. 2016).
However, we do afford such opinions “‘considerable deference,’” particularly because
“‘government officials rely upon them for guidance.’” See id. (quoting State v. Black,
897 S.W.2d 680, 683 (Tenn. 1995)). As to the statutory section at issue in this action, a
series of three attorney general’s opinions, released from 1981 to 1983, are informative
concerning the situation surrounding the 1982 Amendment. Moreover, insofar as
legislators indicated while introducing and explaining the 1982 Amendment that they
were responding to various municipalities’ reliance on the attorney general’s 1980 and
1981 opinions, those opinions are integral to the legislative history as well.
The question proffered in the 1980 AG Opinion focused on the situation presented
when a municipality had passed a liquor-by-the drink referendum but the county in which
the municipality was located had not. See Tenn. Op. Atty. Gen. 80-457, 1980 WL
103875, at *1. The attorney general opined:
It is the opinion of this office that if a municipality but not the county has
approved by referendum the sale of alcoholic beverages for consumption on
the premises the fifty percent (50%) distribution, under T.C.A. § 57-4-
306(2), of the gross receipts tax collected would go entirely to the local
municipality.
Id. The attorney general further concluded:
[I]f there has been no countywide election approving the sale of alcoholic
beverages for consumption on the premises in accord with T.C.A. § 57-4-
103, then the provisions of Chapter 4 dealing with both the imposition of
the tax and the distribution of the tax would have no application to such
county and it would not be entitled to a distribution of any amounts under
T.C.A. § 57-4-306(2) which go to the local political subdivision. Such
local political subdivision, i.e., the city or town, would then be required to
expend one half of the amount received in the same manner as the county
property tax for schools would be expended within the city or town.
Id. at *2 (emphasis added). Thus, according to the 1980 AG Opinion, a municipality
acting as the local political subdivision receiving gross receipt liquor-by-the-drink taxes
would be required to expend and distribute one-half of the monies returned by the
Commissioner solely to the schools located within the municipality.
21
The 1980 AG Opinion did not address the distinction between a municipality that
operated its own school system and one that utilized a county school system to educate its
students. However, this question was the focus of the 1981 AG Opinion, with the
attorney general opining: “[T]hose municipalities which do not operate their own school
system separate from the county would be required to remit one-half of [their] proceeds
of the gross receipts liquor-by-the-drink tax to the county school fund.” Tenn. Op. Atty.
Gen. No. 81-270, 1981 WL 142843, at *1. Building on the prior analysis of Tennessee
Code Annotated § 57-4-306 in the 1980 AG Opinion, the attorney general reasoned as
follows:
If the local municipality does not operate a separate school system,
the one-half of the proceeds expended and distributed in the same manner
as the county property tax for schools as mandated by subparagraph (A)
would naturally have to be remitted to the county school fund.
It appears clear that the purpose of the statute is to earmark a certain
percentage of the proceeds of such taxes for the purpose of local education.
This objective could be accomplished by the remittance of such amount to
the county school fund where the municipality itself does not operate its
own school system.
Tenn. Op. Atty. Gen. No. 81-270, 1981 WL 142843, at *1.
In introducing to his committee the Senate bill that became the 1982 Amendment,
Senator Albright expressed an intent to codify the attorney general’s opinion, requiring
municipalities not operating their own school systems “to remit one-half of their
proceedings from the gross receipts liquor by the drink tax to the county school fund.” In
sponsoring the bill during a March 4, 1982 session of the entire Senate, Senator Albright
stated in pertinent part:
This bill . . . just puts into law what’s been the practice. And it says that
one-half of the proceeds of the gross receipt liquor by the drink to the
county school system where the city does not provide one.
The following exchange occurred in response:
Senator Darnell: Senator Albright as I understand it this is to make sure
that the funds actually go to, to the county for schools
– is that the intent of the bill? Or is that just a
peripheral sort of thing that’s involved here?
22
Senator Albright: This just makes sure – right some of, in my area in
Chattanooga – we’ve had a couple of them that had to
be told, you don’t have your own school system – the
county permits this – the statute says – can I just read
one brief sentence –
Senator Darnell: --they won’t turn over the money to the county?
Senator Albright: This would make it that they have to turn it over.
This exchange demonstrates that when he stated previously that a city would have to
distribute gross receipt taxes to the county in which it was located “where the city does
not provide one,” Senator Albright meant a city that does not provide a school system.
At the close of the March 4, 1982 session, the Senate approved the bill as sponsored by
Senator Albright.
We determine that as presented to and adopted in the Senate, the legislative intent
of the 1982 Amendment was to correct a situation in which some municipalities that did
not operate their own school systems were failing to distribute the statutorily required
portion of liquor-by-the-drink gross receipt taxes to the counties whose school systems
they utilized. As explained by the Senate sponsor, the intent was not to require
municipalities that operated their own school systems to distribute liquor-by-the-drink
revenue to the corresponding counties.
Subsequently, Representative Davis introduced the companion bill to the House
Calendar and Rules Committee on April 7, 1982, by stating in relevant part:
Mr. Chairman and Members of the Committee House Bill 2277 provides
that if, provides that in the distribution of liquor, local liquor by the drink
taxes that it will be distributed as it is now in the same fashion that local
property taxes is distributed for education. In the event that the
municipality affected operates a school system, right now the, the reason
for division in the law originally was for this percentage of the money to go
[to] education – fifty percent to the county, fifty percent to the municipality
involved. There are municipalities such as the one involved in my county
that are collecting this tax but that are, that are not operating school
systems. This simply changes the law to provide that in the event the city
does not operate a, a, the school system, that the money will go to the
county.
23
In response to a committee member’s question regarding under what circumstances the
proviso added by the 1982 Amendment would be “activated,” Representative Davis
replied:
If there’s, if a municipality is operating its own system it’ll continue to get
its share of the liquor by the drink money. Uh, only if it’s not operating a
school system and thereby using the county school system uh, will the
money that has been going to the municipality for education go instead to
the county.
The House approved the bill, with an amendment added to exclude Bedford
County, in a vote taken during a full session conducted on May 5, 1982.7 In introducing
the bill to the House as a whole during an April 8, 1982 session, Representative Davis
presented it as a remedy to a situation in which “[a]t the present time, there is no
provision . . . that those municipalities that do not operate school systems will permit the
money – which is to go to education from the liquor by the drink tax – to go to the
county.” The Senate subsequently adopted the bill as amended by the House without
further discussion.
Upon thorough review of the language of the statute in light of the statutory
framework, legislative history, and attorney general’s opinions referenced by the
legislative history, we hold that the General Assembly’s intent in enacting the 1982
Amendment to Tennessee Code Annotated § 57-4-306(a)(2)(A) was to require solely
those municipalities that did not operate their own school systems to share liquor-by-the-
drink tax proceeds with the counties in which they were located. This conclusion is also
supported by an opinion issued by the attorney general in January 1983, six months
following enactment of the 1982 Amendment (“1983 AG Opinion”). See Tenn. Op. Atty.
Gen. No. 83-36, 1983 WL 166853 (Jan. 18, 1983). Concluding that “the 1982
amendment to the statute was merely a codification of our opinion dated April 27, 1981,”
the attorney general opined in pertinent part:
It is the opinion of this office that the proper distribution of the liquor-by-
the-drink gross receipt privilege taxes under T.C.A. § 57-4-306(2)(A)
depends upon whether a municipality maintains a separate school system,
when the municipality but not the county has approved by referendum the
sale of alcoholic beverages for consumption on the premises.
***
7
During the April 7, 1982 House Calendar and Rules Committee meeting, Representative Phillips from
Bedford County explained that his county was requesting an exception because a municipality within the
county owned and paid expenses on buildings operated by the county’s school system.
24
If the municipality does operate a separate school system, it would be
entitled to the fifty percent of the liquor-by-the-drink gross receipts
privilege tax collected under T.C.A. § 57-4-306(2)(A).
Id. at *1. Although opinions of the attorney general are but persuasive authority, see
Beacon4, 514 S.W.3d at 173, we conclude that the 1983 AG Opinion merits considerable
deference given its issuance contemporaneously with the General Assembly’s enactment
of the 1982 Amendment and its consistency with the 1980 and 1981 opinions referenced
by legislators who sponsored the 1982 Amendment. See id.
C. 2014 Amendment to Tennessee Code Annotated § 57-4-306
Having concluded that the General Assembly’s intent in enacting the 1982
Amendment was to require solely those municipalities that did not operate their own
school systems to share liquor-by-the-drink tax proceeds with the counties in which they
were located, we further determine that nothing in the General Assembly’s adoption of
the 2014 Amendment contradicts this conclusion. It is undisputed that the 2014
Amendment was not adopted with retroactive application. When analyzing legislative
intent, we may view a subsequent, non-retroactive amendment as “‘declaratory of the
original legislative intent.’” See Sneed v. City of Red Bank, 459 S.W.3d 17, 32 (Tenn.
2014) (quoting Fretwell v. Chaffin, 652 S.W.2d 755, 757 (Tenn. 1983)). However, being
mindful of the thirty-two-year time span between the 1982 and 2014 Amendments, we
determine that the best indicator of legislative intent in this instance is the legislative
history surrounding the 1982 Amendment itself.
Moreover, although the 2014 Amendment provided for a process by which
counties that were owed funds by municipalities under Tennessee Code Annotated § 57-
4-306 could seek those funds and negotiate settlements as applicable, nothing in the
amended statutory language provided that municipalities operating their own
kindergarten through twelfth-grade school systems, separate from the counties in which
the municipalities were located, owed such funds to the corresponding counties. See
Tenn. Code Ann. § 57-4-306 (Supp. 2014); 2014 Tenn. Pub. Acts, Ch. 901 § 1 (H.B.
1403). As amended in 2014, Tennessee Code Annotated § 57-4-306(a) provided:
(a) All gross receipt taxes collected under § 57-4-301(c) shall be
distributed by the commissioner of revenue as follows:
(1) Fifty percent (50%) to the general fund to be earmarked for
education purposes; and
25
(2) The other fifty percent (50%) to be distributed to local
political subdivisions as follows:
(A) Collections for privileges exercised in an incorporated
municipality shall be distributed by the commissioner
to the city recorder; and
(B) Collections for privileges exercised in an
unincorporated area of the county shall be distributed
by the commissioner to the county trustee.
Subsection (a) was thus amended to expressly provide for more than one local political
subdivision, with distribution of collections for privileges exercised to be sent to the city
recorder for those collections originating from a municipality and to the county trustee
for those collections originating from unincorporated areas of a county. See Tenn. Code
Ann. § 57-4-306(a) (Supp. 2014). Subsections (b) through (h) then provided a
distribution scheme for liquor-by-the-drink proceeds received from July 1, 2014, until
June 30, 2015. See id. at -306(b)-(h).8 Although we find a detailed analysis of this
distribution scheme unwarranted in an analysis of the prior version of the statute, we have
examined the distribution scheme of the 2014 Amendment and determined that it
essentially follows the ongoing intent of the General Assembly to have a portion of the
proceeds from the liquor-by-the-drink tax benefit children who attend school within the
jurisdiction, incorporated municipality or unincorporated county, wherein the gross
receipts originated. See id. Insofar as the County argues that the 2014 Amendment
demonstrates a contrary legislative intent underlying the 1982 Amendment, the County’s
argument is unavailing.
Finally, the County posits that public policy regarding funding education equally
for all students supports the conclusion that a municipality must share its liquor-by-the-
drink tax revenue with the county in which it is located. We note, however, that
Tennessee Code Annotated § 57-3-106(a) (2013 & Supp. 2017) provides for a local
option election in any county wherein the voters may decide to either permit or forbid
“the manufacture, receipt, sale, storage, transportation, distribution and possession of
alcoholic beverages . . . .” Even in counties, such as the County in this action, that have
not approved a liquor-by-the-drink referendum, students benefit from the distribution of
fifty percent of liquor-by-the-drink gross receipt taxes to the state’s general fund,
earmarked for education. See Tenn. Code Ann. § 57-4-306(a)(1).
8
As noted previously, the General Assembly has amended Tennessee Code Annotated § 57-4-306 each
year since the 2014 Amendment, extending the amended language in subsequent years, one year at a time.
See 2015 Tenn. Pub. Acts, Ch. 220 §§ 1, 2 (S.B. 990); 2016 Tenn. Pub. Acts, Ch. 885 §§ 1, 2 (H.B.
1691); 2017 Tenn. Pub. Acts, Ch. 346 §§ 1, 2 (S.B. 1262).
26
Moreover, such an argument concerning perceived fairness of the tax distribution
scheme provided by the statute would properly be directed to the General Assembly
rather than to this Court. See, e.g., City of Athens Bd. of Educ., 467 S.W.3d at 466
(“However compelling this argument [regarding the city’s receiving its “fair share” of
property taxes designated for county capital improvements] may be, it is properly
directed to others, e.g., the General Assembly, not to this Court.”). Inasmuch as we must
apply Tennessee Code Annotated § 57-4-306 as it was amended in 1982 and as the
General Assembly intended the amendment, we hold that, as a matter of law, the
applicable version of the statute did not require the Cities to share their liquor-by-the-
drink proceeds with the County. The trial court did not err in granting summary
judgment in favor of the Cities on this issue.
V. The County’s Alternative Claims
The County also contends that the trial court erred by granting summary judgment
in favor of the Cities on the County’s alternative claims regarding liquor-by-the-drink
sales tax revenue that the County had received from the Commissioner for receipts
collected in unincorporated areas of the County from November 1992 through August
2014. Although the County had not passed a referendum authorizing liquor-by-the-drink
sales, such sales had taken place legally at private clubs within the County since at least
1992. Prior to the filing of this action, the Commissioner had distributed fifty percent of
these gross receipt taxes to the County. In turn, the County, proceeding according to its
interpretation of Tennessee Code Annotated § 57-4-306(a)(2) (2013), had expended and
distributed twenty-five percent, or half of the gross receipt taxes it had received, in the
same manner as the county property tax for schools was expended and distributed,
including distribution of a portion to the school system managed by each of the Cities.
See Tenn. Code Ann. § 49-3-315(a).
In its alternative claims for relief, the County requested that each of the Cities be
required to reimburse the funds its respective school system had received as a result of
liquor-by-the-drink sales in unincorporated areas of the County, respectively,
$270,572.75 that had been distributed to Maryville and $90,602.12 that had been
distributed to Alcoa. The Cities assert that the trial court properly found that under the
applicable version of section -306, the statutory distribution of liquor-by-the-drink gross
receipt taxes was different for counties than it was for municipalities and that the County
was required to expend and distribute the revenue it received from the Commissioner as
the county property tax for schools was expended and distributed. Upon careful review,
we determine that the trial court did not err by granting summary judgment in favor of the
Cities on this issue.
27
At the outset, we note that according to the plain language of Tennessee Code
Annotated § 57-4-103(a)(1), a “local political subdivision,” as that term was used in
Tennessee Code Annotated § 57-4-306(a)(2) (2013), would not have included the County
in this action because the County had not approved a referendum authorizing liquor-by-
the-drink sales. However, in this situation in which legal liquor-by-the-drink sales had
occurred for many years at private clubs within unincorporated areas of the County, the
Commissioner appears to have relied on subsection -306(a) to expend and distribute gross
receipt liquor-by-the-drink taxes to the originating location, in this case to the County.
To this extent, we agree with the trial court that there had been a “long-standing practical
construction,” relied upon by the Commissioner and local officials, applying subsection
-306(a) to the County for distribution of liquor-by-the-drink sales taxes collected from
private clubs within unincorporated areas. See generally Am. Civil Liberties Union of
Tenn. v. Darnell, 195 S.W.3d 612, 626 n.12 (Tenn. 2006) (“A ‘[c]onstruction of the
constitution adopted by the legislative department and long accepted and acquiesced in
by the people is entitled to great weight, and in the absence of some showing of palpable
error, is to be accepted as a correct interpretation.’”) (quoting LaFever v. Ware, 365
S.W.2d 44, 47 (1963)).
In determining that the County was required to expend and distribute the portion
of the funds it received from the Commissioner in the manner by which the county
property tax for schools was expended and distributed, the trial court in its Memorandum
Opinion examined Tennessee Code Annotated § 57-4-306(a) and made the following
specific findings in pertinent part:
We look at T.C.A. § 57-4-306(a). All gross receipts taxes collected
shall be distributed by the commissioner, that is, the State Commissioner of
Revenue.
It is telling the Commissioner of Revenue what he or she must do.
Shall be distributed as follows.
Number one, 50 percent goes to general fund. That’s the state
general fund. Commissioner of Revenue, one, sends 50 percent to the state
general fund.
Number two, 50 percent to the “local political subdivision.”
So the Commissioner of Revenue really has got only two things to
do. So, 50 percent to go to the state general fund and 50 percent to a local
political subdivision. Then the Commissioner of Revenue is done with it.
He or she is done with it.
28
But that’s not all the statute says. It goes on, (a)(2)(A). Under the
Subdivision 2, it says 50 percent to the local political subdivision. That
subdivision statute goes on. One-half (1/2) of the proceeds shall be
expended and distributed in the same manner as the county property tax for
schools is expended and distributed.
All right. Let’s stop right there for a moment. . . . [H]ow are
proceeds of the County property tax in Blount County expended and
distributed? How are they expended and distributed in Blount County?
They are expended and distributed on the basis of average daily attendance
of the County School System, versus Alcoa School System, versus
Maryville School System. That’s how they are expended and distributed.
So there’s that.
The statute goes on – leaving out some of the interim language, but
the statute goes on. It says, Any proceeds expended and distributed to
municipalities.
And that tells me that the legislature clearly anticipated and knew
that there would be funds distributed by the commissioner to the
municipalities. Otherwise, there’s no need for that language to be in [the]
statute.
Any proceeds expended and distributed to municipalities which do
not operate their own school system separate from the county are all
required to remit one-half (1/2) of their proceeds of the gross receipts back
to the county school fund.
***
[I]t’s clear to me, that the legislature knew that there were going to be
distributions both to counties and to cities.
Now, and the Court raised this in colloquy with counsel during the
argument of the motion here. What would be . . . the proper distribution of
liquor-by-the-drink funds in a situation – well let’s say in Blount County –
where Blount County had adopted liquor-by-the-drink, but Maryville and
Alcoa had not?
29
Now, the actual situation that we have here is the reverse of that.
But just for purposes of argument, for purposes of consideration to
analogize, what would be the proper distribution of the funds in Blount
County if Blount County had adopted liquor-by-the-drink, and Maryville
and Alcoa had not?
All right. We know that the only funds – in that situation, the only
funds that are generated are funds generated by sales in the county. We
know that those funds are going to come to the county trustee. What then
does the county trustee do with them?
And counsel for Blount County conceded, Okay, Judge, well, that’s
not the situation we have, by the way, here, so . . . your example doesn’t
really help us.
But I think it does, because it’s clear to me in that scenario, the
county trustee would be required to distribute the funds – to pro rate the
funds between the County School System and the City School Systems, on
the basis of the ADA, average daily attendance.
Okay. If that is the proper distribution in that scenario, how can it be
different in this one? And I don’t think it can. I don’t think it can be.
Now, the County and the School Board have argued that, look, if
you look at § 306, on the face of it, how can one conclude that it provides a
different method for distribution of liquor-by-the-drink funds actually
received by a city versus the county. The County argues that strenuously.
And again, I concur with the County, and for that matter, the Cities.
The statute is not a model of clarity. It is not a model of clarity, and has not
been for many years.
***
I do not ignore the situation as you stand back and look at it broadly. How
can this be fair, Judge, that the Cities get to keep all they collect and the
County has got to share theirs? Well, again, within constitutional limits,
the legislature doesn’t necessarily have to be strictly fair. And they did
what they did, and it is up to us to live within it.
30
We agree with the trial court on the issue of how the County was required to
distribute its liquor-by-the-drink proceeds. Returning to our analysis of the plain
language in Tennessee Code Annotated § 57-4-306(a)(2)(A) (2013), we again omit the
exception that did not apply to Blount County to yield the following:
One half (½) of the proceeds shall be expended and distributed in the same
manner as the county property tax for schools is expended and distributed;
provided, however, that . . . any proceeds expended and distributed to
municipalities which do not operate their own school systems separate from
the county are required to remit one half (½) of their proceeds of the gross
receipts liquor-by-the-drink tax to the county school fund; . . . .
See Tenn. Code Ann. § 57-4-306(a)(2)(A) (2013) (emphasis added). We have previously
determined the proviso contained in this subsection to be ambiguous insofar as it was not
clear whether the general rule of distribution in the manner of the property tax for schools
would apply to municipalities to which the proviso did not apply, in other words, those
municipalities that operated their own schools. We thereby analyzed, inter alia, the
legislative history surrounding the 1982 Amendment to hold that the General Assembly’s
intent was to add this proviso solely to affect those municipalities that did not operate
their own school systems.
The important point concerning the issue before us now is that the proviso added
by the 1982 Amendment unambiguously applied to “municipalities” and therefore did not
apply to counties. See Limbaugh, 59 S.W.3d at 84 (“[T]he expression of one thing
implies the exclusion of all things not expressly mentioned.”). The statutory distribution
required of counties was limited to the originally enacted sentence: “One half (1/2) of the
proceeds shall be expended and distributed in the same manner as the county property tax
for schools is expended and distributed[.]” See Tenn. Code Ann. § 57-4-306(a)(2)(A)
(2013).
The County requests that we compare the liquor-by-the-drink tax distribution
scheme to other statutory tax schemes benefitting education. We decline to do so
because the plain language of Tennessee Code Annotated § 57-4-306(a)(2) (2013)
regarding the distribution of liquor-by-the-drink tax funds returned by the Commissioner
to a county was unambiguous. See In re Estate of Tanner, 295 S.W.3d at 614 (“When a
statute is clear, we apply the plain meaning without complicating the task.). The County
is not entitled to relief on this issue.
31
VI. Conclusion
For the reasons stated above, we affirm the trial court’s judgment. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment and collection of costs assessed below. The costs on appeal are assessed
against the appellants, the Blount County Board of Education and Blount County,
Tennessee.
_________________________________
THOMAS R. FRIERSON, II,, JUDGE
32
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980 F.2d 1447
Gensv.District Court of Appeal***
NO. 92-2219
United States Court of Appeals,Eleventh Circuit.
Dec 09, 1992
1
Appeal From: M.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
**
Local Rule 36 case
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20 F.3d 469
Tatev.Lafleur*
NO. 93-04233
United States Court of Appeals,Fifth Circuit.
Mar 31, 1994
1
Appeal From: W.D.La.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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133 F.3d 929
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.UNITED STATES of America, Plaintiff-Appellee,v.Roman DOMINGUEZ, Defendant-Appellant.
No. 97-50360.
United States Court of Appeals, Ninth Circuit.
Jan. 20, 1998.Submitted Jan. 12, 1998.**
Before: BROWNING, KLEINFELD, and THOMAS, Circuit Judges.
1
MEMORANDUM*
2
Roman Marcel Dominguez appeals the 33-month sentence imposed after his guilty plea to importing marijuana in violation of 21 U.S.C. §§ 952 and 960 and possessing marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He contends that the district court erred by finding that he was a minor but not a minimal participant in the criminal activity. We affirm.
3
We review for clear error the district court's finding whether a defendant was a minor or minimal participant. See United States v. Felix, 87 F.3d 1057, 1061 (9th Cir.1996). A minimal participant is one who is "plainly among the least culpable of those involved in the conduct of a group." U.S.S.G. § 3B1.2, comment. (n.1); see id., comment. (n.2) (adjustment appropriate when defendant recruited for single smuggling transaction involving small amount of drugs).
4
Dominguez drove a Jeep containing about 75 pounds of marijuana across the border from Mexico. He told a customs agent that his friend Lalo asked him to take the marijuana from Tijuana to Santa Ana. Dominguez was to keep the drugs at his home while he sought further instructions from Lalo. In exchange, he was to receive $1,000 and the Jeep.
5
Dominguez contends that he was a minimal participant because he was only a courier and was vulnerable to recruitment in a smuggling enterprise because of his heroin addiction and history of depression. This contention lacks merit. Dominguez was trusted with responsibility; he knowingly imported the marijuana and planned to keep it at his home. See United States v. Davis, 36 F.3d 1424, 1437 (9th Cir.1994). Accordingly, the district court did not clearly err by finding that Dominguez was a minor but not a minimal participant. See Felix, 87 F.3d at 1061.
6
AFFIRMED.
**
The panel unanimously finds this case suitable for decision without oral argument. See 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 9th Cir. R. 36-3
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,695
EX PARTE JEFFERY SHARP, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 38,147 IN THE 33RD DISTRICT COURT
FROM BURNET 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 delivery of a
controlled substance and sentenced to thirty-five years’ imprisonment. His appeal was dismissed for
want of jurisdiction. Sharp v. State, No. 11-11-00107-CR (Tex. App.–Eastland Jul. 7, 2011)
(unpublished).
Applicant, represented on habeas corpus by the same person who represented him at trial and
on appeal, contends that he was deprived of his right to appeal through no fault of his own.
2
The habeas record shows that counsel failed to timely file a notice of appeal. We find that
Applicant is entitled to the opportunity to file an out-of-time appeal of the judgment of conviction
in Cause No. 38,147 from the 33rd Judicial District Court of Burnet County. Applicant is ordered
returned to that time at which he may give a written notice of appeal so that he may then, with the
aid of counsel, obtain a meaningful appeal. Within ten days of the issuance of this opinion, the trial
court shall determine whether Applicant is still represented by counsel and, if not, whether Applicant
is indigent. If Applicant is not represented by counsel, is indigent, and wishes to be represented by
counsel, the trial court shall immediately appoint an attorney to represent Applicant on direct appeal.
All time limits shall be calculated as if the sentence had been imposed on the date on which the
mandate of this Court issues. We hold that, should Applicant desire to prosecute an appeal, he must
take affirmative steps to file a written notice of appeal in the trial court within 30 days after the
mandate of this Court issues.
Delivered: November 23, 2011
Do Not Publish
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235 Pa. Superior Ct. 137 (1975)
Ciarolla, Appellant,
v.
Union Railroad Company.
Superior Court of Pennsylvania.
Argued November 11, 1974.
April 22, 1975.
*138 Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN DER VOORT, and SPAETH, JJ.
Paul E. Moses, with him Evans, Ivory & Evans, for appellant.
Gerald C. Paris, with him Robert L. Potter, and Reed, Smith, Shaw & McClay, for appellee.
OPINION BY CERCONE, J., April 22, 1975:
This appeal arises from the lower court's granting of the defendant-railroad's motion for a compulsory nonsuit in an action for damages brought under the Federal Employer's Liability Act, 45 U.S.C. §§ 51-60 (1971) *139 (FELA). The plaintiff's claim for relief rested upon two wholly separate accidents which occurred while plaintiff was an employee of the railroad working in their "bridge and buildings department" as a repairman. The two incidents will be separately described below.
The Peters Creek Bridge Accident
In July of 1969 Patsy Ciarolla, the plaintiff, and a crew of men were assigned to replace the steel in the Peters Creek Bridge over the Union Railroad line in Clairton, Pennsylvania. Large steel beams weighing approximately 1700 pounds were to be lifted into place by means of a device called a grip hoist. Two grip hoists would be used to lift each beam with one man operating a hoist at either end of the beam. The handle of the device, which moved through a vertical arc of thirty inches, would be pushed down and pulled up by the operator. Both the downward and upward motions would move the beam two or three inches, and the operators were required to fairly synchronize their efforts lest the beam tilt too radically toward the slower worker. When that happened, the slower worker would be forced to expend a greater effort. The work was admittedly hard, and the men requested that an air winch be used instead not because they feared injury, however, but because the winch would make their task far easier.
Operating the grip hoist was the job that Mr. Ciarolla had been assigned to do when he injured his back. According to his testimony, in his nineteen years on the railroad he had never operated a grip hoist before the Peters Creek assignment, and on the day in question he was unable to lift his end as quickly as was his partner. While jacking the hoist he began to feel "bad" and suffered back pain. Although he did not then complain to the foreman, his back injury required his hospitalization the next day.
*140 The High Grade Bridge Accident
In May and June of 1971 Mr. Ciarolla was put to work replacing the wooden walkway with steel grating on the railroad's High Grade Bridge in East Pittsburgh. Part of the work involved laying steel girders upon which the grating for the walkway would eventually rest. The girders varied in length from ten feet to forty feet, weighed approximately fifty pounds per foot, and were brought to the bridge by the railroad via flatcar. Sometimes the girders were unloaded from the flatcar by crane and sometimes manually. Until the day of plaintiff's mishap, the girders had been unloaded on the side of the tracks where they were to be placed. On this particular day, however, for a reason unexplained in the record, the girders were unloaded on the wrong side of the tracks, and Mr. Ciarolla and two other employees were directed to carry the ten-foot girders across the tracks to the place where they were to be used. According to Mr. Ciarolla, this was the hardest work he had ever been required to do by the railroad, and he had unsuccessfully requested that a crane be assigned to do the job. The work required carrying the girders over both the northbound and southbound tracks across the bridge, while being sure to walk on the railroad ties, because there were openings between the ties with only the creek twenty-five feet below. Thus, the men had to be careful with their footing and were unable to coordinate their strides, so that the girders would frequently jerk backward and forward as the men crossed the rails and secured their footing on the ties. On one occasion, as Mr. Ciarolla stepped across a rail, he felt his back snap. Since that time, apparently, he has been unable to work for the railroad.
Forseeable Risk of Harm
Were these the only facts of record in the instant case, the court's error in granting appellee's motion for *141 a compulsory non-suit would be obvious, for the law is clear that only in the most frivolous cases may the courts deny an FELA plaintiff his qualified right to a jury trial. As the United States Supreme Court stated in the landmark case of Rogers v. Missouri Pacific Railroad Co.:[1]
"The Congress when adopting the law was particularly concerned that the issues whether there was employer fault and whether that fault played any part in the injury or death of the employee should be decided by the jury whenever fair-minded men could reach these conclusions on the evidence.
......
"The decisions of this Court . . . teach that the Congress vested the power of decision in these actions exclusively in the jury in all but the infrequent cases where fair-minded jurors cannot honestly differ whether fault of the employer played any part in the employee's injury." 352 U.S. at 508, 510.
In the instant case, a jury could reasonably determine that the work the railroad required of Mr. Ciarolla involved an unreasonable risk of harm. In the Peters Creek accident reasonable minds could differ on whether requiring Mr. Ciarolla to use a grip hoist, to lift 1700 pound beams for the first time was negligent.[2] Or, the jury might have determined that Mr. Ciarolla's fellow employee was negligent in raising his end faster than Ciarolla's, thereby shifting the weight of the girders to Ciarolla.
*142 The likelihood of the jury's finding the railroad negligent with regard to the High Grade Bridge accident is even greater. One could reasonably determine that carrying a five hundred pound beam over such treacherous footing, as the load shifted with every uncoordinated stride of the three men, involved an unreasonable risk of harm, especially since the railroad's unloading procedure had previously avoided such a necessity.[3]
Causation
Thus, the remaining question is whether the potentially "negligent conduct" of the railroad caused the back injuries to Mr. Ciarolla.[4] In this regard additional facts become relevant. Since 1965, at least, Mr. Ciarolla suffered with a chronic back problem, an ailment which he had never mentioned to the railroad. Indeed, from 1965 to 1969 his back frequently bothered him so severely that he had to visit his chiropractor for relief.
Having discovered Mr. Ciarolla's history of back ailments only after these proceedings were instituted, the railroad successfully contended below that the work required of Mr. Ciarolla was not dangerous, and that his injury occurred only because of his weak back. Furthermore, the railroad argued, Mr. Ciarolla was negligent in not advising the railroad of his ailment and requesting lighter duties. Thus, Mr. Ciarolla's history of back trouble lent weight to the railroad's argument that their conduct was not negligent, and raised the possibility that Mr. Ciarolla's own negligence was the sole cause of his injury.
*143 While the contributory negligence of Mr. Ciarolla, if any, may be considered on the question of damages as a partial defense, it is improper to consider it in evaluating the propriety of the railroad's conduct. In Buffo v. Baltimore & Ohio R.R. Co., 364 Pa. 437 (1950), our Supreme Court was asked to reverse a jury verdict for plaintiff and find that plaintiff's negligence was the proximate cause of his accident. In refusing to do so the Court pertinently stated:
"Defendant's negligence cannot be determined by examining plaintiff's conduct. To do so would be to apply contributory negligence as a defense under the guise of `non negligence' of the defendant, which the Act prohibits." 364 Pa. at 442.
Thus, Mr. Ciarolla's alleged negligence may only be considered on the question of causation, and even then great deference must be given to an FELA plaintiff's right to a jury trial. As the Supreme Court stated in the Rogers Case, supra, the test of a case for the jury under the FELA "is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." 352 U.S. at 506. (Emphasis added.)
Assuming arguendo that the railroad required Mr. Ciarolla to attempt work which involved an unreasonable risk of harm, query whether one could say, with reason, that the work caused the injury to Mr. Ciarolla's back. The railroad suggests that we infer that even if the heavy work the railroad demanded of Mr. Ciarolla had not involved an unreasonable risk of injury, his back would have been injured because, given his chronic back problem, he was unable to do any weightlifting safely. The suggestion, however, is misleading, at least in an FELA case.
In Coray v. Southern Pacific Railroad Co., 335 U.S. 520 (1949), the United States Supreme Court considered, *144 and rejected, a similar argument by the railroad. Therein, the decedent had been a railroad employee who had been assigned the task of breaking-in a new man. The decedent and the new man boarded what apparently was an independently-powered, railroad "motor car" and began to follow several hundred feet behind a train the decedent pointing out various points and occurrences of interest to his understudy. While he intently explained a signal that they had just passed to the new man, he failed to notice that the train had stopped in front of him because of faulty air brakes. The distance separating the motor car and the train would have provided more than ample time for the decedent to safely stop the motor car, but his inattentiveness deprived him of that safety margin. The resulting collision caused his death. The Utah Supreme Court found that the stopped train was merely a condition upon which the decedent's supervening negligence had operated. Therefore, the Utah court concluded that it was not the train's stopping, but decedent's negligence, which caused his death. The Utah court held that the reason the train had stopped that is, its defective brakes was irrelevant to the question of causation. The United States Supreme Court reversed, however, finding that the question of causation was one properly for the jury. In so doing the Court criticized the Utah Supreme Court's sanctioning of overnice theoretical distinctions between various types of causation, stating:
"The language selected by Congress to fix liability in cases of this kind is simple and direct. Consideration of its meaning by the introduction of dialectical subtleties can serve no useful interpretative purpose." 335 U.S. at 524.
Insofar as the question of causation is concerned, there is no relevant distinction between the Coray Case and the instant case. Certainly, a jury may conclude after a full trial that the alleged negligence of the railroad *145 did not cause Mr. Ciarolla's back injury, but rather that he had suffered it because of his negligent disregard for his own safety. However, a jury could also determine, with reason, that Mr. Ciarolla's back would not have been injured had he not been overburdened. Or, finally, the jury could decide that the negligence of both parties contributed to the injury, and properly apportion the damages.[5] In any event we find that the solution was one for the jury, not the court. As the Supreme Court said in Wilkerson v. McCarthy:
"Here there are many arguments that could have been presented to the jury in an effort to persuade it that the railroad's conduct was not negligent, and many counter arguments which might have persuaded the jury that the railroad was negligent." 336 U.S. 53, 63 (1949).
Under the case law, Mr. Ciarolla's entitlement to damages, albeit apportioned, appears to be far too close a question to be resolved other than by a jury. To deprive railroad "workers of the benefit of a jury trial in close or doubtful cases is to take away a goodly portion of the relief which Congress has afforded them." Bailey v. Central Vermont Railway, Inc., 319 U.S. 350, 354 (1943). See also Blair v. Baltimore & Ohio Railroad Co., 323 U.S. 600 (1945). We are compelled to follow both the letter and spirit of these precedents.
Order and Judgment of the lower court is reversed, and the case is remanded for a new trial.
CONCURRING AND DISSENTING OPINION BY PRICE, J.:
I must dissent from the Majority's conclusion that a jury trial is necessary to resolve the issue of Union Railroad's liability for Mr. Ciarolla's injuries as to the Peters Creek Bridge accident. I have scrutinized the entire record and can find nothing which supports appellant's allegation that Union Railroad was negligent in the *146 methods it employed to construct that bridge. Therefore, even under the doctrine of Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500 (1957), I cannot find sufficient evidence of negligence to place this case before a jury.
I am unable to agree with the Majority's statement of certain facts. With regard to the Peters Creek Bridge accident, the Majority states: "According to his testimony, in his nineteen years on the railroad he had never operated a grip hoist before the Peters Creek assignment, and on the day in question he was unable to lift as quickly as was his partner. . . ." However, on cross-examination, Mr. Ciarolla stated:
"BY MR. PARIS:
Q. Mr. Ciarolla, this was not the first occasion that you operated a grip hoist. Is that correct?
A. In that manner, yes.
Q. What other occasions had you operated a grip hoist?
A. Oh, there was times when maybe we had to pull maybe two pipes or two of something together, something like that. I don't recall.
Q. But you had never used the grip hoist to raise a beam?
A. No, this was the first job I ever did with a grip hoist on a beam.
Q. Did you ever use the grip hoist after this occasion to raise beams?
A. I don't recall.
Q. Now, how long had you used the grip hoist on the Peters Creek Bridge?
A. As long as I was there, and I don't recall the date.
Q. Do you recall how many days?
A. No, I don't. . . ." (NT 54a-55a)
Mr. Ciarolla further testified:
"Q. Do you recall how many days before that that you worked and used the grip hoist?
*147 A. No, I don't. I did use it a few times, but I don't recall when." (NT 63a) (Emphasis added)
Later on cross-examination, Mr. Ciarolla testified as follows:
"Q. Can you tell the ladies and gentlemen of the Jury on how many days you used that grip hoist that you can recall?
A. How many days I used it?
Q. Yes, on the Peters Creek Bridge.
A. I don't recall. It could have been two or maybe three, I don't know. Like I said, we had different jobs and went different places." (NT 90a) (Emphasis added)
I believe that this testimony is most significant in that it indicates that Mr. Ciarolla was experienced in operating grip hoists and, consequently, aware of the difficulties he would encounter. The testimony is not sufficient, however, to permit the inference that appellant was injured on the first day he operated the grip hoist for the Peters Creek Bridge construction.
In addition, the Majority states at note 2: "The testimony indicated that grip hoists were also frequently used in much lighter work such as raising scaffolding; and, therefore, they were not specifically designed, or principally used for, lifting objects as heavy as the steel beams."
I am not able to give such an interpretation to the testimony. On cross-examination, found at page 73a of the record, Mr. Ciarolla was questioned about the capacity of a grip hoist, and responded as follows:
"Q. Do you know what the capacity of a grip hoist is?
A. No, I don't.
Q. To the best of your knowledge, then, it may be more than that to raise the beams?
A. The capacity of the machine?
Q. Yes.
*148 A. I would say it's a three-eighths inch cable, a pretty heavy cable, so
Q. It could have lifted a beam maybe two or three thousand pounds, couldn't it?
A. I would say so. It could have.
Q. And a beam that was three thousand pounds is certainly much heavier than the beams you were raising, isn't it?
A. I don't know. I don't even know what they weighed."
The record establishes that the longest beam moved by the grip hoist for the Peters Creek Bridge project weighed 1,700 pounds. The smallest beam weighed 820 pounds. All beams had to be raised approximately 28 feet.
Accepting the fact that a 1,700-pound beam had to be raised, and accepting appellant's own testimony as to the capacity of a grip hoist, I believe the record adequate to establish that a grip hoist was properly designed for the work involved, and adequate to perform the task. Moreover, testimony by the appellant, found at page 165 of the original record, establishes that two grip hoists were attached to the heavy beam even though one would have been sufficient to lift the weight. There is nothing on the record which indicates that the grip hoist was unsafe. In fact, appellant testified that the grip hoist was safe, but that some method of lifting the beams could have been used to make the work easier, but not safer:
"Q. And aside from the fact that the work you did was hard work, there was nothing else improper or unsafe about what was done, was there?
A. The grip hoist was unsafe, yes, sir.
BY THE COURT:
Q. In what way was it unsafe, Mr. Ciarolla?
A. The way you were standing.
Q. Not the way you were standing. You said the grip hoist was unsafe. Tell us how.
*149 A. No, this grip hoist itself was not unsafe, I wouldn't say that. You're referring to the grip hoist itself, am I correct?
BY MR. PARIS:
Q. Yes. There was nothing wrong with the grip hoist?
A. No.
Q. It worked properly?
A. Yes, it did.
Q. It did the job?
A. I guess, yes.
Q. Well, the beams went up, didn't they?
A. Yes, right." (NT 126a-127a)
I believe, as a matter of law that the record is devoid of any evidence of the railroad's negligence in its use of a grip hoist at the Peters Creek Bridge. Therefore, I do not believe appellant is entitled to a jury trial.
I must concur with the Majority, however, regarding the High Grade Bridge accident. While there is ample evidence of record that appellant was contributorily negligent in failing to inform the railroad of his history of back injuries, I agree with the Majority that in an FELA case, the test of a jury trial "is simply whether the proofs justify with reason the conclusion that the employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought." Rogers, supra, at 506; Heater v. The Chesapeake and Ohio Railway Company, 497 F.2d 1243, 1246 (7th Cir. 1974). I believe there is a factual issue of negligence by Union Railroad as to the High Grade Bridge accident, which should be decided by a jury.
I would therefore affirm the entry of the compulsory non-suit as to the Peters Creek Bridge cause of action, and reverse such entry and remand for trial as to the High Grade Bridge cause of action.
VAN DER VOORT, J., joins in this concurring and dissenting opinion.
NOTES
[1] 352 U.S. 500 (1957).
[2] The testimony indicated that grip hoists were also frequently used in much lighter work such as raising scaffolding; and, therefore, they were not specifically designed, or principally used for, lifting objects as heavy as the steel beams. In any event, the question is not what weight would strain the grip hoist to the breaking point but, rather, given the hoist's mechanical efficiency, what weight would forseeably strain the back of the operator to its breaking point.
[3] Cases wherein the railroad was found liable in requiring an employee to work in a strained position are collected in Annotation, 77 A.L.R. 2d 779 (1961). See also Heater v. The Chesapeake and Ohio Railway Co., 497 F.2d 1243 (7th Cir. 1974).
[4] Cases on "causation" under the FELA are collected in Annotation, 98 A.L.R. 2d 653 (1964).
[5] 45 U.S.C. § 53.
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NOT RECOMMENDED FOR PUBLICATION
File Name: 12a0117n.06
No. 10-3414
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
ADNAN BUSHATI; VALBONA BUSHATI; ) Jan 31, 2012
EUGENT BUSHATI; and ERISA BUSHATI, )
) LEONARD GREEN, Clerk
Petitioners, )
) ON PETITION FOR REVIEW OF
v. ) AN ORDER OF THE BOARD OF
) IMMIGRATION APPEALS
)
ERIC H. HOLDER, Jr., United States )
Attorney General, )
)
Respondent.
Before: SILER, CLAY, and ROGERS, Circuit Judges.
SILER, Circuit Judge. Adnan Bushati and his family were denied asylum and withholding
of removal by an immigration judge (“IJ”) in 2006. That decision was affirmed by the Board of
Immigration Appeals (“BIA”) in 2008. The BIA denied Bushati’s motion to reopen the proceedings
based on changed country conditions in Albania, and Bushati petitions this court for review of that
decision. He argues that the BIA abused its discretion by erroneously determining that the evidence
presented by Bushati was previously available and did not establish changed country conditions. For
the reasons stated below, we DENY the petition for review.
I.
Bushati, his children Eugent and Erisa, and his wife Valbona (collectively “Petitioners”) are
natives and citizens of Albania. When the Department of Homeland Security served Bushati in 2004
No. 10-3414
Bushati v. Holder
with a notice to appear and answer to charges that he was removable for remaining in the United
States beyond an authorized date, Petitioners sought asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).
Bushati alleged that he suffered ongoing persecution in Albania because of his political
beliefs and involvement with the Albanian Democratic Party. He stated that on several occasions
from 1991 to 2003 he was threatened, taken into custody by police, and beaten because of his
political opinion. Bushati’s son Eugent also suffered harassment and was the victim of an apparent
kidnapping attempt in 2002.
The IJ denied Petitioners’ applications for relief and protection from removal. The IJ found
that Petitioners’ application for asylum was untimely because it was filed more than a year after
Bushati’s entry into the United States. With regard to Petitioners’ request for withholding of
removal and CAT protection, the IJ determined that Bushati did not present sufficiently credible
testimony or corroborative evidence to support the request. Finally, the IJ concluded that Petitioners
failed to establish a clear probability of future persecution or torture because the Democratic Party
was in power in Albania. The BIA dismissed Petitioners’ appeal, adopting and affirming the IJ’s
determinations, and this court denied the petition for review. Bushati v. Mukasey, 310 F. App’x 883
(6th Cir. 2009).
On September 17, 2009, Petitioners filed a motion to reopen the proceedings with the BIA,
claiming a renewed fear of persecution in light of changed conditions in Albania. In support of the
motion, Petitioners submitted two newspaper articles regarding recent elections and a statement from
Valbona Bushati’s sister explaining that she is worried for the Bushati family’s safety because
-2-
No. 10-3414
Bushati v. Holder
“particular persons of the past system are looking for” Petitioners. Petitioners also submitted a
sworn statement from Bernd J. Fischer, a professor at Indiana University, Fort Wayne, with expertise
in Balkan history and Albanian society. Finally, Petitioners included two new asylum applications
and supporting statements from Bushati and Eugent.
The BIA denied the motion to reopen, finding that Petitioners had failed to demonstrate
changed country conditions, especially in light of the IJ’s initial adverse credibility determination
regarding Bushati. The BIA also stated that much of the information included with the motion to
reopen was previously available and could have been presented at the initial hearing in 2006.
II.
“The denial of a motion to reopen . . . is reviewed for an abuse of discretion.” Denko v. INS,
351 F.3d 717, 723 (6th Cir. 2003). Aliens are generally permitted to file one motion to reopen
proceedings within 90 days of the entry of the final order of removal. 8 U.S.C. § 1229a(c)(7). The
time and number limits do not apply, however, if a motion regarding asylum is “based on changed
country conditions arising in the country of nationality or the country to which removal has been
ordered, if such evidence is material and was not available and would not have been discovered or
presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 CFR § 1003.2(c)(3)(ii); see
also 8 CFR § 1003.23(b)(4)(i) (explaining that the same requirements of changed country conditions
and previously unavailable evidence apply to withholding of removal under the CAT).
III.
Evidence can support a motion to reopen proceedings only if it was “not available and would
not have been discovered or presented at the previous proceeding.” 8 U.S.C. § 1229a(c)(7)(C)(ii).
-3-
No. 10-3414
Bushati v. Holder
Most of the evidence submitted by Petitioners, including the statements from Bushati, his son and
sister-in-law, and much of Professor Fischer’s statement, was available in 2006 and could have been
presented then.
The asylum applications and statements from Bushati and Eugent merely discuss events that
took place prior to 2006, with the exception of the last paragraphs. Other than these last paragraphs,
which simply mention the recent elections and do not explain any changed country conditions at all,
the evidence contained in the statements could have been presented at the 2006 hearing.
Petitioners also submitted a statement from Valbona Bushati’s sister stating that “particular
persons of the past system are looking for [the Bushati] family and especially the son, Eugent Adnan
Bushati and the father, Adnan Bushati. Their return in Albania is a great danger because in our
country the real democracy did not win yet.” Although this statement was made in 2009, there is
nothing to suggest that it describes post-2006 events or that it could not have been submitted at the
initial hearing.1
Finally, much of Professor Fischer’s statement relates to Albania’s political and social
climate generally and could have been presented in 2006. The focus of the statement is the “political
culture” in Albania, which, “still informed by its Stalinist past,” “is central to the unstable conditions
in Albania and the danger to Adnan Bushati.”
1
Even assuming the sister-in-law’s statement about “particular persons of the past system” looking
for the Bushati family was based on post-2006 events, it is not evidence of changed country
conditions in Albania. It is also too vague and conclusory, as “speculative conclusions [and] mere
assertions of fear of possible persecution” are insufficient to support a motion to reopen. Harchenko
v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (internal quotation marks omitted).
-4-
No. 10-3414
Bushati v. Holder
IV.
Petitioners are correct that some of the evidence was not previously available because it
contains information about events that have taken place since 2006. The evidence submitted by
Petitioners that was not previously available includes two news articles and the portions of Fischer’s
statement that discuss the 2007 and 2009 elections and other recent events in Albania.
“‘In determining whether evidence accompanying a motion to reopen demonstrates a material
change in country conditions that would justify reopening, [the BIA] compare[s] the evidence of
country conditions submitted with the motion to those that existed at the time of the merits hearing
below.’” Bi Feng Liu v. Holder, 560 F.3d 485, 491 (6th Cir. 2009) (quoting Matter of S-Y-G, 24 I.
& N. Dec. 247, 253 (BIA 2007)) (alterations in original). “[A]n alien filing a motion to reopen based
on changed country conditions cannot rely on speculative conclusions or mere assertions of fear of
possible persecution, but instead must offer reasonably specific information showing a real threat
of individual persecution.” Harchenko, 379 F.3d at 410 (internal quotation marks omitted).
The news articles and Fischer’s statement describe current country conditions and relatively
recent events, but they do not demonstrate that the conditions in Albania have changed since 2006
or that any supposed changes warrant a reopening of the proceedings in this case. For example, the
two news articles discuss controversies surrounding the 2009 election, including problems with vote
counts and the Socialist Party’s legal challenges to the results. As portions of Fischer’s statement
indicate, however, rather than demonstrate changed country conditions, these articles actually show
the same problems that have been plaguing Albania for many years:
-5-
No. 10-3414
Bushati v. Holder
The [2009] election itself was deemed by some observers as a marked improvement
while others were not willing to consider it more tha[n] a slight improvement over
previous elections. . . . As in past elections, [public] distrust became particularly
acute during the vote counting process. . . . The[] recent events [in Albania] fall into
a familiar pattern of election fraud and violence.
Fischer Aff. ¶¶ 10, 11 (emphasis added). Fischer also stated that Bushati “should continue to fear
the police who arrested, threatened and beat him in the past,” id. ¶ 15 (emphasis added), and that
“corruption remains a widespread and serious problem” in Albania, id. ¶ 18 (emphasis added).
These statements suggest that while the conditions in Albania may be far from ideal, they have not
changed, as required by 8 U.S.C. § 1229a(c)(7)(C)(ii). See Bi Feng Liu, 560 F.3d at 492 (holding
that State Department report detailing China’s poor human rights record actually demonstrated that
the conditions in China “remained consistent”). Moreover, Bushati’s own Democratic Party won
the 2009 elections and is currently still in power, undercutting Petitioners’ argument that conditions
in Albania have changed such that the proceedings should be reopened.
Finally, Bushati has failed to address the IJ’s initial adverse credibility finding, as is required
by petitioners who file a motion to reopen. See Sako v. Gonzales, 434 F.3d 857, 866 (6th Cir. 2006).
Any evidence submitted by Petitioners in support of their motion to reopen is thus not “material”
because they remained faced with the initial adverse credibility ruling and the outcome of the
proceedings is unlikely to change. See In re Coelho, 20 I. & N. Dec. 464, 473 (BIA 1992).
For these reasons, the BIA did not abuse its discretion in finding that Petitioners did not
present evidence of changed circumstances that warranted reopening of these proceedings.
PETITION DENIED.
-6-
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489 F.2d 921
UNITED STATES of America, Upon the Relation and for the Useof the TENNESSEE VALLEY AUTHORITY,Plaintiff-Appellee and Plaintiff-Cross Appellant,v.T. INDUSTRIES, INC., Defendant-Appellant and Defendant-Cross Appellee.
Nos. 73-1279, 73-1280.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 18, 1973.Decided Jan. 15, 1974, As Amended Jan. 24, 1974.
Herbert Glazer, Memphis, Tenn., for defendant-appellant, defendant-cross appellee; John W. McQuiston, II, Memphis, Tenn., on briefs.
Beverly S. Burbage, TVA, Knoxville, Tenn., for plaintiff-appellee, plaintiff-cross appellant; Robert H. Marquis, Gen. Counsel, Beauchamp E. Brogan, Asst. Gen. Counsel, on brief.
Before WEICK and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit judge.
WEICK, Circuit Judge.
1
This is an appeal by the landowner, T. Industries, Inc. (T. Industries), and a cross-appeal by the Tennessee Valley Authority (TVA), from an award made by the District Court in a condemnation action brought by TVA. On October 11, 1966, in the condemnation proceeding TVA acquired a permanent easement1 running through a farm in Haywood County, Tennessee, owned by T. Industries and leased to Winter Garden Freezer Company.
2
The farm owned by T. Industries consisted of 1802 acres, of which 450 acres were cleared for production and the remaining acreage was timber land. The easement taken was 200 feet wide and 10,979 feet long. It consisted of 50.4 acres and ran diagonally through the farm. Of the acreage within the easement 17.5 acres were cleared farm land and 32.9 acres were timber land.
3
Three Commissioners appointed by the Court conducted a hearing for nine days, taking extensive testimony. The Commissioners found that the farm had a value of.$824,788 before the taking, and $728,816.16 after the taking. As a result the Commissioners awarded $95,971.84 to T. Industries.
4
In making the award the Commissioners valued separately the land within the easement before and after the taking, and damages to the residue. They found that the cleared land in the easement was worth $1,250 per acre before the taking, and $425 per acre after the taking. The seized timber land was valued at $194 per acre before the taking, and $19.40 per acre after the taking. The total difference in value between the land in the easement before and after the taking was $19,744.34. The Commissioners additionally found $76,227.50, damages to the residue.
5
The District Court reviewed the case de novo.2 It heard testimony for an additional day and reduced the award from $95,971.84 to.$19,000. Of this award $10,000 was compensation for the value of the easement, and $9,000 was awarded for damage to the residue. T. Industries appealed from the reduction of the Commissioners' award, and TVA appealed from the Court's award of $9,000-damages to the residue.
6
This Court is not bound by any factual findings or legal conclusions of the Commissioners or of the District Judge. 16 U.S.C. 831x.3
7
The major controversy in the case is whether the land taken was comparable to other land in the area used for growing cotton and soybeans, or whether its market value is actually much higher than the surrounding farm land due to the fact that it is a vegetable farm with unique characteristics that make it more valuable than the surrounding farm land. Both sides presented a number of witnesses on this key point.
8
J. O. Tankersley, President of T. Industries and also President of the Winter Garden Freezer Company, testified that he was involved in vegetable growing all over the United States, and that this was the cheapest land on which he operated. He said that vegetable-growing land in the United States runs in valuation from $1,500 to $5,000 per acre. He valued the T. Industries farm at $1,250 per acre.
9
Jerry Isaacs, an employee of Doane Agricultural Service, testified that Doane is in the business of managing farms for absentee landowners in forty-eight states and in foreign countries. Isaacs had worked for Doane for several years and had left farm management in 1969 to devote full time to appraisal work. He had received a B.S. degree in agriculture from the University of Missouri in 1962. Isaacs valued the farm at $831,300 before the taking, and $697,000 after the taking. He testified that he had found no other land nearby which was really comparable to the farm in question. He further testified that he had seen no other farm so specialized or fully developed.
10
Another witness who testified for the landowner was Wayne Parlow, from the adjoining county of Crockett, who had been a county trustee for more than eight years, and was presently serving in his third term in that post; he also spent considerable time in his real estate business. He testified that there was really no property comparable to that of T. Industries in either Crockett or Haywood counties, and that the farm was in a much higher state of cultivation than a farmer would need simply for the growing of cotton or soybeans. He valued the farm as worth $850,000 before the taking and $600,000 after the taking.
11
For TVA, Charles Ross, a former employee of Doane Agricultural Service, who had managed farms and made appraisals, testified that the farm was no more valuable than a cotton or soybean farm. However, on cross-examination Mr. Ross admitted that he never raised spinach or greens, and that he was not as familiar with growing greens as he was with growing other crops. He found the decline in value of the seized land to be only $4,932.38, and found no damage to the residue.
12
W. M. Reeder, a former TVA employee (from 1940 to 1968) and now its chief appraiser, testified that there was no 'class one soil' on the farm and that the soil on the farm was not particularly suited to growing vegetables. He found the reduced value of the easement taken to be $6,100, and found no damage whatsoever to the residue. On cross-examination, however, he admitted that his most recent experience in appraising vegetable farm land was in 1944 and 1945. He also revealed questionable knowledge concerning vegetable growing; for example, he stated that wet soils were undesirable for growing spinach and greens. The contrary is true. He said that turnip greens should be planted at the same time in East and West Tennessee. Vegetable farmers do not follow such a practice. Reeder stated that he had no experience in the mechanical harvesting of crops. He further stated that the wet nature of the soil made it less valuable.
13
Eugene Wetzel, a land appraiser for TVA, testified that the farm of T. Industries was comparable to much of the surrounding cotton land. He found a reduced value of the easement area to be $6,725, and found no damages to the residue. He testified that the fact that the land was planed, bedded and irrigated, did not make it more valuable. However, Mr. Wetzel also said that he had no experience in vegetable growing or farming.
14
K. L. Page also testified for TVA that the land was comparable to other farm land in Haywood County, but he admitted that he had no real background in the field of commercial vegetable growing.
15
The Commissioners' award clearly revealed that they credited the contention that the land in question had a value higher than the surrounding cotton and soybean land. We think this conclusion is amply supported by the weight of the evidence. There is no dispute that the land is planed, bedded, and irrigated; this makes its market value higher than that of surrounding land which is not nearly so highly developed. In addition, the witnesses who testified for TVA had, at best, a limited knowledge of commercial vegetable farming.
16
TVA contends that the landowner is not prevented from growing and harvesting vegetables underneath the transmission lines. The landowner contends that it is necessary to plant a cover crop under the lines to prevent weed growth, but that it cannot harvest and irrigate mechanically on the easement area because of the danger involved in operating mechanized equipment in close proximity to the high tension power lines. The parties offered conflicting evidence on this point.
17
However, the amount of the Commissioners' award leaves no doubt but that they thought the landowner was denied effective use of the land within the easement area. The District Court also found interference with farming operations due to the presence of the power lines.4 We agree with these findings.
18
The easement defined in footnote 1 of this opinion is very broad. In our opinion it grants rights to TVA which will substantially and perpetually interfere with the landowner's use. In addition, it would depreciate the value of the farm should the owner desire to sell the farm.
19
Photographic evidence revealed overripe crops in the easement area which had not been harvested. Attempts in the past had been made at hand harvesting, but Winter Garden officials testified that this method of harvesting was not economical.
20
We are of the opinion that the Commissioners' award for the value of the easement taken is correct. That award was $19,744.34.
21
The only remaining question is that of damages to the residue. The Commissioners found this damage to be $76,227.50 by use of the 'before and after' method of evaluation. The District Court found only $9,000-damage to the residue, but did not state how it arrived at that figure. Both the Commissioners and the District Court agreed that there was damage to the residue, but disagreed only as to the amount thereof. The awards for damage to the residue were based on the belief, on the part of both the Commissioners and the Court, that farming operations were adversely affected even outside the area of the easement proper. The Court specifically found that irrigation and spraying operations in the area adjacent to the easement were interfered with because of dangers present from nearby high power transmission lines.
22
The landowner sought $126,055-damages for relocation of facilities like irrigation channels, and reshaping the land so as to make it more suitable for mechanical harvesting, given the existing high power transmission lines. The District Court denied any award for such new construction. We think such denial was proper, for the landowner has not made these changes although several years have passed.
23
The landowner contended that it planned to put the balance of the uncleared land into production, and that these plans were frustrated by the presence of high power transmission lines. It seeks damages for this alleged interference. The District Court rejected any award for such frustration of future hopes, finding that there was no concrete evidence of these plans. Moreover, the law is clear that frustration of future business plans is not compensable. United States v. Grand River Dam Authority, 363 U.S. 229, 80 S.Ct. 1134, 4 L.Ed.2d 1186 (1960).
24
The Commissioners did not state whether their award of $76,227.50 for damages to the residue encompassed an award for redesign and frustration of future plans, or whether it was limited solely to damages incurred through increased difficulties of farming the residue.
25
We agree with both the District Court and the Commissioners that damage was done to the residue. However, we are of the opinion that the District Court's award of $9,000 was too low. It did not adequately take into account the interference of the high tension power lines with the operation of the farm, and the depreciation in value of the farm. In our opinion an award of $45,000 for damages to the residue is warranted.
26
We therefore fix the value of the property condemned in the amount of $64,744.34, for which amount judgment is entered against TVA, together with interest from the date of taking.
1
The easement reads as follows:
EXHIBIT 'A' TO DECLARATION OF TAKING AND TRACT PLAT
A permanent easement and right-of-way for electric power transmission purposes, consisting of the perpetual right to enter and to erect, maintain, repair, rebuild, operate and patrol one line of poles or transmission line structures with sufficient wires and cables for electric power circuits, and all necessary appurtenances, in, on, over, or across said right-of-way, together with the right to clear said right-of-way and keep the same clear of all trees, brush, buildings, sign boards, stored personal property, and fire hazards, to prevent the drilling or sinking of wells within seventy-five feet of the center line of said right-of-way, and to remove any trees located beyond the limits of said right-of-way which in falling would come within ten feet of any transmission line structure or conductor located thereon, the plaintiff to remain liable for any direct physical damage to the land, crops, fences and roads, resulting directly from the operations of the construction and maintenance forces of plaintiff in and about the erection and maintenance thereof, all upon, under, over, and across the following described land:
2
16 U.S.C. 831x states in relevant part:
Either or both parties may file exceptions to the award of said commissioners within twenty days from the date of the filing of said award in court. Exceptions filed to such award shall be heard before three Federal district judges unless the parties, in writing, in person, or by their attorneys, stipulate that the exceptions may by heard before a lesser number of judges. On such hearing such judges shall pass de novo upon the proceedings had before the commissioners, may view the property, and may take additional evidence. Upon such hearings the said judges shall file their own award, fixing therein the value of the property sought to be condemned, regardless of the award previously made by the said commissioners.
This statute was later amended, but the parties stipulated that they are bound by it because it was in effect at the time of the taking.
3
The relevant portion of statute in effect at the time of the taking, states:
At any time within thirty days from the filing of the decision of the district judges upon the hearing on exceptions to the award made by the commissioners, either party may appeal from such decision of the said judges to the court of appeals, and the said court of appeals shall upon the hearing on said appeal dispose of the same upon the record, without regard to the awards or findings theretofore made by the commissioners or the district judges, and such court of appeals shall thereupon fix the value of the said property sought to be condemned.
4
In its Memorandum Opinion the District Court stated:
We likewise resolve doubt in favor of defendant with respect to a limitation upon its farming the clear portion of the easement area taken and an area immediately adjacent thereto because of its special method of spraying and possible dangers inherent in this nearby TVA high power line.
The easement also interferes with the growing of trees in the area of the easement.
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510 U.S. 1025
Crespov.United States Postal Service.
No. 93-5760.
Supreme Court of United States.
December 13, 1993.
1
Appeal from the C. A. Fed. Cir.
2
Certiorari denied. Reported below: 996 F. 2d 319.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7142
RICKEY ESQUIVEL,
Plaintiff - Appellant,
v.
DR. GULERIA; NURSE HANS, R.N.; L.P.N. HUNTER; A. ROWE,
L.P.N.; SANDERS, R.N.; R.N. PUCKETT; R.N. BAILEY; MISS
CLARK,
Defendants - Appellees,
and
DR. HINDS,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:09-ct-03132-BO)
Submitted: February 9, 2012 Decided: February 13, 2012
Before WILKINSON, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Rickey Esquivel, Appellant Pro Se. Oliver Gray Wheeler, OFFICE
OF THE ATTORNEY GENERAL OF NORTH CAROLINA, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Esquivel appeals the district court’s order
dismissing without prejudice his 42 U.S.C. § 1983 (2006)
complaint for failure to prosecute. We have reviewed the record
and find no reversible error. Accordingly, we affirm for the
reasons stated by the district court. Esquivel v. Guleria, No.
5:09-ct-03132-BO (E.D.N.C. July 21, 2011). We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2
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697 F.2d 289
Cleghornv.Freedom Nat. Bank of New York
81-7888
UNITED STATES COURT OF APPEALS Second Circuit
9/20/82
1
S.D.N.Y.
AFFIRMED
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Opinion issued March 10, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00687-CV
———————————
ANNISE PARKER, MAYOR, ANNA RUSSELL, CITY SECRETARY, AND
CITY OF HOUSTON, Appellants
V.
DAVID B. WILSON, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2015-39706
MEMORANDUM OPINION
Appellants, Mayor Annise Parker, City Secretary Anna Russell, and the City
of Houston (collectively “the City”) filed this interlocutory appeal of the trial
court’s July 28, 2015 order granting appellee David B. Wilson’s petition for writ of
mandamus. In its first issue, the City contends that Wilson’s underlying
mandamus suit and the July 28 order are moot and the case should be dismissed.
In its second, third, and fourth issues, the City challenges the trial court’s July 28
order on the grounds that (1) Wilson’s petition was an untimely referendum, not a
charter amendment, and therefore the City Secretary had no duty to count
signatures or certify the number to the City Council; (2) the trial court decided the
case on the merits without giving the City proper notice of trial; and (3) the order
granted Wilson injunctive relief without requiring him to meet the requirements for
a temporary injunction. Because we conclude that Wilson’s mandamus suit and
the July 28 order are moot, we vacate the trial court’s judgment and dismiss the
case.
Background
In 2015, Wilson conducted a petition drive with the stated purpose of
amending Article II, Section 22 of the Charter of the City of Houston1 to add the
following language:
1
Article II, section 22 of the City’s Charter provides:
Except as required by State or Federal law, the City of Houston shall
not provide employment benefits, including health care, to persons
other than employees, their legal spouses and dependent children;
nor shall the City provide any privilege in promotion, hiring, or
contracting to a person or group on the basis of sexual preference,
either by a vote of the city council or an executive order by the
2
Except as required by State or Federal law, the City of Houston shall
only define gender identity as an individual’s innate identification, as
either a male or female which is assigned at birth. Perceived or
expressed gender identification is not allowed in defining gender
identity. Further, the City of Houston shall require entities doing
business with the city to abide by the same definition of gender
identification.
Wilson filed his petition with the City Secretary on July 9, 2015.2
On July 10, 2015, Wilson filed his original petition for writ of mandamus
against appellants. The mandamus petition alleged that the City Secretary had
failed to perform her ministerial duty under the City Charter to count the number
of signatures on the petition and certify the petition to the City Council. Noting
that “the deadline for calling an election in November of 2015 is on or about
August 19, 2015,” Wilson alleged in his petition that, if the requested injunctive
relief was not granted, it would be “too late for a timely election to be called,”
resulting in irreparable harm. Wilson set the mandamus petition for hearing on
July 13, 2015, three days after the petition had been filed.
Mayor. Further, the City of Houston shall not require entities doing
business with the City to have any of the above benefits or policies.
Charter of the City of Houston, art. II, § 22.
2
From the outset, the parties have disputed the nature of Wilson’s petition. The
City claims that Wilson’s petition is not a charter amendment but is a referendum
on Ordinance No. 2014-530, known as the Houston Equal Rights Ordinance,
which voters rejected on November 3, 2015. Wilson, however, maintains that his
petition is not a referendum but instead a proposed charter amendment that should
be placed on the November 2015 ballot. Given our disposition of this case, we do
not reach this issue.
3
At the hearing, the trial court sustained the City’s objection to proceeding
with insufficient notice. Wilson thereafter amended his mandamus petition and
reset the hearing. In his amended petition, Wilson alleged that if the City Secretary
did not count the signatures and certify the petition, “the Charter Amendment
cannot be placed on the ballot in November 2015,” resulting in irreparable harm.
The trial court held a hearing on Wilson’s first amended petition on July 24,
2015. At the conclusion of the hearing, Wilson’s counsel stated to the court,
I do need to mention the urgency because if we don’t meet certain
deadlines, it—we won’t be able to get the issue on the ballot. Let’s
say hypothetically, if we would win, we need—I think you would
have to rule on this by August 8th as to their duty to count.
On July 28, 2015, the trial court granted Wilson’s mandamus petition and ordered
the City Secretary to count and certify to the City Council the number of signatures
contained in Wilson’s petition within thirty days from the date of filing of the
petition, i.e., July 9, 2015.3
3
On the same day that the trial court granted Wilson’s petition, the Texas Supreme
Court decided In re Jared Woodfill, 470 S.W.3d 473 (Tex. 2015), ordering the
City Council to reconsider the equal rights ordinance, and if it did not repeal the
ordinance, to submit it to the voters in the next City election. Id. at 481. The
Council did not repeal the ordinance but instead voted to put it on the November
2015 ballot.
4
On August 7, 2015, the City filed a notice of interlocutory appeal of the July
28, 2015 order.4 In response, Wilson filed an emergency motion to dismiss and,
alternatively, to refer enforcement of the mandamus to the trial court. By order
dated August 19, 2015, this Court denied Wilson’s motion and directed the City to
file a written response within ten days showing the basis for the Court’s
jurisdiction. The City timely filed its response, arguing that the trial court’s July
28 order was a mandatory temporary injunction and, therefore, appealable as an
interlocutory order under Texas Civil Practice and Remedies Code section
51.014(a)(4). See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp.
2015). In his reply, Wilson argued that this Court lacked appellate jurisdiction
because the July 28 order was an order granting a writ of mandamus, not a
temporary injunction.
While the appeal was pending in this Court, Wilson filed an original
emergency petition for writ of mandamus in the Texas Supreme Court on August
24, 2015. In his petition, Wilson argued that this Court’s order granting the City
ten days to show the basis for the Court’s jurisdiction would “likely be too late” for
his proposed amendment to be placed on the November 2015 ballot, and requested
that the Supreme Court issue a writ of mandamus either ordering this Court to
4
Prior to filing its notice, the City had unsuccessfully sought clarification of the
trial court’s order and an extension of time to comply with the order.
5
dismiss the City’s interlocutory appeal for want of jurisdiction or, alternatively,
directing the City Secretary to immediately count and certify to the City Council
the number of valid signatures contained in his petition. On August 28, 2015, the
Court denied Wilson’s petition.
Mootness
In its first issue, the City contends that the deadline for issues to be placed
on the November 2015 ballot and the November 2015 election have passed and,
therefore, Wilson’s underlying mandamus suit and the July 28 order are now moot.
A. Standard of Review and Applicable Law
Whether a court has subject matter jurisdiction is a legal question that is
reviewed de novo. Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex.
App.—Fort Worth 2010, pet. denied); Trulock v. City of Duncanville, 277 S.W.3d
920, 923 (Tex. App.—Dallas 2009, no pet.). The mootness doctrine implicates
subject matter jurisdiction. See Trulock, 277 S.W.3d at 923; City of Shoreacres v.
Tex. Comm’n of Envtl. Quality, 166 S.W.3d 825, 830 (Tex. App.—Austin 2005, no
pet.).
An appellate court is prohibited from deciding a moot controversy or
rendering an advisory opinion. See Nat’l Collegiate Athletic Ass’n v. Jones, 1
S.W.3d 83, 86 (Tex. 1999); City of Farmers Branch v. Ramos, 235 S.W.3d 462,
469 (Tex. App.—Dallas 2007, no pet.) (noting court may only decide issues
6
presenting “a live controversy at the time of the decision”). If a controversy ceases
to exist or the parties lack a legally cognizable interest in the outcome at any stage,
the case becomes moot. Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.
2005); Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (noting “a controversy
must exist between the parties at every stage of the legal proceedings, including the
appeal”). “[C]ourts have an obligation to take into account intervening events that
may render a lawsuit moot.” See Heckman v. Williamson Cnty., 369 S.W.3d 137,
166–67 (Tex. 2012). If a proceeding becomes moot, the court must dismiss the
proceeding for want of jurisdiction. See id.
B. Analysis
When the trial court entered its July 28, 2015 order granting Wilson’s
petition for writ of mandamus, Wilson’s first amended petition was the live
pleading on file. In his amended petition, Wilson sought “to exercise his statutory
right to obtain a vote by the citizens of the city of Houston to decide the matter in
November 2015 election ballot.” Wilson further alleged
If the City Secretary does not count and certify the petitions, the
Charter Amendment cannot be placed on the ballot in November
2015. Further, on reasonable belief, Defendants intend to
unreasonably thwart Wilson’s efforts to obtain a vote on the matter by
delaying the matter in court until the issue becomes moot (emphasis
added).
7
At the July 24 hearing, Wilson’s counsel emphasized the urgency of obtaining a
ruling and advised the court that if Wilson did not meet certain deadlines he would
be unable to have the issue placed on the November 2015 ballot.
In his second amended petition5 (and current live pleading) filed after the
trial court issued its order, Wilson alleged:
Mayor Annise Parker and Houston City Council members [] have a
ministerial duty to order Wilson’s proposed Charter Amendment be
published in the newspaper at least 14 days prior to the subjection
election, and run two consecutive weeks, and then order Wilson’s
proposed amendment to be printed on the election ballots for the
November 2015 election.
....
Wilson hereby demands that each City Council member perform
his/her ministerial duties and, order, or cause Wilson’s Charter
Amendment be placed in the official city newspaper at least two
consecutive weeks prior to the election and cause Wilson’s proposed
Charter Amendment to appear on the election ballot.
....
Wilson seeks to exercise his statutory right to obtain a vote by the
citizens of the city of Houston to decide the matter in November 2015
election ballot. . . . Mayor Parker, Secretary Anna Russell and City
Council owe a duty to Wilson to place the proposed Charter
Amendment on the election ballot for a vote.
....
Wilson, and the people of Houston will suffer irreparable harm if the
proposed Charter Amendment is not put on the election ballot.
5
In addition to the Mayor and City Secretary, Wilson’s second amended petition
named City Council members as defendants in his suit.
8
In his original emergency petition for writ of mandamus filed in the Texas
Supreme Court, Wilson argued that this Court’s August 19, 2015 order granting
the City ten days to show the basis for the Court’s jurisdiction would “likely be too
late” for his proposed amendment to be placed on the November 2015 ballot.
Cognizant of Texas Rule of Appellate Procedure 52.3(e)6 requiring him to first file
his petition with this Court, Wilson asserted that “given the time constraints, there
is simply not enough time to go through both Courts, and thus a ‘compelling
reason’ within the meaning of the rule applies here for Relators to file with this
Court and not the Houston Court of Appeals.”
Wilson’s trial court pleadings, the July 24, 2015 hearing on his mandamus
petition, and his emergency petition for writ of mandamus filed in the Texas
Supreme Court, demonstrate that Wilson’s objective was to have his proposed
amendment placed on the November 2015 ballot. Because the deadline to place
issues on the November 2015 ballot as well as the November 2015 election have
6
Texas Rule of Appellate Procedure 52.3(e) provides:
The petition must state, without argument, the basis of the court’s
jurisdiction. If the Supreme Court and the court of appeals have concurrent
jurisdiction, the petition must be presented first to the court of appeals
unless there is a compelling reason not to do so. If the petition is filed in
the Supreme Court without first being presented to the court of appeals, the
petition must state the compelling reason why the petition was not first
presented to the court of appeals.
TEX. R. APP. P. 52.3.
9
passed, Wilson’s mandamus suit and the July 28 order that is the subject of this
appeal are moot. Hallman, 159 S.W.3d at 642 (noting that if controversy ceases to
exist or parties lack legally cognizable interest in outcome at any stage, case
becomes moot); Jones, 1 S.W.3d at 86 (“A case becomes moot if at any stage there
ceases to be an actual controversy between the parties.”).
In the “Response to Statement of Issues” section of his brief, Wilson states
in conclusory fashion that a claim of mootness “must first be raised by the trial
court.” To the contrary, a case may be dismissed as moot at any stage of the
proceedings, including on appeal. See Heckman, 369 S.W.3d at 162 (“If a case is
or becomes moot, the court must vacate any order or judgment previously issued
and dismiss the case for want of jurisdiction.”). Notably, Wilson acknowledged in
his first amended petition that the issue might become moot, alleging that
“Defendants intend to unreasonably thwart Wilson’s efforts to obtain a vote on the
matter by delaying the matter in court until the issue becomes moot” (emphasis
added).
Accordingly, we sustain the City’s first issue. Because we have concluded
that Wilson’s underlying suit and the trial court’s July 28, 2015 order are moot, we
do not reach the City’s other issues challenging the trial court’s order. See TEX. R.
APP. P. 47.1.
10
Conclusion
We vacate the trial court’s July 28, 2015 order and dismiss the case for want
of jurisdiction.
Russell Lloyd
Justice
Panel consists of Justices Higley, Huddle, and Lloyd.
11
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776 P.2d 78 (1989)
Vladimir PARYZEK, Plaintiff and Appellant,
v.
Anna PARYZEK, Defendant and Respondent.
No. 880359-CA.
Court of Appeals of Utah.
June 6, 1989.
*79 Ann L. Wasserman, Salt Lake City, for plaintiff and appellant.
Carolyn Driscoll, Salt Lake City, for defendant and respondent.
Before GARFF, GREENWOOD and ORME, JJ.
OPINION
GREENWOOD, Judge:
Plaintiff, Vladimir Paryzek ("Vladimir"), appeals from the trial court's order awarding custody of Martin Paryzek ("Martin"), to defendant, Anna Paryzek ("Anna"), awarding child support, and dividing the parties' assets and debts.
BACKGROUND
Vladimir and Anna were married in 1977 in Czechoslovakia. Their only child, Martin, was born in 1979. Anna was educated in child care and teaching and employed in Czechoslovakia as a teacher for children with medical problems. In December 1981, the Paryzeks immigrated to the United States. After a short stay in New York, they moved to Utah, where Vladimir was employed as an electrical engineer. In April 1985, the parties separated. Vladimir initiated this divorce action and sought temporary custody of Martin. An order dated June 25, 1985, signed by Judge Dean E. Conder, awarded Vladimir temporary custody of Martin, provided for visitation by Anna, and ordered both parties to cooperate in a custody evaluation.
Thereafter, a custody evaluation was conducted by A. Paige Palmer, M.S.W., who interviewed Vladimir, Anna and Martin during June, July and August of 1985. Palmer's report states that neither parent is unfit, but that there are significant differences in parenting styles. Palmer found that Martin was clearly confused about his parents' divorce and his future, but said he wanted to live with his father. Palmer stated that Vladimir was teaching Martin to be responsible and independent, and encouraged him to learn English. Anna, on the other hand, was inconsistent, somewhat careless in making decisions, including those involving Martin, and was easily discouraged. Palmer concluded that Vladimir possessed characteristics which would make him an effective single parent, that Anna did not possess those characteristics, and recommended that custody be granted to Vladimir, with liberal visitation for Anna.
Trial was held in July 1987 before Judge Richard Moffat, Judge Conder having retired during the interim. Vladimir called Dr. Johanna McManemin, a psychologist, to testify. Dr. McManemin testified she had interviewed Martin twice, and had also interviewed both parents. She stated she first interviewed Martin in April 1986, and found he was having a difficult time adjusting to the divorce. At that time she believed Martin needed to be with the most stable and consistent parent, but had no opinion as to which parent would best provide those characteristics. After her subsequent interview with Martin in March 1987, she concluded that Vladimir would be the preferable custodial parent, because Martin had made incredible progress during the time he had lived with Vladimir. She found that Martin was very attached to his father, that a strong bond existed between them, and that Vladimir was sincerely concerned about Martin's best interests. Dr. McManemin also testified she had reviewed Palmer's report and agreed with its recommendations and findings. She further stated that her recommendation was influenced by the fact that Martin had lived with his father for approximately two and one-half years, had adjusted to his environment, and she believed it would be detrimental for him to make a change. Further emphasizing the importance of continued stability, she stated on cross-examination that her final recommendation might have been different if Martin had lived with Anna during that time period. She further noted that Martin's progress could be due, in part, to Anna's positive influence. Both of Dr. McManemin's reports were received into evidence. The second one, dated March 24, 1987, concluded, "It is felt that Martin is happy living with his father and *80 this examiner found no reason to consider a change in custody."
Anna called Dr. Gene Hansen, a clinical psychologist, to testify on her behalf. Dr. Hansen testified that this was a difficult case, as both Vladimir and Anna were good parents. He had some concern that if Vladimir had custody, Martin would not have enough time with his mother, and that Vladimir's parenting was somewhat rigid. Dr. Hansen testified that Martin would do well with either parent and that both parents were adequate and capable, although he thought the best interests of the child tipped slightly towards the mother. Dr. Hansen conceded that a change of custody to Anna would result in some difficulties, although he believed Martin could make the adjustment. Also, Dr. Hansen testified that in November 1985, Martin had said he wanted to live with his mother, but in July 1987, Martin said he wanted to live with his father. Dr. Hansen's written report cryptically concluded, "I can see no reason why Anna Paryzek should not be given custody of Martin Paryzek, with extremely liberal visitation privileges accorded Vladimir Paryzek."
Anna and some of her acquaintances testified that Vladimir had physically and emotionally abused her and corporally punished Martin. This testimony was disputed by Vladimir and his witnesses. Also, both Palmer's and Dr. McManemin's reports stated that Anna had told them of alleged physical abuse, but that there was no corroboration and they did not believe those allegations.
Both parties also testified as to their respective desires and capabilities to have custody of Martin. Before concluding the trial, the trial court indicated it would review the various custody reports and stated, "by reason of the expert testimony herein, I'm not going to give very much if any weight to the fact of the current custody of that child."
A minute entry dated September 1, 1987, declared, without explanation, that custody was awarded to Anna, and invited Anna's counsel to prepare findings of fact, conclusions of law, and a decree, supporting that conclusion. Anna's counsel prepared those documents, which were signed by the trial court. An appeal was filed and this court reversed and remanded for more specific and complete findings of fact concerning the best interests of the child. The unpublished memorandum opinion included the following language:
The child's interest in stability of the present environment is one of numerous factors to be considered in a custody determination... . In the present case, the child resided with his father under the temporary custody order for in excess of two years. The findings should reflect the basis for the trial court's conclusion that other factors before it outweighed the child's interests in stability of the home environment.
(Emphasis added).
In amended findings, the trial court found that Anna was Martin's primary caretaker prior to the parties' separation and continued to provide him with a stable, loving relationship while the divorce proceedings were pending. Because of Anna's background in child care and education in Czechoslovakia, the court found that Anna was admirably equipped to be the custodial parent. The court also found that Vladimir had no formal training in parenting, and appeared to be heavy-handed, dictatorial and uncompromising. The court also stated that in its opinion, Anna's approach to parenting was better than Vladimir's and that Vladimir had been abusive to Anna and Martin. With regard to visitation, the court found that Vladimir had not encouraged and, in fact, had attempted to prevent visitation between Anna and Martin. In addition, the court found that Dr. McManemin's report was not impressive, because there was not adequate opportunity to observe Martin and Anna interacting. The court found Dr. Hansen's testimony more credible because he had a better opportunity to evaluate Anna, Martin and the home environment. The court further found that Vladimir had, in effect, forced the separation of mother and son, and had sought to maintain that separation. Also, Anna's distraught state of mind at the time of their *81 separation was short-lived and was no longer controlling as to Anna's qualifications to have custody. Finally, the court found that Martin would be better off with Anna than with Vladimir, and that Anna would encourage the growth and nurturing of Vladimir and Martin's relationship. However, rather than directly address the stability factor in its findings as this court had directed, the trial court explained its adamancy in refusing to consider that paramount consideration as follows:
It should be kept in mind that the award of custody granted herein is the first permanent award of custody entered in this matter. All prior custodial questions have been pending the final divorce of the parties. It is, therefore, based upon the above facts and views of the Court, the Court's determination at this time that the child's best interest will be served by the award of custody to the mother and that the child should have no reason not to be happy and well adjusted in her custody subject to the visitation of the father.
The court also found that the parties had $780 in a joint checking account at the time of their separation, awarded each half of that amount, and distributed their other assets and liabilities. The amended decree of divorce requires Vladimir to pay $250 per month child support until Martin is eighteen or graduates from high school, whichever occurs later.
Vladimir appeals, claiming the trial court erred in: 1) its custody award to Anna; 2) its child support award; and 3) its division of the parties' property.
CHILD CUSTODY
We consider first, the court's award of custody to Anna, and Vladimir's contentions that the trial court erroneously failed to consider the child's preference, ignored the factor of stability in considering Martin's best interests, and incorrectly applied the law in awarding Anna custody.
We first address whether the court erred by failing to interview Martin and inquire as to his custodial parent preference. The court was first asked to interview Martin in Vladimir's "Motion to Have Court Open The Judgment, Take Additional Testimony And Direct Entry of A New Judgment." The court denied the motion. Consideration of a motion to grant a new trial or open a judgment for additional evidence under Utah R.Civ.P. 59 "is a matter left to the discretion of the trial judge, and that decision will be reversed only if the judge has abused that discretion by acting unreasonably." Christenson v. Jewkes, 761 P.2d 1375, 1377 (Utah 1988). While a child's preference is a factor to be considered by the court, it is only one of several. Hutchison v. Hutchison, 649 P.2d 38, 41 (Utah 1982). Moreover, Utah Code Ann. § 30-3-10 (1988), provides that "[t]he court may inquire of the children and take into consideration the children's desires regarding the future custody, but the expressed desires are not controlling and the court may determine the children's custody otherwise." The statute does not require interviews, but allows them according to the court's exercise of its discretion. In this case, we find no abuse of discretion in the trial court's denial of the motion to interview Martin, where that motion was made after the trial concluded. Moreover, we note there was testimony by Dr. Hansen that shortly before trial commenced, Martin had expressed a preference to live with his father.
We next consider if the court erred in not considering stability as a factor influencing Martin's custody. The overriding consideration in child custody determinations is the child's best interests. Hutchison v. Hutchison, 649 P.2d 38, 40 (Utah 1982). There are several factors to be considered by the trial court in awarding custody, some of which concern the child's specific needs and others which relate to the parents' characteristics. Id. at 41. However, providing a stable home for a child and avoiding "ping pong" custody awards are critical factors in custody disputes. Hogge v. Hogge, 649 P.2d 51, 53-54 (Utah 1982). There is a "general interest in continuing previously determined custody arrangements where the child is happy and well adjusted." Hutchison, 649 P.2d *82 at 41. This interest in stability has been the basis for requiring a substantial change of circumstances as a precondition for reexamining permanent custody awards. Id.; Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987); Fullmer v. Fullmer, 761 P.2d 942, 946 (Utah Ct.App. 1988). Recently, however, in Elmer v. Elmer, 776 P.2d 599, (1989), the Utah Supreme Court held that strict change of circumstances requirements would not always apply in custody modification proceedings. Nonetheless, the court emphasized the importance of relative permanence in custody orders:
[I]f an existing custody arrangement is not inimical to the child, the continuity and stability of the arrangement are factors to be weighed in determining a child's best interests. What particular weight to be accorded those factors in a given case must depend on the duration of the initial custody arrangement, the age of the child, the nature of the relationship that has developed between the child and the custodial and noncustodial parents, and how well the child is thriving physically, mentally, and emotionally. A very short custody arrangement of a few months, even if nurturing to some extent, is not entitled to as much weight as a similar arrangement of substantial duration.
Id. at 604. See also Maughan v. Maughan, 770 P.2d 156 (Utah Ct.App. 1989). Notably, Elmer did not identify the temporary versus permanent nature of the "initial custody award" as one of the factors to be considered in deciding how much weight to give "continuity and stability." The Elmer decision emphasized that the paramount consideration must be promoting the child's best interests, and it is irrelevant from the child's perspective, how, as a legal matter, the existing arrangement came about.
Other Utah Supreme Court cases have similarly held that stability is a fundamental consideration in original custody awards as well as in subsequent modifications. In Pusey v. Pusey, 728 P.2d 117, 120 (Utah 1986), the court stated that decisive factors in child custody determinations should be function-related, and include the "identity of [the] primary caretaker during the marriage." However, Pusey also states that another factor to consider is the "identity of the parent with whom the child has spent most of his or her time pending custody determination if that period is lengthy." Id. In Davis v. Davis, 749 P.2d 647 (Utah 1988), the father had custody of the child for over a year prior to trial on the issue of a permanent custody award. The trial court considered various factors, including that the father had provided a stable environment and had been the primary caretaker during the interim period. The Utah Supreme Court affirmed the custody award to the father, and stated that "[i]n considering competing claims to custody between fit parents under the `best interests of the child' standard, considerable weight should be given to which parent has been the child's primary caretaker" prior to the divorce. Davis, 749 P.2d at 648 (emphasis added).
In this case, the trial court stated it was not going to give "very much if any weight to the fact of the current custody of that child" and the amended findings emphasize that this is the first award of permanent custody. As a whole, we conclude from the record that the trial court explicitly disregarded the facts that Martin had resided with Vladimir for approximately two and one-half years prior to the custody trial, had progressed well in that environment, and discounted the potential harm to Martin which would result if a change in custody occurred. The cases cited indicate, and we hold, that in custody determinations, trial courts must examine a child's need for stability, and therefore, consider prior custody arrangements, including the duration of those arrangements, and the potential harm to the child if the arrangement is changed. Therefore, insofar as the trial court in this case failed to factor in Martin's need for stability and his two and one-half years in Vladimir's custody prior to trial in its determination of Martin's best interests, the court erred. It remains to be seen whether that error was harmless, permitting affirmance of the custody award; requires yet another remand for further *83 findings; or requires reversal as a matter of law.
Custody determinations are matters within the broad discretion of the trial court and we will not disturb their determinations so long as they are consistent with the standards set by appellate courts, and are supported by adequate findings of fact and conclusions of law. Martinez v. Martinez, 728 P.2d 994, 995 (Utah 1986). Further, in reviewing the trial court's actions, "[w]e will not substitute our judgment for that of the trial court" if substantial evidence supports the factual findings and there was a proper application of the legal standards. Bake v. Bake, 772 P.2d 461 (Ct.App. 1989). In the process of a custody decision, "trial courts should consider various relevant factors in determining which custodial arrangement is in the child's best interest." Myers v. Myers, 768 P.2d 979, 983 (Utah Ct.App. 1989). Child-related factors were described in Hutchison to include the following: the child's preference; keeping siblings together; strength of bonding between the child and each parent; and previously determined custody. Hutchison, 649 P.2d at 41. "Other factors related primarily to the prospective custodians' character or status or their capacity or willingness to function as parents," and include, in part, moral character, emotional stability, depth of desire for custody, ability to care personally for the child, functional impairments, and financial condition. Id.; see also Pusey, 728 P.2d at 120.
Although no one set of factors governs a custody determination in every case, the trial court's findings should articulate those factors pertinent to the child's best interests which the court considered in making its determination, such as the needs of the child and the ability of each parent to meet those needs.
Painter v. Painter, 752 P.2d 907, 909 (Utah Ct.App. 1988).
We find the findings in this case defective in several respects. The findings omit any reference to the Palmer report which followed and validated the temporary custody order. The findings also failed to consider the undisputed evidence of strong bonding between father and son, the most recent statement of Martin's preference to live with his father, Vladimir's status as primary caretaker during the two and one-half years prior to trial, and evidence that Martin thrived while living with Vladimir. We believe that these omissions constitute an abuse of discretion. In addition, the court discounted Dr. McManemin's testimony that Martin should remain with Vladimir, while that recommendation specifically took into account the living arrangement which existed at the time and predicted a negative impact on Martin if custody were changed. Both Dr. McManemin and Palmer strongly recommended that Vladimir be given custody, while Dr. Hansen conceded that it was a very close call, even referring to his recommendation as a "toss of a coin," with only a slight preference for Anna. The expert testimony preponderated in favor of granting Vladimir custody. The parties' testimony differed markedly on issues such as abuse by Vladimir and interference with visitation. None of the experts gave much, if any, credence to those accusations, although the court seemed to rely on them in the amended findings. Also significant is the testimony that Martin had done very well during that time period, had progressed at school, and had successfully dealt with the fact of his parents' divorce. While we are mindful of the principles of deference to the trial court in evidentiary findings, we are convinced in this case, that the court's disregard of Martin's need for consistency and stability, especially given the rather even parenting abilities, was an improper application of law constituting an abuse of discretion. Because of the length of time of the temporary custody, that factor becomes one of relatively greater importance in determining permanent custody. We further believe that no purpose would be served by again remanding with directions to enter findings considering the factors we have identified as relevant. This was a close case, where the trial court itself observed that "I think everybody has agreed to the fact that the little boy has two pretty good parents." Where the call is a close one, we believe the child's interests will *84 best be promoted by maintaining the prior, stable and healthy arrangement. That is, where the evidence was otherwise inconclusive if anything, favoring Vladimir somewhat the paramount consideration of stability conclusively tips the scale in Vladimir's favor and warrants awarding custody to him, as a matter of law. We, therefore, reverse and award custody to Vladimir, with Anna to have liberal visitation rights. We remand for a determination of child support to be paid by Anna and an appropriate visitation schedule.
The issue of child support raised by Vladimir is moot in light of our order regarding custody.
PROPERTY AWARD
Lastly, Vladimir assails the court's division of property and debts. In part, he contends the court improperly found that the parties had about $780 in their checking account and divided that amount between Anna and Vladimir. Anna testified that on the day she left Vladimir, she went to the bank and checked the balance in the account and the balance was about $780. A bank statement was admitted into evidence which indicates end of day balances on April 8 of $781.78, April 9 of $677.09, and $32.00 on April 10. Anna's testimony is somewhat unclear as to exactly which day she left, but nevertheless, we find it within the court's discretion to determine that each party was entitled to half of the amount in the account on the approximate date of their separation. We also find no error in the remainder of the court's order regarding the parties' assets and debts.
Affirmed in part and reversed and remanded in part. The parties shall bear their own costs of this appeal.
GARFF and ORME, JJ., concur.
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45 F.3d 1369
41 Fed. R. Evid. Serv. 383
Ronald E. BEMIS; Brenda E. Bemis, Plaintiffs-Appellants,v.Tim EDWARDS; Leo Lotito; Perry Aldrich; City of Bend,Defendants-Appellees.
No. 93-35192.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Nov. 2, 1994.Decided Jan. 25, 1995.
David C. Force, Eugene, OR, for plaintiffs-appellants.
Robert E. Franz, Jr., Springfield, OR, for defendants-appellees.
Appeal from the United States District Court For the District of Oregon.
Before: FLETCHER, D.W. NELSON, and RYMER, Circuit Judges.
D.W. NELSON, Circuit Judge:
1
Appellant Ronald E. Bemis brought a civil rights action under 42 U.S.C. Sec. 1983 against police officers Tim Edwards, Leo Lotito, Perry Aldrich, and the City of Bend, Oregon ("Appellees") in which he claimed that the police had used excessive force against him. In his appeal from a jury verdict for the Appellees, Bemis argues that the trial judge improperly excluded from evidence portions of a tape recording of 911 emergency calls made on the night of his arrest. Specifically, he contends that the recorded statements of a citizen caller and of police officers should have been admitted as (1) nonhearsay, (2) present sense impressions, or (3) excited utterances. He also asserts that the recording of a call by Bemis' companion, James Kates, requesting medical assistance because he, too, had been beaten by the police, was admissible either to show a city policy of "deliberate indifference" to excessive force, or as a prior consistent statement by Kates. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.
I. Factual Background
2
On April 29, 1989, Bemis and Kates argued with each other as they drove home from a tavern. At a park near his home in Bend, Oregon, Bemis pulled a shotgun on Kates, which Kates promptly seized and broke against a tree. Bemis then ran to his own house nearby and, upon discovering that he had forgotten his keys, broke in. As Bemis emerged from his house with another gun, a resident of the house across the street, Gary Estep, called 911 to report what he believed to be a burglary by armed intruders. City of Bend police officers, including Edwards, Lotito, and Aldrich, arrived and apprehended Bemis and Kates.
3
At trial, the officers claimed that any force used was reasonable and necessary because they had believed Bemis to be an armed burglar, he had pointed his rifle at them, he had refused initially to drop the gun, and he had resisted arrest. They testified that Bemis had sustained injuries during his altercation with Kates, prior to their arrival. By contrast, Bemis claimed that he dropped the rifle when ordered to do so and verbally surrendered without resistance, yet the police beat him severely. Bemis' wife and stepdaughter, who were inside the house, testified that he had declared to the police that he was not resisting. All three, along with Kates, testified that Bemis suffered a broken jaw and other injuries. Kates testified that the police beat him as well, and that he called 911 to request assistance following his beating. The jury found for the defendants.
4
In an evidentiary hearing, the judge had considered admission of a 911 tape from the night in question. In one part of the tape, the 911 operator stated to Estep, "[a]pparently he must have thrown the shotgun down." Shortly thereafter, Estep reported, "Now there's a cop beating the shit out of the guy now," and then:
5
"There's five units--I got a scanner here in my house, so--but it's kind of getting ridiculous guys. I mean, the cop's beating the shit out of the guy right now. The guy's got a gun, though. I guess it's legal."
6
In another portion of the tape, Kates called 911 and reported that he had been beaten by four police officers, complained that his "ribs are busted," and requested an ambulance. Subsequently, a police officer instructed the 911 dispatcher to ignore Kates's request.
7
The district court excluded these statements. The judge held that there was a lack of foundation because the tape indicates that Estep was not actually observing the events he described during the 911 call, but was merely reporting what others in the house were seeing and describing to him at the time, and because there is no indication that the subject of the beating was Bemis rather than Kates. The court excluded Kates' statement as irrelevant to Bemis' beating or to his claim that the city had a policy of using excessive force. We address the admissibility of the various statements separately.
II. The Estep Statement
8
Bemis argues that the statement by Gary Estep on the 911 tape describing the police beating of Bemis (the "Estep Statement") should have been admitted either because (1) it was not hearsay, or (2) it satisfied the requirements of hearsay exceptions for a present sense impression, Fed.R.Evid. 803(1), or an excited utterance, Fed.R.Evid. 803(2). We reject these arguments.
A.
9
Bemis first asserts that the Estep Statement was not hearsay because it was not offered for its truth, but solely to reveal that the defendants' testimony was "inconsistent" with the recorded account of the events. We review whether the district court correctly construed the hearsay rule de novo. United States v. Warren, 25 F.3d 890, 895 (9th Cir.1994). This argument lacks merit.
10
The Federal Rules of Evidence provide that a "prior statement by a witness" offered to show inconsistency with testimony at trial is not hearsay. Fed.R.Evid. 801(d)(1). However, this rule only applies to prior inconsistent statements of testifying witnesses. See United States v. Pistante, 453 F.2d 412, 412 (9th Cir.1971). Whereas an inconsistent statement by a testifying witness can be used to impeach that witness's credibility, an inconsistent account by another source is offered to show an alternative view of the truth.
11
In the present case, Gary Estep was not a testifying witness. His out-of-court statement presents an independent account of the events and thus does not serve solely to impeach the credibility of the defendants under Rule 801(d)(1). Therefore, it is hearsay.
B.
12
Bemis next argues that even if the Estep Statement is hearsay, it should have been admitted under exceptions to the hearsay rule. We review district court rulings on admissibility under exceptions to the hearsay rule for an abuse of discretion. United States v. Bland, 961 F.2d 123, 126 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 170, 121 L.Ed.2d 117 (1992).
13
Hearsay statements on a 911 tape can be admitted into evidence as either a "public record," Fed.R.Evid. 803(8)(B), or a "business record," Fed.R.Evid. 803(6). See United States v. Sallins, 993 F.2d 344, 347-48 & n. 4 (3d Cir.1993) (noting that a 911 tape itself is probably a "public record"); cf. United States v. Smith, 521 F.2d 957, 964-65 (D.C.Cir.1975) (finding that police radio broadcasts are business records). However, because citizens who call 911 are not under any "duty to report," Fed.R.Evid. 803(8)(B), a recorded statement by a citizen must satisfy a separate hearsay exception. See Fed.R.Evid. 805; United States v. Pazsint, 703 F.2d 420, 424-25 (9th Cir.1983) (excluding tapes of emergency calls from witnesses reporting defendant's assault of an IRS agent); Sallins, 993 F.2d at 347 (excluding 911 statement that person matching defendant's description was holding a gun). Under certain circumstances, such a statement may qualify as either a "present sense impression," Fed.R.Evid. 803(1), or an "excited utterance," Fed.R.Evid. 803(2). See United States v. Mejia-Valez, 855 F.Supp. 607, 613-14 (E.D.N.Y.1994) (admitting under either exception a tape of 911 call made by an eyewitness immediately following a shooting); United States v. Campbell, 782 F.Supp. 1258, 1260-61 (N.D.Ill.1991) (admitting under either exception a 911 tape of an eyewitness's description of a gunman). Certainly, a statement by a 911 caller who is witnessing the violent arrest of a suspect by the police could qualify under either exception.
14
The district court, however, properly refused to admit the Estep Statement because of a lack of foundation to show that it satisfied the requirements for admission as a present sense impression or an excited utterance. We review the issue of whether evidence is supported by a proper foundation for an abuse of discretion. United States v. Christophe, 833 F.2d 1296, 1300 (9th Cir.1987).
15
We have held that to qualify under either exception, an out-of-court statement must be nearly contemporaneous with the incident described and made with little chance for reflection.1 See United States v. Ponticelli, 622 F.2d 985, 991 (9th Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980), overruled on other grounds by United States v. DeBright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc). Although the Estep Statement satisfies these requirements, it does not meet the further requirement of personal knowledge of the events described. Generally, a witness must have "personal knowledge of the matter" to which she testifies. Fed.R.Evid. 602. In the context of hearsay, the declarant must also have personal knowledge of what she describes.2 Fed.R.Evid. 803 advisory committee's note ("In a hearsay situation, the declarant is, of course, a witness, and neither this rule nor Rule 804 dispenses with the requirement of firsthand knowledge."); Miller v. Keating, 754 F.2d 507, 511 (3d Cir.1985); United States v. Stratton, 779 F.2d 820, 829 (2d Cir.1985), cert. denied, 476 U.S. 1162, 106 S.Ct. 2285, 90 L.Ed.2d 726 (1986); see also In re Worlds of Wonder Securities Litigation, 35 F.3d 1407, 1420 n. 4 (9th Cir.1994) (excluding a written statement because the author lacked personal knowledge of the facts contained therein).
16
Specifically, this requirement that a declarant have personal knowledge of the events described applies to the present sense impression exception. Fed.R.Evid. 803(1) (defining "present sense impression" as one made "while the declarant was perceiving the event or condition"); Campbell, 782 F.Supp. at 1260; 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence p 803(1), at 803-93 (1994). Similarly, the excited utterance exception is only available if the declarant has firsthand knowledge of the subject matter of her statement. Miller v. Keating, 754 F.2d 507, 511 (3d Cir.1985) (excluding testimony tending to fault plaintiff in car accident case because of lack of evidence of declarant's personal knowledge); 4 Weinstein & Berger, supra, p 803(2), at 803-104; see also McLaughlin v. Vinzant, 522 F.2d 448, 451 (1st Cir.) (emphasizing that the proponent of hearsay evidence had to show that the declarant could have witnessed the shooting), cert. denied, 423 U.S. 1037, 96 S.Ct. 573, 46 L.Ed.2d 412 (1975).
17
As the proponent of the evidence, Bemis had the burden of establishing personal perception by a preponderance of the evidence. See Miller, 754 F.2d at 511. Estep's proximity to the scene at the time of the incident provided some circumstantial evidence of firsthand knowledge, which ordinarily may be sufficient to satisfy the foundational requirement in the context of a statement by a phone caller. See First State Bank of Denton v. Maryland Casualty Co., 918 F.2d 38, 41-42 (5th Cir.1990) (admitting declarant's assertion over the phone that a party was not at home when statement was made from phone at the home at the relevant time); Miller v. Crown Amusements, Inc., 821 F.Supp. 703, 705-06 (S.D.Ga.1993) (admitting unidentified 911 caller's description of hit-and-run accident because it was made in close physical and temporal proximity to the accident and the caller indicated that she had seen the accident); see also Fed.R.Evid. 803 advisory committee's note (stating that firsthand knowledge "may appear from [the declarant's] statement or be inferable from circumstances").
18
The district court, however, correctly noted that the record in this case gives an articulable basis to suspect that Estep did not witness the events he described, but instead had relayed to the 911 operator descriptions by other people who had been observing from the windows of Estep's house. Not only did Estep admit at one point that he could not describe what was happening outside, but he also could be heard repeating the words of an unidentified voice in the background. Although Estep was available to testify as to the circumstances surrounding his statements, Bemis declined to offer his testimony. Because there are affirmative indications that the declarant lacked firsthand knowledge of the events he described, we hold that the district court did not abuse its discretion in refusing to admit the Estep Statement. See Miller, 754 F.2d at 511 (noting that the declarant's description may have been a repetition of the statements of someone who actually had seen the event). We therefore need not address the district court's finding of lack of foundation as to the relevance of the Estep Statement.
III. The Officer's Statement
19
Bemis also argues that the district court improperly excluded the statement on the 911 tape by "Officer 1" that Bemis had dropped his gun at a time prior to his confrontation with the police (the "Officer's Statement"). Contrary to Bemis's assertion that "Officer 1" was an officer at the scene who had witnessed Bemis throwing his gun down, the record indicates that "Officer 1" was the 911 operator speaking to Estep. Since the 911 operator was not at the scene and therefore must have been relaying information from another source, the Officer's Statement could not be admitted for the same reason that the Estep Statement was excluded: lack of foundation as to firsthand knowledge. See Miller, 754 F.2d at 511. Although a showing that the 911 operator's source also had a "duty to report" to the city may have been sufficient to admit the statement under the business records or public records exceptions to the hearsay rule, Fed.R.Evid. 803(6), 803(8), we cannot credit the statement without such a foundation, particularly when law enforcement personnel other than City of Bend police officers were at the scene. See Pazsint, 703 F.2d at 424 (requiring that the firsthand source of information have a "duty to report"); Miller v. Field, 35 F.3d 1088, 1091 (6th Cir.1994) (refusing to admit a portion of a police report recording statements by the local prosecutor).
20
Bemis' argument that the Officer's Statement was nonhearsay offered only to show inconsistency also fails. As with the Estep Statement, the declarant was not a testifying witness against whom a prior inconsistent statement would be admissible. See Pistante, 453 F.2d at 412. Accordingly, we find that the district court did not abuse its discretion in excluding the Officer's Statement.
IV. The Kates Statement
21
Bemis also asserts that the portion of the 911 tape in which James Kates, Bemis' companion at the scene, requested medical assistance because the police had beaten him (the "Kates Statement"), was excluded improperly. Bemis concedes that the district court properly found that the evidence was cumulative of Kates' own testimony and therefore excludible as direct testimony to show that Kates had been beaten. See United States v. Marabelles, 724 F.2d 1374, 1382 (9th Cir.1984) ("The exclusion of relevant, but cumulative, evidence is within the sound exercise of the trial court's discretion."). However, Bemis argues that the Kates Statement should have been admitted (1) as evidence of a city policy of using excessive force during arrests and (2) as a prior consistent statement of Kates. We reject both arguments.
A.
22
The Kates Statement was not relevant as evidence to support Bemis's claim that the City of Bend has a policy of using excessive force during arrests. We review rulings on the relevance of evidence for an abuse of discretion. United States v. Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir.1993). In order to find the city liable, the plaintiff would have to show that the city's failure to act against such conduct amounted to a policy of "deliberate indifference." Stevenson v. Koskey, 877 F.2d 1435, 1440 (9th Cir.1989). Whereas evidence of prior incidents of police misconduct may indicate that such a policy exists, it is doubtful that the 911 operator's failure to send an ambulance to help Kates after his beating, even if attributable to the city, would be relevant to the claim. See Davis v. City of Ellensburg, 869 F.2d 1230, 1235 (9th Cir.1989) (finding no city policy to use excessive force when plaintiff failed to show evidence of prior acts of excessive force); Harvey v. Hankins, 681 F.Supp. 622, 624 (W.D.Mo.1988) (noting that city conduct subsequent to the incident is irrelevant to the issue of municipal liability). Thus, we find that the district court did not abuse its discretion in excluding the Kates Statement from use as evidence of a city policy of using excessive force during arrests.
B.
23
Bemis also argues that the Kates Statement was admissible as a prior consistent statement. Under this theory, if the defense attempted to impeach Kates' testimony that he had been beaten, the Kates Statement could have served as a prior consistent statement of the witness in order to rehabilitate. See United States v. DeCoito, 764 F.2d 690, 694 (9th Cir.1985); United States v. Duncan, 693 F.2d 971, 980 (9th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). For this purpose, the statement would be nonhearsay because it would be "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Fed.R.Evid. 801(d)(1)(B).
24
However, because Bemis failed to provide this court with the trial transcript, we cannot determine whether the defense actually impeached Kates. Indeed, the fact that Bemis expressly conceded at a hearing following Kates' testimony that the Kates Statement could only be admitted as evidence of a city policy, suggests that this threshold requirement may not have been satisfied. Because we cannot make this necessary determination without the transcript, we reject Bemis's argument. See Portland Feminist Women's Health Center v. Advocates for Life, Inc., 877 F.2d 787, 789 (9th Cir.1989) (permitting appellate court to refuse to consider argument when appellant has failed to provide a transcript).
V. Attorneys' Fees
25
Although a prevailing party in a Sec. 1983 action may be entitled to attorneys' fees, 42 U.S.C. Sec. 1988(b), a prevailing defendant may only receive such fees if the plaintiff's action was "unreasonable, frivolous, meritless, or vexatious." Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 510, 130 L.Ed.2d 417 (1994); Roberts v. Spalding, 783 F.2d 867, 874 (9th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 399, 93 L.Ed.2d 352 (1986). We find that the claim was not frivolous and deny the request for attorneys' fees.
Conclusion
26
Because we find no reversible error, we need not address Bemis' motion for a new trial. The judgment of the district court is AFFIRMED.
1
In the case of an excited utterance, the contemporaneity requirement refers to temporal proximity to the "startling event." Although the subject matter of an excited utterance is frequently a description of the "startling event," the statement need only "relat[e] to" the startling event. Fed.R.Evid. 803(2); see United States v. Napier, 518 F.2d 316, 318 (9th Cir.) (admitting statement identifying the defendant as the declarant's assailant when made as a spontaneous reaction to the "startling event" of viewing a picture of the defendant two months after the assault), cert. denied, 423 U.S. 895, 96 S.Ct. 196, 46 L.Ed.2d 128 (1975)
2
A witness who merely testifies to the fact that a declarant made the statement, however, need only have firsthand knowledge that the statement was made, not of the events described in the statement. Fed.R.Evid. 602 advisory committee's note; United States v. Stratton, 779 F.2d 820, 829 (2d Cir.1985)
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
In re the Marriage of:
BEVERLY SAMMONS, Petitioner/Appellant,
v.
DAVID C. KEAGGY, Respondent/Appellee.
No. 1 CA-CV 14-0475 FC
FILED 10-27-2015
Appeal from the Superior Court in Maricopa County
No. FN2012-002771
The Honorable Kathleen H. Mead, Judge
AFFIRMED IN PART, VACATED IN PART AND REMANDED
COUNSEL
Gillespie, Shields, Durrant & Goldfarb, Phoenix
By DeeAn Gillespie Strub and Mark A. Shields
Counsel for Petitioner/Appellant
Michael E. Hurley Attorney at Law, Phoenix
By Michael E. Hurley
Counsel for Respondent/Appellee
SAMMONS v. KEAGGY
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
K E S S L E R, Judge:
¶1 Beverly Sammons (“Wife”) appeals from the family court’s
decree of dissolution ordering David C. Keaggy (“Husband”) to sell the
family business and awarding Wife one-half of the sale proceeds. Wife also
challenges the court’s denial of her request for attorneys’ fees. For the
following reasons, we vacate the portion of the decree permitting Husband
or the parties’ adult son (“Son”) to purchase the business at a discounted
price and remand for further proceedings consistent with this decision.
However, we affirm the denial of Wife’s fee request.
FACTUAL AND PROCEDURAL HISTORY
¶2 In June 2012, Wife filed a petition for dissolution of her forty-
year marriage to Husband. The parties disputed, among other things, the
value of the business they owned equally, David Keaggy & Associates, LLC
(the “Business”), which Husband operates and where Son has worked for
more than seven years. Wife also requested Husband pay her attorneys’
fees based on the disparity in the parties’ financial resources and Husband’s
unreasonable positions leading up to trial.
¶3 At trial, Wife presented the testimony of Mark Hughes, a
certified public accountant who specializes in business valuations, who
opined the Business had a fair value of $240,000. Hughes explained that
this reflects the Business’s value assuming Husband continues to operate it.
Hughes further testified that, if Husband—“the primary integral part of the
[B]usiness”—sells the Business to a third party and continues to assist the
buyer in operating it for a “transition” period of six to twelve months, the
Business would have a value of $190,000.
¶4 Husband testified that Hughes’ valuation is too high, but
offered no contrary valuation opinion. Husband further stated that he is
unwilling to sell the Business if he must work for another six to twelve
months because he wants to retire. Husband explained that he hopes Son
would run the Business, but Son testified he is not willing or able to
2
SAMMONS v. KEAGGY
Decision of the Court
purchase it because he “can’t afford it.”1 Alternatively, Husband testified
that he is willing to “dissolve” the Business or let Wife have it, but he does
not want to buy out Wife’s share because “I’m done.”
¶5 In the decree, the family court noted the Business was the
most valuable community asset and determined there were insufficient
community assets existed to award Wife an offset of the Business’s value.
The court therefore ordered the parties to immediately begin the process of
selling the Business with the profits to be divided equally. The court further
ordered that, if Husband or Son decides to buy the Business, either may do
so for a “discounted rate” of $150,000. The court reasoned this price is
appropriate as it “will avoid the costs of sale and the issues involving
transition to a new owner.” The court certified the decree to be final and
appealable in accordance with Arizona Rule of Family Law Procedure
78(B). Wife unsuccessfully moved for a new trial.
¶6 The court also granted Wife’s request for attorneys’ fees,
finding Husband’s financial position to be superior to Wife’s and finding
both parties increased the other’s litigation costs. The court, however, did
not award an amount of fees; instead, it ordered Husband to pay a portion
of Wife’s attorneys’ fees subject to Wife submitting a supporting affidavit,
in proper form, and other documentation. Wife complied, and Husband
objected on the basis Wife used more than $53,000 in community funds to
pay her attorneys along with $9,000 in sole and separate funds. The court
agreed with Husband and denied Wife’s fee request in an unsigned minute
entry. Wife appealed from the decree. After hearing oral argument, this
Court remanded the matter to allow the family court to enter a signed order
corresponding to the denial of Wife’s fee request. The family court issued
a signed order containing Arizona Rule of Family Law Procedure 78(B)
language, and Wife filed an amended notice of appeal. We have
jurisdiction pursuant to Arizona Revised Statutes (“A.R.S.”) section 12-
2101(A)(1) (Supp. 2015).2
1 At his deposition, Son testified he is willing to pay Wife a total of
$50,000 in monthly installments for her half of the Business, and that
Husband would “gift” him the other half. Son admitted this $100,000
valuation “was a wild guess” and not based on any valuation method.
2 We cite the current version of applicable statutes because no
revisions material to this decision have since occurred.
3
SAMMONS v. KEAGGY
Decision of the Court
DISCUSSION
¶7 Wife argues the family court erred in ordering the Business
sold and, particularly, in permitting Husband or Son to purchase it for
$150,000. Instead, Wife contends the court should have awarded the
Business to Husband and imposed a lien on it pursuant to A.R.S. § 25-318(E)
(Supp. 2015)3 to secure payment from Husband to Wife in the amount of
$120,000 to reflect her share in the Business based on its value of $240,000.
Wife also argues the court erred in denying her request for attorneys’ fees.
I. Wife’s Share in the Business
¶8 “The valuation of assets is a factual determination that must
be based on the facts and circumstances of each case.” Kelsey v. Kelsey, 186
Ariz. 49, 51, 918 P.2d 1067, 1069 (App. 1996). This Court reviews a valuation
determination for an abuse of discretion, see State v. Mitchell, 234 Ariz. 410,
413, ¶ 11, 323 P.3d 69, 72 (App. 2014) (“[W]e defer to the trial court’s factual
determinations . . . .”), including whether the record provides substantial
evidence supporting the determination, see Flying Diamond Airpark, L.L.C. v.
Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007) (citation
omitted). At oral argument, both parties agreed that the valuation is taken
from the time of the decree.
¶9 The court’s order permitting Husband or Son to purchase the
Business for $150,000 is not supported by the evidence. The only evidence
of the Business’s value is the expert opinion indicating a value of $240,000
if Husband continues to operate the Business and $190,000 in the event he
sells it to a third party and assists the new owner in running the Business
for six to twelve months. By permitting Husband to purchase the Business
for $150,000, the court effectively authorized a $75,000 equalization
payment to Wife should Husband continue to operate the Business, an
amount well below what Wife is entitled to according to the expert’s
opinion. Additionally, the court did not impose a deadline by which a sale
is to be effectuated or otherwise set out a timeframe for certain steps the
parties must take to do so. According to the record, it appears Husband
continues to operate the Business, but no payments have been made to
Wife. At oral argument, Husband conceded that he does not want to keep
3 In relevant part, the statute states: “The court may impress a lien on
. . . the marital property awarded to either party in order to secure the
payment of . . . [a]ny interest or equity the other party has in or to the
property.” A.R.S. § 25-318(E)(1).
4
SAMMONS v. KEAGGY
Decision of the Court
the business, and Son does not want to buy it. Further, there is no evidence
of record regarding the anticipated “costs of sale.”
¶10 With no evidence supporting a purchase price of $150,000, the
court abused its discretion in permitting Husband (or Son) to “purchase”
the Business for that amount. See Carriker v. Carriker, 151 Ariz. 296, 297, 727
P.2d 349, 350 (App. 1986) (determining valuation of professional
corporation, as community asset, was not supported by evidence where
there was no evidence from which court, using stated method of
calculation, could have arrived at stated valuation). Accordingly, we vacate
that portion of the decree allowing the Business to be sold to Husband or
Son for $150,000. On remand, because Husband conceded that he does not
want to keep the Business, and Son has expressed that he does not want to
buy it, the court shall issue additional orders to ensure compliance with its
directive to sell the Business, and secure payment to Wife of her community
share of the Business’s value, which, according to the record, is currently
$190,000.
II. Denial of Wife’s Request for Attorneys’ Fees
¶11 By statute, the family court has discretion to award a party
reasonable attorneys’ fees in a marriage dissolution case after considering
the parties’ respective financial resources and the reasonableness of the
positions each has taken during the proceedings. A.R.S. § 25-324(A) (Supp.
2015). Here, as noted, the court ordered Husband to pay a portion of Wife’s
fees based on its findings that Husband has substantially more financial
resources than Wife and because both parties unnecessarily increased the
other’s cost of litigation. The court also found both parties had used
community funds to pay their attorneys’ fees. However, when
subsequently presented with the actual amount of community funds Wife
had already expended for her attorneys’ fees (more than $53,000), the court
denied Wife’s fee request for an “additional” award of fees.
¶12 Section 25-324(A) does not authorize a court to deny a fee
request based solely on the use of community funds to pay fees. Indeed,
the statute only restricts a fee award to a reasonable amount. A.R.S. § 25-
324(A). We construe the court’s determination that Wife is not entitled to
an “additional” award of fees as an implied finding that Husband’s
community share of the $53,000 ($26,500) used by Wife to pay her attorneys
was a reasonable amount. See Lee Dev. Co. v. Papp, 166 Ariz. 471, 476, 803
P.2d 464, 469 (App. 1990) (stating this court will imply any additional
finding necessary to sustain a judgment if it is reasonably supported by the
evidence).
5
SAMMONS v. KEAGGY
Decision of the Court
¶13 Wife does not specifically argue that the court erred in
implicitly finding Husband’s approximately $26,500 payment of Wife’s
attorneys’ fees was a reasonable sum. Instead, she argues that the parties’
“extreme disparity” in financial resources required the court “to award at
least some fees to Wife.” But the court did award “some fees” to Wife,
namely, Husband’s community share of the $53,000 that she had already
utilized. Further, “a disparity alone does not mandate an award of fees.
‘[T]he reasonableness of the positions each party has taken’ is an additional
consideration under the current statute.” Myrick v. Maloney, 235 Ariz. 491,
494, ¶ 9, 333 P.3d 818, 821 (App. 2014) (alteration in original) (quoting A.R.S.
§ 25-324(A)). Wife concedes that the court found she “needlessly increased
Husband’s [attorneys’] fees due to a dispute . . . over the location of
[Husband’s] Veteran’s Administration funds.” Wife does not contest this
finding. Accordingly, the denial of Wife’s request for an additional fee
award is supported by the record and was not an abuse of discretion.
CONCLUSION
¶14 We vacate the portion of the decree that allows Husband or
Son to purchase the Business for $150,000 and remand for further
proceedings consistent with this decision. We affirm the order denying
Wife’s request for additional attorneys’ fees.
¶15 Wife requests her attorneys’ fees and taxable costs incurred
on appeal pursuant to A.R.S. § 25-324. Husband requests his fees and
taxable costs on appeal pursuant to Arizona Rule of Civil Appellate
Procedure 21 and A.R.S. §§ 12-341 (2003), -342 (2003), and -349 (Supp. 2015).
In the exercise of our discretion, we deny Husband’s request. We grant
Wife’s request for taxable costs and, in exercising our discretion, grant
Wife’s request for reasonable fees on appeal, contingent upon her timely
compliance with ARCAP 21.
:ama
6
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39 F.3d 1178
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Savino BRAXTON, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Linwood Rudolph WILLIAMS, a/k/a Rudi Williams, a/k/a LenwoodWilliams, Defendant-Appellant.
Nos. 91-5162, 92-5023.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 2, 1994.Decided Oct. 31, 1994.
Appeals from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CR-90-135-K)
Savino Braxton, Linwood Rudolph Williams, appellants pro se.
Katharine Jacobs Armentrout, Asst. U.S. Atty., Baltimore, MD, for appellee.
D.Md.
AFFIRMED.
Before HALL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Linwood Rudolph Williams and Savino Braxton were among twenty-three individuals named in a thirty-six count indictment alleging a conspiracy to distribute heroin and cocaine in violation of 21 U.S.C.A. Sec. 846 (West Supp.1994); among other charges, the indictment also contained substantive violations for possession and distribution of heroin and cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988), use of firearms in the course of drug trafficking crimes in violation of 18 U.S.C.A. Sec. 924(c) (West Supp.1994), money laundering in violation of 18 U.S.C.A. Sec. 1956(a)(1)(B)(i) (West Supp.1994), and unlawful possession of firearms in violation of 18 U.S.C.A. Sec. 922(g)(1) (West Supp.1994). The Appellants now raise a number of issues stemming from their convictions and sentences in a joint trial. For the reasons stated below, we reject the merits of those arguments and affirm the judgment of the district court.
2
* From 1986 until his arrest in April 1990, Linwood Williams headed a large-scale drug distribution organization in the Baltimore, Maryland area. The operation included many of his friends and family, such as his nephew, Namond Williams, who, in turn, brought his acquaintances into the operation.
3
In 1989, the Drug Enforcement Administration ("DEA"), the Internal Revenue Service ("IRS"), and the Baltimore City Police Department ("BCPD") undertook a combined investigation of this drug operation. The investigation, as shown by the evidence presented at trial, revealed that Williams headed a wholesale heroin distribution organization which supplied street-level dealers in the Baltimore area. Williams would negotiate for raw heroin from importers and direct others to actually pick up the shipments and deliver payments. Simultaneous to Williams's distribution scheme, Namond Williams ran a street-level heroin distribution organization, and as a part of this operation, he opened a car wash, "Namond's Polish King," in East Baltimore.
4
In the spring of 1990, officers raided several of the organization's "stash" houses. Furthermore, the police arrested several individuals and recovered numerous bags of heroin, vials of crack cocaine, handguns, and large sums of cash.
5
On April 17, 1990, investigators executed twenty-six warrants and arrested numerous individuals. At Williams's home, they found a large amount of money, a gun, and drug-packaging paraphernalia. At other apartments they recovered sixty-two bags of pure cocaine, 27.42 grams of 46 percent pure heroin in raw form, 17.29 grams of 3 percent heroin, 122 bags of heroin, 63 vials of cocaine, $2744 in cash and a variety of distribution supplies.
6
On December 10, 1990, trial commenced for Braxton, Williams, and twelve other Defendants. After a three-month trial, the case went to the jury. The jury found Williams guilty of conspiring to distribute heroin, possessing with intent to distribute heroin, money laundering, and being a felon in possession of a handgun. The jury found Braxton guilty of possessing with intent to distribute heroin on April 4, 1991.1 After conducting intensive sentencing hearings, the trial court sentenced Williams to life imprisonment and 130 years of imprisonment, running consecutively. The district court sentenced Braxton to 225 months of incarceration and three-years supervised release. Williams and Braxton timely appealed. This Court consolidated the cases on appeal.
II
7
Braxton alleges that there was insufficient evidence that he possessed with intent to distribute heroin on April 4, 1990. In evaluating the sufficiency of evidence to support a conviction, we view the evidence in the light most favorable to the government, and determine if any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir.1982). Furthermore, we accord the benefit of all reasonable inferences to the government. Tresvant, 677 F.2d at 1021.
8
The evidence at trial demonstrated that, on April 4, 1990, Braxton called Williams and stated "I, I got to see you." Later that day, Williams called Braxton and told him he was going to the bank and that he could meet after that. Braxton drove to Williams's home, met Williams at the front door, and entered the house. After Braxton and Williams left the house, Braxton walked to the rear of his car and opened the trunk. Williams took a leather pouch out of his car and gave it to Braxton.
9
Braxton drove to an apartment building and entered the building carrying the pouch. About five minutes later, a cab pulled in front of the building. Both the driver and the passenger went to the trunk of the cab and removed a large white bag. The passenger then entered the building following Braxton's same path. A few minutes later, the passenger left the building still carrying the same bag. Braxton left the apartment still carrying the pouch.
10
The next day, April 5, Williams called Braxton and told him that, "Hey, I need to holler at you, right? ... Cause I can't really, I can't dance2 at all, you know." Braxton responded, "Okay, alright, alright ... Well just, I just put it all together. I take it back over there."
11
On April 6, Williams called his nephew and instructed him to "bring them, ah, them bald-headed tires, so the boy can shoot past there." That same day, Braxton called Williams and told him he would take care of things. Braxton then met with Williams's nephew and left with a bulge under his jacket.
12
During a search of Braxton's house on April 17, 1990, agents found 27.12 grams of heroin, an Ohaus triple beam balance scale, plastic baggies, glassine bags, clear capsules, and a bottle of quinine.
13
Braxton argues that there is insufficient evidence that he possessed heroin because there was not direct evidence that he possessed heroin on April 4. The nature of the drug involved in a drug trafficking offense may be established by circumstantial evidence and scientific evidence is not required. United States v. Scott, 725 F.2d 43, 44 (4th Cir.1984). Furthermore, the identity of heroin can be established by circumstantial evidence. United States v. Cirillo, 499 F.2d 872, 888 (2d Cir.), cert. denied, 419 U.S. 1056 (1074).
14
The circumstantial evidence demonstrated that Braxton possessed heroin. It is uncontroverted that Williams dealt only in heroin and that Braxton had heroin at his residence on April 17, 1990. More importantly, given the sequence of events, Braxton's conduct on April 4, and the government's expert testimony about the nature of the April 5 and 6 telephone conversations, it is reasonable to infer that Braxton delivered heroin on April 4.3
III
15
Braxton asserts that his indictment was inadequate because the evidence at trial differed materially from the facts alleged in the indictment. We find that the indictment contained "the elements of the offense charged, fairly informed defendant of the charge, and enabled the defendant to plead double jeopardy as a defense in a future prosecution for the same offense." United States v. Daniels, 973 F.2d 272, 274 (4th Cir.1992), cert. denied, 61 U.S.L.W. 3499 (U.S.1993). Accordingly, we reject this claim.
IV
16
Braxton also alleges that the district court erred in denying his motion for a severance. In reviewing the matter for an abuse of discretion, United States v. Lane, 474 U.S. 438, 449-50 n. 12 (1986), we find that the district court did not err in denying Braxton's motion for a severance. See United States v. Samuels, 970 F.2d 1312, 1314 (4th Cir.1992).
V
17
Braxton claims that the district court made several errors with respect to jury instructions. Given the instructions in this case, we find no reasonable likelihood that the jury misconstrued the instructions. See Boyde v. California, 494 U.S. 370, 380 (1990). Furthermore, the district court properly refrained from defining reasonable doubt. See United States v. Reives, 15 F.3d 42, 45-46 (4th Cir.), cert. denied, 62 U.S.L.W. 3825 (U.S.1994).
VI
18
Braxton alleges that the prosecutor engaged in misconduct by making inflammatory and unduly prejudicial remarks during closing argument. Because the remarks were not objected to, we review them for plain error. United States v. Mitchell, 1 F.3d 235, 239 (4th Cir.1993). We have reviewed the disputed comments and find that the comments were proper. See United States v. Harrison, 716 F.2d 1050, 1052 (4th Cir.1983), cert. denied, 466 U.S. 972 (1984). Moreover, even if we discerned any errors, they certainly did not affect Braxton's substantial rights. United States v. Olano, 61 U.S.L.W. 4421, 4424 (U.S.1993). Accordingly, this claim is meritless.
VII
19
Braxton alleges two sentencing errors: that the district court erred in calculating the quantity of heroin for sentencing purposes and that he was improperly subjected to a sentencing enhancement under 21 U.S.C. Sec. 851. Both allegations are factually incorrect.
20
Because no drugs were seized at the time of the offense, it was agreed by the government, the Defendant, and the district court that the base offense level should be set at the lowest offense level established by the Sentencing Guidelines. This was not error. See United States v. Johnson, 943 F.2d 383, 387-88 (4th Cir.) (trial court should approximate quantity of drugs where there is not a seizure), cert. denied, 60 U.S.L.W. 3435 (1991). Furthermore, pursuant to the United States Sentencing Commission, Guidelines Manual Sec. 4B1.1 (Nov.1991) ("U.S.S.G."), the district court properly increased his base level from 12 to 32 because he was a career offender.
VIII
21
Williams attacks the cross-examination of two witnesses, alleging that the prosecutor engaged in misconduct by making inflammatory and unduly prejudicial remarks.
22
With regards to the impeachment of Witness Dennis, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Accordingly, the cross-examination was proper. See Fed.R.Evid. 403.
23
With regards to the impeachment of Witness Hargis, the prosecution impeached Hargis by establishing that Hargis had told an officer that Williams was responsible for a murder during a drug transaction and that Williams often held organization meetings where he stated that his drug trade would not be stopped by the police even if it meant that he had to kill the officers.4 After Hargis denied making these statements, the officer, Detective Dominick, testified that Hargis made these statements.
24
Williams attacks the cross-examination on two grounds: it was impermissible hearsay and it was an improper use of prior inconsistent statements. The testimony was not hearsay because it was not offered for the truth of the matter asserted. See Fed.R.Evid. 801(d). Furthermore, the cross-examination was not an improper use of prior inconsistent statements because Hargis was given an opportunity to deny the statements and defense counsel cross-examined Detective Dominick. Fed.R.Evid. 613(b); see also United States v. Cobb, 905 F.2d 784, 787 n. 5 (4th Cir.1990), cert. denied, 498 U.S. 1049 (1991); United States v. Daniele, 886 F.2d 1046, 1052-53 (8th Cir.1989).
25
In addition, Williams concedes that counsel did not object to the impeachment. Accordingly, even if the impeachment was error, it was not plain error. See United States v. Brewer, 1 F.3d 1430, 1435 (4th Cir.1993).
IX
26
Williams also alleges that the court erred in not instructing the jury on the limited use of the prior inconsistent statements. Because Williams did not request a limiting instruction, we review the omission for plain error. See United States v. Mark, 943 F.2d 444, 449 (4th Cir.1991) (burden on defendant to request instruction). Given the overwhelming evidence of Williams's guilt, the omission did not affect the outcome of the court's proceedings. Olano, 61 U.S.L.W. at 4424.
X
27
Williams alleges three sentencing errors: his sentence was enhanced for obstruction of justice even though he never intended to perjure himself, his sentence was enhanced for possession of a weapon even though he was acquitted of possessing a firearm in relation to a drug trafficking offense, and his sentence was enhanced for his role in the offense.
28
Williams's assertions are meritless. He concedes that he perjured himself. We agree and find that the district court's factual determina tion of perjury was not clearly erroneous. See United States v. Riley, 991 F.2d 120, 125 (4th Cir.), cert. denied, 62 U.S.L.W. 3319 (U.S.1993). Furthermore, an enhancement pursuant to U.S.S.G. Sec. 2D1.1(b)(1) may be based on conduct for which the defendant was acquitted. See United States v. Nelson, 6 F.3d 1049, 1057 (4th Cir.1993), cert. denied, 62 U.S.L.W. 3792 (U.S.1994); United States v. Romulus, 949 F.2d 713, 716-17 (4th Cir.1991), cert. denied, 60 U.S.L.W. 3719 (1992). The district court's determination that a firearm was present was not clearly erroneous. See United States v. Apple, 915 F.2d 899, 914 (4th Cir.1990).
29
Finally, reviewing for clear error the factual determination that Williams was an organizer or leader, see United States v. Sheffer, 896 F.2d 842, 846 (4th Cir.), cert. denied, 498 U.S. 838 and 498 U.S. 968 (1990), the district court did not err in enhancing his sentence pursuant to U.S.S.G. Sec. 3B1.1.
30
Williams's and Braxton's claims are meritless. Accordingly, we affirm the district court. We dismiss Braxton's motion to expedite as moot, and we dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.5
AFFIRMED
1
The jury also found four other Defendants guilty of possessing with intent to distribute heroin and cocaine, conspiring to distribute heroin, and money laundering. This Court affirmed their convictions in United States v. Williamston, Nos. 91-5163, 92-5018, 92-5031, 92-5044 (4th Cir. Dec. 21, 1993) (unpublished)
2
A government expert testified that "can't dance" and "bald-headed tires" was street slang for "poor quality of heroin."
3
There is further evidence that the pouch contained heroin. The evidence at trial established that Braxton attempted to purchase heroin from Williams in February. In a taped phone call, one of Williams's distributors told a purchaser that it "came close but it wasn't you, know, worth nothing." Both men dealt only in heroin
4
We grant Williams's "Motion to Brief a Fifth Amendment Violation" in relation to this testimony and have considered the brief he submitted with the motion
5
We also deny Braxton's motion to deconsolidate his appeal
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