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242 P.3d 1288 (2010)
2010-NMCERT-008
SUMMIT ELECTRIC
v.
RHODES.
No. 32,540.
Supreme Court of New Mexico.
August 27, 2010.
Denials of Certiorari.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-2607
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
James Glenn Hayes, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: January 17, 2008
Filed: January 29, 2008
___________
Before BYE, SMITH, and BENTON, Circuit Judges.
___________
PER CURIAM.
James Hayes pleaded guilty to conspiring to manufacture a mixture or substance
containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
possessing pseudoephedrine knowing that it would be used to manufacture
methamphetamine, in violation of 21 U.S.C. § 841(c)(2). The district court1 varied
downward from the advisory Guidelines sentence of life, and sentenced Hayes to 324
months in prison followed by 5 years of supervised release for the conspiracy count,
and a concurrent 240-month prison sentence and 3 years of supervised release for the
1
The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
possession count. On appeal, Hayes’s counsel has moved to withdraw and has filed
a brief under Anders v. California, 386 U.S. 738 (1967).
Counsel argues in the Anders brief that the sentence imposed is unreasonable.
Upon careful review, however, we conclude that the sentence is not unreasonable
given the court’s consideration of appropriate factors under 18 U.S.C. § 3553(a). See
Gall v. United States, 128 S. Ct. 586, 596-97 (2007) (appellate court must review
sentence under abuse-of-discretion standard regardless of whether sentence is inside
or outside Guidelines range); United States v. Haack, 403 F.3d 997, 1003-04 (8th Cir.
2005) (reasonableness of sentence is reviewed for abuse of discretion).
In a pro se supplemental brief, Hayes contends that his counsel was ineffective
at the sentencing hearing, and that the district court’s imposition of sentencing
enhancements was contrary to United States v. Booker, 543 U.S. 220 (2005). He also
seeks the appointment of new counsel. We decline to review Hayes’s ineffective-
assistance claim in this direct appeal, see United States v. Ramirez-Hernandez, 449
F.3d 824, 826-27 (8th Cir. 2006) (declining to review ineffective-assistance-of-
counsel claim on direct appeal; claim is more properly raised in separate motion under
28 U.S.C. § 2255); and the district court did not violate Hayes’s constitutional rights
in applying the sentencing enhancements because the court treated the Guidelines as
advisory, see Booker, 543 U.S. at 259 (excising statutory provision that requires
sentencing courts to impose sentence within applicable Guidelines range allows
Guidelines to satisfy constitutional requirements).
Reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75 (1988),
we have found no nonfrivolous issues. Accordingly, we grant counsel’s motion to
withdraw, deny Hayes’s request for new counsel, and affirm.
______________________________
-2-
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868 F.Supp. 852 (1994)
Deborah A. JOHNSON, M.D.
v.
EL PASO PATHOLOGY GROUP, P.A. and El Paso Healthcare System, Ltd. d/b/a Sun Towers Hospital.
No. EP-93-CA-370-F.
United States District Court, W.D. Texas, El Paso Division.
June 27, 1994.
*853 *854 *855 Thomas Spienczy, El Paso, TX, for plaintiff.
Joseph Hood, El Paso, TX, for defendants.
MEMORANDUM OPINION AND ORDER
FURGESON, District Judge.
Alleging that she was fired because of her sex, Plaintiff Deborah A. Johnson ("Johnson"), a pathologist, sued Defendants El Paso Pathology Group, P.A. (the "Group") and El Paso Healthcare System, Ltd. d/b/a Sun Towers Hospital (the "System") for violating Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The case was tried to the Court. Since Johnson demonstrated that her sex was a motivating factor for her termination, 42 U.S.C. § 2000e-2(m), the Court is of the opinion that she should receive the judgment of this Court in accordance with this Memorandum Opinion and Order.
THE FACTS
Johnson is a female pathologist, board certified in all aspects of her specialty. In 1985, she came to El Paso to practice medicine as an employee of a professional association owned by Dr. Edwin Seaman ("Seaman"). The association provided pathology services on an exclusive basis to two El Paso hospitals, Sun Towers and Vista Hills. From the time of her arrival, Johnson practiced at Sun Towers and Seaman practiced at Vista Hills. Eventually, Johnson gained ownership in Seaman's professional association and the name of the association became Drs. Seaman and Johnson, P.A.
In 1988, El Paso Healthcare System, Ltd., a Texas limited partnership, acquired Sun Towers and Vista Hills. Thereafter, through their association, Johnson and Seaman continued to provide exclusive pathology services to the hospitals, which began to increase in patient census and case load. Sometime in 1990, both the hospitals and the association agreed that additional pathologists were needed to staff the increasing patient census and case load. The need was accentuated because Seaman was also experiencing health problems. Although the System believed the need was further accentuated because of complaints by other physicians regarding the pathology services at the System's hospitals, the record regarding complaints is minimal and certainly not substantial enough in any way to suggest that either *856 Seaman or Johnson were failing to perform their duties. To the contrary, the record indicates that, during the relevant time period, both pathologists performed their duties in a competent and conscientious manner.
After some initial staffing efforts in 1990 were unsuccessful, the parties agreed to recruit Dr. Mariano Allen ("Allen") to join Johnson at Sun Towers. Allen was practicing at a nearby hospital and was well-known and well-respected by the El Paso medical community. It was contemplated that he would work for Seaman and Johnson, P.A. on an equal basis with the owners. Serious negotiations were conducted between Allen, the System and Seaman and Johnson, P.A. Although it first appeared that Allen would move his practice to Sun Towers at the end of 1990, he changed his mind and decided not to.
In 1991, Seaman and Johnson continued their efforts to recruit additional pathologists for the two hospitals in the System. In April, 1991, they successfully concluded those efforts and signed employment contracts with Dr. Guadalupe Manriquez ("Manriquez") and Dr. Alicia Guajardo Murphy ("Murphy"). Both physicians were told that they would be on a partnership track with the association. Under the terms of the contract between the System and Seaman and Johnson, P.A., the System's consent was required before Seaman and Johnson could employ additional pathologists. The System gave its consent to employ the new physicians. Manriquez began her practice at Sun Towers in July of 1991 and Murphy began her practice at Vista Hills in September of 1991.
Nineteen-ninety-one was a crucial year in the relationship between the System and Seaman and Johnson, P.A. and particularly in the relationship between Johnson and the administration at Sun Towers. At the beginning of the year, Johnson worked with Chris Schneider ("Schneider") who was the Technical Laboratory Director of the pathology laboratory at Sun Towers. From all accounts, the two worked well together. Both, however, had problems working with George Sugawa, who was the Assistant Administrator or chief operating officer at Sun Towers, reporting directly to the chief executive officer of the hospital, Kevin Hicks ("Hicks").
Schneider left Sun Towers in February, 1991. Thereafter, in a memorandum dated March 15, 1991, entitled "Exit Comments," he wrote to Hicks to express his concern about Sugawa. Schneider complained about the "discriminatory comments" Sugawa made during "our search for additional pathology coverage...." Schneider quoted Sugawa as saying that "he wanted a man up there (as a pathologist in the lab) ... I don't want another woman." Plaintiff's Exhibit 2. The only woman pathologist at Sun Towers was Johnson. In Schneider's Exit Comments memorandum, he also stated that he "witnessed Mr. Sugawa making sexist comments about nurses and other female medical professionals in general." Plaintiff's Exhibit 2. In his deposition, Schneider told of additional instances of Sugawa's attitudinal problems with women in general and Johnson in particular. In one example, Schneider recounted a statement by Sugawa that, if Johnson did not stop meddling in hospital salary negotiations, "he would rip her tits off." Plaintiff's Exhibit 23, Schneider Deposition, p. 8. Although Sugawa denied making the "tits" comment, he did admit that he probably referred to women in the hospital as "bitches and broads." He also admitted that he probably used the reference in comments specifically about Johnson and hospital nurses. Since Schneider sent his Exit Comments memorandum to Johnson, she was wellaware of the views of Sugawa, the hospital's second ranking officer.
Although the System takes the position that Sugawa had no decision-making authority as to which pathologists would work in the hospital during the period relevant to the suit, Sugawa, as chief operating officer of Sun Towers, did have influence in all decision-making processes, including those relating to pathologists. Indeed, Hicks admitted that Sugawa had input and attended meetings where matters relating to pathologists were discussed. Moreover, as far as a hospital pathologist was concerned, Sugawa desired a male.
Even though Hicks himself denied that he had any preference for a male pathologist, *857 Schneider testified that Hicks told him that Hicks felt a male would do a better job than a female in relating to the medical staff. Plaintiff's Exhibit 23, Schneider Deposition, p. 11. Schneider's testimony is credible on this issue, even in light of Hicks' denial, because Hicks never followed up with Schneider after receiving the Exit Comments memorandum. Plaintiff's Exhibit 23, Schneider Deposition, p. 10. The charges were significant and warranted an investigation and a follow up. Even though he did not talk to Schneider, Hicks did talk to Sugawa about the memorandum and thought that such a discussion was sufficient "corrective action" with respect to the issues raised in the memorandum. Hicks did not know if his action could be considered a disciplinary action.
Hicks did nothing further about Sugawa's behavior, either by way of investigation or discipline. If Hicks had, he would have undoubtedly found out about Sugawa's references to women at the hospital as "bitches and broads." As it was, Hicks never learned of the comments. He admitted that, if he had learned of them, he would have considered the matter a "pretty big problem," requiring discipline to occur.
Even before Schneider wrote his "Exit Comments" memorandum, Johnson and Sugawa were at odds in regard to Johnson's input into laboratory matters at Sun Towers, as noted in the Schneider memorandum. Johnson clearly expressed her desire to have input and the record shows that she had good reasons for desiring input, one being that she had general responsibility for the laboratory in light of "Standards for Laboratory Accreditation" published by the College of American Pathologists. See Defendants' Exhibit 17. On the first page of the Standards, the responsibility is clearly stated:
The pathology service [of the hospital] shall be directed by a physician or doctoral scientist qualified to assume professional, scientific, consultative, organizational, administrative, and educational responsibilities for the service. Generally, it is medically preferable that the director be a board certified pathologist. The director shall have sufficient authority to implement and maintain the Standards.
During Schneider's tenure, Sugawa sometimes thwarted Johnson's input into laboratory matters; however, the problems intensified after Sugawa hired Schneider's replacement, Mirna Ibarra ("Ibarra"), in the spring of 1991. In her job as Technical Laboratory Director at Sun Towers, Ibarra was required to work closely with Johnson in the operation of the hospital's pathology laboratory. She did not do so, however. Instead, she found it often inconvenient to meet with Johnson and ignored or disregarded much of Johnson's input. Ibarra's actions were consistent with the pattern already established by Sugawa, who knew the role of the medical director of the hospital's pathology laboratory but steadfastly refused to support Johnson in that role. Johnson, along with Manriquez, tried to get the cooperation of Ibarra, by using meetings and positive feedback. In a memorandum dated July 25, 1991, Johnson and Manriquez wrote to Ibarra to comment on the "very productive meeting" the three of them had had and to reiterate their (the physicians') "intention to take an active role in the laboratory." Plaintiff's Exhibit 7. Sugawa and Hicks received copies of the memorandum. Sugawa basically ignored the complaints of the physicians and, by his attitude, if nothing else, led Ibarra to ignore them as well. Eventually, the situation deteriorated to the point that Johnson resigned as medical director as of April 1, 1992. Even then, things did not improve and she finally went to the Chief of Staff of Sun Towers, Dr. Dionicio Negrete ("Negrete") to try to resolve the matter. She was not precipitous; she tried for over one year to solve the problem before she went to Negrete.
Negrete respected Johnson and understood the role a pathologist plays in a hospital's pathology laboratory. He was angered by Ibarra's conduct and met with Hicks and Sugawa to demand that she be fired. Sugawa argued against any disciplinary action toward Ibarra, clearly because he had encouraged her in the very conduct Negrete found so offensive. A compromise was reached and Ibarra was placed on six months' probation. Defendants' Exhibit 54. *858 One of the requirements of probation was that Ibarra develop and maintain a "professional attitude" with the hospital's pathologists. This one requirement is proof enough that Ibarra's prior attitude had been unprofessional, an attitude clearly fostered by Sugawa. In another setting, Ibarra and Johnson might have worked together well, because both women are competent and earnest about their work. The environment of Sun Towers did not allow such a result, however, because the attitude developed that the ranking pathologist had to be a male for there to be proper respect. Although Hicks' role in all of this was less aggressive than Sugawa's, he certainly never attempted to correct Sugawa or the situation and through inaction basically affirmed everything Sugawa did.
The attitude adopted by the System basically went unchallenged and unremedied except for Negrete's intervention. Indeed, his response alone is strong proof of how inappropriately Sun Towers acted toward Johnson; he condemned the attitude in a decisive way.
Now, the narrative must return to 1991. In the midst of the Johnson/Ibarra problems in the summer of 1991, the Joint Commission on Accreditation of Healthcare Organizations ("JACHO") conducted their accreditation investigation of Sun Towers. Such investigations are conducted every three years. The process is an intensive one and requires a major effort by physicians and staff in preparation. After completing its work at Sun Towers, the JACHO rendered its summation on September 11, 1991, and found pathology and laboratory at Sun Towers to be in "exceptional compliance." Defendants' Exhibit 20 at p. 3. The System's position at trial was that this excellent result should be attributed almost alone to Ibarra's efforts, although she had been at Sun Towers for barely six months when the investigation occurred. The efforts of Johnson, who had been medical director for the full three years since the last JACHO investigation, were discounted by Sun Towers and the System. Such a position is unwarranted and illustrates again how difficult it was for Sun Towers and the System to properly acknowledge the contributions of the female medical director of the hospital's pathology department. By the end of 1991, Johnson was in the position of being undervalued and undermined by the System.
It was no real surprise, then, when the System went back to Allen at the end of 1991 and recruited him to take over the pathology work at the System's hospitals. The System had Allen create a professional association (the "Group") and then, on January 3, 1992, the System entered into a Full Service Management Agreement with the Group to provide exclusive pathology services for Sun Towers and Vista Hills. The contract with Seaman and Johnson, P.A. ended and its four pathologists were offered employment with the Group, to work under Allen's direction. Johnson' reaction to this change was a negative one and she told more than a few people that she did not plan to be a team player under the new arrangement. Nonetheless, she went to work for the Group and continued to perform her tasks professionally. Still, her relationship with Allen was uneven. As previously mentioned, she resigned as medical director on April 1, 1992, but remained as a pathologist at Sun Towers.
Johnson's relationship with the System and the Group deteriorated further. Sugawa and Ibarra were not cooperative and Johnson finally approached Negrete for help in August of 1992. Although she got the support she deserved, she apparently won the battle and lost the war. Steps which would lead to her termination began almost immediately thereafter.
After he took over the System's pathology services, Allen found it awkward to work with Johnson and Manriquez at Sun Towers. In a conversation with Seaman in September of 1992, Allen attributed his problems with Johnson and Manriquez to the fact that they were women. Allen is a courtly man and certainly never engaged in the same kind of conduct characterized by Sugawa, but he still was unable to build the comfort level necessary to establish a satisfactory working relationship with his two female counterparts. Consequently, he experienced a great deal of frustration with Johnson and Manriquez, in part because they were women who "cried" and had "headaches." It is Allen's position *859 that he said these things in a joking way to Seaman. The comments nevertheless suggest an underlying attitude which prevented Allen from relating to Johnson as a full person but instead caused him to relate to her from some stereotypical view toward women.
By September of 1992, Allen decided he could not work with Johnson. Sugawa testified that, at this time, he, Allen and Hicks met to discuss terminating Johnson. They finally decided to offer Johnson the opportunity to move to Vista Hills. According to Murphy, such an offer would have, at best, caused Johnson to make a real sacrifice as a physician, requiring her to essentially start over in a new position with new relationships to be established. When Johnson declined, Allen wrote her that the Group would not renew her contract. Plaintiff's Exhibit 19. The System and the Group decided to replace Johnson with Dr. Glenn Friedman ("Friedman"), who was contacted about the position around the time Johnson was offered the move to Vista Hills. The timing of the contact with Friedman leaves unclear the sincerity of the offer to Johnson to move; it may have been made with the certain belief that she would find the offer unacceptable. In the end Johnson was terminated as of December 31, 1992, and her replacement was a man.
Throughout the relevant time period, Johnson's behavior and attitude were not always exemplary, which probably exacerbated the problems between her and the System and Allen. There were instances when she yelled and cursed during conversations with Allen. She even kept a sign in her office for some period which read that people talking to her should be cautious because she could go from sweetheart to bitch in 30 seconds. Still, her actions were not of such a nature to warrant her termination or to warrant her sex being a motivating factor for her termination. After she was fired, she took the steps necessary to perfect her claim through the administrative procedures of the Equal Employment Opportunity Commission, and then she instituted this suit.
DEFENDANTS AS "JOINT EMPLOYERS"
A jurisdictional issue confronts Johnson at the outset of her suit. Her employment contract was with the Group, which had less than fifteen employees. Therefore, unless the System, which had more than fifteen employees, was also her employer, she cannot maintain her suit under Title VII, 42 U.S.C. § 2000e(b). Johnson argues that Defendants were joint employers and cites the Court to the four factors set out in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir.1983). Defendants argue that only the Group was Johnson's employer and cite the Court to the factors set out in Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270 (5th Cir.), cert. denied, 488 U.S. 956, 109 S.Ct. 394, 102 L.Ed.2d 383 (1988).
The fact situation in this case is more suited to an analysis under the Trevino case, and the Court is of the opinion that, under the factors outlined in Trevino, Defendants were the joint employers of Plaintiff. Therefore, the Court will analyze the Trevino factors first. Then, the Court will consider the applicability of Diggs to the instant case.
Before examining those points of view, however, the Court will discuss the argument of the System that Johnson could not legally have been an employee of the System because, under Texas law, physicians cannot be employed by entities other than those wholly owned by physicians. Tex.Rev. Civ.Stat. art. 4495b, § 3.08(15) (1994). The Court is not persuaded by the argument. In Calderon v. Martin County, 639 F.2d 271 (5th Cir.1981), the Fifth Circuit reversed a dismissal of a Title VII action where the District Court found there was no employer-employee relationship because of the restrictions of state law. According to the opinion in Calderon, state law was not controlling. A plaintiff's status as an employee under Title VII is a question of federal law, to be "ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand." 639 F.2d at 272-73. Therefore, the inquiry in this case is not ended with citation to the Texas Medical Practice Act and its prohibition of non-physician entities employing physicians. Employer-employee status under Title VII *860 must be examined in light of the broad remedial purposes of the federal law and cannot be simply determined by reference to particular state employment laws. At the same time, it cannot be argued that, if the System is found to be Johnson's employer for purposes of Title VII, then the Medical Practices Act has been violated. There is no "Catch 22" operating in this interplay between state and federal law.
a. The Trevino Test
In Trevino, the Fifth Circuit looked at four factors to determine whether "superficially distinct entities may be exposed to liability upon a finding that they represent a single, integrated enterprise: a single employer." 701 F.2d at 404. Those factors were (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control. Id. The Fifth Circuit also observed that courts focus on the second factor and ask what entity made the final decisions regarding employment matters. Id.
Since the focus is on centralized control of labor relations, that factor will be examined first. The record is clear that the System was significantly involved and ultimately controlled the Group's employment relations with its physicians. Under Paragraph 4.2 of the Full Service Management Agreement (the "Agreement") between the two entities, the number of physicians retained by the Group was to be determined in consultation with and upon the written consent of the System. Defendants' Exhibit 22. Under the same paragraph, the Group had to obtain the written approval of the System prior to replacing existing physicians or to engaging additional physicians, and the System administered the compensation and benefits for the physicians. As Allen testified, the Group and the System were a team, making joint decisions. The termination of Johnson was an example of the team concept, because the decision to terminate was done jointly, according to Allen. Certainly, by contract and by implementation, the System made the final decisions or at least reserved for itself the ultimate decisions regarding the physician employment matters for the Group.
It is also clear that the other three factors outlined in Trevino are satisfied in this case. Indeed, Paragraphs 2.1 and 2.2 of the Agreement alone illustrate interrelation of operations, common management, and common financial control. Under Paragraph 2.1, the Group appointed the System as "its sole and exclusive agent for the management and administration of the business functions and services" related to the Group's provision of Medical Services. Under Paragraph 2.2, the System had the responsibility and commensurate authority to provide "business, administrative and full management services" for the Group. This included, "without limitation, management, administration, billing and collection services, financial consulting, financial record keeping and reporting, preparation of financial statements and income tax returns, cash management services, contract negotiation, scheduling of non physician personnel, support services, non physician personnel, marketing and other business office services." Basically, the System had complete control over the operations, management, and finances of the Group. The control was so complete that the Group could not incur any liability exceeding $1,000 without permission of the System. Since the annual revenues of the Group exceeded $1,000,000, this limitation is a remarkable example of the pervasive extent of control the System exercised over the Group.
b. The Diggs Test
As the above discussion illustrates, Defendants were joint employers under Trevino. Next, the Court will consider the applicability of Diggs v. Harris Hospital-Methodist, Inc., 847 F.2d 270 (5th Cir.), cert. denied, 488 U.S. 956, 109 S.Ct. 394, 102 L.Ed.2d 383 (1988), to the present case. In the beginning, it must be noted that the Diggs factual background differs in significant respects from the background in this case. Diggs involved a plaintiff who was complaining about the termination of her staff privileges from the defendant hospital. Having staff privileges at a hospital is not the same as being employed by a hospital. Therefore, the issue in Diggs was not whether *861 the plaintiff had joint employers but whether the hospital was an employer at all. An examination of part of the opinion from Diggs, 847 F.2d at 272-73 illustrates the difference:
If an employee-employer relationship existed between plaintiff Diggs and defendant Harris Hospital, undoubtedly Diggs has standing to bring a claim under Title VII. Harris Hospital does not dispute that it is an employer as defined by Title VII. The question here, then, is whether Diggs's relationship with Harris Hospital was one of employee or independent contractor. While the parties agree that the economic realities/common law control test of Spirides [v. Reinhardt, 613 F.2d 826 (D.C.Cir.1979)] is the appropriate standard, they disagree on the result of its application to the facts of this case. Harris Hospital argues that Diggs was an independent contractor, while Diggs contends that she was an employee.
We agree with the district court that Diggs was not an employee of Harris Hospital for purposes of Title VII. The economic realities of the work relationship, and the extent to which the one for whom the work is being done has the right to control the details and means by which the work is to be performed, with emphasis on this latter control factor. Mares [v. Marsh], 777 F.2d [1066] at 1067 [(5th Cir.1985)]. Additionally, courts are to consider the following factors in determining whether an employee-employer relationship exists for Title VII purposes:
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisor or is done by a specialist without supervision; (2) the skill required in the particular occupation; (3) whether the `employer' or the individual in question furnishes the equipment used and the place of work; (4) the length of time during which the individual has worked; (5) the method of payment, whether by time or by the job; (6) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (7) whether annual leave is afforded; (8) whether the work is an integral part of the business of the `employer;' (9) whether the worker accumulates retirement benefits; (10) whether the `employer' pays social security taxes; and (11) the intention of the parties.
Broussard [v. L.H. Bossier, Inc.], 789 F.2d [1158] at 1160 [(5th Cir.1986)] (quoting Spirides, 613 F.2d at 832).
As a matter of economic reality, Diggs, as an obstetrician-gynecologist, is dependent upon having hospital staff privileges in order to pursue her medical practice. There was no evidence submitted at trial, however, that privileges at Harris Hospital were necessary to her practice or that denial of staff privileges at Harris Hospital hampered her ability to obtain staff privileges at any other Fort Worth hospital. Furthermore, in determining her working relationship with the hospital, we are to focus more on the control factor. Mares, 777 F.2d at 1067. While the hospital supplies the tools, staff and equipment utilized by Diggs in delivering medical care at the hospital, and while it imposes standards upon those permitted to hold staff privileges, the hospital does not direct the manner or means by which Diggs renders medical care. Diggs is under no duty to admit any of her patients to Harris Hospital, and Harris Hospital does not pay her for her services.
The plaintiff in Diggs was a private physician who brought patients into the defendant hospital. She did not receive a paycheck from the hospital or from any association or group which performed exclusive services under contract with the hospital. Her patients paid for her services, which could be performed at other hospitals within the area. Johnson, on the other hand, depended entirely on the Group for her paycheck. She could not go to other hospitals outside the System to earn a living because, like the System, the other hospitals dealt exclusively with their own groups of pathologists. Finally, Diggs was not a joint employer case. The only question in Diggs was whether the hospital employed Diggs, not whether the hospital and some other entity jointly employed *862 Diggs. Under the circumstances, Diggs is not applicable to the instant case.
SEX AS MOTIVATING FACTOR FOR TERMINATION
Based upon the facts in this case, the Court is of the opinion that sex was a motivating factor in the decisions of Defendants (1) to transfer Johnson from Sun Towers to Vista Hills Hospital and (2) to terminate Johnson's employment when she refused to move. Defendants argue that, in fact, Johnson was not terminated but rather was simply not renewed under her contract due to her refusal to accept a transfer to Vista Hills. Under the circumstances if Johnson was not terminated, then Defendants argue that Johnson's only possible alternative is to assert that she was "constructively discharged." Since constructive discharge can occur only when working conditions are so intolerable that a reasonable person would be compelled to resign, Jurgens v. E.E.O.C., 903 F.2d 386 (5th Cir.1990), Defendants conclude that the facts here do not support constructive discharge because conditions for Johnson could not have been found to be so intolerable as to cause her resignation.
Although conditions were not good for Johnson at Sun Towers, the Court does not need to decide whether they were so intolerable as to cause a reasonable person to resign, because the Court does not believe that this is a constructive discharge case. Johnson did not resign. She was told not to come back. She was discharged, not constructively but actually. Although this Court cannot find any case exactly on point, it does not seem reasonable under Title VII that a plaintiff must accept a transfer motivated, in part, by sexual discrimination or else forfeit all of her other federally protected rights. See, for example, Ellison v. Brady, 924 F.2d 872, 882 (9th Cir.1991). Johnson was not required to accept a transfer motivated by the fact that she was a female to solve a problem that Defendants, not her, had created. Likewise, Defendants cannot now cite her failure to move as a justification for her termination, which was also motivated by the fact that she was a female.
Defendants also argue that Johnson failed to prove that the reasons given by her employers for their action were pretextual. In their Motion for Judgment as a Matter of Law, at pages 8-9, Defendants assert:
Once plaintiff sets forth a prima facie case of discrimination, the burden shifts to the defendants to articulate a legitimate, nondiscriminatory reason for their action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55 [101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207] (1981). However, `[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff,' id. at 253. Thus, after the defendant articulates a non-discriminatory reason for its action, the burden shifts to the plaintiff to show that the articulated reason is pretextual. Id. at 256 [101 S.Ct. at 1095]. Plaintiff could have done this either directly by persuading the trier of fact that it was a discriminatory reason which more likely motivated the employer or indirectly by showing that the employer's proffered reason is unworthy of credence. Id. However, she has failed to do either.
From this assertion, Defendants then argue that Johnson was such a difficult person and so difficult to deal with that she was fired for that reason. Indeed, Defendants cite the fact that Allen found Johnson so difficult that he even tried to quit rather than work with her. Defendants believe that it was Johnson's personality rather than her sex that was the motivation for her termination.
The Court disagrees, however. Johnson was not difficult in the beginning. It was only after Defendants started the incessant drumbeat that women in general and Johnson in particular could not direct the pathology department at Sun Towers that she reacted to her situation. See, for example, Hopkins v. Price Waterhouse, 920 F.2d 967, 981 (D.C.Cir.1990). Although Johnson was not always wise in her reactions, it was not, in the end, those reactions which were the motivation for her termination. Instead, based upon the totality of the factual situation in this case, the Court is convinced that Johnson's sex was a motivating factor in *863 connection with her termination. If Defendants had re-evaluated their role in creating the awkward situation that existed with Johnson, the Court believes she would have been a positive contributor to the pathology department at Sun Towers. She was qualified; her past performance was acceptable; she was not the problem. Johnson has therefore met her burden; the discriminatory reason for her termination was proved to be the real reason for Defendants' actions. Defendants reasons for the termination are therefore a pretext.
Defendants argue against this conclusion, of course, even though the actions and words of representatives like Sugawa certainly are direct proof of discriminatory intent. To avoid the impact of Sugawa's conduct, Defendants argue that his words were merely stray comments, made well before Johnson's termination, by someone not a decisionmaker. It is unnecessary to repeat Sugawa's intemperate remarks, but it should be noted that Defendants' arguments fail to consider that the comments were totally unacceptable, were known by Johnson, were made with some regularity and were never condemned in any meaningful way by the System's management. Moreover, there is no evidence that Sugawa recanted or apologized to anyone about his comments. They could not, therefore, be limited in time to a period well before Johnson's termination. Finally, Sugawa was a decisionmaker. He was chief operating officer of Sun Towers and participated in some of the important meetings which finally led to Johnson's termination. Although Sugawa was not the only person who evidenced the discriminatory motivation for Johnson's termination, he is certainly a strong example of that motivation. Contrary to Defendants' arguments, the facts cause the Court to conclude that Johnson's termination was an act of discrimination against her based on her sex.
The final proof of this conclusion is that Johnson's replacement was a man. Defendants argue that, if Johnson had willingly transferred to Vista Hills Hospital, then she would have been replaced at Sun Towers by Murphy, another woman. They then conclude that her "real" replacement was thus to have been a woman. The fact is, however, that Johnson was terminated at Sun Towers and replaced by Friedman, a man, who had similar experience to Murphy but was paid substantially more than she was when he was hired. Defendants could have transferred Murphy to Sun Towers when they terminated Johnson; they chose not to do so. They replaced Johnson with a man rather than promote a fine pathologist who was already in their organization and who was a pleasant and attractive person in every way. The System and the Group wanted a man in Johnson's position. When the dust settled, a man was there. It was not an accident.
DAMAGES
Although Defendants do not argue that this is a mixed motive case, primarily because they take the position that no improper motive was involved in Johnson's termination, the actual result of their argument, since the Court finds improper motive, is that the case involved mixed motive. A helpful dissertation on this concept is found in Friedman and Strickler, The Law of Employment Discrimination, (3d ed. 1993) (The Foundation Press, Inc.) at 162-63:
One issue in Price Waterhouse [Price Waterhouse v. Hopkins, 490 U.S. 228 [109 S.Ct. 1775, 104 L.Ed.2d 268] (1989)] on which all the Justices agreed was the relationship between the causation determination and liability under Title VII; if the employer satisfies its burden of proving that it would have made the same decision absent discriminatory motivation, there is no Title VII liability. In the Fall of 1991 Congress enacted and the President signed the Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071 (1991) which was intended in part to reverse Price Waterhouse. Section 107 of the that [sic] Act amends Section 703 of Title VII (Unlawful Employment Practices) by adding the following subsection:
(m) Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even *864 though other factors also motivated the practice.
The 1991 Act thus defines an unlawful employment practice to include any employment practice which is influenced in any manner by an unlawful motivation. But as the Act expands the scope of Title VII liability, it also restricts the kind of relief available in mixed-motive cases. Section 706(g) of Title VII generally provides for a wide range of remedies against an employer guilty of unlawful employment practices including reinstatement, back pay, compensatory and punitive damages.... Section 107 of the 1991 Act adds to Section 706(g) the following new subparagraph:
(B) On a claim in which an individual proves a violation under section 703(m) and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 703(m); and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph [706(A)].
Under the 1991 Act if a plaintiff proves that her discharge was in part the result of an unlawful motivation but the employer establishes to the court's satisfaction that, even absent the unlawful motivation, it would have discharged her anyway, the plaintiff may still be awarded a declaratory judgment, an injunction or attorney fees.
The Court does not believe, however, that the instant case is a mixed motive case which would limit damages. Absent the unlawful motivation, Defendants would not have discharged Johnson anyway. Her conduct which Defendants argue justified her termination was not, in fact, justification. Indeed, until Defendants began their impermissible conduct toward Johnson, her own conduct was not the subject of criticism or complaint. Therefore, the full range of damages are available to Johnson. Of these, the Court determines that back pay, compensatory damages of front pay and legal fees are appropriate.
Johnson has suffered lost back pay in the amount of $187,000.
Johnson has suffered compensatory damages of front pay for two years in the amount of $267,401. The Court believes damages for two years are appropriate because Johnson is a competent pathologist and should be able, with diligence, to find a position of comparable salary to her Sun Towers' position within a two-year period. The Court will enter its judgment accordingly.
Johnson should also be awarded legal fees. The Plaintiff shall file its Motion for Attorney's Fees within ten days after the judgment is entered.
Costs are imposed against Defendants.
JUDGMENT
In accordance with the Memorandum Opinion and Order signed by the Court on June 23, 1994, the Court is of the opinion that Judgment should be entered for Plaintiff Deborah A. Johnson, M.D. in the above-captioned cause.
It is accordingly ORDERED, ADJUDGED AND DECREED that Judgment be entered on behalf of Plaintiff Deborah A. Johnson, M.D., against Defendants El Paso Pathology Group, P.A. and El Paso Health-care System, Ltd. d/b/a Sun Towers Hospital, and that Plaintiff recover from Defendants the sum of $454,401 in damages plus interest, costs and attorney's fees.
ORDER FOR ATTORNEYS' FEES
On this day, the Court considered Plaintiff's Fee Application, pursuant to Local Court Rule CV-7(j), filed on July 5, 1994, in the above-styled and numbered cause. Defendants failed to file a Response or any Objections to the Fee Application, timely or otherwise. Upon consideration of the Affidavits and supporting documentation, the Court is of the opinion the Fee Application and *865 Affidavits for reasonable Attorneys' Fees should be GRANTED.
In accordance with the Final Judgment entered by this Court on June 27, 1994, the Court enters its award of attorneys' fees and costs as they relate to proceedings pending before this Court. Counsel for Plaintiff requests $34,176.44 for attorney's fees and expenses.
STANDARD FOR AWARD OF ATTORNEYS' FEES
The District Court shall allow costs as a matter "of course to the prevailing party unless" otherwise directed by the Court. Fed.R.Civ.P. 54(d); See 28 U.S.C. § 1920 (taxation of costs). However, under the "American Rule," "each party in a lawsuit ordinarily shall bear its own attorney's fees unless there is express statutory authorization to the contrary." Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). "Where a statute or contractual provision authorized a fee award, such an award becomes the rule rather that the exception, and should be awarded routinely as are costs of suit." Engel v. Teleprompter Corp., 732 F.2d 1238, 1241 (5th Cir.1984). Further, the District Court can "enforce a valid fee-shifting provision as an exception to the American Rule." Resolution Trust Corp. v. Marshall, 939 F.2d 274, 279 (5th Cir.1991).
"The standard in this circuit governing the computation of attorney's fees is set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) and its progeny." Graves v. Barnes, 700 F.2d 220, 221 (5th Cir.1983). The Fifth Circuit provided the following criteria: (1) the time and labor required; (2) the novelty and the difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorneys due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitation imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, 488 F.2d at 717-719.
The Johnson standard has been further refined by the Fifth Circuit's adoption of the "lodestar" method of calculating attorneys' fees. Graves, 700 F.2d at 222. "Under this refinement of the Johnson text, "`[t]he "lodestar" is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work. The lodestar is then adjusted to reflect other factors such as the contingent nature of the suit and the quality of the representation.'" Id. (quoting Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1093 (5th Cir.1982)). The District Court "should not award a contingency multiplier in every case. Under appropriate circumstances, attorneys may be adequately compensated through the reasonable calculation of the lodestar." Id. at 224.
The District Court "is afforded broad discretion to determine the award of attorneys' fees." Greenhaw v. Lubbock Beverage Ass'n, 721 F.2d 1019, 1031 (5th Cir. 1983) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). In arriving at the appropriate amount, the District Court "must `explain the findings and reasons upon which the award is based, including an indication of how each of the twelve criteria in Johnson affected his [or her] decision.'" Copper Liquor, Inc. v. Adolph Coors Company, 624 F.2d 575, 581 (5th Cir.1980) (quoting In re First Colonial Corp., 544 F.2d 1291, 1300 (5th Cir.), cert. denied, 431 U.S. 904, 97 S.Ct. 1696, 52 L.Ed.2d 388 (1977)). Although all twelve factors must be considered, the "Johnson criteria should be applied flexibly, not as a requirement that district courts parrot the twelve factors." Gulf Union Indus., Inc. v. Formation Sec., Inc., 842 F.2d 762, 767 (5th Cir.1988).
The District Court "should pay special heed to Johnson criteria numbers (1) the time and labor involved; (5) the customary fee; (8) the amount involved and the result obtained; and (9) the experience, reputation, and ability of counsel." Copper Liquor, *866 624 F.2d at 583. The District Court should refer to the particularly applicable Johnson factors in the following framework: "(1) Ascertain the nature and extent of the services supplied by the attorney; (2) Value the services according to the customary fee and quality of the legal work; and (3) Adjust the compensation on the basis of the other Johnson factors that may be of significance in the particular case." Gulf Union Indus., Inc., 842 F.2d at 767 (quoting Copper Liquor Inc., 684 F.2d at 1092).
CALCULATION OF ATTORNEYS' FEES
In the case sub judice, the prevailing party is entitled to reasonable and necessary attorneys' fees and expenses. Plaintiff is entitled to an award of attorney's fees pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
(1) THE TIME AND LABOR REQUIRED.
In determining the reasonableness of attorney's fees, the necessary starting point is to assess the amount of time spent by counsel on the case. Johnson, 488 F.2d at 717. In addition to a time sheet affidavits submitted by counsel, the Court should weigh the hours claimed by counsel in light of the Court's own experience and observations, and fashion a total time allowance which rationally reflects the services rendered. Id.; McDonald v. Oliver, 525 F.2d 1217, 1233 (5th Cir.), cert. denied, 429 U.S. 817, 97 S.Ct. 61, 50 L.Ed.2d 77 (1976). Moreover, investigation, clerical work, and other work which could be performed by a lay person should be distinguished from the time expended by counsel directed toward the merits of the case. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167 (3rd Cir. 1973); Foster v. Boise-Cascade, Inc., 420 F.Supp. 674 (S.D.Tex.1976), aff'd, 577 F.2d 335 (5th Cir.1978). In addition, counsel should indicate whether the person performing each task is a partner, associate, or paralegal. Johnson, 488 F.2d at 718, 719. Counsel submitted adequate affidavits and supporting documentation detailing the nature of the services rendered, the amount of time spent on such services, and the hours involved in each task performed.
(2) THE NOVELTY AND DIFFICULTY OF THE QUESTIONS.
This Court is of the opinion that the legal issues involved in this case were neither novel or complex. Counsel for all parties completely addressed these issues. The Court is not of the opinion this factor warrants adjustment to the lodestar. The Court elsewhere has determined that the hourly rates as claimed are reasonable.
(3) THE SKILL REQUISITE TO PERFORM A LEGAL SERVICE PROPERLY.
The best method the Court can utilize in assessing the skill of counsel for the prevailing parties is its own observation of the attorneys' work product. The Court finds counsel for the prevailing party ably and skillfully performed the legal services involved in this litigation, especially in responding to Defendants' dispositive motion.
(4) THE PRECLUSION OF OTHER EMPLOYMENT BY THE ATTORNEY DUE TO ACCEPTANCE OF THE CASE.
The case in general did not preclude other employment opportunities for counsel.
(5) THE CUSTOMARY FEE.
The District Court should select an hourly rate which reflects the "customary fee for similar work in the community." Johnson, 488 F.2d at 718. The Fifth Circuit Court emphasized the hourly rate should be varied by the District Court in accordance with the type of work being considered. Counsel for the prevailing party suggests the appropriate hourly rate, depending on his level of experience, is from $150.00 to $200.00 per hour. The Court is of the opinion that $175.00 per hour is a reasonable amount for Plaintiff's Counsel and is fairly representative of the customary fee for similar work in the community.
(6) WHETHER THE FEE IS FIXED OR CONTINGENT.
The affidavit of counsel for the prevailing party reflects that this case was handled on an contingency basis. Had Plaintiff not prevailed, *867 her Counsel would not have received any renumeration for his services.
(7) TIME LIMITATIONS IMPOSED BY THE CLIENT OR THE CIRCUMSTANCES.
This Court finds that no special time constraints were imposed on Plaintiff's counsel by virtue of the nature of the case or the circumstances involved.
(8) THE AMOUNT INVOLVED AND THE RESULTS OBTAINED.
Plaintiff prevailed on her claim of sex discrimination and the Judgment in this case in the amount of $454,401.00. The Court notes Plaintiff's requested amount is not unreasonable when compared to the Judgment awarded.
(9) THE EXPERIENCE, REPUTATION, AND ABILITY OF THE ATTORNEYS.
As evidenced by the record and the Final Judgment recovered, the Court finds the prevailing party was ably served by their counsel who skillfully met the substantive and procedural challenges in this case.
(10) THE "UNDESIRABILITY" OF THE CASE.
The legal specificities of the case did not provide either undesirable hardships on behalf of counsel or inordinate economic impacts a contemporary "undesirable" case might present.
(11) THE NATURE AND LENGTH OF THE PROFESSIONAL RELATIONSHIP WITH THE CLIENT.
Upon consideration of the application and affidavits of counsel, the Court does not find that the length of the attorney-client relationship in this case is a factor to be considered.
(12) AWARDS IN SIMILAR CASES.
This Court finds the award in this case proper. Further, the work done by the prevailing party's counsel was necessary and reasonable.
It is accordingly ORDERED that Plaintiff's Fee Application and Affidavits for an Award of Attorneys' Fees are GRANTED.
It is further ORDERED that Plaintiff is hereby entitled to recover reasonable attorney's fees and costs from Defendants, in the amount of $34,176.44, plus interest thereon at the legal rate from date of Judgment in this cause.
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575 F.2d 1341
Conleyv.United Steelworkers of America
No. 77-1705
United States Court of Appeals, Seventh Circuit
3/13/78
1
N.D.Ind.
AFFIRMED
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_______________________
Nos. 97-1471EA, 97-1654EA
_______________________
_____________ *
*
No. 97-1471EA *
_____________ *
*
United States of America, *
*
Appellee, *
*
v. *
*
*
Jimmy Bartlett, *
*
Appellant. * On Appeal from the United
* States District Court
_____________ * for the Eastern District
* of Arkansas.
No. 97-1654EA *
_____________ *
*
United States of America, *
*
Appellee, *
*
v. *
*
*
Russell Lance Bartlett, *
*
Appellant. *
___________
Submitted: September 11, 1997
Filed: September 19, 1997
___________
Before RICHARD S. ARNOLD, Chief Judge, FLOYD R. GIBSON and BEAM,
Circuit Judges.
___________
RICHARD S. ARNOLD, Chief Judge.
Appellants Jimmy Bartlett and Russell L. Bartlett entered conditional pleas of
guilty to drug charges and were sentenced. They now bring these appeals, contending
that the District Court1 erred in denying their motion to suppress certain evidence that
the government would have introduced against them if the case had gone to trial.
The question presented is the validity of the search warrant under which the
evidence in question was seized. In brief, the facts are these. Federal and state agents,
working together, obtained a search warrant for premises described as "THE
PREMISES KNOWN AS the Jim Bartlett residence at 402 Quarry Road, Russellville,
Pope County, Arkansas . . .." In attempting to execute the warrant, the agents went by
mistake to another house, located at 406 Quarry Road. Upon realizing that they were
at the wrong house, the agents proceeded to the right location, 402 Quarry Road, and
secured the premises. Believing that it would be prudent to do so, they then obtained
a second search warrant, containing better directions to the right address. There is no
question that the first warrant was, or would have been, valid. The contention is
1
The Hon. Garnett Thomas Eisele, United States District Judge for the Eastern
District of Arkansas.
-2-
pressed, however, that the search was conducted pursuant to the second warrant, and
that it was not valid.
The second warrant was identical to the first warrant in most respects. The
crucial difference, according to appellants, was that certain phrases contained in the
first warrant were omitted from the second warrant. The first warrant contained the
following statement:
This search warrant is to pertain to the
aforementioned residence, the aforementioned storage area
and to include the curtilage, and all purtenances thereto, and
all vehicles under his control in Pope County in the State of
Arkansas, there is now being concealed certain property,
namely: methamphetamine . . ..
In the second warrant, everything in this passage up to the words "in Pope County" is
left out. The second warrant plainly includes an incomplete sentence, and no one
reading it could fail to realize that certain material had been omitted.
It seems virtually certain that the omission was a clerical error, made by someone
on a typewriter or, perhaps, a computer. In any case, the second warrant, like the first,
commanded the officers to "search forthwith the Person/Premises named for the
property herein specified . . .." The second warrant, like the first, clearly referred to
the Bartlett residence at 402 Quarry Road, and to a storage area near the house. Thus,
even if the omission of the language in question from the second warrant is given full
effect, the second warrant still unmistakably authorizes a search of 402 Quarry Road
and of the storage area.
When viewed in context, the issue presented on appeal is wholly without
substance. Both warrants were valid. Even if, as appellants claim, we should disregard
the first warrant, and consider the case as if only the second warrant were material, the
-3-
order of the District Court denying the motion to suppress must stand. The second
warrant described the premises, including the residence and the storage area, with
particularity, and authorized the officers to search them for certain described property.
This is what the officers did, and we find no fault in their conduct.
The judgments are affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-4-
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/05/2018 01:11 AM CDT
-1-
Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Lindsay International Sales & Service, LLC, appellee,
v. M ichael J. Wegener , an individual, and
Jerome Pribil, an individual, appellants.
___ N.W.2d ___
Filed September 7, 2018. No. S-16-1051.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
2. Directed Verdict: Evidence. A directed verdict is proper at the close
of all the evidence only when reasonable minds cannot differ and can
draw but one conclusion from the evidence, that is, when an issue
should be decided as a matter of law.
3. Jury Instructions. Whether a jury instruction is correct is a question
of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
5. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
6. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
7. Judges: Words and Phrases. A judicial abuse of discretion exists if
the reasons or rulings of a trial judge are clearly untenable, unfairly
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
8. Motions for New Trial: Appeal and Error. An appellate court reviews
a denial of a motion for new trial for an abuse of discretion.
9. Contracts: Words and Phrases. A lack of consideration means no
contract is ever formed because no consideration exists or none was
intended to pass. A failure of consideration, on the other hand, means
the contract is valid when formed but becomes unenforceable because
the performance bargained for has not been given.
10. Directed Verdict: Appeal and Error. When it follows logically from
a jury’s findings that a theory on which a directed verdict was granted
could not have been successful, the directed verdict cannot be said to
have affected the outcome and is, at most, harmless error.
11. Trial: Evidence. Evidence that is irrelevant is inadmissible.
12. Evidence. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.
13. ____. Relevancy requires only that the degree of probativeness be some-
thing more than nothing.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Affirmed.
Stephen L. Ahl and Krista M. Carlson, of Wolfe, Snowden,
Hurd, Luers & Ahl, L.L.P., and Barry D. Geweke, of Stowell &
Geweke, P.C., L.L.O., for appellants.
John M. Lingelbach and John V. Matson, of Koley Jessen,
P.C., L.L.O., for appellee.
Heavican, C.J., Cassel, Stacy, Funke, and Papik, JJ., and
Schreiner, District Judge.
Papik, J.
Lindsay International Sales & Service, LLC (Lindsay),
sued Michael J. Wegener and Jerome Pribil in the district
court for Platte County to collect amounts Lindsay claimed
were due on personal guaranties. The district court granted
Lindsay’s motion for a directed verdict on certain affirmative
defenses raised by Wegener and Pribil and instructed the jury
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
accordingly. The jury returned a verdict in favor of Lindsay
for the full amount sought. Wegener and Pribil now appeal.
They challenge the directed verdict, the jury instructions, the
admission of evidence concerning their personal finances, and
the denial of their motion for new trial. Finding no reversible
error, we affirm.
BACKGROUND
Initial Discussions Between Wegener,
Pribil, and Lindsay.
This case has its genesis in Wegener and Pribil’s participa-
tion in an agricultural business venture in Mexico. Wegener
and Pribil and another individual, Isaak Wall, also known as
Isaak Wall Vogt, formed a business entity in Mexico called
Ko’ol Agricola S.P.R. de R.L. de C.V. (Ko’ol Ag). Wegener,
Pribil, and Wall planned to have Ko’ol Ag purchase or lease
land in Mexico and raise crops there.
Wegener, Pribil, and Wall planned to take advantage of
their respective backgrounds to operate Ko’ol Ag. Because
Wall had ownership interests in at least two agricultural equip-
ment dealers and ties to Mexico, he would be responsible
for obtaining and setting up irrigation pivots on behalf of
Ko’ol Ag. Wegener and Pribil, both of whom conduct farming
operations in Nebraska, would provide the finances and farm-
ing expertise.
Beginning in November 2012, Wegener and Pribil had dis-
cussions with agents of Lindsay about purchasing pivots for
the farming operation in Mexico. Wegener and Pribil indicated
their desired terms for the purchase of pivots. The global direc-
tor of credit for Lindsay’s parent company told Wegener and
Pribil that to obtain those terms from Lindsay, they would need
to provide personal financial statements and provide personal
guaranties for the amount owed for the pivots.
Wegener and Pribil also contend that Lindsay made rep-
resentations to them about Wall and one of the equipment
dealers in which he had an ownership interest, IJS Irrigation,
LLC (IJS). The record contains varying accounts of those
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
representations. According to Wegener and Pribil, they were
told that the pivots should be sold through IJS and that Wall
and IJS were trustworthy and suitable partners for Wegener and
Pribil in the pivot transaction.
Wegener and Pribil Agree to
Personal Guaranties.
In December 2012, Wegener and Pribil provided personal
guaranties to Lindsay. The agreements identified IJS as the
principal debtor by describing the debt for which Wegener
and Pribil were providing guaranties as follows: “For and
in consideration of any existing indebtedness to [Lindsay]
of IJS Irrigation, LLC invoices referencing customer KO’OL
AGRICOLA S.P.R. de R.L. de C.V.”
In the guaranties, Wegener and Pribil agreed to guarantee the
payment of any of the above-described debt in accordance with
the terms of any agreement between the principal debtor and
Lindsay. They also agreed that in the event of a default by the
debtor, Lindsay would not be required to proceed first against
the debtor, but could immediately proceed against them.
Pivots Are Ordered and Shipped.
After the parties executed the guaranty agreements, Lindsay
received orders for 16 complete pivots. Neither Wegener nor
Pribil placed the orders. Wegener believed that they were
placed by Wall.
The resulting invoices issued by Lindsay indicated that the
pivots were sold to IJS. The invoices referenced Ko’ol Ag in
the item description. While the parties agree that the pivots
were all shipped to the same shipping warehouse in Florida,
they dispute whether all of the pivots were actually trans-
ferred to IJS. Pointing to some bills of lading that do not list
the recipient of the pivot as IJS, Wegener and Pribil contend
that some of the pivots were transferred to other entities. And
while it is undisputed that at least some of the pivots made it to
Mexico, Wegener and Pribil assert that none of the pivots were
placed on Ko’ol Ag’s land.
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Nebraska Supreme Court A dvance Sheets
301 Nebraska R eports
LINDSAY INTERNAT. SALES & SERV. v. WEGENER
Cite as 301 Neb. 1
Dispute Arises Over Payment.
Months after the pivots were shipped, Wegener and Pribil
sent letters to Lindsay attempting to cancel the guaranty agree-
ments. Lindsay responded by demanding payment.
When Lindsay did not receive payment, it filed suit against
Wegener and Pribil. Lindsay alleged that it sold IJS goods for
the Ko’ol Ag account on credit, that IJS had defaulted in the
amount of $1,019,795.38, and that Wegener and Pribil were
obligated to cover the IJS debt.
Wegener and Pribil denied that they were obligated to pay
and asserted a number of affirmative defenses including false
representation, fraud in the inducement, failure of consid-
eration, impairment of collateral, deprivation of the right to
be subrogated to the benefit of all security, and violation of
Nebraska’s Uniform Deceptive Trade Practices Act (UDTPA),
Neb. Rev. Stat. §§ 87-301 to 87-306 (Reissue 2014). The mat-
ter proceeded to a jury trial.
Trial.
At trial, the parties presented the evidence recounted above
and the district court received Wegener’s and Pribil’s financial
statements, over their relevance objections. After Wegener and
Pribil rested their case, Lindsay moved for a directed verdict
on Wegener and Pribil’s affirmative defenses. The district
court granted a directed verdict to Lindsay on the affirma-
tive defenses of failure of consideration, impairment of col-
lateral, deprivation of the right to be subrogated to the benefit
of all security, and the UDTPA. The district court overruled
Lindsay’s request for a directed verdict on the defenses of false
representation and fraud in the inducement.
As requested by Wegener and Pribil, the district court
instructed the jury on the affirmative defense of material
misrepresentation. Also at Wegener and Pribil’s request, it
instructed the jury that Lindsay was entitled to recover only
“the total amount you determine is owed and unpaid on the
IJS indebtedness for the pivots.” But in accordance with the
directed verdict, the district court declined to submit Wegener
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and Pribil’s proposed instruction on the definition of fraud
under the UDTPA.
In closing arguments, counsel for Wegener and Pribil
argued, among other things, that the evidence showed IJS did
not receive all of the pivots and that thus, Wegener and Pribil
could not be liable for the full amount claimed by Lindsay.
The jury, however, returned a unanimous verdict in favor
of Lindsay for $1,019,795.38, the full amount owing on the
invoices. The district court ultimately entered a judgment on
the jury verdict.
Following the verdict, Wegener and Pribil moved for a new
trial. They alleged irregularities in the proceedings that pre-
vented a fair trial, excessive damages resulting from passion
or prejudice, error in assessing the amount of recovery, insuf-
ficient evidence to support the verdict, and error of law at trial.
The district court ultimately overruled the motion.
Wegener and Pribil now appeal. We have determined that
Wegener and Pribil’s notice of appeal was timely filed. See
Lindsay Internat. Sales & Serv. v. Wegener, 297 Neb. 788, 901
N.W.2d 278 (2017).
ASSIGNMENTS OF ERROR
Wegener and Pribil assign the following errors, condensed,
restated, and reordered: The district court erred (1) in directing
a verdict for Lindsay on the affirmative defense of impair-
ment of collateral, (2) in directing a verdict for Lindsay on the
affirmative defense of failure of consideration, (3) in directing
a verdict for Lindsay on the affirmative defense of violation of
the UDTPA, (4) in failing to give their proposed jury instruc-
tion regarding the UDTPA, (5) in admitting evidence of their
personal financial conditions, and (6) in failing to grant their
motion for new trial.
STANDARD OF REVIEW
[1,2] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
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behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Armstrong v. Clarkson
College, 297 Neb. 595, 901 N.W.2d 1 (2017). A directed ver-
dict is proper at the close of all the evidence only when rea-
sonable minds cannot differ and can draw but one conclusion
from the evidence, that is, when an issue should be decided as
a matter of law. Id.
[3,4] Whether a jury instruction is correct is a question of
law. Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d
247 (2018). When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently
of the conclusion reached by the trial court. Id.
[5,6] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility. Id. A
trial court has the discretion to determine the relevancy and
admissibility of evidence, and such determinations will not
be disturbed on appeal unless they constitute an abuse of that
discretion. Id.
[7] A judicial abuse of discretion exists if the reasons or
rulings of a trial judge are clearly untenable, unfairly depriv-
ing a litigant of a substantial right and denying just results in
matters submitted for disposition. Id.
[8] An appellate court reviews a denial of a motion for new
trial for an abuse of discretion. Facilities Cost Mgmt. Group v.
Otoe Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018).
ANALYSIS
Impairment of Collateral
Affirmative Defense.
In the section of their operative answer listing affirma-
tive defenses, Wegener and Pribil alleged that they should
be released from liability under the “impairment of collateral
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doctrine” and as a result of Lindsay’s acts that deprived them
“of their right to be subrogated to the benefit of all security.”
The district court granted Lindsay a directed verdict on these
affirmative defenses. Wegener and Pribil contend it should not
have done so.
As the following discussion will demonstrate, the concepts
Wegener and Pribil asserted as separate affirmative defenses
and argue separately on appeal are actually part and parcel
of the same affirmative defense. For reasons we will explain,
we find that this defense could not apply in these circum-
stances, and thus, the district court correctly granted Lindsay a
directed verdict.
This court has previously recognized that a guarantor can
be released from liability as a result of a creditor’s actions or
omissions that impair collateral securing the principal debt at
issue. See, e.g., Custom Leasing, Inc. v. Carlson Stapler &
Shippers Supply, Inc., 195 Neb. 292, 237 N.W.2d 645 (1976).
We have previously referred to the defense as “impairment of
collateral.” Builders Supply Co. v. Czerwinski, 275 Neb. 622,
635, 748 N.W.2d 645, 656 (2008).
The impairment of collateral defense has its roots in the
guarantor’s subrogation right to collateral securing the under-
lying debt. See Custom Leasing, Inc., supra. That is, if the
principal debtor fails to meet its obligation in such a transac-
tion and the creditor enforces the guaranty, “a guarantor has
the right to step into the shoes of the creditor and sue the
debtor for collateral securing the debt.” See Century 21 Prods.
v. Glacier Sales, 129 Wash. 2d 406, 412, 918 P.2d 168, 170
(1996). Because acts or omissions of the creditor that result in
the collateral’s unavailability deprive the guarantor of its right
of subrogation, a guarantor is generally released by such acts
or omissions. See Custom Leasing, Inc., 195 Neb. at 299, 237
N.W.2d at 649 (“[w]hether the guarantor is entitled to a full
discharge or only pro tanto, it is released from its liability to
the extent of the injury caused by the willful or negligent acts
of [the creditor]”).
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If its name were not enough, the preceding discussion
should make clear that in order for the impairment of col-
lateral defense to apply, the underlying debt must be secured
by collateral. See, e.g., Myers v. Bank of Niobrara, 215
Neb. 29, 31-32, 336 N.W.2d 608, 610 (1983) (“[i]t may be
true that if a secured party . . . impairs a guarantor’s abil-
ity to satisfy any obligation arising under the agreement of
guaranty by releasing the collateral securing that loan, said
guarantor’s obligation is then released”) (emphasis supplied);
Restatement (Third) of Suretyship and Guaranty § 42 at 190
(1996) (recognizing that defense is available “[i]f the under-
lying obligation is secured by a security interest in collateral
and the obligee impairs the value of that interest”) (emphasis
supplied). If the debt is not secured, there is no collateral
to impair and no subrogation right to protect. See Estate
of Muscato v. Northwest Nat’l Bk., 181 Ill. App. 3d 44, 48,
536 N.E.2d 872, 875, 129 Ill. Dec. 822, 825 (1989) (“[i]t is
axiomatic that because the loan was unsecured, no collateral
could have been impaired”).
Wegener and Pribil could not successfully assert the impair-
ment of collateral defense because it is available only when
the guarantor has a subrogation right to collateral. There is
no evidence that Lindsay had a security interest in the pivots,
and Wegener and Pribil do not even attempt to argue that such
evidence exists.
Because there is no evidence that collateral was to secure
the underlying debt, the principal cases Wegener and Pribil
rely upon in support of their argument that the district court
erred by directing a verdict on their impairment of collateral
defense are inapplicable. In those cases, a creditor either
impaired or failed to acquire a security interest as required by
a contract, to the ultimate detriment of the guarantor. See, e.g.,
National Bank of Commerce Trust & Sav. Assn. v. Katleman,
201 Neb. 165, 266 N.W.2d 736 (1978); Custom Leasing, Inc.,
supra. In this case, however, the transaction did not involve
a security interest. As a result, the impairment of collateral
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defense could not apply and the district court correctly granted
a directed verdict for Lindsay.
Failure of Consideration
Affirmative Defense.
Wegener and Pribil also contend that the district court erred
by granting Lindsay a directed verdict on their affirmative
defense of failure of consideration. Again, we find no basis to
reverse the district court’s decision.
Wegener and Pribil argue that there was a failure of consid-
eration in that the pivots Lindsay agreed to sell were not trans-
ferred to the entity that purchased them. Specifically, Wegener
and Pribil contend that because Lindsay failed to perform its
obligations to the principal debtor, the consideration failed and
Wegener and Pribil’s obligations under the guaranties were
eliminated or at least diminished.
[9] Lindsay responds that there was sufficient consideration
for the guaranties because Lindsay extended credit to IJS in
reliance on Wegener’s and Pribil’s promises to pay if IJS did
not. Lindsay’s response appears to confuse “failure of consid-
eration” with the separate concept of “lack of consideration.”
“A lack of consideration means no contract is ever formed
because no consideration exists or none was intended to pass.”
Federal Land Bank of Omaha v. Woods, 480 N.W.2d 61, 66
(Iowa 1992). A failure of consideration, on the other hand,
“means the contract is valid when formed but becomes unen-
forceable because the performance bargained for has not been
given.” Id. See, also, 3 Richard A. Lord, A Treatise on the Law
of Contracts by Samuel Williston § 7.11 (4th ed. 2008) (distin-
guishing these concepts).
Some courts have recognized that a guarantor can avoid
liability on a guaranty through the affirmative defense of
failure of consideration by showing that the creditor failed
to render the performance for which the guarantor agreed to
guarantee payment. See, e.g., Walcutt v. Clevite Corporation,
13 N.Y.2d 48, 191 N.E.2d 894, 241 N.Y.S.2d 834 (1963).
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Wegener and Pribil claim these circumstances are present
here, and they make alternative arguments as to why that is
the case.
First, they argue that there was a failure of consideration
because Lindsay did not transfer the pivots to Ko’ol Ag. We
reject this argument at the outset. Both the guaranties them-
selves and the invoices indicate that IJS was the debtor, not
Ko’ol Ag. Lindsay did not have an obligation to transfer the
pivots directly to Ko’ol Ag, and thus, Wegener and Pribil can-
not premise a failure of consideration defense on any failure to
effectuate such a transfer.
The alternative failure of consideration argument Wegener
and Pribil assert is that the consideration failed because some
pivots were not delivered to IJS. Because IJS was the principal
debtor in the transaction, the claim that the consideration failed
because IJS did not receive pivots on which Lindsay now
seeks payment cannot be dismissed so quickly. Furthermore,
there was some evidence introduced at trial—bills of lading
for a few of the pivots that listed entities other than IJS as the
recipient and testimony about at least one pivot’s having borne
a stamp suggesting it was sold to another entity—that Wegener
and Pribil can point to in support of their argument that IJS did
not receive the pivots.
The evidence summarized above, coupled with the require-
ment that we draw all inferences in favor of Wegener and
Pribil in reviewing the grant of a directed verdict, might
suggest grounds for reversal if it were not for the fact that
Wegener and Pribil already presented these very arguments
to the jury and the jury rejected them. While the district court
granted Lindsay a directed verdict on the failure of consid-
eration affirmative defense, as noted above, Wegener and
Pribil asked for and received a jury instruction that Lindsay
was entitled to recover “the total amount you determine is
owed and unpaid on the IJS indebtedness for the pivots.”
Counsel for Wegener and Pribil contended that this instruc-
tion was justified by evidence suggesting some pivots were
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not transferred to IJS and stated that the proposed instruc-
tion “goes back to [Wegener and Pribil’s] defense of failure
of consideration.”
Not only did Wegener and Pribil convince the court that
the jury should be instructed that they were liable only to the
extent IJS was indebted to Lindsay; their counsel devoted
extensive time in closing argument to the contention that some
of the pivots were not transferred to IJS and asked the jury not
to make Wegener and Pribil pay for pivots IJS did not even
receive. The jury’s award of damages in favor of Lindsay for
the full amount claimed demonstrates that it rejected this argu-
ment. Under these circumstances, we find that the award of a
directed verdict on the failure of consideration defense was, at
most, harmless error.
It does not appear that a Nebraska appellate court has
previously found that the grant of a partial directed verdict
could amount to harmless error. However, we have held that
a summary judgment can be harmless error when viewed in
light of a jury’s subsequent findings. In Smith v. Colorado
Organ Recovery Sys., 269 Neb. 578, 694 N.W.2d 610 (2005),
a patient claimed, among other things, that an organ recovery
service had acted negligently in not reviewing donor records
and failing to inform the medical center that a certain pre-
servative had been used. The district court granted summary
judgment in favor of the recovery service. Upon the patient’s
appeal, we reasoned that any error in granting summary judg-
ment was harmless, because the jury specially found no proxi-
mate cause as to one defendant and the jury’s special finding
on proximate cause was equally applicable to the organ recov-
ery service.
[10] We find this reasoning in Smith instructive in the
instant case and hold that when it follows logically from a
jury’s findings that a theory on which a directed verdict was
granted could not have been successful, the directed verdict
cannot be said to have affected the outcome and is, at most,
harmless error. A number of cases from other jurisdictions
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have recognized and applied this principle. See, e.g., Goulet
v. New Penn Motor Exp., Inc., 512 F.3d 34 (1st Cir. 2008);
Earle v. Benoit, 850 F.2d 836 (1st Cir. 1988); Janich Bros.,
Inc. v. American Distilling Co., 570 F.2d 848 (9th Cir. 1977);
St. Germain v. Husqvarna Corp., 544 A.2d 1283 (Me. 1988);
Steffensen v. Smith’s Management Corp., 820 P.2d 482 (Utah
App. 1991). See, also, Russell v. May, 306 Kan. 1058, 400 P.3d
647 (2017) (employing same analysis as cases above but find-
ing error not harmless in that case).
In this case, we find that the jury’s verdict would not have
differed if a directed verdict had not been granted on the fail-
ure of consideration affirmative defense. By instructing the
jury that Wegener and Pribil were liable only to the extent IJS
was indebted to Lindsay, the district court required the jury
to consider the very issue raised by the failure of consider-
ation defense—whether IJS received the pivots and was thus
indebted to Lindsay. If anything, the district court relieved
Wegener and Pribil of the burden of proving their failure of
consideration defense by embedding it within the amount
Lindsay was owed, an issue on which Lindsay bore the burden
of proof. Even after Wegener and Pribil argued that IJS did not
receive all the pivots, however, the jury awarded Lindsay the
full amount Lindsay claimed.
The jury clearly rejected the notion that IJS did not receive
the pivots and was thus indebted to Lindsay for less than the
full amount claimed. In doing so, the jury rejected the sub-
stance of the failure of consideration defense. The failure of
consideration affirmative defense would not have succeeded
even if the directed verdict had not been granted. The directed
verdict is thus, at most, harmless rather than reversible error.
Uniform Deceptive Trade
Practices Act.
We now turn to Wegener and Pribil’s claim that the district
court erred by finding that a particular section of Nebraska’s
UDTPA was not a valid defense to Lindsay’s claim. They
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argue that Lindsay violated the UDTPA by fraudulently
inducing them to sign the guaranty agreements through mis-
leading representations about IJS. We find that the district
court did not err by granting Lindsay a directed verdict on
this issue.
Wegener and Pribil sought to implement the defense set
forth in § 87-303.07:
If a buyer or lessee is induced by [a deceptive trade
practice] to enter into a sale or lease, the agreement is
unenforceable by the seller or lessor and the buyer or
lessee, at his or her option, may rescind the agreement
or retain the merchandise delivered and the benefit of
any services performed without any obligation to pay
for them.
As the district court pointed out, this section protects a
“buyer” or a “lessee.” A familiar canon of statutory con-
struction—expressio unius est exclusio alterius—suggests that
§ 87-303.07 does not protect guarantors. The aforementioned
canon recognizes that “an expressed object of a statute’s oper-
ation excludes the statute’s operation on all other objects
unmentioned by the statute.” Jacobson v. Shresta, 288 Neb.
615, 623, 849 N.W.2d 515, 521 (2014). Applying the principle
here, the fact that § 87-303.07 specifically lists buyers and
lessees as those protected leads us to conclude that other cat-
egories of individuals—such as guarantors like Wegener and
Pribil—are not.
After determining that § 87-303.07 protected only buyers
and lessees, the district court went on to discuss our opinion
in Mutual of Omaha Bank v. Murante, 285 Neb. 747, 829
N.W.2d 676 (2013). In that case, we held that certain defenses
are personal to the principal debtor and thus a guarantor can-
not escape liability by proving that the principal debtor is not
liable pursuant to such a personal defense. The district court
concluded that § 87-303.07 is such a personal defense and that
thus, Wegener and Pribil, as guarantors, could not use it to
avoid liability.
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Whatever they may have been arguing before the district
court, however, Wegener and Pribil do not make any argu-
ment to us that the buyer was deceived by Lindsay. Both the
guaranties and the invoices make clear that the buyer of the
pivots was IJS. But Wegener and Pribil argue that they—
guarantors—were deceived by Lindsay. For reasons set forth
above, we have determined that § 87-303.07 offers no protec-
tion to guarantors who claim to have been deceived. And since
Wegener and Pribil make no argument to us that the buyer
was deceived, it is not necessary for us to review whether
§ 87-303.07 is a personal defense that can be raised only by
the principal debtor.
Wegener and Pribil contend that they should have been per-
mitted to proceed under § 87-303.07 notwithstanding the lim-
ited language of the statute because a guarantor has a defense
if fraudulently induced to enter into a guaranty. The only case
they cite in support of this argument, however, is a case in
which the guarantor asserted a general fraud in the induce-
ment defense. See West v. Wegner, 172 Neb. 692, 111 N.W.2d
449 (1961). Here, Wegener and Pribil’s allegations that they
were induced into signing the guaranties by misrepresentations
of Lindsay were submitted to the jury for consideration and
rejected. In any event, the case Wegener and Pribil cite does
not support the notion that they were also entitled to present an
affirmative defense under § 87-303.07. We conclude that the
district court did not err in determining that a defense pursuant
to § 87-303.07 did not apply and in granting Lindsay’s motion
for directed verdict on that defense.
Because the evidence did not support the application of
§ 87-303.07, we also find that the district court did not err in
rejecting the jury instructions tendered by Wegener and Pribil
concerning the UDTPA. To establish reversible error from a
court’s failure to give a requested jury instruction, an appellant
has the burden to show, among other things, that the tendered
instruction was warranted by the evidence. See Rodriguez v.
Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).
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Admission of Financial Statements.
Over Wegener and Pribil’s objections based on relevance,
the district court received financial statements showing their
net worth. Wegener and Pribil claim that the district court com-
mitted reversible error by admitting this evidence, because it
was not relevant to proving liability and was offered to preju-
dice the jury against them and produce a higher award.
In their brief, Wegener and Pribil argue that evidence of
a defendant’s financial condition is not relevant. They also
argue that admission of such evidence is prejudicial. At trial,
however, Wegener and Pribil objected to the admission of their
financial statements only on relevance grounds. Since a party
may not assert a different ground for an objection to the admis-
sion of evidence than was offered to the trial court, see Werner
v. County of Platte, 284 Neb. 899, 824 N.W.2d 38 (2012), our
review is limited to determining whether the financial state-
ments were relevant.
[11-13] Evidence that is irrelevant is inadmissible. Neb.
Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016);
Richardson v. Children’s Hosp., 280 Neb. 396, 787 N.W.2d
235 (2010). Evidence is relevant if it has “any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” Neb. Evid. R. 401,
Neb. Rev. Stat. § 27-401 (Reissue 2016). The bar for establish-
ing evidentiary relevance is not a high one. Relevancy requires
only that the probative value be “something more than noth-
ing.” State v. Lavalleur, 289 Neb. 102, 115, 853 N.W.2d 203,
214 (2014).
Wegener and Pribil argue that it has long been the law
in Nebraska that evidence of financial standing of the par-
ties is inadmissible. However, our jurisprudence does not
completely bar evidence of financial standing. Rather, the
relevance of such evidence is generally assessed on a case-
by-case basis. See, e.g., Vacek v. Ames, 221 Neb. 333, 377
N.W.2d 86 (1985).
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As Lindsay points out, the fact that Lindsay received
financial statements of Wegener and Pribil and relied upon
them in deciding to extend credit to IJS would be helpful to
educate the jury on the background of the transaction. But
Wegener and Pribil’s real objection to the financial statements
is not that the jury learned that they existed and that Lindsay
received them; it is that the financial statements show their
net worth.
Lindsay has relatively little to say about how Wegener’s
and Pribil’s net worth was relevant to the issues in the case.
That said, Wegener and Pribil did not ask that evidence of
their net worth be redacted from the financial statements, and,
furthermore, we can identify at least one way in which their
net worth clears the relatively low relevance threshold. One of
the issues the jury considered was whether Lindsay induced
Wegener and Pribil to enter into the guaranties through mis-
representations. An element of this defense is that the rep-
resentations of Lindsay’s agents substantially contributed to
the decision to guarantee IJS. Evidence of Wegener’s and
Pribil’s relatively significant net worth might tend to rebut
any notion that they were unsophisticated individuals who
were susceptible to being swayed by the representations of
Lindsay’s agents.
Evidence of the guarantors’ net worth may not have been
highly probative on this issue, and Wegener and Pribil may
have had a colorable argument that the potential for prejudice
exceeded the probative value. Even so, we cannot say that the
evidence lacked any probative value. Consequently, we cannot
find that the district court abused its discretion in admitting
the financial statements.
Motion for New Trial.
Finally, Wegener and Pribil argue that the trial court erred
in failing to grant their motion for new trial based on the
directed verdict and the admission of financial statements. An
appellate court reviews a denial of a motion for new trial for
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an abuse of discretion. Facilities Cost Mgmt. Group v. Otoe
Cty. Sch. Dist., 298 Neb. 777, 906 N.W.2d 1 (2018). Having
concluded that the district court did not err in directing a
verdict as to Wegener and Pribil’s affirmative defenses and
in admitting evidence of their finances, we find no abuse of
discretion in its denial of their motion for new trial.
CONCLUSION
For the foregoing reasons, we find no basis to reverse the
district court’s decision and therefore affirm.
A ffirmed.
Miller-Lerman, J., not participating.
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ELECTRONIC RECORD
COA # 05-13-00832-CR OFFENSE: 19.02
Alonzo Grayson, Jr. v. The State of
STYLE: Texas COUNTY: Collin
COA DISPOSITION: AFFIRM TRIAL COURT: 296th Judicial District Court
DATE: 11/17/2014 Publish: NO TCCASE#: 296-81500-2012
IN THE COURT OF CRIMINAL APPEALS
Alonzo Grayson, Jr. v. The State of
STYLE: Texas CCA#: lfc03-y</
PRO SfL Petition CCA Disposition:
FOR DISCRETIONARY REVIEW IN CCA IS: DATE:
JUDGE:
DATE: fijfalUfi'S SIGNED: PC:_
JUDGE: A/\ U*A*&n— PUBLISH: DNP:
MOTION FOR
REHEARING IN CCA IS:
JUDGE:
ELECTRONIC RECORD
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380 Mich. 74 (1968)
155 N.W.2d 827
PEOPLE
v.
CHAPMAN.
Calendar No. 4, Docket No. 51,515.
Supreme Court of Michigan.
Decided February 9, 1968.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, Robert W. Leutheuser, Chief Appellate Counsel, and Bernard Rosner, Assistant Prosecuting Attorney, for the people.
John W. Chapman, in propria persona.
T.M. KAVANAGH, J.
Defendant was convicted of the crime of uttering and publishing[*] and sentenced to a term of 3 to 14 years on March 19, 1963. His motion for a new trial was denied by the trial judge on March 16, 1964.
Defendant is here on leave granted.
Defendant was arrested on a charge of uttering and publishing. He was arraigned on October 30, 1962, and demanded examination and assistance of counsel. At the preliminary examination the court denied his request for appointment of counsel, stating "We don't furnish them. You can have them when you get to circuit court."
One of the chief witnesses for the State an accountant for the bank upon which the uttered and *76 published instrument was drawn testified at the preliminary examination that he had made a search for an account in the name of the alleged drawer of the instrument and that no such account could be found.
The court asked the defendant if he had any questions of that witness. Defendant replied he would wait until he had a lawyer.
Defendant was then bound over to circuit court for trial.
After arraignment, trial counsel was appointed for defendant.
At the trial the prosecution indorsed another witness on the information. This witness was a court reporter and was added in order to bring in the testimony of the bank accountant who had testified at the preliminary hearing but would not be present at the trial. The court asked defense counsel if he had any objection to the adding of that name, and counsel stated:
"I have no objection to adding Nancy Ballow. However, I do object to striking the bank agent. This effectively deprives us of any right of cross-examination."
Thereafter, at the time the prosecution attempted to admit its exhibit 2 the testimony of the bank accountant given at the preliminary examination defendant's counsel again objected, stating:
"Your Honor, I certainly have no objection to this as being a true, complete, and accurate transcript of the testimony had at the preliminary examination; but I do have some objections to having it read into the record in this trial. It is my position that this should be inadmissible in that Mr. Chapman, throughout this proceeding protested that he was without the advice of counsel and requested *77 counsel. It was not given to him. And now to read this into the record effectively deprives Mr. Chapman of any opportunity of confrontation for cross-examination."
The testimony was admitted over the objections.
There are four issues raised on appeal:
1. When a witness for the State was not present at the trial, did the admission of the transcript of his testimony given at the preliminary hearing deny defendant due process of law if defendant did not have counsel to cross-examine that witness at the preliminary hearing?
2. Whether a person who indorses and negotiates a no-account check is guilty of uttering and publishing.
3. Whether the prosecution carried its burden of showing that the drawer was a fictitious person.
4. Whether a conspiracy existed between the trial judge and defense counsel in the trial court.
The first issue raised in this case is the issue decided by the United States Supreme Court in the case of Pointer v. Texas (1965), 380 US 400 (85 S Ct 1065, 13 L ed 2d 923).
The facts in the Pointer Case were as follows: The petitioner and another were arrested in Texas and taken before a State judge for a preliminary hearing on a charge of robbery. At this hearing, the assistant district attorney conducted the prosecution and examined witnesses. Neither of the defendants at that hearing had a lawyer. The chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had robbed him at gunpoint. The other defendant attempted to cross-examine the chief witness but the petitioner in that case did not, although the petitioner was said to have tried to cross-examine *78 other witnesses at that hearing. The petitioner was subsequently indicted on the charge of having committed the robbery.
Some time before the trial was held, the chief witness for the State moved out of the jurisdiction. At the trial the State submitted evidence to show that the chief witness had moved and did not intend to return to Texas. The State offered the transcript of the testimony given at the preliminary hearing as evidence against the petitioner. Petitioner's counsel immediately objected to the introduction of the transcript for the reason petitioner was denied his constitutional right of confrontation for cross-examination of the witnesses against him. Similar objections were repeatedly made, but were overruled by the trial judge for the reason petitioner had been present at the preliminary hearing and therefore had been accorded his opportunity to cross-examine the witnesses. The issue as stated by Mr. Justice Black, delivering the opinion of the Court, was as follows (p 403):
"In this case the objections and arguments in the trial court as well as the arguments in the court of criminal appeals and before us make it clear that petitioner's objection is based not so much on the fact that he had no lawyer when Phillips made his statement at the preliminary hearing, as on the fact that use of the transcript of that statement at the trial denied petitioner any opportunity to have the benefit of counsel's cross-examination of the principal witness against him. It is that latter question which we decide here."
In Pointer the Court reiterated some of its holdings in other cases that the Sixth Amendment's right to the assistance of counsel is obligatory upon the States, and that the Fifth Amendment's guarantee *79 against self-incrimination was made applicable to the States by the Fourteenth Amendment. The Court then held the Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right and is made obligatory on the States by the Fourteenth Amendment. The Court concluded (pp 407, 408):
"Because the transcript of Phillips' statement offered against petitioner at his trial had not been taken at a time and under circumstances affording petitioner through counsel an adequate opportunity to cross-examine Phillips, its introduction in a Federal court in a criminal case against Pointer would have amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment. Since we hold that the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a Federal or State proceeding, it follows that use of the transcript to convict petitioner denied him a constitutional right, and that his conviction must be reversed."
In the case at bar we hold that because the transcript of the statement of the prosecution's witness offered against the defendant at his trial had not been taken at a time and under circumstances affording defendant, through counsel, an adequate opportunity to cross-examine that witness, its introduction amounted to a denial of the constitutional right of confrontation for cross-examination guaranteed by the Sixth Amendment and applied to the States by the Fourteenth Amendment.
In view of the above holding, a new trial will result. Therefore, we need not discuss the other questions raised except defendant's claim of prejudice on the part of the trial judge. If defendant is *80 serious about this claim, he may follow the regular procedure and move for disqualification.
Reversed. New trial granted.
DETHMERS, C.J., and KELLY, SOURIS, O'HARA, ADAMS, and BRENNAN, JJ., concurred with T.M. KAVANAGH, J.
BLACK, J., concurred in result.
NOTES
[*] CL 1948, § 750.249 (Stat Ann 1962 Rev § 28.446).
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66 F.3d 320
Toddv.Hawk
NO. 94-10956
United States Court of Appeals,Fifth Circuit.
Aug 02, 1995
1
Appeal From: N.D.Tex., No. 4:93-CV-662-Y861 F.Supp. 35
2
REVERSED.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 3, 2016
STATE OF TENNESSEE v. DEMARCO WATERS
Appeal from the Criminal Court for Shelby County
No. 13-01885 James M. Lammey, Jr., Judge
No. W2015-01366-CCA-R3-CD - Filed August 10, 2016
The defendant, DeMarco Waters, was convicted by a Shelby County Criminal Court jury
of premeditated first degree murder; three counts of attempted first degree murder, Class
A felonies; attempted second degree murder, a Class B felony; and four counts of
employing a firearm during the commission of a dangerous felony, Class C felonies. The
defendant was sentenced to an effective term of life plus seventy-seven years. On appeal,
the defendant argues that the evidence is insufficient to sustain his convictions and that
the trial court abused its discretion in ordering consecutive sentencing. After review, we
affirm the judgments of the trial court. However, we remand for entry of a corrected
judgment in Count 6 to indicate that the conviction offense is a Class A felony.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
and Remanded for Entry of Corrected Judgment
ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and J. ROSS DYER, JJ., joined.
Stephen C. Bush, District Public Defender; Harry E. Sayle, III (on appeal); Mary K. Kent
and William N. Muller (at trial), Assistant Public Defenders, for the appellant, DeMarco
Waters.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Amy P. Weirich, District Attorney General; and Paul Hagerman and Colin A. Campbell,
Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
FACTS
The defendant was indicted for the premeditated first degree murder of Marvin
Cole; the attempted premeditated first degree murders of Edris Conley, Justin Buckner,
Avan Hardy, Roderick Conley, and Tevin Wright; and five counts of employing a firearm
during the commission of a dangerous felony – the attempted murder counts, arising out
of his entering Roderick Conley’s apartment and firing at the occupants.1
Mary Cole, Marvin Cole’s mother, testified that her son was twenty-one years old
when he was killed, and that he and the defendant had been friends since junior high
school.
Roderick Conley testified that he lived in the Eldorado Apartments in September
2012. On September 4, he was playing dominos in his apartment with the defendant,
Avan Hardy, Justin Buckner, Edris Conley, Tevin Wright, and Marvin Cole. The
defendant went outside to make a phone call and, when he came back in, Marvin Cole,
who was larger than the defendant, would not move his chair out of the way to let the
defendant pass. An argument ensued between the two men, and the entire group went
outside to continue the argument. It was heated but did not become physical. Things
calmed down after five or ten minutes, and the group went back inside. However, the
group began ribbing the combatants, and the defendant kept saying, “[T]hat ain’t right.”
The defendant eventually left to buy more beer, vowing not to share it.
Roderick Conley testified that the rest of the group left to buy more beer shortly
after the defendant. They saw the defendant at the store, surrounded by some other men
Roderick did not know. They bought a twelve-pack of beer and returned to Roderick’s
apartment. Roderick heard a knock on the door about ten to twenty minutes after the
group got back to the apartment. Roderick went to the bathroom and, when he came out,
the defendant was in the house. In an “all business” manner, the defendant approached
Marvin Cole on the couch where he was sitting, said something like, “I see you
st[r]apped up, huh,” and then shot him. Everyone in the house scattered to take cover;
Roderick balled up in the corner. Roderick recalled hearing the defendant say, “I need
one more round,” as he left after the shooting.
Roderick Conley testified that, other than the defendant, the only other person in
the room with a gun was Marvin Cole. He said that Mr. Cole’s gun “was originally [the
defendant]’s gun. That’s what the whole altercation supposed to have been about[.]”
However, Roderick said that Mr. Cole never took the gun out of his pocket. Roderick
owned a twenty-gauge, single-barrel shotgun, but it was unloaded and in his bedroom
1
Because there are a number of victims in this case, we will refer to each by name instead of
designating anyone “the victim.” Additionally, because two of the witnesses share the same surname, we
will refer to them by first name only at times to prevent confusion. We mean no disrespect by this
practice.
2
under his bed during the incident. Roderick recalled that, in addition to Mr. Cole, Justin
Buckner was shot three times and Edris Conley was shot once or twice.
Avan Hardy testified that he was at Roderick Conley’s apartment the day of the
shooting, and he testified similarly to Roderick with regard to the events of the evening.
Mr. Hardy elaborated that there “was tension in the air” between the defendant and Mr.
Cole over a .32 caliber pistol that Mr. Cole had taken from the defendant about a week
before and that Mr. Cole had in his possession that night. Mr. Hardy recalled that, when
they were at the store buying beer, he heard the defendant say, “I need a strap, ASAP,”
which Mr. Hardy understood to mean a gun. Mr. Hardy also recalled that when they
returned to Roderick’s apartment, the defendant knocked on the door, they asked who it
was, and the defendant responded, “Killer.” Mr. Hardy heard the defendant ask Mr. Cole
if he had “some more shots” just before shooting him. Mr. Hardy stated that the
defendant “[s]hot at everybody” in the apartment and that he was afraid. Mr. Hardy
described the defendant’s demeanor as “calm” when he walked toward the couch to shoot
Mr. Cole. After the defendant stopped shooting at everyone, Mr. Hardy heard him yell,
“I need another round,” before running off.
Justin Buckner also testified similarly with regard to the events of the evening.
Mr. Buckner recalled that the initial argument between the defendant and Mr. Cole that
occurred when the defendant returned to the apartment after using the phone involved
“tussling” and “wrestling,” not just words. Mr. Buckner also recalled that, when the
group later encountered the defendant at the store while buying beer, the defendant was
upset about his dispute with Mr. Cole and would not let it go. Mr. Buckner also
elaborated about what occurred when someone knocked on the apartment door after they
returned from buying beer. He said that he asked who was at the door and the person
knocking responded, “Killer.” Mr. Buckner said, “Killer?” The person knocking
responded, “Yeah, Killer.” Mr. Buckner responded, “Man, you better stop playin’ for to
get shot th[r]ough the door.” At that time, someone else opened the door, and they saw it
was the defendant. Mr. Buckner stated that the defendant entered the room and walked
toward the couch, asking the group if they had gone to get more guns. They answered,
“No,” and the defendant pulled out his gun and started shooting. When the defendant
started shooting, Mr. Buckner jumped up and tried to get away, but the defendant shot
him three times. Mr. Buckner was hospitalized for over a month.
Tevin Wright also testified similarly with regard to the events of the evening. Mr.
Wright elaborated that the defendant was calm throughout the entire incident, from the
time he entered the apartment, fired the shots, and then left. Mr. Wright said that no one
threatened the defendant prior to the defendant’s starting shooting. Mr. Wright stated
that he had never met the defendant before that night and that the defendant never pointed
his gun at him during the incident.
3
Edris Conley2 also testified similarly with regard to the events of the evening.
Edris recalled hearing a knock on the door and the person knocking responding that it
was, “Killer.” Edris further recalled that one of the other men in the apartment said,
“You better stop playing, Killer, or we’re gonna shoot through the door.” The person
knocking then responded, “No, I’m just playin’ – this [the defendant].” Edris said that he
was sitting on the couch next to Mr. Cole listening to music when the defendant entered
the room. Edris noticed the gun and looked up about the time the defendant started
shooting. The defendant first shot Mr. Cole and then started shooting around. Edris tried
to move away but was shot in the leg. He said that the defendant fired several times,
looked around, and then walked out, expressing the need for another round. Edris
underwent eight surgeries and had a metal rod placed in his leg, which makes his leg stiff
and causes his knee to lock up. He has foot drop and ankle contractions. Edris said that
he had never met the defendant prior to the shooting.
Gary Nelson, an EMT with the Memphis Fire Department, testified concerning
what he encountered, as well as his actions, when he responded to the scene of the
shooting.
Officer Lee Walker, a crime scene technician with the Memphis Police
Department, photographed the scene and collected evidence. Officer Walker observed
dominos on the kitchen table and casings and projectiles around the living room. He
found a total of seven forty-five caliber shell casings throughout the apartment. A thirty-
two caliber revolver was found in the pants pocket of Mr. Cole, the murder victim. No
spent thirty-two caliber bullets were found at the scene, although outside the apartment
Officer Walker found a live thirty-two round. A bullet fragment was found under Mr.
Cole’s body. Officer Walker located a twenty-gauge shotgun under the mattress in the
bedroom.
Dr. Karen Chancellor, Chief Medical Examiner for Shelby County, testified that
Mr. Cole’s cause of death was a gunshot wound to the head. A major part of the bullet
and some bullet fragments were recovered from Mr. Cole’s head. It could not be
determined from what range the shot had been fired, and Dr. Chancellor could not say
what position Mr. Cole’s body was in when hit.
Cervinia Braswell, a forensic firearms examiner with the Tennessee Bureau of
Investigation, determined that the forty-five caliber shell casings recovered from the
scene were fired from the same weapon. She also determined that the bullets and bullet
fragments recovered from the individuals who were shot were all forty-five caliber
2
Edris Conley is of no relation to Roderick Conley.
4
bullets, but due to the bullet material she could not conclusively say they were shot from
the same weapon.
Jonathan Davis, a clerk in the Shelby County Criminal Court Clerk’s Office,
authenticated an envelope addressed to the criminal court with a return address of the
defendant at the jail.
Officer Odell Underwood, an employee of the Shelby County Jail, testified that a
letter mailed by the defendant was returned to the jail as undeliverable. As part of his
duties, he opened and read the letter, and he realized it was a request to have people
assaulted or killed. Officer Underwood forwarded the letter to the homicide bureau
because the purported sender, the defendant, had a murder case pending.
Detective Robert Wilkie with the Memphis Police Department testified that all of
the surviving victims identified the defendant as the shooter from photographic arrays.
Detective Wilkie interviewed the defendant, and the defendant gave a statement denying
shooting anyone. The defendant claimed that the victims had him confused with
someone else as he was with his aunt at the time of the shooting. Detective Wilkie
interviewed the defendant’s aunt, and she said that she did not see the defendant after
2:00 p.m. on the day in question and was therefore not with him at the time of the
shooting. Three or four months later, Detective Wilkie also reviewed the letter that was
mailed by the defendant but returned to the jail. Detective Wilkie said that the letter
requested that someone ask “Fred,” an individual who lived in the apartment next door to
the scene of the shooting, to let him know when the victims were there so that a “surprise
party” for the witnesses could be implemented to keep them from testifying. Detective
Wilkie took it as a request to kill the witnesses before the defendant’s preliminary
hearing.
Michael Colburn, a crime scene officer, lifted fingerprints from the
aforementioned letter purported to have been mailed by the defendant. Martin Miller, a
fingerprint examiner, testified that a fingerprint found on the letter matched the
defendant.
Following the conclusion of the proof, the jury acquitted the defendant of Counts
10 and 11, the offenses against Tevin Wright. The jury convicted the defendant, as
charged, of the remaining counts with the exception of Count 2, in which he was
convicted of the lesser-included offense of the attempted second degree murder of Edris
Conley rather than attempted first degree murder.
The defendant was sentenced to life imprisonment on the murder conviction. The
court imposed an eight-year sentence on the attempted second degree murder conviction,
5
fifteen years on each of the attempted first degree murder convictions, and six years on
each of the convictions for employment of a firearm during the commission of a
dangerous felony. Finding that the defendant was a dangerous offender, the court
ordered that all of the sentences be served consecutively for an effective term of life plus
seventy-seven years.
ANALYSIS
I. Sufficiency of the Evidence
The defendant first argues that the evidence is insufficient to support his
convictions for the premeditated first degree of Marvin Cole or the attempted first degree
murder of Roderick Conley.
In considering this issue, we apply the rule that where sufficiency of the
convicting evidence is challenged, the relevant question of the reviewing court is
“whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn. R.
App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be
given the evidence, and all factual issues are resolved by the trier of fact. See State v.
Pappas, 754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury,
approved by the trial judge, accredits the testimony of the witnesses for the State and
resolves all conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474,
476 (Tenn. 1973). Our supreme court stated the rationale for this rule:
This well-settled rule rests on a sound foundation. The trial judge and the
jury see the witnesses face to face, hear their testimony and observe their
demeanor on the stand. Thus the trial judge and jury are the primary
instrumentality of justice to determine the weight and credibility to be
given to the testimony of witnesses. In the trial forum alone is there human
atmosphere and the totality of the evidence cannot be reproduced with a
written record in this Court.
Bolin v. State, 219 Tenn. 4, 11, 405 S.W.2d 768, 771 (1966) (citing Carroll v. State, 212
Tenn. 464, 370 S.W.2d 523 (1963)). “A jury conviction removes the presumption of
6
innocence with which a defendant is initially cloaked and replaces it with one of guilt, so
that on appeal a convicted defendant has the burden of demonstrating that the evidence is
insufficient.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982).
First degree murder is defined as “[a] premeditated and intentional killing of
another[.]” Tenn. Code Ann. § 39-13-202(a)(1). “Premeditation” is defined in our
criminal code as
an act done after the exercise of reflection and judgment. “Premeditation”
means that the intent to kill must have been formed prior to the act itself. It
is not necessary that the purpose to kill pre-exist in the mind of the accused
for any definite period of time. The mental state of the accused at the time
the accused allegedly decided to kill must be carefully considered in order
to determine whether the accused was sufficiently free from excitement and
passion as to be capable of premeditation.
Id. § 39-13-202(d).
Whether premeditation exists in any particular case is a question of fact for the
jury to determine based upon a consideration of all the evidence, including the
circumstantial evidence surrounding the crime. See State v. Suttles, 30 S.W.3d 252, 261
(Tenn. 2000); State v. Bland, 958 S.W.2d 651, 660 (Tenn. 1997); State v. Pike, 978
S.W.2d 904, 914 (Tenn. 1998). Our supreme court has listed a number of factors which,
if present, may support the jury’s inference of premeditation. Among these are the
defendant’s declaration of an intent to kill the victim; the use of a deadly weapon upon an
unarmed victim; the establishment of a motive for the killing; the particular cruelty of the
killing; the infliction of multiple wounds; the defendant’s procurement of a weapon,
preparations to conceal the crime, and destruction or secretion of evidence of the killing;
and the defendant’s calmness immediately after the killing. State v. Jackson, 173 S.W.3d
401, 409 (Tenn. 2005); State v. Thacker, 164 S.W.3d 208, 222 (Tenn. 2005); State v.
Leach, 148 S.W.3d 42, 54 (Tenn. 2004); State v. Nichols, 24 S.W.3d 297, 302 (Tenn.
2000); Bland, 958 S.W.2d at 660.
In cases where the defendant has been charged with the attempted commission of
a crime, there must be evidence that the defendant acted “with the kind of culpability
otherwise required for the offense” and acted “with intent to cause a result that is an
element of the offense, and believes the conduct will cause the result without further
conduct on the person’s part.” Tenn. Code Ann. § 39-12-101(a), (a)(2).
The defendant claims there was no evidence that he came back to the apartment
with the intent to kill Marvin Cole. He asserts it was apparent that he was joking when
7
he announced himself as “Killer.” He further asserts that he knew Mr. Cole was armed
and that he did not shoot Mr. Cole until Mr. Cole started to get up from the couch. He
summarizes that “[t]here was no evidence that up to that moment he intended anything
more tha[n] to defend himself and recover his property from Mr. Cole, who was armed.”
In the light most favorable to the State, however, the proof shows that the
defendant was motivated by his anger at how he believed he was disrespected by Mr.
Cole and the other men in the group before he left the apartment. After leaving the
apartment, the defendant was overheard at a store saying he needed a “strap,” meaning a
gun. When the defendant returned to the apartment and was welcomed inside, he did not
display his gun until he went directly to Mr. Cole and shot him, which indicates use of
the element of surprise to keep the victims from defending themselves. The defendant
then turned his attention to the others in the room and began firing at them. When the
defendant ran out of ammunition, he was overheard saying, “I need another round,” as he
left the apartment. This evidence shows that the defendant had a motive, procured a
weapon prior to the attack, was calm in the moments before he began firing, used the
element of surprise to keep the victims from defending themselves, only stopped his
attack because he ran out of ammunition, and failed to render aid to any of the wounded
after the shooting. This evidence is sufficient for a rational trier of fact to find that the
defendant’s killing of Mr. Cole was premeditated.
The defendant also claims that there was no evidence that he shot at or threatened
Roderick Conley, who was balled up in a corner until the shooting stopped. The proof
shows that the defendant began firing around the room after murdering Mr. Cole, and
everyone in the room scrambled for cover. Mr. Conley balled up in a corner of the room
because he was afraid of being shot. A rational trier of fact could infer from the
defendant’s actions that he was intent on killing as many people as he could after
shooting Mr. Cole and that it was only by sheer luck and the defendant’s running out of
ammunition that Mr. Conley avoided being shot, not because of any lack of intent on the
defendant’s part. The defendant clearly did not want to leave any witnesses behind,
evidenced by his subsequent letter requesting for a “surprise party” for the survivors so
they would be unable to testify against him. The evidence is sufficient to support the
defendant’s conviction for the attempted first degree murder of Roderick Conley.
II. Sentencing
The defendant also argues that the trial court abused its discretion in ordering that
he serve his sentences consecutively. He asserts that the trial court based its finding
solely on the severity of the crimes of which he was convicted and that the extended
sentence is not necessary to protect the public from further criminal acts by him.
8
The trial court may order multiple sentences to run consecutively if it finds by a
preponderance of evidence that any one or more of the seven factors listed in Tennessee
Code Annotated section 40-35-115(b) apply, including the one the trial court found
applicable in this case – that the defendant was a dangerous offender whose behavior
indicated little or no regard for human life and no hesitation about committing a crime in
which the risk to human life was high. Tenn. Code Ann. § 40-35-115(b)(4).
When the court bases consecutive sentencing upon its classification of the
defendant as a dangerous offender, it must also find that an extended sentence is
necessary to protect the public against further criminal conduct by the defendant and that
the consecutive sentences reasonably relate to the severity of the offense committed.
State v. Lane, 3 S.W.3d 456, 460-61 (Tenn. 1999); State v. Wilkerson, 905 S.W.2d 933,
937-38 (Tenn. 1995). Our standard of review for a trial court’s order of consecutive
sentencing is abuse of discretion with a presumption of reasonableness. State v. Pollard,
432 S.W.3d 851, 859-60 (Tenn. 2013).
As an initial matter, the convictions for employing a firearm during the
commission of a dangerous felony are required by statute to run consecutively. See
Tenn. Code Ann. § 39-17-1324(e)(1).
In this case, the trial court found that the defendant was a dangerous offender. The
court noted that the defendant had some prior convictions but relied solely on the instant
offenses in deciding to impose consecutive sentencing. The court noted that the
defendant’s only motivation for the crimes was the victims’ “mak[ing] fun of him,” and
that the act of trying to shoot everyone in the apartment was “senseless” and showed
“particular malice.” The court found that the circumstances surrounding the commission
of the offenses were “particularly aggravated” and that the aggregate length of sentence
reasonably related to the defendant’s crimes. Although the trial court did not make an
explicit finding that the length of sentence was necessary in order to protect the public
from further criminal acts by the defendant, such finding was implicit in its ruling. The
record supports the trial court’s determination that the defendant was a dangerous
offender.
In any event, even if there was error in finding the defendant to be a dangerous
offender, the court appropriately imposed consecutive sentencing upon finding that the
defendant had an extensive record of criminal activity given his present convictions. This
court has repeatedly held that “[c]urrent offenses may be used in determining criminal
history for the purposes of consecutive sentencing.” State v. Carolyn J. Nobles, No.
M2006-00695-CCA-R3-CD, 2007 WL 677861, at *12 (Tenn. Crim. App. Mar. 7, 2007)
(citing State v. Cummings, 868 S.W.2d 661, 667 (Tenn. Crim. App. 1992)); see, e.g.,
State v. Kyle Ronald Fencl, No. M2012-01265-CCA-R3-CD, 2013 WL 3976060, at *8
9
(Tenn. Crim. App. Aug. 5, 2013), perm. app. denied (Tenn. Nov. 13, 2013); State v.
Darius Jones, No. W2010-01080-CCA-R3-CD, 2011 WL 2162986, at *3 (Tenn. Crim.
App. May 26, 2011), perm. app. denied (Tenn. Sept. 21, 2011); State v. Mark Robert
Carter, No. M2007-02706-CCA-R3-CD, 2009 WL 1349206, at *10 (Tenn. Crim. App.
May 14, 2009), perm. app. denied (Tenn. Sept. 28, 2009). A trial court may impose
consecutive sentencing after finding any one of the criteria in Tennessee Code Annotated
section 40-35-115(b). The trial court did not abuse its discretion in imposing consecutive
sentences in this case.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court. However, we remand for entry of a corrected judgment in Count 6 to indicate
that the conviction offense is a Class A felony.
_________________________________
ALAN E. GLENN, JUDGE
10
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Filed 9/1/15 P. v. Thompson CA5
NOT TO BE PUBLISHED IN THE 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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F068980
Plaintiff and Respondent,
(Fresno Super. Ct. No. F13908766)
v.
MICHAEL THOMPSON, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Fresno County. Don B.
Penner, Judge.
William D. Farber, under appointment by the Court of Appeal, for Defendant and
Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and
Respondent.
-ooOoo-
* Before Levy, Acting P.J., Gomes, J. and Detjen, J.
INTRODUCTION
Appellant/defendant Michael Thompson pleaded guilty to assault with a deadly
weapon and was sentenced to nine years pursuant to a negotiated disposition. On appeal,
his appellate counsel has filed a brief that summarizes the facts with citations to the
record, raises no issues, and asks this court to independently review the record. (People
v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
FACTS
On the evening of September 15, 2013, Thomas Cazares was walking around an
apartment complex with his wife and child. Defendant walked by, and Cazares noticed
defendant was looking at his wife. Cazares asked defendant if there was a problem.
Defendant approached Cazares and cursed him. Defendant pulled a knife, and Cazares’s
family ran away and called the police. Defendant used his closed fist and punched
Cazares twice on the right side of the head. Defendant swung the knife at Cazares five or
six times. Cazares suffered three to four stab wounds on his hand.
An officer responded and found defendant walking in the area. The officer
ordered defendant to the ground. Defendant refused. He used racial slurs and profanity
toward the officer, taunted the officer to shoot him, and reached toward his midsection.
When additional officers arrived, defendant finally complied and was arrested. He was
found in possession of two knives, and he was a parolee at large.
Procedural History
On September 17, 2013, a complaint was filed which charged defendant with
count I, assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),1 with one prior
strike conviction (§§ 667, subds. (b)–(h), 1170.12, subds. (a)–(d)), one prior serious
felony enhancement (§ 667, subd. (a)(1)), and one prior prison term enhancement
(§ 667.5, subd. (b)).
1 All further statutory citations are to the Penal Code unless otherwise indicated.
2.
On October 2, 2013, defendant pleaded no contest and admitted the prior
conviction, pursuant to a negotiated disposition where his maximum sentence would be
nine years. The court dismissed the remaining charges.
On November 27, 2013, defendant requested to discharge his appointed counsel.
The court conducted a hearing pursuant to People v. Marsden (1970) 2 Cal.3d 118 and
denied the motion. The court granted defendant’s motion for a continuance for his family
to hire private counsel.
On January 8, 2014, the court granted defendant’s request to continue the
sentencing hearing to February 26, 2014, to hire private counsel, but advised defendant
that it would conduct the sentencing hearing if he did not hire counsel by that time.
On February 26, 2014, the court convened the sentencing hearing, denied
defendant’s request for another continuance, and found he had more than sufficient time
to retain private counsel. The court denied probation and sentenced defendant to the
lower term of two years for count I, doubled to four years as the second strike term, with
a consecutive term of five years for the prior serious felony enhancement, for an
aggregate term of nine years. The court imposed various fines and fees, including a $40
court operation assessment fee pursuant to section 1465.8, subdivision (a)(1).2
On February 28, 2014, defendant filed a timely notice of appeal. He did not
request or obtain a certificate of probable cause.
DISCUSSION
As noted above, defendant’s counsel has filed a Wende brief with this court. The
brief also includes the declaration of appellate counsel indicating that defendant was
advised he could file his own brief with this court. By letter on July 23, 2014, we invited
defendant to submit additional briefing. To date, he has not done so.
2The abstract of judgment correctly states the court operation assessment fee was
$40 (§ 1465.8), consistent with the court’s verbal order and the recommendation of the
probation report, but the minute order erroneously states the fee was $70.
3.
After independent review of the record, we find that no reasonably arguable
factual or legal issues exist.
DISPOSITION
The judgment is affirmed.
4.
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71 Cal.2d 110 (1969)
453 P.2d 747
77 Cal. Rptr. 243
FIELD RESEARCH CORPORATION et al., Petitioners,
v.
THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; WILLIAM P. PATRICK, Real Party in Interest.
Docket No. S.F. 22643.
Supreme Court of California. In Bank.
May 14, 1969.
*111 Haizlip, Ring, O'Donnell & Moore and David D. Ring for Petitioners.
No appearance for Respondent.
Belli, Ashe, Ellison, Choulos, Cone & Harper, von Beroldingen, Rohde & Noonan and James D. Rohde for Real Party in Interest.
TRAYNOR, C.J.
Petitioners Field Research Corporation and its president, Mervin D. Field, seek a writ of mandate to compel the Superior Court of the City and County of San Francisco to vacate its order granting partial summary judgment in an action for damages for defamation. (Code Civ. Proc., § 437c.) [1] The court's order is not appealable. Since petitioners have no "plain, speedy, and adequate remedy, in the ordinary course of law," and since the court erred in refusing to permit petitioners to proceed to trial on the issue of general and exemplary damages, the writ will issue. (Code Civ. Proc., § 1086; Souza & McCue Constr. Co. v. Superior Court (1962) 57 Cal.2d 508 [20 Cal. Rptr. 634, 370 P.2d 338]; Dowell v. Superior Court (1956) 47 Cal.2d 483, *112 486 [304 P.2d 1009]; 3 Witkin, Cal. Procedure (1954) pp. 2541-2542.)
Petitioners' complaint against William P. Patrick, real party in interest herein, alleged: Mervin D. Field is the president of Field Research Corporation, which is engaged in devising and conducting public opinion polls and disseminating the results thereof to subscribers. One such poll, released in February 1966 and bearing Mervin D. Field's name, indicated the degree of public preference for three Republican gubernatorial candidates, Ronald Reagan, George Christopher, and William P. Patrick. On five specified occasions Patrick stated in press conferences or interviews with broadcasting media that the foregoing poll was inaccurate and dishonest.[1]
The complaint alleged that Patrick's statements were false and made with malice and that petitioners were therefore entitled to recover special, general, and exemplary damages.
Patrick moved for partial summary judgment. Since the statements complained of in paragraphs V, VI, and VII had been communicated to the public by news media and since no demands for correction had been served on the various media *113 that published the statements, the trial court granted Patrick's motion on the ground that petitioners were precluded from recovering general or exemplary damages for those statements by section 48a of the Civil Code.[2]
[2] The petition presents three questions: Does section 48a protect third parties not engaged in the news dissemination industry whose statements are reported to the public by newspaper, radio, or television? Is the section constitutional if so applied? In any event, may petitioners recover general and exemplary damages for defamatory statements published to representatives of news media that did not thereafter publish the statements to the public even though other news media did publish the statements? Since we must answer the first question in the negative we do not reach the other two questions.
Neither the language of the statute nor such extrinsic aids as are available make clear whether or not section 48a applies to third parties not engaged in the business of disseminating news. It was enacted in 1945, replacing a similar statute of equal ambiguity.[3] Section 48a closely resembles, and was probably patterned after a Minnesota statute (Minn.Gen.Stat. 1913, § 7901; now Minn. Stat., § 548.06; see, Uhlman v. Farm Stock & Home Co. (1941) 126 Minn. 239 [148 N.W. 102, 103, Ann.Cas. 1915D 888]; Anderson v. Hearst Publishing Co. (S.D.Cal. 1954) 120 F. Supp. 850, 853), which applied only to the news media and not to third parties whose statements were communicated to the public via the news media. (Lydiard v. Wingate (1915) 131 Minn. 355 [155 N.W. 212, 213].)
The language of section 48a indicates that the California *114 statute, like the Minnesota statute, does not apply to third parties who are not participants in the publishing or broadcasting enterprise. Although the word "publication" in the first sentence of that section is used in its legal sense to mean the communication of any defamation,[4] the second sentence provides that the demand for correction shall be served upon the "publisher" or "broadcaster" and clearly refers to the owner or operator of the newspaper or radio station, rather than the originator of the defamatory statements. (Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 791 [228 P.2d 6].)
It does not follow, however, that because the newspaper publisher or radio broadcaster must be served with the demand for correction, section 48a applies only in those situations in which the publisher or broadcaster is himself the defendant or himself originated the defamatory statements.
In Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 125-134 [216 P.2d 825, 13 A.L.R.2d 252], we held that section 48a could limit its protection to those who engage in the immediate dissemination of news on the ground that the Legislature could reasonably conclude that such enterprises are most often subject to unwarranted claims for excessive damages in defamation suits, that they cannot always check their sources for accuracy and their stories for inadvertent publication errors, and that such enterprises are peculiarly well situated to publish effective retractions.
Subsequently, in Pridonoff v. Balokovich, supra, we recognized that the purpose of section 48a could be circumvented if the section were limited to newspaper publishers and radio broadcasters, and we therefore held that the section protected those who participated in the publication or broadcast, including reporters, columnists, authors, critics, and editors. Otherwise, *115 that section would protect, not those engaged in the rapid dissemination of news, but merely those who owned or operated the facilities for such dissemination; it would protect, not a special form of news reporting, but a special form of investment. If without first demanding and being refused a retraction, plaintiffs could reach behind the publisher or broadcaster and sue instead the offending reporter or other participant, section 48a would serve little purpose and would actively discourage the very free and rapid dissemination of news it seeks to encourage.
Furthermore, as we noted in Pridonoff, there is good reason for the section to designate the publisher or broadcaster as the party on whom notice to retract must be served. (Pridonoff v. Balokovich, supra, at p. 791; see Werner v. Southern Cal. etc. Newspapers, supra, at p. 133.) With respect to the defamations that their employees or other participants have caused to be published or broadcast, it is only the publisher or broadcaster who has the power effectively to correct or retract. When a defamatory statement authored by a participant in a publishing or broadcasting enterprise has been published by a newspaper or broadcasting station, it is largely the authority and reputation of the paper or station that gives the statement its credibility. Indeed, many news stories and editorials disseminated by either enterprise do not reveal the identity of the author and are accepted by the public as statements of the enterprise itself. Even when the participant is identified, the weight that the public will attach to his statement may be determined largely by the reputation for truth and impartiality that the enterprise itself enjoys.
[3] None of the reasons for applying section 48a to participants in news media apply to Patrick. At the time he made the statements complained of he was a private citizen and candidate for public office and not a participant in a publishing or broadcasting enterprise. Patrick, as well as the statements he made, were themselves news. The fact that he was seen and his statements heard and recorded by representatives of the news media does not make him a disseminator of news any more than any other person whose activities or utterances are reported by the media thereby becomes a disseminator of news. We realize, of course, that the news value of Patrick's allegations was twofold. He made his accusations as a candidate and public figure. If the charges were true, it would certainly be news that the Field Poll had been "bought." There is a significant difference, however, *116 between one who occasionally discovers and makes public an item that is newsworthy and one who, as a daily occupation or business, collects, collates, evaluates, reduces to communicable form, and communicates the news. It is these latter activities that the Legislature sought to protect by section 48a.
The newspapers, radio stations, and television stations that reported Patrick's statements, and on whom notice to retract would have had to be served if section 48a were applicable, could not have corrected or retracted the statements effectively. The media could hardly be required to deny that Patrick made the statements in question, and indeed may have had an independent privilege to publish them.[5] At most they could disclaim any responsibility for them. Since they could not speak for Patrick, however, such disclaimers would not mitigate the sting of the alleged defamation.
Since section 48a does not apply to Patrick, the trial court erred in granting his motion for partial summary judgment.
Let a peremptory writ of mandate issue directing the Superior Court of the City and County of San Francisco to vacate its order of October 14, 1968, in the case of Field v. Patrick, action No. 564926, and to enter an order denying the motion of defendant therein for partial summary judgment.
McComb, J., Peters, J., Tobriner, J., Mosk, J., Burke, J., and Sullivan, J., concurred.
NOTES
[1] The complaint alleged that Patrick made the statements to representatives of newspaper or broadcasting media with the intent that they be communicated to the public. The statements complained of were set forth in paragraphs, which the parties stipulated should be the basis for five separate causes of action, as follows:
Paragraph IV: "I believe this poll was paid for by George Christopher and his forces.... I wonder who paid for it ... I think we would find a very strong Christopher influence.... I'm of the knowledge that polls can be purchased."
Paragraph V: "[The February poll] was corrupt.... The poll was bought and paid for by George Christopher for $16,000.... The poll deliberately misrepresented my standing...."
Paragraph VI: "I think that [the February poll] was purchased by forces supporting Mr. Christopher and I can't at this time prove this but I again have some reliable rumors and I think that this was the case."
Paragraph VII: "[T]he poll was dishonest. I think it was designed to tie in with a deal made by George Christopher and Reagan last June ... there is some indication that it has been [rigged] ... I have rumors from a very reliable source[s] that it was and that [Christopher] or his campaign war chest paid $16,000 to have the poll favor him ... and this is dirty politics."
Paragraph VIII does not quote Patrick but recites that he stated that George Christopher's forces paid Mervin D. Field $16,000 to make Christopher look good in the California Poll and that Patrick stated that a good friend had told him this.
Although the complaint alleged that all five statements were made with the intent that they be communicated to the public, communication was only alleged with regard to the statements set out in paragraphs V and VI. The parties stipulated that the statements set out in paragraph VII were so communicated.
[2] "1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected...."
"2. If a correction be demanded ... and be not published or broadcast ... in said newspaper or on said broadcasting station... plaintiff ... may recover general, special and exemplary damages...."
Television broadcasts are included within the meaning of the term "radio broadcasts" as used in section 48a. (Civ. Code, § 48.5, subd. (4).)
[3] (Stats. 1931, ch. 1018, p. 2034, § 1.) The 1931 statute applied to "any action for damages for the publication of a libel in a newspaper"; provided for service of a request that the offending material be "withdrawn," such service to be made on the "publisher at the place of publication"; and provided for the recovery of "actual, special and exemplary damages" if the correction were not properly published in "said newspaper."
[4] In Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 791 [288 P.2d 6], we emphasized the potentially unlimited application of the first sentence of section 48a, but we held only that the section applied to "participants" in newspaper publications as well as to the publishers themselves. (See, Mercado v. Hoefler (1961) 190 Cal. App.2d 12, 18-19 [11 Cal. Rptr. 787] [person whose statements are made to a reporter and subsequently published is not protected by § 48a]; White v. Valenta (1965) 234 Cal. App.2d 243, 247-248 [44 Cal. Rptr. 241, 13 A.L.R.3d 1271] [§ 48a not applicable to one who merely intrudes upon a live television broadcast]; Comer v. Louisville & N.R. Co. (1907) 15 Ala. 622 [44 So. 676, 13 L.R.A.N.S. 525] [statute similar to § 48a held not applicable to advertisers].) To the extent that Farr v. Bramblett (1955) 132 Cal. App.2d 36 [281 P.2d 372], Larrick v. Gilloon (1959) 176 Cal. App.2d 408 [1 Cal. Rptr. 360], and Howard v. Southern Cal. etc. Newspapers (1950) 95 Cal. App.2d 580 [213 P.2d 399], would extend the application of section 48a to nonparticipants in publishing and broadcasting enterprises, they are disapproved.
[5] See Civil Code, sections 47, subdivisions 3-5, 48.5. For examples of situations where the author of a story and the publisher possess different privileges, see Davis v. Hearst (1911) 160 Cal. 143 [116 P. 530]; Graybill v. DeYoung (1903) 140 Cal. 323, 328-329 [73 P. 1067]; DiGiorgio Corp. v. Valley Labor Citizen (1968) 260 Cal. App.2d 268 [67 Cal. Rptr. 82].
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89 F.Supp.2d 1131 (2000)
Curtis V. RODRIGUEZ, et al., Plaintiffs,
v.
CALIFORNIA HIGHWAY PATROL, et al., Defendants.
No. C 99 20895 JF EAI.
United States District Court, N.D. California, San Jose Division.
March 13, 2000.
*1132 *1133 *1134 Jon B Streeter, San Francisco, CA, Michelle Alexander, San Francisco, CA, Alan L. Schlosser, San Francisco, CA, for plaintiffs.
Bill Lockyer, San Francisco, CA, Tyler Pon, San Francisco, CA, S Michelle Inan, Oakland, CA, for defendants.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS, DENYING MOTION TO SEVER PLAINTIFFS AND/OR STRIKE CLASS ACTION ALLEGATIONS AND DENYING MOTION TO STRIKE PORTIONS OF PLEADING
FOGEL, District Judge.
This case presents a broad, vigorously disputed challenge to an alleged law enforcement practice known as racial profiling. Defendants[1] have filed three motions directed at the pleadings: (1) a motion to dismiss the First Amended Complaint; (2) a motion to sever plaintiffs and/or strike Plaintiffs' class action allegations; and (3) a motion to strike certain portions of the First Amended Complaint. Plaintiffs[2] oppose the motions. The Court has read the moving and responding papers and has considered the oral arguments of counsel presented on February 18, 2000. For the reasons set forth below, the motion to dismiss will be granted in part and denied in part, and the motion to sever plaintiffs and/or strike the class action allegations and the motion to strike portions of the First Amended Complaint will be denied.
I. BACKGROUND
Plaintiffs' First Amended Complaint alleges that Defendants maintain a policy, pattern and practice of targeting African-Americans and Latinos in conducting stops, detentions, interrogations and searches of motorists. The individual plaintiffs have alleged specific incidents of racial profiling which they claim occurred on or near State Highway 152 and Interstate Highway 5 in the Pacheco Pass area of Santa Clara and Merced Counties. Both the individual and the organizational plaintiffs allege that racial profiling is an integral part of a federally funded drug interdiction program sponsored by the United States Drug Enforcement Agency known as "Operation Pipeline" as well as other drug interdiction efforts. Plaintiffs base their allegations in part upon a draft report of California's Joint Legislative Task Force on Government Oversight on September 29, 1999, which alleges the existence of racial profiling in Operation Pipeline.
II. MOTION TO DISMISS
A. Legal Standard
The issue to be decided on a motion to dismiss is not whether a plaintiff's claims have merit but rather whether the moving defendant has shown beyond doubt that the plaintiff can prove no set of facts entitling him or her to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The court's review is limited to the face of the complaint, documents *1135 referenced by the complaint and matters of which the court may take judicial notice. See Levine v. Diamanthuset, Inc., 950 F.2d 1478, 1483 (9th Cir.1991); In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1405 n. 4 (9th Cir.1996); MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir.1986). Ordinarily, a complaint may be dismissed as a matter of law for only two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. See Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984) (citing 2A J. Moore, Moore's Fed. Practice ¶ 12.08 at 2271 (2d ed.1982)). When a court considers a motion to dismiss, all allegations of the complaint are construed in the plaintiff's favor. See Sun Savings & Loan Ass'n v. Dierdorff, 825 F.2d 187, 191 (9th Cir.1987). In particular, "[c]ivil rights complaints are to be liberally construed," and need only comply with F.R.Civ.P. 8(a). Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992). For a motion to dismiss to be granted, it must appear to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1439 (9th Cir.1987). Motions to dismiss generally are viewed with disfavor under this liberal standard and are rarely granted. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997).
B. NAACP's and LULAC's Standing
Both of the organizational plaintiffs NAACP and LULAC are nonprofit membership organizations which allege that they are suing on behalf of their members. Defendants argue that NAACP and LULAC lack standing to sue on behalf of their members under the circumstances of this case.
"[E]ven in the absence of injury to itself, an association may have standing solely as representative of its members." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); see, e.g., NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); International Union, United Auto. v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986). Associational standing is particularly appropriate where "the association is seeking to represent the interests which are central to the purpose of the organization" and "where the relief sought is some form of prospective remedy, such as declaratory judgment, which will inure to the benefit of the organization's membership." Peick v. Pension Benefit Guar. Corp., 724 F.2d 1247, 1259 (7th Cir.1983).
An association has standing if (1) its members would have standing to sue in their own right; (2) the interests the organization seeks to protect are relevant to the organization's purpose; and (3) neither the claim asserted nor the relief sought requires the participation of individual members of the organization in the lawsuit. See Brock, 477 U.S. at 282, 106 S.Ct. 2523; Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Individuals for Responsible Gov't, Inc. v. Washoe County, 110 F.3d 699, 702 (9th Cir.1997).
Defendants do not dispute that the interests sought to be protected by NAACP and LULAC in this litigation are relevant to the purposes of these organizations, which include opposing racial discrimination against African-Americans and Latinos, respectively. In addition, Defendants also acknowledge that Plaintiffs have alleged that individual members of NAACP and LULAC have been stopped and detained by CHP and BNE officers on the basis of race.
Defendants' primary argument is that the organizational plaintiffs' allegations are too general and that more specific allegations should be made so that one may determine the actual identities of particular members of each organization who claim to have been subjected to Defendants' alleged illegal practices. However, while information about claimed injuries caused to members of NAACP and LULAC may be obtained in the course of *1136 discovery, no legal authority requires that the names and contact information of individual members be alleged in the complaint. Legal Aid Society of Hawaii v. Legal Services Corp., 145 F.3d 1017, 1030 (9th Cir.1998), cited by Defendants, is inapposite. That case considered the issue of standing in the context of a motion for summary judgment rather than a motion to dismiss; it thus involved an examination of the entire record following an opportunity for discovery rather than a bare pleading. See id. at 1030-31.
Defendants also argue that Plaintiffs' claims cannot be adjudicated without the participation of individual members of NAACP and LULAC. Defendants quite reasonably point out that proof of the existence of a policy or practice of racial profiling requires proof of more than one instance of official misconduct. However, Plaintiffs in fact have pled more than one instance of official misconduct. There is no authority for the proposition that only members of the organizational plaintiffs can serve as individual plaintiffs; at this early stage of the proceedings, it would appear to be sufficient that the individual plaintiffs are members of the racial and ethnic groups for whom the organizational plaintiffs state that they are advocates.
The Court concludes that for present purposes NAACP and LULAC have standing to sue on behalf of their members. As in Legal Aid Society of Hawaii, see id., at 1029-31, this conclusion does not preclude a determination that these organizations lack standing later in the litigation.
C. Venue
The incident of racial profiling alleged by Rodriguez occurred in Santa Clara County, which is located in the Northern District of California; the incidents alleged by Lopez and Washington occurred in Merced County, which is in the Eastern District of California. Defendants argue that the proper venue for the Lopez and the Washington incidents is the Eastern District rather than the Northern District. However, venue is proper in any district "in which a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2) (1999). Section 1391(b)(2) does not require that a majority of the events have occurred in the district where suit is filed, nor does it require that the events in that district predominate. See Sidco Indus. Inc. v. Wimar Tahoe Corp., 768 F.Supp. 1343, 1346 (D.Or.1991) (language of § 1391(b)(2) "contemplates that there may be more than one district in which a substantial part of the events giving rise to the claim occurred, and that venue would be proper in each such district"); see also Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2d Cir.1992); First of Mich. Corp. v. Bramlet, 141 F.3d 260, 264 (6th Cir.1998). All that Plaintiffs need show is that a substantial part of the events giving rise to their claims occurred in the Northern District of California.
Rodriguez, a resident of Santa Clara County, allegedly was stopped in Santa Clara County, in the Northern District. Moreover, Plaintiffs claim in their class action allegations that Defendants routinely utilize racial profiling in the Pacheco Pass area, much of which is located in the Northern District. Plaintiffs allege that the stops of Rodriguez, Lopez, Washington and all other purported class members are related because they stem from the same alleged practice or policy of racial profiling in the Pacheco Pass area. Plaintiffs thus clearly are alleging that a substantial part of the events giving rise to this action occurred in the Northern District. Accordingly, while venue would be proper in the Eastern District, venue also is proper in the Northern District.
D. Claims Against Helmick and Doane as Supervisory Officials
Defendants urge dismissal of the claims against Helmick and Doane because the First Amended Complaint does not contain specific factual allegations supporting the alleged conclusion that these defendants maintain or are responsible for a *1137 policy which leads directly to stops of Plaintiffs' vehicles on the basis of race. However, the United States Court of Appeals for the Ninth Circuit explicitly has rejected a judicially crafted heightened pleading standard for civil rights cases; instead, it has held that such claims need only comply with F.R.Civ.P. 8(a). See Bergquist v. County of Cochise, 806 F.2d 1364, 1367 (9th Cir.1986), disapproved on other grounds by City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). As the circuit court has stated:
This circuit applies a rule of reason to civil rights actions challenged for sufficiency at the pleading stage. While a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled, plaintiff is not expected to plead his evidence or specific factual details not ascertainable in advance of discovery.
Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir.1986) (internal quotation marks and citations omitted); see also San Jose Charter of the Hell's Angels Motorcycle Club v. City of San Jose, No. C 99 20022 SW PVT, 1999 WL 1211672, at *12 (N.D.Cal. Dec.6, 1999) ("Civil rights plaintiffs ... have never been expected to plead their evidence or specific factual details not ascertainable before discovery has taken place.")
A supervisory law enforcement official is liable in his or her individual capacity "if he [or she] set in motion a series of acts by others, or knowingly refused to terminate a series of acts by others, which he [or she] knew or reasonably should have known, would cause others to inflict the constitutional injury." Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir.1991) (internal quotation marks, brackets and citation omitted); see also Bergquist, 806 F.2d at 1370. The First Amended Complaint alleges that Helmick and Doane personally participated in racial profiling, acted jointly and in concert with others who racially profiled, authorized, acquiesced in or failed to take action to prevent racial profiling, promulgated policies and procedures pursuant to which racial profiling occurred, with deliberate indifference failed and refused to implement and maintain adequate training and supervision and/or ratified the use of racial profiling. The First Amended Complaint also alleges that CHP and BNE supervisors and management continue to encourage these activities in Operation Pipeline despite evidence that drivers of color are targeted and subjected to unwarranted stops, detentions, interrogations and searches, and that the supervisors have been aware that CHP and BNE officers are engaging in racial profiling but have refused to stop it. These allegations, if proved, would establish liability under Larez, Bergquist and Harris. Cf. Maryland State Conference of NAACP Branches v. Maryland Dep't of State Police, 72 F.Supp.2d 560, 565 (D.Md.1999). Accordingly, applying as it must the ordinary pleading standard of F.R.Civ.P. 8(a), the Court concludes that the claims against Helmick and Doane are sufficient to withstand a motion to dismiss.
E. Immunity Under the California Tort Claims Act
Defendants assert that they are immune from Plaintiffs' state law statutory and common law tort claims under three separate provisions of the California Government Code. These code sections provide as follows:
Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.
Cal. Gov't Code § 820.2.
Except as otherwise provided by statute, a public employee is not liable for an injury caused by the act or omission of another person. Nothing in this section exonerates a public employee from liability for injury proximately caused by *1138 his own negligent or wrongful act or omission.
Cal. Gov't Code § 820.8.
Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.
Cal. Gov't Code § 815.2(b).
Preliminarily, the Court notes that these immunity provisions do not apply to claims for declaratory and injunctive relief. See Cal. Gov't Code § 814. The Court also is mindful of the admonition of the California Supreme Court that "in governmental tort cases, the rule is liability, immunity is the exception." Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 221 Cal.Rptr. 840, 710 P.2d 907, 915 (1985) (internal quotation marks and citations omitted). As was explained in Lopez,
section 820.2 confers immunity only with respect to those "basic policy decisions" which have been committed to coordinate branches of government, and does not immunize government entities from liability for subsequent ministerial actions taken in the implementation of those basic policy decisions. This distinction is sometimes characterized as that between the "planning" and the "operational" levels of decision-making.
Id.
Under California law, government defendants have the burden of proving that the actions of government employees fall within scope of a statutory immunity. In Lopez, "[s]uch a showing was not and could not have been made by [the defendant] at the demurrer stage," and "[i]t therefore would [have been] error to sustain [the defendant's] demurrer based on Government Code section 820.2." Id. at 916; see also Bell v. California, 63 Cal. App.4th 919, 74 Cal.Rptr.2d 541, 547 (1998) (section 820.2 "requires proof that the specific conduct that gave rise to the suit involved an actual exercise of discretion a conscious balancing of risks and advantages; the term is limited to `basic policy decisions'").
As was the case in Lopez, The First Amended Complaint alleges actions on the part of Defendants which go beyond "basic policy decisions." For example, it is alleged that Defendants' supervisory personnel were consciously aware of the racially discriminatory nature of Operation Pipeline and similar programs in training individual officers and encouraged and commended them in their alleged discriminatory tactics, and that the officers who stopped Rodriguez, Lopez and Washington did so with a conscious racial motive. The individual plaintiffs also allege that they were falsely imprisoned, allegations as to which there is an explicit statutory basis of liability under Government Code § 820.4. Thus, because Plaintiffs' allegations in the present case are broad enough to encompass conduct not within the scope of the cited immunity provisions, the Court cannot resolve at the pleading stage the issue of whether any or all of the immunities bar Plaintiffs' claims.[3]Davison by Sims v. Santa Barbara High School District, 48 F.Supp.2d 1225 (C.D.Cal.1998), relied upon by Defendants, is inapposite because the allegations of the complaint in that case were limited to "basic policy decisions."
F. Title VI of the Civil Rights Act of 1964
The First Amended Complaint alleges a violation of Title VI of the Civil Rights Act of 1964, which provides that
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d. The regulations implementing Title VI provide that no program *1139 receiving federal assistance through the Department of Justice shall
utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.
28 C.F.R. § 42.104(b)(2).
Defendants argue the Plaintiffs have failed to state a claim under Title VI because they fail to allege specific facts from which it can be concluded that Defendants engage in racial discrimination. However, as noted above, there is no heightened pleading standard in the Ninth Circuit for civil rights complaints; compliance with F.R.Civ.P. 8(a) generally constitutes sufficient particularity to withstand a motion to dismiss.
Under Title VI, there are two types of potential liability. Plaintiffs may state a claim for damages pursuant to the statute, for equitable relief pursuant to the regulations or for both. See Larry P. by Lucille P. v. Riles, 793 F.2d 969, 981-82 (9th Cir.1984) (citing Guardians Ass'n v. Civil Serv. Comm'n of City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983)). The statute requires proof of discriminatory intent; the regulations do not. See 793 F.2d at 981-82.
"To state a claim for damages under 42 U.S.C. § 2000d, et seq., a plaintiff must allege that (1) the entity involved is engaging in racial discrimination; and (2) the entity involved is receiving federal financial assistance. Although the plaintiff must prove intent at trial, it need not be pled in the complaint." Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir.1994) (citations omitted). In the present matter, Plaintiffs have met the pleading standard set forth in Fobbs. Plaintiffs allege that Defendants engage in racial discrimination by stopping, detaining, interrogating and searching motorists on the basis of race, and they describe the discriminatory methods and practices Defendants allegedly employ. Plaintiffs also allege that CHP and BNE are recipients of federal funding. Nothing more is required to state a claim under Title VI, although Plaintiffs also allege that Defendants acted with discriminatory intent.
To establish a prima facie case that Defendants violated Title VI regulations, Plaintiffs must demonstrate that Defendants have a program, policy or practice that has a "discriminatory impact." Larry P. by Lucille P., 793 F.2d at 982. Plaintiffs allege that CHP's drug interdiction efforts have a discriminatory impact on motorists of color. Anticipating Defendants' position that their drug interdiction tactics are justified by law enforcement necessity, see id., Plaintiffs further allege that these tactics are largely unsuccessful and therefore not justified. Specifically, Plaintiffs allege that only a small percentage of Operation Pipeline stops and searches result in the discovery of incriminating evidence, yet large numbers of motorists of color are the victims of racial discrimination through racial profiling.
The Court concludes that the allegations of the First Amended Complaint adequately state a discriminatory-intent claim for damages and a discriminatory-impact claim for equitable relief under Title VI. Cf. Maryland State Conference of NAACP, 72 F.Supp.2d at 566-68.
G. Fourth Amendment
In Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), the United States Supreme Court held that the Fourth Amendment is not violated when a minor traffic violation is a pretext rather than the actual motivation for a stop by law enforcement. Thus, the individual plaintiffs' allegations that they were stopped for pretextual reasons, without more, would not state a claim under the Fourth Amendment.[4]
*1140 However, Plaintiffs make Fourth Amendment claims which are not barred by Whren. Plaintiffs allege that Defendants have subjected them not only to baseless stops but also to prolonged detentions, intrusive interrogations and searches without probable cause or reasonable suspicion to believe that any traffic violation or crime has been committed and without consent. For example, Rodriguez and Washington allege that they were stopped even though Defendants did not have a reasonable suspicion that either had committed any traffic violation or crime[5], that they were searched even though neither had consented to being searched and that Defendants had no basis for searching them without warrants.
The Fourth Amendment is violated when a motorist is stopped without reasonable suspicion of a traffic violation or crime and searched without consent or probable cause. See, e.g., United States v. Jimenez-Medina, 173 F.3d 752, 754 (9th Cir.1999); Whren, 517 U.S. at 809-10, 116 S.Ct. 1769. Detentions or searches that are prolonged or otherwise unreasonable in view of the reason for the stop also are unlawful under the Fourth Amendment. See, e.g., United States v. Foppe, 993 F.2d 1444 (9th Cir.1993) (describing as a violation of the Fourth Amendment an officer's search of a motorist unrelated to the traffic violation that originally justified the stop of the motorist's vehicle). The First Amended Complaint alleges facts with respect to each of the Plaintiffs which, if proved, would establish that CHP violated the Fourth Amendment by the intrusiveness and duration of its searches and detentions even assuming a valid stop. See, e.g., Martinez v. Nygaard, 831 F.2d 822, 827 (9th Cir.1987) ("The stop may last only so long as is necessary to carry out its purpose and the investigative methods used should be the least intrusive means reasonably available to confirm or dispel the officer's suspicion."); Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (same). The Court therefore concludes that Plaintiffs have sufficiently alleged a Fourth Amendment claim.
H. Equal Protection
Defendants next assert that Plaintiffs have failed to state a claim for violation of the Equal Protection Clause because they have failed to identify "similarly situated" Caucasian individuals who were treated differently from Rodriguez, Lopez and Washington. However, in the civil context, plaintiffs properly state a claim for relief under the Equal Protection Clause if they allege that Defendants acted with discriminatory intent. See, e.g., Washington v. Davis, 426 U.S. 229, 247-48, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Pursuant to F.R.Civ.P. 9(b), Plaintiffs are permitted to plead intent generally. Plaintiffs have met this standard.
Defendants rely heavily upon United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996), in support of this aspect of their motion to dismiss. However, while Armstrong is a case of critical importance in the criminal context, it is less instructive in a civil case such as the present one.[6] In Armstrong, *1141 several criminal defendants were indicted on drug and firearm charges involving crack cocaine. The defendants, who claimed that they were being subjected to selective prosecution because they were African-American, filed a motion seeking evidence to support their claim and to support a motion to dismiss the criminal charges. The Court held that while F.R.Crim.P. 16(a)(1)(C) authorizes criminal defendants to examine government documents material to a defense against the government's case-in-chief, these defendants could not discover documents material to their selective prosecution claim unless they produced some evidence that similarly situated defendants of other races had not been prosecuted. Armstrong neither addressed the standard for discovery in civil cases based upon an Equal Protection claim nor interpreted the Federal Rules of Civil Procedure; rather, it addressed the distinct question of what showing a criminal defendant must make to obtain discovery of evidence which might be relevant to a selective prosecution motion seeking dismissal of criminal charges.
The Court in Armstrong emphasized that the judiciary owes special deference to the prosecutorial office. The exercise of prosecutorial discretion in bringing charges is a power within the "`special province' of the Executive." Id. at 464, 116 S.Ct. 1480. "As a result, the presumption of regularity supports their prosecutorial decisions and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Id. (internal quotation marks, brackets and citation omitted). Law enforcement officers, in contrast, never have been afforded the same presumption of regularity extended to prosecutors. Courts have recognized the possibility that officers in the field occasionally may abuse their discretion and selectively target specific groups and individuals on the basis of race or other illegitimate factors. See, e.g., United States v. Martinez-Fuerte, 428 U.S. 543, 559, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979).
The result in Armstrong rests in part on the Court's conclusion that "[t]he similarly situated requirement does not make a selective prosecution claim impossible to prove" because the class of similarly situated individuals is limited to the group of individuals arrested for the particular crime at issue. 517 U.S. at 466, 116 S.Ct. 1480. In the civil context, however, such a requirement well might be impossible to meet. In the present action, the class of similarly situated individuals necessarily would include all motorists present in areas where Defendants were patrolling. It is highly doubtful that Defendants or any other law enforcement agency maintain records identifying law-abiding individuals who are not stopped. The only similarly situated persons as to whom records might be maintained would be the relatively small subset of individuals who were stopped and questioned by the police but not arrested, and even for this group, it is difficult to conceive what data Plaintiffs could obtain absent discovery which have not been alleged in the First Amended Complaint already. Consistent with Washington and its progeny, this Court concludes that Plaintiffs have stated an Equal Protection claim by alleging that Defendants acted with discriminatory intent and that Defendants knew about but refused to stop racially discriminatory practices on the part of their officers and by alleging the existence of statistical evidence and other facts which if proved would support an inference of discriminatory intent.[7]
*1142 I. Equitable and Declaratory Relief
Defendants contend that Plaintiffs lack standing to seek injunctive relief because they have failed to allege a real or immediate threat of future injury as a result of Defendants' alleged conduct. Defendants also assert that Plaintiffs are not entitled to declaratory relief because they have not presented a live case or controversy.
In City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), the Supreme Court held that because the plaintiff was unable to establish a real or immediate threat of injury, he lacked standing to pursue equitable relief. Lyons, however, is distinguishable from the present case for at least three reasons. First, the Court based its decision in Lyons on a full evidentiary record, not the untested allegations of the complaint. Plaintiffs are entitled to discovery to attempt to establish an evidentiary basis for their claims for injunctive relief. See Riggs v. City of Albuquerque, 916 F.2d 582, 586-87 (10th Cir.1990). After discovery, Defendants may attack Plaintiffs' entitlement to injunctive relief by a motion for summary judgment. Second, in Lyons, in order to grant injunctive relief the trial court would have had to conclude that the plaintiff was likely to commit crimes in the future; here, the availability of relief will turn upon whether Plaintiffs can show that they and those they seek to represent are likely to be subjected to future racial profiling. See Maryland State Conference of NAACP, 72 F.Supp.2d at 565 (D.Md.1999). Third, Plaintiffs allege a pattern and practice of illegal law enforcement activity. "The Lyons complaint, on the other hand, did not assert that there was a pattern and practice of applying choke holds without provocation or, if it did state such a claim, the Court found it was not supported by the record." Id. at 564-65. Injunctive relief may be appropriate if Plaintiffs are able to establish a pattern or practice of racial profiling. See Allee v. Medrano, 416 U.S. 802, 815, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974); cf. Hodgers-Durgin v. de la Vina, 199 F.3d 1037 (9th Cir.1999) (en banc) (injunctive relief inappropriate where plaintiffs are unable to establish future threat on full evidentiary record).
Defendants also suggest, citing concerns of comity and federalism, that this Court should not consider granting equitable relief to Plaintiffs even if they have standing to seek it because such relief would constitute undue federal interference with the autonomy of state agencies. This Court is very mindful of these concerns. However, as noted at oral argument, this action is likely to have a number of discrete procedural stages. Even if Defendants' motion to dismiss is denied, Plaintiffs still must establish that this case is appropriate for class certification, and even if class certification is granted, Plaintiffs must prove that their disputed allegations have merit. As noted previously, the Court's role given the present procedural posture of the case is not to comment upon the validity of Plaintiff's claims but rather to decide if Plaintiffs have alleged facts which if proved might entitle them to some or all of the relief they seek. By this order, the Court determines only that Plaintiffs have alleged enough to entitle them to proceed with discovery to attempt to prove their allegations. The entirely appropriate concerns raised by Defendants are better addressed after there has been at least some development of the factual record; to conclude otherwise would be to suggest that federal courts never ought to be concerned with the activities of state agencies under any circumstances.
Defendants' arguments with respect to Plaintiffs' claim for declaratory relief mirror those made with respect to the claim for injunctive relief. For the same reasons discussed above, the Court concludes that Plaintiffs have presented a live case or controversy which may warrant declaratory relief.
J. Eleventh Amendment
Defendants correctly argue that Plaintiffs' state law claims must be dismissed as to CHP and BNE because the Eleventh Amendment bars the prosecution *1143 of these claims against the State in federal court. Plaintiffs appropriately do not contest this point, except to note that the State has waived its immunity to Plaintiffs' claims pursuant to California Government Code §§ 11135 and 11139. Accordingly, Plaintiffs' state law claims (other than their claims pursuant to the Government Code) against the CHP and the BNE must be dismissed.
K. Monetary Damages
Defendants contend that Plaintiffs' claims of violations of article I, § 7(a) (due process and equal protection) and § 13 (unreasonable seizures and searches) of the California Constitution must be dismissed insofar as they seek monetary damages because these provisions of the California Constitution do not provide for a private right of action for damages.
This federal Court is reluctant to predict whether the Supreme Court of California would recognize a private right of action for damages directly under the relevant provisions of the California Constitution. However, California Civil Code § 52.1(b) already allows Plaintiffs to seek damages for interference with rights secured by the California Constitution. It does not appear from the face of the First Amended Complaint that Plaintiffs are seeking damages beyond those allowed by the Civil Code; the Court thus sees no need as a practical matter to determine whether there is a right of action for damages directly under the provisions of the California Constitution.[8]
III. MOTION TO SEVER PLAINTIFFS AND/OR STRIKE CLASS ALLEGATIONS
Defendants move to sever Lopez and Washington from this case on the grounds that their alleged experiences of racial profiling are not sufficiently similar to those of Rodriguez to maintain them in a single action with Rodriguez. Defendants also move to strike the class action allegations from the First Amended Complaint.
As noted above, the Court concludes that the allegations of the three individual plaintiffs are factually and legally similar. The fact that the First Amended Complaint contains different details about each of the Plaintiffs and the incidents about which each complains for example, that Rodriguez and Lopez are Latino while Washington is African-American does not alter the fact that each claim arises from the same alleged policy, pattern and practice of racial profiling. The factual record as to each individual Plaintiff has yet to be developed. Considering only the allegations of the First Amended Complaint, the Court concludes that it would be inappropriate to sever Plaintiffs Lopez and Washington from this action at the present time.
The same is true with respect to the class allegations. To the extent that Rodriguez, Lopez and Washington raise different issues than those raised by the purported class, the appropriateness of any or all of them serving as a class representative will be tested in the context of a motion for certification of the class. Accordingly, the Court declines to strike the class action allegations at this stage of the proceedings.
IV. MOTION TO STRIKE PORTIONS OF PLEADING
The First Amended Complaint contains an excerpt from the Ninth Circuit's opinion in Washington v. Lambert, 98 F.3d 1181 (9th Cir.1996), which describes "an all too familiar set of circumstances an intrusive law enforcement stop and seizure of innocent persons on the *1144 basis of suspicions rooted principally in the race of `the suspects'" id., at 1182. Defendants move to strike this quotation from the First Amended Complaint on the grounds that it is scandalous. However, while it is neither necessary nor customary for a party to include an excerpt from a published appellate case in a pleading, Defendants cite no authority that such inclusion is improper per se or is likely to cause any prejudice to Defendants.
Defendants also move to strike references to the report issued by California's Joint Legislative Task Force on Government Oversight on September 29, 1999, regarding alleged racial profiling in Operation Pipeline. Defendants argue that the Task Force report does not relate to this case. However, the Task Force report discusses in detail alleged racial profiling by Defendants and forms part of the factual predicate for Plaintiffs' claim that racial profiling is present here.
V. ORDER
Good cause therefor appearing, the Court ORDERS as follows:
1. Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint is GRANTED without leave to amend as to the eighth through thirteenth causes of action against Defendants California Highway Patrol and Bureau of Narcotics Enforcement; the motion is otherwise DENIED;
2. Defendants' Motion to Sever Plaintiffs and/or Strike Class Action Allegations from the First Amended Complaint is DENIED;
3. Defendants' Motion to Strike Portions of Pleading is DENIED;
4. Defendants shall file their Answer within thirty (30) days after the date this order is filed;
5. Discovery shall remain stayed pending the Case Management Conference scheduled for March 20, 2000, at 1:30 pm, and until further order of the Court.
NOTES
[1] Defendants are the California Highway Patrol ("CHP"), the Bureau of Narcotics Enforcement ("BNE"), California Highway Patrol Commissioner D.O. Helmick ("Helmick") and Bureau of Narcotics Enforcement Chief Joe Doane ("Doane").
[2] Plaintiffs are Curtis V. Rodriguez ("Rodriguez"), Jose Lopez ("Lopez"), MacArthur Washington ("Washington"), California Branches of the National Association for the Advancement of Colored People ("NAACP") and the California League of United Latin American Citizens ("LULAC").
[3] Obviously, nothing herein precludes Defendants from reasserting any statutory immunity at a later stage in these proceedings.
[4] Whren does not hold that a law enforcement officer's motivation is entirely irrelevant when probable cause for a stop is based on a traffic violation. As explained in Whren, "[t]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 517 U.S. at 813, 116 S.Ct. 1769.
[5] It is settled law that race or appearance alone is insufficient to justify a stop or arrest. See United States v. Bautista, 684 F.2d 1286, 1289 (9th Cir.1982) ("race or color alone is not a sufficient basis for making an investigatory stop"); United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (appearance of Mexican ancestry alone is insufficient to justify a stop or arrest under the Fourth Amendment).
[6] This Court notes and respectfully disagrees with the discussion of Armstrong and the Equal Protection claim in Chavez v. Illinois State Police, 27 F.Supp.2d 1053 (N.D.Ill. 1998).
[7] The statistical evidence and other facts alleged by Plaintiffs also would if proved support an inference of discriminatory intent. As noted in Washington, statistical evidence "may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds." 426 U.S. at 242, 96 S.Ct. 2040; see United States v. Laymon, 730 F.Supp. 332 (D.Colo.1990) (statistical pattern and other evidence established unconstitutional racial targeting in stops and searches).
[8] As suggested at oral argument, this Court would be extremely reluctant to find a basis for tort liability against a state in the absence of an explicit (as opposed to an implied) waiver by the state of sovereign immunity. The fact that the California Legislature enacted Civil Code § 52.1(b) is a strong indication that any waiver of sovereign immunity with respect to claims based upon the California Constitution was limited to the express terms of that statute.
| {
"pile_set_name": "FreeLaw"
} |
EILED
COURT OF APPEALS DPI:
Siitic:vIAs: 11, i7r2:;
201 tiEC '5 I.:: 12
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) No. 75050-0-1
)
Respondent, ) DIVISION ONE
)
v. ) PUBLISHED OPINION
)
PAUL TIMOTHY CHASE, )
)
Petitioner. ) FILED: December 26, 2017
)
LEACH, J. — Paul Chase, shareholder and principal officer of Red Leaf
Construction Inc., appeals the trial court's partial denial of his motion to suppress
Red Leaf's bank records. A commissioner of this court granted discretionary
review. We consider, as a matter of first impression, whether a shareholder or
officer of a closely held corporation has a personal privacy interest in the
corporation's financial information. We hold that neither has this personal privacy
interest and affirm.
FACTS
In 2007, Paul Chase incorporated Red Leaf Construction Inc., a closely
held corporation. Chase was the president, secretary, treasurer, and chairman of
the board. His wife was the vice-president. In 2009, a former customer filed a
civil claim against Red Leaf. In 2010, the customer sent a fraud referral to the
Department of Revenue (Department), alleging that Chase and his company had
No. 75050-0-1 /2
committed sales tax fraud. This referral was the Department's first indication that
Red Leaf was conducting business. Red Leaf filed a tax return in 2007 showing
no sales tax due but filed no further tax returns and paid no sales tax for the
years 2008, 2009, and 2010.
After the referral, the Department began the audit process of Red Leaf.
The Department mailed a summons to Chase demanding that he produce Red
Leaf's bank records. The postal service returned the summons to the
Department as undeliverable. The Department later issued administrative
summonses to several banks. The Department sought records to assess Red
Leaf's sales tax liability for the period beginning January 1, 2008, and ending
August 31, 2011. It requested the following records: all bank statements, all
bank signature cards, copies of all checks written, copies of the front and back of
all checks deposited, a copy of the lease agreement, and copies of all invoices.
Banner Bank complied with the request. The Banner Bank records
showed that Red Leaf collected sales tax from customers but did not pay it to the
Department. The Department referred the case to the attorney general, who
charged Chase with theft in the first degree.
Chase filed a motion to suppress Red Leafs bank records. The trial court
held that Red Leaf's bank records, except for Chase's social security number on
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No. 75050-0-1 /3
the signature cards,1 were not subject to protection under article I, section 7 of
the Washington State Constitution because they were not his personal or private
records. In addition, the court concluded that even if the Department had
violated Red Leaf's privacy rights, Chase did not have standing to assert that
violation. Chase filed a motion for discretionary review. The State concurred in
this request. This court granted review. The trial court stayed Chase's
prosecution pending the outcome of this appeal.
STANDARD OF REVIEW
When an appellate court considers a challenge to findings of fact in a
suppression order, the court reviews the record before the trial court to determine
whether substantial evidence supports the challenged findings.2 Evidence is
substantial when it is enough "'to persuade a fair-minded person of the truth of
the stated premise."3 When an appellant does not assign error to a finding of
fact, the appellate court accepts that finding as true on appea1.4 The appellate
IThe trial court suppressed Chase's social security number on the bank
signature cards because, unlike Red Leafs financial information, the court
determined Chase had a privacy interest in his social security number. The State
does not challenge this ruling.
2 State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266(2009).
3 Garvin, 166 Wn.2d at 249 (quoting State v. Reid, 98 Wn. App. 152, 156,
988 P.2d 1038 (1999)).
4 Dep't of Revenue v. March, 25 Wn. App. 314, 316, 610 P.2d 916(1979).
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No. 75050-0-1 /4
court reviews challenged conclusions of law from a suppression order de novo.5
It also reviews issues of standing de novo.6
ANALYSIS
I. "Private Affairs" under Article I, Section 7
Chase asserts that the Department's receipt of Red Leaf's bank records
through issuance of an administrative summons violated his right against
unlawful search and seizure under article 1, section 7 of the Washington
Constitution.7 Article 1, section 7 has two components: "private affairs" and
"authority of law."5 If the defendant does not show that his private affairs were
disturbed, there is no violation.9 If a valid privacy interest has been disturbed, the
reviewing court must determine whether the disturbance was justified by
authority of law.19
Chase claims that he has a personal privacy interest in the financial
information in Red Leaf's bank records. Article I, section 7 protects "those
5 Garvin, 166 Wn.2d at 249.
6 State v. Magneson, 107 Wn. App. 221, 224, 26 P.3d 986(2001).
7 "No person shall be disturbed in his private affairs, or his home invaded,
without authority of law." WASH. CONST. art. 1, § 7. Article I, section 7 protections
are broader than those afforded in the Fourth Amendment to the United States
Constitution. See generally State v. Reeder, 184 Wn.2d 805, 813-14, 365 P.3d
1243(2015).
8 Reeder, 184 Wn.2d at 814 (internal quotation marks omitted)(quoting In
re Pers. Restraint of Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196 (1997)).
9 Reeder, 184 Wn.2d at 814.
19 Reeder, 184 Wn.2d at 814.
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No. 75050-0-1 / 5
privacy interests which citizens of this state have held, and should be entitled to
hold, safe from governmental trespass.'"11 In State v. Miles12 and State v.
Reeder,13 our Supreme Court held that individuals have a privacy interest in their
personal bank records held by a third party.14 The court reasoned that private
bank records could potentially reveal sensitive personal information, such as
"where the person has traveled, the person's reading habits, and the person's
financial condition."15
Here, both parties contend that Miles controls. Although both parties
characterize Red Leaf's bank records as Chase's business bank records, they
advocate for opposing outcomes based on their differing interpretations of the
holding in Miles. We distinguish this case from Miles.
In Miles, the State demanded, by administrative subpoena, banking
records from all accounts used by Miles and did not limit its request to business
records.16 Our Supreme Court rejected the State's argument for a reduced
expectation of privacy based on Miles's participation in the pervasively regulated
11 Reeder, 184 Wn.2d at 814 (internal quotation marks omitted) (quoting
Maxfield, 133 Wn.2d at 339).
12 160 Wn.2d 236, 156 P.3d 864 (2007).
13 184 Wn.2d 805, 365 P.3d 1243(2015).
14 Miles, 160 Wn.2d at 244, 251-52; Reeder, 184 Wn.2d at 814-15.
15 Reeder, 184 Wn.2d at 814.
16 Miles, 160 Wn.2d at 251.
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No. 75050-0-1/6
securities industry in part because the State's subpoena allowed "intrusion into
matters outside the records or scope of the regulated industry."17
But here the Department limited its request to a corporation's business
records. The Department issued administrative summonses to four banks for
Red Leaf's bank records. The Department did not issue a summons for Chase's
personal bank records. A corporation's bank records are not an individual's
personal bank records. "A corporation exists as an organization distinct from the
personality of its shareholders."18 Moreover, "a corporation's separate legal
identity is not lost merely because all of its stock is held by members of a single
family or by one person."19 Thus, although Chase was the president, secretary,
treasurer, and chairman of the board of Red Leaf and his wife was the vice-
president, Red Leaf remained a separate legal entity.
In addition, a distinction exists between the criminal responsibility of a
corporation2° and the criminal responsibility of a corporate officer in his personal
capacity.21 This division underscores that corporations and corporate officers
17 Miles, 160 Wn.2d at 251.
18 Grayson v. Nordic Constr. Co., 92 Wn.2d 548, 552, 599 P.2d 1271
(1979).
19 Grayson, 92 Wn.2d at 553.
28 RCW 9A.08.030(2) delineates in what circumstances a corporation can
be criminally charged.
21 An individual may be personally criminally liable for conduct "he or she
performs or causes to be performed in the name of or on behalf of a corporation
to the same extent as if such conduct were performed in his or her own name or
behalf." RCW 9A.08.030(3).
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No. 75050-0-1/ 7
acting in their personal capacities maintain distinct legal obligations and interests.
As the trial court correctly decided, Red Leaf's bank records are not Chase's
personal bank records. The State's demands did not intrude beyond the
corporation's business activities into Chase's private affairs. Thus, Miles does
not control this case.
This court must therefore decide, as an issue of first impression, whether
a corporate officer has a personal privacy interest in the corporation's financial
transactions described in its bank records. To determine "whether a particular
expectation of privacy is one that a citizen of this state should be entitled to hold,"
this court must engage in a two-part inquiry.22
First, we must examine whether the interest has been protected
historically as part of an individual's private affairs.23 For example, in State v.
McKinney,24 the Washington Supreme Court analyzed a 1937 statute that
created the Department of Licensing (DOL) and required it to maintain vehicle
ownership and libensing information. Anyone could obtain vehicle registration
information until the legislature amended the statute in 1990.25 The 1990
amendment narrowed public access to information from the DOL but did not
22 Reeder, 184 Wn.2d at 814.
23 Reeder, 184 Wn.2d at 814.
24 148 Wn.2d 20, 27, 60 P.3d 46 (2002).
25 McKinney, 148 Wn.2d at 27.
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No. 75050-0-1 / 8
restrict release of information to law enforcement.26 The court held that "[o]ur
historical review of driver's license records does not support a conclusion that
DOL licensing records constitute 'private affairs."27
Second, we must consider the nature and extent of the information that
may be obtained by the challenged government conduct.28 For example, in
addition to private bank records, our Supreme Court has held that individuals
have a privacy interest in their garbage that they place on the curb because
garbage "could include sensitive information about business records, bills,
correspondence, tax records, and so on."29 Here, this two-part inquiry shows that
Chase does not have a privacy interest in Red Leaf's financial information.
First, a corporation's financial transactions described in its bank records
historically have not been considered part of a shareholder's or an officer's
"private affairs." Also, records related to the collection of taxes have historically
been available to the Department for audit. The Department issued summonses
in this case in accordance with its authority under RCW 82.32.110. This statute
dates back to 1935 and authorizes the Department to issue administrative
summonses to determine a person's or entity's tax liability.30 RCW 82.32.070
28 McKinney, 148 Wn.2d at 28.
27 McKinney, 148 Wn.2d at 29.
28 Reeder, 184 Wn.2d at 814.
29 Miles, 160 Wn.2d at 245.
38 Under RCW 82.32.110, the Department may
-8-
No. 75050-0-1/ 9
was also first adopted in 1935 and states that "[e]very taxpayer liable for any tax
collected by the department must [have his or her] books, records, and
invoices. . . open for examination at any time by the department of revenue.31
Thus, since 1935, taxpayers have been on notice that their financial records
could be subject to random audit at the Department's discretion. This weighs
against treating Red Leaf's financial information as Chase's private affairs.
Second, a corporation's financial transactions do not reveal sufficiently
sensitive information about a person's personal contacts and associations to
.,-
require the protections of article 1, section 7. Records of a corporation's financial
transactions do not pose the same risk of exposing, for example, a person's
financial standing, personal reading habits, or personal travel register as do a
person's personal bank records or a person's garbage. We thus conclude that
neither a shareholder nor corporate officer has a privacy interest in the
corporation's financial transactions described in its bank records. This means
that Chase does not have a privacy interest in Red Leaf's financial information
,
examine any books, papers, records, or other data, or stock of
merchandise bearing upon the amount of any tax payable or
upon the correctness of any return, or for the purpose of making
a return where none has been made, or in order to ascertain
whether a return should be made; and may require the
attendance of any person at a time and place fixed in a
summons served by any sheriff in the same manner as a
subpoena is served in a civil case, or served in like manner by an
agent of the department of revenue.
31 RCW 82.32.070(1).
-9-
No. 75050-0-1 /10
disclosed in its bank records. The State did not violate Chase's article 1, section
7 rights.
Because the Department did not intrude into Chase's private affairs with
its summons demanding records of Red Leaf's financial transactions, we need
not determine whether that administrative summons was sufficient authority of
law under article 1, section 7.
II. Standing
Chase also claims that he has standing to challenge any search of Red
Leaf's bank records. Generally, a person must have a legitimate expectation of
privacy in the area searched or the property seized to have standing to challenge
a search.32 Because Chase does not have a privacy interest in Red Leaf's
financial information and asserts no exception to the general standing rule, he did
not have standing to challenge the Department's ability to obtain Red Leaf's
financial information or the Department's authority to issue the particular
summons at issue.
CONCLUSION
Red Leaf's financial transactions contained in bank records. are not
Chase's "private affairs." Thus, the Department did not violate Chase's rights
under article I, section 7 when it obtained Red Leaf's financial information
32 State v. White, 40 Wn. App. 490,494,699 P.2d 239 (1985).
-10-
No. 75050-0-1/ 11
through issuance of an administrative summons. And Chase does not have
standing to contest the search. We affirm.
/4w-eir71/
WE CONCUR:
-11-
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225 P.3d 794 (2009)
2009-NMCERT-011
THOMAS
v.
JANECKA.
No. 32,062 (12-501).
Supreme Court of New Mexico.
November 23, 2009.
Denial of Certiorari.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4695
RICHARDO TYREE MELVIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
Malcolm J. Howard, District Judge.
(CR-99-3-H)
Submitted: September 11, 2002
Decided: October 10, 2002
Before LUTTIG and MICHAEL, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Dean R. Davis, Wilmington, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, J. Frank Bradsher, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. MELVIN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Richardo Tyree Melvin appeals his conviction and sentence for
conspiracy to distribute and possess with intent to distribute cocaine
base in violation of 21 U.S.C. § 846 (2000). Finding no reversible
error, we affirm.
I.
On appeal, Melvin contends that the district court abused its discre-
tion in denying his request for substitution of counsel and requiring
him to proceed pro se. In evaluating whether the trial court abused its
discretion in denying his request, we consider: (1) the timeliness of
the motion; (2) the adequacy of the court’s inquiry into Melvin’s
complaint; and (3) "whether the attorney/client conflict was so great
that it had resulted in total lack of communication preventing an ade-
quate defense." United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988). After thoroughly considering these factors, we conclude that
all three factors weigh against Melvin and find that the court did not
abuse its discretion in denying his request for substitution of counsel.
Further, we find that the district court did not commit reversible
error by requiring Melvin to proceed pro se. A waiver of the Sixth
Amendment right to counsel must be voluntary, knowing, and intelli-
gent. United States v. Singleton, 107 F.3d 1091, 1095 (4th Cir. 1997).
We have held that "once the trial court has appropriately determined
that a substitution of counsel is not warranted, the court can insist that
the defendant choose between continuing representation by his exist-
ing counsel and appearing pro se." Gallop, 838 F.2d at 109. "A
refusal without good cause to proceed with able appointed counsel is
a ‘voluntary’ waiver." Id.
We find that Melvin’s waiver of counsel was clearly voluntary
given his refusal to proceed with appointed counsel. Further, we
UNITED STATES v. MELVIN 3
decline to reach the issue of whether the district court conducted an
adequate inquiry as to whether Melvin’s waiver was knowingly and
intelligently made. Even assuming that the district court failed to con-
duct an adequate inquiry, no reversible error occurred because the dis-
trict court required appointed counsel to remain as backup counsel.
Counsel continued to take an active role at the hearing, clarifying
Melvin’s objection to the court’s drug quantity calculation and
addressing the court on behalf of Melvin regarding the appropriate
sentence to be imposed within the guideline range. Accordingly, any
resulting error in requiring Melvin to proceed pro se was harmless
because Melvin in fact received adequate assistance of counsel. See
Fed. R. Crim. P. 52(a); Gallop, 838 F.2d at 111.
II.
We next consider whether Melvin’s sentence is invalid under the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466
(2000), which was decided while this case was pending on appeal.
Melvin did not raise this issue before the district court or in his formal
brief on appeal. Although we have suggested that the court has the
power to correct an error sua sponte if it amounts to plain error under
Fed. R. Crim. P. 52(b), see United States v. Childress, 26 F.3d 498,
502 (4th Cir. 1994), a more exacting standard arguably should apply
in light of our general refusal to consider issues not raised and prop-
erly argued in the appellant’s opening brief. See, e.g., McCarver v.
Lee, 221 F.3d 583, 588 n.1 (4th Cir. 2000) (declining to consider
issues mentioned but not argued in briefs), cert. denied, 531 U.S.
1089 (2001); Lewis v. INS, 194 F.3d 539, 547 n.9 (4th Cir. 1999)
(declining to consider issue first raised in reply brief). We need not
decide that question, however, because we conclude that even the
ordinary plain error standard would bar relief here.
The indictment to which Melvin pled guilty did not specify a par-
ticular threshold drug quantity. Further, drug quantity was not stipu-
lated in the plea agreement and was determined by the district court
at sentencing. Because Melvin received a sentence of 264 months,
two years above the twenty-year statutory maximum for a violation
of 21 U.S.C. § 841 (2000) where there is no jury finding of a specific
threshold drug amount, it is clear that an error occurred in sentencing
Melvin and that the error was plain. United States v. Promise, 255
4 UNITED STATES v. MELVIN
F.3d 150, 156-60 (4th Cir. 2001) (en banc), cert. denied, 122 S. Ct.
2296 (2002).
We find, however, that any resulting error did not "‘seriously
affect[] the fairness, integrity or public reputation of judicial proceed-
ings,’" United States v. Olano, 507 U.S. 725, 736 (1993) (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)), based on the
overwhelming and essentially uncontroverted evidence presented at
sentencing indicating that Melvin was responsible for far more than
the five grams necessary to sentence him under § 841(b)(1)(B), which
authorizes a forty-year maximum term of imprisonment. See United
States v. Cotton, 122 S. Ct. 1781, 1786 (2002).
We also note that in light of the indictment’s failure to allege drug
quantity, the district court, without having the benefit of the Supreme
Court’s decision in Apprendi, incorrectly informed Melvin that he
faced a possible sentence of a minimum of not less than ten years and
a maximum of life imprisonment. Under § 841(b)(1)(C), there is no
mandatory minimum, and the maximum possible sentence is twenty
years. Thus, in retrospect, the court violated Fed. R. Crim. P. 11(c)(1).
See United States v. Martinez, 277 F.3d 517, 530 (4th Cir. 2002), peti-
tion for cert. filed, (Apr. 10, 2002) (No. 02-5170). We find that Mel-
vin cannot establish plain error in this regard, however, because he
cannot show that he would not have entered into his plea agreement
absent this error. The indictment alleged three separate crimes against
Melvin, and two of those crimes were dismissed at his sentencing pur-
suant to the terms of his plea agreement. "Thus, even if [Melvin] had
been correctly advised of the permissible penalty on the conspiracy
charge, there is no reason to believe that he would have sought to
withdraw from the plea agreement." Martinez, 277 F.3d at 533;
accord United States v. Cannady, 283 F.3d 641, 648-49 (4th Cir.),
petition for cert. filed, (July 22, 2002) (No. 02-5856).
III.
Accordingly, we affirm Melvin’s conviction and sentence. We dis-
pense 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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279 S.W.3d 75 (2008)
Sarah FLYNN, Appellant,
v.
BOARD OF CERTIFIED COURT REPORTER EXAMINERS, Appellee.
No. 07-888.
Supreme Court of Arkansas.
March 6, 2008.
*76 Dover Dixon Horne PLLC, by: Thomas S. Stone and Nona M. Robinson, Little Rock, AR, for appellant.
Dustin McDaniel, Att'y Gen., by: Erika Gee, Ass't Att'y Gen., for appellee.
JIM HANNAH, Chief Justice.
Sarah Flynn appeals an order of the Board of Certified Court Reporter Examiners suspending her court reporter's certification for one year commencing May 23, 2007. Flynn alleges that she was denied due process when the notice of complaint and hearing resulting in her suspension failed to list the charges against her and the possible action the Board might take. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(8). On the appeal of a decision of the Board of Certified Court Reporter Examiners, we conduct a de novo review of the record and do not reverse unless the Board was clearly erroneous. See Brooks v. Bd. of Certified Court Reporter Exam'rs, 360 Ark. 296, 200 S.W.3d 900 (2005).
Flynn has a court reporting service. On April 7, 2007, court reporter Amber Prichard submitted a complaint to the Board regarding Flynn. She attached three affidavits: her own, Amanda Poe's, and Rena' Allmond's. All three court reporters made similar allegations in their affidavits: that Flynn began to complete all deposition transcripts herself; that she required court reporters to provide her with a constant supply of blank but signed deposition certification pages; that although they were the court reporters at the depositions, they never signed any deposition transcript after it was bound; and that Flynn made changes to the deposition transcripts.
On April 12, 2007, the Board sent a letter to Flynn under the Executive Secretary's signature that stated, "Enclosed is a copy of the complaint which has been filed against you by Ms. Amber Prichard." The letter informed Flynn that she could file a response and that the Board would "hold a hearing in this matter on May 12, 2007."
Flynn filed an answer and also filed a motion to dismiss alleging that, among other *77 things, the notice was defective. At the hearing, Flynn restated her objections to the notice, noting that the Board's rules, Section 19, require that the notice state the issues to be decided as well as possible action to be taken by the Board. The Board rejected the argument, and the hearing proceeded.
Section 19(d) provides in pertinent part as follows:
The notice shall state the cause for the contemplated revocation or suspension and the time and place of the hearing before the Board, and shall be mailed to the registered address of the holder of the certificate at least thirty days prior to the hearing. The Board shall make written findings of fact based on the evidence presented.
The Board argues that when taken as a whole, the correspondence, as well as the affidavits and notice of witnesses' testimony, constituted substantial compliance with Section 19(d).[1]
However, this court has held that a governmental entity must strictly comply with its own rules and regulations. Where a governmental entity sets its own rules, that entity must strictly adhere to those rules. In Smith v. Denton, 320 Ark. 253, 895 S.W.2d 550 (1995), this court stated the following about compliance of a governmental entity with its own regulations:
In the present case, UCA failed to adhere to its own expressly enunciated standards for ensuring procedural due process. The procedures provided by the university were not structurally flawed; in terms of actual compliance, however, the letter and spirit of procedural due process were violated. To protect due process, the courts, in matters pertaining to a governmental entity's observance and implementation of self-prescribed procedures, must be particularly vigilant and must hold such entities to a strict adherence to both the letter and the spirit of their own rules and regulations.
Smith, 320 Ark. at 260, 895 S.W.2d at 555 (citing Powell v. Heckler, 789 F.2d 176 (3rd Cir.1986); Koolstra v. Sullivan, 744 F.Supp. 243 (D.Colo.1990)).[2] The court in Powell, supra, stated that, while deference is granted to an administrative agency's findings of fact, an agency must strictly adhere to both the letter and the spirit of its own rules and regulations. The United States Court of Appeals for the Second *78 Circuit more recently reaffirmed this in Singh v. United States Department of Justice, 461 F.3d 290 (2d Cir.2006), where the court held that strict adherence to a governmental agency's own regulations is required even without proof of prejudice to the objecting party.
Section 19(d) states that "[t]he notice shall state the cause for the contemplated revocation or suspension[.]" "Shall" is mandatory in this context. See Watson v. Connors, 372 Ark. 56, 270 S.W.3d 826 (2008). The notice in this case did not meet the requirements set by the Board in its rules, and the Board was clearly erroneous when it failed to grant Flynn's motion to dismiss the complaint on that basis. The decision of the Board suspending Flynn is reversed and remanded. A notice complying with Section 19(d) must issue, and the Board must hold a new hearing to consider the complaints against Flynn.
Reversed and remanded.
NOTES
[1] The Attorney General argues that there was substantial compliance, citing Fullerton v. Southside School District, 272 Ark. 288, 613 S.W.2d 827 (1981). In that case, the statute provided that a teacher's contract will be renewed unless the teacher "is notified by the school district that the superintendent is recommending that the teacher's contract not be renewed." Fullerton, 272 Ark. at 290, 613 S.W.2d 827. In that case, there was no such recommendation, but rather, the Board, after a couple of hearings, decided not to renew Fullerton's contract. Fullerton alleged that the failure of the superintendent to recommend his dismissal was fatal. The court found that the Board was vested with sole power to terminate teachers and that there was substantial compliance with the statute. A statute was at issue in Fullerton, and that case is not on point. Likewise the foreign jurisdiction cases cited by the Board concern law that is different from the law that has been developed in Arkansas on compliance with rules and regulations that are promulgated by governmental entities.
[2] See also Richie v. Board of Education, 326 Ark. 587, 592-93, 933 S.W.2d 375, 379 (1996), where regulations promulgated by a school board were at issue. This court stated the following about those regulations:
To protect due process, the courts, in matters pertaining to a governmental entity's observance and implementation of self-prescribed procedures, must be particularly vigilant and must hold such entities to a strict adherence to both the letter and the spirit of their own rules and regulations.
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[Cite as State v. Carr, 2013-Ohio-605.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
VINTON COUNTY
STATE OF OHIO, : Case No. 12CA686
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
DAVID L. CARR, :
: RELEASED 02/06/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Francisco E. Luttecke, Ohio State
Assistant Public Defender, Columbus, Ohio, for appellant.
Austin B. Campbell, Vinton County Prosecutor, McArthur, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} David Carr appeals his conviction for failure to provide notice of a change
of residential address in violation of a sex offender registration statute. He argues
because he did not have a duty to register as a sex offender, the trial court erred by
denying his motion to dismiss the indictment. We agree. Because Carr committed his
underlying offense prior to the Adam Walsh Act’s effective date, the act’s requirements
do not apply to him. Consequently, he could not be prosecuted under the Adam Walsh
Act. And because he was never classified under the act’s predecessor, Megan’s Law,
he could not be prosecuted under that law either. Therefore, the trial court erred by
denying his motion to dismiss the indictment.
I. FACTS
{¶2} Although the record is not entirely clear, in either 1983 or 1984, David Carr
was convicted of first-degree sexual assault, along with other offenses in West Virginia.
Vinton App. No. 12CA686 2
After serving his sentence, Carr was released from prison in July or August 2008.
Thereafter, Carr moved to Ohio and was classified as a Tier III sex offender under 2007
Am.Sub.S.B. No. 10 (S.B. 10), Ohio's version of the Adam Walsh Act.
{¶3} On April 7, 2010, a Vinton County grand jury indicted Carr with one count
of failure to notify of an address change, in violation of R.C. 2950.05, a first-degree
felony. The indictment alleged that Carr was a sexually oriented offender, having been
convicted in West Virginia of sexual assault; therefore, he was required to register as a
sex offender under R.C. 2950.04 and failed to notify the Vinton County Sheriff at least
20 days prior to changing his residential address. Carr filed a pro se motion to dismiss
the indictment claiming that he did not have a duty to register as a sex offender under
R.C. 2950.04. After the trial court denied the motion, Carr pleaded no contest to failure
to notify of an address change, in violation of R.C. 2950.05(F)(2), a third-degree felony.
The trial court found him guilty, and sentenced Carr to two years imprisonment. Carr
now appeals his conviction.
II. ASSIGNMENTS OF ERROR
{¶4} Carr raises two assignments of error for our review:
{¶5} 1. “THE TRIAL COURT ERRED AND VIOLATED MR. CARR’S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN IT FOUND THAT MR. CARR HAD A
DUTY TO REGISTER AS A SEX OFFENDER IN OHIO AND DENIED HIS MOTION TO
DISMISS HIS INDICTMENT.”
{¶6} 2. “THE TRIAL COURT ERRED AND VIOLATED MR. CARR’S RIGHTS
TO DUE PROCESS AND A FAIR TRIAL WHEN IT FOUND THAT MR. CARR HAD A
DUTY TO REGISTER AS A SEX OFFENDER IN WEST VIRGINIA AND DENIED HIS
MOTION TO DISMISS HIS INDICTMENT.”
III. LAW AND ANALYSIS
Vinton App. No. 12CA686 3
{¶7} On appeal, Carr argues that the trial court erred by denying his motion to
dismiss the indictment filed against him. He claims that he did not have a duty to
register as a sex offender in either Ohio or West Virginia. Because the issues are
related we address his assignments of error together. See Keffer v. Cent. Mut. Ins. Co.,
4th Dist. No. 06CA652, 2007-Ohio-3984, ¶ 8, fn. 2.
{¶8} Crim.R. 12(C) empowers trial courts to rule on “any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the
general issue.” Accordingly, “[u]nder Crim.R. 12(C)(2), trial courts may judge before
trial whether an indictment is defective. Without a doubt, an indictment is defective if it
alleges violations of R.C. Chapter 2950 by a person who is not subject to that chapter.”
State v. Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406, ¶ 23. Therefore,
when an indictment depends on the unconstitutional application of law, dismissal is
appropriate. Id.
{¶9} Since the time of Carr’s sexual assault conviction, “Ohio's sex-offender
laws have changed dramatically.” Palmer at ¶ 6, citing State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 3-28 (detailing the General Assembly's efforts
to strengthen Ohio’s sex-offender laws). Ohio first enacted comprehensive sex-offender
regulations in 1996, as Megan's Law. Palmer at ¶ 6. “The regulations did not apply to
offenders who * * * completed their sex-offense prison sentences before July 1, 1997.”
Id., citing former R.C. 2950.04(A). However in 2007, S.B. 10, enacted as the Adam
Walsh Act (AWA) and codified in chapter 2950 of the revised code, replaced Megan’s
Law. Palmer at ¶ 7. And unlike Megan’s Law, the AWA sweepingly applies to sex
offenders regardless of when their offenses occurred. Id.
Vinton App. No. 12CA686 4
{¶10} Carr claims that he does not have a duty to register in Ohio or West
Virginia. He argues that because he committed his underlying offense before the
AWA’s enactment, the act does not apply to him and for various other reasons he did
not have a duty to register under Megan’s Law. The state however argues that Carr’s
duty to register in Ohio stems from R.C. 2950.04(A)(4), which requires individuals
convicted in another state to register in Ohio, regardless of when the sexual offense
was committed, if, at the time the offender moves here he has a duty to register as sex
offender under the law of the other jurisdiction. The state bases this argument on the
fact that in 2008, Carr signed a “Notification of Sex Offender Responsibility” and
acknowledged that he must register as a sex offender in West Virginia.
{¶11} The Supreme Court of Ohio recently found that S.B. 10 creates and
imposes new burdens, duties, obligations and liabilities on individuals who committed
sex offenses before its enactment. State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108, ¶ 20. This is so because prior to S.B. 10’s enactment R.C.
Chapter 2950 was remedial, but due to S.B. 10’s “significant changes to the statutory
scheme” the Court found the law is now undoubtedly punitive. Id. at ¶ 16, 20. Thus,
“[t]he prohibition on retroactivity of the Ohio Constitution, Article II, Section 28, forbids
the application of the Adam Walsh Act to any offense committed before the law’s
enactment.” (Emphasis added.) Palmer, 131 Ohio St.3d 278, 2012-Ohio-580, 964
N.E.2d 406, at ¶ 25, citing Williams at ¶ 21. And because there is no question that Carr
committed his sexual offense before the AWA’s enactment in 2007, its requirements do
not apply to him. See Palmer at ¶ 25. See also In re Bruce S., Slip Opinion, No. 2012-
Ohio-5696, ¶ 12 (concluding the notification requirements of the AWA cannot be applied
Vinton App. No. 12CA686 5
to persons who committed their underlying crimes prior to the effective date of the AWA,
i.e. January 1, 2008).
{¶12} We recently considered another appeal filed by Carr, in which he raised
similar issues. See State v. Carr, 4th Dist No. 11CA3256, 2012-Ohio-5425. In that
appeal although Carr also claimed that he did not have a duty to register as a sex
offender in Ohio, he based the argument on his Tier III sex offender classification. He
contended that his classification violated Ohio’s Retroactivity Clause because under
Ohio law at the time of his West Virginia conviction, he had no duty to register. Id. at ¶
9. We held that because Carr committed his sex offense prior to S.B. 10’s enactment,
his Tier III sex offender classification was unconstitutional. Id. at ¶ 10. Because Carr’s
prosecution for failure to notify the sheriff’s office of his new address in that case was
based on his unconstitutional S.B. 10 classification, we found that he was improperly
prosecuted as a Tier III offender and reversed his conviction. Id. at ¶ 15. However, we
also noted that although Carr did not raise the issue, “application of S.B. 10’s version of
R.C. 2950.04(A)(4) to him apparently would likewise violate Ohio’s Retroactivity Clause
under the broad language of the Williams syllabus.” Id. at ¶ 11, fn. 1.
{¶13} Even though the state argues that Carr’s prosecution was based on his
duty to register under R.C. 2950.04(A)(4) in West Virginia, because the Supreme Court
of Ohio has broadly stated that it is unconstitutional to apply the AWA to any defendant
who committed his offense prior to the act’s effective date, Carr cannot be prosecuted
under that section of the law. See Williams, supra and In re Bruce S., supra.
{¶14} Since our decision in Carr, the Supreme Court of Ohio has also released
its opinion in State v. Brunning, Slip Opinion, No. 2012-Ohio-5752, addressing whether
Vinton App. No. 12CA686 6
a defendant can be convicted of a failure to provide notice of a change of address under
Megan’s Law when he was indicted for a notice violation under the AWA. In Brunning,
the defendant was originally classified under Megan’s Law as a sexually oriented
offender, and then reclassified in 2008 as a Tier III sex offender under the AWA. Id. at ¶
3. The Court explained that although the AWA’s notification requirements did not apply
to the defendant because his Tier III sex offender reclassification was unconstitutional,
his original classification under Megan’s Law as a sexually oriented offender was still
effective. Id. at ¶ 14-15. Accordingly, the Court held that “offenders originally classified
under Megan’s Law have a continuing duty to abide by the requirements of Megan’s
Law.” Id. at ¶ 31. And furthermore, a defendant’s conviction for violating the AWA need
not be vacated, “when the offender, originally classified under Megan’s Law, was
indicted for a violation of the AWA that also constitutes a violation under Megan’s Law.”
Id.
{¶15} Although both parties raise the issue of whether Carr’s conviction is proper
on the ground that he would have been required to notify the sheriff of a change of
address under Megan's Law, nothing in the record shows that Carr has ever been
classified under Megan's Law. And in fact, because he was not released from prison in
West Virgina until July/August 2008, and the AWA became effective January 1, 2008, it
appears doubtful that Megan’s law was ever applied to him. Thus, the registration and
reporting requirements under that law do not currently apply to him and he cannot
therefore be convicted of failing to comply with its requirements. See Brunning at ¶ 31;
Carr, 4th Dist No. 11CA3256, 2012-Ohio-5425, at ¶ 13.
IV. CONCLUSION
Vinton App. No. 12CA686 7
{¶16} Because Carr committed his underlying offense before the effective date
of the Adam Walsh Act and was never been classified under Megan’s Law, his
prosecution for failure to notify of an address change violates Ohio’s Retroactivity
Clause and the trial court erred by not dismissing the indictment against him. We
reverse the trial court’s judgment and remand this case for an order consistent with our
decision. Furthermore, our resolution of his first assignment of error makes his second
assignment of error moot and we need not address it. See App.R. 12(A)(1)(c).
JUDGEMENT REVERSED AND
CAUSE REMANDED.
Kline, J., dissenting.
{¶17} I respectfully dissent. Carr was convicted of 1st Degree Sexual Assault in
West Virginia. And because Carr had a duty to register as a sex offender under the law
of West Virginia, he also had a duty to register in Ohio under Megan’s Law. See Doe v.
Vinton App. No. 12CA686 8
Leis, 1st Dist. No. C-050591, 2006-Ohio-4507, ¶ 5, citing the former R.C.
2950.04(A)(3)(a). Therefore, I would affirm Carr’s conviction based on a violation of
Megan’s Law. See State v. Brunning, --- Ohio St.3d ----, 2012-Ohio-5752, --- N.E.2d ----
, ¶ 23-27 (The defendant’s “conviction was predicated on a requirement that has never
been declared unconstitutional and that [the defendant] has never been released from
obeying: the requirement of notifying the sheriff of a change of address under the
Megan’s Law version of R.C. 2950.05.”).
{¶18} Accordingly, I respectfully dissent.
Vinton App. No. 12CA686 9
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS
REMANDED. Appellee shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Vinton
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.
McFarland, P.J.: Concurs in Judgment and Opinion.
Kline, J.: Dissents with Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
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109 Ariz. 569 (1973)
514 P.2d 490
STATE of Arizona, Appellee,
v.
Robin Jo McCLINE, Appellant.
No. 2354.
Supreme Court of Arizona, In Banc.
September 26, 1973.
Gary K. Nelson, Atty. Gen. by Thomas A. Jacobs, Asst. Atty. Gen., Phoenix, for appellee.
Thomas W. Foster, Phoenix, for appellant.
HOLOHAN, Justice.
After a trial by jury, appellant was convicted of assault with intent to commit murder. She was sentenced to confinement for a term of not less than 20 nor more than 30 years. Although the time for appeal had expired this Court allowed a delayed appeal to be taken because appellant had not been advised of her right to appeal by either the trial court or counsel.
Two arguable questions of law are presented through an Anders brief (Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 [1967]): (1) Did the fact that appointed counsel unsuccessfully attempted to withdraw from the case prejudice the defendant by denying her the effective assistance of counsel? (2) Was the sentence of 20 to 30 years excessive for the conviction of assault with intent to commit murder?
Appellant was arrested after several witnesses, including a police officer, saw her shoot a fellow bar patron five times. She was charged with assault with intent to commit murder. The trial court appointed counsel to defend her.
Shortly after his appointment counsel for appellant filed a motion for mental examination under Rule 250, Rules of Criminal Procedure 17 A.R.S. This motion was denied. Thereafter counsel, at his own expense, employed a physician to examine the appellant.
Whether appellant objected to counsel's attempt to develop a defense based on her mental condition is not clear from the record, but counsel did ask the trial court for permission to withdraw from the case because the appellant had refused to cooperate and because she did not want the counsel appointed by the court. The trial court denied the motion and directed the appellant to cooperate with her court-appointed attorney.
Counsel for appellant was subsequently successful in getting the trial court to appoint physicians to examine appellant's mental condition; and counsel was able to persuade the trial court to commit the appellant *570 to the state hospital for observation.
The results of the hospital examinations were that the appellant was competent to stand trial, assist her attorney, and she could distinguish right from wrong. The report also indicates that the appellant had overcome her first disappointment with her court-appointed counsel, and she expressed the belief that he was beginning to do a good job for her.
After the results of the medical examination the trial court set the matter for trial. The evidence presented by the state at the trial was, to say the least, overwhelming. Many witnesses saw the shooting including a police officer. The victim had been shot fives times with three of the points of entry being in his back and two being on the right arm. Fortunately the victim lived.
We are asked to examine the representation of the appellant by court-appointed counsel to determine whether that representation fell below the standards required by law, whether the representation was a farce, a sham or shocking to the conscience. State v. Brookshire, 107 Ariz. 21, 480 P.2d 985 (1971); State v. Rackley, 106 Ariz. 424, 477 P.2d 255 (1970); State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966). Our review of the case discloses that counsel did the best he could with a hopeless situation and the facts afforded no meritorious defense. A lawyer, employed or appointed, is under an obligation to defend the accused with all his skill and energy. His obligation is to achieve a fair trial. Mere failure to achieve an acquittal is no part of a court's consideration of the work of a trial lawyer. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787 (1958). Counsel in this case satisfied his obligation to appellant, and we conclude that appellant was not denied the effective assistance of counsel.
Counsel for appellant asks that we review the sentence in this case to determine whether it is excessive. A conviction under A.R.S. § 13-248 is punishable by imprisonment for not less than five years nor more than life. The sentence imposed of 20 to 30 years is within the limits of the statute, and it does not present a clear abuse of discretion which would require that it be reduced. State v. Smith, 107 Ariz. 218, 484 P.2d 1049 (1971); State v. Carpenter, 105 Ariz. 504, 467 P.2d 749 (1970); State v. Brown, 107 Ariz. 375, 489 P.2d 12 (1971); State v. Voeckell, 69 Ariz. 145, 210 P.2d 972 (1949). It must be noted that in addition to the circumstances presented in the instant case, the trial judge no doubt considered the fact that appellant had been convicted of felonies on three previous occasions, the last conviction being for murder in the second degree.
The judgment and sentence of the superior court in this case is affirmed.
HAYS, C.J., CAMERON, V.C.J., and STRUCKMEYER and LOCKWOOD, JJ., concur.
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People v Gonzales (2019 NY Slip Op 03148)
People v Gonzales
2019 NY Slip Op 03148
Decided on April 25, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on April 25, 2019
Sweeny, J.P., Manzanet-Daniels, Tom, Kapnick, Moulton, JJ.
9101 774/15
[*1]The People of the State of New York, Respondent,
v Christopher Gonzales, Defendant-Appellant.
Larry Sheehan, Bronx, for appellant.
Darcel D. Clark, District Attorney, Bronx (Lori Ann Farrington of counsel), for respondent.
Judgment, Supreme Court, Bronx County (Ethan Greenberg, J. at suppression hearing; Miriam R. Best, J. at jury trial and sentencing), rendered October 6, 2017, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him to a term of 3½ years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v Prochilo, 41 NY2d 759, 761 [1977]). The hearing evidence established a lawful traffic stop.
The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). There is no basis for disturbing the jury's credibility determinations. The evidence amply supported the conclusion that defendant possessed a loaded pistol that was in his car.
The court properly denied defendant's request for a missing witness charge (see generally People v Gonzalez, 68 NY2d 424, 427 [1986]). The uncalled police witness would not have been able to provide any material testimony. At most, the officer could have testified about a matter relating to the chain of custody for the pistol, which was never at issue at the trial.
The court providently exercised its discretion when it denied defendant's mistrial application based on the jury's stated inability to reach a verdict, and instead delivered an Allen charge. To the extent defendant is challenging the content of the charge, that claim is unpreserved and we decline to review it in the interest of justice. As an alternative holding, we find it to be without merit.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 25, 2019
CLERK
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782 F.2d 1028
Frupac Intern. Corp.v.Lesco Distribution Intern. Co.
85-1340
United States Court of Appeals,Third Circuit.
12/31/85
1
E.D.Pa.
REVERSED AND REMANDED
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726 So.2d 817 (1999)
Joseph Michael ROBBIE, Appellant,
v.
Dwyn Daniels ROBBIE, Appellee.
Nos. 97-3430 and 97-3582
District Court of Appeal of Florida, Fourth District.
February 3, 1999.
*819 Alice E. Warwick of Alice E. Warwick, P.A., Coral Gables, and Linda Ann Wells, Miami, for appellant.
A. Matthew Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellee.
PER CURIAM.
This appeal arises from dissolution proceedings between the parties, which have already generated numerous appeals in this court. After this court's partial reversal of the underlying divorce judgment, see Robbie v. Robbie, 654 So.2d 616 (Fla. 4th DCA 1995)("Robbie I"), the case was remanded to the trial court for valuation and equitable distribution of the appreciation of one of the husband's non-marital assets, the Miami Sports Corporation. On remand to the trial court, the wife made certain discovery requests, and the trial court directed the husband to furnish the requested information. The trial court further awarded the wife temporary alimony for the first time on remand and ordered the husband to pay the same. The issues presented in this appeal concern the husband's subsequent decision to disobey the trial court's discovery orders and orders concerning the temporary alimony award, which resulted in the trial court's order holding the husband in contempt for his noncompliance.[1] Finding no error requiring reversal of the proceedings in the trial court, we affirm.
With regard to the husband's disobedience of the court's discovery orders, the husband contends that his conduct was justified because the court did not have jurisdiction to force compliance with the orders, which the husband urges were beyond the scope of this court's Robbie I remand instruction. We cannot agree with the husband that he was free to disregard the court's orders and not run the risk of contempt sanctions simply because he viewed the discovery requests as beyond the scope of the remand instruction in Robbie I. So long as the court's orders were entered with subject matter jurisdiction, the husband would still be required to obey those orders, even if erroneous. See Kaylor v. Kaylor, 466 So.2d 1253, 1254 (Fla. 2d DCA 1985); In re S.L.T., 180 So.2d 374, 377 (Fla. 2d DCA 1965).
While the husband argues that the trial court lacked jurisdiction to enter orders compelling discovery, he fails to recognize that even if the trial court and the wife's attorney misconstrued the extent of our instructions, our remand instructions would not foreclose all discovery, such as discovery necessary to establish the value of the Miami Sports Corporation. Therefore, the trial court had jurisdiction to order the discovery, even if the discovery requests were overbroad as the husband contends. The reason that a party may properly be held in contempt for failure to abide by an erroneous order is that the need for obedience to a court order outweighs the individual's temporary detriment. See Rubin v. State, 490 So.2d 1001, 1003 (Fla. 3d DCA 1986). The trial court did not abuse its discretion by sanctioning the husband for his contemptuous conduct in refusing to obey the orders of the trial court requiring answers to interrogatories and requests to produce.
The husband also challenges, on jurisdictional grounds, the order of contempt with respect to the non-payment of temporary alimony awarded after remand of the case from this court. He contends that the trial court did not have jurisdiction on remand to *820 order it. We conclude that, although the trial court may have entered an erroneous ruling awarding temporary alimony, as with the discovery order, it had jurisdiction, and the husband was not free to ignore the court's order.
In the instant case, the final judgment awarded the wife lump sum alimony payable in annual installments and "bridge-the-gap" alimony for a little over a year. Significantly for purposes of this appeal, the trial court specifically rejected the wife's claim for permanent periodic alimony. In Robbie I, the parties vigorously litigated on appeal the wife's entitlement to permanent periodic alimony and the amount of the "bridge-the-gap" alimony. This court affirmed all matters regarding the wife's support and reversed only the determination that the enhancement in the husband's interest in Miami Sports Corporation during the marriage was not a marital asset.
Our approval of the final judgment's provisions with respect to alimony, including the denial of permanent alimony, constituted the law of the case. See Mitzenmacher v. Mitzenmacher, 656 So.2d 178, 179-80 (Fla. 3d DCA 1995). On remand the trial court was bound by the affirmed determination that the wife had not proved that she was entitled to support alimony beyond the limited bridge-the-gap alimony awarded.[2] Thus, the wife's motion for temporary support, which merely alleged that she was in need of support and the husband had the ability to pay, would have required the trial court to make factual findings contrary to the determinations in the final judgment.
Despite the fact that the trial court's order on temporary alimony violated the doctrine of the law of the case, the court had jurisdiction over the proceeding. This is so because the law of the case doctrine is not a rule of jurisdiction; instead it is a "rule[] of convenience designed to prevent repetitious law suits over matters which have once been decided and which have remained substantially static." City of Miami v. Bell, 606 So.2d 1183, 1185 (Fla. 1st DCA 1992)(quoting Wagner v. Baron, 64 So.2d 267 (Fla.1953) (internal quotations omitted), quashed in part on other grounds, 634 So.2d 163 (Fla. 1994)). Because the trial court had jurisdiction over the remand proceedings, no matter how erroneous or unreasonable, the temporary alimony order of the trial court was required to be obeyed until reversed or vacated. See Kaylor, 466 So.2d at 1254. Although the order awarding temporary alimony could have been appealed under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii), the husband failed to appeal it. He was thus required to obey the order. That does not preclude, however, the husband from appealing the temporary order after proceedings are complete on the final judgment.[3]
We disagree with the wife's assertion, which she forwarded in the trial court in support of her broad discovery requests and which she urges in this court as a ground for affirming the temporary alimony award, that our instruction in Robbie I that "the court may review the other awards made in fashioning an appropriate result" opened up all issues relating to the dissolution action. With that direction, we did not authorize a new determination of factual issues already *821 settled in the case. Nor would the parties be able to inject new issues into the action on remand. Our direction was no more than our recognition, frequently made in dissolution proceedings, of the trial court's discretion on remand:
With respect to the authority of the trial court on remand, we adopt the following principle announced by our sister court in Eagan v. Eagan, 392 So.2d 988, 990 (Fla. 5th DCA 1981):
In Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980), our Supreme Court observed that in a dissolution cases [sic] apportioning assets and providing necessary support are difficult problems and that the various procedural remedies which the trial court can use to solve these problems are interrelated and, from the trial judge's viewpoint, are generally all part of one overall scheme. It follows, therefore, that when a trial judge is found to be in error as to some aspect of his disposition the cause should be remanded with sufficient authority that he may again exercise broad discretion to modify the related matters within his original plan for division and support as may be necessary in order to do equity and justice between the parties in view of the changes required by the appellate opinion.
Goss v. Goss, 400 So.2d 518, 519 (Fla. 4th DCA 1981)(emphasis supplied).
On remand, the trial court was to determine the value of the husband's interest in the Miami Sports Corporation and what share of that interest the wife may be entitled to under equitable distribution principles. However, because we affirmed all support awards in Robbie I, the trial court was not free to determine that the wife was now entitled to permanent or temporary alimony for support.[4] This is so because those types of alimony were not part of the trial court's "original plan for division and support." Goss, 400 So.2d at 519.
Aside from his jurisdictional arguments for reversal, the husband also urges that the trial court's entry of sanctions against him was error because there was a motion for recusal pending before the judge. After the hearing on the contempt motion, but before the entry of the written order, the husband filed a motion to recuse. The trial court did not enter an order denying it until after the order of contempt was entered. When a judge is presented with a motion for disqualification, he or she should immediately rule on the sufficiency of the motion prior to passing on any other matters pertaining to the same litigants. See Fuster-Escalona v. Wisotsky, 715 So.2d 1053, 1054 (Fla. 4th DCA 1998)(trial court erred in passing on motion to dismiss for failure to prosecute while motion for recusal was pending); Loevinger v. Northrup, 624 So.2d 374, 375-76 (Fla. 1st DCA 1993)(when faced with a recusal motion, judge should resolve recusal motion before making any other rulings in case). While the wife correctly notes the exception that a trial judge may memorialize a prior oral order subsequent to the filing of a motion for recusal, see Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986), we cannot agree with the wife that the trial court had already ruled on the motion for contempt prior to the filing of the husband's recusal motion. The transcript of the hearing on the contempt motion indicates that the wife's counsel had appeared at the hearing with a written proposed order, which the trial judge did not agree with in several material respects. We cannot say that the appealed order is a memorialization of the trial judge's statements at the hearing. Accordingly, it was error for the court to grant the wife's contempt motion before deciding the recusal issue.
Having determined that the tardy decision on the recusal motion was error, we must decide whether the error was harmless. We have reviewed the husband's motion for disqualification and find that it clearly fails to *822 demonstrate a well-founded fear that he would receive unfair treatment by the trial judge. See Gieseke v. Grossman, 418 So.2d 1055, 1057 (Fla. 4th DCA 1982). At most, the motion indicates that the husband was unhappy with a number of the trial judge's rulings and with the judge's handling of the post-dissolution contempt proceedings. It is well settled that mere dissatisfaction with adverse rulings does not constitute a legally sufficient ground for a disqualification motion. See Jackson v. State, 599 So.2d 103, 107 (Fla.), cert. denied, 506 U.S. 1004, 113 S.Ct. 612, 121 L.Ed.2d 546 (1992). Given the legal insufficiency of the motion for recusal, the error in delaying consideration of it was harmless.
We distinguish Petrullo v. Petrullo, 604 So.2d 536 (Fla. 4th DCA 1992), in which we held that a late decision on a motion to recuse was not harmless where the trial judge did, in fact, grant the recusal motion three weeks after granting a motion for custody change that had been filed prior to the motion for disqualification. In Petrullo, the trial court conducted a hearing on the recusal motion, reserved ruling thereon for three weeks, and eventually granted the motion. The case at bar is distinguishable because the trial court ultimately denied the husband's motion to recuse prior to granting the wife's motion for contempt. Moreover, there is no indication in the record on appeal that the trial court's subsequent sua sponte recusal, two months after ruling on the husband's motion, was related in any way to the husband's motion which had already been ruled upon.
Lastly, we find no merit to the husband's claim of error with regard to the trial court's factual findings concerning the husband's attorney. At the hearing on the contempt order, the trial court explicitly stated that it was staying the contempt proceedings as to the attorney. Since there is no order finding the attorney in contempt, the trial court's statements concerning the attorney's conduct are not reversible in this appeal.
This is a hotly contested proceeding. It has gone through one trial and numerous appeals, and it appears that the wife is attempting to relitigate many of the issues settled in the first proceeding. On the other hand, the husband has failed to comply with many of the trial court's orders. We remind the trial court that it has discretion to deny either party his or her attorneys' fees if the court finds that the party's actions are frivolous, spurious or undertaken primarily to harass the adverse party. See Rosen v. Rosen, 696 So.2d 697, 701 (Fla. 1997).
Affirmed.
GUNTHER and WARNER, JJ., concur.
STONE, C.J., concurs specially.
STONE, C.J., concurring specially.
I concur in the majority opinion but add that I do not necessarily agree that a trial judge has no authority to award temporary support during the pendency of a petition for modification. Although I recognize that this appears to be a rule recognized in Saulnier v. Saulnier, 425 So.2d 558 (Fla. 4th DCA 1982), in my judgment, such a temporary decision, albeit discouraged, is better addressed on a case by case basis. This issue, however, need not be resolved here, and I comment only to indicate that I am not satisfied with applying Saulnier as a per se rule.
NOTES
[1] We note that we improvidently permitted the instant appeal of a contempt order to proceed as a direct appeal. We now redesignate it as an appeal from a non-final order. See Langbert v. Langbert, 409 So.2d 1066, 1067 (Fla. 4th DCA 1981); see also Badger v. Badger, 568 So.2d 79, 79 (Fla. 4th DCA 1990).
[2] "Bridge-the-gap" alimony is intended to smooth the transition between a higher standard of marital living and the standard that a spouse can provide for herself, and is typically for a very short period of time, such as in the instant case of just over a year of monthly payments. Cf. Blase v. Blase, 704 So.2d 741, 742 (Fla. 4th DCA 1998) (discussing purpose of rehabilitative alimony). It is meant for situations where the court finds that permanent alimony is not appropriate, and where no rehabilitation is requested or needed, as in this case where the wife presented no rehabilitative plan at trial. Cf. Anderson v. Anderson, 617 So.2d 1109, 1111 (Fla. 1st DCA 1993)(rehabilitative alimony reversed where there was no evidence in the record of a rehabilitative plan).
[3] That a petition for modification was pending also did not give the court any authority to award temporary alimony. In Saulnier v. Saulnier, 425 So.2d 558, 559 (Fla. 4th DCA 1982), we held that a trial court had no authority to award temporary alimony prior to final hearing in a post-judgment proceeding, as occurred in the case at bar. Instead, if the wife ultimately prevails on her petition for modification, alimony can be awarded retroactive to the date the petition was filed. See id.
[4] We can envision a case where we might reverse the award to the wife of substantial assets in equitable distribution, which on remand may require a trial court to review its denial of permanent periodic alimony since it may have been predicated on the availability of investment income from the asset distribution. When this is a possibility, we have often specifically authorized the trial court to review the alimony award on remand. See, e.g., Watford v. Watford, 605 So.2d 1313, 1315 (Fla. 4th DCA 1992). This type of factual scenario is not present in this case.
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[Cite as State v. Ward, 2017-Ohio-4411.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 16AP-774
(C.P.C. No. 97CR-270)
v. :
(ACCELERATED CALENDAR)
Rex S. Ward, :
Defendant-Appellant. :
D E C I S I O N
Rendered on June 20, 2017
On brief: Ron O'Brien, Prosecuting Attorney, and
Kimberly M. Bond, for appellee.
On brief: Rex S. Ward, pro se.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, Rex S. Ward, from a judgment of
the Franklin County Court of Common Pleas denying his "motion to vacate a void
judgment entry and sentence."
{¶ 2} On January 17, 1997, appellant was indicted on two counts of kidnapping,
two counts of aggravated burglary, three counts of robbery, four counts of rape, three
counts of theft, four counts of receiving stolen property, one count of aggravated robbery,
and one count of felonious assault. On October 17, 1997, appellant entered a guilty plea to
all counts of the indictment. By entry filed February 11, 1998, the trial court sentenced
appellant to an aggregate term of 38 years incarceration.
No. 16AP-774 2
{¶ 3} On June 30, 2006, appellant filed a motion for leave to file a delayed appeal
from the trial court's 1998 judgment. By entry filed August 8, 2006, this court denied
appellant's motion (and subsequently denied his application for reconsideration).
{¶ 4} On December 22, 2014, appellant filed a pro se motion to withdraw his
guilty plea pursuant to Crim.R. 32.1. In the accompanying memorandum in support,
appellant argued the trial court improperly imposed post-release control and that the
court failed to notify him of his right to appeal and the mandatory nature of the sentences.
By decision and entry filed July 29, 2015, the trial court denied appellant's motion to
withdraw his plea.
{¶ 5} Following an appeal, this court affirmed the judgment of the trial court
holding that appellant filed his post-sentencing motion to withdraw his guilty plea after
an unreasonably long delay and that he failed to demonstrate prejudice and manifest
injustice based on the procedural defects alleged. See State v. Ward, 10th Dist. No. 15AP-
794, 2016-Ohio-216 ("Ward I"). Appellant subsequently filed a motion for leave to file an
application for reconsideration and consideration en banc. By memorandum decision
filed April 28, 2016, this court denied appellant's motion. State v. Ward, 10th Dist. No.
15AP-794 (Apr. 28, 2016) (memorandum decision) ("Ward II").
{¶ 6} On June 22, 2016, appellant filed a pro se motion to "vacate a void
judgment entry and sentence." In his accompanying memorandum in support, appellant
argued in part: "Because [the trial court] did not specify what sentences it was imposing
as mandatory, it can only be seen as the entire sentence of thirty eight (38) years was
ordered mandatory." On July 6, 2016, plaintiff-appellee, State of Ohio, filed a
memorandum contra appellant's motion to vacate arguing that, construed as a petition for
post-conviction relief, appellant's petition was untimely and barred by the doctrine of res
judicata.
{¶ 7} By decision and entry filed October 24, 2016, the trial court denied
appellant's motion to vacate, construing the motion as a petition for post-conviction relief
and finding it to be untimely. In its decision, the trial court further noted the Tenth
District Court of Appeals had "previously confirmed" there was no error in the sentencing
entry.
{¶ 8} On appeal, appellant sets forth the following assignment of error for this
court's review:
No. 16AP-774 3
THE TRIAL COURT ERRED IN RECASTING THE
DEFENDANT-APPELLANT'S MOTION TO VACATE A VOID
JUDGMENT AND SENTENCE AS A POSTCONVICTION
PETITION AND ERRED IN FAILING TO VACATE THE
VOID SENTENCE AND JUDGMENT VIOLATING THE
DEFENDANT-APELLANT'S DUE PROCESS AND EQ[U]AL
PROTECTION RIGHTS SECURED BY BOTH THE UNITED
STATES AND OHIO CONSTITUTIONS.
{¶ 9} Under his single assignment of error, appellant contends the trial court
erred by improperly recasting his motion to vacate as a petition for post-conviction relief
and in failing to vacate a "void" sentence and judgment. As to his latter argument,
appellant asserts the trial court's 1998 sentencing entry failed to reflect what actually
happened at the plea and sentencing hearings. Specifically, appellant contends the trial
court imposed a void sentence by imposing a blanket mandatory prison term, failing "to
specify as to which count of the convictions the mandatory prison term applies."
{¶ 10} We first consider appellant's contention that the trial court erred in
recasting his motion to vacate as a petition for post-conviction relief. In general, a post-
conviction relief proceeding "is a collateral civil attack on a judgment." State v. King, 8th
Dist. No. 103947, 2017-Ohio-181, ¶ 10. Ohio's post-relief conviction statute, R.C.
2953.21(A), "permits a person who has been convicted of a criminal offense and who
claims that there was a constitutional violation that rendered the judgment void or
voidable to file a petition asking the court to set aside the judgment or grant other
appropriate relief." Id. at ¶ 11. Further, a trial court may not entertain an untimely
petition for post-conviction relief unless a defendant "initially demonstrates either (1) he
was unavoidably prevented from discovering the facts necessary for the claim for relief, or
(2) the United States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner's situation." State v. Chavis, 10th Dist. No.
15AP-557, 2015-Ohio-5549, ¶ 9.
{¶ 11} In the instant case, in its decision denying appellant's motion to vacate, the
trial court held in part:
The Supreme Court of Ohio has held that "[w]here a criminal
defendant, subsequent to his or her direct appeal, files a
motion seeking vacation or correction of his or her sentence
on the basis that his or her constitutional rights have been
No. 16AP-774 4
violated, such a motion is a petition for post-conviction relief
as defined in R.C. 2953.21."
When no direct appeal is taken, a defendant must file any
petition for post-conviction relief within 365 days after the
expiration of the time to file a direct appeal. Defendant did
not file a timely appeal and the time to file an appeal expired
in early March, 1998, thirty days after the journalization of the
sentencing entry on February 11, 1998. Therefore, any post-
conviction petition would have been due in March of 1999.
Additionally, Defendant has not demonstrated that one of the
exceptions in R.C. 2953.23(A) applies as such, Defendant's
Motion is denied as untimely.
Additionally, even if Defendant's Motion was timely filed, the
sentencing Court informed Defendant that a prison term was
mandatory pursuant to R.C. 2929.13(F), which required a
mandatory sentence for rape. The sentencing Court then
imposed determinate sentences for each offense, consistent
with Senate Bill 2. In this Court's Decision of July 29, 2015 on
Defendant's Motion to Withdraw his Guilty Plea, this Court
inadvertently interchanged the sentencing Court's use of the
word "determinate" with "mandatory." However, this had no
effect on this Court's analysis or Decision and is not pertinent
to Defendant's current Motion, as there was no mistake in the
original sentencing entry, which was previously confirmed by
the 10th District Court of Appeals.
(Citation omitted.)(Oct. 26, 2016 Decision & Entry at 2-3.)
{¶ 12} Underlying appellant's contention that the trial court erred in treating his
motion as a petition for post-conviction relief is the premise that his 1998 sentence is
void. In his pro se brief, appellant asserts the trial court failed to impose a mandatory
prison term until it filed its judgment entry "nearly one month after the sentencing
hearing," and he maintains that the trial court's action constituted a violation of his due
process and equal protection rights.
{¶ 13} In State v. Muhumed, 10th Dist. No. 11AP-1001, 2012-Ohio-6155, ¶ 6, the
defendant filed a motion to vacate and correct void sentence, arguing in part that "the trial
court failed to inform him of the mandatory nature of his sentences." This court
construed the defendant's motion to vacate as a petition for post-conviction relief where
such motion was brought after the time to file a direct appeal had expired and after the
defendant's request for leave to file a delayed appeal was denied. Id. at ¶ 52, citing State
No. 16AP-774 5
v. Cataraso, 4th Dist. No. 01CA2636, 2002-Ohio-3211, ¶ 14 (because the defendant "filed
his motion subsequent to the time allowed for a direct appeal, claimed a denial of his
constitutional right to be sentenced in accordance with the law, and has asked this court
to void or vacate his sentence, we find that his motion constitutes a motion for post-
conviction relief").
{¶ 14} Other Ohio courts have construed motions to vacate a void sentence on
grounds that the court failed to properly inform a defendant of the mandatory nature of
the sentence as petitions for post-conviction relief. See State v. Vancleve, 12th Dist. No.
CA2016-06-039, 2016-Ohio-7546, ¶ 20 (treating appellant's motion to vacate void
sentence, in which he asserted that sentencing entry did not specify his rape sentences
were mandatory, as petition for post-conviction relief); State v. Gopp, 9th Dist. No.
15AP0046, 2016-Ohio-5088, ¶ 6 (agreeing with state's contention that appellant's motion
to vacate void sentence for failure to inform him that his prison terms were mandatory
constituted an untimely petition for post-conviction relief).
{¶ 15} Upon review of the record in this case, we find no error by the trial court in
construing appellant's motion as a petition for post-conviction relief and in finding it to be
untimely. However, even if the motion was timely, appellant's claims are barred by the
doctrine of res judicata. Under this doctrine, an individual is barred from "raising a
defense or claiming a lack of due process that was or could have been raised at trial or on
direct appeal." State v. Hohvart, 7th Dist. No. 07 MA 95, 2008-Ohio-5047, ¶ 14.
{¶ 16} As noted, appellant maintains he was entitled to raise his motion outside
the parameters of a petition for post-conviction relief based on his assertion that his
sentence was void, i.e., appellant contends the trial court failed to properly inform him of
the mandatory nature of his rape sentences. Further, premised on his claim that the
sentence was void, appellant argues that the doctrine of res judicata is inapplicable.
{¶ 17} In general, "the Ohio Supreme Court has applied its void-sentence analysis
in limited circumstances." State v. Culgan, 9th Dist. No. 09CA0060-M, 2010-Ohio-2992,
¶ 20. See also State v. Colvin, 7th Dist. No. 15 MA 0162, 2016-Ohio-5644, ¶ 23 ("the void
sanction doctrine is limited to a narrow vein of cases").
{¶ 18} Ohio appellate courts have "declined to extend the void sanction doctrine"
in cases challenging a trial court's alleged failure to advise a defendant that his or her
sentence is mandatory, "concluding that a trial court's failure to state that a prison term is
No. 16AP-774 6
mandatory does not render the sentence void." Vancleve at ¶ 17. See also State v. Jones,
9th Dist. No. 10CA0022, 2011-Ohio-1450, ¶ 10 (where sentences were within the statutory
ranges, "and absent authority to the contrary, the absence of [the word] 'mandatory'
regarding [defendant's] prison terms for possession of drugs does not render his sentence
void"); State v. Walker, 5th Dist. No. 15CA104, 2016-Ohio-1462, ¶ 23 (trial court's failure
to include the term "mandatory" in the defendant's sentence did not render such sentence
illegal or void).
{¶ 19} In Vancleve, the court rejected the appellant's argument that the trial
court's failure to inform him of the mandatory nature of his sentence for rape resulted in a
void sentence, holding in part: "By operation of law, the sentences imposed on Vancleve
for his rape convictions were mandatory. * * * Regardless of whether the mandatory
nature of the rape sentences was conveyed to Vancleve, the validity of the imposed
sentences was not affected. Vancleve's sentence, therefore, was not void." Id. at ¶ 18. The
court further held that, pursuant to R.C. 2929.19(B)(7), the trial court's failure to inform
the appellant "of the mandatory nature of his prison sentences does not result in a
voidable, or reversible, error as '[t]he failure of the court to notify the offender that a
prison term is a mandatory prison term' has no 'affect [on] the validity of the imposed
sentence or sentences.' " Id. at ¶ 19.
{¶ 20} In the present case, in addition to finding that appellant's petition was
untimely, the trial court noted that this court had previously addressed and rejected the
arguments presented in his motion to vacate. We agree. In Ward I, this court, in
reviewing appellant's appeal from the trial court's denial of his motion to withdraw guilty
plea, addressed his claim that the trial court erred in failing to properly notify him that his
sentence would include mandatory time, holding in part:
Ward asserts that he was not informed that his sentences
would be mandatory and the transcript and plea form are
devoid of such language. However, Ward concedes that the
judgment entry containing the record of his conviction and
sentence did contain the required language on mandatory
prison terms.
***
Ward does not explain how he was prejudiced by the defects
he alleges occurred in his plea and sentencing hearings in
No. 16AP-774 7
1997 and 1998 * * *. While the trial court was required to
substantially comply with Crim.R. 11 as to the defects Ward
alleges, that is, to explain the mandatory nature of the
sentences being imposed, * * * the trial court's failure to do so
under the requirements of Crim.R. 11 does not abridge the
Constitution and "will not invalidate a plea unless the
defendant thereby suffered prejudice. * * * The trial court did
not abuse its discretion in finding that Ward has not
sufficiently shown that this defect in the proceeding resulted
in prejudice. * * * Ward does not argue or aver that, if he had
realized his sentence would include mandatory time (or even
if everything relating to his plea had been procedurally
perfect), he would not have pled guilty anyway. Under the
factual circumstances of this case, we lack a basis from which
to conclude that, even if there were defects in the plea
proceedings, prejudice or a manifest injustice occurred such
that the trial court abused its discretion in failing to permit
Ward to withdraw his plea post-sentence.
Id. at ¶ 8, 14.
{¶ 21} Further, in Ward II, we addressed and rejected the argument raised by
appellant in his current motion to vacate that his rape convictions did not require a
mandatory prison term, holding in part:
Finally, Ward argues that, in a footnote, we erred in finding
that Ward was properly sentenced to mandatory time for rape
when we noted that:
[I]n 1997 and 1998, when Ward pled guilty and was
sentenced, "mandatory prison term" was defined in relevant
part as "[t]he term in prison that must be imposed for the
offenses or circumstances set forth in division (F)(1) to (8) of
section 2929.13." 1995 Ohio Am.Sub.H.B. No. 180. As written
at that time, R.C. 2929.13(F)(2) provided that the court "shall
not reduce the terms" of imprisonment imposed for, among
other offenses, "[r]ape." Accordingly, at least some parts of
Ward's sentence were required to be mandatory prison terms
as the phrase was then defined.
***
Ward argues that this is incorrect because R.C. 2929.13(F)(2)
as then-constituted read:
[T]he court shall impose a prison term * * * and * * * shall not
reduce the terms * * * for any of the following offenses:
No. 16AP-774 8
***
(2) Rape, felonious sexual penetration, or an attempt to
commit rape or felonious sexual penetration by force when
the victim is under thirteen years of age[.]
Ward argues that the limiting language, "when the victim is
under thirteen years of age," should be read to apply not just
to "attempt[s]" but also to accomplished acts of "[r]ape [and]
felonious sexual penetration." * * * This is not accurate.
Rather the language, "an attempt to commit rape or felonious
sexual penetration by force when the victim is under thirteen
years of age," is the third item in a disjunctive list where the
first two items are "[r]ape" and "felonious sexual penetration."
R.C. 2929.13(F)(2) (1997). In other words, the age limit
language is part of the third list item, not a limiter of the
entire list.
***
R.C. 2929.13(F)(2), even as constituted when Ward was
convicted and sentenced, provided mandatory prison time for
rape regardless of the age of the victim and the legislature's
later alterations merely to "clarify" the language to prevent
persons from committing exactly the error in interpretation
that Ward now makes.
{¶ 22} Thus, as noted by the trial court, this court previously addressed and
rejected claims by appellant regarding purported error in the 1998 sentencing entry.
Here, the issues raised in appellant's motion to vacate were raised or could have been
raised previously, and the doctrine of res judicata bars relitigation of those matters.
Accordingly, for the reasons stated above, the trial court did not err in denying appellant's
motion to vacate his sentence.
{¶ 23} Based on the foregoing, appellant's single assignment of error is without
merit and is overruled, and the judgment of the Franklin County Court of Common Pleas
is hereby affirmed.
Judgment affirmed.
BRUNNER and HORTON, JJ., concur.
___________________
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614 S.W.2d 779 (1981)
Gerhard FLEGEL et al., Appellants,
v.
John HOLMES et al., Respondents.
No. 42582.
Missouri Court of Appeals, Eastern District, Division Three.
April 14, 1981.
Dallas W. Cox, Jr., St. Louis, for appellants.
Kim B. Blankenship, St. Louis, for respondents.
REINHARD, Judge.
Plaintiffs appeal following the trial court's order dismissing their suit.
Plaintiffs initially brought separate suits in St. Louis County Associate Circuit Court against two defendants: John Holmes, and John Holmes & Sons, Inc. Plaintiffs alleged that defendants had breached a "hunting services contract" concerning a *780 hunting trip in Canada. Counsel for defendants thereafter moved to dismiss the suits "for plaintiffs' failure to name the proper party defendant." After this motion was denied, defendants' counsel entered a general appearance on behalf of both defendants, and requested a jury trial in each case; he also moved to consolidate the cases, and the court granted this motion.
Subsequently, plaintiffs filed an amended petition, in which Tucho Lake Outfitters, Ltd. ("Tucho Lake") was named as an additional defendant. All three defendants thereafter by "special appearance" filed a "motion to dismiss for lack of jurisdiction," which asserted that each of the defendants was not subject to the personal jurisdiction of Missouri courts. Defendants submitted an affidavit in support of their motion, and plaintiffs submitted a counter affidavit, with attached exhibits, in opposition; the court thereafter sustained defendants' motion.
On appeal, plaintiffs assert that the trial court erred in ordering the case dismissed, because defendants had already waived any objection to the court's jurisdiction over them before they attempted to attack the court's personal jurisdiction.
Here, we must conclude that by their acts, defendants John Holmes, and John Holmes & Sons, Inc., had submitted to the court's jurisdiction. Before attacking the court's jurisdiction, these defendants, through counsel, had moved to dismiss for failure to name the proper party, requested jury trial, moved to consolidate the cases, and entered an unqualified appearance before the court. It is clear that by these acts, defendants recognized the case as before the court and assumed an attitude that the court had acquired jurisdiction over them; they had therefore submitted themselves to the court's jurisdiction and waived any subsequent objection to personal jurisdiction. Germanese v. Champlin, 540 S.W.2d 109, 112 (Mo.App.1976); State ex rel. A.M.T. v. Weinstein, 411 S.W.2d 267, 272-73 (Mo.App.1967). We hold that, in regard to defendants John Holmes, and John Holmes & Sons, Inc., the trial court erred in ordering dismissal of plaintiffs' suit.
Defendant Tucho Lake Outfitters, Ltd. however, did not waive its objection to the court's personal jurisdiction because it was added as a defendant after counsel's entry of appearance and motions on behalf of the other defendants. The only action taken on behalf of Tucho Lake was the filing of the motion to dismiss for lack of jurisdiction, which did not amount to a general entry of appearance. See State ex rel. A.M.T. v. Weinstein, 411 S.W.2d 267, 272-73 (Mo.App.1967).
Plaintiffs argue that even if lack of personal jurisdiction was not waived by Tucho Lake, the trial court nevertheless erred in ordering dismissal because the trial court had personal jurisdiction over all the defendants by virtue of Missouri's "long-arm" provisions. See § 506.500, RSMo 1978; Rule 54.06. The initial determination as to jurisdiction was for the trial court. State ex rel. Peoples Bank v. Stussie, 536 S.W.2d 934, 939 (Mo.App.1976). In the hearing before the trial court on the jurisdictional issue, both plaintiffs and defendants chose to present their evidence by affidavit. Defendants' affidavits in support of their motion to dismiss stated facts sufficient for the court to determine that the contract was not entered into in Missouri, and that defendants had not transacted any business in Missouri. Plaintiffs' affidavits and supporting documents were sufficient for a contrary finding to be made. Under Rule 55.28, affidavits may be offered as evidence on motions, but, as in the case of oral evidence, the trial court can believe or disbelieve the statements made in such affidavits. Cloyd v. Cloyd, 564 S.W.2d 337, 343 (Mo.App.1978). Under these circumstances, we cannot say that the trial court erred in determining that it did not have jurisdiction over defendant Tucho Lake.
The trial court's order is affirmed in regard to defendant Tucho Lake Outfitters, Ltd.; it is reversed in regard to defendants John Holmes, and John Holmes & Sons, *781 Inc., and the cause is remanded for further proceedings as to these two defendants.
CRIST, P. J., and SNYDER, J., concur.
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IN THE SUPREME COURT OF IOWA
No. 10–0094
Filed September 9, 2011
NATHAN BERRY,
Appellant,
vs.
LIBERTY HOLDINGS, INC.
a/k/a LIBERTY READY MIX,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Joel D.
Novak, Judge.
An employer seeks further review of a decision by the court of
appeals reinstating a wrongful discharge claim after the district court
granted the employer’s motion to dismiss. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Kenneth R. Munro of Munro Law Office, P.C., Des Moines, for
appellant.
Kerrie M. Murphy and Julie L. Tomka of Gonzalez Saggio & Harlan
LLP, West Des Moines, for appellee.
2
WIGGINS, Justice.
The sole issue in this appeal is whether Iowa Code chapter 668
(2007), Iowa’s comparative fault statute, contains a clearly defined and
well-recognized public policy of this state limiting an employer’s
discretion to discharge an at-will employee. The district court sustained
an employer’s motion to dismiss a wrongful discharge claim, where the
employee based the wrongful discharge claim on the allegation that the
employer discharged him for filing a personal injury lawsuit against a
company under common ownership with his employer. Our court of
appeals reversed. Because chapter 668 does not express a clearly
defined and well-recognized public policy of this state that would limit an
employer’s discretion to discharge an at-will employee, we vacate the
decision of the court of appeals and affirm the judgment of the district
court.
I. Scope of Review.
We review a district court’s order granting a motion to dismiss for
correction of errors at law. U.S. Bank v. Barbour, 770 N.W.2d 350, 353
(Iowa 2009). In conducting our review, “[w]e view the petition in the light
most favorable to the plaintiff, and will uphold dismissal only if the
plaintiff’s claim could not be sustained under any state of facts provable
under the petition.” Griffen v. State, 767 N.W.2d 633, 634 (Iowa 2009)
(quoting Sanford v. Manternach, 601 N.W.2d 360, 363 (Iowa 1999))
(internal quotation marks omitted). In testing the legal sufficiency of the
petition, we accept the facts alleged in the petition as true. McGill v.
Fish, 790 N.W.2d 113, 116 (Iowa 2010); Geisler v. City Council of Cedar
Falls, 769 N.W.2d 162, 165 (Iowa 2009).
3
II. Background Facts and Proceedings.
From the facts pled in the petition, we find the following facts as
true. Brent Voss is a partial owner of two companies, Liberty Holdings,
Inc. and Premier Concrete Pumping, L.L.C. In 2004, Nathan Berry began
working for Liberty Holdings. On June 5, 2006, a concrete pumper truck
owned by Premier struck and injured Berry, who was on his way home
from work. Berry filed a personal injury lawsuit against Premier for the
injuries he sustained in the collision. Berry ultimately settled this claim
within the policy limits of Premier’s insurance coverage.
Approximately nine months after the settlement, on May 1, 2009,
Liberty Holdings terminated Berry’s employment. Subsequently, Berry
filed suit against Liberty Holdings asserting an intentional tort claim for
wrongful termination in violation of public policy. Berry alleged Liberty
Holdings terminated his employment “because he engaged in the
protected activity of bringing a claim for personal injury” against Premier.
In response, Liberty Holdings filed a motion to dismiss for failure to
state a claim upon which relief could be granted. Liberty Holdings
argued Berry failed to identify a clearly defined public policy that
“protects an employee’s right to file a civil lawsuit against someone other
than his or her employer.” Liberty Holdings also claimed Berry failed to
plead all the ultimate facts necessary to support his wrongful
termination claim because Berry failed to allege in his petition that
Liberty Holdings terminated him in violation of a clearly defined public
policy.
In his resistance to Liberty Holdings’ motion to dismiss, Berry
clarified that it is clearly public policy in Iowa “to protect people from
termination when they bring actions pursuant to Iowa Code chapter 668
to seek redress for personal injuries caused by the negligence of
4
another.” In response, Liberty Holdings again argued that Berry failed to
allege in his petition that he had a statutory right to file a personal injury
lawsuit, and even if so pled, this right would not have qualified as a
clearly defined public policy.
The district court granted Liberty Holdings’ motion to dismiss.
Berry filed a notice of appeal and we transferred the case to the court of
appeals. The court of appeals reversed the district court’s ruling and
remanded the case for further proceedings. Liberty Holdings filed an
application for further review, which we granted.
III. Discussion and Analysis.
A. The Intentional Tort of Wrongful Discharge. Iowa is an at-
will employment state. This means that, absent a valid contract of
employment, “the employment relationship is terminable by either party
‘at any time, for any reason, or no reason at all.’ ” Fitzgerald v. Salsbury
Chem., Inc., 613 N.W.2d 275, 280 (Iowa 2000) (quoting Phipps v. IASD
Health Servs. Corp., 558 N.W.2d 198, 202 (Iowa 1997)). Nevertheless, we
have adopted a narrow public-policy exception to the general rule of at-
will employment. Springer v. Weeks & Leo Co., 429 N.W.2d 558, 560
(Iowa 1988). The public-policy exception to the at-will employment
doctrine limits an employer’s discretion to discharge an at-will employee
when the discharge would undermine a clearly defined and well-
recognized public policy of the state. Jasper v. H. Nizam, Inc., 764
N.W.2d 751, 763 (Iowa 2009); accord Thompto v. Coborn’s Inc., 871
F. Supp. 1097, 1112–13 (N.D. Iowa 1994) (recognizing the public-policy
exception is based on the theory “that the law should not allow
employees to be fired for reasons that violate public policy”).
Accordingly, an at-will employee has a cause of action for wrongful
5
discharge when the reasons for the discharge violate a clearly defined
and well-recognized public policy. Jasper, 764 N.W.2d at 761.
To prevail on an intentional tort claim of wrongful discharge from
employment in violation of public policy, an at-will employee must
establish the following elements: (1) the existence of a clearly defined
and well-recognized public policy that protects the employee’s activity;
(2) this public policy would be undermined by the employee’s discharge
from employment; (3) the employee engaged in the protected activity, and
this conduct was the reason the employer discharged the employee; and
(4) the employer had no overriding business justification for the
discharge. Lloyd v. Drake Univ., 686 N.W.2d 225, 228 (Iowa 2004); Davis
v. Horton, 661 N.W.2d 533, 535–36 (Iowa 2003). If the employee
succeeds in establishing the claim, he or she is entitled to recover both
personal injury and property damage. Jasper, 764 N.W.2d at 769–70.
B. Presence of a Clearly Defined and Well-Recognized Public
Policy. For Berry to succeed on his claim of wrongful discharge, he
must identify a clearly defined and well-recognized public policy that
would be undermined by his termination from employment. See Lloyd,
686 N.W.2d at 229; Fitzgerald, 613 N.W.2d at 282. Berry identifies
chapter 668, Iowa’s comparative fault statute, which he claims serves as
a source for the public policy of protecting employees from termination
when they seek legal redress for personal injuries caused by the
negligence of another. See, e.g., Jasper, 764 N.W.2d at 762 (recognizing
one category of cases where we have found a violation of public policy to
support a wrongful discharge claim is where the employee is discharged
for exercising a statutory right or privilege).
Though difficult to define, we have stated the concept of public
policy “generally captures the communal conscience and common sense
6
of our state in matters of public health, safety, morals, and general
welfare.” Id. at 761; accord Thompto, 871 F. Supp. at 1117 (recognizing
public policy consists of matters that are fundamental to citizens’ social
rights, duties, and responsibilities). Statutes are the main sources we
have relied upon when identifying public policies to support a wrongful
discharge claim. Jasper, 764 N.W.2d at 762; Harvey v. Care Initiatives,
Inc., 634 N.W.2d 681, 685 (Iowa 2001). We have also recognized that our
constitution and administrative regulations may serve as proper sources
of public policy. Jasper, 764 N.W.2d at 763–64. Conversely, we have
consistently refused to recognize the existence of alleged public policies
based in general and vague concepts of socially desirable conduct,
internal employment policies, or private interests. Id. at 762, 765; Lloyd,
686 N.W.2d at 230.
The statute relied upon must relate to the public health, safety, or
welfare and embody a clearly defined and well-recognized public policy
that protects the employee’s activity. Jasper, 764 N.W.2d at 763–64; see
also Davis, 661 N.W.2d at 536 (recognizing, when identifying public
policy, “we proceed cautiously and will only extend such recognition to
those policies that are well-recognized and clearly defined”). Stated
another way, the source from which an employee seeks to derive a public
policy “must affect a public interest so that the tort advances general
social policies, not . . . individual interests.” Jasper, 764 N.W.2d at 766.
Even if an employee identifies a statute as an alleged source of
public policy, it does not necessarily follow that the statute supports a
wrongful discharge claim. Id. at 765. We have recognized that
“many statutes simply regulate conduct between private
individuals, or impose requirements whose fulfillment does
not implicate fundamental public policy concerns.” The
difficult task for courts is to determine which claims involve
7
public policy and which claims involve private disputes
between employers and employees governed by the at-will
employment doctrine.
Id. (quoting Foley v. Interactive Data Corp., 765 P.2d 373, 379 (Cal.
1988)).
In making this determination, we examine whether the claimed
policy deals with a clear and well-recognized public interest, as opposed
to mere individual interests. Id. Some statutes serve as fundamental
sources of public policy by expressly protecting a specific employment
activity from retaliation by the employer. See, e.g., Tullis v. Merrill, 584
N.W.2d 236, 239 (Iowa 1998) (finding a statute that expressly prohibited
an employer from discharging an employee for filing a claim for wages to
clearly articulate a public policy). Other statutes, although not
containing express protections, may also be a source of public policy as
long as they clearly imply the statute protects the specific employment
activity in question from employer retaliation. See, e.g., Teachout v.
Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 300–01 (Iowa 1998)
(finding the forceful language of the child-abuse reporting statute
impliedly articulates a public policy); Lara v. Thomas, 512 N.W.2d 777,
782 (Iowa 1994) (finding a statute articulated a public policy such that
an employer’s retaliatory discharge conflicted with the statute’s
legislatively declared goals). Nevertheless, “legislative pronouncements
that are limited in scope may not support a public policy beyond the
specific scope of the statute.” Jasper, 764 N.W.2d at 766 (recognizing
courts cannot extend public-policy protection to areas the legislature has
not chosen to protect statutorily).
With these authorities in mind, we must determine whether Iowa’s
comparative fault statute articulates a public policy that precludes
Liberty Holdings from discharging Berry for exercising his right to file a
8
personal injury lawsuit against a company under common ownership
with his employer. 1
Prior to 1982, Iowa was a contributory negligence state. See
Goetzman v. Wichern, 327 N.W.2d 742, 754 (Iowa 1982) (abandoning
contributory negligence as a complete defense to a tort claim and
adopting pure comparative negligence). In 1984 the legislature enacted
Iowa’s comparative fault statute, which codified a modified form of
comparative fault. 1984 Iowa Acts ch. 1293, §§ 1–15 (codified at Iowa
Code ch. 668); accord Reilly v. Anderson, 727 N.W.2d 102, 108 (Iowa
2006). The statute replaced the pure comparative negligence scheme we
had previously adopted. See Goetzman, 327 N.W.2d at 754.
In its description of the statute, the legislature explained the
statute’s purpose related to “liability in tort by establishing comparative
fault as the basis for liability in relation to claims for damages arising
from injury to or death of a person or harm to property.” 1984 Iowa Acts
ch. 1293 (preamble). Accordingly, the statute requires the comparison of
fault of potentially liable parties in cases of negligence, recklessness, and
strict liability. Jahn v. Hyundai Motor Co., 773 N.W.2d 550, 560 (Iowa
2009); accord Bredberg v. Pepsico, Inc., 551 N.W.2d 321, 329 (Iowa 1996)
(recognizing the comparative fault statute allows the fact finder to assign
fault to one or more parties claimed to have contributed to the plaintiff’s
injuries).
1In addition to Iowa’s comparative fault statute, the court of appeals relied on
the Iowa Constitution and court precedent to hold Berry’s right to seek judicial redress
for a wrong is a clearly defined and well-recognized public policy supporting his
wrongful discharge claim. However, at the district court and on appeal, Berry only
identified Iowa’s comparative fault statute as a source of public policy. Accordingly, the
only claim preserved for our review is whether chapter 668 articulates a public policy to
support Berry’s claim. See, e.g., Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002)
(recognizing a claim must normally be both raised and decided by the district court
before it is preserved for our review). Therefore, we will leave the question unanswered
as to whether the Iowa Constitution, other statues, rules, or our court’s precedent can
be the basis for a public policy supporting Berry’s wrongful discharge claim.
9
We have said, “Iowa’s Comparative Fault Act represents a truly
comprehensive and far-ranging modification and consolidation of Iowa
tort law.” Reilly, 727 N.W.2d at 108–09 (quoting Johnson v. Junkmann,
395 N.W.2d 862, 867 (Iowa 1986)) (internal quotation marks omitted).
Chapter 668 did not create any new causes of action. Rather, it created
a set of rules under which the parties will try all tort actions when the
action involved “fault” as defined by the statute. See Iowa Code
§§ 668.1–.16. Therefore, chapter 668 more closely resembles a statute
that attempts to regulate private conduct and imposes requirements that
do not implicate public policy concerns.
The legislature did not make a policy statement in chapter 668
that implicated the health, safety, morals, or general welfare of the
citizens of this state. Cf. Teachout, 584 N.W.2d at 300–01; Lara, 512
N.W.2d at 782. The legislature also did not protect any specific activities
that indicate the presence of an underlying public policy. Cf. Teachout,
584 N.W.2d at 300–01; Lara, 512 N.W.2d at 782; Springer, 429 N.W.2d
at 560–61. Rather, by enacting chapter 668, the legislature simply
created a framework whereby the fact finder is able to assign fault to one
or more parties claimed to have contributed to a plaintiff’s injuries in
cases of negligence, recklessness, and strict liability.
Accordingly, we conclude chapter 668 does not articulate a clearly
defined and well-recognized public policy protecting the filing of a
personal injury lawsuit against an employer.
IV. Disposition.
We vacate the decision of the court of appeals and affirm the
judgment of the district court because Iowa Code chapter 668, Iowa’s
comparative fault statute, does not contain a clearly defined and well-
10
recognized public policy of this state that would limit an employer’s
discretion to discharge an at-will employee.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AFFIRMED.
All justices concur except Mansfield, J., who takes no part.
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23 A.3d 1094 (2011)
IN RE J.J.M.L.
No. 1646 EDA 2010.
Superior Court of Pennsylvania.
January 28, 2011.
Affirmed.
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102 F.3d 365w
96 Cal. Daily Op. Serv. 9043, 96 Cal. DailyOp. Serv. 9227,96 Daily Journal D.A.R. 15,001,96 Daily Journal D.A.R. 15,396In the Matter of the Requested Extradition of Terence Damien KIRBY.UNITED STATES of America, Appellant,v.Terence Damien KIRBY, Appellee.In The Matter of the Requested Extradition of Pol BRENNAN.UNITED STATES of America, Appellant,v.Pol BRENNAN, Appellee.In The Matter of the Requested Extradition of Kevin Barry John ARTT.UNITED STATES of America, Appellant,v.Kevin Barry John ARTT, Appellee.
Nos. 96-10068, 96-10069 and 96-10074.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Aug. 15, 1996.Decided Dec. 16, 1996.
NOTE: THE COURT HAS WITHDRAWN THIS OPINION
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745 F.2d 57
Minorv.E.E.O.C.
84-5162
United States Court of Appeals,Sixth Circuit.
9/20/84
1
W.D.Tenn.
VACATED AND REMANDED
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This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-2147
Robert William Silker, petitioner,
Appellant,
vs.
State of Minnesota,
Respondent.
Filed July 27, 2015
Affirmed
Rodenberg, Judge
Olmsted County District Court
File No. 55-CR-09-5821
Cathryn Middlebrook, Chief Appellate Public Defender, Chang Y. Lau, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Mark A. Ostrem, Olmsted County Attorney, James P. Spencer, Assistant County
Attorney, Rochester, Minnesota (for respondent)
Considered and decided by Kirk, Presiding Judge; Rodenberg, Judge; and Chutich,
Judge.
UNPUBLISHED OPINION
RODENBERG, Judge
Appellant challenges the validity of his Alford plea of guilty, arguing that there
was not a strong factual basis to support the plea. We affirm.
FACTS
On July 28, 2009, appellant Robert William Silker was charged with five counts of
first-degree criminal sexual conduct, one count of soliciting a child to engage in criminal
sexual conduct, and one count of possession of a pistol by a user of a controlled
substance. The charges were based on allegations made by 14-year-old L.K, and
evidence seized pursuant to a search warrant.
Appellant has consistently denied L.K.’s factual claims. Over three years after
appellant was charged, the state offered to allow him to plead guilty to criminal sexual
conduct in the third degree in violation of Minn. Stat. § 609.344, subd. 1(b) (2006)
pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970) and State v.
Goulette, 258 N.W.2d 758 (Minn. 1977), with all other charges being dismissed.
Appellant accepted this offer.
At the plea hearing, appellant answered his attorney’s questions concerning his
plea of guilty to the third-degree charge:
[DEFENSE COUNSEL]: But you are—you’re not—what
you’re telling the Court basically is that you’re not guilty, that
you never touched this girl or never—you know—in a sexual
or inappropriate manner. But—And we’ll get into this a little
further during the plea. But because you think ultimately
that—that you believe that you’re going to be convicted of
this you’re going to enter a guilty plea to take advantage of
the State’s offer, correct?
[DEFENDANT]: Correct.
....
[DEFENSE COUNSEL]: Okay. And you have reviewed
the evidence with all of the attorneys . . . But you have
reviewed every bit of evidence that’s come in on this case,
correct?
2
[DEFENDANT]: That’s correct.
[DEFENSE COUNSEL]: Okay. You are aware of all of the
statements and—and pictures and other things that are going
to be presented at trial, correct?
[DEFENDANT]: That’s correct.
[DEFENSE COUNSEL]: You understand that if a jury
believes [L.K.]’s statements and the statements of other
witnesses against you that it is highly likely you will be
convicted of one or more of the original charges, correct?
[DEFENDANT]: That’s correct.
After a clarification of appellant’s own age and the age of L.K. at the time of the alleged
offenses, the district court concluded, “I will accept the plea as voluntarily, intelligently
and accurately made.”
Before sentencing, appellant moved the district court to withdraw the guilty plea.
His motion was denied.
At the sentencing hearing, defense counsel brought to the district court’s attention
“a housekeeping matter,” to wit: that, upon reviewing the transcript counsel could not
find a statement by the court “that on review of the evidence the State—the evidence that
the State would have presented at trial would be sufficient to convict of a third degree
crim sex, [because] it was an Alford, and we’d ask that the Court make that finding.” The
district court responded:
I have reviewed this evidence a number of times on various
motions and there is sufficient evidence in the police reports
and the other evidence that’s been presented to the Court over
the course of several years that would support a—if believed
by the jury, a conviction for the crime as charged and as pled
to and there is—so that there is a sufficient factual basis with
that and the other admissions the defendant has made or
things he stated during the plea hearing to support the Alford
plea, which I think I already accepted and in fact have already
decided against a motion for withdrawal of it.
3
The district court sentenced appellant for the conviction of third-degree criminal
sexual conduct. The district court later denied appellant’s petition for postconviction
relief, filed after appellant had violated conditions of his probation, and again requesting
plea withdrawal. This appeal followed.
DECISION
Appellant contends that his Alford plea of guilty was inaccurate and therefore
invalid. Once a defendant pleads guilty, he “does not have an absolute right to withdraw
a valid guilty plea.” State v. Theis, 742 N.W.2d 643, 646 (Minn. 2007). A defendant
may withdraw a guilty plea if “withdrawal is necessary to correct a manifest injustice.”
Minn. R. Crim. P. 15.05, subd. 1; see also Theis, 742 N.W.2d at 646. A “manifest
injustice exists where a guilty plea is invalid.” Theis, 742 N.W.2d at 646. In order for a
plea to be valid, “it must be accurate, voluntary, and intelligent.” State v. Ecker, 524
N.W.2d 712, 716 (Minn. 1994). We review the validity of a guilty plea de novo. State v.
Raleigh, 778 N.W.2d 90, 94 (Minn. 2010). If a guilty plea is invalid, the case must be
remanded to provide an opportunity to withdraw the plea. Theis, 742 N.W.2d at 651.
Typically, a defendant pleads guilty by admitting to a crime and explaining, in his
own words, the circumstances that led to the crime. Ecker, 524 N.W.2d at 716.
However, a defendant may plead guilty while maintaining his innocence pursuant to the
United States Supreme Court’s decision in Alford, as adopted in Minnesota in Goulette.
Such guilty pleas are often referred to as Alford pleas. See Theis, 742 N.W.2d at 647.
“When a defendant pleads guilty but at the same time denies that he is in fact
guilty, the rationality of the defendant’s decision is immediately called into question.”
4
Goullette, 258 N.W.2d at 761. Therefore, in order for an Alford plea to be valid, a
“strong factual basis” must be established on the record. Alford, 400 U.S. at 38, 91 S. Ct.
at 168; see also Theis, 742 N.W.2d at 649; Ecker, 524 N.W.2d at 716 (stating that an
“adequate factual basis” is necessary to ensure that the plea was voluntary). A strong
factual basis ensures that the defendant does not plead “guilty to a more serious offense
than he could be convicted of were he to insist on his right to trial.” Theis, 742 N.W.2d
at 649; see also Raleigh, 778 N.W.2d at 95 (“Ultimately, the accuracy requirement
ensures that a defendant does not plead guilty to a crime more serious than that of which
he could be convicted if he elected to go to trial.”).
“The cases reflect that careful scrutiny of the factual basis for the plea is necessary
within the context of an Alford plea because of the inherent conflict in pleading guilty
while maintaining innocence.” Theis, 742 N.W.2d at 648-49. Both the defendant and the
court must be satisfied that the state’s evidence would be sufficient to convict and, in
fact, that a jury is likely to return a guilty verdict. See Theis, 742 N.W.2d at 650
(concluding that the defendant’s acknowledgment that there was a “mere ‘risk’” of a
guilty verdict was an “inadequate acknowledgement” for the purposes of establishing a
strong factual basis); Ecker, 524 N.W.2d at 716 (requiring that the district court
interrogate the defendant if the district court believes the state has not adequately
established that the defendant believes he or she would be found guilty if the state’s
evidence was submitted to a jury). “[T]he [district] court should not cavalierly accept [an
Alford] plea but should assume its responsibility to determine whether . . . there is a
sufficient factual basis to support it.” Goullette, 258 N.W.2d at 761.
5
Appellant’s Alford plea of guilty to third-degree criminal sexual conduct in
violation of Minn. Stat. § 609.344, subd. 1(b) required proof that the appellant “engage[d]
in sexual penetration with another person [when] the complainant is at least 13 but less
than 16 years of age and the actor is more than 24 months older than the complainant.”
Sexual penetration includes digital and oral penetration of the vagina. Minn. Stat.
§ 609.341, subd. 12(1)-(2) (2006).
Appellant argues that the district court did not establish a strong factual basis
before accepting his guilty plea, and that the district court erred by accepting his guilty
plea when the state did not establish the elements of third-degree criminal sexual conduct
either by reciting the elements of that offense or by presenting evidence tending to prove
those elements. Appellant argues that, without so establishing the elements of third-
degree criminal sexual conduct, the district court could not have ensured that appellant
was pleading guilty to a less serious offense than that with which he was originally
charged.
While neither the state nor the district court recited the elements of third-degree
criminal sexual conduct at the plea-hearing, it is clear from our careful review of the
record that the district court and appellant had in mind that third-degree criminal sexual
conduct was a less serious offense than other offenses with which appellant was charged.
He was questioned about his age and that of L.K. at the time of the offense. The case had
been ongoing for approximately three years after the initial charges were brought against
appellant and appellant was keenly aware that L.K. alleged sexual penetration. By the
time appellant pleaded guilty, both the district court and appellant were very familiar with
6
the evidence in the state’s possession and what that evidence would have been able to
prove. Appellant acknowledged during the plea hearing that he had reviewed “every bit
of evidence that’s come in on this case.” Appellant acknowledged the strength of the
state’s evidence when he responded affirmatively to the following question:
[W]hat you’re telling the Court basically is that you’re not
guilty . . . [b]ut because you think ultimately that—that you
believe that you’re going to be convicted of this you’re going
to enter a guilty plea to take advantage of the State’s offer,
correct?
Appellant clearly understood that the result of his plea was a conviction of an offense less
serious than those he originally faced.1
We have held that if the district court has “assure[d] itself that the accuracy
standard is satisfied” the district court need not make an explicit finding to that effect on
the record “as a routine matter.” State v. Johnson, ___ N.W.2d ___, ___, 2015 WL
4379808, at *4 (Minn. App. June 29, 2015). While the district court did not explicitly
find that the charge to which appellant was pleading guilty was less serious than those of
which he could have been convicted had he gone to trial, it is clear from the record that
the district court was assured that the accuracy requirement had been met at the plea
hearing.
Appellant also argues that the only question posed to him concerning whether the
state had sufficient evidence to convict him of the pleaded-to offense was too ambiguous
to establish a strong factual basis for the plea. In its order denying appellant’s petition for
1
The district court stated, “I’m not usually a big fan of Alford Pleas but I think it’s
appropriate in this case.” This statement further evidences the district court’s familiarity
with the evidence against appellant and the circumstances surrounding appellant’s guilty
plea.
7
post-conviction relief, the district court acknowledged that “the questioning of [appellant]
on [whether the crime to which he was pleading guilty was more serious than that of
which the state could have convicted him] could have been more thorough.” And indeed,
it could have been. The only question concerning whether a jury was likely to convict
appellant on the evidence in the state’s possession elicited an ambiguous answer: “You
understand that if a jury believes [L.K.’s] statements and the statements of other
witnesses against you that it is highly likely you will be convicted of one or more of the
original charges, correct?” (Emphasis added.) Appellant responded affirmatively. But
appellant was charged not only with five counts of first-degree criminal sexual conduct;
he was also charged with soliciting a child to engage in sexual conduct and with being a
user of controlled substances in possession of a pistol, the latter two crimes being less
serious than third-degree criminal sexual conduct, the offense to which appellant pleaded
guilty.
Despite this ambiguity, we are convinced from our review of the record that
appellant knew that the state had evidence tending to prove the first-degree criminal
sexual conduct charges and was acknowledging that, had that evidence been presented to
the jury, he was “highly likely” to be convicted of first-degree criminal sexual conduct.
Again, appellant had reviewed all of the evidence in the state’s possession and this case
has been pending for years. As the district court rightly observed concerning the question
of ambiguity, “it would not be logical to assume that [appellant] was referring to one of
the lesser charges when he agreed that it was ‘highly likely’ that he would be convicted.”
A common-sense reading of the plea transcript demonstrates that, while the noted
8
ambiguity exists, appellant was pleading guilty to the third-degree offense to avoid one or
more first-degree convictions.
The requirement of establishing a strong factual basis in an Alford plea flows from
the requirement that a guilty plea be accurate to be valid, which ensures that appellant
was not pleading guilty to a “more serious offense than he could be convicted of were he
to insist on his right to trial.” Theis, 742 N.W.2d at 649. Because it is clear from the
record before us that, as the district court found before sentencing, it was highly likely
that appellant would have been convicted of first-degree criminal sexual conduct had a
jury been presented with the evidence in the state’s possession, and because it is clear that
appellant knew this, the Alford plea, while imperfect, had a strong factual basis and was
therefore valid.
Affirmed.
9
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Bersin Props., LLC v County of Monroe Indus. Dev. Agency (2017 NY Slip Op 09056)
Bersin Props., LLC v County of Monroe Indus. Dev. Agency
2017 NY Slip Op 09056
Decided on December 22, 2017
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 22, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
1465 CA 17-00513
[*1]BERSIN PROPERTIES, LLC, PLAINTIFF-APPELLANT,
vCOUNTY OF MONROE INDUSTRIAL DEVELOPMENT AGENCY, ET AL., DEFENDANTS, TOWN OF IRONDEQUOIT AND EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT, DEFENDANTS-RESPONDENTS. (APPEAL NO. 2.)
QUINN EMANUEL URQUHART & SULLIVAN, LLP, NEW YORK CITY (ANDREW R. DUNLAP OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HARTER, SECREST & EMERY LLP, ROCHESTER (EDWARD F. PREMO, II, OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF IRONDEQUOIT.
FERRARA FIORENZA PC, EAST SYRACUSE (CHARLES E. SYMONS OF COUNSEL), FOR DEFENDANT-RESPONDENT EAST IRONDEQUOIT CENTRAL SCHOOL DISTRICT.
Appeal from an order and judgment (one paper) of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered June 2, 2016. The order and judgment, inter alia, granted the motion of defendant Town of Irondequoit for summary judgment dismissing the amended complaint against it and for partial summary judgment with respect to the second through fourth counterclaims.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs for reasons stated in the decision at Supreme Court.
Entered: December 22, 2017
Mark W. Bennett
Clerk of the Court
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255 S.W.2d 927 (1952)
SCHLEICHER COUNTY
v.
HUDGENS et al.
No. 4906.
Court of Civil Appeals of Texas, El Paso.
December 3, 1952.
Rehearing Denied January 14, 1953.
*928 Rountree, Renner & Snell, Lamesa, for appellant.
John H. Splawn, Jr., and Bob Huff, Lubbock, for appellees.
PRICE, Chief Justice.
This is an appeal from a judgment of the District Court of Gaines County. There are practically three sets of plaintiffs. Each set of plaintiffs claimed a labor of land out of League 283 of Schleicher County School Land situated in Gaines County. C. L. Hudgens and several others jointly claim title to Labor No. 21, Mrs. Mary E. Bomar as plaintiff claims Labor No. 22, John E. Brewer claims Labor No. 24. The plaintiffs each and all assert fee simple title to the labor claimed by them, and seek to quiet their title as to the defendant, Schleicher County. The defendant's answer consists of a number of special exceptions, pleads the two and four years statute of limitations. As to Labor No. 21 the court denied the plaintiffs claiming same all relief. As to Labor No. 22 the court finds in favor of plaintiff Mary E. Bomar, and quiets her title thereto. The court further found in favor of plaintiff John E. Brewer as to Labor No. 24. Plaintiffs Mary E. Bomar and John E. Brewer were denied any recovery as to any overpayments made to defendant Schleicher County.
Defendant Schleicher County has perfected this appeal from such judgment, insofar as it was adverse. The court overruled all of the special exceptions urged by defendants. Most of appellant's 39 points of error urge error in overruling special exceptions. Most of these exceptions are perhaps true demurrers in that they raise issues of law. The court on the motion of defendant Schleicher County filed findings of fact and conclusions of law. We adopt these findings of fact and conclusions of law as our own. It is thought that all the issues arising on this appeal will appear therefrom.
The findings of fact and conclusions of law will be set out in full:
"Findings of Fact.
"1. On March 25, 1908, Schleicher County, acting by the through its Commissioners' *929 Court in due and legal form, executed a deed of conveyance conveying to W. L. Saye certain lands described in the conveyance as Leagues 283, 284, 285 and 286 situated in Gaines County, Texas, and being the lands granted to Schleicher County under the Constitution and laws for Public School purposes. The consideration expressed was $6.50 per acre, and Saye executed on the same date his vendor's lien note for the entire purchase price due and payable forty years from date, bearing five per cent interest per annum payable in advance.
"The conveyance provided that failure or refusal of Saye, or any of his assignees, to pay any installment of interest within thirty days after due date matured all indebtedness owed by such defaulter, and that Schleicher County under such conditions was authorized by an Order entered on the Minutes of its Commissioners' Court to declare the sale to Saye, or any of his assignees, duly forfeited against such defaulting person, and that the title to the land so forfeited should revert to and reinvest in Schleicher County.
"The conveyance further provided that upon the sale of any subdivision by Saye such subdivision should stand relieved from the vendor's lien created on the four leagues by Saye, but should be subject to a vendor's lien securing the principal and five per cent interest on the acreage so subdivided `at the rate of $6.50 per acre' for the land.
"It provided that Saye, before the sale of any of the subdivision, should have the land platted and the subdivisions numbered, filing said map and plat with the County Clerk of Gaines County, to be recorded in such county, and filing a certified copy with the County Clerk of Schleicher County.
"The vendor's lien on the lands was retained both in the deed and in the note executed by Saye.
"2. It being `stipulated by and between counsel for Plaintiffs and Defendant that the Chain of title is in order from' the deed of Schleicher County to Saye `down to the plaintiffs,' the Court finds that by a regular chain of title the title to Tract 21 of League 283, is vested in C. L. Hudgens, et al., Plaintiffs; title to Subdivision 22, League 283, was vested in Mary E. Bomar; and title to Tract or Subdivision 24, League 283, was vested in Plaintiff, John H. Brewer.
"3. Title in Hudgens to Tract 21 was acquired by general Warranty Deed from E. H. Farrow, dated November 18, 124, and the land was described as containing 177 acres, more or less. Hudgens assumed payment of $6.50 per acre due Schleicher County on the described land.
"4. On November 12, 1929, by general Warranty Deed from Charles Stifflemore, Bomar acquired land described as being Labor 22 of League 283. Part of the consideration was the assumption by grantee of `the sum of $6.50 per acre owing on each acre of land conveyed', which was due to Schleicher County on the original purchase price, and the assumption of the payment of all accrued interest from July 1, 1928.
"5. Plaintiff, John H. Brewer, acquired title to the land described as Labor 24, of League 283, by general Warranty Deed dated January 20, 1928, executed by M. C. Lindsey and wife. As part consideration, Brewer assumed the payment of the $6.50 per acre debt due Schleicher County for purchase price, and the interest thereon at five per cent, commencing with the installment of interest due in 1928.
"6. Block M, E. L. & R. R. R. R. Co. survey joins League 283 on the East with Section 139 of Block M being adjacent to and east of Labor 21 of League 283; Sections 139 and 138 of Block M being adjacent to and east of Labor 22; and with Sections 138 and 137 of Block M being adjacent to and east of Labor 24, of League 283.
"Block M and the three sections thereof mentioned above were all surveyed either in 1879 or prior thereto, and field notes to the same were filed in the Land Office at Austin.
"League 283 was surveyed and its lines were run in 1883 under and by authority of the Act of April 7, 1883, General Laws of Texas, Chapter 55. Such original survey of League 283 did not show Subdivision into Labors.
*930 "Neither the field notes of such original survey, nor the patent issued, showed any call for any part of Block M.
"7. Block M, and particularly Section 137, 138 and 139, which lie immediately east of Labors 21, 22 and 24, are all older and Senior surveys to League 283.
"8. There is a conflict between League 283 and Block M 100.2 acres of what is designated as Labor 21 being in conflict with Section 139 of Block M with 76.9 acres of 21 not being in conflict; 98.4 acres of what is designated as Labor 22 is in conflict with Section 138 and 139 of Block M, and 78.7 acres of 22 is not in conflict; 94.8 acres of the tract designated as Labor 24 is in conflict with Sections 137 and 138 of Block M, and 82.3 acres of 24 is not in conflict.
"9. At the time of the original sale to Saye of the four leagues, and at the time each of the Plaintiffs herein acquired title to their respective tracts, all parties concerned in either of such transactions, including Schleicher County and its Commissioners' Court, Saye, and these plaintiffs, were without knowledge of the conflict between League 283 and Block M and all mistakenly thought each subdivision was a full labor of 177.12 acres.
"Prior to January 1, 1949, Schleicher County and its Commissioners' Court did have knowledge of the conflicts.
"Tract 21 contains only 76.9 acres and Farrow conveyed only that acreage; Stifflemire's deed only conveyed to Bomar 78.7 acres, and Lindsey's deed to Brewer conveyed only 82.3 acres.
"10. The only payments made by Hudgens after acquiring the land was a total sum of $863.40, no payments being made on such land by him subsequent to 1939, and such payments in the said sum of $863.40 were not a sufficient sum to pay the principal and accrued interest on 76.9 acres, counting only such interest as accrued prior to March 25, 1948, when the note matured in full. The sum was paid in fifteen annual payments of $57.56, being intended as interest.
"11. On Tract 22 Bomar paid interest of $57.56 annually, being the amount of interest due on 177.12 acres for eight years, totaling $1,036.08. He paid it and it was received in the mistaken belief that 177.12 acres had been conveyed. The 78.7 acres belonging to him at $6.50 per acre would equal the sum of $511.55 principal due, and the interest at five per cent per annum on such sum of $511.55 is the sum of $25.58 per annum, Bomar by the deed having assumed the interest payments commencing with the payment due July 1, 1928, and the last interest payment being payable in advance being due on July 1, 1947, Bomar was obligated to pay twenty years' interest, and $25.58 interest per annum for twenty years would be the sum of $511.60, totaling principal and interest and should have been paid by Bomar on Tract 22 of $1,023.15, which is a sum less than the $1,036.08 actually paid by him prior to March 25, 1948.
"The Court here now finds, whether through typographical error or otherwise, the total sum shown in the judgment heretofore signed by the Court as being paid by Bomar was in error.
"12. The Plaintiff Brewer, in the mistaken belief that he owed interest on a full labor of 177.12 acres, paid to Schleicher County the sum of $57.56 for twenty-one years, from 1928 to 1948, inclusive, totalling the sum of $1,208.76. The Plaintiff Brewer only acquired 82.3 acres, which at $6.50 per acre would be $534.95 principal due on land actually received. The total amount of principal and interest due by Brewer after acquiring the land was $1,096.07 on 82.3 acres, a sum less than the total sum of $1,208.76 paid by him, all prior to March 25, 1948, when the principal matured, and prior to the forfeiture hereinafter mentioned.
"13. At the time that each tract of land was acquired herein by respective plaintiffs, interest had been paid in full, for was thereafter paid by each plaintiff on the basis of $57.56 per annum.
"14. On March 26, 1951, the plaintiff presented to the Commissioners' Court, a demand and request for an adjustment as to Labor 21, and a settlement of the indebtedness as to Labor 22 on behalf of Plaintiff Bomar, and an adjustment and settlement as to Labor 24 in behalf of John E. *931 Brewer. The Commissioners' Court by its order of same date rejected such application, request and demand. The Court had theretofore, to wit; on Jan. 29, 105, entered its order, legal and proper in form, forfeiting Labors 21, 22 and 24 as against these Plaintiffs.
"Conclusions of Law.
"1. Because Block M is the older and seiour survey to League 283, the land in conflict in the two surveys properly belongs in and is a part of Block M, and forms no part of League 283, so that as a matter of Law Labor 21 contains only 76.9 acres, Labor 22 contains only 78.7 acres, and Labor 24 contains only 82.3 acres.
"2. That part of $57.56 paid by each plaintiff each year that was in excess of the interest due on the land actually acquired and owned by each Plaintiff should as a matter of equity be applied on the payment of the principal due on the land actually received by each Plaintiff.
"3. The total sum paid by Hudgens, et al. on Tract 21 being a lesser sum than the amount of the principal and interest owed by them on Tract 21, and for which they were liable, and there being a balance due to Schleicher County as of March 25, 1948, and as of the date of the forfeiture by Schleicher County, Schleicher County was authorized by the terms of the original contract of purchase by and between Schleicher County and Saye to forfeit the title to Tract 21 and to reinvest the same in Schleicher County, and to divest Hudgens, et al of all title and interest, and the act of the Commissioners' Court in so entering an order of forfeiture was valid, legal, and binding as to Hudgens, et al. as to Tract 21 and fully vesting all right, title and interest in Schleicher County.
"4. Plaintiff Bomar having prior to March 25, 1948, the date the purchase money matured, paid by annual payments of $57.56 each year a total sum in excess of all interest for which they were liable and the amount of principal due on the acreage actually acquired by them, and being entitled as a matter of equity to having the excess interest paid by them applied upon the principal, had fully paid all principal and interest on the land actually received by them, and was entitled to a release from Schleicher County, and the forfeiture subsequent to March 25, 1948, by Schleicher County as against Tract 22 was and is null and void and should be set aside, and Tract 22 is vested in the plaintiff Bomar free from any right, title, interest, lien or claim of any kind of the part of Schleicher County.
"5. The Plaintiff Brewer having paid a sum in excess of the amount of principal and interest actually due upon the acreage which he actually acquired is entitled to a release from Schleicher County, and Schleicher County has no further right, title or interest in Labor 24, and the Plaintiff Brewer has full title to Labor 24 free from any and all claims, right, title, or interest of Schleicher County.
"6. Any excess payments made by either Plaintiff Bomar or Brewer should not be recovered against Schleicher County, being barred by the Statue of Limitation, being paid more than four years before suit was filed therefor.
"This 4th day of June, 1952.
"/s/ Louis B. Reed,
"Judge Presiding."
In order to legally justify rescission by the holder of vendor's lien on land, some part of the purchase money must be unpaid. When the purchase money is paid, the legal title vests in the vendee. Secrest v. Jones, 21 Tex. 121; Masterson v. Pullen, Tex.Civ.App., 207 S.W. 537; Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215.
In substance the trial court found the price was fixed on an acreage basis. Through a mutual mistake Labors 22 and 24 each only contained about one-half of the 177.12 acres which each believed it did contain; that the payment of interest and deferred payment were provided for on the basis of 177.12 acres; that the price was fixed at $6.50 per acre on the supposition that each Labor contained 177.12 acres; that appellant had been paid excessive *932 interest in each case in excess of the amount of the principal debt and interest; that while plaintiff could not recover these excessive payments, the defendant having received every cent that was owing it could not rescind in order that it might collect money not owing. The evidence is ample to sustain the finding whether it be either express or implied that the purchase price was fixed on an acreage basis; that there was a mutual mistake as to the acreage conveyed; that there has been a full consideration to the extent of the deficiency in the acreage in the amount of $6.50 per acre.
In the court's opinion in the case of Mitchell v. Zimmerman, 4 Tex. 75, Judge Wheeler said:
"The demand of the vendor and the offer of the purchaser are supposed to be influenced in an equal degree by the quantity which both believed to be the subject of their bargain. The general rule, therefore, is that when a misrepresentation is made as to the quantity, though innocently, the right of the purchaser is to have what the vendor can convey, with an abatement out of the purchase money for so much as the quantity falls short of the representation."
It is realized here we deal with a mutual mistake, but the rule of the law must be the same in case of a mutual mistake. See Ray v. Barrington, Tex.Civ.App., 297 S.W. 781; Arrott v. Smith, Tex.Civ.App., 225 S.W.2d 639.
In the case of Copeland v. Gorman, 19 Tex. 253, it is said:
"It was no objection to the plea, that the alleged failure of title did not go to the whole, but only a part of the land conveyed. It was the right of the defendant to take what the vendor could convey, and have an abatement of the price to the extent of the failure of title. Mitchell v. Zimmerman, 4 Tex. 75. We are of the opinion that the plea was sufficient, and that the court erred in sustaining the exceptions."
Here we deal again with a misrepresentation, but where there is a mutual mistake there is no distinction as to the principle of law applicable.
Where the sale is by the acre and there is a material shortage the vendee is entitled to recover for the shortage the price per acre. Brewer v. Ross, Tex.Civ. App., 290 S.W. 781 (wr. ref.); Denman v. Stuart, 142 Tex. 129, 176 S.W.2d 730. Where there is a material shortage in acreage and there is a mutual mistake and vendee has overpaid vendor, he is entitled to have such overpayment applied in abatement of the unpaid purchase money on the acreage actually conveyed. Franco-Texas Land Co. v. Simpson, 1 Tex.Civ. App., 600, 20 S.W. 953; Rosborough v. Picton, 34 Tex.Civ.App. 113, 34 S.W. 791.
The right of abatement of the purchase price is not barred by the statute of limitations, although the legal right to recover such overpayments might be barred by the four year statute of limitations. Rev.St.1925, art. 5527; 43 Tex.Jur. p. 441; Rosborough v. Picton, 34 Tex.Civ.App. 113, 34 S.W. 791, opinion by Judge F. A. William; Mason v. Peterson, Tex.Com.App., 250 S.W. 142; Murphy v. Boyt, Tex.Civ. App., 180 S.W.2d 199, loc. cit. 203(6).
Schleicher County in receiving title to this land and in applying same in accordance with the Constitution of the State, may be acting, or was acting, we think, in a governmental rather than a proprietory capacity. If such is the case it acted as an instrumentality of the State. However, when the State herself comes before her courts there is no good reason why the same law should not be applied as to a controversy between individual citizens. Neither the County nor the State has the legal or moral right to exact money from a citizen not justly due. The title was retained to secure the payment of the debt. The payment of the debt terminates the right of rescission. The equitable title of appellees is superior to that of appellant. See Secrest v. Jones, 21 Tex. 121; Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215.
*933 While it may be, as the trial court held, the recovery of these excess payments is barred by limitation, this does not prevent there being a bar to collection of the amount truly due twice. It is insisted here that appellee is entitled to collect for 177.12 acres when it only conveyed about half that acreage the conveyance being by the acre beyond all question. This we believe, as the learned trial judge held, finds no justification in law or equity.
Careful consideration has been given to each and every point of error urged by appellant and same are overruled as presenting no reversible error. It is ordered that the judgment of the trial court be in all things affirmed.
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884 F.2d 504
1989-2 Trade Cases 68,745
LES SHOCKLEY RACING, INC.; Les Shockley; Robert W.Correll; Gary G. Cerveny; Douglas J. Malewicki;Aero-Visions, Inc.; Gary M. Krolczyk; Larry C. Parks;Dorothy M. McClure, Plaintiffs-Appellants,v.NATIONAL HOT ROD ASSOCIATION; K & K Insurance Agency, Inc.,Defendants-Appellees.LES SHOCKLEY RACING, INC.; Les Shockley; Robert W.Correll; Gary G. Cerveny; Douglas J. Malewicki;Aero-Visions, Inc.; Gary M. Krolczyk; Larry C. Parks;Dorothy M. McClure, Plaintiffs-Appellees,v.NATIONAL HOT ROD ASSOCIATION, Defendant-Appellant,andK & K Insurance Agency, Inc., Defendant.
Nos. 88-5748, 88-5789.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 8, 1989.Decided Sept. 6, 1989.
Ellen A. Pansky, Bayne & Markle, Van Nuys, Cal., for plaintiffs-appellants-cross-appellees.
David A. Pash, Kinsella, Boesch, Fujikawa & Towle, Los Angeles, Cal., for defendants-appellees-cross-appellants.
Appeals from the United States District Court for the Central District of California.
Before HUG, HALL and WIGGINS, Circuit Judges.
HUG, Circuit Judge:
1
Plaintiffs are owners and operators of jet-powered trucks and jet-powered motorcycles, which allegedly have been banned from exhibition racing (racing without prize money) at drag racing events sponsored and controlled by the National Hot Rod Association ("NHRA"). Plaintiffs sued the NHRA and its insurance broker, K & K Insurance Agency, Inc. ("K & K"), alleging that the ban resulted from a conspiracy among the NHRA, K & K, and unnamed NHRA members who own or operate drag racing tracks throughout the United States. Plaintiffs appeal the order dismissing their claim under Sherman Act Sec. 1, 15 U.S.C. Sec. 1 (1982), for failure adequately to state a claim for relief and their pendent state law claims for lack of subject matter jurisdiction. The NHRA cross-appeals the order denying its motion for sanctions against plaintiffs under Fed.R.Civ.P. 11.
2
Plaintiffs' appeal requires us to decide whether they adequately alleged injury to competition and whether the district court abused its discretion in declining to exercise jurisdiction over the pendent claims. The NHRA's cross-appeal requires us to decide whether plaintiffs' complaint, considered in its entirety, was frivolous within the meaning of Fed.R.Civ.P. 11. We resolve each of these issues in the negative and affirm both orders of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
3
In their original complaint, plaintiffs sought damages and injunctive relief for alleged violations of both sections one and two of the Sherman Act, 15 U.S.C. Secs. 1, 2 (1982), and for a variety of alleged state law torts. The district court dismissed this complaint but granted plaintiffs leave to amend. The court based its dismissal of the Sherman Act Sec. 1 claim on the absence of sufficiently alleged facts showing injury to competition. The court described the complaint as devoid of allegations that competition suffered injury "aside from the [allegation] that plaintiff[s] ... [were] precluded from the market."
4
In amending their complaint, plaintiffs dropped the Sherman Act Sec. 2 claims but retained the Sherman Act Sec. 1 claim and the pendent state law claims. Only the facts alleged in support of the section one claim together with all reasonable inferences that are favorable to the plaintiffs need now concern us. Plaintiffs allege they are in the business of staging exhibition drag races of their jet-powered trucks and motorcycles at race tracks throughout the United States where drag racing events are held. Plaintiffs conduct their business by selling their exhibition drag racing services to the owners and operators of these race tracks for presentation at specific racing events. A majority of the race tracks where plaintiffs could exhibit their jet-powered vehicles are owned or operated by members of the NHRA. The NHRA, both directly and through K & K and other agents, controls the purchase of exhibition drag racing services at the race tracks owned and operated by its members. The NHRA is the largest sanctioning organization of drag racing events in the United States.
5
Plaintiffs also allege that the NHRA has never licensed jet-powered motorcycles nor permitted their exhibition at NHRA-sanctioned events. For several years preceding 1987, however, the NHRA permitted plaintiffs to operate their jet-powered trucks during NHRA-sanctioned events at speeds up to 175 m.p.h. This permission was modified in January 1987 when the NHRA and K & K banned the exhibition of jet-powered trucks at speeds greater than 55 m.p.h. Thereafter, NHRA member track owners and operators refused to purchase plaintiffs' exhibition drag racing services because operation of jet-powered trucks at or below 55 m.p.h. lacked sufficient spectator appeal. Following 1987, the NHRA banned the exhibition of jet-powered trucks at any speed.
6
Based on these allegations in the amended complaint, plaintiffs repeated their claim that the NHRA, K & K, and NHRA members who own or operate race tracks conspired or agreed to restrain trade unreasonably in violation of Sherman Act Sec. 1. The district court again dismissed the section one claim on the ground that plaintiffs had failed adequately to plead an injury to competition that exceeded mere injury to themselves. The court also declined to exercise pendent jurisdiction over the remaining state law tort claims and ordered the entire complaint dismissed without leave to amend. Finally, the district court denied the NHRA's motion to sanction plaintiffs pursuant to Fed.R.Civ.P. 11 for their filing of the amended complaint. We have jurisdiction to review both orders of the district court under 28 U.S.C. Sec. 1291 (1982).
DISCUSSION
I. Sherman Act Sec. 1 Claim
7
We review de novo the dismissal of plaintiffs' Sherman Act Sec. 1 claim under Fed.R.Civ.P. 12(b)(6). Rutman Wine Co. v. E. & J. Gallo Winery, 829 F.2d 729, 732 (9th Cir.1987). Plaintiffs are entitled to have all of their allegations of material fact accepted as true and construed in a favorable light. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056, 106 S.Ct. 795, 88 L.Ed.2d 773 (1986). We may affirm the dismissal only if proof of no set of facts outlined by the complaint would justify relief. Rutman Wine, 829 F.2d at 732.
8
The parties do not dispute that the rule of reason controls this case. The rule of reason requires a claimant under Sherman Act Sec. 1 initially to establish three elements: "(1) an agreement or conspiracy among two or more persons or distinct business entities; (2) by which the persons or entities intend to harm or restrain competition; and (3) which actually injures competition." Oltz v. St. Peter's Community Hosp., 861 F.2d 1440, 1445 (9th Cir.1988) (citations omitted). After the claimant has established these elements, the factfinder must weigh the anticompetitive effects and the procompetitive effects or business justifications advanced for the challenged restraint to determine whether it is unreasonable. Id. This examination must include a thorough examination into all of the circumstances surrounding the restraint.
9
The district court dismissed plaintiffs' Sherman Act Sec. 1 claim for failure sufficiently to allege an unreasonable restraint of or injury to competition. In order successfully to allege injury to competition, a section one claimant may not merely recite the bare legal conclusion that competition has been restrained unreasonably. Rather, a claimant must, at a minimum, sketch the outline of the antitrust violation with allegations of supporting factual detail. Rutman Wine, 829 F.2d at 736.
10
Ordinarily, the factual support needed to show injury to competition must include proof of the relevant geographic and product markets and demonstration of the restraint's anticompetitive effects within those markets. Thurman Indus., Inc. v. Pay 'N Pak Stores, Inc., 875 F.2d 1369 (9th Cir.1989). Avoiding such market analysis requires proof of actual detrimental competitive effects such as output decreases or price increases. Id. Because plaintiffs failed to allege any actual detrimental competitive effects from the challenged restraint, they had to allege injury to competition within a framework of market analysis.
11
Plaintiffs' complaint describes the relevant market as the market for "exhibition drag racing services." In this market, plaintiffs maintain they compete with all others who own and operate jet-powered vehicles for sales of services to racetrack owners and operators who sponsor events at which spectators pay to observe drag racing. The United States appears to be the geographical dimension of the suggested market, and the staging of exhibition drag races between all varieties of jet-powered vehicles constitutes the product dimension of the market. Plaintiffs allege that defendants, as buyers of exhibition drag racing services, collectively possess a degree of monopsony power--power to affect the price and amount of the services exchanged in the relevant market. Defendants allegedly derive this power because NHRA members own or operate a majority of the tracks where exhibition drag racing is possible and because the NHRA controls its members' purchases of exhibition drag racing services. Because of this collective buying power, plaintiffs allege that the NHRA's ban on jet-powered truck and motorcycle exhibition at NHRA-sanctioned events has effectively blocked their access to the relevant market.
12
Plaintiffs insist that their allegation of market exclusion and resulting loss of income are sufficient to plead an outline of facts showing injury to competition that would enable a factfinder to conclude that defendants violated Sherman Act Sec. 1. We cannot agree. Although proof of plaintiffs' allegations would establish harm to their business interests, such proof would not, standing alone, show injury to competition in the market as a whole.
13
Plaintiffs correctly argue that removal of one or more competing sellers from any market necessarily has an effect on competitive conditions within that market. But removal of one or a few competitors need not equate with injury to competition. "Every agreement concerning trade, every regulation of trade, restrains. To bind, to restrain, is of their very essence." Board of Trade v. United States, 246 U.S. 231, 238, 38 S.Ct. 242, 244, 62 L.Ed. 683 (1918). Only when the restraining force of an agreement or other arrangement affecting trade becomes unreasonably disruptive of market functions such as price setting, resource allocation, market entry, or output designation is a violation of the Sherman Act threatened. See NCAA v. Board of Regents, 468 U.S. 85, 98, 104 S.Ct. 2948, 2958, 82 L.Ed.2d 70 (1984). This limitation on the reach of the Sherman Act is reflected in our repeated injunctions that section one claimants must plead and prove a reduction of competition in the market in general and not mere injury to their own positions as competitors in the market. See, e.g., McGlinchy v. Shell Chem. Co., 845 F.2d 802, 811-12 (9th Cir.1988); Rutman Wine, 829 F.2d at 734; Calculators Haw., Inc. v. Brandt, Inc., 724 F.2d 1332, 1338 (9th Cir.1983); Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir.1983); Cascade Cabinet Co. v. Western Cabinet & Millwork, Inc., 710 F.2d 1366, 1373 (9th Cir.1983).
14
Of course, convergence of injury to a market competitor and injury to competition is possible when the relevant market is both narrow and discrete and the market participants are few. See, e.g., Oltz, 861 F.2d at 1440 (exclusion of a single nurse anesthetist was tantamount to a reduction in competition where a single hospital's service area was the relevant geographic market and the exclusion reduced the number of competing anesthesia service providers from five to four). But none of the factual allegations in plaintiffs' complaint suggests a market in which the removal of the eight plaintiffs from the pool of competing sellers would adversely and unreasonably affect overall competitive conditions. Instead, plaintiffs' complaint is disturbingly silent about the effect of their removal on the owners and operators of various types of jet-powered vehicles still vying for business in the market for exhibition drag racing services. Absent are factual allegations outlining the effect of the NHRA's ban on the price or availability of exhibition drag racing services in the United States; the allocation of work hours, vehicle parts, and other resources crucial to the provision of those services; the availability of opportunity for entry into the market through the use of jet-powered vehicles other than trucks or motorcycles; or any other characteristic or function of a competitive market. As a result, plaintiffs have failed to state a claim under Sherman Act Sec. 1 that would justify any measure of relief. The district court properly granted dismissal of that claim.1
II. Pendent State Law Claims
15
Plaintiffs also request that we reverse the dismissal of their state law tort claims. Plaintiffs have no basis for their request, however, because the Sherman Act claim was the sole federal claim in this lawsuit. A district court's exercise of pendent jurisdiction over state law claims arising from the same set of operative facts that supports a federal claim is a matter of discretion. Mackey v. Pioneer Nat'l Bank, 867 F.2d 520, 523 (9th Cir.1989). When, as here, the court dismisses the federal claim leaving only state claims for resolution, the court should decline jurisdiction over the state claims and dismiss them without prejudice. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 618-19, 98 L.Ed.2d 720 (1988). Having dismissed the Sherman Act claim, the district court appropriately exercised its discretion by declining pendent jurisdiction over the remaining state claims.
III. Rule 11 Sanctions
16
The NHRA seeks a reversal of the district court's order denying the motion to sanction plaintiffs under Fed.R.Civ.P. 11 for their filing of the amended complaint. The NHRA contends that the amended complaint is frivolous because counsel for plaintiffs failed to cure the very defects in the allegations about injury to competition that precipitated dismissal of the Sherman Act Sec. 1 claim in the original complaint. According to the NHRA, such conduct falls below the standard set by Rule 11 and should result in sanctions because sanctions are mandatory when a violation of the rule occurs. See Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1538 (9th Cir.1986). We review de novo the district court's order denying the NHRA's motion for sanctions. Id.
17
Contrary to the NHRA's suggestion, we are not free to concentrate our inquiry under Rule 11 solely on the defective allegation regarding injury to competition. Rule 11 sanctions are inappropriate unless the pleading, motion, or other paper is frivolous when considered as a whole. Community Elec. Serv. v. National Elec. Contractors Ass'n, Inc., 869 F.2d 1235, 1242 (9th Cir.1989). The mere presence of a deficient or even frivolous allegation does not necessarily violate the rule. Murphy v. Business Cards Tomorrow, Inc., 854 F.2d 1202, 1205 (9th Cir.1988). A pleading, motion, or other paper is frivolous within the meaning of Rule 11 if, at the time of filing, a competent attorney after a reasonable investigation could not have determined that a well-founded basis in fact and in law or a good faith argument for extension of law supported the filing. Zaldivar v. City of Los Angeles, 780 F.2d 823, 830 (9th Cir.1986). Viewing plaintiffs' inadequate allegation of injury to competition in the context of their entire Sherman Act Sec. 1 claim, we conclude that the amended complaint satisfies the standard of Rule 11.
18
The potential for violating the antitrust laws through a concerted refusal to deal with market participants is well established in antitrust law. See, e.g., Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). Plaintiffs' Sherman Act Sec. 1 claim shares some of the features common to such a claim. Reduced to its essence, plaintiffs' theory is that a group of buyers with power in the relevant market banned the two types of vehicles used by plaintiffs, precluding plaintiffs from meaningful participation in the market. Plaintiffs' theory deviates from the paradigm of an unlawful concerted refusal to deal because none of the alleged conspirators was in direct competition with any of the class of excluded sellers. Plaintiffs' theory is also unusual because it relies on the consolidation of market power in the buyers rather than in the sellers. But neither of these unique characteristics would itself preclude recovery. Sherman Act Sec. 1 can apply even though none of the conspirators is in direct competition with the market participants who are harmed by the conspiracy. See Paramount Famous Lasky Corp. v. United States, 282 U.S. 30, 51 S.Ct. 42, 75 L.Ed. 145 (1930) (conspiracy by film distributors to force film exhibitors into submitting to arbitration agreements). Moreover, the Sherman Act is implicated by both monopolistic and monopsonistic market concentrations. Cf., American Tobacco Co. v. United States, 328 U.S. 781, 801-02, 66 S.Ct. 1125, 1135, 90 L.Ed. 1575 (1946) (tobacco companies' power as buyers in the tobacco supply market used to find antitrust violations). Plaintiffs' theory of antitrust liability, although unusual, is not completely devoid of merit. Thus, the district court properly concluded that the amended complaint, as a whole, satisfies the standard of Rule 11.
CONCLUSION
19
We affirm the order dismissing plaintiffs' amended complaint. Plaintiffs failed to state a claim under Sherman Act Sec. 1 by inadequately pleading injury to competition in the market as a whole. Because that claim was the only federal claim, the district court appropriately exercised its discretion in declining pendent jurisdiction over the state law claims. We also affirm the order denying the NHRA's motion to sanction plaintiffs under Fed.R.Civ.P. 11, because, considered in its entirety, plaintiffs' amended complaint cannot be regarded as frivolous.
20
AFFIRMED.
1
Plaintiffs insist that our inquiry into dismissal of the Sherman Act Sec. 1 claim should focus on the five factor test for antitrust standing outlined by the Supreme Court in Associated Gen. Contractors of Cal., Inc. v. California State Council of Carpenters, 459 U.S. 519, 545, 103 S.Ct. 897, 912, 74 L.Ed.2d 723 (1983). The focus of the standing inquiry is whether a particular plaintiff is a proper party to seek redress under Clayton Act Sec. 4, 15 U.S.C. Sec. 15(a) (1982), for a violation of the antitrust laws. Exhibitors' Serv., Inc. v. American Multi-Cinema, Inc., 788 F.2d 574, 577-78 (9th Cir.1986). However, whether plaintiffs would meet the five-factor standing test of Associated Gen. Contractors is irrelevant to this appeal. By holding that injury to competition was inadequately pleaded, the district court determined that no violation of the antitrust laws was stated. Thus, no party could sue on the basis of the allegations in the amended complaint
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Case: 12-31160 Document: 00512291504 Page: 1 Date Filed: 06/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2013
No. 12-31160
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL DAVID PETERS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:12-CR-54-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Michael David Peters entered a conditional guilty
plea to a charge of failure to register as a sex offender under the Sex Offender
Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). Prior to his
plea, Peters moved unsuccessfully to dismiss this count of the indictment based
on his assertion that Congress violated the non-delegation doctrine by giving the
Attorney General the power to decide whether the SORNA applied retroactively.
Peters’s conditional plea reserved his right to bring this issue on appeal.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-31160 Document: 00512291504 Page: 2 Date Filed: 06/28/2013
No. 12-31160
In United States v. Johnson, 632 F.3d 912 (5th Cir. 2011), the defendant
raised an identical challenge to the SORNA. Reviewing de novo, we noted that
the non-delegation doctrine argument had been rejected in United States v.
Whaley, 577 F.3d 254, 260-64 (5th Cir. 2009). Johnson, 632 F.3d at 917. Peters
recognizes that his argument is foreclosed but presents the issue to preserve it
for further appellate review in light of the dissent in Reynolds v. United States,
132 S.Ct. 975 (2012). As Peters concedes, we are bound by Johnson and Whaley.
See United States v. Short, 181 F.3d 620, 624 (5th Cir. 1999) (noting that a panel
is bound by the precedent of previous panels absent an intervening Supreme
Court case explicitly or implicitly overruling the prior precedent).
AFFIRMED.
2
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2007
No. 07-40057
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
PEDRO SALAZAR-GARCIA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:06-CR-810-1
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Pedro Salazar-Garcia was convicted of illegal reentry into the United
States after having been deported and was sentenced to serve 70 months in
prison. He contends that our rulings giving a presumption of reasonableness to
guidelines sentences effectively reinstate mandatory guidelines sentencing and
render his sentence unreasonable as a matter of law. Salazar-Garcia’s
arguments concerning this court’s presumption of reasonableness are foreclosed
*
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.
No. 07-40057
by both this court’s caselaw, see United States v. Alonzo, 435 F.3d 551, 554 (5th
Cir. 2006), and the Supreme Court’s decision in Rita v. United States, 127 S. Ct.
2456, 2462-66 (2007).
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Salazar-Garcia
challenges the constitutionality of 8 U.S.C. § 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This court has held that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
The judgment of the district court is AFFIRMED.
2
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743 N.W.2d 249 (2007)
STATE of Minnesota, Respondent,
v.
Dirk Lionel GOELZ, Appellant.
No. A06-2424.
Supreme Court of Minnesota.
December 27, 2007.
*252 David John Risk, Caplan Law Firm, PA, Minneapolis, MN, for Appellant.
Lori Swanson, Attorney General, Peter Reed Marker, Asst. Attorney General, St. Paul, MN, David Jon Torgelson, Renville County Attorney, Olivia, MN, for Respondent.
Heard, considered, and decided by the court en banc.
OPINION
MEYER, Justice.
A Renville County jury found appellant Dirk Lionel Goelz guilty of first-degree domestic abuse murder and first-degree manslaughter (heat-of-passion) for the shooting death of his girlfriend, Kerri Robinson. The district court entered judgment on the domestic abuse murder conviction and sentenced Goelz to life in prison. In this direct appeal we are asked to determine the admissibility of certain evidence to prove the existence of a "past pattern of domestic abuse" under Minn. Stat. § 609.185(a)(6) (2006). Goelz argues that: (1) the district court abused its discretion by admitting evidence of Goelz's ex-wife obtaining an order for protection (OFP) and Goelz's violation of that order; (2) the district court committed plain error by admitting evidence of Goelz's "faked suicide"; and (3) the district court erred in refusing to dismiss the indictment. We affirm Goelz's conviction.
On January 30, 2006, Goelz shot and killed his girlfriend, Kerri Robinson, with a shotgun in Goelz's home. Kerri and two of her children had been living with Goelz since September 2005. Kerri planned to move that day from Goelz's house to another house she had rented. That afternoon Kerri was waiting at Goelz's house for her son to return home from school. According to Goelz, he and Kerri became involved in an argument and she threatened to publicly accuse him of molesting a teenage girl three days earlier while Kerri and Goelz were attending a party. At this point, Goelz retrieved a shotgun from his bedroom, loaded it with three shells, left the bedroom, and fired the gun at Kerri as she stood at the steps leading to the basement. As Kerri retreated into the basement, Goelz followed her and fired the gun two more times. Goelz then left the basement, went upstairs, and attempted to take *253 his own life with the shotgun, but was unsuccessful. Kerri died as a result of gunshot wounds.
Goelz then drove to his brother's house and told him that he had shot Kerri. After a brief conversation, in which Goelz told his brother he planned to commit suicide, Goelz grabbed a handgun that his brother had on the counter in his kitchen, left the house, and drove away. His vehicle ran out of gas near the home of his friends, Jim and Paula Busack. He walked to their house and told them that he had shot Kerri. The Busacks convinced Goelz to turn himself over to the authorities, and Paula Busack then drove Goelz to the Renville County Law Enforcement Center. Paula went in and told the authorities about the shooting. While outside, Goelz shot himself once in the chest with the handgun he had taken from his brother's house. Police officers apprehended Goelz shortly thereafter.
On January 31, 2006, the State charged Goelz with intentional murder in the second degree in violation of Minn.Stat. § 609.19, subd. 1(1) (2006). The State empanelled a grand jury in March 2006. The grand jury indicted Goelz for murder in the first degree (premeditated) under Minn.Stat. § 609.185(a)(1) (2006), murder in the first degree (domestic abuse) under Minn.Stat. § 609.185(a)(6), and murder in the second degree (intentional) under Minn.Stat. §§ 609.19, subd. 1(1), and 609.11, subd. 5(a) (2006).
At trial, the State offered evidence that Goelz had committed acts of domestic abuse against Kerri, Kerri's 15-year-old daughter, Cassandra Robinson, and his ex-wife, Denise Goelz. The evidence of domestic abuse against Kerri and Cassandra consisted of the following testimony. Cassandra testified that in the winter of 2005 Goelz and Kerri began arguing in the front seat of Goelz's pickup truck while driving Cassandra home from her friend's house. Cassandra saw Goelz "punch" Kerri in her arm, after which both Cassandra and Kerri got out of the vehicle and walked to a nearby house. Goelz testified he nudged Kerri with his elbow as a reaction to being slapped and that he did not "punch" her.
Cassandra testified that at a party celebrating Kerri's birthday in mid-January 2006, Goelz threatened to kill Kerri. Upon hearing Goelz threaten to kill her mother, Cassandra verbally confronted him. Cassandra testified that when she walked away from that argument, Goelz hit her in the back of the head. Two other guests at the party, Benjamin O'Brien and Cindy Weber, testified that they overheard someone get slapped during the argument between Cassandra and Goelz. Though Cassandra testified she was not hurt, she said she was frightened because of Goelz's earlier threat to kill. Goelz denied striking Cassandra.
Leann McMurtrey, a friend of Kerri's, testified to overhearing Goelz threaten to kill Kerri during a telephone conversation between Leann and Kerri. McMurtrey also overheard Goelz threaten to "beat [Kerri] and [her] kids to a bloody pulp" if Kerri called the police. Goelz denied ever threatening Kerri.
There was also evidence that Goelz committed acts of domestic abuse against his ex-wife, Denise Goelz. The couple was married from 1997 through 1999. Denise testified that in 1998, shortly after their marriage, Goelz hit Denise with his hand, leaving bruises on her face and arms. Goelz denied this incident.
Denise testified that in the winter of 1999, during an argument in the couple's kitchen, Goelz threw her to the ground, choked her, and threatened to kill her. During the same incident, Denise testified that Goelz threatened to shoot her and her *254 children. Goelz denied that he was the aggressor and claimed that he placed his arm around Denise's neck to protect himself because Denise was threatening him with a knife. Following this incident, Denise obtained an OFP. At the hearing on the OFP, no testimony was given because Goelz agreed to the order. The OFP did not prevent contact between Goelz and Denise, but ordered Goelz to commit no acts of domestic abuse against Denise or her children and to attend anger management courses. At Goelz's murder trial, the district court admitted the OFP over Goelz's objection.
Denise testified to a third incident of domestic abuse occurring in March 1999 when Goelz hit her in the face with his fist, causing a bruise. Denise briefly testified that when this happened Goelz was charged with a crime for violating the OFP. Goelz denied striking Denise or violating the OFP.
The State offered evidence, without objection, that Goelz had faked a suicide attempt during his marriage to Denise. Denise testified that once during the marriage Goelz went outside to his truck with a gun, shot the gun into the air, and then slumped over the steering wheel unhurt. Goelz testified that the incident followed an argument he had with Denise. At the time he felt like committing suicide, but could not bring himself to do it. On cross-examination Goelz explained, "I imagine I wanted her to feel bad because she made me feel bad."
Goelz did not deny having killed Kerri. He testified that Kerri's threat to make public an untrue story that he molested a teenage girl provoked him, and that he lost control of his actions. Goelz testified that while he was retrieving the gun and firing it at Kerri, he "went delirious" and "had no control." Again, Goelz denied each of the incidents of a past pattern of domestic abuse.
On September 29, 2006, the jury convicted Goelz of first-degree manslaughter (heat-of-passion) in violation of Minn.Stat. § 609.20(1) (2006), and first-degree murder (domestic abuse) in violation of Minn.Stat. § 609.185(a)(6). The district court entered judgment on the domestic abuse murder conviction, and sentenced Goelz to life in prison.
On appeal Goelz argues (1) that the district court abused its discretion by admitting testimony about the OFP, its violation, and the order itself; (2) that admitting the "faked suicide" evidence was plain error; and (3) that the district court erred in denying his motion to dismiss the indictment.
I.
Goelz objected to the introduction of the OFP. "Rulings on evidentiary matters rest within the sound discretion of the trial court, and we will not reverse such evidentiary rulings absent a clear abuse of discretion." State v. Sanchez-Diaz, 683 N.W.2d 824, 835 (Minn.2004) (quoting State v. Roman Nose, 667 N.W.2d 386, 392 (Minn.2003)).
A.
Goelz argues that allowing the OFP evidence at trial was an abuse of discretion because neither issuance of an OFP nor violation of the OFP is an enumerated offense that makes up domestic abuse under section 609.185(c)(1) (2006). The State concedes that whether an OFP exists or is violated is not conclusive evidence of an incident of domestic abuse, because the fact that a court issued an OFP is not an enumerated offense under the plain language of section 609.185. Nevertheless, the State argues that the OFP evidence becomes relevant because it supported *255 Denise Goelz's testimony that appellant assaulted and threatened her. In other words, the fact that an OFP was issued after the assault supports the existence of an incident of domestic abuse.
A victim of domestic abuse may file a petition for an OFP under Minn.Stat. § 518B.01, subd. 4 (2006). "Domestic abuse" is defined as
(1) physical harm, bodily injury, or assault; (2) the infliction of fear of imminent physical harm, bodily injury, or assault; or (3) terroristic threats, within the meaning of section 609.713, subdivision 1; or criminal sexual conduct, within the meaning of section 609.342, 609.343, 609.344, 609.345, or 609.3451; or interference with an emergency call within the meaning of section 609.78, subdivision 2.
Id. subd. 2(a) (2006). Under section 518B.01, subd. 2(a), these actions are domestic abuse when "committed against a family or household member by a family or household member" as subdivision 2(b) defines "family or household member." Id. subd. 2 (2006). Accompanying the petition for an OFP, a victim of domestic abuse must file an affidavit, made under oath, describing the acts of domestic abuse committed. Id. subd. 4(b) ("A petition for relief shall allege the existence of domestic abuse, and shall be accompanied by an affidavit made under oath stating the specific facts and circumstances from which relief is sought.").
Domestic abuse murder requires the State to prove that the defendant "engaged in a past pattern of domestic abuse upon the victim or upon another family or household member." Minn.Stat. § 609.185(a)(6). For the purposes of domestic abuse murder, the definition of "domestic abuse" includes acts that constitute a violation of a limited number of criminal statutes prohibiting such conduct as assault, criminal sexual conduct, and terroristic threats. See Minn.Stat. § 609.185(c)(1) (2006). The statute does not require proof of domestic abuse convictions. State v. Cross, 577 N.W.2d 721, 727 (Minn.1998). The State must prove the existence of the past pattern of domestic abuse beyond a reasonable doubt, but the individual acts need not be established by proof beyond a reasonable doubt. Sanchez-Diaz, 683 N.W.2d at 832.
We have not yet addressed the admissibility of an OFP issued under Minn.Stat. § 518B.01 to prove a past pattern of domestic abuse, where the petitioner who was granted the OFP is not the murder victim and is therefore available to testify at trial. Our prior decisions in this area have considered hearsay and confrontation objections to the introduction of murder victims' affidavits filed in support of an OFP. See State v. Grube, 531 N.W.2d 484, 489-90 (Minn.1995) (determining, under the pre-Crawford standard, that affidavits in support of murder victim's OFP were sufficiently trustworthy to avoid violation of the Confrontation Clause); State v. Bradford, 618 N.W.2d 782, 797-98 (Minn. 2000) (concluding that the record provided too little information to determine whether affidavits in support of an OFP were sufficiently trustworthy to satisfy hearsay rules, but that any error made in the admission of the affidavits at trial was harmless). Unlike in Grube and Bradford, the State did not offer the affidavit Denise made in support of the OFP. Rather, Denise testified at trial about the acts of domestic abuse underlying the OFP. There was no objection to her testimony, but there was vigorous objection to admission of the order itself.
Goelz argues that the district court abused its discretion by admitting evidence of an OFP because neither issuance of an OFP nor violation of the OFP is an enumerated *256 offense that makes up domestic abuse under section 609.185(c)(1). The State agrees that an OFP is not, by itself, conclusive evidence of an incident of domestic abuse because the issuance of an OFP or violation of an OFP is not an enumerated offense under the definition of domestic abuse. Nevertheless, the State argues that the OFP evidence was relevant on other groundsit supported and corroborated Denise Goelz's testimony that appellant assaulted and threatened her. In other words, the fact that an OFP was issued after the assault lends credibility to the testimony of Denise Goelz and, therefore, is relevant to prove the existence of an incident of domestic abuse.
We have carefully examined the contents of the order and make the following observations. The order contains none of the allegations Denise made in her affidavit. The order contains no findings that domestic abuse occurred. The order contains an unchecked box where the issuing court could have indicated that "[a]cts of domestic abuse have occurred" and then several blank lines for a narrative description of the acts of domestic abuse. Instead, the issuing court checked a box next to which is the following sentence: "Respondent [Goelz] does not object to an Order for Protection and understands that the order will be enforced as if there was an admission or finding of domestic abuse." (Emphasis added.) Because Goelz did not object to the order, no testimony was given. The court checked two other boxes ordering Goelz to "not commit acts of domestic abuse against [Denise] or the child[ren]" and to participate in an anger management program.
The evidentiary value of the order was weak. It describes none of Denise's allegations that, if provided, would tend to be probative on Denise's veracity; i.e., if her testimony at Goelz's trial "matched" her allegations in the OFP, then the OFP would lend credibility to her story. It contains no findings by the court of any act of domestic abuse by Goelz. Importantly, it contains no admissions by Goelz that he engaged in any act of domestic abuse.
The potential for the jury to be improperly influenced by the order is considerable. The State argued in closing that the acts of domestic abuse toward Denise were established because "[s]he obtained an Order For Protection. She went to court * * *." The implication in the argument is that because the order issued, the allegations were true. In fact the order does nothing more than acknowledge that Goelz chose to resolve the dispute by agreement. On these facts, we conclude that the probative value of the OFP was so weak and the potential for the OFP to improperly influence the jury was so great that it was an abuse of discretion to admit the order. We hold that evidence of the OFP was inadmissible to corroborate Denise's testimony about the underlying assaults and threats because the order contained none of Denise's allegations, Goelz did not admit to those allegations, and the order itself indicated only that he did not object to the order and agreed to its enforcement.
B.
We next consider whether the error in admitting the OFP was harmless. We must consider whether "there is a reasonable possibility that the wrongfully admitted evidence significantly affected the verdict." State v. Asfeld, 662 N.W.2d 534, 544 (Minn.2003) (quoting State v. Stewart, 643 N.W.2d 281, 298 (Minn.2002), and citing cases indicating that this standard applies where the error does not affect a defendant's constitutional rights).
Goelz argues that the error in admitting the OFP was not harmless because the evidence of a pattern of domestic abuse *257 was "overwhelmingly weak," the district court's limiting instructions drew special attention to the OFP evidence, and the State argued the evidence to the jury in closing. The State argues that the other evidence of domestic abuse was stronger than Goelz suggests and notes that the State "briefly referenced" the OFP in closing argument.
We conclude that the district court's error in admitting the OFP did not significantly affect the verdict for the following reasons.[1] First, the district court instructed the jury that they were to consider the evidence admitted through Denise only for the question of whether there was a past pattern of domestic abuse and that the appellant was not being tried for and could not be convicted of any offense other than those charged. Goelz argues that by reminding the jury of the limiting instruction upon the introduction of the OFP, the district court keyed the jury's attention to a specific piece of evidence that was inadmissible to prove a past pattern of domestic abuse. But the court's instruction and its reminder to the jury were both addressed to all the evidence admitted through Denise. Such a limiting instruction is aimed at reducing potentially unfair prejudice in domestic abuse murder cases. See State v. Laine, 715 N.W.2d 425, 433 (Minn.2006) (rejecting argument that a similar past pattern of domestic abuse instruction cautioning jurors that a defendant may not be tried or convicted for any offense other than those charged impliedly eliminated the presumption of innocence).
Second, Goelz's characterization of the other evidence of a pattern of domestic abuse as "overwhelmingly weak" is an overstatement. Goelz argues that the State "produced no evidence of violent assaults." Although the evidence of domestic abuse against the murder victim, Kerri, was limited to the elbow-jabbing incident in Goelz's truck and several threats on Kerri's life, a past pattern of domestic abuse can be established by incidents that involve individuals other than the murder victim. See Minn.Stat. § 518B.01, subd. 2 (defining "family or household members" to include a former spouse); Asfeld, 662 N.W.2d at 541 ("[I]n stating that the past pattern of abuse must have been committed `upon the victim or upon another family or household member,' the legislature creates a parallel between the victim as one `family or household member' and the prior subject of abuse as another `family or household member.'"). Contrary to Goelz's assertion that there was no evidence of violent acts, the State presented evidence that Goelz committed acts of domestic abuse against Cassandra, Denise, and Kerri, all of whom meet the statutory definition of family or household member.
Third, in comparison to the presentation of Goelz's acts of domestic abuse, the evidence of the OFP's existence and the fact that it was violated made up a small portion of the State's evidence establishing a past pattern of domestic abuse. And finally, the State made only limited reference to the OFP evidence in closing when it argued that the fact Denise obtained an OFP corroborated her testimony because she sought outside intervention. The balance of the State's closing argument regarding a past pattern of domestic abuse focused on the testimony about Goelz's acts of assaulting and threatening Denise, Cassandra, and Kerri. For these reasons, we hold that there is no reasonable possibility *258 that the introduction of the OFP significantly affected the verdict, and thus its admittance was harmless error.
II.
We turn now to Goelz's argument that the district court committed plain error when it admitted evidence of his "faked suicide."
Not only did Goelz fail to object to this testimony, he affirmatively developed and expanded the evidence of his faked suicide during his own testimony. Although defense counsel's opening statement did not refer to the faked suicide incident, his opening statement did refer to Goelz's alleged attempted to kill himself immediately following the murder in this case.
The invited error doctrine prevents a party from asserting an error on appeal that he invited or could have prevented in the court below. Krenik v. Westerman, 201 Minn. 255, 262, 275 N.W. 849, 852 (1937). This court has held that a defendant cannot on appeal raise his own trial strategy as a basis for reversal. State v. Helenbolt, 334 N.W.2d 400, 407 (Minn.1983). The invited error doctrine, however, does not apply to plain errors. State v. Goodloe, 718 N.W.2d 413, 424 (Minn.2006) (citing State v. Gisege, 561 N.W.2d 152, 158 n. 5 (Minn.1997)). To establish a plain error a defendant must demonstrate that (1) there was an error, (2) it was plain, and (3) it affected substantial rights. State v. Reed, 737 N.W.2d 572, 583 (Minn.2007). The defendant generally bears the burden of persuasion with respect to the third factor. Id. at 583-84. If a defendant fails to establish that the claimed error affected his substantial rights, we need not consider the other factors. State v. Manley, 664 N.W.2d 275, 283 (Minn.2003). On the other hand, if a defendant establishes all three factors, we then consider the fourth factor: whether the error should be addressed "to ensure fairness and the integrity of the judicial proceedings." Reed, 737 N.W.2d at 583 (quoting State v. Griller, 583 N.W.2d 736, 740 (Minn.1998)).
Testifying in his own defense, Goelz explained that he did not fake a suicide, but rather that he sincerely felt like committing suicide but could not carry through with it. This testimony followed direct examination by Goelz's attorney about Goelz's experience as a member of the Army Reserves serving in Iraq and the effect of that experience on his mental well-being. Then, in its closing argument, the defense highlighted the effect of Goelz's military experience on his state of mind and mentioned his faked suicide as part of the "surrounding circumstances" of the manner in which Kerri was killed. This questioning and the closing argument formed an affirmative trial strategy for a heat-of-passion defense. Thus, the defense chose not to object to the testimony about the faked suicide, affirmatively developed testimony about it on direct examination, and then argued in closing that it supported a manslaughter defense.
The admission of the faked suicide evidence does not fall within the plain error exception to the invited error doctrine, because based on this record, Goelz has failed to establish that his substantial rights were violated by the admission of the faked suicide evidence. We conclude that Goelz waived any error relating to the admission of the faked suicide attempt because he invited this error and he failed to establish that the error fell within the plain error exception to the invited error doctrine.
III.
Finally, we address Goelz's argument that the presentation of inadmissible *259 evidence to the grand jury required dismissal of the indictment.
[A]n indictment returned by a legally constituted and unbiased grand jury, * * * if valid on its face, is enough to call for trial of the charge on its merits. The general rule that emerges is that a presumption of regularity attaches to the indictment, and it is a rare case where an indictment will be invalidated.
State v. Inthavong, 402 N.W.2d 799 (Minn. 1987) (citations and quotation marks omitted). "An indictment shall be based on evidence that would be admissible at trial," Minn. R.Crim. P. 18.06, subd. 1, but "[r]eception of inadmissible evidence shall not be grounds for dismissal of an indictment if there is sufficient admissible evidence to support the indictment." Minn. R.Crim. P. 18.06, subd. 2. The already heavy burden a criminal defendant bears in seeking to overturn an indictment is "made even heavier when * * * the defendant has been found guilty beyond a reasonable doubt following a fair trial." State v. Greenleaf, 591 N.W.2d 488, 498 (Minn. 1999).
Goelz argues: (1) that the State presented inadmissible evidence of the OFP; (2) that the State presented inadmissible character evidence through Kerri's mother, Janice Robinson; (3) that the admissible evidence presented to the grand jury on a past pattern of domestic abuse was weak; and (4) that the State's attorney gave improper instructions to the grand jury. The State argues: (1) that OFP evidence was admissible, and if not that there was sufficient admissible evidence to support a probable cause determination on the domestic abuse murder charge; (2) that Janice Robinson's testimony was not inadmissible character evidence; and (3) that any deficiency in the grand jury instructions was not so egregious as to have compromised the grand jury process.
Janice Robinson testified during the grand jury proceedings that on some occasions when she called her daughter she could hear Goelz screaming at Kerri. She also stated that Goelz had no feelings and did not like Kerri's children. She testified that Goelz had been convicted of driving while intoxicated and that Kerri told her that she and Goelz were having significant relationship problems. Even if we assume that this evidence was inadmissible, there remained ample evidence at the grand jury proceedings to support the probable cause determination that Goelz engaged in a past pattern of domestic abuse. The other evidence of a past pattern of domestic abuse presented to the grand jury mirrored that testified to at trial by Cassandra, Denise, Benjamin O'Brien, Cindy Weber, and Leann McMurtrey. We also note that because it was harmless error to admit the OFP evidence at trial, presenting that evidence to the grand jury did not compromise the probable cause determination. At trial the evidence established for a petit jury that the State had proved beyond a reasonable doubt a past pattern of domestic abuse. Based on the record of the grand jury proceedings, we cannot say that Goelz has met the even heavier burden required to overturn an indictment after a defendant has been convicted beyond a reasonable doubt at a fair trial. See Greenleaf, 591 N.W.2d at 498.
We now turn to Goelz's argument that the State's attorney gave improper instructions to the grand jury. Instructions to a grand jury are not required to contain the same level of detail as those delivered to a petit jury in a criminal trial, and erroneous instructions will only invalidate an indictment upon a showing that the jury instructions were "so egregiously misleading or deficient that the fundamental integrity of the indictment process itself *260 is compromised." Inthavong, 402 N.W.2d at 802. The State instructed the jury on the definition of hearsay, but did not mention hearsay's general inadmissibility other than to say that hearsay was not admissible except in limited circumstances. The State also failed to provide an instruction on the general inadmissibility of character evidence. Goelz fails to demonstrate how these instructions were "so egregiously misleading or deficient that the fundamental integrity of the indictment process itself [was] compromised." See id.
The State also read to the grand jury the jury instruction for the domestic abuse murder statute contained in 10 Minn. Dist. Judges Ass'n, Minnesota PracticeJury Instruction Guides, Criminal, CRIMJIG 11.15 (5th ed.2007). It is not clear how reading this instruction to a grand jury would be a misstatement of the law, let alone compromise the integrity of the grand jury proceedings. We hold that Goelz has failed to meet the heavy burden required to overturn a grand jury indictment after his conviction beyond a reasonable doubt. We also hold that Goelz has failed to demonstrate how the State's instructions on the inadmissibility of hearsay, the lack of an instruction on the inadmissibility of character evidence, and the reading of the CRIMJIG 11.15 instruction for domestic abuse murder compromised the integrity of the grand jury process.
Affirmed.
ANDERSON, RUSSELL A., Chief Justice (concurring).
I concur in the affirmance of Goelz's conviction but write separately because I believe the OFP was admissible to impeach Goelz's claims of self-defense and peaceful character and to repair the credibility of the impeached State witness. At trial, Goelz's former spouse testified about incidents of domestic abuse that occurred during their marriage. She described one incident during an argument, after they had been drinking, when she was in the kitchen cooking. Goelz threw the food around the kitchen, tackled her as she was trying to flee, and choked her. He said he was going to kill her, snap her neck, and shoot her and her children and anyone who had ever crossed his path. She testified that this incident led to the OFP that ordered Goelz to participate in an anger management program.
In testifying on his own behalf, Goelz denied the incidents of domestic abuse described by his former spouse during direct examination. With regard to the OFP incident, he said that they were in the kitchen arguing when she started throwing glasses around. He testified that she grabbed a knife from the kitchen sink, waved it around and stabbed a stereo speaker. After that, he "grabbed a hold of her, kind of like around her neck and tried to subdue her to take the knife away from her so [he] didn't get stabbed." He testified that he agreed to the OFP, telling the judge "that's fine." Goelz called several character witnesses who testified as to his peaceful and truthful disposition and also as to the abusive and untruthful disposition of his former spouse.
I believe the foregoing permitted admission of the OFP to show that it was Goelz's former spouse who was the petitioner on that document and that it was Goelz, and not his former spouse, who had the anger management issues. See 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:85 (3d ed.2007) (explaining impeachment by contradiction). Exclusion of the OFP, in my view, would have left the jury with an incomplete and perhaps even distorted picture of what had occurred. Further, the OFP evidence had a bearing on a matter of substance. That *261 incident was part of a pattern of domestic violence that ultimately ended in the death of Goelz's girlfriend, with Goelz shooting her as she retreated to the basement, following her downstairs and shooting her again as she crouched under the pool table.
As for the admission of the evidence in the State's case-in-chief, I believe that was not inappropriate. Ordinarily impeachment is accomplished on cross-examination or in rebuttal. But courts also "disfavor the deliberate tactic of `lying in the weeds' in anticipation of an ambush, and it is within a trial court's discretion to exclude rebuttal if it concludes that the prosecution has acted unfairly." United States v. Calvert, 523 F.2d 895, 912 (8th Cir.1975). Here, in his opening statement, defense counsel outlined Goelz's defense, including evidence expected to rebut the State's OFP evidence. Under these circumstances, I do not believe the admission of the OFP through the State's witness amounted to improper bolstering. While I do share the concern that past-acts evidence warrants careful regulation under Minn. R. Evid. 403, given the defense in this trial, I would conclude that the admission of the OFP was not an abuse of discretion.
PAGE, Justice (concurring).
I join in the concurrence of Chief Justice RUSSELL A. ANDERSON.
GILDEA, Justice (concurring).
I join in the concurrence of Chief Justice RUSSELL A. ANDERSON.
NOTES
[1] We need not address the admissibility of Denise's brief testimony that Goelz subsequently violated the OFP because we conclude that any error that may exist in allowing that testimony was harmless. It is also worth noting that Goelz did not specifically object to this testimony at trial.
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584 F.2d 1175
3 Fed. R. Evid. Serv. 240
UNITED STATES of America, Appellee,v.Jose Edgar LOPEZ, Appellant.
No. 742, Docket 77-1447.
United States Court of Appeals,Second Circuit.
Argued March 7, 1978.Decided Sept. 13, 1978.
Robert J. Rapoport, Syosset, N. Y., for appellant.
Richard L. Huffman, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., Eastern District of New York, Mary McGowan Davis, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before OAKES, Circuit Judge, WYZANSKI* and NEAHER,** District Judges.
OAKES, Circuit Judge:
1
Jose Edgar Lopez appeals from a judgment of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, convicting appellant, after a jury trial, of conspiring to import and to possess with intent to distribute a quantity of cocaine, 21 U.S.C. § 846.1
2
Appellant argues that there was insufficient evidence to support the verdict against him, that the prosecutor's summation violated appellant's Fifth Amendment right against self-incrimination, and that the district court failed properly to instruct the jury that no inference adverse to appellant could be drawn from his failure to testify.
3
The sufficiency of the evidence is beyond dispute. The Government's primary witness was a coconspirator, Arturo Romero, was who arrested at John F. Kennedy International Airport with 328 grams of cocaine. He testified that he had met appellant on a previous visit from Venezuela, and that they subsequently discussed the possibility of importing cocaine. He further revealed that appellant telephoned him in Venezuela to advise that a man called Caesar would contact Romero concerning the cocaine which Romero was to bring into the United States. Caesar contacted Romero, gave him the cocaine and made arrangements for Romero's trip to New York. After Romero was apprehended at the airport, he agreed to assist law enforcement authorities. He telephoned appellant at the latter's home, dialing the telephone number by memory, and the conversation was recorded by Government agents. The dialogue, without expressly mentioning the subject of narcotics, consisted of a series of inquiries by appellant seeking assurance that everything had gone well.2 They agreed to meet in Manhattan at 55th Street and Seventh Avenue. The meeting took place under surveillance, after appellant took considerable care to make certain that no one was following Romero, who had been given a dummy load of narcotics by the agents. Appellant was arrested as he and Romero were leaving a coffee shop at the northeast corner of the above-mentioned streets. Following appellant's arrest, his address book, which contained Romero's telephone number and address in Venezuela, was seized. After advice as to his constitutional rights he made two false exculpatory statements, denying that he knew Romero and that he had been a party to the taped telephone call. The defense did not offer any evidence to rebut the Government's version of the events. Clearly, the evidence was sufficient to justify the jury's verdict of guilt.
4
Lopez complains that three statements of the prosecutor during summation amounted to indirect commentary on appellant's failure to testify. The first two statements implied that the telephone conversation between Romero and appellant, recorded at the airport, was susceptible of only one interpretation discussion of the cocaine transaction. The prosecutor, in initial summation, stated:
5
I'd like you to read that translation, which you'll have in the jury room again. I want to hear I'm interested in hearing in summation (defense counsel's) explanation of it. No names at the beginning. "Who am I talking to? With a friend. It's me. Yes, I already know. Did it go well? It went well."
6
During rebuttal the prosecutor again alluded to the telephone call as follows:
7
Gee, you know, that phone call I asked, I thought maybe there would be some explanations (Sic ) for the languages (Sic ) in the phone call. If there was some, I guess I must have missed it.
8
No objection was made to either of these references to the telephone call, and no curative instruction or charge was sought. Thus, reversal is proper only if the prosecutor's comments were so prejudicial as to constitute plain error. See United States v. Briggs, 457 F.2d 908, 912 (2d Cir.), Cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1972).
9
We hold that the jury would not "naturally and necessarily," See United States ex rel. Leak v. Follette, 418 F.2d 1266, 1268-69 (2d Cir. 1969), Cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), Cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977), interpret the prosecutor's remarks in this case as a comment on appellant's failure to testify. Rather, these statements were simply comments on the weakness of the defense case, well within permissible bounds of advocacy. See United States v. Rodriguez, 556 F.2d 638, 641-42 (2d Cir. 1977) (prosecutor may tell jury that certain factual evidence is "uncontradicted" and that "nothing in the record places the proffered evidence in doubt"), Cert. denied, 434 U.S. 1061, 98 S.Ct. 1233, 55 L.Ed.2d 762 (1978); Cf. United States v. Bubar, supra, 567 F.2d at 199-200 (prosecutor's reference in rebuttal to defendants' failure to "explain" or "refute" certain evidence in response to defendants' counsel's arguments permissible).
10
Appellant also objects to the prosecutor's suggestion in initial summation that if appellant had had a steady job for four years, as his attorney claimed, the work records would have been produced.3 This reference was very likely not improper in view of the fact that on cross-examination of Mr. Romero defense counsel stressed that appellant had worked as a clerk for a given concern for four years. See United States v. Bubar, supra, 567 F.2d at 199-200; United States v. Rodriguez, supra, 556 F.2d at 641-42; Cf. United States v. Floyd, 555 F.2d 45, 47 (2d Cir. 1977) (prosecutor's reference in rebuttal summation to defendant's power to subpoena witnesses, in response to defense summations referring to the Government's failure to produce certain witnesses did not deprive appellants of their right to rely on the prosecution's burden of proof), Cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977). In any event, upon defense counsel's objection, the court instructed the jury to disregard the comment and also instructed the jury three times that appellant was not required to prove his innocence or to submit evidence on his own behalf.4 Any error, therefore, was harmless.
11
Appellant also claims that the trial court erred in failing to instruct the jury that no adverse inference could be drawn from Lopez' failure to testify or to produce evidence in his behalf. This contention is frivolous not just because counsel neither objected to the charge nor asked for additional cautionary instructions but because the jury was instructed that "no inference of any kind," See note 4 Supra, could be drawn from appellant's failure to testify or to produce evidence.
12
Although not urged below or on appeal there is a serious question whether certain out-of-court declarations of Romero were improperly admitted. Krulewitch v. United States, 336 U.S. 440, 443-44, 69 S.Ct. 716, 93 L.Ed. 790 (1949), as modified by Lutwak v. United States, 344 U.S. 604, 617-19, 73 S.Ct. 481, 97 L.Ed.2d 593 (1953), and Anderson v. United States,417 U.S. 211, 218-19, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), holds that hearsay declarations (as opposed to acts) of one alleged coconspirator made After the conspiracy ends may not be admitted against the other conspirator to prove the existence of the conspiracy. While Romero's taped telephone conversation may be said to have occurred after the conspiracy ended, because Romero was already arrested and the narcotics seized, Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 91 L.Ed. 196 (1946), it was offered not to prove the truth of the declarations but to prove that Romero and Lopez knew each other. It was, therefore, not hearsay and admissible. See Anderson v. United States, supra, 417 U.S. at 219-21, 94 S.Ct. 2253; Fed.R.Evid. 801(c). So, too, evidence of the meeting itself, if a "statement" at all, See Fed.R.Evid. 801(a), was admissible under Lutwak and Anderson because it was post-conspiracy Conduct. See United States v. Bermudez, 526 F.2d 89, 95-96 (2d Cir. 1975), Cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). Romero's post-arrest statements to the law enforcement authorities which implicated Lopez are in a different category. The traditional view is that prior consistent statements of a declarant offered to prove the truth of the matter asserted are inadmissible hearsay. McCormick on Evidence § 251, at 601-04 (2d ed. 1972); 4 Wigmore on Evidence §§ 1123-24, at 254-55, 1132, at 294-96 (Chadbourn ed. 1972). Where the declarant is present and subject to cross-examination, however, as was Romero, they are arguably not hearsay. E. g., McCormick on Evidence, supra; see 3A Wigmore on Evidence, supra, § 1018, at 995-96 (Chadbourn ed. 1970) (criticizing orthodox view excluding prior inconsistent statements on hearsay grounds when witness is subject to cross-examination). It is unnecessary, however, to grapple with this rather abstract question which also implicates matters of policy.5 The rule is that once a witness's testimony has been attacked as a recent fabrication or he is charged with improper influence or motive, his prior statements consistent with his testimony are admissible for the limited purpose of rehabilitation. Fed.R.Evid. 801(d)(1)(B); E. g., Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56, 60 (2d Cir. 1972), and cases cited therein. Romero's prior statements would very likely have been admissible on redirect examination in light of appellant's counsel's repeated attempts during cross-examination to portray Romero as a liar.6 Moreover, while these statements may have bolstered Romero's credibility slightly, other evidence, such as the existence of his South American telephone number in Lopez' address book, appears more corroborative of Romero's trial testimony. Because Romero's statements to the agents were not crucial, could have been admitted for a limited purpose, and were not objected to below or on appeal, we do not view their admission as plain error.
13
Judgment of conviction affirmed.
NEAHER, District Judge, dissenting:
14
With appreciation for the majority's careful consideration of questions which did not surface until the hearing of the appeal, I nonetheless am unable to concur in the affirmance of appellant's conviction and therefore, with deference, dissent. In my view, prejudicial error occurred at trial which necessarily affected the jury's verdict and a new trial is therefore required in the interests of justice.
15
This was a marginal conspiracy case at best obviously brought as such not because the government had solid evidence of Lopez's complicity, but because its agents had failed to obtain such evidence in their eagerness to effect an arrest. The credibility of the government's principal witness, Romero, was seriously in question, so much so as to prompt the experienced trial judge to comment:
16
"I can say that there is an awful lot to be desired in his testimony . . . . He's about the closest or the worst that I have had in 21 years. And I just hope that he is being truthful. It would be a terrible thing if a young man has to go to jail for a liar." Tr. (7/21/78) at 152.
17
Even though the uncorroborated testimony of a coconspirator may be sufficient to support a conviction, United States v. Tyminski, 418 F.2d 1060 (2 Cir. 1969), it is unlikely that this case would have gone to the jury on Romero's inconsistent testimony alone. Indeed, the taped telephone conversation and Lopez's subsequent meeting with Romero were recognized as crucial by the government to support its burden of proving by independent evidence that appellant was a participant in the alleged conspiracy, which concededly ended if it ever existed when Romero was arrested while attempting to pass through Customs with a package of cocaine. Yet this is where I believe reversible error first occurred, because it is precisely the post-arrest declarations and acts of Romero uttered and performed in the course of his cooperation with the government that are not admissible as substantive evidence in a case such as this.
18
As pointed out in Fiswick v. United States, 329 U.S. 221, 246, 67 S.Ct. 224, 227, 91 L.Ed. 196 (1946),
19
"confession or admission by one coconspirator after he has been apprehended is not in any sense a furtherance of the criminal enterprise. It is rather a frustration of it. . . . He thereupon cease(s) to act in the role of a conspirator. His admissions (are) therefore not admissible against his erstwhile fellow-conspirators."
20
The Fiswick rule has been reaffirmed in Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S.Ct. 716, 93 L.Ed. 790 (1949), and Lutwak v. United States, 344 U.S. 604, 617, 73 S.Ct. 481, 97 L.Ed. 593 (1953), and is still recognized as good law on its precise holding. See Anderson v. United States, 417 U.S. 211, 218-19, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1975); United States v. DeVaugn, 579 F.2d 225 (2 Cir. 1978); United States v. Bermudez, 526 F.2d 89, 95-96 (2 Cir. 1975), Cert. denied, 425 U.S. 970, 96 S.Ct. 2166, 48 L.Ed.2d 793 (1976). In DeVaugn, supra, the author of the majority opinion noted the sound reason and policy of the rule as stated by Mr. Justice Jackson in his concurring opinion in Krulewitch, supra, 336 U.S. at 456, 69 S.Ct. at 724:
21
"Conspirators, long after the contemplated offense is complete, after perhaps they have fallen out and become enemies, may still incriminate each other by deliberately harmful, but unsworn declarations, or unintentionally by casual conversations out of court."
22
Plainly, Romero's post-conspiracy declarations uttered not only after he had been apprehended, but after he had agreed to assist the government, lie well beyond the outer limits of the ongoing-conspiracy exception to the hearsay rule, now embodied in Rule 801(d)(2)(E), F.R.Evid., and should have been excluded from the jury's consideration as substantive evidence of the offense charged.
23
Post-conspiracy acts, of course, stand on a different footing, because the bar to the admission of hearsay is not applicable. Nonetheless, once a conspiracy has come to an end, whether by completion or frustration, agency principles have no bearing, and the acts of one conspirator are admissible against another only "if relevant to prove the existence of the conspiracy." Anderson v. United States, supra, 417 U.S. at 219, 94 S.Ct. at 2260. See Lutwak v. United States, supra, 344 U.S. at 618, 73 S.Ct. 481; United States v. Bermudez, supra, 526 F.2d at 95-96; United States v. Tramunti, 513 F.2d 1087, 1116 (2 Cir.), Cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975). Obviously, the post-conspiracy conduct (or, for that matter, declarations) of a self-proclaimed former conspirator acting in the capacity of government agent cannot be regarded as substantive evidence relevant to proving the prior existence of the conspiracy; if such evidence is to be introduced, it must be for a more limited purpose, and its introduction must be accompanied by appropriate limiting instructions to the jury.
24
At trial, unfortunately, this case was treated as one of a continuing conspiracy. Romero was permitted to testify to what he had said to the agents after his arrest, and his statements to Lopez in the telephone conversation were placed before the jury with no attempt to follow the procedure which Lutwak, supra, mandates. As the Court there pointed out, such "declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them." 344 U.S. at 619, 73 S.Ct. at 490. Moreover, the trial court went so far as to permit two of the arresting officers, Agents Cipriano and Giaimo, to testify that Romero told them he was to deliver the cocaine to Lopez. Finally, testimony concerning the meeting between Lopez and Romero in Manhattan was admitted without any instruction to the jury that the meeting constituted no part of the conspiracy charged and was, therefore, to be considered only as evidence of the prior existence of the conspiracy.
25
In my view, Fiswick-Lutwak-Anderson principles prohibit the government's attempt to substitute prosecutorial innuendo for the evidence its post-conspiracy investigative techniques had failed to produce. The post-conspiracy telephone conversation it relies on is wholly lacking any recognizable inculpatory admission by Lopez or revelation of any circumstantial facts which would rationally support a finding of his participation in the narcotics conspiracy charged. As it stands, it is without probative value,1 however much one may Suspect that Lopez's expressions of fear that Romero might get him into trouble had something to do with criminal activity activity which could just as well have been Romero's admitted fraudulent entry into the United States as the importation of narcotics.
26
A jury, of course, may not base its verdict upon suspicion or conjecture, nor find a defendant guilty of conspiracy simply because he is acquainted with a self-proclaimed conspirator or his plans to violate the law. See United States v. Burgos, 579 F.2d 747 at 749 (2 Cir. 1978); United States v. Steinberg, 525 F.2d 1126, 1134 (2 Cir. 1975), Cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); United States v. Johnson, 513 F.2d 819, 823-24 (2 Cir. 1975); Cf. United States v. Guillette, 547 F.2d 743, 750-51 (2 Cir. 1976), Cert. denied, 434 U.S. 839, 98 S.Ct. 132, 54 L.Ed.2d 102 (1977); United States v. Torres, 503 F.2d 1120, 1124 (2 Cir. 1974); United States v. Sisca, 503 F.2d 1337, 1343 (2 Cir.), Cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974); United States v. Ragland, 375 F.2d 471, 477-78 (2 Cir. 1967), Cert. denied, 390 U.S. 925, 88 S.Ct. 860, 19 L.Ed.2 987 (1968).
27
Lopez's later act of meeting Romero is equally without probative value, however suspicious it may have seemed to the surveilling agents. There was no proof of any incriminatory conversation between Lopez and Romero, no handling of any suitcase, no transfer of any narcotics or money. The best the government could come up with were "false exculpatory statements" made by appellant immediately after his arrest; Viz., that he did not know Romero, had never met him before, and had been called by Romero's brother to pick him up. As this court has held in reversing a defendant's conviction for narcotics conspiracy, "falsehoods told by a defendant in the hope of extricating himself from suspicious circumstances are insufficient proof on which to convict where other evidence of guilt is weak and the evidence before the court is as hospitable to an interpretation consistent with the defendant's innocence as it is to the Government's theory of guilt." United States v. Johnson, supra, 513 F.2d at 824.
28
Second, I cannot accept the majority's view that Romero's post-arrest statements to authorities, implicating Lopez, lie beyond the purview of the Fiswick-Lutwak-Anderson rule and were therefore admissible without any limiting instruction. To the extent that the majority finds these statements to be non-hearsay simply because Romero testified at the trial, this court's recent decision in United States v. Check, 582 F.2d 668 at 680-682 (2 Cir. 1978), is plainly to the contrary. Moreover, I find unpersuasive the suggestion that Rule 801(d)(1)(B), F.R.Evid., exempts these statements from the operation of the hearsay exclusion because consistent with Romero's in-court testimony.
29
Were Rule 801(d)(1)(B) in fact applicable, the agents' testimony as to what Romero had told them would have served not only as rehabilitating evidence, but as substantive evidence as well. See Advisory Committee Note to F.R.Evid. 801(d)(1)(B), 56 F.R.D. 183, 296 (1972); Cf. McCormick on Evidence § 251, at 604 (2d ed. 1972). Although Rule 801 has in this sense expanded the use to be made of such statements once properly admitted, nothing in the rule or in its history indicates that the traditional bases for the admission of prior consistent statements of a witness have been substantially relaxed or eliminated. The "usual rule," as this court observed in United States v. Zito, 467 F.2d 1401, 1403-04 (2 Cir. 1972) (citing, Inter alia, then Proposed F.R.Evid. 801(d)(1)(B)), is that "prior consistent statements can only be introduced after a charge that a witness's story is a recent fabrication and where the statements were made before any motive to fabricate developed." Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56 (2 Cir. 1972), cited by the majority, endorses this view, as does United States v. Check, supra, at 680-681. See also DiCarlo v. United States, 6 F.2d 364, 366 (2 Cir.), Cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925); McCormick, supra, § 49, at 105. Yet here the motive for fabrication urged on cross-examination that Romero hoped to benefit from his "cooperation" with government agents2 clearly existed at the time the statements were made. In the absence of some alternative basis for admission E. g., a suggestion of faulty memory on the part of Romero I am persuaded that it was plain error to admit the agents' testimony, since the inevitable effect was to bolster Romero's doubtful credibility by evidence wholly inadmissible against appellant.
30
In view of the character of the evidence offered at trial, it is no wonder that the prosecution first called upon and then chided the defense for failing to explain the taped conversation. I cannot agree with the majority's conclusion that these remarks were permissible "comments on the weakness of the defense case." Indeed, as the majority notes, appellant did not put on a case and offered no explanation for the telephone conversation, electing instead to put the government to its proof. In my view, these remarks were constitutionally improper allusions to appellant's failure to testify, and reflect an attempt to impose on a criminal defendant the burden of providing an innocent explanation for his conduct.
31
The Supreme Court has recently reminded us that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1935, 56 L.Ed.2d 468 (1978). As Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), teaches, among those circumstances which may not be considered is the defendant's decision to withhold his testimony and to " 'rely upon the presumption of innocence which the law gives to everyone.' " Id. at 613, 85 S.Ct. at 1232 (quoting Wilson v. United States, 149 U.S. 60, 66, 13 S.Ct. 765, 37 L.Ed. 650 (1893)). Although the Griffin rule which "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt," 380 U.S. at 615, 85 S.Ct. at 1233 may make the task of the prosecutor more difficult, it plays a fundamental role in our system of criminal justice:
32
"The presumption of innocence and the protections afforded by the Due Process Clause impose a significant cost on the prosecutor who must prove the defendant's guilt beyond a reasonable doubt without the aid of his testimony. That cost is justified by the paramount importance of protecting a small minority of accused persons those who are actually innocent from wrongful conviction."
33
Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978) (Stevens, J., dissenting).
34
This is not to say that the prosecutor may not engage in normal advocacy regarding the strength of the government's case.3 But here the permissible latitude was far exceeded. The argument of defense counsel here was directed almost entirely to asserted inconsistencies and flaws in the testimony of the government's principal witness, Romero. He dealt only briefly with the taped telephone conversation, and in a manner hardly calculated to provoke the prosecutor's remarks. While the prosecutor may well have anticipated some effort by defense counsel to offer an alternative interpretation of the tape, I am hard pressed to believe that he was in any sense surprised by the argument actually made. Indeed, if the prosecutor believed that explication was in order, it was his obligation to provide it; plainly he could not compel appellant directly or indirectly to do so.
35
In my view, this case is controlled by the traditional formula, most recently stated by this Court in United States v. Bubar, 567 F.2d 192, 199 (2 Cir.), Cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977), that a prosecutor's characterization of government evidence as "uncontradicted" or "unexplained" is constitutionally impermissible "only if either the defendant alone has the information to contradict the government evidence referred to or the jury 'naturally and necessarily' would interpret the summation as a comment on the failure of the accused to testify." See United States v. Dioguardi, 492 F.2d 70, 82 (2 Cir.), Cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974); United States ex rel. Leak v. Follette, 418 F.2d 1266, 1269 (2 Cir. 1969), Cert. denied, 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); United States v. Lyon, 397 F.2d 505, 509 (7 Cir. 1968). I think it evident that only appellant could have provided the explanation called for, and that the prosecutor's remarks were calculated to bring this fact to the jury's attention and undoubtedly did so.
36
It may well be that the test should be relaxed where references to "uncontradicted" evidence are fairly intended to clarify the case for the jury as where the defense has offered evidence to meet some but not all of the government's proof, see, E. g., United States ex rel. Leak v. Follette, supra; United States v. Dioguardi, supra, or where defense counsel has offered explanations or theories which might plausibly have been supported by the testimony of witnesses, other than the defendant, who were not called, see, E. g., United States v. Bubar, supra; United States v. Floyd, 555 F.2d 45 (2 Cir.) Cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977). But where, as here, the government's case is weak, the prosecutor's remarks are made Sua sponte rather than in reaction to the arguments of defense counsel, and no curative instruction or charge is provided by the court, I believe the prejudice to the defendant is plain.4 To hold otherwise is to present an open invitation to prosecutors to cross a line that may not be bright, but nonetheless has been drawn by the fifth amendment.
37
For the foregoing reasons, I find it impossible to conclude "with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error . . . (and) that substantial rights were not affected." Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).
38
Accordingly, I would reverse.
*
Of the District of Massachusetts, sitting by designation
**
Of the Eastern District of New York, sitting by designation
1
Appellant was sentenced to five years' imprisonment, six months to be served in prison, the balance on probation, with a special parole term of ten years and deportation to follow. The district court further indicated that it would entertain a motion for reduction of sentence if appellant would voluntarily agree to depart the United States prior to his surrender. Sentence was stayed pending appeal, and Lopez is currently free on bail
2
Romero: Yes . . . look . . . I . . . I'm out here, at the airport, pal . . . if you can . . . how is it that I was here until 5 o'clock . . . I've been calling you and no . . . no
Lopez: But did it go well for you?
(discussion of Romero's difficulty with a provisional passport)
Romero: . . . I don't know where to go, what hotel should I go to? . . .
Lopez: Come over to 55th and 7th Avenue, I'll wait for you on the corner over there.
Romero: O.K.
Lopez: Listen . . .
Romero: Aha . . .
Lopez: It went well, right?
Romero: Well, yes, it went well, pal.
Lopez: You aren't lying to me?
Romero: No, I'm not lying, everything is all right.
Lopez: Careful brother!
Romero: No, don't worry.
Lopez: You're not going to cause me any problem, no?
Romero: No, don't worry.
Lopez: You're not going to get me into any trouble, Arturo.
Romero: No, don't worry.
3
The prosecutor stated:
In conclusion, Mr. Rapoport, as I said before, has subpoena powers. Do you remember he asked the so-called question, got in a lot of stuff about where Mr. Lopez was supposedly working. Where are the work records if he was working at this place, whatever it was, on that day? Could have brought them in.
4
The court charged:
You, the jury, will remember that a defendant is never to be convicted on mere suspicion or conjecture. The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. If the jury views the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, you, the jury must, of course, adopt the conclusion of innocence.
A reasonable doubt may arise not only from the evidence produced, but also from a lack of evidence. Since the burden is upon the prosecution to prove the accused guilty beyond a reasonable doubt of every essential element of the crime charged, a defendant has the right to rely upon failure of the prosecution to establish such proof.
In a criminal case a defendant need not take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn from the failure of a defendant to testify, nor may you comment in your deliberations on the failure to do so.
The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
Let me state to you here that the burden is upon the prosecution to prove beyond a reasonable doubt each and every essential element of the crime charged. Failure to do so requires you to find the defendant not guilty. The burden never shifts to the defendant to prove his innocence. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
5
Prior consistent statements are generally held inadmissible if offered prior to impeachment as "unnecessary and valueless . . . cumbersome," 4 Wigmore on Evidence, supra, § 1124 & n. 2, if not irrelevant, United States v. Sherman, 171 F.2d 619, 622 (2d Cir. 1948), Cert. denied, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738 (1949)
6
The defense presented no witnesses. Rather, counsel sought to discredit the Government's key witness, Romero, by interrogating him on the details of the alleged conspiracy, his post-arrest conversation with the arresting agents, and his testimony before the Grand Jury
1
I cannot agree with the majority's suggestion that the post-conspiracy taped telephone conversation, initiated by Romero acting as an agent of the government, was offered only to prove that Romero and Lopez knew each other. That was not a real issue in the case, and in any event the defense ultimately stipulated to their previous acquaintance. Indeed, as the majority recognizes, the telephone conversation was emphasized and re-emphasized by the prosecutor in summation as proof of a cocaine transaction to which the defense had supplied no other explanation
2
See Tr. (7/27/77), 139, 169-71; Tr. (7/28/77), 50-52, 60-62
3
This Court has repeatedly held that "(t)he prosecutor is entitled to comment on a defendant's failure to call witnesses to contradict the factual character of the government's case, . . . as well as his failure to support his own factual theories with witnesses." United States v. Bubar, 567 F.2d 192, 199 (2 Cir.), Cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977) (citations omitted). See, E. g., United States v. Floyd, 555 F.2d 45 (2 Cir.), Cert. denied, 434 U.S. 851, 98 S.Ct. 163, 54 L.Ed.2d 120 (1977); United States v. Rodriquez, 556 F.2d 638 (2 Cir. 1977), Cert. denied, 434 U.S. 1061, 98 S.Ct. 1233, 55 L.Ed.2d 762 (1978); United States v. Dioguardi, 492 F.2d 70 (2 Cir.), Cert. denied, 419 U.S. 873, 95 S.Ct. 134, 42 L.Ed.2d 112 (1974); Cf. United States v. Rubinson, 543 F.2d 951, 965-66 (2 Cir. 1976)
4
Compare United States v. Bubar, supra, where this Court held nonprejudicial similar remarks of the prosecutor, only after finding that they had been directed at the argument of defense counsel and that
"(A)ny conceivable misunderstanding on the part of the jury was nipped in the bud by Judge Newman's emphatic curative instructions given first sua sponte at the end of the prosecutor's rebuttal summation and again after a recess in a formulation submitted by (defense) counsel." 567 F.2d at 200 (footnote omitted).
See also United States v. Burse, 531 F.2d 1151 (2 Cir. 1976). Also instructive is the Sixth Circuit's decision in United States v. Smith, 500 F.2d 293 (1974), reversing a conviction where in summation the prosecutor had "asked" that the defendants explain a number of cryptic telephone conversations, even though a cautionary instruction was made at the close of the prosecutor's summation, because the court failed immediately to warn the jury that no adverse inference could be drawn from the defendants' silence. The First Circuit apparently applies a similar rule when the prosecutor in summation characterizes government evidence as uncontradicted and only the defendant himself or a non-testifying co-defendant can be expended to provide contradictory evidence. See United States v. Flannery, 451 F.2d 880 (1 Cir. 1971); Desmond v. United States, 345 F.2d 225 (1 Cir. 1965).
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344 F.Supp.2d 450 (2004)
Jose Antonio SOTO, Appellant,
v.
GOVERNMENT OF THE VIRGIN ISLANDS, Appellee.
No. D.C.CRIM.APP.2002/76, T.C.SRIM.258/2001.
District Court, Virgin Islands, St. Croix Division.
Considered: September 17, 2004.
Filed: October 19, 2004.
*452 Harold R. Washington, TPD, for Appellant.
Matthew Phelan, Asst. Atty. Gen., for Appellee.
Before: FINCH, Chief Judge, District Court of the Virgin Islands; MOORE, Judge of the District Court of the Virgin Islands; and SWAN, Judge of the Territorial Court, Sitting by Designation.
*453 MEMORANDUM OPINION
PER CURIAM.
Jose Antonio Soto ["Soto"] was convicted in Territorial Court of one count of unlawful sexual contact with a minor. He presents the following issues for review:
1. Whether title 14, sections 1708(2) and (3) are unconstitutionally void for vagueness;
2. Whether a defendant in a criminal case is entitled to a proposed voir dire question of the jury panel regarding their involvement with a local women's advocacy group, and;
3. Whether the trial court improperly permitted hearsay testimony that didn't fall within the accepted exceptions to the hearsay rule.
For the reasons stated below, the defendant's conviction will be affirmed.
I. STATEMENT OF FACTS & PRCEDURAL HISTORY
Soto was employed as a maintenance worker at the Country Day School on St. Croix. On September 17, 2001, Maria Lestrade ["Lestrade"], a custodian at the school, entered the classroom of Allisyn Dedinsky ["Dedinsky"]. Dedinsky had left the room but left a 5-year old girl sleeping on the floor near the door. As Lestrade entered the room, she saw Soto leaning over the sleeping child, his hand on her vagina. [Supplemental Appendix ("Supplemental App.") at 103-04]. The girl's dress was pushed up on her chest, exposing her underwear. Lestrade said she witnessed the incident as she stood approximately three to four feet from Soto. [Supplemental App. at 110]. Soto left the classroom, encountering Dedinsky on his way out. Immediately after witnessing the incident, Lestrade ran to an adjoining room to notify another teacher, Georgene Schuster ["Schuster"] what she had witnessed. [Supplemental App. at 104-05].
Soto was charged with one count of unlawful sexual contact in the first degree in connection with the incident, pursuant to title 14, section 1708(2) of the Virgin Islands Code. [Appendix ("App.") at 15-16]. Prior to trial, he filed a motion to suppress the testimony of Schuster or Dedinsky. The court denied the motion to suppress as to Schuster, but granted it as to Dedinsky. [App. at 76-79]. Soto also challenged section 1708(2) as void for vagueness; however, the court rejected that challenge. [App. at 60-62]. Soto was convicted of unlawful sexual contact, and this appeal followed.
II. DISCUSSION
A. Jurisdiction and Standard of Review
This Court has jurisdiction to review the judgments and orders of the Territorial Court in criminal cases, except those resulting from a guilty plea which present no constitutional considerations. See VIRGIN ISLANDS CODE ANN. tit. 4, § 33 (1997). We review the trial court's factual determinations for clear error. See In re Cendant Corp. Prides Litig., 233 F.3d 188, 193 (3d Cir.2000). However, its application of legal precepts and issues of constitutional dimension are subjected to plenary review. See HOVIC v. Richardson, 894 F.Supp. 211, 32 V.I. 336 (D.V.I.App.Div.1995). Finally, the court's admission of evidence is reviewed for abuse of discretion, to the extent not based on an interpretation of the Federal Rules of Evidence. See Williams v. Government of V.I, 271 F.Supp.2d 696, 702 (D.V.I.App. Div.2003).
B. Vagueness Challenge
Appellant first argues the statute under which he was convicted is unconstitutionally *454 vague in its failure to specifically define terms used to describe or to criminalize the prohibited conduct.
To pass constitutional muster, a criminal statute must give fair notice of the prohibited conduct. See Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926). A statute whose terms are not readily discernible by men of ordinary intelligence, or which fails to set standards for its enforcement, violates the Fourteenth Amendment to the United States Constitution.[1]See Connolly, 269 U.S. at 391* 46 S.Ct. 126; Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). The constitutionality of a statute is to be examined as applied to the facts of the case; it is insufficient to show that the statute may be generally vague in relation to others. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. 455 U.S. 489, 494-495, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); see also Rode v. Dellarciprete, 845 F.2d 1195,1199-1200 (3d Cir.1988). Therefore, a statute is not unconstitutionally vague where the defendant's conduct is clearly proscribed by its terms. See Rode, 845 F.2d at 1199 (noting defendant has no standing to challenge vagueness where he clearly falls within the statute) (citations omitted); Government of V.I. v. Steven, 962 F.Supp. 682 (D.V.I.App.Div.1997); see also Parker v. Levy, 417 U.S. 733, 755-56, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974)(one to whose conduct a statute clearly applies may not successfully challenge it for vagueness). Moreover, we have previously held that, "Where the general class of offenses can be made constitutionally definite by reasonable construction of the statute, the reviewing court has a duty to give the statute that construction." Steven, 962 F.Supp. at 684-85.
The constitutional infirmity Soto alleges in this instance is the inexactness of the statutory terms, "to arouse" or "to gratify," which are used to define the prohibited conduct. He contends those terms are so vague as to leave the determination of criminality to the police officer's sole judgment in each instance. We begin with the fundamental premise that undefined terms in a statute are to be given their ordinary meanings, based on common understanding. See Government of V.I. v. Knight, 989 F.2d 619, 633 (3d Cir.1993)(noting that the intent of a statute is presumed to have been expressed through the ordinary meaning of the words and is to be given effect if unambiguous)(citing Pennsylvania Dep't of Pub. Welfare v. Davenport, 495 U.S. 552, 557-58, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990); Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)); see also Coates v. Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1970); compare, Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1374 (3d Cir.1996)(noting that, "Any word or phrase, not otherwise defined, must be construed according to the rules of grammar and according to the common and approved usage"). We are unpersuaded by Soto's argument that the statutory terms in this instance fail to clearly define the prohibited conduct, are entirely subjective and require a presumption that touching leads to arousal or gratification.
First, the statute specifies that the crime is committed when the intended purpose *455 is to arouse or gratify "the sexual desires" of any person. See 14 V.I.C. § 1699. To "arouse" or "gratify" are not terms of art but, rather, are words of common and ordinary meanings. See e.g., WEBSTER'S NEW COLLEGE DICTIONARY 62, 486 (2001) ("to arouse" means, "to stir up; excite or provoke"; to gratify means "to please or satisfy"). That the statute prohibits only touching done with an evil purpose is clear, and the statutory terms impart such an evil purpose by specifying that such touching be aimed at arousing or gratifying a person's "sexual desires."
Here, Soto was observed over a five-year old girl, with his hand on her vagina as she slept. The child's dress was up, exposing her underwear. There was no evidence presented at trial that Soto had a caretaking responsibility for the child or had some non-criminal purpose for placing his hand on the child's vagina. Soto's conduct fell squarely within that prohibited by the statute, and a reasonable person would have known that such conduct would expose him to criminal liability. See United States v. Loy, 237 F.3d 251, 259 (3d Cir.2001)(noting that sufficiency of the notice of a statute is to be examined "in light of the conduct with which a defendant is charged," and a defendant whose conduct "is at the core" of the activities clearly covered by the statute's terms may only raise a vagueness defense if the statute is one that is likely to chill the exercise of constitutionally protected conduct); see also, Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988)(no lack of notice may be asserted to defeat a statute if reasonable persons would know their conduct puts them at risk of punishment under the statute). Soto's vagueness challenge on these grounds must, therefore, fail.
Equally unpersuasive is Soto's argument that the statute is vague in its failure to provide for a wide range of situations in which sexual contact with a minor might reasonably be construed as innocent or justified, such as diapering an infant or other touching, or displays of affection by caretakers, educators or parents. By its limiting terms, the statute criminalizes only touching done for the intended purpose of sexual arousal or sexual gratification. Therefore, by its terms, the statute necessarily excludes non-sexual touching by parents, educators, caretakers and the like. Nonetheless, there is no assertion on this record that Soto fell within any of those groups or had a legal purpose for touching the minor's vagina. Therefore, he has no standing to complain the statute is vague as applied to other groups. See Steven, 962 F.Supp. 682; see also, Rode, 845 F.2d at 1199.
This Court also rejects as baseless Soto's additional arguments that the statutory terms also fail to specify to whom the purpose of arousal or gratification is intended or requires a presumption that touching leads to arousal. The statute unambiguously specifies that touching intended to arouse or gratify any person is prohibited. There is no requirement in the statute that the touching actually arouses or gratifies one's sexual desires; it need be shown only that the touching was intended to accomplish that result.
C. Jury Voir Dire
Soto additionally asserts the trial court improperly precluded a voir dire examination to determine whether members of jury panel were associated with, or sympathetic to, the Women's Coalition of St. Croix, a victim's advocacy group. Soto argues such questioning was imperative to safeguard his right to a fair and impartial trial because the crime involved a sexual assault of a child and the victim and perpetrator were of different races, both of *456 which present inherent biases which voir dire would have divulged.
The scope and content of voir dire examination is within the broad discretion of the trial judge, and its determinations in that regard will not be disturbed absent an abuse of that discretion. See United States v. Segal, 534 F.2d 578, 581 (3d Cir.1976). An abuse of discretion will be found where the court's voir dire examination is "so general that it does not adequately probe the possibility of prejudice" or where it completely bars all inquiry into a relevant subject matter designed to root out prejudice. Waldorf v. Shuta, 3 F.3d 705, 710-12 (3d Cir.1993)(noting that examination must be probative on the issue of impartiality) (citations omitted); see also Segal, 534 F.2d at 581. Federal Rule of Criminal Procedure 24(a) permits the parties to participate in the process of selecting a jury:
The court may examine prospective jurors or may permit the attorneys for the parties to do so.
If the court examines the jurors, it must permit the attorneys for the parties to:
(A) ask further questions that the court considers proper; or
(B) submit further questions that the court may ask if it considers them proper.
FED. R. Crim.P. 24 (applicable through Terr. Ct. R. 7). However, although the court should invite participation by the parties, the court is not required to utilize every proposed question; rather, fairness is satisfied where the court's voir dire examination as a whole was reasonably designed to elicit any prejudice of the jurors. See e.g., Segal, 534 F.2d at 581; see also United States v. Salamone, 800 F.2d 1216, 1225-26 (3d Cir.1986); Butler v. Camden, 352 F.3d 811, 816 (3d Cir.2003)(noting that it is the rare case where failure to ask a single proposed voir dire question will result in reversal).
In view of the foregoing, assessing the impact of the court's failure to ask a proposed question or determining whether the examination was sufficient to elicit any prejudices necessarily rests on a review of the voir dire examination in totality. In this instance, Soto has submitted only his proposed voir dire questions for review here. However, he has submitted nothing on the record to permit a determination of the adequacy of the court's voir dire examination as a whole.[2] Without the opportunity to review the voir dire examination in its entirety, and because of the fact-specific nature of the inquiry, we can find no basis for concluding that the court abused its discretion in failing to permit the proposed question on voir dire[3]
D. Admission of Testimony
Soto's final argument is that the trial court, over his hearsay objections, improperly admitted the testimony of Georgene Schuster and Allyson Dedinsky regarding statements made by the only witness to the crime. We review the trial court's admission of testimony or other evidence under the Federal Rules of Evidence for abuse of discretion; however, to the extent *457 the determination is based on the court's interpretation of those rules, our review is plenary. See Williams v. Government of V.I., 271 F.Supp.2d 696, 702 (D.V.I.App.Div.2003)(citing Government of V.I. v. Texido, 89 F.Supp.2d 680, 683 (D.V.I App. Div.2000); United States v. Velasquez, 64 F.3d 844 (3d Cir.1995)).
1. Statement of Georgene Schuster
Immediately after witnessing the incident, Lestrade sought out Schuster, a teacher at the school who occupied an adjoining classrooom. Lestrade testified that after coming upon Soto with his hand over the girl's vagina, she left in shock and ran to Schuster's classroom. [Supplemental App. at 104].
I was shock and then he left and I ran to Mrs. Schuster's classroom. I was trembling then I held on to Mrs. Schuster. She said what happened to Marie? I say Mrs. Schuster, oh God! Ms Schuster she ask me what happened? I see the man touching the child vagina and she said what? And Mrs. Schuster and I went back to the room where the little girl was laying down .... (sic).
[Id,]. Soto argued below that Schuster's later testimony recounting what Lestrade told her under these circumstances constituted inadmissible hearsay which was not saved by any of the hearsay exceptions. However, the trial court admitted the testimony under the excited utterance exception to the hearsay rule.
Because of concerns about reliability and the constitutional right of an accused to test the statements of witnesses on cross examination, the federal rules disfavor admission of out-of-court statements. See FED. R. EVID. 801,802; see also, Idaho v. Wright, 497 U.S. 805, 817, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)(discussing constitutional basis underlying hearsay rules). However, the federal rules recognize several exceptions to this general proscription which, because of the circumstances surrounding their making, suggest their inherent reliability and do no violence to the policies underlying the hearsay rules. See generally, FED. R. EVID. 803; Wright, 497 U.S. at 817, 110 S.Ct. 3139. Among these is the "excited utterance" exception, which permits admission of a statement "related to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." FED. R. EVID. 803(2). The basis for the exception is that a sudden statement made during the startling event and without the opportunity for reflection is likely to be reliable. See Wright, 497 U.S. at 817, 110 S.Ct. 3139; see also Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1138 (3d Cir.1972)(Whether a statement falls within the excited utterance exception to the hearsay rule lies within the discretion of the trial judge.). A statement comes within this exception if it is shown: (1) there was a startling occasion, (2) the statement was made before the declarant had time to fabricate, and (3) the statement relates to the circumstances of the occurrence. See Berkeley v. Pueblo Supermarket, 740 F.2d 230, 235 (3d Cir.1984)(citing 6 Wigmore on Evidence § 1750 (Chadbourn rev.1976); Milwaukee Gear Co. v. Charles Benjamin, Inc., 466 F.2d 588, 591 (3d Cir.1972)); see also Kornicki 460 F.2d at 1138-39 (noting that "the circumstances of the particular incident in and of themselves can give rise to a `reasonable presumption of spontaneity' of the utterance"). Factors which may be considered in this determination are: the lapse of time between the startling event and the statements; whether the statements were made in response to an inquiry; the age of the declarant; the characteristics of the event; his physical and mental condition; and the subject matter of the statements. See e.g., United *458 States v. Moses, 15 F.3d 774, 777-78 (8th Cir.1994); see also States v. Moss, 544 F.2d 954, 958 (8th Cir.1976) (showing of continuous unrelieved excitement after event provides evidence that statement was excited utterance, even if not made during the event or immediately thereafter).
Lestrade's statement to Schuster satisfied the standard for admission under Rule 803(2). Schuster testified as follows regarding her initial encounter with Lestrade immediately after she witnessed the crime:
Q Can you tell us how you encountered Marie Lestrade at that time?
A How I encountered her or she encountered me?
Q Describe your encounter?
A I was in my classroom standing approximately in the middle of the room and Ms. Marie came from the classroom right next to mine and I probably saw her maybe halfway through the room and she was like frantic and the next thing I knew she was practically on top of me and she grab me so tightly and such a panic that I had to reach out to hold myself up.
Q Did she say anything to you at that time?
A Yes, she did.
Q What did she say?
A I had to ask her repeat it three times.
Q Before you ask her to repeat.
A She said something and I could not understand what was it because she was almost in tears.
Q Were you able to figure out what she was telling you? ....
A I finally figure out the man, the man he touched the child.
Q Okay. Did she give you any other information?
A I asked her what man? And then description of herself and I can't exactly remember what she said. Something to the effect the man who cleans, picks up the trash, he touched the child on her vagina.
Q What did you and Ms. Lestrade do after that?
A I followed her into Ms. Dedinsky's classroom.
Q Did she point anything out to you at that time?
A Yes, she did.
Q What did she show you?
A She showed me the child.
[App. at 126-27]. The statements were made within moments of the incident. The undisputed testimony at trial regarding the condition of the declarant was that she was hysterical, close to tears, and unable to clearly express herself verbally. Moreover, it was clearly a shocking experience to witness an employee with his hand on the vagina of the 5-year-old sleeping girl in the school setting. The statement Schuster was permitted to testify to related to circumstances of the startling event. Finally, Lestrade's statements to Schuster were made spontaneously. The record does not reflect an interrogation by Schuster, as appellant argues. Rather, the testimony clearly established that the declarant approached Schuster and offered the statements. Indeed, Schuster noted she was forced to ask Lestrade to repeat what she was saying several times because she was unable to discern what the witness was saying, given the witness' hysterical condition. She also noted that, after finally discerning that Lestrade was saying that "the man" had touched the child, she asked Lestrade to point out which man. Given *459 the context of Schuster's exchange with the witness, the circumstances of the event and the condition of the witness, the standards for admission as an excited utterance were met.
2. Statements of Allyson Dedinsky
The record does not support the appellant's argument that the government was permitted to adduce hearsay testimony from Allyson Dedinsky, the minor girl's teacher. Dedinsky testified that she had left the classroom briefly. As she was returning to the classroom, she saw the appellant coming from her classroom door and, after some brief comments to her regarding a stuffed animal, he continued on. As she entered her classroom, Dedinsky saw Lestrade talking to Schuster. She testified that Lestrade appeared hysterical, distraught, and upset. [Supplemental App. at 134-40]. This was the sum total of the government's examination of Dedinsky. The examination did not delve into what Dedinsky may have learned through Lestrade or Schuster regarding the crime. Indeed, the trial court ruled that any such testimony was inadmissible and granted defendant's in limine motion to suppress any testimony by Dedinsky regarding statements made by Lestrade. [App. at 63-79]. The court's ruling permitted Dedinsky to testify only to her personal observations of Lestrade's condition upon returning to the classroom. [Id.]. Accordingly, Soto's challenges on this point are without merit.
III. CONCLUSION
The statute under which Soto was convicted was clear on its terms. Though undefined in the statute, the terms used to criminalize the prohibited touching are unambiguous and clearly understood according to their ordinary meanings, and further sufficiently put reasonable persons on notice of the conduct that would subject them to criminal liability. Moreover, Soto's conduct falls clearly within that prohibited under the statute, and he has no standing to complain that the statute is otherwise vague as applied to others. We also find no basis on this record for determining the court abused its discretion in declining to include a question proposed by the appellant in its voir dire examination of the jury. Soto's final challenge to his conviction must also fail, as we determine the court did not abuse its discretion in admitting the testimony of Georgene Schuster under the excited utterance exception to the hearsay rules. Moreover, there exists no merited basis for upholding Soto's challenge surrounding the testimony of Allyson Dedinsky. In view of the foregoing, the appellant's conviction will be affirmed.
JUDGMENT OF THE COURT
AND NOW, for the reasons more fully stated in a Memorandum Opinion of even date, it is hereby
ORDERED that the conviction of Jose Antonio Soto is
AFFIRMED.
NOTES
[1] The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property without due process of law." U.S. Const, amend. XIV, § 1 (applicable to the Virgin Islands by virtue of Section 3 of the Revised Organic Act of 1954, 48 U.S.C. §§ 1541-1645 (1995 & Supp.2003), reprinted in V.I. Code Ann., Historical Documents (preceding title 1 of the V.I. Code)).
[2] The concluding portion of the voir dire examination, consisting of just one additional question added upon request after voir dire had ended, and the sidebar discussions of the challenged question regarding the Women's Coalition, are also included in the record.
[3] Moreover, there is nothing on the record to suggest a climate of racial bias prevailed at the trial or that examining the jury regarding its association to a women's advocacy group would have weeded out those harboring racial bias. Soto's only allegation regarding potential racial bias is that the victim was white and the defendant Hispanic.
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697 F.2d 296
Richardson Engineering Co.v.International Business Machines, Inc.
81-7898
UNITED STATES COURT OF APPEALS Second Circuit
5/13/82
D.Vt., 554 F.Supp. 467
AFFIRMED
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267 S.W.3d 796 (2008)
Charles LYNCH, Plaintiff/Appellant,
v.
MISSOURI DEPARTMENT OF CORRECTIONS, Defendant/Respondent.
No. ED 90685.
Missouri Court of Appeals, Eastern District, Division Four.
October 21, 2008.
*797 Charles Lynch, Bowling Green, MO, pro se.
Stephen D. Hawke, Assistant Attorney General, Jefferson City, MO, for respondent.
KATHIANNE KNAUP CRANE, Judge.
Plaintiff, a Missouri prisoner, appeals pro se from a judgment on the pleadings denying his petition seeking a declaration that he was entitled to credit under section 558.031.1 RSMo (2000)[1] for certain time he served in federal custody. We reverse and remand because the trial court's judgment was based on a misinterpretation of section 558.031.1.
PROCEDURAL BACKGROUND
Plaintiff, Charles Lynch, filed an action for declaratory judgment pursuant to section 558.031.1 against the Missouri Department of Corrections (MDOC) seeking credit for time he served in federal custody from February 28, 2003, to April 29, 2004, on the ground that this pre-conviction time in federal custody was related to the state offense for which he is now serving time. We take as true the facts contained in the petition and attached exhibits. These reveal that plaintiff was charged by both the state[2] and the federal government with crimes arising out of the February 27, 2003 robbery of a credit union. Plaintiff alleged that he was held in Missouri county jails in federal custody from February 28, 2003 until April 29, 2004, when he pleaded guilty to federal bank robbery charges and thereafter began serving a four-year sentence in federal prison, from which he was released on September 27, 2006. On February 2, 2007, plaintiff was sentenced to ten years imprisonment on each of two state charges, to be served concurrently with each other and with his federal sentences. Plaintiff thereafter requested that MDOC credit his state sentence with time spent in custody after his arrest on February 28, 2003, up until the time he pleaded guilty and received his federal sentence on April 29, 2004, but MDOC denied the request.
MDOC filed an answer to the petition, and thereafter filed a motion for judgment on the pleadings. The sole ground for its motion was that under section 558.031.1(2) plaintiff could be given credit only if his custody was "compelled exclusively" by the state of Missouri, and because plaintiff's custody prior to his federal conviction had been compelled by federal officials, he was not entitled to credit. The trial court granted MDOC's motion and entered a final judgment on the pleadings. The court concluded that the plain language of the exception set out in section 558.031.1(2) barred plaintiff from the relief he sought because he admitted in his allegations that *798 his custody during the time prior to his federal plea was not compelled exclusively by the state of Missouri but was also compelled by federal officials.
DISCUSSION
For his sole point on appeal,[3] plaintiff contends that the trial court erred in entering judgment against him because he was entitled to credit for the time served in Missouri county jails before he received his federal sentence in that, under section 558.031, the federal time served was "related to" his state conviction and sentences.
Rule 55.27(b) allows a party to file a motion for judgment on the pleadings. On appeal from a judgment on the pleadings in a defendant's favor, we review the allegations of the petition to determine whether the facts pleaded therein are sufficient as a matter of law. Garr v. Missouri Bd. of Probation & Parole, 211 S.W.3d 191, 192 (Mo.App.2007). We treat all well-pleaded facts in the petition as true. Id. We will affirm if the facts so conceded entitle the moving party to judgment as a matter of law, notwithstanding any evidence that might be produced. Id. This appeal turns on a question of law, whether subdivision (2) of section 558.031.1 prevents plaintiff from receiving the credit he seeks.
Section 558.031.1 provides:
1. A sentence of imprisonment shall commence when a person convicted of a crime in this state is received into the custody of the department of corrections or other place of confinement where the offender is sentenced. Such person shall receive credit toward the service of a sentence of imprisonment for all time in prison, jail or custody after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense, except:
(1) Such credit shall only be applied once when sentences are consecutive;
(2) Such credit shall only be applied if the person convicted was in custody in the state of Missouri, unless such custody was compelled exclusively by the state of Missouri's action; and
(3) As provided in section 559.100, RSMo.
When interpreting this statute, we are to ascertain "`the intent of the legislature from the language used and give effect to that intent, if possible, and to consider the words used in their plain and ordinary meaning.'" Mudloff v. Missouri Dept. of Corrections, 53 S.W.3d 145, 147-48 (Mo.App.2001) (quoting Roy v. Missouri Dept. of Corrections, 23 S.W.3d 738, 744 (Mo.App.2000)). Section 558.031.1 "plainly" allows credit for time spent in custody "`after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense . . . .'" Goings v. Missouri Dept. of Corrections, 6 S.W.3d 906, 908 (Mo. banc 1999) (quoting section 558.031.1) (emphasis in original). Plaintiff's position in the trial court was, and in this court is, that he is entitled to credit because his time in federal custody in Missouri county jails was related to his state robbery conviction.
*799 The trial court did not address whether plaintiff's federal custody prior to his federal conviction was related to his subsequent Missouri conviction. Rather, it determined that plaintiff's claim for credit was barred by the limitation set out in section 558.031.1(2). It concluded that subdivision (2) allowed a credit "only if his custody in the state of Missouri was `compelled exclusively by the state of Missouri's action[.]'" (emphasis added) It concluded that because plaintiff admitted that he was compelled to be held in the state of Missouri by federal officials, his custody in Missouri was not "compelled exclusively" by Missouri's action.
We disagree with the court's interpretation of subdivision (2). Subdivision (2) is a limitation on the credit granted in section 558.031.1. It restricts application of the credit to the situation in which the person convicted was in the custody of the state of Missouri, "unless such custody was compelled exclusively by the state of Missouri." (emphasis added) The word "unless" is a conjunction that, in this context, is defined as "except if." WEBSTER'S NEW WORLD COLLEGE DICTIONARY 1564 (4th ed.2001). The word "unless," as used in subdivision (2), signals an exception to the limitation in the first clause of subdivision (2). It does not signal a condition or further limitation. Specifically, it does not mean, as MDOC argued and the trial court concluded, that the limitation in subdivision (2) applies "only if" custody was compelled exclusively by the state of Missouri.
Mudloff, 53 S.W.3d 145, on which MDOC relies, does not support MDOC's argument that custody occurring in Missouri that is also compelled by non-Missouri authorities cannot qualify for credit under section 558.031.1(2). The portion of Mudloff that analyzed the current version of section 558.031.1 turned on whether the confinement "related to" the prisoner's conviction. 53 S.W.3d at 148. It did not discuss or apply subdivision (2) of the current section 558.031.1.
When "unless" is given its dictionary definition, the plain meaning of subdivision (2) is that the credit allowed in section 558.031.1 is limited to time spent in custody in the state of Missouri with one exception, when custody has been compelled exclusively by the action of the state of Missouri. This would allow a prisoner credit for time in related custody that was compelled exclusively by the action of the state of Missouri but was not spent in the state of Missouri. It does not require that the custody both be in the state of Missouri and be compelled exclusively by the state of Missouri.
MDOC did not plead an alternative ground in support of its motion for judgment on the pleadings, and it does not argue that there is any alternative basis to uphold the trial court's judgment. In this situation, we do not become advocates for defendant and develop a theory that defendant did not make and does not argue. See May Dept. Stores Co. v. Adworks, Inc. 740 S.W.2d 383, 386 (Mo.App.1987). See also Thomas v. DeGrace, 776 S.W.2d 500, 501 (Mo.App.1989). The trial court erred in entering judgment on the pleadings in MDOC's favor on the ground that plaintiff could be given credit only if his prior custody was "compelled exclusively" by the state of Missouri. Point one is granted.
Conclusion
The judgment on the pleadings in MDOC's favor is reversed and the case is remanded.
BOOKER T. SHAW, P.J. and MARY K. HOFF, J., concur.
NOTES
[1] All further statutory references are to RSMo (2000).
[2] The complaint on the state charges was filed on March 4, 2003, and the indictment on the state charges was handed up on June 11, 2003.
[3] Plaintiff's point and argument also assert that his plea agreement with the state contained a promise of credit. Plaintiff did not make this allegation in his petition. This issue may not be raised for the first time on appeal. Atlanta Cas. Co. v. Stephens, 825 S.W.2d 330, 333 (Mo.App.1992).
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09-0115-cv
US Commodity Futures Trading Comm v. Rolando
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
7 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
8 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
9 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
10 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
12 DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
13 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
14 REPRESENTED BY COUNSEL.
15
16 At a stated term of the United States Court of Appeals for the Second Circuit,
17 held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
18 the City of New York, on the 9 th day of March, two thousand ten.
19
20
21 PRESENT:
22 GERARD E. LYNCH,
23 Circuit Judge,
24 DENNY CHIN,*
25 District Judge.**
26
27 Daniel Alonso,
28
29 Receiver-Appellee,
30
31 US Commodity Futures Trading Commission,
32
33 Plaintiff-Appellee,
34
35 v. 09-0115-cv
*
The Honorable Denny Chin, of the United States District Court for the Southern
District of New York, sitting by designation.
**
The Honorable Rosemary S. Pooler, originally a member of this panel, did not
participate in the consideration of this appeal. The two remaining members of the panel,
who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. I.O.P.
E; United States v. Desimone, 140 F.3d 457 (2d Cir. 1998).
1 Frederico R. Martinez Trigueros,
2
3 Interested-Party-Appellant,
4
5 Diego Mariano Rolando, also known as
6 Roclerman, also known as ROC, doing
7 business as IA Trading.com Inc.,
8
9 Defendant.
10
11 FOR APPELLANT: Federico R. Martinez Trigueros, pro se, Buenos Aires,
12 Argentina.
13
14 FOR APPELLEES: Terry S. Arbit, General Counsel, Bradford M. Berry,
15 Deputy General Counsel, Leslie Randolph, Assistant
16 General Counsel, Commodity Futures Trading
17 Commission, Washington, D.C.
18
19 Daniel R. Alonso, Andrew A. Kress, Kaye Scholer
20 LLP, New York, NY.
21
22 Appeal from the United States District Court for the District of Connecticut (Mark
23 R. Kravitz, Judge).
24
25 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
26 AND DECREED that the order of the district court is AFFIRMED.
27 Appellant Federico R. Martinez Trigueros appeals from the judgment of the United
28 States District Court for the District of Connecticut, approving the court-appointed
29 receiver’s distribution plan over Appellant’s objection. We assume the parties’
30 familiarity with the underlying facts, the procedural history of the case, and the issues on
31 appeal.
32 We have jurisdiction to entertain this interlocutory appeal under 28 U.S.C.
33 § 1292(a)(1) because the district court’s order effected a modification of the freeze order
34 entered first as a statutory restraining order and then continued as a preliminary
2
1 injunction. See SEC v. Credit Bancorp, Ltd., 290 F.3d 80, 86-87 (2d Cir. 2002).
2 We review a district court’s decision relating to the choice of distribution plan for
3 a receivership estate for abuse of discretion. Id. at 87. “Courts have favored pro rata
4 distribution of assets where . . . the funds of the defrauded victims were commingled and
5 where victims were similarly situated with respect to their relationship to the defrauders.”
6 Id. at 88-89. Here, we find no abuse of discretion in the district court’s well-reasoned
7 finding that pro rata distribution was the most equitable remedy for the fraud perpetuated
8 here. As the district court properly found, the investors, including Appellant, were
9 similarly situated with respect to the extent to which the defendant exercised control over
10 their accounts, as well as with respect to their shared understanding that all of the
11 customer accounts would be traded together. Moreover, this is not a case in which
12 Appellant’s assets were “segregated in the manner of true trust accounts” or “had never
13 been placed in the defrauder’s control,” as in cases in which some courts have permitted
14 the return of assets to particular victims. Id. at 90.
15 We decline to consider Appellant’s claim, raised for the first time in his reply
16 brief, regarding the denial of his request for a cash advance. See Graham v. Henderson,
17 89 F.3d 75, 82 (2d Cir. 1996). However, we have carefully considered Appellant’s
18 remaining claims and find them to be without merit.
19 For the foregoing reasons, the order of the district court is AFFIRMED.
20
21 FOR THE COURT:
22
23 Catherine O’Hagan Wolfe, Clerk
24
3
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55 F.3d 633
Danielv.Hay*
NO. 94-40721
United States Court of Appeals,Fifth Circuit.
May 11, 1995
Appeal From: E.D.Tex., No. 3:93-CV-48
1
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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207 Pa. Superior Ct. 436 (1966)
Acme Equipment Co., Inc., Appellant,
v.
Allegheny Steel Corporation.
Superior Court of Pennsylvania.
Argued December 16, 1965.
March 24, 1966.
*437 Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, and HOFFMAN, JJ. (FLOOD, J., absent).
Joseph R. Young, with him Butler, Beatty, Greer & Johnson, for appellant.
Charles F. Mayer, for appellee.
OPINION BY HOFFMAN, J., March 24, 1966:
Appellant, Acme Equipment Co., Inc., distributes equipment for trucks and buses. On April 11, 1963, appellant ordered a product known as Formula T-308 and related equipment from Allegheny Steel Corporation [Allegheny]. The material was to be shipped on *438 open account, and the freight was to be prepaid. Payment was not to be made by appellant until a representative of Allegheny demonstrated that Formula T-308 effectively sealed large tires.
The materials, however, were shipped with sight drafts totalling $3,703.42. Upon being advised of this, appellant contacted appellee, Rudy Valentino, the president of Allegheny. Valentino allegedly said: "Go ahead and pay for it. I will take care of you if there is any problem. I will guarantee you won't lose a dime." The sight drafts were paid but the material proved unsatisfactory and was returned to Allegheny. Appellant's president testified that when he demanded a refund, Valentino advised him: ". . . [N]ot to worry, that he would see personally that I didn't lose any money." The money was never returned, and this action was filed against Allegheny and Valentino. The court below directed a verdict against Allegheny. A compulsory nonsuit was entered with respect to Valentino, however, on the ground that his promise was within the following section of the Statute of Frauds: "No action shall be brought . . . whereby to charge the defendant, upon any special promise, to answer for the debt or default of another, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him authorized." Act of April 26, 1855, P.L. 308, § 1, 33 P.S. § 3.
The only question raised by appellant is whether Valentino's promise was made not to answer for the debt of another but, primarily, to serve his own pecuniary interest as a stockholder and president of Allegheny. Although the above statute does not apply if the main object of the promisor is to serve his own pecuniary or business purpose, Eastern Wood Products *439 Company v. Metz, 370 Pa. 636, 89 A. 2d 327 (1952), the statute is not rendered inapplicable merely because a stockholder may indirectly receive some gain when he promises to pay the debt of a corporation. In Bayard v. Pennsylvania Knitting Mills Corp., 290 Pa. 79, 84, 137 A. 910, 912 (1927), the Supreme Court stated: "Ordinarily, the interest which a stockholder has is not individual, for he cannot be held for the corporate debts, and, if a promise to indemnify its creditor is made, the statute of frauds applies. . . . The mere fact that such person is concerned in promoting the financial success of the company is not sufficient to justify the treating of the promise of guaranty as an original undertaking. . . ."
Eastern Wood Products Company v. Metz, supra, is distinguishable from the present case. In Metz the stockholder owned 100 per cent of the stock; his promise was clearly made to protect and benefit himself as the sole stockholder of the company. Valentino, however, is the owner of only 25 per cent of the stock of Allegheny. Such ownership, of itself, would not establish that the promise was made by Valentino for the main purpose of serving a pecuniary or business purpose of his own.[1] Consequently, Valentino's alleged promise fell within the Statute of Frauds, and no action could be brought on it.
Order affirmed.
NOTES
[1] Philadelphia v. Rosin's Parking Lots, Inc., 358 Pa. 174, 56 A. 2d 207 (1948), which is cited by appellant, must also be distinguished from the present case. The Court's ruling there was based on the premise that the individuals involved may have made the oral agreement in order to save themselves from judgment and execution. The court said at page 179: "If it appears that they made this agreement to save themselves from judgment and execution in the circumstances referred to in the brief, it may be an original undertaking."
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T.C. Summary Opinion 2006-195
UNITED STATES TAX COURT
LORI ANN CHAMPAGNE, Petitioner, AND
DARRIN W. CHAMPAGNE, Intervenor v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14313-05S. Filed December 27, 2006.
Lori Ann Champagne, pro se.
Darrin W. Champagne, pro se.
R. Scott Shieldes, for respondent.
DEAN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. Unless otherwise
indicated, subsequent section references are to the Internal
Revenue Code as in effect for the year at issue, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
- 2 -
The decision to be entered is not reviewable by any other court,
and this opinion should not be cited as authority.
Respondent granted, in part, petitioner’s request for
section 6015 relief with respect to unpaid assessments of $27,714
in Federal income tax and a section 6662(a) accuracy-related
penalty of $1,162 assessed against petitioner and Darrin W.
Champagne (intervenor) for 2000. The issue for decision is
whether petitioner is entitled to relief from joint and several
liability under section 6015(b), (c), or (f) in excess of the
amount determined by respondent.
Background
The stipulated facts and the exhibits received into evidence
are incorporated herein by reference. At the time the petition
in this case was filed, petitioner resided in Magnolia, Texas.
At the time the notice of intervention was filed, intervenor
resided in Pineland, Texas.
Petitioner and intervenor were married in 1993. The
marriage was dissolved by an agreed final decree of divorce,
filed in the district court of Texas, on March 1, 2002.
Petitioner has a bachelor’s degree in elementary education.
From January to April of 2000, petitioner was employed by the
Magnolia Independent School District as a teacher. Petitioner
stayed home for the remainder of 2000 to care for her newborn
- 3 -
child and four other minor children. Petitioner resumed her
teaching around December of 2001.
Intervenor has taken a few college courses and has received
some technical training. During 2000, he was employed by
Southwest Computer Services.
On Form 1040, U.S. Individual Income Tax Return, for 2000,
petitioner and intervenor reported adjusted gross income of
$90,018 and taxable pensions and annuities of $2,919. Using
third party information returns, respondent determined that
taxable interest of $5 and an additional taxable pension
distribution of $19,692, received by intervenor in 2000
(collectively, the omitted income), were not reported on the
return.
On November 25, 2002, respondent issued to petitioner and
intervenor a statutory notice of deficiency for 2000. Neither
petitioner nor intervenor petitioned this Court in response to
the notice of deficiency. Accordingly, a deficiency of $7,777
and a section 6662(a) accuracy-related penalty of $1,162 were
assessed against petitioner and intervenor.
On March 22, 2003, respondent received a Form 1040X, Amended
U.S. Individual Income Tax Return, for 2000, signed only by
intervenor. The amended return included income items that were
not accounted for in the notice of deficiency, resulting in an
additional assessment of $19,937.
- 4 -
On January 7, 2004, petitioner filed with respondent a Form
8857, Request for Innocent Spouse Relief, along with a
questionnaire in which petitioner detailed her claim for relief
from joint and several liability under section 6015 with respect
to the assessments.
On April 28, 2005, respondent issued to petitioner a notice
of determination. Respondent determined that since petitioner
did not sign the amended return that resulted in the additional
assessment of $19,937, she was entitled to relief from the unpaid
tax for that amount under section 6015(f). Respondent, however,
denied relief for the balance of the request, i.e., the
deficiency assessment, determining that petitioner had knowledge
of the omitted income at the time she signed the return.
According to the notice of determination, petitioner’s
remaining tax liability is $6,992.1 Petitioner timely filed a
petition with the Court seeking a review of respondent’s notice
1
On the Form 8857, petitioner requested innocent spouse
relief from the entire tax liability for 2000. According to the
record, the unpaid tax for 2000 results from two assessments
($7,777 + $19,937), for a total of $27,714. After partial relief
of $19,937, petitioner’s remaining tax liability should have been
$7,777 plus penalty and interest. There is no explanation why
respondent, in the notice of determination, determined that
petitioner’s unpaid assessments for 2000 totaled $26,969 instead
of $27,714, a difference of $745. The Court assumes that
respondent has conceded the difference.
- 5 -
of determination denying, in part, her request for section 6015 relief.
Discussion
Jurisdiction
The Tax Court is a court of limited jurisdiction. Naftel v.
Commissioner, 85 T.C. 527, 529 (1985). Under section
6015(e)(1)(A), the Court has jurisdiction to review an
administrative determination regarding relief from joint and
several liability, or a claim for relief where the Commissioner
has failed to rule, as a “stand-alone” matter independent of any
deficiency proceeding where the Commissioner has asserted a
deficiency against the taxpayer. Billings v. Commissioner, 127
T.C. 7 (2006), on appeal (10th Cir., Oct. 23, 2006).
The Court has jurisdiction over this “stand-alone” matter
under section 6015(e)(1)(A) because respondent has asserted a
deficiency against petitioner for 2000. See sec. 6015(e)(1).
Section 6015(c) Relief
Generally, married taxpayers may elect to file a joint
Federal income tax return. Sec. 6013(a). After making the
election, each spouse is jointly and severally liable for the
entire tax due. Sec. 6013(d)(3). As a threshold matter,
petitioner argues that she is not liable for the deficiency
assessment, because she did not sign the joint return for 2000
that was filed with the Internal Revenue Service (IRS).
Petitioner contends that she never saw the return. She further
- 6 -
contends that intervenor handled the entire tax preparation
process, including signing her name on the return for her.
Petitioner, however, testified that she would have signed the
return had intervenor presented it to her and that intervenor had
her authority to prepare a tax return for her.
The fact that one spouse fails to sign the return is not
fatal to the finding of a joint return. Heim v. Commissioner, 27
T.C. 270, 273 (1956), affd. 251 F.2d 44 (8th Cir. 1958). The
determinative factor is whether the spouses intended to file a
joint return, their signatures being but indicative of such
intent. Hennen v. Commissioner, 35 T.C. 747, 748 (1961); Stone
v. Commissioner, 22 T.C. 893 (1954). Regardless of whether
intervenor, in fact, signed the return for petitioner,
petitioner’s testimony shows that she intended to file a joint
return. Therefore, the Court finds that the return for 2000 was
a joint return.
A spouse (requesting spouse), however, may seek relief from
joint and several liability under section 6015(b), or if
eligible, may allocate liability according to section 6015(c).
If relief is not available under section 6015(b) or (c), the
requesting spouse may seek equitable relief under section
6015(f). Sec. 6015(f)(2); Butler v. Commissioner, 114 T.C. 276,
287-292 (2000).
- 7 -
Except as otherwise provided in section 6015, the requesting
spouse bears the burden of proof. Rule 142(a); Alt v.
Commissioner, 119 T.C. 306, 311 (2002), affd. 101 Fed. Appx. 34
(6th Cir. 2004).
Upon the satisfaction of certain conditions, section 6015(c)
relieves the requesting spouse of liability for the items making
up the deficiency that would have been allocated solely to the
nonrequesting spouse if the spouses had filed separate tax
returns for the taxable year. Sec. 6015(d)(1), (3)(A); Cheshire
v. Commissioner, 282 F.3d 326, 332 (5th Cir. 2002), affg. 115
T.C. 183 (2000); Mora v. Commissioner, 117 T.C. 279, 290 (2001).
Section 6015(c) applies only to taxpayers who are no longer
married, are legally separated, or have been living apart for
over a 12-month period. Sec. 6015(c)(3)(A)(i).
Petitioner and intervenor were divorced on March 1, 2002.
Petitioner received a statutory notice of deficiency on November
25, 2002, and she subsequently filed a Form 8857.2 Therefore,
petitioner was eligible to elect the application of section
6015(c).
2
Under sec. 6015(c)(3)(B), an election for relief from joint
and several liability under sec. 6015(c) is to be made at any
time after a deficiency is asserted but not later than 2 years
after the date on which the Commissioner has begun collection
activities. Respondent has not raised any issue as to the
timeliness of petitioner’s election under sec. 6015(c).
- 8 -
Relief under section 6015(c) is not available if the
Commissioner demonstrates that the requesting spouse had actual
knowledge, at the time the return was signed, of any item giving
rise to a deficiency (or portion thereof) that is not allocable
to such individual. Sec. 6015(c)(3)(C); Hopkins v. Commissioner,
121 T.C. 73, 86 (2003); Culver v. Commissioner, 116 T.C. 189, 194
(2001). Petitioner has the burden of proving which items would
not have been allocated to her if the spouses had filed separate
returns. See Mora v. Commissioner, supra at 290; Levy v.
Commissioner, T.C. Memo. 2005-92.
Both this Court and the Court of Appeals for the Fifth
Circuit have defined culpable knowledge in an omitted income
case, for purposes of section 6015(c)(3)(C), as the “actual and
clear awareness” of the item, as distinguished from mere reason
to know of the item. Cheshire v. Commissioner, supra at 337
n.26; Cook v. Commissioner, T.C. Memo. 2005-22. While the
taxpayer generally has the burden of proof, in order to preclude
relief under section 6015(c) the Commissioner must carry the
burden of demonstrating by a preponderance of the evidence that
the requesting spouse had actual knowledge of “any item giving
rise to a deficiency”. Rule 142(a)(1); Culver v. Commissioner,
supra at 196; Charlton v. Commissioner, 114 T.C. 333, 341-342
(2000); sec. 1.6015-3(c)(2)(i), Income Tax Regs. “Item” means
- 9 -
“an item of income, deduction, or credit”. Cheshire v.
Commissioner, supra at 337.
In the case of omitted income, knowledge of the item
includes knowledge of the receipt of the income. Sec. 1.6015-
3(c)(2)(i)(A), Income Tax Regs. This Court has reviewed the
record and finds that there is insufficient evidence to establish
that petitioner had actual knowledge that intervenor received the
omitted income.
The IRS may rely upon all of the facts and circumstances to
demonstrate that a requesting spouse had actual knowledge of an
erroneous item at the time the spouse signed the return. Sec.
1.6015-3(c)(2)(iv), Income Tax Regs. Respondent argues that
petitioner had actual knowledge of the omitted income, at the
time that the return was signed, because: (1) Petitioner had
access to a bank account that she held jointly with intervenor
during 2000, and (2) petitioner picked up and opened mail at the
address where the Forms 1099 for the omitted income were sent.
Petitioner admits that she had access to one of intervenor’s
bank accounts. Petitioner contends, however, that intervenor
maintained bank accounts held solely in his name, of which she
had no knowledge and to which she had no access to during their
marriage. According to petitioner, the money from these secret
accounts was used to finance intervenor’s “secret life” with
other women. Petitioner suggests that it is possible that
- 10 -
intervenor deposited the omitted income into one of these secret
accounts, without her knowledge, to pay for the expenses of his
other women.
One factor that respondent may rely on in demonstrating that
petitioner had actual knowledge is whether she made a deliberate
effort to avoid learning about the item in order to be shielded
from liability. See sec. 1.6015-3(c)(2)(iv), Income Tax Regs.
Intervenor did not appear at trial to testify, and there is no
suggestion that petitioner made a deliberate effort to avoid
learning of the omitted income. Moreover, respondent has not
presented any evidence to show that the omitted income was
deposited into the bank account that petitioner held jointly with
intervenor, or that petitioner otherwise had an actual and clear
awareness of the omitted income.
Petitioner contends that she never saw any Forms 1099 for
the omitted income. Petitioner testified that there was a sewage
leak in her home during 2000, and she and her children moved to
temporary housing from May to December of 2000. Petitioner
further testified that intervenor “was taking care of everything”
and that she had no access to any mail that was sent to her home
address during this period. According to petitioner, she was
unaware of the omitted income and the attendant tax liability
until she called the IRS regarding an unrelated tax issue in
January of 2004.
- 11 -
Respondent counters that it is irrelevant whether petitioner
was absent from her home from May to December of 2000. The Forms
1099 for the omitted income would have been mailed in early 2001,
after petitioner had moved back into the house.
Both petitioner and intervenor had access to the mail at the
address where the Forms 1099 were sent during early 2001.
Intervenor did not leave petitioner until October of that year.
Nevertheless, the Court finds that petitioner’s testimony was
credible and persuasive that she was unaware of the omitted
income until January of 2004. See Rowe v. Commissioner, T.C.
Memo. 2001-325 (finding that the taxpayer had no actual knowledge
of an IRA distribution, even though periodic statements from the
financial institution managing the IRA were sent to her home
address, since other family members also picked up the mail).
Petitioner’s testimony that she had no involvement in any
aspect of intervenor’s business was also credible. Petitioner’s
training was in elementary education. Petitioner worked as a
teacher for the first 4 months in 2000, but was a homemaker for
the remainder of the year. Petitioner stayed home with her five
children while she relied on intervenor to provide for the
family. Respondent has failed to meet his burden to prove that,
at the time petitioner signed the 2000 return, she had an actual
and clear awareness of the omitted income.
- 12 -
The Forms 1099 for the omitted income were issued solely to
intervenor relating to a pension from his previous employment.
Petitioner has established by a preponderance of the evidence
that the deficiency at issue is entirely allocable to intervenor.
See, e.g., Mora v. Commissioner, supra at 290-291.
The Court holds that respondent erred in denying petitioner
relief under section 6015(c). Accordingly, petitioner is
entitled to relief from joint and several liability under section
6015(c) for 2000. The Court need not address petitioner’s claims
for relief under section 6015(b) and (f).
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for petitioner.
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946 F.2d 880
U.S.v.MacMaster (Thomas C.)
NO. 90-1626
United States Court of Appeals,First Circuit.
JUL 02, 1991
1
Appeal From: D.Me.
2
AFFIRMED.
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884 F.2d 1385
U.S.v.Baranowski (Thomas L., Jr.)
NO. 89-3389
United States Court of Appeals,Third Circuit.
AUG 31, 1989
1
Appeal From: D.Del.
2
APPEAL DISMISSED.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS SEP 20 2001
FOR THE TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-2433
(D.C. No. CR-00-150-JC)
JOSE ALBERTO ALEMAN-LUBO, (D. N.M.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before ANDERSON and BALDOCK , Circuit Judges, and BRORBY , Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
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 10th Cir. R. 36.3.
Defendant Jose Alberto Aleman-Lubo pleaded guilty in May 2000 to one
count of possessing with intent to distribute more than 100 kilograms of
marijuana in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(B), and
18 U.S.C. § 2. Pursuant to the plea agreement, defendant waived his right to
appeal the sentence imposed except to challenge an upward departure from the
applicable sentencing guideline range. See R. Vol. I, tab 21 at 5. In accordance
with the plea agreement, the government recommended that defendant receive
a three-level reduction from his base offense level for acceptance of responsibility
pursuant to § 3E1.1 of the United States Sentencing Guidelines (USSG) and
a three-level reduction for being a minor participant in the crime pursuant to
USSG § 3B1.2. Id. at 3-4. The plea agreement further provided that, if defendant
met the criteria for the “safety valve” provision of 18 U.S.C. § 3553(f), he would
be granted an additional two-level base offense level reduction under USSG
§ 2D1.1(b)(6) and relief from the minimum mandatory sentence. Id. at 4.
Based on a pre-sentence investigation, however, it was determined that
defendant did not meet the criteria under 18 U.S.C. § 3553(f) because he had two
convictions for driving while intoxicated and one conviction for driving with a
suspended license and, thus, had a criminal history of II. The sentencing court
found defendant had a total offense level, after all reductions, of twenty and a
criminal history category of II. Because defendant did not qualify for relief under
-2-
§ 3553(f) from the minimum mandatory sentence, and because the range based on
the guidelines was below the statutorily required minimum sentence of sixty
months, the court sentenced defendant to the statutory minimum sentence of sixty
months’ imprisonment pursuant to USSG § 5G.1.1, and four years’ supervised
release.
Defendant appealed, alleging that the district court should have conducted
a hearing on his criminal history and that he should not have a criminal history
point for driving with a suspended license. Defendant also claims he was denied
equal protection because he did not qualify under a policy of the U.S. Attorney to
seek less prison time for certain first-time drug couriers. Defendant also claims
his trial attorney was ineffective for failing to discover and inform him of the
consequences of his three misdemeanor offenses prior to the time he signed the
plea agreement, and for failing to argue at sentencing that his criminal history was
overstated and that he was denied equal protection under the law.
On appeal, defendant’s attorney has filed an Anders v. California , 386 U.S.
738 (1967), brief presenting these issues, and has filed a motion to withdraw.
As required, a copy of counsel’s Anders brief and motion to withdraw were
provided to defendant, see id . at 744, and he filed a pro se brief. Pursuant to our
duty under Anders , we have conducted an independent review of defendant’s
sentence, see id ., and we agree that the appeal is frivolous.
-3-
We decline to address defendant’s arguments that he received ineffective
assistance of counsel. These allegations require development of a factual record
by the district court, and, consequently, are properly brought in a collateral
proceeding and not in this direct appeal. United States v. Galloway , 56 F.3d
1239, 1240 (10th Cir. 1995) (en banc). We dismiss defendant’s allegations
against his trial attorney without prejudice.
As to defendant’s remaining claims, the United States correctly argues
that defendant waived his statutory right to appeal by knowingly and voluntarily
waiving that right in his plea agreement. See United States v. Atterberry ,
144 F.3d 1299, 1300 (10th Cir. 1998) (agreement to waive right to appeal is
enforceable).
[A]greements waiving the right to appeal are subject to certain
exceptions, including where the agreement was involuntary or
unknowing, where the court relied on an impermissible factor such
as race, or where the agreement is otherwise unlawful. In addition,
a waiver may not be used to preclude appellate review of a sentence
that exceeds the statutory maximum or to deny review of a claim that
the agreement was entered into with ineffective assistance of
counsel.
United States v. Cockerham , 237 F.3d 1179, 1182 (10th Cir.), petition for
cert. filed (U.S. July 23, 2001) (No. 01-5462) (quotations and citations deleted).
Our review of the record reveals that defendant entered into the plea agreement
waiving his appellate rights knowingly and voluntarily. The defendant does not
claim that he did not know the terms of his plea agreement or that his plea was
-4-
unknowing or involuntary. The district court did not depart upward from the
applicable sentencing guideline range nor exceed the statutory maximum
sentence. Finally, as noted above, defendant’s ineffective assistance of counsel
claims are not properly before this court and have been dismissed, so that
exception does not here apply.
Therefore, we GRANT counsel’s request to withdraw and DISMISS the
appeal.
Entered for the Court
Bobby R. Baldock
Circuit Judge
-5-
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760 F.2d 275
Jerry T. O'Brien, Inc.v.S.E.C.
84-7209
United States Court of Appeals,Ninth Circuit.
4/2/85
1
S.E.C.
AFFIRMED
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Karanikolas v Elias Taverna, LLC (2014 NY Slip Op 05774)
Karanikolas v Elias Taverna, LLC
2014 NY Slip Op 05774
Decided on August 13, 2014
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on August 13, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial DepartmentREINALDO E. RIVERA, J.P.
PLUMMER E. LOTT
SHERI S. ROMAN
JEFFREY A. COHEN, JJ.
2012-11369
(Index No. 14392/05)
[*1]Nikolaos Karanikolas, et al., plaintiffs-respondents,
vElias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place, defendant third- party plaintiff-respondent-appellant, 20 John Street, LLC, appellant-respondent; Castello General Construction Corp., third-party defendant-respondent.
Cascone & Kluepfel, LLP (Carol R. Finocchio, New York, N.Y., of counsel), for appellant-respondent.
O'Connor Redd, LLP, White Plains, N.Y. (Joseph M. Cianflone and Amy Lynn Fenno of counsel), for defendant third-party plaintiff-respondent-appellant.
Sacco & Filas, LLP, Astoria, N.Y. (Andrew Wiese of counsel), for plaintiffs-respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the defendant 20 John Street, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Brathwaite Nelson, J.), entered October 5, 2012, as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it, denied its cross motion for summary judgment dismissing the causes of action insofar as asserted against it alleging common-law negligence and violations of Labor Law §§ 200 and 241(6) insofar as predicated on alleged violations of 12 NYCRR 23-1.2, 23-1.4(b)(16), 23-1.7(a) and (b), 23-1.8(c), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.21(a), (c), (d), (e), and (f), 23-1.25(a), 23-3.1, 23-3.2, 23-3.3(c) and (h), and subparts 23-5 and 23-6, and denied its separate cross motion for summary judgment on its cross claims against the defendant Elias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place, for contractual and common-law indemnification and to recover damages for breach of contract for failure to procure insurance, and the defendant Elias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place, separately appeals, as limited by its brief, from so much of the same order as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1) insofar as asserted against it and denied its cross motion for summary judgment dismissing the complaint, the cross claims of the defendant 20 John Street, LLC, for contractual and common-law indemnification and contribution, and the counterclaim of the third-party defendant Castello General Construction Corp. for common-law indemnification and contribution insofar as asserted against it, and on its cross claim against the defendant 20 John Street, LLC, for common-law indemnification.
ORDERED that order is modified, on the law, (1) by deleting the provision thereof [*2]granting that branch of the plaintiffs' motion which was for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1), and substituting therefor a provision denying that branch of the motion, (2) by deleting the provisions thereof denying those branches of the respective cross motions of the defendants 20 John Street, LLC, and Elias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place, which were for summary judgment dismissing the causes of action insofar as asserted against each of them alleging a violation of Labor Law § 241(6) insofar as predicated on alleged violations of 12 NYCRR 23-1.2, 23-1.4(b)(16), 23-1.7(a) and (b), 23-1.8(c), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.21(a), (c), (d), (e), and (f), 23-1.25(a), 23-3.1, 23-3.2, 23-3.3(c) and (h), and subparts 23-5 and 23-6, and substituting therefor provisions granting those branches of the respective cross motions, (3) by deleting the provision thereof denying that branch of the cross motion of the defendant 20 John Street, LLC, which was for summary judgment on its cross claim for contractual indemnification against the defendant Elias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place, and substituting therefor a provision granting that branch of the cross motion, and (4) by deleting the provisions thereof denying those branches of the cross motion of the defendant Elias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place, which were for summary judgment dismissing the causes of action alleging common-law negligence and a violation of Labor Law § 200, the cross claims of the defendant 20 John Street, LLC, for common-law indemnification and contribution, and the counterclaim of the third-party defendant Castello General Construction Corp. for common-law indemnification and contribution insofar as asserted against it, and substituting therefor provisions granting those branches of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The injured plaintiff fell from a six-foot-high, A-frame ladder while he was performing construction work in a building owned by the defendant 20 John Street, LLC (hereinafter 20 John Street), in a space leased by the defendant Elias Taverna, LLC, doing business as Bread & Olive The Middle Eastern Place (hereinafter Elias Taverna). The injured plaintiff, and his wife suing derivatively, commenced this action against 20 John Street and Elias Taverna, asserting causes of action alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).
The Supreme Court should have denied the plaintiffs' motion for summary judgment on the issue of liability on the cause of action alleging a violation of Labor Law § 240(1). "Labor Law § 240(1) imposes upon owners and general contractors, and their agents, a nondelegable duty to provide safety devices necessary to protect workers from risks inherent in elevated work sites" (McCarthy v Turner Constr., Inc., 17 NY3d 369, 374). "The mere fact that a plaintiff fell from a ladder does not, in and of itself, establish that proper protection was not provided" (Hugo v Sarantakos, 108 AD3d 744, 745 [internal quotation marks omitted]). "There must be evidence that the ladder was defective or inadequately secured and that the defect, or the failure to secure the ladder, was a substantial factor in causing the plaintiff's injuries" (id.). Here, in opposition to the plaintiffs' prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging a violation of Labor Law § 240(1), the defendants raised a triable issue of fact as to whether the ladder used by the injured plaintiff was, in fact, defective or inadequately secured (see id.; Gaspar v Pace Univ., 101 AD3d 1073, 1074; Chin-Sue v City of New York, 83 AD3d 643, 644).
The Supreme Court should have granted those branches of the defendants' respective cross motions which were for summary judgment dismissing the cause of action alleging a violation of Labor Law § 241(6) insofar as asserted against each of them insofar as predicated on alleged violations of 12 NYCRR 23-1.2, 23-1.4(b)(16), 23-1.7(a) and (b), 23-1.8(c), 23-1.15, 23-1.16, 23-1.17, 23-1.19, 23-1.20, 23-1.21(a), (c), (d), (e), and (f), 23-1.25(a), 23-3.1, 23-3.2, 23-3.3(c) and (h), and subparts 23-5 and 23-6. The defendants established, prima facie, that those sections of the Industrial Code are either not specific enough to give rise to the duty imposed by Labor Law § 241(6), or are inapplicable to the facts of this case (see Gasques v State of New York, 15 NY3d 869, 870; Ramirez v Metropolitan Transp. Auth., 106 AD3d 799, 801). In opposition, the plaintiffs failed to raise a triable issue of fact.
The Supreme Court should have granted that branch of the cross motion of Elias Taverna which was for summary judgment dismissing the causes of action alleging common-law [*3]negligence and a violation of Labor Law § 200 insofar as asserted against it. In this action, arising from the means and manner of the work performed, Elias Taverna established, prima facie, that it lacked the authority to control the manner in which the injured plaintiff's work was performed, and that it did not lend the injured plaintiff the allegedly defective ladder from which he fell (see Comes v New York State Elec. & Gas Corp., 82 NY2d 876, 877; Chowdhury v Rodriguez, 57 AD3d 121, 131-132). In opposition, the plaintiffs failed to raise a triable issue of fact.
The Supreme Court should have granted that branch of 20 John Street's cross motion which was for summary judgment on its cross claim against Elias Taverna for contractual indemnification. 20 John Street established its prima facie entitlement to judgment as a matter of law by submitting the lease between itself and Elias Taverna, which required Elias Taverna to indemnify 20 John Street with respect to any personal injury claims arising out of any occurrence in the demised premises (see Sherry v Wal-Mart Stores E., L.P., 67 AD3d 992, 995-996). Contrary to the contention of Elias Taverna, the indemnification provision in the lease agreement is not rendered unenforceable by General Obligations Law § 5-321, which provides that an agreement that purports to exempt a lessor from its own negligence is void and unenforceable. "[W]here, as here, the liability is to a third party, General Obligations Law § 5-321 does not preclude enforcement of an indemnification provision in a commercial lease negotiated at arm's length between two sophisticated parties when coupled with an insurance procurement requirement" (DiBuono v Abbey, LLC, 95 AD3d 1062, 1064 [internal quotation marks omitted]; see Great N. Ins. Co. v Interior Constr. Corp., 7 NY3d 412, 418-419). "Under such circumstances, the purpose of the indemnity clause is not to exempt the lessor from liability to the victim, but to allocate the risk of liability to third parties between the lessor and the lessee" (DiBuono v Abbey, LLC, 83 AD3d 650, 653). In opposition, Elias Taverna failed to raise a triable issue of fact.
The Supreme Court properly denied that branch of 20 John Street's cross motion which was for summary judgment on its cross claim against Elias Taverna to recover damages for breach of contract for failure to procure insurance. 20 John Street failed to demonstrate, prima facie, that Elias Taverna failed to comply with the lease provision requiring it to procure commercial liability insurance protecting and indemnifying 20 John Street (see Mathey v Metropolitan Transp. Auth., 95 AD3d 842, 845; DiBuono v Abbey, LLC, 83 AD3d at 653).
The Supreme Court should have granted those branches of Elias Taverna's cross motion which were for summary judgment dismissing the cross claims of 20 John Street, and the counterclaim of the third-party defendant Castello General Construction Corp. (hereinafter Castello) against it for common-law indemnification and contribution. Elias Taverna established, prima facie, that it was not negligent, and did not have the authority to direct, supervise, or control the work giving rise to the injury (see Posa v Copiague Pub. School Dist., 84 AD3d 770, 774; Kielty v AJS Constr. of L.I., Inc., 83 AD3d 1004, 1005). In opposition, 20 John Street and Castello failed to raise a triable issue of fact.
The appellants' remaining contentions either are without merit or are not properly before this Court.
RIVERA, J.P., LOTT, ROMAN and COHEN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
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Case: 18-40844 Document: 00514798480 Page: 1 Date Filed: 01/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-40844 FILED
Conference Calendar January 16, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE FABIAN DE ALBA-AMBRIZ, also known as Jose Javier Gonzalez-
Medina, also known as Amilcar Javier Hernandez,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:18-CR-815-1
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
The Federal Public Defender appointed to represent Jose Fabian De
Alba-Ambriz has moved for leave to withdraw and has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), and United States
v. Flores, 632 F.3d 229 (5th Cir. 2011). De Alba-Ambriz has not filed a
response. We have reviewed counsel’s brief and the relevant portions of the
* 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: 18-40844 Document: 00514798480 Page: 2 Date Filed: 01/16/2019
No. 18-40844
record reflected therein. We concur with counsel’s assessment that the appeal
presents no nonfrivolous issue for appellate review. Accordingly, counsel’s
motion for leave to withdraw is GRANTED, counsel is excused from further
responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.
2
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612 So.2d 1277 (1992)
Calvy RUTHERFORD
v.
STATE.
No. CR-91-530.
Court of Criminal Appeals of Alabama.
September 18, 1992.
Rehearing Denied November 25, 1992.
Certiorari Denied March 5, 1993.
*1278 Julius Hunter, Jr., Phenix City, for appellant.
James H. Evans, Atty. Gen., and Thomas Leverette, Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1920432.
PATTERSON, Presiding Judge.
The appellant, Calvy Rutherford, was indicted for the capital offense of murder committed during the course of a burglary in the first degree, in violation of § 13A-5-40(a)(4), Code of Alabama 1975. He was convicted by a jury of the lesser-included offense of manslaughter, a violation of § 13A-6-3, and was sentenced to 20 years' imprisonment. He raises five issues on appeal; however, because we reverse, we address only those issues that may arise upon retrial.
I
The appellant argues that the trial court erred by denying his motion to dismiss the indictment because the process of selecting of grand jury forepersons in Russell County is racially discriminatory. While this issue is not preserved for review, the trial court ruled on the merits, and the state failed to object to the untimeliness of the motion; therefore, this court cannot rely on a procedural bar to dispose of this issue.[1]Ex parte Williams, 571 So.2d 987 (Ala.1990).
*1279 At the hearing on this motion, the appellant presented testimony from Devon Kiker, the Circuit Clerk of Russell County. Kiker has held that position since 1968. When asked how many blacks have served as forepersons of grand juries since 1963, he answered, "There were two that we could ascertain." He testified that the foreperson is usually selected by the judge, who may consult with the clerk and/or the district attorney. The trial court stated for the record that he would consult with the clerk if he did not know anyone on the grand jury. Kiker further testified that grand jurors were selected randomly by driver's licenses. Russell County's grand jury convened twice a year until 1982, when it began convening three times a year. It convened four times in 1990. Kiker also testified that he did not know whether people without driver's licenses would be on the list or whether more whites than blacks had driver's licenses. The trial judge also stated for the record that he randomly selected the foreperson when he did not know anyone on the grand jury.
The appellant introduced into evidence an incomplete list of the grand jury forepersons since 1963 provided by Kiker. The list does not list the names of the foreperson for some grand juries, has others crossed out, and has question marks by others.
The United States Supreme Court has addressed the issue of racial discrimination in the grand jury context and has held as follows:
[I]n order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs. The first step is to establish that the group is one which is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Hernandez v. Texas, 347 U.S. [475], ... 478-79 [74 S.Ct. 667, 670-71, 98 L.Ed. 866 (1954) ]. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Id., at 480 [74 S.Ct. at 671]. See Norris v. Alabama, 294 U.S. 587 [55 S.Ct. 579, 79 L.Ed. 1074] (1935). This method of proof, sometimes called the `rule of exclusion,' has been held to be available as a method of proving discrimination in jury selection against a delineated class. Hernandez v. Texas, 347 U.S., at 480 [74 S.Ct. at 671]. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Washington v. Davis, 426 U.S. [229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) ], ... [at] 241 [96 S.Ct. at 2048]; Alexander v. Louisiana, 405 U.S. [625]..., 630 [S.Ct. 1221, 1225, 31 L.Ed.2d 536 (1972) ].
Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977) (footnote omitted). In Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), the Court extended Castaneda to racial discrimination in the selection of the foreperson of the grand jury and held, "Only if respondents [establish] a prima facie case of discrimination in the selection of the foreman in accord with [Castaneda ], [does] the burden shift to the State to rebut that prima facie case." Id. 443 U.S. at 565, 99 S.Ct. at 3005 (citing Castaneda, 430 U.S. at 495, 97 S.Ct. at 1280).
It is without question that blacks "are members of a group recognizable as a distinct class capable of being singled out for different treatment under the laws." Id. The appellant, however, failed to introduce sufficient evidence from which the degree of underrepresentation could be proved; he failed to introduce evidence of the proportion of the group in the total population to the proportion selected as forepersons. The list of forepersons submitted by the appellant was not a complete list of the names of forepersons and the race of those forepersons listed is not ascertainable. In this case, like Rose, "there is no evidence in the record of the number of foremen appointed, [and] it is not possible to perform the calculations and comparisons needed to *1280 permit a court to conclude that a statistical case of discrimination had been made out... [; therefore,] proof under the rule of exclusion fails." Id. at 572, 99 S.Ct. at 3008. The appellant's evidence did, however, cover a "significant period of time." The method of selecting the foreperson, one "that is susceptible of abuse," may have supported "the presumption of discrimination raised by the statistical showing," had one been made, Castaneda, 430 U.S. at 494, 97 S.Ct. at 1280.
Thus, the appellant failed to prove a prima facie case of discrimination in the selection of the foreperson of the grand jury; therefore, the trial court did not err by denying his motion to dismiss the indictment on this ground.
II
The appellant argues that the trial court erred by denying his motion to dismiss the indictment because of "grand jury irregularities." The first of the alleged irregularities was that an investigator from the district attorney's office was present during the presentation of evidence before the grand jury. The investigator was operating a video camera, which was taping only the witnesses and evidence presented. A.R.Cr.P. 12.6 authorizes certain persons to be present during grand jury proceedings and reads as follows:
"No other person other than the grand jurors, the witnesses under examination, the district attorneys or assistant district attorneys, or others authorized by law to present evidence to the grand jury, a grand jury reporter or stenographer, and an interpreter, if any, shall be present during sessions of the grand jury; provided, however, that this rule shall not be construed as a prohibiting the use of sound recording devices by the district attorney while witnesses are giving their testimony before the grand jury. No person other than the grand jurors shall be present during their deliberations and voting."
The Committee Comments to Rule 12.6 note, "Although the rule excluding unauthorized persons from grand jury sessions is to be strictly adhered to, there appears to be no sanction for its violation, absent a showing of prejudice to the accused." The Alabama Supreme Court has also expressed this view as follows:
"`The prevailing view, apart from statutes expressly affecting the question, is that the presence of an unauthorized person during grand jury proceedings, is at most, a mere irregularity, not sufficient to constitute a ground for setting aside the indictment returned by the grand jury, unless prejudice to the accused is shown.'"
In re State ex rel. Baxley v. Strawbridge, 292 Ala. 506, 507, 296 So.2d 784, 784 (1974) (quoting 4 A.L.R.2d at 395). Thus, because the appellant failed to make a showing of prejudice, the trial court did not err by denying his motion to dismiss the indictment on this ground.
The appellant argues that the second "grand jury irregularity" was that the district attorney expressed his opinion that the appellant be indicted. He contends that § 12-16-209, Code of Alabama 1975, prohibits such an expression of opinion. Section 12-16-209, however, prohibits the presence of the district attorney at the expression of the grand jurors's opinions or the giving of their votes.[2] He has cited no other authority for his contention. The appellant's argument is without merit.
III
The appellant argues that the trial court erred by allowing the appellant's wife to testify regarding "prior difficulties" with the appellant. The appellant moved in limine, by written motion filed in open court, to prevent the state from introducing evidence of two incidents between him and his *1281 wife, Janice Rutherford. One incident involved the appellant allegedly damaging her car, and the other involved him allegedly threatening her at a grocery store. The trial court denied his motion and stated, "Certainly, please object any time at the point of trial you think there is something inadmissible coming on."
As the state examined Janice Rutherford regarding the automobile incident, the following occurred:
"A He came to the car and he asked me to take him to the bus terminal to get his belongings and I told him I wasn't taking him anywhere, and he just went around tearing the car (phonetic); threw a brick through a window.
"Q When you say he, you mean, the defendant did that?
"A Calvy. Yes.
"MR. HARRISON: Your honor, we object.
"THE COURT: Overruled.
"MR. HARRISON: The response previously stated.
"THE COURT: Overruled."
The state then elicited specific details of the incident. When the state began to examine her regarding the grocery store incident, the following occurred:
"Q Do you recall an occasion in late May or early June when you saw the defendant at a supermarket in town[?]
"A Yes.
"MR. HARRISON: Your honor, we object for the same reasons previously stated.
"THE COURT: Overruled."
The state then elicited the specific details of the incident during which the appellant allegedly told Janice Rutherford, "Something like `bitch, I am going to kill you.'"
The state argues that these issues are not preserved for our review because review on appeal is limited to the grounds raised at trial. It is, however, obvious from the record that the appellant was referring to the grounds stated during the argument of his motion in limine; therefore, these issues are preserved in that respect.
The appellant's issue regarding the details of the automobile damage incident, however, is procedurally barred because the appellant's objection was untimely as it was made after the witness had answered the question, and the appellant did not move to exclude the answer. Hunt v. State, 453 So.2d 1083 (Ala.Cr.App.1984), overruled on other grounds, Ex parte Marek, 556 So.2d 375 (Ala.1989). Also, the appellant failed to object to the state's eliciting further details of the incident, and thus, has waived any argument based on the state's eliciting those details. See Maul v. State, 531 So.2d 35 (Ala.Cr.App.1987) (failure to object waives issue).
The appellant's issue regarding the admission of evidence of threats made by him to Janice Rutherford is preserved for our review, and therefore, we will address the merits of that argument. We note that the state, in brief, argues only preservation and fails to address the merits of this argument. "Evidence is relevant `if there is any logical relationship between it and the ultimate inference ... for which it is offered.' " Wilson v. State, 584 So.2d 921, 923 (Ala.Cr.App.1991) (quoting C. Gamble, McElroy's Alabama Evidence, § 21.01(1) (3rd ed. 1991)). The evidence of threats to the appellant's wife one month prior to the present offense is simply not relevant in the prosecution for the murder of her "friend," about whom the appellant apparently had no knowledge. "It is recognized generally in Alabama that the trial court may exclude even relevant evidence when it would serve comparatively little or no purpose except to arouse the passion, prejudice or sympathy of the jury." McElroy's at § 21.01(4). This evidence had no purpose other than to arouse the passion or prejudice of the jury. Furthermore, "collateral acts of a litigant are generally inadmissible when offered to prove that the litigant was of a particular character and acted consistent therewith on the occasion in question." McElroy's at § 26.01(1) (footnote omitted).
Thus, because the trial court failed to exclude evidence of the threats, which had no relevance to the case to be tried, the *1282 judgment must be reversed and the case remanded for a new trial.
REVERSED AND REMANDED.
All Judges concur.
NOTES
[1] A.R.Cr.P. 12.9 provides for challenges to indictments. An indictment may be challenged after issuance but before arraignment. "Objection to commencement of the proceedings including a grand jury proceeding must be made before trial under Rule 15.2(a) [by pre-trial motion], thus the motion must be filed before a plea is entered under Rule 15.3(a), unless a later filing is permitted by the court." If, however, counsel is not appointed until the time of arraignment, then the trial court should give a "reasonable time within which to file the motion." In this case, the appellant's counsel was appointed at the time of arraignment, but the motion to dismiss was not filed until almost 11 months after arraignment, and therefore, is untimely.
[2] Section 12-16-209 reads as follows:
"The district attorney must attend before the grand jury when required by them, and he may do so whenever he sees fit for the purpose of examining witnesses in their presence or giving them legal advice as to any matter connected with their duties; and he may appear before them at any time to give any information as to any matter cognizable by them, but he must not be present at the expression of their opinions or the giving of their votes on any matter before them."
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269 So.2d 396 (1972)
Carleton E. HAUSER and Betty Jo Hauser, Appellants,
v.
Arthur VAN ZILE, and Angelena Van Zile, His Wife, Jointly and Severally, Appellees.
No. 71-834.
District Court of Appeal of Florida, Fourth District.
November 22, 1972.
*397 Thomas A. Bratten, of Campbell, Colbath, Kapner & Bratten, West Palm Beach, for appellants.
Evelyn R. Flack of the Law Offices of Ronald Sales, Palm Beach, for appellees.
*398 PER CURIAM.
The appeal is by the plaintiffs below from a final judgment consequent on an order of the trial court dismissing the amended complaint for failure to state a cause of action. The suit was filed in the Circuit Court of Palm Beach County, Florida, on 18 December 1970.
The plaintiffs, Carleton E. Hauser and Betty Jo Hauser, alleged that on or about 1 June 1970 they entered into a contract with Juno Beach Mobile Court, Inc., to purchase from it a parcel of real property in the City of Juno Beach, Palm Beach County, Florida. A copy of the contract is attached as an exhibit to the complaint. The defendants, Arthur Van Zile and Angelena Van Zile, his wife, are identified in the complaint as the president and secretary-treasurer, respectively, of the corporate vendor.
The complaint alleges in paragraph 5 that during the negotiations leading up to the contract and thereafter to the time of closing, the defendants falsely represented to the plaintiffs that the real property in question could be used for the purpose of a mobile home park consisting of 65 permanent trailer sites and 22 temporary trailer sites. The complaint states that the foregoing representations were not true because the City of Juno Beach had an ordinance which made the use of the temporary trailer sites illegal, all of which was known to the defendants and unknown to the plaintiffs. As a result of the alleged misrepresentation, the plaintiffs signed the contract and later closed it on 5 August 1970 by receiving a deed and paying the vendor approximately $77,750.00 in cash and delivering a note and mortgage for the balance of the purchase price. Paragraph 14 alleges that on 7 August 1970, two days after the closing, the plaintiffs learned of the misrepresentation and "... elected to rescind the contract, deed, note, purchase money mortgage, and cash payments made on August 5th and gave notice in writing to the Defendants and Juno Beach Mobile Court, Inc. of such election to rescind... ." Paragraph 15 of the complaint alleges that the plaintiffs did not go into possession of the property and that no changes occurred between the closing and the election to rescind that would have prevented a restoration of the parties to status quo (presumably as it existed before the contract was signed). The foregoing are the essential allegations of the complaint except for those relating to damages. The damages claimed are attorney's fees in connection with the litigation, costs, and interest on the cash plaintiffs paid the vendor on closing, calculated from the time of the plaintiffs' election to rescind. The demand for relief claims damages for these items and $100,000.00 in punitive damages.
Properly stated the issue on appeal is whether or not the complaint states a cause of action. The first point in appellants' brief is not dispositive of this issue. The second point will be covered to the extent necessary in the balance of this discussion.
Where one is induced to enter a contract to purchase real property by fraudulent misrepresentations of the vendor, he has several legally recognizable remedies. First he may rescind the contract by returning what he gained thereunder, or offering to do so, and bring an action at law to recover the consideration parted with on the basis of the fraudulent contract. Norris v. Eikenberry, 1931, 103 Fla. 104, 137 So. 128, 133; Willis v. Fowler, 1931, 102 Fla. 35, 136 So. 358, 368. Secondly the injured person may sue the vendor in equity for a rescission and cancellation of the contract or, where the contract is executed, the deed and other related documents. In this event the equity court may provide an award of such incidental damages as are necessary to effect complete relief. Norris v. Eikenberry, supra; Baylen Street Wharf Co. v. City of Pensacola, Fla. 1949, 39 So.2d 66. Finally, the injured party could retain what he received under the contract and sue at law for damages. The election of this remedy *399 involves a ratification of the otherwise voidable contract. Weeke v. Reeve, 1913, 65 Fla. 374, 61 So. 749.
The plaintiffs here are claiming (a) interest on the money paid at the time of closing to the vendor, and (b) attorney's fees and costs. The latter claim is based on a provision in the contract between the plaintiffs and Juno Beach Mobile Court, Inc. Since the defendants were not parties to that contract, the claim for attorney's fees and costs based thereon may be disregarded. The critical issue is whether or not the complaint states a cause of action against the defendants for the recovery of the interest on the money paid at the time of closing. Such is not the measure of damages which Florida cases heretofore have held to be recoverable in an action at law for damages resulting from misrepresentations inducing the purchase of real property. See Willis v. Fowler, supra, and Williams v. McFadden, 1887, 23 Fla. 143, 1 So. 618, 621. This element of damage might have been recovered from Juno Beach Mobile Court, Inc., the vendor, in an equity action to rescind and cancel the deed, note and mortgage. In the context of an equitable proceeding the award might be made for the purpose of restoring the status quo. The above mentioned Florida precedent leads us to conclude that the plaintiffs have not stated a cause of action for compensatory damages against the vendor's agents, the defendants here. There is an additional ground for affirming the trial court. The plaintiffs' complaint expressly states that on 7 August 1970 plaintiffs rescinded the contract and at that time nothing had occurred to prevent a restoration of the status quo. Where a presumably complete remedy is thus available against the vendor and the plaintiffs' own complaint shows that they pursued the remedy, it is inconsistent to allow the plaintiffs to proceed against the agents for damages, without some allegation that the remedy pursued against the vendor by rescission was inadequate to fully compensate the plaintiffs. See our opinion in Klondike v. Blair, Fla.App. 1968, 211 So.2d 41, wherein we stated:
"... The doctrine of election of remedies is an application of the doctrine of estoppel on the theory that one electing should not later be permitted to avail himself of an inconsistent course ... However, one is only held to have elected a remedy so as to bar other or different courses of action when the remedies are inconsistent, or if consistent, where the remedy pursued results in satisfaction of the claim... ."
For the several reasons mentioned, we hold that plaintiffs' complaint does not state a cause of action against defendants for compensatory damages. Assuming that we are correct in this regard, the claim for punitive damages must of necessity fail. McLain v. Pensacola Coach Corp., 1943, 152 Fla. 876, 13 So.2d 221, adopted and applied the general rule that:
"`... exemplary or punitive damages are not recoverable in an action of tort unless actual damages are shown, although it is not always essential that such actual damages be susceptible of exact calculation... .'"
In the McLain case the issue was whether or not the trial court's error in not instructing the jury on punitive damages was harmful in view of the fact that the jury determined there was no right to compensatory damages. Under those facts the court applied the general rule stated above. The same appears equally applicable to our situation.
Affirmed.
REED, C.J., WALDEN, J., and MORROW, RUSSELL O., Associate Judge, concur.
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989 So.2d 650 (2008)
SMITH
v.
STATE.
No. 4D08-2684.
District Court of Appeal of Florida, Fourth District.
August 27, 2008.
Decision without published opinion. Affirmed.
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46 P.3d 139 (2002)
2002 OK CR 12
Christopher Alan HAWKINS, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-2000-769.
Court of Criminal Appeals of Oklahoma.
March 12, 2002.
Janet Cox, David McKenzie, Assistant Public Defenders, Oklahoma City, Counsel for Appellant at trial.
Marc Pate, Assistant District Attorney, Oklahoma City, Counsel for the State at trial.
Wendell B. Sutton, Assistant Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, Counsel for Appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Steven E. Lohr, Assistant Attorney General, Oklahoma City, Counsel for the State on appeal.
*141 OPINION
LUMPKIN, Presiding Judge:
¶ 1 Appellant, Christopher Alan Hawkins, was tried by jury in the District Court of Oklahoma County, Case No. CF-98-736, and convicted of First Degree Murder (Count I), in violation of 21 O.S.Supp.1997, § 701.7, and Conspiracy to Commit First Degree Murder (Count II), in violation of 21 O.S.1991, § 421. The jury set punishment at life imprisonment without parole on Count I and ten (10) years imprisonment on Count II. The trial judge sentenced Appellant accordingly and ordered the sentences to run concurrently. Appellant now appeals his convictions and sentences.
¶ 2 On January 29, 1998, Appellant, Michael Draper, and Zane Johnson went to the home of Wayne Dollar. Appellant fired four shots into Dollar's head while Dollar lay sleeping on a living room couch. He admitted shooting Dollar during subsequent interviews and when he took the stand at trial.
¶ 3 Appellant claimed Draper asked him to shoot Dollar and that Draper would then forgive a debt Appellant owed to him. Appellant claimed he had no choice in the matter: "[I]f I didn't do this either Draper was going to send Dollar after me again or he (Draper) was going to get me."
¶ 4 There was testimony Dollar had fired multiple shots into Appellant's apartment three days before the shooting, using the same gun Appellant used to kill Dollar. A police investigator theorized that Dollar had shot up Appellant's apartment at Draper's request, due to the money Appellant owed Draper.
¶ 5 In his first proposition, Appellant claims the trial court denied him a fair trial, in violation of his federal and state constitutional rights, by admitting videotaped interviews he gave to the police following the incident and photographs of the victim. Prior to the admission of the interviews and photographs, Appellant's counsel lodged timely objections.
¶ 6 Regarding the videotaped interviews, Appellant claims he unambiguously invoked *142 his right to counsel during his first interview, but then alleges the police reinitiated contact with him, ultimately conducting an interrogation that led to his confession the next day. Appellant claims the interviews should have been suppressed because there was not a sufficient showing Appellant had waived his right to counsel or had reinitiated contact with the police investigators.
¶ 7 The State points out that the trial court held an in camera hearing regarding Appellant's waiver and found it was Appellant who reinitiated contact. The State claims this ruling was proper, because the record contains sufficient facts to support the trial court's ruling by a preponderance of the evidence.
¶ 8 Appellant's first interview was held on February 4, 1998 and was terminated when Appellant requested an attorney. Questioning ceased, but the police detectives gave Appellant their number in case he changed his mind. They also informed Appellant he was being booked for first degree murder and warned him that "[o]ther people have been talking. The deals are getting made." The detectives took Appellant's picture, asked him about his hair color, and then left.
¶ 9 Appellant was then taken to jail. According to Detective Matthews, while he was being "booked," Appellant asked if any of the other people had been arrested. Matthews told him yes. Appellant then asked what they had said and whether they were blaming him. Matthews told him he could not discuss this because Appellant had invoked his right to counsel.
¶ 10 According to Matthews, Appellant then said, "Well, I will speak to you now."[1] Matthews testified he told Appellant to "sleep on it" and that they would contact him the next day.[2] (Tr. II at 116-17; P.H.Tr. at 76.) Detective Maddox also recalled Matthews informing him that, during book-in, Appellant had said he had changed his mind and wished to speak to the detectives. Appellant, however, claimed this exchange never happened and that Matthews made it up.
¶ 11 The second interview occurred the next day, February 5, 1998. Detective Matthews testified at the preliminary hearing that, before the interview began, he made contact with Appellant and confirmed that he still wanted to speak to the detectives. Appellant said, "Yes I do." (Tr. II at 137; P.H.Tr. at 77-78.) At trial, Matthews could not specifically recall this exchange, but he testified that he was sure his preliminary hearing statement was true.
¶ 12 The second interview began with Detective Maddox confirming his understanding that Appellant, at booking, had evidently changed his mind about wanting to speak to investigators without an attorney. In order to confirm whether or not that was true, Maddox informed Appellant that he would start over and read him his rights again. Appellant first nodded, then verbally agreed to this procedure. The Miranda warning was given, and Appellant waived his right to an attorney. Thereafter, he made several damning admissions.
¶ 13 Appellant argues the trial court should have focused, not only on whether the statement was given voluntarily, but also upon whether Appellant knowingly and intelligently relinquished his right to counsel. Appellant thus argues his lack of access to counsel, young age, drug dependency, learning disability, parents' divorce, home environment, and ninth grade education must all be taken into consideration. Appellant did not, however, ask the trial court to consider these factors when rendering its decision.[3]
¶ 14 Appellant points to slight inconsistencies in Detective Matthews's story regarding Appellant's alleged re-initiation of contact and to the "incredulous" claim that Appellant was allowed to "sleep on it" as supporting a lack of a knowing and intelligent waiver of *143 the right to remain silent and right to counsel.
¶ 15 When an accused in custody requests the assistance of counsel the Fifth Amendment requires that all "interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Furthermore, an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). Even if an accused initiates further communication with authorities, his or her waiver of counsel "must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case `upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.'" Edwards, 451 U.S. at 482, 101 S.Ct. at 1884, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
¶ 16 With this in mind, we find the facts of this case are analogous to those in Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) and fall squarely within the law pronounced therein. In that case, the defendant had requested an attorney during his custodial interrogation. Questioning ceased. Thereafter, while the defendant was being transferred to the county jail, he asked an officer "what is going to happen to me now?" The officer replied that the defendant did not have to talk to him and that, because he had requested counsel, his desire to speak to the officer had to be of his own free will. After indicating he understood, the officer and defendant discussed where the defendant was being taken, with what he was being charged, and the possibility of his taking a polygraph test to help himself. The defendant agreed to take the test. The following day, after being given the Miranda warning, the defendant took the test. After the examiner told the defendant he did not believe he was telling the truth, the defendant made some damning admissions.
¶ 17 In its plurality opinion, the Supreme Court found these facts did not constitute a violation of the Edwards rule:
There can be no doubt in this case that in asking, "Well, what is going to happen to me now?", respondent "initiated" further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word "initiate" in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards.
Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation.
Oregon v. Bradshaw, 462 U.S. at 1045-46, 103 S.Ct. at 2835.[4]
*144 ¶ 18 This case is sufficiently similar in terms of facts. While there was a dispute over whether Appellant actually spoke to Detective Matthews during booking, the trial judge, who was the trier of fact with respect to this question, heard testimony from Matthews that Appellant asked about who else had been arrested and whether or not he had been blamed. Matthews testified Appellant said he desired to speak to Matthews "now". This testimony was supported by at least one document and testimony from Maddox. While Appellant testified no such conversation ever occurred, the trial judge had the benefit of hearing the evidence and assessing the weight and credibility of the testimony. We find the trial judge's ruling that Appellant reinitiated communication to be factually and legally supported by the record. No Edwards violation occurred.
¶ 19 This, however, does not end our inquiry. We must now determine "whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Oregon v. Bradshaw, 462 U.S. at 1046, 103 S.Ct. at 2835. This determination depends "upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023.
¶ 20 Here, the trial court, based upon the "totality of the circumstances and looking at all of the testimony that I have had here today," found that Appellant's decision to speak to the detectives, thereby waiving his right to silence and right to counsel, was voluntary, without coercion, without being under the influence of drugs or alcohol, and given at a time when Appellant was coherent.[5] While there was no specific discussion of many of the factors Appellant mentions in his appellate brief, the trial judge had available to him information regarding Appellant's age, his competency evaluation, his previous contacts with the law, his ability to understand the charges against him, his drug dependency, his family problems, and his "paranoia and disordered thinking." We do not second guess a trial judge who was presented this evidence during the course of a hearing and we presume the judge considered such factors in entering his ruling.
¶ 21 Considering the totality of the circumstances, including Appellant's background, experience, conduct, and his own testimony (Tr. III at 87), we find the trial judge's ruling is sufficiently supported, by a preponderance of the evidence, and that the Appellant's waiver of the right to remain silent and the right to counsel was entered knowingly and intelligently.
¶ 22 Regarding the admission of the photographs of the deceased, we find the probative value thereof was not substantially outweighed by the danger of unfair prejudice. 12 O.S.1991, § 2403. While Appellant admitted the shooting, he also raised concerns about duress and heat of passion. Furthermore, the position of the body was helpful in determining the circumstances of the crime, and the photographs helped to corroborate Appellant's confession.
¶ 23 In proposition two, Appellant claims the trial court committed reversible error by denying his requested jury instructions on duress and the lesser offense of first degree manslaughter, in violation of the federal and state constitutions.
¶ 24 Regarding duress, Appellant argues he was entitled to an instruction on this complete defense where there is any possible support for it in the evidence, even if discredited.[6] To support his claim that the *145 evidence at trial required the giving of a duress instruction, he points to the following facts in the record: Appellant had been buying methamphetamine from Michael Draper, selling drugs for Draper, and owed money to him as a consequence; Draper was known to have a bad temper; Appellant told Draper he was unable to pay for the drugs he had received; two days later, his apartment was shot up while he was inside, and the same gun later given to him by Draper to kill Dollar was used; Draper called Appellant and asked him to come over so they could discuss his debt; Draper told him "he had a way for me to pay off the debt;" Draper then told him that Dollar had ripped Draper off and had shot up Appellant's apartment; he went with Draper and Zane Johnson to Dollar's apartment, thinking they were only going to scare Dollar; Johnson told Draper he could let Appellant "do it to knock off the debt;" Johnson and Draper both had guns; Draper handed him his gun and asked, "Are you going to do this?"; Appellant took the gun, thinking he had no choice in the matter because Draper would get him or send Dollar to get him; he shot without thinking and because he was scared of "losing my life;" and he specifically testified that he acted in a heat of passion, out of pressure put on him by Draper, and out of fear that it would be his life or Dollar's.
¶ 25 But there are other important facts from the record to consider. Appellant admitted there was talk about killing Dollar before they even went to his apartment that night. During his confessions to police, Appellant did not claim he acted out of fear. Furthermore, there was never any claim, during the confessions or at trial, that an actual or even an implied threat was made against Appellant. Indeed, it appears highly likely Appellant was acting out of monetary pressure, rather than a sense of imminent danger. (He testified that, while most people work to pay off their bills, "I had never ever really have (sic) been able to keep a job.") Draper, the person Appellant allegedly feared, was in a car a considerable distance away when Appellant shot the sleeping victim four times in the head. Draper had given Appellant his gun, leaving Appellant armed and Draper disarmed. Additionally, although Appellant had seen Draper "blow up" at Draper's wife, he had never seen Draper threaten anyone who owed him money he had only "heard stories." Furthermore, Appellant never testified he knew Draper had instructed Dollar to shoot up his apartment he only knew Draper said that Dollar, whom he had never met, collected for him on occasion. In fact, according to his testimony, he never really thought about any of these things; he just took the gun and shot in a spur-of-the-moment manner.
¶ 26 There has been some debate in this Court over the years about whether or not the affirmative defense of duress is available to one charged with first degree malice murder.[7] The most recent pronouncement on this issue, adopted by two current members of this Court, says that it is.[8] Even then, it is available in an extremely limited set of circumstances.
¶ 27 We need not revisit this issue today, however, because the record before us shows the trial judge did not abuse his discretion in denying a duress instruction under the facts of this case, even if one was hypothetically available.
¶ 28 According to 21 O.S.Supp.1992, § 156, duress requires the defendant to have committed a prohibited act or omission "because of a reasonable belief that there was imminent danger of death or great bodily harm from another upon oneself, ones spouse, or ones child." Here, the record indicates Appellant committed the act because of his drug habit and unpaid debt; He *146 did not shoot with a reasonable belief of imminent danger. Draper had left the scene and had turned over his weapon. At best, this indicates Appellant feared some future, hypothetical action from Draper, a man whom he had never seen take such action.
¶ 29 Moreover, Appellant cannot be said to have been under the "involuntary subjection" of a superior power.[9] He came along willingly, following discussion of killing Dollar, in hopes of gaining by extinguishing his debt. He was never threatened or bullied. There is no indication Draper was a superior power.
¶ 30 Finally, Spunaugle recognizes that a person who fails to avail himself of an opportunity to escape from a situation of duress is not entitled to claim the defense. Appellant had that opportunity when he was left alone with a weapon.
¶ 31 Next, Appellant claims he should have been given his requested instruction for first degree "heat of passion" manslaughter as a lesser-included or lesser-related offense.[10] He claims "in light of the evidence of duress and fear and terror on the part of Mr. Hawkins toward Michael Draper and the decedent," a rational juror could have found him guilty of first-degree manslaughter and the absence of that instruction was a violation of due process.
¶ 32 This claim fails for several reasons. First, first degree manslaughter, by definition, requires the killing to have been committed "in the heat of passion" and "without a design to effect death." 21 O.S.1991, § 711. It can hardly be suggested there was no design to effect death here.
¶ 33 Secondly, heat of passion requires adequate provocation on the part of the deceased toward the defendant, not some implied provocation on the part of a third person sitting in a car a considerable distance away. Williams v. State, 2001 OK CR 9, 22 P.3d 702, 713; Black v. State, 2001 OK CR 5, 21 P.3d 1047, 1067. Here, the victim was asleep on the couch when Appellant fired four shots into his head. While it is true the victim allegedly shot up Appellant's apartment, that event occurred three days earlier. Moreover, Appellant had been told Dollar committed the action before he even went to Dollar's apartment.
¶ 34 Thus, there was more than a reasonable opportunity for any passion on the part of Appellant to cool. In Oklahoma, a homicide must occur while the passion still exists and before a reasonable opportunity for the passion to cool. Williams, 22 P.3d at 713.
¶ 35 We find the trial court did not abuse its discretion in refusing to give a first degree heat of passion manslaughter instruction, and, consequently, Appellant suffered no deprivation of his due process rights.
¶ 36 In proposition three, Appellant claims the evidence was insufficient to establish the corpus delicti of a conspiracy to commit first degree murder, apart from his own confessions. In other words, he claims the State failed to present sufficient independent evidence that an agreement to kill Dollar existed and that Appellant was a party to that agreement at the time it was made.
¶ 37 In Fontenot v. State, 1994 OK CR 42, 881 P.2d 69, 77-78, this Court rejected the corpus delicti line of analysis and reaffirmed this Court's prior adoption of the "standard which requires only that a confession be supported by `substantial independent evidence which would tend to establish... [its] trustworthiness ....' Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954), adopted in Jones v. State, 555 P.2d 63, 68 (Okl.Cr.1976)."
¶ 38 We find the following substantial independent and corroborating evidence sufficient to establish the trustworthiness of Appellant's confessions: the victim was found on the couch in the living room; he appeared to have been shot while sleeping; his body was covered by a blanket; he had been shot four times in the head; a .38 caliber revolver was used; the shooter appeared to have stood above the victim; the door to the victim's residence was found unlocked, without *147 any sign of forced entry; the screen door to the victim's residence was found propped open; co-defendant Zane Johnson's fingerprints were found on an unscrewed, but working, porch light bulb at the residence; a dog was found locked in the utility room; a television was on when the victim was found; police interviews with several possible suspects led to Appellant as a possible suspect; bullets taken from the victim's head were an exact match to bullets found at the Casa Cortez apartments, where Appellant lived; Appellant's apartment had been shot up three days before the victim was killed; police investigations indicated Michael Draper came up with the idea to kill the victim; and both Appellant and the victim owed money to Draper relating to drugs. Furthermore, Appellant testified at trial that his confessions were "pretty much" accurate.
¶ 39 We find, after viewing the evidence in the light most favorable to the State and accepting all reasonable inferences and credibility choices that tend to support the jury's verdict, any rational trier of fact could have found the essential elements of the crime of conspiracy beyond a reasonable doubt. Spuehler v. State, 1985 OK CR 132, 709 P.2d 202, 203-204. The information provided Appellant with sufficient notice of what he had to defend, a conspiracy charge concerning an agreement to kill Wayne Dollar on January 29, 1998. At trial, Appellant admitted there were discussions about shooting Dollar while the group was still at Michael Draper's house. We do not find it legally significant that Appellant's trial testimony postponed the agreement a short amount of time or contended that the overt act occurred when Appellant took the gun from Draper, rather than when they drove over to the victim's home. We find Appellant's conspiracy conviction does not violate due process.
¶ 40 In proposition four, Appellant claims he was denied effective assistance of counsel under the federal and state constitutions, by the following acts of counsel: coming "perilously close" to conceding guilt to first degree murder during closing argument; unequivocally conceding guilt to conspiracy during closing arguments; the inability to effectively advocate duress due to the trial judge's denial of an instruction on that defense; and failing to object to corpus delicti for conspiracy and/or the use of Appellant's statements without substantial independent evidence of an agreement to kill Dollar and Appellant being a party to that agreement at the time that it was made.
¶ 41 We find, however, Appellant's counsel was not ineffective. First, given the fact that Appellant confessed to the murder before and during trial, it can hardly be said counsel's arguments on this point, some of which are taken out of context by Appellant, could have done anything but come "perilously close" to admitting guilt. Second, we find a reasonable trial strategy in conceding guilt to the lesser conspiracy charge during closing arguments, considering Appellant's confession and trial testimony.[11] We have previously found the trial court did not abuse its discretion in denying a duress instruction. Third, while appellate counsel has made well-reasoned arguments regarding the sufficiency of the evidence of conspiracy, those arguments have been rejected. Trial counsel was not ineffective for failing to raise those same or similar arguments. Appellant has thus failed to show his counsel's representation fell below an objective standard of reasonableness or that any errors by counsel were so serious as to deprive Appellant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
¶ 42 In proposition five, Appellant claims the trial court denied him his right to a fair trial and due process, in violation of the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Article II, §§ 7, 9, 19, and 20 of Oklahoma's Constitution, by denying his motion for new trial. His motion was based upon the trial judge's response to the jury's questions, "What is life in years?" and "What is life without parole in years?" The motion was also based upon the jury's consideration of alleged "extraneous matters *148 and influences" in the form of the jurors' opinions that punishment of life without parole meant a defendant could be released after serving a certain terms of years.
¶ 43 At trial, when the jury's note was received, the trial judge informed them in writing, "This is not for your consideration."[12] There is no indication in the record that defense counsel objected to this response. Thus, we review for plain error. Simpson v. State, 1994 OK CR 40, 876 P.2d 690, 693.
¶ 44 Appellant points to unsworn telephone interviews with ten jurors and an affidavit from a Public Defender's investigator detailing the results of his investigation, all of which were filed with the motion for new trial, as support for his claim that jurors were confused about what life and life without the possibility of parole meant.[13]
¶ 45 However, according to our evidence code, when there is an inquiry into the validity of a verdict, a juror is incompetent to testify about "any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent to or dissent from the verdict ... or concerning his mental processes during deliberations." 12 O.S.1991, § 2606(B). A juror may testify about "extraneous prejudicial information," i.e. information injected into the deliberation process from the outside, but we do not believe this includes information coming from the juror's own subjective experiences and background, as here. Moreover, in difficult line-drawing cases, the line should be drawn in favor of juror privacy, and the testimony should be disallowed. Weatherly v. State, 1987 OK CR 28, 733 P.2d 1331, 1335.
¶ 46 This Court has, in numerous instances, stated that the meaning of life without parole is self-explanatory and that an instruction on its meaning is not required. Powell v. State, 2000 OK CR 5, 995 P.2d 510, 536, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000); Howell v. State, 1998 OK CR 53, 967 P.2d 1221, 1224-25, cert. denied, 528 U.S. 834, 120 S.Ct. 93, 145 L.Ed.2d 79 (1999); McCracken v. State, 1994 OK CR 68, 887 P.2d 323, 334, cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). We need not revisit that issue here.
¶ 47 Appellant points out, however, that the "clarifying instruction" set forth in Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 320 was not used, although he acknowledges that such an instruction is not required. He then states the trial court "could have, and should have," instructed as follows:
A life sentence means imprisonment for the balance of the defendant's natural life with the possibility of being considered for parole by statute after serving fifteen years imprisonment. A life without parole sentence means imprisonment for the balance of the defendant's natural life without the possibility of ever being considered for parole.
Of course Appellant did not request this instruction. Although we see no immediate *149 problem with this instruction, it cannot be said Appellant was denied a constitutional right by the trial court's failure to issue this instruction sua sponte, especially in light of our previous cases on this issue.
¶ 48 With respect to proposition six, we find Appellant's sentence of life imprisonment without parole, although severe, was not so excessive as to shock the conscience of the Court. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149; Freeman v. State, 1994 OK CR 37, 876 P.2d 283, 291. While Appellant may not have any prior felony convictions, the record indicates he previously received a deferred sentence relating to burglary and concealing stolen property charges, and said sentence had not been resolved at the time the instant crime was committed. Appellant also has a history in the juvenile court system. His actions in firing four bullets into the head of a sleeping victim indicate he is willing to commit the most serious of crimes over drugs and his own indebtedness.
¶ 49 With respect to proposition seven, we find no cumulative error. With respect to proposition eight, we find Appellant's conviction for conspiracy and murder do not violate state and federal prohibitions against double jeopardy. This Court has consistently held that "a conspiracy to commit an unlawful act constitutes an independent crime, complete in itself and distinct from the unlawful act contemplated." Littlejohn v. State, 1998 OK CR 75, 989 P.2d 901, 909-10; Huckaby v. State, 1990 OK CR 84, 804 P.2d 447, 450.
DECISION
¶ 50 The judgments and sentences are hereby AFFIRMED.
JOHNSON, V.P.J., and LILE, J., concur.
STRUBHAR, J., concur in result.
CHAPEL, J., concur in part/dissent in part.
STRUBHAR, Judge: Concur in Results.
¶ 1 I concur in results only for the reason of stare decisis. I continue to believe that a trial court should provide a meaningful answer to questions from the jury when they ask about the meaning of life without parole.
CHAPEL, J., Concurring in Part and Dissenting in Part.
¶ 1 I concur in affirming Hawkins's murder conviction. However, I dissent to affirming (a) his conviction for conspiracy to commit murder and (b) the sentence of life without parole. First, I continue to believe that convictions for murder and conspiracy to commit murder violate the prohibition against double jeopardy.[1] I would reverse Hawkins's conspiracy conviction. Further, I have consistently stated that the jury should be informed of the meaning of life without parole.[2] In Malicoat, I said, "Our error in failing to require instruction as to the meaning of life without parole is of constitutional magnitude and has, in my judgment, resulted in death sentences for many who would otherwise have received the life without parole sentence."[3] Although this is not a capital case, the principle applies. When a jury asks a question about the term of incarceration meant by life with parole, as these jurors did, it means the jurors are confused. Juror confusion may well result in a longer sentence. Where the trial court can clear up *150 juror confusion, it should.[4] I would remand for resentencing with appropriate instructions.[5]
NOTES
[1] Matthews's incident report also confirmed Appellant had advised he would like to continue the interview.
[2] Matthews testified he normally asked defendants to "sleep on it" when they had previously invoked their right to counsel.
[3] Appellant quotes from the presentencing report, which was filed several months after the trial, and citations to the transcripts occurring after the Jackson v. Denno hearing to support these factors relating to Appellant's background.
[4] The dissent, in Oregon v. Bradshaw, had a more stringent view of what was required for a defendant to initiate further communication, i.e. the communication had to be "about the subject matter of the criminal investigation." 462 U.S. at 1053, 103 S.Ct. at 2839. Thus, the four dissenters did not believe the defendant's open-ended question, "what is going to happen to me now?", qualified as the initiation of further communication. However, even using the more-stringent definition set forth in the dissent, hypothetically, Appellant's questions regarding who had been arrested and whether or not he had been blamed would clearly be about the subject matter of the criminal investigation and constitute the initiation of further communication.
[5] This ruling is strikingly similar to the one entered by the state court in Oregon v. Bradshaw, a ruling that the Supreme Court let stand.
[6] See, e.g., Nance v. State, 1992 OK CR 54, 838 P.2d 513, 515; Hunter v. State, 1992 OK CR 19, 829 P.2d 64, 68; and Broaddrick v. State, 1985 OK CR 108, 706 P.2d 534, 536.
[7] See, e.g., Spunaugle v. State, 1997 OK CR 47, 946 P.2d 246, 250("We find the defense of duress is available in Oklahoma to a defendant charged with the crime of first degree malice murder."); Spunaugle, 946 P.2d at 256 (J. Lumpkin dissenting)("the defense of duress is not applicable to first degree malice aforethought murder."); Tully v. State, 1986 OK CR 185, 730 P.2d 1206, 1210 (discussing how the common law's, and hence Oklahoma's, rationale for denial of the duress defense to intentional killing "is premised on the theory that one should risk or sacrifice one's own life rather than take the life of an innocent person.")
[8] I continue to disagree, however, for the reasons stated in my dissent in Spunaugle.
[9] See 21 O.S.1991, § 152(7); 21 O.S.1991, § 155.
[10] See Shrum v. State, 1999 OK CR 41, 991 P.2d 1032, 1036.
[11] Appellant's request for an evidentiary hearing on this issue, relating to his counsel's alleged failure to obtain his consent before conceding guilt on the conspiracy charge is denied, considering the entire record, Appellant's statements, and his testimony at trial.
[12] Appellant suggests, in his brief, that the question asked and the answer given raises an issue similar to that in Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994). We disagree. Simmons dealt with a capital trial, where the defendant's future dangerousness was at issue but the jury was never informed the defendant was parole ineligible. Here, the death penalty and statutory aggravating circumstances are not an issue. Furthermore, the specific question asked was to define the two sentencing options, i.e. life and life without parole, in a specific number of years that would be served. The precise number of years to be served is not a proper question, however, and the trial judge correctly advised the jury it was not for their consideration. The trial judge did not, in any way, tell the jury they could not consider the issue of parole in their deliberations. Indeed, the jury's ability to consider that issue was inherent in Jury Instruction 27, which stated that "Murder in the First Degree is punishable by Life or Life without the possibility of parole." We find this instruction is a constitutionally-sufficient explanation of the jury's sentencing options and certainly no violation of Simmons or its progeny.
[13] The telephone interviews, if accurate, indicate some jurors believed life imprisonment without the possibility of parole meant exactly what it says, that the defendant would never be a candidate for parole, while others believed a person still might be paroled after serving a certain amount of years (although some of these believed it was possible that a defendant might not ever get out of prison).
[1] Moss v. State, 1994 OK CR 80, 888 P.2d 509, 522 (Chapel, J., concurring in part and dissenting in part).
[2] See, e.g., Powell v. State, 2000 OK CR 5, 995 P.2d 510, 543, cert. denied, 531 U.S. 935, 121 S.Ct. 321, 148 L.Ed.2d 258 (2000) (Chapel, J., dissenting); Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 605 n. 100, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999); Mollett v. State, 1997 OK CR 28, 939 P.2d 1, 15, cert. denied, 522 U.S. 1079, 118 S.Ct. 859, 139 L.Ed.2d 758 (1998) (Chapel, J., concurring in result); Johnson v. State, 1996 OK CR 36, 928 P.2d 309, 321, cert. denied, 522 U.S. 832, 118 S.Ct. 99, 139 L.Ed.2d 54 (1997) (Chapel, J., specially concurring); Smallwood v. State, 1995 OK CR 60, 907 P.2d 217, 239, cert. denied, 519 U.S. 980, 117 S.Ct. 431, 136 L.Ed.2d 330 (1996) (Chapel, J., specially concurring); McGregor v. State, 1994 OK CR 71, 885 P.2d 1366, 1383 n. 59, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995) (concurring by reason of stare decisis).
[3] Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 400 n. 43, cert. denied, 531 U.S. 888, 121 S.Ct. 208, 148 L.Ed.2d 146 (2000).
[4] "A trial court has a duty of special care to evaluate jurors' understanding of the law and clear away any explicit difficulties." Hooks v. State, 2001 OK CR 1, 19 P.3d 294, 312, cert. denied, ___ U.S. ___, 122 S.Ct. 371, 151 L.Ed.2d 282 (2001); Weeks v. Angelone, 528 U.S. 225, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000); Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946).
[5] As the majority notes, six years ago we suggested the standard instructions on punishment could be clarified by defining life both with and without parole. Johnson, 928 P.2d at 320.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-6590
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANK PHILLIP KALITA, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:01-cr-00391-JCC)
Submitted: August 31, 2006 Decided: September 7, 2006
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Frank Phillip Kalita, Jr., Appellant Pro Se. Michael Edward Rich,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Frank Phillip Kalita, Jr., appeals the district court’s
order denying his request for copies at government expense. We
have reviewed the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. United States v. Kalita, No. 1:01-cr-00391-JCC (E.D. Va.
filed Mar. 3, 2006; entered Mar. 6, 2006). 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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91 F.3d 136
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Teresa D. VARNEY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Teresa D. VARNEY, Defendant-Appellant.
No. 95-5847.
No. 95-7709.
United States Court of Appeals, Fourth Circuit.
Argued May 10, 1996.Decided July 17, 1996.
ARGUED: John G. Hackney, Jr., Charleston, West Virginia, for Appellant. John Castle Parr, Assistant United States Attorney, Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A. Betts, United States Attorney, Charleston, West Virginia, for Appellee.
Before MICHAEL, Circuit Judge, NORTON, United States District Judge for the District of South Carolina, sitting by designation, and DOUMAR, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
OPINION
PER CURIAM:
1
Teresa D. Varney was convicted after a jury trial of five counts stemming from a drug trafficking conspiracy in which she engaged with her husband. On appeal, she challenges the admission of certain evidence and her conviction of using or carrying a firearm in violation of 18 U.S.C. § 924(c)(1). We affirm.
I.
2
Viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80 (1942), the evidence at trial demonstrated that from January, 1991 to June, 1992, Teresa D. Varney (hereafter "Varney" or "defendant") and her husband Kenneth Varney engaged in a conspiracy to distribute and possess with intent to distribute narcotics in Mercer County, West Virginia. Kenneth Varney was the primary actor in the conspiracy; Teresa Varney accompanied him on frequent trips to procure the drugs from a supplier out-of-state, and on almost-daily visits to a street-level dealer.
3
The Varneys' normal routine was to travel to Atlanta, where Kenneth met his supplier and picked up the narcotics that would then be distributed back in West Virginia. They were often accompanied on these trips by one of two older women, Biddie Thomas (age 54) and Louise White (age 61). At the time of her arrest, in 1992, defendant was age 25; her husband is 16 years her senior. The older women were apparently brought along to provide cover, that is, to make the Varneys less suspicious to law enforcement.
4
The conspiracy ended in June, 1992, when Biddie Thomas, by then a confidential informant, called her contact in the West Virginia state police to tell him that the Varneys would be returning to the state with a supply of drugs. A roadblock was set up outside Bluefield, West Virginia on a highway off-ramp. The police had a federal search warrant. Because the officers were aware there was a firearm in the car, they approached the car with their weapons drawn. Defendant was in the passenger seat. One officer yelled several times at Varney--each time instructing her to get out of the car. Defendant was slow to respond, and began reaching to her left for her pocketbook. At this point, two officers grabbed her and pulled her from the car. The purse was recovered from a position just to the left of the passenger seat. The police found a loaded, .38 caliber, two shot derringer in a radar detector case inside her purse; they also found numerous bags of marijuana in the trunk of the car.
5
On July 9, 1992, a grand jury charged the defendant and her husband in a five count indictment. Count One charged them with conspiracy to distribute and to possess with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846. Count Two charged them with traveling in interstate commerce with intent to facilitate or carry on an unlawful activity in violation of 18 U.S.C. § 1952(a)(3). Count Three charged them with possession with intent to distribute marijuana (aided and abetted by each other), in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Four charged them with using and carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Count Five charged Teresa Varney with conduct to intimidate or corruptly persuade a witness to withhold testimony, in violation of 18 U.S.C. § 1512(b)(2); Kenneth Varney was not named in this count.
6
On February 3, 1993, after a two day trial, a jury found Teresa Varney guilty of all five counts charged in the indictment.1 On April 23, 1993, she was sentenced to 84 months imprisonment. This sentence consisted of 24 months on Counts One, Two, Three, and Five (to run concurrently) and a 60 month consecutive term, as required by statute, on Count Four.
7
The path from sentencing to this court took some three years; it deserves brief elaboration.
8
Following sentencing, defendant informed her trial counsel that she wanted to appeal; he learned of this on May 4, 1993. Counsel erroneously concluded that the ten-day period for noticing an appeal under Federal Rule of Appellate Procedure 4(b) had run, and, consequently, did not file a notice of appeal. In fact, the ten-day period did not commence until entry of the judgment order on April 26, and an appeal would have been timely on May 4.
9
The following March, defendant filed a notice of appeal pro se; it was dismissed as untimely on motion of the United States. In August, 1994, Varney filed a 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel for failure to notice the appeal. The Magistrate Judge to whom the case was referred recommended that the court simply vacate and immediately reinstate the sentence, thereby giving Varney a chance to pursue a direct appeal. Before the district court passed on this recommendation, defendant (by now assisted by a new counsel) requested more time to file additional § 2255 claims. The Magistrate Judge to whom the case was again referred repeated her earlier recommendation that the court vacate and reinstate defendant's sentence; she also made recommendations on the other claims submitted. On October 12, 1995, the district court found that the failure of counsel to file a notice of appeal constituted ineffective assistance. The court therefore vacated the sentence and reinstated the same sentence for the sole purpose of allowing Varney to take a direct appeal. The court declined to consider the additional § 2255 claims until defendant exhausted her direct appeal, and dismissed them without prejudice. This time, Varney timely noticed an appeal.
10
Thus, on this appeal we consider only the alleged errors at trial, and intimate no opinion on the § 2255 claims not passed on by the district court.
II.
A.
11
Varney contends that certain evidence was admitted in violation of Federal Rule of Evidence 404(b). Because there was no objection at trial to the allegedly infirm testimony, we review this claim for plain error. Fed.R.Evid. 103; United States v. Chin, 83 F.3d 83, 87 (4th Cir.1996). Therefore, her conviction may be reversed only if there was "(1) error (2) which was plain; (3) which affected substantial rights; and (4) which seriously affected" the fairness of the proceedings. Fed.R.Crim.P. 52(b); United States v. Moore, 11 F.3d 475, 481 (4th Cir.1993), cert. denied, 114 S.Ct. 1864 (1994) (citing United States v. Olano, 507 U.S. 725, 732-37 (1993)).
B.
12
Rule 404(b) provides in pertinent part that
13
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....
14
Rule 404(b) is a rule of inclusion, admitting "all evidence of other crimes or acts except that which tends to prove only criminal disposition." United States v. Powers, 59 F.3d 1460, 1464 (4th Cir.1995) (quoting United States v. Percy, 765 F.2d 1199, 1203 (4th Cir.1985)). Under Rule 404(b), prior bad acts are admissible if "(1) relevant to an issue other than character, (2) necessary, and (3) reliable." United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988). Of course, even if admissible under Rule 404(b), evidence may be excluded if its "probative value is substantially outweighed by the danger of unfair prejudice." Fed.R.Evid. 403.
15
Varney objects to four portions of the testimony. None of these claims has merit.
16
Varney objects first to testimony by Louise White that defendant convinced White to buy a car for her, while keeping it titled and insured in White's name. The apparent motive for doing so was to avoid scrutiny by welfare investigators (the Varneys were apparently receiving food stamps). Varney claims that this suggestion of welfare fraud was prejudicial.2 Significantly, however, the only mention of this motivation came on cross-examination. (Joint Appendix 167-68) (hereafter "J.A."). Thus, there can be no objection to this evidence by the defendant.
17
Defendant next objects to testimony by Biddie Thomas suggesting that the Varneys obtained money from Louise White under false pretenses. (J.A. 77). Whatever harm resulted from this brief (and cryptic) testimony does not constitute plain error, particularly given that defense counsel subsequently elicited more precise testimony from Louise White herself about the money that the Varneys induced her to give to them. (J.A. 164-68).
18
Defendant also objects to testimony by White that she paid Kenneth Varney several thousand dollars to beat up her son-in-law, who was abusing both White and White's daughter. (Mr. Varney did not keep his end of the bargain). At no point during this testimony is the defendant's name mentioned in connection with the plan to beat up White's son-in-law. By definition, this is not error, because there was no prejudice to defendant herself.
19
Finally, defendant claims prejudice regarding an incident described by White. Kenneth Varney was driving at a high speed, and when he saw a police car in pursuit, instructed Teresa to switch places with him. Teresa responded by stating that "I can't be under the wheel" and told White to get into the driver's seat. White got a speeding ticket as a result. There was no testimony that drugs were present or that the police tried to search the car. Even if this was error, it is impossible to discern how it constitutes plain error or affected defendant's substantial rights--other than to demonstrate that she did not want to be charged with speeding. It certainly does not indicate a criminal disposition or a disposition to engage in drug trafficking.
20
In sum, we find no plain error in the admission of the foregoing evidence. Nor do we find that its admission violated the proscription of Rule 403.
III.
A.
21
Defendant challenges the sufficiency of the evidence on Count Four, which charged her with using or carrying a firearm during and in relation to a drug offense, in violation of 18 U.S.C. § 924(c). We review this claim under the well-settled standard that a criminal conviction shall not be set aside for insufficient evidence if, "viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979).
B.
22
Title 18, United States Code, Section 924(c)(1) requires a five year consecutive term for any person who "during and in relation to any ... drug trafficking crime ... uses or carries a firearm." By its terms, the statute requires two showings: that the defendant "used or carried" a firearm, and, if so, that such occurred "during and in relation" to a drug trafficking crime. Smith v. United States, 508 U.S. 223, 227-28 (1993).
23
The latter aspect is easily satisfied. The Supreme Court has stated that the "during and in relation to" element requires, at a minimum, that the firearm "must have some purpose or effect with respect to the drug trafficking crime" and its presence cannot be a coincidence. Id. at 238; see United States v. Sloley, 19 F.3d 149, 152 (4th Cir.1994) ("in relation to" requires that gun "facilitated, furthered, or had the potential to facilitate or further the drug crime").
24
Here, there was testimony that the Varneys carried a gun on every trip to the south. (J.A. 101, 115). Additionally, Louise White testified that, as they were setting off, Kenneth Varney would sometimes ask defendant "Do you have that gun?", and that on one occasion she replied that she did not and then went back into the house to get it. (J.A. 171-72). Moreover, the gun was next to the defendant in the car when the Varneys were transporting a supply of marijuana. A rational jury, therefore, could find that the presence of the gun had the potential to facilitate or further the drug crime and its presence was not coincidental.
25
That leaves the question of whether the defendant "used or carried" the firearm. There can be no doubt, and the government concedes as much, that the defendant did not "use" the firearm within the meaning of Bailey v. United States, 116 S.Ct. 501, 505 (1995), which requires some showing that the firearm was "actively employed." Having said that, the evidence described above regarding the circumstances of the defendant's arrest--where the gun was within her purse, which itself was within arm's reach--supports the jury's finding that Varney "carried" the firearm within the meaning of Section 924(c)(1). United States v. Hayden, --- F.3d ---, # 6D 6D6D# , No. 94-5861, slip. op. at 13-14 (4th Cir. May 31, 1996); see United States v. Baker, 78 F.3d 1241, 1247-48 (7th Cir.1996) (transporting gun within immediate reach constitutes "carrying"); United States v. Farris, 77 F.3d 391, 395-96 (11th Cir.1996) (gun in glove compartment of car satisfies "carry" prong).
IV.
26
Finally, Varney argues that her trial counsel was ineffective for failing to raise the issue of her competency to stand trial. Ineffective assistance of counsel claims should be raised under 28 U.S.C. § 2255 motions, unless it "conclusively appears" from the record that counsel was ineffective. United States v. Matzkin, 14 F.3d 1014, 1017 (4th Cir.1994); United States v. DeFusco, 949 F.2d 114, 120-21 (4th Cir.1991), cert. denied, 503 U.S. 997 (1992); United States v. Fisher, 477 F.2d 300, 302 (4th Cir.1973); United States v. Mandello, 426 F.2d 1021, 1023 (4th Cir.1970). Because the record before us does not conclusively demonstrate that Varney's trial counsel was ineffective, we decline to consider this issue.
V.
27
For the foregoing reasons, we affirm defendant-appellant Teresa Varney's conviction.
AFFIRMED
1
Kenneth Varney was tried separately
2
Defendant urges that prejudice is manifest in that the suggestion of welfare fraud "so inflamed the passions of one juror that she felt compelled to bring the matter to the attention of the Court." In fact, this person, the alternate juror, informed the judge (outside the presence of the other jurors) that she worked for the West Virginia Department of Human Services, and was obligated by her job to report any evidence of welfare fraud. Thus, when the issue arose at trial, she promptly (and properly) sought to inform the court of possible bias. The district judge decided not to dismiss her at that point--inasmuch as she had already been designated as the alternate--and stated that he would deal with the question of whether to dismiss her only if she was ultimately needed for a verdict. (Joint Appendix 213C-213G)
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107 S.W.3d 13 (2002)
Edward SANCHEZ and Raul X. Villarreal as Guardian of Christine Lisa Sanchez, Appellants/Cross-Appellees,
v.
MICA CORPORATION, Appellee/Cross-Appellant.
M & M Contracting of Texas, Inc., Appellee,
v.
Spaw-Glass, Inc. and Sylvia Estrada, Cross-Appellees.
No. 04-01-00643-CV.
Court of Appeals of Texas, San Antonio.
December 11, 2002.
Rehearing Overruled January 24, 2003.
*20 Harry S. Bates, Thomas C. Hall, Hall & Bates, L.L.P., Henry B. Gonzalez, Jr., Law Offices of Henry B. Gonzalez, San Antonio, for appellants.
Richard F. Werstein, Bret L. Walton, Werstein, Smith & Wilson, Luis R. Vera, Jr., LYvonne Brittingham, Law Offices of Luis R. Vera, Jr., & Associates, Ricardo R. Reyna, Brock & Person, P.C., Nissa M. Sanders, Crofts & Callaway, P.C., San Antonio, Michelle E. Robberson, R. Brent Cooper, Diana L. Faust, Cooper & Scully, P.C., Dallas, Ross Pringle, Thomas J. Mitchell, III, Wright & Greenhill, P.C., Austin, for appellees.
Sitting: PHIL HARDBERGER, Chief Justice, CATHERINE STONE, Justice, PAUL W. GREEN, Justice.
Opinion by: PHIL HARDBERGER, Chief Justice.
This case demonstrates the uncertainty of life in even the most commonplace of activities. It also raises several legal questions involving settlement credits, a juror's bias, the jury charge, and legal and factual sufficiency issues. The facts are compelling.
A woman named Betty Jean Sanchez was an employee at the downtown campus of the University of Texas at San Antonio ("UTSA"). As she was walking to work, Mrs. Sanchez approached an area of sidewalk in which an electrical pull box was embedded. The pull box is designed for people to walk on as a part of the sidewalk. This pull box, however, had an electrical fault which made it electrically live and extremely dangerous. When Mrs. Sanchez stepped on it, she was killed on the spot. How such an awful thing could have happened was the subject of the lawsuit.
Edward Sanchez and Christine Sanchez, the appellants ("Sanchezes"), are Mrs. Sanchez's children, who were 18 and 14, respectively, when Mrs. Sanchez died. The Sanchezes sued a number of contractors and subcontractors, City Public Service ("CPS"), and the Texas Department of *21 Transportation ("TxDOT"). A third plaintiff, Sylvia Estrada, also brought suit. Estrada was present when Mrs. Sanchez was electrocuted and was electrically shocked when she attempted to assist Mrs. Sanchez.
CPS and TxDOT settled the claims against them before trial for $2,500,000 and $8,000, respectively. A jury found four entities negligent, but did not find a fifth general contractor, Spaw-Glass, Inc., negligent. The jury allocated the percentage of negligence as follows: (1) CPS 15%; (2) M & M Contracting30%; (3) MICA50%; and (4) TxDOT5%. The jury awarded the Sanchezes $7,590,000 in damages, including $340,000 for loss of inheritance. The jury awarded Estrada $303,000. The trial court determined that M & M and Mica were entitled to a dollar-for-dollar settlement credit in the amount of $2,508,000 with regard to the Sanchezes' settlements with CPS and TxDOT. The trial court also determined that the damages awarded for loss of inheritance should be reduced to $106,000. The net judgment awarded in favor of the Sanchezes was $4,848,000. The trial court determined that M & M and Mica were entitled to a dollar-for-dollar settlement credit in the amount of $7,500 with regard to Estrada's settlements. The net judgment awarded in favor of Estrada was $242,400.
The Sanchezes present two issues on appeal, contending the trial court erred by: (1) granting a settlement credit for the portion of the CPS settlement allocated to punitive damages; and (2) reducing the jury's award for loss of inheritance damages. Mica presents four issues in its cross-appeal, contending: (1) the trial court erred in refusing to strike a juror for bias; (2) the evidence is legally and factually insufficient to support the jury's finding on Mica's negligence; (3) the trial court erred in denying Mica's request for a jury question on the statute of repose and for a jury instruction on new and independent cause; and (4) the damages awarded to the Sanchezes for loss of companionship and society and mental anguish ($7,000,000) and the damages awarded to Estrada for physical pain and mental anguish ($300,000) were excessive. We affirm the trial court's judgment.
I. SANCHEZES' APPEAL (TWO ISSUES)
SETTLEMENT CREDIT
Mica elected to have the court reduce the amount of damages to be recovered by the Sanchezes by the sum of the dollar amount of all settlements. See Tex. Civ. Prac. & Rem.Code Ann. § 33.012(b) (Vernon 1997). "A defendant seeking a settlement credit has the burden to prove its right to such a credit." Utts v. Short, 81 S.W.3d 822, 828 (Tex.2002). A defendant meets this burden by showing, in the settlement agreement or otherwise, the amount of the settlement credit. Id. "Once the nonsettling defendant demonstrates a right to a settlement credit, the burden shifts to the plaintiff to show that certain amounts should not be credited because of the settlement agreement's allocation." Id. In order "to limit a nonsettling party's dollar-for-dollar settlement credit to an amount representing actual damages, the settling party must tender a valid settlement agreement allocating between actual and punitive damages to the trial court before judgment. Otherwise, the nonsettling party is entitled to a credit equaling the entire settlement amount." Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 928 (Tex.1998) (emphasis added). This allocation is important because a defendant cannot receive a credit for settlement amounts allocated to punitive damages. See id. at 927; Tex. Civ. Prac. & Rem.Code Ann. § 33.002(c)(2) (Vernon 1997).
*22 When a case involves facts suggesting that the settlement transaction or allocation is a sham, the nonsettling defendant has the burden of presenting evidence of the sham as part of its burden in electing a dollar-for-dollar credit. Utts, 81 S.W.3d at 829. The evidence may be presented before or after the jury's verdict; however, "the trial court should resolve the issue before it submits the case if the nonsettling defendant so requests." Id. Once the nonsettling defendant presents evidence of a sham, the trial court must presume the entire settlement credit applies unless the plaintiff presents evidence to overcome this presumption. Id.
At the request of several defendants, the trial court conducted a hearing on the settlement credit issue after all parties had closed and the case was ready to be submitted to the jury. Prior to that hearing, a copy of a handwritten Rule 11 agreement between CPS and the Sanchezes was submitted to the court. The Rule 11 agreement satisfied the defendants' burden to show the amount of the settlement. The burden then shifted to the Sanchezes to present evidence of the allocation. If the Sanchezes met that burden, the burden would shift back to the defendants to prove that the allocation was a sham.
The Rule 11 agreement provided that the plaintiffs had the right to allocate the settlement funds among and between the estate and the children. The agreement also provided that the plaintiffs had the right to allocate the funds among damages, including punitive damages. The day after the Rule 11 agreement was signed, the plaintiffs' lawyer sent a letter to the other defendants' lawyers, attaching a copy of the agreement and informing them that the settlements funds would be allocated as follows: (1) $250,000 to each of the Sanchezes; (2) $1,000,000 to the estate; and (3) $1,000,000 to punitive damages.
At the settlement credit hearing, Tom Hall, one of the Sanchezes' attorneys, testified that the ad litem for Christine, who was a minor, was not present during the settlement negotiations but had verbally approved the amount of the settlement allocated to Christine. Hall testified that Edward had not sought probate court approval of the settlement. Hall stated that the punitive damage award had not been allocated among the estate and the children. Hall was uncertain whether the probate attorney for the estate had approved the allocation. Hall had not discussed the allocation of the funds in dollar figures with the probate attorney or the ad litem but had some general discussion about allocating a portion of the funds to punitive damages. Neither the probate attorney nor the ad litem had given approval of an allocation based on percentages. Hall testified that the allocation to the estate and between actual and punitive damages was decided after consultation with a tax lawyer, giving consideration to estate tax consequences. Hall stated that the estate would be taxable after $675,000; however, the $325,000 would not be taxable if there were deductions from the $1,000,000 allocated to the estate, such as for attorneys' fees. Hall testified that the allocation decision may also have been affected by discussions regarding structured settlement. Hall stated that CPS had voiced a concern regarding the allocation to punitive damages based on whether the punitive damages would be paid from CPS's self-insured retention or insurance proceeds. Hall testified that the final allocation would be made in the final settlement documents, but he was uncertain when those documents would be signed. Hall stated that the Sanchezes would incur income tax liability for the portion of the funds allocated to punitive damages. Hall admitted that the primary benefit of allocating funds to punitive damages was to reduce the settlement credit. Hall also *23 admitted that it was possible for the plaintiffs to change the allocation before the final settlement documents were signed. The Sanchezes' other attorney, Harry Bates, clarified that the allocation was made after consultation with a tax lawyer and based on the belief of the Sanchezes' attorneys that the punitive damage claim against CPS had merit.
After the evidence was presented, the trial court asked Hall and Bates what actions CPS took that would support punitive damages. After hearing their response, the trial court asked Hall and Bates the basis for allocating four times as much in actual damages to the estate as to the children in view of the fact that Mrs. Sanchez was probably only conscious for 15 seconds. The trial court ruled that the defendants were entitled to the entire $2,500,000 settlement credit.
After the jury rendered its verdict, the trial court held a hearing on post-trial motions. At the hearing, the Sanchezes introduced into evidence the final settlement documents. In the final settlement documents, $1,500,000 in actual damages was allocated to the Sanchezes, $10 in actual damages was allocated to the estate, and $1,000,000 in punitive damages was allocated to the Sanchezes. In response to the introduction of the final documents, the trial court stated, "Mr. Hall stood up and argued CPS wasn't even negligent. How can y'all say they paid 1 million for punitive[s] in light of that?" The trial court also inquired, "Are youall defendants, satisfied you've made whatever record you want to, to sustain my finding? I don't know if I expressly made that finding, you know, before trial, but I certainly implicitly made it."
A. Findings of Fact and Conclusions of Law
In their reply brief, the Sanchezes contend that they timely requested findings of fact and conclusions of law on the settlement credit issue; therefore, the trial court had a mandatory duty to file findings. Although the trial court had a mandatory duty to file findings, the trial court's failure is not harmful if the record affirmatively shows that the complaining party suffered no injury. Texas Dept. of Public Safety v. Williams, 76 S.W.3d 647, 651-52 (Tex.App.-Corpus Christi 2002, no pet.). The test for determining harm is whether under the circumstances, the appellant would have to guess the reason the trial court ruled against it. Id.; Elizondo v. Gomez, 957 S.W.2d 862, 865 (Tex.App.-San Antonio 1997, pet. denied). In this case, the trial court's judgment states that its "rulings and rationale for the application of this settlement credit are set forth in the Reporter's Record for the May 25, 2001 hearing on Defendants' Bill of Exception and the hearing of post-trial motions on July 19, 2001." Based on those records, the Sanchezes were not required to guess the reason for the trial court's ruling. The trial court's failure to file written findings of fact and conclusions of law did not result in harm to the Sanchezes.
B. Existence of Allocation
The letter sent by the Sanchezes' attorneys contains an allocation of the settlement funds. An argument can be made that the allocation was not a final allocation because it was subject to change until the final settlement documents were drafted. This argument is bolstered by the evidence that the allocation was changed in the final settlement documents. The focus of the trial court's hearing, however, was on the existence of a sham transaction because the Sanchezes were not required to produce a final allocation until immediately before judgment, and the Sanchezes produced a final allocation before judgment. *24 Therefore, the issue presented in this appeal is whether the trial court properly found that the initial allocation was a sham transaction.
C. Sham Transaction
Mica urges that we apply an abuse of discretion standard of review to the trial court's ruling because the issue involves both factual determinations and legal conclusions. The Texas Supreme Court did not indicate what standard of review should be applied in reviewing the trial court's determination that a settlement allocation is a sham. We agree with Mica that an abuse of discretion standard is appropriate.
A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). With respect to the resolution of fact issues, a trial court abuses its discretion only if the trial court could reasonably have reached only one decision, and the trial court reached a different decision. Id. at 840. A trial court has no discretion in determining what the law is or applying the law to the facts; therefore, a clear failure of the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Id.
Applying an abuse of discretion standard, we must uphold the trial court's decision unless the trial court could only reasonably have decided that no sham transaction existed. The trial court had evidence before it that the two independent checks on the settlementthe ad litem and the probate courthad not approved the allocation. In addition, Hall admitted that the primary benefit to allocating funds as punitive damages was to reduce the settlement credit, and the trial court could have given less weight to Hall's vague discussion of the tax implications in view of Hall's admission regarding the primary benefit of the allocation. The trial court expressed its concern that the estate initially was being awarded four times as much in actual damages as the children when the evidence showed that Mrs. Sanchez was probably conscious for only 15 seconds. Although this allocation was changed in the final documents, if we consider the evidence and argument presented at the post-verdict hearing, the trial court noted that Hall's argument to the jury that CPS was not even negligent was contrary to a punitive damages allocation. In view of the evidence presented, the trial court did not abuse its discretion because the trial court could reasonably have decided from the evidence that the allocation was a sham. Therefore, the trial court did not err in applying the entire $2,500,000 as a settlement credit for the CPS settlement.
LOSS OF INHERITANCE DAMAGES
The jury awarded the Sanchezes $340,000 for loss of inheritance damages. The trial court reduced the damage award, finding no evidence of loss of inheritance damages in excess of $106,000. The Sanchezes contend that the trial court erred in reducing the jury's award.
A. Waiver
Mica contends that the Sanchezes waived this issue by limiting their appeal to the settlement credit issue. Mica's argument contains a record citation to the Sanchezes' notice of appeal which states the Sanchezes, "appeal from the Judgment signed on August 13, 2001, specifically the portion of the Judgment awarding the non-settling Defendants a dollar-for-dollar credit for the settlement with the settling Defendants." Under the former rules of appellate procedure, an appellant could file a limited notice of appeal; however, that *25 procedure was abolished under the amended rules. See John Hill Cayce, Jr., Civil Appeals in Texas: Practicing Under the New Rules of Appellate Procedure, 49 Baylor L.Rev. 867, 890-91 (1997). Because the rules no longer permit a limited notice of appeal, the Sanchezes' notice of appeal specifying one of the issues to be raised should not waive their complaint as to other issues not specifically mentioned.
Mica further contends that the Sanchezes waived this issue by requesting a clerk's record that only included those portions of the record related to the settlement credit issue. The rule and the case cited by Mica do not support its contention. Rule 34.6(c) enables an appellant to request a partial reporter's record under the requirements of the rule, which limits the points or issue to be presented to those points or issues included in the request for the partial reporter's record. Tex.R.App. P. 34.6(a). No similar rule is applicable to the clerk's record because the rule specifies the documents that must be included subject to requests for additional items by the parties. See Tex.R.App. P. 34.5(a)(b). Mica's assertion of waiver is overruled.
B. Concession of Error
Mica also asserts that the Sanchezes' attorneys conceded that the evidence was insufficient to support the $340,000 award at the post-verdict hearing. The Sanchezes respond that the record does not indicate a concession by their attorneys; instead, the record only reflects that the Sanchezes' attorneys did not contest the issue.
When the argument regarding the loss of inheritance damages was raised at the post-verdict hearing, the Sanchezes' attorney stated that the Sanchezes' economist testified regarding Mrs. Sanchez's projected earnings during her work life expectancy of 17.1 years, which he discounted back to present value. The economist also deducted reasonable expenditures. The Sanchezes' attorney claimed that the defendants' argument was that the economist only deducted for Mrs. Sanchez's personal consumption and not the amount she would have expended on the children. The Sanchezes' attorney argued:
MR. BATES:.... So the figure that he did come up with at trial that he testified to that was available to be inherited by Edward and Christine Sanchez was $106,000.
I think they probably do have a legitimate argument that the 340,000 may be excessive. I guess one could argue that those calculations that Mr. Dillman made on her personal expenditures are on the average, that she could have spent more on herself or less on herself; and, therefore, that $106,000 figure could be higher or could be less.
But I think probably the problem that you have with the $340,000 that the jury wrote in, I don't think her total income would have been that much during that time period we're talking about. So I think the Court
THE COURT: You mean, total, you know, net income, just without paying for food and rent, it wouldn't have been 340?
MR. BATES: Right, that's correct. She earned about $13,000 a year. And if you calculate that out for 17 years and discount it to present value, I think it is less than $340,000. So from that standpoint, I think they probably do have a legitimate argument that it ought to be reduced to $106,000.
I think the argument that there's not enough evidence to support the $106,000 figure, though, is not accurate. I think Mr. Dillman's testimony certainly does support that.
*26 In later discussion regarding the evidence of loss of inheritance, the following dialogue occurred:
THE COURT: And don't I take that out the amount of remittitur? And by the way, let'sis that remittitur, or do I find on the 106 that there's no evidence of damages above 106? Isn't that what you would rather have?
MR. BATES (Counsel for the Sanchezes): I think it's the latter.
THE COURT: Yes, I do too. Don't y'all?
MR. COOPER (Defense counsel): But there's no
THE COURT: On a remittitur, I say you remit it, or I grant a new trial. I meant, I think there's no evidenceI mean, I think you conceded no evidence above 106. So don't I just disregard the findings beyondabove 106 on inheritance?
MR. BATES: I believe that is what the Court ought to do.
THE COURT: Do the defendants disagree with that?
MR. PRINGLE (Defense counsel): I think you do go by agreement of the parties.
THE COURT: Well, it just wasn't contested. But it's a motion to disregard the answer, the damages on inheritance beyond 106?
MR. PRINGLE: That's right.
THE COURT: So I grant that.
"[A] party cannot lead a trial court into error and then complain about it later on appeal." Union City Body Co. v. Ramirez, 911 S.W.2d 196, 202 (Tex.App.-San Antonio 1995, no writ); see also Kelly v. Cunningham, 848 S.W.2d 370, 371 (Tex. App.-Houston [1st Dist.] 1993, no writ). The Sanchezes' attorney, Mr. Bates, told the trial court that the present value of Mrs. Sanchez's income absent any expenditures would be less than $350,000 and that the defendants had a "legitimate" argument that the loss of inheritance damages should be reduced to $106,000. Mr. Bates also told the trial court that the economist testified that the amount available to be inherited was $106,000. In further discussion, the trial court told Mr. Bates that the trial court believed Mr. Bates had conceded that there was no evidence to support a finding above $106,000, and asked Mr. Bates whether the trial court should disregard the findings above $106,000 based on that concession. Mr. Bates responded that he believed "that is what the Court ought to do." Based on this discussion, the Sanchezes acquiesced in the reduction of the loss of inheritance damages and are not be able to complain about the reduction on appeal.
C. Sufficiency of the Evidence
Even if we address the merits of the Sanchezes' complaint, we believe the record contains no evidence to support the jury's finding regarding loss of inheritance damages in excess of $106,000.
A trial court may disregard a jury's finding only when there is no evidence to support the jury's finding. Brown v. Bank of Galveston, Nat. Ass'n, 963 S.W.2d 511, 513 (Tex.1998); Komet v. Graves, 40 S.W.3d 596, 603 (Tex.App.-San Antonio 2001, no pet.). In determining whether there is no evidence to support a jury verdict, we consider the evidence favorable to the jury's verdict and reasonable inferences that tend to support it. Brown, 963 S.W.2d at 513; Komet, 40 S.W.3d at 603. If there is more than a scintilla of evidence to support the jury's finding, the jury finding must be upheld. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990).
*27 In Texas, loss of inheritance damages are defined as "the present value that the deceased, in reasonable probability, would have added to the estate and left at natural death to the statutory wrongful death beneficiaries but for the wrongful act causing the premature death." Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 633 (Tex.1986). "If the decedent would have earned no more than he and his family would have used for support," "loss of inheritance damages would properly be denied." Id.
Dr. Dillman testified that $106,000 represented the present value of Betty Jean Sanchez's stream of income from the date of her death through her work life expectancy, minus what she would have spent on herself. This is the only evidence of the present value that Mrs. Sanchez would have added to her estate and left to her children. Therefore, there is no evidence to support a finding of loss of inheritance damages in excess of $106,000.
Because the Sanchezes led the trial court into disregarding the jury's finding, the Sanchezes did not preserve any complaint regarding loss of inheritance damages for appeal. Even if the complaint was preserved, the trial court did not err in finding no evidence to support loss of inheritance damages in excess of $106,000.
II. MICA's CROSS-APPEAL (FOUR ISSUES)
REFUSAL TO DISQUALIFY JUROR
Mica contends that the trial court erred in refusing to disqualify Juror James Casias for bias. The Sanchezes, Spaw-Glass, and Estrada filed briefs in response to this issue. Estrada adopts the arguments made by the Sanchezes. The Sanchezes and Spaw-Glass contend that the trial court did not err in denying the motion to strike or, alternatively, the error was harmless in view of the jury's unanimous verdict.
After the jury was sworn but before trial on the merits commenced, Juror James Casias informed the trial court that he worked for a company that had a printing contract with Spaw-Glass and, in his opinion, his service on the jury would present a conflict of interest. Casias informed the trial court that he was providing this information because he felt a little biased on trying to make a decision against Spaw-Glass. Casias stated that the contract with Spaw-Glass did not represent a big part of his paycheck, but it was a contribution. In response to the trial court's inquiry regarding whether Casias honestly thought Spaw-Glass would cancel its contract based on Casias's jury service, Casias responded that he did not know. In response to whether Casias could sit and give a fair decision to both sides based on the evidence, Casias responded that he felt he could probably be a little biased because Spaw-Glass could cancel its contract. Casias stated that if he had some assurance that the contract would not be cancelled, the problem would be solved. The attorney for Spaw-Glass informed Casias that Spaw-Glass had stated that the jury verdict would not affect the contract. The attorney further stated that both sides wanted Casias to decide the case based on the evidence, and if Casias believed Spaw-Glass had responsibility, his obligation was to find Spaw-Glass responsible. The trial court told Casias that it would be inconceivable that a company like Spaw-Glass would change a contract with another company because a jury ruling against it included an employee of the other company. Although the trial court candidly stated that Spaw-Glass's efforts to keep Casias on the jury "almost add credence to what the others are saying," the trial court denied the motion to strike.
*28 A person who has a bias or prejudice in favor of a party is disqualified to serve as a juror. Buls v. Fuselier, 55 S.W.3d 204, 209 (Tex.App.-Texarkana 2001, no pet.); GreenPoint Credit Corp. v. Perez, 75 S.W.3d 40, 48 (Tex.App.-San Antonio 2002, no pet. h.). Bias is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Buls, 55 S.W.3d at 209; GreenPoint Credit Corp., 75 S.W.3d at 48. If a juror's bias or prejudice is established as a matter of law, the trial court must disqualify the juror. Buls, 55 S.W.3d at 209. If bias or prejudice is not established as a matter of law, whether the juror is sufficiently biased or prejudiced to merit disqualification is a factual determination to be made by the trial court. Buls, 55 S.W.3d at 209; Sosa v. Cardenas, 20 S.W.3d 8, 11 (Tex.App.-San Antonio 2000, no pet.). We review the evidence in the light most favorable to the trial court's finding, and we do not reverse on appeal in the absence of an abuse of discretion. Buls, 55 S.W.3d at 210; Sosa, 20 S.W.3d at 11. The key response that supports a successful challenge for cause is that the juror cannot be fair and impartial because the juror's feelings are so strong in favor of a party that the juror's verdict will be based on those feelings and not the evidence. Buls, 55 S.W.3d at 210.
Mica contends that Casias candidly and unequivocally admitted his bias, thereby establishing bias as a matter of law. Alternatively, Mica asserts that the only reasonable inference from Casias's statements is that his state of mind would not permit him to act with impartiality.
We disagree with Mica. First, bias was not established as a matter of law. Casias came forward with a concern that his employment with a company with which Spaw-Glass had a contract might create a conflict of interest. In response to further questioning, Casias acknowledged he had feelings for the plaintiffs but he also felt he "could probably be a little biased." This is not evidence of feelings that are so strong that Casias would base his verdict on his feelings and not on the evidence. Second, the trial court did not abuse its discretion in finding that Casias was not biased. Casias presented a concern regarding a possible conflict of interest. Casias was assured by the trial court and by Spaw-Glass that no conflict of interest existed. After being told that both sides wanted Casias to decide the case honestly based on the evidence, including finding Spaw-Glass responsible if supported by the evidence, Casias stated that the discussion helped him. Mica did not attempt to re-examine Casias to determine whether Casias continued to have a bias after the discussion. Casias never mentioned a possible bias or concern during the voir dire process. In part, the trial court may have assessed the credibility of Casias and determined that Casias might have been motivated by the length of the trial. At the end of the previous day, the impaneled jury was informed that the trial would probably last 3 weeks, and the jury would be working from around 9:00 to 5:30 each day. The trial court also could have disbelieved that Casias was honest about his concern because it was inconceivable to the trial court that Spaw-Glass would cancel its contract.
Viewing this evidence in the light most favorable to the trial court's ruling, we hold that the trial court did not abuse its discretion in denying the motion to strike Casias.
SUFFICIENCY OF THE EVIDENCEMICA's LIABILITY
The jury found Mica was negligent in causing the death of Mrs. Sanchez and *29 attributed 50% of the negligence to Mica. Mica contends that only impermissible inferences or inference stacking supports the jury's finding. The Sanchezes counter that direct and circumstantial evidence supported a finding that Mica was responsible.
In reviewing the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the finding, and we disregard all evidence and inferences to the contrary. Texas Dept. of Mental Health and Mental Retardation v. Rodriguez, 63 S.W.3d 475, 480 (Tex.App.-San Antonio 2001, pet. denied). If there is a scintilla of evidence to support the finding, the finding will be upheld. Id. In reviewing a factual sufficiency point, we are required to weigh all of the evidence in the record. Id. Findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Id. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Id. Because the appellate court is not the fact finder, it may not substitute its own judgment for that of the trier of fact, even if a different answer could be reached on the evidence. Id.
The pull box in question was located on the northwest corner of the intersection of Pecos and Durango, which also is referred to as the southeast corner of the UTSA project. The three primary conditions of the box that caused it to be dangerous were: (1) the pull box's metal lid was not grounded; (2) the pull box did not have sufficient clearance between the metal lid and the metal conduit inside the box; and (3) the return path to ground was interrupted by CPS's replacement of a portion of the rigid metal conduit with PVC pipe. The primary source of contention is who was responsible for grounding the lid and ensuring proper clearance. The resolution of this issue hinged in part on who installed the pull box and whether subsequent changes were made to the location/elevation of the pull box.
The pull box was originally installed in connection with a lighting project in preparation for further work referred to as the high mast project or Project K. Several witnesses testified that the pull box in question was not the pull box installed during project K. Karl Burkett, an electrical engineer with TxDOT, testified that the pull box as it existed on the day of the incident was not the pull box that had been originally installed based on evidence of: (1) the improper installation; (2) the relocation of the box was necessary for the subsequent road widening; (3) other boxes installed on high mast project were larger; (4) the writing on the pull box lid ("traffic signal") did not meet the plans and specifications of project K that the lid be stamped "illumination" or "electric;" and (5) the manufactured date stamped on the lid proves that the lid was manufactured after the high mast project was completed. E.P. Hamilton, Ph.D., a professional electrical engineer and expert witness called by the Sanchezes, testified that the pull box was not the original box installed on project K based on: (1) project K did not allow Brooks boxes; (2) the box was smaller than the boxes used on project K; and (3) the date code on the lid showed a manufacture date after project K was completed; and (4) the writing on the lid did not meet project K specifications. Hamilton also testified that based on the plans and specifications for the widening of Pecos street, the pull box was required to be moved and lowered.
The evidence indicates that Mica was required to move the pull box during the 1-A project because after Pecos Street was widened the pull box at its current *30 location would be too close to the curb. Several witnesses testified that when Mica installed the pull box during that project, the lid was required to be grounded, and the box was required to have a 5-9 inch clearance between the lid and the conduit. Others testified that whether the lids required grounding and whether the clearance was required was subject to interpretation. Part of this dispute appears to rest on whether Mica was required to pull the wire through the conduit on project 1-A or on project 1-C. Gerald Zainotz, Mica's electrician on project 1-A, testified that Mica installed the conduit and pull boxes on project 1-A but did not pull the wire until project 1-C. However, L.C. Tubb, Mica's president, admitted that the pull boxes installed on project 1 A were for future traffic signals, indicating Mica knew that wire would be pulled through the pull box when Mica installed it. One witness, Harry H. Levy IV, a master electrician employed y Mica during projects 1-A and 1-C, testified that the plans contained a gap because the plans for project 1-C did not require grounding of pull boxes installed on project 1-A. Levy agreed that when wire was pulled through conduits, the lid should be grounded, but testified that the contract did not require grounding. Several witnesses testified that Mica was responsible for installing the pull box, relying in part on the presence of black base covering a kink in the conduit and against the pull box that would only have been installed by Mica during the widening of Pecos. Robert Witter, an electrical engineer, testified that Mica installed the pull box at its current location based on the date code on the lid, the difference in the boxes used on project K, the absence of gravel under the box to stabilize, and the kink in the conduit. E.P. Hamilton, Ph.D., the Sanchezes' expert electrical engineer, testified that based on the plans and specifications for the widening of Pecos street, the pull box was required to be moved and lowered. Hamilton also testified that other boxes installed in relation to project 1-A were identical to the pull box in question and also were not grounded. Hamilton agreed that the plans for project 1-A did not specify moving the box; however, Hamilton stated that the box was required to be moved out of necessity. Hamilton further stated that because the movement of the pull box was not in the plans, TxDOT likely did not inspect the work used in moving the pull box.
The final projectthe UTSA project required the excavation and replacement of the sidewalk surrounding the UTSA campus. Mica's contention is that the contractor, Spaw-Glass, and subcontractor, M & M, on the UTSA project replaced the pull box in question. Employees for both Spaw-Glass and M & M testified that they did not replace the box and used only hand excavation around the pull box. A separate contention was that Spaw-Glass and M & M did not replace the pull box, but their actions caused the pull box to be further lowered decreasing the clearance inside the pull box. The lowering of the pull box during the UTSA project was supported by survey data showing that the pull box had been lowered and witness testimony regarding those surveys. Several witnesses explained that the discrepancy in the surveys was not caused by M & M's actions but by surveying errors, soil shrinkage, differences in surveying equipment and the difference in necessary accuracy between the two surveys.
Mica contends that the jury was required to make all of the following inferences from the evidence: (1) the pull box was moved as part of project 1-A; (2) Mica moved the pull box as part of project 1-A; (3) after being moved, the pull box had insufficient clearance; and (4) no change after Mica moved the pull box. *31 The evidence regarding the movement of the pull box as part of project 1-A is summarized above. The evidence showed that the widening of Pecos Street necessitated the movement, and Mica's president, L.C. Tubb, admitted that if the pull box was moved during project 1-A, Mica moved it. Evidence was presented that other pull boxes installed by Mica had the same deficiency as the pull box in question, and even if the pull box had met the clearance requirement at the time of the installation, it still was not grounded. Although Mica contends that we have to infer no change, Mica's failure to ground the box alone is sufficient to support the jury's negligence finding. Several witnesses agreed that if the box had been grounded, the clearance level would not have made a difference.
Having reviewed all of the evidence, we hold that the evidence is sufficient to support the jury's negligence finding with regard to Mica.
JURY CHARGE
Mica contends that the trial court erred in refusing to submit a jury question with regard to statute of repose and in refusing to instruct the jury regarding new and independent cause.
The standard of review for charge error is whether the trial court abused its discretion. Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990); De Leon v. Furr's Supermarkets, Inc., 31 S.W.3d 297, 300 (Tex.App.-El Paso 2000, no pet.). Our review requires that we consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. De Leon, 31 S.W.3d at 300. A trial judge must submit a requested jury question if it is supported by some evidence, but may refuse to do so if it is not supported by any evidence. Elbaor v. Smith, 845 S.W.2d 240, 243 (Tex. 1992); James v. Kloos, 75 S.W.3d 153, 162 (Tex.App.-Fort Worth 2002, no pet.). We may not reverse for jury charge error unless the error, when viewed in light of the totality of the circumstances, amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause rendition of an improper judgment. De Leon, 31 S.W.3d at 300.
Whether a charge submits the controlling issues in a case, in terms of theories of recovery or defense, is a question of law that we review de novo. Id.; Fuller-Austin Insulation Co. v. Bilder, 960 S.W.2d 914, 917 (Tex.App.-Beaumont 1998, pet. dism'd).
A. Statute of Repose
The statute of repose bars any claim against a person who constructs improvements to real property that is asserted more than ten years after the substantial completion of the improvement. Tex. Civ. Prac. & Rem.Code Ann. § 16.009(a) (Vernon 1986). A statute of repose differs from a traditional statute of limitations. Dallas Market Center Dev. Co. v. Beran & Shelmire, 824 S.W.2d 218, 221 (Tex.App.-Dallas 1991, writ denied). A traditional statute of limitations runs from the time that a cause of action accrues, which is when the injured party discovers or reasonably should have discovered a defect or injury. Id.; see also Gordon v. Western Steel Co., 950 S.W.2d 743, 746 (Tex.App.-Corpus Christi 1997, writ denied). With a statute of repose, the time period begins running when the improvement is substantially completed rather than when a cause of action accrues. Gordon, 950 S.W.2d at 746; Dallas Market Center Dev. Co., 824 S.W.2d at 221. As a result, a statute of repose can cut off a right of action before an injured party discovers or reasonably should have discovered the defect or injury. *32 Dallas Market Center Dev. Co., 824 S.W.2d at 221.
In Gordon, the Corpus Christi court considered whether a subcontractor can be considered to have substantially completed its share of a construction project for purposes of commencing the statute of repose when the entire construction project is not completed. 950 S.W.2d at 746. The Corpus Christi court held that where different subcontractors are responsible for the construction of different parts of a larger project, the statute of repose should be applied to each of those individual subcontractors when they have completed their respective improvements. Id. at 748. The court noted "it is not overly burdensome to decipher when respective contractors substantially complete their improvements (e.g. when they submit their final bills and/or walk away from the project)." Id. at 749. The court concluded, "If a material issue arises as to whether the date they completed their work falls outside the period of repose, then ... the trier of fact should resolve such issue." Id.
Mica relies on testimony by two witnesses that work on the Pecos Street part of project 1-A was completed more than ten years before the lawsuit was filed to support its contention that a fact issue was raised regarding the date on which the statute of repose began running. Mica asserts that the improvement for purposes of the statute of repose is the work Mica performed on Pecos Street, not the completion of all of Mica's work on project 1-A. Gordon does not support this contention. Based on the language in Gordon, the statute of repose with regard to project 1-A commenced when all of Mica's work on project 1-A was completed, not simply a part of the work on that project. All of the testimony relating to the completion of all of Mica's work on project 1-A had an ending date that was within ten years from the date the lawsuit was filed. Accordingly, we hold as a matter of law that substantial completion of the improvement required Mica to complete all of its work on project 1-A for purposes of the statute of repose, not just an isolated part of that project. It would be overly burdensome to decipher when individual portions of a subcontractor's overall project are completed for purposes of the statute of repose. Because no evidence was presented that Mica completed its work on project 1-A more than ten years before the lawsuit was filed, Mica was not entitled to a jury question on statute of repose.
B. New and Independent Cause
"Texas courts distinguish between a new and independent cause and a concurrent act." Benitz v. Gould Group, 27 S.W.3d 109, 116 (Tex.App.-San Antonio 2000, no pet.). "A concurrent act cooperates with the original act in bringing about the injury and does not cut off the liability of the original actor." Id. "A `new and independent cause' sometimes referred to as a superseding cause, however, is an act or omission of a separate and independent agency that destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes the immediate cause of such injury." Id. "The doctrine of `new and independent cause' is not an affirmative defense; it is one element to be considered by a fact finder in determining whether proximate cause exists." Id. "The new and independent cause must be one incapable of being foreseen by the original wrongdoer in the exercise of ordinary care." Id. The following criteria are applied to determine if an act is a concurring or a new and independent cause:
a. the fact that its intervention brings about harm different in kind from *33 that which would otherwise have resulted from the actor's negligence;
b. the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operations;
c. the fact that the intervening force is operating independently of any situation created by the actor's negligence or, on the other hand, is or is not a normal result of such a situation;
d. the fact that the operation of the intervening force is due to a third person's act or to his failure to act;
e. the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
f. the degree of culpability of a wrongful intervening force in motion.
Id. at 117.
As proof of a new and independent cause, Mica seeks to rely on the evidence that CPS replaced a portion of the rigid metal conduit which was intended to serve as the return path to ground with PVC pipe. However, the evidence clearly established that the return path to ground could never have worked as it was intended even if CPS had not replaced the conduit because Mica did not ground the lid. Accordingly, the trial court did not abuse its discretion in denying Mica's request for an instruction on new and independent cause.
EXCESSIVE DAMAGES
Mica contends that the damages awarded to the Sanchezes for loss of companionship and society and mental anguish, past and future, and the damages awarded to Estrada for past physical pain and mental anguish are excessive. The jury awarded the Sanchezes $5,000,000 for loss of companionship and society and mental anguish sustained in the past and $2,000,000 for loss of companionship and society and mental anguish sustained in the future. The jury awarded Estrada $300,000 for physical pain and mental anguish in the past. No question was submitted with regard to Estrada's future physical pain and mental anguish.
We review an excessive damages complaint by considering the factual sufficiency of the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex.1998). When considering a factual sufficiency challenge to a jury's verdict, we consider and weigh all of the evidence, not just that evidence supporting the verdict. Id. at 406-07. The jury's verdict can be set aside only if it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust. Id. at 407. Because we are not the fact finder, we may not pass upon a witness's credibility or substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Id.
Mental anguish damages must be supported by direct evidence of the nature, duration, or severity of the plaintiffs' anguish, thus establishing a substantial disruption in the plaintiffs' daily routine, or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996). In addition to evidence of compensable mental anguish, evidence must also be presented to justify the amount awarded. Id. Juries must find an amount that fairly and reasonably compensates for the loss. Id.
*34 A. The Sanchezes
Injuries to the familial relationship are significant injuries worthy of compensation. Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex.1983). Mental anguish compensates a child for the emotional response to a parent's death. Moore v. Lillebo, 722 S.W.2d 683, 687 (Tex.1986). Loss of society or companionship constitutes a loss of the positive benefits flowing from the love, comfort, companionship, and society that the children would have received had the negligence not occurred and had their mother not died. Id. at 687-88; see also Enochs v. Brown, 872 S.W.2d 312, 321 (Tex.App.-Austin 1994, no writ). Mental anguish is not concerned with the benefits the children have lost, but with the issue of compensating them "for their harrowing experience resulting from the death of a loved one." Moore, 722 S.W.2d at 688.
Loss of society asks, "what positive benefits have been taken away from the beneficiaries by reason of the wrongful death?" Id. "Mental anguish damages ask about the negative side." Id. In other words, "what deleterious effect has the death, as such, had upon the [children]?" Id.
JoAnn Murphy, Ph.D., the clinical psychologist who treated the Sanchezes, saw Edward and Christine every other week immediately after Mrs. Sanchez's death. The sessions then continued monthly until they ended. Murphy estimated that she had approximately 20-25 total sessions with the children. The sessions primarily consisted of Murphy talking with the children about the loss of their mother.
Murphy testified that Mrs. Sanchez reared the children to achieve success, to be honest, and to have integrity. Murphy testified that Edward had a speech impediment and learning challenges. Mrs. Sanchez was able to teach Edward to overcome these difficulties by instilling in him a high level of motivation and a high desire to achieve through perseverance. Edward had a close bond with his mother and considered her an ideal person. Mrs. Sanchez taught her children high morals and ideals. Each child had assumed a parenting role over the other since Mrs. Sanchez's death if one believed the other was not meeting the standards their mother had taught them. The bond between Edward and Mrs. Sanchez was evidenced by Edward assuming the role of Mrs. Sanchez's protector against his father, who Edward believed treated Mrs. Sanchez poorly. The children's father was not around significantly at any time during their upbringing, making the loss of Mrs. Sanchez more significant due to the absence of another parent. Murphy stated that Mrs. Sanchez's death is a very emotional topic for Edward even today and will have an impact on his life for a long time and probably forever. The loss of his mother may cause Edward to have problems in male-female relationships because it will be difficult for any woman to live up the standards of his mother, as Edward sees them.
Christine did not have the learning challenges Edward had experienced, and her feelings were not as intense as Edward's. However, Murphy believed that Christine's grief would be prolonged by her shyness. Christine was more private and isolated; however, Murphy stated that she had seen a video of Christine with Mrs. Sanchez, and Christine was a completely different person with her mother. Christine viewed her mother as hardworking, honest, as having struggled for everything she had obtained in life, and as someone who was there for her. Christine was determined to graduate from college.
Murphy stated that Mrs. Sanchez's death was a life-altering event for both *35 children. Murphy testified that the family had struggled economically due to the absence of the children's father. Murphy believed that the children were seeing someone else for treatment but was uncertain whether the treatment had ended.
Edward was a senior in high school when his mother died. At the time of trial, Edward had been enrolled at San Antonio College for a year or two years and planned to obtain a degree in photography. Edward testified that his mother meant the world to him and without her he probably would not have graduated high school or reached the other goals he had. Edward testified that his mother put "effort" into him. Edward stated that his mother encouraged him to pursue his dreams. Edward testified that his mother went to school to eat with him and helped him with his problems. Edward testified that his mother wanted him to marry and have children because Mrs. Sanchez wanted to be a grandmother. Edward made a video on the first anniversary of Mrs. Sanchez's death showing the family. Edward testified that his mother sacrificed her life to get them where they were. Edward's video was shown to the jury.
Christine testified that she was fourteen when her mother died. She planned to graduate high school in 2003 and then attend college and become a teacher. Christine testified that her mother was hardworking and sacrificed to purchase Christine a middle school ring. Christine stated that her mother would surprise her at school and have lunch with her. Christine testified that her mother volunteered them to work at the Jimenez Thanksgiving dinner, and she and Edward had continued volunteering for that dinner since their mother died. Christine recalled when she and her mother would sit together in bed, and her mother would tell her stories about when she was young which Christine missed a lot. From the record, it appears that Christine's attorney stopped questioning her because she was becoming emotional.
The damages awarded for loss of companionship and society and mental anguish, while large, are reasonable compensation for two children who have lost their only care-taking parent. The evidence is sufficient to support the damages awarded to the Sanchezes for loss of companionship and society and mental anguish.
B. Estrada
Estrada was electrocuted when she attempted to assist Mrs. Sanchez. Estrada thought Mrs. Sanchez had fainted or fell. Estrada was present when EMS arrived and turned Mrs. Sanchez over. Mrs. Sanchez had been foaming at the mouth and had saliva all over her face and hair. Estrada testified that EMS opened Mrs. Sanchez's eye, shined a flashlight in it, and pronounced her dead.
Estrada went to work but could not stop crying and shaking, so her supervisor sent her home. Someone drove Estrada home because she could not drive in her condition. The next day, Estrada was taken to the hospital after she reported for work. Estrada testified that her head and stomach hurt her, and she fainted one time at work. Estrada was seen by Dr. Jimenez for depression, and Dr. Jimenez referred her to Dr. Silva, a neurologist, for her headaches. Estrada was prescribed medication and physical therapy. Estrada testified that she blamed herself for Mrs. Sanchez's death for a long time because she could have stopped her so they could walk together that day. Estrada testified that it would have been better if she had been the one electrocuted because her children were grown. By the time of trial, Estrada was no longer seeing any physicians for treatment.
*36 Dr. Silva testified that Estrada's injuries were caused by the electrocution. Although Dr. Silva agreed that some of the injuries he diagnosed were caused by aging, Dr. Silva stated that the severe headaches were not a product of age. Dr. Silva testified that the EEG showed abnormalities in Estrada's brain that were not a normal part of the aging process.
Estrada testified regarding her physical pain. Estrada's physical pain and mental anguish are also documented in the treatment she received, and Estrada's medical records were introduced into evidence.
This evidence is sufficient to support the jury's damage award to Estrada for physical pain and mental anguish in the past.
CONCLUSION
The trial court's judgment is affirmed.
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257 F.2d 330
UNITED STATES of America, Appellant,v.CITY OF JACKSONVILLE, ARKANSAS, Appellee.
No. 15871.
United States Court of Appeals Eighth Circuit.
July 9, 1958.
Elizabeth Dudley, Attorney, Department of Justice, Washington, D.C. (Perry W. Morton, Asst. Atty. Gen., Osro Cobb, U.S. Atty., Little Rock, Ark., and Roger P. Marquis, Attorney, Department of Justice, Washington, D.C., on the brief), for appellant.
Herschel H. Friday, Jr., and R. Ben Allen, Little Rock, Ark. (Mehaffy, Smith & Williams, Little Rock, Ark., on the brief), for appellee.
Before GARDNER, Chief Judge, and WOODROUGH and VAN OOSTERHOUT, Circuit judges.
GARDNER, Chief Judge.
1
This is a proceeding in condemnation brought by the United States to determine the just compensation to be paid the defendant City of Jacksonville, Arkansas, for certain property necessary to provide for the construction of an air force base and other military uses incident thereto in connection with the Little Rock Air Force Base, Pulaski County, Arkansas. The property is described as 'all right, title and interest of the Town of Jacksonville, Arkansas, in and to the existing water distribution system and the sewage disposal system, both above and beneath the ground, including all pipe, fittings and facilities necessary in connection with the operation and maintenance thereof, together with all necessary easements and rights-of-way for accommodation of the samme * * * lying within the boundaries of the Little Rock Air Force Base.'
2
It was contended by defendant that it was entitled to recover as just compensation for the taking of its water distribution system and sewage disposal system the cost of reproduction new less depreciation, while it was contended by the plaintiff that the proper measure of just compensation was limited to the scrap value of the property so taken, to-wit: the salvage value of the pipes and equipment less cost of removal and refilling. Testimony was admitted on both of these theories. The evidence will be further developed in the course of this opinion.
3
The court submitted two interrogatories as follows:
4
'Interrogatory No. 1.
5
'What was the amount of the reproduction cost less depreciation of the pipe, fittings and other equipment involved herein on July 13, 1954?'
6
'Interrogatory No. 2.
7
'What was the salvage value of the pipe, fittings and other equipment involved herein on July 13, 1954?'
8
The court then instructed the jury that its general verdict should be in such amount as it might find to be the fair market value of all the property taken by the government from the City of Jacksonville. Prior to the institution of the condemnation proceeding the government had taken the property described and deposited the sum of $10,500 for the use of the defendant, its estimated amount of just compensation for the property so taken. The sole issue in the proceeding was what amount would justly compensate the defendant for the property appropriated by the government. The jury, in answer to interrogatory number one, found the cost of reproduction new less depreciation of the property taken to be $108,734.39. In answer to interrogatory number two the jury found the salvage value of the pipe, fittings and other equipment taken to be $40,000. At the close of all the evidence plaintiff moved for a directed verdict in its favor on the ground:
9
'* * * that all of the evidence offered by defendant has been irrelevant. Further, plaintiff moves the Court to strike all of the evidence offered by defendants on the same ground. Plaintiff adds the further ground for its motion that defendant has failed to introduce any evidence concerning the value of the interest in land alone. That is, any proof of the value of the perpetual easement taken by the government by means of this case.'
10
The motion was denied and the case was submitted to the jury on the above noted interrogatories and certain instructions. The jury returned a general verdict for $50,108 and the court thereupon entered judgment, adjudging the just compensation for the taking of the property here involved to be $50,108, as found by the jury. The government moved for judgment notwithstanding the verdict or for a new trial, which motion was in due course overruled and this appeal followed.
11
A condemnation proceeding is sui generis in that the defendant is always entitled to judgment for just compensation of the property taken and is in fact endowed with all the characteristics of the plaintiff in a conventional action. The party seeking condemnation, the nominal plaintiff, concedes the right to compensation and presumably is always willing as a matter of fact to pay a certain sum. The purpose of the proceeding is not to determine the right of the plaintiff to take the property, but only to determine the amount which the plaintiff shall be required to pay the defendant as just compensation for the property taken. There must therefore always be a judgment in favor of the defendant-owner of the property. In this connection it is to be observed that the government moved for a directed verdict in its favor. If such a motion should be granted it would in effect result in a judgment that the defendant receive nothing as compensation for the property taken. The only verdict to which plaintiff was entitled was a verdict fixing just compensation for the property taken and the motion presented was not a motion that the jury be directed to return a verdict in favor of defendant for a fixed amount as representing just compensation for the property taken. The sufficiency of the evidence to sustain the verdict where unliquidated damages are sought to be recovered can only be reviewed by this court when that question has been made a question of law by the interposition of a proper motion for a directed verdict. It could not be determined as a matter of law in the instant case that defendant was not entitled to just compensation for the property taken and the motion was properly denied.
12
It is here argued that the proper measure of damages for the taking of municipally owned easements is nominal damages in the absence of the necessity to substitute, and that the court erred in not so holding, in admitting evidence, and in instructing the jury on any other theory. It is true that where a substitute must be acquired or furnished for the property taken the amount of just compensation is usually the amount of the cost thereof. We have so held where a public highway was condemned which had to be replaced by acquiring and constructing a new highway in its place. In the instant case no substitute or duplicate will be required and we have held in United States v. State of Arkansas, 8 Cir., 164 F.2d 943, 944:
13
'The fundamental principle is that the public authority charged with furnishing and maintaining the public way, whether it be a highway, a street, or a bridge, must be awarded the 'actual money loss which will be occasioned by the condemnation * * *'. This amount is usually the cost of furnishing and constructing substitute roads.'
14
This is a far cry from holding that the cost of the substitute road is the only measure of damages under all circumstances. As said by us in United States v. State of Arkansas, supra, the amount awarded must be the 'actual money loss which will be occasioned by the condemnation'. This was apparently the theory upon which the plaintiff tried the case in the lower court as it was not there urged that defendant was entitled to only nominal damages, but on the other hand the government produced evidence as to the scrap or salvage value of the property taken. Having tried the case in the lower court on that theory plaintiff cannot now be heard to assert error in this regard.
15
It is also urged that the court committed error in admitting evidence of the cost of reproduction new less depreciation, and in permitting the jury to consider the evidence in connection with all the other evidence in the case. It is to be observed that while the jury in its answer to interrogatory number one found the cost of reproduction new less depreciation to be $108,734.39 it did not award this amount as damages. It was the theory of the defendant that it was entitled to recover as damages the cost of reproduction new less depreciation. The jury did not return a verdict on that basis and defendant has not appealed. We think the jury was entitled to consider that evidence in determining the salvage value of the property. It had before it the physical exhibits showing the condition of the pipe and the testimony of witnesses as to its condition and availability for further use. As said by the United States Supreme Court in United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 280, 87 L.Ed. 336:
16
'It is conceivable that an owner's indemnity should be measured in various ways depending upon the circumstances of each case and that no general formula should be used for the purpose.'
17
In Clark v. United States, 8 Cir., 155 F.2d 157, 161, we held that:
18
'* * * evidence as to the intrinsic value of the improvements should, we think, have been admitted as an aid to the jury in arriving at a decision of the ultimate question of just compensation for the property taken.'
19
The last cited case was followed by the United States Court of Appeals for the Fourth Circuit in Cade v. United States, 4 Cir., 213 F.2d 138. See, also, United States v. Becktold Co., 8 Cir., 129 F.2d 473; United States v. Wise, 4 Cir., 131 F.2d 851; United States v. Twin City Power Company, 4 Cir., 248 F.2d 108. On this phase of the case we think the court committed no prejudicial error either in its rulings on admissibility of evidence or in its instructions to the jury.
20
It is contended that the court erred in denying its motion to set aside the jury's answer to interrogatory number two which required the jury to determine the salvage or scrap value of the property taken. It was plaintiff's contention that the measure of damages to which defendant was entitled to recover was the scrap or salvage value of the property taken and in response to this theory this interrogatory number two was submitted to the jury for its answer, without objection by plaintiff. In the circumstances of this case we think the proper measure of damages was the scrap or salvage value of the property taken. The property had no going concern value and defendant would not be required to substitute or duplicate the property taken. If, therefore, there was substantial evidence to sustain the answer to this interrogatory it should be allowed to stand. It was plaintiff's contention that the salvage value did not exceed $11,800 and its evidence supported that contention. There was before the jury, however, testimony as to the original cost of the pipe, fittings and other equipment, and evidence as to their age, condition, probable life and usefulness. Thus plaintiff's witness Finefield, in calculating the salvage value, ascertained the original cost and from this deducted a depreciation which he fixed at seventy per cent on pipe and fifty per cent on fittings. Defendant's witness, Mr. Mehlburger, however, fixed the depreciation at about thirteen per cent. If Mr. Finefield's estimate of the cost be accepted by the jury and Mr. Mehlburger's opinion as to the depreciation, the result would exceed $40,000 as the scrap value of the property taken. With these figures before the jury it cannot be said that there was not substantial evidence to sustain the findings of the jury as to scrap value. The jury was not bound to accept any particular depreciation factor but might select one of two or more divergent opinions. Burnett v. Central Nebraska Public Power & Irr. Dist., 8 Cir., 125 F.2d 836; Samuelson v. Central Nebraska Public Power & Irr. Dist., 8 Cir., 125 F.2d 838; Equitable Life Assur. Soc. of United States v. Carmody, 8 Cir.,131 F.2d 318. On this element of damages there was a conflict of testimony. The jury was also aided in evaluating the testimony as to the value of this salvage by having seen and observed its condition. As said by us in Burnett v. Central Nebraska Public Power & Irr. Dist., supra (125 F.2d 838):
21
'* * * a jury cannot be required to substitute the opinion of expert witnesses for its own practical judgment on all the evidence, even in cases where the estimate of experts may not have been specifically contradicted. Lincoln Land Co. v. Phelps County, 59 Neb. 249, 80 N.W. 818; Davis v. School District, 84 Neb. 858, 122 N.W. 38. While the jury is not at liberty, of course, arbitrarily to ignore * * * any other competent evidence, it has the absolute right to appraise it and to determine what weight shall be given to it or any part of it, in the light of all the general facts and circumstances developed on the trial, and of its own common knowledge and ordinary experience.'
22
In Samuelson v. Central Nebraska Public Power & Irr. Dist., supra, in answering a contention similar to that now before us, we said (125 F.2d 840):
23
'As we have indicated in the Burnett case, supra, a jury is never required, in an ordinary condemnation proceeding, to accept as conclusive the estimates of value made by expert witnesses on either side. There ordinarily is in such cases some general testimony as to the location, character, use, etc., of the property, and other pertinent facts usually also are developed on direct or cross examination of the witnesses. All of this the jury is entitled to consider, together with any reasonable inferences which may be made therefrom, and it may properly exercise its own deliberate judgment on the amount of the damages, from the evidence as a whole, in the light of its common knowledge and ordinary experience, giving to the estimate of the expert witnesses only such weight as it conscientiously feels they are entitled to receive under all the circumstances.'
24
What is said by us in Equitable Life Assur. Soc. of United States v. Carmody, supra (131 F.2d 321), with reference to the elements that may be considered by the jury in determining value is here apposite. We there said:
25
'A full reading of the testimony of the debtor's witnesses shows that they had taken into account and described on the witness stand such various elements entering into the value of the property involved as its location, topography, soil formation and quality, existence of depreciating defects and blemishes, nature and condition of improvements, et cetera. Appellant overlooks, we think, what we have had occasion to point out in other cases, that the determination of land value in an ordinary case is not necessarily a mere alternative choosing between the arithmetical estimates of opposing experts.'
26
We conclude that the valuation of the scrap or salvage here involved as fixed by the jury in its answer to interrogatory number two is sustained by substantial evidence and plaintiff's motion to set it aside was properly denied.
27
We think the proper measure of damages in the circumstances of this case was, as contended by plaintiff, the scrap or salvage value. The jury, having found that value to be $40,000 should have returned a verdict in that amount. Rule 49(b), Federal Rules of Civil Procedure, 28 U.S.C.A., provides in part that:
28
'When the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may direct the entry of judgment in accordance with the answers, notwithstanding the general verdict * * *.'Here the answer to interrogatory number two is inconsistent with the general verdict. In these circumstances the answer to the interrogatory, in effect, supersedes the general verdict. We have considered all the other contentions urged by plaintiff but think them without merit.
29
The case is therefore remanded to the trial court with directions to enter judgment in favor of the defendant in the sum of $40,000, less the $10,500 already paid, with interest as provided by law, pursuant to the answer to interrogatory number two, notwithstanding the general verdict, that amount representing just compensation to which defendant is entitled.
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M.D. Appeal Dkt.
103 MAP 2014
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412 Pa. 313 (1963)
Puskarich, Appellant,
v.
Trustees of Zembo Temple.
Supreme Court of Pennsylvania.
Argued May 28, 1963.
October 10, 1963.
Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
*314 John H. Bream, for appellant.
Huette F. Dowling, with him Dowling and Dowling, for appellee.
OPINION BY MR. JUSTICE O'BRIEN, October 10, 1963:
On the evening of January 20, 1959, at approximately 11:15 p.m., Tony Puskarich, when leaving Zembo Temple, after attending a public function, fell and was seriously injured. He was walking on a sidewalk on the grounds surrounding Zembo Temple. He was en route to an automobile in the Zembo Temple parking lot. He alleges in his complaint that he proceeded down a flight of four steps and stepped on a slippery spot of ice, undulating and uneven in texture, with ridges and holes, sloppy with water and covering an irregular crumbling and broken portion of the sidewalk beneath.
The trial judge, at the conclusion of plaintiff's case on liability, entered a judgment of compulsory nonsuit. Plaintiff's motion to take off the nonsuit was denied by the court en banc and plaintiff appeals.
The action of the court: (1) in excluding certain photographs offered by the plaintiff; (2) in permitting defendant's counsel to quote from a deposition to attack *315 the credibility of plaintiff's witness; (3) in refusing to permit any testimony from the wife of the plaintiff; (4) refusing to permit defendant's maintenance superintendent to be called as on cross-examination and (5) entering a compulsory nonsuit are assigned by appellant as error.
In considering this appeal from the judgment of compulsory nonsuit, we read the record in the light most favorable to the plaintiff, Davies v. McDowell National Bank, 407 Pa. 209, 180 A. 2d 21 (1962). So reading, we find that during the day and the evening of January 20, there was freezing rain, sleet and snow. The two days previous, there was freezing weather and no precipitation. The plaintiff was preceded by two friends with whom he was in company and there were many people walking on the sidewalk ahead of them. A friend of the plaintiff, Mr. Tarr, testified: "Well, I couldn't say whether I had taken three or four or five steps, but it was a very short time after we had reached the bottom of the steps there that you could feel with your feet that there was some sort of ice or something on it. We sort of slowed up." He then turned and saw the plaintiff fall. Continuing to describe the condition, Mr. Tarr said: "Well, it felt when we got to the bottom of the steps, you could feel that in that first few feet from the steps that there were seemed to be ridges and like holes which were very sloppy they were holding water. I also noticed that when I knelt down beside Mr. Puskarich after he fell." Mr. Carnicelli, a friend called as a witness, testified: "It was rough, it was icy, and the footing was very bad. Kiddingly I told I was slipping and what not, and I told Mr. Puskarich just kiddingly, I said, `Watch that you don't fall, you might put a hole in the concrete,' because he was a big man." He then saw Mr. Puskarich fall as he turned around to him. Mr. Puskarich described his fall as: "Only thing I remember I stepped *316 some ice or some stuff. Only thing I remember." Walter Mehaffie, assistant superintendent of Zembo Temple, was called as a witness by the plaintiff and testified: "Q. Prior to January 20, 1959, had you had any difficulty with water drainage and seepage and cracked concrete in that area? A. Not to my knowledge. Q. Not to your knowledge? A. Not cracked concrete, no. Q. What condition of the concrete? A. You asked cracked concrete and I said not to my knowledge. Q. What was the condition? A. The only condition I ever noticed there was that the surface, the top surface of the concrete had become broken, and from time to time we replaced it."
Appellant contends the trial judge erred in excluding certain photographs from evidence. Counsel agreed to the introduction of three photographs showing the sidewalk, which had been taken at a distance great enough to show the area of the sidewalk involved but not close enough for any detailed observation. The excluded photographs consist of two groups. One group of eleven pictures taken shortly after May 5, 1959, which showed a surface crumbling. The other group consisted of three photographs, taken January 27, 1962, which showed a new surface on that portion of the sidewalk referred to and shown by the other rejected pictures. None of the pictures showed the condition as it existed on the night of January 20, 1959. The appellant's contention is that these photographs, disclosing the sidewalk's surface to be irregular and crumbling in the area in which he fell, were proper exhibits from which the appellant and his witnesses could have established the continuing disintegration of the sidewalk surface and, of course, the photographs taken in January, 1962, showed repairs having been made to the area where the accident occurred. Appellant urges that with the proper instructions to the jury the excluded photographs were properly admissible, *317 relying on the authority of Nyce v. Muffley, 384 Pa. 107, 119 A. 2d 530 (1956). There, Mr. Justice (now Chief Justice) BELL said, at page 111: "Plaintiff contends that the Court erred by admitting photographs of the 7th and Cedar Streets intersection when they were taken two years after the accident and in the daytime. The Court admitted the photographs with this clear and specific limitation: `The exhibits will be received solely for the purpose of showing the permanent physical aspects at the intersection of 7th and Cedar and for no other purpose. The jury will understand that when these pictures get into your hands you will understand that they are here for the sole purpose of showing the permanent conditions at that corner. The streets seem to be wet in these pictures . . . and the evidence shows that that condition did not exist on January 19, 1951, and of course these pictures cannot show the visibility on January 19, 1951. They can show geometrically perhaps what could be seen, but not actually what was visible on account of the light at that particular time; for that limited purpose the exhibits will be received.'
"The admission of photographs is a matter largely within the discretion of the trial Judge. A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the accident, or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the jury: Taylor v. Modena Borough, 370 Pa. 100, 87 A. 2d 195; Beardslee v. Columbia Township, 188 Pa. 496, 41 A. 617.
"The admission into evidence of photographs showing the location and scene of a crime for the limited purpose of showing the general location and the structures *318 is a matter within the sound discretion of the trial Court even though the photographs were made in the daytime and the crime was committed after dark: Commonwealth v. Gidaro, 363 Pa. 472, 70 A. 2d 359."
The trial judge, in accordance with the foregoing authority did exercise proper discretion in receiving in evidence photographs which showed the sidewalk from three different perspectives, which depicted the general area as well as the place of the accident. The rejected photographs, one set taken three and a half months after the accident, and the others three years after the accident, could not aid, but would only confuse in the determination of the issue of the condition of the sidewalk on January 20, 1959.
Appellant, in arguing the admissibility of the disputed photographs, essentially wishes to prove, by pictures taken three and one-half months later, without snow, sleet, ice or water, and pictures taken three years later, showing a repaired surface, that a condition of disintegration existed at the time of the accident. Under the circumstances it would have been prejudicial and error for the trial judge to have admitted the rejected photographs.
The trial judge permitted the cross-examination of a witness whose testimony appeared to be at variance with a prior deposition. He did so in accordance with Pennsylvania Rules of Civil Procedure 4020(a) (1). The trial judge, in the conduct of the trial, must determine whether the testimony of a witness given at trial is at variance with a former deposition and we will not interfere with that determination in the absence of clear abuse of discretion or error of law. A trial judge must be granted wide latitude in the conduct of a trial. The trial judge's action in permitting the cross-examination of the witness in the instant matter was entirely proper.
*319 Appellant complains of the trial judge's refusal to permit the wife of plaintiff, who visited the scene of the accident several days after the occurrence, to testify for the purpose of describing her impression of the condition of the pavement. There was no indication that the conditions existing several days later were the same that existed on the night of the accident and in the absence of such evidence it would be improper to permit this type of testimony. The trial judge ruled correctly in this instance in denying such speculative testimony.
Plaintiff called for cross-examination, Walter Mehaffie, the assistant superintendent in charge of the building and grounds for Zembo Temple. The trial judge sustained defendant's objection, for the reason that the witness not being adversely interested did not come within the provisions of the Act of May 23, 1887, P.L. 158, § 7, as amended by the Act of March 30, 1911, P.L. 35, § 1, 28 P.S. § 381. This section of the Act, as amended, was before the court in Dinger v. Friedman, 279 Pa. 8, 123 Atl. 641 (1924). The law is well settled and since the witness was not one within the provisions of the act, the trial court properly refused to permit him to be called for cross-examination. Plaintiff then called the witness as plaintiff's witness and interrogated him as above.
Finally, appellant complains of the entry of the judgment of compulsory nonsuit, contending that the trial judge should have submitted for the jury's determination, the question of defendant's negligence. His contention is that the evidence established that the walking surface conditions on the roadways, sidewalks, and parking areas, immediately adjacent to Zembo Temple at the time of the accident, were such as to present an issue for jury determination. There was not sufficient evidence in the instant case to submit a factual issue for the determination of a jury. The record *320 reveals a total lack of notice, either actual or constructive, as to the condition of the sidewalk prior to the accident. The record does reveal a fall of rain, sleet, and snow immediately prior to the night of plaintiff's injury, with the existence of cold, freezing weather and some temperature above freezing at the time of the accident. There was no testimony describing the condition existing on the sidewalk at the time in question. We said recently in Rinaldi v. Levine, 406 Pa. 74, 79, 176 A. 2d 623 (1962): "The ridge must be shown to be of such substantial size and character as to be a danger to the public, not a mere uneven surface caused by walking upon the ice. The proof must describe the alleged ridge as to size and character and be such as to support a finding that it was a substantial obstruction to travel. Plaintiff does not meet the burden of proof by showing such surface, even though a witness may refer to it as consisting of little ridges or bumps. . . .' (Emphasis supplied). See also: Zieg v. Pittsburgh, 348 Pa. 155, 158, 34 A. 2d 511, and cases therein cited."
Other language used in that case also applies to the instant case (p. 80): "Another serious defect in Rinaldi's case is his inability to state what caused him to fall. Under his own testimony either `a piece of ice' or `a ridge of ice' or `something' caused him to slip and fall; if Rinaldi does not know what caused his fall, then only by conjecture and guesswork could a jury find what caused him to fall. In Sellers v. Cline, 160 Pa. Superior Ct. 85, 86, 49 A. 2d 873, it was said: `It would appear, therefore, that in order to recover against the defendant the plaintiffs are obliged to prove not only evidence of a dangerous condition in the form of hills and ridges, but must show that the dangerous obstructions on the sidewalk were the actual cause of the fall'. See also: Zieg v. Pittsburgh, supra, p. 157; Miller v. City Ice and Fuel Co., supra, *321 p. 184; Hillelson v. Renner, 183 Pa. Superior Ct. 148, 130 A. 2d 212. In Hulings v. Pittsburgh, 150 Pa. Superior Ct. 338, 28 A. 2d 359, there was testimony of areas of uneven ice on the sidewalk as well as ridges which were obstructions to safe travel but the plaintiff, as Rinaldi, did not testify that she was caused to fall by a ridge or ridges of ice and, by reason thereof, a judgment n.o.v. was entered. Cf: Silberman v. Dubin, 155 Pa. Superior Ct. 3, 36 A. 2d 854, and Bowser v. Kuhn, supra, 160 Pa. Superior Ct. 31, 49 A. 2d 852, where recovery was allowed because the plaintiffs were able to establish a causal connection between the ridges of ice and the fall. Under Rinaldi's proof any finding that his fall resulted from stepping on a ridge or elevation of ice would be a mere guess and conjecture."
And again (p. 81): "In this area of the law our decisional law has very clearly defined the quantity and quality of proof required to establish actionable negligence. Such proof was wholly lacking in the instant situation and judgment n.o.v. should have been entered."
Appellant avers that the court erred in granting the compulsory nonsuit, citing the case of Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 153 A. 2d 477 (1959), for the proposition that the jury should make a determination of the negligence of the defendant. This case stands for no such proposition. There must be some evidence of negligence beyond the realm of mere speculation for the submission of an issue to a jury. We said (p. 138): "We have said many times that the jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but that there must be evidence upon which logically its conclusion may be based. Schofield v. King, 388 Pa. 132, 136, 130 A. 2d 93 (1957); Connor v. Hawk, 387 Pa. 480, 482, 128 A. 2d 566 (1957); Ebersole v. *322 Beistline, 368 Pa. 12, 16, 82 A. 2d 11 (1951). Clearly this does not mean that the jury may not draw inferences based upon all the evidence and the jurors' own knowledge and experiences, for that is, of course, the very heart of the jury's function. It means only that the evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be reached."
The entry of judgment of compulsory nonsuit was proper. Judgment affirmed.
Mr. Justice MUSMANNO dissents.
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Case: 12-13208 Date Filed: 05/20/2013 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13208
Non-Argument Calendar
________________________
D.C. Docket No. 2:11-cr-00057-MEF-CSC-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM PAUL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(May 20, 2013)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
William Paul appeals his convictions and sentence of 53 months of
imprisonment for tax evasion, 26 U.S.C. § 7201, and willful failure to file a tax
Case: 12-13208 Date Filed: 05/20/2013 Page: 2 of 8
return, id. § 7203. Paul argues, for the first time, that the district court erred by
failing sua sponte to dismiss his charge of violating section 7203 and by admitting
an order of child support. Paul also argues about the denial of his motions for a
continuance; cumulative error; the sufficiency of the evidence; the enhancement of
his sentence for obstruction of justice and using sophisticated means; and the
reasonableness of his sentence. We affirm.
Paul argues that the district court committed three errors that collectively
denied him a fair trial, but his arguments about individual and cumulative error
fail. First, Paul argues, for the first time on appeal, that the district court should
have dismissed sua sponte his charge under section 7203 because a violation “is
not a crime” when IRS regulations provide monetary penalties, but we disagree.
The plain language of section 7203 provides that a violator “shall, in addition to
other penalties . . . , be guilty of a misdemeanor.” 26 U.S.C. § 7203. Second, Paul
argues that he was entitled to a third continuance after he decided to proceed pro se
about two months before trial, but the district court did not abuse its discretion in
denying Paul’s motion. The district court had twice continued Paul’s trial at the
request of a codefendant; discovery was complete several months before trial; Paul
knew how to access the discovery; and Paul received an electronic copy of
discovery materials from the government more than one month before trial. Paul
fails to explain how he was prejudiced by the “alleged inadequate opportunity to
2
Case: 12-13208 Date Filed: 05/20/2013 Page: 3 of 8
prepare for trial,” United States v. Graham, 643 F.3d 885, 893 (11th Cir. 2011)
(internal quotation marks omitted), or “how additional time would have aided [his]
defense,” United States v. Davis, 967 F.2d 516, 519 (11th Cir. 1992), reh’g granted
on other grounds, 30 F.3d 108 (11th Cir. 1994). Third, Paul argues, also for the
first time, that the district court erred by admitting an order of child support and
then limiting his cross-examination on the matter, but the district court did not
plainly err. Paul invited any error by stating that he had “[n]o objection” to
admitting the order into evidence, see United States v. Thayer, 204 F.3d 1352,
1355 (11th Cir. 2000), after which the district court eliminated the need for cross-
examination by withdrawing the order from evidence sua sponte on the ground it
was irrelevant, see United States v. Maxwell, 579 F.3d 1282, 1296 (11th Cir.
2009). And the district court eradicated any potential prejudice against Paul by
instructing the jury to disregard any testimony about or reference to the order. See
United States v. Tenorio-Angel, 756 F.2d 1505, 1512 (11th Cir. 1985). Because
Paul fails to identify any individual error, his argument about cumulative error
fails. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).
Paul argues that the government failed to prove that he violated the tax laws
willfully, but the district court did not err by submitting this question to the jury
and denying Paul’s motion for a judgment of acquittal. The government satisfied
its burden to “prove that the law imposed a duty on [Paul], that [he] knew of this
3
Case: 12-13208 Date Filed: 05/20/2013 Page: 4 of 8
duty, and that he voluntarily and intentionally violated that duty.” Cheek v. United
States, 498 U.S. 192, 201, 111 S. Ct. 604, 610 (1991). The evidence supported the
finding of the jury that Paul acted willfully in failing to file a tax return and in
aiding his wife to evade paying taxes based on testimony from Paul’s wife, the
Pauls’ accountants, and two agents of the Internal Revenue Service, Curtis Wolfe
and Carol Dox. Mrs. Paul and Agent Wolfe testified that Paul, who had served as
the office manager for his wife’s medical practice, changed the status of the
practice in 2004 from an S corporation to a nonprofit organization, applied for the
change of status, and listed himself as president of the nonprofit organization.
Agent Wolfe testified that Paul, who was responsible in his role as president to file
a Form 990 tax return yearly for the organization, failed to claim an exemption to
that yearly requirement when he applied for nonprofit status. And Agents Wolfe
and Dox testified that Paul filed a Form 990 and reported income for the
organization for tax years 2004 and 2005, but not 2006 or 2007. Presented with
these facts, the jury reasonably found that Paul knew to file a Form 990 for tax
year 2007, but willfully failed to do so. See 26 U.S.C. § 7203; see also Cheek, 498
U.S. at 202, 111 S. Ct. at 611 (“[O]ne cannot be aware that the law imposes a duty
upon him and yet be ignorant of it, misunderstand the law, or believe that the duty
does not exist.”).
4
Case: 12-13208 Date Filed: 05/20/2013 Page: 5 of 8
The evidence also supported the finding of the jury that Paul willfully aided
his wife when she evaded paying taxes. See 26 U.S.C. § 7201. Mrs. Paul and
Agent Wolfe testified that Paul arranged the financial affairs of the medical
practice so Mrs. Paul could avoid reporting income. Mrs. Paul testified that she
was obliged to pay taxes and complied with that duty before marrying Paul, but in
tax years 2004 through 2007 she neglected her obligation at Paul’s insistence that
she treat her income from the medical practice as loans. As part of this scheme,
Paul wrote “loan/draw” on the subject line of checks issued to Mrs. Paul and did
not issue her a W-2 or Form 1099. During the investigation that ensued, Paul
contended that he was not obliged to pay taxes and gave inconsistent statements to
justify his position. Agent Wolfe testified about a meeting in 2009 with Paul
during which he asserted that he had taken a vow of poverty and that his wife, the
sole provider for the family, was simply not required to pay taxes. Agent Wolfe
also testified about a meeting in 2010 with Paul and his wife during which they
said they were excused from paying taxes because Mrs. Paul received loans from
the medical practice. And Paul aided Mrs. Paul in withholding information from
and understating her income in filings with the Revenue Service. In 2005, Mrs.
Paul entered an agreement with her bank stating that her monthly income was
$7,000, and a loan agreement purportedly entered by Mrs. Paul and her medical
practice guaranteed her a salary of $400,000. Nonetheless, Mrs. Paul filed a
5
Case: 12-13208 Date Filed: 05/20/2013 Page: 6 of 8
delinquent tax return for tax year 2006 provided by Paul that reported his wife’s
income as $2,589. Although Mrs. Paul testified that she received nontaxable
income from the medical practice, the scheme and methods Paul used to conceal
Mrs. Paul’s income, and the substantial amount of that income reveals that Paul
knew his wife was required to pay taxes, but he voluntarily and intentionally
helped her evade that obligation. See id.; United States v. Daniels, 617 F.2d 146,
148–49 (5th Cir. 1980).
The district court did not clearly err by enhancing Paul’s sentence for his use
of sophisticated means. A defendant is subject to a two-level increase to his base
offense level if he uses “especially complex or especially intricate . . . conduct [in]
the execution or concealment of an offense.” United States Sentencing Guidelines
Manual § 2T1.1(b)(2) & cmt. n.4 (Nov. 2011). Paul converted his wife’s medical
practice to a nonprofit organization, classified payments from the practice as loans
to avoid reporting income, and deposited that money in 35 bank accounts that he
controlled on behalf of 13 shell businesses that he created within his nonprofit
organization. Paul’s tax avoidance scheme was sophisticated. See United States v.
Campbell, 491 F.3d 1306, 1315–16 (11th Cir. 2007).
The district court also did not clearly err by enhancing Paul’s sentence for
obstruction of justice. The Sentencing Guidelines provide for a two-level
enhancement of a sentence if a defendant “willfully obstructed or impeded, or
6
Case: 12-13208 Date Filed: 05/20/2013 Page: 7 of 8
attempted to obstruct or impede, the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction” and
his “obstructive conduct related to (A) [his] offense of conviction and any relevant
conduct; or (B) a closely related offense.” U.S.S.G. § 3C1.1. Paul obstructed
justice by attempting to interfere when his codefendant, Mrs. Paul, and her counsel
were involved in plea negotiations. See id. § 3C1.1 cmt. n.4(A), (D). Paul
instructed Mrs. Paul’s attorney not to contact her, and Paul forwarded emails
between Mrs. Paul and her attorney to counsel for the government. And Mrs. Paul
testified that Paul asked her not to plead guilty. Paul argues that “the impetus for
[his] conduct was protection of his wife, not prevention of her guilty plea,” but the
district court was entitled to reach a contrary finding based on the extent of Paul’s
involvement in the fraud and his pending criminal charges. See United States v.
Garcia, 13 F.3d 1464, 1471 (11th Cir. 1994).
The district court also did not abuse its discretion by varying upward from
the advisory guidelines range and sentencing Paul to 53 months of imprisonment.
Paul orchestrated a “loan scheme” to evade paying taxes on income from his wife’s
medical practice, failed to file tax returns to conceal that wrongdoing, and
underreported income on delinquent tax returns filed after the Revenue Service
discovered the fraud. Despite the substantial evidence of his guilt, Paul maintained
at his sentencing hearing that he was innocent. And the district court was
7
Case: 12-13208 Date Filed: 05/20/2013 Page: 8 of 8
concerned about Paul’s ability to manipulate his wife and influence her to
disregard her obligation to comply with the tax laws. The district court explained
that it had varied upward 12 months from the high end of Paul’s advisory
sentencing range of 33 to 41 months on the grounds that the “guidelines
underrepresent[ed] the conduct that [he] committed in this case” and that a
sentence at the low end of the guidelines range would “not [be] sufficient” to
address the statutory purposes of sentencing. The district court reasonably
determined that a sentence of 53 months would best “reflect the seriousness of the
offense, . . . promote respect for the law and . . . provide just punishment for the
offense, . . . afford adequate deterrence to criminal conduct, and . . . protect the
public from any further [similar] crimes.” See 18 U.S.C. § 3553. Paul’s sentence,
which is well below the maximum statutory penalty of 21 years of imprisonment,
is reasonable. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir.
2008).
We AFFIRM Paul’s convictions and sentence.
8
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Opinion issued October 6, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00440-CV
———————————
IN RE KIMBERLY ANN MORKA, Relator
Original Proceeding on Petition for Writ of Mandamus
MEMORANDUM OPINION
Kimberly Ann Morka seeks a writ of mandamus to require the trial court to
vacate its October 9, 2016 order denying her request for enforcement of a foreign
custody order, and to order the trial court to grant her request.1
We deny the petition.
1
The underlying case is Morka v. Morka, cause number 2014-48898A, pending in
the 247th District Court of Harris County, Texas, the Honorable John Schmude,
presiding.
PER CURIAM
Panel consists of Justices Jennings, Keyes, and Brown.
2
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22 F.2d 497 (1927)
EATON, Collector of Internal Revenue,
v.
PHNIX SECURITIES CO.
No. 51.
Circuit Court of Appeals, Second Circuit.
November 14, 1927.
*498 John Buckley, U. S. Atty., of Hartford, Conn., and Alexander W. Gregg and L. H. Baylies, both of Washington, D. C., for plaintiff in error.
Edward M. Day and Allan K. Smith, both of Hartford, Conn., for defendant in error.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
We do not think that anything will be gained by an extended discussion of the decisions on this tangled subject. Edwards v. Chile Copper Co., 270 U. S. 452, 46 S. Ct. 345, 70 L. Ed. 678, recognized the continued authority of McCoach v. Minehill R. R. Co., 228 U. S. 295, 33 S. Ct. 419, 57 L. Ed. 842, and U. S. v. Emery-Bird-Thayer Realty Co., 237 U. S. 28, 35 S. Ct. 499, 59 L. Ed. 825, to which we may add Zonne v. Minneapolis Syndicate, 220 U. S. 187, 31 S. Ct. 361, 55 L. Ed. 428. We cannot believe that it makes any difference whether the property held be corporate shares or realty, or whether the income be dividends or rent. Had it not been for the new accessions, the plaintiff would have been as bare a holding company as could be contrived. We do not believe that such a company is "engaged in business" during the year when it first receives its property and never thereafter. The venture is single, though at the outset it may show more activity; if there is business then, there is the same business always. Therefore we think that it made no difference that property continued to drop into the corporate lap from time to time, even though that were due to its own action. The alternatives were not business or death; a minimum of activity is necessary to the persistence of even the lowest organisms. Edwards v. Chile Copper Co., supra, is so plainly different on the facts that we may pass it. Phillips v. International Salt Co., 274 U. S. ___, 47 S. Ct. 589, 71 L. Ed. ___, is indeed closer, and may perhaps be the forerunner of a stricter rule. However, the holding company there actually aided in financing the operating company, as well as borrowed money from it. Whether these turned the scale, or the transactions in its bonds, or both together, we cannot tell. So far as we can see, it had no effect upon the cases on which we rely.
Judgment affirmed.
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID T. HARDY,
Plaintiff,
Civil Action No. 15-1649 (BAH)
v.
Judge Beryl A. Howell
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES, et al.,
Defendants.
MEMORANDUM OPINION
The plaintiff, David T. Hardy, seeks attorneys’ fees and costs as a “prevailing party”
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(E), Pl.’s Mot. Att’ys’
Fees (“Pl.’s Mot.”) at 1, ECF No. 36, in this lawsuit challenging aspects of the response by
defendants, the Department of Justice Office of Inspector General (“OIG”) and Bureau of
Alcohol, Tobacco, Firearms and Explosives (“ATF”), to the plaintiff’s FOIA request. See
Compl. ¶¶ 10, 18, 21, ECF No. 2. 1 After the parties’ cross-motions for summary judgment were
granted in part and denied in part, the parties stipulated to a dismissal of the case, except for the
plaintiff’s claim for attorneys’ fees. Pl.’s Mot. ¶ 15. For the reasons set forth below, the
plaintiff’s motion for attorneys’ fees is GRANTED in part and DENIED in part.
I. BACKGROUND
The factual and procedural history to this case is fully set out in this Court’s prior
Memorandum Opinion and, consequently, only those facts pertinent to resolving the instant
motion are summarized below. See Hardy v. Bur. of Alcohol, Tobacco, Firearms & Explosives
1
The complaint describes Mr. Hardy as an “attorney and internet blogger who disseminates information
relating to firearms law issues.” Compl. ¶ 4.
1
(Hardy I), 243 F. Supp. 3d 155, 159–61 (D.D.C. 2017). In March 2015, the plaintiff submitted a
FOIA request to OIG and ATF seeking documents regarding ATF’s policies on registered
handguns and “any statements, surveys, or reports of interviews given” to OIG “in connection
with” an OIG report issued in June 2007 titled “The Bureau of Alcohol, Tobacco, Firearms and
Explosives’ National Firearms Registration and Transfer Record” (“NFRTR”). Id. at 159–60.
The parties agreed that the requested records each fell into one of three categories: “(1) records
of interviews and notes of telephone interviews, (2) survey results, a draft survey, survey data
summaries, and survey data analysis, and (3) miscellaneous work papers, including indexes of
materials and interviews; and summaries of a document and emails that were reviewed.” Id. at
160.
In August 2015, OIG prepared a response to the plaintiff’s request stating that all
responsive records were exempt from disclosure pursuant to the “deliberative process” privilege
under Exemption 5 of the FOIA. Id. (citing Defs.’ Mot. Summ. J., Ex. 2, Decl. of Deborah M.
Waller (“Waller Decl.”) ¶¶ 5–6, ECF No. 22-2); see also Defs.’ Answer, Ex. 1, OIG Resp. Pl.’s
FOIA Request, Aug. 27, 2015 (“OIG Response”), ECF No. 13-1 (stating that “responsive
documents have been reviewed” and “[i]t has been determined that these documents be withheld
in their entirety”). The plaintiff then initiated this lawsuit in October 2015 challenging both
defendants’ responses to his FOIA request. Compl. ¶¶ 17–22.
In January 2016, the Court imposed a scheduling order, consistent with the parties’
proposal in a Joint Status Report, ECF No. 15, requiring the release of any nonexempt material
by February 29, 2016. Minute Order (Jan. 9, 2016). OIG subsequently reviewed sixty
responsive documents and determined that the portions that had been directly quoted in the
publicly available NFRTR “could be segregated and released without compromising the
2
deliberative processes of the OIG.” Waller Decl. ¶ 7. Three days ahead of the Court’s February
29, 2016, disclosure deadline, OIG provided forty pages of highly redacted documents and an
“index of responsive records withheld under claim of exemption,” pursuant to Vaughn v. Rosen,
484 F.2d 820 (D.C. Cir. 1973) (the “Vaughn Index”), reflecting the withholding of a total of 511
pages. Hardy I, 243 F. Supp. 3d at 160–161, 165. Likewise, after a first release on February 26,
2016, and a rolling production through June 29, 2016, ATF provided 539 documents, a
production that the plaintiff acknowledged “complied with [his] FOIA request.” Id. at 159 n.1;
Pl.’s Statement of Facts (“Pl.’s Facts”) ¶ 9, ECF No. 36; Defs.’ Opp’n Pl.’s Mot. Att’ys’ Fees
(“Defs.’ Opp’n”), Ex. 2, Decl. of Peter J. Chisholm, Acting Chief, Disclosure Division, Bureau of
Alcohol, Tobacco, Firearms and Explosives (“Chisholm Decl.”) ¶ 5, ECF No. 37-2.
The parties’ cross-motions for summary judgment were each granted in part and denied
in part. Hardy I, 243 F. Supp. 3d at 159. Specifically, of the three categories of withheld
records, the Court concluded that OIG was entitled to summary judgment as to the first category
of records described as “records of interviews and notes of telephone interviews,” id. at 170, but
only as to a single document in category two (i.e., “Survey Draft”), id. at 174, and a single
document in category three (i.e., “Interview Workpaper”), id. at 177. Otherwise, OIG was
denied summary judgment. The plaintiff was granted summary judgment and OIG was ordered
to disclose three documents in category two (i.e., two “Survey Results” and “Final Survey
Data”). Id. at 173. For the remaining category two and three documents, both parties’ motions
were denied because OIG “ha[d] not provided sufficient information for the Court to determine,
one way or the other, whether these documents [were] protected by Exemption 5.” Id. at 175;
see also id. at 178. In total, of the sixty documents withheld, three documents were ordered to be
released, all documents in category one and two other documents in the remaining categories
3
were deemed properly withheld, and OIG was denied summary judgment concerning the
remaining documents.
In June 2017, OIG provided three documents—two documents labeled “Survey Results”
and one document labeled “Final Survey Data”—to the plaintiff as required by the Court’s
Order. Pl.’s Facts ¶ 14; Hardy I, 243 F. Supp. 3d at 179. OIG also released five other
documents as to which the Court held there was insufficient information to grant either party’s
motion. Defs.’ Opp’n, Ex. 1, Decl. of Deborah M. Waller (“Waller Fees Decl.”) ¶ 8, ECF No.
37-1. The parties then stipulated to a dismissal of this case in its entirety, except for the
plaintiff’s instant claim for attorneys’ fees. Stip. of Dismissal at 1, ECF No. 35. The plaintiff
now seeks attorneys’ fees for time spent litigating the merits of this case as well as fees for time
spent on the fee motions.
II. LEGAL STANDARD
The FOIA authorizes an award of attorneys’ fees reasonably incurred by a plaintiff who
“has substantially prevailed” in the litigation. 5 U.S.C. § 552(a)(4)(E)(i). This statutory
provision “naturally divides the attorney-fee inquiry into two prongs, which our case law has
long described as fee ‘eligibility’ and fee ‘entitlement.’” Brayton v. Office of the U.S. Trade
Representative, 641 F.3d 521, 524 (D.C. Cir. 2011) (citing Judicial Watch, Inc. v. U.S. Dep’t of
Commerce, 470 F.3d 363, 368–69 (D.C. Cir. 2006)). Accordingly, the plaintiff must
demonstrate both eligibility and entitlement to the award. See McKinley v. Fed. Hous. Fin.
Agency, 739 F.3d 707, 710 (D.C. Cir. 2014); Weisberg v. U.S. Dep’t of Justice, 745 F.2d 1476,
1495 (D.C. Cir. 1984) (“[E]ligibility alone is not enough . . . the complainant must [also] show
that he or she is ‘entitled’ to an award.”) (citation omitted). If the plaintiff has established both
4
eligibility and entitlement, he must also establish the reasonableness of the fee request. See
Covington v. District of Columbia, 57 F.3d 1101, 1107–08 (D.C. Cir. 1995).
To satisfy the eligibility requirement, the plaintiff must show that he or she “substantially
prevailed” in the underlying FOIA litigation by gaining relief from either: “(I) a judicial order, or
an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in
position by the agency, if the complainant’s claim is not insubstantial.” 5 USC § 552(a)(4)(E)(ii).
Under the first prong, the claimant substantially prevails when “‘the order changed the legal
relationship between [the parties],’ and . . . the plaintiff ‘was awarded some relief on the merits of
his claim.’” Judicial Watch, Inc. v. FBI, 522 F.3d 364, 367 (D.C. Cir. 2008) (quoting Davy v.
C.I.A. (Davy I), 456 F.3d 162, 165 (D.C. Cir. 2006)) (internal quotations omitted). Under the
second prong, or “catalyst theory,” attorney’s fees may be awarded solely due to a change in an
agency’s position, for example, when the plaintiff’s lawsuit “substantially caused the government
to release the requested documents before final judgment.” Brayton, 641 F.3d at 524–25. 2
If the plaintiff has substantially prevailed, the court proceeds to the entitlement prong.
The D.C. Circuit “has long applied a multi-factor standard for evaluating whether a plaintiff who
is eligible for attorneys’ fees is also entitled to such fees.” McKinley, 739 F.3d at 711. “Four
non-exclusive factors typically govern the entitlement inquiry: ‘(1) the public benefit derived
from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest
in the records; and (4) the reasonableness of the agency’s withholding’ of the requested
2
The catalyst theory was utilized by this Circuit until 2001, when the Supreme Court held that “the ‘catalyst
theory’ is not a permissible basis for the award of attorney’s fees.” Buckhannon Bd. & Care Home, Inc. v. W. Va.
Dep’t of Health & Human Res., 532 U.S. 598, 610 (2001). Congress responded by resurrecting the catalyst theory
for FOIA cases in the Open Government Act of 2007. See Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 752 (D.C.
Cir. 2010). “The purpose and effect of this law, which remains in effect today, was to change the ‘eligibility’ prong
back to its pre-Buckhannon form.” Brayton, 641 F.3d at 525. As a result, “plaintiffs can now qualify as
‘substantially prevail[ing],’ and thus become eligible for attorney fees, without winning court-ordered relief on the
merits of their FOIA claims.” Id. (alteration in original).
5
documents.” Id. (quoting Tax Analysts v. U.S. Dep’t of Justice, 965 F.2d 1092, 1093 (D.C. Cir.
1992)). While “[n]o one factor is dispositive,” “if the Government’s position is correct as a
matter of law, that will be dispositive.” Davy v. CIA (Davy II), 550 F.3d 1155, 1162 (D.C. Cir.
2008). “The sifting of those criteria over the facts of a case is a matter of district court
discretion.” Tax Analysts, 965 F.2d at 1094.
If the plaintiff has established eligibility and entitlement, the plaintiff must then establish
the reasonableness of the calculation in its fee request. See Covington, 57 F.3d at 1107–08. The
reasonableness determination involves three parts: “(1) determination of the number of hours
reasonably expanded [sic] in litigation; (2) determination of a reasonable hourly rate or
‘lodestar’; and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v.
Hodel, 857 F.2d 1516, 1517 (D.C. Cir. 1988) (citation omitted). The plaintiff must submit
evidence regarding “the attorneys’ billing practices; the attorneys’ skill, experience, and
reputation; and the prevailing market rates in the relevant community.” Covington, 57 F.3d at
1107. The reasonable hourly rate is most commonly determined by the Laffey Matrix, which
“sets out a general guideline for awarding attorneys’ fees based on experience . . . adjusted for
inflation.” Salazar v. District of Columbia, 809 F.3d 58, 62 (D.C. Cir. 2015). Provided that the
plaintiff has submitted the required information, the presumption is that the number of hours
billed and the hourly rates are reasonable. Jackson v. District of Columbia, 696 F. Supp. 2d 97,
101 (D.D.C. 2010) (citing Blackman v. District of Columbia, 677 F. Supp. 2d 169, 172 (D.C. Cir.
2010)). The burden then shifts to the defendant to “provide specific contrary evidence tending to
show that a lower rate would be appropriate.” Covington, 57 F.3d at 1109–10 (internal
quotations omitted).
6
III. DISCUSSION
The defendants challenge the plaintiff’s fee request on the grounds that he is not entitled
to fees and that the fee request is excessive. These issues are considered in turn below.
A. The Plaintiff Is Eligible for Fees from OIG but Not from ATF
The plaintiff contends he is eligible for fees from both defendants because “neither OIG
nor BATFE produced any documents prior to the filing of the Complaint.” Pl.’s Mot. at 3.
While the plaintiff’s assertion about the timing of production is correct, this fact is not
dispositive of his eligibility for attorneys’ fees. As the D.C. Circuit has made clear, in the
context of FOIA attorneys’ fees, “the mere filing of the complaint and the subsequent release of
the documents is insufficient to establish causation.” Weisberg, 745 F.2d at 1496. When the
plaintiff advances a catalyst theory to establish eligibility for FOIA attorneys’ fees, “the focus is
highly contextual on what occurred in the lawsuit at issue, including consideration of the
sufficiency of the agency’s explanation for production delays.” Codrea v. Bur. of Alcohol,
Tobacco, Firearms & Explosives, Civ. No. 15-0988, 2017 WL 4334119, at *4 (D.D.C. Sept. 28,
2017).
Each agency responded differently to the plaintiff’s FOIA request. OIG, in August 2015,
initially informed the plaintiff that all responsive records were exempt from disclosure under
FOIA Exemption 5’s “deliberative process” privilege. Waller Decl. ¶ 5. Only after the plaintiff
initiated this lawsuit and the Court entered a scheduling order requiring the disclosure of
nonexempt documents by February 29, 2016, did OIG review sixty responsive documents and
determine that portions of those records could be released. Then, three days before the
Scheduling Order deadline, OIG produced forty highly redacted pages to the plaintiff. Hardy I,
243 F. Supp. 3d at 160; Pl.’s Facts ¶ 10; Defs.’ Opp’n at 2–4. Upon judicial scrutiny of OIG’s
7
claimed withholdings, the parties’ cross-motions for summary judgment were each granted in
part and denied in part, requiring OIG to produce certain withheld documents, while approving
the withholding of other documents and deferring judgment on other documents. Hardy I, 243 F.
Supp. 3d at 179. After the decision, OIG released the required documents to the plaintiff and
also voluntarily released five documents for which the Court had otherwise required further
explanation for withholding. Defs.’ Opp’n at 3.
The defendants “recognize that authority exists holding that a FOIA plaintiff substantially
prevails where a court issues a scheduling order requiring an agency to produce responsive
documents by a date certain, as the Court did here.” Defs.’ Opp’n at 4–5. Both the fact that OIG
produced records when a scheduling order was in place, after initially declining to do so, and the
fact that the plaintiff “obtained relief through . . . a judicial order,” 5 U.S.C. § 552(a)(4)(E)(ii)(I),
by partial grant of the plaintiff’s cross-motion for summary judgment,” Hardy I, 243 F. Supp. 3d
at 179, establishes that the plaintiff is eligible for fees from OIG.
The same cannot be said of ATF. ATF’s production satisfied the plaintiff’s request in
full, and accordingly, summary judgment was granted and final judgment entered for ATF.
Hardy I, 243 F. Supp. 3d at 159 n.1 (noting the plaintiff’s view that ATF’s timely production
under the Scheduling Order “complied with [his] FOIA request”); Pl.’s Facts at ¶ 9. The plaintiff
argues that this production makes him a prevailing party because ATF did not “produce[ ] any
documents prior to the filing of the Complaint.” Pl.’s Mot. at 3. This sequence of events does
not, on its own, demonstrate that “the institution and prosecution of the litigation cause[d] the
agency to release the documents obtained during the pendency of the litigation.” Church of
Scientology v. Harris, 653 F.2d 584, 587 (D.C. Cir. 1981) (emphasis added). Causation requires
more than correlation, and thus “[t]he causation requirement is missing when disclosure results
8
not from the suit but from delayed administrative processing.” Short v. U.S. Army Corps of
Eng’rs, 613 F. Supp. 2d 103, 106 (D.D.C. 2009) (citing Weisberg, 848 F.2d at 1268–71); see
also Church of Scientology, 653 F.2d at 588 (explaining that where “an unavoidable delay
accompanied by due diligence in the administrative processes was the actual reason for the
agency’s failure to respond to a request, then it cannot be said that the complainant substantially
prevailed in [its] suit”) (quoting Cox v. U.S. Dep’t of Justice, 601 F.2d 1, 6 (D.C. Cir. 1979))
(internal citations omitted).
Here, ATF explained that its “delay in producing records to Plaintiff was caused by an
administrative backlog, not bad faith.” Defs.’ Opp’n at 15. Around the time the plaintiff submitted
his request, ATF was experiencing “a significant increase in FOIA related requests from the public
and oversight entities, which has resulted in a backlog of FOIA requests.” Defs.’ Opp’n, Ex. 2,
Decl. of Peter J. Chisholm, Acting Chief, Disclosure Division, Bureau of Alcohol, Tobacco,
Firearms and Explosives (“Chisholm Decl.”) ¶ 14, ECF No. 37-2. In addition, “the Disclosure
Division was heavily involved with the review of approximately 20,000 pages of documents
responsive to Judicial Watch v. U.S. Department of Justice (No. 1:12-cv-01510)” and drafting the
associated Vaughn index. Id. ¶ 15. After the plaintiff submitted his request, “a high priority
redaction project consumed the entire Disclosure Division” that took the Division six weeks to
complete, thus “taking staff away from all other workloads.” Id. Along with the preexisting
backlog, this project understandably caused delays in responding to the plaintiff’s request. The
ATF proffered nearly identical reasons for its delay in production in a recent FOIA lawsuit before
this Court. See Codrea, 2017 WL 4334119 at *3–4. As in Codrea, ATF has fully explained that
the delays due were due to backlog and other projects and has provided a sufficient description of
its administrative difficulties to establish that causation is lacking here. Accordingly, the plaintiff
9
has not demonstrated that this litigation caused ATF to produce nearly 600 documents and thus he
is not eligible for an award of attorneys’ fees from ATF.
B. Entitlement to Fee Awards
The defendants contend that, even if he is eligible for fees from OIG, the plaintiff’s
motion should nevertheless be denied because he is not entitled to them. Defs.’ Opp’n at 5.
Review of the four relevant factors in determining entitlement to fees, McKinley, 739 F.3d at
711, demonstrates that the plaintiff is entitled to some attorneys’ fees from OIG. 3
1. Public Benefit
The first factor, public benefit derived from the case, “requires consideration of both the
effect of the litigation for which fees are requested and the potential public value of the
information sought.” Davy II, 550 F.3d at 1159. “If a plaintiff’s victory is likely to add to the
fund of information that citizens may use in making vital political choices, such a public benefit
weighs in favor of granting the plaintiff attorney fees.” Short, 613 F. Supp. 2d at 107 (internal
quotations omitted). In evaluating the public benefit of the information, “[t]he court must also
consider the extent to which the information released is already in the public domain.” Nw.
Coal. for Alts. to Pesticides v. Browner, 965 F. Supp. 59, 64 (D.D.C. 1997).
OIG produced survey results, survey data, and survey question analyses surrounding the
OIG’s review of the NFRTR. Pl.’s Mot. at 2. The plaintiff says this information is in the public
interest because “the Work Papers disclose evidence of reasonable doubt that the NFRTR is
accurate and reliable”; because the ATF “has consistently tried to avoid disclosing evidence that
the NFRTR is inaccurate, incomplete, and unreliable”; and because the work papers are “Brady
material that should be disclosed to defense counsel.” Pl.’s Mot., Ex. 4, Decl. of Eric Martin
3
The plaintiff is not eligible for fees from ATF; thus, his entitlement to fees from ATF is not assessed.
10
Larson (“Larson Decl.”) ¶ 3, ECF No. 36-4. The defendants dispute any public benefit to
disclosure of these records because “that information [wa]s already in the public domain” after
the NFRTR was made public in 2007. Defs.’ Opp’n at 6. Specifically, the defendants say that
the NFRTR is “filled with statements similar to those” that were released to the plaintiff,
including statements made in survey responses concerning the technical issues, backlogs in
updates, errors, and discrepancies associated with the NFRTR. Id.
While the NFRTR was publicly available before this lawsuit, “the mere fact that material
is in the public domain does not justify denying a fee waiver.” Campbell v. U.S. Dep’t of
Justice, 164 F.3d 20, 36 (D.C. Cir. 1998). The survey data and question analyses turned over to
the plaintiff included agency-generated summaries of the survey responses, some—but not all—
of which had been made publicly available in the NFRTR. The fact that an agency record
disclosed in response to a FOIA request “incorporates publicly available information,” however,
“does not detract from its value independent of the source material.” Id. Rather, insight into
how the agency reacted to the study and what information they chose to release “is the kind of
public understanding of government operations that FOIA was designed to foster.” Id.
Accordingly, public value is present in seeing which portions of the survey data and question
analyses OIG chose to make public in the NFRTR.
2. Commercial Benefit and the Nature of the Plaintiff’s Interest
The second and third factors, commercial benefit to the plaintiff and the nature of the
plaintiff’s interest in the records, are often “considered together” and “address whether the
plaintiff had a sufficient private incentive to pursue his FOIA request even without the prospect
of obtaining attorneys’ fees.” McKinley, 739 F.3d at 712 (internal quotations omitted). “When a
litigant seeks disclosure for a commercial benefit or other personal reasons, an award of fees is
11
usually inappropriate” because the plaintiff has sufficient motivation to bring suit without the
promise of attorneys’ fees. Cotton v. Heyman, 63 F.3d 1115, 1120 (D.C. Cir. 1995). If the
sought-after information “was scholarly or journalistic or public-interest oriented,” however, “a
court would generally award fees” unless the plaintiff’s interest “was of a frivolous or purely
commercial nature.” Davy II, 550 F.3d at 1160–61 (internal quotations omitted and alterations
adopted).
Here, the plaintiff says that the documents “are being publicized at no profit” to him and
that his interest in the documents is as “an attorney and internet blogger on firearms law.” Pl.’s
Mot. at 11. He published an article online after the documents were received, and he also
provided the documents to a defense attorney in a National Firearms Act prosecution. Id. The
defendants point to the plaintiff’s status as an attorney to argue that he “has both a personal and
commercial interest in the information he requested.” Defs.’ Opp’n at 11. The defendants also
aver that providing the documents to another attorney “demonstrates a purely personal, if not
commercial, reason for wanting the information.” Id. at 12. These arguments are unpersuasive.
The plaintiff has already blogged about the documents he received, and his past publications
indicate his scholarly interest in the topic. Pl.’s Mot. at 11; Pl.’s Reply Defs.’ Opp’n Pl.’s Mot.
Att’ys’ Fees (“Pl.’s Reply”) at 6, ECF No. 38. He has shared the information he received with
“law professors and attorneys interested in the right to arms and in firearms law,” and he did not
charge fees for that distribution. Pl.’s Mot., Ex. 5, Decl. of David T. Hardy (“Hardy Decl.”)
¶¶ 6, 10, ECF No. 36-5; see also Davy II, 550 F.3d at 1162 (noting that a plaintiff who
“request[ed] information under FOIA about what the government was up to that he intend[ed] to
share with the public” did so as part of his scholarship and news-gathering role, “rather than
12
merely to promote his private commercial interests”). The second and third factors are therefore
satisfied.
3. Reasonableness of the Defendants’ Withholdings
The fourth factor, the reasonableness of the agency’s withholding of the requested
documents, “considers whether the agency’s opposition to disclosure had a reasonable basis in
law” and “whether the agency had not been recalcitrant in its opposition to a valid claim or
otherwise engaged in obdurate behavior.” Davy II, 550 F.3d at 1162 (internal citation and
quotations omitted). “[I]f the Government’s position is correct as a matter of law, that will be
dispositive. If the Government’s position is founded on a colorable basis in law, that will be
weighed along with other relevant considerations in the entitlement calculus.” Id. (internal
citation omitted).
The plaintiff posits that “OIG’s rationale for withholding some of the documents is not
correct as a matter of law as set forth in th[e] Court’s opinion,” Pl.’s Mot. at 12, while the
defendants counter that OIG acted reasonably because the “vast majority of contested
withholdings” were upheld, Defs.’ Opp’n at 12–15. Both parties’ arguments have merit. As
detailed in the Memorandum Opinion granting partial summary judgment to OIG, the
withholding of documents in category one concerning “Records of Interviews and Telephone
Interview Notes,” which constituted the bulk of the withheld records, as well as two documents
from the remaining two categories, was correct as a matter of law. Hardy I, 243 F. Supp. 3d at
168–70, 173–74, 176–77. As for the three documents OIG was instructed to release—two
“Survey Results” and the “Final Survey Data”—OIG did not have a colorable basis for its
withholding. These documents “[we]re not summaries by individuals who culled information
from a much larger universe of facts,” “d[id] not reflect an exercise of judgment” by OIG, and,
13
as a matter of law, were not covered by FOIA Exemption 5. Id. at 171 (alterations adopted and
internal quotations omitted). Yet, OIG’s motion for summary judgment was denied for the
remaining documents, for which the agency had provided insufficient information to justify
withholding. Id. at 174–76, 179. Without more, OIG has not established a colorable basis for
withholding these documents and the plaintiff is likewise entitled to fees.
In sum, the plaintiff is eligible for and entitled to reasonable attorneys’ fees from OIG
due to OIG’s release of records, after initially claiming all were exempt before the lawsuit was
filed and a scheduling order in place, and the plaintiff’s partial success on his cross-motion for
summary judgment.
C. Reasonable Fee Award
Although the plaintiff is eligible for and entitled to some award of fees, that award must
be reasonable. See Judicial Watch, Inc. v. U.S. Dep’t of Justice, 878 F. Supp. 2d 225, 238
(D.D.C. 2012) (“The FOIA permits an award of ‘reasonable attorney fees and other litigation
costs’ to a plaintiff that demonstrates its eligibility for and entitlement to such an award.”
(quoting 5 U.S.C. § 552(a)(4)(E)(i)) (emphasis in original)). “The usual method of calculating
reasonable attorney’s fees is to multiply the hours reasonably expended in the litigation by a
reasonable hourly fee, producing the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps.
Local 25 v. JPR, Inc., 136 F.3d 794, 801 (D.C. Cir. 1998). The defendants have not challenged
either the plaintiff’s claimed $436 in costs or the plaintiff’s claimed hourly rate of $395 per hour
for an attorney with eight to ten years of experience and $339 per hour for an attorney with six to
seven years of experience, based on the Laffey Matrix. Thus, only the hours reasonably expended
in the litigation is at issue. See Pl.’s Mot. at 14; Defs.’ Opp’n at 15–18. The hours expended can
14
be broken down into time spent on the merits of the case and time spent on the request for
attorneys’ fees. These two fee categories will be addressed in turn.
1. Fees for Litigation of the Merits
When a plaintiff has achieved only partial or limited success, “[t]here is no precise rule or
formula” for determining the reasonable amount of attorneys’ fees. Hensley v. Eckerhart, 461
U.S. 424, 436 (1983). “The district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited success,” and “where the
plaintiff achieved only limited success, the court should award only that amount of fees that is
reasonable in relation to the results obtained.” Id. at 436, 440. “The essential goal in shifting
fees . . . is to do rough justice, not to achieve auditing perfection. So trial courts may take into
account their overall sense of a suit, and may use estimates in calculating and allocating an
attorney’s time.” Fox v. Vice, 563 U.S. 826, 838 (2011).
Here, the plaintiff achieved partial success: after this lawsuit was initiated, ATF made a
compliant production and OIG turned over some redacted documents. Hardy I, 243 F. Supp. 3d
at 159 & n.1. This Court then granted the parties’ summary judgment motions in part and denied
them in part, requiring that OIG produce additional documents to the plaintiff. Id. at 179. OIG
ultimately produced those documents, as well as other documents as to which OIG had been
denied summary judgment. Pl.’s Mot. ¶ 15. At the same time, the bulk of OIG’s withheld
documents were found to be properly exempt from disclosure. Thus, some adjustment to the
plaintiff’s request for fees is warranted as he did not completely succeed in his efforts. As
discussed, the plaintiff is not entitled to fees from ATF. Accordingly, the time spent on tasks
related to only ATF will be deducted from the plaintiff’s hours. This amounts to a reduction of
19.1 hours (8 for Stamboulieh and 11.1 for Beck). See Pl.’s Mot., Ex. 7, Decl. of Stephen D.
15
Stamboulieh (“Stamboulieh Decl.”) at 5–16, ECF No. 36-7; Pl.’s Mot., Ex. 8, Decl. of Alan Beck
(“Beck Decl.”) at 4–5, ECF No. 36-8.
The defendants also challenge the plaintiff’s request by arguing that the plaintiff seeks
fees for noncompensable tasks, including time spent reviewing documents produced by the
defendants and time spent on “simple tasks” such as heeding the Court’s scheduling orders.
Defs.’ Opp’n at 17–18. Regarding document review, “it would seem critical to the prosecution
of a FOIA lawsuit for a plaintiff to review an agency’s disclosure for sufficiency and proper
withholding during the course of its FOIA litigation.” Elec. Privacy Info. Ctr. v. U.S. Dep’t of
Homeland Sec., 811 F. Supp. 2d 217, 239–40 (D.D.C. 2011). The plaintiff is therefore entitled
to fees for time spent reviewing the adequacy of the defendants’ production to determine how to
proceed in this litigation. See Elec. Privacy Info. Ctr. v. FBI, 80 F. Supp. 3d 149, 159 (D.D.C.
2015) (“[T]o the extent that the released documents are being reviewed to evaluate the
sufficiency of the release or the propriety of a specific withholding so that the attorney can then
challenge the release or withholding, such document review time is properly included in a FOIA
attorney’s fees award.”).
The plaintiff is not, however, entitled to recover for time spent reviewing the documents
turned over as a result of the Court’s Memorandum Opinion, as “Plaintiff would have had to
expend this time had [the defendants] timely produced the documents without litigation.”
Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice, 825 F. Supp. 2d 226, 231
(D.D.C. 2011). Nor is the plaintiff entitled to fees for time spent reviewing documents produced
by ATF, as discussed above. According to the plaintiff’s records, this amounts to a one-hour
deduction for the time spent reviewing documents produced after the Court’s opinion, in addition
to the deduction for time spent on ATF-related matters. Stamboulieh Decl. at 15.
16
As for the fees associated with heeding reset deadlines and other “simple tasks,” the goal
in awarding attorneys’ fees “is not line-item supervision of billing practices but ‘rough justice.’”
Elec. Privacy Info. Ctr. v. Dep’t of Homeland Sec., 197 F. Supp. 3d 290, 295 (D.D.C. 2016).
The Court need not “engage in a picayune battle of the ledgers.” Elec. Privacy Info. Ctr. v. U.S.
Drug Enf’t Admin, Civ. No. 15-00667, 2017 WL 3049403, at *6 (D.D.C. July 18, 2017). While
the inefficiencies in the plaintiff’s billing are noted, judicial resources will not be spent
evaluating the reasonableness of each individual entry in the plaintiff’s ledgers.
The defendants also challenge the plaintiff’s requested amount as excessive given the
plaintiff’s “barely minimal” success. Defs.’ Opp’n at 16. The plaintiff recognizes that his
success was limited and has voluntarily imposed a ten percent reduction in fees to account for
“duplication of work between the two attorneys” and partial success on “Plaintiff’s Motion for
Summary Judgment.” Pl.’s Mot. at 15. The defendants do not acknowledge this reduction and
do not suggest a more appropriate reduction. Rather, the defendants proffer an alternative
method of calculating the plaintiff’s fees, in which the requested amount is reduced in proportion
to the pages spent arguing the successful claims on the merits. See Defs.’ Opp’n at 16–17 (citing
Elec. Privacy Info. Ctr. v. U.S. Dep’t of Homeland Sec., 982 F. Supp. 2d 56, 63 (D.D.C. 2008)).
While this method has been employed several times within this district, see, e.g., Elec. Privacy
Info. Ctr., 197 F. Supp. 3d at 297, adoption of this methodology would create a perverse
incentive for parties to write more simply in order to increase their potential fee awards.
A ten percent reduction does not adequately reflect the plaintiff’s partial success. Of the
sixty documents at issue at the summary-judgment stage, the plaintiff succeeded as to only three
documents. Thus, “awarding [the plaintiff] its entire fee, and thus compensating it at least in part
for time spent on a losing claim, would be an abuse of discretion.” Nat’l Sec. Archive v. Dep’t of
17
Defense, 530 F. Supp. 2d 198, 205 (D.D.C. 2008). OIG later voluntarily released five additional
documents, for a total of eight documents disclosed. In this case, however, an award of fees
proportional to the number of documents released would, given OIG’s initial blanket
withholding of all responsive records, “understate the degree of plaintiff’s success and would
almost amount to a free pass for the government’s obdurate behavior.” Bloomgarden v. U.S.
Dep’t of Justice, 253 F. Supp. 3d 166, 179 (D.D.C. 2017). Thus, to accomplish “rough justice”
in the award of fees, the plaintiff’s award will be reduced by fifty percent.
In sum, from the plaintiff’s stated 98.1 hours spent litigating the merits of this case (67.2
for Stamboulieh and 30.9 for Beck), 19.1 hours will be deducted for work pertaining to only
ATF (8 for Stamboulieh and 11.1 for Beck), and one hour will be deducted for time spent by
Stamboulieh reviewing documents produced by OIG after the Court’s order on summary
judgment. With these reductions, the plaintiff will be awarded fees for 78 hours of work (58.2
for Stamboulieh and 19.8 for Beck) which, after a 50 percent reduction, amounts to 39 hours
(29.1 for Stamboulieh and 9.9 for Beck). At undisputed rates of $395 for Stamboulieh and $339
for Beck, the total award for fees on the merits is $14,850.60 ($11,494.50 for Stamboulieh and
$3,356.10 for Beck). The plaintiff is also entitled to $436 in costs; the defendants have not
challenged that amount. Pl.’s Mot. at 14.
2. Fees on Fees
Finally, the plaintiff requests fees for time spent on the Motion for Attorneys’ Fees and
accompanying reply brief. The law is “settled in this circuit” that “[h]ours reasonably devoted to
a request for fees are compensable.” Noxell Corp. v. Firehouse No. 1 Bar–B–Que Rest., 771
F.2d 521, 528 (D.C. Cir. 1985). “[T]he party requesting fees on fees has the burden of
establishing the reasonableness of the request and must submit supporting documentation that
18
provides sufficient detail so that the Court can determine with a high degree of certainty that the
hours billed were actually reasonably expended.” Boehner v. McDermott, 541 F. Supp. 2d 310,
325 (D.D.C. 2008) (internal quotations omitted and alterations adopted) (emphasis in original).
In support of the fee motion, the plaintiffs’ attorneys submitted contemporaneous billing
records. These records were detailed and, given the presumption of reasonableness that
accompanies compliant records, the plaintiff is entitled to fees for time spent on the Motion for
Attorneys’ fees. See Jackson, 696 F. Supp. 2d at 101. Those records did not include entries for
time spent preparing the plaintiff’s reply to its Motion for Attorneys’ fees. See Pl.’s Reply at 13.
The plaintiff later submitted contemporaneous billing records for six hours spent by attorney
Stamboulieh for the time spent on the reply. See Pl.’s Response Min. Order, Ex. 1, Decl. of
Stephen D. Stamboulieh (“Stamboulieh Supp. Decl.”) ¶¶ 4–8, ECF No. 39-1; Pl.’s Response
Min. Order, Ex. 2, Decl. of Alan Alexander Beck (“Beck Supp. Decl.”) ¶¶ 3–9, ECF No. 39-2. 4
Consequently, the attorneys’ records reflect 25.4 hours spent on the Motion for Attorneys’ Fees
(18 by Stamboulieh and 7.4 by Beck), and 6 hours spent by attorney Stamboulieh on the reply
brief. This amounts to $11,988.60 ($9,480.00 for Stamboulieh and $2,508.60 for Beck).
Courts in this district commonly award the applicant “the same percentage of fees for fee
litigation as it does for fees on the merits.” Elec. Privacy Info. Ctr., 982 F. Supp. 2d at 61; see
also Judicial Watch, 878 F. Supp. 2d at 241 (“[T]he Court must reduce Judicial Watch’s
requested fees on fees award commensurate with the Court’s reduction of Judicial Watch’s
4
The plaintiff attempts to “estimate” and “recreate” additional time spent on the reply, Stamboulieh Supp.
Decl. ¶¶ 6–8, Beck Supp. Decl. ¶¶ 4–8, but in this circuit, fee applications must “include contemporaneous time
records of hours worked and rates claimed, plus a detailed description of the subject matter of the work with
supporting documents,” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989) (per curiam); see also Nat’l Ass’n of
Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982) (“[C]asual after-the-fact estimates of
time expended on a case are insufficient to support an award of attorneys’ fees. Attorneys who anticipate making a
fee application must maintain contemporaneous, complete and standardized time records which accurately reflect
the work done by each attorney.”). Thus, attorneys’ fees on the reply are limited to those hours for which the
requisite records are submitted.
19
award for the litigation of this case.”). Here, the plaintiff originally requested $37,019.10 for
fees on the merits; as discussed, the plaintiff will be awarded $14,850.60, which amounts to a
59.9 percent reduction. The same reduction will be applied to the plaintiff’s fee request for fee
litigation. Imposing the 59.9 percent reduction as discussed above, this amounts to $4,809.35 in
fees on fees ($3,803.00 for Stamboulieh and $1,006.35 for Beck).
IV. CONCLUSION
For the reasons discussed above, the plaintiff is eligible for and entitled to attorneys’ fees
and costs in the total amount of $20,095.95 from OIG, which amount includes $436 in costs,
$14,850.60 for attorney’s fees, and $4,809.35 in fees on fees. The plaintiff is not eligible for fees
from ATF. Accordingly, the plaintiff’s Motion for Attorneys’ Fees and Costs, ECF No. 36, is
granted in part and denied in part. An appropriate Order accompanies this Memorandum
Opinion.
Date: November 9, 2017
__________________________
BERYL A. HOWELL
United States District Judge
20
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228 S.W.2d 552 (1950)
OLGIN
v.
EMPLOYERS MUT. CASUALTY CO.
No. 11989.
Court of Civil Appeals of Texas, San Antonio.
March 15, 1950.
Rehearing Granted March 15, 1950.
Rehearing Overruled April 12, 1950.
Morriss, Morriss & Boatwright, San Antonio, for appellant.
Eskridge & Groce, San Antonio, Charles R. Hancock, San Antonio, for appellee.
W. O. MURRAY, Chief Justice.
This suit was instituted by Pauline V. Olgin, a feme sole, against Employers Mutual Casualty Company, seeking to recover the sum of $2,000, which was the amount of a judgment obtained by her against one Monico Torres as a result of a collision between a car driven by her and a truck driven by Torres, the truck belonging to National By-Products, Inc., and being driven by Torres at the time of the collision allegedly with the permission of National By-Products, Inc.
*553 The Employers Mutual Casualty Company was the carrier of the casualty insurance of National By-Products, Inc. The insurance policy contained what is commonly called an omnibus coverage clause, which provides, "The unqualified word `insured' wherever used * * * includes the named insured and, except where specifically stated to the contrary, also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured."
Whether or not Pauline V. Olgin should be entitled to recover herein depends entirely upon whether or not Monico Torres was using the truck with the permission of National By-Products, Inc., within the meaning of the omnibus coverage clause of the insurance policy.
The trial was to the court without the intervention of a jury and resulted in judgment that Pauline V. Olgin take nothing. From that judgment Pauline V. Olgin has prosecuted this appeal.
Appellant, by her first four points, presents the contention that the trial court erred in finding as a fact that Monico Torres was using the truck of National By-Products, Inc., without its permission at the time of the collision and was therefore not an additional insured under the omnibus coverage clause of the insurance policy issued by appellee to National By-Products, Inc.
We are of the opinion that the trial court properly held that Torres was not using the truck at the time of the collision with the permission of National By-Products, Inc., and that the finding is supported by the evidence in this case.
Torres had been using a truck of National By-Products, Inc., for whom he worked for more than a year, to go to and from his work. According to the testimony of H. M. Dunham, general manager of the National By-Products, Inc., Monico Torres had explicit instructions to drive the truck directly to his home from his work and to leave the truck there until the next morning and then to drive it directly back to the plant, unless he was given orders to make pick-ups of material on his way back to the plant. Torres also had instructions not to use the truck on any personal business. Up until the time of the collision, Dunham had never heard of Torres' violating these instructions.
On the 15th day of July, 1947, Monico Torres left the plant about 6 P. M., in a truck belonging to National By-Products, Inc., to go to his home, under the above instructions. The plant was about two miles south of the City of South San Antonio on the Quintana Road. Torres lived at 118 Hall Street, which, speaking generally, is about two miles north of South San Antonio. There was no bus service from Torres' home to the plant and to enable him to travel from his home to his work and return the company permitted him to use the truck. On the date mentioned Torres did not go directly to his home, but deviated from that course. He first stopped at a pool hall on South Zarzamora Street and played pool for some two hours; he then left the pool hall and went out Guadalupe Street to Chupaderas Street, which was beyond and west of his home. He stayed at a place out there until it closed, about 11:30 P. M. He then left this place and drove in the direction of downtown San Antonio, but when he arrived at Laredo Street he again started in the direction of his home, and when he arrived at the corner of Frio and El Paso Streets he had the collision with appellant, Mrs. Pauline V. Olgin. This intersection is about two miles from Torres' home. The collision occurred about midnight. If Torres had gone directly home he should have arrived there about 6:30 P. M., but, due to his meanderings he had the collision some three and one-half hours later and he still had not reached home. Thus we see that Torres not only did not have permission of the owner to use the truck at the time and place and for the purpose he was using it, but he was using the truck in direct violation of his explicit instructions to drive straight home and not to use it for his personal business. If the evidence is not conclusive to this effect, certainly it is sufficient to support the trial judge's finding *554 that the truck was being used at the time of the collision without the consent of National By-Products, Inc.
The exact point raised here has never been passed upon in this State, and when we look to the decisions of other jurisdictions we find considerable lack of harmony. The best treatise upon the subject that we have read is the Annotations found in 5 A.L.R.2d page 600 to page 666. It is there pointed out that in the United States three rules are to be found with reference to when an employee is covered by the omnibus coverage clause of a liability insurance policy while driving an automobile owned by the employer. There are three different rules laid down by the authorities: (1) The strict or conversion rule; (2) The liberal rule; (3) The intermediate or minor deviation rule. 5 A.L.R.2d at page 622, § 10.
These rules are defined and described by the annotator as follows:
"First, the strict or conversion rule: For the use of the car to be with the permission of the assured within the meaning of the omnibus clause, the permission, express or implied, must have been given to the employee not only to the use of it in the first instance, but also to the particular use being made of the car at the time in question. In other words, the automobile must have been used for a purpose reasonably within the scope of the permission given, during the time limits expressed, and within the geographical limits contemplated.
"Another view is the so-called liberal rule: The employee need only to have received permission to take the vehicle in the first instance, and any use while it remains in his possession is `with permission' though that use may be for a purpose not contemplated by the assured when he parted with possession of the vehicle. This rule is based on the theory that the insurance contract is as much for the benefit of the public as it is for the assured and that it is undesirable to permit litigation as to details of the permission and use.
"The third rule is the moderate or `minor deviation' rule: A slight deviation from the scope of the authority or permission granted will not be sufficient to exclude the employee from the coverage under the omnibus clause, but a material deviation will be held to constitute a use of the automobile without the employer's implied permission. This view is obviously difficult of application, because the question to be answered is whether the deviation from the authorized use was slight or gross, and that turns on the facts of each case. The extent of the deviation in actual distance, the purpose for which the vehicle was given, and other factors, must be taken into consideration."
The following statement is found in 5 A.L.R.2d at page 625, with reference to which rule is followed in Texas: "The third and final group is formed by those jurisdictions which take a middle ground and hold it necessary to consider the extent and effect of the particular deviation involved, material deviations voiding the initial permission and minor deviations leaving such permission unaffected. Among the states in this group are Georgia, Kentucky, Ohio, Oklahoma, Pennsylvania, Texas, and Washington. Probably belonging in this group also are Idaho, Minnesota, and Virginia, and the Federal courts before Erie R. Co. v. Tompkins [304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487]."
In support of this statement, the following Texas cases are cited: "Texas. Salitrero v. Maryland Casualty Co., Tex.Civ. App.1945, 109 S.W.2d 260; Snyder v. St. Paul Mercury Indem. Co., Tex.Civ.App. 1945, 191 S.W.2d 107; Ohio Casualty Ins. Co. v. Plummer, D.C.Tex.1935, 13 F.Supp. 169."
We are not sure that these cases definitely commit this State to the intermediate or minor deviation rule, but it seems to us that some rule between the two extreme rules, that is, the strict and liberal rules, should be followed. It does not seem just to declare that there is no coverage when the employee has made a minor deviation from the scope of his original permission and, on the other hand, it likewise does not seem just to declare there is coverage provided where there is initial permission to use the automobile, regardless of how far the employee may have deviated from *555 the scope of his original permission or the purpose for which it was granted.
However, regardless of the variations in the several rules and regardless of which one may be applied, it occurs to us that there are facts in the case at bar that justify the trial court in finding that Torres was not covered by reason of the omnibus coverage clause at the time he had the collision with appellant. Torres was using the truck in violation of explicit instructions given him with reference to the use to be made of the truck. He was violating the explicit instructions to drive the truck directly to his home, and he was also violating the expressed instruction not to use the truck for personal business. In 5 A.L.R.2d, at page 622, § 9, it is said: "* * * a distinction must be made * * * where the employee puts the automobile to a use expressly forbidden by the employer. It is clear that the assumption of an implied permission for the use to which the automobile was put by the employee is made considerably more difficult where such use was expressly prohibited by the employer."
It is also stated in § 20, at page 651, 5 A.L.R.2d, that: "Where the employer has expressly forbidden his employee to use the employer's automobile for his own personal purposes, such use of the automobile by the employee in violation of orders is not deemed to be one with the permission of the employer within the meaning of the omnibus clause of the liability insurance policy."
Cited in support of this text are many cases, among which are the following: Wilson v. Farnsworth, La.App., 4 So.2d 247; Waddell v. Langlois, La.App., 158 So. 665; Standard Accident Ins. Co. v. Rivet, 5 Cir., 89 F.2d 74; Jordan v. Shelby Mut. Plate Glass & Casualty Co., 4 Cir., 142 F.2d 52, affirming, D.C., 51 F.Supp. 240; Johnson v. Maryland Casualty Co., D.C. Wis.1940, 34 F.Supp. 870; Hodges v. Ocean Accident & Guaranty Corp., 66 Ga.App. 431, 18 S.E.2d 28, certiorari denied 316 U.S. 693, 62 Sup.Ct. 1299, 86 L.Ed. 1763, which has rehearing denied 317 U.S. 705, 63 Sup. Ct. 25, 87 L.Ed. 563; Trzich v. United States Casualty Co., 52 Ohio App. 246, 3 N.E.2d 684; Globe Indemnity Co. v. Nodlere, 10 Cir., 69 F.2d 955.
There are cases to the contrary, but we regard them as against the weight of authority and we therefore decline to follow them.
Under all of the facts and circumstances in this case, we are of the opinion that the trial judge did not err when he found from the evidence that Torres did not have permission from his employer to use the truck at the time of the collision with appellee.
The case relied upon most strongly by appellant is that of Dickinson v. Maryland Casualty Co., 101 Conn. 369, 125 A. 866, 41 A.L.R. 500. In that case the employee had permission to use the automobile to go to his home and change his clothes and to hurry back. The case is distinguishable from this case in that there the employee did not have any instructions to go straight to his home, nor did he have any instructions not to use the automobile for his personal business. Further, it is not shown in the Dickinson case that the trier of facts had found under the evidence that there was no permission to use the automobile.
Appellant also relies upon the case of Stovall v. New York Indemnity Co., 157 Tenn. 301, 8 S.W.2d 473, 72 A.L.R. 1368. This case is based upon the liberal rule that only initial permission to use the automobile is all that is required and that regardless of how far the employee may depart from the scope of the initial permission there is, nevertheless, coverage under the omnibus coverage clause. This does not represent the majority rule in the United States, and we refuse to follow this case. Furthermore, the Stovall case does not involve the use of the automobile contrary to the expressed instructions of the employer.
Appellee contends that there should be no liability here on its part because M. Torres did not deliver to it the copy of the citation served upon him in the original suit, as he was required to do under the provisions of the indemnity policy issued by appellee. We overrule this contention. *556 Torres was served with a citation on August 4, 1947, and on August 14, 1947, appellee secured from him a non-waiver agreement. Appellee's attorneys appeared at the trial and defended the suit as to National By-Products, Inc., and used M. Torres as a witness. Under such facts appellee fails to show that it was injured in any way by Torres' failure to deliver to it the copy of the citation served upon him.
Appellee's motion for a rehearing is granted.
The judgment of this Court rendered on December 28, 1949, is hereby set aside and our opinion of that date is also set aside and withdrawn, and this opinion substituted therefor.
The judgment of the trial court is affirmed.
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COURT OF APPEALS
COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
ALEJANDRO LEDESMA, JR., )
)
No. 08-04-00043-CR
Appellant, )
) Appeal from the
v. )
)
41st District Court
THE STATE OF TEXAS, )
)
of El Paso County, Texas
Appellee. )
)
(TC# 20000D04485)
O
P I N I O N
Alejandro Ledesma,
Jr. was indicted on two counts for the murder of his first wife, Melina
Ledesma. Prior to trial, the State
abandoned Count I and proceeded to trial only on Count II, which alleged that
Appellant had intentionally and knowingly caused the death of Melina Ledesma by
killing her in a manner unknown to the grand jury. Count II also alleged that Appellant had used
a deadly weapon, unknown to the grand jury, during the commission of the
offense. Over Appellant=s not guilty plea, the jury found
Appellant guilty of murder as alleged in Count II of the indictment and made an
affirmative deadly weapon finding. The
jury then assessed punishment at 60 years=
imprisonment and a $10,000 fine. In his
out-of-time appeal, Appellant contends that the evidence is legally and
factually insufficient to sustain his conviction and asserts that the trial
court erred by commenting on the weight of the evidence, which resulted in an
unfair trial. We find no reversible
error and affirm.
In July 1993,
Melina Ledesma (AMelina@) was seventeen years= old and just graduated from high
school. Melina and Appellant married on
June 18, 1993 and lived together in Appellant=s
house at 3107 Hamilton with Appellant=s
brother and father. Both Melina and
Appellant worked at a garment finishing factory owned by Melina=s parents, Juan and Rosario Garcia, and
her aunt.
William Barrett
was a good friend of Appellant=s. Mr. Barrett met Melina through
Appellant. On July 27, 1993, Appellant
called Mr. Barrett and invited him to go out drinking with him and Melina. They picked him up at his house, purchased
some quarts of beer, and then went to the APost,@ a dirt lot near the Pershing gate
entrance to Fort Bliss. They arrived at
the Post at approximately 9:30 p.m.
Appellant=s
brother, Leo, was there with five or six of his friends. Almost everyone there was drinking, including
Mr. Barrett, Appellant, and Melina. The
atmosphere was pleasant, everyone seemed to be getting along great, and there
were no problems or arguments that night.
Mr. Barrett and Melina left in Appellant=s
car to buy more beer, but could not because by then it was past the midnight
cutoff time for beer sales. They
returned to the Post at approximately 12:15 or 12:20 a.m. Around 12:30 a.m., everyone left and
Appellant and Melina gave Mr. Barrett a ride back to his home, which was only a
two to three minute drive from Appellant=s
house. Appellant told Mr. Barrett that
he and Melina were going to go home and get something to eat. According to Mr. Barrett, Melina appeared to
be in excellent physical condition and looked in good health.
The next day,
Appellant showed up for work without Melina.
Since they normally came to work together, the Garcias asked Appellant
where Melina was. Appellant told them
that on the night before, they had gone out drinking at the Post and then
returned home. From there, they went to
Clicks to play pool. When they arrived,
Clicks was about to close, so Appellant told Melina to wait in the car while he
went to see if they were really closing.
Appellant went inside and used the restroom and when he came back,
Melina was not in the car. Appellant saw
her talking to some friends and he tried to get her to invite those friends
back to their house. Melina did not want
to go home, so he drove away and left her there. Appellant, however, went back to Clicks and
saw Melina get into a red Corvette with a man.
Appellant followed them in his car, but the Corvette was fast and got
away. Appellant went home and waited for
Melina to come home. Appellant told the
Garcias that was the last time he had seen Melina.
After Appellant
talked to the Garcias, Mrs. Garcia and Appellant went to look for Melina while
Mr. Garcia stayed at the factory. They
first went to Appellant=s
house at 3107 Hamilton and spoke with Appellant=s
brother, Leo, who was there at the house.
Mrs. Garcia entered the house and stood between the kitchen and the
den. They stayed at Appellant=s house for about five minutes. According to Mrs. Garcia, Appellant=s demeanor that morning was Anormal@
and he was not angry. Appellant and Mrs.
Garcia next went to Appellant=s
grandmother=s house
where they stayed for two hours. They
called the police from the grandmother=s
house. When the police arrived they
filed a report. As requested, Mrs.
Garcia waited seventy-two hours past the time of Melina=s
disappearance before speaking with the police again.
The Garcias
continued their attempts to locate Melina.
They hired Jay J. Armes, a private investigator; printed and distributed
flyers; talked to Melina=s
friends; contacted the newspaper and televisions stations in El Paso and
Juarez; went to the Juarez police station; talked with the governor of
Chihuahua; contacted the FBI; searched in El Paso themselves; and turned to
psychics as well, but to no avail.
Appellant helped the Garcias distribute flyers at the mall, but never
provided them with any evidence, leads, or witnesses to corroborate his story
about what had happened at Clicks.
Two or three days
after Melina=s
disappearance, Appellant spoke with Mr. Barrett. Mr. Barrett asked Appellant what
happened with Melina. Appellant told him
that Melina had left him. Appellant said
that he and Melina had gone to Clicks later in the evening because she still
wanted to party and they ran into some friends there. Appellant wanted to go home, but Melina did
not. Appellant told Mr. Barrett that
there were two cars in the Clicks parking lot--one with a group of friends and
a red Corvette with a guy. Melina got
into the red Corvette and Appellant tried to follow them and then went home.
Detective Tony
Tabullo of the El Paso Police Department became involved in the case on July
29, 1993. When Melina=s disappearance was first reported, it
was treated as Aan
attempt to locate@
case. Detective Tabullo first spoke with
the Garcias and then spoke with Appellant separately. Appellant told Detective Tabullo that on the
night of her disappearance, he and Melina were playing pool at Clicks. Appellant went to the restroom and when he
came back, Melina was outside talking to a group of four girls and three guys. Appellant got into his car and honked the
horn several times before Melina came to the car. Appellant told her it was time to leave, but
she walked back to her friends.
Appellant became a little angry and told her it was time to leave again,
but again she refused. Melina then told
Appellant that she did not want to go with him because he was drunk. Appellant finally told Melina to choose
between him and her friends and she walked away and went to her friends. Appellant became angry and jealous, so he
left the Clicks parking lot, hoping that perhaps Melina would come to him
before he left, but she did not.
Appellant drove away, but then turned around and went back to pick up
Melina. When he arrived, he saw Melina
getting into a red Corvette with a white convertible top. Appellant described the driver of the
Corvette as AHispanic
male, 20 to 25 years old. About five
foot six tall. Short black hair and cut
off sideburns. Wearing a white shirt,
blue jeans, white ostrich boots and looked like he had a beeper on him.@
Appellant followed the Corvette to I-10, but the Corvette sped up and
left him behind. Appellant exited the
highway and went home.
Detective Tabullo
spoke with Appellant at least two other times and Appellant called him at least
once during the investigation. Appellant
did not provide the police with any evidence, leads, or names of witnesses to
assist in locating Melina. During their
investigation into Melina=s
disappearance, the police distributed police bulletins among law enforcement
agencies and the news media; investigated several traces that had been placed
on the Garcias= and
Appellant=s mother=s telephones; investigated sightings of
red Corvettes; placed Melina=s
information on the National Crime Information Computer (NCIC) system; spoke
with Melina=s and
Appellant=s
friends; went out to the Post; and placed Melina=s
information and photograph in the Missing and Exploited Childrens= Network. Over the course of the next seven years,
Detective Tabullo spoke with the Garcias over a hundred times. Records from the Social Security
Administration showed no activity on Melina=s
social security number after 1993.
On August 2, 1993,
the Garcias retained Jay J. Armes, a private investigator to investigate the
disappearance of their daughter.
Appellant was with the Garcias for the initial meeting. Mr. Armes questioned Appellant
separately. Appellant told Mr. Armes
that he and Melina had a heated argument at their house on Hamilton about not
having food or heat in the house. After
the argument, they decided to go play pool at Clicks. He, Melina, and their friend Billy, got into
the car and left their house on Hamilton.
During the drive to Clicks, Appellant and Melina continued to argue and
Billy asked to be let off so he could walk home. They arrived at midnight and it looked like
Clicks was closed. Appellant left Melina
in the car and went to the door to see if it was closed. Appellant knocked on the window and a Clicks= employee told him they were
closed. Appellant asked to use the
restroom and was allowed inside. When he
returned to his car a few minutes later, Melina was gone. Appellant saw Melina across the parking lot
talking to two men and a woman. Melina
jumped into a red Corvette convertible with the individuals. Appellant pursued the Corvette, but he could
not keep up and lost sight of it on Montana.
Appellant obtained a partial license plate number. Appellant drove around looking for the
Corvette at different club locations until two or three in the morning and then
went home.
Mr. Armes was
never able to confirm Appellant=s
story about Clicks, and Appellant never provided any witnesses or leads to
corroborate his version of events. Mr.
Armes went to Clicks at midnight, one week after Melina=s
disappearance, to talk to customers and employees who might have seen Appellant
or Melina there. Mr. Armes learned that
Clicks was open until 2 a.m. Mr. Armes
also attempted to locate the red Corvette using the Department of Public Safety=s computer system, but never found the
red Corvette that was involved in the Clicks incident. The Garcias and Appellant provided leads to
Mr. Armes, which took him to different parts of the country and Mexico. His investigation remained active for over
two months, but he was never able to locate Melina.
Mr. Armes went to
Appellant=s house
on August 2, 1993, the same day he was retained. He recalled that there was a young boy,
fourteen or fifteen years=
old, at the house named Leo. There was
also a large dog, a Great Dane, inside the house.[1] Mr. Armes visited the house four times. The second visit was on the day following his
initial visit. Mr. Armes noticed that
the dog was no longer there. Appellant
told him that Leo had left the door open and the dog had run away. Appellant said that the dog was probably
looking for Melina because it was her dog.
Mr. Armes never went into the backyard of Appellant=s house.
In June 2000, the
police received a tip from someone in federal custody that led them to
investigate Appellant=s
house at 3107 Hamilton. On June 15,
2000, Officer Leticia Olivas of the El Paso Police Department=s crime scene unit was assigned the
duty of excavating the backyard at that address. The officers began digging at approximately
11 a.m., using small garden shovels and paint brushes. After a couple of hours, the officers decided
to bring in a small Bobcat to assist in the digging. However, the Bobcat was not very effective
due to the rocky, caliche-type soil under the topsoil. Around 3 p.m., they brought in a
backhoe. At 9:50 p.m, a human skull was
unearthed. The officers began digging in
the area using small hand trowels and paint brushes. The skull and knees were approximately twelve
inches below ground level and the pelvic area was approximately seventeen
inches below ground level. The feet were
approximately five inches below ground level.
The skeletal remains were located approximately twenty-two feet from the
back door of the house. White plastic
bags were recovered from the area around the skull and black plastic was found
throughout the grave site and underneath the skeletal remains. Officers found a thick elastic band that they
believed to be a waistband, but no other indications of clothing were
recovered.
Several pieces of
jewelry were located with the skeleton.
Mrs. Garcia identified the jewelry as items belonging to her daughter
Melina. One of the rings had her
daughter=s
initials on it. Mrs. Garcia also
testified that her daughter was five feet, four inches tall, Amore or less.@
Officer Olivas
collected four teeth and a small piece of bone from the medical examiner to
submit for DNA testing. She also
obtained a hairbrush that had belonged to Melina. A forensic biologist from the Department of
Public Safety conducted comparative DNA tests on the items. He determined that the DNA profile generated
from the teeth matched the DNA profile generated from the hair on the
hairbrush.
Because the body
consisted of dry bones, Dr. Juan Contin, the medical examiner, examined the
body with Dr. Harrell Gil-King, a forensic anthropologist. They determined that the skeleton was a
female of Hispanic, Mexican, or Latin descent, sixteen to eighteen years= old, and five feet one inch, to five
feet three and a half inches in height.
They estimated her time of death was five to ten years earlier. There was no evidence of injury, that is,
there was no evidence to explain the cause of death. Dr. Gil-King noted that there may have been
soft-tissue injuries, such as hematoma, bruising, and abrasions, but they did
not find any injuries to the bones themselves.
In his report, Dr.
Contin concluded that the manner of death was homicidal. Dr. Contin based his opinion on the
circumstances of the case, including the fact that the young woman was found
buried in the backyard. Dr. Contin testified
that when a healthy person is killed by another, rather than by accident,
natural causes, or suicide, death could occur in many different ways, including
stabbing, beating, strangulation, suffocation, poisoning, or asphyxiation, all
of which would involve the use of a deadly weapon. The foreman of the grand jury that indicted
Appellant testified that the grand jury was unable to determine the manner and
means of Melina=s
death. The grand jury was also unable to
determine the type of weapon used to kill her.
In Issues One and
Two, Appellant contends that the evidence was legally and factually
insufficient to sustain his conviction.
Specifically, Appellant asserts that the State failed to prove that
Melina was murdered or that he committed the murder. Further, Appellant asserts that the State=s proof of guilt was so weak that it
undermines confidence in the verdict.
Standards
of Review
In reviewing the
legal sufficiency of the evidence, we must view the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Hernandez v. State,
946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve any conflict of fact, weigh
any evidence, or evaluate the credibility of any witnesses, as this was the
function of the trier of fact. See
Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v.
State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is to determine whether if
both the explicit and implicit findings of the trier of fact are rational by
viewing all the evidence admitted at trial in the light most favorable to the
verdict. See Adelman, 828 S.W.2d
at 421-22. In so doing, any
inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843.
In reviewing the
factual sufficiency of the evidence, we must determine whether considering all
the evidence in a neutral light, the jury was rationally justified in finding
guilt beyond a reasonable doubt. Zuniga
v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Evidence can be
factually insufficient if the evidence supporting the verdict, considered by
itself, is too weak to support the finding of guilt beyond a reasonable doubt,
or contrary evidence is so strong that guilt cannot be proven beyond a
reasonable doubt. Zuniga, 144
S.W.3d at 484-85. Our evaluation should
not intrude upon the fact finder=s
role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 407
(Tex.Crim.App. 1997). We will not set
aside the judgment unless the evidence supporting the verdict is so weak as to
be clearly wrong and manifestly unjust. Zuniga,
144 S.W.3d at 481. A clearly wrong and
manifestly unjust verdict occurs where the jury=s
finding Ashocks
the conscience@ or Aclearly demonstrates bias.@ Id. An opinion addressing factual sufficiency
must include a discussion of the most important and relevant evidence that
supports the appellant=s
complaint on appeal. Sims v. State,
99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
Murder
A person commits
murder if he intentionally or knowingly causes the death of an individual. See Tex.Pen.Code
Ann. '
19.02(b)(1)(Vernon 2003). In this case,
Appellant was charged by indictment with the offense of murder, which alleged
on or about July 28, 1993, Appellant:
[D]id then and there intentionally and
knowingly cause the death of an individual, namely, MELINA LEDESMA by killing
the said MELINA LEDESMA in a manner unknown to the Grand Jury,
And it is further
presented that the said Defendant used and exhibited a deadly weapon,
to-wit: a weapon unknown to the Grand
Jury, during the commission of and immediate flight from said offense . . . .
In a
circumstantial evidence case, the cumulative force of all the surrounding
additional facts and incriminating circumstances may be sufficient to support
the jury=s
conclusion of guilt. See Barnes v.
State, 876 S.W.2d 316, 321 (Tex.Crim.App. 1994); Beardsley v. State,
738 S.W.2d 681, 685 (Tex.Crim.App. 1987).
While Appellant acknowledges that the State presented a circumstantial
evidence case, he contends that the record is devoid of proof that he committed
the murder of Melina. Specifically,
Appellant contends that the State failed to connect him to the crime of murder,
an element of the offense of murder, which the State must prove beyond a
reasonable doubt, even though it is no longer an element of the corpus delicti
of murder. Further, Appellant argues that
the State also failed to prove that Melina was murdered.
The corpus delicti
of murder is established if the evidence shows the death of a human being
caused by the criminal act of another. McDuff
v. State, 939 S.W.2d 607, 614 (Tex.Crim.App. 1997); Fisher v. State,
851 S.W.2d 298, 303 (Tex.Crim.App. 1993).
The corpus delicti may be established by circumstantial evidence. Scott v. State, 732 S.W.2d 354, 358
(Tex.Crim.App. 1987).
In this case, the
remains of the victim consisted of only dry bones. DNA evidence was presented to identify the
victim as Melina. There was also
evidence to show that the date of Melina=s
disappearance fell within the time of death of the body. The medical experts found no evidence of injury
to the bones, therefore they could not explain the cause of death.
Dr. Gil-King, however,
indicated that soft-tissue injuries could have occurred, which had not caused
injury to the bones. Dr. Contin could
not determine the cause of death, but based on the facts and circumstances of
the case, namely that a healthy young woman was found buried in her backyard,
he opined that Melina=s
death was homicidal, that is, she was killed by another. Dr. Contin testified that when a healthy
person is killed by another, death could occur in many different ways,
including stabbing, beating, strangulation, suffocation, poisoning, or
asphyxiation, all of which would involve the use of a deadly weapon. Based on the testimony of the medical
experts, the jury could have reasonably concluded that Melina was killed in a
manner that did not cause skeletal injuries, but nevertheless involved a deadly
weapon and resulted in her death.
The State
presented circumstantial evidence to establish Appellant=s
identity as the perpetrator. In
particular, the State presented the following surrounding facts and
incriminating circumstances to connect Appellant to the crime. On the evening of July 27, 1993, Appellant
and Melina went out drinking with friends.
After the night out, Mr. Barrett was dropped off at his home by
Appellant and Melina at approximately 12:35 a.m. on July 28. Based on Mr. Barrett=s
account, he was the last person to see Melina alive. Melina appeared in excellent physical
condition and looked in good health.
Around 8 a.m.,
Appellant showed up for work without Melina.
Even though his wife was missing, Appellant=s
demeanor appeared normal on the first day Melina was missing. Appellant helped the Garcias search for
Melina by distributing flyers at the mall, but never provided them with any
evidence, leads, or witnesses to corroborate his story about what had happened
at Clicks. Appellant also did not
provide the police with any evidence, leads, or names of witnesses to assist in
locating Melina. Mr. Armes, the private
investigator, was never able to confirm Appellant=s
story about Clicks. On the contrary, Mr.
Armes discovered that Clicks was open until 2 a.m., not midnight as Appellant
had claimed.
On June 15, 2000,
police officers found Melina=s
body buried in Appellant=s
backyard. At its deepest point, the
grave site was seventeen inches below ground level. Melina was buried about twenty-two feet from
the back door of the house. Except for
an elastic waistband, the police found no other indications of clothing on the
body. The medical examiner determined
that the victim=s time of
death was five to ten years earlier.
Social security records showed no activity on Melina=s social security number after
1993. This evidence placed the time of
Melina=s death
near the time of her disappearance.
Further, the jury could have reasonably inferred that Appellant had
access to his backyard, that others had limited access to his backyard, and
consequently, only Appellant could have killed Melina at the house and dug the
hidden shallow grave in the rocky ground.
The sudden
disappearance of Melina=s
dog, a Great Dane named Tiger, was other incriminating evidence in this
case. Mr. Barrett testified that Tiger
was a large dog and was normally kept in the backyard. Only on rare occasions had Mr. Barrett seen
the dog inside the house. However, on
August 2, 1993, Mr. Armes observed the dog inside the house. The next day, Mr. Armes noticed that the dog
was gone. Mr. Armes was told the dog ran
away. The jury could have reasonably
inferred that Appellant removed the dog from the backyard so that the grave
site would remain undisturbed and got rid of the dog because it was too big to
keep in the house.
Several witnesses
testified that according to Appellant, he and Melina went to Clicks, she ran
off with a man in a red Corvette, and he never saw her again. However, there were inconsistencies in every
account Appellant gave of this story.
Appellant told the Garcias that after drinking at the Post, he and
Melina returned home and then drove to Clicks because they wanted to play
pool. Clicks was closing when he and
Melina arrived. Appellant went inside to
use the restroom and when he returned he saw Melina getting into a red Corvette
with a man. He tried to follow them, but
the Corvette sped away. Appellant went
home and waited for Melina to come home.
Appellant told a similar story to Mr. Barrett a few days later, except
he mentioned that two cars were involved, one with a groups of friends and the
other was a red Corvette with a guy.
When Appellant was interviewed by Detective Tabullo on July 29, 1993,
however, he told the detective that he and Melina were inside playing pool at
Clicks before she went outside and left in the Corvette. Appellant described the vehicle as a red
Corvette with a white convertible top.
Appellant also provided a very detailed description of the driver. Appellant also told Detective Tabullo that he
followed the Corvette until it sped away and then he went home.
When Appellant
spoke to Mr. Armes on August 2, he told a different version of events. Mr. Armes testified that Appellant told him
that he and Melina had a heated argument and afterwards decided to go play pool
at Clicks. Their friend Billy was with
them, but asked to be dropped off. When
they arrived at Clicks at midnight, it was closing. Appellant went in to use the restroom and
when he returned, he saw Melina getting into a red Corvette convertible with
two men and a woman. Appellant said he
followed the car and obtained a partial license plate number. Appellant also told Mr. Armes that he drove
around until 2 or 3 a.m. looking for the Corvette at different clubs before
going home. According to Mr. Barrett, he
was with Melina and Appellant until 12:30 a.m., which was inconsistent with
what Appellant had told Mr. Armes. Mr.
Armes attempted to confirm Appellant=s
story, but in his investigation, Mr. Armes discovered that Clicks did not close
at midnight and he was never able to locate the red Corvette.
Viewing the
evidence in the light most favorable to the verdict, we find that from the
forceful circumstantial evidence presented, the jury reasonably and rationally
could have found the essential elements of the offense of murder beyond a
reasonable doubt. Further, after
considering all the evidence in a neutral light, we conclude that the evidence
was not too weak to support the guilty finding beyond a reasonable doubt. While Appellant offered a different version
of the events leading to Melina=s
disappearance, the jury chose to disbelieve this account. See Cain, 958 S.W.2d at
407. Accordingly, we conclude the
evidence was legally and factually sufficient to sustain Appellant=s conviction and overrule Issues One
and Two.
In Issue Three,
Appellant contends the trial court caused him to suffer an unfair trial by
commenting on the weight of the evidence.
Specifically, Appellant asserts that the trial court=s comment, APeople
just don=t kill
themselves and go bury themselves, okay?
I just don=t think
that=s a
normal thing that people do,@
violated due process by shifting the burden to the defense to disprove a
homicide.
During the State=s case-in-chief, Dr. Juan Contin, the
medical examiner, testified that although he could not determine the cause of
death, based on all the circumstances of the case, he concluded that the manner
of the victim=s death
was homicidal. On cross-examination,
Dr. Contin explained that Ahomicidal
means that the person is killed at the hands of somebody else,@ and that on the death certificate, the
manner of death had to be listed as natural, accident, suicide, homicidal,
undetermined, or pending investigation.
Defense counsel later asked Dr. Contin how he determined the death
was homicidal and the following exchange, in relevant part, occurred:
Defense: If we don=t
know how this person died, how do we make the jump in logic that it was a
homicide?
Dr.
Contin: It=s
purely circumstantially. How often do
you see a young woman buried in the backyard?
Defense: You don=t
see it very often, Doctor.
Dr.
Contin: No. To me, it=s circumstantially. It=s
homicide.
Defense: Of course, do you ever know what you=re going to find in your backyard? You see, I got a hole in mine last year. I dug it up and there was a little septic
tank.
Dr.
Contin: But this is the body of a
young woman.
Defense: Well, I understand and I don=t mean it to be funny. What I=m
saying is I understand that. You find
skeletal remains in somebody=s
backyard, that is very unusual?
Dr.
Contin: Yes.
Defense: But does that make it a homicide?
Dr.
Contin: Well, you see, I have the
decision to make based on the death certificate and that=s
my best conclusion.
Defense counsel then asked Dr.
Contin if it was just as likely that the victim=s
death was a suicide, when the circumstances, such as where the body was found,
were not considered. The State objected
on relevancy grounds and the trial court sustained the objection. The following exchange then occurred:
Defense: If we exclude the circumstances
surrounding the recovery. I=m asking you based upon what you
observed in your laboratory.
State: Your honor, I=m going to object again. Not only is it not relevant. He=s
asking him to speculate.
Defense: That=s
exactly what the DA asked him to do. I=m just asking to speculate on [sic] a
different way. I=m
sorry, Your Honor.
Judge, the whole
point here is surmise and speculation and I just believe I=m entitled to fully cross-examine him
on his speculation. That=s all.
Certainly, I can=t
be prevented from doing that.
The
Court: Let=s
do it and get it over with.
Defense: I=m
trying, Judge.
The
Court: People don=t kill themselves and go bury
themselves, okay? I just don=t
think that=s a
normal thing that people do.
[Emphasis added].
Immediately
following the court=s
comment, defense counsel approached the bench and objected to the statement as
a comment on the weight of the evidence and requested a mistrial. The trial court overruled the objection. After the recess, defense counsel asked Dr.
Contin if it was conceivable based on his examination of the skeletal remains
alone, that the body belonged to someone that died from a natural cause or
accidental overdose. Dr. Contin agreed
that theoretically it was conceivable.
Article 38.05 of
the Texas Code of Criminal Procedure provides:
In ruling upon the admissibility
of evidence, the judge shall not discuss or comment upon the weight of the same
or its bearing in the case, but shall simply decide whether or not it is
admissible; nor shall he, at any stage of the proceeding previous to the return
of the verdict, make any remark calculated to convey to the jury his opinion of
the case.
Tex.Code
Crim.Proc.Ann. art. 38.05 (Vernon 1979).
In Texas, trial
judges must refrain from making any remark calculated to convey to the jury his
opinion of the case. Brown v. State,
122 S.W.3d 794, 798 (Tex.Crim.App. 2003), cert. denied, 541 U.S. 938,
124 S.Ct. 1678, 158 L.Ed.2d 359 (2004).
As the Texas Court of Criminal Appeals explained in Brown, A>[j]urors
are prone to seize with alacrity upon any conduct or language of the trial
judge which they may interpret as shedding light upon his view of the weight of
the evidence, or the merits of the issues involved.=@
Id. A trial court
improperly comments on the weight of the evidence if it makes a statement that
implies approval of the State=s
argument, indicates disbelief in the defense=s
position, or diminishes the credibility of the defense=s
approach to the case. Clark v. State,
878 S.W.2d 224, 226 (Tex.App.--Dallas 1994, no pet.).
Here, the court=s comment occurred in the context of
ruling on the State=s
relevancy objection to Dr. Contin testifying as to the victim=s manner of death if he excluded the
surrounding circumstances. The trial
court did not sustain the objection, rather the court stated, A[l]et=s
do it and get it over with.@ In making this ruling, however, the trial
court then remarked, APeople
don=t kill themselves and go bury
themselves, okay? I just don=t think that=s
a normal thing that people do.@ Viewing the court=s
comment in light of the record, it appears that the court was merely making a
common-sense observation that people cannot kill themselves and bury
themselves. However, the court=s comment was improper in that it does
indicate to some extent the court=s
disbelief in the relevancy of the particular question posed to the witness by
the defense.
Appellant asserts
that by the court=s comment
it stated its belief that Melina=s
death was by homicide and thus, the court impermissibly shifted the burden to
defense to disprove a homicide. We
disagree. A comment or instruction that
states a mandatory presumption violates due process by shifting the burden of
proof to a criminal defendant on a critical fact or element of the
offense. See Brown, 122 S.W.3d at
799. While the trial court=s comment could reasonably be regarded
as expressing doubt as to the defensive theory that Melina killed herself and
buried herself, the trial court=s
comment did not go so far as to express an opinion as to whether Melina was in
fact murdered. Therefore, we cannot
agree that the court=s
comment created a mandatory presumption that Melina was murdered which then
Appellant had to rebut or that the court shifted the burden to Appellant to
prove that she was not murdered. While
the court=s comment
was erroneous, it does not rise to the level of constitutional error because
there was no improper shifting of the burden of proof in violation of due
process. See Watts v. State, 140
S.W.3d 860, 863 n.1 (Tex.App.--Houston [14th Dist.] 2004, pet. ref=d)(not every comment on the weight of
the evidence constitutes Aconstitutional
error@).
To constitute
reversible error in violation of Article 38.05, the comment in question must be
such that it is reasonably calculated to benefit the State or prejudice the
defendant=s
rights. See Davis v. State, 651
S.W.2d 787, 789 (Tex.Crim.App. 1983); Minor v. State, 469 S.W.2d 579,
580 (Tex.Crim.App. 1971). In evaluating
whether the court=s comment
on the evidence was reasonably calculated to benefit the State or prejudice the
defendant, the reviewing court first examines whether the trial court=s statement was material to the case; a
comment is material if the jury had the same issue before it. Clark, 878 S.W.2d at 226. Clearly, the manner of the victim=s death was a material issue for the
jury. However, the court=s comment was not reasonably calculated
to benefit the State or to prejudice the defendant=s
rights. By its comment, the court merely
expressed disbelief in the relevancy of excluding the particular circumstances
in a circumstantial evidence case. Read
in its proper context, the comment neither benefitted the State nor prejudiced
the defendant.
Moreover, under a
harm analysis under Rule 44.2(b) for non-constitutional error, we must
disregard the error if it does not affect Appellant=s
substantial rights. See Tex.R.App.P. 44.2(b). A criminal conviction should not be
overturned for non‑constitutional error if the appellate court, after
examining the record as a whole, has fair assurance that the error did not
influence the jury, or had but a slight effect.
Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998); King
v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)(AA
substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury=s
verdict.@).
Here, the error
was an isolated comment from the trial court during its ruling on the relevancy
of defense counsel=s
particular question to Dr. Contin, asking him to exclude the circumstances
surrounding the death. Appellant
objected to the court=s
comment on the evidence and requested a mistrial, rather than an instruction to
disregard. The trial court overruled the
objection. Appellant then proceeded to
question Dr. Contin as to his opinion on the manner of death without considering
the surrounding circumstances. Dr.
Contin agreed that it was conceivable that the victim=s
death was from a natural cause or an accidental overdose. During his closing argument, defense counsel
stressed to the jury that Dr. Contin believed that the victim could have died
from natural causes or an accidental drug overdose. In contrast, the State argued that Dr. Contin
ruled the death a homicide and had explained that a person does not end up
buried in someone=s
backyard if she dies of natural causes, accident, or disease. Neither party mentioned the trial court=s previous comment, but we observe that
the manner of the victim=s
death was a central issue in the case.
However, beyond Dr. Contin=s
testimony on the manner of death, there was other strong circumstantial
evidence presented that established Appellant=s
guilt. After reviewing the record as a
whole, we have fair assurance that the error did not influence the jury, or had
but a slight effect of the jury=s
verdict, therefore we hold it was harmless.
Issue Three is overruled.
We affirm the
trial court=s
judgment.
December
1, 2005
DAVID WELLINGTON
CHEW, Justice
Before Barajas, C.J., McClure, and Chew, JJ.
(Do Not Publish)
[1]
According to Mr. Barrett, Appellant had a Great Dane named Tiger, which was
normally kept in the backyard. Mr.
Barrett had visited Appellant=s
house ten to fifteen times and only on rare occasions had he seen the dog
inside the house.
| {
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649 F.2d 861
Somerville, Appeal of
79-2425
UNITED STATES COURT OF APPEALS Third Circuit
3/18/81
1
W.D.Pa.
AFFIRMED
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597 F.2d 1027
Bettye Keener STEGMAIER, etc., et al., Plaintiffs-Appellants,v.Jerry Pete TRAMMELL, etc., et al., Defendants-Appellees.
No. 77-1873.
United States Court of Appeals,Fifth Circuit.
July 2, 1979.
Leon Garmon, Gadsden, Ala., for plaintiffs-appellants.
Roger C. Suttle, James C. Stivender, Sp. Assts. for Atty. Gen., Gadsden, Ala., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Alabama.
Before GODBOLD, SIMPSON and RONEY, Circuit Judges.
SIMPSON, Circuit Judge:
1
Appellant Bettye Keener Stegmaier commenced this action on November 11, 1976, against appellee Jerry Pete Trammell, then Circuit Clerk elect for Cherokee County, Alabama. Stegmaier sought general injunctive and other relief for alleged violations of the First and Fourteenth Amendments and 42 U.S.C. §§ 1983, 1985, 1986, and 1988. She alleged that Trammell violated her rights to freedom of belief, speech and association by threatening to discharge her as Deputy Circuit Clerk because she failed to support him in the election for the office of Circuit Clerk. The district court, pursuant to Federal Rule of Civil Procedure 65(a)(2), ordered the trial of this action on the merits consolidated with the hearing scheduled on appellant's application for injunctive relief. In its Memorandum of Decision, dated January 13, 1977, the district court found appellant was entitled to none of the relief requested, holding that under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), Trammell's replacement of Stegmaier was an "authorized patronage dismissal".
2
We affirm, holding that a public employee occupying a position of confidence, loyalty, and trust by virtue of her status as the single deputy and assistant to an elected official may be discharged solely on the ground of political affiliations without infringing her constitutional rights.
I. STATEMENT OF THE CASE
3
On March 18, 1974, appellant was appointed Deputy Circuit Clerk for Cherokee County, Alabama, by Fred Green, then Circuit Clerk. Green was defeated by appellee Trammell for the Democratic Party nomination for the position of Circuit Clerk in a primary runoff election held on May 25, 1976. In the November 2, 1976, general election Trammell was elected Circuit Clerk. One of his opponents was Green, who had run again as an independent.
4
After his election Trammell informed appellant that she would be replaced as Deputy Circuit Clerk on January 18, 1977, the date on which Trammell was to begin serving his elective term.1 Thereafter, on November 11, 1976, appellant commenced this action seeking general injunctive and other relief for alleged violations of the First and Fourteenth Amendments and 42 U.S.C. §§ 1983, 1985, 1986, and 1988. She alleged that Trammell violated her rights to freedom of belief, speech and association by threatening to discharge her because she failed to support him for the office of Circuit Clerk.
5
In his answer Trammell admitted that he informed appellant she would be replaced, denied each and every other allegation contained in the complaint, and noted that appellant had declined other employment in the office of the Circuit Clerk which he had tendered. Trammell raised several defenses. First, he asserted that as a newly elected Circuit Clerk, whose duties and responsibilities included judgment and policymaking decisions as well as the collection and safekeeping of public funds, he had the right to discharge appellant and appoint someone of his own choice. Second, Trammell contended that he was under a duty as the newly elected Circuit Clerk to select a qualified, competent individual in whom he had great confidence where his predecessor, Green, had been indicted for embezzlement.2
6
By way of affidavit in support of his motion for summary judgment Trammell stated that he intended to appoint Dean Perron to the position of Deputy Circuit Clerk. Mrs. Perron was one of the original candidates in the Democratic primary for the office of Circuit Clerk. In Trammell's opinion Perron was "an experienced businesswoman, fully competent to act as Deputy Circuit Clerk," and a person in whom he had much trust and confidence.
7
Trammell, by his affidavit, again denied that he wanted to discharge appellant because she failed to support his candidacy for the office of Circuit Clerk, but he did "recognize" that it was Stegmaier's duty and obligation to remain loyal to her employer, Fred Green, and to support him for re-election. Trammell also asserted that the position of Deputy Circuit Clerk is a policymaking position, involving obligations of trust. Furthermore, he claimed that the Deputy Circuit Clerk, as the chief assistant to the Circuit Clerk, enjoys a confidential relationship with the Clerk. Finally, Trammell argued that since the Deputy Circuit Clerk has the responsibility of running the Clerk's office in the absence of the Clerk, the Deputy's duties included various policymaking decisions.3 For all these reasons Trammell maintained that he had the legal right to select a Deputy Circuit Clerk of his own choice and preference.
8
This cause came on for hearing on January 10, 1977, pursuant to the district court's order of December 29, 1976, by which the trial of the action on the merits was advanced and consolidated with the hearing for interlocutory injunctive relief. See Fed.R.Civ.P. 65(a)(2). According to the terms of the district court's December 29th order, and as reflected by the record, the cause was submitted to the court for final decision on the merits upon conclusion of oral argument in the hearing for injunctive relief. The record does not reflect that any testimony was taken at this hearing, it appearing that the district court decided the issues raised on the basis of the appellant's complaint and the defendant's answer and affidavit in support of his motion for summary judgment.
9
The district court found that appellant was entitled to none of the relief requested. The court held that under Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), Trammell's replacement of appellant was an "authorized patronage dismissal". This conclusion was attained through a two-step analysis. First, the district court found that the position of Circuit Clerk was a "policymaking position" as that term was envisioned in Elrod. Second, the position of Deputy Circuit Clerk was a "policymaking position" by virtue of statutory language and judicial interpretation vesting the deputy with duties and authorities concurrent with the Clerk. Hence, the district court concluded, since a "policymaking position" is specifically susceptible to "lawful patronage dismissals" under Elrod, Stegmaier was entitled to no relief.4
10
While appellant raises thirteen points of asserted error only one basic question emerges whether the district court erred in finding that appellant fell within the policymaker exception in Elrod v. Burns, supra, and, therefore, was subject to patronage dismissal without infringement of her constitutional rights. We necessarily begin by reviewing Elrod and its progeny.
II. Elrod v. Burns AND ITS PROGENY
A. Progenitor
11
In Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court of the United States held that patronage dismissals of public employees discharging employees on a partisan, political basis infringe first amendment interests. Respondents in Elrod, all Republicans, were employees5 of the Cook County, Illinois Sheriff's Office under a Republican sheriff. When a Democratic sheriff assumed office respondents were discharged or threatened with discharge Solely because they did not support, were not members of, or had failed to obtain sponsorship by one of the leaders of the Democratic party. Thereafter, respondents brought suit against the Sheriff of Cook County, the Mayor of Chicago, as well as the Democratic Organization and Democratic County Central Committee of Cook County. Their complaint alleged that they were discharged or threatened with discharge solely for the reasons that they were not affiliated with or sponsored by the Democratic party. They sought declaratory, injunctive, and other relief for alleged violations of the First and Fourteenth Amendments and 42 U.S.C. §§ 1983, 1985, 1986, and 1988.
12
On review the Supreme Court affirmed the Court of Appeals for the Seventh Circuit,6 which had reversed the district court's dismissal of respondents' complaint for failure to state a claim upon which relief could be granted. Although five justices joined in the result, there was no majority opinion for the Court: Mr. Justice Brennan announced the Court's judgment in his plurality opinion, while Mr. Justice Stewart concurred in the result but refrained from joining in the plurality's "wide-ranging opinion". 427 U.S. at 374, 96 S.Ct. at 2690.7
13
The plurality opinion held that while patronage dismissals infringe first amendment interests, they could survive constitutional challenge if they furthered some "vital government end by a means that is least restrictive of freedom of belief and association in achieving that end, and the benefit gained . . . outweigh(s) the loss of constitutionally protected rights". 427 U.S. at 363, 96 S.Ct. at 2685 (footnote omitted). Three government interests were offered by petitioners in Elrod in justification of patronage dismissals: the need to insure effective government and the efficiency of public employees, the need for political loyalty of employees, and the preservation of the democratic process. On the facts presented, the Elrod Court rejected each interest as inadequate to justify infringement of respondents' first amendment rights of belief and association. 427 U.S. at 364-73, 96 S.Ct. at 2685-89. With regard to the need for political loyalty, however, Mr. Justice Brennan's plurality opinion did establish that patronage dismissals were constitutionally justified where limited to "policymaking positions".
14
A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party.
15
No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical. Employee supervisors, for example, may have many responsibilities, but those responsibilities may have only limited and well-defined objectives. An employee with responsibilities that are not well defined or are of broad scope more likely functions in a policymaking position. In determining whether an employee occupies a policymaking position, consideration should also be given to whether the employee acts as an adviser or formulates plans for the implementation of broad goals. Thus the political loyalty "justification is a matter of proof, or at least argument, directed at particular kinds of jobs." Illinois State Employees Union v. Lewis, 473 F.2d at 574. Since, as we have noted, it is the government's burden to demonstrate an overriding interest in order to validate an encroachment on protected interests, the burden of establishing this justification as to any particular respondent will rest on the petitioners on remand, cases of doubt being resolved in favor of the particular respondent.
16
427 U.S. at 367-68, 96 S.Ct. at 2687 (emphasis in original).
17
Mr. Justice Stewart declined to join in the plurality's consideration of the constitutional validity of the patronage system Generally. Instead, he viewed the "single substantive question involved in (Elrod as being) whether a Nonpolicymaking, nonconfidential government employee can be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs". 427 U.S. at 374-75, 96 S.Ct. at 2690 (emphasis added, Stewart, J., concurring). The answer was that he cannot.
B. Progeny
18
Courts and commentators have read Mr. Justice Stewart's narrow position as the Court's holding in Elrod. See Ramey v. Harber, 589 F.2d 753, 757 & nn. 2, 3 (4th Cir. 1978), Aff'g in part and rev'g in part, 431 F.Supp. 657 (W.D.Va.1977), Cert. denied, --- U.S. ----, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979); Comment, Patronage And The First Amendment After Elrod v. Burns, 78 Colum.L.Rev. 468, 473 n. 55 (1978). See generally Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977) ("When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' "). Accordingly, most judicial interpretations of Elrod have found that a Policymaking, confidential employee can be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs. See, e. g. Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978); McCollum v. Stahl, 579 F.2d 869, 872 (4th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 1225, 59 L.Ed.2d 460 (1979); Alfaro de Quevedo v. de Jesus Schuck, 556 F.2d 591 (1st Cir. 1977); Norbeck v. Davenport Community School District, 545 F.2d 63, 67 (8th Cir. 1976), Cert. denied, 431 U.S. 917, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977); Besig v. Friend, 460 F.Supp. 134, 139 (N.D.Cal.1978); Finkel v. Branti, 457 F.Supp. 1284, 1289 (S.D.N.Y.1978), Aff'd, 598 F.2d 609 (2d Cir. 1979) Cert. granted, --- U.S. ----, 99 S.Ct. 3095, 61 L.Ed.2d --- (1979); Miller v. Board of Education, 450 F.Supp. 106, 109 (S.D.W.Va.1978); Tanner v. McCall, 441 F.Supp. 503, 512 (M.D.Fla.1977).
19
Therefore, if appellant Stegmaier is properly classified as a policymaking, confidential employee, the district court was correct in finding that she was entitled to no relief.
III. POLICYMAKERS
20
The district court found, as a matter of fact, that the position of Circuit Clerk was a policymaking position. Recognizing that the Deputy Circuit Clerk is vested with powers concurrent to the Circuit Clerk's, the district court then concluded that the office of Deputy Clerk was also a policymaking position.
21
Our review of this factual finding8 is limited by the clearly erroneous standard of Rule 52(a). Fed.R.Civ.P. 52(a). A finding is clearly erroneous when the reviewing court, although finding some evidence to support the finding, is left with the definite and firm conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Mercer v. C. A. Roberts Co., 570 F.2d 1232, 1236 n. 5 (5th Cir. 1978). Where, as in the case sub judice, the case was submitted to the district judge solely upon the basis of the pleadings and affidavits, the burden of showing findings clearly erroneous is somewhat less than where the factual findings were based in part upon the credibility of witnesses. Village Fair Shopping Center Co. v. Sam Broadhead Trust, 588 F.2d 431, 434 n. 2 (5th Cir. 1979); Volkswagen of America, Inc. v. Jahre, 472 F.2d 557, 559 (5th Cir. 1973). In the light of these general principles we conclude that the district court was clearly erroneous in finding as a matter of fact that the position of Circuit Clerk is a policymaking position within the meaning ascribed to that term in Elrod v. Burns : applicable Alabama constitutional and statutory provisions9 clearly reflect that policymaking decisions with regard to the operation of the Circuit Clerk's office in the Alabama unified judicial system are made by the Administrative Director of the Courts, not Circuit Clerks.
22
Under Elrod v. Burns the question of whether a particular public employee is a policymaker can be answered only by analyzing the nature of the employee's responsibilities. 427 U.S. at 367, 96 S.Ct. at 2687. "(T)itles alone do not provide the answer". Note, Will the Victor Be Denied the Spoils? Constitutional Challenges to Patronage Dismissals, 4 Hastings L.Q. 165, 182 (1977). Elrod also requires that in close cases doubt should be resolved in favor of the public employee subjected to patronage dismissal. 427 U.S. at 368, 96 S.Ct. at 2687. Unfortunately, Elrod does not provide any definition of "policymaking positions" other than intimating that policy makers have broad responsibilities with ill-defined objectives, and may act as advisers or formulate plans for the implementation of broad goals. 427 U.S. at 367-68, 96 S.Ct. at 2687. Policymakers also may be identified as public employees whose responsibilities require more than simple ministerial competence, whose decisions create or implement policy, and whose discretion in performing duties or in selecting duties to perform is not severely limited by statute, regulation, or policy determinations made by supervisors. See Johnson v. Bergland, 586 F.2d 993 (4th Cir. 1978); Newcomb v. Brennan, 558 F.2d 825 (7th Cir.), Cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1977). A policymaker also may be an individual who "controls or exercises a role in a decision making process as to the goals and general operating procedures of (an) office". Ramey v. Harber, 431 F.Supp. 657, 666 n. 15 (W.D.Va.1977), Aff'd in part & rev'd in part on other grounds, 589 F.2d 753 (4th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 2823, 61 L.Ed.2d 275, (1979). The statutory duties and authority of Circuit and Deputy Circuit Clerks under Alabama's unified judicial system do not fall within the scope of the term "policymaker" as that term has been defined above.
23
In 1973 Article VI of the Alabama Constitution was amended to provide for a "unified judicial system". Ala.Const. art. VI, § 6.01(a) (Amendment No. 328, ratified Dec. 27, 1973). Under this constitutional provision Circuit Clerks are elected by qualified voters in each county for six-year terms. Id. § 6.20(b). On October 9, 1975, the Alabama Legislature adopted a measure designed to implement the new judicial article of the Alabama Constitution. Act No. 1205, 1975 Ala.Acts (codified in scattered sections of Ala.Code tit. 12 (1975)). Under this act the administrative office of courts was created. Ala.Code tit. 12, § 12-5-1 (1975). The administrative office of the courts was given authority to "serve as an agency to apply for and receive grants or other assistance and to coordinate or conduct studies and projects in connection with the improvement of the administration of justice." Id. § 12-5-2(a).
24
Under Alabama's unified judicial system the state department charged with the duty of assisting the Chief Justice of the Supreme Court of Alabama in connection with his duties as chief administrative officer of the courts is the department of court management. Id. § 12-5-3(a). Among other duties, the department of court management is required to work with the clerks of all state courts to "collect, obtain, compile and digest information and statistics concerning the administration of justice in the state". Id. § 12-5-3(b)(1). "Unless the chief justice otherwise directs, the department of court management, Under the direction of the administrative director of courts, shall have the responsibility for trial court administration". Id. § 12-5-6 (emphasis added). See also id. § 12-5-8 (administrative director of courts ex officio head of department of court management and head of administrative office of courts).
25
Section 12-5-10 of the Alabama Code prescribes the duties and authorities of the administrative director of the courts. That section provides:
26
In addition to any other duties and responsibilities that may be assigned to the administrative director of courts by the chief justice, he shall have the following duties and authority with respect to all courts, subject to the direction of the chief justice:
27
(1) To require the filing of reports, the collection and compilation of statistical data and other information on the judicial and financial operation of the courts and on the operation of other offices directly related to and serving the courts;
28
(2) To determine the state of the dockets and evaluate the practices and procedures of the courts and make recommendations concerning the number of judges and other personnel required for the efficient administration of justice;
29
(3) To prescribe uniform administrative and business methods, systems, forms and records to be used in the offices of the clerks and registers of courts;
30
(4) To prepare and submit budget recommendations for state appropriations necessary for the maintenance and operation of the unified judicial system, with the exception of appellate courts, and to authorize expenditures from funds appropriated for these purposes as permitted or authorized by law;
31
(5) To investigate, make recommendations concerning and assist in the securing of adequate physical accommodations for the unified judicial system;
32
(6) To procure, distribute, exchange, transfer and assign such equipment, books, forms and supplies as are acquired with state funds or grant funds or otherwise for the unified judicial system;
33
(7) To make recommendations for the improvement of the operations of the unified judicial system;
34
(8) To prepare and submit an annual report on the work of the unified judicial system to the chief justice;
35
(9) To assist the chief justice in performing his duties relating to the transfer and assignment of justices and judges for temporary or specialized duty;
36
(10) To assist the judicial conference in its tasks;
37
(11) To promote, carry on and assist in programs designed to aid in the continuing education of justices, judges and other court personnel;
38
(12) To take necessary steps in the collection of unpaid court costs, fines and forfeitures;
39
(13) To serve as a liaison with the executive and legislative branches of the state government; and
40
(14) To perform such additional administrative duties as may be assigned by the chief justice.
41
Ala.Code tit. 12, § 12-5-10 (1975).
42
The administrative director of courts also is responsible for the direction of expenditure of funds for all courts, for all functions, directly or indirectly affecting the operation of any court. Id. § 12-5-13(b). He also is authorized to employ consultants for the purpose of conducting studies and projects pertaining to the administration of justice and improvement of courts in Alabama. Id. § 12-5-14. In connection with studies, projects and functions designed to improve or effect the administration of justice, section 12-5-18 is also relevant. That section provides:
43
In connection with studies, projects and functions designed to improve or effect the administration of justice, the operation of courts and continuing legal and judicial education, the administrative director of courts, the department of court management and the chief justice are authorized to Use the services of any member of the judiciary of any court and court-supportive personnel, including, but not limited to, court reporters, Clerks, registers, bailiffs, law clerks, court administrators, secretaries and employees in clerks' offices and registers' offices.
44
Id. § 12-5-18 (emphasis added).
45
In contrast to the broad duties and responsibilities of the administrative director of the courts, the authority and duties of the office of Circuit Clerk are Specifically delineated by statute. Although elected under the Alabama Constitution, Circuit Clerks are employed and paid by the State of Alabama. Id. § 12-17-80. The authority of the Circuit Clerk is found in section 12-17-93 which provides:
46
Clerks of the circuit court have authority:
47
(1) To administer oaths and take acknowledgments and affidavits in all cases in which the authority to administer such oath or take such affidavit is not confined to some other officer.
48
(2) To appoint deputies, with full power to transact all business of such clerks, such deputies first taking an oath to support the Constitution and laws of this state and faithfully to discharge the duties of deputy clerks of the court for which they act.
49
(3) To receive the amount of any judgment entered in the courts of which they are clerks, either before or after the issue of execution thereon.
50
(4) To exercise such other powers as are, or may be, conferred by law, including administrative rules of procedure promulgated by order of the supreme court of Alabama.
51
Id. § 12-17-93 (1975) (emphasis added).
52
The Circuit Clerk's duties are also specifically defined by statute:
53
(a) It is the duty of the clerks of the circuit court:
54
(1) To sign and issue all summons, subpoenas, writs, executions and other processes, under the authority of the court;
55
(2) To keep a consolidated docket sheet of civil and criminal cases, the names of the parties, the character of action or offense, the names of the attorneys and the sheriff's return, which must be entered in all civil and criminal cases standing for trial, in the order in which they are brought, and the bench notes, orders, rulings on motions and pleadings, other preliminary matters and final judgment which have been made in each case by the judge, which shall be the official minutes;
56
(3) To keep all papers, books, dockets and records belonging to their office with care and security, with the papers filed, arranged, numbered and labeled, so as to be of easy reference, and the books, dockets and records properly lettered; and to allow parties to inspect the records free of charge;
57
(4) To make out and deliver, on application and payment of the legal fees therefor, to any person applying for the same, a correct transcript, properly certified, of any paper or record in their offices; and
58
(5) To exercise such duties as are, or may be, conferred upon them by law, including administrative rules promulgated by order of the supreme court of Alabama.
59
(b) Any clerk of any circuit court who fails to perform any duty imposed on him, for the failure to perform which no other punishment is provided, shall, on conviction, be fined not exceeding $200.00.
60
Id. § 12-17-94 (1975). Other duties of Circuit Clerks include: certifying a copy of indictments against convicts sentenced to the penitentiary, Id. § 12-17-96; paying money in his possession at the expiration of his term of office to his successor upon demand, Id. § 12-17-97; preparing monthly reports on forms approved by the chief examiner of public accounts, showing the amount of fines, trial tax, district attorney fees and other fees that accrue to the benefit of the state, county or municipality that were collected the preceding month, Id. § 12-1-19; notifying the parties or one of their attorneys of record of the date of a court-ordered special session of court, Id. § 12-11-7; transferring a case to the docket of the appropriate court when filed in a court lacking jurisdiction, Id. § 12-11-9; accepting payment from parents legally obligated to support a child after a judicial determination that such support is required under state law, id. § 12-15-11; retaining charges moved for by a party which the trial judge refuses to give, Id. § 12-16-13; issuing jury venires, Id. § 12-16-74; filing and retaining books and lists prepared by grand jury foremen, Id. § 12-16-199; serving as ex officio clerk of the district court and having administrative responsibility for and supervision of records and clerical services of the district courts, id. § 12-17-160.
61
Circuit Clerks, therefore, have No authority to make policy decisions with regard to: compilation of data and statistics; prescription of administrative and business methods, systems, forms, and records used in the Clerk's office; preparation of budgetary recommendations; investigation and recommendation regarding physical facilities; and procurement, distribution, and assignment of equipment, books, forms, and supplies. This authority is expressly vested in the administrative director of the courts. Ala.Code tit. 12, § 12-5-10 (1975). The only role the Circuit Clerk plays in the broad scheme of policy determination is ministerial the clerk's "services" are available to the administrative director of the courts. Id. § 12-5-18.
62
The district court was clearly erroneous in finding that the Circuit Clerk occupies a policymaking position. Consequently, even though the Deputy Circuit Clerk has authority concurrent to the Circuit Clerk's, the deputy cannot be deemed a policymaker. This conclusion, however, does not require reversal of the judgment entered below: it is firmly established that an appellate court must affirm the lower court's judgment if the result is correct even though it is based upon an improper ground. SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943); Eltra Corp. v. Ringer,579 F.2d 294, 298 & n. 12 (4th Cir. 1978); Lum Wan v. Esperdy, 321 F.2d 123, 125 (2d Cir. 1963); Cf. Raven v. Panama Canal Co., 583 F.2d 169, 171 (5th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 1787, 60 L.Ed.2d 240 (1979) (successful party in the district court may sustain its judgment on any ground that finds support in the record).
63
We must decide, therefore, whether the district court's judgment must be affirmed because appellant Stegmaier occupied a position of confidence, loyalty, and trust. This requires consideration of two questions: (1) whether there is a "confidential employee" exception to Elrod v. Burns in addition to the "policymaking employee" exception; and (2) if there is such an exception, whether appellant Stegmaier falls within its scope even though the elected official with whom she would have to "enjoy" a relationship of confidence, loyalty, and trust is not a policymaking public official.
IV. CONFIDENTIAL EMPLOYEES
64
A question raised by the concurring opinion in Elrod is whether the language "nonpolicymaking, nonconfidential" established two classes of public employees subject to patronage dismissals. One commentary and analysis of Elrod has suggested that the concurring opinion created two exceptions to the Court's general proscription of patronage dismissals, permitting patronage dismissals of confidential employees as well as public employees in policymaking positions. The Supreme Court, 1975 Term, 90 Harv.L.Rev. 186, 193-94 (1976).
65
(T)he policymaking and confidential employee Exceptions . . . are justified by state interests sufficient to outweigh the accompanying burdens on first amendment rights. Elected officials must be able to assemble their own loyal staffs of advisors and administrators to assist them in formulating and implementing the policies necessary to carry out their electoral mandates. . . . Certainly elected officials should be permitted to dismiss their predecessor's personal secretaries and a few others who work closely with such officials in positions requiring a relationship of mutual trust. However, courts should construe the exception narrowly and guard against efforts to invoke it in support of across-the-board patronage dismissals.
66
Id. at 194 & n. 41 (emphasis added).
67
Another commentator has suggested that a confidential employee might be deemed a policymaker within the meaning of Elrod, confidentiality being one criterion "thrusting a governmental position to the policymaking end of the scale". Comment, Patronage Dismissals and Compelling State Interests: Can the Policymaking/Nonpolicymaking Distinction Withstand Strict Scrutiny, 1978 Southern Ill.Univ.L.J. 278, 285. On the other hand, this same commentator has also observed that a confidential employee, under the rationale of the Elrod plurality and the language of the concurrence, could be a second class of public employees subject to patronage dismissals:
68
Surely the rationale underlying the policymaking employee justification of patronage dismissals is equally applicable to one who, although not in a position to formulate or implement policies, occupies a position with such access to confidential information that he could covertly restrict the implementation of the policies of the newly elected official. On the other hand, it can be argued that an alternative available would be dismissal for cause when such covert actions occur. However, this alternative may not be as effective as dismissal of a confidential employee because of political incompatability (sic) with his elected superiors; to await discovery of covert action may prove devastating to policy implementation by the new administration. If a standard is to be established it would seem that one in a confidential position should be no less subject to patronage dismissal than one in a policymaking position: in either case dismissal may be deemed necessary to insure "that representative government not be undercut by tactics obstructing the implementation of policies of the new administration."
69
Id. at 285-86 (footnote omitted).
70
The existence of a confidential employee exception is further buttressed by the Elrod plurality opinion's repeated citation of a decision of the Court of Appeals for the Seventh Circuit written by then Circuit Judge Stevens, who did not participate in Elrod although a member of the Supreme Court. Illinois State Employees Union, Council 34 v. Lewis, 473 F.2d 561 (7th Cir. 1972), Cert. denied, 410 U.S. 928, 943, 93 S.Ct. 1364, 1370, 35 L.Ed.2d 590, 609 (1973). In Lewis Justice Stevens, then Circuit Judge Stevens, stated that the question before the court was whether a nonpolicymaking employee may be discharged for refusing to transfer his political allegiance from one political party to another. In reversing the district court's entry of summary judgment, erroneously predicated on rejection of the non-movant's version of the facts, then Circuit Judge Stevens said:
71
Plaintiffs properly do not challenge the public executive's right to use political philosophy or affiliation as one criterion in the selection of policy-making officials. Moreover, Considerations of personal loyalty, or other factors besides determination of policy, may justify the employment of political associates in certain positions. It is difficult to believe, however that any such justification would be valid for positions such as janitors, elevator operators or school teachers.
72
473 F.2d at 574 (emphasis added).
73
One post-Elrod decision has found that the Elrod concurrence requires that public employees be nonconfidential employees, as well as nonpolicymakers, before they can maintain an action for patronage dismissal. Finkel v. Branti, 457 F.Supp. 1284 (S.D.N.Y.1978), Aff'd, 598 F.2d 609, (2d Cir. 1979) Cert. granted, --- U.S. ----, 99 S.Ct. 3095, 61 L.Ed.2d --- (1979). In Finkel plaintiffs, assistant public defenders, had been appointed to their positions by a Republican Public Defender, also an appointee. Their employment was to be terminated when a Democratic Public Defender was appointed. Plaintiffs alleged that they were nonpolicymaking, nonconfidential employees who were satisfactorily performing their duties; therefore, attempting to replace them on political grounds violated the First and Fourteenth Amendments. The Finkel court enjoined the termination or attempted termination of the plaintiffs' employment upon the sole ground of their political beliefs, holding, Inter alia, that plaintiffs were neither policymakers nor confidential employees. In attaining this result, the Finkel court said;In Elrod and its progeny, the requirements of "nonpolicymaking" and "nonconfidentiality" are discussed in a manner that makes clear that the concepts are related to one another. More specifically, the discussion in the cases suggests that the concept of confidentiality is ancillary to the concept of policymaking. An employee is a "confidential employee" if he or she stands in a confidential relationship to the policymaking process, E. g., as an advisor to a policymaker, or if he or she has access to confidential documents or other materials that embody policymaking deliberations and determinations, E. g., as a private secretary to a policymaker.
74
457 F.Supp. at 1291 (emphasis added). Finding that plaintiffs were nonconfidential employees, the Finkel court emphasized that any confidential relationship between plaintiffs and the Public Defender was in the latter's capacity as a supervisor, Not in his role as decisionmaker about the orientation and operation of the public defender's office (I. e. a policymaking role).
75
While agreeing, in general, with the Finkel court and the commentaries discussed above that a confidential employee may constitutionally be discharged solely upon the basis of political affiliation when he stands in a confidential relationship to a policymaker or the policymaking process, we hold that appellant Stegmaier falls within the confidential employee exception even though the position of Deputy Circuit Clerk does not stand in a confidential relationship to a policymaker or a policymaking process.
76
Where a state, through its constitution, has decided to make certain public offices elective, it has also chosen to vest the electorate with the power to select one candidate over another for any reason. In the case of a Circuit Clerk under the Alabama unified judicial system, it is clear that a candidate for the office of Circuit Clerk can have no "policy platform" on which to seek office since policy decisions as to the operation of his office, the administration of justice, practice and procedure in the circuit courts, and the expenditure of funds are beyond his duty and authority. The public, however, does have the right under the Alabama Constitution to elect its Circuit Clerks and, presumably, attempts to elect capable and honest individuals when doing so. If there is any policy "presumably sanctioned by the electorate", Elrod v. Burns, supra, 427 U.S. at 367, 96 S.Ct. at 2687, in its election of one individual as Circuit Clerk over another, it is that of honesty and integrity. This presumption is especially strong where the nature of the Circuit Clerk's position involves the handling of private and public litigant's fees and judgments. See generally Ala.Code tit. 12, §§ 12-17-93, 12-17-94 (1975); note 3 Supra. When, by statute, a deputy clerk is empowered to conduct all business which the clerk is authorized to conduct, Ala.Code tit. 12, §§ 12-17-93(2) (1975), and when, by statute, the clerk is subject to civil liability and fines for failure to perform his statutory duties, Id. § 12-17-94(b), the Circuit Clerk must be afforded the opportunity to select his single deputy clerk; he must be able to select a deputy in whom he has total trust and confidence and from whom he can expect, without question, undivided loyalty. Of course these general remarks in no way reflect any judgment on appellant Stegmaier's competence, honesty or integrity; they serve simply to justify why Circuit Clerk Trammell was justified in selecting a Deputy Clerk of his own choice.
77
We conclude, therefore, that appellant Stegmaier falls within the confidential employee exception to Elrod v. Burns, supra, notwithstanding the fact that appellee Trammell, as Circuit Clerk, does not occupy a policymaking position.
78
The judgment entered by the district court below is therefore
79
AFFIRMED.
1
"By reason of the indictment of the incumbent (for embezzling), the office became vacant and (Trammell) received an interim appointment prior to the term for which he was elected. He agreed to keep (Stegmaier) until the commencement of such full term". District Court Memorandum of Decision, Record at 26 n. 1
2
See note 1 Supra
3
In his affidavit Trammell asserted that the Deputy Circuit Clerk has, among others, the following duties and responsibilities:
1
Exclusive and bookkeeping responsibility of the office as suggested and recommended by the State Examiners
2
The collection, handling and safekeeping of public funds
3
The collection, handling and safekeeping of funds of private litigants
4
The duty of issuing warrants for arrests of individuals when the Circuit Clerk is absent or unavailable
5
The duty of making a judgment decision as to whether a warrant of arrest should or should not be issued when representatives of the District Attorney's office and the Circuit Clerk are absent or unavailable to make such decision and to prepare and issue such warrant after a decision has been made that the warrant should be issued
6
The Deputy Circuit Clerk occupies a policy-making position in carrying on and discharging the duties of the office of the Circuit Clerk
7
The Deputy Circuit Clerk occupies a position of trust in the carrying on and discharging the duties of the office of Circuit Clerk
8
The Deputy Circuit Clerk occupies a position of confidential relationship with the Circuit Clerk in carrying on and discharging the duties of the office of Circuit Clerk
Record at 20-21.
4
Although noting that Elrod might be distinguishable, the district court did not rest its decision on that basis
A credible argument could be made in this action based solely on the verified complaint and uncontroverted affidavits that Mrs. Stegmaier will not be (assuming Mr. Trammell carries through on his promised action) the victim of a patronage dismissal and thus Elrod v. Burns, Supra, would be distinguishable on its facts. To this end the court would point out first, the plaintiff and the defendant are members of the same political party; second, the defendant offered the plaintiff another position in the Circuit Clerk's office; and finally, that the defendant attempted, albeit unsuccessfully, to secure additional funds for the Circuit Clerk's office from the Cherokee County Commissioners so that the plaintiff, if she accepted the proffered position, would suffer no loss of income. However, The court does not find it necessary to base its conclusion that plaintiff in this action is not entitled to any relief on the theory that the present action is distinguishable from Elrod v. Burns, supra. Even if the court places this action squarely within the ambit of Elrod that is, assumes that the defendant's replacement of the plaintiff as the Deputy Clerk would in fact constitute a patronage dismissal the criteria articulated in the Elrod opinion when viewed in conjunction with the relevant statutory authority fully satisfy the court that Mr. Trammell's replacing Mrs. Stegmaier as Deputy Clerk would be an authorized patronage dismissal.
Record at 28 (emphasis added).
Bearing in mind that the district court's attempt to distinguish Elrod must be considered dicta, we note that the factual basis for distinguishing Elrod from the instant case may be a distinction without a difference. The fact that the public employee being discharged and the individual threatening discharge are members of the same political party is not dispositive if the consequence of the attempted patronage dismissal is politically coercive. See Elrod v. Burns, 427 U.S. 347, 355, 96 S.Ct. 2673, 2680-81, 49 L.Ed.2d 547 (1976) ("The cost of the practice of patronage is the restraint it places on freedoms of belief and association."). Furthermore, the fact that Stegmaier was offered other employment in the Clerk's office at a lower pay scale would not ameliorate any violation of her constitutional rights. Cf. Johnson v. Bergland, 586 F.2d 993 (4th Cir. 1978) (sufficient irreparable injury to warrant issuance of preliminary injunction where nonpolicymaker alleged that he was removed from his position for partisan political purposes, even though he was assigned to a new position at the same salary but with lesser responsibilities and prestige).
5
All respondents were non-civil service employees, not covered by any statute or regulation protecting them from arbitrary discharge. Their respective duties and responsibilities as employees of the sheriff's office varied: Burns was Chief Deputy of the Process Division and supervised all departments of the sheriff's office working on one floor of a building housing the sheriff's office; Vargas was a bailiff and security guard at a county court; Buckley was a process server; and Denard was reported merely to be an employee in the sheriff's office. 427 U.S. at 350-51, 96 S.Ct. at 2678
6
509 F.2d 1133 (7th Cir. 1975)
7
Justices White and Marshall joined Justice Brennan in the plurality opinion; Justice Blackmun joined Justice Stewart in the concurring opinion. Mr. Justice Stevens did not participate; however, his views on the issues raised in the case at bar may be discerned from a pre-Elrod decision in which he wrote the panel's opinion. See Illinois State Employees Union, Council 34 v. Lewis, 473 F.2d 561 (7th Cir. 1972), Cert. denied, 410 U.S. 928, 943, 93 S.Ct. 1364, 1370, 35 L.Ed.2d 590, 609 (1973). See also Part IV Infra
8
In Elrod the Supreme Court plurality said that "the political loyalty 'justification is a matter of proof, or at least argument, directed at particular kinds of jobs.' " 427 U.S. at 368, 96 S.Ct. at 2687. Courts have uniformly interpreted this passage to mean that the question of whether an employee is a policymaker or falls within the policymaker, confidential employee exception to Elrod is a question of fact. See Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978); McCollum v. Stahl, 579 F.2d 869, 873 (4th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 1225, 59 L.Ed.2d 460 (1979); Rosenthal v. Rizzo, 555 F.2d 390, 393 & n. 3, 394 (3d Cir.), Cert. denied, 434 U.S. 892, 98 S.Ct. 268, 54 L.Ed.2d 178 (1977); Ramey v. Harber, 431 F.Supp. 657, 665 (W.D.Va.1977), Aff'd in part and rev'd in part on other grounds, 589 F.2d 753 (4th Cir. 1978), Cert. denied, --- U.S. ----, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979)
9
The district court's findings were based upon Ala.Code tit. 13, §§ 197, 198 (1958 & Supp.1973) (Now codified at Ala.Code tit. 12, §§ 12-17-93, 12-17-94 (1975)). Appellant moved for a new trial on the grounds, Inter alia, that neither the position of Circuit Clerk nor Deputy Circuit Clerk was a policymaking position under sections 197 and 198 in light of the 1973 amendment to the Alabama Constitution. This motion was denied on February 15, 1977, subsequent to the January 16, 1977 effective date for the new provisions of Alabama Code Title 12 Courts, which implemented the new Judicial Article of the Alabama Constitution. Ala.Const. art. VI (Amendment No. 328, ratified Dec. 27, 1973). Various sections of Title 12 define the duties of the Circuit and Deputy Circuit Clerk as they exist during appellee Trammell's elective term. We look, as the district court presumably did in denying appellant's motion for a new trial, to these constitutional and statutory materials in determining whether a Circuit Clerk is a policymaking position within the Alabama unified judicial system
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Case: 11-1379 Document: 21 Filed: 02/17/2012
FILED
Page: 1 of 21
FEB 17 2012
1 SUSAN M SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-11-1379-LaPaMk
)
6 HAVY NGUYEN, ) Bk. No. 10-25953-SC
)
7 Debtor. ) Adv. No. 10-1533-SC
______________________________)
8 )
GENESIS V J, INC., )
9 )
Appellant, )
10 )
v. ) MEMORANDUM*
11 )
HAVY NGUYEN, )
12 )
Appellee. )
13 ______________________________)
14 Argued and Submitted on January 20, 2012,
at Pasadena, California
15
Filed - February 17, 2011
16
Appeal from the United States Bankruptcy Court
17 for the Central District of California
18 Honorable Scott Clarkson, Bankruptcy Judge, Presiding
19
Appearances: Edward Hays of Marshack Hays LLP argued on behalf
20 of Appellant Genesis V J, Inc.; Allan Dean Epstein
argued on behalf of Appellee Havy Nguyen.
21
22 Before: LAFFERTY**, PAPPAS and MARKELL, Bankruptcy Judges.
23
24
25 *
This disposition is not appropriate for publication.
Although it may be cited for whatever persuasive value it may
26 have (see Fed. R. App. P. 32.1), it has no precedential value.
See 9th Cir. BAP Rule 8013-1.
27
**
Hon. William J. Lafferty III, Bankruptcy Judge for the
28 Northern District of California, sitting by designation.
Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 2 of 21
1 Appellant Genesis V J, Inc. (“Genesis”), having obtained a
2 judgment by default against the appellee Havy Nguyen (the
3 “Debtor”) for breach of contract, and against the Debtor’s
4 spouse, Bill Ha (“Mr. Ha”), for fraud in the inducement, filed an
5 adversary proceeding seeking to deny the Debtor’s discharge under
6 sections 727(a)(2)1 and 727(a)(4) and to declare the state court
7 judgment nondischargeable under sections 523(a)(2), 523(a)(4),
8 and 523(a)(6). Following a trial, the bankruptcy court found
9 against Genesis and determined that the claim based on the state
10 court judgment was dischargeable as to the Debtor.2 Genesis
11 thereafter filed a timely appeal. We affirm.
12 I. FACTS
13 Genesis V J, Inc. purchased a furniture store known as Home
14 Design Furniture Gallery (“Home Design”)3 from the Debtor. The
15 Debtor’s spouse, Mr. Ha, operated and controlled Home Design, and
16 negotiated the sale in all respects on behalf of the Debtor.
17 Until 2006, the Debtor and Mr. Ha jointly owned Home Design
18 through a corporation, VYNA, Inc. In 2006, the corporation was
19 dissolved and all of its assets were transferred to the Debtor as
20
21
1
Unless specified otherwise, all chapter and section
22 references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
all "Rule" references are to the Federal Rules of Bankruptcy
23 Procedure, Rules 1001-9037. All "Civil Rule" references are to
the Federal Rules of Civil Procedure.
24
2
The section 727 claims were dismissed upon oral motion of
25 Genesis prior to the conclusion of trial.
26 3
Prior to the sale, Home Design was operated under the name
Showcase Furniture Gallery (“Showcase”). The record is unclear
27 as to when the name was changed from Showcase to Home Design.
For ease of reference, we will refer to the furniture store as
28 Home Design, irrespective of its name at the relevant time.
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 3 of 21
1 sole proprietor. Despite this change in ownership, Mr. Ha
2 continued to operate and maintain complete control over Home
3 Design. Other than being the legal owner, the Debtor had at all
4 times no meaningful involvement in the operation of Home Design.
5 In early 2007, Mr. Ha decided to list Home Design for sale
6 with a business broker. The advertisement indicated that the
7 business earned annual net profits of $630,000. In response to
8 the ad, Manorama Gupta (“Ms. Gupta”), Genesis’ president,
9 contacted Mr. Ha to inquire about purchasing Home Design. During
10 the course of negotiations, Mr. Ha represented himself as a co-
11 owner (even though Home Design was solely in the Debtor’s name)
12 and made various representations regarding Home Design, including
13 representations as to its profitability and its assets.
14 In May 2007, in reliance on Mr. Ha’s representations,
15 Genesis agreed to purchase all of Home Design’s assets, including
16 the showroom lease, all of the inventory, business goodwill,
17 relationships with wholesalers, fixtures, and two trucks. Mr. Ha
18 and Genesis prepared an Asset Purchase Agreement (the “Purchase
19 Agreement”), which provided for payment by Genesis of $500,000 —
20 $350,000 up front (split into a $10,000 initial deposit and a
21 $340,000 cashier’s check upon closing) and an additional
22 $150,0000 over twenty-four months — in exchange for the assets of
23 Home Design.
24 Because the Debtor was the legal owner of Home Design, the
25 Purchase Agreement required the Debtor’s signature. On or about
26 May 21, 2007, Ms. Gupta and Mr. Ha met with the Debtor at her
27 place of employment, and presented her with the Purchase
28 Agreement. Prior to this meeting, the Debtor had never met or
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 4 of 21
1 spoken to Ms. Gupta and had never seen or reviewed the Purchase
2 Agreement. Nonetheless, the Debtor, at Mr. Ha’s request,
3 executed the Purchase Agreement without reviewing its terms. In
4 return, Ms. Gupta provided Mr. Ha with a check, payable to the
5 Debtor, for $10,000 (the initial deposit). Genesis later paid
6 the remaining $340,000 via cashiers check, and executed a
7 promissory note in favor of the Debtor in the amount of $150,000.
8 Shortly after the sale was closed, Genesis discovered that
9 Mr. Ha’s representations regarding the profitability of Home
10 Design and its assets were fraudulent. Genesis discovered that
11 Mr. Ha had falsified tax returns to inflate the profitability of
12 the business and also learned that Home Design did not own much
13 of the inventory that the Purchase Agreement purported to
14 transfer. Moreover, Mr. Ha never delivered the building lease or
15 the two trucks, as required by the Purchase Agreement. Genesis
16 eventually was forced to dispose of the assets it did receive for
17 a near total loss.
18 On December 14, 2007, Genesis filed a lawsuit against the
19 Debtor and Mr. Ha in the Superior Court of California, County of
20 Orange, alleging breach of contract, fraud, negligent
21 misrepresentation, unfair business practices, intentional
22 interference with prospective economic relations, negligent
23 interference with prospective economic relations, and fraud in
24 the inducement. On June 15, 2009, the state court conducted a
25 trial at which neither defendant appeared. In light of the non-
26 appearance, the trial took the form of a default prove-up
27 hearing.
28 After hearing testimony and admitting documentary evidence,
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 5 of 21
1 the state court entered judgment against the Debtor for breach of
2 contract, but stated that there was insufficient evidence to find
3 the Debtor liable for fraud.4 In addition, the state court found
4 Mr. Ha liable for fraud in the inducement based on the theory
5 that he acted as an “agent” of the Debtor in negotiating the sale
6 of Home Design. The Court ultimately awarded damages in the
7 amount of $423,067.60, for which the Defendants are jointly and
8 severally liable. The Court also awarded punitive damages in the
9 amount of $150,000 against Mr. Ha. In light of the foregoing
10 disposition, and with acquiescence of Genesis’ counsel, the state
11 court declared the remaining causes of action moot. On July 6,
12 2009, the state court entered a judgment in the amount of
13 $573,067.60 against both Defendants.5
14 On May 25, 2010, the Debtor filed a voluntary petition under
15 chapter 7 of the Bankruptcy Code. On September 7, 2010,
16 Plaintiff filed a timely complaint seeking to deny the Debtor’s
17 discharge under sections 727(a)(2) and 727(a)(4) and to declare
18 the state court judgment nondischargeable under sections
19
20 4
Despite this statement, the record, when considered as a
whole, is ambiguous as to whether the state court judge intended
21 to make a final determination on the issue of the Debtor’s fraud.
Indeed, the bankruptcy court determined that the state court had
22 not made such a determination.
23 5
Although the transcript of the judge’s remarks at trial
indicates that the state court did not intend to impose punitive
24 damages against the Debtor, the form of judgment entered by the
state court makes the Debtor jointly liable for the punitive
25 damages. Given the fact that the state court did not find the
Debtor liable on a tort for which punitive damages could be
26 awarded, the Court assumes this was an oversight in the entry of
the judgment. See Walker v. Signal Cos., Inc., 149 Cal. Rptr.
27 119, 126 (Cal. Ct. App. 1978)(“Punitive damages are not
recoverable in an action for breach of contract no matter how
28 willful, malicious, or fraudulent the breach”).
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 6 of 21
1 523(a)(2), 523(a)(4), and 523(a)(6).
2 Prior to trial in the bankruptcy court, the Debtor filed a
3 motion to preclude litigation of Genesis’ section 523(a)(2),
4 (a)(4), and (a)(6) claims based on the Debtor’s assertions
5 regarding the collateral estoppel effect of the state court
6 judgment. The bankruptcy court treated the Debtor’s motion as a
7 motion in limine and heard oral argument prior to trial. The
8 Debtor argued that the state court found her liable for breach of
9 contract, and only breach of contract, and found that there was
10 insufficient evidence to impose liability on the fraud cause of
11 action. As a result, the Debtor asserted that Genesis should be
12 precluded from relitigating the issue of the Debtor’s alleged
13 fraud or other willful and malicious acts in the bankruptcy
14 court.
15 Genesis opposed the motion in limine and, far from
16 contending as it has on this appeal that collateral estoppel
17 applied to the agency issue, asserted that the state court did
18 not make any findings regarding fraud or agency and that the
19 bankruptcy court needed to make a determination as to those
20 issues.
21 After considering the argument of the parties, both written
22 and oral, and reviewing the state court trial record, the
23 bankruptcy court determined that Genesis was not precluded from
24 litigating the issue of fraud because it was not “actually
25 litigated” as to the Debtor in the state court action. The
26 bankruptcy court found that, even though Genesis put on some
27 evidence regarding the Debtor’s alleged fraud, the state court
28 stopped short of making a final determination as to that issue.
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 7 of 21
1 Furthermore, based on Genesis’ assertion that the bankruptcy
2 court was required to determine the agency issue, the bankruptcy
3 court did not even consider applying collateral estoppel to the
4 state court’s “finding” that there was an agency relationship
5 between the Debtor and Mr. Ha but, instead, took evidence on the
6 matter.
7 Immediately after ruling on the motion, the bankruptcy court
8 conducted a trial on the action. Prior to the conclusion of
9 trial, but after presenting evidence with respect to the
10 section 727 claims for relief, Genesis moved to dismiss its
11 section 727 claims for relief. The trial continued on the
12 section 523 claims for relief and, at the trial’s conclusion, the
13 bankruptcy court ruled in favor of the Debtor on the remaining
14 claims for relief.
15 Pertinent to this appeal, the bankruptcy court determined
16 that the Debtor was not liable for any direct fraud with respect
17 to the subject transaction and that there was insufficient
18 evidence to impute any fraud to the Debtor based on an agency
19 relationship. More specifically, the bankruptcy court found that
20 the evidence simply did not show that the Debtor had anything to
21 do with the business other than being the nominal owner and
22 signing the Purchase Agreement at Mr. Ha’s direction.
23 The bankruptcy court entered judgment on June 30, 2011,
24 declaring that the state court judgment was dischargeable as to
25 the Debtor. Genesis filed a timely notice of appeal on July 14,
26 2011.
27 ///
28 ///
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 8 of 21
1 II. ISSUES
2 1. Did the bankruptcy court err in not applying issue
3 preclusion to the state court’s “finding” that Mr. Ha was the
4 agent of the Debtor?
5 2. Did the bankruptcy court err in finding that Mr. Ha’s
6 fraud should not be imputed to the Debtor based on an agency
7 relationship and that the debt is therefore dischargeable?
8 III. JURISDICTION
9 The bankruptcy court had jurisdiction under 28 U.S.C.
10 § 157(b)(2)(I) and § 1334. We have jurisdiction under 28 U.S.C.
11 § 158.
12 IV. STANDARDS OF REVIEW
13 We review the bankruptcy court’s determination regarding the
14 availability of issue preclusion de novo as a mixed question of
15 law and fact. Cogliano v. Anderson (In re Cogliano), 355 B.R.
16 792, 800 (9th Cir. BAP 2006). Once we determine that issue
17 preclusion is available, the bankruptcy court’s decision
18 regarding whether or not to apply the doctrine is reviewed for
19 abuse of discretion. See Robi v. Five Platters, Inc., 838 F.2d
20 318, 321 (9th Cir. 1988)(“As to issue preclusion, once we
21 determine that [it] is available, the actual decision to apply it
22 is left to the district court’s discretion”); Lopez v. Emergency
23 Serv. Restoration, Inc. (In re Lopez), 367 B.R. 99, 103 (9th Cir.
24 BAP 2006); George v. City of Morro Bay (In re George), 318 B.R.
25 729, 733 (9th Cir. BAP 2004).
26 In evaluating whether the bankruptcy court abused its
27 discretion, we must first determine de novo whether the
28 bankruptcy court identified the correct legal standard. See
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 9 of 21
1 People’s Capital & Leasing Corp. v. Big3D, Inc. (In re Big3D,
2 Inc.), 438 B.R. 214, 219-220 (9th Cir. BAP 2010)(en banc)(citing
3 United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)).
4 If the bankruptcy court identified the correct legal
rule, this court then determines whether its application
5 of the correct legal standard to the facts was
(1) illogical, (2)implausible, or (3) without support in
6 inferences that may be drawn from the facts in the
record. Only if the bankruptcy court did not identify
7 the correct legal rule, or if its application of the
correct legal standard to the facts was illogical,
8 implausible, or without support in inferences that may be
drawn from facts in the record, is it appropriate to
9 conclude that the bankruptcy court abused its discretion.
10 Id. (citation omitted)(internal quotations marks omitted).
11 With respect to the bankruptcy court’s determination
12 regarding the agency issue, we review the bankruptcy court’s
13 findings of fact for clear error. Beaupied v. Chang (In re
14 Chang), 163 F.3d 1138, 1140 (9th Cir. 1998).
15 V. DISCUSSION
16 A. Genesis Waived Its Issue Preclusion Argument Regarding Agency
17 Genesis argues that the bankruptcy court erred by not
18 applying issue preclusion6 to the state court’s determination
19 that Mr. Ha acted as the Debtor’s agent in connection with the
20 sale of Home Design. However, Genesis waived this argument by
21 not presenting it to the bankruptcy court.
22 Generally, appellate courts do not consider arguments “that
23
6
24 Although the parties refer to the collateral estoppel
effect of the state court’s rulings, the Supreme Court now
25 generally uses the term “issue preclusion” instead of “collateral
estoppel.” Taylor v. Sturgell, 553 U.S. 880, 892 n.5 (2008)
26 (“issue preclusion encompasses the doctrines once known as
‘collateral estoppel’ and ‘direct estoppel’”), citing Migra v.
27 Warren City School Dist. Bd. of Educ., 465 U.S. 75, 77 n.1
(1984); see also Paine v. Griffin (In re Paine), 283 B.R. 33, 38
28 (9th Cir. BAP 2002).
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 10 of 21
1 are not ‘properly raise[d]’ in the trial courts.” O’Rourke v.
2 Seaboard Sur. Co. (In re Fegert, Inc.), 887 F.2d 955, 957 (9th
3 Cir. 1989); see also In re Cybernetic Serv., Inc., 252 F.3d 1039,
4 1045 n.3 (9th Cir. 2001)(stating that appellate court will not
5 explore ramifications of argument because it was not raised in
6 the bankruptcy court and, accordingly, was waived); Scovis v.
7 Henrichsen (In re Scovis), 249 F.3d 975, 984 (9th Cir.
8 2001)(stating that court will not consider issue raised for first
9 time on appeal absent exceptional circumstances); Concrete Equip.
10 Co., Inc. v. Fox (In re Vigil Bros. Constr., Inc.), 193 B.R. 513,
11 520 (9th Cir. BAP 1996). An argument is “properly raised” if it
12 was raised sufficiently for the trial court to make a ruling.
13 In re Fegert, Inc., 887 F.2d at 957. Despite the general rule,
14 “[a] reviewing court may consider an issue raised for the first
15 time on appeal if (1) there are exceptional circumstances why the
16 issue was not raised in the trial court, (2) the new issue arises
17 while the appeal is pending because of a change in the law, or
18 (3) the issue presented is purely one of law and the opposing
19 party will suffer no prejudice as a result of the failure to
20 raise the issue in the trial court.” Franchise Tax Bd. v.
21 Roberts (In re Roberts), 175 B.R. 339, 345 (9th Cir. BAP
22 1994)(internal quotations omitted)(citing United States v.
23 Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990)).
24 There is nothing in the record showing that Genesis made the
25 argument that the bankruptcy court was precluded from making a
26 determination regarding the existence of an agency relationship
27 ///
28 ///
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 11 of 21
1 between the Debtor and Mr. Ha.7 In its closing at trial, Genesis
2 did argue that the state court found Mr. Ha liable for fraud in
3 the inducement based on the theory that he acted as an agent for
4 the Debtor. However, Genesis never argued to the bankruptcy
5 court that the state court’s use of agency principles to impose
6 liability on Mr. Ha precluded the bankruptcy court from
7 determining the issue of whether an agency relationship existed.
8 Because Genesis never raised the argument, the bankruptcy court
9 conducted a trial in which it was required to determine whether
10 an agency relationship existed between the Debtor and Mr. Ha.
11 Only after receiving an adverse ruling from the bankruptcy court
12 does Genesis now seek to apply preclusion principles to the
13 determination of the agency issue.
14 Furthermore, it does not appear that any of the exceptions
15 to the general rule apply. The first two exceptions are
16 unquestionably not met: there are no exceptional circumstances
17 and the issue did not arise from a change in the law while the
18 appeal was pending. The third exception (i.e., the issue
19 involves a pure legal question and the opposing party will not be
20
21 7
In fact, during the hearing before the bankruptcy court,
Genesis argued that the state court had made no determination
22 with respect to fraud by the Debtor, including whether fraud
should be imputed to her via Mr. Ha's alleged agency, and that
23 the issue therefore needed to be tried in the adversary
proceeding. See Transcript of Bankruptcy Court Trial, pg. 16,
24 lns. 20-25 (stating “[a]gency was not litigated in state court”).
To the extent such an assertion might also support a finding that
25 Genesis should be judicially estopped from asserting that the
bankruptcy court erred by not applying issue preclusion with
26 respect to this issue, the panel notes that the Debtor has not
raised that argument on appeal, and that in light of the clear
27 waiver of the preclusion argument in the bankruptcy court, it is,
in any event, unnecessary for the panel to resolve here an issue
28 concerning judicial estoppel.
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1 prejudiced) is likewise inapplicable. First, the availability of
2 issue preclusion involves mixed questions of law and fact. See
3 In re Cogliano, 355 B.R. at 800. Indeed, in this case, factual
4 questions predominate with respect to the issue of Ha’s agency
5 due to the murkiness of the state court trial transcript. As
6 discussed later, it is difficult to determine exactly which
7 issues of fact the state court decided and which issues it
8 declined to decide. Ultimately, the record is ambiguous at best
9 as to whether the state court made a finding regarding the agency
10 issue.
11 The panel also concludes that the Debtor is prejudiced by
12 Genesis’ failure to raise issue preclusion in the bankruptcy
13 court in the first instance. By failing to raise the issue
14 before the bankruptcy court, Genesis deprived the Debtor of the
15 opportunity to develop a record and to make legal as well as
16 factual arguments against the application of issue preclusion.8
17 “[I]f [the debtor] might have tried [her] case differently either
18 by developing new facts in response to or advancing distinct
19 legal arguments against the issue, it should not be permitted to
20 be raised for the first time on appeal.” United States v.
21 Patrin, 575 F.2d 708, 712 (9th Cir. 1978). Genesis has waived
22 its argument that the bankruptcy court was precluded from making
23 a determination regarding whether an agency relationship existed
24 between the Debtor and Mr. Ha.
25 ///
26
8
27 Additionally, without a record, we are left to guess at
what the bankruptcy would have decided had it been presented with
28 the issue.
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 13 of 21
1 B. The Bankruptcy Court Would Not Have Abused Its Discretion in
2 Declining to Apply Issue Preclusion
3 Even if Genesis did not waive its issue preclusion argument,
4 the bankruptcy court would not have abused its discretion by
5 declining to apply issue preclusion.
6 Issue preclusion applies in nondischargeability proceedings.
7 Grogan v. Garner, 498 U.S. 279, 284-85 (1991). Issue preclusion
8 “bars ‘successive litigation of an issue of fact or law that was
9 actually litigated and resolved in a valid court determination
10 essential to that prior judgment,’ even if the issue recurs in
11 the context of a different claim.” Taylor, 553 U.S. at 892
12 (quoting New Hampshire v. Maine, 532 U.S. 742, 748-49 (2001)).
13 The purpose of issue preclusion is to conserve judicial resources
14 and foster confidence in the outcome of adjudications by
15 providing finality and avoiding inconsistent rulings. See id.
16 To determine the preclusive effect of a California state
17 court’s finding, the panel applies California preclusion law.
18 28 U.S.C. § 1738 (the Full Faith and Credit Statute); Marrese v.
19 Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985).
20 When state preclusion law controls, the discretion to apply the
21 doctrine is exercised in accordance with state law. Khaligh v.
22 Hadegh (In re Khaligh), 338 B.R. 817, 823 (9th Cir. BAP 2006),
23 aff’d, 506 F.3d 956 (9th Cir. 2007).
24 Under California law, the party asserting issue preclusion
25 has the burden of establishing the following “threshold”
26 requirements:
27 First, the issue sought to be precluded from relitigation
must be identical to that decided in a former proceeding.
28 Second, this issue must have been actually litigated in
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1 the former proceeding. Third, it must have been
necessarily decided in the former proceeding. Fourth,
2 the decision in the former proceeding must be final and
on the merits. Finally, the party against whom
3 preclusion is sought must be the same as, or in privity
with, the party to the former proceeding.
4
5 Harmon v. Kobrin (In re Harmon), 250 F.3d 1240, 1245 (9th Cir.
6 2001).9
7 1. Satisfaction of the Five Threshold Elements
8 Here, three of the five threshold requirements are
9 undisputably satisfied: (1) the parties in the state court and in
10 the nondischargeability action are the same, (2) the state court
11 judgment is final and on the merits, and (3) the issue sought to
12 be precluded from re-litigation is identical to that purportedly
13 decided in the former proceeding (i.e., whether Mr. Ha acted as
14 the agent of the Debtor in negotiating the sale of the business).
15 The more difficult questions are whether the issue of Mr. Ha’s
16 status as the Debtor’s agent was “actually litigated” and
17 “necessarily decided” by the state court.
18 a. Was Agency “Actually Litigated”?
19 Under California law, “an issue was actually litigated if it
20 was properly raised, submitted for determination, and determined
21 in that proceeding.” Hernandez v. City of Pomona, 94 Cal. Rptr.
22 3d 1, 10 (Cal. Ct. App. 2009) (citing People v. Sims, 186 Cal.
23
9
Even if these five threshold requirements are met,
24 application of issue preclusion requires a “mandatory
‘additional’ inquiry into whether imposition of issue preclusion
25 would be fair and consistent with sound public policy.” Khaligh,
338 B.R. at 824-25. California courts “have recognized that
26 certain circumstances exist that so undermine the confidence in
the validity of the prior proceeding that the application of
27 collateral estoppel would be ‘unfair’ to the defendant as a
matter of law.” Roos v. Red, 30 Cal. Rptr. 3d 446, 453 (Cal. Ct.
28 App. 2005).
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 15 of 21
1 Rptr. 77 (Cal. Ct. App. 1982)). In determining whether an issue
2 was actually litigated, a court should look beyond the bare
3 findings and must scrutinize the pleadings and evidence presented
4 to determine what was actually determined in the prior
5 proceeding. Schaefer/Karpf Prods. V. CNA Ins. Cos., 76 Cal Rptr.
6 2d 42, 45-46 (Cal. Ct. App. 1998).
7 In this case, Genesis argues that it properly raised, and
8 submitted for determination, the agency issue by alleging in the
9 state court complaint that Mr. Ha acted as the Debtor’s agent
10 with respect to the sale of Home Design and by presenting
11 evidence at the prove-up hearing from which the state court could
12 make a determination regarding whether Mr. Ha acted as the
13 Debtor’s agent. Further, the state court made a determination on
14 this issue when it found Mr. Ha liable for fraud in the
15 inducement based on the theory that he acted as the Debtor’s
16 “agent” in negotiating the sale of Home Design.
17 However, when one looks at the state court record in its
18 entirety, there is little support for a finding that the state
19 court intended to make a legal determination on the issue. One
20 of the hallmarks of an agency relationship is a principal’s
21 control over its agent’s actions within the scope of the agency.
22 See Tsurukawa v. Nikon Precision, Inc. (In re Tsurukawa),
23 287 B.R. 515, 521 (9th Cir. BAP 2002)(citing Alvarez v. Felker
24 Mfg. Co., 230 Cal. App. 2d 987, 999, 41 Cal. Rptr. 514, 521
25 (1964)). In this case, the state court was not provided with any
26 pertinent evidence regarding Debtor’s ability to control Mr. Ha’s
27 actions in relation to Home Design. Based on the evidence
28 presented to the state court, the Debtor was the owner of Home
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1 Design in name only and had nothing to do with the business.
2 Moreover, the state court did not describe any factual or legal
3 basis for its “finding” of an agency relationship, or present any
4 sort of reasoned opinion on the issue. The state court merely
5 used the term to describe a basis for finding liability as to Mr.
6 Ha for fraud in the inducement. Stated differently, even though
7 the state court referred to Mr. Ha as an “agent” of the Debtor,
8 it does not appear that the state court made a legal
9 determination that the Debtor was the principal and Mr. Ha was
10 the agent.
11 It is well established that the application of issue
12 preclusion under California law involves a measure of discretion.
13 “[I]ssue preclusion is not applied automatically or rigidly, and
14 courts are permitted to decline to give issue preclusive effect
15 to prior judgments in deference of countervailing considerations
16 of fairness.” In re Lopez, 367 B.R. at 108 (citing Lucido v.
17 Super. Ct., 272 Cal. Rptr. 3d 767, 795 (Cal. 1990)). Given the
18 ambiguity of the record and the lack of specific findings of fact
19 by the state court that would support a determination that an
20 agency relationship existed, it is far from clear that the
21 bankruptcy court would have abused its discretion in declining to
22 apply issue preclusion to the agency issue. As a matter of
23 fairness, when faced with serious questions about the scope of a
24 ruling, the bankruptcy court should err on the side of caution
25 and avoid applying issue preclusion when a state court’s exact
26 determination is ambiguous. In this case, the state court’s
27 determination was simply not sufficiently firm to be given
28 preclusive effect. The bankruptcy court did not abuse its
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Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 17 of 21
1 discretion in making its own determination regarding the agency
2 issue.
3 b. Agency Was Not “Necessarily Decided”
4 Under California law, an issue has been “necessarily
5 decided” if it is not “entirely unnecessary” to the judgment in
6 the initial proceedings. Zevnik v. Superior Court, 70 Cal. Rptr.
7 3d 817, 821 (Cal. Ct. App. 2008)(citing Lucido, 272 Cal. Rptr. 3d
8 at 769).
9 Genesis argues that the state court based its ruling that
10 Mr. Ha could be held liable for fraud on the fact that he was
11 acting as the Debtor’s agent. In finding Mr. Ha liable for
12 fraud, the state court stated as follows:
13 So what I have just convinced myself is that the fraud in
the inducement does not have to be by the contracting
14 party. A third party, a broker, a salesperson, some body
else could induce somebody to enter into a contract by
15 fraud. That agent would then be liable.
16 Since Ha is the agent in this case who made the
fraudulent inducement, he would be responsible for fraud
17 in the inducement.
18 Transcript of State Court Trial, pg. 25, lns. 17-25. Thus,
19 Genesis argues that the state court record supports its assertion
20 that the issue of agency was “necessarily decided.”
21 In reviewing the state court judge’s musings on the issues
22 of fraud and agency, it appears that the court made this finding
23 primarily because it was the most obvious vehicle by which
24 liability could be imposed upon Mr. Ha for fraud in the
25 inducement. However, it does not follow that this question was
26 “necessarily decided,” because the court might have premised a
27 finding of fraud in the inducement directly against Mr. Ha based,
28 for example, upon his false statements of co-ownership of the
- 17 -
Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 18 of 21
1 business. In this context, it seems that the state court’s
2 finding of agency was simply the most convenient, but hardly the
3 exclusive, way of getting to the result that the state court was
4 convinced was correct, i.e., that Mr. Ha had committed fraud.
5 Ultimately, a finding of agency was unnecessary to the state
6 court’s determination, because the state court could have imposed
7 liability for fraud in the inducement on Mr. Ha without ever
8 addressing the issue of agency. Cf. In re Harmon, 250 F.3d at
9 1248-49 (stating that, because the state court could have entered
10 a default judgment against the defendant without finding that he
11 had committed fraud, the issue was not necessarily decided in the
12 prior proceeding).10
13 Last, as previously discussed, the state court record is
14 ambiguous regarding whether the state court decided the agency
15 issue. Given the fact that it is unclear what the state court
16 intended to decide, we cannot say that the bankruptcy court would
17 have abused its discretion in declining to apply issue preclusion
18 to the agency issue.
19 ///
20 ///
21 ///
22
23
10
In the alternative, even if the state court did make a
24 determination that Mr. Ha was the Debtor’s agent, the state court
also made a determination that he acted outside the scope of his
25 agency. See Transcript of State Court Trial, pg. 25, lns. 2-3
(stating “lying would be outside the scope of his employment”).
26 Thus, even if the agency issue was necessarily decided, to be
doctrinally consistent, the bankruptcy court would have also been
27 precluded from imputing Mr. Ha’s fraud to the Debtor, because the
state court also found that Mr. Ha’s actions were outside the
28 scope of the agency.
- 18 -
Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 19 of 21
1 C. The Bankruptcy Court Did Not Err in Finding That Fraud Should
2 Not Be Imputed to the Debtor Based on Agency Principles
3 In order to establish that a debt is nondischargeable under
4 section 523(a)(2)(A), a creditor must establish five elements by
5 a preponderance of the evidence:
6 (1) misrepresentation, fraudulent omission or deceptive
conduct by the debtor; (2) knowledge of the falsity or
7 deceptiveness of his statement or conduct; (3) an intent
to deceive; (4) justifiable reliance by the creditor on
8 the debtor’s statement or conduct; and (5) damage to the
creditor proximately caused by its reliance on the
9 debtor’s statement or conduct.
10 Turtle Rock Meadows Homeowners Ass’n v. Slyman (In re Slyman),
11 234 F.3d 1081, 1085 (9th Cir. 2000); Ghomeshi v. Sabban (In re
12 Sabban), 384 B.R. 1, 5 (9th Cir. BAP 2008).
13 Genesis argues that the Debtor is liable for the fraud
14 because Mr. Ha was acting as the Debtor’s agent when he committed
15 fraud against Genesis, and fraud committed by an agent acting on
16 behalf of a principal is imputed to the principal. In other
17 words, Genesis argues that it does not have to prove that the
18 Debtor committed any direct fraud, it need only show that Mr. Ha
19 committed fraud while acting as agent for the Debtor.11
20 1. Mr. Ha Was Not the Debtor’s Agent
21 As noted previously, “[a] primary characteristic of an
22 agency relationship is the principal’s right to control the
23 agent’s conduct regarding matters entrusted to it.” In re
24 Tsurukawa, 287 B.R. at 521 (citing Alvarez v. Felker Mfg. Co.,
25
26 11
Genesis has not appealed the bankruptcy court’s finding
concerning the absence of direct fraud by the Debtor. Thus, the
27 only issue before the panel is whether the bankruptcy court
should have imputed Mr. Ha’s fraud to the Debtor based on agency
28 principles.
- 19 -
Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 20 of 21
1 41 Cal. Rptr. 514, 521 (Cal. Ct. App. 1964)). Genesis argues
2 that, even if the Debtor did not practice any control over the
3 business or Mr. Ha, she had the ability to control Mr. Ha by
4 virtue of being the owner of the business. Genesis argues that
5 the panel has previously recognized that “[o]wnership status is,
6 by definition, a position of control.” See Tsurukawa, 287 B.R. at
7 522. Thus, by virtue of her position, the Debtor was in a
8 position to control Mr. Ha, and therefore an agency relationship
9 existed.
10 Notwithstanding the foregoing, the facts of this case are
11 distinguishable from the facts in Tsurukawa, and compel a
12 different result.
13 As an initial matter, “ownership” cannot by itself create an
14 agency relationship; there must be something more than bare legal
15 title to assets. In Tsurukawa, we cited with approval the
16 bankruptcy court’s analysis that “it is not appropriate to find
17 an agency relationship in every instance in which a spouse takes
18 bare legal title to business property held for the benefit of the
19 couple . . . .” Id. (quoting Bankruptcy Court’s Memorandum of
20 Decision (Jan. 14, 2002) at 5-6 (footnote omitted)). Courts
21 should be careful when assessing whether a true agency
22 relationship exists between married couples. Id. at 522-523.
23 The facts in Tsurukawa are distinguishable from the facts in this
24 case because the spouse in Tsurukawa played a substantial role in
25 helping her husband carry out his fraudulent intent. In this
26 case, unlike Tsurukawa, the Debtor had no involvement in the
27 business, other than holding bare legal title to assets, and had
28 no involvement in the sale of business, other than signing the
- 20 -
Case: 11-1379 Document: 21 Filed: 02/17/2012 Page: 21 of 21
1 Purchase Agreement. Moreover, there are no facts that suggest
2 the Debtor’s status as owner (or her actions with respect to the
3 sale of Home Design) enabled Mr. Ha to commit fraud. Indeed, the
4 evidence indicated that the Debtor had no control over Mr. Ha
5 with respect to Home Design.
6 We cannot find any error in the bankruptcy court’s
7 determination that no agency relationship existed between the
8 Debtor and Mr. Ha.
9 VI. CONCLUSION
10 For the foregoing reasons, we affirm the bankruptcy court’s
11 determination that the debt owed by the Debtor to Genesis is
12 dischargeable in bankruptcy.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
- 21 -
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937 So.2d 430 (2006)
Dennis SKINNER and Michael Childs
v.
DERR CONSTRUCTION COMPANY, Manhattan/Gibbs, Manhattan Construction Co., Gibbs Construction Co., Herman Binz & Sons Iron Works, Arthur Davis, Faia & Partners, Billes Manning Architects, Hewitt/Washington & Associates, Charles G. Lewis, et al.,
Shan Paulk
v.
Manhattan/Gibbs, Manhattan Construction Company, Gibbs Construction Company, Herman Binz & Sons Iron Works, Inc., Charles Lewis d/b/a Lewis Engineering.
Nos. 2005-CA-0816, 2005-CA-0817.
Court of Appeal of Louisiana, Fourth Circuit.
July 26, 2006.
*431 James E. Cazalot, Jr., New Orleans, LA, for Plaintiff/Appellant.
Scott G. Jones, Inabnet & Jones, L.L.C., Mandeville, LA, for Defendant/Appellee.
(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
ROLAND L. BELSOME, Judge.
Plaintiff-Appellant, Shan Paulk, appeals the trial court's grant of Defendant-Appellee, Herman Binz & Sons Iron Works, Inc.'s motion for summary judgment, which dismissed Appellant's products liability claims against Defendant-Appellee for injuries he sustained during the construction of the New Orleans Arena. Plaintiff-Appellant also appeals the trial court's subsequent denial of his motion for a new trial.
FACT SUMMARY
This litigation centers on an accident that occurred during the construction of the New Orleans Arena. The general contractor, Manhattan/Gibbs, contracted with *432 Herman Binz & Sons Iron Works, Inc. ("Binz") to supply fabricated steel for the structure. The general contractor then contracted with the Derr Construction Company ("Derr") to erect the steel structure of the New Orleans Arena. Appellant Shan Paulk ("Paulk") was an employee of Derr.
On September 19, 1998, Derr employees were attempting to lift into place the steel framing for the Mezzanine level on one side of the structure. The steel was structural steel that had been fabricated and supplied by Binz. The framing resembled a giant drainage grate made of steel beams, and it had a length of 80 feet. The steel framing hung parallel to the ground, suspended by four cables attached to a crane. Derr had previously bolted the pieces of the steel frame together. After the structure was lifted into place, Appellant and two co-workers, Dennis Skinner and Michael Childs, were working aloft on the steel frame to make permanent connections with bolts to the main structure.
The steel frame suddenly collapsed causing the plaintiff and his coworkers to fall 19 to 30 feet to the concrete below. Specifically, the frame broke at the intersection of two steel beams, A761 and B761. As a result of the fall, all three sustained serious bodily injuries. Paulk remains disabled from working and under medical care today.
PROCEDURAL HISTORY
Paulk filed a Petition for Damages against various defendants including Binz on October 6, 2000. On January 27, 2004, Binz moved for summary judgment against Paulk alleging that no material facts remain in dispute about its liability.
The motion for summary judgment was heard by the trial court on August 27, 2004. A written judgment was entered without written reasons on September 8, 2004. Paulk filed a motion for new trial on September 20, 2004. The motion for new trial was heard on December 3, 2004. A written judgment was entered without written reasons on December 10, 2004 denying the motion for new trial. Paulk filed a notice of appeal covering both judgments on February 7, 2005, which was then signed on February 14, 2005.
ASSIGNMENTS OF ERROR
Appellant contends that the trial court erred in granting summary judgment when material facts remained in dispute as to the cause of the accident, and in denying Paulk's motion for new trial.
LAW AND ANALYSIS
The duty of a court of appeal is to review a summary judgment de novo, considering the same standards applied by the trial court in deciding a motion for summary judgment.[1] The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions.[2] A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law.[3] If the court finds that a genuine issue of material fact exists, summary judgment must be rejected.[4]
*433 The burden does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist.[5] At that point, the party opposing the motion must "make a showing sufficient to establish existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial." La. C.C.P. art. 966(C).
This appeal asks us to determine whether the trial court appropriately granted summary judgment to Binz. Paulk alleges that the steel beam manufactured by Binz was unreasonably dangerous under the Louisiana Products Liability Act ("The LPLA"). The LPLA is the law governing the liability of a manufacturer for a product he produced, designed, or fabricated. La. R.S. 9:2800.54 provides:
A. The manufacturer of a product shall be liable to a claimant for damage proximately caused by a characteristic of the product that renders the product unreasonably dangerous when such damage arose from a reasonably anticipated use of the product by the claimant or another person or entity.
B. A product is unreasonably dangerous if and only if:
(1) The product is unreasonably dangerous in construction or composition as provided in R.S. 9:2800.55;
(2) The product is unreasonably dangerous in design as provided in R.S. 9:2800.56;
(3) The product is unreasonably dangerous because an adequate warning about the product has not been provided as provided in R.S. 9:2800.57; or
(4) The product is unreasonably dangerous because it does not conform to an express warranty of the manufacturer about the product as provided in R.S. 9:2800.58.
Paulk claims that he is entitled to damages from the Binz under the LPLA because Binz's product was unreasonably dangerous in one of three ways: construction or composition; inadequate warning; or failure to conform to an express warranty. First, Paulk alleges that the steel was unreasonably dangerous in construction or composition, as provided under La. R.S. 9:2800.54(B)(1). La. R.S. 9:2800.55 elaborates:
A product is unreasonably dangerous in construction or composition if, at the time the product left its manufacturer's control, the product deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer. La. R.S. 9:2800.55.
At the hearing, Paulk presented evidence from three expert witnesses. The first, William Bonefas, is a registered professional engineer and Vice President of a consulting structural engineering firm located in Fort Worth, Texas. Bonefas testified that the cause of the accident could be placed in one of four categories: (1) lifting forces, (2) material defects, (3) fabrication defects, or (4) modification to the product by the erector. The first and last causes would be attributable to Paulk's employer, Derr Construction, and categories (2) and (3) would be attributable to Binz.
Through the use of computer generated models, Bonefas eliminated lifting forces as a possible cause, and in a March 23, 1999 letter to Derr, he concluded that the collapse of the steel structure was not the result of overloading or the connection of *434 the beams. Specifically, Bonefas wrote, "[i]t is my professional opinion that failure of this plate is the result of some other phenomenon, possibly a material defect or a pre-existing crack in the plate."
Paulk's own testimony eliminated one of thesemodifications to the product by the erectoras a potential cause. Paulk was present when the steel arrived, he assisted in unloading the steel, and he was involved in putting the frame together, and Paulk argues that no modifications were made to the product by the erector.
Bonefas believed that the accident likely occurred because of either fabrication defects or material defects. However, he could not say with certainty what the exact cause was. Bonefas testified, "I have no physical or hard evidence of the plate not performing. Merely I concluded that the stress alone was not sufficient to do that, and I think I made mention that that would be something that would be warranted looking at."
Paulk also produced the testimony of Edward Cox. Cox is a Ph.D. and works for EPC Engineering Resources, Inc. in Dallas, Texas. In a March 31, 1999 letter to Derr, Cox wrote that he disagreed with an OSHA Citation and Notification of Penalty to Derr. In the citation, OSHA wrote that the platform collapsed due to overloading. Mr. Cox countered that "[n]o evidence of overloading has been found in platform itself, rigging, or lifting equipment. Conversely, the rigging, lifting equipment, and platform sections all exhibited considerable physical evidence of not being overloaded at the time of failure." In a May 13, 1999 letter to Derr, Dr. Cox noted that an examination of the initial failure site "revealed abnormal fracture feature and unusual deformation patterns."
Binz relied primarily on the testimony of Courtney Busch, a registered professional engineer in Louisiana and a metallurgical expert. Essentially, Busch found that no fabrication errors occurred, and that the platform collapsed due to loading forces. In his report, Busch concluded that "the plate . . . failed due to an overload force. No defects were found in the plate or the welding process that could have caused this type of gross overload failure."[6]
Busch's testimony was opposed by Joseph Skaggs, a metallurgical engineer who testified that the analysis performed by Courtney Busch on this connection was insufficient to rule out a material defect, fabrication defect or pre-existing damage to the connection. After reviewing the OSHA review and citations, witness statements, Courtney Busch's reports and deposition, and other information, Skaggs testified that the accident could have only been caused by applied force in the excess of the connector's design capacity, or a defect in the material, fabrication, or pre-existing damage due to the connection.
In sum, Binz's witness testified that overloading conclusively caused the accident. Paulk's witnesses testified that overloading was conclusively not a cause of the accident, and that a fabrication or material defect in the steel was a likely cause of the accident, but they could not testify as to what conclusively caused the accident. We believe that the sum of their testimony presented enough evidence to establish a genuine issue of material fact.
*435 Regarding the standard for summary judgment, the Supreme Court wrote:
A "genuine issue" is a "triable issue." More precisely, an issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue.
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 751 (internal citations and quotations omitted).
At issue in this case is Binz's responsibility for the accident that caused Paulk's injuries. Considering the conflicting evidence presented by experts Busch, Bonefas, Cox and Skaggs, reasonable persons could disagree on whether Binz is responsible for Paulk's injuries.
The Supreme Court has also written that:
A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute. Simply put, a "material" fact is one that would matter on the trial on the merits.
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94); 639 So.2d 730, 750-51 (internal citations and quotations omitted). Clearly, the cause of the accident is essential to Paulk's claim, would determine the outcome of the legal dispute, and would matter at trial. It is the critical fact at issue in this lawsuit.
Binz points out that opposition to a motion for summary judgment cannot prevail when it is based on pure speculation. Black's Law Dictionary defines speculation as "(t)he act or practice of theorizing about matters over which there is no certain knowledge." Black's Law Dictionary 1435 (Bryan A. Garner ed., 8th ed., West 2004).
The Louisiana Supreme Court recently stated that a witness's speculation on an issue was of no probative value in determining a motion for summary judgment when there was no sound basis for the speculation. We believe it is appropriate to provide a thorough analysis of the context of this statement. In Jones v. Estate of Santiago, XXXX-XXXX (La.4/14/04); 870 So.2d 1002, Eliud Santiago shot and killed his girlfriend, Annissa Jones, after she decided to return to her husband, Davy Jones. He also killed two of her and Davy Jones' daughters. Santiago then shot and killed himself. Davy Jones filed suit to recover damages sustained on behalf of himself and his minor children as a result of the death of Annissa Jones. Named as defendants were the Estate of Santiago and State Farm Insurance Company, the insurer providing homeowner's insurance coverage to Eliud Santiago.
State Farm filed a motion for summary judgment seeking to have plaintiffs' claim dismissed on the basis that the killing of Annissa Jones was not a covered occurrence under the insurance policy issued to Eliud Santiago and was specifically excluded by the intentional act exclusion. The trial court denied the motion for summary judgment, reasoning that the plaintiff had produced evidence that the shooting was not intentional. Specifically, Annissa Jones' eight year-old daughter Kaitly testified that she did not think the accident was intentional.
The court of appeal affirmed the judgment, but the Supreme Court reversed, holding that there was no genuine issue of material factclearly the shooting was intentional. The Supreme Court was moved by the "fact that more than one individual was shot, the fact that Annissa suffered two gunshot wounds to the head and another *436 to the arm, and the fact that there were no signs of a struggle and no defensive wounds on the body . . . Additional physical evidence includes three other deaths, all caused by gunshot wounds to the head." Jones v. Estate of Santiago, XXXX-XXXX, pp. 10-12 (La.2004); 870 So.2d 1002, at 1009-10.
The Supreme Court's treatment of Kaitly's deposition is relevant to the case at hand. The Court wrote:
Following a de novo review of Kaitly's deposition, one can only conclude that her statement characterizing the shooting as accidental is mere speculation. When her deposition is reviewed in its entirety, it is clear she was not privy to the facts which would enable her to testify the shooting was accidental. She stated many times that she did not actually see what occurred and could not remember anything. Her physical location at the scene at the time of the shooting cannot be determined by her testimony. Her deposition testimony consists of her belief as to what occurred rather than on personal knowledge of the events.
Jones v. Estate of Santiago XXXX-XXXX, p. 10 (La.4/14/04); 870 So.2d 1002, 1008-09. Thus, a motion for summary judgment should not be determined based on testimony that is "mere speculation."
The Fourth Circuit has also addressed speculative testimony used to oppose motions for summary judgment. In Haney v. Delta Petroleum Company, XXXX-XXXX, p. 5 (La.App. 4 Cir. 3/6/02); 811 So.2d 1200, 1204, this court wrote that summary judgment "may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation."
We believe that the evidence produced by Paulk is distinguishable from the speculation produced in Jones and Haney. Paulk presented testimony from three witnesses. Some of the testimony presented by Paulk was speculative. Bonefas had no physical evidence to prove the suspicion that a material defect or a fabrication defect caused the accident. The testimony of each witness viewed individually might be considered mere speculation. However, collectively their testimony rises above the level of unsupported or mere speculation.
Bonefas, Cox, and Skaggs all testified that the accident was likely created by some error in construction or composition. Bonefas theorized on some certain knowledge. All three are engineers who performed extensive investigations into the cause of the accident.
Bonefas testified the accident was caused by one of four reasons. He eliminated one of these, and witness testimony eliminated another, leaving fabrication defects or material defects as the likely cause, which creates liability for Binz.
Cox also testified that there was no evidence of overloading, and that the initial failure site "revealed abnormal fracture feature and unusual deformation patterns," which implies fabrication or material defects.
Skaggs testified that Busch's testing methods were insufficient to rule out a material defect, fabrication defect, or pre-existing damage to the connection.
Three engineers testified that loading forces did not cause the accident, which leaves fabrication or material defect in the steel as the likely cause of the accident. Steel platforms do not normally collapse. We find that Plaintiff-Paulk's opposition to the motion for summary judgment rests on more than "mere speculation" or "unsupported speculation." In sum, we find that Paulk presented enough evidence at *437 trial to create a genuine issue of material fact.
Because this issue has been disposed of on the first assignment of error, we pretermit discussion of Paulk's other assignment of error regarding the motion for new trial, as well as his additional arguments regarding the first assignment of error.
CONCLUSION
For the reasons above, we find that the trial court improperly granted Binz's motion for summary judgment.
REVERSED AND REMANDED.
NOTES
[1] Reynolds v. Select Properties, Ltd., 93-1480, p. 2 (La.4/11/94); 634 So.2d 1180, 1183; Bank One, Nat'l Ass'n v. Velten, XXXX-XXXX, p.4 (La.App. 4 Cir. 8/17/01); 917 So.2d 454, 457.
[2] Two Feathers Enterprises, Inc. v. First Nat'l Bank of Commerce, XX-XXXX-XXXX p. 3 (La. App. 4 Cir. 10/14/98), 720 So.2d 398, 400.
[3] La. C.C.P. art. 966.
[4] Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96); 684 So.2d 488, 490.
[5] Id.
[6] He also found that "The plate designated as A746 failed due to a torsional overload. "The plate designated C758 failed due to an overload twisting moment. No defects were found in the plate or the welding process that could have resulted in this type of failure." "The web of F757 was sheared by the bolts due to an overload tensile force. No defects were found in the web."
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22 Kan. App.2d 206 (1996)
913 P.2d 1236
STATE OF KANSAS, Appellee,
v.
LARRY DEAN PARKER, Appellant.
No. 72,185.
Court of Appeals of Kansas.
Opinion filed April 5, 1996.
Debra J. Wilson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for the appellant.
Joe E. Lee, assistant county attorney, Rodney H. Symmonds, county attorney, and Carla J. Stovall, attorney general, for the appellee.
Before BRAZIL, C.J., LEWIS and ROYSE, JJ.
LEWIS, J.:
Defendant Larry Dean Parker was convicted of one count of aggravated robbery and sentenced to a term of 9 to 23 years in prison. This is a direct appeal from the conviction and sentence.
The scenario begins in Hot Rods, a tavern in Emporia. Defendant and his brother Glenn had gone to the tavern to drink beer and play pool. In the course of the evening, they met and began drinking with Bruce Niederhauser. The three left Hot Rods sometime during the evening and went to Hooters. At Hooters, they continued to drink beer, and there is an indication that Niederhauser became totally intoxicated and incapacitated. At some point during the evening, all three left Hooters and got into Glenn's pickup.
Sometime between leaving Hooters and 8 o'clock the next morning, Niederhauser was brutally beaten, stripped of his clothing, and left in a ditch. A Lyon County citizen spotted Niederhauser in the ditch and called the sheriff's office. When the sheriff's deputy *207 arrived, Niederhauser was found naked, lying in the ditch, covered with blood and abrasions.
Niederhauser could not remember any details of the beating, but related that he could recall he was with defendant and his brother. A police investigation uncovered incriminating evidence, and defendant and his brother were both charged with the beating and robbery of Niederhauser.
Glenn made a deal with the authorities and, in exchange for his testimony against his brother, was allowed to plead to conspiracy to commit aggravated robbery and was sentenced to community corrections. According to Glenn, it was defendant who beat and stripped Niederhauser and left him in the roadway.
As might be imagined, defendant related a different story of the events than did his brother. Defendant testified at trial that it was Glenn who beat Niederhauser. Defendant insists he attempted to stop his brother and that he did not hit or kick Niederhauser. He did admit that at one point he pretended to kick Niederhauser so that Glenn would not call him a "chicken." Defendant insisted, however, that he only pretended to do so and that he did not actually participate in the beating of Niederhauser.
The jury convicted defendant of aggravated robbery. Defendant raises several issues on appeal.
AIDING AND ABETTING
The trial court gave the jury an instruction on aiding and abetting over the objection of defendant. Defendant argues that the trial court erred in so instructing the jury and that there was not sufficient evidence to convict him on an aiding and abetting theory.
Defendant's basic argument is that under the evidence, he could only have been convicted as a principal or acquitted as an innocent passive observer. We do not agree.
There is no crime of aiding and abetting in this state. An individual is guilty of a crime either because he or she is the principal actor in the event or because he or she aided and abetted in the commission of a crime. In either event, a defendant is simply adjudged to be guilty of a crime charged, and the jury verdict does not specify whether guilt is as a principal or an aider and abettor.
*208 "To be guilty of aiding and abetting in the commission of a crime the defendant must wilfully and knowingly associate himself with the unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed." State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 (1974). See State v. Green, 237 Kan. 146, Syl. ¶ 4, 697 P.2d 1305 (1985).
There is ample evidence in the record to convict defendant as the principal actor in the aggravated robbery of Niederhauser. The testimony of defendant's brother, Glenn, along with certain other demonstrative evidence, is more than sufficient to sustain a verdict of guilty. Defendant and his brother offered totally different versions of what happened. Glenn testified that defendant did it, and defendant testified that Glenn did it. The jury apparently believed Glenn, which was its prerogative.
There was also sufficient evidence to justify the giving of the aiding and abetting instruction.
For instance, defendant testified that while at Hooters, he learned that Glenn was planning to beat Niederhauser. Niederhauser was so drunk at Hooters that he had to be helped to leave the premises, and defendant aided him and placed him in Glenn's vehicle. Even though defendant now testifies that he thought Glenn had decided not to beat Niederhauser, his assistance in getting Niederhauser to the pickup may very well be considered as aiding and abetting in the commission of the crime. In addition, defendant admits that he pretended to kick Niederhauser. Although he testified that he did not actually do so, he apparently convinced Glenn that he was helping in the beating. This could only have encouraged Glenn to continue his attack on Niederhauser if one chooses to accept defendant's version of the events. In addition to these specific incidents, there is adequate evidence in the record to support an inference that if defendant was not the principal actor in the crime, he certainly aided and abetted in its commission.
After reviewing the record on the issue at hand, we hold there was sufficient evidence that defendant aided and abetted in the commission of the crime of aggravated robbery. The trial court did not err in instructing the jury on this issue.
*209 VOLUNTARY INTOXICATION
Defendant next argues that the trial court erred in refusing to give his requested instruction on voluntary intoxication.
In State v. Montano, 18 Kan. App.2d 502, Syl. ¶ 7, 855 P.2d 979, rev. denied 253 Kan. 862 (1993), we outlined what must be shown in order to require an instruction on voluntary intoxication:
"To require the giving of an instruction on voluntary intoxication, there must be some evidence upon which a jury might find that defendant was so intoxicated that his mental faculties were impaired to the extent that he was incapable of forming the necessary specific intent required to commit the crime. Statements of an accused can negate testimony about consumption of alcohol and, thus, justify a court's refusal to instruct on voluntary intoxication."
The evidence in this case did not require that the trial court give the requested instruction. The testimony of defendant at trial indicates he was able to detail all of the events preceding the beating of Niederhauser and to explain precisely what he did do and did not do during that beating. His testimony also indicates he was able to control himself to the extent of not harming Niederhauser and imploring Glenn to stop his attack on Niederhauser. The ability to recall events leading up to the commission of a crime is evidence that a defendant's mental faculties were not sufficiently impaired by intoxication. State v. Gonzales, 253 Kan. 22, 853 P.2d 644 (1993); State v. Minski, 252 Kan. 806, 812, 850 P.2d 809 (1993); State v. Payton, 229 Kan. 106, 114, 622 P.2d 651 (1981).
"The burden of showing that intoxication has robbed defendant's mental faculties is on defendant." State v. Minski, 252 Kan. 806, Syl. ¶ 3. Defendant's testimony in this case clearly indicates his mental faculties had not been robbed by his intoxication. The record shows that defendant was clearly not "`utterly devoid of consciousness or awareness.'" See State v. Warren, 252 Kan. 169, 174, 843 P.2d 224 (1992). Defendant's testimony in this case indicates he could reason, plan, recall, exercise his motor skills, and pretend to kick at the victim to fool his brother. The evidence indicates the trial court did not err in refusing to give an instruction on voluntary intoxication.
*210 SENTENCE OF CODEFENDANT
As indicated, defendant's brother, Glenn, was convicted of conspiracy to commit aggravated robbery, a class E felony, and was sentenced to community corrections. Defendant, on the other hand, was convicted of aggravated robbery, a class B felony, and was sentenced to a term of 9 to 23 years. Defendant argues the trial court erred in giving him a sentence much harsher than that received by his codefendant. He also argues the trial court erred in not stating the reasons for giving him a harsher sentence than was imposed on his brother. In State v. Bailey, 251 Kan. 527, 531, 834 P.2d 1353 (1992), two codefendants were convicted of identical crimes. One defendant received three consecutive sentences while the other received only two. As a result, one defendant's parole eligibility date was 15 years later than the other. The defendant receiving the harsher sentence appealed, making an argument similar to the one made by defendant here. The Supreme Court vacated the harsher sentence and remanded for reconsideration because the trial court had failed to give its reasons for the disparate sentences:
"In sentencing a convicted felon, a second trial judge is not restricted to imposing a sentence no greater than the sentence another judge previously imposed upon a codefendantfor the same crime. The second judge, however, must consider the sentence given to the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record." (Emphasis added.) State v. Bailey 251 Kan. 527, Syl. ¶ 2.
On appeal, defendant relies on Bailey. We conclude that this reliance is misplaced. In Bailey, the two defendants were convicted of the same crime. In this case, defendant was convicted of a class B felony while his brother was convicted of a class E felony. A similar factual situation was before the Supreme Court in State v. Castoreno, 255 Kan. 401, 874 P.2d 1173 (1994). In that case, the defendant had been convicted of aggravated criminal sodomy and one count of rape, both class B felonies. The codefendant had entered into a plea agreement and pled guilty to one count of aggravated sexual battery and one count of attempted aggravated criminal sodomy, class D and class C felonies, respectively. Castoreno *211 argued that the trial court erred in giving him a more severe sentence than his codefendant without stating the reasons for that sentence. Castoreno, in his appeal, relied on Bailey. The Supreme Court distinguished Bailey, saying:
"Bailey is not controlling in the present case because Teetzel and Castoreno were not sentenced for the same offenses. Their different convictions were a result of Teetzel's entering into a plea agreement. Neither party cites any authority which offers guidance where, due to one defendant's entering pleas and one defendant's going to trial, codefendants were convicted of very different offenses for very similar conduct and culpability." 255 Kan. at 413.
In State v. Davis, 256 Kan. 1, 34, 883 P.2d 735 (1994), the Supreme Court in a factual situation similar to the one at bar, said: "Davis clearly received a much harsher sentence than his codefendants. The disparity between Davis' and Roddy's sentences really cannot be compared because the defendants were convicted of different crimes."
We adopt the reasoning set forth by our Supreme Court in Bailey and Davis. In the instant matter, the defendant and his brother were convicted of different crimes, and there is no rational means of comparing their sentences. It follows that we do not consider that the trial court was required to give reasons for pronouncing different sentences for the different crimes.
Defendant argues that Glenn is "more culpable" than he. Glenn is only more culpable if we accept defendant's version of the events. If we accept Glenn's version, we reach an entirely different conclusion. We cannot tell and do not intend to judge the credibility of these witnesses. We do not know who is more culpable. For our purposes, the record shows that the two defendants were convicted of entirely different crimes. Under those circumstances, the trial court was not required to give any reasons for imposing a greater sentence on defendant than it did on defendant's brother.
Defendant's sentence is within the statutory guidelines. The record indicates the trial court considered the required sentencing factors. There is no argument that the sentence was a result of partiality, prejudice, oppression, or corrupt motive. We affirm the sentence imposed.
Affirmed.
| {
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121 B.R. 286 (1990)
In re WEDTECH CORPORATION, f/k/a Welbilt Electronics Die Corp., Debtor.
WEDTECH CORPORATION, f/k/a Wedtech Electronics Die Corp., Plaintiff,
v.
Steven DENLINGER, Defendant.
Bankruptcy No. 86B-12366 (HCB), Adv. No. 90A-6216.
United States Bankruptcy Court, S.D. New York.
November 13, 1990.
*287 Hayt, Hayt & Landau by Aaron R. Cahn, Andrew I. Silfen, Great Neck, N.Y., for debtor.
Williams & Connolly by Robert L. Weinberg, H. Douglas Owens, Washington, D.C., for defendant Steven Denlinger.
DECISION
HOWARD C. BUSCHMAN, III, Bankruptcy Judge.
In this adversary proceeding, Steven Denlinger ("Denlinger" or the "Defendant") seeks, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, incorporated by Rule 7012(b) of the Federal Rules of Bankruptcy Procedure, dismissal of the first amended complaint (the "Amended Complaint") of Wedtech Corporation, the debtor and debtor in possession herein ("Wedtech" or the "Plaintiff"). The Amended Complaint requests an order under 11 U.S.C.A. § 544(a), (b) (1989), incorporating section 720 of New York's Business Corporation Law, N.Y. Bus.Corp.L. § 720 (McKinney 1990), ("Section 720") directing Denlinger to return sums paid to him by Wedtech for lobbying services.
In this case, we are asked to revisit significant issues we have already discussed at length in a previous decision in this case, Wedtech Corp. v. Nofziger (In re Wedtech Corp.), 88 B.R. 619 (Bankr.S.D.N.Y.1988).
I
A
On December 15, 1986, Wedtech filed a petition for reorganization under Chapter 11 of Title 11 of the United States Code, 11 U.S.C.A. § 1101 et seq. (1989), (the "Code"). Prior to bankruptcy, Wedtech operated as a military contractor. Pursuant to the Small Business Administration Section 8(a) program allowing qualified minority businesses to receive government contracts without competitive bidding, Wedtech actively sought and was awarded various Defense Department contracts. Since bankruptcy, many employees and agents of Wedtech have been charged with or suspected of illegal acts in connection with lobbying activities performed at Wedtech's behest. This adversary proceeding concerns the activities of one of those persons Wedtech hired to facilitate procurement of valuable Section 8(a) defense contracts.
On July 18, 1990, Wedtech filed a complaint (the "Original Complaint") initiating this adversary proceeding and seeking the return of $185,000 on the ground that Denlinger was retained by Wedtech in violation of law and government regulations to influence government employees to cause certain government contracts to be given to Wedtech. Original Complaint ¶¶ 10, 11. The Original Complaint split the $185,000 into two claims of $175,000 and $10,000 respectively. Denlinger moved under Rule 12(b)(6) to dismiss the Original Complaint. On September 10, 1990, a hearing was held on the Defendant's motion to dismiss. At *288 that hearing, the Court issued a bench order granting Denlinger's motion to dismiss the Original Complaint for failure to plead that Denlinger had the requisite mens rea under Section 720[1], subject to Wedtech filing, by September 19, 1990, an amended complaint correcting the defect. Tr. 13:12-15.[2] On September 12, 1990, Wedtech filed an amended complaint (the "Amended Complaint").
Wedtech's first claim for relief (the "First Claim") under its Amended Complaint includes the following allegations:
1) Denlinger is the sole owner of Enterprise 2000 Corp., a/k/a Enterprise 2000 and Enterprise Development Corp, Amended Complaint ¶ 10;
2) While employed by the Latin American Manufacturers Association ("LAMA"), Denlinger received "consulting fees" from Wedtech, the fees were not disclosed to LAMA and were intended to "unlawfully induc[e] Denlinger to improperly influence government employees", id. at ¶ 11;
3) In exchange for "financial inducements," Denlinger provided Wedtech with "secret and privileged" information to aid Wedtech in procuring government contracts, id. at ¶ 12;
4) Denlinger attempted to "improperly and/or unlawfully influence" Congressman Parrin Mitchell, Chairman of the House Committee on Small Business, to terminate then on-going inquiries into allegedly illegal activities conducted by Wedtech to obtain government contracts, id. at ¶¶ 13, 14;
5) Wedtech transferred $175,000 to Denlinger, or to Enterprise 2000, during this period as consideration for the above services, id. at ¶ 15;
6) The transactions just described were illegal and Denlinger was paid for performing them, id. at ¶ 16;
7) Section 544(b) of the Code authorizes this suit and there exists at least one unsecured creditor holding an allowable claim under section 502 of the Code, id. at ¶¶ 17-19;
8) The payments to Denlinger constitute a violation of the fiduciary duty owed by Wedtech officers, an unlawful transfer, and a waste of corporate assets, id. at ¶ 20;
9) Denlinger as a transferee of the above-mentioned payments is liable "under applicable non-bankruptcy law and particularly Section 720" for the funds unlawfully transferred to him, id.; and
10) Therefore, Denlinger is liable under section 544(a) and (b) for the sum of $175,000 plus interest from the date of the transfer, id. at ¶ 21.
The First Claim contained no plea that Denlinger knew that Wedtech's transfer of the $175,000 to him was unlawful. Wedtech's second claim for relief (the "Second Claim") also invokes section 544(a) and (b) of the Code. The Second Claim does not incorporate any of the previous allegations, but recites the following allegations:
1) Wedtech transferred to Denlinger $10,000 for the purpose of making an illegal payment to H. Robert Salvidar, a senior executive in the Small Business Administration, in order to influence Salvidar to assist Wedtech in procuring government contracts, id. ¶¶ 23, 24;
2) After Salvidar refused to accept the "financial inducement," Denlinger retained the $10,000, id. at ¶¶ 25-26;
3) The "payment" made by Wedtech to Denlinger was for illegal purposes and constituted a violation of the fiduciary duty owed by Wedtech's officers, id. at ¶ 27;
4) As transferee of the payment, Denlinger is liable under Section 720, id.;
5) Denlinger has been "convicted, by plea or otherwise, for crimes arising out *289 of the conduct described herein", id. at ¶ 28; and
6) Therefore, Denlinger is liable under sections 544(a) and (b) under the Code to Wedtech for $10,000 plus interest, id. at ¶ 29.
As a result of his unsuccessful attempt to persuade Salvidar to accept the $10,000, Denlinger pleaded guilty to conspiring with Wedtech to supplement the salary of a government employee. Tr. 7:20-24. Unlawful supplementation of a government employee's salary is a misdemeanor under 18 U.S.C. § 209.[3]
B
In arguing that the Amended Complaint fails to state a claim, Denlinger makes several arguments. First, the Amended Complaint fails to allege that Denlinger, as transferee, had the requisite knowledge of the illegality of the transfer as required by Section 720. As to the First Claim, Denlinger contends that the Amended Complaint does not allege knowledge at all: it neither states that Denlinger knew that the "consulting fees" were unlawful transfers nor pleads that Denlinger was convicted of a crime arising out of the transaction with Wedtech which would a fortiori establish the requisite intent under Section 720. As to the Second Claim, Denlinger submits that the conduct Wedtech describes as the basis for Denlinger's criminal conviction is of a much graver nature than the misdemeanor to which Denlinger pleaded guilty. Specifically, the conduct described in paragraph 24 of the Amended Complaint contains allegations of bribery rather than unlawful salary supplementation. Alternatively, Denlinger argues that the elements of a section 209 offense, 18 U.S.C.A. § 209 (1989) ("Section 209"), for which Denlinger was convicted, do not require proof that the defendant knew of the unlawfulness of her acts; therefore, a conviction under that section cannot satisfy the knowledge of illegality requirement in Section 720.
Second, Denlinger points to the failure of Wedtech to name a director or officer of Wedtech in the Amended Complaint as grounds for dismissal. Denlinger submits that New York state case law does not allow suits against transferees alone absent the joinder of one or more corporate officers or directors responsible for the transaction.
Third, Denlinger seeks dismissal on the ground that Wedtech lacks standing because it fails to allege the existence of a creditor who could have voided the transfer at the time of its occurrence. Denlinger argues that Section 720 requires Wedtech to allege the existence of a judgment creditor.
Fourth, Denlinger argues that Wedtech's failure to allege a date for the challenged transfer in the Second Claim warrants dismissal. Denlinger believes that Wedtech must allege acts which occurred within the applicable statute of limitations.
Fifth, Denlinger submits that dismissal is required because the Amended Complaint does not allege harm to Wedtech's creditors as a result of the alleged transfers to Denlinger.
Sixth, Denlinger argues that no predicate exists for invoking section 544(a) and accordingly any claim resting on that section should be dismissed. According to Denlinger, section 544(a) provides for the avoidance of transfers by or on behalf of a creditor who became such on the day of bankruptcy. Since the transfers to Denlinger presumably took place prior to December 15, 1986, Wedtech's petition date, no claim can be stated under section 544(a).
II
A motion under Rule 12(b)(6) of Civil Procedure, made applicable in bankruptcy proceedings by Rule 7012 of the Federal Rules of Bankruptcy Procedure, tests the formal legal sufficiency of the complaint. The "[d]ismissal of a complaint for failure to state a claim is a `drastic step'," Meyer v. Oppenheimer Management Corp., 764 *290 F.2d 76, 80 (2d Cir.1985), and disfavored by the courts, 2A Moore's Federal Practice ¶ 12.07 [2.-5] at 12-63 (2d ed.1985). For purposes of the motion, the factual allegations of the complaint are taken as true, Miree v. DeKalb County, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977), the complaint is to be liberally construed in favor of the plaintiff, Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969), and the complaint should not be dismissed unless the plaintiff could prove no set of facts which would entitle her to some relief, Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). At all time, the moving party retains at all times the burden of demonstrating that the complaint does not state a claim upon which relief may be granted. See Cutter Realty Group, Inc. v. Schiraldi (In re Schiraldi), 116 B.R. 359, 361 (Bankr.D. Conn.1990).
III
THE FIRST CLAIM
The face of Section 720 clearly establishes that liability cannot attach to a transferee without knowledge of unlawfulness:
(a) An action may be brought against one or more directors or officers of a corporation to procure a judgment for the following relief:
* * * * * *
(2) To set aside an unlawful conveyance, assignment or transfer of corporate assets, where the transferee knew of its unlawfulness.
N.Y.Bus.Corp.L. § 720(a) (McKinney Supp. 1990) (emphasis added). Here, the First Claim contains no plea that Denlinger knew the unlawfulness of Wedtech's $175,000 transfer and, consequently, fails to state a cause of action under Section 720. It is well-settled that dismissal of a complaint, although extreme, is appropriate where the complaint lacks an allegation necessary to the cause of action. See Sarnecky v. Chessick (In re Chessick), 116 B.R. 28, 30 (Bankr.D.Conn.1990); 2A Moore's Federal Practice ¶ 12.07[2.-5] at 12-68 (2d ed. 1985).
The absence of a knowledge allegation in the First Claim is highlighted by the presence in the Second Claim of the paragraph alleging criminal convictions arising out of the conduct described in the Second Claim.[4]See Amended Complaint ¶ 28. In other cases, a plea of a criminal conviction has been held to plead the requisite knowledge under Section 720. See, e.g., Nofziger, 88 B.R. at 625-26. In Podell & Podell v. Feldman (In re Leasing Consultants Inc.), 592 F.2d 103, 5 Bankr.Ct.Dec. (CRR) 34, Bankr.L.Rep. (CCH) ¶ 76,040 (2d Cir. 1979), the Second Circuit affirmed the recovery by a trustee in bankruptcy from a transferee under Section 720. The transferee, a Congressman, had pleaded guilty to conspiring to defraud the United States, see 18 U.S.C. § 371, and to violating the federal conflict of interest statute, see 18 U.S.C. § 203, as a result of illegal transfers from the bankrupt corporation. The knowledge requirement of Section 720 was satisfied by the conviction because the Second Circuit found that the transferee's criminal participation in the unlawful transfer sufficient to state a claim under Section 720. 592 F.2d at 109-10. Likewise, in Nofziger, we held that a plea alleging the transferee suffered a criminal conviction as a result of the alleged unlawful conveyance satisfied Section 720's knowledge requirement.
In contrast, in this case, the Amended Complaint pleads Denlinger was paid for performing acts alleged to be illegal, but contains no plea that he knew the acts or payments were unlawful. Moreover, the Amended Complaint does not plead a criminal conviction as a result of Denlinger's activities described in the First Claim. Such a plea of a conviction could support an inference that Denlinger was a criminal participant in the allegedly unlawful conveyance, thereby taking Denlinger out of the zone of interests to be protected by *291 Section 720's knowledge requirement, see Leasing Consultants, 592 F.2d at 109-10 (the wronged corporation is entitled, under Section 720, to follow its unlawfully diverted property and retrieve it until it comes into the hands of a bona fide purchaser for value), and allowing the First Claim to withstand a motion to dismiss.
In addition, Wedtech was not without notice of the defect. At the hearing on the Original Complaint, the Court advised Wedtech that the failure to plead knowledge would be fatal. The Court ordered Denlinger's motion to dismiss granted unless an amended complaint was filed curing the knowledge defect. Tr. 13:12-15. Although given an opportunity to cure the defect, Wedtech filed an amended complaint which did not even attempt to cure the defect in the First Claim. Since Wedtech has been given ample latitude and opportunity by this Court to file a legally sufficient complaint, it is not unreasonable to dismiss the First Claim for its continuing failure to plead knowledge under Section 720.
THE SECOND CLAIM
A
The Second Claim does not suffer the same infirmity as the first. In the Second Claim, Wedtech pleads that Denlinger has been "convicted, by plea or otherwise, for crimes arising out of the conduct described herein." Amended Complaint ¶ 28. Denlinger argues that this allegation is insufficient to satisfy the knowledge requirement of Section 720 because knowledge of the illegality of the acts is not a requirement under Section 209. According to Denlinger, Section 209 requires only a gift to, or receipt by, an officer or employee of the executive branch or an independent agency of the United States government of salary or any contribution to or supplementation of salary from any source other than the United States as compensation for services as an employee of the United States. United States v. Raborn, 575 F.2d 688, 691-92 (9th Cir.1978).
Denlinger's argument does not discuss scienter but rather sets forth the actus reus of the crime of supplementing a government employee's salary. Since Denlinger does not claim, and it is unlikely, that a Section 209 offense is a strict liability crime, see United States v. Boeing Co., 845 F.2d 476, 480 (4th Cir.1988) and 41 Op. Att'y Gen'l (May 31 1955) (determining whether payment to officer or employee was made as compensation under section 209 requires ascertaining the intent of both payer and payee), and since Denlinger does not discuss the level of mens rea required for conviction under that statute, we must draw the inference in favor of Wedtech that the conviction pleaded in paragraph 28 requires sufficient scienter to satisfy section 720. At trial, Wedtech will bear the burden of proving that the scienter required for Section 209 is equal to that required for Section 720.
B
Denlinger's argument that Wedtech's Amended Complaint must be dismissed for failing to name as a defendant an officer or director of Wedtech is untenable. In Nofziger, we disposed of the argument by stating:
Defendants' contention that section 720 authorizes a claim for relief only against Wedtech's officers and directors misconceives the scope of section 720. While section 720 explicitly sanctions actions against corporate directors and officers, section 720(a) also expressly allows recovery against the transferee of misappropriated corporate assets. Furthermore, section 720 has consistently been construed broadly to allow for claims for relief solely against the transferees of the unlawfully conveyed assets. . . . [T]he Second Circuit [has] held that section 720 impose[s] liability not only on the officers and directors of a corporation, "but also on `the actual recipient of money wrongfully withdrawn from the corporation.'"
88 B.R. at 624 (citations omitted). Denlinger requests reconsideration of this holding, but has cited no authority requiring a different *292 result. The cases cited by Denlinger in alleged support of its argument all hold that a transferee may be sued in addition to a director or officer, but do not hold that the transferee cannot be sued alone. See Henry v. First Nat'l Bank of Ardsley, 110 N.Y.S.2d 115, 123 (Sup.Ct. Westchester Co.1951) (defendant transferee "also is liable" as knowing recipient under Section 60, predecessor section to Section 720); Katz v. Braz, 188 Misc. 581, 66 N.Y.S.2d 722, 723 (Sup.Ct.N.Y.Co.1946) (Section 60, predecessor to section 720, not intended to preclude suit against transferees), aff'd, 271 A.D. 970, 69 N.Y.S.2d 324 (1st Dep't 1947); Schwartz v. Kahn, 183 Misc. 252, 50 N.Y.S.2d 931, 935 (Sup.Ct.N.Y.Co.1944) ("It is true that section 60 relates to actions against directors and officers, but it is also true that third parties may be and frequently are joined as parties defendant in actions brought under that section"). See also First 1958 Fund, Ltd. v. Kung, 250 F.Supp. 744, 749 (S.D.N.Y.1966) (Weinfeld, J.) (anyone who knowingly joins or engages in an enterprise whereby a violation of a fiduciary obligation occurs is jointly and severally liable with the miscreant fiduciary) (emphasis added); Gerdes v. Reynolds, 28 N.Y.S.2d 622, 661 (Sup.Ct.N.Y.Co. 1941) ("the liability of [knowing] participants in breaches of trust [under Section 720's predecessor statute] is joint and several [and] each is treated as if he were the recipient of the entire sum of the liability of all the participants") (emphasis added). Accordingly, Denlinger's contention that failure to join a director or officer is fatal to the Amended Complaint is without merit.[5]
C
Similarly, Denlinger's argument that the Amended Complaint must fall because of its failure to plead the existence of a creditor at the time of the alleged transfers who could have voided the conveyance is also of little significance and also has been resolved in our prior Wedtech opinion. See 88 B.R. at 622-23. Denlinger tries to circumvent the express language in Section 720 authorizing suits by trustees in bankruptcy by arguing that although "[i]t is true that a trustee in bankruptcy has standing to sue in a plenary action in a New York state court under § 720 . . ., it is also true that, for a trustee in bankruptcy (or debtor in possession) to sue in a Federal bankruptcy court under § 544(b), he must comply with the standing requirements and limitations of § 544(b)."[6] Defendant's Memorandum in Reply to Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss the Amended Complaint 10.
It is well-settled that section 544(b) does not provide the trustee with any independent substantive rights. See 4 L. King, R. D'Agostino, M. Cook, R. Mabey, A. Pedlar, H. Sommer, B. Zaretsky Collier on Bankruptcy ¶ 544.03 at 544-17 (15th ed. 1989). Rather, the section is simply a conduit to state law substantive remedies. Generally, a trustee invokes state law remedies which grant a creditor the right to void particular actions by a debtor. Section 720, however, is not the usual state law remedy in that it allows not only a creditor to maintain an action but explicitly authorizes a trustee in bankruptcy to bring such a suit:
(b) An action may be brought for the relief provided in this section . . . by a corporation, or a receiver, trustee in bankruptcy, officer, director or judgment creditor thereof. . . .
N.Y.Bus.Corp.L. § 720(b) (McKinney 1990). As a result, the trustee is not chained "like *293 Prometheus bound", see Collier ¶ 544.03 at 544-17, to the rights of creditors under state law, but rather is given, by Section 720, an independent right to sue in its own name for the benefit of the debtor's estate and creditors. See In re Lico Mfg. Co., 201 F.Supp. 899, 903 (D.Conn.), aff'd, 323 F.2d 871 (2d Cir.1963); Nofziger, 88 B.R. at 623 (only in situations where applicable state law does not afford standing to a trustee in bankruptcy but limits it to a creditor in existence at the time of the transaction must the trustee plead such a creditor's existence).
Research has revealed two New York cases holding that a trustee in bankruptcy must plead the existence of an unsecured creditor at the time of the alleged unlawful transaction in order to state a legally sufficient complaint. Lummis v. Crosby, 176 A.D. 315, 162 N.Y.S. 444 (2d Dep't 1916); Lummis v. Crosby, 181 A.D. 884, 167 N.Y.S. 1111 (2d Dep't 1917) (mem.), aff'd mem., 224 N.Y. 611, 121 N.E. 876 (1918); Garrison v. Pope, 130 Misc. 290, 223 N.Y.S. 737 (Sup.Ct.N.Y.Co.1927). The value of these cases is negated, however, by their pre-dating of the legislature's introduction of the phrase "trustee in bankruptcy" into Section 720(b)'s predecessor statute, N.Y.Gen.Corp.L. § 61. See General Laws of New York, Gen.Corp.L. § 61 (West 1929) ("An action may be brought for the relief prescribed in the last section, by the attorney-general in behalf of the people of the state, or by the corporation or a creditor, receiver or trustee in bankruptcy thereof,. . . .") (emphasis in original and indicating new language). No binding authority, since the introduction of the pertinent language into Section 720 in 1929, has been cited to us holding that a trustee in bankruptcy still must look to the existence of a creditor in order to sue under Section 720.[7] Accordingly, we are not prepared to restrict rights bestowed upon a trustee by the New York legislature in order to make Section 720 congruent with the majority of state statutes applicable in bankruptcy through section 544(b) which give standing only to creditors but not trustees in their own right. No sound basis exists for giving Section 720 a narrower scope than the breadth of its clear language. Wedtech, as a debtor in possession, has the status of a trustee, see 11 U.S.C. § 1107, and, therefore, satisfies the standing requirements of Section 720.
D
Denlinger's remaining arguments are not weighty and may be disposed of in succession in this final section.
Denlinger frivolously asserts that the Amended Complaint must be dismissed because Wedtech failed to recite the date and year of the events in question so as to meet its burden of satisfying the statute of limitations. Under both federal and applicable state law, the statute of limitations is an affirmative defense and not part of the plaintiff's cause of action. See Richards v. Mileski, 662 F.2d 65, 73 (D.C.Cir.1981) (reversing district court's dismissal of complaint where defendant did not affirmatively plead statute of limitations defense but raised it on motion to dismiss); Fed.R. Civ.P. 8(c); Kracke v. Western World Ins. Co., 121 A.D.2d 692, 503 N.Y.S.2d 1012, 1013 (2d Dep't 1986); Doyon v. Bascom, 38 A.D.2d 645, 326 N.Y.S.2d 896, 898 (3d Dep't 1971); Coriale v. Mercurio, 25 A.D.2d 810, 270 N.Y.S.2d 190, 192 (4th Dep't 1966); Mead v. Warner Pruyn Div., Finch Pruyn Sales Inc., 87 Misc.2d 782, 386 N.Y.S.2d 342, 345 (Sup.Ct.Wash.Co.1976); 75 N.Y. Jur.2d Limitations and Laches § 322 (1989) [hereinafter Limitations]. As an *294 affirmative defense, the statute of limitations is not a condition precedent and, consequently, a plaintiff is not required to plead and prove compliance with the statute. See O'Connell Electric Co. v. Village of Macedon, 197 Misc. 22, 93 N.Y.S.2d 901, 903 (Sup.Ct. Monroe Co.1949); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1276 (2d ed. 1990); Limitations § 322 (1989). Until affirmatively pleaded, the defense is not properly before the court and a complaint cannot be dismissed as time-barred. See In re Jackson Lockdown/MCO Cases, 568 F.Supp. 869, 886 (E.D.Mich.1983) (statute of limitations is an affirmative defense and not proper basis for 12(b)(6) motion). Accord 5 C. Wright & A. Miller, Federal Practice and Procedure § 1277 (2d ed. 1990); Limitations § 322 (1989).
These authorities establish that Denlinger's contention that Wedtech must plead dates sufficient to satisfy the applicable statute of limitation is frivolous. Moreover, as to the Second Claim, Denlinger suffered a conviction as a result of the transaction described and therefore cannot deny having knowledge of the relevant date. Knowing the date of the crimes for which he pleaded guilty, Denlinger certainly can calculate whether the time for commencing a civil lawsuit has expired and, if applicable, could plead the statute of limitations as an affirmative defense.
Denlinger's argument that the Amended Complaint must allege harm to the creditors is also without merit. Denlinger reads Pirrone v. Toboroff (In re Vaniman Int'l, Inc.), 22 B.R. 166 (Bankr. E.D.N.Y.1982), as requiring an allegation of harm to creditors in order to maintain a section 720 cause of action. 22 B.R. at 190. Vaniman simply stands for the well-settled proposition that without an unlawful conveyance there can be no Section 720 recovery. The court in Vaniman pointed out that while moral opprobium may attach to the practice of commercial bribery being attacked by the trustee, no section 720 relief was available because the act was not unlawful. Id. The court further stated that it was not even clear that creditors were harmed by the bribery tactics because it secured much needed business. Id.
On the other hand, this case is quite different: even were creditors not immediately harmed, and it appears unrefutable that they were, by Wedtech's transfer of $10,000 to Denlinger coupled with its allegedly unauthorized retainer by Denlinger after Salvidar refused to accept the money, the transaction would still be voidable by the trustee because the acts in question were unlawful and indeed resulted in Denlinger's conviction. See Vaniman 22 B.R. at 190 n. 16 (it was not the bribery per se in Leasing Consultants which gave a right of recovery under Section 720 to the trustee in bankruptcy against the recipient of the bribe, but the fact that the payments were made in furtherance of a criminal conspiracy to violate 18 U.S.C. § 203). The Second Claim thus survives Denlinger's motion to dismiss because the acts complained of are alleged to have been criminal and thus a fortiori unlawful.[8]
For the foregoing reasons, Defendant's motion to dismiss must be granted as to Wedtech's First Claim, but denied as to Wedtech's Second Claim. Movant to
SETTLE ORDER.
NOTES
[1] At the hearing, it became clear that Wedtech had intended to include in the Original Complaint allegations of a criminal conviction against Denlinger and that it believed the conviction would be sufficient to satisfy the knowledge requirement of section 720 of New York's Business Corporation Law. Due to law office failure, however, the complaint served and filed contained no such allegation. Tr. 6:10-25.
[2] Citations to "Tr." refer to the transcript of the hearing held on September 10, 1990; citations to "H." refer to the transcript of the hearing held on October 22, 1990.
[3] Section 209 of Title 18 makes it a misdemeanor to supplement the salary of a government employee. 18 U.S.C. § 209 (1982). Under section 371 of Title 18, a conspiracy to commit a misdemeanor remains only a misdemeanor. 18 U.S.C. § 371 (1982).
[4] There is no indication in the Amended Complaint that the knowledge allegation in the Second Claim is somehow incorporated or covers the transactions described in the First Claim.
[5] It is significant that Denlinger has not made a motion under Rule 19(a) and (b) of the Federal Rules of Civil Procedure to dismiss the Amended Complaint for not joining a necessary and indispensable party. Under that rule, such a motion is generally not granted where liability is several with that of the unnamed party. 7 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1623 (2d ed. 1986). See also Gerdes, 28 N.Y.S.2d at 661-62 (violation of section 720's predecessor statute creates joint and several liability).
[6] Section 544(b) provides:
The trustee may avoid any transfer of an interest of the debtor in property or any obligation incurred by the debtor that is voidable under applicable law by a creditor holding an unsecured claim that is allowable under section 502 of this title or that is not allowable only under section 502(e) of this title.
11 U.S.C.A. § 544(b) (1990).
[7] Denlinger cites Pirrone v. Toboroff (In re Vaniman Int'l, Inc.), 22 B.R. 166 (Bankr.E.D.N.Y. 1982), for the proposition that a trustee in bankruptcy must allege the existence of a creditor at the time of the transaction in order to maintain an action under Section 720. 22 B.R. at 189-90. The bankruptcy court's finding, however, was surplusage in that it had already found the complaint defective for failing to allege any unlawful conveyance as required by Section 720. Moreover, the Vaniman court reached its conclusion that an unsecured creditor must be alleged solely on the basis of the continued vitality of the Lummis and Garrison decisions. As discussed in the text, the two allegedly dispositive New York decisions did not interpret the same statutory language at issue here and cannot be said to mandate the result Denlinger requests.
[8] Denlinger also argues that section 544(a) is plainly inapplicable to Wedtech's cause of action. Wedtech's Amended Complaint, however, is not grounded on section 544(a).
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NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; [email protected]
SJC-12360
MICHAEL THOMANN vs. BOARD OF REGISTRATION OF REAL ESTATE
BROKERS AND SALESMEN.1
December 10, 2018.
Real Property, License to sell. License. Administrative Law,
Judicial review. Due Process of Law, Administrative
hearing.
Michael Thomann, a licensed real estate broker, appeals
from the judgment of a single justice of this court affirming a
decision of the Board of Registration of Real Estate Brokers and
Salesmen (board) suspending Thomann's license for ten days. We
affirm.
1. Proceedings before the board of registration. In
October 2014, the board initiated adjudicatory proceedings
against Thomann, alleging that he had engaged in the business of
real estate brokering through an unlicensed limited liability
company, in violation of 254 Code Mass. Regs. § 2.00(11) (2013)
and 254 Code Mass. Regs. § 3.00(14)(e) (2005); and had failed to
provide a certain notice of agency disclosure to the seller of
real property, in violation of 254 Code Mass. Regs.
§ 3.00(13)(a) (2005).2 The board asserted, on the basis of those
1 The board, so named, is established by G. L. c. 13, § 54.
The board refers to itself as the "Board of Registration of Real
Estate Brokers and Salespersons."
2 The board additionally alleged that Thomann assumed duties
and responsibilities of a business entity engaged in the real
estate brokering business without adequate preparation or
competency, in violation of 254 Code Mass. Regs. § 3.00(14)(e),
2
violations, that discipline was warranted pursuant to G. L.
c. 112, § 61. Thomann denied the allegations against him;
asserted that he had conducted his real estate brokering
activities through a properly registered business or trade name;
and alleged that it was his routine business practice to provide
his clients with a specific form of agency disclosure. Over
Thomann's opposition, an administrative hearing officer
eventually granted the board's motion for a summary decision,
concluding that there were no genuine issues of material fact in
dispute and that the alleged violations had been established.
See 801 Code Mass. Regs. § 1.01(7)(h) (1998). The parties,
through counsel, then submitted memoranda in lieu of a sanctions
hearing.
The hearing officer's tentative decision, which referenced
her summary ruling, determined that the violations had been
proved and concluded that a sanction against the respondent's
license was therefore warranted.3 See 801 Code Mass. Regs.
§ 1.01(11)(c) (1998). Thomann, both individually and through
his attorney, filed written objections. The board's final
decision, dated September 15, 2016, considered Thomann's
objections and adopted the tentative decision with certain
modifications. It ordered suspension of Thomann's license for
ten days, beginning on October 3, 2016, with reinstatement
conditioned on his written certification that he did not
practice during the period of suspension; payment of a $1,200
civil administrative penalty; and submission of an application
for an appropriate license for Thomann's limited liability
company or a certification that the company had been dissolved.
See G. L. c. 112, §§ 61, 65A. The board's decision notified
Thomann that he could appeal from the decision either by filing
a petition for judicial review in the Superior Court within
twenty days of his receipt of the decision, pursuant to G. L.
by failing to comply with certain liability insurance
requirements. See 254 Code Mass. Regs. § 2.00(12) (2013).
Although the hearing officer determined that the violation had
been established, the board did not consider it a separate
violation for purposes of sanction. The violation was not
challenged on appeal, and we do not address it further.
3 The tentative decision did not repeat all of the facts and
conclusions of law on which the summary ruling was based. It
did, however, expressly provide that "the Ruling on Summary
Decision established liability in this forum."
3
c. 112, § 87BBB, or by filing a petition for review in the
county court within thirty days, pursuant to G. L. c. 112, § 64.
On October 19, 2016, Thomann filed a motion in the county
court seeking an extension of time to file a petition there, and
representing that he received the board's final order on
September 30, 2016. The clerk of the county court treated this
motion as a petition for review under G. L. c. 112, § 64, and
docketed it as such. After the board filed the administrative
record and both parties filed their briefs, the single justice
affirmed the board's final decision and denied all other
requests for relief. This appeal followed.
2. Procedure for judicial review. Judicial review of the
final decisions of many boards of registration is properly
sought by filing a petition in the county court within thirty
days of the receipt of notice of the decision. This procedure
is established by G. L. c. 112, § 64, and by G. L. c. 30A,
§ 14 (7). See, e.g., Hamel v. Board of Registration of Funeral
Directors & Embalmers, 449 Mass. 1008, 1009 (2007); Friedman v.
Board of Registration in Med., 414 Mass. 663, 664 & n.1 (1993).
The board in this case, at the end of its written decision,
informed Thomann that he could proceed in that fashion, and that
is essentially what he did. The single justice also decided the
matter under those statutes.
In the case of this particular board, however, another
statute applies. General Laws c. 112, § 87BBB (C), states, with
respect to decisions of this board, that any person aggrieved by
the decision "may appeal to the superior court sitting in equity
for the county wherein he resides or has his principal place of
business, or to said court sitting in equity for the county of
Suffolk" (emphasis added). The statute requires the appeal to
be filed in the Superior Court within twenty days of receipt of
notification of the board's decision; authorizes the Superior
Court to hear all the pertinent evidence and to determine the
facts; and authorizes the Superior Court to annul the board's
decision if it exceeded the board's authority or to grant other
relief as justice and equity may require. Id. Significantly,
§ 87BBB (C) then also states that "[t]he foregoing remedy shall
be exclusive," and further provides that, from the decision of
the Superior Court, "the parties shall have all rights of appeal
and exception as in other equity cases" (emphasis added). Id.
Thus, the statute specific to this particular board, § 87BBB,
unlike the more generic statute applicable to boards of
registration generally, G. L. c. 112, § 64, identifies the
4
Superior Court, not this court, as the forum for judicial
review, and states that this remedy "shall be exclusive."4
The notice given by the board at the end of its written
decision in this case appeared to give the parties two options
for obtaining judicial review of the decision. It informed them
that they could proceed either in the county court, pursuant to
§ 64, or in the Superior Court, pursuant to § 87BBB. That
appears to us to be at odds with the plain language of
§ 87BBB (C), which states that the remedy provided therein shall
be exclusive. We encourage parties in future cases to pursue
their appeals from this particular board in the Superior Court,
pursuant to § 87BBB (C) (see, e.g., Rao v. Board of Registration
of Real Estate Brokers & Salesmen, 13 Mass. App. Ct. 922, 922
[1982]), and we invite the board to consider clarifying its
notice so that it is consistent with the language of § 87BBB
(C), namely that the remedy provided therein "shall be
exclusive."5
Even though we believe that Thomann should have sought
judicial review in the Superior Court under § 87BBB, and not in
the county court directly under § 64, we shall proceed to
consider his appeal. The single justice clearly had the
authority to transfer the matter that was commenced in this
4 Contrast G. L. c. 112, § 84A, which governs decisions of
the Board of Registration in Embalming and Funeral Directing.
That statute, like § 87BBB, also identifies a procedure other
than a petition in the county court under G. L. c. 112, § 64, as
a means of obtaining judicial review. It states that judicial
review may be obtained by filing a petition in the District
Court within ten days of the board's decision. Unlike § 87BBB,
however, § 84A states that the District Court procedure provided
therein "is in the alternative to that provided by [§ 64], and a
decision of the court upon a petition brought under [§ 84A]
shall be final and conclusive" (emphasis added). A party
aggrieved by a decision of the Board of Registration in
Embalming and Funeral Directing thus can proceed in one of two
ways: either in the county court pursuant to § 64, or in the
District Court pursuant to § 84A. See Hamel v. Board of
Registration of Funeral Directors & Embalmers, 449 Mass. 1008,
1009 n.1 (2007).
5 If the Legislature believes that we have misconstrued what
appears to us to be the plain language and purpose of
§ 87BBB (C), it is, of course, free to clarify the statute
accordingly.
5
court to the Superior Court; and, vice versa, had it been
commenced in the Superior Court, as we believe it should have
been, she clearly would have had the authority to transfer it
here. See G. L. c. 211, § 4A. See also Beres v. Board of
Registration of Chiropractors, 459 Mass. 1012, 1013 (2011).6
3. Correctness of the board's decision and sanction. The
single justice reviewed the record before her, including the
pleadings and the administrative record filed by the board, and
affirmed the board's final decision and order. We agree with
the single justice that there was no error in the board's
decision. See Weinberg v. Board of Registration in Med., 443
Mass. 679, 685 (2005) (under G. L. c. 30A, § 14 [7], court
"reviews the decision of the board directly, despite this matter
being brought as an appeal of a decision of the single
justice").
a. Facts. We summarize the facts stated by the hearing
officer, as modified and adopted by the board, reserving other
facts for later discussion.7 We conclude that the findings were
supported by substantial evidence. See Weinberg, 443 Mass. at
685.
Thomann is the sole manager of Boston International Group,
LLC (LLC), a Massachusetts limited liability company. Its
certificate of organization represented publicly that it would
engage in business including "commercial real estate." It does
not have its own real estate broker's license. See G. L.
c. 112, § 87UU; 254 Code Mass. Regs. § 2.00(11) (2013). The
board found that, "[o]n or about January 3, 2013, Boston
6 As stated, actions commenced in the Superior Court in
accordance with § 87BBB (C) must be brought within twenty days
of receipt of notice of the board's decision in order to be
timely, whereas actions commenced in the county court pursuant
to § 64 must be brought within thirty days. Thomann represents
that he received the final decision on September 30, 2016, and
there is nothing to suggest he received any earlier notice.
7 Like the single justice, we decline to consider evidence
that was not before the board. See G. L. c. 112, § 64
(incorporating standards of review provided in G. L. c. 30A,
§ 14 [3]-[7]); G. L. c. 112, § 87BBB (C) (on appeal, reviewing
court shall hear all "pertinent evidence"). See also Doe, Sex
Offender Registry Bd. No. 10800 v. Sex Offender Registry Bd.,
459 Mass. 603, 630 (2011) (judicial review of administrative
agency decision confined to administrative record).
6
International Group, LLC, [doing business as] Boston
International Group, entered into a Marketing Agreement for
Exclusive Right to Sell (the 'Marketing Agreement') real
property located at 167 Revere Beach Parkway in Chelsea,
Massachusetts (the 'Property')." Although the marketing
agreement identified only "Boston International Group" and not
"Boston International Group, LLC," as the "Broker," substantial
evidence supports the board's finding that the LLC was both a
party to the agreement and the entity that was actively engaged
in the real estate brokering activities for the property. See
Duggan v. Board of Registration in Nursing, 456 Mass. 666, 674
(2010). In addition, in August 2013, the LLC (identifying
itself in its complaint as "Boston International Group, LLC[,
doing business as] The Boston International Group, Ltd")
commenced an action in the Superior Court against the other
parties to the marketing agreement, alleging breach of the
agreement and seeking payment of a brokerage commission to the
LLC. The complaint averred:
"5. On January 3, 2013, the Defendants, Nobrega's
Inc. and Robert J. Nobrega, individually and as agent of
the [Nobrega Nominee] Trust, and the Plaintiff, entered
into an Exclusive Right to Sell Agreement (hereinafter 'the
Agreement'), regarding the sale of the Property owned by
the Trustee Defendants located at 167 Revere Beach Parkway,
Chelsea, Massachusetts.
" . . .
"10. Under the Exclusive Right to Sell Agreement, the
Defendants, Nobrega's, Inc. and Robert J. Nobrega,
individually and as Trustee of the Nobrega Nominee Trust
are obligated to pay the Plaintiff a brokerage commission
([six percent]) upon the sale of Defendant's property
during the term of the agreement."
In its answer to a counterclaim filed by the defendants, the LLC
also expressly admitted the allegation that "Boston
International Group, Boston International Group, Ltd., and
Boston International Group, LLC, are not duly licensed as . . .
real estate brokers."8
8 The LLC subsequently amended its complaint to substitute
"Michael Thomann [doing business as] The Boston International
Group" for the LLC as the plaintiff in the action. Nonetheless,
the board was entitled to find, and did so find, based on all
the evidence in the record, including the representations made
7
b. Conducting brokering activities through unlicensed
entity. The gravamen of Thomann's argument is that he performed
all of the brokering activity under his individual real estate
broker's license using his business name, "Boston International
Group," and not through the LLC.9 On the evidence before it,
however, the board was warranted in concluding, as it did, that
Thomann had actually engaged in the business of real estate
brokering through the LLC (which had no license) without first
obtaining a separate license for the LLC, in violation of 254
Code Mass. Regs. §§ 2.00(11) and 3.00(14)(e). That conclusion
was supported by substantial evidence.
The LLC's certificate of organization indicates that
Thomann is its sole manager. The LLC's business was described
in this public filing to include services related to "commercial
real estate" and "any activities directly or indirectly related
thereto."10 Additionally, in a draft fee agreement for the
transaction in this case, Thomann had presented the LLC and
himself to the client as the "Seller's Agent," and outlined the
fee for services due on the sale of property. A notation on the
agreement indicates that it was provided to the client.
Further, when the dispute later arose, the lawsuit was commenced
against the client in the LLC's name demanding payment of a real
estate brokerage fee; in the same action, the LLC acknowledged
that it was not licensed to engage in the real estate business.
The board did not err in concluding that Thomann's conduct --
acting through the unlicensed LLC to broker the sale of the
property -- violated 254 Code Mass. Regs. §§ 2.00(11) and
3.00(14)(e).
in the original complaint, that the LLC was both a party to the
marketing agreement and the entity that served as the broker.
9 A real estate broker may "operat[e] under a business or
trade name (doing business as)," provided notice is given to the
board. 254 Code Mass. Regs. § 3.00(3) (1998). Thomann had in
fact earlier provided notice to the board that he was doing
business as "Boston International Group." The board apparently
never was told, however, and would have had no reason to know,
that Thomann was actually operating through a limited liability
company.
10 In addition, Thomann stated to the board's investigator
that "Boston International Group LLC is registered with MA RE
Board."
8
c. Notice of agency disclosure.11 On appeal, Thomann also
challenges the determination that he violated the agency
disclosure requirements of 254 Code Mass. Regs. § 3.00(13)(a).
That regulation requires real estate brokers to provide
prospective purchasers and sellers of real estate with "a notice
developed and approved by the board which clearly discloses the
relationship of the broker or salesperson with the prospective
purchaser or seller of the real estate . . . at the time of the
first personal meeting between the prospective purchaser or
seller and the broker or salesperson for the purpose of
discussing a specific property" (emphasis added). Id.
In the summary decision ruling, the hearing officer
determined that there was no evidence that Thomann gave the
board-approved agency disclosure notice to the seller of the
property that was the subject of the marketing agreement.
Although Thomann asserted -- without a supporting affidavit or
other evidence -- that he had in fact provided notice, the
sample agency disclosure form he claimed to have provided to his
real estate clients differed in material respects from the form
approved by the board. The hearing officer also found that
Thomann failed to provide the form to the client at the
appropriate time, i.e., in 2013, at the time the LLC entered
into the marketing agreement and undertook to provide broker
services, and that he failed to retain a copy of the form for
the time period required by the regulations. See 254 Code Mass.
Regs. § 3.00(13)(a)(1) (three years from date of notice). There
was substantial evidence in the record to support the finding of
a violation in this respect.12
d. Other claims of error. On appeal, Thomann also raises
assorted other claims. He contends that the board failed to
11 On appeal from the single justice's judgment, Thomann
asserts for the first time that he used the board-approved
disclosure form, and appended a blank copy of the form to his
brief. We decline to reach claims and assertions like this that
were not raised during the administrative proceedings or before
the single justice. See Weinberg v. Board of Registration in
Med., 443 Mass. 679, 688 (2005).
12 Although the board's final decision and order does not
contain express findings concerning the hearing officer's
summary ruling, it references the summary ruling, and it adopts
the tentative decision (with certain modifications), which in
turn referenced both the regulatory violations and the
supporting summary ruling.
9
reasonably accommodate his alleged disability, and otherwise
violated his right to due process. He also claims that he was
denied the assistance of legal counsel. While we do not address
each of his claims specifically, we have reviewed each of them
and find them without merit. With respect to the right to
counsel, the record indicates that Thomann was in fact
represented by multiple attorneys during the course of the
administrative proceedings, and that he discharged his attorney
after objections to the tentative decision had been filed. The
record also demonstrates that Thomann was given multiple
extensions of time to file materials at various stages of the
proceedings. With respect to his claim of disability, there is
nothing in the administrative record to suggest that Thomann
requested or was denied any reasonable accommodation by the
board, or that he substantiated any such claim. In sum, the
record amply supports the conclusion that the proceedings before
the board comported with due process requirements. See, e.g.,
Langlitz v. Board of Registration of Chiropractors, 396 Mass.
374, 377 (1985).
4. Sanction. Once statutory or regulatory violations have
been established, the administrative agency has discretion in
determining the appropriate sanction. See G. L. c. 112, §§ 61,
65A. On appeal, we consider only whether the sanction imposed
was a reasonable exercise of that discretion. See Sugarman v.
Board of Registration in Med., 422 Mass. 338, 347-348 (1996).
See also Vaspourakan, Ltd. v. Alcoholic Beverages Control
Comm'n, 401 Mass. 347, 355 (1987). A reviewing court will not
interfere with the agency's imposition of a penalty except in
the most extraordinary circumstances. Id. No such
circumstances are present here.
In this case, we conclude that the board reasonably
exercised its discretion when it sanctioned Thomann. The $1,200
civil administrative penalty was within the range permitted by
statute. See G. L. c. 112, § 61; G. L. c. 112, § 65A. "Given
that the range of penalties is for the agency, the fact that the
[board] imposed more lenient penalties for similar violations in
the past does not render the sanctions against [Thomann]
arbitrary or capricious." BAA Mass., Inc. v. Alcoholic
Beverages Control Comm'n, 49 Mass. App. Ct. 839, 849 (2000).
The ten-day suspension given to Thomann is actually less than
the period imposed by the board for similar violations in other
cases, and is reasonable in the circumstances of this case.
With respect to the requirement that Thomann either obtain a
real estate brokering license for the LLC or certify that the
LLC has been dissolved, we conclude that that requirement is
10
also reasonable, particularly in light of the business purposes
articulated in the LLC's certificate of organization.
5. Conclusion. For all of these reasons, we agree with
the single justice that the board's decision suspending
Thomann's license for ten days, imposing a $1,200 civil penalty,
and imposing certain conditions on the reinstatement of his
license was supported by substantial evidence and free from any
errors of law.
Judgment affirmed.
The case was submitted on briefs.
Michael Thomann, pro se.
Maura Healey, Attorney General, & Kimberly A. Parr,
Assistant Attorney General, for Board of Registration of Real
Estate Brokers and Salesmen.
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20 Ill. App.3d 1036 (1974)
313 N.E.2d 287
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MIKE SHEPPARD, Defendant-Appellant.
No. 11787.
Illinois Appellate Court Fourth District.
June 20, 1974.
*1037 John F. McNichols and J. Daniel Stewart, both of the State Appellate Defender's Office, of Springfield, for appellant.
C. Joseph Cavanagh, State's Attorney, of Springfield (Hugh H. Rowden, Assistant State's Attorney, of counsel), for the People.
Judgment modified and affirmed.
Mr. PRESIDING JUSTICE TRAPP delivered the opinion of the court:
Defendant was convicted of battery at a bench trial. Sentence of 2 years' probation was imposed with the provision that 90 days be served at the State penal farm at Vandalia. Defendant's bond was continued and sentence stayed pending appeal.
On appeal it is urged that defendant was not proven guilty beyond a reasonable doubt, that the trial court erroneously accepted counsel's jury waiver by failing to admonish the defendant of his right to jury trial, and that the sentence does not conform with the Unified Code of Corrections.
1, 2 This conviction arises from an incident that occurred outside the Warehouse nightclub in Springfield early on the morning of November 26, 1970. Defendant and two companions left the nightclub when the bartender asked them to leave because of their arguing. At this point, the testimony becomes conflicting. A fight developed which defendant described as a "huge fracas." Defendant was involved in part of the fight described as "confusing," during which he was knocked to the ground several times and he kicked in the nose one Bill Sales, who was not the victim of the battery charged in the indictment. The complaining witness, Robert Finneran, testified that defendant kicked him in the head. Finneran was rather severely injured during the course of the brawl. The complaining witness testified that defendant visited him at the hospital and stated, "We didn't mean to beat you up that bad." The testimony was corroborated by two other witnesses. Defendant's version of this conversation is that he told Finneran only that he was sorry that someone was hurt in the incident, and that the defendant was "the original reason that the whole thing developed." On the basis of the trial court's finding that there was a reasonable doubt as to whether defendant actually kicked Finneran, the trial court found the defendant not guilty of aggravated battery as charged. Relying largely on defendant's admission that he was involved in the beating, and the facts that Finneran was injured, defendant was fighting and he attempted to flee the scene, defendant was found guilty of battery. Where the trial court sitting as the trier of facts enters a finding of guilty, it will not be disturbed on review unless the evidence is so unreasonable, improbable or unsatisfactory *1038 as to leave a reasonable doubt as to defendant's guilt. (People v. Curry, 56 Ill.2d 162, 174, 306 N.E.2d 292.) In light of defendant's admission to participation in the beating, which the trial court believed, and his admitted participation in a fight described as confusion, the trial court's finding of guilty is not so unreasonable, improbable or unsatisfactory that this court will disturb that finding on review.
3 It is urged that the trial court improperly accepted a waiver of jury trial by defendant's counsel. At the arraignment, defendant was informed of and clearly demonstrated that he understood that he had a right to a trial by jury. The record also shows that defendant was present and made no comment when his counsel made a motion to withdraw his jury demand and to proceed with a bench trial. Under these circumstances, the defendant is deemed to have acquiesced in and be bound by counsel's waiver. (People v. Sailor, 43 Ill.2d 256, 260, 253 N.E.2d 397.) Further, the defendant's failure to raise the alleged impropriety of his jury waiver in his post-trial motion constitutes a waiver of that issue. People v. Curry, 56 Ill.2d 162, 170, 306 N.E.2d 292; People v. Pickett, 54 Ill.2d 280, 282, 296 N.E.2d 856.
4 Finally, defendant contends that the trial court abused its discretion by imposing 90 days of imprisonment as a condition to his probation, and that further, under the new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-3(d) and par. 1008-2-4), as his appeal was still pending on the effective date of the Unified Code of Corrections (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269), the term of imprisonment should be deleted from his sentence of probation.
The Unified Code of Corrections, section 5-6-3(d) (Ill. Rev. Stat. 1973, ch. 38, par. 1005-6-3(d)), effective January 1, 1973, provided that the trial court shall not require a period of imprisonment as a condition of probation. In People v. Grant (1974), 57 Ill.2d 264, 312 N.E.2d 276, and People v. Mahle (1974), 57 Ill.2d 279, 312 N.E.2d 267, it was determined that the statutory provision on such effective date controlled as to those cases pending on appeal, that defendant was entitled to the benefit of the provision of the Code on such effective date and that such entitlement was not affected by the subsequent amendment of the Code of Corrections effective November 14, 1973, permitting imprisonment not to exceed 6 months as a condition of probation.
That portion of the sentence which provides imprisonment for 90 days is vacated and as so modified, the judgment below is affirmed.
Judgment modified and affirmed.
CRAVEN and SIMKINS, JJ., concur.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 19, 2008
No. 07-30713
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
NOAH MOORE
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:03-CR-282-1
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Noah Moore, federal prisoner # 24804-013, appeals the denial of his FED.
R. CRIM. P. 33 motion for a new trial. He argues that the Government failed to
disclose a tacit agreement with a testifying witness, entitling him to a new trial
pursuant to Brady v. Maryland, 373 U.S. 83 (1963).
Nondisclosure of evidence affecting the credibility of a witness whose
reliability may be determinative of guilt violates Brady. United States v.
*
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.
No. 07-30713
Edwards, 442 F.3d 258, 264 (5th Cir. 2006). There is no record evidence,
however, of a tacit promise made by the Government promising the witness
leniency in exchange for his testimony. Consequently, Moore has not shown the
existence of suppressible evidence, see id. at 266-67; United States v. Nixon, 881
F.2d 1305, 1311 (5th Cir. 1989), and, as such, has not shown an abuse of
discretion on the part of the district court in denying his motion for a new trial.
See United States v. Infante, 404 F.3d 376, 387 (5th Cir. 2005).
AFFIRMED.
2
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884 N.E.2d 423 (2008)
Nicole A. SCHAFFER, Appellant-Respondent,
v.
Robert J. SCHAFFER, Appellee-Petitioner.
No. 22A04-0709-CV-513.
Court of Appeals of Indiana.
April 23, 2008.
*424 Joseph P. Weber, Mickey K. Weber, Jeffersonville, IN, Attorneys for Appellant.
Richard R. Fox, Steven A. Gustafson, New Albany, IN, Attorneys for Appellee.
OPINION
VAIDIK, Judge.
Case Summary
Nicole A. Schaffer appeals the trial court's denial of her request to terminate third party stepparent Robert J. Schaffer's visitation rights with her daughter, M.S. Specifically, Nicole argues that the trial court's denial violated her due process rights because the court failed to apply a parental presumption favoring her decisions regarding the care, custody, and control of M.S. Finding that this parental presumption applies to initial visitation proceedings but that Nicole did not appeal the order establishing visitation between Robert and M.S., we conclude that the parental presumption does not apply to the modification of visitation. As such, because Nicole has failed to prove that it is in the best interests of M.S. to terminate visitation with Robert, we affirm the judgment of the trial court.
Facts and Procedural History
In February 2000, Robert and Nicole married. On April 26, 2001, Nicole gave birth to M.S. Although Robert is not M.S.'s biological father and he was aware from the time Nicole was pregnant with M.S. that he was not her biological father, he was listed as M.S.'s father on her birth certificate. Robert also cared and provided for M.S. for the first two and one-half year of her life. Robert and Nicole separated in November 2003. Upon separation, Robert stopped living in the same household as Nicole and M.S. In July 2004, Robert filed a petition for dissolution of marriage. Robert exercised visitation with M.S. throughout the dissolution proceedings. The parties' marriage was dissolved in May 2006. Upon dissolution, Nicole was awarded sole custody of M.S. and Robert was awarded visitation because of his custodial relationship with M.S. during those two and one-half years and because *425 visitation was in M.S.'s best interests. See Appellant's App. p. 6 (Finding No. 11). Specifically, Robert "was granted visitation one weekend per month from Noon on Saturday until 6:00 p.m. on Sunday, one weeknight every other week from 5:30 p.m. until 7:30 p.m. ... and one week during the summer." Id. at 7 (Finding No. 12). No appeal was taken from this 2006 order of visitation.
On February 21, 2007, when M.S. was almost six years old, DNA testing confirmed that Charles Moon is M.S.'s biological father. Pursuant to the Indiana Parenting Time Guidelines, Moon was awarded parenting time and ordered to pay support in accordance with the Indiana Child Support Guidelines.
Although Robert and Moon both exercised their respective parenting time, issues developed between Robert and Nicole concerning the scheduling of Robert's visitation. As a result, on January 9, 2007, Robert filed a petition to modify visitation. He included a proposed visitation schedule for the calendar year of 2007 and asked for reasonable telephone visitation with M.S. Nicole filed a response in which she requested that the court terminate Robert's visitation rights because he is not M.S.'s biological father. Thereafter, the trial court held a hearing. On July 17, 2007, the trial court entered findings of fact and conclusions of law reducing Robert's visitation and denying Nicole's request for termination of those rights. Nicole now appeals from the trial court's order denying her request to terminate Robert's visitation rights.
Discussion and Decision
Nicole contends that the trial court erred by denying her request to terminate Robert's visitation rights. In doing so, the trial court entered findings of fact and conclusions of law pursuant to Indiana Trial Rule 52. Thus, we must determine whether the evidence supports the findings and whether the findings support the judgment. Staresnick v. Staresnick, 830 N.E.2d 127, 131 (Ind.Ct.App.2005), reh'g denied. The findings and conclusions will be set aside only if they are clearly erroneous, that is, if the record contains no facts or inferences supporting them. Id. A judgment is clearly erroneous when the trial court applies the wrong legal standard to properly found facts. Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005).
Specifically, Nicole argues that the trial court violated her fundamental right as set forth in Troxel v. Granville to make decisions concerning the care, custody, and control of her child. 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children."). Nicole maintains that she should have been afforded a parental presumption that her decisions concerning third party visitation with M.S. are in M.S.'s best interests and should be accorded special weight. Nicole acknowledges that Indiana case law has allowed third party visitation to be awarded to an unrelated adult who was once a child's stepparent, see Nunn v. Nunn, 791 N.E.2d 779 (Ind.Ct.App.2003); Francis v. Francis, 654 N.E.2d 4 (Ind.Ct.App.1995), trans. denied; In re the Custody of Banning, 541 N.E.2d 283 (Ind.Ct.App.1989); Tinsley v. Plummer, 519 N.E.2d 752 (Ind.Ct.App.1988), but relies on grandparent visitation cases to support her general argument that "a step-parent should be held to at least the standard imposed upon grandparents seeking visitation." Appellant's Br. p. 10. In furtherance of this general belief, Nicole maintains that in a case such as this where
*426 there is no familial relationship to protect, no absent or deceased parent in whose shoes the step-parent might stand, no threat of harm or finding that the child's natural parent is unfit, an even sterner rule is appropriate to protect the constitutional interests of the parent. In such a situation, where there is no competing interest commensurate to the liberty interest of the natural parent, third-party visitation should be held to be a per se violation of the parent's constitutional right to rear her child and make decisions concerning the care, custody, and control of her child.
Id. at 10. Understanding Nicole's position requires saying a few words about Troxel and its progeny.
In Troxel, the United States Supreme Court reiterated the age-old principle that the Due Process Clause of the Fourteenth Amendment to the United States Constitution protects "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel, 530 U.S. at 66, 120 S.Ct. 2054. The Court noted the extensive case precedent establishing this right and stated that it "is perhaps the oldest of the fundamental liberty interests recognized by this Court." Id. at 65, 120 S.Ct. 2054. The Supreme Court ultimately held that the Washington grandparent visitation statute, as applied to Granville, unconstitutionally infringed on this fundamental parental right. The Court further noted that there is a "presumption that fit parents act in the best interests of their children" and that "[t]he problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughter's best interests." Id. at 68-69, 120 S.Ct. 2054. Therefore, the Court determined that
[t]he decisional framework employed by the Superior Court directly contravened the traditional presumption that a fit parent will act in the best interest of his or her child. In that respect, the court's presumption failed to provide any protection for Granville's fundamental constitutional right to make decisions concerning the rearing of her own daughters. In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.
Id. at 69-70, 120 S.Ct. 2054 (citations omitted).
Subsequent to Troxel, this court ruled on the constitutionality of Indiana's Grandparent Visitation Statute.[1] In Crafton v. Gibson, this Court, applying Troxel, held that Indiana's Grandparent Visitation Statute was not unconstitutional on its face. 752 N.E.2d 78, 98 (Ind.Ct.App.2001). Crafton additionally discussed certain factors courts must take into consideration when determining a child's best interests under the Grandparent Visitation Statute. Id. at 96-97. First, courts must "presume that a fit parent's decision is in the best interest of the child." Id. at 96. Acting *427 under this presumption, courts must accord special weight to a parent's decision to deny or limit visitation. Id. at 96-97. Finally, a court should give some weight to the fact that a parent has previously agreed to some visitation. Id. at 97.
Thereafter, as a result of Troxel and Crafton, this Court, in McCune v. Frey, 783 N.E.2d 752 (Ind.Ct.App.2003), established certain substantive requirements for trial courts to consider when issuing findings and conclusions in grandparent visitation cases. These requirements include
1) the presumption that a fit parent acts in his or her child's best interests; 2) the special weight that must be given to a fit parent's decision to deny or limit visitation; 3) whether the grandparent has established that visitation is in the child's best interests; and 4) whether the parent has denied visitation or has simply limited visitation.
Id. at 757; see also Ramsey v. Ramsey, 863 N.E.2d 1232, 1238 (Ind.Ct.App.2007); Megyese v. Woods, 808 N.E.2d 1208, 1216 (Ind.Ct.App.2004); Spaulding v. Williams, 793 N.E.2d 252, 257 (Ind.Ct.App.2003).
Although the cases above involve initial grandparent visitation proceedings, Nicole asks us to extend them to stepparent visitation proceedings. We agree with Nicole that the same parental presumption and special weight accorded to parents in an initial grandparent visitation proceeding should be extended to parents in an initial third party stepparent visitation proceeding. We see no reason why a stepparent should not be held to the same standard as a blood relative, such as a grandparent, in an initial visitation determination. However, in this case we are not asked to address an initial stepparent visitation order. Pursuant to the May 2006 divorce decree, Robert was granted visitation rights with M.S., and Nicole simply did not appeal that order. As such, Nicole cannot now allege error based on the trial court's failure to apply Troxel and its progeny to that stage of these proceedings. Instead, we are asked to address the trial court's denial of Nicole's request to terminate Robert's third party stepparent visitation rights.
This Court addressed a third party stepparent visitation issue in Francis, 654 N.E.2d 4. In that case, Robert and Anita Francis were married for ten years. During the marriage, Anita bore two children. Robert and Anita both cared for the children. It was later discovered that Anita was having a long-term affair with William Carothers. Robert and Anita dissolved their marriage. As part of the dissolution, blood tests were performed that conclusively determined that Carothers fathered the two children. Pursuant to the best interests of the children, the trial court awarded Anita custody of the children and granted Robert liberal visitation. Soon thereafter, Anita and Carothers married, and Carothers began to have difficulties accepting Robert's visitation, "feeling it created discipline and behavioral problems for the children." Id. at 5. As a result, Anita and Carothers reduced Robert's visitation. In response, Robert petitioned the trial court to enforce the initial visitation order. Anita responded by filing a motion requesting modification of Robert's visitation. At the conclusion of the trial, the trial court expanded Robert's visitation, finding this to be in the children's best interests.
On appeal, Anita argued "that the trial court erred in failing to reduce Robert's visitation and instead expanding that visitation." Id. at 6-7. She asserted "that the interest she and [Carothers] have in avoiding extra-familial distractions outweighs Robert's interest in visitation." Id. at 7. In disposing of this matter, we first held that to adequately establish grounds *428 for visitation, a third party must show the existence of a custodial and parental relationship and that visitation would be in the best interests of the children. Id. We additionally held that "[a] parent's mere protest that visitation with the third party would somehow harm the family is not enough to deny visitation in all cases, particularly where the third party cared for the children as his own." Id. While acknowledging that parents have primary custody rights over their children, we noted that this right "`is not akin to a property right, but is more in the nature of a trust which may be subject to the well-being of the child as perceived by the courts of this state.'" Id. (quoting Collins v. Gilbreath, 403 N.E.2d 921, 923 (Ind.Ct. App.1980)). As such, we concluded that the trial court did not err by expanding Robert's visitation rights because the two children lived with Robert as their father for ten and six years, respectively, and therefore significant contact with Robert was in the children's best interests. Id.
Although Francis involved modification of visitation, it set forth the standard for establishing visitation, that is, the existence of a custodial and parental relationship and that visitation would be in the best interests of the children. Id. However, where, as here, the issue is merely modifying visitationwhether increasing, decreasing, or terminating it altogether the only relevant inquiry is the best interests of the child. This is because the existence of a custodial and parental relationship was already established when the third party was initially awarded visitation. The party requesting the modification or termination of visitation bears the burden of proof. See Arms v. Arms, 803 N.E.2d 1201, 1212 (Ind.Ct.App.2004). Here, Nicole asked the trial court to terminate Robert's visitation rights, so she bore the burden of proof.
In denying Nicole's request to terminate visitation, the trial court's order provided:
FINDINGS OF FACT
* * * * *
20. It is uncontroverted that [Robert] for all intents and purposes was [M.S.'s] father from the time of her birth until the parties' divorce.
21. It is uncontroverted [Robert] and [M.S.] care about each other.
* * * * *
27. [Nicole] contends that it is not in [M.S.'s] best interests to continue visitation with [Robert] and that [Robert's] visitation should be terminated. She believes that continuing visitation:
a.) interferes with [M.S.] building a father-daughter relationship with Mr. Moon.
b.) will cause confusion about the nature of [M.S.'s] relationship with Mr. Moon.
c.) will make [M.S.'s] home life less stable due to dividing time between three (3) households.
d.) will interfere with parental decisions about her upbringing.
e.) will interfere with her participation in educational, extracurricular and recreational activities.
f.) creates a strain on [M.S.'s] relationship with her mother and will deprive [Nicole] of her parenting time with [M.S.].
28. It is undisputed that [Robert] is not unfit to care for [M.S.] and, in fact, cared for [M.S.] from her birth until the parties' separation.
29. No testimony from a child Psychologist, licensed clinical Social Worker, Counselor or therapist substantiating *429 [Nicole's] concerns and contentions was presented by [Nicole].
30. No evidence was presented that continuing visitation by [Robert] would endanger [M.S.'s] physical health or significantly impair her emotional development.
* * * * *
CONCLUSIONS OF LAW
1. Based on the fact that Mr. Moon has now been determined to be [M.S.'s] biological father and is exercising parenting time with her under the parenting time guidelines, [Nicole] has established by a preponderance of the evidence that a modification of [Robert's] visitation with [M.S.] is in her best interests so that the father-daughter relationship can be fully developed.
2. [Robert's] visitation rights should also be modified based on the following facts: as custodial parent of [M.S.] [Nicole's] parenting should not be significantly diminished just to accommodate [Robert's] visitation rights; [Nicole's] custodial authority over [M.S.] should not be interfered with just to accommodate [Robert's] visitation rights, and [Nicole's] impending marriage and the development of a step-father/step-daughter relationship nor the operation of [Nicole's] household should be diminished just to accommodate [Robert's] visitation rights.
3. [Nicole] has not proved by a preponderance of the evidence that termination of [Robert's] visitation with [M.S.] is in her best interests. [Robert] has previously established a custodial and parental relationship with [M.S.]. Also, this Court has previously found that visitation by [M.S.] with [Robert] is in her best interests. The evidence presented by [Nicole] was speculative and insufficient to support termination of [Robert's] visitation rights.
Appellant's App. p. 9, 11-12.
As recognized by the trial court, Nicole did not introduce any evidence from a child psychologist, licensed clinical social worker, counselor, or therapist to substantiate her assertion that terminating Robert's visitation was in the best interests of M.S. In addition, it is undisputed that Robert is not unfit, and Nicole did not introduce any evidence that Robert would endanger M.S. "A parent's mere protest that visitation with the third party would somehow harm the family is not enough to deny visitation in all cases, particularly where the third party cared for the children as his own." Francis, 654 N.E.2d at 7. Accordingly, the trial court's determination that it is not in M.S.'s best interests to terminate Robert's visitation is not clearly erroneous.
Affirmed.
SHARPNACK, J., and BARNES, J., concur.
NOTES
[1] Before Troxel was decided, this Court determined that Indiana's Grandparent Visitation Statute did not violate a parent's fundamental right to control the upbringing of his or her child. See Sightes v. Barker, 684 N.E.2d 224 (Ind.Ct.App.1997) (stating that the statute passed both rational basis review and strict scrutiny), trans. denied.
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State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: May 21, 2015 106512
________________________________
THE PEOPLE OF THE STATE OF
NEW YORK,
Respondent,
v MEMORANDUM AND ORDER
JACQUELINE SMALLS,
Appellant.
________________________________
Calendar Date: March 31, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ.
__________
Keeley A. Maloney, Albany, for appellant, and appellant pro
se.
Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (Coccoma, J.),
rendered December 9, 2013 in Schenectady County, convicting
defendant upon her plea of guilty of the crime of manslaughter in
the first degree.
Following the stabbing death of her boyfriend, defendant
was indicted and charged with murder in the second degree and
menacing in the second degree. In full satisfaction of those
charges, defendant thereafter pleaded guilty to manslaughter in
the first degree and waived her right to appeal. Supreme Court
subsequently imposed the agreed-upon sentence of 15 years in
prison followed by a period of postrelease supervision that was
consistent with the terms of the plea agreement. Defendant now
appeals.
-2- 106512
We affirm. Defendant primarily contends that she should
have received an indeterminate sentence pursuant to Penal Law
§ 60.12. This statute permits a sentencing court otherwise
required to impose a determinate sentence under Penal Law § 70.02
to impose an indeterminate sentence if, following a hearing, the
court concludes that "(a) the defendant was the victim of
physical, sexual or psychological abuse by the victim or intended
victim of such offense, (b) such abuse was a factor in causing
the defendant to commit such offense and (c) the victim or
intended victim of such offense was a member of the same family
or household as the defendant" (Penal Law § 60.12 [1]). To the
extent that defendant's argument in this regard may be construed
as a challenge to the severity of her sentence, such claim is
precluded by her valid and uncontested waiver of the right to
appeal (see People v White, 119 AD3d 1286, 1287 [2014], lv denied
24 NY3d 1222 [2015]; People v Munger, 117 AD3d 1343, 1343 [2014],
lv denied 23 NY3d 1040 [2014]). Assuming, without deciding, that
this particular argument survives defendant's waiver of the right
to appeal, a review of the record reveals that defendant failed
to seek such relief from Supreme Court and, therefore, this issue
has not been preserved for our review (see CPL 470.05 [2]).
There indeed are instances where the sentencing court is
under an affirmative – and statutorily imposed – obligation to
consider whether a criminal defendant is eligible for alternative
sentencing treatment (see e.g. CPL 720.20 [1]) and, in such
cases, the statutory requirement cannot be dispensed with – even
if the defendant fails to request and/or purports to waive such
treatment (see e.g. People v Rudolph, 21 NY3d 497, 499-501
[2013]). To our analysis, however, Penal Law § 60.21 imposes no
such affirmative requirement. Rather, the statute vests the
sentencing court with the discretion to impose an indeterminate
sentence if, following a hearing, certain enumerated criteria are
met. Here, defendant failed to seek such relief from Supreme
Court, agreeing instead to plead guilty with the understanding
that she would receive a determinate sentence of 15 years in
prison – a sentence that she readily concedes is legal. Under
these circumstances, defendant's failure to request that Supreme
Court consider imposing an alternative sentence under Penal Law
§ 60.12 is fatal to her claim, and we discern no basis upon which
to take corrective action in the interest of justice. Finally,
-3- 106512
to the extent that defendant's pro se brief may be read as
challenging the legal sufficiency of the evidence underlying the
indictment, this issue was forfeited by virtue of defendant's
guilty plea (see People v Cole, 118 AD3d 1098, 1099-1100 [2014];
People v Caban, 89 AD3d 1321, 1322 [2011]).
Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.
ORDERED that the judgment is affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court
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10 P.3d 1271 (2000)
L.L., Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent,
In the Interest of R.W. and T.W, and
R.B. and B.S., Interested Parties Below.
No. 99SC799.
Supreme Court of Colorado, En Banc.
September 18, 2000.
*1273 Davide C. Migliaccio, Colorado Springs, Colorado, Attorney for Petitioner.
Michael A. Lucas, office of the El Paso County Attorney, Johnny Bohnen, El Paso County Department of Human Services,, Colorado Springs, Colorado Attorneys for Respondent.
*1272 Justice RICE delivered the Opinion of the Court.
This court granted certiorari to address whether the court of appeals erred when it affirmed the trial court and held that a parent's due process rights are not violated when the majority of her parental rights, including the right to custody and visitation, are suspended until her children are eighteen years of age, pursuant to findings of fact made under a preponderance of the evidence standard. People in Interest of R.W. and T.W., 989 P.2d 240 (Colo.App.1999)(Criswell, J., dissenting)(hereinafter R.W. and T.W.). We affirm the court of appeals and hold that Petitioner's due process rights were not violated when the trial court significantly limited her parental rights in a guardianship hearing based on findings of fact under a preponderance of the evidence standard.
I. Facts and Procedural History
In 1994, Petitioner was convicted of a drug-related offense and sentenced to a brief period of incarceration. The El Paso County Department of Human Services ("DHS") issued a Notice of Temporary Custody Hearing and on February 2, 1994, the district court placed Petitioner's two children, R.W. and T.W., in the temporary custody of their maternal grandmother ("Grandmother"). The father of both children ("Father") was incarcerated at the time. R.W. was nine years old and T.W. was four.
Upon release from prison, Petitioner sought to end the temporary custody arrangement and DHS recommended that the custody of the children be returned to Petitioner. On January 30, 1995, the court ordered temporary custody to be shared by both Petitioner and Grandmother.
In February 1995, DHS filed a petition in dependency and neglect based on a belief that neither Petitioner nor Grandmother was adequately caring for the children. At a hearing on the petition, DHS presented evidence that Grandmother allegedly permitted Petitioner to take the children to her home while she was under the influence of various illegal drugs. The district court placed the children in the legal and physical custody of DHS, granting Petitioner and Grandmother supervised visitation only.
On April 19, 1995, the court placed custody of the children with Grandmother, with DHS exercising protective supervision. On June 22, 1995, the court revoked Grandmother's custody due to her failure to follow court orders, and the children were again placed in the legal and physical custody of DHS. The court ordered that the children be placed in foster care, granted Petitioner and Grandmother supervised visitation, and ordered Petitioner and Grandmother to refrain from disparaging each other or the foster parents to the children, and to refrain from discussing court proceedings with the children. On August 24, 1995, the court adjudicated the *1274 children dependent and neglected, adopted a proposed treatment plan, and continued custody of the children with DHS.
On September 10, 1996, DHS petitioned the court to grant permanent guardianship of the children to the foster parents. The court scheduled the permanency planning and guardianship hearings for October 4, 1996, but continued the hearings several times at the request of Petitioner, Father, and Grandmother.
On April 28, 1997, the court held a permanency planning hearing, determined that there was no substantial probability that the children could be returned to Petitioner within six months, and continued foster care placement.
On December 16, 1997, DHS filed a motion to terminate the parent-child legal relationship of Petitioner and Father. See § 19-3-602, 6 C.R.S. (1999). On February 18, 1998, the court ordered mediation, but the parties could not reach a resolution. However, DHS subsequently decided to seek only permanent guardianship of the children, rather than termination of the parent-child legal relationship.
On March 4, 1998, the court held a hearing on permanent guardianship. Father consented to permanent guardianship being placed in the foster parents, with no visitation rights, but Petitioner opposed both the entry of permanent guardianship and the proposed no contact order. The court found that the children needed ongoing treatment, that they were being harmed by the continued contact with Petitioner and Grandmother, that theyneeded stability and permanency, and that it was in the children's best interests to be placed in the permanent guardianship of the foster parents. Accordingly, the court ordered:
That custody of the subject children shall continue with [DHS];
That the foster parents are hereby appointed as permanent legal guardians of the subject children;
That as permanent guardians, said custodians have:
a) The authority to consent to marriage, to enlistment in the armed forces and to medical and surgical treatment;
b) The authority to represent the children in legal actions and to make other decisions of substantial significance concerning said children;
c) The rights and responsibility [sic] of legal and physical custody when such custody has not been vested in another person, agency, or institution;
That [Respondent] and [Grandmother] are to have no contact with the subject children;
That there shall be one termination visit between said parties and the subject children;
. . . .
That this matter is continued to June 5, 1998, for written review; [and]
That the Court shall retain jurisdiction herein as provided by law. . . .
(R. at 454-56).
Petitioner appealed to the court of appeals, asserting that the trial court violated her due process rights when it ordered the functional equivalent of a termination of her parental rights without applying the "clear and convincing evidence" standard of proof. The court of appeals affirmed the district court order. In a divided panel, the court found that the district court order did not act as the functional equivalent of a termination of Petitioner's parental rights.[1]R.W. and T.W., 989 P.2d at 244. The majority stated that Petitioner still retains various rights, including the right to consent or withhold consent to the children's adoption, the right to determine the children's religious affiliation, the right to reasonable parenting time, except as restricted by a court,[2] and the right to seek a modification of the disposition in order to regain custody and increase parenting time. Id. The court of appeals concluded that the district court order "reflects a careful *1275 consideration of the children's present needs while leaving open the possibility of the mother's increased involvement with the children in the future." Id. The dissent disagreed with the majority opinion, arguing that the effect of the district order was "so restrictive of [Petitioner's] parental rights that it cannot pass constitutional muster unless it is premised on facts proved under an enhanced standard." Id. at 245.
Petitioner filed a petition for a writ of certiorari, arguing that the district court violated her due process rights when it drastically restricted her parental rights based on findings obtained under a preponderance of the evidence standard. We granted certiorari to address whether the trial court's order deprived Petitioner of due process by drastically restricting her parental rights based on findings obtained under a preponderance of the evidence standard.
II. Dependency and Neglect Proceedings
Article 3 of the Colorado Children's Code, titled "Dependency and Neglect," provides specific provisions whereby the state can intercede to protect the health, safety, and welfare of minors from abuse, neglect, or abandonment. In particular, Article 3 governs child abuse and neglect proceedings, temporary custody and shelter of minors, and termination of the parent-child legal relationship. See § 19-3-100.5 to 703, 6 C.R.S. (1999). The Article states in its legislative declaration that "the stability and preservation of the families of this state and the safety and protection of children are matters of statewide concern," and to that end, that the state shall "make a commitment to make `reasonable efforts' to prevent the placement of abused and neglected children out of the home and to reunify the family whenever appropriate." § 19-3-100.5(1). To that end, the Children's Code encompasses a number of procedures aimed at protecting children from emotional and physical harm while at the same time seeking to repair and maintain family ties.
Often, the process begins with a report of abuse or neglect.[3] The state may file a petition alleging that a child is dependent or neglected under section 19-3-501.[4] An adjudicatory hearing is then held, where the state must establish by a preponderance of the evidence that a child is dependent or neglected. See § 19-3-505(1). Once the court determines a child is dependent or neglected, the court has the authority to order a variety of dispositions, including: placement of legal custody in the parents or guardian, with or without protective supervision; placement of legal custody in a relative, with or without protective supervision; placement of legal custody in the county department of social services, a foster home, or other child care facility; and mental and physical examinations of a child. See § 19-3-508. In addition, the court must approve a treatment plan that seeks to resolve family difficulties and preserve the family unit. See § 19-3-508(1)(e)(I). However, when a court determines that the goal of maintaining the family unit is not feasible, for any of the reasons listed in section 19-3-604, the court may order termination of the parent-child relationship after the filing of a motion for termination.[5]
III. Constitutional Significance
The United States Supreme Court has recognized that parents possess a right to the "companionship, care, custody, and management" of their children, Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), and a fundamental right to maintain family relationships free from governmental interference. See generally id. Very recently, the Court reiterated this position, noting that "the interest of parents in *1276 the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court." Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). As such, the government must meet certain due process and equal protection standards before these constitutional rights can be extinguished. Logically, the greater the deprivation, the greater the procedural protection provided to parents.
When a permanent termination of parental rights is sought, a parent's rights must be protected "with fundamentally fair procedures." Santosky v. Kramer, 455 U.S. 745, 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). Applying the three-prong test articulated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court concluded that due process mandated a higher standard of proof than a preponderance of the evidence standard when parental rights were being permanently terminated. In holding that the minimum standard of proof required in a parental rights termination proceeding is clear and convincing evidence, the Court stated that the private interest affected is commanding, the risk of error from using a preponderance of the evidence standard is substantial, and the countervailing governmental interest favoring that standard is comparatively slight. See Santosky, 455 U.S. at 758, 769-70, 102 S.Ct. 1388. The court noted that the standard of proof necessary turns in large part on both the nature of the threatened private interest and the permanency of the threatened loss. See id. at 758, 102 S.Ct. 1388.
This court, in the same year, applied the Santosky standard to termination proceedings in Colorado. See People in Interest of A.M.D., 648 P.2d 625 (Colo.1982). We held that the clear and convincing evidence standard mandated by Santosky was adequate to protect the rights of the natural parent in termination proceedings.[6]See id. at 635.
In addition, this court addressed the issue of whether the preponderance of the evidence standard that applies during a dependency or neglect proceeding was sufficient to protect a parent's due process rights even though an adverse finding in that hearing could be the basis of a subsequent termination of parental rights. See § 19-3-604(1)(b). After applying the three-prong test of Mathews, we concluded that this standard was appropriate and constitutional. The court noted that the governmental interests reflected in the Children's Code are more extensive and weighty than those present in the Santosky case. In particular, we noted that prior to filing a petition in dependency or neglect, the state has limited authority to take action to protect a child. See A.M.D. 648 P.2d at 639. In addition, the court pointed out that a dependency or neglect proceeding is remedial in nature and the purpose is to preserve the family unit and assist parents and children in establishing a healthy relationship and home environment. See id. at 640. The court stated, "[w]hen a dependency or neglect proceeding is viewed in light of its primary purpose as helpful and remedial in preserving and mending familial ties the importance of permitting State intervention on a standard of proof lower than clear and convincing becomes evident." Id. Accordingly, we held that while a standard of clear and convincing evidence is constitutionally mandated in a proceeding for terminating the parent-child relationship, a standard of a preponderance of the evidence is sufficient for dependency and neglect proceedings. See id. at 641.
IV. Application
Petitioner raises the question of what standard of proof is required by due process when a parent is deprived of significant parental rights that do not amount to a permanent termination of the parent-child relationship. Petitioner asserts that the district court order, which granted custody of her children to DHS, appointed the foster parents as "permanent" legal guardians, and ordered that she have no contact with her children until they were over eighteen years old, other than one "termination visit," was the functional equivalent of the termination of her parental rights. Accordingly, she argues that the decision should have been governed *1277 by a clear and convincing evidence standard.
At a hearing to determine an appropriate disposition in a dependency or neglect proceeding, the state must show that "by a preponderance of the evidence . . . a separation of the child from the parents or guardian is in the best interests of the child." § 19-3-508(2). Although the trial court never articulated the burden of proof, the court of appeals found, and we agree, that there is nothing in the record to suggest that the trial court did not employ this standard. R.W. and T.W., 989 P.2d at 243.
Although DHS did not seek to terminate Petitioner's parental rights pursuant to sections 19-3-601 to 611, Petitioner is losing the majority of her parenting rights, including the right to the custody, care, and companionship of her children. As the trial court order indicates, the foster parents, as permanent legal guardians, are conferred the authority to consent to marriage, to enlistment in the armed forces, and to medical or surgical treatment. They have the authority to represent the children in legal actions, and they have all the "rights and responsibility [sic] of legal and physical custody."
However, despite the fact that Petitioner is losing many of her parental rights, this custody order differs significantly from a total termination of parental rights. First, the trial court retains jurisdiction over the case until the children are twenty-one years old. See § 19-3-205. This means that Petitioner may petition to seek a modification of the disposition to regain custody or increase parenting time. In fact, the trial court, in its order limiting Petitioner's custody and visitation rights, continued the case until June 5, 1998, to reevaluate the case then.
In addition, although she loses many of her rights under this order, Petitioner, as the parent of her minor children, retains the right to consent or withhold consent to adoption, the right to reasonable parenting time except as restricted by the court,[7] and the right to determine the children's religious affiliation. See § 19-1-103(93).
We recognize that there is some tension between the appearance of finality in such orders and the continuing jurisdiction of the juvenile court to address the mother's right to petition for modification. However, the "permanency" and "finality" of the order herein would yield to any modifications that are subsequently made by the court as a result of substantial changes in circumstances. Because guardianship orders are merely a plan for permanency that is subject to change as warranted by the best interests of the children, Petitioner's residual right to petition for modification is sufficient to refute the argument that this guardianship order was the functional equivalent of termination.
Accordingly, we reiterate here our holding in A.M.D. that due process of law is accorded to parties when an adjudicatory hearing of a dependency or neglect proceeding is governed by a preponderance of the evidence standard. Although Petitioner is suffering the loss of many of her parental rights, this fact does not change our analysis of the constitutionality of dependency or neglect proceedings under the Mathews v. Eldridge three-prong test. As we noted in A.M.D., the governmental interest here is significant. See A.M.D., 648 P.2d at 639. The adjudication of dependency or neglect petitions provide the state with the means to intervene to assist parents and children in establishing a home environment that will preserve the family unit. The purpose of dependency or neglect proceedings is not to deprive parents of their rights to raise their children; rather, it is to preserve the family and protect children.
Similarly, we reiterate our concern that "[t]he effect of heightening the standard of proof at the adjudicatory stage could be pernicious." Id. at 640. The preponderance of the evidence standard in dependency or neglect proceedings permits the state to take the proper role as an intervenor, a role that corresponds with the legislative intent of the Children's Code "[t]o secure for each child subject to [its] provisions such care and guidance, preferably in his own home, as will best *1278 serve his welfare and the interests of society; [and t]o preserve and strengthen family ties whenever possible, including improvement of home environment." § 19-1-102(1). Heightening the burden of proof for dependency or neglect proceedings could have the effect of making it more difficult for the state to protect children, lessening the ability of the court and the state to fashion workable solutions, and increasing the risk of an adversarial environment between the state and parents.
Although the trial court order in this case results in the deprivation of many of Petitioner's parental rights, it was a decision reached by the court after more than four years of court and DHS involvement attempting to reconcile the family issues that were contributing to an unsafe and unhealthy environment for these children. Despite many years of effort, neither the court nor DHS believed that the children could be returned safely to Petitioner's custody. However, because DHS sought a permanent custody order, rather than termination of the parent-child relationship, Petitioner retains the right to petition the court for a change in custody status. Because Petitioner is not deprived of all her parental rights, and because the trial court retains jurisdiction to modify its existing order, we hold that the trial court order relating to Petitioner's custody and visitation rights does not violate her constitutional rights to due process.
V. Conclusion
Accordingly, we affirm the judgment of the court of appeals and hold that Petitioner's due process rights were not violated when the trial court significantly limited her parental rights at a guardianship hearing, held pursuant to a dependency and neglect proceeding, based on findings of fact under a preponderance of the evidence standard.
NOTES
[1] The majority noted that, although not articulated by the district court, it appeared that the standard of proof applied was a preponderance of the evidence. R.W. and T.W., 989 P.2d at 243.
[2] In this case, Petitioner has no parenting time due to a no-contact order.
[3] In the case at hand, Petitioner's children initially were placed in the temporary custody of their grandmother when Petitioner was incarcerated for a drug-related offense.
[4] The Children's Code also provides a number of remedies aimed at protecting a child from an immediately dangerous situation, such as temporary shelter, see § 19-3-404, temporary protective custody, see § 19-3-405, and restraining orders, see § 19-3-316, all aimed at providing a temporary remedy.
[5] Termination of the parent-child relationship will only be considered after a proper motion for termination has been filed. See § 19-3-602(1).
[6] This burden of proof is codified in section 19-3-604(1).
[7] Although Petitioner presently has no parenting time due to a no-contact order, she retains the right to petition the court to modify that order. See § 19-3-205.
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NO. 07-06-0441-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
DECEMBER 7, 2007
______________________________
HENRY ARRIZOLA RAMIREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242
ND
DISTRICT COURT OF HALE COUNTY;
NO. B16665-0602; HONORABLE ED SELF, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant, Henry Arrizola Ramirez, was convicted of the offense of unauthorized absence from a county correctional center and sentenced to a term of two years in a State Jail Facility and a fine of $5,000. We affirm.
Appellant’s attorney has filed an
Anders
brief and a motion to withdraw.
Anders v. California
, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 2d 498 (1967). In support of his motion to withdraw, counsel certifies that he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated.
Id
. at 744-45. In compliance with
High v. State
, 573 S.W.2d 807, 813 (Tex.Crim.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court’s judgment. Additionally, counsel has certified that he has provided appellant a copy of the
Anders
brief and motion to withdraw and appropriately advised appellant of his right to file a
pro se
response in this matter.
Stafford v. State
, 813 S.W.2d 503, 510 (Tex.Crim.App. 1991). The court has also advised appellant of his right to file a
pro se
response. Appellant has not filed a response
.
By his
Anders
brief, counsel raises grounds that could possibly support an appeal, but concludes the appeal is frivolous.
We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal.
See
Penson v. Ohio
, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988);
Bledsoe v. State
, 178 S.W.3d 824 (Tex.Crim.App. 2005). We have found no such arguable grounds and agree with counsel that the appeal is frivolous.
Accordingly, counsel’s motion to withdraw is hereby granted and the trial court’s judgment is affirmed.
Mackey K. Hancock
Justice
Do not publish.
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679 F.2d 878
Cobbv.State of South Carolina
82-6268
UNITED STATES COURT OF APPEALS Fourth Circuit
4/19/82
1
D.S.C.
AFFIRMED
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 5, 2009
No. 08-50009
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
SALVADOR LOPEZ, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:07-CR-2110-ALL
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Salvador Lopez, Jr., was convicted of one count of importing 100 kilograms
or more of marijuana into the United States and one count of possessing 100
kilograms or more of marijuana with intent to distribute. The district court
sentenced him to serve 120 months in prison and a 10 year term of supervised
release. Lopez challenges his term of supervised release in this appeal. He
argues that his term of supervised release is unreasonable because it is greater
than necessary to meet the goals of 18 U.S.C. § 3553(a).
*
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.
No. 08-50009
We review this issue for plain error only due to Lopez’s failure to present
it to the district court. See United States v. Allison, 447 F.3d 402, 405 (5th Cir.
2006). To show plain error, Lopez must show a forfeited error that is clear or
obvious and that affects his substantial rights. Puckett v. United States, 129
S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the
discretion to correct the error but will do so only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
Our review of the record shows that Lopez has not met this standard. The
10 year supervised release term imposed by the district court was within both
the statutory and applicable guideline ranges. Further, the district court’s
comments at sentencing show that it considered the factors given in § 3553(a)
when choosing this term. Lopez has not shown plain error with respect to the
district court’s imposition of a 10 year term of supervised release. See Gall v.
United States, 128 S. Ct. 586, 597 (2007); Puckett, 129 S. Ct. at 1429.
The judgment of the district court is AFFIRMED.
2
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79 Cal.App.2d 635 (1947)
THE PEOPLE, Respondent,
v.
THOMAS HADDEN et al., Defendants; CHARLES HERDEGEN, Appellant.
Crim. No. 4093.
California Court of Appeals. Second Dist., Div. Three.
May 12, 1947.
A. Maxson Smith for Appellant.
Fred N. Howser, Attorney General, and L. G. Campbell, Deputy Attorney General, for Respondent.
WOOD, J.
Defendants Hadden and Herdegen were charged with the crime of burglary in two counts. Count I charged that they committed burglary on January 18, 1946, and Count II that they committed burglary on April 2, 1946. Both defendants waived trial by jury. At the trial Hadden pleaded guilty to Count I, and Count II was dismissed as to him in order that he might be called as a witness for the People. The trial proceeded as to Herdegen and, after the evidence on behalf of the People had been presented, *636 the court dismissed Count I. After evidence was presented on behalf of Herdegen, the court adjudged that he was guilty as charged in Count II, and that the offense was burglary of the first degree. Herdegen appeals from that judgment and the order denying his motion for a new trial.
Appellant contends that the evidence is insufficient to support a conviction of burglary of the first degree.
Appellant and Hadden were arrested about 3 a. m. on April 2, 1946, in an alley behind a music store which was on Melrose Avenue in Los Angeles. Before the arrest, while appellant was fleeing from the scene of the crime, he was shot by a police officer. At the time of the arrest Hadden was armed with a .32 automatic pistol which, according to testimony, he pointed at two of the arresting officers. Appellant's automobile, which was in the alley, contained radios and other articles which had been removed from the music store, and at the time the policemen first drove into the alley appellant and Hadden were carrying a radio toward appellant's automobile. Appellant testified that he had been drinking heavily for several hours prior to his arrest; that he vaguely remembered entering the alley but he did not remember entering the music store; that he did not remember being shot, and did not know he had been shot until he was in the hospital. Hadden testified that he was driving appellant's automobile; that appellant had been drinking heavily and he took him for a ride to "straighten him out"; that he drove into the alley, and the back window to the music store was open; that he entered the store through the window; that he then opened the back door of the store from the inside and admitted appellant; that the two of them removed the articles from the store which were found in appellant's automobile, and they also removed the radio, which they were carrying when the policemen arrived, from the store; that the burglary had not been planned; that while he was entering the store through the window, appellant handed him the pistol and he put it in his pocket; that he did not remember removing it from his pocket but he remembered having it in his hand before his arrest while he was running.
Section 460 of the Penal Code provides, in part, that every burglary "committed by a person armed with a deadly weapon" is burglary of the first degree. Appellant, who was convicted of Count II, asserts that he was not armed and that the possession of a deadly weapon by Hadden, as to *637 whom Count II was dismissed, could not be imputed to appellant. His argument is, in substance, that the discharge of Hadden, under section 1099 of the Penal Code, was an acquittal of Hadden according to the provisions of section 1101 of the Penal Code and was equivalent to a verdict of not guilty; that, therefore, the possession of a deadly weapon by Hadden, who was innocent as to Count II, could not be imputed to appellant.
At the trial, before any evidence was presented, the deputy district attorney stated that he would call Hadden as a witness for the People, and "for that reason" he then asked the court to dismiss Count II. The court thereupon dismissed Count II as to Hadden. The minutes for that day include the statement, "On motion of the People, Count 2 of the indictment is dismissed as to the Defendant Thomas Hadden only." It appears, as asserted by the parties in their briefs, that said dismissal was under the provisions of section 1099 of the Penal Code.
Section 1099 of the Penal Code provides: "When two or more persons are included in the same charge, the court may, at any time before the defendants have gone into their defense, on the application of the district attorney, direct any defendant to be discharged, that he may be a witness for the people."
Section 1101 of the Penal Code, above referred to, provides: "The order mentioned in the last two sections [including sec. 1099] is an acquittal of the defendant discharged, and is a bar to another prosecution for the same offense."
The court considered those two sections in the case of People v. Gilbert, 26 Cal.App.2d 1 [78 P.2d 770], wherein the appellants, husband and wife, contended that the discharge of their codefendants under section 1099 of the Penal Code amounted to an acquittal under the provisions of section 1101 of the Penal Code, and that consequently such codefendants could no longer be considered as coconspirators, and appellants, being husband and wife, could not alone be guilty of a conspiracy. It was held therein that when the discharge is pursuant to section 1099 such a result should not follow, and the court stated at page 25, "The purpose of the order of discharge, as indicated by the statute, is that the defendant who receives the benefit of the order of discharge 'may be a witness for the people.' The issue remains the same, notwithstanding the discharge, and we would be *638 thwarting the legislative purpose should we engraft an exception upon the statute in favor of a coconspirator." It was stated further at page 26: "Where, as in the instant case, the discharge of an alleged coconspirator is not inconsistent with his guilt, but simply bars a subsequent prosecution of him, it does not invalidate the conviction of his coconspirators. Statutes such as section 1099 and 1101 of the Penal Code, granting an immunity to persons testifying do not in our opinion acquit the witness of the offense, but the fact of his testifying bars a prosecution for such offense. While Mr. and Mrs. Baylis [the codefendants] could not be further prosecuted, their discharge under the provisions of section 1099 did not amount to a declaration of their innocence of the charges against them in the conspiracy counts of the amended indictment."
[1] Appellant states that the court, in People v. Gilbert, supra, ignored the plain meaning of the word "acquittal" as used in section 1101. The word "acquittal" as used in that section is not to be construed as an acquittal on the merits. [2] The dismissal of Count II as to Hadden was not an adjudication that he was not guilty of the crime charged therein, but it was a bar to prosecution of Hadden on that charge. In the case of People v. Simpson, 66 Cal.App.2d 319 [152 P.2d 339], wherein appellant contended that dismissal of a charge of kidnaping against her codefendants operated as an acquittal of appellant since her offense consisted of aiding and abetting those codefendants in the commission of that crime, the court stated at page 329: "The judgment of dismissal was not an adjudication that the crime of kidnaping had not been committed, although it has operated to free the codefendants from further prosecution and from punishment for that crime. They stand as if they had never been prosecuted for the crime of kidnaping. The judgment of dismissal has no greater effect."
The evidence was sufficient to support the conviction of burglary of the first degree.
The judgment and the order denying the motion for a new trial are affirmed.
Shinn, Acting P. J., and Kincaid, J. pro tem., concurred.
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299 S.W.3d 130 (2009)
The STATE of Texas
v.
Joseph VOTTA, a/k/a Joseph Vital,[1] Appellee.
Nos. PD-1366-08, PD-1367-08, PD-1368-08, PD-1369-08.
Court of Criminal Appeals of Texas.
December 16, 2009.
*132 John Thomas Floyd, III, for appellant.
Jim Vollers, Jeffrey L. VanHorn, State's Attorney, Austin, for State of Texas.
OPINION
MEYERS, J., delivered the opinion for a unanimous Court.
Appellee, Joseph Votta, was charged with two counts of possession and two counts of bail jumping and failure to appear. Because he was incarcerated in a federal facility while these charges were pending, he sought a speedy disposition under the Interstate Agreement on Detainers Act (IADA). When the State failed to bring Appellee to trial within the 180-day limitation period set out in the IADA, the charges against him were dismissed with prejudice. The State appealed the dismissal, and the court of appeals affirmed the decision of the trial court. State v. Votta, a/k/a Joseph Vital, 267 S.W.3d 197 (Tex.App.-Corpus Christi 2008). The State filed a petition for discretionary review raising seven grounds for review. We reverse the court of appeals.
Facts
Appellee was arrested in Jackson County and charged with possession of cocaine and possession of heroin. He told the police his name was Joseph Vital, and this is the name under which he was indicted. He posted bond, but later failed to appear for the charges. As a result, he was also indicted, under the name Joseph Vital, for two counts of bail jumping and failure to appear.
While these charges were pending, Appellee was convicted of a federal crime and incarcerated in the federal correctional facility in Minersville, Pennsylvania, under his real name, Joseph Votta. The Jackson County Sheriff's Department located Appellee and sent a letter asking the institution to place detainers on him. The letter identified Appellee as "Votta, Joseph, aka Vital, Joseph" and listed the warrants as "Possession of a Controlled Substance in Penalty Group 1, to-wit cocaine (Bond Forfeiture) and Possession of a Controlled substance in penalty group 1, to-wit Heroin (Bond Forfeiture)." The only cause numbers listed were for the possession charges.
The Inmate Systems Manager at the federal correctional facility received the detainers from the Jackson County Sheriff's Department and replied with a detainer action letter informing the Jackson County Sheriff's Department that the detainer had been filed for both possession charges against Joseph Votta, alias Joseph Vital. This letter was dated July 19, 2005, and did not mention bond forfeiture or bail jumping and failure to appear.
On July 28, 2005, Appellee requested final disposition of the detainer pursuant to the IADA. The Inmate Systems Manager at the Minersville federal penitentiary sent, by certified mail, a letter to the Jackson County District Attorney's Office, with a notation on the bottom: "CC: Clerk of Court." The certified-mail return-receipt cards were sent to the District Attorney and to "Jackson County, Clerk of Court." In the letter, Appellee was identified as Joseph Votta, and only the possession counts were listed with no cause numbers included. The letter was received by the district attorney's office and the Jackson *133 County clerk's office on August 4, 2005[2]. However, the district clerk's office, where Appellee's charges were pending, did not receive the request. The Inmate Systems Manager sent a letter on November 7, 2005, reminding the district attorney that 90 days had passed since the receipt of Appellee's request for disposition of untried charges under the IADA, and that an individual must be brought to trial within 180 days from the date of receipt of this paperwork. On February 7, 2006, the Inmate Systems Manager sent another letter to the district attorney to inform him that 180 days had elapsed since Appellee's request and that the detainers had expired. Both letters referred to Appellee only as Joseph Votta and did not include cause numbers.
On October 16, 2006, Appellee filed a motion with the Jackson County District Court to dismiss all four counts for failure to comply with the 180-day deadline mandated by the IADA. Both names, Joseph Vital and Joseph Votta were listed within the motion and copies of the IADA paperwork that had been previously sent to the county clerk's office were attached as exhibits. The district attorney was not provided a copy of the motion.
After a hearing, the trial court dismissed the indictments in all four of the pending causes with prejudice on August 30, 2007. The State filed a motion for reconsideration, a motion requesting that the court enter findings of facts and conclusions of law, and requested a hearing on its motions. Although a hearing was scheduled for September 13, 2007, the trial court cancelled the hearing. In response, the State filed a second motion for the trial court to enter findings of fact and conclusions of law. When no findings of fact and conclusions of law were entered, the State filed a reminder of the court's obligation to file findings of fact and conclusions of law. The trial court entered its final order dismissing all charges on October 2, 2007. The State subsequently filed a notice of past-due findings of fact and conclusions of law pursuant to Rule 297 of the Texas Rules of Civil procedure, but no findings of fact or conclusions of law were ever entered.
Court of Appeals
The State appealed the trial court's order dismissing the indictments. Votta, a/k/a Joseph Vital, 267 S.W.3d 197. The State argued that Appellee failed to comply with IADA's requirement that he deliver his request to the appropriate court. The court of appeals disagreed, stating that Appellee showed that both the trial court and the Jackson County District Attorney had his request on file for more than 180 days prior to the hearing on the motion to dismiss. Id. at 202.[3] The State also argued that Appellee failed to provide sufficient notice to the trial court because his request for disposition was filed under his real name, "Joseph Votta," and not the alias he used when he was arrested, "Joseph Vital." The court of appeals again disagreed, noting that the correspondence between the state and the prison contained both Appellee's real name and the alias he had used, thus the state was aware of who was submitting the speedy-disposition request. Id.
*134 The State claimed that the trial court erred in dismissing the charges for bail jumping and failure to appear because no detainer was filed related to those indictments. However, the Court of Appeals determined that by listing "Bond Forfeiture" when it identified Appellee's possession charges,[4] the State "clearly shows its intent to prosecute appellee on the pending bail jumping and failure to appear indictments." Id. at 203.
Citing our holding in State v. Cullen, 195 S.W.3d 696 (Tex.Crim.App.2006), the State claimed that the trial court erred in failing to enter findings of fact and conclusions of law. The court of appeals concluded that because the trial court's determination did not require credibility determinations, but rather relied only on a facial review of the documents provided by the prisoner, Cullen did not apply in this case. Additionally, the trial court's failure to enter findings did not require the court of appeals to make any assumptions about the facts of the case or about the reasons for the trial court's decision. Therefore, the State was not prevented from presenting the appeal. The court of appeals affirmed the judgment of the trial court and held that the trial court did not err in failing to file findings of fact. The State's motion for rehearing was denied. Votta, 267 S.W.3d at 204.
The State filed a petition for discretionary review, which we granted to consider the following grounds for review:
1) Did the Court of Appeals err in refusing to require the trial court to enter findings of fact and conclusions of law?
2) Did the Court of Appeals err in concluding that respondent made a proper request for final disposition of charges, as required by Art. 51.14, V.A.C.C.P. to both the prosecuting officer and the appropriate court as is required to invoke the jurisdiction of that act and authorize the trial court to dismiss pending indictments?
3) Did the Court of Appeal err in concluding that Respondent's request for final disposition of charges under a name other than the name under which he is charged is sufficient to give the prosecutor notice of Respondent's request?
4) Did the Court of Appeals err in concluding that a motion filed by Respondent seeking dismissal of charges constituted compliance under article 51.14, V.A.C.C.P. as a request to be returned to the State of Texas for final disposition of pending charges?
5) Did the Court of Appeals err in concluding that the trial court had authority to dismiss Cause Nos. 97-2-5827 and 97-2-5828 (for bailing jumping and failure to appear) under the requirement of article 51.14 that only causes which were subject to detainers could be dismissed?
6) Did the Court of Appeals err in concluding that detainers were filed against Respondent in Cause Nos. 97-2-5827 and 97-2-5828 (for bailing jumping and failure to appear indictments)?
7) Did the Court of Appeals err in concluding that reference to "bond forfeiture" constituted placing a detainer on Respondent under art. 51.14, V.A.C.C.P.?
The Interstate Agreement on Detainers Act
In Code of Criminal Procedure Article 51.14, Texas adopts The Interstate Agreement on Detainers Act, which outlines *135 the cooperative procedure between the states to be used when one state is seeking to try a prisoner who is currently imprisoned in a penal or correctional institution of another state. The state with an untried indictment, information, or complaint against the prisoner files a detainer with the institution in the state that is holding the prisoner.[5] The prison is required to promptly inform the prisoner that a detainer has been filed against him and that he has the right to request final disposition of the charges. TEX.CODE CRIM. PROC. ANN. art. 51.14 Art. III(c). The prisoner may then request final disposition by giving written notice to the warden, who forwards the request, along with a certificate containing information about the prisoner's current confinement, to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction.[6] Under Article III(a), the prisoner must then be brought to trial in the receiving state within 180 days from the date on which the prosecuting officer and the appropriate court receive this written request for a final disposition, unless a continuance is granted under the IADA. TEX.CODE CRIM. PROC. ANN. art. 51.14, art. III(a) (Vernon 2006). If the prisoner is not brought to trial within 180 days, the trial court must dismiss the indictment with prejudice. TEX.CODE CRIM. PROC. ANN. art. 51.14, art. III(d) (Vernon 2006).
Grounds 1, 2, and 3
In its first ground for review, the State argues that the court of appeals erred in failing to require the trial court to enter findings of fact and conclusions of law. Under similar circumstances, the State in State v. Cullen, 195 S.W.3d 696 (Tex.Crim. App.2006), requested that findings of fact and conclusions of law be entered into the record, but the trial court refused. We stated, "The refusal of trial courts to enter findings of fact when timely requested by the State leaves appellate courts with nothing to review except a one-word ruling and forces the courts of appeals to make assumptions about the trial court's ruling. The ruling could be based on a mistake of law, on the trial court's disbelief of the testimony presented, or even on a clerical error."[7]Id. at 698.
The court of appeals held that Cullen does not apply in this situation because looking at the face of the documents to determine compliance with the IADA did not require an examination of the credibility of the witnesses, so it was not necessary for the trial court to enter findings of fact and conclusions of law.
We agree that in some cases involving the IADA, a court may determine whether the prisoner complied with the requirements of the IADA and whether the 180-day period was exceeded by simply examining the date the prisoner's request for disposition was received, the date of the prisoner's motion to dismiss, and the date of the trial or hearing for those charges. However, this case did not involve *136 merely an examination of paperwork to determine whether the requirements of the IADA were met. Credibility was an issue at the hearing because four witnesses testified to different versions of the facts of the case.
First, the trial court had to determine whether the appropriate court received the request for final disposition of the charges. The district clerk testified that she did not have the request on file and did not remember receiving it except when it was attached as an exhibit to the motion to dismiss. The deputy county clerk, who actually received the document, testified that she could not recall getting any mail that was sent to the district attorney and that she did not know what happened with the paperwork once it left her office. But, she noted that paperwork sent to the wrong office would normally be redirected to the correct recipient. The county clerk also testified, but said that he could only speculate that the documents may have been given to the district clerk if they were received by the county clerk's office. Most importantly, the trial judge specifically stated at the hearing that he was not making a finding that a letter addressed to the district attorney would have gone to the district clerk because it said "CC clerk of court" on the bottom. And, the defense stipulated at the hearing that the request for final disposition of the charges was not delivered to the district court. Thus, from the record, it appears that the documents were not received by the required parties.
Whether Appellee's request for disposition provided proper notice was also a contested issue. At the hearing, the district attorney raised the issue that Appellee's alias, Vital which is the name under which the charges against him were filed was not listed on the request for disposition that was sent to the district attorney. Appellee testified that he often used aliases to get out on bail and admitted that he did not include his alias on the IADA paperwork. However, the court of appeals concluded that, because the sheriff listed Appellee's alias on the detainer sent to the prison, the State knew Appellee's actual name and alias. The court of appeals also determined that Appellee did not use obstructionist tactics, such as altered names, to circumvent the IADA and avoid prosecution. We are unsure how the court of appeals ascertained this without findings of fact by the trial court based on the observation of the credibility and demeanor of the witness.
Finally, Appellee testified that detainers had been filed against him for only the two possession charges. The court of appeals, however, held that detainers had also been placed on Appellee for his two bail jumping and failure to appear charges based on the "bond forfeiture" notation on the detainer letter.
The reasoning of the court of appeals would mean that the trial court believed Appellee's testimony that the State knew his alias, and that he filed his IADA paperwork in the proper court, but that the trial court did not believe him that detainers were filed against him for only the possession charges.
The court of appeals erred in failing to require the trial court to enter findings of fact and conclusions of law. Without such findings from the trial court, the court of appeals could not determine whether Appellee's request for disposition of the charges was properly received by both the prosecuting officer and the appropriate court, or whether the IADA paperwork provided sufficient notice although it listed a name different from that under which Appellee was charged.
Ground 4
The petitioner in Fex v. Michigan, 507 U.S. 43, 113 S.Ct. 1085, 122 L.Ed.2d 406 *137 (1993), argued that the 180-day period in the IADA begins when the prisoner gives his request for final disposition to prison officials. The Supreme Court disagreed, reasoning that, since Article III(b) requires the warden to forward the prisoner's request and accompanying documents by registered or certified mail, return receipt requested, the IADA "provides for documentary evidence of the date on which the request is delivered to the officials of the receiving State, but requires no record of the date on which it is transmitted to the warden." Id. at 51, 113 S.Ct. 1085. Thus, the Supreme Court held that "the 180-day time period in Article III(a) of the IAD does not commence until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Id. at 52, 113 S.Ct. 1085.
Here, the court of appeals determined that the district clerk properly received Appellee's request for disposition when he filed a motion to dismiss and included copies of his IADA paperwork attached as exhibits. Consequently, both the prosecutor and the court had Appellee's request for more than 180 days prior to the hearing on the motion to dismiss, which was not until 318 days after the district court received these documents. The court of appeals relied on United States v. Daily, 488 F.3d 796, 797-98, 801 (8th Cir.2007), which said that the defendant had not complied with IADA notice requirements prior to the filing of his motion to dismiss. Before Daily filed a motion to dismiss, his written notice of a request for dismissal had been received only by the warden, who had not sent it to the court and prosecuting officer. The hearing was held more than 180 days from the date he gave his request to the warden, but within 180 days of the date the proper courts received his motion to dismiss. Daily argued that the 180-day period should begin when the request for disposition is given to the warden, but the court disagreed and held that since the hearing was within 180 days of the motion to dismiss, which was the first time the prosecutor and trial court knew of the request, the hearing was held within time allowed under IADA.
While Daily determined that the hearing in that case was properly held within the 180-day period allotted by the IADA, it did not say that a motion to dismiss constitutes proper notice of a request for disposition in all situations. The State points out that a motion to dismiss is clearly not a request to waive extradition and stand trial, which is the purpose of the IADA. Therefore, it makes no sense to say that a motion to dismiss charges constitutes proper notice of a desire to stand trial. We agree. Appellee's motion to dismiss the charges was not proper notice to the district court of his request for disposition. The court of appeals erred in holding that the district court received Appellee's request for disposition.
Grounds 5, 6, 7 Bail Jumping and Failure to Appear
The State argues that the court of appeals erred in concluding that the reference to bond forfeiture on the detainers for the possession charges constituted a detainer for bail jumping. And, since no detainers were filed for the bail jumping and failure to appear charges, the trial court did not have the authority to dismiss those causes.
We agree. There is nothing in the record indicating that detainers were filed for the bail jumping and failure to appear charges. The parenthetical bond forfeiture on the detainers for the possession charges is in no way sufficient to constitute a detainer for charges of bail jumping and *138 failure to appear. While failing to appear in court does automatically result in the forfeiture of a bond, a defendant can have bond forfeited in a case without being charged with bail jumping and failure to appear. Under Chapter 22 of the Code of Criminal Procedure, bond forfeiture is a judgment, entered when a defendant fails to appear in court, which states that the State of Texas shall recover the amount of money by which the defendant is bound. Bail Jumping and Failure to Appear is a completely separate offense under Penal Code Section 38.10. Additionally, a defendant can be charged with Bail Jumping and Failure to Appear even if he were released from custody without bail, thus making him ineligible for a bond-forfeiture judgment. The court of appeals erred in holding that a notation regarding bond forfeiture showed the State's intent to prosecute Appellee for bail jumping and failure to appear. Therefore, the court of appeals's conclusion that detainers were filed for bail jumping and failure to appear is also erroneous. Because detainers were not filed for these charges, the court of appeals erred in dismissing them.
Conclusion
The court of appeals erred in failing to require the trial court to enter findings of fact and conclusions of law. Without findings, the court of appeals erred in concluding that the prosecuting officer and the appropriate court properly received notice of Appellee's request for disposition even though it was sent under a different name than that under which the charges were filed and to the county court rather than the district court where charges were pending. The court of appeals also erred in concluding that a motion to dismiss constituted proper notice of a request for disposition in the district court. Finally, we hold that no detainers were filed against Appellee for bail jumping and failure to appear, so the court of appeals had no authority to dismiss those charges.
The judgments of the court of appeals are reversed, and the case is remanded to the trial court for trial.
NOTES
[1] The State's petition for discretionary review styled Appellee as JOSEPH VITAL, A/K/A JOSEPH VOTTA. In order to be consistent with the court of appeals and clarify the title of the case, we will proceed under the name JOSEPH VOTTA, A/K/A JOSEPH VITAL.
[2] The court of appeals says that the letter was received on August 9th, however that is actually the date that Minersville received the return receipts that were signed for by the Jackson County clerk and the district attorney's office on August 4th.
[3] The court of appeals noted that a copy of Appellee's IADA paperwork was attached to the motion to dismiss that was filed with the District Clerk's office on October 16, 2006, and the hearing was not until 318 days later, on August 30, 2007.
[4] The State identified the pending charges as "Possession of a Controlled Substance in Penalty Group 1, to wit, cocaine (Bond Forfeiture) and Possession of a Controlled Substance in Penalty Group 1, to wit, heroin (Bond Forfeiture)"
[5] A detainer is a request by a criminal justice agency that is filed with the institution in which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be advised when the prisoner's release is imminent. Fex v. Michigan, 507 U.S. 43, 44, 113 S.Ct. 1085, 122 L.Ed.2d 406 (1993).
[6] Under Texas Code of Criminal Procedure article 51.14, articles III(a) and (b) of the IADA specify that the request and certificate must be sent by the warden, commissioner of corrections, or other official having custody of the prisoner, to the prosecuting official and the appropriate court by registered or certified mail, return receipt requested.
[7] We acknowledge that the case before us relates to a hearing on a motion to dismiss rather than a suppression hearing, however the reasoning from Cullen is still applicable.
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 2, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
WILLIAM A. SHIPLEY,
Plaintiff - Appellant,
v.
No. 05-3273
INTERNAL REVENUE SERVICE, (D. Kansas)
(D.Ct. No. 04-CV-2573-JWL)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
William A. Shipley, appearing pro se, 1 filed suit against the Internal
*
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 10th Cir. R. 36.3.
1
We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
Revenue Service (IRS) under 26 U.S.C. § 7433 2 for imposing a levy against his
social security payments. The district court dismissed for lack of subject matter
jurisdiction. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
Background
In July 1995, the IRS assessed federal taxes and penalties against Shipley
for the 1990 tax year. Shipley failed to pay the taxes and penalties. The IRS
issued Shipley a notice of intent to levy in April 1999. Shipley unsuccessfully
challenged the levy in federal district court. See Shipley v. IRS, 2000 WL 575019
(D. Kan. Mar. 30, 2000). From January 2, 2000, until November 4, 2002, the IRS
collected 100 percent of Shipley’s social security payments. Following several
unsuccessful attempts to obtain an administrative hearing from the IRS, Shipley
filed suit in federal court on November 29, 2004, alleging the IRS fraudulently
collected all of his social security checks pursuant to the levy. The district court
dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) because
Shipley filed suit more than two years after the commencement of the levy in
2
26 U.S.C. § 7433(a) provides:
If, in connection with any collection of Federal tax with respect to a taxpayer,
any officer or employee of the Internal Revenue Service recklessly or
intentionally, or by reason of negligence disregards any provision of this title,
or any regulation promulgated under this title, such taxpayer may bring a civil
action for damages against the United States in a district court of the United
States. Except as provided in section 7432, such civil action shall be the
exclusive remedy for recovering damages resulting from such actions.
-2-
January, 2000.
Discussion
The district court’s dismissal of a taxpayer’s claim for lack of subject-
matter jurisdiction is reviewed de novo. Colo. Envtl. Coalition v. Wenker, 353
F.3d 1221, 1227 (10th Cir. 2004). Section 7433 conditionally waives the United
States’ sovereign immunity from tax refund suits, but limits taxpayer suits to
“within 2 years after the date the right of action accrues.” 26 U.S.C. §
7433(d)(3). See Allied/Royal Parking L.P. v. United States, 166 F.3d 1000, 1003
(9th Cir. 1999) (“[S]ection 7433’s limited waiver to the government’s sovereign
immunity must be read narrowly.”). The right of action accrues “when the
taxpayer has had a reasonable opportunity to discover all essential elements of a
possible cause of action.” 26 C.F.R. §301.7433-1(g)(2). Because the “time-bar
qualifies [as] a waiver of sovereign immunity,” it is jurisdictional in nature.
Dahn v. United States, 127 F.3d 1249, 1252 (10th Cir. 1997).
According to Shipley, the statute of limitations should not be triggered until
February 23, 2004; the date he discovered by letter that the IRS was only allowed
to issue levies up to fifteen percent of his social security payments. He errs.
Shipley is charged with knowledge of the law. Dziura v. United States, 168 F.3d
581, 583 (1st Cir. 1999). Assuming the IRS did violate a fifteen percent limit on
social security checks, ignorance of the law does not toll a statute of limitations.
-3-
See Venture Coal Sales Co. v. United States, 370 F.3d 1102, 1107 (Fed. Cir.),
cert. denied, 543 U.S. 1020 (2004). Ordinarily, a right of action accrues when the
levy commences; here January 2, 2000, when the IRS made its first allegedly
wrongful seizure of Shipley’s social security check. See Gandy Nursery, Inc. v.
United States, 318 F.3d 631, 637 (5th Cir. 2003). The district court allowed for
the possibility that Shipley might acquire additional facts essential to his claim
during the pendency of the levy and generously set the starting date at November
4, 2002; the date the levy ended. In either event, Shipley’s suit is time-barred as
it was filed more than two years after both dates.
The district court properly dismissed Shipley’s complaint. AFFIRMED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
-4-
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547 F.2d 1162
Lewisv.Weinberger
No. 76-1518
United States Court of Appeals, Third Circuit
1/17/77
1
M.D.Pa.
AFFIRMED
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871 S.W.2d 357 (1994)
316 Ark. 150
Michael HAWKINS, Appellant,
v.
CITY OF PRAIRIE GROVE, Appellee.
No. CR 93-1053.
Supreme Court of Arkansas.
February 28, 1994.
*358 John William Murphy, Fayetteville, for appellant.
Boyce R. Davis, Lincoln, for appellee.
CORBIN, Justice.
We treated appellant's petition for writ of certiorari, filed pursuant to superseded Ark. Sup.Ct.R. 29(6)(a) as a petition for review under the current Ark.Sup.Ct.R. 1-2(f), and granted review of the Arkansas Court of Appeals's decision reported as Hawkins v. City of Prairie Grove, 43 Ark.App. 81, 861 S.W.2d 118 (1993). We granted review under Rule 1-2(f) because the appeal requires the interpretation of Ark.Code Ann. § 16-17-213 (Supp.1991) and should therefore have originally been heard in this court. Upon review, we find no error and affirm.
Appellant, Michael Hawkins, was convicted of driving while intoxicated in Prairie Grove Municipal Court on January 18, 1991. He filed a timely notice of appeal with the clerk of the Washington Circuit Court. He also filed a timely affidavit of appeal with the clerk of the municipal court on February 6, 1991. However, the municipal court clerk never filed the transcript with the circuit court. Consequently, the circuit court dismissed the appeal for lack of jurisdiction on June 18, 1992.
In dismissing for lack of jurisdiction, the circuit court relied on Ark.Code Ann. § 16-17-213(a) (1987) and Nowlin v. Merchants Nat'l Bank, 192 Ark. 529, 92 S.W.2d 390 (1936), and concluded that the requirements of the statute are mandatory and jurisdictional and that it is the duty of the appealing party to see that the transcript is lodged in the time limited. On appeal, appellant contends Ark.Code Ann. § 16-17-213(a) (1987) was superseded by 1987 Ark.Acts 431, now codified as Ark.Code Ann. § 16-17-213 (Supp.1993), and that the new version of the statute shifted the responsibility of perfecting appeals from the appellant to the clerk.
We agree that section 16-17-213 was amended by 1987 Ark.Acts 431, but disagree that the amendment shifted the responsibility of perfecting an appeal away from appellant. Moreover, appellant's reliance on section 16-17-213 and its 1987 amendment is misplaced. We recently held in Ottens v. State, 316 Ark. 1, 871 S.W.2d 329 (1994), that the timely filing of an appeal from municipal court is controlled by Rule 9 of the Inferior Court Rules. We have stated that Rule 9, which applies to criminal as well as civil cases, Ottens, 316 Ark. 1, 871 S.W.2d 329, is mandatory and jurisdictional and leaves the circuit court without authority to accept untimely appeals. Bocksnick v. City of London, 308 Ark. 599, 825 S.W.2d 267 (1992); Edwards v. City of Conway, 300 Ark. 135, 777 S.W.2d 583 (1989). This court stated further that "it is the duty of the counsel, not the judge, clerk, or reporter, to perfect the appeal." Id. at 137, 777 S.W.2d at 584. Rule 9(b) states in pertinent part: "the appellant shall have the responsibility of filing such record in the office of the circuit clerk."
We are aware that the statutes on municipal courts intimate that the responsibility *359 for filing a transcript on appeal falls on the municipal court itself. Ark.Code Ann. § 16-17-213; see Bocksnick, 308 Ark. 599, 825 S.W.2d 267 (citing Ark.Code Ann. § 16-96-505 (1987)). However, section 16-17-213 has been superseded by Rule 9 of the Inferior Court Rules, and we so hold. Supersession Rule, Arkansas Court Rules, p. 689 (1993).
Appellant raises the additional points that the trial court's decision violates his due process rights, creates confusion, and is a burden to judicial economy. The record on appeal does not reveal that these points were raised below; therefore we will not address them. Even constitutional issues are waived on appeal when not argued below. Whitson v. State, 314 Ark. 458, 863 S.W.2d 794 (1993).
Affirmed.
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466 So.2d 20 (1985)
Dwayne B. TILLMAN, Appellant,
v.
STATE of Florida, Appellee.
Nos. 84-1547 to 84-1551.
District Court of Appeal of Florida, Second District.
March 29, 1985.
*21 James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Candance M. Sunderland, Asst. Atty. Gen., Tampa, for appellee.
GRIMES, Acting Chief Judge.
Appellant argues that the trial court erred in sentencing him under the sentencing guidelines. Fla.R.Crim.P. 3.701. We agree. The underlying offenses in this case were committed prior to October 1, 1983. The sentencing guidelines may be applied to crimes when the offense occurred prior to October 1, 1983, only where the defendant affirmatively selects to be sentenced under the guidelines. § 921.001(4)(a), Fla. Stat. (1983); In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla. 1983); Cahill v. State, 467 So.2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So.2d 899 (Fla. 2d DCA 1984). Here, the record does not indicate that the appellant affirmatively selected to be sentenced under the guidelines. A defendant's mere silence at sentencing cannot meet the affirmative selection requirement contemplated by rule 3.701. Rodriguez v. State.
Appellant received the maximum statutory sentence of five years imprisonment for each crime to be served consecutively, and the crimes were not offenses over which the trial court could retain jurisdiction. See § 947.16(3), Fla. Stat. (1983). No purpose would be served to order resentencing since the court obviously intended to impose the maximum penalties permitted by law. Accordingly, the cause is remanded with directions to correct the record to reflect that appellant was not sentenced under the guidelines. See Barnes v. State, 464 So.2d 1333 (Fla. 2d DCA 1985).
SCHEB and CAMPBELL, JJ., concur.
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255 F.Supp. 570 (1966)
Anthony MIRRA, Movant,
v.
UNITED STATES of America, Respondent.
No. 66 Civ. 83.
United States District Court S. D. New York.
July 5, 1966.
*571 *572 Jerome Lewis, Brooklyn, N. Y., for movant.
Robert M. Morgenthau, U. S. Atty., Southern District of New York (Michael W. Mitchell and John H. Adams, Asst. U. S. Attys., Southern District of New York, of counsel), for respondent.
OPINION
MacMAHON, District Judge.
Petitioner was one of thirteen defendants convicted by a jury of conspiracy to violate the federal narcotics laws after a ten-week trial. He moves under 28 U.S.C. § 2255 to vacate and set aside the judgment of conviction and sentence imposed upon him on July 10, 1962. He also moves to disqualify the trial court from considering his § 2255 application on the grounds that the court "is of necessity a material witness"[1] and "has previously shown an intense personal bias and prejudice against petitioner."[2] We deny the motions.
Petitioner bases his application for relief under § 2255 on two related grounds: first, he claims that during part of the trial he was not mentally competent to have understood the proceedings against him and to have been able properly to assist in his own defense, and, second, that an oral motion made by his attorney during trial for a psychiatric examination was "unconstitutionally and illegally" denied by the trial judge without holding a hearing.
Stripped of the embellishments, arguments, opinions and conclusions which saturate the supporting affidavits of petitioner and his present counsel, the facts alleged show that, following an abortive six-month trial, the second trial of petitioner and thirteen other defendants for conspiracy to violate the federal narcotics laws began on April 2, 1962. After two months of trial, on June 4, 1962, at 10:30 A.M., while under cross-examination about a prior conviction for conspiracy to violate the federal narcotics laws,[3] petititioner picked up the witness chair and threw it at the prosecutor. The chair shattered against the jury rail. Following a two-hour recess,[4] petitioner's trial attorney reported that: "he thought" petitioner was "not in control of himself;" "he has been incoherent when I tried to talk to him;" "he complained of being sick" and that counsel tried to consult with him and that he just "couldn't get through to him now. There is a block there." Trial counsel then moved "to commit Mr. Mirra to Bellevue or whatever appropriate place there is for examination by a qualified psychiatrist." The court denied the motion stating its reasons upon argument held after the close of the day's testimony.[5] We also granted trial counsel's request to remove petitioner from the stand and defer his cross-examination.[6] The jury was excused. Mirra was returned to his chair, and as he was being gagged and shackled, he stated "why are you going to gag me for?" One witness testified on direct examination before the luncheon recess.[7]*573 The trial resumed at 2:15 P.M., and most of the afternoon, while other witnesses testified, petitioner's trial counsel reported that: he "got no response" when he tried to talk with petitioner; petitioner "said he had a headache;" said he had been given two pills by the Courthouse nurse; "appeared to be asleep" and said he could not remember testimony. At the conclusion of the day's testimony, trial counsel moved for a mistrial and a psychiatric examination on the ground that "it was impossible to consult with [petitioner] at all at this time." The court denied the motions on the merits. It stated its reasons for finding bad faith and lack of any genuine factual issue or basis whatsoever for a psychiatric examination or hearing.[8] At the same time, the court reserved decision on whether to hold a hearing on counsel's claim that petitioner had been given sedatives which induced sleep. The next day, petitioner's counsel continued, on and off, to report that petitioner was not responsive. After trial a hearing was held and the court found, on the basis of documentary evidence and testimony, that petitioner had been given an aspirin-like compound which did not induce sleep and concluded that at the time of the incidents of June 4 and 5 petitioner was able to stand trial, comprehend the nature of the proceedings and communicate with counsel.
Thus, petitioner's own papers show, as does the trial record, that the grounds which he now urges as a basis for collateral relief were presented to and rejected on the merits by the trial court. The appellate records show that those grounds were not raised on direct review in either the Court of Appeals, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963), or in the Supreme Court, Mirra v. United States, 375 U.S. 940, 84 S.Ct. 360, 11 L.Ed.2d 272 (1963). The government now contends that the judgment is not "vulnerable to collateral attack" under § 2255 because habeas corpus will not be allowed to do service for an appeal absent some valid excuse or exceptional circumstances.[9] Put another, and we think a more current, way, petitioner is foreclosed from federal collateral relief if he by-passed normal appellate procedure deliberately or through inexcusable neglect.[10]
While the ultimate burden of proving deliberate by-passing or inexcusable neglect may well be on the government,[11] we believe that where, as here, the government has carried its burden of pleading,[12] petitioner must at least come forward with some averment which would permit a finding upon a hearing that he had not deliberately by-passed his right to appellate review.[13] That procedure is especially appropriate in a case like this. There was no barrier to, or intolerable risk presented by, normal appellate procedures. Petitioner had competent counsel. The essential facts are in the record, and there is no claim of newly discovered evidence. The explanatory facts, if any, lie peculiarly within the knowledge of petitioner. Petitioner is now represented by experienced counsel of his own selection. He claims no present disability, *574 and his moving affidavits, as well as the official records, conclusively show that the grounds asserted as a basis for collateral relief were pressed at trial but not raised on appeal.
It is our duty to give practical form for the application of the principles governing collateral relief.[14] Surely, in the circumstances shown here, sound judicial administration requires that petitioner at least aver some adequate explanation for by-passing normal appellate procedures in order to obviate unnecessary hearings should it appear that the explanation is insufficient. Two explanations are advanced. The first, suggested by petitioner, is that he has no memory of the facts alleged as a basis for his motion and did not learn of them until they were brought to his attention in subsequent court proceedings and until he had read the trial transcript after he began serving his sentence. The second, asserted by counsel in a reply memorandum, is that petitioner's appellate counsel deliberately failed to raise these available points as a matter of strategy. Significantly, petitioner does not state categorically that he did not know of the facts upon which he now relies at the time of his appeal. If he means to imply that he did not know them when he appealed, the explanation is patently false.
The record conclusively shows that at the time petitioner filed his brief on appeal, December 26, 1962, and at the time of argument, January 30, 1963, both petitioner and his appellate counsel did know of the facts and claims which petitioner now makes. On June 26, 1962, the court sentenced petitioner for contempt and cited and read to petitioner the transcript of the trial record relating to petitioner's throwing the witness chair at the prosecutor (Tr. 9089-9092). He was also made aware of his counsel's claim that he was not in control of himself when and after he threw the chair and that his counsel had so informed the court (Tr. 9096-9097). When asked if he had anything to say in his behalf before the court pronounced sentence, petitioner replied:
"Nothing much, your Honor, except that I am a hothead, period.
* * * * * *
Well, I am sorry for the chair incident, your Honor. The other things I didn't realize were contemptible. I just was shooting off my mouth. I didn't realize that was contempt." (Tr. 9098-9099.)
Petitioner appealed from his contempt conviction and filed a brief in the Court of Appeals July 17, 1962 in which, among other things, he argued:
"There is no question that the appellant's act of June 4, in throwing a witness chair in the direction of the prosecutor (Tr. 6461-6464), was obstructive of the administration of the trial and it is not intended to urge a contrary conclusion on this appeal. It is however submitted that the very irrationality of the act necessitated, on the question of appropriateness of the punishment, an inquiry by the trial Court into the appellant's state of mind when the act was committed. * * *
After the incident, appellant's counsel requested a recess to permit him to talk to the appellant, a request which was granted (Tr. 6465). Counsel subsequently informed the Court that appellant was incoherent and moved that he be examined by a psychiatrist, a motion which was denied (6467). After appellant was returned to the stand, counsel informed the Court that he was not responsive to interrogation regarding a matter clearly within his knowledge (Tr. 6468). At the proceedings at which appellant was found in contempt, counsel reiterated in mitigation his observation that appellant had not been in control of himself at the time the incident occurred (Tr. 9097).
The failure of the trial Court to order an inquiry into appellant's mental condition would not have altered the disruptive character of the act itself, *575 but would have had a bearing on the appellant's state of mind and intent when the act was committed, and thus on the appropriateness of the sentence to be imposed." (Government's Appendix, Exhibit "A," pp. 9-11, filed in opposition to this motion.)
On July 20, 1962, the Court of Appeals affirmed petitioner's contempt conviction in a per curiam opinion. United States v. Bentvena, 304 F.2d 883 (2d Cir. 1962). On August 3, 1962, petitioner filed a pro se petition for certiorari seeking review of the Court of Appeals' affirmance of his contempt conviction. That petition attaches a transcript of the contempt proceedings in the district court, petitioner's brief in the Court of Appeals, and the per curiam opinion of the Court of Appeals.[15]
The record, therefore, conclusively demonstrates that five months before his brief was filed on direct review from his conviction, both petitioner and his appellate counsel knew of the facts and claims now made, were able to assert his rights, and were aware of their significance. The record also shows that petitioner is neither immature, illiterate, nor uneducated.[16] Nor is he a stranger to appellate procedures, for he had appealed a prior conviction as well as his conviction for contempt. There is nothing in the record or petitioner's papers to suggest mistake, inadvertence, ignorance, inadequacy of appellate remedy, change in the law, lack of jurisdiction or any exceptional circumstances whatever for by-passing appellate procedures.
We think these indisputable facts compel the conclusion that petitioner and his counsel knew of the facts and claims on which he now relies and of their significance, but deliberately decided not to raise them on direct review. His present counsel's explanation that appellate counsel unilaterally decided not to raise the points on appeal is, we think, incredible. The trial record shows that petitioner's trial and appellate counsel hardly made a move without consulting petitioner. Strangely, there is no affidavit from appellate counsel, although petitioner's papers show that he knows where to find him. It is strange also that present counsel suggests the excuse not by affidavit, but by memorandum, and, even then, fails to state that he so much as interviewed appellate counsel. In any event, the proferred excuse is insufficient as a matter of law for counsel's choice of strategy is binding on the accused unless "exceptional circumstances" exist. Henry v. State of Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). Here, petitioner does not allege the existence of exceptional circumstances, nor, indeed, do we find any on our own.[17] In particular, there is not even an allegation that petitioner was not consulted about the points to be raised on appeal.[18]
Accordingly, since petitioner has failed to come forward with any legally sufficient reason for failing to present known claims on direct review, he is procedurally barred from presenting them here.[19] Even if this procedural barrier were hurdled, petitioner's motion would still be denied, for the "application, files, and records of the case alone,"[20] conclusively show that his claims have no merit.
The merits of this application cannot be understood out of the context of the trial. Petitioner was one of twenty-nine defendants accused of violating the federal narcotics laws. He was tried with thirteen codefendants and all but one were convicted. This trial, lasting two and one-half months, had been preceded *576 the year before by a trial which had turbulently crawled "along its rocky road for six months over every conceivable type of obstruction and interruption" before ending in a mistrial on the eve of summations when "the foreman of the jury broke his back in an unexplained fall down a flight of stairs in an abandoned building in the middle of the night."[21] The first trial was so "bedeviled by frequent delays" and "impeded by apparent illness, accident and other misfortune,"[22] that the trial judge, in order to insure defendants' continued presence, ordered the remand of all defendants. The remand was upheld by the Court of Appeals, which stated that Judge Levet "may well have detected a general pattern of conduct not attributable to less than all of the defendants." United States v. Bentvena, 288 F.2d 442, 446 (2d Cir. 1961).[23] Later, as a result of their misconduct at the initial trial, petitioner and another defendant were held in contempt. Petitioner's contempt sentence of twenty days was characterized by the Court of Appeals as severe. United States v. Galante, 298 F.2d 72 (2d Cir. 1962).
Between trials, defendants were enlarged on bail. The case appeared on the trial calendar monthly, but "[o]n each occasion it was adjourned because a number of the defendants said that they had been unable to retain counsel notwithstanding their ability to raise substantial bail. As early as July 31, 1961, Judge Murphy sensed `that the failure to retain counsel was part of a plan to postpone trial.' Despite efforts of the court and threats of contempt proceedings, it was not until March 9, 1962, that all defendants who had not been severed on the government's motion had counsel, either retained or appointed by the court. After further delays and substitutions of counsel * * * the [second] trial began [before this court] on April 2."[24] The first outburst by a defendant occurred on the opening day of the trial. Two days later, on April 4, the defendants on bail were again remanded to custody, and again the Court of Appeals upheld the remand, stating that the incidents on which the trial court had relied "might well seem to indicate a renewal of the `misadventures of the previous trial * * *." United States v. DiPietro, 302 F.2d 612, 613 (2d Cir. 1962).
During the second trial, defendants and certain of their counsel claimed numerous incapacitating illnesses and injuries which physical examinations failed to substantiate. All of this interrupted and delayed the trial. Several defendants claimed inability to understand the proceedings and consult with counsel due to aspirin-like medication administered by court and prison medical personnel. United States v. Bentvena, supra, 319 F. 2d at 930. Two defendants, one before and one after petitioner, claimed that they were not competent to stand trial. Trial was delayed for four days while psychiatric examinations were conducted and evidentiary hearings held to determine the first claimant's competency to stand trial. His claims were found to be groundless.
Throughout the trial, the court was swamped with requests for delays, continuances, adjournments and the like. Indeed, on the basis of nothing but the cold record, Judge Moore was prompted to say that "[o]ne with a bent for statistics would find, no doubt, that if this trial were continued on every occasion that one or more of the defendants or their counsel so requested the trial would still be in progress." United States v. Bentvena, supra, 319 F.2d at 936.
Spurred by successful frustration of the first trial, a preview of the overwhelming *577 evidence against them, and awareness that any sentence for contempt could not begin to equal the mandatory minimum facing them if convicted, the defendants again resorted to every conceivable means to abort the second trial. Phony accidents and illnesses of defendants and their counsel were routine. Verbal outbursts were commonplace. On one occasion a defendant tried to break into the robing room screaming obscenities at the judge; on another, a co-defendant climbed into the jury box, walked along the inside rail from one end of the box to the other, pushing the jurors in the front row and screaming vilifications at them, the judge and the other defendants. His brother, not to be outdone, screamed obscenities at the court and prosecutor. Petitioner threw the witness chair at the prosecutor. Referring to this and other misconduct, the Court of Appeals said:
"We have described only two of the more dramatic disturbances which plagued the trial of this case for we find it neither necessary nor judicious to publicize or preserve the vile language and rebellious conduct that characterized this trial. Suffice it to say that more abhorrent conduct in a federal court and before a federal judge would be difficult to conceive." Id. at 930.
Off-stage activities by defendants and counsel designed to delay the trial were the order of the day. In order to deal with these deliberate disorders, the court directed that defendants and spectators be searched before entering the courtroom, that a large force of marshals be stationed therein, and that petitioner and and two of his co-defendants be gagged and shackled during the later part of the trial. The Court of Appeals subsequently upheld these measures, remarking that:
"If any one distinct impression is gained from a scrutiny of the record here, it is that the trial judge was justified, indeed was forced, to resort to stern measures to obtain order in his courtroom.
* * * * * *
We have satisfied ourselves that the prosecution did not provoke the incidents. The judge did all in his power to minimize their effect, and we find no ground for reversal in the circumstances. Any other answer to these contentions would produce little less than anarchy.
* * * * * *
Law enforcement and fair trial for those accused of violations is not to be limited to the pattern chosen by defendants. The administration of criminal justice in the federal courts will not be delivered into the hands of those who could gain only from its subversion. Our decision in Aviles is as applicable to a trial of two defendants as it is to a trial of fourteen. It may take two to conspire but it takes only one to throw a chair at a prosecutor.
* * * * * *
In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice." Id. at 930-932.
At the end of the trial, the court held eleven defendants, including petitioner, in contempt for their misconduct. United States v. Bentvena, 304 F.2d 883 (2d Cir.), cert. denied, Mirra v. United States, 371 U.S. 927, 83 S.Ct. 296, 9 L. Ed.2d 234 (1962). This misconduct demonstrated, the Court of Appeals held, "a concerted effort to interfere with the judicial process," United States v. Galante, 308 F.2d 63, 64 (2d Cir. 1962), quoted, United States v. Bentvena, 308 F.2d 47, 48 (2d Cir. 1962), a conclusion shared by nine different appellate judges who, in one context or another, have reviewed defendant's conduct at either or both of the trials.[25]
*578 On Friday, June 1, 1962, two months into the second trial, petitioner, against the advice of counsel, took the stand to testify in his own defense. He was entirely oriented, rational and responsive. Late Friday afternoon, he called other defendants "dope pushers" and, of course, provoked a chorus of delaying, but unsuccessful, motions for a mistrial. On Monday, June 4, at about 10:30 A.M., the Assistant United States Attorney began to cross-examine petitioner about a prior narcotics conviction. Petitioner picked up the witness chair, and threw it at the prosecutor, who was at that time reading the prior indictment to the jury. The chair narrowly missed its intended target and shattered against the jury box. Petitioner was immediately seized by several marshals and forcibly removed from the courtroom. We have already recounted the events following the chair-throwing incident and the court's adverse ruling on a motion for a psychiatric examination, and there is no need to repeat them.
It is in the context of this transparent plot to subvert justice that petitioner's present claims must be assessed. Petitioner now claims that the denial of his motion for a psychiatric examination was error and that if it is determined at a hearing that an examination should have been held, his motion to vacate sentence must be granted. A motion for a psychiatric examination under 18 U.S.C. § 4244 will not be granted if it is not made in good faith or if it is based upon a frivolous ground.[26]
We think it plain that petitioner's motion at trial was frivolous and not made in good faith. Petitioner's behavior at the prior trial, pre-trial and trial was entirely rational.[27] Indeed, he was in fact engaging in self-serving communications with counsel at the very moment his counsel was reporting his inability to communicate. There was no earlier or contemporaneous claim or showing of any history of mental illness, drug addiction or anything else which might impair his mental faculties. He had twice seen the government's overwhelming evidence against him. United States v. Bentvena, supra, 319 F.2d at 926. He knew that four days had been consumed by a co-defendant's psychiatric examination and hearings. He faced a mandatory minimum sentence of five years and, in all probability, in view of his criminal record, twenty years if convicted. Against this, he knew that any sentence for contempt would be a slap on the wrist. United States v. Galante, supra, 298 F.2d at 75-76. He was already incarcerated. United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed. 2d 102 (1959). Five defendants at the first trial were not retried. A material witness against the defendants on the first trial (Cadieux) recanted by affidavit and refused to testify on the second trial except by deposition in Canada on motion of the defendants. In short, the defendants had everything to gain by a mistrial and virtually nothing to lose.
Considering these facts in the context of this trial and the incentive to provoke a mistrial, we have no doubt now, as we had no doubt then, that the motion for a psychiatric examination was frivolous *579 and in bad faith. We would be naive indeed not to have found that petitioner's misconduct and motion were merely his part in a plot to frustrate justice and but another of the "unprecedented tactics employed to impede the continuance and resolution of this trial * * *." United States v. Bentvena, supra, 319 F.2d at 932.
Petitioner's second claim is that he was mentally incompetent to stand trial on June 4 and 5, 1962. In addition to his unresponsiveness of June 4, recounted earlier, petitioner alleges that his sleepiness continued into the next day of trial. He further asserts that he remembers nothing at all from the "time of [his] cross examination * * * until the Chief Marshal * * * told [him] * * * that a nurse had given [him] a pill;" that "the remainder of that whole day of June 4, 1962 is very vague in [his] memory;" and that "the following day is clearer but still vague. * * *" Petitioner avers that preceding his cross-examination, he had been "needled by the Government agents who were in the Courtroom," which annoyed and irritated him, and that for "many days and perhaps some weeks" before taking the stand, he had suffered from "constant headaches and nervous tensions and had been feeling quarrelsome." Petitioner further alleges, without independent supporting evidence, that he sustained two head injuries during his youth, and that before being accepted by the Army in 1945 he was rejected for service in the United States Maritime Service (Merchant Marine) in 1943 or 1944 because of mental instability.
Accompanying petitioner's motion is an affidavit of his present counsel which is loaded with conclusions and embellishments while purporting to amplify petitioner's allegations on the basis of the record, two memoranda of law, and an affidavit of a psychiatrist based in part on the affidavits of petitioner and his counsel. Petitioner's papers do not raise the issue of mental incompetency to stand trial because the allegations of fact are patently false, incredible, unreliable or irrelevant. In deciding a motion under § 2255, we are not deprived of all discretion and common sense, nor need we give credence to unbelievable allegations. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); United States v. Farrar, 346 F.2d 375, 376 (7th Cir. 1965); United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 312 (2d Cir. 1963). That petitioner's claim is without merit is perfectly clear from the records of the case.
Petitioner's suggestion that he does not remember, and never has remembered, throwing the chair is impossible to believe for, as we have recounted, less than a month after the incident the trial court read the transcript record of the incident to him and asked him if he had anything to say before the court sentenced him for contempt. Petitioner responded: "Nothing much, your Honor, except that I am a hothead, period. * * * Well, I am sorry for the chair incident, your Honor." A fair reading of this excerpt shows that petitioner knew he threw the chair, remembered throwing it, and realized both at the time he threw it and at the time of his sentence for contempt that it was a conscious, deliberate act.[28] When he was sentenced for conspiracy, he again expressed contrition: "I'm sorry for my conduct during the trial, if it means anything now. I can't help it because I am hotheaded."
Petitioner's outspokenness at both trials on matters he thought favorable to him, his expressions of contrition, coupled with his failure to claim lack of memory until now, when it is probably impossible to try him again, demonstrate the falsehood of his allegations.[29]
*580 The claim that petitioner was "incoherent" during the recess following the chair-throwing incident, that he could not communicate with counsel during that time, and that he remembered nothing of the recess until the chief marshal told him that a nurse had given him a pill, is also incredible, for five weeks later, at a hearing[30] to determine the possible effects of medication given him during the recess, petitioner testified about some of his movements during the recess and gave details concerning the administration of the medication, including a conversation he had with the nurse. The testimony reveals that at the time in question petitioner was sufficiently alert to observe and comprehend acts and to participate intelligently in conversations, and, this being so, we have no doubt whatever that his non-responsiveness and sleepiness were feigned. Plainly he was sufficiently alert and sufficiently coherent to have communicated with counsel had he so desired.
Petitioner's allegation that he was "asleep or sleepy" the remainder of June 4 and the whole of June 5 and unable, as a result, to communicate with counsel, defies belief, for on the afternoon of June 4, petitioner was not too sleepy or incommunicative to tell counsel that a nurse had given him two pills, to claim that he had a headache, and to observe and remember that a person named Moscowitz testified. Moscowitz testified briefly on the afternoon of June 4, yet on June 19, when petitioner resumed the stand for redirect examination, he testified that a person known to him as "Murray" was the same Moscowitz who had testified earlier. Surely, if petitioner was alert enough on the afternoon of June 4 to note the fact that Moscowitz was testifying and communicative enough to inform counsel that a nurse had given him two pills and that he had a headache, he was not too sleepy to discuss the strategy of his trial with counsel.[31] It is also worth noting that on his second appearance on the witness stand, petitioner's testimony and demeanor were entirely rational, and there was no claim or suggestion that he was incompetent.
The affidavit of the psychiatrist concludes that for a period of time *581 encompassing the chair-throwing episode and its aftermath, petitioner was a "sociopathic personality" who may well have been mentally incompetent to stand trial. The mere submission of a psychiatrist's opinion, especially one as inconclusive, argumentative and ill-founded as the one offered here, does not compel us to grant a hearing. United States v. Womack, 211 F.Supp. 578, 583 (D.D.C.1962). Here, the psychiatrist never saw or examined petitioner but formed his speculative opinion on the basis of isolated excerpts from the trial transcript, portions of appellate records, "drafts" of affidavits and "conferences" with petitioner's counsel. This vague underpinning is patently inadequate as a basis for an expert opinion. It is not surprising, therefore, that at best the psychiatrist offers only a guess that petitioner "might have been subject to temporary psychotic episodes." As we have noted, the affidavits of petitioner and his counsel are so saturated with embellishments, opinions, arguments and conclusions as to be completely unacceptable as a foundation for expert opinion. Moreover, one of the alleged facts on which the psychiatrist reliesMirra's lack of memory of throwing the chair is demonstrably false. The psychiatrist failed to indicate what weight he accorded to that allegation or that his conclusion would be the same in its absence. We cannot rely on speculative opinion founded on falsehood and embellishments of counsel. Cf. Whalem v. United States, 346 F.2d 812, 820-821 (D.C.Cir.) (dissent), cert. denied, 382 U.S. 862, 86 S.Ct. 124, 15 L.Ed.2d 100 (1965); Carter v. United States, 102 U.S.App.D.C. 227, 252 F.2d 608, 617 (1957); United States v. Womack, supra. Finally, the psychiatrist concludes merely that petitioner was a "sociopathic personality" who may not have been competent to stand trial, without ever mentioning whether petitioner was or was not able to comprehend the proceedings or communicate with counsel, and without explaining in the least why the factors he considered pointed in the direction of the conclusion he reached. "The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion; in the explanation of the disease and its dynamics, that is, how it occurred, developed, and affected the mental and emotional processes of the defendant; it does not lie in his mere expression of conclusion." Carter v. United States, supra, 252 F.2d at 617.
Accordingly, we conclude that the psychiatrist's opinion is so ill-founded, speculative and unreliable as to fail to raise an issue of fact as to petitioner's competence to stand trial.
Petitioner's allegation that as a child he suffered two head injuries requiring a total of thirteen or fourteen stitches is also insufficient to raise an issue. There is no indication that these injuries were more serious than other common childhood injuries and no support for the implicit suggestion that they adversely affected petitioner's mental health. Bare allegations of apparently non-serious head injuries do not require us to hold a hearing. Cf. Dickey v. United States, 345 F.2d 508 (5th Cir. 1965); Kenner v. United States, 286 F.2d 208 (8th Cir. 1960).
Petitioner's unsupported allegation that in 1943 or 1944 he was rejected for service by the Merchant Marine as mentally unstable adds nothing to his other allegations. Assuming its truth, that fact is wholly unworthy of serious consideration in determining mental competency to stand trial almost twenty years later, especially since petitioner was subsequently accepted for service in the Army and since he does not allege that he has ever undergone psychiatric examination, observation or treatment, before or after trial, in or out of prison, cf. Roe v. United States, 325 F.2d 556 (8th Cir. 1963); United States v. Cannon, 310 F.2d 841 (2d Cir. 1962); Navedo Santos v. United States, 305 F.2d 372 (1st Cir. 1962); Bostic v. United States, 112 U.S.App.D.C. 17, 298 F.2d 678 (1961); Gregori v. United States, 243 F.2d 48, 53-54 (5th *582 Cir. 1957), or during his Army service, cf. Nelms v. United States, 318 F.2d 150 (4th Cir. 1963); Fisher v. United States, 317 F.2d 352 (4th Cir. 1963). Though counsel refers to petitioner's propensity towards violence and his former demimonde way of life as evidence of petitioner's general mental instability, this, like the evidence against him on the trial, only shows that petitioner was a hardened, crafty and desperate criminal.
Bare allegations that for a period of time preceding the chair-throwing incident, petitioner felt annoyed, tense, irritated, needled and quarrelsome, and that he suffered from constant headaches and nervous tension are patently insufficient to require a hearing concerning petitioner's mental competency to stand trial. Burrow v. United States, 301 F.2d 442 (8th Cir.), cert. denied, 371 U. S. 894, 83 S.Ct. 193, 9 L.Ed.2d 126 (1962); United States v. McNicholas, 298 F.2d 914 (4th Cir.), cert. denied, 369 U.S. 878, 82 S.Ct. 1150, 8 L.Ed.2d 280 (1962); United States v. Rosenberg, 200 F.2d 666, 668 (2d Cir. 1952), cert. denied, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384 (1953); United States v. Molino, 240 F. Supp. 332 (S.D.N.Y.1965). Indeed, we would be seriously concerned about petitioner's mental competency if, confronted by a probable twenty years in prison, he did not experience considerable worry. United States v. Burdette, 161 F.Supp. 326, 330 (E.D.Mich.1957), aff'd, 254 F. 2d 610 (6th Cir. 1958), cert. denied, 359 U.S. 976, 79 S.Ct. 887, 3 L.Ed.2d 842 (1959).
This leaves only one allegation to be considered: the naked fact that petitioner threw the witness chair at the prosecutor. That fact, in the context of this multi-defendant conspiracy case, is insufficient to raise the question of incompetency to stand trial. Cf. Lebron v. United States, 97 U.S.App.D.C. 133, 229 F.2d 16 (1955), cert. denied, 351 U.S. 974, 76 S.Ct. 1035, 100 L.Ed. 1492 (1956).
As we have already demonstrated, this trial was outrageously marred by deliberate attempts to abort the trial, and in the light of the transparent plot, throwing a chair is neither bizarre nor irrational but an easy device to escape justice by provoking a mistrial whenever a defendant chooses. United States v. Aviles, 274 F. 2d 179, 193 (2d Cir.), cert. denied, 362 U.S. 974, 982, 80 S.Ct. 1057, 4 L.Ed.2d 1009 (1960). The atmosphere at trial, petitioner's own statements at the various proceedings, and the deliberate lying in petitioner's present affidavit, cf. United States ex rel. Rambert v. State of New York, 358 F.2d 715 (2d Cir. 1966), all combine to produce an overwhelming and irrestible conclusion that to hold a hearing in this case would be to make a mockery of post-conviction remedies. If this is not a case in which the files and records conclusively show the absolute worthlessness of a petitioner's claims, then § 2255 gives every prisoner who is unsqueamish about perjury an ironclad right to a hearing. We conclude that the files and records of this case show beyond doubt that there is no basis for relief on the grounds urged by petitioner.
This brings us to the motion to disqualify this court from considering this § 2255 application. Title 28 U.S.C. § 455 provides that:
"Any * * * judge of the United States shall disqualify himself in any case in which he * * * is or has been a material witness, * * * as to render it improper, in his opinion, for him to sit on the trial, appeal or other proceeding therein."
Petitioner contends that, since the trial judge denied his motion for a psychiatric examination on the basis of his observations of petitioner and his co-defendants during pre-trial and trial, the judge might well be called as a material witness at the hearing on petitioner's § 2255 motion (were such a hearing granted). Manifestly, the trial judge knows what he saw and heard in the courtroom. We think, however, that such knowledge does not disqualify the trial judge as a "material witness" on an application under § 2255.
An application for collateral relief under § 2255 must be filed in the sentencing *583 court, rather than in the district court where the prisoner is confined, as was the practice under habeas corpus, precisely because the sentencing judge does have intimate knowledge of the facts and circumstances of the case. This statutory requirement was designed to relieve other judges from the labor of learning the facts from a cold and often voluminous record and to correct the unseemly practice under habeas corpus of pitting the credibility of a United States district judge against that of a convicted criminal. Equally imperative was the congressional purpose of preventing a disruption of judicial business while the trial judge was absent from his own court testifying in another. This congressional design to supplant a cumbersome, expensive and highly unsatisfactory procedure with a sound, efficient and practical one, would be wholly frustrated if the trial and sentencing judge were disqualified as a material witness under § 455 in a § 2255 proceeding merely because he knows what happened in his courtroom during the challenged conviction. United States v. Smith, 337 F.2d 49 (4th Cir. 1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436 (1965). See also United States v. Hughes, 325 F.2d 789, 792-793 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). Moreover, a literal reading of § 455 shows that disqualification is required only if the court is (or has been) a material witness, and at this stage of this application, no one is a material witness. Here, the only issue is whether petitioner is entitled to a hearing, United States v. Hughes, supra, an issue we have resolved in the negative.
A second ground urged by petitioner as a basis for disqualification is that the court "has previously shown an intense personal bias and prejudice against" him. Title 28 U.S.C. § 144 provides that:
"Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice * * * against him * * * such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding."
Disregarding embellishments, arguments and conclusions, the only facts alleged by petitioner are that the trial judge denied his motion for a psychiatric examination, held him in contempt, and in stating its reasons for denying the motions, remarked that petitioner's behavior at trial was "wilful and deliberate, designed to provoke a mistrial or terrorize this jury or the court," and that his alleged sleepiness and inability to communicate with counsel was a "put-up job" and a "fake." Petitioner adds that upon sentencing him for contempt, the court said that petitioner thought from the fact that his previous twenty-day sentence for contempt had been characterized as "severe" by the Court of Appeals, that he had "a license to break up this trial with the most outrageous conduct that has ever come to the attention of this Court in any trial. * * * You merit the sentence which the Court has given you. Take him out."
In determining the question of personal bias or prejudice, the judge "must look solely to the facts alleged in support of such charge. His duty to deny the affidavit on insufficient allegations is no less imperative than to allow it on sufficient allegations." Tucker v. Kerner, 186 F.2d 79, 85 (7th Cir. 1950). See also Rosen v. Sugarman, 357 F.2d 794, 797-798 (2d Cir. 1966). Here, all that petitioner shows is that the trial court denied his motion for a psychiatric examination, gave its reasons for finding bad faith, and held petitioner in contempt, again with a statement of its reasons. This showing is patently insufficient to establish personal bias or prejudice. Rosen v. Sugarman, supra; Barnes v. United States, 241 F.2d 252 (9th Cir. 1956); Chessman v. Teets, 239 F.2d 205, 215 (9th Cir. 1956), rev'd on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L. Ed.2d 1253 (1957); Foster v. Medina, 170 F.2d 632 (2d Cir. 1948), cert. denied, 335 U.S. 909, 69 S.Ct. 412, 93 L.Ed. 442 (1949); United States v. Valenti, 120 F. *584 Supp. 80 (D.N.J.1954). It may be that our actions, taken out of context and painted with the facile brush so evident here, "exhibit a bent of mind fatal to impartiality of judgment," Rosen v. Sugarman, supra, 357 F.2d at 798, but we think, as petitioner himself suggests, that the total record must be considered, and taking the record as a whole, we find nothing which in any way suggests a personal bias or prejudice against him. Quite the contrary, we think the record shows that we were solicitous of his plight to the point of telling him several times that he ought to try to make a good impression on the jury.
Our conclusion is reinforced when we remember that all our rulings, comments and actions were carefully scrutinized upon appellate review where detached judicial minds found them wholly free from bias or prejudice. Rejecting the charge of prejudice leveled against us on appeal, the court stated, inter alia:
"All appellants also contend that the trial judge's attitude towards the defendants and their counsel, as revealed by his comments and rulings, prejudiced the jury against them. To support these claims, appellants direct our attention to isolated incidents, invariably taken out of context, and ask us to conclude therefrom that the trial judge abandoned his proper sense of impartiality and placed the weight of his position on the side of the prosecution.
The trial judge, in his attempt to bring this case to trial and to see it brought to an orderly and expeditious conclusion, was presented with a host of problems calling for the exercise of his discretion. Having the experience of the first trial before him, he had to make certain that the trial proceeded with reasonable dispatch and, at the same time, guarantee that all steps be taken to safeguard the rights of the defendants. In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice.
* * * * * *
We have described sufficiently the outrageous conduct of the defendants at this trial. We find that the trial judge, notwithstanding this harassment, maintained an impartial attitude and did all in his power to safeguard the rights of the defendants and to minimize the effects of these outbursts. After the incident in question, as after all similar disturbances, the judge instructed the jury to ignore it. We find no ground for reversal here." United States v. Bentvena, supra, 319 F.2d 932-933.
We conclude that petitioner has failed to demonstrate a sufficient basis for disqualifying this court from considering his motion to vacate sentence.
Accordingly, petitioner's motion to disqualify this court is denied, and his motion to vacate sentence is denied without a hearing.
So ordered.
NOTES
[1] 28 U.S.C. § 455.
[2] 28 U.S.C. § 144.
[3] See United States v. Stromberg, 268 F.2d 256 (2d Cir.), cert. denied, 361 U.S. 863, 80 S.Ct. 119, 4 L.Ed.2d 102 (1959).
[4] The two-hour delay was required to replace the witness chair, bolt it to the stand, and obtain restraining equipment from the New York City police department in order to prevent a recurrence of such misconduct.
[5] Earlier in the trial, we found it necessary, because of countless motions and applications, to rule that all motions and applications would be heard at the close of the day's testimony (Tr. 5666), otherwise interruptions would have resulted in interminable delays which would surely have outlasted the alternate jurors, as on the first trial.
[6] We did not say "until a time when he can cooperate in his own defense," as Mr. Lewis tries to suggest on page 16 of his affidavit by putting trial counsel's words into the court's mouth. See trial transcript, p. 6469.
[7] The witness Drolet's testimony, almost totally hearsay, was favorable to petitioner's claim that the witness Cadieux had committed perjury for pay when she testified for the government in the prior trial. Tr. 6473-6499.
[8] Tr. 6546-6550.
[9] Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947).
[10] Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Fay v. Noia, 372 U.S. 391, 438-439, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 317, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
[11] See Sanders v. United States, supra, 373 U.S. at 28-29, 83 S.Ct. 1068; Hill v. United States, 236 F.Supp. 155, 158 (E.D.Tenn.1964); The Supreme Court, 1962 Term, 77 Harv.L.Rev. 62, 143 n. 18, 148 n. 46 (1963).
[12] See Sanders v. United States, supra, 373 U.S. at 10-11, 17, 21, 29, 83 S.Ct. 1068.
[13] Cf. Nash v. United States, 342 F.2d 366 (5th Cir. 1965); United States ex rel. Tangredi v. Wallack, 236 F.Supp. 205, 207-208 (S.D.N.Y.1964), modified, 343 F.2d 752 (2d Cir. 1965); Carpenter v. Gladden, 223 F.Supp. 612, 614 (D.Ore. 1963).
[14] Townsend v. Sain, supra, 372 U.S. at 319, 83 S.Ct. 745.
[15] See Exhibit "B" to Government's Appendix filed in opposition to this motion.
[16] Exhibits "B" and "J" to Government's Appendix.
[17] Cf. Whitus v. Balkcom, 333 F.2d 496 (5th Cir.), cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343 (1964).
[18] See Fay v. Noia, supra, 372 U.S. at 439, 83 S.Ct. 822, 9 L.Ed.2d 837.
[19] Townsend v. Sain, supra, 372 U.S. at 317, 83 S.Ct. 745, 9 L.Ed.2d 770.
[20] Sanders v. United States, supra, 373 U.S. at 15, 83 S.Ct. at 1077, 10 L.Ed.2d 148; 28 U.S.C. § 2255.
[21] United States v. Bentvena, 319 F.2d 916, 929 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963).
[22] United States v. Bentvena, 288 F.2d 442, 445 (2d Cir. 1961).
[23] The remand was also upheld by Mr. Justice Harlan acting in his capacity as Circuit Justice. Fernandez v. United States, 81 S.Ct. 642, 5 L.Ed.2d 683 (1961).
[24] United States v. Bentvena, supra, 319 F.2d 929.
[25] See United States v. Bentvena, supra, 319 F.2d 916 (Judges Moore, Smith and Hays); United States v. Panico, 308 F. 2d 125 (2d Cir. 1962) (Judges Moore and Smith, Judge Friendly dissenting), vacated on other grounds, 375 U.S. 29, 84 S. Ct. 19, 11 L.Ed.2d 1 (1963); United States v. Galante, 308 F.2d 63 (2d Cir. 1962) (Judge Kaufman); United States v. Bentvena, 308 F.2d 47 (2d Cir. 1962) (Chief Judge Lumbard); United States v. DiPietro, 302 F.2d 612 (2d Cir.1962) (per curiam) (Judges Friendly, Smith and Marshall); United States v. Bentvena, 288 F.2d 442 (2d Cir. 1961) (Chief Judge Lumbard, Judge Waterman and Judge Madden, United States Court of Claims, sitting by designation).
[26] Cf. Lebron v. United States, 97 U.S.App. D.C. 133, 229 F.2d 16, 18 (1955), cert. denied, 351 U.S. 974, 76 S.Ct. 1035, 100 L.Ed. 1492 (1956); Wear v. United States, 94 U.S.App.D.C. 325, 218 F.2d 24, 26 (1954).
[27] Petitioner's statements and acts throughout the pre-trial and post-trial proceedings are accurately summarized at pages 22-35 of the affidavit of Michael W. Mitchell, sworn to February 23, 1966 and submitted in opposition to this motion, and we adopt that summary as though fully set forth in this opinion.
[28] Petitioner was also made aware of the fact that he threw the chair, an occurrence he now denies remembering, on June 26, when he was sentenced for contempt, on July 10, when he was sentenced on the challenged conviction, and again on July 16, 1962, when he was arraigned for assaulting the prosecutor.
[29] When petitioner was arraigned before Judge Bryan on July 16, 1962 and handed a copy of the indictment charging him with assault for throwing the chair at the prosecutor, he did not claim non-recollection or mental incompetency, but merely stated, "I was already given a sentence for this here," apparently referring to his sentence for contempt. Petitioner now claims that late in April or early in May 1964 he interviewed his present attorney because he had found certain items in the trial record which caused him to hope that he would be able to prove that his conviction was unconstitutional. Yet, on May 1, 1964, before Judge Weinfeld, petitioner acknowledged full responsibility for the chair-throwing when he pleaded guilty to the assault. At that time, he stated that he understood the charge, that he had consulted with an attorney and given him the facts, and that he was pleading guilty because in fact he was guilty. He made no claim of non-recollection or mental incompetence.
[30] Petitioner's trial counsel claimed that the alleged sleepiness was due to medication administered by Courthouse and prison personnel. Accordingly, on July 9, 1962, five weeks after the alleged sleepiness and two weeks after the verdict, the issue was explored at a hearing and decided against petitioner. The medication was an aspirin-like compound which would not induce sleep. Petitioner testified on that hearing and swore that he did not remember the identity of witnesses who had testified on the afternoon of June 4, 1962, but that testimony is squarely in conflict with petitioner's testimony on June 19, when he remembered the testimony of Moscowitz, who had testified on the afternoon of June 4.
[31] Even if petitioner were incoherent during the recess following the chair-throwing incident and in fact unable to communicate with counsel at that time, we cannot see that it matters. When petitioner returned from the recess, the government revealed that it had completed its cross-examination, and the court permitted petitioner's counsel to defer redirect to a later time. The jury then returned from the recess, and other witnesses were examined. Not until two weeks later did petitioner retake the stand for redirect examination. Under the circumstances, even if we assume the truth of the allegation, we fail to perceive how an inability to communicate with counsel during a two-hour recess can constitutionally require us to render abortive a ten-week trial.
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826 F.Supp. 40 (1993)
Kenneth J. PARTLOW, Plaintiff,
v.
Marvin T. RUNYON, Postmaster General of the United States, Defendant.
Civ. No. 90-22-M.
United States District Court, D. New Hampshire.
June 30, 1993.
*41 Raymond J. Kelly, Manchester, NH, for plaintiff.
Gretchen Leah Witt, First Asst. U.S. Atty., Concord, NH, (Peter W. Gallaudet, Law Dept., U.S. Postal Serv., Windsor, CN, of counsel), for defendant.
MEMORANDUM ORDER
McAULIFFE, District Judge.
This is an action brought under the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., and the regulations issued thereunder, 29 C.F.R. § 1613.701 et seq., for discrimination based on a handicap. The plaintiff claims that the United States Postal Service violated the Act by refusing to hire him as an automobile mechanic. The defendant has moved for summary judgment. For the reasons set forth below, defendant's motion is granted.
I. Relevant Facts.
Kenneth J. Partlow, a fifty-one year old automobile mechanic, has an extensive history of chronic back problems dating from 1961, when he injured himself while serving in the United States Army. From the time of that original injury, until his discharge in 1978, he was treated several times for low back pain. Upon his retirement from the Army, the Veterans Administration awarded him a service-connected disability rating of 20% for chronic lumbosacral strain and 10% for hearing loss.
After leaving the military, Partlow worked for a private company as an auto mechanic for three years. He had no back problems during that period. In February, 1981, he was hired as a civilian auto worker in the transportation motor pool at the United States Army Garrison, Fort Devens, Massachusetts. Partlow re-injured his lower back in October, 1984, while at work. X-rays revealed early degenerative joint disease of the cervical spine. Following this new back injury, Partlow requested a transfer from his position working on 20-ton vehicles to a light-duty assignment, working on vehicles under 2-½ tons. His request was granted, but within a few weeks he was returned to his original duties. In November, 1985, he was promoted to auto mechanic, a position he held until he resigned in October, 1989.
Following his promotion, Partlow suffered another series of work-related back injuries. In 1986, he injured himself while repairing a transmission, missing two-and-a-half weeks of work as a result. In April of 1987, he again injured his back at work, after which his physician advised him against engaging in heavy lifting, prolonged sitting or standing. He was also examined by an orthopedist, Dr. Wallace, who noted that x-rays of his spine showed mild degenerative changes. Wallace Deposition, p. 41. In April of 1988, he again hurt his back when his car hit a pothole. Dr. Wallace conducted another examination, and told Partlow not to lift more than 20-30 pounds on an intermittent basis or to stand for more than an hour at a time. He also advised Partlow to pursue a career more consistent with these restrictions. Wallace Deposition, p. 58. Shortly thereafter, Partlow saw a VA physician who recommended an MRI be taken of his spine. The MRI revealed a herniated cervical disc.[1]
In March, 1988, Partlow applied for a position as vehicle mechanic with the United States Postal Service in Manchester, New Hampshire ("the Postal Service"). Postal Service auto-mechanics repair mail-trucks, and remove and install complete motors, clutches, transmissions and other parts. The functional requirements of the job, according to the Postal Service, require "engag[ing] in heavy lifting up to 70 pounds and heavy carrying, 45 pounds and over; and ... during an eight-hour day, on an intermittent basis, engag[ing] in straight pulling, pulling *42 hand over head, pushing, walking, standing, crawling, kneeling, repeated bending, climbing (legs only)." Declaration of Paul S. Langa. ¶ 6. According to Partlow's vocational expert, the job required "lifting [from 2070 pounds], working in awkward positions, frequent bending and lifting," and prolonged standing. Deposition of Bernard Hecht, pp. 25-29, 47-48. Partlow applied for this job because he believed it would be less physically demanding than his job at Fort Devens, since the Postal Service has more modern equipment and assistive devices than does Fort Devens. Plaintiff's Opposition to Defendant's Motion for Summary Judgment, p. 8. In August, 1988, he was informed that he had been tentatively selected for the position.
Partlow passed a pre-employment road-test in early August, 1988. Expecting to be hired by the Postal Service, he resigned from his position at Fort Devens. In late August, he was given a pre-employment medical examination. The result of that exam was inconclusive because the examining physician, Dr. Duval, felt he had insufficient information to determine whether Partlow was medically fit to perform the Postal Service job. Dr. Duval recommended that a back specialist examine him. Partlow's file was sent to Dr. Siebert, Chief Medical Officer for the Manchester Division of the Postal Service, for review. Dr. Siebert is an expert in occupational health who reviews approximately 50-75 job applications a year for the Postal Service. Dr. Siebert examined Partlow's VA medical file, Dr. Duval's examination and assessment, and the MRI report. He concluded that "a long history of chronic back pain is not compatible with the demands of this job" which, he stated, "requires repeated and prolonged bending, lifting and working in awkward positions." Based on Dr. Siebert's assessment, the Postal Service decided not to hire Partlow. After his rejection, from 1988 through 1989 Partlow worked as a part-time auto mechanic and driver for a limousine service. From October, 1990, to May, 1992, he worked as an apprentice optical technician.
After exhausting his administrative remedies through the Equal Employment Opportunity Commission, Partlow filed this suit, alleging that he is a handicapped person as defined by the Rehabilitation Act of 1973 ("the Act"). Partlow also claims that he is an "otherwise qualified" person, as defined by the Act, if reasonable accommodations were made by the Postal Service. The Postal Service has moved for summary judgment, arguing that Partlow does not fall within the ambit of the Act and that, even if he did, the accommodations he would require to perform the job are not reasonable.
II. Standard of Review.
Summary judgment is appropriate when the record reveals "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In ruling upon a party's motion for summary judgment, the Court must, "view the entire record in the light most hospitable to the party opposing summary judgment, including all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990).
The moving party has the burden of demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986), motion denied, 480 U.S. 903, 107 S.Ct. 1343, 94 L.Ed.2d 515 (1987). If the moving party carries its burden, the non-moving party must set forth specific facts showing that there remains a genuine issue of material fact for trial, demonstrating "some factual disagreement sufficient to deflect brevis disposition." Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). "In this context, `genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party [and] `material' means that the fact is one that might affect the outcome of the suit under the governing law." United States v. One Parcel of Real Property with Bldgs., 960 F.2d 200, 204 (1st Cir.1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). The non-moving party "may not rest upon *43 the mere allegations or denials of the adverse party's pleadings, but the [non-moving] party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "The nonmov[ing] party cannot content himself with unsupported allegations; rather, he must set forth specific facts, in suitable evidentiary form, in order to establish the existence of a genuine issue for trial." Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir. 1992). "Summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).
III. The Rehabilitation Act.
To state a claim under the Rehabilitation Act, a plaintiff must show that he or she is handicapped. Taub v. Frank, 957 F.2d 8 (1st Cir.1992). The Act defines a handicapped individual as:
any person who (i) has a physical ... impairment which substantially limits one or more of such person's major life activities; (ii) has a record of such impairment; or (iii) is regarded as having such impairment.
29 U.S.C. § 706(8)(B); 29 C.F.R. § 1613.702(a) (1992). The term physical impairment includes "any physiological disorder or condition, ... affecting one or more of the following body systems: [n]eurological; musculoskeletal. ..." 29 C.F.R. § 1613.702(b)(1) (1992). "Major life activities" are "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1613.702(c) (1992) (emphasis added). The regulations define "is regarded as having an impairment" to mean:
(1) has a physical ... impairment that does not substantially limit major life activities but is treated by an employer as constituting such a limit;
(2) has a physical impairment that substantially limits major life activities only as a result of the attitude of an employer towards such an impairment;
(3) or has none of the impairments defined in (b) of this section but is treated by an employer as having such an impairment.
29 C.F.R. § 1613.702(e) (1992)
Once the plaintiff has shown a handicap, "the employer is given the ultimate burden of proof on the issue of reasonable accommodation." Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir.1991); Prewitt v. United States Postal Serv., 662 F.2d 292, 308 (5th Cir. 1981). To do this, the employer must 1) identify the essential aspects of the job, and 2) demonstrate that reasonable accommodation is not possible. School Board of Nassau County v. Arline, 480 U.S. 273, 287, 107 S.Ct. 1123, 1130, 94 L.Ed.2d 307 (1987). "Reasonable" accommodation does not include eliminating essential aspects of the job. Hall v. United States Postal Serv., 857 F.2d 1073, 1078 (6th Cir.1988); Jasany v. United States Postal Serv., 755 F.2d 1244, 1250 (6th Cir.1985).
IV. Discussion.
Partlow and defendant both agree that he has an impairment, "chronic lumbo-sacral strain," and that this back condition does not in fact limit major life activities. Partlow Deposition, p. 15; Defendant's Motion for Summary Judgment, p. 21. Instead, Partlow claims that he falls within the definition of handicapped under the Act because he was treated by the Postal Service as if his impairment did substantially limit a major life activity, working. See 29 C.F.R. § 1613.702(e).
The Postal Service contends that it never regarded Partlow's impairment as substantially limiting a major life activity, but only as disqualifying him from one position, automotive mechanic at its New Hampshire facility. It argues that Partlow cannot meet his burden of proving the Postal Service regarded him as handicapped merely by showing the Postal Service found him unable to satisfy the requirements of a single position.
Courts have uniformly rejected the notion that failure to qualify for one position renders a person "handicapped" within the meaning of the Act. "An employer does not necessarily regard an employee as handicapped simply by finding the employee to be *44 incapable of satisfying the singular demands of a particular job." Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir.1986) (acrophobia held not to substantially limit life activities, but only employee's ability to perform one position at a plant).[2]
Of course, just because Partlow was rejected for not meeting the Postal Service's physical requirements for an auto mechanic position does not mean he was not treated as handicapped.
"We acknowledge that a per se rule that permitted every unsuccessful applicant who was rejected due to a job requirement to be deemed handicapped `would stand the [Rehabilitation] Act on its head.' [citation omitted] However, a per se rule that never permitted an unsuccessful job applicant to prove he was perceived as being handicapped by pointing to the fact that he did not possess a so-called job requirement due to physical impairment would likewise stand the Act on its head."
Taylor v. United States Postal Serv., 946 F.2d 1214, 1218 (6th Cir.1991). The test for whether a perceived impairment substantially limits a major life activity is not whether the employer's rejection of the applicant was due to a good faith, narrowly-based decision that the applicant's characteristics did not match specific job requirements. If this were the criteria, most employers would easily escape the requirements of the Act.
Rather, the proper test is whether the impairment, as perceived would affect the individual's ability to find work across the spectrum of same or similar jobs. The seminal case setting out this approach is E.E. Black, Ltd. v. Marshall, 497 F.Supp. 1088, 1100-1101 (D.Haw.1980) (apprentice carpenter with spinal condition handicapped under the Act because perception of impairment would limit obtaining work in his general area of expertise):
[T]he real focus must be on the individual job seeker ... This necessitates a case-by-case determination of whether the ... perceived impairment of a rejected, qualified job-seeker, constitutes, for that individual, a substantial handicap to employment. ... If an individual were disqualified from the same or similar jobs offered by employers throughout the area to which he had reasonable access, then his impairment or perceived impairment would have to be considered as resulting in a substantial handicap to employment.... [W]hat is to be considered a similar job must be made on a case-by-case basis....
Most courts have followed Black. Reeder v. Frank, 813 F.Supp. 773, 781 (D.Utah 1992), petition for cert. filed, 61 U.S.L.W. 3789 (May 10, 1993) (No. 92-1788) (Black is "the seminal case" in this area); Forrisi, 794 F.2d at 932 ("the inquiry [of who is handicapped] is, of necessity, an individualized one whether a particular impairment constitutes a significant barrier to employment for a particular person"); Jasany, 755 F.2d at 1249 ("the impairment at issue must be evaluated with reference to the individual job seeker"); Taylor, 946 F.2d at 1217; Visarraga v. Garrett, No. C-88-2828 FMS, 1993 WL 209997 at *5 (N.D.Cal. June 12, 1992); Scharff v. Frank, 791 F.Supp. 182, 187 (S.D.Ohio 1991); Perez v. Philadelphia Housing Authority, 677 F.Supp. 357, 360 (E.D.Pa.1987), aff'd, 841 F.2d 1120 (3d Cir. 1988).[3]
*45 Criteria by which to evaluate the impact of the perceived impairment include the number and types of jobs from which a person would be disqualified, the geographical area to which the plaintiff has reasonable access, and the individual's job expectations. Black, 497 F.Supp. at 1101. Accord Forrisi, 794 F.2d at 933; Jasany, 755 F.2d at 1249; Welsh, 977 F.2d at 1419; Fuqua v. Unisys Corp., 716 F.Supp. 1201, 1205-6 (D.Minn. 1989).[4] This Court will follow the same approach to evaluate the Postal Service's treatment of Partlow's impairment.
Partlow advances several arguments to show that the Postal Service regarded him as handicapped. The first is that Dr. Siebert, the Postal Service's Chief Medical Officer, described him as handicapped. "Dr. Siebert's declaration states unequivocally that he viewed Plaintiff as handicapped since he had a back problem." Plaintiff's Opp., p. 16. In fact, Dr. Siebert's affidavit is quite equivocal: "To the extent that Mr. Partlow had low back problems, I consider him to be handicapped because from my point of view as a physician I consider anything less than perfect health to be a handicap." Siebert Declaration, p. 5. Moreover, Dr. Siebert's definition of handicap "anything less than perfect health" does not even approximate the statutory definition. Dr. Siebert's declaration cannot be interpreted to mean that the Postal Service regarded him as handicapped as the term is defined by the Act.[5]
Partlow's second argument is that the Postal Service's perception of his impairment would disqualify him from the majority of the jobs in the local New Hampshire area for which he is qualified. "If [the Postal Service]'s assessment of [Partlow]'s limitation on lifting and carrying [is] substantially correct, [he] would be unable to perform approximately half of the jobs in the local economy[,] for he would be restricted to light or medium work." Plaintiff's Opp., p. 17. Therefore, he concludes, the Postal Service regarded him as having a substantial limitation on his ability to work.
Partlow's argument is similar to that made by the plaintiff in Scharff v. Frank, 791 F.Supp. 182 (S.D.Ohio 1991). There, the plaintiff, also a Postal Service job applicant,[6] suffered from musculoskeletal injuries to the knee, ankle and wrist. Her impairments did not prevent her from engaging in many physical activities, including sports. Nevertheless, when she applied for a position as letter carrier she was rejected after a pre-employment medical examination. The court held that the Postal Service regarded Scharff as having a physical impairment substantially limiting her ability to work, and was therefore handicapped within the meaning of the *46 Act. Scharff, 791 F.Supp. at 187. The court reached its conclusion by adopting the reasoning Partlow urges this court to accept: "[t]he plaintiff would be precluded from performing a wide range of jobs if her ability to perform tasks was limited in the manner described by [the examining physician]." Id.
Scharff is distinguishable on two grounds. First, the physical demands placed on letter carriers are much less burdensome than those placed on auto mechanics. Scharff necessarily was regarded as excluded from a far greater range of activities than Partlow.[7] Second, Scharff supported her claim that she would be prevented from performing approximately half of the unskilled jobs in the local economy with a vocational expert's testimony. Partlow, on the other hand, offers no support for his claim that he would be disqualified from a large part of the local job market. His claim is completely speculative. Accord Welsh, 977 F.2d at 1419 (Scharff-type argument fails because "plaintiff failed to present evidence like the vocational expert's opinion in Scharff.")
Partlow's primary employment for the past twenty years has been as a mechanic. His work experience is limited to that field. Plaintiff's Opp., p. 17. One might argue that, although he might not be disqualified from most jobs in the local economy, his perceived impairment would disqualify him from similar auto-mechanic jobs for which he is otherwise qualified. See Black, 497 F.Supp. at 1101 ("[plaintiff's] job expectations and training must be taken into account"). However, even if examined in this more restricted context, Partlow's perceived impairment would still not qualify as a substantial limitation on his ability to find work. It is not apparent that all auto-mechanic employers in New Hampshire would impose the same requirements as the Postal Service, and Partlow has not come forward with any evidence in this regard. Not all auto-mechanic jobs necessarily involve repairing trucks, heavy lifting, working in awkward positions, crawling, kneeling or repeated bending. For example, Partlow held a part-time driver/mechanic job after his rejection by the Postal Service. Even if auto-mechanic employers would generally perceive Partlow's impairment in the same way as the Postal Service did, he still would probably not be disqualified from so many auto-mechanic-type jobs that such a perception would pose a significant impediment to his finding work.
The Court finds that Mr. Partlow has not met his burden of demonstrating that the Postal Service regarded his impairment as a handicap within the meaning of the Act. His arguments are sophisticated, but speculative, and do not raise genuine issues of material fact. At most, plaintiff has established that defendant regarded him as unable to satisfy the requirements of a particular mechanic's position due to his particular back problems. This does not render him handicapped under, nor does it entitle him to the protection of the Act. See cases cited supra, note 2. Since plaintiff has failed to establish a prima facie case that he is handicapped within the meaning of the Rehabilitation Act of 1973, it is unnecessary to address the availability of reasonable accommodations.
Accordingly, defendant's Motion for Summary Judgment (document no. 41) is granted.
SO ORDERED.
NOTES
[1] An MRI (Magnetic Resonance Imaging) is a non-invasive diagnostic procedure which provides images of the body's soft tissues.
[2] See also Maulding v. Sullivan, 961 F.2d 694 (8th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1255, 122 L.Ed.2d 653 (1993) (sensitivity to chemicals only a limitation on lab work); Daley v. Koch, 892 F.2d 212 (2d Cir.1989) (personality disorder only a limitation on being a policeman); Torres v. Bolger, 781 F.2d 1134 (5th Cir.1986) (per curiam) (left-handedness only a limitation on job requiring right-handed mail sorter); Jasany v. United States Postal Serv., 755 F.2d 1244 (6th Cir.1985) (being cross-eyed only limitation on operating certain machinery); Elstner v. Southwestern Bell, 659 F.Supp. 1328 (S.D.Tex. 1987), aff'd mem., 863 F.2d 881 (5th Cir.1988) (knee problem only a limitation on work involving pole climbing); Tudyman v. United Airlines, 608 F.Supp. 739, 745 (C.D.Cal 1984) (weight only a limitation on work as airline attendant); Note, The Rehabilitation Act of 1973, 30 Wm. & Mary L.Rev. 149, 169-72 (1988) (discussion of the "bootstrapping-dilemma" generated by including working as a major life activity.)
[3] An employee is not handicapped merely because he is rejected from the specific job of his choice. See Tudyman v. United Airlines, 608 F.Supp. 739, 745 (C.D.Cal 1984) ("The regulations define major life activity as, inter alia, `working,' ... but not `working at the specific job of plaintiff's choice.'"); Welsh v. City of Tulsa, Oklahoma, 977 F.2d 1415, 1417 (10th Cir.1992) (same); Daley v. Koch, 892 F.2d at 215 (same); Cook v. Rhode Island, Dep't of Mental Health, Retardation and Hospitals, 783 F.Supp. 1569, 1574 (D.R.I.1992) (same).
[4] See also Haines, E.E.Black, Ltd. v. Marshall: A Penetrating Interpretation of "Handicapped Individual" For Sections 503 and 504 of the Rehabilitation Act of 1973 and for Various State Equal Employment Statutes, 16 Loy. L.A. L.Rev. 527, 554-57 (1983) ("quest for controlling criteria ... involves rejecting superficial disclaimers" by employers). The difficulties an ad-hoc test might cause employers are more apparent than real. "Employers ... may argue that ... they do not know in advance who is covered by the Act. However, before they come to that precarious position, they must already be dealing with a person who has (or who is perceived as having) a physical or mental impairment, who is capable of performing a particular job and who is rejected for that job on the basis of the impairment. These facts alone should put [employers] on notice that they are dealing with a person covered by the Act." Black, 497 F.Supp. at 1100.
[5] Partlow also states that Paul Langa, Postal Service Director of Human Services, who made the decision not to hire him, "stated a similar conviction that the plaintiff was handicapped." Plaintiff's Opp., p. 16. Langa's affidavit, in fact, states: "I did not perceive Mr. Partlow as a handicapped person because his back condition did not substantially interfere with his ability to work." Declaration of Paul S. Langa, p. 3.
[6] For some reason, the United States Postal Service seems to be a recurring defendant in suits brought under the Rehabilitation Act. See, e.g., Taub v. Frank, 957 F.2d 8 (1st Cir.1992); Taylor v. United States Postal Serv., 946 F.2d 1214 (6th Cir.1991); Torres v. Bolger, 781 F.2d 1134 (5th Cir.1986); Gilbert v. Frank, 949 F.2d 637 (2d Cir. 1991); Hall v. United States Postal Serv., 857 F.2d 1073 (6th Cir.1988); Reeder v. Frank, 813 F.Supp. 773 (D.Utah 1992); Diaz v. United States Postal Serv., 658 F.Supp. 484 (E.D.Cal.1987); Jasany v. United States Postal Serv., 755 F.2d 1244 (6th Cir.1985); Carty v. Carlin, 623 F.Supp. 1181 (D.Md.1985).
[7] The physician who examined Scharff concluded she would be unable to lift more than "35 pounds on a repetitive basis of several times an hour, several times a day" or to engage in three hours a day of continuous walking. Scharff, 791 F.Supp. at 186. He believed her ability to perform these tasks on cold or damp days would decrease by fifty per cent. Id. Taylor v. United States Postal Serv., 946 F.2d 1214 (6th Cir. 1991), on which Partlow also relies, is distinguishable on similar grounds. The plaintiff in Taylor was deemed unqualified not only to be a letter carrier but also distribution clerk, due to degenerative disease of both his knees and legs.
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222 F.Supp.2d 809 (2002)
Donna WHITING, Plaintiff,
v.
TUNICA COUNTY, et al., Defendants.
No. 2:02CV136-P-B.
United States District Court, N.D. Mississippi, Delta Division.
July 19, 2002.
*810 *811 *812 *813 Edward Peacock Connell, Jr., Merkel & Cocke, Clarksdale, MS, Nathan J. McMullen, Clarksdale, MS, for Plaintiff.
Holly Stubblefield Mathews, James Arden Barnett, Jr., John Samuel Hill, Mitchell, McNutt & Sams, Oxford, MS, for Defendants.
MEMORANDUM OPINION
PEPPER, District Judge.
This cause is before the Court on the Defendant's Motion to Dismiss and for Qualified Immunity.[1] The Court, having *814 considered the motion, the responses thereto, and the briefs and authorities cited, is prepared to rule. The Court finds as follows, to-wit:
FACTUAL BACKGROUND
The plaintiff, Donna Whiting, filed this action pursuant to 42 U.S.C. § 1983 alleging various theories of liability against Tunica County, Mississippi, Tunica County Sheriff Jerry Ellington, individually and in his official capacity, Deputy Sheriff Brenda Johnson, individually and in her official capacity, and the Tunica County Sheriff's Department. The action arises out of the treatment Whiting allegedly received by Johnson in connection with her arrest and transport following an automobile accident in the Fall of 2000.
On October 26, 2000, Donna Whiting was involved in a motor vehicle collision. Tunica County Deputy Sheriff Brenda Johnson arrived on the scene of the collision as the investigating officer. During the course of her investigation, the plaintiff alleges that a heated argument ensued between Johnson and Whiting. The argument, according to the plaintiff, finally caused Johnson to believe that proper respect was not being shown for her authority. Subsequently, Johnson arrested Whiting for driving under the influence. After handcuffing her, Whiting alleges that Johnson "verbally threatened the safety and welfare of the plaintiff placing her in imminent fear for her well-being." Whiting also contends that Johnson recklessly shoved the plaintiff into the backseat of the police cruiser causing her injury. Finally, Whiting claims that, as she was being transported in the police car to jail, Johnson continued to verbally threaten her with physical harm and intentionally drove in such a manner that Whiting was tossed about the rear passenger compartment causing her "serious bodily injury."
Based on these events, Whiting advances a litany of claims against the defendants including violations of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments. Whiting also alleges a failure to supervise and train theory against Sheriff Ellington and seeks liability against him for his decision to hire Johnson. Additionally, Whiting asserts several state law claims. The defendants now seek qualified immunity for Sheriff Ellington and dismissal of various claims against all parties.
LEGAL ANALYSIS
I. Summary Judgement Based on Qualified Immunity
A.
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue of material fact exists when, after viewing the record and all reasonable inferences drawn from it in a light most favorable to the non-moving party, a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On the other hand, if a rational trier could not find for the non-moving party based on the evidence presented, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio *815 Corp., 475 U.S. 574, 584-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Finally, it should be noted that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).
B.
Qualified immunity is a doctrine that operates to shield government officials, acting within the scope of their employment, from individual liability "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Qualified immunity is more than a mere defense to liability if a defendant is entitled to it, he is immune from suit altogether. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). In other words, qualified immunity operates as an entitlement of an official to be free from, not just liability, but the burdens of litigation in general, including broad-reaching discovery. As a result, a valid defense based on it must be recognized at the earliest possibly stage of the proceeding. See Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).
For purposes of a summary judgment motion within a qualified immunity context, the burden of proof shifts to the plaintiff.
The defendant must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law.
Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992) (citations omitted). See also, Pierce v. Smith, 117 F.3d 866, 872 (5th Cir.1997) ("We do not require that an official demonstrate that he did not violate clearly established federal rights; our precedent places that burden on plaintiffs").
A two-step sequential inquiry is applied to evaluate whether a particular defendant is entitled to qualified immunity. First, it must be decided whether the plaintiff has alleged a violation of a clearly established constitutional right. Siegert v. Gilley, 500 U.S. 226, 231, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). To be "clearly established," the contours of the right must be "sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987).
If the first prong is satisfied, it must next be determined whether the conduct of the official was objectively reasonable in light of clearly established law. Rankin v. Klevenhagen, 5 F.3d 103 (5th Cir.1993). For qualified immunity purposes, a defendant's acts will be held to be objectively reasonable unless it can be said that all reasonable officials in the defendant's circumstances, which include facts known to the defendant, would have then realized that the defendant's conduct violated the Constitution or federal statute. Thompson v. Upshur County, Tex., 245 F.3d 447, 457 (5th Cir.2001) (other citations omitted). Accordingly, qualified immunity turns only on the objective reasonableness of a particular official's actions. The defendant's subjective state of mind is irrelevant on the question of whether he is entitled to qualified immunity. Anderson *816 v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). At bottom, this means that "even law enforcement officials who reasonably but mistakenly commit a constitutional violation are entitled to immunity." Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir.2001).
C.
1. Failure to Train or Supervise
The plaintiff alleges that Sheriff Ellington is liable for failure to supervise and train his deputies, namely Brenda Johnson. When analyzing qualified immunity in such a context, the Court is mindful of the interplay between the subordinate's actions and supervisory liability. The Fifth Circuit has directed that courts faced with such a scenario first examine the conduct of the subordinate's action to see if the first prong is satisfied. Next, it must also be demonstrated that the theory by which the plaintiff seeks to hold Sheriff Ellington liable was clearly established at the relevant time. In other words, the "clearly established" prong becomes a bifurcated analysis in which one branch probes the underlying violation and the second assesses potential supervisory liability. See Doe v. Taylor Independent School Dist., 15 F.3d 443, 454 (5th Cir. 1994). See also, Poe v. Leonard, 282 F.3d 123, 134 (2nd Cir.2002); Camilo-Robles v. Hoyos, 151 F.3d 1, 6 (1st Cir.1998); Shaw v. Stroud, 13 F.3d 791, 801 (4th Cir.1994). Finally, if those two requirements are met, it must be ascertained whether the Sheriff's actions were objectively reasonable.
Turning now to the subordinate's actions, it is clear, as the defendants appear to concede, that the plaintiff has alleged a constitutional violation which was clearly established at the time. If proven true, Deputy Johnson's acts in shoving Whiting into the backseat of the police cruiser could, at minimum, constitute excessive force in violation of the Fourth Amendment. It is clearly established law in this circuit that in order to state a claim for excessive force, a plaintiff must allege (1) an injury, which (2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was (3) objectively unreasonable. Ikerd v. Blair, 101 F.3d 430, 433-34 (5th Cir.1996). Moreover, the allegations against Johnson with regard to her driving in such a fashion as to injure Whiting state a claim under either the Fourth or Fourteenth Amendment, clearly established at the relevant time.[2] The defendants have not argued otherwise.
As to the supervisory liability theory advanced against Sheriff Ellington, it is well settled that "[u]nder section 1983, supervisory officials are not liable for the actions of subordinates on any theory of vicarious liability." Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir.1987). However, the Fifth Circuit has held that a Sheriff not personally involved in the acts that deprived the plaintiff of her constitutional rights is liable under § 1983 if (1) the sheriff failed to train or supervise the officers involved, (2) there is a causal connection between the alleged failure to supervise or train and the alleged violation of the plaintiffs rights, and (3) the failure to train or supervise constituted deliberate indifference to the plaintiffs constitutional rights. Thompson, 245 F.3d at 459. Ordinarily, proof of a single instance, rather than a pattern of similar violations, is insufficient to sustain a claim that a lack of training or supervision caused her constitutional violation. See Snyder v. Trepagnier, 142 F.3d 791, 798-99 (5th Cir.1998); Thompkins, 828 F.2d at 304-05. Moreover, the inadequacy of the training "must *817 be obvious and obviously likely to result in a constitutional violation." City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1205 n. 10, 103 L.Ed.2d 412 (1989).
The Court notes that "deliberate indifference," in the context of § 1983, entails a greater culpability level than mere negligence. This Court is ever wary of the Fifth Circuit's pronouncement that "there is a significant distinction between a tort and a constitutional wrong." Leffall v. Dallas Independent School Dist., 28 F.3d 521, 532 (5th Cir.1994) (quoting de Jesus Benavides v. Santos, 883 F.2d 385, 388 (5th Cir.1989)) (emphasis in the original). The Seventh Circuit has gone so far as to equate deliberate indifference with criminal recklessness. See Archie v. City of Racine, 847 F.2d 1211 (7th Cir.1988) (en banc) (due process context). Judge Easterbrook, writing for the court, explained: "This is the standard used in criminal law, for as we have emphasized the use of the more lenient tort-law definition of recklessness would not adequately recognize the difference between constitutional and common law obligations." Archie, 847 F.2d at 1219. While the Fifth Circuit has not cast the deliberate indifference standard in quite such terms, it is clear that mere negligence is inadequate to impose supervisory liability. See Smith v. Brenoettsy, 158 F.3d 908, 912 (5th Cir.1998) ("For an official to act with deliberate indifference, the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.") (internal citations omitted); Doe, 15 F.3d at 453 n. 7 (distinguishing "gross negligence" from "deliberate indifference" noting that the former is a "heightened degree of negligence" whereas the latter is a "lesser form of intent").
The Court is persuaded that not only was the underlying violation allegedly perpetrated by Johnson clearly established at the relevant time, but Ellington's duty with regard to that violationas far as training and supervisionwas also clearly established. The Fifth Circuit recognized the contours of supervisory liability well before the case-law cited above. For instance, in Wanger v. Bonner, 621 F.2d 675 (5th Cir.1980), the court upheld a district court's instruction that a sheriff could be liable for his deputies activities even though he was not a personal participant, "if you find that he failed to adequately supervise or train his deputies, thus causing a violation of plaintiffs' civil rights." Wanger, 621 F.2d at 680. A short time after that case, the court observed:
Although supervisory officials cannot be held liable solely on the basis of their employer-employee relationship with a tortfeasor, they may be liable when their own action or inaction, including a failure to supervise that amounts to gross negligence or deliberate indifference, is a proximate cause of the constitutional violation.
Bowen v. Watkins, 669 F.2d 979, 988 (5th Cir.1982).[3] Thus, the threshold inquiry of *818 whether the plaintiff's allegations, if true, constitute a constitutional violation, clearly established at the relevant time, is exceeded in this case.
The issue becomes, therefore, on this summary judgment motion, whether taking the plaintiffs proffered evidence as truethe plaintiff has put forth adequate evidence to demonstrate that all reasonable officials would conclude that Sheriff Ellington's actions would violate a federally protected right. The Court notes that, in this context, the qualified immunity standard of objective reasonableness is separate and distinct from the subjective deliberate indifference standard necessary to impose § 1983 liability. See Thompson, 245 F.3d at 459. Indeed, "[w]hen the defendant moves for summary judgment based on qualified immunity, it is the plaintiff's burden to demonstrate that all reasonable officials similarly situated would have then known that the alleged acts of the defendants violated the United States Constitution." Id. As the Thompson court recognized, "[t]hat is different from the burden of establishing a genuine issue as to the defendant's deliberately indifferent state of mind." Id.
Turning to this objective reasonableness standard, the evidence reveals several incidents involving Brenda Johnson which reflect poorly on her judgment. She admitted that she had been fired twice from the Tunica County Sheriff's Department, once for discharging her firearm inappropriately, and again for excessive force in handcuffing an arrestee. She also conceded that she pled guilty to charges arising out of an incident in which she kicked a police officer at the Memphis airport. Ellington, for his part, testified that he has not requested a background check on Johnson since he became Sheriff. Before becoming Sheriff, Ellington was the Chief Deputy under Sheriff Picket from 1994 through 1998. Prior to that time, he was a deputy in the Tunica County Sheriff's Department since 1980. Thus, it is clear that, upon becoming Sheriff, he either knew or should have known of the circumstances surrounding Deputy Johnson, and her potential propensity for the over-scrupulous use of force.
By the same token, the evidence demonstrates that Sheriff Ellington delegated to the Internal Affairs Division the task of monitoring his deputies for disciplinary purposes. Apparently, Sheriff Ellington has made it clear to IA that he should be personally notified if any deputy is brought to the division's attention on more than one occasion based on allegations of similar misconduct. Indeed, Ellington has requested IA to notify him even if the division ultimately concludes that no disciplinary action is warranted. Moreover, Ellington testified that in-service training is provided for his deputies. A training director coordinates all the training for employees throughout the county. Also, the county has a contract with a consulting group which provides training to sheriff department employees. The evidence demonstrates that a portion of that training is dedicated to instruction on the use of force and constitutes additional training, above and beyond basic training, in that regard.
The Court concludes that reasonable supervisors, knowing what Ellington knew, could disagree as to whether his action or inaction was lawful. See Poe, 282 F.3d at 125 (Even though plaintiff had adduced enough evidence that Poe needed to supervise his subordinate more closely, reasonable supervisors could disagree as to whether inaction on the part of Poe was unlawful, thus entitling him to qualified immunity). In other words, the plaintiff has failed her burden to show that all reasonable officials similarly situated would have then known that Ellington's *819 acts or omissions violated the Constitution. See Thompson, 245 F.3d at 459-60; Pierce, 117 F.3d at 872. Sheriff Ellington, to be sure, should have taken a more proactive role in personally monitoring Johnson. Indeed, he was likely negligent in not doing so. However, in light of clearly established lawwith its attendant stringent deliberate indifference standard Sheriff Ellington's delegation to IA to monitor deputies for disciplinary purposes, as well as the training regime he had in place, would not cause a reasonable Sheriff in the same circumstances, objectively speaking, to conclude that the Constitution was being violated.
Having found that an application of the qualified immunity standard in light of clearly established law reveals that any failure to train or supervise on Ellington's part was not "obvious and obviously likely to result in a constitutional violation," City of Canton, 109 S.Ct. at 1205 n. 10, the Court concludes that Whiting has failed to make a showing sufficient to survive summary judgment based on qualified immunity for her failure to train and supervise claims. Accordingly, Sheriff Ellington's actions were objectively reasonable in this regard and he is granted qualified immunity in his individual capacity as to those claims.
2. Sheriff Ellington's Hiring Decision
The plaintiff, however, also claims that Sheriff Ellington is liable for his decision to hire and/or retain[4] Brenda Johnson in light of her prior behavior. The Supreme Court has made a distinction between liability based on a failure to train or supervise and liability based on a single hiring decision under § 1983. "Predicting the consequence of a single hiring decision ... is far more difficult than predicting what might flow from the failure to train a single law enforcement officer as to a specific skill necessary to the discharge of his duties." Bd. of the County Comm'ns of Bryan County v. Brown, 520 U.S. 397, 410, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). In Brown, the Court, therefore, rejected the plaintiffs attempt to analogize her inadequate hiring claim to failure to train cases. Brown, 520 U.S. at 410, 117 S.Ct. 1382. The Court explained:
... a finding of culpability simply cannot depend on the mere probability that any officer inadequately screened will inflict constitutional injury. Rather, it must depend on a finding that this officer was highly likely to inflict the particular injury suffered by the plaintiff.
Id. at 412, 117 S.Ct. 1382 (emphasis in the original). Thus, for constitutional liability to attach to the decision-maker based on an inadequate screening of an applicant, it must be said that the Sheriff "would necessarily have reached" the decision that Johnson was a poor candidate because "[Johnson's] use of excessive force would have been a plainly obvious consequence of the hiring decision." Id. at 414, 117 S.Ct. 1382. In other words, the plaintiff must demonstrate "deliberate indifference" on the part of the decision-maker. Such deliberate indifference exists where adequate scrutiny of the applicant's background would lead a reasonable supervisor to conclude that the plainly obvious consequences of the decision to hire would be the deprivation of particular constitutional rights. Id. at 407, 117 S.Ct. 1382; Gros v. City of Grand Prairie, 209 F.3d 431, 433-34 (5th Cir.2000). This involves more than *820 a mere probability that a poorly screened officer would violate her federally protected rights; instead a plaintiff must show that the hired deputy was highly likely to inflict the type of injury suffered. Brown, 520 U.S. at 414, 117 S.Ct. 1382 (emphasis added).
The Court notes, under the first prong of the qualified immunity analysis, that the contours of this constitutional violation for qualified immunity purposes were clearly established at the relevant time. Ellington became Sheriff in 1998. Thus, if he did hire Johnson, it would have had to have been after the Supreme Court's pronouncements in Brown. The question remains, however, whether the plaintiff has properly alleged the constitutional violation. Indeed, "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert, 500 U.S. at 233, 111 S.Ct. 1789.
The Fifth Circuit, visiting the precise issue presented here with regard to a claim based on an act of hiring in a qualified immunity context and taking its cue from the Supreme Court, has held that in order for the plaintiff to survive summary judgment the proffered evidence must be sufficient to create a genuine issue of material fact whether a reasonable officer would conclude that the obvious consequences of hiring a particular officer would be that the particular injury suffered would result to a third party. Gros, 209 F.3d at 431. That is, the plaintiff must raise a genuine issue of material fact on the question of deliberate indifference. Id. In this case, therefore, Whiting must adduce sufficient evidence to raise a genuine issue of material fact that Ellington was deliberately indifferent in the act of hiring Johnson; not just in general terms, but in particular, to her constitutional right to be free from false arrest and excessive force.
In Gros the plaintiffs alleged that the chief of a university police department was deliberately indifferent in hiring a particular officer. A litany of comments were contained in the officer's pre-employment personnel file, including evaluations which suggested the officer had a propensity to draw his weapon too quickly and react in an overly aggressive manner. Id. at 434. The Court held, however, that the evidence was insufficient to rise to the level of a constitutional violation.
To be sure, there are scattered statements in Rogers' personnel file that suggest he was sometimes too aggressive for UTA's campus police department. There are also letters of reprimand and sustained complaints for being overbearing and abusive during a traffic stop. But while these facts suggest that Crum ... might have been negligent in failing adequately to review Rogers's records and in ultimately deciding to hire him, they do not provide sufficient evidence of a deliberate indifference to constitutional rights.
Id. at 435.
The Gros court relied heavily on the Supreme Court's decision in Brown, noting that the opinion "is instructive as to the quantum and quality of evidence of deliberate indifference that is necessary." Id. at 433. In Brown, Reserve Deputy Stacy Burns had been convicted of using excessive force for badly injuring a woman in the process of wresting her from a car. He also had a criminal record that included arrests for driving under the influence, resisting arrest, public drunkenness and a conviction for assault and battery. Faced with this record, the Supreme Court held that the Sheriff's failure to examine the background of Burns did not "reflect a conscious disregard for a high risk that *821 Burns would use excessive force in violation of respondent's federally protected right." Brown, 520 U.S. at 415-16, 117 S.Ct. 1382.
Similarly, in Aguillard v. McGowen, 207 F.3d 226, 230 (5th Cir.2000), the deputy officer was convicted of murder for wrongfully shooting a third party while on duty. His record revealed, inter alia, a report of an incident in which he allegedly pistolwhipped a teenage boy who was driving around his apartment complex and that he had previously threatened the mother of a juvenile with arrest. Despite this evidence, the Fifth Circuit held that the deputy "had never wrongfully shot anyone before, nor did his record reveal him to be likely to use excessive force in general or possess a trigger-happy nature in particular." Aguillard, 207 F.3d at 230. As a result, held the court, while the employment decision may have been negligent, the error did not reach "constitutional cognizance." Id.
A synthesis of the above authority makes clear to this Court that Whiting has done nothing more than allege "deliberate indifference" in broad and conclusory terms. Taking all of Whiting's proffered evidence as true, the Court concludes that Whiting has failed to advance sufficient evidence of a violation of a constitutional right with regard to Sheriff Ellington's decision to hire Johnson. First, nothing in Johnson's background suggests that she would be likely, let alone highly likely, to wrongfully arrest a third party. Moreover, of the two incidents that can be construed as suggesting a propensity toward excessive force, one took place in 1985, a full thirteen or so years before the incidents in question here. See Brown, 520 U.S. at 413, 117 S.Ct. 1382 (incident which took place in college was too remote to create an obvious risk of use of excessive force on the part of the deputy). The second incident, the handcuffing of an arrestee too tightly, while perhaps branding Ellington negligent for his hiring decision, fails to make it plainly obvious that Johnson would be highly likely to commit Fourth Amendment violations in the particular manner plaintiff has alleged here.[5] Finally, the third incident, the discharging of her weapon into the air, has little to do with false arrest or excessive force.
In short, Johnson's background is rather placid compared to that of the deputy in Brown. Nothing in her background would have made it obvious to a reasonable supervisor that she was highly likely, in such a manner as to suggest more than a mere probability, to shove someone into a car with too much force or drive like a maniac in order to hurt an arrestee. See Brown, 520 U.S. at 412, 117 S.Ct. 1382 (requiring a "strong" connection between the background of the particular applicant and the "specific" violation alleged.) To be sure, as in Brown and Aguillard, the employment decision was likely a negligent one. Indeed, in hindsight, it appears that Johnson should not have been hired. But, as already explained, negligence is something quite different than constitutional injury. Here, with Brown and Aguillard as benchmarks, the latter is conspicuously absent from the record.
II. Motion to Dismiss
A.
In ruling on a motion pursuant to Rule 12(b)(6), the court construes the allegations in the Complaint in the light most favorable to the plaintiff. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir.2000). Taking the plaintiff's *822 allegations as true, dismissal is appropriate when it appears certain that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Id. A court need not, however, accept as true allegations that are conclusory in nature. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.1982).
B.
The Court begins its analysis with the familiar principle that § 1983 "is not itself a source of substantive rights," but is a vehicle "for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Thus, the first step in any such claim is to identify the specific constitutional right allegedly infringed. Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Whiting alleges several constitutional claims in her complaint, among them violations of the Sixth and Eighth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Court addresses each in turn.
The Court notes at the outset, that few, if any, of the allegations in the complaint with regard to these claims are elucidated in any significant fashion. Indeed, with regard to her Sixth Amendment claim, for instance, Whiting has not specified which Sixth Amendment right she believes has been violatedi.e. right to a speedy trial, right to counsel, or right to impartial jury. The allegations in this respect are so vague that the Court is led inextricably to the conclusion that the Sixth Amendment claim must be dismissed.
Whiting's Eighth Amendment claim fares no better. The Eighth Amendment's prohibition against cruel and unusual punishment is inapplicable where, as here, the detention of the complainant did not directly result from the conviction of a crime. See Edwards v. Johnson, 209 F.3d 772, 778 (5th Cir.2000); Ortega v. Rowe, 796 F.2d 765, 767 (5th Cir.1986) cert. denied 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495. Indeed, "a pretrial detainee's constitutional claims are considered under the due process clause instead of the Eight Amendment." Id., (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 6, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979)). Whether Whiting could be considered a "pretrial detainee" is a different matter. What is clear, however, is that the Eighth Amendment provides her no recourse here.
The issue with regard to the post-arrest allegations that Whiting levels against Johnson, therefore, becomes whether the Fourth or Fourteenth Amendment governs. The Supreme Court has left open the question of which amendment governs post-arrest, but pre-arraignment. See Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865 ("Our cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today"). Circuits are split on the question. As one court stated, "[b]etween arrest and sentencing lies something of a legal twilight zone." Wilson v. Spain, 209 F.3d 713, 715 (8th Cir. 2000). Some Circuits, for example, apply the Fourth Amendment reasonableness standard to excessive force claims arising post-arrest, setting arraignment as the line of demarcation between the Fourth and Fourteenth Amendments. In these circuits, the Fourth Amendment reasonableness standard applies until the arrestee appears before a neutral magistrate for arraignment or probable cause hearing, or until the individual leaves the joint custody *823 of the arresting officers. See, e.g., Wilson, 209 F.3d at 716; Barrie v. Grand County, 119 F.3d 862, 866 (10th Cir.1997); Pierce v. Multnomah County, 76 F.3d 1032, 1042-43 (9th Cir.1996); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989); McDowell v. Rogers, 863 F.2d 1302, 1306-07 (6th Cir.1988). Other Circuits focus on the Due Process Clause of the Fourteenth Amendment and apply a substantive due process standard at the moment the incidents of arrest are complete. See, e.g., Riley v. Dorton, 115 F.3d 1159, 1161-64 (4th Cir.1997) (en banc); Cottrell v. Caldwell, 85 F.3d 1480, 1490 (11th Cir.1996); Wilkins v. May, 872 F.2d 190, 192-95 (7th Cir.1989). On facts similar to the instant case, the Eighth Circuit has applied Fourth Amendment standards to a claim of excessive force allegedly suffered by an individual in being restrained in the back of a police car post-arrest. See Mayard v. Hopwood, 105 F.3d 1226 (8th Cir.1997).
The Fifth Circuit has taken a somewhat hybrid approach. As a general rule, substantive due process applies in the Fifth Circuit after the fact of arrest. See Valencia v. Wiggins, 981 F.2d 1440, 1443-45 (5th Cir.1993). However, the court has also noted that the pertinent constitutional provisions overlap in certain factual contexts. See Petta v. Rivera, 143 F.3d 895, 910-914 (5th Cir.1998) (recognizing that Fourth Amendment standards are sometimes used in assessing claims which should actually be governed by substantive due process). On these facts, the Court concludes that the Fourth Amendment applies to Whiting's claim arising out of the post-arrest events in the police car. In so holding, the Court is guided by the Fifth Circuit's decision in Valencia, wherein the Court, although concluding that the Fourteenth and not the Fourth Amendment applied, stated:
We do not believe that the Fourth Amendment provides an appropriate constitutional basis for protecting against deliberate official uses of force occurring, as in this case, after the incidents of arrest are completed, after the plaintiff has been released from the arresting officer's custody, and after the plaintiff has been in detention awaiting trial for a significant period of time.
Valencia, 981 F.2d at 1443-44 (emphasis in the original). The proximity to the arrest in this case, unlike in Valencia, transpired so closely to the actual arrest, that, under Graham,[6] the most reasoned approach is to apply the Fourth Amendment. This is especially so since Whiting was still in the custody of the arresting officer, having never left that custody. Cf. Phelps v. Coy, 286 F.3d 295, 300-01 (6th Cir.2002) (distinguishing Valencia on similar grounds and holding that the Fourth Amendment governed an excessive force claim by an arrestee which was initiated post-arrest, even up to booking of the individual, where the same arresting officer was involved); See also Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989) ("Fourth Amendment standard probably should be applied at least to the period prior to the time when the person arrested is arraigned or formally charged, and remains in the custody (sole or joint) of the arresting officer"). Thus, the Court construes Whiting's Eighth Amendment claim as one arising under the Fourth Amendment and its attendant "objective reasonableness" standard. Accordingly, the Eighth Amendment claim is dismissed, but the Fourth *824 Amendment claim based on the allegations of Johnson's driving in such a manner as to cause injury to Whiting remains.[7]
Finally, "to state a claim under the Equal Protection Clause, a § 1983 plaintiff must allege that a state actor intentionally discriminated against the plaintiff because of membership in a protected class." Williams v. Bramer, 180 F.3d 699, 705 (5th Cir.1999) (internal citations omitted). Whiting has not alleged whether she is a member of a protected class, nor has she specified how she was discriminated against, intentionally or otherwise, on the basis of such membership. Thus, she leaves the Court to its own devices, presumably, to infer as much. As a result, her allegations are plainly insufficient to form the basis of an Equal protection claim.
III. State Law Claims
A.
The defendants further aver that Whiting's state law claims should be dismissed for failure to comply with the Mississippi Tort Claims Act ("MTCA"), Miss. Code Ann. § 11-46-1. The MTCA provides in relevant part:
(1) After all procedures within a governmental entity have been exhausted, any person having a claim for injury arising under the provisions of this chapter against a governmental entity or its employee shall proceed as he might in any action at law or in equity; provided, however, that ninety (90) days prior to maintaining an action thereon, such person shall file a notice of claim with the chief executive officer of the governmental entity, and, if the governmental entity is participating in a plan administered by the board pursuant to Section 11-46-7(3), such chief executive officer shall notify the board of any claims filed within five (5) days after the receipt thereof. (2) The notice of claim required by subsection (1) of this section shall be in writing, delivered in person or by registered or certified United States mail. Every notice of claim shall contain a short and plain statement of the facts upon which the claim is based, including the circumstances which brought about the injury, the extent of the injury, the time and place the injury occurred, the names of all persons known to be involved, the amount of money damages sought and the residence of the person making the claim at the time of the injury and at the time of filing the notice.
The Mississippi Supreme Court has abolished a strict compliance standard with the MTCA notice provisions, opting instead for a more relaxed "substantial compliance" standard. Carr v. Town of Shubuta, 733 So.2d 261, 263 (Miss.1999); Reaves ex rel. Rouse v. Randall, 729 So.2d 1237 (Miss. 1998). The Court, in defining the contours of the substantial compliance standard, has stated:
Notice is sufficient if it substantially complies with the content requirements of the statute. What constitutes substantial compliance, while not a question of fact but one of law, is a fact-sensitive determination. In general, a notice that is filed within the [requisite] period, informs the municipality of the claimant's intent to make a claim and contains sufficient information which reasonably affords the municipality an opportunity to *825 promptly investigate the claim satisfies the purpose of the statute and will be held to substantially comply with it.
Carr, 733 So.2d at 263 (citing Collier v. Prater, 544 N.E.2d 497, 498 (Ind.1989)).
B.
In the instant case, Whiting admits that she wholly failed to supply any notice, let alone the prescribed 90 day notice. Instead she argues that since service was effected on the "chief executive officers" of the county and her complaint contained adequate information for the county to conduct an investigation and adduce the necessary information, this Court should deem the MTCA substantially complied with and refuse to dismiss her state law claims. In support of her argument, Whiting cites City of Pascagoula v. Tomlinson, 741 So.2d 224 (Miss.1999), a case in which the plaintiff failed to comply with the 90 day waiting period, but nevertheless was allowed to proceed. Tomlinson, however is inapposite to the instant action. In Tomlinson, the plaintiff did file a notice of claim pursuant to § 11-46-1 fifteen days before filing suit. The Court held that the notice was substantially compliant with the provisions of the MTCA and the appropriate remedy for the plaintiff failing to wait 90 days to file suit was for the city to ask for a stay of proceedings, a waiver of which was effected when the city neglected to do so. Tomlinson, 741 So.2d at 228-29.
In contrast to Tomlinson, Whiting provided no notice whatsoever to Tunica County pursuant to the MTCA before filing suit. In the Court's view, "substantial compliance" is something quite apart from non-compliance.[8] If the Court were to adopt Whiting's theory, all a plaintiff need do to substantially comply with the MTCA is file suit and serve the chief executive officer of the state entity, as long as the complaint complies with Miss.R.Civ.P. 8. Such a rule, the Court believes, would be severely inimical to the intent of the legislature in enacting the MTCA and, likewise, the policy of the Mississippi Supreme Court in requiring at least substantial compliance. See Carr, 733 So.2d at 266 (collecting cases in which no notice was submitted to the state entity and noting that these cases would fail under the substantial compliance standard).
In short, Whiting has failed, under the substantial compliance standard, to comply with the notice provisions of the MTCA. Accordingly, her pendent state law claims are dismissed.
IV. Tunica County Sheriff's Department Amenability to Suit
A.
The Tunica County Sheriff's Department ("TCSD") is a named defendant in this suit. The defendants argue that the TCSD should be dismissed as an entity not amenable to suit. An entity's capacity to be sued must be determined by reference to the law of the state in which the district court sits. Fed.R.Civ.P. 17(b). In order for a the TCSD to be amenable to suit, it must be determined that it enjoys a separate legal existence than that of the county. See Darby v. Pasadena Police Department, 939 F.2d 311, 313 (5th Cir. 1991). Absent any showing by the plaintiff that the TCSD enjoys such an existence under state law, the Court concludes that the TCSD is not a proper party to this lawsuit. Thus, the TCSD is dismissed from the case and the Court construes the *826 claims leveled against it as claims against the county.
CONCLUSION
After careful consideration, the Court finds that the Sheriff Ellington's motion for summary judgment on the issue of qualified immunity is well taken and should be granted. The defendant's motion to dismiss claims based on the Sixth Amendment, Eighth Amendment, equal protection clause and all pendent state law claims is likewise well taken and should be granted. Moreover, the plaintiff's supposed substantive due process claim is also dismissed. Finally, the Tunica County Sheriff's Department is not a proper party to this lawsuit and should, accordingly, be dismissed. A separate order in accordance with this opinion will be so entered.
NOTES
[1] As to the issue of qualified immunity, although not specified by the defendants, the Court construes the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56 as the materials submitted by the parties outside the pleadings have not been excluded. See FedR.Civ.P. 12(b) ("If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment ..."). On this note, the Court points out that a motion to dismiss under Rule 12 is not the preferred vehicle for resolving the qualified immunity defense. See Jacobs v. City of Chicago, 215 F.3d 758, 775 (7th Cir.2000) (Easterbrook, J., concurring) ("Rule 12(b)(6) is a mismatch for immunity and almost always a bad ground for dismissal"). In this circuit, the preferred method is for the district court, at its discretion, to require a reply under Fed.R.Civ.P. 7(a) to an answer which raises qualified immunity as an affirmative defense. See Schultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir.1995) (en banc). Following the reply, the defendant can present the issue to the Court as a motion for summary judgment or a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Although the Court did not require a reply from the plaintiff under Rule 7, the Court finds that the plaintiff has provided materials in her response to the motion sufficient to satisfy Schultea.
The Court will construe the motion as to issues other than qualified immunity as one pursuant to Fed.R.Civ.P. 12(b)(6).
[2] This matter is discussed infra. within the context of the defendants' motion to dismiss.
[3] The Court notes that the "heightened pleading" theory advanced by the defendants in their brief is suspect. First, heightened pleading, as a general matter, is no longer required in § 1983 cases. See Brown v. Valmet-Appleton, 77 F.3d 860, 863 n. 11 (5th Cir.1996) ("there no longer exists a per se "heightened" pleading requirement in qualified immunity cases"). To the extent that it is applicable, however, the Fifth Circuit has directed a two step procedure under Schultea, outlined supra. n. 1. Any requirement that the plaintiff clarify the allegations advanced in his complaint arises solely out of the district court's discretionary authority to order a Rule 7(a) reply. Schultea, 47 F.3d at 1433-34. As already discussed, this Court did not order such a reply. Nevertheless, the submitted materials are sufficient to satisfy Schultea, at least with regard to the failure to train and supervise claims.
[4] It is unclear whether Sheriff Ellington actually hired Johnson. This is important because, in the Court's view, inadequate screening of an applicant is something quite different from failure to run background checks on already employed members of the Sheriff's Department upon becoming Sheriff. Nevertheless, as will be seen, the point is moot in this case.
[5] This is especially so since, in the Fifth Circuit, handcuffing an arrestee too tightly, without more, does not amount to excessive force. See Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir.2001).
[6] As the Valencia court noted, the Supreme Court's decision in Graham indicates that a seizure under the Fourth Amendment does not end the moment police gain custody and control over a suspect. Id. Indeed, the Graham Court applied the Fourth Amendment's "objective reasonableness" standard even though the suspect was handcuffed and securely within police custody at the time the alleged police abuse transpired.
[7] Consequently, the Court dismisses Whiting's claim based on, what the plaintiff terms, is her right to "freedom from arbitrary government actions which are so outrageous as to shock the conscience of a civilized society," which the Court interprets as a claim under the Due Process Clause of the Fourteenth Amendment. Although unclear, Whiting is presumably attempting to rely on a substantive due process standard for such a claim.
[8] See Merriam-Webster's Collegiate Dictionary (2002) defining "substantial" as "being largely but not wholly that which is specified." By the plain meaning of the word, at least some compliance, therefore, with the specifications of the legislature, must be found under a substantial compliance standard.
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[Cite as State v. Wagner, 2013-Ohio-3493.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 13-CA-9
:
STEVEN WAGNER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court
of Common Pleas, Case Nos. 98-CR-65
& 98-CR-144
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 7, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
GREGG MARX STEVEN WAGNER, PRO SE
FAIRFIELD COUNTY PROSECUTOR Inmate No. 361523
JOCELYN S. KELLY Chillicothe Correctional Institution
239 W. Main St., Ste. 101 P.O. Box 5500
Lancaster, OH 43130 Chillicothe, OH 45601
Fairfield County, Case No.13-CA-9 2
Delaney, J.
{¶1} Appellant Steven Wagner appeals from the January 15, 2013 judgment
entry of the Fairfield County Court of Common Pleas denying his motion to correct
sentence. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant's original convictions is
unnecessary to our disposition of this appeal.
{¶3} In June 1998, appellant was found guilty upon trial by jury of abduction,
felonious assault, and assault in Fairfield County Court of Common Pleas case no. 98
CR 65. On June 10, 1998, he was sentenced to an aggregate prison term of ten years:
three years upon the count of abduction to be served consecutively with seven years
upon the count of felonious assault. The trial court found merged the count of assault.
Appellant filed a direct appeal of his conviction and sentence in State v. Wagner, 5th
Dist. Fairfield No. 98CA42, 1999 WL 436749 (May 24, 1999). Appellant served his
entire imposed sentence as of June 2008.
{¶4} Appellant remained incarcerated due to a sentence imposed in a separate
case, Fairfield County Court of Common Pleas case no. 98 CR 144. In that case,
appellant was convicted of three counts of intimidation of a victim or witness and one
count of retaliation against the complainant in his original case. Appellant was
sentenced to an aggregate prison term of nine years in the latter case, to be served
consecutively to the original 10-year term. We affirmed appellant’s second conviction
Fairfield County, Case No.13-CA-9 3
upon his direct appeal in State v. Wagner, 5th Dist. Fairfield No. 99CA23, 2000 WL
1411 (Dec. 23, 1999), appeal not allowed, 88 Ohio St.3d 1480, 727 N.E.2d 131 (2000).
{¶5} In 2005, appellant filed a petition for post-conviction relief based upon
Blakely; the trial court denied the petition and we affirmed the decision in State v.
Wagner, 5th Dist. Fairfield No. 05-CA-45, 2005-Ohio-5209, appeal not allowed, 108
Ohio St.3d 1440, 2006-Ohio-421, 842 N.E.2d 64. Another attempt at post-conviction
relief was denied in 2006 and affirmed in State v. Wagner, 5th Dist. Fairfield No. 06-CA-
73, 2007-Ohio-3629.
{¶6} On November 27, 2012, appellant filed a “Motion to Correct Sentence”
under both case numbers, although his arguments addressed only his sentence in the
earlier case, 98-CR-65. The trial court overruled the motion on the bases that the
motion is an untimely petition for post-conviction relief and appellant’s arguments based
upon State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 do not
apply retroactively to his sentence.
{¶7} Appellant now appeals from the January 15, 2013 entry of the trial court.
{¶8} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶9} “I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
IMPOSING MULTIPLE PUNISHMENT (sic) FOR ALLIED OFFENSES.”
{¶10} “II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
RULING APPELLANT’S MOTION IS TIME BARRED.”
Fairfield County, Case No.13-CA-9 4
ANALYSIS
I, II.
{¶11} We will address appellant’s two assignments of error together. We find
the trial court correctly overruled appellant’s Motion to Correct Sentence for the
following reasons.
{¶12} First, we note appellant has failed to provide a transcript of the sentencing
hearing. As appellee points out, we have previously held that an appellant who
challenges his sentence is required to provide a transcript of the sentencing hearing
because the appellant must demonstrate error by reference to matters within the record.
State v. Boylen, 5th Dist. Stark Nos. 2006 CA 00125 & 20006 CA 00126, 2006-Ohio-
5685, ¶ **. Without the sentencing transcript, we presume the regularity of the
proceedings below and affirm. See, Knapp v. Edwards Laboratories, 61 Ohio St.2d
197, 199, 400 N.E.2d 384 (1980); App.R. 9(B).
{¶13} Even setting aside this procedural default, however, the trial court properly
found appellant’s motion is barred by res judicata. Appellant had a prior opportunity to
litigate the allied-offenses claims he sets forth in the instant appeal via a timely direct
appeal from the sentencing hearing and resulting judgment entry; his most recent round
of arguments are therefore barred under the doctrine of res judicata. State v. Perry, 10
Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). The Perry court explained the doctrine as
follows: “Under the doctrine of res judicata, a final judgment of conviction bars the
convicted defendant from raising and litigating in any proceeding, except an appeal from
that judgment, any defense or any claimed lack of due process that was raised or could
Fairfield County, Case No.13-CA-9 5
have been raised by the defendant at the trial which resulted in that judgment of
conviction or on an appeal from that judgment.” Id.
{¶14} Finally, appellant’s arguments fail substantively. The Ohio Supreme
Court's holding in Johnson does not apply retroactively. State v. Halliday, 5th Dist.
Delaware No. 11CAA1101104, 2012-Ohio-2376, ¶ 16, citing State v. Parson, 2nd Dist.
Montgomery No. 24641, 2012–Ohio–730. The new judicial ruling may not be applied
retroactively to a conviction that has become final, i.e., where the accused has
exhausted all of his appellate remedies. Id., citing Ali v. State, 104 Ohio St.3d 328,
2004–Ohio–6592.
CONCLUSION
{¶15} For the foregoing reasons, appellant’s two assignments of error are
overruled and the judgment of the Fairfield County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
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J-S27031-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.C., FATHER No. 2723 EDA 2014
Appeal from the Order entered August 19, 2014,
in the Court of Common Pleas of Philadelphia County, Family Court,
at No(s): CP-51-DP-0001680-2013, FID No. 51-FN-003321-2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD*, JJ.
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 13, 2015
A.C. (“Father”) appeals from the order entered in the Philadelphia
County Court of Common Pleas adjudicating dependent his daughter, A.C.
(“Child”), born in April of 2013, and finding he perpetrated child abuse
against her.1 Father argues the court erred in finding he physically abused
Child, alleging Child “did not suffer severe pain” and “the injuries to [her]
were accidental.” Father’s Brief at 8, 9. We affirm.
The trial court set forth the factual and procedural history as follows.
On August 3, 2013, [the Philadelphia Department of
* Former Justice specially assigned to the Superior Court.
1
At the time of the hospital visit precipitating this matter, Child was four
months old. At the time of the adjudication hearing, she was one year and
four months old. By separate order, the trial court also adjudicated
dependent L.C., Father’s three-year-old daughter. Father did not appeal
from that order.
G.R. (“Mother), the mother of Child and L.C., took an appeal from both
children’s adjudication orders. This Court affirmed at Interest of L.C., 2689
EDA 2014 (unpublished memorandum) (Pa. Super. Aug. 10, 2015).
J-S27031-15
Human Services (“DHS”)] received a Child Protective
Services . . . report, which alleged that Mother took
Child,[2] a 4 month old, to St. Christopher’s Hospital for
Children (“Hospital”) because Child was bleeding from her
mouth. While at Hospital, Child received an evaluation,
which revealed that Child sustained rib fractures on her left
and right side, which were in the healing stage,
hemorrhage of her left eye, a laceration across the entire
floor of her mouth, and an abrasion on her cheek. [N.T.,
8/19/14, at 11.] Subsequently, doctors admitted Child to
Hospital.
[The following day, o]n August 4, 2013, DHS spoke to
parents at Hospital and parents were unable to provide an
explanation for Child’s injuries. On August 5, 2013,
Mother told DHS that Father frequently squeezed Child in
an attempt to relieve her body of gas. Mother also
explained to DHS that the rib fracture might have
happened when Child fell off the bed about a month ago or
from [her sister, L.C.,] sitting on Child’s back while
playing. [Id. at 14.] Mother stated, to DHS and to Dr.
[Maria] McColgan (“Doctor”), [the Medical Director of the
Child Protection Program at Hospital,3] that Father
scratched Child’s mouth with his fingernail while
attempting to insert a pacifier in her mouth. Initially,
Mother explained that Father called Mother while she was
away from the home and told her that Child needed to go
to the hospital because Father was unable to stop her
mouth from bleeding. [Id. at 12-13.] However, Doctor
testified that when [he] spoke to Mother, [she] told [him]
she was at home when . . . Father reached behind him to
put Child’s pacifier in her mouth and that is how the
laceration happened. [Id. at 13.] Father corroborated
Mother’s explanation regarding how the incidents occurred.
Doctor testified that [he] explained to Mother that the type
of injury Child sustained, posterior rib fractures, were
unlikely from someone squeezing Child and not a result of
a direct blow or . . . a fall. After Doctor gave this
2
In its opinion, the trial court referred to Child as “Child #1” and her sister
as “Child #2.” For ease of discussion, henceforth we refer to A.C. as “Child”
and refer to L.C by her initials.
3
N.T. at 9.
-2-
J-S27031-15
explanation, Mother immediately responded, “I knew it
was him.” [Id. at 15.] Mother then stated . . . Father
would sometimes try to help Child’s stool when she was
having trouble by squeezing on her abdomen. [Id. at 15,
32-33, 45.] Doctor diagnosed the inflicted injury as . . . a
result of physical abuse because the injuries . . . would not
have been from just pressing on the abdomen, someone
would have to be squeezing the ribcage in order to create
the fractures Child sustained. [Id. at 15, 19.] Doctor also
testified that some of the injuries occurred at separate
times. [Id. at 19.] On August 7, 2013, DHS learned that
Hospital determined that Child’s injuries were non-
accidental.
On August 8, 2013, DHS obtained an Order of Protective
Custody (“OPC”) and the Hospital discharged Child and
[L.C.] into the care of their aunt and uncle. On this day, a
Safety Plan was implemented in the home of the children’s
aunt and uncle. The Safety Plan stated that the children’s
parents were not to have visitation with the children for 21
days and that the aunt and uncle would ensure that the
children’s basic needs, including medical appointments,
were met. On August 9, 2013, a shelter care hearing was
held, the OPC was lifted, and the temporary commitment
to DHS was ordered to stand.
Trial Ct Op., 11/4/14, at 2-3 (citations to record omitted).
On August 13, 2013, DHS filed separate petitions, for Child and L.C.,
for an adjudication of dependency. One year later, on August 19, 2014, the
court held a hearing, at which the following witnesses testified: Dr.
McColgan, whom Father stipulated was an expert in child abuse, the DHS
caseworker, Father, and Mother.
At the hearing, the court found both Child and L.C. dependent, 4 and
4
The Juvenile Act defines a “dependent child” as, inter alia, a child who “is
without proper parental care or control, subsistence, education as required
by law, or other care or control necessary for his physical, mental, or
-3-
J-S27031-15
found Father perpetrated child abuse against Child. N.T. at 66. The trial
court found “both parents were the children’s primary caregivers” but “found
child abuse as to Father only.” The DHS caseworker informed the court the
parents have, on alternating Saturdays, supervised visits and unsupervised
visits. N.T. at 67. She confirmed to the court there were “no issues” with
the unsupervised visits and the court permitted them to continue. Id. at 68,
74. She further advised the court that a family service plan was already
“scheduled,” both parents completed several training programs,5 and DHS
was awaiting “the results of the parenting capacity evaluation that both
parents have completed.” Id. at 70-71. The parents were also referred to a
housing program which “assist[s] parents in locating housing,” because “the
house is not appropriate.”6 Id. at 73.
On September 15, 2014, Father timely filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b).
emotional health, or morals.” 42 Pa.C.S. § 6302(1). Father does not
challenge the adjudication of dependency.
5
Specifically, Father “completed anger management, parenting and healthy
relationships.” N.T. at 74. Mother “completed parenting, employment
services, empowerment group[,] anger management,” and “healthy
relationships.” Id. at 73.
6
DHS caseworker Lissa Varghese testified the home was “not safe” because
six adults and one child were living in the home in June of 2014, there was
“high traffic” and the “children sustain [unexplained] injuries in the home.”
Id. at 35-36.
-4-
J-S27031-15
On appeal, Father does not challenge the underlying adjudication of
dependency. Instead, he raises one question for our review: whether the
trial court abused its discretion in finding he physically abused Child. 7 In
support, he first asserts Child did not suffer severe pain. While Father
concedes “Dr. McColgan testified [Child’s] rib fracture would cause
significant pain,” Father avers the doctor also “indicate[d] it’s subjective to .
. . determine how much pain someone else,” especially a child,
“experiences,” and thus Dr. McColgan “could not establish the level of pain
suffered by” Child. Father’s Brief at 8. Father maintains there is no history
of child abuse or “even the slightest hint [he] intended to harm his child.”
Id. He further reasons that “doctors must report child abuse in any case
where . . . abuse is even suspected,” and thus “many ‘suspected’ cases are
erroneous.” Id. Father’s second argument is that Child’s injuries “were
accidental.” Id. at 9. He points out “[M]other took [Child] to the hospital
after noticing injury” and he “also went to the hospital to help his child.” Id.
7
We note the argument section of Father’s brief, at one and a half pages in
length, fails to cite legal authority beyond a one-sentence definition, from
Interest of K.M., 53 A.3d 781 (Pa. Super. 2012), of “clear and convincing
evidence.” See Father’s Brief at 8-9. Furthermore, the relevant statement
in Interest of K.M. pertained to termination of parental rights, an issue not
present in this case. See Interest of K.M., 53 A.3d at 786 (“The burden is
upon the petitioner to prove by clear and convincing evidence that its
asserted grounds for seeking the termination of parental rights are valid.”).
We remind Attorney Rosenbaum that the failure to develop an argument
with citation to and analysis of relevant authority may waive an issue on
appeal. See Harris v. Toys “R” Us-Penn, Inc., 880 A.2d 1270, 1279 (Pa.
Super. 2005).
-5-
J-S27031-15
Father insists he “had no way of knowing about these injuries.” Id. We find
no relief is due.
Our Supreme Court has stated:
“[T]he standard of review in dependency cases requires an
appellate court to accept the findings of fact and credibility
determinations of the trial court if they are supported by
the record, but does not require the appellate court to
accept the lower court’s inferences or conclusions of law.”
We review for abuse of discretion.
Interest of L.Z., 111 A.3d 1164, 1174 (Pa. 2015) (citation omitted).
To adjudicate a child dependent, a trial court must
determine, by clear and convincing evidence, that the
child:
is without proper parental care or control,
subsistence, education as required by law, or other
care or control necessary for his physical, mental, or
emotional health, or morals. A determination that
there is a lack of proper parental care or control may
be based upon evidence of conduct by the parent,
guardian or other custodian that places the health,
safety or welfare of the child at risk.
42 Pa.C.S.A. § 6302. “Clear and convincing” evidence has
been defined as testimony that is “so clear, direct,
weighty, and convincing as to enable the trier of facts to
come to a clear conviction, without hesitancy, of the truth
of the precise facts in issue.”
In re A.B., 63 A.3d 345, 349 (Pa. Super. 2013) (some citations omitted).
Section 6303(b)(1) of the Child Protective Services Law8 defines “child
abuse” in pertinent part as follows:
8
The version of Section 6303 cited was effective at the time of the
underlying adjudication order. See 23 Pa.C.S. § 6303 (valid through
December 31, 2014).
-6-
J-S27031-15
(i) Any recent act or failure to act by a perpetrator
which causes nonaccidental serious physical injury to a
child under 18 years of age.
* * *
(iii) Any recent act, failure to act or series of such acts
or failures to act by a perpetrator which creates an
imminent risk of serious physical injury to or sexual abuse
or sexual exploitation of a child under 18 years of age.
23 Pa.C.S. § 6303(b)(1)(i), (iii). “Nonaccidental” is defined as “[a]n injury
that is the result of an intentional act that is committed with disregard of a
substantial and unjustifiable risk.” 23 Pa.C.S. § 6303(a). In addition,
“serious physical injury” is defined as “an injury that (1) causes a child
severe pain; or (2) significantly impairs a child’s physical functioning, either
temporarily or permanently.” Id.
On March 25, 2014, subsequent to the trial court’s underlying
dependency order, our Supreme Court decided Interest of L.Z., in which it
held:
While a petitioning party must demonstrate the existence
of child abuse by the clear and convincing evidence
standard applicable to most dependency determinations,
42 Pa.C.S. § 6341(c) . . . the identity of the abuser
need only be established through prima facie
evidence in certain situations[ pursuant to 23 Pa.C.S. §
6381(d).]
Interest of L.Z., 111 A.3d at 1174 (emphases added).
We note the following discussion by the Court:
[C]hild abuse cases often involve a child presenting to a
hospital with significant injuries that are entirely consistent
with common types of child abuse and entirely inconsistent
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with the implausible explanations concocted by the parents
and responsible persons to avoid allegations of child
abuse. . . . As the children may be too young or fearful to
describe the abuse, CYS agencies are left to prove their
case with only the physical evidence of injuries that would
not ordinarily be sustained but for the action of the parents
or responsible persons and the implausible statements of
the parents and responsible persons. . . .
Id. at 1171.
The Court further held the presumption was rebuttable by the parent:
The parent or responsible person may present evidence
demonstrating that they did not inflict the abuse,
potentially by testifying that they gave responsibility for
the child to another person about whom they had no
reason to fear or perhaps that the injuries were accidental
rather than abusive. The evaluation of the validity of the
presumption would then rest with the trial court evaluating
the credibility of the prima facie evidence presented by the
CYS agency and the rebuttal of the parent or responsible
person.
Id. at 1185.
In the instant case, the trial court specifically found “[a]ll of DHS’
witnesses credible.” Trial Ct. Op. at 5. In finding Child’s rib injuries were a
result of abuse and not accident, the trial court stated the following.
[T]he Doctor’s testimony established that the injuries Child
sustained would not occur by someone just pressing on
her abdomen, someone would have to be squeezing the
ribcage in order to create the fracture. [N.T., 8/19/14, at
15.] The explanations the parents gave, that the fractures
were caused either by Child falling from a bed or by L.C.
sitting on Child’s back, are not consistent with the injuries
Child sustained. The Doctor testified that Child would have
cried when the event occurred that fractured her ribs. . . .
Parents were never able to explain Child’s injuries in a way
consistent with the type of injuries [she] sustained.
Furthermore, the Doctor testified that the type of rib
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fractures Child had are a type . . . that do not occur from
an accidental injury. [Id. at 26.] Child had multiple rib
injuries[:] lateral rib fractures and fractures on the left
side still . . . healing. [Id. at 13-14.] The rib fractures
[were] a serious injury causing significant on-going pain to
Child. [Id. at 14, 17-18, 27.] Father also testified that in
order to relieve Child of gas pains, he would push on her
abdomen. [Id. at 45.] Mother had said that Child
sometimes cried when . . . Father squeezed on her
abdomen. Father testified that no doctor ever instructed
him to push on Child’s abdomen to relieve gas pains. [Id.]
Trial Ct. Op. at 4-5 (some record citations omitted).
With respect to Child’s eye and mouth injuries, the court opined:
The Doctor testified that the hemorrhaging in the right eye
was also from trauma and that an infant, such as Child,
would not be able to self-inflict this type of injury to her
own eye. [N.T. at 16, 18.] The Doctor also testified that
the laceration to Child’s mouth would not occur from an
ordinary fingernail scratch, the laceration was across the
entire floor of the mouth and deep under her tongue.
Significant amount of force would be required to cause
such an injury. [Id. at 24.] There were six other adults
and three other children who live with parents[,] Child and
[L.C.] Father testified that no other adult[ ] who lives in
the house witnessed the injury to the mouth.
Trial Ct. Op. at 5.
The court further noted:
The injuries Child sustained while under the care of her
parents could not be explained by her parents, the injuries
were serious, and caused Child severe pain. The Doctor
spoke with Mother, and Mother said that Father was the
perpetrator of Child’s rib fracture by exclaiming “I knew it
was him” to the Doctor. [N.T. at 15.]
Trial Ct. Op. at 5. The court’s findings are supported by the record.
-9-
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We reject Father’s assertion that Dr. McColgan “could not establish the
level of pain suffered by the child.” See Father’s Brief at 8. Dr. McColgan
testified Child “had bilateral fractures of the 11th ribs” which were
approximately one to three weeks old at the time she was examined. N.T.,
at 11, 14. She testified that a rib fracture “is a serious injury. It would have
caused pain to the child.” Id. at 14. Moreover, Dr. McColgan testified:
[DHS’ counsel: I]n your opinion, how much pain would
have Child occurred [sic] when she sustained the rib
fracture?
[A.] This would be significant pain. [I]t’s subjective to
be able to determine how much pain someone else
experienced. A rib fracture is a fracture of the bone, which
is typically severe pain.
[Q.] Would Child cry? Would it be likely that she would
cry?
A. It would be likely that she would cry.
Id. at 17-18. Based on Dr. McColgan’s testimony, we discern no abuse of
discretion by the court in finding Child’s bilateral rib fractures were a
“serious physical injury” pursuant to section 6303. See 23 Pa.C.S. §
6303(a).
With respect to whether A.C.’s rib fractures were nonaccidental in
cause, Dr. McColgan testified as follows:
[DHS’ counsel: I]n your professional opinion, would a
four month-old incur these injuries on her own?
[A.] No, these are not self-inflicted injuries. At four
months of age, typically, you’re just learning how to roll
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J-S27031-15
over, maybe lifting your head, but you would not have
enough movement to cause these injuries yourself.
[Q. I]n your professional opinion, is it likely that a
four[-]month-old would sustain these injuries without
some sort of non-accidental trauma?
[A.] You could have accidental injury, but the accidental
injuries that were reported would not have accounted for
all of these injuries, nor were they likely to have caused
these injuries.
[Q.] Can you say, to a reasonable degree of medical
certainty, that [Child’s] injuries were caused by child
abuse?
[A.] Yes, my diagnosis was physical abuse.
N.T. at 18-19; see also id. at 24-25. Based on Dr. McColgan’s testimony,
we likewise discern no abuse of discretion by the court in finding that A.C.’s
rib fractures were nonaccidental in cause pursuant to section 6303.
In addition, Dr. McColgan testified about Child’s mouth injury as
follows. Child had a laceration “across the floor of the mouth, just behind
the gum line,” as well as “hematoma, which is a collection of blood
underneath her tongue.” Id. at 11. This injury was “relatively recent.” Id.
at 12. Mother’s explanation, that Father caused it by putting a pacifier in
her mouth, “should not” have caused the mouth injury. Id. at 13.
Furthermore, Dr. McColgan replied “Yes,” to the specific question of whether
Child would have “been in pain when she received that injury.” Id.
Dr. McColgan further testified Child’s left eye had a “subconjunctival
hemorrhage . . . which is a collection of blood in the white portion of the
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J-S27031-15
eye. . . .” Id. at 11. Dr. McColgan opined the eye hemorrhage was from
trauma, explaining:
The white part of the eye—you can sometimes see
hemorrhages there, usually from trauma. You can also get
them from very severe coughing or very severe vomiting,
but that’s pretty unlikely in a three month—whatever she
was—an infant, and there was no report of severe vomiting
or coughing for [Child].
Id. at 16. In addition, Dr. McColgan testified there was no biological or
medical reason for Child’s eye hemorrhage. Id. at 16-17.
Dr. McColgan further testified Child “had abrasions on her face,”
including “a diagonal line across the cheek,” approximately “a half to a
centimeter wide by several centimeters long.” Id. at 11. Dr. McColgan did
not recall if an explanation for these cuts was provided. Id. at 16.
Significantly, Dr. McColgan testified Child’s injuries were incurred on
“at least two separate episodes:”
Some of the injuries had to have occurred at separate
times. The rib fracture was, again, a week to [three]
weeks old. The scratches on the face and the laceration
on the tongue and the eye injury were likely relatively
more recent. . . .
So, we know there was at least two separate episodes,
but I can’t tell you that the face injury, the mouth injury or
the eye injury did or didn’t happen at the same time.
[Child Advocate: ] But they happened separate from the
ribs?
[A.] Yes.
Id. at 19-20.
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J-S27031-15
Based on the foregoing testimony of Dr. McColgan, as well as Father’s
and Mother’s explanations for Child’s injuries, we discern no abuse of
discretion by the court in finding Child was the victim of “child abuse”
perpetrated by Father. See Interest of L.Z., 111 A.3d at 1174. We
conclude the testimonial evidence demonstrates that Child’s bilateral rib
injuries satisfied the definition of “child abuse” under section 6303(b)(1)(i).
See 23 Pa.C.S. § 6303(b)(1)(i). With respect to Child’s injuries to her
mouth, left eye, and face, we conclude that the testimonial evidence
demonstrates that she suffered “child abuse” under section 6303(b)(1)(iii),
as they created “an imminent risk of serious physical injury.” Accordingly,
we affirm the adjudication order. See 23 Pa.C.S. § 6303(b)(1)(iii).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/13/2015
- 13 -
| {
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} |
751 A.2d 212 (2000)
COMMONWEALTH of Pennsylvania, Appellee,
v.
Gregory PENNINGTON, Appellant.
Superior Court of Pennsylvania.
Submitted January 24, 2000.
Filed April 19, 2000.
*214 Rose Marie D'Adamo, Philadelphia, for appellant.
Catherine L. Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Before JOHNSON, J., CERCONE, President Judge Emeritus, and OLSZEWSKI, J.
*213 OLSZEWSKI, J.:
¶ 1 Gregory Pennington appeals nunc pro tunc from judgment of sentence arising from the robbery and murder of a University of Pennsylvania graduate student. We affirm.
¶ 2 The trial court succinctly set forth the relevant facts and procedural history:
On August 29, 1994, at approximately 10:00 p.m., in the 1200 block of Peach Street, Philadelphia, Pennsylvania, the defendants, Gregory Pennington and Anthony Archer,[1] along with codefendants Antoine Saunders, Ollie Taylor and Khalis Edmondson, hatched a plot to commit a robbery. At that time, no specific victim was chosen as the object of the robbery. Their plan was to search the streets of West Philadelphia, in the extended are [sic] of the University of Pennsylvania, to find a target of their scheme. The plan was most likely conceived when Anthony Archer, Ollie Taylor and Khalis Edmondson met earlier that evening at their friend, Tyrik's house, where Mr. Archer procured a sawed off .22 caliber rifle from Tyrik and gave it to Mr. Saunders. Gregory Pennington joined the group at 55th & Chester Avenue as they walked from Tyrik's house to Peach Street. In the 1200 block of Peach Street, they encountered a fifth member of the band, Antoine Saunders. While at Peach Street, all five defendants agreed to commit a robbery and they left to roam the streets to look for a victim. The defendants encountered their first potential *215 victim, a young lady[,] at 49th & Springfield Avenue. They did not rob her because the lighting conditions were too good. At 48th & Osage, the defendant's encountered Mr. Al-Moez Alimohamed, the ultimate victim, at or near the 4700 block of Pine Street where he was using a public phone. When the victim was finished with the phone, the defendants approached him in front of a Rite Aid Pharmacy, pushed him against a wall, went through his pockets, taking his keys and identification, punched him, kicked him and knocked him to the ground. This was all while Mr. Saunders threatened Mr. Alimohamed at gun point [sic]. The police also observed this incident from a vehicle stopped near the intersection of Pine Street and Hanson Street. The defendants retreated across the street and Mr. Pennington and Mr. Edmondson fled. Mr. Saunders and Mr. Taylor returned to the victim and Mr. Saunders attempted to shoot him but was unable to disengage the safety of his rifle. Mr. Taylor grabbed the gun from Mr. Saunders and shot Mr. Alimohamed one time in the right chest while he lay helpless on the ground after the robbery. The bullet passed through his right lung and through his heart. Mr. Saunders and Mr. Taylor pleaded guilty to first degree murder and testified at the trial of Mr. Archer and Mr. Pennington.
Trial Court Opinion, 6/1/99, at 2-4 (citations omitted).
¶ 3 Before trial, appellant made a motion to transfer to decertify the case to the juvenile court pursuant to the Juvenile Act. The Honorable Carolyn Temin originally granted appellant's motion, but, after learning more information about appellant's role in the incident, vacated her previous order and denied decertification. See Judge Temin Opinion, 3/5/96, at 11-12. After a trial, a jury acquitted appellant of murder and convicted him of robbery, conspiracy to commit robbery, and theft. See Trial Court Opinion, 6/1/99, at 1. The trial judge, the Honorable James J. Fitzgerald, III, then denied appellant's motion to transfer the case to Family Court for sentencing without a hearing. See id. at 6. The court then sentenced him to ten to thirty years imprisonment. See id. at 2. On September 19, 1997, we dismissed appellant's initial appeal for failure to file a brief. See Supplemental Trial Court Opinion, 7/14/99, at 1. On March 8, 1999, the trial court granted appellant leave to file this appeal nunc pro tunc. See id.
¶ 4 Appellant first argues that the lower court erred in applying the weapons enhancement provision of the sentencing guidelines to appellant's sentence. Appellant claims that he did not have actual possession of the gun used to kill the victim, nor, he claims, was the gun within his immediate physical control when the crime was committed. Consequently, appellant argues that the court imposed an excessive sentence. We disagree.
¶ 5 Because he claims that his sentence is excessive, he does not challenge its legality; rather, he challenges its discretionary aspects. Pennsylvania law mandates that an appellant cannot appeal as of right from the discretionary aspects of a sentence. See 42 Pa.C.S.A § 9781(b). Rather, appellant must meet two requirements before we will review his challenge on the merits. See Commonwealth v. Coss, 695 A.2d 831, 833 (Pa.Super. 1997). First, appellant must "set forth in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Pa. R.A.P. 2119(f); see also Commonwealth v. Hatcher, 746 A.2d 1142, 1144 (Pa.Super. 2000). Because his brief includes such a statement, appellant has met the first requirement. Second, appellant must show "that there is a substantial question that the sentence imposed is not appropriate under this chapter." 42 Pa.C.S.A. § 9781(b); Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244 (1999). An appellant raises a substantial question with a "colorable argument that the sentencing *216 judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super.1999). On several occasions, we have found that the application of the weapon enhancement presents a substantial question. See, e.g., Hatcher, 746 A.2d 1142, 1144; Commonwealth v. Greene, 702 A.2d 547, 551 (Pa.Super.1997); Commonwealth v. Morgan, 425 Pa.Super. 344, 625 A.2d 80, 83 (1993); Commonwealth v. Bowen, 417 Pa.Super. 340, 612 A.2d 512, 516 (1992). Therefore, we will address the merits of appellant's claim.
¶ 6 The trial court enhanced appellant's sentence because "a firearm was used during the commission of the robbery." Supplemental Trial Court Opinion, 7/14/99, at 5. In 1994, when appellant committed the crime, the sentencing guidelines provided that the deadly weapon enhancement shall be applied "[w]hen the court determines that the offender possessed a deadly weapon, as defined in [the Crimes Code] during the commission of the current conviction offense." 204 Pa.Code § 303.9 (1994). Further, "the term `possessed' means on the defendant's person or within his immediate physical control." 42 Pa.C.S.A. § 2154(b) (emphasis added). We agree with appellant that the court erroneously concluded that all that was required for the enhancement to apply was that a weapon was used in the commission of the crime, but find, as a matter of law, that appellant "possessed" the gun during its commission.
¶ 7 In Bowen, the defendant and his accomplices displayed weapons to their victims before robbing them. See Bowen, 612 A.2d at 513. After robbing and beating one victim, the robbers entered a car, where another victim was located, and beat him until he gave them his coat. See id. The second victim testified that he did not see a gun in appellant's hand, but testified that he saw at least two weapons during the incident. We upheld the trial court's imposition of the weapons enhancement, finding it irrelevant that the defendant did not have a gun on his person in the car. See id. at 516. We found first that the robbery was commenced when all of the perpetrators brandished their weapons, and second, and most importantly for the present matter, that
when [the victim] was surrounded by [the defendant] and two accomplices inside the car, two of the accomplices had weapons in their hands. One of the gunmen was in the front seat inches away from [defendant].... Even if we were to assume that [defendant] did not possess a gun at the point [the victim] was cornered, assaulted[,] and robbed inside the car, we would conclude that a gun was within [defendant's] immediate physical control.... [I]t is hard to imagine weapons more within his immediate physical control than were the weapons of his companions at that moment. [Defendant] had ready access to the physical possession of a gun, under the circumstances described here.
Id.
¶ 8 The present matter is analogous to Bowen. There, as here, appellant and his co-conspirators all had knowledge of the existence of a weapon and had ready access to it during the robbery. Likewise, in Hatcher, we applied the weapons enhancement to an assault and reckless endangerment conviction where "[a]ppellant was shoulder-to-shoulder with the other two assailants, who handed the gun back and forth." Hatcher, 746 A.2d 1142, 1145. We determined that "[a]ppellant easily could have walked out and taken possession of the gun at any time." Id. ("The trial court correctly stated that enhancement was proper because the handgun used by King and Harris was in close physical proximity to Appellant, thus triggering the `within immediate physical control' provision of the statute."). Similarly here, appellant could easily have been given *217 or taken the gun at any moment while the group assaulted the victim.
¶ 9 While appellant claims that Greene supports his contention that the court erred in applying the weapons enhancement, this reliance is misplaced. There, the defendant waited in a car while his co-conspirator attempted to rob a jewelry store. See Greene, 702 A.2d at 555. On appeal, we found that the fact that the defendant knew that the robber had a firearm was insufficient to warrant imposition of the weapons enhancement. See id. at 552-53. We held that "the deadly weapon enhancement [was] inapplicable... because the gun was neither on appellant's person nor within his immediate physical control at any time during the perpetration of the robbery." Id. at 553. By contrast, in the present matter, there was evidence that appellant was in the immediate vicinity of his co-conspirators when the gun was used to threaten the victim. We hold, therefore, that there were sufficient grounds for the trial court to apply the weapons enhancement, and thus it is not necessary to remand for resentencing despite its erroneous rationale.
¶ 10 Appellant also argues that the court applied an incorrect offense gravity score (OGS) for robbery in calculating his sentence. The court assigned an OGS of 11 (inflicts serious bodily injury) rather than an OGS of 9 (threatens another with or intentionally puts him in fear of immediate serious bodily injury). We recently addressed this exact issue in our en banc review of Anthony Archer's appeal.[2]See Archer, 722 A.2d at 211-12. Archer argued, as appellant does, that, because he was acquitted of murdering the victim, the court could not consider the gunshot when calculating his OGS for robbery. He claimed that the initial attack and robbery was insufficient to meet the criteria for "serious bodily injury." Id. at 208. We stated that "[e]ven though Appellant was acquitted of murder, the injuries resulting from the shooting are attributable to Appellant regardless of who fired the gun." Id. at 212. We concluded, "[w]e find that the court was correct in finding a gravity score of 11, for regardless of the injuries sustained from the assault, the death resulting from the gunshot should have been considered as well." Id. Appellant's argument fails for the same reason.
¶ 11 Appellant next argues that the court failed to take into account his particular circumstances when sentencing appellant, relying instead on the seriousness of the crime. "Generally, the imposition of sentence is a matter vested within the sound discretion of the trial court. To constitute an abuse of discretion, the sentence must either exceed statutory limits or be manifestly excessive." Commonwealth v. duPont, 730 A.2d 970, 986 (Pa.Super.1999) (citation omitted). Here, appellant claims his sentence is manifestly excessive, as he must because the court sentenced him within the guidelines. We disagree with appellant's contention that the court failed to consider all relevant factors. Judge Fitzgerald indicated that he considered the record and presentence report before him when imposing his sentence. See Trial Court Opinion, 6/1/99, at 13. It is well-settled that "[w]here presentence reports exist, [Pennsylvania courts] shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors." Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988). "Therefore, this requirement is met if the court states on the record that it has consulted a presentence report." Commonwealth v. Brown, 741 A.2d 726, 735 (Pa.Super.1999). The court specifically indicated that it did not consider the death of the victim in sentencing appellant. See Supplemental *218 Trial Court Opinion, 7/14/99, at 5. In sum, the record simply does not support appellant's contention that the court abused its discretion in imposing sentence.
¶ 12 Appellant also argues that the denial of his two motions to decertify and transfer the case to juvenile court was error. First, he argues that Judge Temin erred when she denied appellant's motion for decertification (transferal) pursuant to 42 Pa.C.S.A. § 6322(a). He also claims that Judge Fitzgerald erred when he refused to decertify the case after appellant was acquitted of murder.
¶ 13 In 1994, the Juvenile Act provided,[3] that exclusive jurisdiction vested in the juvenile court when a juvenile had committed a crime. See 42 Pa.C.S.A. § 6322(a). There was an exception, however, when a minor was charged with murder. See id. In such cases, "jurisdiction remains in the criminal division and any transfer from the criminal division to the juvenile division is within the sound discretion of the trial court." Archer, 722 A.2d at 206 (citing 42 Pa.C.S.A. § 6322(a)).
¶ 14 The Act provided that "the child shall be required to show the court that the child is amenable to treatment, supervision or rehabilitation as a juvenile" in order to have his case decertified to the juvenile court. 42 Pa.C.S.A. § 6322(a); see also Commonwealth v. Aziz, 724 A.2d 371, 373 (Pa.Super.1999). Thus, appellant bears the burden of demonstrating that all the following factors weigh in favor of decertification:
the age, mental capacity and maturity of the minor; the degree of criminal sophistication of the child; previous records, if any; the nature and extent of the juvenile history; whether the child can be rehabilitated prior to the expiration of the Juvenile Court jurisdiction; probation or institutional report; the nature and circumstances of the acts for which the transfer is sought; and any other relevant factors.
Archer, 722 A.2d at 206; see also 42 Pa. C.S.A. § 6355(a)(4)(iii)(A) (listing factors and allowing transfer "if all of the [factors] exist") (emphasis added).
¶ 15 We will reverse a decision not to decertify a case only upon "`a misapplication of the law or an exercise of manifestly unreasonable judgment based on partiality, prejudice or ill will.'" Commonwealth v. Johnson, 542 Pa. 568, 669 A.2d 315, 321 (1995) (quoting Commonwealth v. Romeri, 314 Pa.Super. 279, 460 A.2d 1139, 1145 (1983), aff'd, 504 Pa. 124, 470 A.2d 498 (1983)); see also Commonwealth v. Laudenberger, 715 A.2d 1156, 1159 (Pa.Super.1998) ("A trial court's decision to deny decertification will only be disturbed upon a showing of gross abuse of discretion."), appeal denied, ___Pa.___, 751 A.2d 187 (2000).
¶ 16 Appellant contends that the court did not consider all the required factors in making its determination. He relies, as did his co-conspirator Archer, on our Supreme Court's decision in Commonwealth v. Greiner, 479 Pa. 364, 388 A.2d 698 (1978), in arguing that "the Court abused its discretion where one strong fact in favor of certification [is] insufficient to outweigh numerous counter veiling [sic] facts strongly weighing against certification." Appellant's brief, at 33. Such reliance is as equally misplaced as Archer's was. See Archer, 722 A.2d at 207. As we explained in Archer, Greiner involved a transfer from juvenile court to criminal court. See id. Therefore, the Commonwealth had the burden of demonstrating that such transfer was required. See Greiner, 388 A.2d at 702. Here, by contrast, appellant bears the burden of demonstrating that the court did not consider all the required factors.
¶ 17 Judge Temin's opinion denying appellant's motion for decertification outlines *219 the various sources used by her in denying certification, including notes of testimony of various related proceedings, appellant's previous criminal record, statements made by appellant and others to the police, and letters and reports of various individuals. See Judge Temin Opinion, 3/5/96, at 3. The court determined that there was no evidence "implicat[ing] Pennington in either the initial beating or in the actual shooting of the victim" and there was expert testimony that "the defendant was amenable to treatment within the juvenile court system." Id. at 8-9. Therefore, the court "initially granted the petition for decertification on January 24, 1996[,] based on its conclusion that the greater weight of the evidence presented to this court militated in favor of transferring Pennington to juvenile court for disposition." Id. at 11. Subsequently, however, Judge Temin learned that, prior to the assault and murder of the victim, appellant and two co-conspirators had been "walking around asking people for bullets." Id. at 12. She then vacated her previous order because she found that these acts indicated that appellant "was actively engaged in the preparatory steps of the incident" and "was not merely a passive participant in the events." Id.
¶ 18 The record reflects, contrary to appellant's assertion, that the court considered all factors, and not only his activities before the robbery. The court found that the severity of the crime and appellant's role in it, as well as appellant's prior contacts with the justice system, outweighed the factors favoring decertification. Appellant has not provided any proof that the court's decision was based on any improper factors. See Commonwealth v. Shaffer, 722 A.2d 195, 198 (Pa.Super.1998), appeal denied, 559 Pa. 665, 739 A.2d 165 (1999). We cannot say that the judge's decision not to decertify appellant's case was an abuse of discretion.
¶ 19 Appellant also contends that Judge Fitzgerald erred in not transferring the case to juvenile court after appellant was acquitted of murder. At the time of appellant's crime, the Juvenile Act provided that if a child was acquitted of murder the case could be transferred to the juvenile court for sentencing. See 42 Pa.C.S.A. § 6322(b). In determining whether to transfer such a case, the court must apply the same factors as used in a pre-trial decertification determination. See Archer, 722 A.2d at 207 ("[Commonwealth v. Solomon, 451 Pa.Super. 239, 679 A.2d 775, 777 (1996)] dictates that the factors set forth in section 6355(a)(4)(iii)(A) should be considered in a section 6322(b) transfer which is comparable to the application of these factors in a § 6322(a) transfer."). Our standard of review is also the same as for a pretrial decertification order: "Again, we must determine whether the trial court abused its discretion when reviewing the denial of a hearing and the denial of the motion to transfer." Id.
¶ 20 Appellant disingenuously argues that Judge Fitzgerald incorrectly relied on Judge Temin's order denying decertification before trial. The record reflects otherwise. In Archer, we noted that Judge Fitzgerald conducted an independent examination of these factors. See id. at 208. Appellant baldly asserts the contrary. See Appellant's brief, at 17 ("Moreover, the Honorable Trial Court seemed to feel that Judge Temin's amenability finding was binding upon it."). In his opinion denying decertification in both appellant's and Mr. Archer's cases, Judge Fitzgerald noted
[t]his court made a determination independent from Judge Temin that the defendants were not amenable to treatment within the juvenile justice system. This Court had access to most of the material set forth in Judge Temin's Opinions including both defendants' juvenile records; the notes of testimony from the decertification hearing before Judge Temin (Mr. Pennington's juvenile record and the notes from his decertification were actually made part of the sentencing record in this matter).; all of the statements of both defendants and the codefendants given prior to trial and *220 during the trial and other relevant factors considered by Judge Temin. This court also had the benefit of the presentence and mental evaluations conducted on both defendants for the purposes of sentencing.
* * *
Regarding Mr. Pennington, the court considered all of the factors as set forth by Judge Temin in the aforementioned Opinion. Of particular note was Mr. Pennington's discharge from the juvenile system on August 22, 1994, seven days before he committed the offense. The presentence report confirms that Mr. Pennington was using a significant amount of marijuana the night before the incident. This was after the defendant had the opportunity to work within the juvenile justice system and was recently discharged from its care. Despite the efforts of the juvenile justice system according to all of these reports, this defendant was using drugs and committed this offense after recent discharge. The mental health evaluation prepared for this case evidenced no mental illness and that Mr. Pennington was competent to receive a sentence.... [T]his court concluded from all of these factors that ... Mr. Pennington who was almost 19 years of age at the date of sentencing ... could [not] be rehabilitated within the juvenile justice system prior to the expiration of the juvenile court jurisdiction when [he] reached age 21....
Trial Court Opinion, 6/1/99, at 10 (citation omitted). This opinion and the record both indicate that the court applied the required factors and did not abuse its discretion in denying decertification after appellant's trial.
¶ 21 Judgment of sentence affirmed.
¶ 22 JOHNSON, J., concurs in the result.
NOTES
[1] A different panel of this Court heard Mr. Archer's appeal. Our en banc decision is reported at 722 A.2d 203 (Pa.Super. 1998) (en banc).
[2] Technically, because the panel found that appellant had not properly preserved his argument on appeal, our discussion of the merits of Archer's claim is dicta. We find the panel's reasoning persuasive, however, and adopt the analysis in this case.
[3] Amendments to the Juvenile Act became effective after the date of the appellant's crimes. See Pub.L. No. 1127, § 8.
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894 P.2d 289 (1995)
STATE of Montana, Plaintiff and Respondent,
v.
Duncan PEDER McKENZIE, Defendant and Appellant.
No. 95-161.
Supreme Court of Montana.
Submitted on Briefs April 11, 1995.
Decided April 20, 1995.
*290 Gregory A. Jackson, Jackson & Rice, Helena, Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, for appellant.
Joseph P. Mazurek, Atty. Gen., Pamela P. Collins, Asst. Atty. Gen., Helena, for respondent.
NELSON, Justice.
Duncan Peder McKenzie, appeals from an order of the Eighth Judicial District Court, Cascade County, denying his request to consider his objections to the resetting of his execution date and issuing a death warrant. This Court granted the State's motion to dismiss McKenzie's appeal, in an order dated April 11, 1995. Pursuant to the April 11, 1995 order, this opinion follows.
The issues before this Court are:
1. Whether McKenzie has a right to appeal the District Court's resetting of the execution date?
2. Whether the District Court has jurisdiction to set an execution date after an earlier execution date has expired?
3. Whether the District Court had jurisdiction to hear McKenzie's substantive arguments regarding the resetting of the execution date?
PROCEDURAL BACKGROUND
In January, 1975, Duncan McKenzie was convicted of deliberate homicide and aggravated kidnapping in the Eighth Judicial District Court, Cascade County. McKenzie was sentenced to death for these convictions on March 3, 1975. The facts underlying McKenzie's conviction and sentencing are fully set forth in State v. McKenzie (1976), 171 Mont. 278, 577 P.2d 1023, and will not be repeated here. McKenzie has challenged his conviction and sentence in numerous state and federal proceedings, none of which has been ultimately successful on the merits. McKenzie's death sentence has been stayed at least eight times since its imposition. The most recent stay of execution entered in November of 1988, was dissolved by the *291 United States District Court for the District of Montana on February 23, 1995. The following provides a brief review of the procedural history of this case.
In McKenzie's first state proceeding, this Court affirmed McKenzie's direct appeal of his conviction. State v. McKenzie (1976), 171 Mont. 278, 577 P.2d 1023. In 1980, after two remands by the United States Supreme Court for reconsideration by this Court, we affirmed McKenzie's conviction. State v. McKenzie (1980), 186 Mont. 481, 608 P.2d 428.
On January 5, 1981, McKenzie filed a petition for post-conviction relief in state district court. The District Court denied the petition, and this Court affirmed that court's ruling. McKenzie v. Osborne (1981), 195 Mont. 26, 640 P.2d 368. McKenzie then filed a petition for writ of habeas corpus in federal district court, which was resolved against him seven years later. McKenzie v. Risley (9th Cir.1988), 842 F.2d 1525, cert. denied, 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239 (1988). McKenzie petitioned the United States Supreme Court for a writ of certiorari, which the Court denied on October 11, 1988. McKenzie v. McCormick (1988), 488 U.S. 901, 109 S.Ct. 250, 102 L.Ed.2d 239.
McKenzie then filed his second petition for writ of habeas corpus with this Court. We denied that petition on April 16, 1985, in an unpublished order. On June 27, 1985, McKenzie filed his second habeas petition in federal court which the federal district court denied. The Ninth Circuit affirmed the federal district court's denial, McKenzie v. McCormick (9th Cir.1994), 27 F.3d 1415, and also denied McKenzie's petition for rehearing en banc. On January 17, 1995, the United States Supreme Court denied McKenzie's petition for writ of certiorari. The Court also denied McKenzie's request for a rehearing of the denial of certiorari.
On February 23, 1995, the United States District Court for the District of Montana ordered that the stay of execution granted in 1988, during the pendency of McKenzie's second petition for writ of habeas corpus, be vacated and dissolved. There being no stays of execution in effect, the State moved the Eighth Judicial District Court, Cascade County, for a hearing to reset the execution date.
Prior to the hearing on this matter, McKenzie filed "Defendant's Objections to Request for Execution Date" and supporting memorandum. McKenzie raised several arguments in this document including the argument that the court did not have jurisdiction, and that the hearing to reset the execution date was a hearing to "reimpose the death sentence." The District Court held a hearing on March 27, 1995, and overruled all of the objections McKenzie raised in his "Memorandum Supporting Objections to Execution Setting."
The District Court found that its act in resetting the execution date was merely a procedural and ministerial act, and proceeded with the hearing to set the execution date. The court set the execution date for May 10, 1995, and issued a death warrant.
McKenzie filed a notice of appeal seeking to invoke this Court's appellate jurisdiction over the District Court's rulings. The State moved to dismiss the appeal on the grounds that McKenzie had no right of appeal because there is no appealable order which would give rise to this Court's appellate jurisdiction. We ordered that the matter be fully briefed and, after careful consideration of the parties' arguments, issued an order granting the State's motion to dismiss on April 11, 1995.
DISCUSSION
1. RIGHT OF APPEAL
The State contends that McKenzie has no right of appeal because under Montana law, "[a]n appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant." Section 46-20-104(1), MCA. The State argues that the order resetting the execution date did not affect McKenzie's substantial rights; rather, the court merely executed the March 3, 1975 judgment. The State also maintains that the order resetting the execution date is not a judgment or sentence. We agree.
*292 Courts have long recognized that setting an execution date is a ministerial and not a judicial act. See, State v. Joubert (1994), 246 Neb. 287, 518 N.W.2d 887, 895; Pate v. State (Okla. Crim. 1964), 393 P.2d 247; State v. Miller (1950), 169 Kan. 1, 217 P.2d 287; Rose v. Commonwealth (1949), 189 Va. 771, 55 S.E.2d 33. As stated by one court:
The refixing or resetting of the time for execution, where for any reason the judgment of death has not been executed, is a merely ministerial act, which, at common law, as we have seen, generally devolved upon the sheriff, but which under our statute devolves upon the court in which the conviction was had.
Pate, 393 P.2d at 249.
In resetting the execution date, the District Court was merely performing a ministerial function, i.e., carrying out the March 3, 1975 judgment which sentenced McKenzie to death. McKenzie's substantial rights were not implicated by this proceeding, accordingly, the District Court's order resetting the execution date is not an appealable order.
We also conclude that the District Court's order resetting the execution date cannot be defined as an appealable judgment. Under Montana law, a judgment is defined as "an adjudication by a court that the defendant is guilty or not guilty, and if the adjudication is that the defendant is guilty, it includes the sentence pronounced by the court." Section 46-1-202(10), MCA. In addition, other courts have recognized that: "the order fixing or resetting the date of execution under the original judgment is not a new judgment, and from such order no appeal lies." Pate, 393 P.2d at 250.
Here, the District Court did not "resentence" McKenzie nor did it "reimpose" the death penalty. It merely executed the judgment before it. McKenzie was "sentenced" and the death penalty was "imposed" on March 3, 1975; that sentence has never been vacated by any court.
Finally, we note that the District Court would not have jurisdiction to vacate the original judgment sentencing McKenzie to death, and grant his request for a sentence of life imprisonment, because, once a valid judgment and sentence has been signed, the court imposing the sentence lacks jurisdiction to vacate or modify it except as provided by law. State v. Hanners (1992), 254 Mont. 524, 526, 839 P.2d 1267, 1268. We conclude that there is no provision in the law which would allow the District Court to amend, at the hearing resetting the execution date, the original judgment of 1975 sentencing McKenzie to death.
2. JURISDICTIONAL ARGUMENT
McKenzie argues that the District Court did not have jurisdiction to reset the execution date because the law in effect at the time he was sentenced had no provision for the resetting of the execution after the statutory time for execution had passed. The law in effect at the time McKenzie was originally sentenced provided that: "[i]n pronouncing the sentence of death, the court shall set the date of execution which must not be less than thirty (30) days nor more than sixty (60) days from the date the sentence is pronounced." Section 95-2303(b), RCM (1947), as amended (later recodified as § 46-19-103, MCA). Therefore, according to McKenzie, at the time he was sentenced, an execution had to be conducted within the sixty-day time frame, and the court had no power to reset the execution date if the sixty days elapsed.
However, in 1981, § 46-19-103(1), MCA, was amended to provide that a court shall set a new execution date upon dissolution of a stay of execution. According to § 46-19-103(1), MCA, the District Court has a mandatory duty to set a new execution date, and has no discretion to do otherwise.
Because we have previously concluded that the order resetting the execution date was merely a procedural or ministerial act and, thus, McKenzie's substantial rights were not thereby affected, the controlling law is that law in effect at the time of the court's resetting the execution date. See, State v. Coleman (1979), 185 Mont. 299, 605 P.2d 1000. Therefore the District Court acted correctly in setting the execution date pursuant to § 46-19-103(1), MCA.
*293 In addition, we find no merit to McKenzie's argument that once the initial execution date has passed, the District Court has no authority to reset the date. Other courts have recognized that "the failure to execute a death warrant on the original date fixed does not result in the discharge of a prisoner sentenced to die, but requires the court to fix a new date for the execution." Joubert, 518 N.W.2d at 891.
As stated by the Kansas Supreme Court in Miller, 217 P.2d at 290, "the authorities uniformly hold that failure to execute a death warrant on the date fixed does not result in immunity to or discharge of a person sentenced to die, but requires the fixing of a new date for his execution."
McKenzie also claims that the District Court did not have jurisdiction to reset the execution date pursuant to § 3-1-804(1)(b), MCA, which provides in part: "[t]he first district judge who has been substituted or disqualified for cause shall have the duty of calling in all subsequent district judges." McKenzie argues that Judge McKittrick did not have jurisdiction because the original presiding judge or his successor, did not enter an order conferring jurisdiction on Judge McKittrick.
McKenzie also points to this Court's order of March 14, 1976, as authority for the proposition that McKittrick lacked jurisdiction to reset the execution date. McKenzie's argument is based on the following procedural background.
This case arose in Pondera County, in the Ninth Judicial District before Judge R.D. McPhillips. McKenzie subsequently disqualified McPhillips by substitution. McPhillips called in Judge Robert J. Nelson of the Eighth Judicial District Court to assume jurisdiction of the case, and Judge Nelson moved the cause to Cascade County for the purposes of trial. Thereafter McKenzie was found guilty of deliberate homicide and aggravated kidnapping, and Judge Nelson imposed the death penalty. The execution date was set for April 30, 1975, however it was stayed pending appeal to this Court.
After remittitur, Judge Nelson's term had expired and Judge William H. Coder succeeded Judge Nelson as a judge in the Eighth Judicial District Court. Coder issued an order resetting the execution date on the basis of the sentence previously pronounced by Judge Nelson.
In our March 14, 1976 order we concluded that Judge Coder did not have jurisdiction to reset the execution date. We held that before a district court judge could reset the execution date, the cause had to be returned to the original presiding judge in Pondera County. That judge was required to call in another district judge to continue with jurisdiction of the case.
At the time we issued that order, however, § 46-19-103(1), MCA (1993), was not in effect. The relevant portion of that statute, which controls here, provides that "the court in which the defendant was previously sentenced shall, upon dissolution of the stay, set a new date of execution ..." McKenzie was properly sentenced by Judge Nelson, a judge in the Eighth Judicial District Court. Judge McKittrick is a judge in the Eighth Judicial District Court, the "court in which the defendant was previously sentenced." Accordingly, Judge McKittrick has the statutory authority under § 46-19-103(1) and (4), MCA, without more, (as would any other district judge in that District) to perform the ministerial act of setting an execution date and signing the death warrant.
Moreover, we conclude that § 3-1-804, MCA, which controls the substitution of district court judges, is not applicable. Rather, § 46-19-103(1) and (4), MCA, governs, and it reposes the act of setting the execution date and signing the death warrant in the court in which the defendant was sentenced here the Eighth Judicial District Court. Therefore, our order indicating the original presiding judge in Pondera County must appoint another district court judge before the court may set a new execution date is not controlling.
3. SUBSTANTIVE CLAIMS
McKenzie's substantive claims are not properly before this Court on appeal. The District Court concluded that the hearing to reset the execution date was a procedural *294 and ministerial act. The hearing was not a resentencing and Judge McKittrick had no jurisdiction to consider McKenzie's substantive claims relating to the death penalty sentence itself. Likewise, those claims are not properly before this Court on appeal.
WEBER, Acting C.J., GRAY, and HUNT, JJ., and TED L. MIZNER and ED P. McLEAN District Judges, concur.
TED L. MIZNER, District Jude, sitting for TURNAGE, C.J.
ED P. McLEAN, District Judge, sitting for TRIEWEILER, J.
LEAPHART, Justice, dissenting.
I dissent from the Court's dismissal of this appeal.
I would remand the case to the District Court for consideration of appellant's contention that 20 years on death row constitutes cruel and unusual punishment under the 8th Amendment to the United States Constitution and Article II, Section 22 of the Montana Constitution. This is an issue which at least two of the Justices on the United States Supreme Court recently indicated would "benefit from further study" by the lower state and federal courts. Lackey v. Texas, ___ U.S. ___, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Justices Stevens and Breyer). While noting that such a claim is "novel," the two Justices commented that it is "not without foundation." They also noted that:
Though the importance and novelty of the question presented by this certiorari petition are sufficient to warrant review by this Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts. [Emphasis added.]
The Lackey case involves a defendant who has been on death row for 17 years. Justices Stevens and Breyer suggest that, before the Court can properly determine the merits of this argument, the lower courts must first make a determination as to how much of that 17-year time period is attributable to petitioner's abuse of the judicial system through repetitive, frivolous filings and how much, if any, is attributable to prosecutorial or institutional delay. McKenzie, as of this date, has been under a death sentence since 1975 some 20 years. During the course of that 20-year period, McKenzie has pursued numerous appeals and petitions before this Court, the Ninth Circuit Court of Appeals and the United States Supreme Court. At this juncture, we have no findings by the trial court as to which of these various filings were frivolous and which were meritorious. If it is assumed, arguendo, that Lackey may have an argument based upon his 17-year wait on death row, McKenzie has the potential for an even stronger argument. That argument, however, cannot be adequately addressed until the trial court makes some determinations as to which of McKenzie's numerous filings were a legitimate exercise of the right of appeal and which constitute frivolous filings. Obviously the Court cannot allow a defendant to bootstrap himself into a cruel and unusual punishment argument by abusing the system to his advantage through the repetitive filing of meritless appeals and petitions.
While I do not necessarily agree that there is any merit to McKenzie's argument, it is apparent to me that consideration of the issue by the United States Supreme Court has presently been "postponed" only, and it is merely a matter of time before the federal courts are going to start subjecting death penalty cases to the analysis suggested by Justices Stevens and Breyer in the Lackey case. Accordingly, I would prefer that this issue be dealt with at the earliest possible date rather than waiting for a remand from the federal courts two years down the road at which time McKenzie will be in a position to argue an additional two years of delay.
The Court has taken the position that the substantive issues raised by McKenzie's "Objection to Request for Execution Date" (including the cruel and unusual punishment claim), are not proper issues for appeal in the present context since the only issue legitimately before the trial court was the request for a setting of a date and time for execution a purely ministerial (nonsubstantive) act. Technically this may be correct. However, given that this is a death penalty case *295 and the condemned man is purporting to raise constitutional issues we should look to the substance rather than the "technical" form of his pleading. For example, in State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, Perry, who had been convicted of second-degree murder some 17 years earlier in 1971, moved for a new trial based upon the alleged recantation of an accomplice. The State contended that Perry's only means of redress was a petition for post-conviction review and that the statutory time limit on such petitions had expired as of 1978. This Court declined to adopt the State's position.
Whereas Perry's motion for a new trial cannot technically be denoted a petition for habeas corpus, nor do we treat it as such, the claim nevertheless sounds in the nature of a petition for habeas corpus.
Perry, 758 P.2d at 273.
Despite the incorrect form of the "motion" pleading, the Court addressed the substance of the motion and concluded that Perry had failed to prove that he was the victim of an unlawful conviction. Perry, 758 P.2d at 276.
McKenzie, like Perry, is well beyond the 5-year statutory deadline for filing petitions for post-conviction review. Section 46-21-102, MCA. However, the argument as to whether a lengthy delay before actual implementation of the death sentence constitutes cruel and unusual punishment is a constitutional argument which, by its very nature, cannot be raised until the passage of a significant period of time.
In dismissing this appeal, the courts of the State of Montana are sending this matter on to the federal courts without having addressed this constitutional issue. I fear that we will have to address it at some future point and that it will become all the more thorny for the delay.
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419 Mich. 209 (1984)
351 N.W.2d 813
JURVA
v.
ATTORNEY GENERAL
Docket No. 68500, (Calendar No. 16).
Supreme Court of Michigan.
Argued October 5, 1983.
Decided July 19, 1984.
Foster, Swift, Collins & Coey, P.C. (by Karen Bush Schneider), for the plaintiffs.
Thrun, Maatsch & Nordberg, P.C. (by Robert M. Thrun), for the Rochester Board of Education.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Gerald F. Young and Paul J. Zimmer, Assistant Attorneys General, for the Attorney General.
BOYLE, J.
The issues raised in this appeal are whether the Board of Education of the Rochester Community Schools has the authority to provide for early retirement incentive payments in its collective-bargaining agreement with the Rochester Education Association, and whether early retirement incentives are contrary to the Michigan constitutional mandate that the financial benefits of a pension plan or retirement system be funded during the fiscal year in which the services upon which the benefits are based are performed. Const 1963, art 9, § 24.
I. FACTS
Plaintiff Rochester Education Association is the exclusive bargaining representative of the teachers and other certified personnel employed by the defendant Board of Education of the Rochester Community Schools. Since 1974, the collective-bargaining agreement between the education association and the board has provided for early retirement incentive payments. For the 1974-1975 and 1975-1976 school years, lump-sum payments ranging from $1,000 to $5,000 were available to teachers between 60 and 65 years of age who retired. Subsequent collective-bargaining agreements also *213 provided for early retirement incentives, expanding the group of eligible teachers ultimately to those 50 years of age and increasing the amount of the payments. The collective-bargaining agreement for the 1978-1979 school year made benefits available to teachers who were 50 years old. Teachers retiring between ages 50 and 62 would receive $4,000 per year, payable in equal monthly installments, for 10 years or until they reached age 65, whichever occurred first. Teachers retiring between ages 62 and 65 would receive $2,000 per year, also payable in equal monthly installments, until age 65. To be eligible for such payments a teacher must have had 10 years of continuous teaching prior to requesting retirement or be on the final step of the appropriate salary scale.
On June 15, 1978, the Attorney General issued an opinion, OAG, 1977-1978, No 5314, p 480 (June 15, 1978), in which he opined that a board of education of a school district may not agree in a collective-bargaining agreement to provide supplemental retirement benefits beyond those established by the statutory public school retirement system. In response to that opinion, the board refused to implement the early retirement benefit provision of the 1978-1979 contract unless the education association agreed to hold the board harmless if the provisions were determined to be unlawful. An agreement to that effect was entered into on October 4, 1978.
This action was commenced by the Rochester Education Association, William Jurva, a retired teacher who has been receiving early retirement benefits since the end of the 1977-1978 school year, and Ruth McDonald, a teacher eligible to retire and receive early retirement benefits, who wants to elect early retirement, but has not done so *214 because of the uncertainty as to the legality of the benefit. Plaintiffs sought a declaratory judgment that the early retirement benefits provision was valid and legal and that OAG, 1977-1978, No 5314 was erroneous.
The Attorney General filed a cross-complaint against the board, seeking a declaratory judgment that the agreement to provide early retirement incentive benefits, if found by the court to be lawful, establishes a pension plan or retirement system subject to the current funding requirements of Const 1963, art 9, § 24, and that the method of funding the pension plan violates this constitutional provision.
Plaintiffs moved for summary judgment on both their complaint and on the Attorney General's cross-complaint. The trial court granted plaintiffs' motion in its entirety, finding that the early retirement benefits were authorized by § 1255 of the Michigan School Code, MCL 380.1255; MSA 15.41255, and that the payments did not violate Const 1963, art 9, § 24. The Court of Appeals affirmed. 111 Mich App 595; 315 NW2d 178 (1981). This Court granted leave to appeal. 417 Mich 888 (1983). We affirm the decision of the Court of Appeals.
II. SCHOOL CODE OF 1976, § 1255(1)
School districts possess such power as statutes expressly or by reasonably necessary implication grant to them. Senghas v L'Anse Creuse Public Schools, 368 Mich 557; 118 NW2d 975 (1962). Appellant argues that early retirement incentives are not authorized by the School Code of 1976, 1976 PA 451, MCL 380.1 et seq.; MSA 15.4001 et seq. Section 1255(1) of the School Code, MCL 380.1255(1); MSA 15.41255(1) provides:
*215 "In the process of establishing salaries or determining other working conditions, the board of a school district or the board of a local act school district may use general funds of the school district to provide other related benefits of an economic nature on a joint participating or nonparticipating basis with school employees for employees of the school district."
Appellant reasons that whether or not early retirement incentives are "other related benefits of an economic nature" depends on whether they are related to "salaries" or "other working conditions".
We agree that early retirement incentives are not "salaries". A salary is a "periodic allowance made as compensation to a person for his official or professional services or for his regular work". People v Lay, 193 Mich 476, 488; 160 NW 467 (1916).
The Court of Appeals found that early retirement incentives were working conditions within the meaning of § 1255. Appellant argues that early retirement incentives are not "other working conditions" since that term has been construed to mean conditions of the place of work. Our review of the case law suggests, however, that the term "working conditions" has been construed broadly as well as narrowly, its meaning varying from statute to statute.[1] It appears, therefore, that the term "working conditions" is not uniformly defined, *216 and that we must ascertain the intended meaning of the term as it is used in § 1255 of the School Code of 1976. The history of this provision aids this inquiry.
Section 1255 was formerly § 617 of the School Code of 1955, MCL 340.617; MSA 15.3617. The original provision, as amended in 1963,[2] read as follows:
"Sec. 617. (a) The board of education of any school district in the process of establishing salaries may use money in the general fund of the school district to provide insurance protection on a joint participating or non-participating basis with school employees for employees of the school district on any or all of the following at the discretion of the school board:
"(1) Provide for hospital and surgical benefits for employee and dependents.
"(2) Provide health and accident type coverage.
"(3) Provide group life insurance coverage.
* * *
"(b) A board of education at the request of an employee may use the payroll deduction plan."
In OAG, 1967-1968, No 4583, p 301 (October 11, 1968), the Attorney General opined that school boards lacked authority under both PERA[3] and the *217 School Code of 1955 to pay teachers a sum at retirement based upon the number of years of service in the school system. Since there was no specific statutory authority under the School Code authorizing the payment of this kind of benefit, the Attorney General's inquiry focused on whether such authority could be implied from the power to pay wages. Noting that the Legislature had made express provision for pensions and annuities for public school employees and applying the doctrine of expressio unius est exclusio alterius, Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530, 545; 60 NW2d 444 (1953), the Attorney General concluded that the school board did not have implied authority to pay other similar benefits at retirement.
The Attorney General further opined that school boards had no express or implied statutory authority to pay a sum based on the number of years of service at retirement or when the employee leaves the employment of a school district other than by retirement. The Attorney General reasoned, citing Bowler v Nagel, 228 Mich 434; 200 NW 258 (1924), and Attorney General v Connolly, 193 Mich 499; 160 NW 581 (1916), that the purpose of retirement benefits is to encourage continuous service in public employment, whereas the type of benefit under consideration may provide incentive for school personnel to leave their employment rather than continue it. Thus, authority to grant this type of benefit was found not to be reasonably necessary to enable boards of education to hire or retain public school teachers and administrators.[4]
*218 Section 617 was amended in 1969 to provide as follows:
"The board of education of any school district in the process of establishing salaries or determining other working conditions may use money in the general fund of the school district to provide other related benefits of an economic nature on a joint participating or nonparticipating basis with school employees for employees of the school district.
"The board at the request of an employee may provide payroll deduction programs."
The amendment added "or determining other working conditions" to the phrase "in the process of establishing salaries". It also replaced "to provide insurance protection" with "to provide other related benefits of an economic nature", and deleted reference to the specifically enumerated hospital and surgical benefits, health and accident coverage, and group life insurance coverage. Section 1255 of the School Code of 1976 is identical to § 617 in all significant respects. One commentator has suggested that the 1969 amendment to § 617 was intended to undo the Attorney General's ruling in OAG, 1967-1968, No 4583. See Sachs, Labor Law, 1969 Annual Survey of Michigan Law, 16 Wayne L Rev 641, 644 (1970). Indeed, in a subsequent opinion letter to Representative William A. Ryan, the Attorney General opined:
*219 "Since the School Code, supra, at that time, enumerated, as in the then § 617 of the School Code, supra, which benefits a school district could provide its employees, I concluded in OAG, 1967-1968, No 4,583, p 301 (October 11, 1968), that, for example, a school district could not provide tuition reimbursement to its teachers for postgraduate studies, since such a benefit had not been explicitly authorized by law. However, by amending § 617 of the School Code, supra, to allow boards of education to provide `other related benefits of an economic nature' in the immediately following session of the legislature, the legislature clearly intended to confer broad authority upon boards of education to provide `fringe benefits' for school employees." Unpublished letter opinion of the Attorney General to the Honorable William A. Ryan (June 10, 1974). See also OAG, 1981-1982, No 5848, p 35 (January 28, 1981).
We likewise conclude that the prompt amendment of § 617 in response to OAG, 1967-1968, No 4583, supra, clearly evidences an intent to broaden the authority of school boards to provide other related benefits. This suggests that "other working conditions" as used in § 617 of the 1955 School Code and § 1255 of the 1976 code should be interpreted broadly to include fringe benefits. Moreover, the addition of the expression "other related benefits of an economic nature" refutes appellant's claim that "working conditions" is a narrowly defined term meaning only physical conditions of the workplace. Physical conditions of the workplace are not "benefits of an economic nature", and we therefore conclude that "other working conditions" was intended to be more liberally interpreted than the noneconomic physical conditions of the workplace.
The conclusion that "working conditions" means more than the physical environment of the workplace is further supported by the observation that *220 the predecessor to § 1255, § 617 of the 1955 code, as originally enacted,[5] dealt only with the provision of health insurance, a fringe benefit. Given the fact that this section was concerned only with the provision of a fringe benefit, it is not logical to interpret the subsequent addition of the term "working conditions" as a term unrelated to other benefits.
Appellant further argues that § 1255 authorizes salary and other benefits only as compensation for the rendition of services. No persuasive authority is cited in support of this proposition. Moreover, there are many employee benefits which are not, strictly speaking, compensation for services rendered, but which confer some benefit to the school system. For example, a qualifying teacher may receive compensation while on sabbatical leave for professional improvement. MCL 380.1235; MSA 15.41235. While we agree with appellant that early retirement incentives are not compensation for services rendered, the school, nevertheless, receives a benefit in the form of the teacher's relinquishment of the right to continued employment. Early retirement incentives are benefits of an economic nature for the teacher, and the teacher's early departure from the school district is economically advantageous to the school district. We interpret § 1255 as being sufficiently broad to authorize this benefit.
We are mindful of the fact that another jurisdiction *221 has reached a different result with respect to this question. See, e.g., Fair Lawn Ed Ass'n v Fair Lawn Bd of Ed, 79 NJ 574; 401 A2d 681 (1979). Unlike the provision at issue here, the School Code provision at issue in Fair Lawn was worded very narrowly, and conferred authority on the school board to set only the "terms and tenure of employment, * * * salaries and time and mode of payment thereof". 79 NJ 580.
We hold that early retirement incentives are "other related benefits of an economic nature" and that therefore the school board has the authority under § 1255 of the School Code to provide this benefit. Appellees argued in the alternative that even if the School Code did not authorize the board to provide this benefit, the public employment relations act, MCL 423.215; MSA 17.455(15), authorized bargaining regarding early retirement incentives. The Attorney General does not argue that PERA prohibits early retirement incentives, but merely that PERA does not grant the board the power to confer this benefit. We hold that early retirement incentives are authorized by the School Code and that therefore we need not reach the question whether PERA also authorizes the benefits.
III. PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM
Appellant also argues that early retirement incentives are inimical to the purpose and actuarial soundness of the Public School Employees Retirement System, pursuant to the Public School Employees Retirement Act of 1979, MCL 38.1301 et seq.; MSA 15.893(111) et seq. Appellant reasons that the purpose of retirement systems is to encourage teachers to remain in public service by ensuring that they will receive a pension, whereas *222 the purpose of early retirement incentives is the opposite, i.e., it encourages teachers to leave public service sooner than they would leave if there were no retirement incentive. Appellant further contends that early retirement incentives will adversely affect the retirement system because they will induce a substantial number of teachers to retire early, contrary to the actuarial assumptions of the retirement system.
We begin our discussion of this issue with the observation that the collective-bargaining agreement defines "retirement" with respect to the early retirement incentive as "termination of active employment with the Rochester Community Schools." There is no requirement that a "retiring" teacher be immediately eligible to collect pension benefits. Rather, a teacher can leave employment and collect the early retirement incentive payments before becoming eligible to receive pension benefits.
We are very sensitive to the claim of a strain placed on the actuarial soundness of the retirement system. There is no record evidence to support appellant's position that a large number of teachers will retire early because of the incentive. However, since the avowed purpose of the incentive is to encourage early termination of employment for eligible teachers over 50 years of age, and since many of these teachers may be eligible for pension payments at age 55,[6] it is reasonable to assume that some teachers will receive a pension at an earlier date than they would have had they not had an opportunity to collect an additional source of financial support, i.e., early retirement incentive payments.
*223 Nevertheless, we cannot find that a hypothetical burden on the actuarial basis of the pension system can defeat a grant of statutory authority to provide these benefits. Although there may be a logical relationship between adverse financial consequences and legislative intent, neither the Attorney General nor the minority cites, nor has our research discovered, any Michigan authority in support of this principle. By contrast, the court in Fair Lawn Ed Ass'n v Fair Lawn Bd of Ed, 79 NJ 574, 581-582; 401 A2d 681 (1979), not only premised its decision on the narrowness of the statutory provision being interpreted but also on precedent holding that it was "manifest that actions taken by a state agency which may substantially affect retirement age and thus the actuarial assumptions of a statutory pension system are impermissible unless clearly and unequivocally authorized by the Legislature". We have already held that the legislative history evidences a clear intent to permit school boards to provide these kinds of benefits. The presumed adverse effect on the actuarial soundness of the plan cannot defeat a clear delegation of broad authority to provide fringe benefits of an economic nature. If the Legislature determines that this type of fringe benefit threatens the fund, it is, of course, at liberty to remedy the problem. Given our conclusion that the legislative intent is clear, we hold that the potential for an adverse actuarial effect may not defeat the expressed intent to authorize the board to provide this benefit.
IV. CONST 1963, ART 9, § 24
Lastly, the Attorney General argues that early retirement incentives violate Const 1963, art 9, § 24, which provides:
*224 "The accrued financial benefits of each pension plan and retirement system of the state and its political subdivisions shall be a contractual obligation thereof which shall not be diminished or impaired thereby.
"Financial benefits arising on account of service rendered in each fiscal year shall be funded during that year and such funding shall not be used for financing unfunded accrued liabilities."
Appellant maintains that the early retirement incentive is a pension or retirement system under the common understanding of those terms, and that the early retirement incentive provisions of the collective-bargaining agreements entered into by plaintiffs and defendant board do not contain any arrangements or agreements for the funding of the retirement benefits promised.
We agree with the Court of Appeals that early retirement incentives are not benefits tied to time in service, but rather are compensation for a tenured teacher's waiver of the contractual right to continued employment. The dollar amount of the benefit is measured not by the number of years served (as it would be for purposes of calculating a pension), but rather by the number of years of relinquished employment. We find, therefore, that early retirement incentives are not "financial benefits arising on account of service rendered" and that Const 1963, art 9, § 24 is inapplicable.
Moreover, while we agree with the Attorney General that the contractual obligations of the early retirement incentives incurred by a present school board may fall on the shoulders of future taxpayers, we do not think that this fact alone brings the benefit within the purview of Const 1963, art 9, § 24. Our review of the record of the Constitutional Convention persuades us that the purpose of the provision was to prevent the shifting *225 of the burden for pensions from the taxpayers who derived benefit from the services rendered to future taxpayers by "back door" spending, i.e., by diverting current funding to finance unfunded accrued liability. See Kosa v State Treasurer, 408 Mich 356, 367-368; 292 NW2d 452 (1980). The overriding concern of the delegates to the Constitutional Convention was the establishment and maintenance of the actuarial soundness of the state's pension systems, not with the protection of other financial systems. 1 Official Record, Constitutional Convention 1961, pp 770-775. If the school district were to fail to adequately fund the present accrued liability for pension benefits, the soundness of the pension system would be in jeopardy, whereas failure to provide adequate funds to pay retirement incentives would not have such an effect since those benefits are not paid from the retirement system. The retired teacher may have a cause of action for breach of contract, but because the retirement incentive is not a pension or retirement system, this claim is no different for constitutional purposes than the contractual claim any other party might have for agreements entered into by previous school boards.
Accordingly, we find that Const 1963, art 9, § 24 is not violated by the early retirement incentive provision in the collective-bargaining agreement.
The decision of the Court of Appeals is affirmed.
WILLIAMS, C.J., and RYAN, BRICKLEY, and CAVANAGH, JJ., concurred with BOYLE, J.
LEVIN, J. (dissenting).
The question presented is whether the School Code of 1976 authorizes a school district to agree to pay early retirement incentives. We would hold that a school district is not authorized to do so.
*226 The state appropriates in excess of $500,000,000 per year to the public school employees' retirement systems, of which over $115,000,000 funds current service contributions.[1] The Attorney General alleges that sustaining the authority of school districts to pay early retirement incentives will have a serious adverse effect on those systems. The plaintiffs respond that it will not have an adverse effect if the Legislature fully funds the retirement systems. If early retirement incentives require that additional funds be provided in order to fund the systems fully, however, additional legislative appropriations would be required to cover the cost of early retirement incentive programs agreed to by school districts.
The instant case was decided by entry of a summary judgment without a factual record. We therefore do not know what the cost would be to the state of a decision of this Court sustaining the validity of such agreements.
I
It can indeed be argued that the question is one of law and that the meaning of § 1255 of the School Code of 1976 should be determined without regard to the cost to the state of a construction favoring the validity of such agreements. The potential cost to the state, however, has in our opinion considerable bearing on the likely legislative intent and cannot responsibly be ignored by this Court.
It appears from the complaint that school districts will be financially advantaged by early retirement incentive agreements. They can reduce their teaching staffs without discharging teachers *227 and hire replacement teachers at lower salaries. But it also appears that such programs, by increasing the number of years that retired teachers would draw pensions from the state retirement systems, may substantially increase the drain on those systems and the attendant annual cost the state must bear to fund those retirement programs.
Although we do not have a record in this case, it appears from Fair Lawn Ed Ass'n v Fair Lawn Bd of Ed, 79 NJ 574, 582-583; 401 A2d 681 (1979), that the amounts potentially involved are large. It was there "estimated that a decrease of only one year in average retirement age would increase annual State contributions by nearly $12,000,000". The New Jersey Supreme Court took what we believe to be the responsible course in holding "that actions taken by a state agency which may substantially affect retirement age and thus the actuarial assumptions of a statutory pension system are impermissible unless clearly and unequivocally authorized by the Legislature". (Emphasis added.) There has been no such clear and unequivocal authorization by the Legislature in this case.
II
The plausible linguistic argument in the opinion of the Court fails to take into account the language of § 4(1) of the Public School Employees Retirement Act of 1979[2] providing that "compensation" shall exclude "other fringe benefits paid by and from the funds of employers". We read that language as a declaration of public policy that fringe benefits paid from the funds of employers of public school employees shall not enlarge the cost *228 to the state of funding public school employees' retirement systems. Where the Legislature has enacted two complete and self-contained statutory schemes addressing discrete problems, neither should be construed to frustrate the purposes and objectives of the other. See Mathis v Interstate Motor Freight System, 408 Mich 164; 289 NW2d 708 (1980). See also Perez v State Farm Mutual Automobile Ins Co, 418 Mich 634, 648-650; 344 NW2d 773 (1984) (lead opinion).
A legislative policy of protecting state funded retirement systems from the cost of early retirement programs is also reflected in 1984 PA 3, which permits early retirement of state employees in a carefully constructed program designed both to protect the state retirement systems and to limit the number of persons who may avail themselves of early retirement. Act 3 limits the number of early retirees to those who are eligible and exercise the early retirement option in one month May, 1984 and requires that the entire cost of that early retirement program be paid from the budgets of the departments of state government that will benefit therefrom so that the retirement systems are saved harmless from all added costs resulting from early retirement. The Court's construction of the School Code does not contain such safeguards, nor does it guard against the risk noted in the advice of the Department of Management and Budget respecting Act 3, that if the proposed one-time early retirement program were to be "repeated or made a permanent feature of the state retirement program (and strong pressure would exist to do it), it would result in adding significant long-term costs to the state retirement system".[3]
*229 Early retirement incentives may constitute sound public policy. But this is a policy decision that the Legislature has reserved to itself. The Legislature has not delegated to the parties to this litigation the resolution of that question with all its fiscal implications for the people of this state.[4]
KAVANAGH, J., concurred with LEVIN, J.
NOTES
[1] The term received a very narrow construction in Corning Glass Works v Brennan, 417 US 188; 94 S Ct 2223; 41 L Ed 2d 1 (1974), an action under § 3 of the Equal Pay Act of 1963, 29 USC 206(d)(1). That section required equal pay for the same work performed under "similar working conditions". The Court held that the legislative history revealed that "working conditions" was intended as an industrial term of art equivalent to a worker's surroundings and hazards. 417 US 202. A similar construction of the term has been used under the Occupational Safety and Health Act, 29 USC 653(b)(1), and the term has been interpreted to mean "the environmental area in which an employee customarily goes about his daily tasks". Southern Railway Co v Occupational Safety & Health Review Comm, 539 F2d 335, 339 (CA 4, 1976), cert den 429 US 999 (1976).
On the other hand, the expression "working conditions" as it is used in § 6 of the Railway Labor Act, 45 USC 156, is broadly interpreted. "Working conditions" under the RLA may include actual, objective working conditions such as a unilateral decision by the employer to modify its scheduling system. Independent Federation of Flight Attendants v Trans World Airlines, Inc, 655 F2d 155, 157 (CA 8, 1981).
[2] Section 617 was added to the School Code by a 1956 amendment, 1956 PA 215. The 1963 amendment, 1963 PA 96, is not relevant to this inquiry.
[3] The Attorney General's opinion was premised on the theory that the public employment relations act, MCL 423.201 et seq.; MSA 17.455 (1) et seq., is a general act covering other public employers in addition to school districts. Therefore, it reasoned that the general statutory language must be determined in the context of specific statutes dealing with boards of education and their employees, and that the specific statute, i.e., the School Code, controls over general acts.
[4] The Attorney General's opinion concluded, inter alia, that school boards had no authority to pay teachers the difference between the regular pay and the substitute pay for sick leave used beyond the allotted number of sick leave days, to pay for unexcused sick leave at the end of the school year or on termination of employment, to reimburse teachers for tuition credits earned beyond the baccalaureate degree, and to establish a sinking fund for the purpose of paying reimbursement of tuition or for sabbatical or terminal leave. The Attorney General found authority to pay one-half of the regular salary of a teacher on sabbatical leave.
[5] "The board of education of any school district in the process of establishing salaries is hereby permitted to use money in the general fund of the school district to provide insurance protection on a joint participating basis with school employees for any or all of the employees of the school district or any or all of the following at the discretion of the respective school boards:
"(1) Provide for hospital and surgical benefits for employee and dependents.
"(2) Provide health and accident type coverage."
[6] MCL 38.1381; MSA 15.893(191) (formerly MCL 38.215; MSA 15.893[15]).
[1] 1983 PA 125.
[2] MCL 38.1304; MSA 15.893(114), first added to the predecessor Public Retirement Act by 1963 PA 102, MCL 38.201; MSA 15.893(1).
[3] Letter to the Governor dated September 15, 1983.
[4] We see no need to consider the language of the PERA because the PERA only requires bargaining concerning a subject matter about which a school district is authorized to bargain. Clearly, the PERA does not authorize school districts to bargain concerning the payment of benefits that the Legislature has not authorized a school district to pay.
The disposition we believe to be correct makes it unnecessary to consider whether Const 1963, art 9, § 24 requires a school district to fund in full its obligations under an early retirement incentive program.
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WITHDRAWN 7/11/13
REISSUED 7/11/13
IN THE
TENTH COURT OF APPEALS
No. 10-11-00450-CV
SADDLE BROOK WEST APARTMENTS,
Appellant
v.
SUNG JOON JANG AND SUNMI A. JANG,
Appellees
From the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 20091196 CV2
MEMORANDUM OPINION
Saddle Brook West Apartments sued Sung Joon Jang and his wife, Sunmi A. Jang
for breach of a lease agreement and for damages to the apartment the Jangs rented. A
judgment was entered for the Jangs in the justice court. Saddle Brook appealed, and a
trial de novo was held in the county court at law. The jury found the Jangs breached the
lease agreement but also that the breach was excused. Saddle Brook again appealed.
Because the evidence is sufficient to support the affirmative defense of equitable
estoppel, we affirm the trial court’s judgment.
BACKGROUND
Sung Joon Jang had accepted a position as a professor with Baylor University.
He and his family were moving from Louisiana and had to find temporary housing in
the Waco area while they looked for a house to buy. They settled on an apartment at
the Saddle Brook West Apartments. A year later, when they gave their notice to move
out because they had found a house, the Jangs opted not to conduct a move-out walk-
through with the apartment manager. To their surprise, the Jangs were then charged
for damages to the apartment they said they did not cause.
SUFFICIENCY OF THE EVIDENCE
In its sole issue, Saddle Brook argues the trial court erred by entering judgment
for the Jangs because the evidence was legally insufficient to support the Jangs’
affirmative defenses of estoppel, fraud, prevention of performance, and impossibility.
In conducting a legal sufficiency review, we view the evidence in the light most
favorable to the verdict, credit favorable evidence if a reasonable juror could, and
disregard contrary evidence unless a reasonable juror could not. See Kroger Tex. Ltd.
P'ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802,
822, 827 (Tex. 2005). A legal sufficiency issue will be sustained only if the record reveals
one of the following: (1) the complete absence of evidence of a vital fact, (2) the court is
Saddle Brook West Apartments v. Jang Page 2
barred by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla,
or (4) the evidence established conclusively the opposite of the vital fact. City of Keller,
168 S.W.3d at 827.
Equitable Estoppel
In response to Question No. 3 of the Charge of the Court, the jury found Saddle
Brook was estopped from claiming a breach of the lease agreement because of Saddle
Brook’s words or conduct. Equitable estoppel is based on the principle that "one who
by his conduct has induced another to act in a particular manner should not be
permitted to adopt an inconsistent position and thereby cause loss or injury to the
other." Maguire Oil Co. v. City of Houston, 69 S.W.3d 350, 367 (Tex. App.—Texarkana
2002, pet. denied). Equitable estoppel is established when "(1) a false representation or
concealment of material facts; (2) is made with knowledge, actual or constructive, of
those facts; (3) with the intention that it should be acted on; (4) to a party without
knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies
on the representations." Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 515-16 (Tex. 1998). Saddle Brook argues that there is no evidence of a false
representation or concealment of material facts or of detrimental reliance.
False Representation or Concealment of Material Facts
Saddle Brook West Apartments v. Jang Page 3
The Jangs each testified that when they were sent the lease agreement, they had
concerns about language stamped on the lease which read, “If resident does not walk
apt. with manager upon move out, resident will pay all damage charges assessed by the
manager.” They assumed that this meant they would be charged for any damage done
by them. They signed the lease, initialed the stamped language, and sent the lease back
to Saddle Brook. When they arrived at Saddle Brook to move in, they asked Tammy
Williams, the only staff member of Saddle Brook at the office, whether this language
meant that they would be charged only for damage they caused. Ms. Williams agreed
that was what the language meant. Williams did not testify at trial.
When they entered their apartment for the first time, they noticed that the carpet
was old and stained. They also noticed that a new cutting board had been glued or
caulked to the counter top, next to the stove. They affirmed that they did not cause the
stains on the carpet or glue the cutting board to the countertop. Shortly after move-in,
Sung Joon twice asked the Saddle Brook management to replace the carpet. His request
was denied. Church friends, Dr. Yung Lho and Min Lho, visited the Jangs’ apartment
soon after they moved in. The Lhos each testified that they noticed the carpet was old,
dirty, and stained in various spots. Dr. Lho also noticed a cutting board glued to the
countertop. He asked Sunmi if she placed it there. She replied to him that she did not.
The Jangs each testified that at the time they moved out of their apartment, they
inquired about the walk-through. Sung Joon stated that he initially gave notice of
Saddle Brook West Apartments v. Jang Page 4
moving out in April of 2008. He asked Tysh Haigood about the walk-through. She told
him just to make sure the apartment was clean and to replace the non-working light
bulbs. On July 11, 2008 when Sung Joon emailed Haigood about move-out issues, Sung
Joon received a response from Haigood indicating she would be happy to conduct a
walk-through at Sung Joon’s convenience and all he would have to do was contact the
front office. He called the front office to schedule a walk-through and spoke to Amanda
Hines. Hines questioned Sung Joon whether he really wanted to conduct the walk-
through. When Sung Joon said he did not unless he had to, Hines told Sung Joon he
did not have to do the walk-through. Hines told Sung Joon all he had to do was turn in
the keys and “we’ll take care of it.” On July 30, 2008, Sunmi returned the keys to the
apartment. Because the manager was busy, she returned the keys to Hines and asked
Hines about the walk-through. Hines asked Sunmi if she really wanted to do that.
Sunmi replied that she did not, but had to. Hines told Sunmi that she did not have to
do the walk-through and to just return the key. Hines did not testify at trial.
The Jangs testified that they did not do any of the damage to the carpet and
countertop claimed by Saddle Brook and were not aware that they would be charged
for damages done by others.
At the very least, the statement by Tammy Williams to the Jangs that they would
only be charged for damage they had done to the apartment if they did not participate
in a walk-through at move-out was a false misrepresentation or concealment of material
Saddle Brook West Apartments v. Jang Page 5
fact. Further, Amanda Hines concealed a material fact when she did not warn the Jangs
that they would be charged with any damage to the apartment, even if they did not
cause the damage, when she told the Jangs they did not have to do the walk-through.
The Jangs testified they did not participate in a walk-through, did not cause the damage
to the carpet and countertop, and were charged for the damage. Saddle Brook did not
dispute the Jangs’ testimony as to what Williams and Hines told them or as to whether
the Jangs caused the damage to the apartment.
After reviewing the evidence under the appropriate standard, we find the
evidence is legally sufficient to support this prong of equitable estoppel.
Detrimental Reliance
As to this prong of equitable estoppel, Saddle Brook argues that any reliance by
the Jangs on the representations of Saddle Brook’s staff was unreasonable because, it
argues, reliance on an oral representation that contradicts the unambiguous written
terms of a contract is not reasonable and reliance on representations by a person who
has no authority is not reasonable. See DRC Parts & Accessories, L.L.C. v. VM Motori,
S.P.A., 112 S.W.3d 854, 858 (Tex. App.—Houston [14th Dist.] 2003, pet. denied),
Chambless v. Barry Robinson Farm Supply, Inc., 667 S.W.2d 598, 603 (Tex. App.—Dallas
1984, writ ref’d n.r.e.). Thus, the argument continues, the Jangs could not have relied on
any representations by Saddle Brook staff to their detriment. We disagree with Saddle
Brook’s arguments.
Saddle Brook West Apartments v. Jang Page 6
The stamped language on the lease, “[i]f resident does not walk apt. with
manager upon move out, resident will pay all damage charges assessed by the
manager,” was less than clear. The Jangs could not believe that it meant the manager
could assess charges for damages not caused by them; but the Jangs were not sure.
They asked Saddle Brook staff for clarification and were told that they would not be
assessed charges for damages they did not cause. But the Saddle Brook manager
assessed charges for damages the Jangs testified they did not cause. Saddle Brook did
not dispute the Jangs’ testimony. If anything, the oral representation made by staff
clarified the language of the lease; it did not contradict it. Thus, the Jangs’ reliance on
the representations by Saddle Brook staff were reasonable.
Further, the Texas Supreme Court has held that, as a matter of law, a lease
agreement which provides that "neither Landlord nor Landlord's agents, employees or
contractors have made any representations or promises with respect to the Site, the
Shopping Center or this Lease except as expressly set forth herein," and that "this lease
constitutes the entire agreement between the parties hereto with respect to the subject
matter hereof" does not defeat the reliance element of a claim of fraudulent inducement.
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 331, 336 (Tex.
2011). The Jangs’ apartment lease contained similar language as the lease in Italian
Cowboy:
This Lease Contract is the entire agreement between you and us. Our
representatives (including management personnel, employees, and
Saddle Brook West Apartments v. Jang Page 7
agents) have no authority to waive, amend, or terminate this Lease
Contract or any part of it, unless in writing, and no authority to make
promises, representations, or agreements, that impose … other obligations
on us or our representative unless in writing.
Saddle Brook claims the Jangs were charged with knowledge of this provision and
therefore, the Jangs’ reliance on representations by staff was unreasonable. However,
like Italian Cowboy, this language does not evidence an intent by both parties to disclaim
any reliance on oral statements made by Saddle Brook staff. See id. at 336. Thus, the
Jangs’ claim of detrimental reliance is not vitiated by this part of the lease agreement.
Accordingly, after reviewing the evidence under the appropriate standard, we
find the evidence is legally sufficient to support this prong of equitable estoppel as well.
CONCLUSION
Saddle Brook only challenged two of the five prongs of equitable estoppel, and
we have found the evidence legally sufficient to support those prongs. Thus, the
evidence is legally sufficient to establish the Jangs’ affirmative defense of equitable
estoppel. Because the evidence is legally sufficient to support one of the Jangs’
affirmative defenses, we need not determine whether the evidence is legally sufficient
to support each of the Jangs’ other affirmative defenses. Saddle Brook’s sole issue is
overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Saddle Brook West Apartments v. Jang Page 8
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 25, 2013
[CV06]
Saddle Brook West Apartments v. Jang Page 9
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64 F.3d 135
In the Matter of NATIONAL MINES CORPORATION; and OldRepublic Insurance Company, Petitioners,v.Martha CARROLL, Widow of Andrew J. Carroll; and Director,Office of Workers' Compensation Programs, UnitedStates Department of Labor, Respondents.
No. 94-3711.
United States Court of Appeals,Third Circuit.
Submitted Under Third Circuit LAR 34.1(a)
Aug. 21, 1995.Decided Aug. 30, 1995.
George H. Thompson, Thompson, Calkins & Sutter, Pittsburgh, for petitioners.
Thomas S. Williamson, Jr., Sol. of Labor, Donald S. Shire, Associate Sol., Helen H. Cox, Christian P. Barber, U.S. Dept. of Labor, Washington, DC, for respondent Director, Office of Workers' Compensation Programs.
Before: GREENBERG, COWEN, and SAROKIN, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
1
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
2
This matter is before us on a petition for review of a decision and order of the Benefits Review Board of the United States Department of Labor dated October 26, 1994, affirming an award of benefits on a miner's and survivor's claim filed pursuant to the provisions of the Black Lung Benefits Act, as amended, 30 U.S.C. Sec. 901 et seq. (the "Act").
3
This case originated when the miner, Andrew J. Carroll, filed a claim for benefits on June 7, 1978. The Department of Labor (the "DOL") issued a Notice of Initial Finding on June 25, 1979, indicating that it had determined preliminarily that Carroll had become totally disabled as of June 7, 1978, and identifying National Mines Corporation as the operator potentially liable for benefits to be paid from June 1, 1978. See 20 C.F.R. Secs. 725.413, 725.412. The DOL required National Mines to file a controversion to the determination within 30 days or be deemed to have accepted the initial finding of entitlement and to have waived its right to contest the claim, absent good cause shown. See 20 C.F.R. Sec. 725.413. The notice was sent to National Mines on June 27, 1979, but not to its insurance carrier, Old Republic Insurance Company. On September 30, 1980, the DOL issued an Award of Benefits addressed to Old Republic which, in light of National Mines' failure to respond to the June 25, 1979 order, was essentially a default judgment. However, neither National Mines nor Old Republic initiated payment and thus the Black Lung Disability Trust Fund made the payments on their behalf from June 1978 to February 1981.1
4
On March 25, 1981, counsel entered an appearance on behalf of National Mines and Old Republic who together are the petitioners. By letter dated July 10, 1981, petitioners' counsel informed DOL that Old Republic intended to controvert Carroll's claim. Old Republic stated that it elected to have Carroll examined by a physician on September 3, 1981, and requested that the record stay open on the ground that this was the earliest available appointment. On September 25, 1981, and June 16, 1983, Old Republic submitted the results of its medical testing. The matter then languished.
5
By letter dated September 24, 1986, a supervisor at Old Republic wrote to the DOL claims examiner inquiring into the status of Carroll's claim. The letter referred to an August 12, 1986 telephone conversation in which "it was determined that the initial finding issued by the Department of Labor [in] June, 1979 was not controverted by either Old Republic Insurance Company or [its] attorney." The supervisor stated that the DOL claims examiner had indicated in that conversation that she "would review the file and issue an amended notice." However, the supervisor stated that no amended order or notice had been received. The supervisor sent similar letters of inquiry on July 6, 1987, and June 1, 1989.2
6
On August 14, 1989, pursuant to 20 C.F.R. Secs. 725.310 and 725.480, the DOL entered an order directing Carroll to show cause within 30 days why Old Republic should not be given the opportunity to controvert the claim.3 The order stated as a finding of fact that "[a]n initial finding of entitlement to benefits was made on June 25, 1979; the responsible operator's insurance company was not notified of that finding and, therefore, did not have the opportunity to controvert the claim." Because Carroll did not respond, the DOL gave Old Republic 30 days to controvert the claim. On October 3, 1989, Old Republic filed an "Operator Controversion Form" on behalf of itself and National Mines. In its supplemental response, petitioners argued, inter alia, that the DOL was precluded by the statute of limitations set forth in 20 C.F.R. Sec. 725.603(c)(6) from collecting benefit reimbursements from both National Mines and Old Republic because the DOL had failed to bring an enforcement action within six years of the date upon which there had been a final determination of liability, September 30, 1980.
7
By letter dated November 16, 1989, the DOL informed petitioners that because it had accepted the controversion, the DOL intended to rescind the Decision and Order of September 30, 1980, which had been based upon National Mines' failure to controvert the initial findings. Old Republic objected to the rescission. In response, the DOL stated that it would not rescind the Decision and Order of September 30, 1980, and that the issue would be addressed at an informal conference.
8
After an informal conference, a DOL deputy commissioner recommended that the September 30, 1980 decision and order be rescinded. The deputy commissioner also stated that "[t]he Controversions filed by [petitioners] on October 3, 1989 and October 17, 1989 are herewith accepted as timely." The case was referred subsequently to the Office of the Administrative Law Judges for consideration of several contested issues, including the questions of whether the September 30, 1980 Decision and Order should be considered final and whether the six-year statute of limitations set forth in 20 C.F.R. Sec. 725.603(c)(6) precludes imposition of liability on National Mines and/or Old Republic for any benefits awarded in this case.
9
On October 22, 1991, a formal hearing was held. On December 14, 1992, the administrative law judge ("ALJ") issued a Decision and Order--Awarding Benefits. The ALJ determined, as a preliminary matter, that the rescission of the September 30, 1980 order was proper and equitable. The ALJ concluded that the claim had been reopened on petitioners' own initiative. In support of his conclusion that National Mines and Old Republic "were aware of [Carroll's] claim and [had] attempted to file a controversion well before the expiration of the six-year statute of limitations," the ALJ cited the petitioners' counsel's appearance on March 25, 1981, and the subsequent letter, dated July 10, 1981, which stated that petitioners were controverting the claim and electing to have Carroll examined by a physician.4 The ALJ concluded that a final determination regarding Carroll's eligibility had not been reached yet, thereby precluding the applicability of the six-year statute of limitations.
10
The ALJ also determined that the medical evidence showed that Carroll was totally disabled due to pneumoconiosis and that, as a result, his widow was entitled to benefits on his behalf as well as survivor's benefits under 20 C.F.R. Sec. 725.212. The ALJ determined that Carroll was entitled to benefits commencing June 1, 1978, and that the widow was entitled to derivative benefits commencing on June 1, 1989. Consequently, National Mines was ordered to pay benefits under the Act to Carroll with derivative benefits to his widow and to reimburse the Trust for payments previously made.
11
National Mines and Old Republic appealed the Decision and Order to the Benefits Review Board, specifically challenging the ALJ's findings regarding the applicability of the statute of limitations set forth in 20 C.F.R. Sec. 725.603(c)(6) and the commencement of benefits date. On October 26, 1994, the Board issued a Decision and Order affirming the ALJ's award of benefits. On December 23, 1994, National Mines and Old Republic filed a petition for review to this court challenging the Board's affirmance of the ALJ's decision to rescind the September 30, 1980 Award of Benefits.5
12
We have jurisdiction over the petition for review pursuant to 33 U.S.C. Sec. 921(c), as incorporated by the Act, 30 U.S.C. Sec. 932(a). We review decisions of the Board "for errors of law and to assure that it has adhered to its own standard of review." BethEnergy Mines, Inc. v. Director, OWCP, 39 F.3d 458, 462-63 (3d Cir.1994) (citing Director, OWCP v. Barnes & Tucker Co., 969 F.2d 1524, 1526-27 (3d Cir.1992)). "[T]he Board must accept an ALJ's findings of fact if they are supported by substantial evidence in the record considered as a whole." Id. at 463. We exercise plenary review over the Board's legal determinations. Id.
II. DISCUSSION
13
Petitioners do not challenge the award of benefits on the merits. Rather, they argue that the DOL was without authority to rescind its September 30, 1980 Award of Benefits and thereby reopen the claim. Petitioners allege that the DOL, after nine years of inactivity, realized in 1989 that no action had been taken within the six-year statute of limitations period set forth in 20 C.F.R. Sec. 725.603(c)(6) to enforce the lien against them. Petitioners assert that the DOL, to reinstate its enforcement rights, reopened the case without authority to restart the running of the six-year statute of limitations and legitimize a future enforcement action.
14
In the first place, petitioners' reliance on section 725.603(c)(6) is misplaced. Under that section, a lien for the amount paid out by the Fund due to an employer's failure to pay benefits arises in favor of the United States against the employer's property when liability for those benefits finally is determined. 30 U.S.C. Sec. 934(b)(2); 20 C.F.R. Sec. 725.603(b). Section 725.603(c)(6) provides that the Secretary of Labor may enforce the lien in a district court where "the proceeding is commenced within 6 years after the date upon which liability is finally determined."
15
However, the statute of limitations cited refers only to the enforcement proceedings described in section 725.603, which must brought in the district court. Thus, the statute of limitations on which petitioners rely is not applicable in the administrative proceedings we review, as those proceedings were aimed not at enforcing a lien but at determining liability. In short, because the petition before us has been filed to review an administrative determination and not to review a judgment in a district court enforcement action, the question of whether section 725.603(c)(6) acts to bar the enforcement of liens against petitioners is not before us. Because petitioners have not directed our attention to any applicable statute of limitations, there is no basis for us to vacate the Board's decision on statute of limitations grounds.
16
Nonetheless, implicit in petitioner's brief is an argument that the DOL lacked authority to reopen Carroll's claim after 30 days from the September 30, 1980 Award of Benefits. Petitioners argue that the September 30, 1980 Award of Benefits became final because neither National Mines nor Old Republic filed a timely controversion challenging the award within the 30-day period allowed by 20 C.F.R. Sec. 725.419(a). Section 725.419(d) provides that:
17
If no response to a proposed decision and order is sent to the deputy commissioner within the period described in paragraph (a) of this section ... the proposed decision and order shall become a final decision and order, which is effective upon the expiration of the applicable 30-day period. Once a proposed decision and order ... becomes final and effective, all rights to further proceedings with respect to the claim shall be considered waived, except as provided in Sec. 725.310.
18
Petitioners assert that Old Republic's letter of controversion filed in July 1981 and its submission of medical evidence in September 1981 and June 1983 had no effect on the finality of the September 30, 1980 Award of Benefits because their failure to file a controversion within the 30-day period set forth in 20 C.F.R. Sec. 725.419(a) deprived them of standing to submit any further challenge. In support of this interpretation of events, they note that the DOL did not accept explicitly as timely filed either the letter of controversion or any of the medical evidence submitted in 1981 and 1983.
19
However, section 725.419(d) clearly contradicts petitioners' contention that the failure to file a timely controversion left them without an avenue for further review of the award. Significantly, section 725.419(d) provides that "all rights to further proceedings shall be considered waived, except as provided in Sec. 725.310." (Emphasis added.) Section 725.310 provides that:
20
Upon his or her own initiative, or upon the request of any party upon the grounds of a change in conditions or because of a mistake in a determination of a fact, the deputy commissioner may, at any time before one year from the date of the last payment of benefits ... reconsider the terms of an award of denial of benefits.
21
Upon timely request, the deputy commissioner may "issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation." 33 U.S.C. Sec. 922.6 The deputy commissioner may make such modification to "render justice under the act." O'Keeffe v. Aerojet Shipyards, Inc., 404 U.S. 254, 255, 92 S.Ct. 405, 407, 30 L.Ed.2d 424 (1971).7
22
The DOL submits that Old Republic's letter of controversion filed in July 1981 and its later submission of medical evidence were sufficient to constitute a timely request for modification. The DOL's assertion that the informal procedures employed in black lung and longshore cases never have required the submission of a formal request for modification is supported by case law. See, e.g., Eifler v. OWCP, 926 F.2d 663, 667 (7th Cir.1991). Moreover, the July 1981 letter was timely because it was filed within one year of the last payment of benefits to Carroll by the Black Lung Disability Trust Fund in February 1981.
23
The DOL reasonably could infer from petitioners' submission of medical evidence that they sought modification on the ground of a factual mistake regarding the existence or extent of Carroll's disability. See Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 464-65, 88 S.Ct. 1140, 1144, 20 L.Ed.2d 30 (1967); O'Keeffe, 404 U.S. at 254-56, 92 S.Ct. at 406-07 (holding that the authority to re-open is not limited to any particular type of facts; the Board may review the very existence of a liability as well as its extent). See also Metropolitan Stevedore Co. v. Rambo, *---- U.S. ----, ---- 115 S.Ct. 2144, 2147, 132 L.Ed.2d 226 (1995).
24
Moreover, petitioners' letters of inquiry dated September 24, 1986, July 6, 1987, and June 1, 1989, which assert that Old Republic did not receive service of the Notice of Initial Finding, provided an additional ground for modification if viewed in conjunction with their earlier letter of controversion. Two courts of appeal have held that under the Black Lung Act and regulations the operator's insurance carrier is subject to liability in black lung benefits proceedings and, therefore, is entitled to notice as a party to the litigation. Tazco, Inc. v. Director, OWCP, 895 F.2d 949, 950 (4th Cir.1990)8; Warner Coal Co. v. Director, OWCP, 804 F.2d 346, 347 (6th Cir.1986). The Warner Coal court noted that the Act and regulations do not contemplate limiting the carrier's exposure to indemnifying an operator found liable for payments of benefits.9 Warner Coal, 804 F.2d at 347. Instead, because the carrier is subject to liability on the claim, due process requires that it be given adequate notice and an opportunity to defend on the question of its direct liability to the claimant. Id. See also Tazco, 895 F.2d at 953 (holding that failure to notify the carrier required vacation of default award and requiring DOL to provide insurance carrier and the operator with an opportunity to contest the merits of the claim). Consequently, the DOL's rescission in this case of its September 30, 1980 Award and offer of a new hearing are in accord with the Tazco court's approach. That being the case, the DOL generally is entitled to use the modification procedures set out in 33 U.S.C. Sec. 922 to remedy a failure to notify the appropriate insurance carrier. See Caudill Constr. Co. v. Abner, 878 F.2d 179, 181 (6th Cir.1989).
25
Petitioners attempt to avoid these principles by alleging that the statement in the various letters of inquiry that Old Republic had not received the Notice of the Initial Finding is erroneous. Petitioners reason that their action to controvert the determination of liability in 1981 shows that Old Republic had notice of Carroll's claim approximately five years before the first letter of inquiry was written. Petitioners fail to acknowledge that the significance of DOL's failure to provide Old Republic with service is that Old Republic thereby was deprived of the opportunity to file a timely challenge to the DOL's initial findings and receive a hearing at which it could contest them. Old Republic's subsequent awareness of the liability determination does not remedy the DOL's failure to serve it because Old Republic was left without an opportunity to contest the initial liability determination. Consequently, because the allegation that Old Republic had not been served properly raises the possibility of a violation of its due process rights, the DOL reasonably could treat Old Republic's submissions as a request for time to file a timely controversion.
26
In sum, we conclude that 33 U.S.C. Sec. 922 authorizes the DOL to reopen an otherwise final award to "render justice under the act." O'Keeffe, 404 U.S. at 255, 92 S.Ct. at 407. Of course, there was an inexplicable lengthy delay in these proceedings between the time of petitioners' request for modification and the DOL's action, and petitioners spend much time in their brief arguing that the delay was improper and therefore the subsequent modification procedures failed to toll the statute of limitations. But the reasons for that delay are not before us.10 We rule only that the statute of limitations relied on by petitioners is inapplicable to these proceedings, that the DOL had the authority to construe petitioners' letters as requests for modification proceedings, and that the reasons stated in those letters provided legitimate substantive bases for rescinding an otherwise final award. Nonetheless, as the DOL points out in its brief, "as a general rule, the mere existence of modification proceedings does not affect the finality of an existing award of compensation." Br. at 24. Thus, it acknowledges that "the Department cannot initiate modification simply to obtain a new date for the commencement of the six-year statute of limitations." Id. Whether the modification procedure tolled the statute of limitations will be a question before a district court in an enforcement proceeding, if one is brought, and we do not rule on it.
III. CONCLUSION
27
For the foregoing reasons, we will deny the petition for review.
1
The fund paid Carroll $12,908.84. It ceased payments to Carroll after he was awarded Pennsylvania workers' compensation benefits as the result of his pneumoconiosis. See 30 U.S.C. Sec. 932(g); 20 C.F.R. Sec. 725.533(a)(1). Moreover, because Carroll's widow was awarded state benefits as a result of Carroll's pneumoconiosis, the Fund has not paid her interim benefits. Id
2
On June 3, 1989, Carroll died. Martha E. Carroll, his widow, filed a survivor's claim on February 16, 1990, and her claim proceeded independently. The DOL initially denied the claim but notified National Mines of its potential liability for survivor's benefits. National Mines controverted the claim and submitted additional evidence. After her claim was denied again, the widow requested a hearing before an administrative law judge and her claim was consolidated with Carroll's claim for a hearing. Her claim, however, may be moot because she was awarded derivative survivor's benefits under her husband's claim. See 30 U.S.C. Sec. 932(1)
3
There is no explanation in the record for the approximate three-year time span between the 1986 correspondence and the 1989 Order to Show Cause
4
The ALJ also referred to a letter dated April 2, 1981, in which Petitioners "stated it had received a copy of the September 30, 1980 letter from the carrier, and had requested a complete file for review." We do not find this document in the appendix
5
Mrs. Carroll is not participating in the appeal
6
Section 725.310 implements section 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 922, as incorporated by 30 U.S.C. Sec. 932(a)
7
Petitioners argue that the filing of a timely controversion is a prerequisite to a request for modification. They submit that "[t]o conclude otherwise would mean that employers could challenge an award of benefits at any time by this or like means without the need for ever filing formal controversion papers." Br. at 16. However, this interpretation is at odds with the plain language of section 725.419(d). Section (d) clearly sets out 20 C.F.R. Sec. 725.310 as an exception to the waiver occasioned by a failure to file a timely controversion
Moreover, our holding does not provide an incentive for employers to ignore the 30 day requirement of 20 C.F.R. Sec. 725.419(a), because the exercise of section 725.310 authority is, to some extent, discretionary. There really is no qualitative difference between these provisions and the Federal Rules of Civil Procedure, which ordinarily require defendants to file an answer to the complaint within 20 days, see Fed.R.Civ.P. 12(a)(1)(A), yet allow default judgment debtors to move for relief from judgment pursuant to Fed.R.Civ.P. 60(b).
8
The Tazco court explicitly rejected the theory that notice provided to the coal mine operator constitutionally may be "imputed" to the carrier. Tazco, 895 F.2d at 951
9
As the Tazco court explained, "[o]nce a carrier has reported the issuance of a policy, as mandated by the regulations, the insurer is fully liable for the obligations of the operator.... The carrier is required to discharge the statutory and regulatory duties imposed on the employer, thus stepping into his shoes.... Moreover, unlike an indemnification policy, the Black Lung Benefits scheme contemplates that the insurer, as a party, may be liable in the original claims proceeding." Tazco, 895 F.2d at 951-52 (citations omitted)
10
The DOL certainly can be faulted for failing to respond to petitioners' inquiries in a timely manner. The DOL offers no explanation for its failure to take any action on this claim between its September 30, 1980 Award of Benefits and its August 14, 1989 Order to Show Cause, despite petitioner's controversion letter
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342 F.Supp.2d 1068 (2004)
UNITED STATES of America
v.
Lorna Faye WRIGHT.
Criminal Case No. 2:03cr262-T.
United States District Court, M.D. Alabama, Northern Division.
November 2, 2004.
*1069 Kent B. Brunson, U.S. Attorney's Office, Montgomery, AL, for Plaintiff.
ORDER
MYRON H. THOMPSON, District Judge.
Defendant Lorna Faye Wright has pled guilty to violations of 18 U.S.C. § 922(g)(1) (unlawful possession of a firearm), 21 U.S.C. § 841(a)(1) (knowing and intentional distribution of a controlled substance), and 18 U.S.C. § 924(c)(1)(A)(i) (drug trafficking). This case is now before the court on her motions to hold her sentencing by 'video conferencing.' For reasons that follow, the motions will be denied.
Fed.R.Crim.P. 32(i)(4)(A), which codifies the important common-law tradition of allocution, requires that, "Before imposing sentence, the court must ... address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence." Because of, among other things, Rule 32(i)(4)(A)'s allocution requirement, Fed. R.Crim.P. 43(a) provides that "the defendant must be present at ... sentencing."
Several appellate courts have held that the term "present" means physical presence in the same location as the judge (that is, a defendant must be physically in the courtroom) and that, as a result, videoconferencing does not satisfy Rule 43's requirement of presence. See, e.g., United States v. Torres-Palma, 290 F.3d 1244, 1248 (10th Cir.2002); United States v. Lawrence, 248 F.3d 300, 303-04 (4th Cir. 2001); United States v. Navarro, 169 F.3d 228, 235-39 (5th Cir.1999). Thus, Rule 43's presence requirement cannot be dispensed with simply because "video conferencing is widely used, ... is beneficial because it increases productivity by reducing travel time, and ... is less costly and more safe than transporting prisoners." Id. at 235.
An exception is provided if "the defendant waives the right to be present." *1070 Fed.R.Crim.P. 43(c)(2). However, this right to waive is not absolute. The Eleventh Circuit Court of Appeals rejected a defendants' waiver of their presence at arraignment where they had failed to show "any good cause." In re United States, 784 F.2d 1062, 1063 (11th Cir.1986) (defendants lacked "good cause" where their requested absence from arraignment in federal court in Florida was based on their desire to avoid arrest by Florida state authorities). There is no reason to assume that a defendant's presence at sentencing is any less crucial than her presence at arraignment; indeed, because of Rule 32's allocution requirement, it could be argued that presence is more crucial at sentencing. In any event, "good cause" must be shown when a defendant seeks to waive her presence at sentencing.
In the instant case, it is undisputed that the defendant Wright suffers from a variety of medical ailments, ranging from diabetes to congenital heart failure to asthma. Her medical summary from the Carswell Federal Medical Center concluded that:
"[Wright] is medically capable to stand trial but will require supplemental oxygen at night and to continue her medications as prescribed. She will require direct travel back to Court for sentencing and housing in a facility capable of providing supplemental oxygen at night and routine access to twenty-four hour a day medical care. Additionally, she will require additional evaluation and treatment of her medical illnesses and should be returned to FMC Carswell, via direct travel within 72 hours after sentencing."
Defendant's unopposed motion to request sentencing be held by video conference (doc. no. 49), exhibit.
While danger to one's medical health would clearly constitute "good cause" justifying a defendant's absence from sentencing, In re United States, 784 F.2d at 1063, Wright has failed to provide any evidence that the conditions surrounding her sentencing would endanger her medical health. In particular, Wright's own evidence indicates that the facilities available in Montgomery, Alabama are adequate to provide for her needs and that she can be transported to and from sentencing within the medically required 72hour time frame.
Therefore, as required by both the letter and spirit of Rules 32 and 43, court and Wright will be able to "eyeball" each other when the court pronounces its sentence on Wright.
It is, accordingly, ORDERED that defendant Lorna Faye Wright's motions for sentencing by video conference (doc. nos. 49 & 55) are denied.
Done this the 2nd day of November, 2004.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 10-2388
________________
UNITED STATES OF AMERICA
v.
JENNIFER FILPO,
Appellant
________________
On Appeal from the United States District Court
For the District of New Jersey
(Crim. No. 2:07-cr-00675)
District Judge: Honorable Dennis M. Cavanaugh
________________
Submitted Under Third Circuit L.A.R. 34.1(a)
November 16, 2011
BEFORE: FUENTES and CHAGARES, Circuit Judges, and RESTANI, International
Trade Judge
(Opinion Filed: December 13, 2011)
________________
OPINION OF THE COURT
________________
FUENTES, Circuit Judge.
Honorable Jane A. Restani, International Trade Judge of the United States Court of
International Trade, sitting by designation.
1
Jennifer Filpo pled guilty to a one-count Information of conspiracy to distribute
and possess with intent to distribute heroin, in violation of 21 U.S.C. § 846. Filpo was
sentenced to 60 months of imprisonment, followed by three years of supervised release.
She now appeals her conviction and sentence. Counsel for Filpo has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and requests leave to withdraw. A
copy of the Anders brief was sent to Filpo, but she has not filed a pro se response brief.
Since we are satisfied that counsel‟s brief was adequate, and because the record does not
present any non-frivolous issues, we will affirm the District Court‟s sentence and grant
Filpo‟s counsel leave to withdraw.
I.
Because we write only for the parties, we briefly discuss the facts necessary to our
conclusion. Filpo pled guilty in 2007 to a one-count Information of conspiracy to
distribute and possess with intent to distribute 100 grams or more of heroin, in violation
of 21 U.S.C. § 846. This provision carries a statutory minimum prison sentence of five
years and a maximum prison sentence of forty years. The plea agreement included an
appellate waiver by which Filpo relinquished her right to appeal, though the parties
reserved the ability to appeal the sentencing court‟s determination of Filpo‟s criminal
history category pursuant to 18 U.S.C. § 3742.
In April 2010, the District Court held a sentencing hearing at which it sentenced
Filpo to the statutory minimum of 60 months, pursuant to 21 U.S.C. § 841(b)(1)(B)(i),
followed by three years of supervised release.
2
II.
In Anders, the Supreme Court provided that, although a defendant‟s counsel is
required to “support his client‟s appeal to the best of his ability,” counsel may request
permission to withdraw from a case if he finds it to be “wholly frivolous.” 386 U.S.
at 744. We have established that, where, upon review of the district court record, counsel
is persuaded that the appeal presents no issue of even arguable merit, he or she may file a
motion to withdraw and a supporting brief pursuant to Anders, which shall be served
upon the appellant and the United States. See 3d Cir. L.A.R. 109.2(a). Counsel‟s brief
must: (1) “„satisfy the court that he or she has thoroughly scoured the record in search of
appealable issues,‟” and (2) “„explain why the issues are frivolous.‟” United States v.
Coleman, 575 F.3d 316, 319 (3d Cir. 2009) (quoting United States v. Marvin, 211 F.3d
778, 780 (3d Cir. 2000)). Upon receipt of the brief, we ask “„(1) whether counsel
adequately fulfilled [Third Circuit Local Appellate Rule 109.2‟s] requirements; and (2)
whether an independent review of the record presents any nonfrivolous issues.‟” Id.
(quoting United States v. Youla, 241 F.3d 296, 300 (3d Cir. 2001)). Appellant may also
file a brief in response pro se. See 3d Cir. L.A.R. 109.2(a). When an Anders brief is
adequate, we review only the portions of the record identified in the brief and any issues
raised by the appellant in his pro se brief. If we find that there are no non-frivolous
issues, we “will grant [the] Anders motion, and dispose of the appeal without appointing
new counsel.” Marvin, 211 F.3d at 780 (quoting 3d Cir. L.A.R. 109.2(a)).
3
Here, counsel‟s Anders brief appears adequate. Counsel has identified the
following possible issues: whether Filpo knowingly and voluntarily pled guilty; the
reasonableness of her sentence; and the enforceability of her appellate waiver. The
Anders brief and our independent review of the record lead us to agree with counsel that
each issue is frivolous. The District Court conducted an adequate colloquy to ensure that
Filpo understood the nature and consequences of her plea. It is clear from the record that
she knowing and voluntary pled guilty. The District Court also properly considered the
factors specified in 18 U.S.C. § 3553(a), as well as the applicable statutory and
Guidelines provisions, before sentencing Filpo to a term of imprisonment that comports
with the statutory minimum and is within the Guidelines range. Finally, Filpo freely
entered into a waiver of her right to appeal her conviction and sentence, and there would
be no miscarriage of justice in enforcing it. See United States v. Goodson, 544 F.3d 529,
533 (3d Cir. 2008).
III.
For the foregoing reasons, we will affirm the District Court‟s conviction and
sentence. We accept the defense counsel‟s Anders brief, and counsel‟s motion for leave
to withdraw will be granted.
4
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126 Ariz. 293 (1980)
614 P.2d 835
STATE of Arizona, Appellee,
v.
Allen WATKINS aka James Allen Pridgen, Appellant.
No. 4774.
Supreme Court of Arizona, In Banc.
July 10, 1980.
*295 Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel, Criminal Division, Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee.
John N. Nelson, Yuma, for appellant.
Allen Watkins, in pro. per.
*296 GORDON, Justice:
Defendant Allen Watkins appeals his convictions and consecutive sentences of seven and a half years imprisonment for aggravated assault and life imprisonment for first-degree murder. Jurisdiction is established by A.R.S. § 13-4031.
On the morning of February 27, 1979, defendant and two friends, Junior Law and Ace Phillips, began drinking beer at a local bar. As the day progressed, they moved to another bar to continue drinking and to play pool. An argument developed between defendant and Junior Law, and defendant invited Law outside to fight. The bar owner, afraid for Law's safety, made defendant leave the premises, after Law refused to fight.
Another friend of defendant, Larry Crider, happened by soon after and drove defendant home. Crider testified that defendant was a "little bit" mad about Law's refusal to fight, but did not appear drunk.
Defendant shared a bachelor's apartment with Kimberly Pritchard, which she rented from Ace Phillips and his wife Madonna, who lived next door. Defendant had met Pritchard in early January, 1979, had moved in with her several days later, and was living with her for about one and a half months until his arrest for the instant offenses.
When Pritchard returned home from work that day, defendant was lying on the bed with a gun in his hand. He appeared to be very upset about something but did not appear drunk. When pressed as to what was the matter, defendant told Pritchard: "Don't worry about it, everything is going to be all right tomorrow. I am going to kill Junior and I am going to kill Ace as soon as they come home." An extended argument ensued, during the course of which defendant struck Pritchard in the face and arms with his fists, threatened to kill her, damaged a number of objects in the apartment, went outside and fired the gun, and threw two pieces of broken concrete at Pritchard. Pritchard received numerous bruises and a dislocated hip as a result of these acts.
During the course of the argument, Madonna Phillips arrived, at the request of Pritchard's three-year-old son. Defendant chased her around to the back of her house, breaking the glass in the back door with his fist and flipping blood from his nose on Phillips as he pursued her. When Pritchard's ex-husband arrived to pick up his son, defendant tried to start a fight with him.
Larry Crider then arrived, and defendant asked him where Law was. Crider replied that Law was at home. Law lived with Madonna and Ace Phillips. Pritchard then called Crider into her home and told him that defendant had beaten her and told her he was going to kill Law and Ace Phillips.
Crider then entered the Phillips' house, where defendant and Law were arguing. Law was holding a claw hammer in his hand. Defendant told Law: "Pick up something, ain't got guts enough to use it. If I picked up something, I'd have guts enough to use it." Law replied: "I don't want no trouble, I just want you gone." Law walked around defendant and out the front door.
Crider then went to Pritchard's home, and the two left to try to find Madonna Phillips. As they got into Crider's car, defendant was still following Law, trying to pick a fight with him. Before they left, they saw Law go back into the house. Defendant stopped in front of the house and shouted at them that they could call the law if they wanted to. He then proceeded into the house.
Unable to find Madonna Phillips, Crider took Pritchard to her brother's house and returned to the Phillips' house. Defendant met Crider as he arrived and said that he had just stabbed Law. Crider found Law lying on his bed with four stab wounds: two in his chest, one in the abdomen, and one in the side. Law was later pronounced dead at the hospital. Defendant's bloodcovered knife was found in its sheath on his belt.
Defendant testified at trial that he stabbed Law in self-defense as Law attempted to hit him with the claw hammer. Expert testimony established that Law's *297 blood-alcohol level at the time of his death was .15 percent. Defendant's was approximately .11 percent.
Trial by jury resulted in convictions for both the first-degree murder of Law and the aggravated assault of Pritchard. After an aggravation-mitigation hearing, the trial judge sentenced defendant to consecutive terms of imprisonment of seven and a half years on the assault count and life on the murder count. Defendant raises the following issues on appeal:[1]
(1) Was defendant denied equal protection of the law when the trial judge refused to apply the anti-marital fact privilege to preclude incriminating testimony by Kimberly Pritchard;
(2) Did the trial court improperly admit into evidence defendant's pistol and testimony concerning other bad acts involving the pistol;
(3) Was a piece of concrete erroneously admitted into evidence;
(4) Did the trial court err by refusing to instruct the jury on voluntary manslaughter and on the failure of the state to produce evidence peculiarly within its power to produce;
(5) Was defendant denied the effective assistance of counsel;
(6) Did the trial court abuse its discretion by denying defendant's motion for a new trial based on insufficiency of the evidence;
(7) Was defendant's sentence for murder correct; and
(8) Were the sentences imposed upon defendant excessive because they were consecutive rather than concurrent?
ANTI-MARITAL FACT PRIVILEGE
By pre-trial motion and at the time of trial, defendant moved to suppress the testimony of Kimberly Pritchard which dealt with the murder charge, asserting that such testimony falls within the proscription of Arizona's anti-marital fact privilege. His requests were denied, and Pritchard testified about defendant's statement to her the afternoon of Law's death: "I am going to kill Junior and I am going to kill Ace as soon as they come home."
The anti-marital fact statute, A.R.S. § 13-4062, provides:
"A person shall not be examined as a witness in the following cases:
"1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either, during the marriage or afterwards, be, without consent of the other, examined as to any communication made by one to the other during the marriage."
Defendant admits that § 13-4062, by its very language, is applicable only to ceremonially married individuals and that common-law marriages are not recognized in Arizona. A.R.S. § 25-111. He contends, however, that the statute's nonapplicability to individuals, who, like himself, live together in a de facto marriage[2] is violative of the Fourteenth Amendment's equal protection guarantee.
The thrust of defendant's argument seems to be that the same policy consideration of protecting the marital relationship which underlies the application of the privilege *298 to formally married persons, see State v. Whitaker, 112 Ariz. 537, 544 P.2d 219 (1975), should operate to extend the privilege to "quasi" married persons. He contends that to be constitutional, this disparity in the treatment of married persons and "quasi" married persons must be shown to be necessary to promote a compelling state interest, because the disparity burdens the exercise of a constitutional right. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Specifically, defendant claims that denying him the anti-marital fact privilege burdened his right to a fair trial.
We do not agree. The anti-marital fact privilege exists by virtue of legislative fiat, as a matter of policy to protect certain interests. See United States v. Hicks, 420 F. Supp. 533 (N.D.Tex. 1976). Extension of the privilege to "de facto" marriages is unrelated to meeting constitutional requirements for a fair trial, and, similarly, refusal to apply the privilege in no way burdens the right to a fair trial.
Because the disparity in treatment does not burden the exercise of a constitutional right, its necessity to promote a compelling state interest need not be shown. Instead, the classification must merely bear a rational relationship to a legitimate state goal in order to pass constitutional muster on equal protection grounds. See, e.g., Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975); State v. Leeman, 119 Ariz. 459, 581 P.2d 693 (1978); Eastin v. Broomfield, 116 Ariz. 576, 570 P.2d 744 (1977).
We view as a legitimate goal the state's interest in limiting application of the anti-marital fact privilege to those whose relationships are worthy of protection. Cf. Weinberger v. Salfi, supra. Even assuming, arguendo, that de facto marriage is equally worthy of protection,[3] the limitation of the privilege to marriages which have been created by the statutorily prescribed formalities is rationally related to the state's interest in preventing the extension of the privilege to less permanent relationships. The administrative difficulty of defining and determining which relationships are to be considered de facto marriages, rather than casual alliances, is obvious. Such a determination would necessitate a case by case qualitative and quantitative analysis of such factors as intimacy, voluntary commitment, stability and psychological involvement. Cf. Developments in the Law The Constitution and the Family, 93 Harv.L.Rev. 1157, 1291 (1980).
We conclude that the limitation of the anti-marital fact privilege to those who are formally married is rationally related to both the state's interest in extending the privilege only to those whose relationships warrant protection as well as to the state's interest in the orderly administration of its laws. Cf. Califano v. Boles, 443 U.S. 282, 99 S.Ct. 2767, 61 L.Ed.2d 541 (1979); Developments in the Law The Constitution and the Family, 93 Harv.L.Rev. 1157, 1294 (1980).
ADMISSION OF DEFENDANT'S PISTOL AND TESTIMONY OF OTHER BAD ACTS
Defendant contends that the trial court should not have admitted defendant's pistol into evidence and that it improperly permitted Kimberly Pritchard to testify about two occasions when defendant fired it. One such occasion was during the altercation between defendant and Pritchard which formed the basis for the aggravated assault charge. A description of the firing of the pistol was necessary to complete the narrative of the aggravated assault, and it was, therefore, admissible. State v. Reinhold, *299 123 Ariz. 50, 597 P.2d 532 (1979). Because Pritchard's testimony about the pistol was admissible, the gun itself was also admissible to explain her testimony.
Pritchard also testified that defendant had fired his pistol during an incident that had occurred several weeks prior to the instant offenses. Her testimony was elicited by the state on redirect examination after she had stated during cross-examination that defendant was acting erratically at the time he assaulted her. On redirect she was asked if she had seen defendant behave in a similar manner when he was not drunk. Pritchard answered that she had and, over defendant's objection, was permitted to describe the incident.
Pritchard stated that defendant had come into her apartment when she and Larry Crider were seated within. Pritchard described defendant as having "a really strange look on his face." He took his pistol off the wall and locked himself in the bathroom. He then crawled out of the bathroom window and came back in the apartment through the front door. He pointed the pistol at Crider and at Pritchard and said "I don't know which one of you sons-of-a-bitches to shoot first." He then fired a shot into the refrigerator.
Rule 404(b), Rules of Evidence, 17A A.R.S., states that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of * * * intent * * *." The state argues that since defendant attempted to show he did not have the requisite specific intent to commit the crimes in question due to intoxication, the prosecution could introduce evidence that defendant had acted in a similar manner in the past when he was not intoxicated. This evidence, the state contends, tends to demonstrate that defendant did have the intent to commit the crimes and that he was not influenced by intoxication. This use of evidence of other bad acts is simply another way of showing that defendant acted in conformity with an aggressive and violent character, the very purpose which is forbidden by Rule 404(b). Pritchard's testimony concerning the prior shooting incident should not have been admitted.
We do not, however, believe that the trial court's error requires that we reverse. The conduct of defendant in the prior incident was far less egregious than it was on the day of the offenses. We note that Pritchard had earlier stated that defendant was a very good shot with the pistol and, therefore, it is reasonable to infer that defendant did not intend to shoot either Crider or Pritchard in the prior shooting occurrence. No mention of the prior incident was made in either opening or closing arguments. Any prejudice that the testimony of this incident caused defendant was minimal, and we find that its erroneous admission was harmless beyond a reasonable doubt.
ADMISSION OF THE PIECE OF CONCRETE
Defendant argues that a piece of concrete was inadmissible because it was not one of the actual ones used to strike Kimberly Pritchard. He also contends that because the piece of concrete was large it was likely to prejudice the jury. "A weapon similar to that used to commit the crime may be introduced in evidence as illustrative of the weapon which the defendant used to assault his victim." State v. Mays, 7 Ariz. App. 90, 92, 436 P.2d 482, 484 (1968). Pritchard testified that the piece of concrete was of the same substance but not the same size as the ones used by defendant. It was smaller than one of the actual pieces of concrete used but larger than the other. The piece of concrete in question was relevant and helpful to the jury in determining whether the actual ones used were deadly weapons or dangerous instruments for purposes of A.R.S. § 13-1204 A (2), defining aggravated assault.
EFFECTIVE ASSISTANCE OF COUNSEL
Defendant claims that he received ineffective assistance of counsel because of his attorney's failure to request that a transcript *300 of opening and closing arguments be made. We ordered transcripts of the arguments to be prepared, and we find no basis for a claim of error. There was no ineffective assistance in this respect.
Defendant also asserts that his attorney was incompetent because he did not request that the jury be sequestered after it had begun its deliberations. The jury began deliberating at 4:15 p.m. on March 25, 1979. At 10:40 p.m. the jury was permitted to separate for the night and to recommence deliberating at 9:30 a.m. on March 26. A verdict was reached at 10:30 a.m. on March 26.
We note initially that sequestration is not a right to be granted upon defendant's request, but is a matter left to the discretion of the trial court. 17 A.R.S., Rules of Criminal Procedure, Rule 22.1(b). The Comment to Rule 22.1(b) states that "[c]ases in which a fair verdict would be endangered by permitting the jurors to disperse are rare." We do not find that this case presented one of those rare instances requiring sequestration. Although defendant speculates that the jurors were improperly influenced during the time that they were separated, there is nothing in the record to indicate that this was the situation. Since there was no reason that sequestration should have been granted, we find no ineffective assistance of counsel in not requesting it.
JURY INSTRUCTIONS
A. Manslaughter
Defendant challenged the trial court's refusal to give his requested instruction on voluntary manslaughter.[4] We note initially that the present Criminal Code does not divide manslaughter into voluntary and involuntary manslaughter. Defendant's requested instruction was based on only one aspect of manslaughter as defined under the present Criminal Code. A.R.S. § 13-1103 provides:
"A. A person commits manslaughter by:
"1. Recklessly causing the death of another person; or
"2. Committing second degree murder as defined in § 13-1104, subsection A upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim; or
"3. Intentionally aiding another to commit suicide; or
"4. Committing second degree murder as defined in § 13-1104, subsection A, paragraph 3, while being coerced to do so by the use or threatened immediate use of unlawful deadly physical force upon such person or a third person which a reasonable person in his situation would have been unable to resist."
The facts in the present case do not warrant an instruction on manslaughter committed upon a sudden quarrel or in the heat of passion pursuant to A.R.S. § 13-1103 A (2). There was no evidence that defendant stabbed Law in the heat of passion or upon a sudden quarrel which arose while the two were in the Phillips' house. The evidence indicates that the argument between them had been going on all day, that defendant had a lengthy cooling off period, and that *301 the provocation for this altercation was inadequate.
Defendant contends that past cases of this Court hold that a manslaughter instruction must be given where there is evidence of defendant's intoxication. Those cases, all based on §§ 13-455 and 456 of the old Criminal Code in effect prior to the instant offenses, were explained in State v. Morales, 120 Ariz. 517, 587 P.2d 236 (1978). Morales held that intoxication did not necessitate a manslaughter instruction under §§ 13-455 and 456 if the killing was not committed upon a sudden quarrel or in the heat of passion.
Whether evidence of a defendant's voluntary intoxication might ever warrant a manslaughter instruction based on a theory that he recklessly caused the death of another person pursuant to present A.R.S. § 13-1103 A (1) we need not decide. Defendant did not request such an instruction, and he was not entitled to it since he had clearly committed at least second-degree murder and not voluntary manslaughter.
A.R.S. § 13-1104 defines second-degree murder as follows:
"A. A person commits second-degree murder if without premeditation:
"1. Such person intentionally causes the death of another person; or
"2. Knowing that his conduct will cause death or serious physical injury, such person causes the death of another person; or
"3. Under circumstances manifesting extreme indifference to human life, such person recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person."
Although defendant's intoxication might negate intentional or knowing behavior, he would still have been acting recklessly.[5] The undisputed fact that defendant stabbed the victim four times manifests such an extreme indifference to human life that the homicide would still be second-degree murder under A.R.S. § 13-1104 A (3). We find that a voluntary manslaughter instruction was not required in this case.
B. Failure to Produce Evidence
Defendant also sought, and was denied, the following jury instruction:
"If you find that the State of Arizona has failed to produce evidence from any source that is peculiarly within its power to provide and the contents and/or quality of that evidence are crucial to the defense, you may presume that because the evidence was not produced, its results would have been unfavorable to the State of Arizona."
Defendant contends that he was entitled to the above instruction because of the state's failure to obtain proper blood and fingerprint analysis of a claw hammer and a sledge hammer found at the murder scene.
In State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), this Court held that a similar instruction should have been given where potentially exculpatory evidence had been destroyed by the state. We have also held that an inference against the state is inappropriate where the destroyed evidence is of no evidentiary value whatsoever. State v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978).
In the instant case, a criminalist for the state testified that there was no blood, hair or tissue on the claw hammer. Although he did determine the existence of a small speck of human blood on the sledge hammer, he was unable to identify the blood type because of the insufficiency of the sample. This failure of the state to identify the blood type cannot be equated with destruction of the evidence or failure to provide evidence within its power to provide.
*302 It is true that neither hammer was examined for fingerprints. The existence of the victim's fingerprints on the hammers, however, was not crucial to defendant's case, despite defendant's contrary allegation. Larry Crider testified that the victim had a claw hammer in his hand at one point during his argument with defendant. Defendant's assertion that the victim had a hammer in his hand was, thus, undisputed by the state. Moreover, defendant would not have benefitted if the victim's fingerprints had been found on either or both of the hammers for still another reason. Because both hammers were found in the victim's house, proof that his fingerprints were upon them would merely have established that at some time he had touched the hammers, not that he had attempted to strike defendant with them. Thus, proof that the victim's fingerprints were upon one or both hammers would have been of no evidentiary value to defendant, and the trial court correctly refused the proposed instruction.
DENIAL OF MOTION FOR NEW TRIAL
After conviction, defendant moved for a new trial because the verdict of first-degree murder was contrary to the weight of the evidence. Defendant now claims that the trial court erroneously denied that motion. In particular he claims that there was insufficient proof of premeditation. A denial of a motion for a new trial is reversed only when there is an affirmative showing that the trial court abused its discretion and acted arbitrarily. State v. Durham, 111 Ariz. 19, 523 P.2d 47 (1974).
We find there was substantial evidence of premeditation, and the trial court, therefore, did not abuse its discretion. We specifically cite defendant's continuous aggressive and abusive conduct toward the victim during the course of the day, coupled with his statement to Pritchard that he intended to kill Law. We also note the existence of substantial evidence negating defendant's assertions of intoxication and self-defense.
INCORRECT SENTENCE
Defendant was sentenced to a term of imprisonment "for the term of his natural life on the charge of first-degree murder * * *." Defendant correctly points out that this sentence is not the one provided by the relevant statute, A.R.S. § 13-703 A. Pursuant to our power under A.R.S. § 13-4037 A, defendant's sentence for first-degree murder is hereby modified to a term of imprisonment in the custody of the department of corrections for life, without possibility of parole until the completion of twenty-five calendar years.
EXCESSIVE SENTENCE
Defendant finally challenges his sentences as excessive, because they are to be served consecutively rather than concurrently. He seeks modification pursuant to A.R.S. § 13-4037(B).
This Court, on numerous occasions, had delineated the considerations relevant to scrutiny under § 13-4037(B). See, e.g., State v. Patton, 120 Ariz. 386, 586 P.2d 635 (1978); State v. Herrera, 121 Ariz. 12, 588 P.2d 305 (1978), cert. denied, 441 U.S. 949, 99 S.Ct. 2175-76, 60 L.Ed.2d 1054 (1979). Suffice it to say that, in defendant's case, there are no unusual circumstances to mitigate a severe sentence. Furthermore, we share the trial court's concern for restraint of this defendant who, a prison escapee at the time of the instant offenses, violently assaulted the young woman with whom he was living and stabbed to death one of his friends for no apparent reason. Under these circumstances, the trial court clearly did not abuse its discretion in imposing consecutive rather than concurrent sentences.
The judgments and sentences are affirmed as modified.
STRUCKMEYER, C.J., HOLOHAN, V.C.J., and HAYS and CAMERON, JJ., concur.
NOTES
[1] In addition to the brief submitted by appellate counsel, defendant has submitted a supplemental brief in propria persona. We have considered the issues raised by both briefs.
[2] Defendant maintains that his relationship with Kimberly Pritchard was a "de facto" marriage by virtue of his having moved into the apartment which she had previously established as a home for herself and her young son; having lived with her for approximately six weeks; having had a sexual relationship with her; having at one time contributed $100 toward their living expenses; having once gone to Mexico with her with the intent to find a minister to marry them, although they were unsuccessful; and Pritchard's having once attempted to have her name changed to Watkins on her employment records so that defendant could obtain a phony driver's license.
We note, however, that the testimony at trial of both defendant and Pritchard clearly indicated that neither considered themselves married nor did they hold themselves out to be married. We, nevertheless, address the equal protection issue as though defendant's relationship were, in fact, a "de facto" marriage.
[3] Apparently, the Arizona Legislature would disagree with this assumption. It has refused to recognize common-law marriage, see A.R.S. § 25-111, and has made open and notorious cohabitation a misdemeanor. A.R.S. § 13-1409. At any rate, we agree with the California Court of Appeals, that "[i]t is for the legislature to determine whether such relationships, because of their commonness in today's society or for other policy reasons, deserve the statutory protection afforded the sanctity of the marriage union." People v. Delph, 94 Cal. App.3d 411, 416, 156 Cal. Rptr. 422, 425 (1979).
[4] The instruction requested by defendant provided as follows:
"Voluntary Manslaughter
"Voluntary manslaughter is the unlawful killing of a human being without malice. A killing is without malice if there is no deliberate intent to kill, or if there is no reckless disregard for human life. Another way of defining voluntary manslaughter is: `a killing resulting from a sudden quarrel or in the heat of passion.' Voluntary manslaughter has three elements.
"(1) The defendant must have been provoked by circumstances that would cause a reasonable man to act violently; and
"(2) The defendant must in fact have been in the heat of passion at the time of the killing; and
"(3) There must not have been a cooling off period between the provocation and the killing. A cooling off period is the time it would take for a reasonable man to stop acting violently under the circumstances.
"If you determine beyond a reasonable doubt that the defendant killed the victim, and that the killing was unlawful, but you have a reasonable doubt whether the crime is murder or voluntary manslaughter, you must find it is voluntary manslaughter."
[5] A.R.S. § 13-105(5)(c) states as follows:
"`Recklessly' means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. * * * A person who creates such a risk but is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk." Voluntary intoxication, therefore, cannot negate the element of recklessness.
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247 Ga. 204 (1981)
275 S.E.2d 65
EVANS
v.
THE STATE.
37049.
Supreme Court of Georgia.
Decided February 25, 1981.
Donald W. Huskins, for appellant.
Joseph H. Briley, District Attorney, Arthur K. Bolton, Attorney General, Russell N. Sewell, Jr., Assistant Attorney General, for appellee.
JORDAN, Chief Justice.
The appellant was convicted of the murder of Hubert Lawrence, a male friend of his former girl friend, and sentenced to life in prison. He appeals.
While the testimony is conflicting in some details, it would authorize the jury to find that the appellant had come from a neighboring county with the intention of spending a Saturday night with his former girl friend. When he arrived at her home he found Lawrence and another male there. After spending a few minutes inside drinking beer, appellant went to his truck and got his rifle. Returning to the house, he found the door locked. A shot was fired into the door. The door was opened and the victim and the other male ran out the back door of the house. Appellant went to the back door and fired again. The victim's body was found in the yard near the house the next morning.
1. Appellant argues in his first enumeration of error, that the trial court improperly allowed the state to reopen its case after both the state and defense had rested.
The appellant testified that his gun accidentally discharged at his former girl friend's door after he went to get it from his truck with the intention of keeping it with him while he spent the night with her. At the conclusion of appellant's testimony, the state called the sheriff as *205 a rebuttal witness. The sheriff testified that the appellant had told him that he had shot into the door, indicating the act was deliberate rather than accidental, after he found the door had been locked during his brief absence.
The sheriff's testimony was admitted after the court first held a hearing, outside the presence of the jury, and ruled the statement was admissible.
Clearly, the statement appellant gave to the sheriff conflicted with his sworn testimony and was proper rebuttal testimony. This court has held that the state may present rebuttal testimony at the conclusion of the defense's testimony. Johnson v. State, 244 Ga. 295 (260 SE2d 23) (1979); Dixon v. State, 243 Ga. 46 (252 SE2d 431) (1979), and Terry v. State, 243 Ga. 11 (252 SE2d 429) (1979). See also Hurt v. State, 239 Ga. 665 (238 SE2d 542) (1977) and Woodward v. State, 197 Ga. 60 (28 SE2d 480) (1944).
We find no merit to appellant's first enumeration of error.
2. As his second enumeration of error, appellant contends the trial court erred in failing to charge the jury on the law of admissions or confessions after admitting appellant's statement to the sheriff into evidence.
The record does not reflect that appellant either requested that a charge be made with regard to the voluntariness of the confession or objected to the charge as given by the court. In Green v. State, 230 Ga. 756, 759 (199 SE2d 199) (1973) we held that unless charges given were harmful as a matter of law and failed to provide the jury with proper guidelines for determining guilt or innocence, it was not error to omit specific charges when no specific written requests to charge were given or objections were made thereto. See also Spear v. State, 230 Ga. 74 (195 SE2d 397) (1973); and Ivy v. State, 220 Ga. 699, 670 (141 SE2d 541) (1965).
We find no merit in appellant's second enumeration of error.
Judgment affirmed. All the Justices concur.
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