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https://www.courtlistener.com/api/rest/v3/opinions/1559642/ | 252 Md. 280 (1969)
249 A.2d 708
SMITH, ET AL.
v.
BOARD OF COUNTY COMMISSIONERS OF HOWARD COUNTY, ET AL.
[No. 65, September Term, 1968.]
Court of Appeals of Maryland.
Decided February 5, 1969.
The cause was argued before HAMMOND, C.J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.
*282 Bernard F. Goldberg for appellants.
Charles E. Wehland, with whom was Bayard Z. Hochberg on the brief for appellees Kenneth B. Tyler and Helen Tyler; Thomas E. Lloyd on the brief for appellees Board of County Commissioners of Howard County.
MARBURY, J., delivered the opinion of the Court.
This is an appeal from a decree of the Circuit Court for Howard County dated February 26, 1968, which dismissed a bill of complaint filed by Albert M. Smith, et al, appellants. In that bill the appellants had requested the Circuit Court to declare invalid and void a resolution of the County Commissioners of Howard County filed in zoning case No. 455 on December 27, 1966, and to enjoin an amendment of the zoning map of Howard County in accordance with this resolution.
Mr. and Mrs. Kenneth B. Tyler were the contract purchasers of 22,822 square feet of land located at the intersection of Maryland Route No. 175 (Waterloo Road) and Maryland Route No. 103 (Montgomery Road). The subject property, which is substantially triangular in shape, the land contiguous to the subject property, and the land on the side of Montgomerty Road opposite the subject property, were all zoned for residential uses. Land on the side of Waterloo Road opposite the property was zoned as B-1 and B-2 (Commercial) uses. The Tylers filed an application with the Board of County Commissioners to rezone the subject property from R-20 (Residential) to B-1. The Planning Commission of Howard County recommended denial of said application on the ground that the residential classification of the subject property was part of a general zoning plan for Howard County adopted in 1961, and for other reasons including their opinion that the reclassification would constitute spot zoning. Following a public hearing at which the appellants appeared as protestants, the Board granted the petition for rezoning declaring that there had been a mistake in the original zoning of the property.
Appellants then filed suit in the Circuit Court for Howard County alleging that the action of the Board was illegal and unconstitutional. *283 The case was submitted on the testimony and evidence which had been before the Board. In deciding the case, the lower court found that the evidence before the Board was not substantial enough to make the issue of mistake in the original zoning of the subject property fairly debatable. However, the court denied the relief sought by the appellants because it found that there was sufficient evidence of change in the neighborhood to justify the Board's decision to reclassify the subject property.
On appeal, the appellants present two questions: (1) was the evidence before the Board substantial enough to make the issue of error in the original zoning or change in the neighborhood fairly debatable; and (2) did the reclassification of the subject property constitute illegal "spot zoning."
At the hearing before the Board, Mr. Tyler testified that he and his wife had operated for twenty years, as a non-conforming use, a grocery store located about one-quarter mile south of the property. Due to the expiration of the lease at this location and their inability or the undesirability of acquiring it as their own property, the Tylers sought a nearby relocation site since they had built up good will in the community. Although there is a shopping center directly across Waterloo Road, Mr. Tyler testified that the subject property was the only available spot that he could find to relocate his grocery store. The Tylers' contract to buy the land was contingent upon granting of the commercial zoning.
On innumerable occasions, this Court has held that "there is a strong presumption of the correctness of original zoning and of comprehensive rezoning, and that to sustain a piecemeal change therefrom, there must be strong evidence of mistake in the original zoning or in the comprehensive rezoning or else a substantial change in conditions." France v. Shapiro, 248 Md. 335, 342, 236 A.2d 726, 730, citing Greenblatt v. Toney Schloss, 235 Md. 9, 200 A.2d 70, citing Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 192 A.2d 502 and cases there cited. We have further stated that where the Board's decision is supported by substantial evidence and the issue before it is "fairly debatable" that the courts may not substitute their judgment for that of the Board. Scull v. Coleman, 251 Md. 6, 246 A.2d *284 223; Ark Readi-Mix v. Smith, 251 Md. 1, 246 A.2d 220; Bosley v. Hospital, 246 Md. 197, 227 A.2d 746. However, if the record is so devoid of substantial supporting facts as to be incapable of raising a debatable issue a court will declare the legislative or administrative action invalid. France v. Shapiro, supra; Baker v. Montgomery County, 241 Md. 178, 215 A.2d 831; Stocksdale v. Barnard, 239 Md. 541, 212 A.2d 282.
We agree with the lower court that the evidence before the Board of County Commissioners was not substantial enough to make the issue of mistake in the original zoning fairly debatable. The only testimony as to a mistake was given by Mr. C. Ellsworth Iager, a realtor and appraiser, who stated that "... I would tend to think that there was a slight mistake when the Zoning Map was adopted." As set out in Dill v. The Jobar Corporation, 242 Md. 16, 23, 217 A.2d 564, 568:
"The opinion of an expert that there was error in the original zoning or comprehensive rezoning is not evidence substantial or strong enough to support a finding of original error unless the reasons given by the expert as the basis of his opinion, or other supporting facts relied on by him, are in themselves substantial and strong enough to do so."
Miller v. Abrahams, 239 Md. 263, 211 A.2d 309. Mr. Iager did not present such strong supporting facts other than stating that the property "is a corner property and there is a lot of traffic at that intersection, there is also a good sight distance both ways...." We hold that his testimony was insufficient to make the issue of mistake fairly debatable.
As to the issue of change, we hold that the lower court erred in ruling that the Board's decision was based on sufficient evidence to make the question fairly debatable. Mr. Iager stated that directly across from the subject property on Waterloo Road a commercial development had been built within the past three to four years. However, since those tracts were zoned for commercial uses prior to 1961, no change was shown; just compliance with the general plan. He also testified that from three hundred to four hundred houses have been built in this area since the adoption of the plan. Again, since these houses were *285 built on land zoned for residential use, there has merely been conformity with the plan, not a change. See County Comm'rs v. Fairwinds, 230 Md. 569, 187 A.2d 845. Absent other factors, we cannot accept his statement that water is now available as establishing a change of conditions affecting the neighborhood. France v. Shapiro, supra.
At the Board hearing, the Tylers introduced a petition which contained the signatures of over four hundred persons who resided in the community and who favored the rezoning. In urging that the rezoning of the property was valid "spot zoning," the appellees assert that this attests that the community did need a grocery store in the vicinity. As we set out in Mont. Co. Council v. Scrimgeour, 211 Md. 306, 313, 127 A.2d 528, 532: "A plebiscite of the neighborhood does not determine zoning." See Mayor And Council v. Cotler, 230 Md. 335, 187 A.2d 94. In addition, because of the availability of commercial acreage across Waterloo Road from the subject property we cannot say that reclassification to B-1 is necessary for the convenient accommodation of the residents within the area.
For the reasons stated above the decree of the lower court must be reversed and the resolution of the Board of County Commissioners of Howard County must be declared null and void.
Decree reversed and resolution of the Board of County Commissioners declared to be null and void. Costs to be paid by appellees Tyler. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559511/ | 20 So.3d 852 (2009)
GARZON
v.
STATE.
No. 2D08-4322.
District Court of Appeal of Florida, Second District.
October 23, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559555/ | 20 So.3d 762 (2009)
Aaron Craig MELTON, Appellant
v.
LAWRENCE COUNTY SHERIFF'S DEPARTMENT, Appellee.
No. 2008-CA-01602-COA.
Court of Appeals of Mississippi.
November 3, 2009.
Richardson Ayres Haxton, attorney for appellant.
J. Lawson Hester, Jacqueline H. Ray, Jackson, attorneys for appellee.
Before KING, C.J., BARNES and ROBERTS, JJ.
BARNES, J., for the Court.
¶ 1. In this personal injury claim, Craig Melton, the plaintiff, appeals the Lawrence County Circuit Court's grant of summary judgment in favor of one of the defendants, Lawrence County Sheriff's Department (sheriff's department). As the circuit *763 court's summary judgment was not certified pursuant to Rule 54(b) of the Mississippi Rules of Civil Procedure and the case against a second defendant, Patsy Smith, remains pending in this action before the Lawrence County Circuit Court, we dismiss this appeal for lack of jurisdiction.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 2. On Saturday, July 29, 2006, Smith made arrangements with Nations Cadillac of Brookhaven, Mississippi for a Nations Cadillac employee, Melton, to pick up Smith's car from her home in Monticello, Mississippi on July 30, 2006, and take it to Nations Cadillac to be serviced the following Monday. Melton picked the car up around noon on Sunday.
¶ 3. Later that day, Smith contacted Deputy Sheriff David Sanders and told him she feared her car might not be returned to her. While Deputy Sanders was at the time of the call off duty, he signed back in for duty and alerted local law enforcement as to the car's description. Later that same evening, Deputy Sanders was contacted by local police and informed that Smith's car had been seen in front of Melton's home. Melton and a second suspect were detained and taken to the Lawrence County Jail for questioning.
¶ 4. At approximately 8:00 p.m., Melton was booked into the Lawrence County Jail where he was strip-searched and detained until the following afternoon. On the morning of Melton's criminal trial, the county prosecutor decided against prosecution as Melton had not actually stolen Smith's car.
¶ 5. On May 29, 2007, Melton filed his complaint, alleging that both the sheriff's department and Smith had engaged in false arrest, false imprisonment, and intentional infliction of emotional distress against him. A fourth charge of malicious prosecution was brought against only Smith.
¶ 6. The sheriff's department filed a motion for summary judgment which the circuit judge granted. Melton now appeals the circuit court's judgment, contesting myriad points of both law and fact. While the sheriff's department has not challenged our appellate jurisdiction, it is incumbent upon this Court to assure that jurisdiction does exist. See Vance v. State, 941 So.2d 225, 227(5) (Miss.Ct.App.2006).
¶ 7. Rule 54(b) provides, in pertinent part, that:
When more than one claim for relief is presented in an action ... the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an expressed determination that there is no just reason for delay and upon an expressed direction for the entry of the judgment. In the absence of such determination and direction, any order or other form of decision, however designated which adjudicates fewer than all of the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
M.R.C.P. 54(b) (emphasis added).
¶ 8. In the case before us, there are two named defendants: the sheriff's department and Smith. Smith has appeared in these proceedings and is represented by separate counsel. The motion for summary judgment was raised solely by the sheriff's department, and the action against Smith is still pending before the circuit court. The summary judgment order *764 applies exclusively to the sheriff's department and does not state "an expressed determination that there is no just reason for delay." M.R.C.P. 54(b).
¶ 9. Where a court enters an order granting summary judgment solely to one defendant and does not make a determination that there is no just reason for delay in entering the order as a final judgment as to that defendant, the order is interlocutory and not appealable. Moody v. Harrison County Bd. of Supervisors, 867 So.2d 274, 275(3) (Miss.Ct.App.2004). In Moody, the plaintiff filed a personal-injury action against the Harrison County Board of Supervisors and the Mississippi Department of Human Services. Id. at (¶ 1). The circuit court granted summary judgment solely to the county and made no determination that a delay in the appeal might result in prejudice to the plaintiff. Id. We held that under the provisions of Rule 54(b), the "order is subject to revision at any time by the circuit court and, thus, is interlocutory in nature." Id.
¶ 10. In step with Moody, Melton filed a personal injury action against the sheriff's department and Smith. The circuit court entered an order granting summary judgment solely to the sheriff's department. The order is silent as to whether it would be inequitable to require Melton to wait until the entire case is tried before permitting him to appeal. In the absence of any determination from the circuit court as to some danger of injustice caused by delay, any order, which dismisses some of the parties to a suit but not all parties, is interlocutory and, therefore, not appealable.
¶ 11. Accordingly, we dismiss this appeal for lack of jurisdiction.
¶ 12. THE APPEAL IS DISMISSED FOR LACK OF JURISDICTION. ALL COSTS OF THE APPEAL ARE ASSESSED TO APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559559/ | 20 So.3d 863 (2009)
TENNY
v.
STATE.
No. 5D08-2796.
District Court of Appeal of Florida, Fifth District.
October 27, 2009.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559571/ | 796 F.Supp. 300 (1992)
Henry MOORE, Leola Moore, Joseph Washington and Dorothy Washington, Plaintiffs,
v.
LOMAS MORTGAGE USA, Defendant.
LOMAS MORTGAGE USA, INC., Counterplaintiff,
v.
Joseph WASHINGTON and Dorothy Washington, Counterdefendants.
No. 90 C 5816.
United States District Court, N.D. Illinois, E.D.
May 18, 1992.
Daniel A. Edelman, Cathleen M. Combs, Francine Schwartz and Tara G. Redmond, Law Offices of Daniel Edelman and Lawrence Walner, Lawrence Walner & Assoc. Ltd., Chicago, Ill., for plaintiffs.
*301 James R. Daly, Suzanne S. Greene and Robert C. Micheletto, Jones, Day, Reavis & Pogue, Chicago, Ill., for defendant.
MEMORANDUM OPINION AND ORDER
ZAGEL, District Judge.
This cause is rooted in a class action suit brought against Lomas Mortgage USA, Inc. (counterplaintiffs here), a mortgage service company. Plaintiffs (counterdefendants here) hold mortgages that are owned or serviced by Lomas.[1] The mortgages require class members to deposit 1/12 of annual taxes and insurance in a non-interest bearing escrow account each month. In their complaint plaintiffs allege that Lomas requires the class members to deposit escrow accounts in excess of the amount required by their mortgages, thereby obtaining the use of large amounts of money to which Lomas is not entitled.
Lomas has filed a class action counterclaim. The counterclaim seeks a declaration (1) that Lomas is entitled to impose a 4% late charge for delinquent payments on federally guaranteed mortgage loans calculated on the entire past due amount, including principal, interest, taxes and insurance; and (2) that imposing late charges does not violate the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev. Stat. ch. 121½, para. 262 (the "Illinois Consumer Fraud Act"). The Washingtons and the class members contest Lomas' entitlement to assess late charges on delinquent payments of principal and interest and taxes and insurance. They contend that late charges should be assessed only on delinquent monthly payments of principal and interest.
This case is presently before the Court on Lomas' motion for summary judgment on its counterclaim. For the following reasons Lomas' motion is granted.
I. UNDISPUTED FACTS
The Washingtons have a fixed-rate mortgage and note written on standard printed forms issued by the Department of Veterans Affairs ("VA"). The VA guaranteed the mortgage. Lomas, or its predecessor, the Lomas & Nettleton Company, has serviced the Washingtons' mortgage since at least 1980. The mortgage provides that Lomas may assess a late charge of no more than 4% for delinquent mortgage payments. Lomas computes late charges on delinquent payments calculated on the aggregate past due amount for principal, interest, taxes and insurance ("PITI") under VA-guaranteed mortgages.
The "whereas" clause at the beginning of the mortgage states:
That whereas the Mortgagor is justly indebted to the Mortgagee, as is evidenced by a certain promissory note executed and delivered by the Mortgagor, in favor of the Mortgagee ... in the principal sum of Twenty One Thousand Four Hundred and 00/000 Dollars ($21,400.00) payable with interest at the rate of Eight and 50/100 per centum (8.50) per annum on the unpaid balance until paid, and made payable to the order of the Mortgagor ... the said principal and interest being payable in monthly installments of One Hundred Sixty-Five and 21/100 Dollars ($165.21) ...[2]
As to the language in the mortgage authorizing the assessment of late charges, the mortgage provides:
Together with, and in addition to the monthly payments of principal and interest payable under the terms of the note secured hereby, the Mortgagor will pay to the Mortgagee as Trustee ... the following sums:
(a) A sum equal to the ground rents, if any, next due, plus the premiums that *302 will next become due and payable on policies of fire and other hazard insurance covering the mortgaged property, plus taxes and assessments next due on the mortgaged property ... less all sums already paid therefor divided by the number of months to elapse before one month prior to the date when such ground rents, premiums, taxes and assessments will become delinquent, such sums to be held by Mortgagee in trust to pay said ground rents, premiums, taxes and assessments.
(b) The aggregate of the amounts payable pursuant to subparagraph (a) and those payable on the note secured hereby shall be paid in a single payment each month ...
Any deficiency in the amount of any such aggregate monthly payment shall, unless made good prior to the due date of the next payment, constitute an event of default under this Mortgage. At Mortgagee's option, Mortgagor will pay a "late charge" not exceeding four per centum (4%) of any installment when paid more than fifteen (15) days after the due date thereof to cover the extra expense involved in handling delinquent payments, but such "late charge" shall not be payable out of the proceeds of any sale made to satisfy the indebtedness secured hereby ...
II. DISCUSSION[3]
A. Interpretation Of Mortgage Contract
1. The Mortgage Contract
This dispute centers around the meaning of the term "installment," as it is used in the Washingtons' mortgage and note. Plaintiffs assert that the loan documents define the word "installment" as the amount of principal and interest only. They observe that in both the mortgage and note, the first use of "installment" is in reference to the monthly payment of principal and interest. In contrast, plaintiffs continue, the sum of principal, interest, taxes and insurance, or PITI, is referred to in the mortgage as the "aggregate monthly payment." Plaintiffs conclude, therefore, that since "installment" appears initially in reference to the monthly principal and interest payment $165.21 the reference to 4% of any installment in the late charge provision means 4% of $165.21, not 4% of the aggregate monthly payment.
Lomas rejects plaintiffs' suggestion that the first usage of the term "installment" in the mortgage contract and note defines the term's meaning throughout the mortgage. Noting that there is no definition section in the mortgage or note, Lomas contends that "installment" must be understood by reference to the context in which it appears and any modifying language accompanying the term. For example, in the context of the "whereas" clause, the term "installment" defines the method of payment (monthly) and amount of principal and interest payments ($165.21). But in the late charge provision, installment is not modified by reference to payment of principal and interest. Rather, Lomas argues, the term's meaning is defined in the late charge clause by the discussion of deficiencies in the amount of "aggregate monthly payment[s]," or PITI.
To resolve this dispute, the Court looks first to the contract itself. "If the language of the contract unambiguously provides an answer to the question at hand, the inquiry is over." LaSalle Nat'l Bank v. Service Merchandise Co., 827 F.2d 74, 78 (7th Cir.1987). If, on the other hand, the Court determines that the contract is ambiguous, the Court may employ rules of construction to determine the parties' intention. In re Estate of Chaitlin, 179 Ill. App.3d 287, 291 (1st Dist.1989). In addition, the Court may consider extrinsic evidence *303 to interpret an ambiguous contract. See La Throp v. Bell Federal Savings & Loan Assoc., 68 Ill.2d 375, 383, 12 Ill.Dec. 565, 370 N.E.2d 188 (1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2818, 56 L.Ed.2d 768 (1978); City of Clinton v. Moffit, 812 F.2d 341, 344 (7th Cir.1987). An ambiguous contract's interpretation "is still an issue of law rather than one of fact if any extrinsic evidence ... bearing on that interpretation is undisputed." City of Clinton, 812 F.2d at 344. Thus, even when a contract is ambiguous, a case can be decided on summary judgment if no material facts are in dispute. LaSalle Nat'l Bank v. General Mills Restaurant Group, Inc., 854 F.2d 1050, 1052 (7th Cir.1988); City of Clinton, 812 F.2d at 344.
The meaning of the term "installment" in the late charge clause of the Washingtons' mortgage contract is ambiguous. The parties' respective arguments demonstrate that, when the contract is construed as a whole, the late charge provision is "reasonably and fairly susceptible to more than one meaning." Lenzi v. Morkin, 116 Ill. App.3d 1014, 1016, 72 Ill.Dec. 414, 452 N.E.2d 667 (1st Dist.1983), aff'd, 103 Ill.2d 290, 82 Ill.Dec. 644, 469 N.E.2d 178 (1984).[4] Therefore, the Court will look to the uncontroverted extrinsic evidence and applicable rules of contract construction to determine the meaning of the ambiguous late charge clause.
2. Extrinsic Evidence
The Washingtons' mortgage is guaranteed by the VA pursuant to 38 U.S.C. § 1810. The mortgage contract specifically incorporates Title 38 and the regulations promulgated thereunder. The mortgage provides:
If the indebtedness secured hereby be guaranteed or insured under Title 38, United States Code, such Title and Regulations issued thereunder and in effect on the date hereof shall govern the rights, duties and liabilities of the parties hereto, and any provisions of this or other instruments executed in connection with said indebtedness which are inconsistent with said Title or Regulations are hereby amended to conform thereto.
One such regulation, § 36.4311(d) of the Code of Federal Regulations, authorizes lenders to assess late charges on VA mortgages.[5] But, like the Washingtons' mortgage contract, § 36.4311(d) does not specifically define the term "installment." Thus, reference to the applicable federal regulations fails to elucidate the meaning of "installment," as it is used in the late charge clause of plaintiffs' mortgage contract.
To bolster its interpretation of "installment," Lomas has presented several VA Solicitor opinion letters and a VA manual outlining loan guaranty policies and procedures. Like Lomas, the VA Solicitor opinion letters and the manual construe the term "installment" as authorizing the calculation of late charges on PITI. Citing authority for the proposition that an agency's interpretation of its own regulations is entitled great weight, see First Bank of Oak Park v. Avenue Bank & Trust Co. of Oak Park, 605 F.2d 372, 376 (7th Cir.1979); *304 Homemaker's N. Shore, Inc. v. Bowen, 673 F.Supp. 238, 240 (N.D.Ill.1987), aff'd, 832 F.2d 408 (1987), Lomas argues that the VA "Solicitor's letter should be deemed `dispositive.'" Defendant's initial brief at 14-15.
La Throp v. Bell Federal Savings & Loan Assoc., 68 Ill.2d 375, 12 Ill.Dec. 565, 370 N.E.2d 188 (1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2818, 56 L.Ed.2d 768 (1978), counsels against placing controlling weight on the VA Solicitor's letter or the VA manual. The plaintiffs in La Throp filed a class action on behalf of mortgagors whose mortgages were insured by either the Federal Housing Authority ("FHA") or the VA. 68 Ill.2d at 379, 12 Ill.Dec. 565, 370 N.E.2d 188. The plaintiffs claimed that their mortgage contracts, which were on FHA- or VA-prescribed forms, created an express trust for their benefit in which the mortgagee would hold funds to pay their tax and insurance obligations. Id. They argued that certain FHA regulations, when construed in light of the FHA's interpretation of those regulations, supported a finding of an express trust. Id. at 384-85, 12 Ill.Dec. 565, 370 N.E.2d 188.
The La Throp court rejected the plaintiffs' contention that the regulations "must be construed in light of the FHA's own applicable interpretations." Id. at 387, 12 Ill.Dec. 565, 370 N.E.2d 188. Refusing to rely on several sections of the FHA's Mortgagee's Guide, the court noted that "it is undisputed that administrative interpretations (as distinguished from administrative regulations) do not have the force and effect of law." Id. at 387, 12 Ill.Dec. 565, 370 N.E.2d 188.[6] Because "the Mortgagee's Guide was published after the formation of the contract in question, and as the applicable FHA regulations do not clearly require the creation of a trust, we believe the plaintiff's reliance upon the FHA regulations and interpretations in the construction of this contract is misplaced." Id. at 388, 12 Ill.Dec. 565, 370 N.E.2d 188.
For reasons similar to those in La Throp, this Court declines to resolve the ambiguity in plaintiffs' mortgage contract solely on the basis of the VA's interpretation of the applicable regulations. As in La Throp, the applicable administrative regulations fail to resolve the ambiguity in the subject contract. It is only by resort to VA counsel opinions and the VA manual that Lomas finds support for its interpretation of what "installment" means in the late charge clause. Since, under La Throp, 68 Ill.2d at 387-88, 12 Ill.Dec. 565, 370 N.E.2d 188 opinions of agency counsel and agency manuals "do not have the force and effect of law," defendant's contention that the VA's interpretation is "dispositive" is erroneous.[7]
The Court will, therefore, look to applicable principles of contract construction for further guidance in resolving this dispute. Not surprisingly, the parties cite different rules of construction as controlling under the circumstances. Plaintiffs rely on contra proferentum, which holds that "when the words of a contract have been chosen by one party and another merely assents to those words, that fact alone may tip the balance against the party drafting the contract." Franklin Life Ins. Co. v. Commonwealth Edison Co., 451 F.Supp. 602, 616 (S.D.Ill.1978), aff'd, 598 F.2d 1109 (7th Cir.1979) (per curiam), cert. denied, 444 U.S. 900, 100 S.Ct. 210, 62 *305 L.Ed.2d 136 (1979). Plaintiffs argue that under contra proferentum "ambiguity in a standard form contract of adhesion, such as the printed form mortgage involved in this case," is resolved against the party who drafted the contract. Plaintiffs' answer brief at 5-6. Therefore, plaintiffs contend, if the Washingtons' mortgage can reasonably be construed in one of two ways, the interpretation favoring the borrower must be followed.
Reliance on the rule of contra proferentum is not appropriate in this case. It is widely held that this principle of construction is one of "last resort," properly invoked only "when other canons of interpretation leave a significant area of doubt ..." Lippo v. Mobil Oil Corp., 776 F.2d 706, 714-15 n. 15 (7th Cir.1985); Franklin Life Ins., 451 F.Supp. at 616; Hurd v. Illinois Bell Tel. Co., 136 F.Supp. 125, 134 (N.D.Ill.1955), aff'd, 234 F.2d 942 (7th Cir. 1956).[8] Stating that it is "a rule which provides an answer when all other methods of construction and interpretation still leave the contract ambiguous ...," the court in Franklin Life Ins., 451 F.Supp. at 616, declined to rely on contra proferentum. Instead, the court relied on the rule that "an interpretation which gives reasonable meaning to all its terms is preferred to an interpretation which leaves some terms to no effect." Id. at 614 (citations omitted); see also Lukasik v. Riddell, Inc., 116 Ill. App.3d 339, 347, 72 Ill.Dec. 123, 452 N.E.2d 55 (1st Dist.1983) (court must avoid construction of contract that renders some provisions superfluous). That same rule establishes the controlling interpretation of the Washingtons' mortgage contract.
The term "installment" is modified by the words "principal and interest" at one place in the mortgage documents, yet stands alone in the late charge provision. Defendant correctly notes that if "installment" meant principal and interest throughout the mortgage documents, as plaintiffs insist, then the modifying language "of principal and interest" would be superfluous. It follows, therefore, that the modifying language is necessary only if "installment" means PITI in the late charge clause. This reading of the mortgage documents comports with the rule that a court should adopt an interpretation that gives effect to as much of the contract's language as possible. It is also in accord with the rule that a contract should be construed "by viewing each part in light of the others." Chicago Board of Trade v. Dow Jones & Co., 98 Ill.2d 109, 74 Ill.Dec. 582, 588, 456 N.E.2d 84 (1983). Accordingly, we conclude that plaintiffs' contract authorizes the calculation of late charges on PITI.[9]
B. Illinois Consumer Fraud Act
Lomas moves the Court to declare that its practice of calculating late charges on PITI does not violate the Illinois Consumer Fraud and Deceptive Business Practices Act, Ill.Rev.Stat. ch. 121½, para. 262 (the "Illinois Consumer Fraud Act"). The Act prohibits "unfair or deceptive acts or practices ... in the conduct of any trade or commerce ..." Ill.Rev.Stat. ch. 121½ para. 262. Section 2 of the Act provides that in determining whether a practice is unlawful as unfair or deceptive, "consideration shall *306 be given to the interpretations of the Federal Trade Commission and the federal courts relating to Section 5(a) of the Federal Trade Commission Act." Ill.Rev.Stat. ch. 121½ para. 262, § 2. In the context of section 5(a) of the Federal Trade Commission Act, the Seventh Circuit has interpreted the meaning of "unfair practice" as a practice that "offends established public policy and ... is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." Spiegel v. F.T.C., 540 F.2d 287, 293 (7th Cir.1976).
The Court has no difficulty concluding that Lomas' practice of calculating late charges on PITI does not run afoul of the Illinois Consumer Fraud Act. Plaintiffs' opposition to defendant's motion presumes that Lomas' late charge practices violate the Washingtons' mortgage contract and thus result in the imposition of unwarranted charges. But we have not concluded, as the court did in Andrews v. Fleet Real Estate Funding Corp., 78 B.R. 78, 83 (Bankr.E.D.Pa.1987), that "late charges were imposed contrary to the terms of the underlying mortgage contract ..." On the contrary, we hold that defendant's method of calculating late charges is authorized under the subject mortgage contract. Moreover, "[s]ection 10(a) of the Act requires that one must be damaged in order to bring a private action." Heastie v. Community Bank of Greater Peoria, 690 F.Supp. 716, 718 (N.D.Ill.1988). Since no excessive late charges exist here plaintiffs have not been damaged.
III. CONCLUSION
Defendant's motion for summary judgment is granted. The Court will issue a declaratory judgment order stating that (1) counterplaintiff (Lomas) is entitled, under the standard VA mortgage forms of counterdefendants and the class members, to impose a 4% late charge for delinquent payments calculated on the entire past due amount, including principal, interest, taxes and insurance; and (2) that Lomas' practice in so calculating late charges on delinquent payments on VA mortgages does not violate the Illinois Consumer Fraud Act.
NOTES
[1] For simplicity, the Court will refer to the counterplaintiffs as "Lomas" or "defendant"; the counterdefendants as "the Washingtons" or "plaintiffs."
[2] After reciting the amount of the loan and the interest rate, the Washingtons' mortgage note states: "the said principal and interest to be payable in monthly installments ..." of $165.21. The note also states that "[i]f there be any deficiency in the payment of any such installment of principal and interest ... the holder of this note may ... declare all the unpaid principal and accrued interest of said note immediately due and payable."
[3] This Court has jurisdiction over the complaint under 28 U.S.C. §§ 1331 and 1332(a). The Court's jurisdiction over the counterclaim is ancillary to its jurisdiction over the complaint under 28 U.S.C. § 1367. Because this is a diversity case, neither party raised an issue as to what state's law to apply, and both parties cite liberally to Illinois contract law, the Court will apply the substantive law of Illinois, the forum state. Wood v. Mid-Valley, Inc., 942 F.2d 425, 426 (7th Cir.1991). The applicable Illinois principles of contract construction will govern our interpretation of the mortgage contract at issue.
[4] The Court recognizes that contract language "`is not rendered ambiguous simply because the parties do not agree upon its meaning.'" See FDIC v. W.R. Grace & Co., 877 F.2d 614, 621 (7th Cir.1989), cert. denied, 494 U.S. 1056, 110 S.Ct. 1524, 108 L.Ed.2d 764 (1990) (quoting Reynolds v. Coleman, 173 Ill.App.3d 585, 593, 123 Ill.Dec. 259, 527 N.E.2d 897 (1st Dist.1988)).
[5] The regulation provides, in pertinent part, that:
Interest in excess of the rate reported by the lender when requesting evidence of guaranty or insurance shall not be payable on any advance, or in the event of any delinquency or default: Provided, That a late charge not in excess of any amount equal to 4 percent on an installment paid more than 15 days after due date shall not be considered a violation of this limitation.
38 C.F.R. § 36.4311(d) (1990).
Section 36:4311(d) was promulgated under 38 U.S.C. 1803(c)(1) and 1810(c). Section 1803(c)(1) provides that loans guaranteed under Title 38 "shall be payable upon such terms and conditions as may be agreed upon by the parties thereto, subject to the provisions of this chapter and the regulations of the Secretary issued pursuant to this chapter...." Section 1810(c), which set the maximum amount of guaranty entitlement available to a veteran, was repealed in 1987. Neither § 1803(c)(1) nor 1810(c) defines "installment."
[6] The court also observed that "certain opinions of departmental counsel ... `do not have the force or effect of regulations.'" Id. 68 Ill.2d at 387-88, 12 Ill.Dec. 565, 370 N.E.2d 188 (quoting Gibson v. First Federal Savings & Loan Assoc., 504 F.2d 826, 830 (6th Cir.1974)).
[7] We share the La Throp court's discomfort with "the implicit assertion that Federal regulations can substitute for the intent of the private parties to a contract ..." Id. 68 Ill.2d at 385, 12 Ill.Dec. 565, 370 N.E.2d 188. The cases cited by Lomas involve disputes over statutory interpretation cases in which courts usually place significant weight on agency interpretations of applicable regulations. Lomas has cited no cases, however, in which a court has even considered an administrative interpretation of regulations in connection with the interpretation of a private contract. Lomas' argument thus begs the question whether courts should accord the same measure of deference to administrative interpretations in disputes over contract interpretation, as they do in cases involving statutory construction. La Throp obviates the need to examine that question here.
[8] Corbin explains why courts apply contra proferentum only as a last resort. "The rule is hardly to be regarded as truly a rule of interpretation; its application does not help to determine the meaning that the two parties gave to the words, or even the meaning that a reasonable person would have given to the language used. It is chiefly a rule of public policy favoring the underdog." 3 Arthur Linton Corbin, Corbin On Contracts § 559 (1960).
[9] Plaintiffs rely heavily on Andrews v. Fleet Real Estate Funding Corp., 78 B.R. 78 (Bankr.E.D.Pa. 1987), in advancing their interpretation of the mortgage contract. In a case presenting facts strikingly similar to this case, the Andrews court held that the mortgagor could not calculate late charges on PITI, but by reference to principal and interest only. Andrews, 78 B.R. at 79. We decline to follow Andrews. As defendant points out, several of the issues presented in this case were not litigated in Andrews. The defendant mortgagor in Andrews practically conceded defeat on the contract interpretation question. Id. at 81. Consequently, the court did not construe the contract in light of administrative interpretations or principles of contract construction issues vigorously litigated by the parties here. To the extent that the issues presented here and in Andrews overlap, we disagree with that court's analysis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559579/ | 796 F.Supp. 515 (1992)
KINNETT DAIRIES, INC., et al., Plaintiffs,
v.
Edward MADIGAN, Secretary of Agriculture, et al., Defendants.
Civ. A. No. 89-106-COL.
United States District Court, M.D. Georgia, Columbus Division.
June 4, 1992.
John H. Vetne of Blodgett, Makechnie & Vetne, Peterborough, N.H., and Albert W. Stubbs of Hatcher, Stubbs, Land, Hollis & Rothschild, Columbus, Ga., for plaintiffs.
Donald A. Tracy, Office of the General Counsel, Washington, D.C., and H. Randolph Aderhold, Jr., Asst. U.S. Atty., Macon, Ga., for defendants.
MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
ELLIOTT, District Judge.
Plaintiffs are seven milk processors (handlers) who operate, or during the relevant period of September 1984 through February 1985 operated, a total of thirteen milk plants in the states of Georgia, Kentucky, Alabama, Mississippi, Tennessee, and Louisiana, and were subject to certain federal milk pricing regulations known as Federal Milk Marketing Orders. This complaint is for review of regulated milk price adjustments, adopted by the Defendant Secretary in a hasty three week price-setting proceeding.
The proponent of the contested price adjustments was Dairymen, Inc. ("DI"), a producer cooperative association. DI is the largest cooperative and the largest single supplier of raw producer milk to handlers in the Southeast. The Secretary published notice of DI's proposals only four days before the hearing was held and it is clear that DI later realized substantial financial gain as a result of the Secretary's adoption of its proposals.[1]
Plaintiffs sought administrative review of the price adjustments, which was protracted for three years, culminating in a predictable holding by the Secretary's delegate that the Secretary's price rules were lawful. The certified administrative records have been filed, albeit after two years additional delay by the agency. The *516 Plaintiffs and the Defendants have filed their respective motions for summary judgment and summary judgment is therefore appropriate. Florida Fruit & Vegetable Ass'n. v. Brock, 771 F.2d 1455, 1459 (11th Cir.1985).
Plaintiffs seek recovery of $911,184.72, plus interest, in overcharges from the contested milk price rules. Specifically at issue are (1) a transportation credit price adjustment, and (2) a surcharge of 20¢ per cwt. assessed to all handlers to finance the projected regional cost of the transportation credits. Plaintiffs claim, inter alia, that the contested price adjustments were unauthorized by statute, for reasons set forth in Smyser v. Block, 760 F.2d 514 (3d Cir.1985), and as explained by subsequent efforts of the Secretary to amend the Agricultural Marketing Agreement Act ("AMAA"), 7 U.S.C. § 601 et seq., to create new authority for precisely the type of price adjustments in question.
The broad question presented to this Court is whether the contested 1984 price regulations, or obligations imposed thereunder, are in accordance with law. 7 U.S.C. § 608c(15).
Upon consideration of the parties' motions for summary judgment and memoranda in support thereof and in opposition thereto, and upon review of the administrative records certified to the Court, the Court hereby finds that the August 22, 1984, Decision of the Secretary, published at 49 Fed.Reg. 34028 (August 28, 1984), and the final rules adopting certain milk price surcharges and transportation credits, in administrative proceedings captioned Milk in the Upper Florida and Certain Other Marketing Areas, USDA Docket No. AO-356-A22, etc., are not in accordance with law. Accordingly, it is hereby
ORDERED that:
(1) The motion of Plaintiffs, Kinnett Dairies, Inc., et al., for summary judgment is granted. It follows therefore that the motion of the Defendant Secretary of Agriculture for summary judgment is denied.
(2) Plaintiffs are hereby awarded damages, to be paid from the producer-settlement fund(s), in the amount of net overpayments to producers or the producer-settlement fund for Class I milk (or underpayments from the producer-settlement fund), based on the difference in handler obligations between the invalidated prices and the prices which preexisted the Secretary's amendments, for milk received during the months September 1984 through February 1985, as follows:
Kinnett Dairies (GA) $ 51,986.55
Baker & Sons Dairy (AL) 35,800.04
Kraft, Inc. (Louisville) 91,445.55
Kraft, Inc. (Tenn. Valley) 33,675.89
Southern Belle Dairy
(Louisville) 89,079.81
Dean Milk Co. (Louisville) 131,221.55
Dairy Fresh (AL) 116,867.33
Dairy Fresh (MS) 148,123.61
Meadow Gold (AL) 189,650.21
Meadow Gold (LA) 23,334.18
(3) Plaintiffs are also awarded interest on the amounts awarded above, to be paid from the producer-settlement fund(s), based on average prime lending rates which prevailed from date of petition to the Secretary for refund, in each of the relevant months of September 1986 to the date(s) payment of damages to Plaintiffs is made in full. The Secretary is directed to calculate interest due.
(4) Pending the effective date of final judgment and exhaustion of appellate review (if any), the funds awarded to Plaintiffs shall be deemed an obligation of the respective producer-settlement funds, and the Secretary is ordered to increase (as necessary) the balance in the producer-settlement fund reserve pursuant to 7 C.F.R. §§ 1007.61(a)(2) and (b)(6), 1011.61(a)(2) and (b)(6), 1046.61(a)(2) and (b)(6), 1093.61(a)(2) and (b)(6), 1094.61(c) and (e), 1096.61(c) and (e), and to maintain the reserve funds at a level which will at all times be sufficient to satisfy Plaintiffs' claims including interest.
NOTES
[1] Some handlers who would be affected by the proposals received only one day's notice of the hearing and complained that they had thereby been effectively deprived of any meaningful due process in that they had no opportunity to review thoroughly DI's proposals or to present other proposals or to prepare testimony for the hearing or to request preparation of relevant statistical information for the record. Of nine briefs and comments subsequently received by the Secretary, only one fully supported the proposed price adjustments, and that was the one filed by DI. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559599/ | 20 So.3d 1281 (2009)
Larry PROCTOR
v.
CLASSIC AUTOMOTIVE, INC.
2071092.
Court of Civil Appeals of Alabama.
April 24, 2009.
*1283 Mark A. Dutton, Moulton, for appellant.
*1284 J. Mitchell Frost, Jr., and L. Jackson Young, Jr., of Ferguson, Frost & Dodson, LLP, Birmingham, for appellee.
THOMAS, Judge.
Larry Proctor appeals from a summary judgment in favor of Classic Automotive, Inc. ("Classic"), on various claims arising from a transaction in which Proctor's wife, Rhonda, traded-in a 2002 Pontiac Bonneville automobile ("the Bonneville") and leased a 2006 Cadillac STS automobile ("the Cadillac") from Classic. Proctor alleged in his complaint that Rhonda lacked the mental capacity to enter into the automobile lease agreement with Classic and sought damages for invasion of privacy, negligence, wantonness, and fraud. Proctor also sought to have the automobile lease agreement set aside. Classic moved for a summary judgment, which Proctor opposed. Proctor did, however, voluntarily dismiss his invasion-of-privacy claim. The trial court entered a summary judgment in favor of Classic on all remaining claims. Proctor appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).
We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, "the burden then shifts to the nonmovant to rebut the movant's prima facie showing by `substantial evidence.'" Lee, 592 So.2d at 1038 (footnote omitted). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C, 792 So.2d 369, 372 (Ala. 2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).
Proctor sought a judgment declaring that the automobile lease agreement that Rhonda had executed was void on the ground that she lacked mental capacity. The evidence of Rhonda's mental capacity is undisputed. She has been diagnosed with depression, manic depression, and bipolar disorder, but she has not been declared incompetent. Rhonda receives $516 per month in disability benefits based on her diagnoses of Crohn's disease, bipolar disorder, and manic depression.
On the day she entered the automobile lease agreement, Rhonda left her home wearing no makeup and without fixing her hair, both of which were unusual for her. However, Rhonda had searched the Internet for automobiles before she left the house that day, and she had already decided to go to Classic to look at a particular automobile. When she arrived at Classic that day, she decided against the automobile she had selected on the Internet, but *1285 she inquired about the Cadillac she had noticed on the lot. Rhonda did not test drive the Cadillac.
Although Rhonda testified in her deposition that she merely had inquired about the price of the Cadillac, and that she had disputed with the salesman whether she could afford the lease payments, she admitted that she had signed the automobile lease agreement and had driven the Cadillac home. During the negotiations, Rhonda was asked for the keys to the Bonneville. When Rhonda had difficulty removing them from the key ring, one of the salesman offered to help her, but she refused his assistance and removed the keys herself. During the nearly two hours Rhonda was at the dealership executing the automobile lease agreement, she also used the term "buying" instead of the term "leasing" when describing the transaction.
Rhonda did testify that, in the days either immediately preceding or immediately following her signing the automobile lease agreement, she had also gone on a "shopping spree," during which she had maxed out a credit card. In the days following her execution of the automobile lease agreement, Rhonda became increasingly upset. Rhonda even said that she had considered attempting suicide by overdose a few days after executing the automobile lease agreement.
Proctor argues that Rhonda's mental-health diagnoses and her behavior on the day she executed the automobile lease agreement are sufficient to indicate that she was not capable of executing the automobile lease agreement because of mental incapacity. As he puts it, Rhonda's failure to test drive the Cadillac, her agreeing to lease payments that are nearly equal to her monthly disability check, and her making statements indicating that she was "buying" and not leasing the Cadillac are "not the actions of a mentally competent car buyer." Proctor also comments that Rhonda's appearance on that date and her difficulty removing the keys from her key ring signify that she was not mentally competent to execute the automobile lease agreement. Proctor relies on the rule that a contract executed by an insane person is void. Williamson v. Matthews, 379 So.2d 1245, 1247 (Ala.1980). Generally,
"a party cannot avoid, free from fraud or undue influence, a contract on the ground of mental incapacity, unless it be shown that the incapacity was of such a character that, at the time of execution, the person had no reasonable perception or understanding of the nature and terms of the contract."
Williamson, 379 So.2d at 1247.
According to Classic, the evidence concerning Rhonda's mental condition and status on the day she executed the automobile lease agreement is insufficient to prove that she lacked capacity. Classic argues that the evidence falls far short of demonstrating a genuine issue of material fact as to whether Rhonda lacked the mental acuity to understand that she was executing the automobile lease agreement. Even given Rhonda's disheveled appearance, her difficulty in removing her keys from her key ring, her failure to drive the Cadillac before purchasing it, and her comments that she was buying the car instead of using the term "lease," Classic says, the evidence fails to demonstrate a fact question regarding whether Rhonda lacked the requisite mental capacity.
As Classic argues, "`mere mental weakness falling short of incapacity to appreciate the business in hand will not invalidate *1286 a contract, nor will mere mental weakness or unsoundness to some degree....'" Lloyd v. Jordan, 544 So.2d 957, 959 (Ala.1989) (quoting 17 C.J.S. Contracts § 133(1) (1963)). The question is whether, regardless of illness or infirmity, "`sufficient intelligence remains to understand the transaction.'" Lloyd, 544 So.2d at 959 (quoting 17 C.J.S. Contracts § 133(1) (1963)). Rhonda admitted that she knew she was signing an automobile lease agreement and that she informed Proctor that she had signed a "Smart Lease" when she drove the Cadillac home. Although Rhonda said that she told the salesman that she could not afford the lease payments, she nevertheless signed the automobile lease agreement and drove the Cadillac home. Even if, as Proctor argues, Rhonda was suffering a manic episode that day, none of the evidence suggests that she did not know and understand that she was executing an automobile lease agreement. We therefore affirm the summary judgment in favor of Classic on Proctor's claim seeking to have the automobile lease agreement set aside.
On appeal, Classic asserts that the trial court properly entered a summary judgment in its favor on all the claims because, it asserts, Proctor was not the real party in interest, as required by Rule 17(a), Ala. R. Civ. P. That rule reads:
"(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person's own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest."
Rule 17(a). Classic asserted that Proctor was not the real party in interest in its June 19, 2008, reply to Proctor's response in opposition to its summary-judgment motion. We note that, on the same date the trial court entered the summary judgment, Proctor moved to amend his complaint to add Rhonda as a plaintiff; the trial court denied his motion. If, in fact, the trial court entered the summary judgment in favor of Classic because it determined that Proctor was not the real party in interest, it would have erred if it had entered a summary judgment on this basis without first permitting Proctor a chance to amend his complaint to add Rhonda as a plaintiff, as the rule requires.
However, we need not decide this case by determining whether Proctor is the real party in interest under Rule 17(a). Instead, we note that Proctor, insofar as he asserts claims of negligence and wantonness, bases his claims on injury to Rhonda's rights and not his own. He does not have standing to assert injury to Rhonda, a third party to the action. Murphy v. Green, 794 So.2d 325, 331 (Ala.2000).
"To establish negligence, the plaintiff must prove: (1) a duty to a foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4) damage or injury. Albert v. Hsu, 602 So.2d 895, 897 (Ala.1992)." Martin v. Arnold, 643 *1287 So.2d 564, 567 (Ala.1994). Further, "`[t]he absence of any one of these [elements] renders ... the evidence insufficient [to establish negligence].'" Franklin v. City of Athens, 938 So.2d 950, 953 (Ala.Civ.App. 2005) (quoting Calvert Fire Ins. Co. v. Green, 278 Ala. 673, 677, 180 So.2d 269, 273 (1965)). Whether a legal duty exists is a question of law. Rose v. Miller & Co., 432 So.2d 1237, 1238 (Ala.1983). "To establish wantonness, the plaintiff must prove that the defendant, with reckless indifference to the consequences, consciously and intentionally did some wrongful act or omitted some known duty. To be actionable, that act or omission must proximately cause the injury of which the plaintiff complains." Martin, 643 So.2d at 567.
Proctor bases his negligence and wantonness claims on Classic's actions in failing to notice Rhonda's alleged incapacity and in convincing her to enter into the automobile lease agreement. According to Proctor, Classic owed him a duty under the Adult Protective Services Act of 1976 ("the Act"), codified at Ala.Code 1975, 38-9-1 et seq., part of which makes it a criminal offense to "abuse, neglect, exploit, or emotionally abuse" a person protected under the Act. Ala.Code 1975, § 38-9-7(a).[1] The term "exploitation" is defined in the Act as "[t]he expenditure, diminution, or use of the property, assets, or resources of a protected person without the express voluntary consent of that person or his or her legally authorized representative...." Ala.Code 1975, § 38-9-2(8).
Proctor relies on the doctrine of negligence per se.
"Violation of statutes or ordinances may be negligence. Vines v. Plantation Motor Lodge, 336 So.2d 1338 (Ala.1976). If the statute or ordinance violated was enacted or promulgated for the protection of the person claiming to have been injured by reason of the violation, the violation of the statute may be negligence per se or negligence as a matter of law. Allman v. Beam, 272 Ala. 110, 130 So.2d 194 (1961)."
Keeton v. Fayette County, 558 So.2d 884, 887 (Ala.1989). However, Proctor is not within the class of persons the Act was designed to protect. The Act protects persons
"over 18 years of age subject to protection under this chapter or any person, including, but not limited to, persons who are senile, mentally ill, developmentally disabled, or mentally retarded, or any person over 18 years of age that is mentally or physically incapable of adequately caring for himself or herself and his or her interests without serious consequences to himself or herself or others."
Ala.Code 1975, § 38-9-2(17). Based on Proctor's arguments and factual assertions, Rhonda could possibly be a protected person under the Act. Thus, Proctor is *1288 not asserting negligence based on a duty owed to him but, instead, on a duty allegedly owed to Rhonda. Likewise, Proctor's wantonness claim is based on Classic's alleged reckless disregard of Proctor's rights based, again, on Classic's failure to realize that Rhonda was experiencing a manic episode and was allegedly incompetent to execute the automobile lease agreement. Proctor does not identify what wrongful act causing him damage Classic intentionally undertook or what known duty to him Classic omitted.
"A party must allege an individual or representative right and a redressable injury to that right as a prerequisite to setting in motion the machinery of the court. See 59 Am.Jur.2d Parties § 31 (1987). In order to be a `proper party plaintiff, a person must have an interest in the right to be protected.' Eagerton v. Williams, 433 So.2d 436, 447 (Ala. 1983). As a general rule, `a litigant may not claim standing to assert the rights of a third party.' Jersey Shore Medical Center-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980). A party lacks standing to invoke the power of the court in his behalf in the absence of `a concrete stake in the outcome of the court's decision.' Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So.2d 932, 937 (Ala.1983)."
Ex parte Izundu, 568 So.2d 771, 772-73 (Ala.1990). Even more recently, our supreme court has noted that "a litigant cannot claim standing to assert the rights of a third party not named in the action." Murphy v. Green, 794 So.2d 325, 331 (Ala. 2000) (citing Ex parte Izundu, 568 So.2d at 772).
As we explained in Langham v. Wampol, 902 So.2d 58, 62 (Ala.Civ.App. 2004):
"`The United States Supreme Court has established that the question of standing turns upon whether the litigant is entitled to have the court decide the merits of the dispute. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Standing imparts justiciability to the issues raised and is the threshold issue of every federal case. Warth. Likewise, in cases brought in state court, the machinery of the court is not set into motion unless the plaintiff first alleges his right to bring suit to recover for a redressable injury. Ex parte Izundu, 568 So.2d 771 (Ala. 1990). From these rules of law, it is axiomatic that a party who lacks standing cannot be granted relief upon his cause.'
"Cassady v. Claiborne, 590 So.2d 339, 341 (Ala.Civ.App.1991). `"To say that a person has standing is to say that that person is a proper party to bring the action."' Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., 881 So.2d 1013, 1019 (Ala.2003)(quoting Doremus [v. Business Council of Alabama Workers' Comp. Self-Insurers Fund], 686 So.2d [252,] 253 [(Ala.1996)]). `Standing ... turns on "whether the party has been injured in fact and whether the injury is to a legally protected right."' State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Romer v. Board of County Comm'rs of the County of Pueblo, 956 P.2d 566, 581 (Colo.1998) (Kourlis, J., dissenting))(emphasis omitted)."
Proctor's negligence and wantonness claims are based on the actions of Classic and its salesmen during the negotiation and execution of the automobile lease *1289 agreement. If, in fact, any negligence or wantonness occurred, it did not result in injury to Proctor. Thus, because Proctor was not injured in fact and because he does not possess a legally protected right upon which he bases his claims for redress, he lacked standing to sue Classic alleging negligence and wantonness.
"When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction." State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1028 (Ala. 1999). Because lack of standing is a jurisdictional defect, this court may notice it ex mero motu. Harris v. Mitchell, 958 So.2d 884, 889 (Ala.Civ.App.2006). Although the trial court did not explain its reason for entering the summary judgment in favor of Classic on Proctor's negligence and wantonness claims, we may affirm a summary judgment on any valid ground, even one not argued to the trial court.[2]Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found., P.C., 881 So.2d 1013, 1020 (Ala.2003). We therefore affirm the trial court's summary judgment in favor of Classic on the negligence and wantonness claims.
Proctor also asserted a fraud claim against Classic based upon an alleged misrepresentation regarding Proctor's ability to return the Cadillac and regain possession of the Bonneville. Classic presented evidence indicating that the Bonneville was sold to a third party on July 21, 2005, and that the Bonneville was no longer owned by the dealership on July 22, 2005. "`"The elements of fraud are: (1) a misrepresentation of a material fact, (2) made willfully to deceive, recklessly, without knowledge, or mistakenly, (3) that was reasonably relied on by the plaintiff under the circumstances, and (4) that caused damage as a proximate consequence."'" McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala.2008) (quoting Allstate Ins. Co. v. Eskridge, 823 So.2d 1254, 1258 (Ala.2001) (quoting in turn Brushwitz v. Ezell, 757 So.2d 423, 429 (Ala.2000))). Although Proctor testified in his deposition that he had telephoned the dealership at around 8:00 a.m. on July 22, 2005, the day after Rhonda had executed the automobile lease agreement, his testimony about that conversation does not contain any alleged misrepresentation made by a Classic representative. Proctor testified that he told a woman who he believed to be the receptionist, "I'm bringing the [Cadillac] back, you know, not get rid of my car, the [Bonneville]." Although Proctor did telephone Classic a second time later that morning, Proctor never testified that any person he spoke to at Classic ever assured him that he could return the Cadillac and reclaim possession of the Bonneville. Proctor has failed to present evidence indicating that any representative of Classic made a misrepresentation regarding the Bonneville. The summary judgment for Classic on Proctor's fraud claim is therefore affirmed.
AFFIRMED.
THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.
MOORE, J., concurs in the result, without writing.
NOTES
[1] Section 38-9-7(a) provides:
"(a) It shall be unlawful for any person to abuse, neglect, exploit, or emotionally abuse any protected person. For purposes of this section, residence in a nursing home, mental institution, developmental center for the mentally retarded, or other convalescent care facility shall be prima facie evidence that a person is a protected person. Charges of abuse, neglect, exploitation, or emotional abuse may be initiated upon complaints of private individuals, as a result of investigations by social service agencies, or on the direct initiative of law enforcement officials."
[2] This rule is subject to certain exceptions when due-process constraints would require notice. Liberty Nat'l Life Ins. Co., 881 So.2d at 1020. Because the lack of standing precludes the acquisition of subject-matter jurisdiction, the exceptions are not applicable here. Property at 2018 Rainbow Drive, 740 So.2d at 1028. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304505/ | Me. Justice McCanless
delivered the opinion of the Court.
This is a suit by Eugene Pennington, Administrator of the estate of Estella Bayless Harris, to recover damages for the wrongful death of his intestate against Earl Ashton Speece and Sarah Delilah Speece growing out a collision of the automobile owned by Mrs. Speece and driven by her husband with the deceased at that time a pedestrian on or about six o’clock in the evening of December 7,1966, on U. S. Highway 411 about one and a half miles north of Madisonville.
At the conclusion of the plaintiff’s evidence and at the conclusion of all the evidence the defendants moved the court to direct a verdict in their favor, the court overruling the motions in each case. The jury found for the plaintiff and returned a verdict against the defendants in the amount of $25,000.00. The defendants then moved for a new trial and a directed verdict in their favor which the court granted. The plaintiff appealed in error to the Court of Appeals, sitting at Knoxville, who reversed the judgment of the Circuit Court and remanded the cause *647for a new trial.. From the action of the Court of Appeals the plaintiff has filed a petition for the writ of certiorari which we granted.
The facts for the most part are not in dispute. The defendants, Speece, are husband and wife and live near Marion, Ohio. The automobile was owned by Mrs. Speece and was being driven by her husband on their way to Florida. Mr. Speece was driving southwardly at the rate of about forty-five miles an hour at a point on the highway where the speed limit in the nighttime was fifty-five miles an hour. He was driving in the right hand lane of the two-lane highway when he was met by a car being driven northward, and to avoid being blinded he glanced toward the right hand side. At this moment Mrs. Speece cried out that there was a woman in the highway. According to the testimony of Mr. Speece he panicked for a moment, applied his brakes, and the automobile struck Mrs. Harris, threw her body onto the top of his automobile and then to the ground resulting in her immediate death.
There is some doubt as to the point on the highway where Mrs. Harris was walking when she was struck, but the question of her contributory negligence should have been determined by the jury.
“The question of contributory negligence, as well as actionable negligence, is ordinarily an issue for the jury. Philip Carey Roofing & Mfg. Co. v. Black, 129 Tenn. 30, 164 S.W. 1183, 51 L.R.A., N.S., 340; Osborn et al. v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510; Schindler v. Southern Coach Lines, 188 Tenn. 169, 217 S.W.2d 775; and Tennessee Electric Power Co. v. Hanson, 18 Tenn.App. 542, 79 S.W.2d 818. The court in the Hanson case declared:
*648“ ‘The question of contributory negligence, as well as the question of negligence, is ordinarily for the jury. Even though the facts be undisputed, if intelligent minds might draw different conclusions as to whether, under circumstances conceded, the conduct of a plaintiff was that of an ordinarily prudent man, the matter should be left to the jury. The court should draw no inference when in doubt, but only in those cases where the evidence is without material conflict, and such that all reasonable men must reach the same conclusion therefrom. It is only in cases where the evidence is susceptible of no other fair inference that the court is justified in instructing the jury, as a matter of law, that the plaintiff has been guilty of contributory negligence which would bar his recovery.’ 18 Tenn.App. 542, 549-550, 79 S.W.2d 822.”
Kemp v. Town of Lebanon, 215 Tenn. 118, 384 S.W. 2d 14.
There is in the record Mr. Speece’s statement that he panicked when he saw the deceased, and there is some testimony that to avoid the glare of the approaching automobile headlights he glanced toward the shoulder of the highway and that when he looked up and saw the deceased he panicked. Whether these circumstances constituted negligence likewise should have been determined by the jury.
The Circuit Judge directed a verdict of not guilty on the authority of Donoho v. Large, 25 Tenn.App. 433, 158 S.W.2d 447; but the facts of that case differ from those of the case now before us: there the plaintiff admitted he was walking along the right side of the highway in violation of the law on account of which he was struck. Here *649there is no such admission; moreover there is evidence which make the whereabouts of the deceased on the highway a question for the jury: (1) the lights of the approaching car caused the defendant to glance to the right hand shoulder of the highway; (2) about this time the defendant, Mrs. Speece, saw a person, who could have been the deceased, at the center line of the highway; and (3) the deceased was struck near the middle of the defendant’s lane by the front center part of the defendant’s car.
These facts make it as probable that the deceased was crossing the highway as that she was walking in the right lane with her back to the traffic, such a crossing not necessarily being in violation of the statute. On this record there is no showing of negligence per se. See sec. 59-835, T.C.A., Tri-State Transit Co. of Louisiana v. Duffey, 27 Tenn.App. 731, 173 S.W.2d 706; DeRossett v. Malone, 34 Tenn.App. 451, 239 S.W.2d 366.
The case of Seahorn v. Karr, 35 Tenn.App. 38, 242 S.W.2d 331, is not in point because in that case it appeared that the deceased, while attempting to walk across the road walked into the side of the defendant’s car, thereby receiving a fatal injury. In the Seahorn case the deceased never appeared as an obstruction to be seen or avoided. That is not this case.
We are of opinion that there is in the record evidence sufficient to require the submission of the case to the jury. We therefore affirm the judgment of the Court of Appeals by which they reversed the judgment of the Circuit Court and ordered a new trial.
Dyer, Chiee Justice, Creson and Humphreys, Justices, and Jenkins, Special Justice, concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1559648/ | 5 Md. App. 599 (1969)
249 A.2d 217
JAMES CURTIS HALL
v.
STATE OF MARYLAND.
No. 84, September Term, 1968.
Court of Special Appeals of Maryland.
Decided January 14, 1969.
*600 The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Allan C. Westcott for appellant.
Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Julian B. Stevens, Jr., State's Attorney for Anne Arundel County, and Raymond G. Thieme, Jr., Assistant State's Attorney for Anne Arundel County, on the brief, for appellee.
THOMPSON, J., delivered the opinion of the Court.
James Curtis Hall, the appellant, was convicted of sodomy by the Circuit Court for Anne Arundel County, Judge Matthew S. Evans presiding without a jury. The sentence imposed was two years consecutive to the sentence which Hall was then serving. The questions presented on appeal concern the admissibility of certain evidence and the sufficiency of the evidence to support the verdict.
The testimony can be summarized as follows:
James Stuart Aberts, age 23, testified that while he was incarcerated at the Maryland House of Correction on January 28, 1967, a riot broke out in the institution at or about the hour of 4:30 to 5:00 p.m. Some of the prisoners seized keys from the guards and unlocked the cell doors of the remaining prisoners. Aberts testified that after his cell door was opened he walked out on the tier and when he was passing cell No. 4, which adjoined his own, four persons, of whom Hall, the appellant, was not one, attacked him and knocked him unconscious. When he became conscious he was lying on his stomach on a bed in cell No. 4 with a man, in a supine position, engaged in a sexual assault upon him. While the act continued one of the other persons present yelled "Who is on him now" when another unknown person stated that "Billy Hall" was on the victim. (The record shows that Billy Hall was the nickname commonly used for the appellant). Whereupon the person on his back yelled to the others to quit hollering his name out and told the victim *601 that he had better forget his name. Aberts further testified when he heard Hall's voice he recognized it because he had had an argument with him on two separate days some two weeks prior thereto saying "He's got a way of talking, the way they put a lot of drive in their tongue, it is just familiar, I knew it. I'd argued with him before and I knew that was his voice." He further testified that the lights were out and it was too dark for him to identify Hall except by his voice.
Ronald Kurz, a correctional officer at the Maryland House of Correction, about 24 hours after the riot, went to the medical observation area of the House of Correction where Hall was being held for medical examination and informed Hall that someone was there to see him and requested that he put on his clothes. He accompanied Hall to a room where several bundles of clothes of persons who were undergoing medical examination were in neat piles around the room. Hall looked over the piles of clothing until he found what was obviously his and put on undershorts, trousers and shoes. After the officer observed that the shoes fitted, he told Hall that he could stop getting dressed because the man who wanted to see him was already there. Sergeant Snyder of the Maryland State Police, who was standing at the door, then asked Hall about the stains on the clothing which were located on front of the trousers and around the fly area of the undershorts. Hall was directed to undress and Sergeant Snyder took the clothes. On cross-examination Kurz stated that the undershorts showed they were size 34, that the belt was size 32, and the trousers measured at the trial were 30 1/2 inches around the waist. He further testified that the clothing Hall put on fitted him as well as any other inmate's clothes at the institution. Sergeant Snyder confirmed the testimony of Correctional Officer Kurz and stated that when he asked Hall about the obvious blood stains on the front of the trousers that Hall responded that a lot of people had gotten blood on their trousers during the riot. An examination of the trousers at the laboratories of the Federal Bureau of Investigation showed that blood stains were on the trousers but not on the shorts, and that seminal stains were on both the trousers and the undershorts.
John L. Beard, who at the same trial was convicted of assault *602 in connection with a sodomy attack not directly connected with the present appeal testified for the defense that he was Hall's cellmate and that Hall had stayed in his own cell throughout the riot, and further that he, Beard, had spent much of the time directly in front of their cell talking with Robert Earl Paesch.
Hall testified in his own defense and stated that he spent the entire time of the disturbance in his cell with Beard; that he saw Robert Earl Paesch during the riot. He stated that he had argued with Aberts some two weeks before on two separate days and on the second occasion concluded by saying "Well, we talked and wound up shaking hands and I left, and that was all in December, that was the last him and I had any words or any kind of relationship." He stated that the clothes which he wore to the medical observation area were the same clothes that he had worn during the riot, but that the clothes introduced into evidence were not his except for the belt. Hall testified that he wore size 30 undershorts, and that he remade all of his trousers in the tailor shop so that they fitted him better than otherwise they would have. Hall stated that at the time he was called upon to dress in the area he put on only pants; that he did not put on shoes or undershorts; that he had not seen any of the clothes, except for the belt, that he wore to the medical room; and that the first time he had seen the belt was the day of the trial. In rebuttal the State called Robert Earl Paesch who denied that he had seen Hall at any time during the riot.
Hall contends on appeal that the court committed error in admitting the clothing into evidence because it was not sufficiently connected with him. He argues that its connection is questionable because it might have been mixed up with clothing of other prisoners which was also in the room at the time he was called upon to dress. This contention causes us little concern. All that is required to connect an exhibit to an accused is reasonable probability. Veihmeyer v. State, 3 Md. App. 702, 240 A.2d 649. Hall was directed to put on his clothes, and after looking over the piles of clothes he put on those admitted into evidence. The shoes fitted him and the other clothes fitted him as well as the clothes of other inmates fitted them.
*603 Hall further contends that it was error for the trial court to admit the "hearsay" testimony concerning the conversation between unidentified persons and the criminal while the crime was in progress. Hall complains specifically of the conversation between the unidentified persons rather than the words of the criminal, but we fail to see how the words of the criminal would be at all intelligible unless the words of the bystanders were also admitted.
The Court of Appeals in the case of Robinson v. State, 57 Md. 14 gave an excellent discussion of what evidence constitutes res gestae. On a charge of forcibly abducting four children of one James McGee, the accused proffered a witness who stated that when the accused and Mrs. McGee came to her house to spend the night she told the witness, out of the presence of the accused, that she had made up her mind not to live with her husband any longer and had left home and taken the children with her and had gotten the accused to drive the wagon. The Court reversed because of the refusal of the trial court to admit that testimony and quoted with approval 1 Taylor on Evidence § 521 as follows:
"`Certain other declarations and acts are admitted as original evidence, being distinguished from hearsay by their connection with the principal fact under investigation.
"`The affairs of men consist of a complication of circumstances so intimately interwoven as to be hardly separable from each other. Each owes its birth to some preceding circumstance, and in its turn becomes the prolific parent of others, and each, during its existence, has its inseparable attributes, and its kindred facts, materially affecting its character, and essential to be known, in order to a right understanding of its nature. These surrounding circumstances may always be shown to the jury along with the principal fact, provided they constitute parts of what are termed the res gestae, and whether they do so or not must in each particular case be determined by the judge in the exercise of his sound discretion, according to the *604 degree of relationship which they bear to that fact;' and then after giving cases in which such proof was admitted, the author goes on to say: `So also where a person enters upon land in order to take advantage of a forfeiture to foreclose a mortgage, to defeat a disseisin or the like; or changes his actual residence or domicile, or is upon a journey or leaves his home, or returns thither, or remains abroad, or secretes himself, or in fine does any other act material to be understood; his declarations made at the time of the transaction, and expressive of its character, motive or object are regarded as "verbal facts," indicating a present purpose and intention, and are therefore admitted in proof like any other material facts.'"
Professor Wigmore in 6 Wigmore Evidence § 1791 says that utterances serving to identify are admissible as every other circumstance of identification would be under his rule that verbal acts are admissible because the hearsay rule is not applicable. 6 Wigmore, Evidence § 1745.
In 1 Wharton Criminal Evidence § 279 (12th Edition) the strict rule is as follows:
"When strictly defined, res gestae refers to those exclamations and statements made by either the participants, victims, or spectators to a crime immediately before, during, or immediately after the commission of the crime, when the circumstances are such that the statements were made as a spontaneous reaction or utterance inspired by the excitement of the occasion and there was no opportunity for the declarant to deliberate and to fabricate a false statement."
At page 627 he cites Cohen v. State, 173 Md. 216, 195 A. 532, cert. denied, 303 U.S. 660, 58 S.Ct. 764, 82 L.Ed. 1119 as authority for the proposition that Maryland follows the broadest possible rule as to what constitutes res gestae. Perhaps the rule is formulated most clearly by Professor McCormick in McCormick Evidence (1954) § 274 at 586:
"If there is any common element or concept present in all these variegated uses of the term res gestae it is *605 a very rudimentary one, namely the notion that evidence of a concededly relevant act or condition may bring in likewise the words which accompanied it. This represents a broadening of the original employment of the term which denoted words accompanying the principal litigated fact, such as the murder, collision or trespass, which is the subject of the action. This older meaning is still often reverted to, and serves to narrow the usefulness of the doctrine without perceptible gain. The general notion of words accompanying an act or situation involves also some requirement of concurrence, or close relationship, in time between the words and the act or situation. Here again the narrowness or liberality in the application of this requirement is a measure of the scope of the usefulness of res gestae in the particular jurisdiction.
"Perhaps we may discern two main policies or motives in the recognition of res gestae as a password to the admission of evidence. Surely one is a desire to permit the witness to tell his story in a natural way by telling all that happened at the time of the narrated incident including those details which give life and color to the story. Truth is a seamless web and the naturalness with which the details fit each other gives confirmation to the whole account. The other policy, most emphasized in the last generation under the leadership of Wigmore, is the recognition of spontaneity as the source of special trustworthiness. This quality of spontaneity characterizes in greater or less degree nearly all the types of declarations which have been labeled res gestae."
See: 2 Jones on Evidence § 319 at 598 (5th Edition) wherein it states:
"The commonest instance of the admission of evidence under the res gestae doctrine is that of the introduction of declaration by a party to the transaction in suit, uttered at the time of the occurrence, and tending to explain the facts thereof.
*606 "On the same principle, evidence is received to show complaints and statements of an injured person, made at the time of the harmful occurrence, both as to bodily suffering and the circumstances of the occurrence. The facts and circumstances surrounding the occurrence in issue may also, it has been held, be admissible as a part of the res gestae. Of course the rule applies equally to declarations of persons who were not actual participants in the event but who were observers thereof."
In a civil case in McBriety v. Phillips, 180 Md. 569, 26 A.2d 400, 404 the Court of Appeals in discussing res gestae said:
"Under the rule of res gestae, conversations of parties in the course of a transaction are admissible when the words are spontaneous and so closely related to the principal transaction as to explain its character. 1 Jones on Evidence, § 358; 6 Wigmore on Evidence, § 1776; 20 Am. Jur., Evidence, §§ 662, 680. Such utterances, irrespective of their trustworthiness as assertions, are received as verbal parts of the entire act. In upholding this rule Justice Swayne said: `In the complexity of human affairs, what is done and what is said are often so related that neither can be detached without leaving the residue fragmentary and distorted. There may be fraud and falsehood as to both; but there is no ground of objection to one that does not exist equally as to the other. * * * The tendency of recent adjudications is to extend rather than to narrow, the scope of the doctrine. Rightly guarded in its practical application, there is no principle in the law of evidence more safe in its results.' Travellers' Insurance Co. v. Mosley, 8 Wall. 397, 408, 19 L.Ed. 437, 441."
In Alexander v. State, 198 Md. 395, 84 A.2d 98, the Court of Appeals considered this specific problem when during the time of a gambling raid various unknown persons called and asked to speak to "Melvin" or "Melvin Alexander," the appellant. The Court had held that such evidence was admissible as part of the res gestae and that it was unnecessary to identify *607 the callers in order to make the evidence admissible as to identity.
Hall further contends that the evidence would have been inadmissible because of a lack of foundation showing that the anonymous persons had had an opportunity to observe the fact that Hall had been the participant in the crime at the moment. He cites 3 Wigmore § 1445 at 177 (2nd Edition), 1 Wharton Criminal Evidence § 310 at 723-24 (12th Edition), Commonwealth v. Noble, 371 Pa. 138, 88 A. 760, Commonwealth v. Fergmon, 330 Pa. 4, 198 A. 99, Pillard v. Chesapeake S.S. Co. of Baltimore, 124 Md. 468, 474, 92 A. 1040, but we do not think those authorities are controlling in the present situation. Although the evidence showed that it was too dark for Hall to be recognized at the time the act was being committed the record shows clearly that those involved in the conversations were all in a conspiracy to commit the crime upon the body of Aberts, and we think it reasonable that they would know who was with them and some would know who was actually performing the sodomy at the time of the conversation, regardless of the conditions as to visibility.
To further support the argument, Hall cites our case of Howard v. State, 4 Md. App. 74, 241 A.2d 192 where we held that an out-of-court lineup identification was not admissible unless the witness making the identification was available and in court to testify and to be cross-examined concerning it; but that case is not relevant where the identification evidence is a part of the res gestae. We are concerned, here, with what was said at the time the crime was actually being committed and not what was said after the stress of the crime had ceased as in Howard, supra.
Although the facts were somewhat different in Reckard v. State, 2 Md. App. 312, 234 A.2d 630, Lynch v. State, 2 Md. App. 546, 236 A.2d 45 and in Van v. State, 1 Md. App. 347, 230 A.2d 109 we reviewed the law of res gestae and held that generally all that is said and done during the commission of a crime is admissible as evidence. In fact, it is difficult to imagine anything occurring or being said while crime is in actual progress that would not be admissible under the res gestae principle, *608 although it is possible that we would so hold under a peculiar set of facts.
Finally Hall contends that the evidence is not sufficient to support his conviction alleging, in oral argument, that the opportunity for a frameup under prison conditions is great. In the case of Gillian v. State, 3 Tex. App. 132 (1877) there was a jailbreak and one of the prisoners testified as follows:
"`I saw the parties who broke it (the jail) open; they had been after me some time to assist them in breaking the jail; some of the parties were in town early in the night the jail was broken; I saw them on the streets; they told me they were waiting for William Gillian, the defendant. Some of the parties told me to go on the prairie, by Dr. Houston's field, and I would meet the crowd there; they said I would find the defendant, William Gillian, there. I was well acquainted with John Gillian, a brother of the defendant; he was one of the crowd that broke open the jail, and he told me that Billy Gillian would be there. I went back of Dr. Houston's field, as I was directed, and when I got there I found no one. After waiting two or three hours the crowd came. I was not acquainted with the defendant, but there was a man in the crowd that was called William Gillian. * * * I helped break the door (of the jail) open myself. I cannot say, upon my oath, that William Gillian was there. * * * It was dark; there was a man present that the crowd called William Gillian.'"
The Court held that, while such evidence was admissible and not objectionable as hearsay, it, alone, was insufficient to identify the accused as the criminal, saying:
"It is of too common occurrence for men to assume names and especially so when about to engage in improper or illegal conduct and it it too often happens that conspirators, during the accomplishment of their plans, call their confederates purposely by names other than those to which they are entitled, for us to sanction, *609 as a precedent, that such declarations are of a satisfactory and conclusive character. Proof of identity, to warrant a conviction, should stand upon a surer and more certain basis.
"The evidence, as is said above, is permissible as a fact or circumstance connected with the transaction, to be weighed like any other fact or circumstance in the case, in the determining from the whole evidence whether the identity is proven."
If the only evidence of Hall's participation in the crime were the fact that his name was called out by one of the criminals we would follow Gillian v. State, supra, and hold that there was insufficient evidence to support the conviction; but here there was enough other evidence that we cannot say that the trial judge was clearly erroneous within the meaning of Maryland Rule 1086 when he found Hall guilty of sodomy.[1] The trial judge specifically found that the clothes, with blood and seminal stains thereon, had been worn by Hall on the night of the riot. The victim identified Hall's voice saying that it was peculiar in that he "put a lot of drive" in his tongue. We have held that voice identification, coupled with other circumstances, is sufficient to support a conviction, Nichols v. State, 5 Md. App. 340. We think there are sufficient, if minimal, other circumstances here to support the verdict.
Judgment affirmed.
NOTES
[1] For a full discussion of our responsibility in reviewing sufficiency of the evidence see Williams v. State, 5 Md. App. 450. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559772/ | 403 F.Supp. 392 (1975)
TRACOR MARINE INC., as Owners Pro Hac Vice of the RESEARCH VESSEL H. J. W. FAY et al., Plaintiffs,
v.
The M/V MARGOTH (ex "Carolita"), her engines, tackle, etc., et al., Defendants.
Civ. No. 75-0152-B.
District Court Canal Zone, Division Balboa.
November 20, 1975.
*393 Roy Phillips, Albert J. Joyce, Jr., Balboa, Canal Zone, for plaintiffs.
Woodrow De Castro, Balboa, Canal Zone, for the M/V "Margoth" and Tico International S. A.
Henry Newell, Balboa, Canal Zone, for the Panama Ins. Co. Inc.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
CROWE, District Judge.
FINDINGS OF FACT
1. On May 14, 1975, at approximately 0220, the Research Vessel "H.J.W. FAY" (hereinafter "FAY") under the command of Capt. Ian R. Crichton, departed Cristobal, Canal Zone, bound for Port Everglades, Florida. At approximately 1430 on said May 14th personnel on the FAY sighted a vessel adrift, unlighted and abandoned in the shipping lanes; the FAY changed course and maneuvered toward the vessel which was adrift and at approximately 1505 of the same May 14th the FAY was standing by the said ship which was then identified as the M/V MARGOTH (hereinafter "MARGOTH"), a vessel of Panamanian Registry. At approximately 1600 of May 14, 1975, the Chief Mate and Wiper of FAY boarded the MARGOTH, returned to the FAY at about 1620 and reported the vessel was a derelict; at approximately 1800 three (3) men from FAY were sent back to the MARGOTH for the purpose of preparing for the salvage operation and at about 1830 a tow line was passed from FAY to MARGOTH and at about 1850 the tow line was secured. At about 1900 the FAY was underway with MARGOTH in tow toward Cristobal, Canal Zone.
The FAY arrived at Cristobal breakwater at approximately 0820/0825 of May 16th. with MARGOTH in tow, and at about 0830 of said day the Panama Canal Company Tug "J. WALLACE" was alongside. At approximately 0835 the tow line was cast off and the FAY, having left some of its crew members on board MARGOTH, proceeded to anchor in Cristobal harbour. (See "Agreed Statement of Case" in Pre-Trial Order, hereinafter "PT Order").
2. Plaintiff TRACOR MARINE INC., was at material times, and still is, a corporation of the State of Florida and bareboat charterer of the FAY, a U.S. Registry vessel. (PT Order).
3. Plaintiffs Master, Officers and Crew above named were, at material times, serving on the FAY. (PT Order).
4. Defendant MARGOTH is a dry cargo vessel of Panamanian Registry engaged, at the time, in international maritime commerce. (PT Order).
5. Defendant TICO INTERNATIONAL, S. A. was at material times, and still is, a Panamanian corporation and owns the MARGOTH. (PT Order).
6. Defendant PANAMA INSURANCE COMPANY, INC. is a Panamanian corporation and is the Hull Insurer of MARGOTH. (PT Order).
7. At approximately 1300 of May 11, 1975, the Master and crew of MARGOTH abandoned the said vessel at an approximate location of 11° 33' 0" N. latitude, 76° 20' 0" W. longitude. (Margoth's Masters Note of Protest PT Order).
8. Representatives of owners of MARGOTH officially apprised Government of Panama that MARGOTH had sunk. (PT Order).
9. MARGOTH was a derelict, adrift in the international sealanes and was a hazard to navigation. At the time a salvage line was put on her by the FAY, she had been derelict and adrift for approximately 3 days 5½ hours.
10. MARGOTH is insured with its Hull Underwriters, Panama Insurance Company, Inc., for the sum of $120,000.00.
11. At the time MARGOTH was brought into Cristobal anchorage in the act of salvage by the FAY, she had a value of $110,000.00.
*394 12. At material times herein the FAY was of a value of approximately $2,000,000.00 and had on board Research equipment and instruments valued at approximately $300,000.00. (PT Order).
13. In carrying out the Salvage operation, Plaintiff TRACOR MARINE INC. incurred expenses in the sum of $42,152.33, from which shall be deducted the cash stipulation for costs and such amounts as may be in the hands of the Marshal for reimbursement to Plaintiffs.
14. At material times of the complaint MARGOTH was within the jurisdiction of this Court. (PT Order).
CONCLUSIONS OF LAW
1. By the Agreed Statement of the Case at pre-trial and the testimony at trial, this is a typical case of maritime Salvage and is governed by the applicable law of salvage.
2. By the Agreed Statement of the Case and Stipulation of the parties the MARGOTH was "DERELICT" property. (Norris, The Law of Salvage § 131, p. 221).
3. Property found in a "derelict state" has considerable significance for it generally implies a degree of danger which is reflected in the granting of a higher award. The presence of a derelict vessel is an obstruction to navigation and a danger to commerce [The Anna, 1 Fed.Cas.No.398, p. 928 (DCSD NY 1872) aff'd. 1 Fed.Cas.No.401, p. 931 (CCNY 1873); The Henry R. Tilton, 1 Cir., 214 F. 165; The Flora Rodgers, 4 Cir., 152 F. 286]; that there is a hazard to the salving vessel in towing an unmanned or inadequately manned derelict or wreck [The Agnes Manning, 2 Cir., 59 F. 481]; and that the owner's chance of recovering derelict property is generally very slight [The Georgiana, 10 Fed.Cas.No.5355, p. 249]. With respect to the latter, i. e. "the owner's chance of recovering derelict property" being very slight, it must be mentioned that Owners of MARGOTH had reconciled to the fact of its total loss to such an extent that they had so officially reported to the Shipping Dept. of the Government of Panama.
4. The reasonable expenses incurred by Salvors are allowable. They may be included in the award or added to the award, as the Court sees fit and depending on the circumstances of each case. [See The Kanawha, as quoted in Norris, The Law of Salvage, § 211, p. 340; See also The Shreveport, 4 Cir., 42 F.2d 524]. The better practice is to include it in the award UNLESS AN AWARD TO THE SALVING CREW IS BETING CONSIDERED IN WHICH CASE IT SHOULD BE STATED SEPARATELY FROM THE AWARD; otherwise, the crew may be sharing in the owner's expenditures when the apportionment between owner and crew is made. [See Norris, The Law of Salvage, § 210, pp. 339/340].
5. In the case at bar an award to the salving crew is being considered and the Court will therefore make an allowance for the reasonable expenses incurred by Tracor Marine Inc. separately from the SALVAGE AWARD. [Norris, The Law of Salvage, § 210; The "M/V JOSE LUIS AZNAR", Civil No. 7583 DC Canal Zone, Balboa Division].
6. Plaintiff TRACOR MARINE INC. is entitled to recover of and from defendants MARGOTH and TICO INTERNATIONAL, S. A., jointly and severally, said plaintiff's reasonable expenses as found in the Findings of Fact, plus interest from this date at the rate of 6% per annum until paid.
7. Plaintiffs, that is to say TRACOR MARINE INC. and the Master, Officers and Crew of the FAY, are entitled to recover of and from defendants MARGOTH and TICO INTERNATIONAL, S. A., jointly and severally, a liberal SALVAGE AWARD and the Court fixes same in the sum of $34,173.84, such sum being a moiety of the difference between the value of the MARGOTH as herein found and the expenses incurred by TRACOR MARINE INC. *395 in the salvage as hereinbefore determined and allowed, to be distributed amongst the Salvors after deducting Salvors' legal fees and expenses, in the proportion of 2/3 for TRACOR MARINE INC. and 1/3 for the Master and Crew.
8. Distribution of the Master's and Crew's share shall be in proportion to what their basic monthly wage bears to the total monthly basic wage of the crew, after first allowing a special bonus of $500.00 for the Master and special bonuses of $200.00 for each of the following four (4) crewmembers: John Ostensen, Brian W. Bassett, Steven McLean and Damon A. Leonard.
9. The Court has jurisdiction over the parties and the subject matter of the action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559776/ | 104 N.J. Super. 210 (1967)
249 A.2d 603
HAROLD CALIGUIRE AS ADMINISTRATOR AD PROSEQUENDUM FOR THE ESTATE OF VINCENT CALIGUIRE AND HAROLD CALIGUIRE, INDIVIDUALLY, PLAINTIFF-APPELLANT,
v.
CITY OF UNION CITY IN THE COUNTY OF HUDSON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued September 18, 1967.
Decided November 9, 1967.
*212 Before Judges CONFORD, COLLESTER and LABRECQUE.
Mr. Robert J. Carluccio argued the cause for appellant.
Mr. Robert H. Wall argued the cause for respondent.
The opinion of the court was delivered by COLLESTER, J.A.D.
This is an appeal by plaintiff Harold Caliguire, individually and as administrator ad prosequendum of the estate of Vincent Caliguire, from a judgment of involuntary dismissal entered at the close of plaintiff's case in the Superior Court, Law Division.
On May 2, 1963, plaintiff's son, Vincent Caliguire, age 12, was injured when he fell from a rope suspended from a tree on defendant's property on which he had been swinging. He died two days later as a result of injuries sustained in the fall.
*213 Plaintiff brought suit to recover damages for the personal injuries and wrongful death of his son. He charged that defendant was negligent in maintaining a dangerous condition on its property on which defendant knew or should have known children would be likely to trespass and that it permitted a rope attached to a tree to be used by children as a swing. Defendant denied it was negligent in the maintenance of its property and further denied all knowledge of the existence of the rope. It asserted as separate defenses (1) that the accident was caused by the act of a third party over which it had no control, (2) contributory negligence of the decedent, (3) that decedent was a trespasser, and (4) that it was absolved from liability under the doctrine of municipal immunity.
Defendant's property was an unimproved tract of land which it had acquired as the result of a tax foreclosure in 1952. It consisted of a steep slope or cliff located near the top of the Palisades which extended easterly down to Weehawken. Adjoining it on the west was a level tract of privately owned improved property known as the Abbey Inn site, about 90 to 100 feet in depth, which fronted on Mountain Road. Along most of the rear of the private tract was a wall, three feet in height and one and one-half feet in width, which marked the eastern boundary of the property. The Abbey Inn site was without trees or foliage, but the city property was covered with trees, boulders and heavy foliage, and the footing was dangerous.
The tree from which the rope was suspended was located 50 feet down the slope from the boundary wall. The rope was about seven or ten feet in length and the tree, which extended out on the side of the hill, was "somewhat taller." According to three children, who were playing with decedent on the slope and who witnessed the accident, the rope had been tied on the tree for a period of from two weeks to a month. None of the witnesses at the trial knew who placed the rope on the tree.
*214 The accident happened when Vincent took the rope in his hands and swung out over the slope. He apparently lost his grip on the rope, then fell 15 feet to the ground and rolled another 15 feet down the slope.
The evidence showed that the children had played there daily for months before the accident. They testified that whenever they were observed by the police on the city or Abbey Inn property they were chased away.
Gerald Cerulli, a police officer of Union City, was called as a witness for plaintiff. He testified that he had patrolled the Abbey Inn area by motorcycle or police car for five years before the accident; that he passed along Mountain Road at least three times a day, and made an observation over the rear wall every day. He said whenever he saw children either on the private property or the slope of the city property beyond the wall he would chase them away; that there was a "standing order" to do so. He said that there was heavy foliage on the city property down from the wall and that he had never observed the rope suspended from the tree nor had anyone informed him of its existence.
The trial judge granted defendant's motion to dismiss holding that proof of actual knowledge of the existence of the rope was essential to establish a prima facie case. This appeal followed.
Plaintiff contends that the question of knowledge by defendant of the dangerous condition existing on its land was a factual issue for determination by the jury and that the court erred in dismissing the action. He alleges the proofs showed that defendant knew that children played on its property and argues that defendant was liable for Vincent's death because (1) it knew that the natural condition of the land was inherently dangerous, (2) it had constructive knowledge of the existence of the rope suspended from the tree upon which children would swing, and (3) in any event, based on the evidence and the logical inferences to be drawn therefrom, the jury could have found that defendant had actual knowledge of the existence of the rope swing.
*215 The liability of a possessor of land for physical harm to children trespassing thereon is dealt with under the rule set forth in 2 Restatement, Torts, 2d, § 339, p. 197 (1965). It provides:
"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children. * * *"
Moreover, if an artificial condition exists upon the land, of which the landowner has knowledge, and which reasonable men may recognize as having propensities for causing an unreasonable risk of harm to an infant tresspasser, then it makes no difference whether the condition was created by third persons or the landowner himself. Simmel v. New Jersey Coop Co., 28 N.J. 1, 10 (1958).
We find no support for plaintiff's contention that defendant municipality can be held liable because it had knowledge that the natural condition of the land was inherently dangerous, i.e., that it was a dangerous cliff or slope. Our cases have not extended liability for injuries resulting from the maintenance of natural conditions on the land even though the accident would not have happened if the landowner had taken appropriate action to prevent the child who sustained injury from trespassing. Ostroski v. Mount Prospect Shop Rite, Inc., 94 N.J. Super. 374, 380 (App. Div. 1967). Moreover, it was the use of the rope as a swing by plaintiff's decedent, not the slope or cliff, which precipitated his fall.
Plaintiff also argues that defendant is liable because it had "constructive" or imputed knowledge of the existence of the rope swing. This is based on the testimony that the *216 rope had been suspended from the tree for a period of two weeks to a month before the accident happened. We conclude that this argument is without merit. In Simmel v. New Jersey Coop Co., supra, the court set aside a judgment in favor of an infant trespasser because the trial judge did not limit the issue for determination by the jury to actual knowledge by the owner of the dangerous condition on his land, but told the jury that knowledge could be imputed if the condition existed for an unreasonable length of time before the accident.
In Simmel the court stated that the landowner is not an insurer of the safety of an infant trespasser, that he has no duty to periodically inspect the premises in order to ascertain whether third persons, themselves trespassers, might have created dangerous artificial conditions thereon. The case holds that before a landowner can be held responsible he must have actual knowledge of the condition created by the third persons. That decision controls us here.
The burden of proving actual knowledge by defendant of the existence of the rope swing on its property before the accident occurred was on the plaintiff and the record reveals he produced no direct evidence of such knowledge. However, plaintiff contends that the question of whether defendant had actual knowledge of the rope swing should have been submitted to the jury. He cites Lorusso v. De Carlo, 48 N.J. Super. 112 (App. Div. 1957) in support of his position. That case is readily distinguishable on the facts. There a four-year old child, while trespassing on defendant's vacant lot, was burned by a fire caused by a third person who was burning papers on the lot. There was evidence that less than two weeks before the accident the defendant knew a third person was using his land for such purposes. The court held that such evidence presented a jury question as to whether the defendant should have anticipated an unreasonable risk of harm to trespassing children by fires set by the third person.
*217 At oral argument plaintiff also contended that he was not bound by the testimony of Officer Cerulli who testified that he never saw the rope when he made his daily inspection of the city property. He argues that Cerulli's testimony, though uncontroverted, was not conclusive because his credibility was in issue, and it therefore was a matter for the jury and not the trial judge to decide.
The resolution of the question of when it is for the jury alone to evaluate the credibility of a plaintiff and his witnesses and when it is within the province of the trial judge to do so was answered in Ferdinand v. Agricultural Ins. Co. of Watertown, New York, 22 N.J. 482 (1956). There the court stated:
"Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury. [Citations omitted] But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances, and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury." (22 N.J., at p. 494)
Here the issue was whether Cerulli, for the city, had actual knowledge prior to the accident of the presence of the rope. In his argument on the motion for dismissal, plaintiff's counsel initially stated:
"I do not say that there was actual notice but I do say that there was constructive notice. I can't say that the policeman [Cerulli] misrepresented that he never saw the rope."
He argued:
"[T]he jury can infer and draw the inference that having looked over the side of the cliff, having the fact that the tree was over seven feet tall, growing up, the fact that the wall was only three feet high and the rope was hanging from the tree; that, if he didn't see it, he should have seen it, your Honor.
*218 The Court: In other words, constructive notice.
Mr. Carluccio: Constructive notice. * * *"
Thereafter, plaintiff's counsel adopted the contention that the jury could have concluded from Cerulli's testimony that the city had actual notice of the presence of the rope.
Implicit in the granting of the motion for involuntary dismissal was the trial judge's conclusion that men of reason and fairness could not honestly differ in their appraisal of Cerulli's testimony that he had not observed the rope before the accident. His testimony was not necessarily at variance with the testimony of other witnesses who said that the rope had been suspended from the tree for a period of two weeks to a month. His attention was primarily directed to the possible presence of trespassers. For the most part Cerulli's observations were made either from the driveway of the old Abbey Inn property or from the public street (Mountain Road). The tree from which the rope hung was some 50 feet down the hill beyond the three-foot stone wall which was located 90 to 100 feet back from Mountain Road. The rope was described as hanging from a tree which grew out of the side of the cliff thus indicating that to an observer above it would have been difficult to see. Moreover, Cerulli's testimony that the city property from the stone wall down to Weehawken contained heavy foliage was not contradicted but was confirmed to some extent by testimony elicited on cross-examination of Martha Frueholz, one of the children who witnessed the accident.
Where, as here, the uncontradicted testimony of a witness is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, and no other ground exists for hesitating to accept it as the truth, we cannot conclude that the trial judge erred in doing so. The mere fact that Cerulli was a member of the police department did not compel submission of the issue of his credibility to the jury. There was no evidence that he had any personal interest in the result of the trial or *219 that he was in anyway responsible for the happening of the accident. There was no reason for him to commit perjury. He was called as a witness for the plaintiff and after he testified no attempt was made to contradict, impeach or neutralize his testimony. While, as plaintiff argues, he was not conclusively bound by Cerulli's testimony we believe the trial judge could properly accept it as factually true not because Cerulli was called as a witness by the plaintiff, but because it was the only testimony offered on the subject of defendant's knowledge of the rope swing on its property. We are satisfied that there was no error on the part of the trial judge in refusing to submit the issue of Cerulli's credibility to the jury.
In determining the propriety of the trial judge's action in granting defendant's motion for a judgment of involuntary dismissal we have accepted as true, as we must, all evidence which supports the plaintiff and have given him the benefit of all legitimate inferences which are to be drawn in his favor. Melone v. Jersey Central Power & Light Co., 18 N.J. 163, 170 (1955). From our careful review of the evidence we are convinced that fair minded men could not have determined that defendant had actual notice of the rope swing on its property, and accordingly, that the trial judge properly granted defendant's motion for an involuntary dismissal.
Affirmed.
CONFORD, S.J.A.D. (dissenting).
I am unable to agree with the court's conclusion that a jury question was not presented as to whether Officer Cerulli actually knew of the presence of the rope hanging from the tree at some time prior to the accident notwithstanding his denial that he ever saw it. I think a jury could reasonably have disbelieved him in the light of the evidence as to the surrounding circumstances. Plaintiff was of course entitled to the most favorable legitimate inferences from the proofs on the motion to dismiss. If Cerulli knew, his knowledge is imputable to defendant, *220 and it then became a jury issue as to whether the rope had "propensities for causing an unreasonable risk of harm to infant trespassers" and whether defendant acted with due prudence under the circumstances in not removing it. Simmel v. New Jersey Coop Co., 28 N.J. 1, 10 (1958).
The thick, manila rope, of a 7-10 foot length, and knotted at the end, was hanging there for a period of from two weeks to a month, and a group of children played on it almost every day after school and week-ends. The tree was only 50 feet below an elevated observation point from which the officer said he had been making daily surveillance down the slope long prior to the accident. He was under instructions to chase children off the hill for "safety" and other reasons. He stated he could see children down the hill unless they were hiding. Another witness also said the children could be seen down the hill from the wall on top. Cerulli said he frequently chased them away from the hillside during his tours of inspection. A child swinging from a rope suspended from a tree would, it may be inferred, be particularly noticeable at a distance of only 50 feet. And the attendant presence of a group of children in that setting could inferably be noticed by sound as well as sight.
Although the officer described the hill as having "heavy foliage," he did not relate that description to any particular time or date. Indeed, the accident having occurred on May 2, 1963, the period of daily observation during which the officer claims never to have seen the rope, although making regular inspection and observation in that direction, was substantially during the month of April. We may take judicial notice that arboreal foliage is sparse at that time of year and becomes copious only later in the Spring.
While one of the child witnesses for plaintiff on cross-examination answered "Yes" to the question, "Q. But this was in the Springtime when there were leaves on the trees?," the import of the question related to the time of the accident, May 2, not the preceding period of a month when the allegedly *221 fruitless observations were made. Moreover, there is a difference between "leaves on the trees" and "heavy foliage."
The officer might be deemed by the jury to have had some bias as to the issue tried, as the accident might have been thought to reflect a failure of the municipal "safety" policy with respect to local children playing in the area a policy which the officer had been delegated to enforce. Contrary to defendant's argument, the present-day view is that the plaintiff should not be conclusively bound by the testimony of an adverse party (or his representative) whom he has called as a witness. Becker v. Eisenstodt, 60 N.J. Super. 240, 248-249 (App. Div. 1960).
Applying the rule and language of Ferdinand v. Agricultural Ins. Co. of Watertown, New York, 22 N.J. 482, 494 (1956), I do not believe that Cerulli's denial of ever having seen the rope is so "clear and convincing," so free from contradiction "by witnesses or circumstances," and "so plain and complete that disbelief of [his] story could not reasonably arise in the rational process of an ordinarily intelligent mind."
It must be emphasized that the officer's denial of seeing the rope implies a denial of seeing any children playing on the rope, and this as against the clear and credible proof that the children played on the rope daily for somewhere between two weeks and a month prior to the accident and the officer's concession that he was making daily surveillance of the specific area during the same period.
There was therefore in my view a patent jury question as to whether defendant, through Officer Cerulli, knew prior to the accident of the condition which gave rise to this accident.
Defendant does not argue that any aspect of the rule of Simmel v. New Jersey Coop Co., supra, other than the question of knowledge by the landowner, precluded giving the case to the jury. As to the defendant's assertion of the defense of municipal tort liability, I believe this is dissipated *222 by the recent decision of the Supreme Court in B.W. King, Inc. v. Town of West New York, 49 N.J. 318, 326 (1967).
I would reverse. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3344508/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM OF DECISION RE: APPLICATION FOR PREJUDGMENT REMEDY
Hugh W. Levey and S. I. Video Management, Co., Inc. guaranteed the note which was part of the initial S. I. Transaction. The evidence shows that plaintiff did not discharge the guarantors from liability in connection with the initial note. The amount due is $1,013,926.00.
James B. Harvie III and Hugh W. Levey guaranteed the note which was part of the CEO Transaction. The evidence shows that the defendants impliedly authorized plaintiff to complete the instrument with respect to the commencement and maturity dates. This obligation was guaranteed by James B. Harvie III and Hugh W. Levey. The amount due on this obligation is $915,678.21.
The plaintiff has established probable cause to attach the property of Hugh W. Levey to the value of $2,000,000.00. The plaintiff has established probable cause to attach the property of James B. Harvie, III to the value of $1,000,000.00.
The following facts are significant with respect to the fraudulent conveyance claim: the short time span between the conveyance and the default on the guarantees; Mr. Levey's retention as trustee of legal title and control of the property; Mr. Levey's use and enjoyment of the property; the consideration recited in the deed, i.e. $10.00. The plaintiff has established probable cause to attach the property of the trust to the value of $2,000,000.00.
Prejudgment remedies of attachment shall issue in accordance with the proposed amended order for prejudgment remedy.
THIM, JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2460869/ | 253 P.3d 1079 (2011)
350 Or. 230
STATE
v.
LAI NGOC THACH.
(S059141).
Supreme Court of Oregon.
April 7, 2011.
Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646805/ | 429 So.2d 153 (1983)
CALCASIEU MARINE NATIONAL BANK OF LAKE CHARLES
v.
Carl MILLER.
No. 83-C-0201.
Supreme Court of Louisiana.
March 4, 1983.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2338674/ | 550 Pa. 312 (1998)
705 A.2d 837
COMMONWEALTH of Pennsylvania, Appellant,
v.
Daniel T. EVERETT, Appellee.
Supreme Court of Pennsylvania.
Argued December 12, 1996.
Decided January 9, 1998.
*313 Karen A. Diaz, Doylestown, Stephen B. Harris, Warrington, for appellant.
Erica Heide Keisling, Philadelphia, for appellee.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
*314 OPINION
ZAPPALA, Justice.
On February 25, 1994, Daniel Everett went to his wife's residence in Quakertown, in violation of a protection from abuse order, and gained entry by breaking off the doorknob. When she returned home, he shot her with a small caliber handgun then drove off in her car. Their twenty month old daughter was in the back seat of the car at the time. Later that evening Everett arrived at the state police barracks in Binghamton, New York, approximately 150 miles from Quakertown, and stated that he wanted to leave the child there. While in an interview room with one of the troopers, Everett removed a revolver from his waistband. Following a brief struggle, he was restrained and the gun was taken from him. He was returned to Pennsylvania after the police learned that he was wanted for the shooting.
Everett was charged with a dozen crimes including attempted murder and aggravated assault. The Commonwealth filed a notice of its intention to proceed under the mandatory sentencing provision of 42 Pa.C.S. § 9712. On July 13, 1994, Everett entered a guilty plea to all the charges. The court sentenced him to eight to twenty years imprisonment. Everett then sought reconsideration of the sentence, arguing that for sentencing purposes aggravated assault should have merged with attempted murder, resulting in a maximum sentence of five to ten years. The court denied reconsideration, but on appeal Superior Court entered a per curiam order reversing and remanding for resentencing "consistently with Commonwealth v. Anderson, [538 Pa. 574], 650 A.2d 20 (1994)."
We granted the Commonwealth's petition for allowance of appeal to determine whether the common pleas court could properly sentence on the aggravated assault charge rather than the attempted murder charge.[1]
*315 In Anderson, the defendant was sentenced to consecutive prison terms for attempted murder, aggravated assault, and possession of an instrument of crime. The issue on appeal was whether attempted murder and aggravated assault merged for sentencing purposes. We characterized the merger doctrine as depending on whether the crimes involved are greater and lesser included offenses; if so, the sentences merge, if not, merger is not required. We held that "the offense of aggravated assault is necessarily included within the offense of attempted murder; every element of aggravated assault is subsumed in the elements of attempted murder." 538 Pa. at 583, 650 A.2d at 24.
Although the original mandate in Anderson vacated the judgment of sentence for aggravated assault and remanded for resentencing, in the course of denying the Commonwealth's petition for reargument we modified this order, vacating the judgment of sentence on all charges and remanding for resentencing. 539 Pa. 476, 653 A.2d 615 (1994). We thus implicitly acknowledged that on remand the court had discretion to impose sentence on any of the charges so long as it did not impose separate sentences for aggravated assault and attempted murder.
Everett, however, argues that where offenses merge for sentencing purposes the court may not sentence on the lesser included offense but must sentence on the greater offense. We do not agree.
The terms "greater" and "lesser included" in the merger analysis refer to the logical relationship between elements of the offenses, not to the grading of the offenses or the punishments imposable. The offense that is more broadly defined is conceptualized as the greater offense and the offense whose elements are entirely subsumed is conceptualized as the lesser included offense. Where such a relationship exists, the merger doctrine requires that only one sentence *316 may be imposed, but it has nothing to say about which sentence that should be.
Superior Court has often stated that when crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greatest penalty. See Commonwealth v. O'Brien, 356 Pa.Super. 294, 514 A.2d 618 (1986); Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984); Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980). Although in most cases the "greater" offense for merger analysis will also be the offense carrying the greater penalty, this is not universally true. In Commonwealth v. Kozrad, 346 Pa.Super. 470, 499 A.2d 1096 (1985), the court applied this rule in affirming a judgment of sentence for homicide by vehicle while driving under the influence, a third degree felony with a mandatory minimum sentence of three years, while vacating the separate sentence imposed for the first degree misdemeanor of involuntary manslaughter.
The purpose of the merger doctrine is to determine whether the legislature intends that a single sentence should constitute all of the punishment for offenses that arise from the same criminal act or transaction. See Anderson, 538 Pa. at 577, 650 A.2d at 21. Indeed, in Anderson the doctrine was characterized as a rule of statutory construction designed for this purpose. Id.
The legislature designated aggravated assault under 18 Pa.C.S. § 2702(a)(1) as a first degree felony, thus punishable by up to twenty years imprisonment. It would be absurd to use the merger doctrine to find, contrary to this explicit expression of intent, that the legislature intended that a lesser maximum sentence of ten years imprisonment should control where the circumstances also make out the crime of attempted murder.
Because the common pleas court had discretion to sentence Everett on the aggravated assault charge rather than the attempted murder charge, the sentence of eight to twenty years imprisonment was neither illegal nor inconsistent with *317 Anderson. Accordingly, the Superior Court's order reversing and remanding for resentencing is vacated and the judgment of sentence is reinstated.
NIGRO, J., files a dissenting opinion.
NIGRO, Justice, dissenting.
I respectfully dissent from the majority's decision that the trial court has discretion to sentence a defendant for a lesser-included offense that merges with a greater offense for purposes of sentencing.
Twenty-five years ago, Former Chief Justice Nix aptly recognized the illogic of sentencing a defendant for a lesser offense that is an ingredient of a greater offense that he also committed. In Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973), the Court applied the merger doctrine where a defendant was convicted of simple assault and battery and the act of resisting arrest.[1] After finding that the crimes merged for sentencing purposes, the majority of the Court held that the defendant may only be sentenced on the simple assault and battery.
In a concurring and dissenting opinion, Justice Nix found that the majority improperly merged the greater offense resisting arrest into the lesser-included offense of simple assault and battery. He explained that the majority assumed that assault and battery was the greater offense because it had a greater penalty. Justice Nix stated that the test for merger is not a comparison of the penalties, but whether the lesser crime is a necessary ingredient of the greater crime. Since simple assault and battery was a necessary included element of resisting arrest, resisting arrest was the greater offense for which the defendant should have been sentenced. Justice Nix properly noted that in the unusual event that the lesser-included crime has the greater penalty, the error should *318 be remedied by the legislature not by treating the lesser offense as the greater.
The majority's decision in Nelson departs from other Supreme Court precedent. In an earlier merger case, the Court stated that "[i]t follows that the [defendant] having been sentenced for the most serious crime charged in the indictment could not also be sentenced for the lesser crimes which were only constituents of the major felony." Commonwealth v. Ashe, 340 Pa. 286, 289, 17 A.2d 190, 191 (1941)(emphasis added). More recently, in Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994), the Court defined the merger doctrine in terms of whether the crimes involved are greater and lesser-included offenses based upon whether the elements of one crime are components of another crime. However, since Nelson, the Superior Court has stated that when crimes merge, a defendant may be sentenced for the crime carrying the greater penalty. See, e.g., Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980)(relying upon Nelson).
The legislature has done exactly as Justice Nix suggested with respect to sentencing for aggravated assault and attempted murder. As the majority recognizes, the legislature amended the statute related to attempted murder. It is no longer graded as a second-degree felony with a lesser sentence than aggravated assault. See 18 Pa. Cons.Stat. §§ 1102, 1103 (stating sentences for attempted murder and felonies). In cases such as the present, where the amended statute does not apply, the Court should not treat the lesser-included offense as the greater offense. The defendant should only be sentenced for attempted murder and not aggravated assault.
NOTES
[1] At the time this case arose attempted murder was graded as a second degree felony. The legislature has since amended 18 Pa.C.S. § 905 to provide that in all cases, "[e]xcept as otherwise provided in this title, attempt, solicitation and conspiracy are crimes of the same degree as the most serious offense which is attempted or solicited or is an object of the conspiracy." Act 1995-3 (Special Session No. 1), § 1.
[1] When Nelson was decided, simple assault and battery was defined at 18 Pa. Stat. § 4708 and resisting arrest was defined at 18 Pa. Stat. § 4314. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858045/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-233-CV
GENNARO MATTIACCIO,
APPELLANT
vs.
DEBRA LYNN MATTIACCIO,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 125,945-D, HONORABLE WILLIAM C. BLACK, JUDGE PRESIDING
In its decree of divorce, the trial court dissolved the marriage of Gennaro and
Debra Lynn Mattiaccio, divided their property, and appointed Debra managing conservator of the
parties' three children. Gennaro appeals, complaining of that part of the decree appointing Debra
managing conservator. We will affirm the decree.
THE CONTROVERSY
In September 1989, Gennaro filed an original petition for divorce, praying among
other things that Debra be appointed managing conservator of the children. In November 1989,
Debra filed an original answer consisting solely of a general denial and a claim for attorney's fees.
In April 1990, however, Debra filed in the cause her own petition for divorce. She prayed therein
that she be appointed managing conservator of the children.
On January 17, 1991, the parties appeared and announced ready for trial. Gennaro
asked that the court allow him to amend his original petition, his only pleading in the cause,
apparently to delete his prayer that Debra be appointed managing conservator and to substitute his
own claim in that regard. The trial court denied Gennaro leave to amend his pleading, and in the
court's divorce decree appointed Debra managing conservator and Gennaro possessory
conservator of the children.
On appeal, Gennaro complains in two points of error that (1) the trial court
erroneously declined to allow him to amend his pleading and (2) the trial court erroneously
overruled his motion for new trial. We will discuss in order the two points of error.
MOTION FOR LEAVE TO FILE TRIAL AMENDMENT
The statement of facts reveals that Gennaro's attorney vocally requested leave to
amend his pleadings after announcing ready for trial but before any evidence was introduced.
Debra's attorney objected on the ground that "custody is not an issue" insofar as he was aware.
Gennaro's attorney explained that Gennaro had wanted to contest the child-custody issue since the
middle of December, and the attorney had not theretofore amended his pleading because he
thought he had an agreement with opposing counsel that custody would be contested, or at least
he had believed opposing counsel understood that to be the case. The foregoing was developed
by questions asked by the trial court of the parties' attorneys. The trial court overruled Gennaro's
motion for leave to amend his pleading.
Gennaro carries on appeal the burden of showing that the trial court abused its
discretion in refusing leave to amend the pleading. See Yowell v. Piper Aircraft Co., 703 S.W.2d
630, 634 (Tex. 1986); see also Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980) (when a trial
court refuses leave to file an amendment which would introduce new substantive matter, the
burden of showing abuse of discretion rests upon the complaining party). We may not reverse
the trial court's decision under an abuse-of-discretion standard unless the trial court misapplied
the law to the facts. Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 936 (Tex. App. 1987,
no writ).
Texas Rule of Civil Procedure 66 governs the amendment of pleadings during a
trial. It provides:
[I]f during the trial any defect, fault or omission in a pleading, either of form or
substance, is called to the attention of the court, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the merits of the
action will be subserved thereby and the objecting party fails to satisfy the court
that the allowance of such amendment would prejudice him in maintaining his
action or defense upon the merits.
Tex. R. Civ. P. Ann. 66 (Supp. 1991). Rule 63 also provides that a party may amend his or her
pleadings within seven days of trial upon leave of the court, and that "leave shall be granted by
the judge unless there is a showing that such filing will operate as a surprise to the opposite
party." Tex. R. Civ. P. Ann. 63 (Supp. 1991).
The supreme court interprets these rules to mean that a trial court's refusal of leave
to amend is an abuse of discretion unless (1) the opposing party presents evidence of surprise or
prejudice, or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial
on its face, and the opposing party objects to the amendment. Greenhalgh v. Service Lloyds Ins.
Co., 787 S.W.2d 938, 939 (Tex. 1990). The record does not contain an explicit showing of
surprise on Debra's part. The parties' pleadings, however, had theretofore been in exact
agreement in praying that Debra be appointed managing conservator of their children. That is a
matter of relief incident to every divorce suit where the parties have children; indeed, it is part
of a separate "suit" within the divorce suit. See Tex. Fam. Code Ann. § 3.55(b) (1975). We
believe, therefore, that Gennaro's proposed amendment asserted the divorce-suit equivalent of "a
new cause of action or defense" so as to be prejudicial on its face, and the trial court could
properly reject the amendment when Debra objected.
Moreover, Gennaro adduced no evidence at all in support of his motion. He did
not supply the trial court with any evidence of an agreement in writing between the attorneys, and
the subjective belief of Gennaro's attorney would appear to be immaterial. See Tex. R. Civ. P.
Ann. 11 (Supp. 1991). The Supreme Court of Texas has explicitly approved language imposing
a burden to adduce evidence on the party complaining of the denial of leave to file a trial
amendment:
The [complaining party] assumes the burden on appeal to show that the trial court
abused its discretion in not permitting the pleadings to be amended. The mere fact
that the court refused to permit [a party] to amend is not alone sufficient. . . .
[T]his showing could have been made by a bill of exception, or other appropriate
means, to become a part of the record on appeal. In the absence of showing of the
facts attending the presentation of the [motion] and action of the trial court in
refusing to allow the amendment, this Court will presume that the trial court did
not abuse its discretion.
State v. Gilbreth, 511 S.W.2d 556, 560 (Tex. Civ. App. 1974, writ ref'd) (emphasis added).
At the time a ruling was required on Gennaro's request for leave to amend his
pleading, the trial court had before it no evidence or other basis that would have justified granting
that request over Debra's objection. (1)
We hold, therefore, that the trial court did not abuse its
discretion. Gilbreth, 511 S.W.2d at 560. We overrule the first point of error.
MOTION FOR NEW TRIAL
Although the trial court denied Gennaro leave to amend his pleadings, the court did
allow Gennaro to testify about incidents bearing upon Debra's fitness to be managing conservator
of the children. Over Debra's objection, Gennaro testified that on two occasions the youngest
child (age three) had mounted the railing of a balcony of Debra's third-floor apartment, "and was
teetering her weight on the railing." Gennaro testified he "was concerned about that because it
indicated to me that there was a lack of supervision on the part of Debra," who was present in the
apartment when the incident allegedly occurred. On another occasion, Gennaro testified, Debra
left the children alone all day and the son (age eight) had picked up the three-year-old daughter
and dropped her, injuring her arm, while Debra was away. The baby was taken to the hospital,
and as a result of Gennaro's complaint the matter was turned over to "social services."
According to Gennaro's testimony, the incidents described above occurred after he
filed in 1989 his original petition for divorce; and they made him "question whether or not they
[sic] would adequately safeguard the children, protect the children." As a result, Gennaro did not
"feel that it's in the children's best interest that [Debra] be appointed as their managing
conservator."
In her testimony during trial, Debra stated that, to her knowledge, the two episodes
relating to the railing never occurred. Concerning the second incident, she stated that she took the
child to the hospital as a precaution, but there was to her knowledge no permanent injury; she was
away from the home for only an hour and forty-five minutes; and it was an error in judgment to
leave the children alone, but it was not a routine occurrence.
The statement of facts also indicates that Debra served Gennaro written
interrogatories and that his sworn replies were admitted in evidence. Apparently, they relate in
some manner to child custody but are not included in the appellate record.
Based evidently on the foregoing evidence, and perhaps upon Gennaro's admitted
adultery upon which the divorce was granted, the trial court appointed Debra managing
conservator. (2) Gennaro moved for a new trial. At a hearing on the motion, the parties appeared
only through their attorneys and the only evidence adduced was Gennaro's deposition testimony.
At the conclusion of the hearing, the trial court overruled Gennaro's motion for new trial.
On appeal, Gennaro complains in his second point of error that the trial court
abused its discretion in refusing to grant a new trial, arguing that this action effectively denied him
an opportunity to litigate "custody" when coupled with the trial court's refusal to allow him to
amend his pleading on the day of trial. No such ground appears in Gennaro's motion for new
trial. We shall, however, consider those alleged grounds that might pertain to Gennaro's
argument.
First, Gennaro averred in his motion for new trial that he had "obtained newly
discovered evidence which is material to this case." This appears to refer to the following
testimony read into evidence, at the hearing, from a transcript of Gennaro's post-trial deposition:
1. After the trial, the parties' oldest child, Tiffany, age ten, "reported to me that
[Debra] had attempted to commit suicide in her presence utilizing [Gennaro's] government-issued
firearm." Gennaro recalled the event "because I approached [Debra] and I had taken the gun from
her, and this was after she had gone in to [see] two CID special agents here at Fort Hood and
acknowledged the fact that she intended to commit suicide."
2. If given the opportunity to present evidence, Gennaro would be able to present
testimony of witnesses regarding the foregoing.
3. After the trial on January 17, 1991, Gennaro learned from social-service records
in an army hospital in Germany that Debra had "some problems."
The trial court first overruled Debra's hearsay objection to the foregoing deposition
evidence, then subsequently declared that the court "will sustain but I'll allow it to be made part
of the record in this case for the purposes of the appeal." We will consider the evidence as being
introduced and before the court for all purposes at the time the court overruled Gennaro's motion
for new trial.
Gennaro was obliged to satisfy the trial court that (1) the new evidence had come
to his knowledge after the trial; (2) his want of diligence did not prevent his learning of it sooner;
(3) it is not cumulative of other evidence; and (4) it is so material that it would probably produce
a different result if a new trial is granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex.
1983).
Gennaro claimed in his testimony that he learned of only two items after the trial
on January 17, 1990: (1) that social-service records at an army hospital in Germany indicated
Debra had "some problems"; and (2) that Tiffany had witnessed Debra's alleged suicide attempt.
Concerning the information contained in the social-service records, we hold this
evidence to be entirely without weight because nothing in the evidence indicates what the
"problems" were or what else the records contained. Concerning the claim that Tiffany witnessed
Debra's suicide attempt, we hold the trial court might reasonably have rejected it on credibility
grounds alone. We should explain.
The alleged suicide attempt occurred, according to Gennaro's testimony, at Fort
Hood, Texas, as did the alleged incident where Debra declared to two CID special agents that she
intended to commit suicide. Gennaro knew of the alleged suicide attempt because he testified that
he took the firearm from Debra to prevent the suicide. The parties moved to Germany sometime
before September 1989, when Gennaro initiated the present cause by filing a petition for divorce.
He prayed therein that Debra be appointed managing conservator, notwithstanding his knowledge
of Debra's alleged suicidal tendency. He maintained this position, according to his testimony at
trial, until he first learned in the summer of 1990 of the "railing" incidents and Debra's conduct
in leaving the children alone for a period, during which the son dropped the youngest daughter.
It was on these grounds that he asked his attorney, in December 1990, to put the matter of child
"custody" in issue, according to his testimony at trial. Yet in Gennaro's post-trial testimony, he
did not attempt to explain why his knowledge of Debra's suicidal tendency did not enter into his
decision, even though on its face it would appear to be a much more serious matter than the later
incidents in Germany regarding the children. We believe, therefore, that the trial court could
reasonably conclude that the purported "new evidence" regarding the fact that Tiffany had seen
the alleged suicide attempt was not "new" at all, in the sense that it was first discovered after trial.
We hasten to add that Tiffany herself did not testify that she saw the alleged suicide attempt.
Gennaro testified only that Tiffany told him after the trial that she had seen the event, and our
reference to credibility is directed only at his testimony in that respect.
We note as well that Gennaro had an obligation to show that his want of diligence
did not prevent his learning earlier that Tiffany had witnessed the alleged suicide attempt. He
did not do so. Nor did he make any showing that the evidence was so material that it would
probably produce a different result if a new trial were granted. See Jackson, 660 S.W.2d at 809.
Gennaro also averred in his motion for new trial that the court's refusal to interview
Tiffany, on Gennaro's motion, was error because Tex. Fam. Code Ann. § 14.07 (Supp. 1991)
was "mandatory" in that regard. Tiffany was ten years of age at the time of trial. The statute is
not "mandatory" concerning such children; rather, it vests the trial court with "discretion" in the
matter when the child is younger than twelve years of age. Gennaro suggests on appeal no basis
upon which the court's refusal in this instance was an abuse of discretion. Perhaps Gennaro
intends to suggest that the trial court would have learned by an interview of Tiffany that she saw
Debra attempt suicide, but this is speculation based upon the assumed truth of Gennaro's
testimony that the child related the purported fact to Gennaro after trial.
In his third ground for new trial, Gennaro contended the evidence was insufficient
to support Debra's appointment as managing conservator. No evidence was required in that
regard, for without an amendment of Gennaro's pleadings the matter was undisputed and both
parties prayed for her appointment.
Debra propounded certain requests for admissions to Gennaro regarding his
relationship with a woman named Sydney Riffle, but his replies to those requests were never filed
with the trial court. See Tex. R. Civ. P. Ann. 169(1) (Supp. 1991) (requiring requests for
admissions and their answers to be filed in the clerk's office). In the fourth ground set out in his
motion for new trial, Gennaro assails the trial court's ruling that deemed the requests admitted.
He argues that he answered the requests and sent a copy to Debra's attorney, but because of his
attorney's error the answers were never filed with the court. Gennaro says this error harmed him.
We disagree. Debra testified that Gennaro told her he had committed adultery with Riffle.
Gennaro never denied this relationship; in fact, he admitted that Riffle stayed with him during a
visit she made to Germany. We believe the answers to the requests for admissions were merely
cumulative of the parties' testimony and therefore caused no harm to Gennaro.
Every reasonable presumption will be made on review in favor of an order of the
trial court refusing a new trial. Jackson, 660 S.W.2d at 809-10. We hold the trial court did not
abuse its discretion in denying the motion for new trial. Gennaro's second point of error is
overruled.
Finding no error in the judgment of the trial court, we affirm the judgment in all
respects.
John Powers, Justice
[Before Justices Powers, Jones and B. A. Smith]
Affirmed
Filed: January 22, 1992
[Do Not Publish]
1. 1 We should add that in the course of the trial that followed, Gennaro did supply testimony
concerning why he changed his mind and decided to contest the issue of "custody," although
he did not explain why he did not amend his pleading after the middle of December. We will
discuss this testimony below in connection with Gennaro's second point of error. It was not
before the trial court when it ruled on Gennaro's request to amend his pleading, and the record
does not indicate that Gennaro ever made a second request to amend his pleadings.
2. 2 Gennaro requested findings of fact and conclusions of law, but did so outside the twenty-day limit established by Rule 296. See Tex. R. Civ. P. Ann. 296 (Supp. 1991). Debra
objected to this request and the trial court never filed any findings of fact or conclusions of
law. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3073154/ | The State of TexasAppellee
Fourth Court of Appeals
San Antonio, Texas
July 30, 2015
No. 04-14-00801-CR
Jason MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2012CR8235
Honorable Philip A. Kazen, Jr., Judge Presiding
ORDER
We reinstate this appeal on the active docket of the court.
_________________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 30th day of July, 2015.
___________________________________
Keith E. Hottle
Clerk of Court | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2330110/ | 87 N.J. Super. 480 (1965)
210 A.2d 74
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAN COLWELL HALL, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued April 12, 1965.
Decided May 4, 1965.
*481 Before Judges GOLDMANN, SULLIVAN and LABRECQUE.
Mr. Arthur J. Lesemann argued the cause for appellant (Mr. Benedict E. Lucchi, attorney; Messrs. Greenstone, Mazer & Lesemann, of counsel).
Mr. Carlos Peay, Jr., legal assistant, argued the cause for respondent (Mr. Guy W. Calissi, Bergen County Prosecutor, attorney).
The opinion of the court was delivered by SULLIVAN, J.A.D.
Defendant was convicted of seduction under N.J.S. 2A:142-2 which provides:
*482 "Any single man over the age of 18 years who, under promise of marriage, has sexual intercourse with a single female of good repute for chastity, under the age of 21 years, she thereby becoming pregnant, is guilty of a high misdemeanor.
If the offender marries the female at any time before sentence, the sentence shall be suspended and he shall be discharged from custody; and if he marries the female after sentence, he shall be discharged from imprisonment."
It is unnecessary to set forth the details of the unhappy affair except to note that it is not disputed that the prosecutrix was under the age of 21 years, defendant had sexual intercourse with her on the date alleged, and she became pregnant.
At his trial defendant denied that he had promised to marry the prosecutrix or that he had sexual intercourse with her under promise of marriage. Nor would he admit that he was the father of the child born to the prosecutrix, although he admitted the truth of prosecutrix's story that he had intercourse with her on the day the child was allegedly conceived.
The jury returned a verdict of "guilty as charged" and defendant received a sentence of four to six years in State Prison. Judgment of conviction was duly entered. Defendant has appealed from said judgment. During the pendency of the appeal the prosecutrix married another man. Defendant, pursuant to leave granted by this court, thereupon moved before the trial court for an order discharging him from the sentence of imprisonment. (Actually, defendant had been admitted to bail, which has been continued pending appeal.) The matter was heard by a judge other than the trial judge and defendant's motion was denied in an opinion reported at 85 N.J. Super. 312 (Cty. Ct. 1964). Defendant has also appealed this ruling. Both appeals have been consolidated.
The appeals present six arguments for reversal: (1) the State failed to prove an essential element of the crime, namely, that the alleged promise of marriage was the inducing cause of prosecutrix's engaging in sexual intercourse with defendant; (2) the trial court failed to properly charge the jury as to that essential element of the crime charged; (3) the trial court rejected defendant's attempt to show that *483 the alleged promise of marriage was not the inducing cause of prosecutrix's engaging in sexual intercourse; (4) defendant's motion for a post-trial examination of two jurors should have been granted; (5) the sentence imposed on defendant of four to six years in State Prison is manifestly excessive, and (6) the trial court should have granted defendant's motion to be discharged from imprisonment by reason of the marriage of the prosecutrix.
We have canvassed the entire record and conclude that the State produced adequate evidence from which the jury could have found beyond a reasonable doubt that defendant had promised to marry the prosecutrix and that such promise was the inducing cause of her engaging in sexual intercourse with him. So, too, we find in the court's charge adequate instructions that such inducement was an essential element of the crime. Nor do we see any merit to the contention that the trial court rejected defendant's attempt to show that the promise of marriage was not the inducing cause of prosecutrix's engaging in intercourse with defendant. The questions asked of prosecutrix on cross-examination by defendant's attorney were not relevant or material to the question of inducement and the court properly limited counsel.
Defendant's motion for a post-trial examination of two jurors was based on an affidavit of a member of the bar of this State, stating that:
"I was in the Crest Restaurant when two of the members of the jury in the case of State v. Jan Hall came into the restaurant subsequent to the return of the verdict. They proceeded to discuss the deliberations that took place among the various jurors. They stated that the jury in fact failed to deliberate, but that immediately upon entering the jury room 10 of the jurors stated that the defendant was guilty and refused to consider the matter any further. Under the circumstances they felt compelled, against their wishes, to agree with the remainder of the jurors."
At the hearing on the motion counsel for defendant argued that the affidavit showed that the jury had failed to deliberate. However, the trial judge noted that "the jury was out at *484 least two hours, if I recall correctly." The motion was denied on the ground that no basis for an examination of the jurors or investigation of the verdict had been shown. We agree. There is a sound public policy behind the rule that a jury's deliberations are protected against indiscriminate and unwarranted investigation and disclosure. Cf. R.R. 1:25A. In State v. LaFera, 42 N.J. 97 (1964), the Supreme Court restated the reasons underlying the traditional secrecy afforded jury deliberations:
"A jury deliberates in secrecy to encourage each juror to state his thoughts, good and bad, so that they may be talked out. `Freedom of debate might be stifled and independence of thought checked if jurors were made to feel that their arguments and ballots were to be freely published to the world.' Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L.Ed. 993, 999 (1932). Some will recall the furor a few years ago when a jury's deliberations were secretly recorded, notwithstanding that the recording was made in a controlled study and the anonymity of the individual juror was completely assured. Ferguson, `Legal Research on Trial,' 39 J. Am. Jud. Soc'y 78 (1955).
For the juror's individual protection, the law raises a privilege against disclosure of his communications during deliberations, a privilege which will yield only to some greater public need. 8 Wigmore, Evidence (McNaughton rev. 1961) § 2346, p. 678; Clark v. United States, supra (289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993). It is true that no settled rule bars extrajudicial, post-trial disclosures by a juror of his own views even though in cases of public interest the trial judge not infrequently cautions against such disclosures. Yet one of twelve may not be able to disclose his own part without revealing something the other jurors are entitled to have protected. Moreover the public too has a stake in the promise of secrecy to insure free debate in cases to come. In these circumstances it is appropriate to protect all the jurors against efforts of others to browse among their thoughts in search of something to invalidate their verdict." (42 N.J., at pp. 106-107)
See also State v. Kociolek, 20 N.J. 92 (1955). No good cause for examination of the jurors was shown.
Next, defendant argues that the sentence of four to six years in State Prison is manifestly excessive and should be revised. See State v. Johnson, 67 N.J. Super. 414 (App. Div. 1961). The defendant was just 21 years of age when he was sentenced and had no prior criminal record. His presentence *485 report contains nothing unfavorable or detrimental. True, seduction is a high misdemeanor. However, the thrust of the statute is to compel a man to carry out his promise of marriage, if the girl will have him, and to legitimize the issue born of the relationship. We recognize that when defendant was sentenced, he had refused to marry the prosecutrix or to acknowledge the paternity of the child. However, pending appeal prosecutrix has married another man and we cannot be unmindful of this fact even though it took place after sentence was imposed. Actually, defendant would have 20 days from the issuance of the mandate by this court to apply to the trial court for a reduction or change of sentence. R.R. 3:7-13(a). All things considered, we conclude that the sentence should be revised. We hereby vacate it and sentence defendant to a term of one year in the Bergen County Penitentiary, service of said sentence to be suspended and defendant placed on probation for a period of two years. State v. Johnson, supra.
Defendant's final contention, that he be discharged from the sentence of imprisonment by reason of prosecutrix's marriage to another man, no longer requires our consideration in view of the suspended sentence imposed on defendant.
The judgment herein is modified as heretofore indicated, and as modified is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919691/ | 660 So. 2d 1005 (1995)
Carol GILCHRIST
v.
Tim GILCHRIST.
2940293.
Court of Civil Appeals of Alabama.
May 12, 1995.
James V. Green, Jr. of Tucker, Davenport, Green & Willingham, Birmingham, for appellant.
R. Wyatt Howell of Green, Wood & Howell, Hamilton, for appellee.
*1006 RICHARD L. HOLMES, Retired Appellate Judge.
This is a divorce case.
Carol Gilchrist (wife) and Tim Gilchrist (husband) were married in July 1992 and separated in May 1994. One child was born of the marriage in February 1994.
The wife filed a complaint for divorce in June 1994, wherein she requested that custody of the minor child be awarded to her. The husband filed an answer and a counter-complaint, wherein he requested that the trial court award joint custody of the minor child to the parties.
After a hearing the trial court issued its final decree. The trial court found that both the husband and the wife were "fit, suitable, and capable parents for the minor child of the parties." The trial court awarded joint custody of the minor child to the parties. The wife was awarded primary physical custody of the minor child, with liberal visitation rights vested in the husband. The trial court also ordered the husband to pay child support in the amount of $338 per month.
The wife appeals.
In her first issue the wife contends that the trial court committed reversible error because, she says, the amount of child support that the husband was ordered to pay was not determined in accordance with the child support guidelines of Rule 32, Ala.R.Jud.Admin.
The final decree issued by the trial court provided, in pertinent part:
"4. The court has imputed income to the [wife] in the amount of twelve dollars ($12.00) per hour based on the expectation that she will pass the state boards and gain full-time employment as a registered nurse. The [husband] shall pay to the [wife] the sum of three hundred and thirty eight ($338.00) per month [for] child support commencing December 1, 1994, said award is in substantial compliance with Rule 32, A.R.J.A....."
Our review of the record reveals the following pertinent facts: During most of the marriage the wife was attending nursing school. The wife finished the RN program at nursing school on May 13, 1994, and took her state boards in July 1994. Unfortunately, she did not pass her state boards. At the time of the trial in November 1994, she was planning to take the state boards again and was waiting to receive an authorization number in order to schedule a date to retake her state boards.
At the time of the trial, the wife was employed at the Marion County Nursing Home, earning $5.17 per hour. In her child support obligation income affidavit, the wife stated that her monthly income was $896.
When questioned at trial about the earning potential of a RN, the wife testified that she expected to earn around $10 per hour, but that the salary range could be anywhere from $8 to $24 per hour, depending upon where you were working and what you were doing.
The trial court prepared two child support guideline forms. One form was prepared using the wife's actual monthly income of $896. This form determines that the husband's monthly child support obligation would be $445.63.
The second form was prepared with the trial court's imputing the wife's monthly income at $2,064. The trial court indicated on the form that this amount was derived by imputing an income of $12 per hour to the wife, based on the expectation that the wife would pass the state boards and gain full-time employment as a registered nurse. This form indicates that the husband's monthly child support obligation would be $338.40. As noted above, the trial court ordered the husband to pay the sum of $338 per month for child support.
Rule 32(B)(5), Ala.R.Jud.Admin., provides, in pertinent part:
"If the court finds that either parent is voluntarily unemployed or underemployed, it shall estimate the income that parent would otherwise have and shall impute to that parent that income; the court shall calculate child support based on that parent's imputed income."
(Emphasis added.)
In Winfrey v. Winfrey, 602 So. 2d 904, 905 (Ala.Civ.App.1992), this court made the following *1007 statement concerning the language of Rule 32(B)(5):
"The key word here is `Voluntarily.' The trial court must initially determine that the spouse is `voluntarily' unemployed or underemployed before it may impute income to that spouse. The determination is to be made from the facts presented according to the judicial discretion of the trial court."
(Citations omitted.)
As noted above, the wife has not yet passed her state boards. Under the facts of this case, clearly, the wife is not unemployed and she is not "voluntarily" underemployed. For this court to find otherwise would require speculation as to the amount of income the wife may earn after she passes the state boards. If the wife does obtain employment with additional income, modification of the amount of child support may be available.
The judgment of the trial court relating to the amount of child support is reversed and the cause remanded to the trial court to calculate the child support obligation in accordance with Rule 32, Ala.R.Jud.Admin.
In her second issue the wife contends that the trial court abused its discretion when it granted visitation to the husband in the following manner:
"a) Each Tuesday from 3:00 p.m. until Wednesday at 4:00 p.m.
"b) Each Saturday from 3:00 p.m. until Sunday at 4:00 p.m.
"c) Each Thursday from 3:00 p.m. until 8:00 p.m."
The remainder of the visitation schedule dealt with holidays and other special occasions.
The wife contends that the trial court erred when it established mid-week, overnight visitation for the husband. The wife also argues that this visitation schedule creates a fragmented and fractured lifestyle for the minor child and is not in the best interests of the minor child.
We would note that the paragraph in the final decree which established the visitation schedule contained the following statement:
"The court further finds that [the minor child], date of birth being February 11, 1994, is entering the stage of life where relationships are developed and molded, and it is the court's desire to give both the [wife] and [the husband] ample opportunity during the child's development to each form a healthy bond with the minor child."
We would also note that the visitation schedule established in the final decree is similar to the visitation schedule which had been established by the trial court in its temporary order of June 20, 1994, and followed by the parties.
It is well settled that the trial court is afforded broad discretion when establishing visitation rights. Fanning v. Fanning, 504 So. 2d 737 (Ala.Civ.App.1987). The primary consideration when establishing visitation rights is to determine what would be in the child's best interests and welfare. Consequently, each case should be decided in light of its facts and circumstances. Fanning, 504 So. 2d 737.
In the present case, because the trial court observed the parties and listened to their testimony prior to establishing the visitation schedule, it was in a better position to safeguard the minor child's best interests and welfare. Black v. Black, 625 So. 2d 450 (Ala. Civ.App.1993). We would also note that the evidence is overwhelming that the husband is devoted to the minor child. In light of the above, that portion of the trial court's judgment which deals with visitation is affirmed.
The judgment of the trial court is affirmed in part, reversed in part, and remanded.
The foregoing opinion was prepared by Retired Appellate Judge RICHARD L. HOLMES while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919707/ | 660 So. 2d 1363 (1995)
Joseph Robert SPAZIANO, Appellant,
v.
STATE of Florida, Appellee.
No. 67929.
Supreme Court of Florida.
September 8, 1995.
As Modified September 12, 1995.
*1364 Michael A. Mello, South Royalton, VT, for appellant.
Robert A. Butterworth, Attorney General and Margene A. Roper, Assistant Attorney General, Daytona Beach, for appellee.
PER CURIAM.
Joseph Robert Spaziano, through his counsel Michael A. Mello, has filed multiple motions and documents following the Governor's signing of a fifth death warrant for Spaziano on August 4, 1995. The motions fall into five distinct categories: (1) two motions for rehearing; (2) four motions to supplement the record; (3) two motions addressing actions by the office of the attorney general; (4) two motions relating to Mello's representation of Spaziano; and (5) one catch-all motion concerning Spaziano's rights.
The two principal motions are (1) an out-of-time motion for rehearing of a previous Florida Rule of Criminal Procedure 3.850 motion, which was denied in the circuit court in 1985 and affirmed by this Court in 1986; and (2) an out-of-time motion for rehearing of the direct appeal and judgment on the sufficiency of the evidence. To further these two motions, Mello filed four additional motions to supplement the record, including: (a) motion to supplement the record to include a videotape; (b) motion to supplement the record to include recent media coverage of this case; (c) motion to supplement the record with media coverage of the Florida Department of Law Enforcement investigation; and (d) motion to supplement the record with an unofficial transcript of the Florida Department of Law Enforcement's interrogation of Anthony DiLisio. Subsequent to oral argument, Mello filed an affidavit executed under oath by Anthony Frank DiLisio, a primary witness for the prosecution, which states:
KNOW ALL MEN BY THESE PRESENTS, that I, Anthony Frank DiLisio, of ... Pensacola, Florida 32534, do make, publish and declare freely, under penalty of perjury, this statement that I never under any circumstances went to the dump sight [sic] with Joseph Spaziano. I went there in the company of law enforcement investigators and only in the company of law enforcement investigators.
At trial, DiLisio testified that Spaziano took him to a dump and showed him the bodies of two females, and explained the specific route that Spaziano and DeLisio took to the dump.
In the aggregate, the motions filed seek to open by rehearing an appeal that was finalized more than thirteen years ago and a postconviction proceeding that was terminated with a denial of rehearing more than nine years ago.
*1365 Counsel has stated that the motions he has filed are not authorized in our present legal process. He states:
Undersigned counsel candidly concedes that a plethora of procedural preclusions articulated by this court bar this instant action. As a motion [for] rehearing of an opinion by this court rendered in 1986, this motion is obviously untimely. Treated as a new claim for postconviction relief, this action is barred by the one year time limit on Rule 3.851 motions. There are claim and issue preclusion barriers, because all of the legal issues raised in this motion have been raised by Mr. Spaziano in the past; there has been no intervening change in law; there have been new facts recently discovered, but they may not be of the magnitude necessary, under this court's [precedents], to secure review. Finally, retroactivity principles bar this court from treating several aspects raised by Mr. Spaziano as issues cognizable at this time.
There are methods for the court to consider both newly discovered evidence and recanted testimony under procedures we have established in this State. With regard to newly discovered evidence, we recently broadened the test to allow a new trial when evidence would "probably" affect the verdict rather than requiring that it must "conclusively" affect the verdict. Jones v. State, 591 So. 2d 911 (Fla. 1991). With regard to the issue of recanted testimony, we have set out the standards for this type of situation in our recent decision in Armstrong v. State, 642 So. 2d 730 (Fla. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1799, 131 L. Ed. 2d 726 (1995).[1] Spaziano has been before this Court on seven prior occasions;[2] he has been before the United States District Court[3] and before the United States Court of Appeals,[4] which wrote an extensive opinion examining the twenty-three issues raised before the United States District Court. The United States Supreme Court has considered his case on the merits[5] and has denied petitions for writs of certiorari on three occasions.
The motions for rehearing filed in this cause are clearly not authorized. However, consistent with our constitutional responsibility to refrain from dismissing a cause solely because an improper remedy has been sought, we have considered the contents of these motions and the recently filed supplemental affidavit to determine whether they have any basis for relief under our jurisdiction. Under the unique circumstances of this cause, we conclude that these two out-of-time motions for rehearing, together with the supplemental affidavit of Anthony DiLisio, should be treated as a successive Rules of Criminal Procedure 3.850-3.851 motion based only on the newly discovered *1366 evidence of the recantation of the testimony of a significant witness, and the motion must be remanded to the Circuit Court of the Eighteenth Judicial Circuit for consideration of that issue. Given this finding, we conclude that the State should be allowed to respond to this narrow issue by 5 p.m. on Wednesday, September 13, 1995. Further, the trial judge to whom this cause is assigned is directed to hold an evidentiary hearing on the issue of the recanted testimony as newly discovered evidence no later than Friday, September 15, 1995. We decline at this time to grant a stay of execution, but allow the trial court an opportunity to address that issue.
We further find that the motions to supplement the record with newspaper articles are clearly unauthorized and improper, and they are all stricken from the record in this proceeding.
Further, Spaziano has moved to disqualify the office of the attorney general and compel discovery from that same office. Both motions are denied as being without merit.
Spaziano's counsel, Mello, has also filed motions concerning his representation of Spaziano, specifically: (1) motion for appointment of counsel nunc pro tunc, and (2) motion to consider and decide whether pro bono counsel is obligated to move for withdrawal as counsel in this case. The office of the Capital Collateral Representative (CCR) represented Spaziano until at least January of this year. In June 1995, it appears that Mello voluntarily undertook the representation of Spaziano. We note that this is not a new case for Mello since he represented Spaziano while Mello was employed with CCR. This is still, in our view, a CCR case, and CCR has the primary responsibility for this representation. We find that the Capital Collateral Representative orally argued the latest proceeding in this matter before the United States Court of Appeals for the Eleventh Circuit in 1994. We find that these motions are not proper under the particular circumstances of this case. We find that Mello may continue the representation with assistance from CCR and, if possible, with the assistance of any resources available from the Volunteer Lawyers' Resource Center.[6] We deny Spaziano's catch-all motion requesting us to compel release of the Florida Department of Law Enforcement investigation report, to hold an evidentiary hearing on that matter, to enter a stay of execution, or to alter our reading of the public records law.[7] We also deny the amicus Volunteer Lawyers' Resource Center's motion for a stay in this cause.
For the reasons expressed, we remand this cause to the Circuit Court of the Eighteenth Judicial Circuit for an evidentiary hearing on the issue of the recanted testimony.
It is so ordered.
GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.
KOGAN, J., concurs in part and dissents in part with an opinion, in which SHAW and ANSTEAD, JJ., concur.
KOGAN, Justice, concurring in part, dissenting in part.
I agree with virtually all that is said in the majority opinion except that portion imposing an unrealistic time frame for resolving what we all have now agreed is a cognizable claim for postconviction relief. Such a restriction is without precedent in our case law and tends to create an atmosphere of panic for resolution of an issue that requires calm and deliberate resolution.[8] Indeed, this is an issue demanding the most careful of attention because its end result could be the state-sponsored taking of a man's life when his guilt now has been called into question.
*1367 As the United States Supreme Court itself has noted, "death is different." Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 2932, 49 L. Ed. 2d 859 (1976). Unique in its finality, the death penalty therefore is circumscribed by extraordinary procedural safeguards designed to prevent an arbitrary or capricious application of this most irrevocable of punishments. I cannot see how this core policy is being served by an unseemly rush to execute a man despite a sworn affidavit by the State's chief witness that Mr. Spaziano was convicted on falsified evidence.[9] This conclusion is all the more compelling here because the recantation is only the latest in a string of troubling doubts that have surrounded Mr. Spaziano's conviction from the outset, revealing it to be a text-book example of how capital trials and postconviction reviews should not be conducted.
Today we are presented with a grossly disturbing scenario: a man facing imminent execution (a) even though his jury's vote for life imprisonment would be legally binding today, Cochran v. State, 547 So. 2d 928 (Fla. 1989), (b) with his conviction resting almost entirely on testimony tainted by a hypnotic procedure this Court has condemned, Bundy v. State, 471 So. 2d 9, 18 (Fla. 1985), cert. denied 479 U.S. 894, 107 S. Ct. 295, 93 L. Ed. 2d 269 (1986), (c) with the source of that tainted testimony now swearing on penalty of perjury that his testimony was false, and (d) without a careful consideration of this newly discovered evidence under the only legal method available, Rule of Criminal Procedure 3.850 or 3.851.[10]
While each of these standing alone is cause for grave concern, the apparent recantation of the State's chief witness is by far the most disturbing. The role played by this witness was vividly explained by this Court's own words on direct appeal:
[T]he principal witness for the state was Ralph Dilisio [sic], a sixteen-year-old acquaintance of the appellant. Dilisio testified that Spaziano often bragged about the girls he had mutilated and killed, and on the occasion Dilisio and another individual accompanied the appellant to the Altamonte dump site where Dilisio saw two corpses, both covered with blood. Dilisio stated that Spaziano claimed responsibility for these killings[.]
....
With reference to the contention that the evidence is insufficient, the appellant asks us to reject in totality the testimony of Dilisio. Dilisio led authorities to the dump where the bodies were found two years after he observed them with the appellant. Both the jury and the trial judge had a superior vantage point to weigh the credibility of Dilisio's testimony. We find the evidence in this record was sufficient to sustain the jury's verdict.
Spaziano v. State, 393 So. 2d 1119, 1120 & 1122 (Fla. 1981). I think this excerpt more than amply refutes any claim that Spaziano's conviction is adequately supported by evidence apart from DiLisio's testimony. Were that the case, this Court in 1981 would hardly have pegged its entire analysis of the evidence's sufficiency on DiLisio's credibility. And today, when the credibility of that testimony has been called into question in the strongest possible manner from DiLisio's own mouth I think there is only one reasonable conclusion: This conviction bears a possible taint that must be investigated and explained before Spaziano can be electrocuted.
In oral argument, the State made much of the "speculative" nature of allegations before us. While there certainly may be elements of speculation in what we are reviewing here, I am not at all satisfied the entire claim is groundless. DiLisio's affidavit alone tends to refute that contention. And in any event, it is the trial court's responsibility as fact-finder to weed out the speculative from the meritorious, not ours. Our sole duty at this point is to determine if a prima facie claim has been made, which it clearly has.
More to the point, we are talking about a man's life here. And in that sense, we also are talking about the moral underpinnings of the death penalty itself: an abiding faithfulness *1368 to heightened procedural safeguards, an absolute requirement of the certainty of guilt, and an overriding commitment to the proposition that society should never descend into lawlessness in an effort to eliminate the lawless. Ends do not justify means. Quite to the contrary, the means chosen almost always color and shape the ends achieved. This is true even when we are talking about someone like Mr. Spaziano, whose life has hardly been a model. One question is at issue here, and one question alone: Was Mr. Spaziano lawfully convicted of the murder of Laura Harberts?
All that can be said with finality about this case today is that it remains mired in serious doubt. Because of the irrevocable nature of the death penalty, I am utterly unwilling to dismiss those doubts without adequate inquiry into their source. The present record presents at least a prima facie showing that the State's chief witness has recanted, and I thus agree that the trial court must review the claim presented here pursuant to Rule 3.850 or 3.851. Any other ruling would countenance an execution in the face of serious evidence that Mr. Spaziano was illegally convicted.
Because of the seriousness of the claim, I further believe this Court should enter an indefinite stay of execution to permit the parties to develop their cases without facing the pressures of an active death warrant, if the Governor does not stay or withdraw his warrant in light of our opinion today. Experience teaches that claims of this magnitude cannot be fully investigated nor a case prepared in one week. In any event, if the majority's time table proves inadequate, counsel clearly still has the ability to seek a stay from the trial court or this Court at a later time.
Finally, as the majority indicates, the Office of Capital Collateral Representative continues to be statutorily responsible for this case. Therefore, it must at least provide volunteer counsel with the usual resources that would be available in a typical case handled by that agency.[11]
SHAW and ANSTEAD, JJ., concur.
On September 8, 1995, we issued an opinion directing that the trial court hold an evidentiary hearing in this cause by September 15, 1995, to examine the recantation of specific trial testimony. In that opinion, we directed that the Capital Collateral Representative (CCR) was to retain primary responsibility for Joseph Robert Spaziano's representation in this case. After our opinion issued, a total of seven motions were filed by Michael A. Mello and CCR. Mello filed: (1) Motion for Rehearing and Reconsideration and Stay of Execution;[1] (2) Application for Stay of Execution; and (3) Motion to Hold Evidentiary Hearing in Abeyance. CCR filed: (4) Petition for Extraordinary Relief; (5) Petition for a Stay of Execution; (6) Petition for a Continuance of Evidentiary Hearing Ordered in Spaziano v. State, 660 So. 2d 1363 (Fla. 1995); and (7) Petition for an Evidentiary Hearing Regarding Spaziano's Representation. Most of these motions stem from continuing confusion concerning the representation of Spaziano.
We address three primary issues. First, we revisit the question of primary responsibility for Spaziano's postconviction relief proceedings. Second, we confront whether an indefinite stay of execution is warranted by the lack of cooperation between CCR and Mello. Third, we again define the scope of the evidentiary hearing.
Representation of Spaziano
In our September 8, 1995, opinion, we specifically stated that CCR has primary responsibility for Spaziano's postconviction relief proceedings. Furthermore, we declined to appoint Mello, nunc pro tunc, as Spaziano's counsel. In rendering that decision, this Court unanimously rejected Mello's assertions that a conflict existed in CCR's representation of Spaziano. Additionally, when we issued that opinion, we envisioned a spirit of cooperation between CCR and Mello that *1369 would guarantee the best representation for Spaziano. Unfortunately, the events of this past weekend make it clear that such cooperation does not exist. Indeed, Mello has not accepted our findings or conclusions. He states:
The court should be aware that counsel shall not follow the court's unreasonable commands... .
....
... . Nor will I accept as "co-counsel" a law firm with interests adverse to my client's a law firm my client has rejected for very good reasons.
Specifically, the court should know that (1) I will participate in no evidentiary hearing under warrant; (2) neither Mr. Spaziano nor I will accept CCR as co-counsel in this case, since CCR refused to serve as co-counsel when I asked them to do so in June; (3) counsel lacks the funds to return to Florida for purposes of any further court proceedings, as counsel's few remaining personal funds were spent to attend this court's 30 minute oral argument.
Mello also states:
CCR has none of the 25 bankers' boxes of files in this case. Nor will CCR ever have those files, as CCR will never have the cooperation or acquiescence of Mr. Spaziano.
Finally, Mello provides this court with his correspondence with CCR, which reads in part:
I told you that CCR is not Mr. Spaziano's lawyer, and that CCR will never be Joe's counsel. I explained why neither Joe nor his family trust CCR to represent his interests.
I trust that CCR will not (1) hold itself out as Joe's attorney, against the express wishes of him and his family, or (2) attempt to interfere with my attorney/client relationship with Mr. Spaziano by communicating in any manner with my client or with his family.
Finally, I trust that CCR will resist all efforts to "represent" him at the evidentiary hearing.
In summary, during the course of the last four weeks, Mello has (1) sought appointment as Spaziano's counsel nunc pro tunc to attempt to have this Court direct payment of attorney's fees and expenses; (2) suggested that he should withdraw because of a lack of resources; (3) stated that he is an appellate lawyer and not competent to represent Spaziano at an evidentiary hearing; (4) advised CCR, as noted, that Spaziano is his client and directed CCR not to interfere with his attorney-client relationship; and (5) stated that he will not appear at the evidentiary hearing ordered by this Court.
The fair administration of justice in Florida cannot proceed with such flagrant disregard of this Court's procedures and directions. In view of Mello's actions, including his refusal to abide by this Court's directions, his statement that he is not competent to handle an evidentiary hearing at the trial level, and his express refusal to appear at the evidentiary hearing ordered by this Court, we find that he has effectively withdrawn from representing Spaziano. Because Mello concededly has neither the resources nor the necessary trial experience, we find that he is not competent to continue this representation. To avoid any more unnecessary delays, we expressly direct that the files in his custody be immediately delivered to CCR. In the event that other volunteer counsel is obtained, we envision no problems in having CCR turn over those files to the new attorney.
In making this ruling, we are fully aware that Spaziano's family has expressed a desire that Mello remain as Spaziano's counsel. We also note that Spaziano has personally expressed that he does not want CCR's representation:
As my attorney told you, CCR is not my lawyer. I do not want CCR to represent me in any hearing. As my attorney Michael Mello has told you, do not try to see me or write to me again. I only want to speak through my attorney Michael Mello, who has been my lawyer for a long time. It can't be fair to go to court with a lawyer who doesn't know my case.
While cognizant of these wishes, we refuse to endorse or allow Mello's representation to continue when that representation would, admittedly, be less than adequate.
The United States Supreme Court has stated that no constitutional right requires *1370 states to appoint counsel for indigent death row inmates seeking state postconviction relief. Murray v. Giarratano, 492 U.S. 1, 109 S. Ct. 2765, 106 L. Ed. 2d 1 (1989). Nevertheless, the State of Florida has provided for a Capital Collateral Representative under section 27.702, Florida Statutes (1993), to ensure that death row inmates have representation in post conviction relief proceedings. Section 27.702(1) provides:
The capital collateral representative shall represent, without additional compensation, any person convicted and sentenced to death in this state who is without counsel and who is unable to secure counsel due to his indigency or determined by a state court of competent jurisdiction to be indigent for the purpose of instituting and prosecuting collateral actions challenging the legality of the judgment and sentence imposed against such person in the state courts, federal courts in this state, the United States Court of Appeals for the Eleventh Circuit, and the United States Supreme Court.
CCR has represented Spaziano since his initial appeal became final and, in fact, Mello was one of the assistant CCR attorneys who represented Spaziano initially. Clearly, no constitutional right exists for a defendant to choose a particular court-appointed counsel. Jones v. State, 612 So. 2d 1370 (Fla. 1992), cert. denied, ___ U.S. ___, 114 S. Ct. 112, 126 L. Ed. 2d 78 (1993); Hardwick v. State, 521 So. 2d 1071 (Fla. 1988), cert. denied, 488 U.S. 871, 109 S. Ct. 185, 102 L. Ed. 2d 154 (1988). We once again state that, on this record, no legal or ethical conflict exists which would prohibit CCR from representing Spaziano in this matter.
Spaziano is an indigent inmate. Spaziano has previously requested that this court address the issue of investigation costs and legal fees for his postconviction relief proceedings. We attempted to provide for both Spaziano's wishes and rights in our September 8, 1995, opinion. CCR and Mello were to work together to ensure adequate counsel and resources. That solution was intended to satisfy both Spaziano's wishes and his need for effective counsel. This past weekend's events have made it clear that a choice must now be made. Under the present circumstances, we direct that CCR shall act as Spaziano's counsel without Mello's assistance or interference.
Spaziano is faced with a choice. He may be represented at the evidentiary hearing by CCR or by competent volunteer counsel who will comply with rules and directions of this Court at no expense to the State, or he may choose to have no counsel at the evidentiary hearing. It is his decision. See, e.g., Hardwick, 521 So.2d at 1074 (one who attempts to dismiss court-appointed counsel is presumed to be exercising the right to self-representation). Any further proceeding relating to Spaziano's representation is remanded to the trial court, including any issue concerning Spaziano's right to represent himself.
This cause will proceed as indicated by this Court and by the trial judge assigned to this matter. The processes governing this case will not be, in any way, controlled by counsel for the State or Spaziano.
Motion of the Capital Collateral Representative
CCR has filed a motion that states its willingness to proceed in this cause but, because of Mello's refusal to cooperate, it is presently unprepared to represent Spaziano on such short notice. We find that, under the circumstances, we have no choice but to grant a stay of execution to provide CCR additional time for the evidentiary hearing. Accordingly, we modify our September 8, 1995, opinion by directing that an evidentiary hearing be commenced on or before November 15, 1995.
Scope of Evidentiary Hearing
Finally, CCR asks that we broaden the scope of the evidentiary hearing. In our September 8 opinion, we limited the scope of the evidentiary hearing to "newly discovered evidence of the recantation of the testimony of a significant witness." Spaziano v. State, 660 So. 2d 1363, 1365-66 (Fla. 1995). We refuse to alter our ruling on this issue.
Conclusion
In summary, we reaffirm that CCR is Spaziano's legal counsel; we find that Mello has effectively withdrawn as counsel and we direct *1371 him to turn over all Spaziano files to CCR; we extend, until November 15, 1995, the time in which to hold an evidentiary hearing; and finally, we enter an indefinite stay of execution pending the outcome of the evidentiary hearing. Our opinion of September 8, 1995, is modified to be consistent with this opinion. All other requested relief is denied.
It is so ordered.
GRIMES, C.J., and OVERTON, HARDING and WELLS, JJ., concur.
SHAW, J., concurs in part and dissents in part with an opinion, in which KOGAN and ANSTEAD, JJ., concur.
NO MOTION FOR REHEARING WILL BE ALLOWED.
SHAW, Justice, concurring in part, dissenting in part.
I fully agree with the majority's conclusion that in light of attorney Mello's inability or refusal to comply with this Court's decision of September 8, 1995, the office of the Capital Collateral Representative shall represent Spaziano in all post-conviction matters relating to this case.
I disagree with the November 15, 1995, deadline the majority opinion places on the trial court for conducting an evidentiary hearing on Spaziano's claim of recantation. As pointed out by Justice Kogan in his opinion concurring in part, dissenting in part with this Court's decision of September 8, 1995, this is a highly unusual case:
Today we are presented with a grossly disturbing scenario: a man facing imminent execution (a) even though his jury's vote for life imprisonment would be legally binding today, (b) with his conviction resting almost entirely on testimony tainted by a hypnotic procedure this Court has condemned, (c) with the source of that tainted testimony now swearing on penalty of perjury that his testimony was false, and (d) without a careful consideration of this newly discovered evidence under the only legal method available... .
Spaziano v. State, 660 So. 2d 1363, 1367 (Fla. 1995) (Kogan, J., concurring in part, dissenting in part) (citations omitted). The problems presented by this case are further exacerbated by recent events as outlined in the majority opinion.
In light of the unusual procedural history of this case, the critical nature of the evidentiary issue before the trial court, and recent events, I would leave the time frame for conducting an evidentiary hearing to the trial court's discretion. The trial court is far better suited than we are to determine the logistical requirements of such a hearing.
I concur in the remainder of the majority opinion.
KOGAN and ANSTEAD, JJ., concur.
NOTES
[1] The test we expressed in Armstrong, 642 So.2d at 735, is as follows:
Recantation by a witness called on behalf of the prosecution does not necessarily entitle a defendant to a new trial. Brown v. State, 381 So. 2d 690 (Fla. 1980), cert. denied, 449 U.S. 1118, 101 S. Ct. 931, 66 L. Ed. 2d 847 (1981); Bell v. State, 90 So. 2d 704 (Fla. 1956). In determining whether a new trial is warranted due to recantation of a witness's testimony, a trial judge is to examine all the circumstances of the case, including the testimony of the witnesses submitted on the motion for the new trial. Bell. "Moreover, recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. Especially is this true where the recantation involves a confession of perjury." Id. at 705 (quoting Henderson v. State, 135 Fla. 548, 561, 185 So. 625, 630 (1938) (Brown, J., concurring specially)). Only when it appears that, on a new trial, the witness's testimony will change to such an extent as to render probable a different verdict will a new trial be granted. Id.
[2] Spaziano v. State, 393 So. 2d 1119 (Fla.), cert. denied, 454 U.S. 1037, 102 S. Ct. 581, 70 L. Ed. 2d 484 (1981); Spaziano v. State, 433 So. 2d 508 (Fla. 1983), affirmed, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984); Spaziano v. State, 489 So. 2d 720 (Fla.), cert. denied, 479 U.S. 995, 107 S. Ct. 598, 93 L. Ed. 2d 598 (1986); Spaziano v. State, 545 So. 2d 843 (Fla. 1989); Spaziano v. Dugger, 557 So. 2d 1372 (Fla. 1990); Spaziano v. State, 570 So. 2d 289 (Fla. 1990); Spaziano v. Dugger, 584 So. 2d 1 (Fla. 1991).
[3] Spaziano v. Singletary, No. 91-850-CIV-ORL-18 (M.D.Fla. Nov. 30, 1992) (denial of petition for writ of habeas corpus), affirmed, 36 F.3d 1028 (11th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 911, 130 L. Ed. 2d 793 (1995).
[4] Spaziano v. Singletary, 36 F.3d 1028 (11th Cir.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 911, 130 L. Ed. 2d 793 (1995).
[5] Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984).
[6] It is understood that the Volunteer Lawyers' Resource Center may lose funding as of October 1, 1995. The Center will, however, continue to exist as an entity until that time.
[7] See Parole Comm'n v. Lockett, 620 So. 2d 153 (Fla. 1993) (Florida Constitution requires clemency records be kept confidential except as authorized by the Governor); see also Asay v. Florida Parole Comm'n, 649 So. 2d 859 (Fla. 1994).
[8] It is interesting that when the executive branch was presented with this problem, it put the entire case on hold while investigating the claim. We should do no less, and certainly should not force a quick decision that only enhances the further risk of error.
[9] The affidavit, quoted in the majority opinion, is in irreconcilable conflict with DiLisio's testimony at trial, as quoted below from this Court's opinion on direct appeal.
[10] For reasons not adequately explained, counsel for Mr. Spaziano did not file under Rule of Criminal Procedure 3.850 or 3.851, but sought relief under a "motion" of his own invention.
[11] I do not find persuasive counsel's claim that the Office of Capital Collateral Representative has a conflict.
[1] Mello subsequently attempted to withdraw this motion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858055/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-255-CV
FUAD KHURI,
APPELLANT
vs.
ROY BELL AND JINGLE BELL,
APPELLEES
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 423,330, HONORABLE JOE B. DIBRELL, JUDGE PRESIDING
This is an appeal from a suit involving misrepresentations in the sale of a
condominium unit. The purchaser, Roy Bell, sued the condominium owner and seller, Fuad
Khuri, for alleged violations of the Deceptive Trade Practices Act (DTPA). Tex. Bus. & Com.
Code Ann. §§ 17.41-.63 (1987 & Supp. 1991). Following a jury trial, the district court rendered
judgment against Khuri and he now appeals. We affirm the trial-court judgment.
BACKGROUND
In July of 1985, Roy Bell purchased a condominium in Lakeway Patio Homes,
Section II, from Fuad Khuri. The condominium unit flooded in December of 1985, April of 1986,
and May of 1987. Bell sued Khuri in July of 1987, alleging that Khuri violated the DTPA by
misrepresenting that the property was not subject to flooding.
The jury found that Khuri engaged in false, misleading, or deceptive acts, and
engaged in an unconscionable course of conduct in selling his condominium. The jury further
found that the difference in value between the property as represented and as purchased was
$12,500 and that the reasonable cost to repair the flood damage was $1363.63. The trial court
rendered judgment against Khuri in the amount of $13,863.63, plus attorney's fees and $2,000
automatic additional damages. Khuri now appeals.
DISCUSSION
I. Offset of Damages.
In his first point of error, Khuri advances the novel theory that because Bell
enjoyed the use of the condominium, Khuri should receive the value of this use. Thus, Khuri
contends that the trial court erred in failing to offset the condominium's $57,000 rental value
against the damage award. Khuri cites no authority in support of this proposition, and we find
none.
Furthermore, Khuri has waived this point of error. The right of offset is an
affirmative defense. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex.
1980), cert. denied, 449 U.S. 1015 (1980). The Texas Rules of Civil Procedure provide that a
party pleading an affirmative defense shall affirmatively set forth that matter in his pleadings.
Tex. R. Civ. P. Ann. 94 (Supp. 1991). Here, Khuri proceeded to trial with only a general denial
on file. He made no pleadings and requested no jury instructions regarding offset, and raised the
issue for the first time when he filed a motion for new trial. Accordingly, we overrule this point
of error.
II. Sufficiency of the Evidence.
In his second and third points of error, Khuri argues that the evidence is legally and
factually insufficient to support the jury's findings on two issues: (1) whether Khuri engaged in
false, misleading, or deceptive acts which were a producing cause of damages to Bell; and (2)
whether Khuri engaged in any unconscionable actions or courses of action which were a producing
cause of damages to Bell.
A. Legal Sufficiency.
We must first consider Khuri's contention that the evidence presented at trial is
legally insufficient to support the jury findings that Khuri committed deceptive trade practices and
engaged in an unconscionable course of conduct in selling his condominium. See Glover v. Texas
Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). In determining whether there is legally
sufficient evidence to support a finding, we consider only the evidence and inferences tending to
support the finding of the trier of fact, and disregard all evidence and inferences to the contrary.
Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986).
The record before us shows that although Khuri maintains that this condominium
unit never flooded during his ownership, it flooded at least twice before Khuri bought it and three
times within two years after he sold it to Bell. Ownership in the condominium unit also carries
with it an ownership share in the common areas of the complex, and testimony presented at trial
showed that these common areas had flooded on several occasions during Khuri's ownership.
Moreover, Khuri, who is a civil engineer, was a member of a committee formed
by the Resident's Association in 1983 to address the flooding problems affecting Lakeway Patio
Homes. As part of his committee duties, Khuri wrote a letter to the Lakeway Village street
director in which Khuri stated that "the flooding of Lakeway Patio Homes, Section II, has become
a serious and recurring problem." Despite his participation on that committee and his apparent
knowledge of the problem, Khuri executed a multiple listing agreement in conjunction with the
sale in which he certified that the condominium "had no known latent defects or other defects
which would be a significant factor to a reasonable purchaser in making a decision to purchase"
and that the property had never been "threatened or damaged by any natural disasters, such as
flooding."
The record indicates that flooding in the area of Lakeway Patio Homes has caused
a dramatic decline in that development's property values. The expert appraiser who, without
knowledge of the history of flooding at Lakeway Patio Homes, had appraised Khuri's
condominium at $140,000 at the time of sale, testified that he would have appraised it at $75,000
if Khuri had revealed the flood history to him. That same appraiser testified that the condominium
was worth approximately $66,000 at the time of trial. Khuri had set the condominium's sale price
at $135,000, but accepted Bell's offer of $125,000 without negotiation.
Another realtor testified that because of known flooding in the area, no
condominium sales had occurred in Lakeway Patio Homes since Khuri sold his unit to Bell in
1985. The owner of the condominium unit next to Bell's is currently unable to lease the unit on
a long-term basis because of the recurring floods.
Under the DTPA, "false, misleading, or deceptive acts or practices" include:
The failure to disclose information concerning goods or services which was known
at the time of the transaction if such failure to disclose such information was
intended to induce the consumer into a transaction into which the consumer would
not have entered had the information been disclosed.
Tex. Bus. & Com. Code Ann. § 17.46(b)(23) (1987). We conclude that the jury could have found
from the facts set out above that Khuri, by failing to disclose the flooding problems affecting the
condominium development, intended to induce Bell to buy property Bell otherwise would not have
purchased. Bell in fact testified that he would not have purchased the condominium if he had
known of the flooding.
The DTPA defines an "unconscionable action or course of action" as:
An act or practice which, to a person's detriment:
(A) takes advantage of the lack of knowledge, ability, experience, or capacity
of a person to a grossly unfair degree; or
(B) results in a gross disparity between the value received and consideration
paid, in a transaction involving transfer of consideration.
Tex. Bus. & Com. Code Ann. § 17.45(5) (1987). We conclude that there is evidence concerning
the condominium's value from which the jury could have found that Khuri followed an
unconscionable course of action which resulted in a gross disparity between the consideration Bell
paid for the condominium and the value received.
We must also determine if there is any evidence that Khuri's acts were the
producing cause of Bell's damages. The court properly instructed the jury that "producing cause"
means:
An efficient, exciting, or contributing cause, which, in a natural and continuous
sequence, produces the damage or harm complained of, if any. There may be
more than one producing cause.
See Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1976). See also David F. Bragg, et al., Texas
Consumer Litigation, § 10.08-.10, at 255-57 (2d ed. 1983). As noted, Bell testified that he would
not have purchased the condominium if he had known of the flooding. The jury could well have
found from this evidence that Khuri's failure to disclose the threat of flooding was the producing
cause of Bell's damages.
We conclude that there is evidence in the record to support the jury's finding that
Khuri committed false, misleading, or deceptive acts and that he engaged in an unconscionable
course of conduct by failing to disclose his knowledge of the condominium development's
flooding problems to Bell, and that these acts were the producing cause of Bell's damages.
Accordingly, we overrule Khuri's legal-sufficiency points of error.
B. Factual Sufficiency.
Khuri also contends that the evidence presented at trial is factually insufficient to
support the jury findings that Khuri committed deceptive trade practices and engaged in an
unconscionable course of conduct in selling his condominium. In determining whether there is
factually sufficient evidence to support the jury findings, we consider and weigh all of the
evidence, and set aside the judgment only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
In addition to the facts set forth above, the record indicates that Khuri had hired
a real estate agency to handle the sale of his condominium and had no direct contact with Bell
until the closing date of the sale. Although Khuri had executed a multiple listing agreement with
Lakeway Real Estate Corporation in which he represented that his property had never been
threatened or damaged by flooding, Bell did not see the multiple listing agreement before he
closed the sale on the condominium. Finally, Khuri maintains that his condominium unit never
flooded during his ownership, and that he was not aware that it had flooded before he owned it.
After considering all of the evidence, we conclude that there is sufficient evidence
from which the jury could have found that Khuri committed deceptive trade practices and engaged
in an unconscionable course of conduct in selling his condominium by failing to disclose his actual
knowledge of the flooding problems. Despite the evidence that Khuri was unaware of the actual
flooding within the condominium unit he sold to Bell, we are not persuaded that the jury's
findings are so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Accordingly, we overrule Khuri's factual-sufficiency points of error.
CONCLUSION
We affirm the trial-court judgment.
Jimmy Carroll, Chief Justice
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Affirmed
Filed: January 15, 1992
[Do Not Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1539538/ | 218 B.R. 507 (1997)
In re COLORTRAN, INC., Debtor.
EXPEDITORS INTERNATIONAL OF WASHINGTON, INC., Appellant,
v.
CITICORP NORTH AMERICA, INC., Citibank, N.A., and Colortran, Inc., Appellee.
BAP No. CC-95-2264-HJeMe, Bankruptcy No. LA 95-36537 ER.
United States Bankruptcy Appellate Panel of the Ninth Circuit.
Argued and Submitted October 22, 1997.
Decided December 22, 1997.
*508 Robert E. White, San Francisco, CA, for Expeditors International of Washington, Inc.
Gregory K. Jones, Hennigan, Mercer & Bennett, Los Angeles, CA, for Colortran, Inc.
Before: HAGAN, JELLEN[1], and MEYERS, Bankruptcy Judges.
OPINION
HAGAN, Bankruptcy Judge.
Expeditors International of Washington, Inc. ("Expeditors"), shipped freight for Colortran, *509 Inc. ("Colortran"), the debtor. When Colortran filed its chapter 11 petition, Expeditors asserted a lien against Colortran's shipment in its possession and refused to deliver the products until Colortran paid a past-due bill from a previous shipment. Colortran filed a motion to compromise the claim by paying the amounts due Expeditors. The bankruptcy court denied the motion to compromise and invalidated Expeditors' lien. Expeditors appeals that order. Because Expeditors was denied the proper procedure in the invalidation of its lien, we REVERSE and REMAND the bankruptcy court's ruling.
FACTS
Colortran manufactures lighting fixtures for stage, studio and architectural applications and installs lighting and control equipment for theaters, major television networks, art centers, hotels and theme parks. Expeditors is a freight forwarder and was engaged by Colortran to transport Colortran's products.
In April 1994, Colortran completed and signed a credit application with Expeditors providing: "[Expeditors] shall have a general lien on any and all property (and documents relating thereto) of [Colortran], in its possession, custody or control or en route, for all claims for charges, expenses or advances incurred by [Expeditors] in connection with any shipments of [Colortran] . . ." Each of Expeditors' invoices contained the same language.
On October 16, 1995, Colortran filed for chapter 11[2] relief. On that date, Expeditors possessed lighting filters worth approximately $90,000 it was shipping for Colortran from the United Kingdom. Colortran owed Expeditors approximately $8,000 for accrued transportation and storage charges on a previous unrelated shipment.
When it learned of Colortran's chapter 11 filing, Expeditors contacted Colortran's counsel and asserted, based on the credit application and invoices, that Expeditors had a valid lien that attached to the shipment in its possession. According to Colortran's counsel, Colortran, needing the lighting filters to complete a large order, determined that it would be cost-effective to pay Expeditors the past-due balance rather than litigate the validity of the lien.
Colortran filed a motion to approve a compromise whereby Colortran would pay the past-due bill and Expeditors would release the shipment.[3] In its motion, Colortran stated, "Expediters [sic] refuses to release the Shipment to Colortran until Colortran is current on all of its outstanding obligations to Expediters [sic]." No supporting documents were filed with the motion.
Neither Expeditors nor its counsel appeared at a hearing for the proposed settlement. The court denied the motion, based partially on the fact that Expeditors had not obtained relief from the § 362 automatic stay before refusing to release the shipment. The court further found Expeditors did not have a valid lien, and that Expeditors was attempting to "bootstrap itself into a position over other unsecured creditors." Expeditors was ordered to turn over the shipment to Colortran and Colortran was ordered to file a motion for violation of the stay.[4]
The court's written judgment provided "that no basis exists to support the contention of [Expeditors] that it has a valid and perfected lien on the Debtor's goods" and required Expeditors to turn over the property. This appeal is from the denial of the motion to compromise.
*510 ISSUES
On appeal, Expeditors claims it has a perfected security interest in the goods in its possession, and since the bankruptcy court incorrectly found that it had no security interest, it also erroneously denied the compromise. Thus, there are two issues: whether the bankruptcy court erred when it invalidated the lien and whether the bankruptcy court erred when it denied the compromise.
STANDARD OF REVIEW
We review a bankruptcy court's findings of fact under the clearly erroneous standard. In re Pizante, 186 B.R. 484, 488 (9th Cir. BAP 1995). A bankruptcy court's conclusions of law are reviewed de novo. In re United States Trustee, 32 F.3d 1370, 1372 (9th Cir.1994). Whether a security agreement exists is a question of fact. In re CFLC, Inc., 209 B.R. 508, 513 n. 8 (citing Kreiger v. Hartig, 11 Wash.App. 898, 527 P.2d 483, 486 (1974)).
DISCUSSION
The Panel has jurisdiction to hear appeals from final orders of the bankruptcy court. 28 U.S.C. 158(a) and (b)(1). "An order approving a compromise . . . is final because it finally determines the rights of the parties. An order disapproving a compromise, however, is not final. It determines no rights and settles no issues. It merely leaves the question open for future adjudication." In re Merle's Inc., 481 F.2d 1016, 1018 (9th Cir.1973). See also In re Tidewater Group, Inc., 734 F.2d 794, 796 (11th Cir. 1984)("[A] bankruptcy court order denying approval of [a] settlement agreement [is] not a final order . . . [because it does] not resolve the litigation, decide the merits, determine rights of the parties, settle liability, or establish damages.") Thus, an appeal of the denial of the motion to compromise is interlocutory.
If the bankruptcy court had simply denied the motion to approve the compromise, it would be appropriate to dismiss the appeal as interlocutory. However, the court did more by invalidating Expeditors' lien and ordering the turnover of the property. Invalidating the lien is a final order. Thus, the Panel examines whether the trial court erred when it invalidated the lien. We ratify the appropriateness of this appeal by granting leave to appeal.
I. Invalidation of the lien
Bankruptcy Rule 7001 (formerly rule 701) requires a bankruptcy trustee to initiate adversary proceedings to "determine the validity, priority, or extent of a lien or other interest in property." Fed.R.Bankr.P. 7001. In an analogous case, under former Rule 701, the Ninth Circuit Court of Appeals found that a lien may be avoided only if the trustee has filed an adversary proceeding. In re Commercial Western Fin. Corp., 761 F.2d 1329, 1336 (9th Cir.1985). The Fourth Circuit Court of Appeals has also determined that a debtor may not extinguish or modify a lien during the bankruptcy process unless the debtor takes an affirmative action:
Unless the debtor takes appropriate affirmative action to avoid a security interest in property of the estate, that property will remain subject to the security interest following confirmation. The simple expedient of passing their residence through the bankruptcy estate could not vest in the [debtors] a greater interest in the residence than they enjoyed prior to filing their Chapter 13 petition.
. . . . Bankruptcy Rule 7001(2) expressly requires initiation of an adversary proceeding "to determine the validity, priority, or extent of a lien or other interest in property," with one exception not applicable here. The procedural requirements of such an action, which include, inter alia, the filing of a complaint and service of a summons, are set out in the Bankruptcy Rules.
Cen-Pen Corp. v. Hanson, 58 F.3d 89, 92-93 (4th Cir.1995); See also In re Golden Plan of Cal., Inc., 829 F.2d 705, 711-12 (9th Cir. 1987). An adversary proceeding is the only avenue available to invalidate Expeditors' lien.
The use of an adversary proceeding to determine the validity of a lien affords due process to the parties involved. In In re Golden Plan of Cal., Inc., 829 F.2d 705, 711-12, the district court sua sponte determined *511 that certain transfers were fraudulent conveyances. The court of appeals determined that the
district court's sua sponte consideration of the fraudulent conveyance issue also rendered the proceedings procedurally defective, because the investors were denied adequate notice. The trustee's pleadings contained no allegations that the advances were fraudulent conveyances. . . . The investors were therefore denied adequate notice and opportunity to prepare a proper defense.
Golden Plan, 829 F.2d at 712 (citation omitted). The same due process concerns apply to a bankruptcy court's sua sponte invalidation of a lien.
Since the motion to compromise was uncontested, Expeditors was not prepared to appear at the hearing on the motion to compromise. Expeditors did not receive adequate notice that the validity of its lien would be adjudicated nor opportunity to prepare a proper defense of the validity of its lien. The bankruptcy court should not have invalidated the asserted lien without giving Expeditors an opportunity to present a complete argument as to its validity. Furthermore, the bankruptcy court did not follow the procedures necessary to invalidate a lien. No adversary proceeding occurred as required by Rule 7001. Consequently, the bankruptcy court's conclusion invalidating Expeditors' lien is void.
II. Denial of the motion to compromise
"The law favors compromise and not litigation for its own sake, and as long as the bankruptcy court amply considered the various factors that determined the reasonableness of the compromise the court's decision must be affirmed." In re A & C Properties, 784 F.2d 1377, 1381 (9th Cir. 1986) (citations omitted).
In determining the fairness, reasonableness and adequacy of a proposed settlement agreement the court must consider: (a) The probability of success in the litigation; (b) the difficulties, if any, to be encountered in the matter of collection; (c) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; (d) the paramount interest of the creditors and a proper deference to their reasonable views in the [property].
In re A & C Properties, 784 F.2d 1377, 1381 (9th Cir.1986) (citations omitted). The bankruptcy court here did not specifically address these factors; rather it appears the court determined that Expeditors could not succeed on the merits.
1. Probability of Success in the Litigation
Colortran objected to Expeditors' lien against the light filters. The issue of litigation would have been the validity of Expeditors' lien. Expeditors claims it has a general lien on Colortran's property via a signed credit agreement between Colortran and Expeditors.
For bankruptcy purposes, a lien is a "charge against or interest in property to secure payment of a debt or performance of an obligation." § 101(37). In terms of the commercial code, a security interest is a subset of liens. The California Uniform Commercial Code (Cal.Com.Code, §§ 9101 9508) defines security interest as "an interest in personal property or fixtures which secures payment or performance of an obligation." Cal.Com.Code § 1201(37)(a) (West Supp. 1997). As a general rule, there must be sufficient evidence of the creation of a security interest in the goods possessed, typically by evidence of written or oral agreement. J. WHITE & R. Summers, Uniform Commercial Code § 22-3 at 965 (3d ed.1988).
In this case, Colortran and Expeditors have an agreement as expressed in by the terms of the credit application. The agreement grants Expeditors an interest in Colortran's property in Expeditors' possession to the extent that Colortran has incurred a debt to Expeditors for its shipping services. As such, Expeditors has a security interest in Colortran's property which is in Expeditors' possession.
The existence of the credit agreement distinguishes this case from In re CFLC, Inc., 209 B.R. 508 (9th Cir. BAP 1997), in which Expeditors asserted a lien based only on *512 invoices. The BAP determined that the invoices did not provide "evidence of express agreement by [the debtor] to the general lien terms" and affirmed the bankruptcy court's determination that Expeditors did not have a lien. CFLC, 209 B.R. at 515. Here, the credit agreement is evidence of an express agreement between Colortran and Expeditors in which Colortran granted a security interest to Expeditors.
California Commercial Code § 9203 specifies the requisites for enforceability of a security interest, in pertinent part, as follows:
. . . [A] security interest is not enforceable against the debtor or third parties with respect to the collateral and does not attach unless all of the following are applicable: (a) The collateral is in the possession of the secured party pursuant to agreement, . . . or the debtor has signed a security agreement which contains a description of the collateral. . . . (b) Value has been given. (c) The debtor has rights in the collateral.
Cal.Com.Code § 9203(1) (West Supp.1997). The coalescence of all three elements is called "attachment" and signifies the moment when the security interest becomes enforceable. Cal.Com.Code § 9203(2) (West Supp. 1997). Any of the options under (a) will satisfy the first element.
In this case, Expeditors was in possession of the light filters according to an agreement with Colortran that Expeditors ship the property from the United Kingdom to the United States. This alone would satisfy the first element of the analysis.
However, another option is to have the right kind of security agreement. An agreement which creates or provides for a security interest is a "security agreement." Cal.Com.Code § 9105(1)(1) (West Supp. 1997). The term "security agreement" should be defined broadly. In re County of Orange, 179 B.R. 185, 193 (Bankr.C.D.Cal. 1995). "No magic words or precise forms are necessary to create or provide for a security interest so long as the minimum formal requirements of the [Commercial] Code are met." In re Amex-Protein Dev. Corp., 504 F.2d 1056, 1058-59 (9th Cir.1974). ". . . [T]here must be a binding security agreement in order to make the security interest enforceable." Komas v. Future Systems, Inc., 71 Cal.App.3d 809, 139 Cal.Rptr. 669, 670 (1977), as amended. The agreement must describe the property in which the debtor has conveyed a security interest to the creditor. In re Robert Bogetti & Sons, 162 B.R. 289, 295 (Bankr.E.D.Cal.1993).
The agreement between Colortran and Expeditors says that Expeditors shall have a lien on Colortran's property. The agreement was signed by Colortran's representative making the agreement binding on Colortran and it describes the collateral as that property in Expeditors' possession, custody or control. The agreement between Colortran and Expeditors is sufficient to satisfy the first element of the attachment analysis.
The second element of attachment is giving value.
". . . [A] person gives `value' for rights if he acquires them (a) in return for a binding commitment to extend or for the extension of immediately available credit whether drawn upon and whether or not a charge-back is provided for in the event of difficulties in collection; or (b) As security for or in total or partial satisfaction of a preexisting claim; or . . . (d) Generally, in return for any consideration sufficient to support a simple contract."
Cal.Com.Code § 1201(44).
Expeditors either gave value at the time of the agreement or at the time Expeditors asserted its lien in the light filters. If at the time of the agreement, Expeditors gave value by acquiring a security interest in Colortran's property in return for Expeditors' binding agreement to extend credit to Colortran. If at the time Expeditors asserted its lien, Expeditors gave value by acquiring rights in Colortran's property as security for a preexisting claim, the balance on Colortran's account.
Finally, attachment requires that the debtor have rights in the collateral. The debtor can only grant a property interest to a third party to the extent of his own interest in the property. ". . . [T]itle passes to the *513 buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods . . . (a) If the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at a destination, title passes to the buyer at the time and place of shipment . . ." Cal.Com. Code § 2401(2)(a).
When Colortran's supplier gave Expeditors possession of the light filters for shipment, title passed to Colortran. At that moment, Colortran had rights in the light filters.
When all three elements existed simultaneously, Expeditors' security interest attached and became enforceable. Because the security interest was enforceable, the lien Expeditors asserts is valid. Consequently, Expeditors would likely have been successful litigating the validity of its lien on Colortran's light filters.
2. Other Factors for Reasonableness of the Motion to Compromise
As mentioned above, the bankruptcy court did not specifically consider the A & C Properties factors. The record indicates, however, that the lien invalidation was the basis for the denial of the uncontested compromise.
CONCLUSION
The bankruptcy court did not provide Expeditors the proper procedural safeguards before avoiding its lien. Nor did the bankruptcy court follow the procedures required by Rule 7001 to invalidate a lien. The bankruptcy court's order invalidating Expeditors' lien and denying the compromise is REVERSED and REMANDED to the bankruptcy court for further appropriate proceedings.
NOTES
[1] Hon. Edward D. Jellen, Chief Bankruptcy Judge for the Northern District of California, sitting by designation.
[2] Unless otherwise indicated, all references to "chapter" or "section" are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330; references to "rule" or "Fed.R.Bankr.P." are to the Federal Rules of Bankruptcy Procedure XXXX-XXXX, which make applicable certain Federal Rules of Civil Procedure (Fed.R.Civ.P.)
[3] Colortran apparently served its amended motion, but not its original motion, on Expeditors. The two motions are substantially the same. Expeditors apparently did not receive a copy of declaration that stated that Colortran disputed Expeditors' lien.
[4] At a January 10, 1996 hearing, the bankruptcy court granted Colortran's sanctions motion and sanctioned Expeditors $1,000. Expeditors appealed this ruling and in a published opinion the Bankruptcy Appellate Panel determined that Expeditors had violated the automatic stay regardless of the validity of its lien. In re Colortran, Inc., 210 B.R. 823 (9th Cir. BAP 1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559844/ | 20 So.3d 1207 (2009)
Vicky BATES
v.
ALEXANDRIA MALL I, LLC and XYZ Insurance Company, et al.
No. 09-361.
Court of Appeal of Louisiana, Third Circuit.
October 7, 2009.
Michael W. Adley, Judice & Adley, Lafayette, LA, for Defendant and Third Party Plaintiff/Appellant, Alexandria Mall I, LLC.
Susan F. Clade, Charles E. Riley, IV, Shannon Huber, Simon, Peragine, Smith & Redfearn, LLP, New Orleans, LA, for Third Party Defendant/Appellee, Mydatt *1208 Services, Inc. d/b/a Valor Security Services.
Louis Wellan, Alexandria, LA, for Plaintiff, Vicky Bates.
Keely Y. Scott, Crawford Lewis, Baton Rouge, LA, for Defendant, Lexington Insurance Company.
Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
GENOVESE, Judge.
Third party plaintiff, Alexandria Mall I, LLC (Alexandria Mall), appeals the trial court's grant of summary judgment in favor of third party defendant, Mydatt Services, Inc., d/b/a Valor Security Services (Mydatt), dismissing the claims of Alexandria Mall asserted via its third party demand. For the following reasons, we affirm in part, reverse in part, and remand.
FACTS
Plaintiff, Vicky Bates, filed a Petition for Damages naming Alexandria Mall as a defendant, alleging that she was injured when one of the glass doors at the mall shattered and fell on her. Alexandria Mall filed an Answer and Third Party Demand denying all liability to Ms. Bates and asserting third party claims for contractual defense and indemnity as well as breach of contract against Mydatt. In response, Mydatt filed a Motion for Summary Judgment seeking dismissal of Alexandria Mall's claims for contractual defense and indemnity. The trial court granted Mydatt's Motion for Summary Judgment and dismissed these third party claims of Alexandria Mall. It is from said Judgment that Alexandria Mall appeals.
ISSUES
Alexandria Mall presents the following issues for our review:
1. [w]hether the city court erred in granting the Motion for Summary Judgment filed on behalf of Mydatt Services, Inc. d/b/a Valor Security Services[;]
2. [w]hether the city court erred in dismissing Alexandria Mall I, LLC's claims against Mydatt Services, Inc. d/b/a Valor Security Services for contractual defense and contractual indemnity[; and]
3. [w]hether the city court erred in finding that a third party demand for defense and indemnity does not exist until the indemnitee is found free from fault.
LAW AND DISCUSSION
Standard of Review
Alexandria Mall asserts that, in conducting a de novo review of the record, this court should conclude that "legal and factual issues" preclude the grant of summary judgment. It further asserts "that the lower court improperly granted Mydatt's Motion for Summary Judgment because there exist genuine issues of fact regarding the contract between the parties."
Undisputedly, the third party claims arise out of a valid written contract between Alexandria Mall and Mydatt. Alexandria Mall's third party demand against Mydatt presents three claims: (1) a claim for breach of contract; (2) a claim for Mydatt to provide a defense to Plaintiff's lawsuit; and (3) a claim for indemnity.
As to Alexandria Mall's claims of defense and indemnity, the trial court correctly noted that "[t]here is no material fact at issue between the parties and the court must decide this case on the basis of whether mover is entitled to [s]ummary [j]udgment as a matter of law." As this court has noted:
In a case where there are no contested issues of fact, and the only issue is the *1209 application of the law to the undisputed facts, as in the case at bar, the proper standard of review is whether or not there has been legal error. Hatten v. Schwerman Trucking Co., 04-1005 (La. App. 3 Cir. 12/8/04), 889 So.2d 448, writ denied, 05-076 (La.3/18/05), 896 So.2d 1009 (citing Cleland v. City of Lake Charles, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645).
Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904 So.2d 922, 923, writs denied, 05-1689, 05-1690, 05-1691, 05-1692 (La.1/9/06), 918 So.2d 1054, 1055; Yell v. Sumich, 08-296 (La.App. 3 Cir. 10/15/08), 997 So.2d 69.
However, as to Alexandria Mall's breach of contract claim, it asserts that there are legal and factual issues which preclude the grant of summary judgment. Consequently, as to the breach of contract claim, a de novo review of the record is warranted. Nat'l Indep. Trust Co. v. Pan-Am. Life Ins. Co., 05-27 (La.App. 3 Cir. 6/1/05), 903 So.2d 1141.
Contractual Defense and Indemnification
The crux of Mydatt's Motion for Summary Judgment is the legal premise that the third party claims for defense and indemnity are premature in that they could not be asserted until Alexandria Mall, the indemnitee, actually made payment or sustained a loss. As reflected in its oral reasons, the trial court, recognizing that it was bound by controlling jurisprudence, agreed.[1]
In support of its contention that these third party claims against Mydatt are viable, Alexandria Mall first cites La.Code Civ.P. art. 1111, which permits a defendant to file a third party demand against a party "who is or may be liable to him for all or part of the principal demand." Alexandria Mall argues "that there is nothing that precludes a party from asserting a third party demand for contractual defense and contractual indemnification, even in those cases where the outcome of the third party demand is contingent upon resolution of the main demand." Applying this reasoning, Alexandria Mall concludes that "[t]he Louisiana jurisprudence coupled with the language of Louisiana Code of Civil Procedure Article 1111 which permits the filing of a third party demand against a person who may be liable, aptly demonstrates that Mydatt's Motion for Summary Judgment is meritless and should have been denied."
Alexandria Mall also discusses the express contractual provisions in the contract between it and Mydatt which "sets forth separate obligations of defense and indemnity on the part of Mydatt." Citing these contractual provisions, Alexandria Mall asserts that Mydatt's contractual obligations to defend and to indemnify it were triggered by the allegations of negligence asserted by Ms. Bates in the main demand. While this court acknowledges these contractual provisions, we need not delve into an application of same in order to resolve the issues presently before us. Rather, as correctly noted by the trial court, we are "bound by case law" in reaching our decision.
We find Suire, 907 So.2d 37, to be controlling, and, "[a]s a court of appeal, we are bound to follow the decisions of our supreme court." Clavier v. Lay Down *1210 Serv., Inc., 00-701, p. 5 (La.App. 3 Cir. 12/20/00), 776 So.2d 634, 638, writ denied, 01-880 (La.5/25/01), 793 So.2d 203 (citing PPG Indus., Inc. v. Bean Dredging Corp., 419 So.2d 23 (La.App. 3 Cir.), writ granted, 422 So.2d 151 (La.1982), aff'd, 447 So.2d 1058 (La.1984)).
In Suire, a homeowner sued the city, a contractor, and an engineering firm alleging that his home was damaged as a result of their negligence in performing work involving a drainage canal that was adjacent to his property. The city and the engineering firm filed cross-claims against the contractor seeking defense and indemnification pursuant to the terms of the contract between the parties. Motions for summary judgment filed on behalf of the city and the engineering firm relative to their cross-claims for contractual defense and indemnity were granted by the trial court. On appeal, our supreme court was called upon to "consider whether the indemnity clause in the public contract between [the contractor] and the [c]ity imposed a duty upon [the contractor] as a matter of law to defend the [c]ity and [the engineering firm] against the plaintiff's claims." Id. at 51. After citing the specific contractual provisions, the court reasoned as follows:
We find that the [c]ity's and [the engineering firm's] claim for defense under the indemnity agreement is premature under settled law, as these parties have not yet sustained any compensable loss. This court has observed that an indemnity agreement is a "specialized form of contract which is distinguishable from a liability insurance policy." Meloy v. Conoco, Inc., 504 So.2d 833, 839 (La.1987). An indemnitor is not liable under an indemnity agreement until the indemnitee "actually makes payment or sustains loss." Id. Thus, this court has held that "a cause of action for indemnification for cost of defense does not arise until the lawsuit is concluded and defense costs are paid." Id.; Morella v. Bd. of Comm'rs of Port of New Orleans, XXXX-XXXX (La.App. 4 Cir. 10/27/04), 888 So.2d 321, 325. As this lawsuit is still pending, and no determination of liability has been made, the court of appeal erred in finding that [the contractor] owed a duty to defend, or pay for defense costs, under the terms of the contractual indemnity provision.
Id. Based upon the foregoing, our supreme court reversed "the court of appeal's holding that [the contractor] owed a duty as a matter of law to defend the [c]ity and [the engineering firm], and defer[red] this claim until the lawsuit [was] concluded and liability [was] determined." Id.[2]
We find that the application of our supreme court's decision in Suire to the case sub judice results in the inevitable conclusion that the third party claims of Alexandria Mall against Mydatt for contractual defense and indemnity may not be asserted until the resolution of the main demand and the payment of defense costs. Accordingly, we find no legal error in the ruling of the city court granting the Motion for Summary Judgment on behalf of Mydatt as to Alexandria Mall's claims of defense and indemnity only.
Breach of Contract
Alexandria Mall's breach of contract claim against Mydatt is discussed by both *1211 parties in their appellate briefs. Although it was not specifically addressed by the trial court in its reasons for judgment, the trial court rendered and signed a Judgment dismissing Alexandria Mall's third party claims against Mydatt. It is unclear as to whether the trial court dismissed all of the claims of Alexandria Mall against Mydatt or only the claims for defense and indemnity. The record reveals that Alexandria Mall did include a claim for breach of contract, along with its defense and indemnity claims, in its third party demand against Mydatt. Although the assertions in Mydatt's Motion for Summary Judgment appear to be limited to the claims for defense and indemnity, the trial court's Judgment arguably dismissed all third party claims, including that for breach of contract. Given the wording of the Judgment, the issues presented by Alexandria Mall on appeal, and the discussion of breach of contract by both parties in their respective briefs, we must also consider the trial court's grant of summary judgment on the third party claim for breach of contract.
Based upon the lack of evidence presented to the trial court on the breach of contract issue, we find that the trial court erred in granting summary judgment and dismissing Alexandria Mall's claim for breach of contract. We, therefore, reverse only that portion of the Judgment that dismisses Alexandria Mall's third party claim for breach of contract against Mydatt and remand this matter to the trial court for further proceedings consistent with this court's opinion.
DECREE
The Judgment of the trial court dismissing the third party claims of Alexandria Mall I, LLC against Mydatt Services, Inc., d/b/a Valor Security Services, for contractual defense and indemnity is affirmed. The Judgment of the trial court dismissing the third party claim of Alexandria Mall I, LLC against Mydatt Services, Inc., d/b/a Valor Security Services, for breach of contract is reversed. The matter is remanded to the trial court for further proceedings consistent with this court's opinion. Costs of this appeal are split between the parties to this appeal.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
NOTES
[1] Although the trial court did not cite the jurisprudence upon which it relied in making its decision, we agree with Mydatt that it is evident from the record that the trial court found the decision of our Louisiana Supreme Court in Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.4/12/05), 907 So.2d 37, discussed below, to be controlling.
[2] We note that the fifth circuit recently vacated a summary judgment granted in favor of third party plaintiffs asserting contractual defense and indemnity claims based upon the holding of Suire. In so doing, the fifth circuit noted that, in Suire, the supreme "court held unambiguously that any claim under an indemnity-defense clause in a contract is premature until the indemnitee has actually made payment or sustained a loss." Gentry v. West Jefferson Med. Ctr., 05-687, p. 3 (La.App. 5 Cir. 2/27/06), 925 So.2d 661, 662. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559850/ | 403 F.Supp. 1350 (1975)
Bennie A. MERCER, Plaintiff,
v.
Forrest David MATHEWS, Secretary of Health, Education and Welfare, Defendant.
Civ. A. No. 75-134.
United States District Court, E. D. Kentucky, Pikeville Division.
November 26, 1975.
Lawrence R. Webster, Pikeville, for plaintiff.
Eugene E. Siler, Jr., U. S. Atty., Lexington, Ky., for defendant.
*1351 MEMORANDUM OPINION AND ORDER
HERMANSDORFER, District Judge.
The above styled action has been brought under 42 U.S.C. § 405(g) for review of a final decision of the Secretary of Health, Education and Welfare in which plaintiff's entitlement to disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423, was found to have ceased. Both parties have moved for summary judgment pursuant to Rule 56, F.R.C.P.
Plaintiff is presently a thirty-seven year old male, who is the possessor of an eleventh grade education, but no specialized vocational training (Tr. 55). His employment history consists of jobs as belt man in a coal mine (Tr. 56), a heavy equipment operator (Tr. 57), a truck driver (Tr. 58-59), and a foundry worker (Tr. 85).
On September 2, 1970 plaintiff filed his application for benefits, alleging that he became disabled on April 2, 1970 because of a ruptured disc and sciatic and other nerve involvement (Tr. 99). A hearing examiner, considering plaintiff's claim de novo, found, on June 24, 1971, that plaintiff was entitled to benefits on the basis of a probably herniated nucleus pulposus for a period commencing with April 2, 1970 (Tr. 177-78). However, following a continuation hearing conducted on October 1, 1974 an Administrative Law Judge, whose determination became the final decision of the Secretary upon approval by the Appeals Council (Tr. 4), found that plaintiff's condition had so improved by December, 1972 that he had regained the capacity for light and sedentary forms of substantial gainful activity. Consequently, plaintiff's entitlement to disability insurance benefits was held to have ceased as of February, 1973 (Tr. 8-17).
The scope of the Court's review of this decision to terminate, as with any final decision of the Secretary under 42 U.S.C. § 405(g), is limited to determining whether the findings and conclusions of the Secretary are supported by substantial evidence, and whether the proper legal criteria were employed in the decision-making process. Ingram v. Richardson, 471 F.2d 1268, 1271 (6th Cir. 1972); Walston v. Gardner, 381 F. 2d 580, 585 (6th Cir. 1967).
The burden lay squarely upon plaintiff to establish the continuous nature of the disability. Myers v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972). However, the Secretary's concession as to plaintiff's obvious preclusion from the types of work he had previously performed was sufficient to shift the burden to the Secretary to adduce evidence that plaintiff could engage in substantial work with his lessened capacity, and that jobs are existent within the national economy which plaintiff could carry out. Montgomery v. Weinberger, 514 F.2d 1211, 1212 (6th Cir. 1975); Myers v. Weinberger, 514 F.2d 293, 294 (6th Cir. 1975).
In relation to the Secretary's burden, the testimony of Phyllis C. Shapero, a vocational consultant, was elicited (Tr. 79-94). Her enumeration of jobs was rendered in response to hypothetical questions posed by the Administrative Law Judge, who asked her to assume plaintiff's capability to perform light and sedentary work (Tr. 87). For the Secretary to then cite Mrs. Shapero's testimony as evidence of plaintiff's capacity to perform these jobs (Tr. 14-15; Memorandum for Defendant, 4-5, 8-9) requires a tautology of reasoning which is erroneous as a matter of law. Myers v. Weinberger, supra at 294. The particular vocational testimony in question is evidence of nothing more than the availability of light and sedentary jobs in the national economy for a man of plaintiff's age, background, and experience. Any determination as to plaintiff's capability for performing those jobs must have been made on the basis of substantial evidence elsewhere in the record.
*1352 Medical evidence adduced prior to the pivotal December, 1972 period, tends to support plaintiff's contention that he had been continually disabled since April 2, 1970. Dr. Curwood R. Hunter, a neurological surgeon, examined plaintiff on January 27, 1971 and again on March 10, 1971 and his findings included: marked restriction of straight leg raising on the left, and a moderate restriction on the right; a difference in knee reflexes and an absence of ankle reflexes; paraspinal muscle spasm, greater on the left side; restriction of back bending, enabling plaintiff to only reach a point where his fingertips were fifteen inches from the floor; narrowing of the lumbosacral intervertebral disc space; some cupping or beveling of the inferior surface of the fourth lumbar vertebra, and the superior and inferior surfaces of the fifth lumbar vertebra; mild straightening of the lumbar lordotic curve; and circumferential decrease of the right thigh (Tr. 215-19). The physician diagnosed acute ruptured intervertebral disc at the L4-5 interspace on the left side (Tr. 219), and commented that plaintiff was totally disabled for any type of occupation. He particularly was unable to perform work requiring lifting, stooping, bending from right to left, or involving any type of manual labor (Tr. 220).
Dr. Hunter was optimistic concerning plaintiff's chances for recovery through surgery. Based upon his own statistical probabilities, the doctor stated that the possibility of success, and plaintiff's being able to return to gainful occupation was "excellent", in the range of 90-95%. He added that he thought plaintiff's pain, which he characterized as the source of plaintiff's disability, could be at least temporarily eliminated by surgery (Tr. 221-22). Dr. Hunter stated unequivocally that, in his opinion, conservative treatment would not correct plaintiff's condition, and he strongly recommended surgery as the only means of restoring plaintiff to an employable state (Tr. 225).
Dr. Kearns R. Thompson, an orthopedic surgeon, examined plaintiff on March 9, 1972 and reported these findings, inter alia: a body list of five to ten degrees forward and five degrees to the right; flattening of the lumbar spine with an absence of the usual lordotic alignment; fairly good rotary motions, but a sixty to seventy per cent restriction in lateral bending; extension zero; forward flexion only to the point where he could reach the uppermost portion of his shins; muscle spasm, and trunk deviation to the right; positive straight-leg raising from the sitting position; and a fifty to sixty per cent narrowing of the L-S interspace (Tr. 229-30). Rather than a ruptured disc, degenerative disc disease at the L-S junction, producing low back pain, was the diagnosis made by Dr. Thompson, who stated further that although weight reduction and exercise might help plaintiff, he would probably have exacerbations and remissions of symptoms without the performance of a spinal fusion (Tr. 230).
The Administrative Law Judge's determination, however, was primarily based upon three medical reports prepared from examinations conducted between December, 1972 and December, 1973. The first of these reports, from Dr. T. Rothrock Miller, an orthopedic surgeon, was accorded particularly heavy weight by the finder of fact. Dr. Miller's report from his December 15, 1972 examination of plaintiff included these findings: straight spine, with a normal lumbar lordosis, and no paravertebral muscle spasm; forward bending was seventy five per cent of normal, while lateral and backward bending were normal; straight leg raising was positive at ninety degrees on the right and negative on the left; diminished sensation to pin pricks in both legs, except the inner right calf; essentially normal x-rays of the lumbar spine, except for a moderate narrowing at the L5-S1 interspace; and no localized sclerotic changes. Dr. Miller recommended a myelogram and surgery *1353 if indicated, but stated that at that time, plaintiff's functional limitations were insignificant. He asserted that although plaintiff was possibly incapable of heavy strenuous physical labor, he was certainly capable of moderate or light physical activity (Tr. 248-49).
Dr. William M. Ewing, also an orthopedic surgeon, noted that on January 22, 1973, plaintiff's physiological curves were moderately increased; motion in his lower back was limited to fifty per cent of normal in all directions; tendon reflexes were active at the ankle and knees; straight leg raising was negative on the right and mildly positive on the left; and LaSegue signs were negative bilaterally. X-rays showed a marked narrowing of the lumbosacral joint. Dr. Ewing diagnosed a probable post-traumatic ruptured lumboscral disc, producing what the doctor characterized as a twenty five per cent disability to the body as a whole (Tr. 251-52). The Secretary implies that this twenty five per cent rating is evidence of plaintiff's ability to engage in substantial gainful activity (Memorandum for Defendant at 8), but a virtually identical contention was considered and expressly rejected in Ratliff v. Celebrezze, 338 F.2d 978, 981-82 (6th Cir. 1974). Such a characterization is certainly of little or no benefit to the Secretary in sustaining his burden of showing what types of work plaintiff was capable of performing. Id.
Dr. Russell H. Meyers, a neurosurgeon, examined plaintiff on December 22, 1973 and reported these findings, inter alia: no spasm of paraspinal muscles, loss of lumbar physiological curve, or reduction in the reciprocal innervation of the paravertebral muscles; ranges of motion limited to one-half normal, forward, three-fifths normal bilaterally, full rotation, and one-fifth normal upon dorsal extension; paravertebral muscles were not found to be tender, but the L5-S1 interspace, left sacroiliac joint, and the left sacrosciatic notch were "exquisitely tender to digital pressure", and to a lesser degree, the courses of the left sciatic nerve and its peroneal branch were also tender; definite hypesthesia implicating the entire left foot and most of the left leg; and a narrowing of the L5-S1 interspace. Dr. Meyers diagnosed radiculitis of the first sacral nerve root, mainly on the left side, which was probably attributable to a herniation of the intervertebral disc at the L5-S1 interspace (Tr. 260-61). The physician stated that he regarded plaintiff "as 100% disabled for the performance of the types of work which he has implemented for the past several years" (Tr. 216).
In regard to Dr. Meyers' conclusion, the Secretary again asserts that the appraisal cannot support a finding of continued disability (Memorandum for Defendant at 8) and implies (Tr. 14) that the report constitutes evidence of plaintiff's capacity for alternative forms of employment. Such a construction of Dr. Meyers' opinion would appear to be expressly contrary to the physician's intended portrayal of plaintiff's condition, as indicated by the following prognosis:
"It is clear that continuing the conservative line of treatment that has been followed up to the present will bring no effectual rewards for either vocational or avocational pursuits. From this point on, the only therapy which carries any prospect of relief and resumption of wage-earning endeavors rests with surgical intervention. In this, I fully concur with Doctor Curwood Hunter, who, reportedly, was prepared to go ahead with such operation in February, 1972." (Tr. 261)
Dr. Meyers' description of pain and tenderness exhibited by plaintiff in December, 1973 is consistent with the previous testimony of Dr. Thompson who stated that plaintiff's complaints of lower back pain, evidenced by muscle spasm and trunk deviation, were "bona fide" (Tr. 244-45), lending credence to plaintiff's own testimony concerning steadily worsening pain, radiating through his leg, and aggravated by prolonged walking, *1354 standing, or sitting (Tr. 65-71). It is significant to note in this regard that Mrs. Shapero, when asked to assume that plaintiff's back condition caused constant pain, aggravated by substantial activity, testified that she knew of no jobs which would be available to him (Tr. 93). See, Glass v. Secretary of Health, Education and Welfare, 517 F.2d 224 (6th Cir. 1975); Noe v. Weinberger, 512 F.2d 588 (6th Cir. 1975).
Support for the Administrative Law Judge's decision which could arguably be deemed to be "substantial evidence" could only be found in the report from Dr. Miller, whose findings, and more strikingly, whose appraisal of plaintiff's capacity for work[1], conflict markedly with the contents of reports from other experts. Ordinarily, the resolution of conflicts in the medical evidence is a function reserved exclusively for the Secretary in his capacity as finder of fact. Wokojance v. Weinberger, 513 F. 2d 210, 212 (6th Cir. 1975); Floyd v. Finch, 441 F.2d 73, 76 (6th Cir. 1971). The Court has no desire to improperly inject itself into this exclusively administrative function by attempting to resolve the particular conflicts in the evidence, but finds simply that the one medical report from Dr. Miller, when viewed against the totality of the evidence of record, including the largely corroborated testimony of plaintiff, does not constitute "substantial evidence", or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion"[2] that plaintiff's condition had improved, without surgical intervention, to the point where he was capable of substantial gainful activity on the light and sedentary exertional levels. See generally, Miracle v. Celebrezze, 351 F.2d 361, 373 (6th Cir. 1965).
The great weight of the evidence supports the premise that plaintiff's condition could be significantly improved by surgical intervention in the form of a spinal fusion. On the other hand, the conservative treatment which has been administered to plaintiff has had little, if any, meaningful remedial effect, and according to various medical prognosticators, offers scant hope of such effect in the future. Thus, an issue is raised as to the consequences of plaintiff's failure to undergo the recommended surgery, in view of 20 C.F.R. § 404.1507, which provides, in relevant part:
"An individual with a disabling impairment which is amenable to treatment that could be expected to restore his ability to work shall be deemed to be under a disability if he is undergoing therapy prescribed by his treatment sources but his impairment has nevertheless continued to be disabling or can be expected to be disabling for at least 12 months. However, an individual who willfully fails to follow such prescribed treatment cannot by virtue of such failure be found to be under a disability. Willful failure does not exist if there is justifiable cause for failure to follow such treatment."
In Ratliff v. Celebrezze, supra at 981, Judge McAllister, noting that "[i]t is common knowledge that spinal fusion operations are often dangerous and entail much pain and suffering", held that the appellant's refusal to submit to such an operation, particularly when assurances of success had not been readily made, was not an unreasonable refusal to cooperate in remedial treatment, within the purview of 20 C.F.R. § 404.1502(g), the forerunner of the present § 404.1507. Accord, see Grizzle v. Cohen, 297 F. Supp. 790 (W.D.Va.1969); but cf. Ware v. Finch, 322 F.Supp. 1282 (W.D.N.C. 1970).
*1355 Unlike the appellant in Ratliff, plaintiff in this action has expressed his willingness to undergo the indicated surgery (Tr. 67). His reservations are based strictly upon financial considerations. At least one Court, when confronted with a similar issue, has held:
"If claimant consents to surgery but cannot get it because he is unable to finance it, his condition is not `remediable' within the meaning of the Act." Hoover v. Celebrezze, 235 F.Supp. 147, 150 (W.D.N.C.1964).
See also, Ratliff v. Celebrezze, supra at 981, wherein the relatively high cost of the surgery was one factor considered by the Court in finding the claimant's refusal to submit to be reasonable.
The Court has determined that the record does not contain substantial evidence which would support the Administrative Law Judge's finding that plaintiff's condition had so improved by December, 1972 that he was capable of light and sedentary substantial gainful activity. A strong inference may be drawn from the evidence as a whole that plaintiff's disability may likely be remedied by surgical intervention, which plaintiff has not categorically refused to undergo, but rather, which he has put off for purely economic reasons. Since the Secretary has made no express finding as to whether the lack of financial resources constitutes "justifiable cause" for plaintiff's failure to undergo the indicated surgery, and because this issue involves a question of fact for the Secretary, Simari v. Secretary of Health, Education and Welfare, 297 F.Supp. 483, 485 (D.Mass.1969), it is the judgment of the Court that this matter be remanded to the Secretary for further proceedings, including, but not limited to, determination of the following issues:
(1) Whether plaintiff's alleged lack of financial resources constitutes "justifiable cause" for his failure to undergo the recommended surgery;
(2) If not, whether plaintiff's conduct amounts to willful failure to follow prescribed treatment, within the meaning of 20 C.F.R. § 404.1507.
Accordingly, it is ordered that this matter be, and it hereby is, remanded to the Secretary for further proceedings in conformity with this Memorandum Opinion.
It is further ordered that this action be, and it hereby is, stricken from the docket.
NOTES
[1] A physician's opinion as to ability or disability for work, while a factor to be considered where supported by clinical findings, is not determinative of the ultimate issue before the Secretary. 20 C.F.R. § 404.1526; Giddings v. Richardson, 480 F.2d 652, 655 (6th Cir. 1973).
[2] Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559890/ | 403 F.Supp. 439 (1975)
Robert L. MELVILLE, Individually and Derivatively in the Right and for the Benefit of Theil, Inc., Plaintiff,
v.
Walter C. WANTSCHEK et al., Defendants.
FEDERAL DEPOSIT INSURANCE CORPORATION, as receiver, Third-party Plaintiff,
v.
Henry A. SHAPIRO, Esq., et al., Third-party Defendants.
No. 69 Civ. 1617.
United States District Court, E. D. New York.
October 31, 1975.
*440 Schwenke & Devine, New York City, for plaintiff.
Sahn, Shapiro & Epstein, New York City, for Franklin National Bank.
Konheim, Halpern & Bleiwas, New York City, for Shapiro, Driscoll & Gottschalk on cross claims.
Shapiro, Driscoll & Canzomeri, Franklin Square, N. Y., for Shapiro, Driscoll & Gottschalk on main claim.
Santangelo & Santangelo, New York City, for Theil, Inc. (3d cause).
John Mitchell, New York City, for Theil Inc. (1st & 2d cause), and Wantschek, Sicinski, Rossi, Guttenberg and Walsh.
OPINION
PLATT, District Judge.
After six years of pre-trial maneuvering and the fairly recent filing by the plaintiff of an amended complaint and an amended pre-trial order, defendant Franklin National Bank (Federal Deposit Insurance Corporation, as Receiver hereinafter "Franklin") has moved pursuant to FRCP 56 for summary judgent with respect to the first and second claims against it (the third through sixth claims are not made against said defendant) in plaintiff's amended complaint.
Plaintiff in his first claim against Franklin alleges that Franklin, as transfer agent of Theil, Inc., wilfully, wrongfully, negligently and recklessly has since July 2, 1968 refused to permit plaintiff to sell some 9,888 shares of unregistered Theil stock and that as a result thereof plaintiff has been damaged in the sum of at least $165,000.
In his second claim, plaintiff realleges his first claim and aserts that Franklin wrongfully and fraudulently exercised dominion over and converted to its own use and benefit said 9,888 shares of Theil stock and seeks damages in the sum of $183,000 plus punitive damages in the sum of $500,000.
The following are facts which were stipulated by the parties or as to which there appears to be no dispute:
Plaintiff was and is a citizen of the State of Pennsylvania.
Defendant Theil, Inc. (formerly Theil Publications, Inc.; herein "Theil") was and is a New York corporation with its principal place of business in this State.
On September 23, 1971 Theil filed an assignment for the benefit of creditors in Nassau County, New York.
Franklin was a national banking association organized and existing under the laws of the United States.
On October 8, 1974 the Comptroller of the Currency declared Franklin to be insolvent and designated Federal Deposit Insurance Corporation as Receiver for said bank.
*441 At all relevant times Franklin acted as transfer agent for the shares of stock of Theil pursuant to an appointment dated June 10, 1961.
At all relevant times defendants Henry A. Shapiro, Thomas L. Driscoll, Jr. and Stanley Gottschalk ("Gottschalk") comprised a law partnership doing business as Shapiro, Driscoll & Gottschalk and prior to November 1970 they were and acted as counsel for Theil.
In or about April 1963 plaintiff became employed by Ewing Technical Design, Inc. ("Ewing").
From 1965 through 1967 Ewing was a subsidiary of Theil.
Plaintiff issued the following checks to the following persons in payment for Theil's stock:
Amount of
Seller Date Check
Nathan Abramowitz June 29, 1965 $2,625.00
Louis Sepe June 29, 1965 2,400.00
Louis Sepe Feb. 6, 1966 403.00
Louis Sepe Feb. 6, 1966 40.00
Louis Sepe July 26, 1966 2,000.00
Walter Wantschek May 29, 1967 2,100.00
Plaintiff wrote the following investment letters pertaining to his purchases of Theil stock:
1. June 29, 1965 to Nathan Abramowitz for 3500 shares.
2. June 29, 1965 to Louis Sepe for 3200 shares.
3. June 16, 1966 to Messrs. Shapiro, Driscoll & Gottschalk for 9,888 shares.
4. May 29, 1967 to Messrs. Shapiro, Driscoll & Gottschalk for 2,000 shares.
Theil common stock was issued in plaintiff's name as follows:
1. Certificate CU 6039,888 shares issued July 1, 1966
2. Certificate CU 657-2,000 shares issued July 21, 1967
Investment stops were placed on records of Franklin for plaintiff's shares as follows:
1. July 5, 1966 with respect to CU 603-9,888 shares
2. July 24, 1967 with respect to CU 657-2,000 shares
Plaintiff concededly was aware of the contents of the investment letters which he signed.
By letter dated February 7, 1968, plaintiff applied to the Securities and Exchange Commission for a "no-action" letter on the sale of his 11,888 shares of Theil common stock without compliance with the registration requirements of the Securities Act of 1933. In reply thereto in a letter dated February 23, 1968 the Assistant Chief Counsel of the Division of Corporation Finance of the SEC wrote to the plaintiff in pertinent part that:
"You state that you are employed as a salesman for Ewing Technical Design, Inc. (`Ewing'), a subsidiary of Theil, Inc., and that you have never been an officer, director, or controlling person in Theil, Inc., nor in any subsidiary of Theil, Inc. You further state that you acquired the above-mentioned stock as follows: 9,888 shares were purchased from Nathan Abramowitz, former President of Ewing, and were issued to you on July 1, 1966 under an investment letter. In May 1967, you purchased an additional 2,000 shares from Walter W. Wantschek, President of Theil, Inc., which shares were issued to you on July 21, 1967, also under an investment letter.
"On November 22, 1967, you state you filed for divorce in Philadelphia, Pennsylvania. You desire to sell these securities in order to pay for the costs of your pending divorce and attorneys fees.
"On the basis of the facts presented, and in view of the short period of time the shares have been held, we are unable to conclude that these shares may be sold without compliance with the registration requirements of the Securities Act of 1933."
*442 On March 10, 1968 the plaintiff wrote to Mr. Stanley Gottschalk requesting an opinion letter permitting him to sell 2,000 shares of his Theil stock. Plaintiff, however, did not advise Gottschalk that he had just made an application to the SEC for a "no-action" letter which had been denied.
Based on various representations in plaintiff's letter dated March 10, 1968, regarding his need for money to pay funeral expenses and his shortage of cash, Gottschalk's law firm, by letter dated March 12, 1968 to Franklin, rendered an opinion that the transfer by the plaintiff of 2,000 of these unregistered shares would not constitute a violation of the Securities Act of 1933, as amended.
On March 15, 1968, plaintiff, through his securities broker, submitted to Franklin Certificate CU 603 for 9,888 shares with Mr. Gottschalk's opinion letter of March 12, 1968 and plaintiff sold 2,000 shares of Theil, Inc. stock as follows:
1. March 19, 19681,000 shares for $4,880;
2. April 11, 1968 500 shares for $2,554.35;
3. April 18, 1968 500 shares for $2,501.85
__________
Total $9,636.20
On May 31, 1968 plaintiff was discharged by Ewing.
In a letter dated July 2, 1968, plaintiff wrote Gottschalk again requesting his opinion that he was free to sell all of his shares of Theil based on a claim that he had held the shares long enough and that his "circumstances have changed decidedly" in that "in seeking new employment I have found a distinct reluctance on the part of potential employers to hire me because of my stock position with Theil" and in that he had lost his position with Theil.
Even though plaintiff still had not advised Gottschalk that he had made previous application to the SEC for a "no-action" letter which request had been turned down, Gottschalk declined to issue the requested opinion letter and suggested to plaintiff that he apply to the SEC. Plaintiff, however, did not accept this suggestion.
By agreement dated August 7, 1968, plaintiff began a new employment with Numerical Control Program & Education, Inc. ("Numerical") under the terms of which plaintiff's employment was not to commence until October 14, 1968. Plaintiff invested in Numerical, purchasing 15,000 shares at a total price of $13,800 which he obtained by a loan from Philadelphia National Bank. Plaintiff and his wife executed a note evidencing such loan and as security therefor plaintiff pledged 6,000 shares of his Theil stock. In August of 1968 plaintiff, through securities brokers, submitted to Franklin 3,000 of his Theil shares which he had not pledged with the request that registration be transferred from his name. On August 28, 1968, Franklin wrote Gottschalk asking whether the restrictions had been lifted with respect to these 3,000 shares of the plaintiff and on August 29, 1968, Gottschalk replied that to the best of his knowledge the stock continued restricted.
On October 15, 1968, Messrs. Dechert, Price & Rhoads, a distinguished Philadelphia law firm, wrote to Gottschalk on behalf of the plaintiff stating that they had been advised that Gottschalk had taken the position that Mr. Melville was entitled to sell no more than 1% of the outstanding stock of Theil within any six month period which would permit him to sell approximately 3,550 shares on a date after October 18, 1968 and asking Gottschalk to advise Theil's transfer agent (Franklin) of his right to make this sale at that time. There is no indication that Franklin ever received a copy or that it was advised of the contents of such letter.
On October 17, 1968, Mr. Gottschalk wrote to Messrs. Dechert, Price & Rhoads advising them that plaintiff had purchased his stock under a "letter of investment" and that before his firm could write an opinion permitting him to sell the stock "it must be shown that there is a substantial change of circumstances".
*443 On October 21, 1968, again without a copy to Franklin, Messrs. Dechert, Price & Rhoads wrote to Gottschalk stating that plaintiff had been out of work for approximately three months and that as an incident to his obtaining new employment he had to purchase stock of his new employer and that he was unable to pay for such stock without selling his Theil stock and asked for Gottschalk's opinion that such constituted a sufficient change of circumstances so that plaintiff might sell his stock.
On October 29, 1968, Mr. Gottschalk wrote plaintiff's Philadelphia lawyers stating that based on the facts given his firm could not issue the requested opinion and suggesting that plaintiff attempt to procure a "no-action" letter from the SEC.
On August 15, 1968 plaintiff travelled to Europe with his wife and children where he stayed until October 11, 1968, and as heretofore indicated, plaintiff had paid for his stock investment in his new employer with the proceeds of a loan he obtained from a Philadelphia bank, which loan he secured by the pledge of some of his Theil stock as collateral. It is further conceded that Messrs. Dechert, Price & Rhoads, were counsel to plaintiff's new employer Numerical.
On December 27, 1968, Messrs. Dechert, Price & Rhoads wrote Franklin stating that the plaintiff had been prevented from selling his Theil stock because a "change of circumstances" was necessary before such a sale could be permitted and advising Franklin that in their opinion the plaintiff had experienced such a change of circumstances and threatening it with a lawsuit if it refused to transfer the shares sold by the plaintiff.
On January 3, 1969, Mr. Gottschalk replied stating that the facts presented by the plaintiff raised a question in his mind concerning the "change of circumstances" and under such conditions he could not write the requested opinion letter and again suggested that the plaintiff seek a "no-action" letter from the SEC.
During the period from January through April, 1969, plaintiff made the following open market (over-the-counter) sales of Theil stock:
Settlement No. of Net
Date Shares Proceeds
(a) 1/24/69 100 $ 809.75
(b) 2/ 7/69 100 1,280.00
(c) 2/17/69 100 1,577.00
(d) 2/19/69 100 1,775.00
(e) 2/20/69 100 1,799.75
(f) 4/ 3/69 100 1,478.00
(g) 4/ 7/69 100 1,478.00
(h) 4/10/69 100 1,453.25
(i) 4/11/69 100 1,428.50
The submissions of Theil certificates to Franklin in connection with these sales were the first submissions by plaintiff (or buyer's brokers) pursuant to sale transactions since April, 1968. Franklin declined to transfer registration of the stock certificates which plaintiff delivered in fulfillment of these sale contracts and referred the submitters to Mr. Gottschalk, counsel for Theil.
On November 3, 1969, the New York law firm of Messrs. Skadden, Arps, Slate, Meagher & Flom wrote to Franklin on behalf of plaintiff alleging that Franklin and others acting in concert with them had failed "to permit Mr. Melville from registering shares of Theil common stock owned by him for transfer."
On November 7, 1969, Mr. Gottschalk replied to said New York law firm stating that "If Mr. Melville will undertake to pay the expenses of registration (filing registration statement)" he would be happy to discuss with Theil "what further steps, if any, can be taken concerning the proposed registration."
Messrs. Skadden, Arps, et al., apparently replied further stating that plaintiff wished permission to sell by exemption from registration, to which Gottschalk on November 14, 1969 wrote again that he had recently "explained to Mr. Melville what information and factual data would be required from him to achieve his desired purpose (of showing a change of circumstances) at which *444 time Mr. Melville promised that he would send to me this information" which plaintiff apparently never did.
In order to cover the above-indicated open sale contracts which Franklin refused to transfer, plaintiff made open market purchases as follows:
Settlement No. of Total
Date Shares Cost
5/ 1/69 100 $1,370.50
5/ 2/69 100 1,471.50
7/31/69 100 789.75
9/11/69 200 1,781.50
12/ 9/69 200 1,049.26
THE ISSUE
With respect to Franklin, the issue for determination on this motion for summary judgment would appear to be whether or not Franklin since July 2, 1968 willfully, wrongfully, negligently and/or recklessly refused to permit plaintiff to sell all or any part of his remaining shares of Theil stock.
Plaintiff appears to claim that Franklin's negligence is shown in its failure to follow its usual procedure for resolving conflicting legal opinions on the transferability of stock in this particular case. More specifically, plaintiff claims that the pre-trial depositions of Franklin established that when stock subject to an investment letter was received by Franklin it was Franklin's normal procedure to inquire of issuer's counsel as to the status of the stock and if such counsel rendered an opinion that transfer would be wrongful and when Franklin had received a contrary opinion from a shareholder's attorney, then the matter would be referred to Franklin's counsel. Plaintiff's counsel argues that such was the situation in the case at bar but that Franklin never referred the matter to its counsel "in clear disregard of normal procedure".
DISCUSSION
As a preliminary matter, it it should be noted that Franklin was on written notice that all of plaintiff's shares in Theil were subject to investment letters signed by the plaintiff and it was apparently repeatedly advised by counsel of the issuer Theil that plaintiff's stock continued subject to such investment letters or continued restricted.
Although Franklin did receive a letter from Messrs. Dechert, Price & Rhoads that in their opinion plaintiff should be permitted to sell his stock because of his change of circumstances, such letter did not constitute an "opinion letter" in the traditional sense. It contained no statement of facts and indeed not even an indication as to the basis for the alleged opinion.
In each instance where it received a letter from counsel for the plaintiff, Franklin took the appropriate step under the circumstances, namely: it referred the letter to counsel for the issuer for the further development of the facts and the basis for the inquiry.
Franklin appears to be unquestionably correct in its contention that since no facts were presented to it by the plaintiff or his counsel there was in effect nothing for it to present it to its counsel.
In fact, a careful analysis of what has been presented to this Court on this motion shows that little, if anything but claims that the plaintiff was entitled to transfer were presented to Franklin and this is true even if it is assumed that all of the information given to Mr. Gottschalk was also transmitted to Franklin.
If anything stands out from the documents furnished to the Court on this motion, it is that Mr. Gottschalk explained to the plaintiff what information and factual data would be required from him to achieve his desired purpose and plaintiff never furnished the same. Moreover, Mr. Gottschalk repeatedly urged plaintiff and his counsel to obtain a "no-action" letter from the SEC which plaintiff for some reason did not do.
Lurking in the background of this whole affair, and perhaps the reason for plaintiff's failure to seek a "no-action" *445 letter from the SEC, was plaintiff's undisclosed prior attempt to obtain such a letter from the SEC which, as indicated above, was rejected.
Plaintiff argues on the one hand, in effect, that his original investment intent is unassailable and that the lapse of time since his acquisition plus his alleged "change of circumstances" were sufficient to require Franklin to take more steps than it did in connection with his requested transfers and, on the other hand, that his shares should never have been restricted in the first instance and, in effect, that Franklin should have known this or made an investigation to determine it.
With respect to plaintiff's first argument, Franklin presumably knew that the plaintiff acquired his shares of stock between June 29, 1965 and May 29, 1967 and gave investment letters with respect to each of his purchases. Franklin presumably also was aware of the SEC's so-called "fungibility" rule which attaches with each new acquisition a new starting period to all holdings so that in the case at bar, insofar as the SEC was concerned, plaintiff was deemed to have acquired all of his shares on May 29, 1967.
Franklin further presumably knew that the plaintiff started attempting to sell his shares in March of 1968, less than ten month after such "acquisition" date. Actually in fact, plaintiff unbeknownst to Franklin had started a month earlier when he applied to the SEC for a "no-action" letter.
In July, August, October and December of 1968 plaintiff made further attempts to sell his shares, and, as indicated above, in no instance did the plaintiff set forth the kind of statement of facts which would be required to show a "change of circumstances" which would have justified the issuance of a "no-action" letter or an opinion of counsel to such effect. The same situation prevailed in 1969.
Moreover, it appears highly doubtful, based on the above stated stipulated facts, whether plaintiff was ever in a position to present facts which would have supported such a letter or opinion. Under the circumstances, it cannot be said to have been negligence on the part of Franklin to have done what it did on this score.
Secondly, plaintiff, as indicated, has belatedly advanced the argument that his stock never should have been restricted in the first instance.
In light of plaintiff's prior unsuccessful attempt to obtain a "no-action" letter on the basis that his stock was restricted and that he never made any such suggestion to Franklin or Gottschalk until the very eve of this motion, it ill behooves him now to claim that his unregistered shares of Theil stock were free for transfer ab initio because he never acquired them from the issuer or from "control persons" within the meaning of the Securities Act and the regulations promulgated thereunder.
In any event, regardless of whether such persons were "control persons", they too acquired and held the shares under investment letters and clearly acted as "links in the chain of transmission of securities issuers * * to the public" (Disclosure to Investors A Reappraisal of Federal Administrative Policies under the 1933 and 1934 Acts the Wheat Report 161, Goldberg, Private Placement and Restricted Securities, 1972 § 7.3[b] at page 7-10, Loss, Securities Regulation Chap. 3A at page 550) and plaintiff represented a further link in transmitting such unregistered shares into the hands of the general investing public and hence was a "statutory underwriter" as that term is commonly used. See SEC v. Guild Films Co., 279 F.2d 485 (2d Cir. 1960).
Far from acting negligently and wrongfully as plaintiff alleges, Franklin and Mr. Gottschalk appear to have acted prudently and properly in making every effort to comply with the provisions of the law. Any other position taken by either or both of them might well have *446 subjected them to action by the Securities and Exchange Commission.
Under all of the circumstances, there is no question in the Court's mind but that Franklin's motion for summary judgment must be granted and it is
So ordered.
SUPPLEMENTAL OPINION
Defendants Stanley Gottschalk ("Gottchalk"), Henry A. Shapiro ("Shapiro"), Thomas L. Driscoll, Jr. ("Driscoll") and Shapiro, Driscoll & Gottschalk ("Gottschalk's law firm"), have also moved for summary judgment pursuant to Federal Rule of Civil Procedure 56(b) on the grounds that plaintiff's Fourth and Fifth claims (the only ones against them) in plaintiff's amended complaint fail to state a cause of action, are barred by the applicable statute of limitations and laches and that there is no triable issue of fact with respect to said defendants.
What has been said in this Court's opinion on the similar motion of the defendant Franklin National Bank being filed simultaneously herewith would appear to be equally applicable to these defendants. Plaintiff, however, charges these defendants with "conversion" and "fraud" in his aforesaid claims against them.
Defendants clearly appear to be correct in their contention that no facts have been alleged by the plaintiff which would sustain a claim for conversion and hence plaintiff may not pursue his claim on this basis. Moreover, any claim for conversion would appear to be barred by the three year Statute of Limitations prescribed by Section 214 of the New York Civil Practice Law and Rules.
There are, however, facts stated in the amended complaint upon which a claim of fraud might be based. In his amended complaint served and filed in February of 1975 plaintiff alleges that "In the period from 1968 through 1970 Gottschalk, acting on behalf of the Partnership, refused to lift stop transfer orders which had been imposed upon plaintiff's stock in Theil, Inc. * * * In so refusing to lift stop transfer orders against plaintiff's stock Gottschalk acted unlawfully, capriciously, in bad faith, and for his personal enrichment, or, in the alternative, for the enrichment of the partnership, in that he demanded from plaintiff the payment of $1500 as a prerequisite to lifting the stop transfer orders against plaintiff's stock."
In an affidavit filed in opposition to this motion, plaintiff avers that the alleged fraud occurred in a meeting held in August of 1969 in which the defendant Gottschalk is alleged to have demanded $1500 to transfer plaintiff's shares of stock.
It is true that the defendants claim that there was no communication between any of them and the plaintiff or his representatives after January of 1969 other than a letter dated November 3, 1969 from plaintiff's attorney and replies thereto in which there were no references to any such demand. This, however, merely raises a question of fact which must be tried by a jury.
If the proof shows that the alleged demand was made more than six years prior to the service and filing of the amended complaint, then, of course, the six year Statute of Limitations for fraud in New York might be applicable but here again this is an issue of fact for determination at the trial.
The defendant Shapiro has filed a separate affidavit in which he states that he retired as a member of the Gottschalk law firm and severed his connection with it on March 31, 1967. This is confirmed by an affidavit of his "former" partner, the defendant Driscoll.
Unfortunately for the defendant Shapiro, however, his "former" partners may have continued to hold him out to the public as a full partner as is evident from the letterhead used in the above-mentioned reply to plaintiff's counsel under date of November 7, 1969. Such *447 being the case, this issue will also have to await the trial of this case.
For the foregoing reasons said defendants' motion for summary judgment must be and the same hereby is denied.
So ordered.
The case will be called on November 14th at 11 AM to make arrangements for an appropriate trial date. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559893/ | 403 F.Supp. 638 (1975)
George F. ROBINSON, Plaintiff,
v.
UNITED STATES BOARD OF PAROLE, Defendant.
No. Civ-75-289.
United States District Court, W. D. New York.
October 30, 1975.
*639 Martoche, Collesano, Abramowitz & Geller, Buffalo, N. Y. (Philip B. Abramowitz, Buffalo, N. Y., of counsel), for plaintiff.
Richard J. Arcara, U. S. Atty., Buffalo, N. Y. (Kenneth A. Cohen, Buffalo, N. Y., of counsel), for the Government.
CURTIN, Chief Judge.
On March 1, 1973, plaintiff was convicted of violating 18 U.S.C. § 2113(b) in that he "[w]ilfully, knowingly and unlawfully did take and carry away, with intent to steal and purloin money belonging to an FDIC-Insured bank, (Ct. 1)," and he was also convicted of violating 18 U.S.C. § 2113(a) in that he "[e]ntered an FDIC-Insured bank with the intent to commit in said bank a larceny, by means of stealing from the bank certain money belonging to and in the care, custody and control of the bank, (Ct. 2)." Judgment and Commitment order, United States v. Robinson, CR-1973-88 (W.D.N.Y.1973). Each count arose out of separate incidents at the same bank. He was sentenced, after a period of study under 18 U.S.C. § 4208(b), to five-year terms on each count to be served concurrently. Further, on March 23, 1973, he was convicted of possession of heroin in violation of 21 U.S.C. § 844(a) and sentenced to one year to be served concurrently with the above convictions. Judgment and Commitment order, United States v. Robinson, CR-1973-138 (W.D.N.Y.1973). The plaintiff is presently serving these sentences at the Federal Institution at Lewisburg, Pennsylvania.
On September 11, 1974, plaintiff made an appearance before the Board of Parole and a hearing was held. At that time the Board recommended that he be continued to the expiration of his term and parole was denied. This statement was given to the plaintiff:
Your offense behavior has been rated as very high severity. You have a salient factor score of 2.
Guidelines established by the Board which consider the above factors indicate a range of 55-75 months to be served before release for adult cases with good institutional program performance and adjustment. You have been in custody a total of 20 months. After careful consideration of all relevant factors and information presented, it is found that a decision outside the guidelines at this consideration [sic] does not appear warranted.
Letter from Val D. Emery, Case Analyst, United States Board of Parole, dated December 6, 1974.[1]
The plaintiff has alleged and the government has not denied exhaustion of administrative remedies.
On July 16, 1975, this suit was commenced. The plaintiff alleges that the reasons the Board gave him for denial of parole were clearly erroneous and unlawful, and that the proceedings which resulted in the denial and the explanation provided violated his rights to equal protection and due process of the law. Robinson requests the court to remand the case to the Board with instructions that a new hearing be held and that the Board place the plaintiff on parole after he has served thirty-eight months of his sentence.
This court in its recent decision, Billiteri v. United States Board of Parole, 385 F.Supp. 1217 (W.D.N.Y.1974), examined the bases for reviewing decisions of the Board of Parole and concluded that "judicial examination of the action of the Board to determine whether *640 or not there has been an abuse of discretion" is proper when the plaintiff, before incarceration, resided in the district in which he seeks relief.[2]Id. at 1218-19; see U. S. A. ex rel. Harrison v. Pace, 357 F.Supp. 354, 356 (E.D.Pa. 1973). Here, the plaintiff resided in the Western District of New York prior to his incarceration.
The plaintiff places primary reliance in his claim on the fact that records in the parole file indicate that he was convicted of "bank robbery," that this information is false and erroneous, and that this mistake resulted in his offense characteristic being placed in the "very high" category rather than the "high." See 28 C.F.R. 2.20, Adult Guidelines Table (1974). According to plaintiff, this alleged improper placement vitally affects the Board's decision as to the amount of time he must spend incarcerated.
The government submitted affidavits from a senior case analyst who attempted to justify the "very high" classification. But, since the Board did not provide these reasons to the plaintiff after denying his parole, the court will not allow someone later to hypothesize reasons for the decision after the fact. The affidavit from the Board is useful only in that it gives the court partial insight into the contents of the plaintiff's file.
The Board must provide the inmate with reasons for denial of his parole. Billiteri, supra, at 1219; United States ex rel. Johnson v. Chairman, New York State Board of Parole, 500 F.2d 925, 934-35 (2d Cir.), judgment vacated as moot sub nom., Regan v. Johnson, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974); Childs v. United States Board of Parole, 511 F.2d 1270, 1281-84 (D.C. Cir. 1974); see also United States v. Stewart, 478 F.2d 106 (2d Cir. 1973); Lupo v. Norton, 371 F.Supp. 156, 161 (D. Conn.1974). Although, in Lupo, the district court held that due process did not require that reasons be given upon denial of parole, it did hold that the Board's own recently adopted regulations would require that reasons be given. Lupo, supra, at 161; see 28 C.F.R. § 2.13(d) (1974). This requirement that reasons be given would be valueless if the Board were allowed to meet it by mere conclusory statements with no indication of the factual determinations for those conclusions. For, if the Board does not set forth these factual bases (or it is allowed to provide them much later when the inmate seeks relief in federal court), the inmate will not know why he has been denied parole so that he can improve his conduct, or correct mistakes, and the district court will not be able to determine if there has been an abuse of discretion. Candarini v. Attorney General of United States, 369 F.Supp. 1132, 1137 (E.D.N.Y.1974); Harrison, supra, at 357.
In the instant case, the plaintiff alleges his offense characteristic was improperly placed in the "very high" category because his parole file indicated he was convicted of bank robbery. This categorization, combined with the plaintiff's salient factor score of two, resulted in the Board concluding that his total time in prison should be between 55-75 months. See Letter from Val D. Emery, supra, and 28 C.F.R. § 2.20, Adult Guidelines Table (1974). The plaintiff supports his allegations with a copy of a "Progress Report" dated September 2, 1974, which indicates in one of the headings *641 that his sentence was "5 yrs Bank Robbery." The text of the report contains this statement: "Robinson received a 30 year term under Provision of 4208(b) for charges of Bank Larceny and Attempted Bank Larceny." The Judgement and Commitment order cited at the beginning of this decision and the transcript of the sentencing clearly indicate that Robinson was never convicted of "Bank Robbery" and that he was sentenced to two concurrent five-year terms under § 4208(a)(2).[3] Since the Board did not give reasons for its decision to deny parole, it cannot be accurately determined what part that erroneous "Progress Report" played in that determination. However, the Board's regulations mandate:
Decisions as to whether a parole shall be granted or denied shall be determined on the basis of the application, if any, submitted by the prisoner, together with the classification study and all reports assembled by all the services which shall have been active in the development of the case. 28 C.F.R. § 2.21 (1974).
It must be assumed that the erroneous "Progress Report" was considered by the Board in denying Robinson parole. Indeed, it was the most recent document before the Board and could have received preferential treatment because of that fact and because it contains the recommendations of the parole personnel working most closely with the inmate in the institution.
An examination of the statute under which Robinson was convicted, 18 U.S.C. § 2113, indicates the source of part of the confusion.[4] What is commonly termed bank robbery is proscribed in the first paragraph of § 2113(a). But Robinson was indicted and convicted of violating the second paragraph of § 2113(a) and the first paragraph of § 2113(b). Apparently the parole officer described the plaintiff's offense as "Bank Robbery" after seeing Robinson's conviction was for violating § 2113(a).
Further confusion is added to the case because the Board improperly characterized Robinson's conviction for violation of § 2113(a) as "Attempted Larceny" from the time it compiled his presentence report (April, 1973) up to and including the affidavits in this case. Affidavit of John F. Sicoli, United States Board of Parole. In Count 1, the plaintiff was convicted of bank larceny [§ 2113(b)], which carries a maximum penalty of ten years and/or a fine of $5,000 if the amount taken exceeds $100. However, identifying Robinson's conviction under Count 2 for violating § *642 2113(a), which has a maximum penalty of twenty years and/or a fine of $5,000 as "Attempted Larceny," is incorrect. Under Count 2, the plaintiff was convicted of entering a bank with the intent to commit a larceny. While an individual who attempts a larceny and is unsuccessful may be charged under § 2113(a), proof of the attempted larceny is useful, although not necessary, since the elements which have to be proven are entering or attempting to enter a bank and intent to commit a felony or larceny. Prince v. United States, 352 U.S. 322, 328, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957); see Prince and Jerome v. United States, 318 U.S. 101, 63 S.Ct. 483, 87 L.Ed. 640 (1943), for a history of 18 U.S.C. § 2113. This and not attempted larceny is the crime for which Robinson was indicted and for which he was convicted. United States v. Robinson, CR-1973-88, Indictment and Instruction to the Jury, Transcript, Vol. 3 at 290 (W.D.N.Y. 1973). This section can be contrasted with § 2113(b), in which the elements of the crime are taking and carrying away with the intent to steal or purloin. Section 2113(b) was designed "to cover a situation where a person entered a bank with no unlawful intent, but after entry formed an intent to commit, and committed a larceny, or where a larceny was committed and the fact of entry with unlawful intent could not be established." Purdom v. United States, 249 F.2d 822, 827 (10th Cir. 1957), cert. denied, 355 U.S. 913, 78 S.Ct. 341, 2 L.Ed. 2d 273 (1958); Brunjes v. United States, 329 F.2d 339, 341 (7th Cir.), cert. denied, 377 U.S. 983, 84 S.Ct. 1892, 12 L.Ed.2d 751 (1964). To construe the second paragraph of § 2113(a) as attempted larceny results in the incongruous result of a successful larcenist facing a ten-year maximum sentence and the unsuccessful larcenist facing a twenty-year maximum term. Congress did not intend such a result. Purdom, supra, at 827.
Since the Board did not provide the factual bases for its conclusions in denying Robinson parole, and it has been proven that there was erroneous information in his parole file, this case is remanded to the Board for a new hearing and a decision within sixty days of the date of this order. Billiteri, supra, at 1220. Before this hearing, the errors contained in the plaintiff's file must be corrected. The Board must base its decision ". . . upon consideration of all relevant factors, ..." and it must furnish "... to the inmate both the grounds for the decision ... and the essential facts upon which the Board's inferences are based . . .." Johnson, supra, at 934.
The Board should note that it may not place Robinson's offense characteristic in the "very high" category even though his conviction of entering a bank with intent to commit a larceny is in the same statutory section and subsection and carries the same maximum penalty as bank robbery, which is in the "very high" category.[5] The Supreme Court made it clear that the crime of entering or attempting to enter a bank with intent to commit a felony or larceny is "... less serious than robbery ..." and is considered one of the "... lesser offenses." Prince, supra, 352 U.S. at 326-327, 77 S.Ct. at 405; see also Williamson v. United States, 265 F.2d 236, 238 (5th Cir. 1959).
When the government attempted to justify the "very high" rating given as plaintiff's offense characteristic in this court, it argued that the Board could increase the severity of the offenses since multiple crimes were involved. 28 C.F.R. § 2.20, Adult Guidelines Table, n. 3 (1974). This court has already indicated *643 that it would not consider such after-the-fact justification since it had not been given in the notice to the prisoner. However, one point that was raised in that exchange deserves comment. The plaintiff's counsel complained that if the Board could use Robinson's conviction for possession of narcotics in such a fashion, it would be counting that conviction twice, once in the offense characteristic categorization, and a second time in the salient factor score computation. See 28 C.F.R. § 2.20, Adult Guidelines Evaluation, Worksheet, Item F. (1974). While this point need not be decided, the court notes that drug dependence or addiction, if it can be established that the inmate became involved in the crime because of it, may be a mitigating factor that would reduce the offense severity under 28 C.F.R. § 2.20(d) (1974). Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 837 (1975).
This case is remanded to the Board with instructions that a new hearing be held and a decision rendered within sixty days of the date of this order.
So ordered.
NOTES
[1] The plaintiff misplaced the initial notice sent to him by the Board; however, he reconstructed the notice from memory in his correspondence to the court and a comparison of this with the letter sent by Mr. Emery indicates he accurately reconstructed the original notice.
[2] At oral argument, counsel for the government contended that this court did not have jurisdiction in the instant case, citing United States of America v. Huss and Smilow, 520 F.2d 598 (2d Cir., decided July 25, 1975). Most crucial to that court's finding of lack of jurisdiction in that case, where a motion seeking to compel the government to provide special diets for the incarcerated defendants was made after sentence in a criminal case, were the facts that ". . . the application below was not filed as a civil action, no docketing fee was paid, no summons or complaint was filed or served, and no federal respondent was named or served" and "neither the two-page motion nor the testimony indicates facts which would establish venue . . . ." Id., at 605. In the instant case, every one of these requirements has been met.
[3] Since Robinson was originally sentenced under 18 U.S.C. §§ 4208(a) and 4208(b) for study and the maximum sentences he could have received totalled thirty years, it was correct to say he was sentenced to thirty years for a time. But, after he was sentenced to two five-year concurrent terms in September, 1973, it was incorrect to say only that he was sentenced to thirty years.
[4] Section 2113(a) and (b) of Title 18, United States Code read as follows:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank or such savings and loan association and in violation of any statute of the United States, or any larceny
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both; . . ..
[5] 28 C.F.R. § 2.20, Adult Guidelines Tables, n. 1 (1974). This section authorizes such increase in some instances: "If an offense is not listed above, the proper category may be obtained by comparing the severity of the offense behavior with those of similar offenses listed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3031385/ | FILED
NOT FOR PUBLICATION JAN 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RHONDA WILKINSON, No. 07-15627
Plaintiff - Appellant, D.C. No. CV-05-01803-JCM
v.
MEMORANDUM *
CLARK COUNTY SCHOOL DISTRICT,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 10, 2009
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, ** District
Judge.
Appellant, Rhonda Wilkinson, appeals the district court’s entry of summary
judgment in her case alleging sexual harassment and unlawful retaliation during
her employment by the Clark County School District.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Barbara M. Lynn, U.S. District Judge for the Northern
District of Texas, sitting by designation.
Appellant alleged that the conduct of one of her coworkers was so severe
and pervasive that it created a hostile work environment. See Porter v. Cal. Dep’t
of Corr., 419 F.3d 885, 892 (9th Cir. 2005). While some of the conduct
complained of was unwelcome and sexual in nature, it was not so severe as to
constitute a hostile environment. See id. Summary judgment was appropriate.
The retaliation claim is founded upon her permanent transfer to a different
facility involving allegedly poor working conditions and reduced responsibilities.
The transfer followed a threat by her direct supervisor that she would not have a
career with the District if she pursued a harassment claim. This is indicative of an
unlawful retaliatory motive. See Bergene v. Salt River Project Agric. Improvement
& Power Dist., 272 F.3d 1136, 1141-42 (9th Cir. 2001). The employer claimed the
transfer was motivated by concerns for the appellant’s safety, so there are material
issues of fact. Summary judgment was not appropriate on the retaliation claim.
AFFIRMED in part and REVERSED in part and REMANDED. Each party
to bear its own costs.
2 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2858155/ | CV2-375
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-375-CV
SPICEWOOD DEVELOPMENT CORPORATION,
APPELLANT
vs.
TEXAS WATER COMMISSION,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT
NO. 91-1797, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
PER CURIAM
Spicewood Development Corporation (SDC) appeals from the district court's order
affirming in part and reversing in part the Texas Water Commission's (the Commission) (1) order
in a rate proceeding. We will affirm the district court judgment.
SDC is a small, privately owned, utility located in northwest Travis County that
provides sewer service to approximately six hundred residential customers, a country club, an
elementary school, and a church. SDC and Northwest Travis County Municipal Utility District
No. 2 (MUD #2) share the ownership and operation of two effluent holding ponds, transfer
facilities, and an irrigation system. (2) In December 1989, SDC filed a statement of change in rates
with the Commission. After the hearing, most customers received a rate increase; a few with
demonstrated higher or lower than average use received adjusted rates. SDC sued for judicial
review of the Commission's order in the district court of Travis County. The trial court affirmed
in part and reversed in part the Commission's order. On appeal, SDC contends in three points
of error that the trial court erred in affirming the Commission's final order with regard to rate
case expenses, amount of invested capital, and rate of return. (3)
Standard of Review
SDC challenges certain of the Commissions's findings of fact as being unsupported
by substantial evidence and as being arbitrary and capricious. (4)
Substantial evidence (5)
Substantial evidence exists if the evidence as a whole is such that reasonable minds
could have reached the same conclusion that the agency must have reached to justify its actions.
Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988), cert. denied,
490 U.S. 1080 (1989); Suburban Util. Corp. v. Public Util. Comm'n, 652 S.W.2d 358, 364 (Tex.
1983). Although substantial evidence is more than a scintilla, the evidence may preponderate
against the agency's decision and still be substantial evidence. Texas Health Facilities Comm'n
v. Charter-Medical Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984); Lewis v. Metropolitan Sav.
& Loan Ass'n, 550 S.W.2d 11, 13 (Tex. 1977); City of League City v. Texas Water Comm'n, 777
S.W.2d 802, 805 (Tex. App.--Austin 1989, no writ). The court reviews the reasonableness of the
order, not its correctness. Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662
S.W.2d 953, 956 (Tex. 1984); Prosper Indep. Sch. Dist. v. Central Educ. Agency, 798 S.W.2d
661, 665 n.1 (Tex. App.--Austin 1990, writ denied). The court may not substitute its judgment
for that of the agency. Public Util. Comm'n v. Gulf States Util. Co., 809 S.W.2d 201, 211 (Tex.
1991); Schlachter v. Railroad Comm'n, 825 S.W.2d 737, 739 (Tex. App.--Austin 1992, writ
denied). The Commission is the sole judge of the credibility of witnesses and the weight to be
given the evidence presented. Gerst v. Guardian Sav. & Loan Ass'n, 434 S.W.2d 113, 116 (Tex.
1968); Texas State Bd. of Dental Examiners v. Silagi, 766 S.W.2d 280, 283 (Tex. App.--El Paso
1989, writ denied). The Commission may accept or reject a witness's testimony in whole or in
part. Guardian Sav. & Loan, 434 S.W.2d at 116; Southern Union Gas Co. v. Railroad Comm'n,
692 S.W.2d 137, 141 (Tex. App.--Austin 1985, writ ref'd n.r.e.).
Arbitrary and capricious
An agency's decision is arbitrary or results from an abuse of discretion if the
agency: (1) failed to consider a factor the legislature directs it to consider; (2) considers an
irrelevant factor; or (3) weighs only relevant factors that the legislature directs it to consider but
still reaches a completely unreasonable result. Gerst v. Nixon, 411 S.W.2d 350, 360 n.8 (Tex.
1966); City of El Paso v. Public Util. Comm'n, 839 S.W.2d 895, 903 (Tex. App.--Austin 1992,
writ granted); Consumer's Water, Inc. v. Public Util. Comm'n, 774 S.W.2d 719, 721 (Tex.
App.--Austin 1989, no writ). An agency decision can be supported by substantial evidence and
still be arbitrary and capricious. Charter Medical-Dallas, Inc., 665 S.W.2d at 454. Such a
circumstance, however, must be based on a due process violation or some unfair or unreasonable
conduct that "shocks the conscience." Silagi, 766 S.W.2d at 285.
Rate Case Expenses
In point of error one, SDC complains that the trial court erred in affirming the
Commission's final order authorizing only the amount of $43,416 as reasonable and necessary rate
case expenses because such action was arbitrary, capricious, without foundation, and unsupported
by substantial evidence in the record.
In fixing the rates for the utility, the Commission must fix the utility's overall
revenues at a level that will: "(1) permit the utility a reasonable opportunity to earn a reasonable
return on its invested capital used and useful in rendering service to the public over and above its
reasonable and necessary operating expenses; and (2) preserve the financial integrity of the
utility." Tex. Water Code Ann. § 13.183(a)(1), (2) (West Supp. 1993). The utility has the
burden of proof to show the reasonableness and necessity of its expenses. Id. at § 13.184(c)
(West 1988); Coalition of Cities for Affordable Util. Rates v. Public Util. Comm'n, 798 S.W.2d
560, 563 (Tex. 1990), cert. denied, 111 S. Ct. 1641 (1991).
Bernie Erwin, staff auditor and accountant for the Commission, testified in his
prefiled testimony (6) that reasonable rate case expenses were $43,416, significantly less than SDC's
requested amount of $124,073. He testified that SDC filed its first rate increase application in
April 1988 and $42,238 was ultimately allowed for rate case expenses in that proceeding. (7) The
current filing came only seven months after the first. He testified that first-time rate cases are
normally more expensive that subsequent ones, however SDC's second one was projected to cost
more than its first one, which was a factor in his determination that the amount SDC requested
was excessive. He also testified that to lessen the impact of excessive rate case expenses, both
the Commission and the Public Utility Commission had previously limited the allowance for rate
case expenses to $2.00 per customer per month.
Erwin amended his prefiled testimony to support a recovery of $112,000 in
expenses, based on his opinion (8) that the protestants made excessive discovery requests. (9) The
examiner proposed and the Commission found, however, that protestants did not propound
excessive discovery requests. With Erwin's assumption of excessive discovery removed, the
remaining evidence is the original (10) prefiled testimony that this was a subsequent rate case, and
thus should have been less expensive than SDC's first one; and the per-customer formula
precedent. The Commission was able to use this evidence and disregard conclusions based upon
the excessive discovery premise with which it disagreed. See Guardian Sav. & Loan, 434 S.W.2d
at 116; Southern Union Gas, 692 S.W.2d at 141 (agency may accept or reject testimony in whole
or part).
SDC complains the amount found was arbitrary and capricious, and particularly
challenges the conclusion that the protestant's discovery requests were not burdensome and that
SDC unduly prolonged the hearing. The Commission found that SDC had consumed
approximately 50% more time at the hearing than the protestants. We regard this situation as
analogous to that of judging the credibility of witnesses because the written record does not always
reflect certain aspects of the live proceedings. The number of lines consumed in the record or
number of objections made may not adequately convey the actual time consumption or overall
tenor of the proceedings that lead to the conclusion that SDC consumed excessive time. We defer
to the fact finder's judgment on this finding.
SDC further contends that the Commission applied non-statutory criteria in
determining the amount allowed for rate case expenses. SDC bases this contention on finding of
fact 11.f.(2).(e): "The Utility should realize that its rate case expenses must bear a reasonable
relation to the revenue requirement and size of the utility." The Commission, in finding 11.f.(2),
found that the utility personnel expended an excessive amount of time in preparing for this cause,
and, relative to that finding, that a final order in the prior rate case was issued on May 22, 1989;
the hearing lasted nine days despite the fact that all direct testimony was prefiled; the utility
consumed approximately 50% more time; and that the protestants' discovery requests were not
unduly broad or burdensome.
SDC complains specifically that finding 11.f.(2).(e) ties the amount of rate case
expenses to the amount of the rate increase actually awarded. We disagree. The finding points
out two specific factors bearing on the reasonableness of the expenses and reiterates the
Commission's conclusions that SDC unduly escalated its costs by spending too much time in the
hearing. The Commission's finding on the amount of rate case expenses is supported by
substantial evidence and is not arbitrary or capricious. We overrule point of error one.
Total Capital Invested
In its second point of error, SDC complains that the trial court erred in affirming
the Commission's finding concerning the total capital invested in the utility because this finding
is without the support of substantial evidence and is arbitrary and capricious under the record as
a whole. In finding of fact 13, the Commission established "plant in service" at a value of
$1,116,297, a figure which SDC contends is $274,480 less than it should be. "Plant in service"
is the utility property that is "used by and useful to" the utility. Tex. Water Code Ann. § 13.185
(West Supp. 1993). Only property that is "used and useful" may form the basis for the rate of
return on investment. Id. SDC complains of two specific items: (1) the amount allowed for an
irrigation system; and (2) disallowance of requested construction work in progress amounts
(CWIP).
Irrigation Equipment
This complaint centers around the exclusion of 31% of an irrigation system (11) based
on a determination that it was not "used and useful." SDC's wastewater operation involves the
use of holding ponds and the use of golf course property for disposal of treated effluent. SDC's
theory was that, because it needed to use all of the golf course acreage for irrigation, all of the
course is "used and useful." Jorge Arroyo, the Commission's staff engineer, testified that, based
on SDC's authorized discharge, it needed only eighty-five acres for disposal of effluent. He
testified to the computations he used to figure the necessary acreage. He said that SDC used as
much acreage as it did because SDC failed to properly maintain holding ponds for use at their
required capacity. In his opinion, the ratepayers should not be paying for defective maintenance.
SDC also states in its brief that Arroyo's analysis was the only one provided and
was defective. SDC, however, had the burden of proof. Coalition of Cities, 798 S.W.2d at 563.
It must, therefore, do more than contend that the Commission failed to make its case because the
Commission did not have the burden of proof on the issue. Substantial evidence supports the
finding disallowing a percentage of the irrigation system.
Construction Work In Progress (CWIP)
In point of error two, SDC also complains of the disallowance of a recovery of
$105,912 for CWIP. Although the Water Code provides for an allowance for CWIP, it is an
"exceptional form of rate relief" to be allowed only on a showing by "clear and convincing
evidence that the inclusion is in the ratepayers' best interest and is necessary to the financial
integrity of the utility." Tex. Water Code Ann. § 13.185(b) (West Supp. 1993) (emphasis added).
Further, an allowance for CWIP may not be granted to the degree that a major project was
inefficiently or imprudently planned or managed. (12)
The Commission denied CWIP because SDC requested recovery for design work
for a facility on which construction had not yet begun at the time of the hearing. James Grube,
an environmental engineer retained by protestants, testified that the plans had been approved since
December 1988, but construction had not begun. He identified a preliminary engineering report
prepared by the utility on a different facility than the one he had designed. Further, he testified
that the utility was investigating acquisition of a used sewage treatment plant as an alternative to
construction of a new plant.
SDC claims that "unequivocal" testimony supports its position that the allowance
for CWIP is necessary for its financial integrity. One of SDC's witnesses, a utility consultant,
testified that the allowance was essential. But, Erwin, one of the Commission's witnesses, did
not unequivocally support SDC. His testimony was that it would normally have been part of the
process to test models to see if a failure to include CWIP would jeopardize the utility's financial
integrity, but he did not recall specific results in this case. SDC's evidence is not "clear and
convincing" in this area.
SDC further contends that it was under a Commission-initiated court order to
construct a new sewage treatment plant. That SDC was under a court order to construct a new
plant, however, does not mean that these particular designs are part of a project that is, or ever
will be, used and useful to the ratepayers, much less meet the standards for CWIP. We overrule
point of error two.
Rate of Return
In its third point of error, SDC complains that the trial court erred in affirming the
Commission's final order adopting a permissible rate of return for the utility because the finding
was unsupported by substantial evidence and was arbitrary and capricious under the record as a
whole.
No statute sets the rate of return; the regulatory body has wide discretion in
determining an appropriate rate. See Railroad Comm'n v. Entex, Inc., 599 S.W.2d 292, 294
(Tex. 1980); Southwestern Bell Tel. Co. v. Public Util. Comm'n, 571 S.W.2d 503, 511 (Tex.
1978). Determination of a utility's cost of equity, which is a critical component in establishing
the overall cost of capital, "is not an exact science." Railroad Comm'n v. Lone Star Gas Co., 611
S.W.2d 908, 911 (Tex. Civ. App.--Austin 1981, writ ref'd n.r.e.). The regulatory body is not
required to follow any particular method of determining cost of equity. See Public Util. Comm'n
v. GTE-SW, 833 S.W.2d 153, 158 (Tex. App.--Austin 1992, writ granted). This court has
recognized that when the agency's figure for cost of equity falls within the range of relevant
evidence, substantial evidence supports the equity finding. See City of Alvin v. Public Util.
Comm'n, No. 3-92-459-CV, slip op. at 27-28 (Tex. App.--Austin Aug. 25, 1993, no writ h.);
GTE-SW, 833 S.W.2d at 159.
SDC claims that the method of determining cost of equity proposed by its witness
is superior to that proposed by the Commission staff and ultimately adopted by the Commission.
SDC's expert witness, Thomas Graves, testified that SDC has no publicly traded long-term debt
outstanding. It does not have access to public bond markets and has no Standard & Poor's or
Moody's bond rating. (13) SDC's common stock is not publicly traded and therefore has no
meaningful market price that could be used in a company-specific equity return determination.
Graves analyzed the rate of return required by investors from a sample of publicly traded water
utility companies generally in the same business as SDC. He then determined the estimated cost
of equity for SDC by considering the risks of investment in SDC relative to the sample group.
He selected twelve firms, but noted that there were significant differences in the comparable group
which makes investment in SDC riskier. However, in the absence of a group more similar to
SDC, he used this sample as a "conservative benchmark" for comparison.
For determining the cost of equity of the members of the comparable group,
because each firm had market data available, he used the "discounted cash flow" model to estimate
the cost of equity. (14) From application of that model, he determined the cost of equity of the
members of the group to be in the range of 12 to 16 percent. He then detailed certain factors that
he thought made SDC significantly more risky as an investment: its small size, localized
operation, limited on growth because of its location in an already developed area, lack of public
trading in its stock, lack of access to long-term debt, and necessity to upgrade facilities. He next
stated that he believed the cost of equity to SDC to be greater than the indicated range of 12 to
16 percent, but could not suggest a way of quantifying that additional cost. Therefore, he stated
that he believed that the cost of equity of SDC should fall at the upper end of the indicated range,
or 15 percent.
Graves criticized the Commission's use of a method to estimate the cost of equity
that relied on estimates of the historical spread between debt and equity because there was no
relevant data for water or sewer utilities in Texas. He criticized the Commission's use of the
yields on Moody's public utility bonds as a comparison because these companies were not water
or sewer utilities.
Erwin, the Commission's witness, testified that he used the bond yield averages for
public utility bonds with Baa ratings published by Moody's in March 1990, which gave him a
figure of 10.06. He added three percentage points for the increased risk of investing in SDC.
His figure of 13.06 falls within the range given by Graves. It is smaller than the one suggested
by Graves, but Graves also admitted he was unable to quantify the additional risk. Further,
Graves testified that the use of a variety of methods was desirable to cross check results. That
one witness disagrees with the methodology used does not invalidate the fact that the
recommendations came within the same range. Inasmuch as there is a significant degree of
judgment involved in trying to estimate SDC's needs because of the dearth of comparable utilities,
the finding is neither lacking in substantial evidence nor arbitrary and capricious.
We overrule point of error three. We affirm the judgment of the trial court.
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: November 3, 1993
Do Not Publish
1. Effective September 1, 1993, the Texas Water Commission became the Texas Natural
Resource Conservation Commission. Act of July 30, 1991, 72d Leg., 1st C.S., ch. 3, art. 1,
sec. 1.001, 1991 Tex. Gen. Laws 4, 5.
2. 2 Wastewater generated within SDC's service area is transmitted to the plant facilities for
treatment and transfer to a holding pond. The treated effluent is ultimately used for irrigation on
two golf courses.
3. 3 No party complains about the portion of the district court's order reversing the
Commission's action.
4. 4 The Administrative Procedure and Texas Register Act (APTRA), formerly Tex. Rev. Civ.
Stat. Ann. art. 6252-13A (West. Supp. 1993) was nonsubstantively recodified into the
Government Code as the Administrative Procedure Act. Act of May 4, 1993, 73d Leg., R.S.,
ch. 268, sec. 1, §§ 2001.001-.902, 1993 Tex. Sess. Law Serv. 587, 737-54 (West) (to be codified
as Administrative Procedure Act, Tex. Gov't Code Ann. §§ 2001.902)(effective Sept. 1, 1993).
Former APTRA sections 19(e)(5)("substantial evidence") and 19(e)(6)("arbitrary and capricious")
are now APA § 2001.174(2)(E), (F). Act of May 4, 1993, 73d Leg., R.S., ch. 268, sec. 1, §
2001.174(2)(E), (F), 1993 Tex. Sess. Law Serv. 587, 752 (West).
5. 5 See generally Kerry McGrath, Substantial Evidence Review in Texas--Still Insubstantial After
All These Years, 44 Baylor Law Review 223 (1992).
6. 6 The Commission may require parties to file written direct and rebuttal testimony before the
hearing in order to reduce the time and expense required for conducting the hearing. 31 Tex.
Admin. Code Ann. § 265.8 (1989).
7. 7 This amount was amortized over three years, the expected amount of time before another
rate increase request and hearing. The amount recommended in the current hearing is also to be
amortized over three years.
8. 8 Erwin made this decision in conjunction with his supervisor. During the hearing, the
protestants' attorney raised a question regarding the amended amount, because it would appear
as a separately identified line-item surcharge. He suggested that the Commission staff was trying
to coerce settlement.
9. 9 The protestants were customers of SDC, represented by the Spicewood Neighborhood
Group.
10. 10 The examiner noted specifically that he was not striking any testimony from the record.
11. 11 Although difficult to determine from the briefs and record, the only disallowed portion of
the "irrigation system" appears to be the golf course acreage.
12. 12 Compare this CWIP provision to the one in the Public Utility Regulatory Act (PURA):
"The inclusion of construction work in progress is an exceptional form of rate relief to be granted
only upon the demonstration by the utility that such inclusion is necessary to the financial integrity
of the utility." Tex. Rev. Civ. Stat. Ann. art. 1446c, § 41(a) (West Supp. 1993). CWIP is not
to be included to the extent that major projects have been "inefficiently or imprudently" planned
or managed. Id. This court has recently decided that, under PURA, "exceptional circumstances"
is an independent threshold test that must be satisfied before CWIP can be authorized. See State
v. Office of Public Util. Counsel, 849 S.W.2d 864, 867-69 (Tex. App.--Austin 1993, writ
requested).
13. 13 "Bond rating" refers to the system of evaluating and appraising the investment value of
individual bond issues. Triple A bonds have the highest rating. Black's Law Dictionary 181 (6th
ed. 1990). Standard & Poor's and Moody's are two of the major bond rating services that make
these evaluations.
14. 14 The "discounted cash flow" model is based on the premise that the current market price of
common stock is a function of near-term dividend yield and long-term dividend growth. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1559892/ | 20 So.3d 849 (2009)
MALCOLM
v.
STATE.
No. SC09-1824.
Supreme Court of Florida.
October 2, 2009.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559914/ | 20 So.3d 849 (2009)
NORMAN
v.
STATE.
No. SC09-1217.
Supreme Court of Florida.
October 7, 2009.
Decision Without Published Opinion Mandamus dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559935/ | 249 A.2d 269 (1968)
Helen Elizabeth BROWN, Defendant Below, Appellant,
v.
The STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
December 27, 1968.
G. Francis Autman, Jr. of Kelsey & Autman, Dover, for defendant below, appellant.
Merrill C. Trader, Deputy Atty. Gen., Dover, for plaintiff below, appellee.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
*270 HERRMANN, Justice.
The determinative question in this appeal is whether a revocation of probation and imposition of a prison sentence, when based upon hearsay evidence alone, constitutes abuse of discretion. We think so.
I.
In 1964, the defendant entered pleas of guilty to two charges of abortion. She was sentenced to imprisonment for a term of five years on each charge, but the execution of the sentences was suspended and she was placed upon probation for a period of ten years.
In 1967, the defendant was indicted on a charge of committing an abortion on March 20, 1967, to which charge she entered a plea of not guilty. At the jury trial, the State called four witnesses: The first was the alleged victim whose only response to each question was a refusal to testify on the ground that her answer may have tended to incriminate her a position sustained by the Trial Court. The second and third witnesses were doctors who were unable to testify that an unlawful abortion had been performed. The fourth witness was a police officer who was completely barred from testifying by the Trial Court's application of the hearsay rules. At that stage of the trial, the Attorney General was permitted to enter a nolle prosequi and the defendant was discharged. This occurred on October 3, 1967.
On October 9, 1967, the Attorney General filed a Petition for Revocation of Probation and had it served upon the defendant's attorney. On October 26, 1967, the Superior Court held a hearing on a charge against the defendant of having violated her probation by having committed, or assisted in the commission of, an abortion on March 20, 1967 the same offense for which the defendant had stood trial earlier that month.
At the hearing, the following transpired: Preliminarily, in response to the defendant's attack upon the Attorney General's standing to seek a revocation of probation, the Court stated that the hearing was predicated upon its own motion, not the petition of the Attorney General, because "a violation of probation hearing is a matter between the Court and the probation officer" with due regard for "the right of the probationer to enjoy due process." Also, the Court denied the defendant's preliminary motions based upon evidentiary grounds, stating that a probation revocation proceeding was not governed by "formal evidentiary" rules that govern a "criminal proceeding." Thereupon, the defendant having denied violating probation, the Court called the Probation Officer to the witness stand. The Probation Officer testified that his only sources of information about the alleged probation violation were newspaper accounts and a copy of a 10 page police investigation report. He testified further: that he took no statement from the probationer; that his only information as to any such statement was as contained in the police report; that he had not discussed the matter with any of the investigating police officers; that the alleged abortion took place during a lunch hour and that the probationer's employment time card showed that she had "checked out for lunch and checked back in after lunch" on that *271 day; that the "sum total of the report as submitted by the police would lead one to believe that an act of abortion, or attempted abortion, took place at that address, and that the petitioner participated in it"; that he could not say from any personal investigation whether a violation of probation had occurred.
That was the sum and substance of the evidence adduced at the hearing. Thereupon, the following transpired:
"THE COURT: All right, the record indicates that the police report contains a statement of an alleged victim who identified the probationer as having committed an abortion upon her; that the probationer left her place of business at the time the abortion is alleged to have committed; and that the probationer made two statements which in connection with the other matters could be considered admissions.
"I ask now whether or not the probationer herself wants to offer anything in explanation, contradiction, or mitigation of the matters which are on the record?
"MR. AUTMAN: No, Your Honor, at this time we do not.
"THE COURT: All right, I have no alternative but to find that the probationer has violated her probation. I do not find, because I do not have to find, that she committed an abortion on March 20th. I find, however, that she was at least present and had something to do with what occurred. At the very least she was at the undesirable place, and that is one of the special conditions of probation, that probationers do not frequent undesirable places."
The Superior Court then imposed a sentence of imprisonment for a term of 5 years.[1] The probationer appeals.
II.
Our Probation Statute, 11 Del.C. § 4335 (c), requires a hearing prior to revocation of probation; but except for the provisions that such hearing may be "informal or summary", and that the violation must be "established", there is no statutory prescription as to its nature and scope.[2]
It appears, however, that certain general rules governing the nature and scope of such hearings have become well established:
Just as probation is an "act of grace", revocation of probation is an exercise of broad discretionary power; and on *272 appellate review, the question may be limited to whether there has been an abuse of such discretion. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932); Brill v. State, 159 Fla. 682, 32 So. 2d 607 (1947); Scott v. State, 238 Md. 265, 208 A.2d 575 (1965). Proof sufficient to support a criminal prosecution is not required to support a judge's discretionary order revoking probation; and rules of evidence applicable in criminal trials need not be followed. As stated in Manning v. United States (5 Cir., 1947) 161 F.2d 827: "A judge in such proceeding need not have evidence that would establish beyond a reasonable doubt guilt of criminal offenses. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation." A probationer accused of violation is not entitled to a trial in any strict or formal sense; his entitlement in this regard is limited to "an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper." Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935).
Under these basic rules, material may be received and considered in a proceeding for the revocation of probation which would not be admissible in a criminal trial under the rules of evidence. This would include, of course, hearsay such as is involved here. But that is not to say that, to warrant a revocation, there need be no competent evidence at all of the probation violation. To the contrary, we hold that a probation revocation may not stand unless there be some competent evidence to prove the violation asserted. To hold otherwise would be to permit a termination of freedom, conditional though it may be during probation, to rest upon pure hearsay a basis too untrustworthy for so serious a consequence.
We find the following support for our view: In United States v. Register (4 Cir., 1966) 360 F.2d 689, it was held that the acceptance of hearsay evidence was not error or infringement of the probationer's rights, there being "ample evidence without it to sustain the revocation", the Court stating:
"However, as the trial judge is quite aware, there can be injury if hearsay plays too great a role in the inquiry, and he will constantly be alert to the frequent untrustworthiness of such proof. Of course, the infractions admitted by the probationer may always be outlined for the Court in hearsay statements."
And in State v. Elder, 77 S.D. 540, 95 N. W.2d 592 (1959), it was held that an order of revocation "must be based on a factual showing sufficient to justify the exercise of the court's discretion"; but other "ample competent proof" was found sufficient there to warrant revocation, supplementing the probation officer's hearsay testimony. Similarly, in Brill v. State, 159 Fla. 682, 32 So.2d 607 (1947), it was held that receipt of illegally secured evidence did not invalidate a revocation proceeding because "if considered at all, it did nothing more than supplement the information already in hand" other competent evidence having been adduced which "pointed very strongly to the violation." And in Williams v. Harris, 106 Utah 387, 149 P.2d 640 (1944), it was held that "to authorize termination of probation there must be some competent evidence of violation of the terms of probation." See also People v. Warren, 314 Ill.App. 198, 40 N.E.2d 845 (1942); People v. Myers, 306 Mich. 100, 10 N.W.2d 323 (1943); Legal Aspects of Probation Revocation, 59 Columbia L.Rev. 311, 332-333 (1959). But contra, see Scott v. State, 238 Md. 265, 208 A.2d 575 (1965).
Applying the latter rule to the case before use, we must conclude that, there being no competent evidence upon which to base the exercise of sound judicial discretion, the revocation of the probation and the imposition of the prison sentence constituted an abuse of discretion.
*273 The probationer has raised the constitutional issue of due process of law, contending that she was entitled thereunder to the presumption of innocence, and the right to confront and cross examine all who testify against her. The courts are divided on the questions of whether and to what extent the due process clause is applicable in a probation revocation hearing. See Legal Aspects of Probation Revocation, 59 Columbia L.Rev. 311, 325-326 (1959); Annotation: 29 A.L.R.2d 1074; compare Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). For the purposes of the instant case, however, it is sufficient to state that, in the light of the conclusions we have reached regarding the general nature and scope of probation revocation hearings, the probationer is not entitled to the presumption of innocence or confrontation as a matter of due process.
For the reasons stated, the judgment below is reversed; and the cause remanded with instructions to set aside the order revoking the probation and to vacate the sentence imposed; without prejudice, however, on the part of the Court below to conduct another hearing, in accordance herewith, as to violation of the probation.
NOTES
[1] The defendant has been released on bail pending this appeal, however, the Court stating:
"* * * the way I have conducted this hearing is the way I understand it should be conducted under the law as I read it. However, in Delaware there is no law from the Supreme Court on whether or not these hearings may be conducted in this fashion, that is, whether or not what I have admitted to the record is admissible in a violation of probation hearing.
"I have, therefore, agreed * * * to sign a certificate of reasonable doubt to the Supreme Court of the State of Delaware so that Mrs. Brown may be released on bail pending an appeal to our Supreme Court.
"If this is not the proper way to handle a violation of probation hearing, we should know it, and she should not spend any time in prison if it is held not to be the proper way. That is why I have agreed to sign such a certificate."
[2] 11 Del.C. § 4335(c) provides in pertinent part:
"§ 4335. Arrest for violation of conditions; subsequent disposition
* * * * *
"(c) * * * the court shall cause the probationer to be brought before it without unnecessary delay, for a hearing on the violation charge. The hearing may be informal or summary. If the violation is established, the court may continue or revoke the probation or suspension of sentence, and may require the probation violator to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559950/ | 213 Pa. Superior Ct. 446 (1968)
Carl et al., Appellants,
v.
Matzko, Appellant.
Superior Court of Pennsylvania.
Submitted September 10, 1968.
December 12, 1968.
*447 Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
*448 Robert E. Bull, Paul Matzko, and Obermayer, Rebmann, Maxwell & Hippel, and Clark, Ladner, Fortenbaugh & Young, for appellant.
Gailey C. Keller, with him Smith, Eves and Keller, for appellees.
Arthur M. Peters, Jr., for appellee.
OPINION BY HOFFMAN, J., December 12, 1968:
The parents of Bruce Carl, Jr. brought this action on their son's behalf and in their own right against defendants, Dr. M.J. Matzko and Dr. F.B. Clemens, for their alleged malpractice in the care and treatment of their son. The jury rendered a verdict of $1000 for the parents and $1000 for the minor, against both defendants. After post-trial motions were argued, the court entered judgment against Dr. Matzko but granted judgment n.o.v. for Dr. Clemens. Dr. Matzko has now appealed the verdict against him, and the plaintiffs have appealed the granting of judgment n.o.v. to Dr. Clemens.
The relevant facts, as found by the lower court, are as follows: At 10:00 a.m. on Friday, August 21, 1964, Bruce Carl, Jr., then seventeen years of age, was piling rocks in a stream near his home in Beach Haven, Luzerne County. As he bent over to lift a heavy rock, he felt a "stinging sensation" in the right testicle. The pain persisted and after a short interval, Bruce found his testicle to be quite red. When he pressed it, he became sick and threw up. At about 1:30 p.m., his parents took him to the office of Dr. M.J. Matzko.
Dr. Matzko examined Bruce, prescribed medication, and advised rest. The boy returned home and rested. The pills seemed to give some temporary relief; however, pain continued throughout the night and next morning.
*449 At 3:30 p.m. on Saturday, Bruce accompanied his family to a picnic. They returned home, however, shortly after 6:00 p.m. because of the boy's intense pain.
The mother was unable to reach Dr. Matzko. At 9:00 p.m. Bruce was taken to the Berwick Hospital and briefly examined by Dr. F.B. Clemens who was designated as the weekend doctor for the community. Dr. Clemens completed an "Emergency and Accident Register". After the printed word "Treatment" he wrote "torsion of the spermatic cord temperature 101.3°." He then prescribed antibiotics and analgesics, and admitted Bruce into the hospital. He never treated Bruce again.
The boy was next seen on Monday morning, August 24th, by Dr. Matzko. He continued the treatment of Dr. Clemens, changing only the type of antibiotics prescribed. Furthermore, the scrotum was elevated with cold compresses being applied. The hospital history and physical examination report made by Dr. Matzko at that time concludes, as follows: "Diag. (1) Acute epididymitis (2) Orchitis, acute right severe (3) Torsion of right testicle."
Even though Bruce experienced some intervals of comfort and sleep between Monday and Wednesday, the pain became more severe and the discoloration of the scrotum more pronounced. On Thursday, August 27th, Bruce's condition worsened dramatically. At his mother's insistence, Dr. James B. Gormley, surgeon for the Berwick Hospital, was consulted. After an examination, Dr. Gormley diagnosed "possible torsion" and advised and performed immediate surgery.
The Operation Record signed by Dr. Gormley reads, in part, as follows: "The right testicle was found to be involved in a partial torsion with apparent compromise of the return circulation from the testicle. The epididymous *450 was particularly edematous and hemorrhagic. The reduction of the torsion did not effect then any significant improvement in the appearance of the epididymous. The testicle was therefore removed. . . ."
At trial, plaintiffs contended that Drs. Matzko and Clemens were negligent because they either failed to diagnose and treat Bruce for torsion or, in the alternative, they diagnosed torsion but failed to treat him properly in accordance with that diagnosis. In submitting the case to the jury, the court coupled plaintiffs' two alternative grounds for recovery.
The court charged the jury in part as follows: "If you find by the fair preponderance of the evidence that Bruce Carl, Jr. was suffering from a torsion or twist of the spermatic cord or that his condition was such that it even strongly suggested the existence of a torsion or twist, and that Dr. Clemens or Dr. Matzko or both did or should have diagnosed this condition, then you must find that one or both of the doctors were negligent in treating Bruce Carl, Jr. with bedrest, ice packs and antibiotics, and in not ordering surgery immediately so that the torsion or twist could be removed and the testicle saved."
We hold that it was improper for the trial court to charge the jury that they might find for plaintiffs if defendants did not but should have diagnosed torsion.
To allow such a conclusion, expert medical testimony must be introduced which would establish that defendants, in failing to diagnose torsion, had departed from the standard of care exercised by other physicians in the community. Duckworth v. Bennett, 320 Pa. 47, 181 A. 558 (1935); Lambert v. Soltis, 422 Pa. 304, 221 A. 2d 173 (1966).
Plaintiffs, however, did not offer any such testimony. Three doctors testified. Clemens and Matzko *451 did not testify as to the propriety of a torsion diagnosis. Dr. Gormley, the surgeon, who testified on behalf of plaintiffs, failed to consider the appropriate standard of care. He failed to state that defendants' failure to diagnose and treat for torsion departed from the standard of care generally exercised by physicians in their community. His testimony concerning his probable individual diagnosis is vague and unresponsive to that issue.
"The only exception to the requirement that expert testimony must be produced [in malpractice cases which involve an appraisal of the care and skill of a physician] is `where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons . . .'" Smith v. Yohe, 412 Pa. 94, 194 A. 2d 167 (1963); see also Lambert v. Soltis, supra at 308-309.
This exception is inapposite here, however, because it is difficult to discriminate between epididymitis, for which he was treated initially, and torsion of the spermatic cord. Dr. Gormley specifically testified that the two are frequently confused by physicians and involve a multitude of factors and considerations. The observation of these factors, and their significance at any given time in relation to the patient's problem and progress, could only be judged by a physician and are not matters within the common knowledge of lay persons.[1]
*452 In summary, the court should not have charged the jury that defendants would be liable if they "should have" diagnosed torsion. This is so because there was no expert testimony to establish the appropriate standard of care, and the decision could not be based on the knowledge of the jury alone.
The court also improperly submitted to the jury the question of whether Dr. Clemens actually "knew" or strongly suspected that Bruce suffered a torsion. While all the medical witnesses agreed that immediate exploratory surgery is the only proper response to a diagnosis or strong suspicion of torsion, there is no evidence that Dr. Clemens finally concluded or strongly suspected that Bruce suffered a torsion.
Dr. Clemens, called as if on cross-examination by plaintiff, testified that during the course of his examination he recorded in the Emergency and Accident Register that Bruce suffered a "torsion of the spermatic cord." During the cross-examination conducted by his attorney, Dr. Clemens stated that "the note I made in the book was one of my initial impressions."
After the plaintiff rested, Dr. Clemens testified in his own behalf. He stated that during the hour that Bruce was under his care he abandoned his immediate snap impression that Bruce suffered a torsion and concluded instead that the boy suffered from epididymitis, an infection of the scrotum. This conclusion was necessitated by a physiological analysis which would not permit any other diagnosis. Had Bruce suffered a torsion from the lifting of a rock thirty-six hours prior *453 to his examination, his symptoms would have been totally different from those Dr. Clemens observed. A torsion results in a cutting off of the blood supply which in turn produces a gangrenous effect. After thirty-six hours, this would produce a small, soft and mushy testicle. Bruce, however, at the time of Dr. Clemens' examination had a swollen, hot, red, inflamed testicle.
This condition, according to Dr. Clemens' testimony, could only be reconciled with a diagnosis of epididymitis. Epididymitis is caused by bacteria which are counteracted by an increased blood supply to the scrotum as the body supplies white blood cells to the infected area. The bacteria are fed by the increased supply of blood which in turn stimulates a greater production of white blood cells. "More disease means more increased blood cells, and in thirty-six hours, we have a hot, red mass, red because you have increased blood flow."
This physiological explanation was never contradicted. Therefore, the only evidence offered to show that Dr. Clemens in fact knew or strongly suspected that Bruce suffered from torsion was the entry "torsion of the spermatic cord" in the Emergency and Accident Register.
Little, if any, weight, however, can be given to this evidence. Dr. Clemens testified that the Register, as distinct from a patient's chart, was not used for treatment purposes. Rather, it was used primarily by the hospital for "the purpose of billing the patient later on." Thus, Dr. Clemens did not think it necessary to amend the Register after he abandoned the first impression of torsion. Indeed, the record was not referred to by medical personnel for treatment purposes. Dr. Matzko testified that he did not refer to the Emergency and Accident Register. Significantly, Dr. Clemens made no entry on Bruce's treatment chart.
*454 Moreover, plaintiff is precluded from asserting that the notation on the Emergency and Accident Register represented a final diagnosis, because Dr. Clemens stated when called as if on cross-examination, that it represented one of "my initial impressions." In Amato v. Landy, 416 Pa. 115, 204 A. 2d 914 (1964), the Supreme Court stated: "A party calling an adverse witness and the defendant was an adverse witness as far as the plaintiffs are concerned in this case is bound by his uncontradicted testimony." Similarly in Piwoz v. Iannocone, 406 Pa. 588, 178 A. 2d 707 (1962), the Supreme Court also stated that "it is well established that where a litigant calls his adversary as for cross-examination pursuant to the Act of May 23, 1887, P.L. 158, § 7, 28 P.S. § 381, that the testimony thus obtained is conclusively taken to be true if it is not rebutted by other evidence . . . subject to the exceptions that there may be such a degree of improbability in the statements themselves as to deprive them of credit, or that circumstances themselves may constitute sufficient contradiction."
Therefore, since Dr. Clemens' statement that the notation only represented a "first impression" was never contradicted at trial, it binds plaintiffs.
Accordingly, the most that plaintiffs have shown is that Dr. Clemens entertained an early snap impression that Bruce suffered a torsion. This falls far short, however, of demonstrating that he knew or strongly suspected at the completion of his examination, that Bruce did in fact suffer from torsion. Dr. Clemens, therefore, is entitled to judgment n.o.v. Act of April 22, 1905, P.L. 286, § 1, 12 P.S. 681. Karam v. Pennsylvania Power and Light Co., 205 Pa. Superior Ct. 318, 208 A. 2d 876 (1965). A contrary result would place Dr. Clemens, who had only the briefest contact with Bruce, in the position of being an insurer upon whom *455 liability may be imposed without a demonstration of fault. This was clearly proscribed when the Supreme Court stated: "The standard of care required of a physician or surgeon is well settled. In the absence of a special contract, a physician or surgeon is neither a warrantor of a cure nor a guarantor of the result of his treatment." Donaldson v. Maffucci, 397 Pa. 548, 156 A. 2d 835 (1959). Likewise in Tyson v. Baizley, 35 Pa. Superior Ct. 320 (1908), we stated that "a physician or surgeon is not an insurer of his patient's health, nor of a recovery from an abnormal condition."
Thus, as there was no testimony that Dr. Clemens actually knew or strongly suspected at the completion of his examination that Bruce suffered a torsion, "no presumption or inference of negligence arises merely because the medical care . . . terminated in an unfortunate result which might have occurred even though proper care and skill had been exercised . . ." Robinson v. Wirts, 387 Pa. 291, 127 A. 2d 706 (1956). Judgment n.o.v., therefore, was properly entered for Dr. Clemens.
There is, similarly, no evidence to indicate that Dr. Matzko knew or strongly suspected that Bruce suffered a torsion.
The only evidence which plaintiff introduced relating to this question was the hospital treatment chart of Bruce wherein Dr. Matzko noted on the Monday following Bruce's admission to the hospital: "Diag. (1) Acute epididymitis (2) Orchitus (3) Torsion of the right testicle."
Dr. Matzko did not testify as to the significance of this entry.
On its face the entry seems to be a differential diagnosis whereby Dr. Matzko listed all of the possible causes of Bruce's distress. Medical testimony indicated that in most cases epididymitis, orchitus and torsion *456 of the testicle are not present at the same time. It is readily conceivable that all Dr. Matzko did was to list alternative and exclusive possibilities of conditions which may have caused Bruce's distress.
The entry does not indicate that Dr. Matzko knew or strongly suspected torsion. It only indicates a mere suspicion of torsion. The burden was upon plaintiffs, however, to demonstrate that the entry was indicative of a strong suspicion. Since they failed to present such evidence, the court should not have submitted the question of Dr. Matzko's knowledge or strong suspicion to the jury.
In accordance with the above, a judgment n.o.v. is entered on behalf of Dr. Matzko. Judgment n.o.v. entered on behalf of Dr. Clemens is affirmed.
NOTES
[1] Medical testimony indicated that the diagnosis and treatment of Bruce Carl, Jr. involved such factors as swelling, tenderness, discoloration compared to normal, temperature, evidence of shock, elevation of testicle, rotation of testicle, discrimination between the epididymitis and the testes, transillumination, size and consistency of testicle as compared to normal, inflammation of skin, hotness, manual palpation of testicles and reaction on examination, cyanosis, temperature change, effect of medication, progress, vomiting, history, passage of time, emotional state, amount of discomfort, pain, changes therein, location of organs, testis, spermatic cord, epididymitis, inguinal canal, relation of structures to normal, increased or decreased blood flow, increased or decreased blood cells, existence of a nonobservable congenital defect, knowledge of anatomy and physiology and practical medical experience. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559952/ | 249 A.2d 892 (1969)
Robert FIELDS,
v.
S. & M. FOODS, INC.
No. 496-Appeal.
Supreme Court of Rhode Island.
February 13, 1969.
Toro and Crouchley, Eugene F. Toro, Providence, for plaintiff.
Saul Hodosh, Providence for defendant.
OPINION
PER CURIAM.
This is a civil action instituted in the superior court whereby the plaintiff seeks recovery of damages because of the defendant's wrongful breach of a contract concerning the operation of a bakery concession in a Warwick restaurant. Dueservice of the summons was made upon the defendant's attorney for service of process on March 23, 1967. No entry of appearance or plea was filed for on behalf of the defendant. On May 9, 1967, the defendant was properly defaulted and following oral proof of claim, a judgment was entered for the plaintiff in the sum of $2,403. Execution then issued and was presented to the sheriff for service. The officer contacted a representative of the defendant. Sometime thereafter a motion was filed whereby the court was asked to remove the default judgment and recall the execution. This motion, for reasons which are not in the record, was denied without prejudice. The defendant filed a second motion. It was denied and the defendant appealed.
The defendant applied for relief under G.L. 1956, § 9-21-2, as amended, which allows the court to relieve a party from a final judgment upon a showing that it was entered by reason of mistake, inadvertence, surprise or excusable neglect. The defendant filed no affidavit nor offered any evidence in support of either one of its motions. This omission in and of itself is fatal to defendant. A party in default must upon a hearing on his motion make a factual showing that his failure to answer was due to excusable neglect and a mere statement in his motion that failure to answer was due to inadvertence or oversight is not a sufficient showing to set a default aside. Nelson v. Coleman Co., 41 F.R.D. 7; Phoenix Mut. Life Ins. Co. of Hartford, Conn. v. Reich, 75 F. Supp. 886.
Even if we were to assume that the following allegations in defendant's second *893 motion could have been considered by the superior court, they would not furnish any legal basis for the removal of the default judgment.
"That due to some mistake, error or over-sight, the Defendant did fail to make answer to the writ and complaint in the aforesaid matter.
"Further the Defendant states that through some error or over-sight the writ and complaint which was furnished to the office of his attorney * * * was displaced and overlooked and at no time was he aware of the failure to file."
In King v. Brown, R.I. 235 A.2d 874, we enunciated the rule that unexplained neglect standing alone and without more, whether it be by a party or his attorney, will not automatically excuse noncompliance with orderly procedures. There is a complete absence of any evidence that the neglect present in this case was occasioned by some extenuating circumstances of sufficient significance to render it excusable.
The defendant's appeal is denied and dismissed, the order appealed from is affirmed and the case is remitted to the superior court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919697/ | 660 So. 2d 152 (1995)
Kris Lana Carter DUVALLE, Plaintiff-Appellant,
v.
Reginald A. DUVALLE, Defendant-Appellee.
No. 27,271-CA.
Court of Appeal of Louisiana, Second Circuit.
August 23, 1995.
*153 R. Wayne Smith, Ruston, for appellant.
Bobby L. Culpepper, Ruston, for appellee.
Before MARVIN, BROWN and WILLIAMS, JJ.
WILLIAMS, Judge.
The plaintiff, Reginald A. Duvalle, appeals from a trial court judgment denying his request for modification of joint custody and maintaining his former wife, Kris Lana Carter *154 Duvalle, as domiciliary custodian of their two minor children. For the reasons assigned below, we affirm the judgment, but remand to the trial court for the formulation and implementation of a joint custody plan between the parties.
FACTS
The parties were married in June 1986, in Indianapolis, Indiana. On May 28, 1993, Mrs. Duvalle was granted an uncontested divorce. The divorce judgment granted the parties joint custody of their two minor children, Lauryn and Reginald, ages six and one, respectively. Mrs. Duvalle was designated as the primary domiciliary parent, subject to Mr. Duvalle's right to reasonable visitation. Because Mr. Duvalle was unemployed, the judgment made no mention of child support.
On August 10, 1994, the final day of a four-month visitation period with Reginald, Mr. Duvalle filed the instant rule which he entitled "Petition for Modification of Custody." He alleged that the circumstances had changed substantially since the original 1993 custody decree, and sought to be designated as the primary domiciliary parent of both children. He also sought an immediate order awarding him the temporary custody of Reginald. Mrs. Duvalle answered the petition, seeking the return of Reginald, child support payments, and a specific visitation schedule.
The parties and their children had been living in Grambling, Louisiana, at the residence of Mrs. Duvalle's parents, Dr. and Mrs. Carter, since December 1991. Lauryn had also lived with her maternal grandparents between March 1989, and March 1990, while Mr. Duvalle was on a tour of duty in Cairo, Egypt, and Mrs. Duvalle was completing graduate studies in South Carolina.
After the parties separated, Mrs. Duvalle retained physical custody of the children and continued living with her parents. Mr. Duvalle remained in Grambling and completed a graduate degree program.
After the divorce, in the summer of 1993, the Carters left Grambling and moved to Marshall, Texas. Mrs. Duvalle and the children remained in Grambling and continued living in the same house. However, because Mrs. Duvalle's career required her to travel frequently, Lauryn, without objection from Mr. Duvalle, temporarily moved to Marshall in August 1993, to live with the Carters for the 1993-1994 school year. Both parties felt that Lauryn's move to Marshall was in her best interest. Lauryn adjusted well and maintained above-average grades in school.
In October 1993, Mr. Duvalle moved back to his hometown of Indianapolis, Indiana. He moved in with his parents in a two-bedroom apartment. He found a job at a small business development center and began his career as an international business and trade consultant. At the time of the hearing, he was earning approximately $2,400 per month.
During the 1993-1994 school year, Mrs. Duvalle visited Lauryn almost every weekend, unless she had to be away on business. Her weekend visits usually lasted from Friday to Sunday. Occasionally, she stayed until Monday morning to take Lauryn to school and talk with her teachers. Sometimes Mrs. Duvalle visited Lauryn during the middle of the week, and they talked to each other frequently on the telephone. Mrs. Duvalle also had extended visits with Lauryn during holidays.
Mr. Duvalle never visited Lauryn in Marshall. Between August 1993 and August 1994, he talked to her on the telephone approximately twelve times and wrote her a few letters. In the summer of 1993, while both he and Lauryn were still living in Grambling, they spent approximately two and one-half weeks together. After that, Lauryn saw Mr. Duvalle for one afternoon in the spring of 1994 when the parties met to return Reginald after a period of visitation. During the summer of 1994, Lauryn visited Mr. Duvalle in Indiana for a five-week period.
Reginald, on the other hand, spent a considerable amount of time with Mr. Duvalle. Reginald's first visit in Indiana occurred between mid-October 1993, and mid-December 1993. His second visit in Indiana began in early February 1994, and lasted until mid-March 1994. Soon after the Easter holiday in April 1994, Reginald went back to *155 Indiana and remained there throughout this proceeding.
While in Indiana, Reginald lived in the two-bedroom apartment with his father and paternal grandparents. He slept in one of the bedrooms, and Mr. Duvalle slept on a sofa. During one visit in Indiana, Reginald was hospitalized for four days for pneumonia. Mrs. Duvalle's insurance plan paid for most of Reginald's medical care and she paid the deductible amount.
In July 1994, Mrs. Duvalle resigned her job and accepted a position in Memphis, Tennessee. Her decision to accept the job in Memphis was based on both her desire for the children to be closer to Mr. Duvalle and a salary increase. Although, at the time of the hearing, Mrs. Duvalle was still living in Grambling, and had not yet relocated to Memphis, she testified that she will earn $34,000 at her new job.
After the hearing, the trial court rendered judgment rejecting Mr. Duvalle's demands and maintaining the original joint custody arrangement. The trial court ordered Mr. Duvalle to return Reginald to Mrs. Duvalle and to pay $517 per month in child support. The trial court further granted Mr. Duvalle visitation of three weeks during the summer and alternate major holidays consisting of Labor Day, Thanksgiving, Christmas Day, New Year's Day, Easter, Memorial Day and any spring break. From that judgment, Mr. Duvalle appeals.
DISCUSSION
Burden of Proof
In his first assignment of error, Mr. Duvalle alleges the trial court erred in that it inappropriately applied the heavy Bergeron rule to the facts of this case. He contends this case does not involve a considered decree and, therefore, he only had to prove that the circumstances had changed and that his proposed custody arrangement was in the best interest of the children.
In Bergeron v. Bergeron, 492 So. 2d 1193 (La.1986), the supreme court stated that in a case involving a modification of a considered decree of permanent custody, the burden of proof for the petitioning party is to show that the continuation of the present custody is so deleterious to the child so as to justify the modification, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id. at 1200. However, in a custody case, where no considered decree has been rendered, the burden of proof enunciated in Bergeron does not apply. Odom v. Odom, 606 So. 2d 862, 865 (La.App. 2d Cir.), writ denied, 608 So. 2d 153 (La. 1992). The petitioning party is only required to prove that a material change in circumstances occurred since the original decree and that the modification which he proposed is in the best interest of the child. Barnes v. Cason, 25,808 (La.App. 2d Cir. 05/04/94), 637 So. 2d 607, 611, writ denied, 94-1325 (La. 09/02/94), 643 So. 2d 149; Pulley v. Pulley, 587 So. 2d 116, 119 (La.App. 2d Cir.1991).
As noted, the original custody decree in this case was rendered in an uncontested divorce action. The court minutes reflect that Mrs. Duvalle was the only party present when the decree was rendered. Thus, since the original joint custody decree was not a "considered decree," plaintiff need only show a material change in circumstances since the original decree and that the modification sought is in the best interest of the child. Barnes v. Cason, supra; Pulley, supra. However, after reviewing the record, we conclude that the trial court applied the correct burden of proof that is applicable in this case; the record does not reflect that the trial court held Mr. Duvalle to the heavy burden proof which is applicable in cases involving considered decrees. Consequently, the language used by the court during its oral reasons for judgment has no practical effect on the outcome of this appeal. This assignment of error lacks merit.
Best Interest of the Children
Mr. Duvalle's remaining assignments of error relate to the trial court's findings that it would be in the best interest of the children to live primarily with their mother. In assignments of error numbers two and three, Mr. Duvalle contends the trial court made several erroneous factual findings when determining *156 that he failed to prove that the proposed custody arrangement was in the best interest of the children. In particular, Mr. Duvalle contends the trial court erred in finding that his fourteen-year-old nephew was also living in Mr. Duvalle's apartment and in stating that Reginald had to sleep on a couch when residing in his paternal home.
The trial court found that, due to the inferior living conditions provided by Mr. Duvalle, it would be better for the children to reside primarily with Mrs. Duvalle. In commenting on the living arrangements provided by Mr. Duvalle, the trial court stated:
[Mr. Duvalle] lives in Indiana with his parents and there is another child, I believe, living in that residence which had two bedrooms. [Mr. Duvalle] testified that he slept on a couch. [When both Reginald and Lauryn stay with Mr. Duvalle, they] will have to either sleep on the floor or chairs or some other method.
The trial court specifically found that Mr. Duvalle was sleeping on the couch when Reginald was residing there. Assignment of error number two lacks merit.
Regarding Mr. Duvalle's nephew living in the apartment, we find the evidence presented supports the trial court's belief that at the time of the filing of the petition, the nephew was living in the apartment. On cross-examination, when Mr. Duvalle was asked who lived in the apartment, he testified that he, his parents and Reginald were the only people living there. However, when specifically asked whether his fourteen-year-old nephew lived with him, Mr. Duvalle responded, "[the child] is living now with his mother." While there is no evidence in the record that any other children are presently living with Mr. Duvalle, we agree with the trial court's finding that the living conditions provided by Mr. Duvalle were inadequate. The fact that Mr. Duvalle has to sleep on a couch suggests that there is inadequate space where he lives. Thus, regardless of whether another child lived with Mr. Duvalle at the time of trial, the trial court's finding regarding the living conditions is not manifestly erroneous. Assignment of error number three lacks merit.
Next, Mr. Duvalle contends the trial court erred in determining the children's best interest because it considered the effect of the children being separated from each other. Asserting that the children had not lived together in over a year, Mr. Duvalle insinuates that the effect of keeping the children apart is negligible and that the trial court should not have been concerned about separating them.
"The separation of children of a family, though sometimes necessary, is a custodial disposition that courts seek to avoid. Normally, the welfare of these children is best served by leaving them together, so they can have the full benefit of companionship and affection. When feasible, a court should shape its orders to maintain family solidarity." Lee v. Davis, 579 So. 2d 1130, 1132 (La.App. 2d Cir.1991).
In the present case, although the children have lived apart at times in the past year, they have maintained a periodic presence in each other's lives. Based on this record, we do not find that the trial court erred in considering the affect that a split custody arrangement would have on the children. This assignment of error lacks merit.
We note that both parties appear to be equally fit parents, and neither party claims the other is unfit. However, when determining the best interest of the child, a number of factors must be considered. LSA-C.C. Art. 134. There must be a weighing and balancing of factors favoring or opposing custody in respective competing parents on the basis of the evidence presented. Windham v. Windham, 616 So. 2d 276 (La. App. 2d Cir.), writ denied, 620 So. 2d 875 (La.1993). "A trial court's award of custody is entitled to great weight and will not be overturned on appeal unless an abuse of discretion is clearly shown." Barnes v. Cason, supra at 611. In determining the best interest of the child for purposes of awarding custody, one of the most important factors to consider is which parent will be the most willing to facilitate and encourage a close and continuing relationship between the children and the other parent. Odom v. Odom, supra at 868; LSA-C.C. Art. 134(10).
*157 The record indicates that despite Mr. Duvalle's enjoyment of regular and liberal visitation with Reginald, Mr. Duvalle refused to return the child after visitation, filed the instant proceeding, obtained a temporary custody order and, thereby, interfered with Mrs. Duvalle's custodial rights. Mrs. Duvalle, on the other hand, has afforded Mr. Duvalle generous visitation with Reginald and has even considered the fact that the children would be closer to their father when she relocates to Memphis, Tennessee. We conclude that Mrs. Duvalle is the parent more willing to facilitate and encourage a close and continuing relationship between the children and the other parent.
Another important factor to be considered when determining the best interest of children for purposes of awarding custody is stability or permanence, as a family unit, of the custodial home. LSA-C.C. Art. 134(5). Here, Lauryn has established a close emotional bond with her maternal grandparents and with her mother. Mrs. Duvalle is more likely to keep the bond between Lauryn, the grandparents, and Mr. Duvalle intact. As far as separating Reginald from his established family unit, we note that he has spent a considerable amount of time bonding with both parents. Further, Reginald was young, two years old at the time of the hearing on this rule, and a transition between family units will not be extremely complicated for him. See Connelly v. Connelly, 94-0527 (La.App. 1st Cir. 10/07/94), 644 So. 2d 789, 794.
The evidence presented also shows that the children have a closer relationship with Mrs. Duvalle and that Lauryn prefers to live with Mrs. Duvalle and her younger brother. Maintaining family solidarity so the children can have the full benefit of each other's companionship and affection is an important factor to consider when determining the best interest of the children for purposes of awarding custody.
Based on our review of the record, we conclude the trial court did not abuse its discretion in maintaining the original joint custody award which designated Mrs. Duvalle as the primary domiciliary parent of the children. This assignment of error lacks merit.
Visitation Privileges
In brief, Mr. Duvalle has requested that this court amend the judgment so as to award him more liberal visitation privileges. He argues the judgment does not reflect the specific visitation privileges the parties agreed upon at the time of the divorce. He further argues that the judgment limits visitation for the Christmas holidays to Christmas Day only.
As with custody disputes, the paramount consideration in the setting of visitation privileges for the non-custodial parent is the best interest or welfare of the children. Barberousse v. Barberousse, 556 So. 2d 930 (La.App. 3d Cir.1990). The trial court has great discretion in this area and its determination will not be disturbed in the absence of manifest error. Edelen v. Edelen, 457 So. 2d 171 (La.App. 2d Cir.1984); Finch v. Finch, 479 So. 2d 473, 476 (La.App. 1st Cir. 1985).
We conclude the visitation privileges awarded by the trial court were not an abuse of its discretion. The children are young and must travel a great distance to visit the non-custodial parent. See Colley v. Colley, 435 So. 2d 1141 (La.App. 1st Cir.), writ denied, 441 So. 2d 751 (La.1983); Strong v. Trosclair, 423 So. 2d 13 (La.App. 1st Cir.1982). Further, Mr. Duvalle's current living arrangements are somewhat inadequate and an extended summer visitation would not be in the best interest of the children. For these reasons, we find no abuse of discretion in the trial court's ruling.
However, LSA-R.S. 9:335 requires the trial court to render a joint custody implementation order, except for good cause shown, allocating the legal authority and responsibility of the parents and the time periods during which each parent shall have physical custody of the child. In this case, the record does not contain the requisite joint custody implementation order.[1] Accordingly, *158 we remand to the trial court for the establishment of a joint custody plan.
CONCLUSION
We conclude that the trial court did not abuse its discretion in maintaining Mrs. Duvalle as domiciliary parent of the minor children. Accordingly, the judgment is affirmed and the case is remanded to the trial court for the establishment of a joint custody plan. Costs are assessed to the appellant, Reginald A. Duvalle.
AFFIRMED AND REMANDED.
NOTES
[1] We note that there is a slight variance between the oral reasons for judgment and the signed judgment regarding the number of days which shall comprise holiday visitations. Based on the distance between the parties, we assume that the trial court intended for holiday visitations to comprise more than one day. However, since we are remanding this matter, the trial court can clarify this issue by formulating and implementing a joint custody plan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919711/ | 660 So. 2d 1225 (1995)
John HOLMES
v.
STATE of Mississippi.
No. 92-KA-00158-SCT.
Supreme Court of Mississippi.
May 11, 1995.
Rehearing Denied October 12, 1995.
Lisa D. Jordan, Natchez, for appellant.
Michael C. Moore, Atty. Gen., Jeffrey A. Klingfuss, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.
PRATHER, Presiding Justice, for the Court:
I. INTRODUCTION
This case, an appeal from a February 14, 1992 conviction of grand larceny, concerns three issues of criminal procedure and evidence. The trial court sentenced John Holmes (Holmes) to a term of five years in the custody of the Mississippi Department of Corrections, with two years suspended upon good behavior. Holmes moved for a new trial on February 19, 1992. The trial judge denied this motion on February 27, 1992. Aggrieved, Holmes filed his appeal raising the following issues:
1) DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND ITS INDICTMENT DURING TRIAL TO CONFORM TO THE PROOF SUBMITTED BY THE STATE DURING THAT TRIAL?
2) WAS THE JURY'S VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND *1226 WAS THE VERDICT MANIFESTLY WRONG AS A MATTER OF LAW?
3) DID THE TRIAL COURT ERR IN NOT GRANTING HOLMES' MOTION FOR A DIRECTED VERDICT?
II. STATEMENT OF THE FACTS
On April 13, 1991, Willie Ray Sims (Sims) was at the Soul Brothers Club in Natchez, Mississippi. Sims estimated that he arrived at the club at approximately 2:00 a.m. While gambling there, Holmes allegedly snatched money out of Sims' hand. Sims estimated that he had between three hundred and five hundred dollars in his hand. Sims tried to follow Holmes, but decided to give up pursuit once outside the club. Sims reported the incident to the police within ten to fifteen minutes of its occurrence. Sims reported to the police that he had not gotten any money back from Holmes, although he stated that Holmes allegedly offered to give him his money back if he would drop the charges.
The grand jury indicted Holmes for simple robbery. At trial the State moved to proceed on grand larceny rather than on the charge of simple robbery. Over objection, the trial court allowed the State to proceed to trial with grand larceny. The State asserted that since the degree of force found from the evidence was "somewhat slight," the State made the decision to proceed under grand larceny rather than simple robbery. The trial court noted that this decision did not prejudice Holmes as grand larceny carried a lesser penalty.
At trial, Sims identified Holmes as the person who snatched money out of his hand. Sims admitted that he had drunk a couple of beers before the incident. Henry Lee McKnight stated that he saw Holmes at the club that night and he observed a commotion, but he did not see Holmes take anyone's money. Roosevelt Owens, Jr., a Natchez police officer, testified that he arrested Holmes based upon Sims' allegations. Officer Owens admitted that he had no personal knowledge of what occurred. The State concluded its case and Holmes unsuccessfully moved for a directed verdict.
In his defense, Holmes denied he had taken money from Sims and denied that he had offered to pay back any money. Holmes admitted that he had been convicted of grand larceny in 1987, but denied that he was actually guilty. Holmes admitted being in the Soul Brothers Club on the night of the alleged incident but claimed nothing had happened between him and Sims. On the evidence presented, the jury found Holmes guilty of grand larceny.
III. ANALYSIS
1) DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND ITS INDICTMENT DURING TRIAL TO CONFORM TO THE PROOF SUBMITTED BY THE STATE DURING THAT TRIAL?
As stated above, Holmes was indicted for robbery, but the trial court granted the State's request to amend the indictment to a charge of grand larceny. Mississippi statutory law allows amendments to indictments at trial. Miss. Code Ann. § 99-17-13 (1994). However, such amendments may not be "material to the merits of the case" and the defendant must not be prejudiced in "his defense on the merits." Id. The State may not seek amendments altering the material set of facts in the indictment or "materially alter(ing) a defense to the indictment ... to prejudice the defendant's case." Griffin v. State, 584 So. 2d 1274, 1276 (Miss. 1991) (Griffin II). The test for determining whether an amendment will prejudice the defendant's case is "whether a defense as it originally stood would be equally available after the amendment is made." Griffin v. State, 540 So. 2d 17, 21 (Miss. 1989) (Griffin I).
Holmes argues that amending the indictment to a different charge is prejudicial and reversible error. Griffin v. State, 584 So. 2d 1274, 1275 (Miss. 1991); Shive v. State, 507 So. 2d 898, 900 (Miss. 1987) (holding indictment may not be amended to change charge, except by action of the grand jury, because amendments can only go to form and not substance). Holmes' defense, that the taking of property was not done by violence or threat of injury, is useless to a grand larceny charge as grand larceny does not require violence or threat of injury.
*1227 The State counters that Miss. Code Ann. § 99-19-5 (1994) allows a jury to convict of a lesser included offense than that charged in the indictment. See Hailey v. State, 537 So. 2d 411, 416 (Miss. 1988). This Court has allowed the submission of pure lesser included offenses on the State's motion. Jefferson v. State, 556 So. 2d 1016, 1020 (Miss. 1989). See also McGowan v. State, 541 So. 2d 1027, 1029 (Miss. 1989); Whitehurst v. State, 540 So. 2d 1319, 1327 (Miss. 1989); Gangl v. State, 539 So. 2d 132, 135-36 (Miss. 1989); Griffin v. State, 533 So. 2d 444, 447-48 (Miss. 1988). The statute does not discuss amendments to the indictment, but permits the submission of lesser included offense instructions. Sanders v. State, 479 So. 2d 1097, 1105 (Miss. 1985). Larceny is a lesser included offense of robbery, in that larceny contains all of robbery's elements save force or threat of force. Jones v. State, 567 So. 2d 1189, 1192 (Miss. 1990).
Moreover, several other states allow prosecution-sponsored amendments to lesser included offenses because the defendant is presumed to be on notice of lesser included offenses to the original charge. Williams v. United States, 641 A.2d 479, 482-83 (D.C. 1994) (holding Fifth Amendment not violated under above rationale). See also Green v. State, 619 So. 2d 952, 953 (Ala. Crim. App. 1993); State v. Woodson, 315 Or. 314, 845 P.2d 203, 204-06 (1993); State v. Myers, 438 S.E.2d 236, 237 (S.C. 1993); State v. Schaffer, 120 Wash.2d 616, 845 P.2d 281, 283 (1993). One court has held no prejudice results from such an amendment because the defendant actually benefits from the reduction in the potential penalty. State v. Jones, 110 N.C. App. 289, 429 S.E.2d 410, 413 (1993).
This Court finds that the effect of the amendment at issue is the same as would result from submission of a lesser included offense instruction. Holmes suffered no prejudice; therefore, the amendment is one of form rather than of substance. The trial court did not err in allowing the amendment.
2) WAS THE JURY'S VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS THE VERDICT MANIFESTLY WRONG AS A MATTER OF LAW?
Holmes asserts the State showed no evidence of violence or threat of injury, therefore the jury's verdict was wrong and against the overwhelming weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court accepts as true all evidence which supports the verdict and will reverse only when convinced that reasonable and fair-minded jurors could only find the defendant not guilty. Green v. State, 614 So. 2d 926, 932 (Miss. 1992).
In this case a single witness, Sims, stated that Holmes snatched over one hundred dollars out of his hand and ran away. Sims said Holmes later offered to repay the money if Sims would drop the charges. The jury clearly believed Sims. Testimony from a single credible witness is sufficient to sustain a conviction. Williams v. State, 512 So. 2d 666, 670 (Miss. 1987). Sims' testimony provided evidence sufficient to prove all elements of grand larceny. See Miss. Code Ann. § 97-17-41 (1994). There is no merit to this issue.
3) DID THE TRIAL COURT ERR IN NOT GRANTING HOLMES' MOTION FOR A DIRECTED VERDICT?
Holmes argues that since the trial court erred in allowing the amendment to the indictment, it erred again in failing to direct a verdict on the original indicted charge of robbery.
The trial court was correct in refusing to direct a verdict. There was sufficient evidence to convict on the amended charge of grand larceny. Viewing the evidence and all reasonable inferences drawn therefrom most favorably to the State, and disregarding all evidence in Holmes' favor, sufficient evidence exists to support a verdict of guilty. Noe v. State, 616 So. 2d 298, 302 (Miss. 1993). There is no merit to this issue.
IV. CONCLUSION
This Court holds that the State may amend indictments at trial to change the offense, if the amended offense is a pure lesser included offense. As the other issues are without merit, the judgment of the trial court is affirmed.
*1228 CONVICTION OF GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.
HAWKINS, C.J., and SULLIVAN, PITTMAN, BANKS, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
DAN M. LEE, P.J., concurs in result only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919742/ | 660 So. 2d 288 (1995)
BROWARD COUNTY, Appellant,
v.
Nathan W. CONNER, Jr., and Maria T. Conner, his wife, et al., Appellees.
No. 94-0936.
District Court of Appeal of Florida, Fourth District.
July 19, 1995.
Rehearing Denied October 3, 1995.
*289 Angela C. Flowers of Kubicki Draper, Fort Lauderdale, and John J. Copelan, Jr., Fort Lauderdale, for appellant.
Robert A. Ware of English, McCaughan & O'Bryan, P.A., Fort Lauderdale and Antonio Martinez, Jr. of Shutts & Bowen, Miami, for appellees.
KLEIN, Judge.
Broward County appeals a final judgment ordering specific performance of an agreement involving the transfer of real estate. We reverse because enforcement of the agreement would violate the Statute of Frauds and the Government in the Sunshine Law.
After filing an eminent domain petition to take appellees' property near the Fort Lauderdale-Hollywood International Airport, the county and appellees engaged in settlement negotiations, the purpose of which was to determine if there could be a real estate exchange between the parties. The county was represented by a private law firm in both the eminent domain proceedings and the settlement negotiations.
Through a December 10, 1992 letter from appellees' lawyer to the county's lawyer, the parties "confirmed the parameters" of a proposed settlement, the terms of which had been agreed upon at a meeting held on December 1. Along with other provisions, the letter specified that land parcels would be exchanged; that the county would pay appellees $275,000; that the court would award appellees costs and fees; and, that appellees could use the old property for 18 months and pay rent thereafter until a building was constructed on the new property. The letter further provided:
The foregoing sets forth the terms of the proposed settlement which we believe the parties approved in principle at the December 1, 1992 meeting, subject to the following matters:
1. The settlement is subject to the Petitioner obtaining all necessary governmental approvals of the terms of the settlement, including approval by the Broward County Commission and, if necessary, approval by the FAA.
....
any settlement will become binding upon the parties only after it has been reduced to a formal written settlement agreement executed by the parties and approved by the court.
The parties exchanged additional letters with unsigned drafts of proposed agreements and held further meetings; however, in October 1993 the county advised appellees that the county had decided not to go through with the land exchange.
The next month, appellees filed a motion in the eminent domain action to enforce the *290 settlement agreement. The court granted the motion, finding that the agreement had been partly performed; that appellees had relied to their detriment based on the representation of the county's agents and employees; and, that the county was estopped to deny the settlement. In ordering specific performance, the court provided:
Broward County, through its planning and aviation departments, shall proceed to obtain the approval of the County Commission at a regularly scheduled meeting of the County Commission within 2 weeks of the signing of this order, that the plat shall be approved by the County Commission, and that the County shall secure approvals required by other governmental agencies which are necessary for the exchange of the parcels and relocation of appellees' business to the new parcel.
The county argues that the agreement is not enforceable because it violates the provision in our statute of frauds which requires that a contract for sale of land be signed by the party to be charged, section 725.01, Florida Statutes (1993). We agree. Part performance does not remove an oral contract for sale of land from the statute of frauds unless there is payment of all or part of the consideration, possession by the vendee, and valuable improvement so as to constitute a fraud on the vendee if there were no performance. Collier v. Brooks, 632 So. 2d 149, 155 (Fla. 1st DCA 1994), and cases cited therein. None of the requirements for part-performance exist here.
Nor does the doctrine of promissory estoppel assist appellees. Although they may be able to recover damages for expenses they incurred, Gleason v. Leadership Housing, Inc., 327 So. 2d 101 (Fla. 4th DCA 1976), they cite no authority which would support specific performance under these circumstances.
Enforcement of this agreement would also violate our Government in the Sunshine Law, section 286.011(1), Florida Statutes (1993), which provides:
All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.
In the present case, the trial court has essentially determined that the county entered into a contract by virtue of the actions of its attorneys, without formal action by the county commission at a meeting as required by the statute. If the county could not have entered into this contract without action taken at a meeting, it necessarily follows that the actions of the county's attorneys could not bind the county to specific performance of a contract in the absence of proper commission approval. Our sunshine law does contain provisions governing the negotiation of settlements of pending litigation. Section 286.011(8), Florida Statutes (1993). There is no suggestion that the requirements of that provision were met here.
We therefore reverse the order granting specific performance and remand for further proceedings.
GUNTHER, C.J., concurs.
FARMER, J., concurs specially with opinion.
FARMER, Judge, concurring specially.
I agree with Judge Klein that the statute of frauds applies to contracts with governmental entities settling pending litigation. While I agree that a reversal is necessary, I do not believe that application of the statute of frauds to this case necessarily results in a victory for Broward County. The record suggests that the county commissioners gave broad authority to its aviation division and lawyers to settle airport condemnation cases within a certain framework, such that final commission approval of any individual settlement might have been merely ceremonial. I would remand to the trial court to hold another hearing to determine in the first instance whether any of the several writings signed by attorneys representing Broward *291 County are sufficient to satisfy the statute of frauds.
I understand Broward County's right to insist on every legal formality. But after this case if I were an attorney representing a landowner in a condemnation proceeding brought by Broward County, I would insist on my own formalities including an instrument executed by all of the county commissioners under seal giving the county's lawyers plenum et sufficientum potestatem to settle the case before I would waste my time and my client's negotiating with them. The conduct of the county in this case can only serve to make its land condemnations more expensive than they already are. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566138/ | 592 S.W.2d 151 (1979)
STATE of Missouri, Respondent,
v.
Cody V. HIGGINS, Appellant.
No. 61285.
Supreme Court of Missouri, En Banc.
December 6, 1979.
*153 James D. Boggs, Platte City, for appellant.
John Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
RENDLEN, Judge.
I
Convicted of first degree murder and sentenced to life imprisonment, defendant sought reversal in the Court of Appeals, Western District, but the cause was transferred here by that court on its own motion prior to opinion.[1] Considering the case as though on original appeal, we affirm.
*154 A
The facts related by defendant in his written confession are these: On the evening of February 11, 1977, Higgins who had been drinking heavily, met his friend Eddie Bowman at an arcade on North Cherry Street in North Kansas City and announced that he was broke and wanted "to pull a robbery." He asked Bowman if he knew a place to rob where they wouldn't be seen. Bowman stated he did and they left in Higgins' station wagon to the North Kansas City suburbs where they settled on the Price-Rite Market on Northwest Waukomis for their proposed robbery. Armed with a .22 caliber revolver Higgins went into the store and taking the gun from his waistband, aimed it at the cashier Donna Parshall and twice demanded money. When Mrs. Parshall refused, Higgins shot her and she fell to the floor, fatally wounded. With some difficulty Higgins opened the cash door and took the money. As he was leaving an older man entered the store, whom Higgins ordered to stay back.
B
According to eyewitnesses at the scene, Higgins then encountered a Miss Bowman (no relation to Eddie) also on her way toward the store entrance and he pointed his gun at her head ordering her to stand aside. With the gun trained on her, Higgins moved around Miss Bowman's parked car, then fired a shot into the ground, walked from the parking lot and broke into a run along the highway.
C
Higgins stated in his confession that after the shooting he and Bowman proceeded to the latter's house where they divided the loot, about $140.00.
D
Later that evening Higgins, while driving erratically near Olathe, Kansas on Interstate 35, was stopped by Kansas Highway Patrolmen and when questioned stated he was out driving to sober up. An officer closed the car door which Higgins left open in the traffic lane, and while so doing observed several beer cans in the car. One of the cans had been opened and was lying on the floor of the front seat with part of its contents spilled on the carpet. Three unopened beer cans were also lying on the floor. After placing defendant under arrest for driving while intoxicated the officer retrieved the cans from the car as evidence and at that time noticed the grips of a pistol protruding from beneath the driver's seat. He took the pistol, a 9-shot revolver, which contained eight live and one spent round of .22 caliber ammunition. Subsequent ballistics tests disclosed this was the murder weapon.
E
The Kansas City Police Department, acting on information from two confidential informants and three eyewitnesses, obtained a fugitive warrant for Higgins' arrest which was transmitted to police authorities in Bakersfield, California where Higgins was thought to have fled. At about 4:00 p. m. on February 16, 1977, Higgins and his companion Jeanette Olds were arrested outside of Bakersfield and the next day, two Kansas City detectives arrived to transport him to Missouri. Higgins, who had consulted with an attorney earlier in the day, waived his privilege against self-incrimination, confessed his involvement in the crimes[2] and waiving extradition was brought to Missouri for trial.
*155 II
Defendant first contends that the provision of § 559.009(3), RSMo Supp.1975,[3] prescribing a life sentence for conviction of first degree murder, constitutes cruel and unusual punishment in violation of the eighth and fourteenth amendments of the United States Constitution and art. I, § 21 of our Missouri Constitution. Application of clearly established constitutional principles leads to rejection of this contention.
The eighth amendment of the United States Constitution and art. I, § 21 of the Missouri Constitution mandate that the legislature exercise its power to punish for criminal offenses "`within the limits of civilized standards'." Woodson v. North Carolina, 428 U.S. 280, 288, 96 S. Ct. 2978, 2983, 49 L. Ed. 2d 944 (1975); Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958).
While the framers of the federal constitution may well have sought only to prevent cruel and barbarous punishments amounting to torture, see Granucci, Nor Cruel and Unusual Punishments Inflicted: The Original Meaning, 57 Cal.L.Rev. 839 (1969) and though many cases[4] stress this aspect of eighth amendment protection, it has long been recognized that the eighth amendment is susceptible to broader application. Today it is clear that the eighth amendment forbids excessive as well as barbarous punishments. Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977); State v. Mitchell, 563 S.W.2d 18, 26 (Mo.banc 1978); State v. Agee, 474 S.W.2d 817, 822 (Mo.1971); State v. Motley, 546 S.W.2d 435, 438 (Mo.App.1976). The ultimate question is whether the punishment is disproportionate to the crime for which it is imposed. Gregg v. Georgia, 428 U.S. 153,187, 96 S. Ct. 2909, 49 L. Ed. 2d 929 (1975). State v. Agee, 474 S.W.2d 817, 822 (Mo.1971); State v. Johnson, 549 S.W.2d 348, 352 (Mo.App. 1977). When determining the constitutionality of legislatively prescribed punishment it must first be noted that we presume its validity and those who seek invalidation bear a heavy burden of demonstrating that the statutory punishment is barbarous or excessive.[5]Gregg v. Georgia, 428 U.S. 153, 175, 96 S. Ct. 2909, 49 L. Ed. 2d 929 (1975); State v. Mitchell, 563 S.W.2d 18, 26 (Mo. banc 1978). Defendant has failed to meet that burden.
No crime is so disruptive of peace and order or more violative of the rights of the individual than murder. The security and lives of its members are the first objects of organized society and we cannot say that the legislature erred in punishing with a mandatory term of life imprisonment those who intentionally take life or kill in the course of a felony. An examination of the legislative enactments of other states supports this view. More than two-thirds of our sister states attach a penalty of mandatory life imprisonment to the crime of first degree murder.[6] While such a "headcount" *156 is not controlling, the fact that a strong majority of jurisdictions have also adopted mandatory life sentences for first degree murder, lends credence to the view that our legislature's action is neither excessive nor capricious.[7]
No cases have been suggested and none have been found holding a mandatory life sentence for murder violates those provisions of the Missouri or the federal constitutions.[8] The Minnesota Supreme Court, declaring that a mandatory life sentence for the crime of murder did not constitute cruel and unusual punishment, stated further that such sentences serve the legitimate legislative purpose of assuring that violent offenders do not return to society prematurely. State v. Walker, 306 Minn. 105, 235 N.W.2d 810, 814-815 (1975), cert. denied, 426 U.S. 950, 96 S. Ct. 3172, 49 L. Ed. 2d 1187 (1976).
Finally, because the death penalty may be prescribed for murder, Gregg v. Georgia, 428 U.S. 153 at 187, 96 S. Ct. 2909, 49 L. Ed. 2d 929 (1976), it follows that the penalty of mandatory life imprisonment for this most heinous of crimes is constitutionally permissible. We hold that § 559.009(3), RSMo Supp.1975 does not constitute cruel and unusual punishment in-so-far as it prescribes a mandatory sentence of life imprisonment for convictions of first degree murder.
III
Defendant next contends the mandatory sentence of life imprisonment provided by § 559.009, RSMo Supp.1975 violates Missouri Constitution art. II requiring the separation of governmental power[9] by interfering with an inherent judicial power to exercise discretion and to impose only such punishment as the Court may deem appropriate.[10] Such has never been the law of this State and, as we shall presently discuss, is supported by scant authority elsewhere.
It has been consistently held that fixing punishment for a crime defined by statute is the province of the legislature, not the courts. State v. Alexander, 315 Mo. 199, 285 S.W. 984, 985 (1926); State v. Wheeler, 318 Mo. 1173, 2 S.W.2d 777, 779 (1928); State v. Motley, 546 S.W.2d 435, 437 (Mo. App.1976); see cases cited, Missouri Digest under Constitutional Law, 70.1(10). Indeed, if we were to hold that the Court *157 could assess a punishment not authorized by statute, it would constitute an usurpation of legislative authority. The consequences of such a position were perceived more than half a century ago by the United States Supreme Court in Ex parte United States, 242 U.S. 27, 42, 37 S. Ct. 72, 74, 61 L. Ed. 129 (1916), which stated:
[I]f it be that the plain legislative command fixing a specific punishment for crime is subject to be permanently set aside by an implied judicial power upon considerations extraneous to the legality of the conviction, it would seem necessarily to follow that there could be likewise implied a discretionary authority to permanently refuse to try a criminal charge because of the conclusion that a particular act made criminal by law ought not to be treated as criminal. And thus it would come to pass that the possession by the judicial department of power to permanently refuse to enforce a law would result in the destruction of the conceded powers of the other departments, and hence leave no law to be enforced.
Notwithstanding this line of authority defendant would have us hold otherwise and relies on State v. McCoy, 94 Idaho 236, 486 P.2d 247 (1971), to support his position.[11]McCoy involved an Idaho statute requiring a minimum 10 day sentence upon conviction for driving under the influence of intoxicating liquors. 486 P.2d at 248. The Idaho Court concluded that the judiciary possessed the power under the English common law to suspend sentence. Pressing on, the Idaho court discovered that the power to suspend all or any part of a sentence, "is in the nature of an inherent right of the judicial department and one which the separation of powers concept in our system of government places above and beyond the rule of mandatory action imposed by legislative fiat." 486 P.2d 247 at 251. We reject the result and rationale of that decision.
In Missouri it has been recognized that the judiciary has no power, absent legislative authority to indefinitely stay execution of sentence, Ex parte Thornberry, 300 Mo. 661, 254 S.W. 1087, 1090 (Mo.banc 1923); State ex rel. Oliver v. Hunt, 247 S.W.2d 969, 973 (Mo.banc 1952), and this court is neither authorized nor willing to substitute its "enactments" on the basis of judicial predilections as to sentencing for the statutes of the legislature.
Mr. Justice Frankfurter noted, in response to a similar contention, that "In effect we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility [citations omitted] these are peculiarly questions of legislative policy." Gore v. United States, 357 U.S. 386, 393, 78 S. Ct. 1280, 1285, 2 L. Ed. 2d 1405 (1958).
We hold that § 559.009(3), RSMo Supp. 1975 did not violate art. II of the Missouri Constitution and that a contrary position would improperly inject the courts into the legislative province.
IV
For his next contention defendant states the trial court erred in denying his motion to suppress and allowing his confession (given to the Kansas City police detectives at the Kern County jail in Bakersfield, California) to be admitted in evidence. He argues the confession was involuntary and obtained in violation of the fifth, sixth and fourteenth amendments to the United States Constitution as well as art. I, § 18(a) and 19 of the Constitution of the State of Missouri. Further, that the Uniform Criminal Extradition Act was violated by the circumstances of his transportation from California to Missouri for trial.
Although the issue of voluntariness is necessarily a mixed question of law and *158 fact, we first give due regard to the trial court's opportunity to judge the credibility of the witnesses (Rule 73.01(3)(b), applicable in criminal appeals by Rule 28.18) and in that frame of reference determine whether the trial court's finding of voluntariness is supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
At the outset we recognize that once a defendant has challenged the admissibility of a statement or confession made while in police custody, the burden is on the state to demonstrate its elicitation comported with controlling constitutional requirements and that the statement was voluntarily made. State v. Olds, 569 S.W.2d 745, 751 (Mo.App.1978); Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1977).
The test for "voluntariness" is whether the totality of the circumstances deprived defendant of a free choice to admit, to deny, or to refuse to answer, and whether physical or psychological coercion was of such a degree that defendant's will was overborne at the time he confessed. As the United States Supreme Court recently noted the rubric of voluntariness has, "reflected an accommodation of the complex of values implicated in police questioning of a suspect." Schneckloth v. Bustamonte, 412 U.S. 218, 224-225, 93 S. Ct. 2041, 2046, 36 L. Ed. 2d 854 (1973). Important to such inquiry is the presence or absence of advice concerning the defendant's constitutional rights. State v. Glenn, 429 S.W.2d 225, 232-233 (Mo.banc 1968).
Here, despite defendant's protestations that the statement was coerced by promises of benefit and threats of harm, there is substantial evidence to support the finding that it was in fact voluntary. Higgins admitted that prior to his statement he was advised of his rights by the Miranda warning, that he understood those rights, and nevertheless spoke with the officer. While the presence or absence of Miranda warnings is not the sole criterion of voluntariness it is an important fact to consider. State v. Glenn, 429 S.W.2d at 233. The apparent voluntariness is enhanced by the fact that Higgins had spoken with an attorney prior to making his statement. Further, defendant's testimony on this matter is replete with inconsistencies and when compared to the specific denial of any coercive practices by the detectives, we defer to the trial court's action stemming from the apparent belief that the state's evidence was more credible. State v. Anderson, 384 S.W.2d 591, 604 (Mo.banc 1964). We find the court's denial of the motion to suppress and admission of the statement in evidence were not error.
Finally, defendant would have us rule that the violation of the Uniform Criminal Extradition Act, § 548.011 et seq., RSMo 1978, mandates exclusion of all subsequent statements. We do not reach this novel contention because the Act was not violated. The Act provides: "[N]othing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state; nor shall this waiver procedure be deemed to be the exclusive procedure or to limit the powers, rights, or duties of the officers of the demanding state or of this state." § 548.260(2), RSMo 1978; Cal.Penal Code § 1555.1 (West). The record discloses no violation. Instead the credible testimony demonstrated that defendant voluntarily waived extradition procedures and of his own free will accompanied the officers to Missouri. The contention is denied.
V
Next defendant argues certain investigative techniques utilized by the police were so suggestive that they rendered defendant's in-court identification by two eyewitnesses unreliable and the court's denial of defendant's motion to suppress such identification testimony constituted reversible error.
As defendant fled the store where the robbery and murder occurred, he was seen by three customers, Mr. Agee, Mrs. Agee and Miss Bowman, each of whom signed a written statement the night of the homicide. The next day, all participated in the creation of a composite drawing and while *159 none was completely satisfied with the drawing produced by the police artist it bears a remarkable resemblance with defendant's photograph.
The following day, Sunday, February 13, all three went to the sheriff's office in Liberty to view photographs. Although they were unable to make a positive identification, Mr. and Mrs. Agee tentatively identified a photo of a man who was not Cody Higgins as resembling the gunman.
Later that day Officer Riddell of the Kansas City Police Department showed an array of 5 photos to the witnesses. Mr. and Mrs. Agee were shown the photos by placing them apon a counter and both looked at them closely. Mr. Agee was unable to make a positive identification. Mrs. Agee selected Higgins picture but she too was unable to make a positive identification. Riddell could not remember what he told Mrs. Agee before showing her the photos, but Mrs. Agee was certain that Riddell did not say that the "police had in fact arrested a suspect the night of the homicide . . ."
Riddell displayed the photo spread array to Miss Bowman at her place of employment. Although he was unsure, he stated that he probably told her that police had in mind a suspect who was arrested the night of the homicide. She recalled only that Riddell stated he had pictures he wanted her to view. Riddell set five pictures on a console as Miss Bowman's back was turned, she then turned around and almost immediately selected Higgins' photograph from the array. It was not until after her identification of defendant's photograph that Riddell told her the picture selected was that of the suspect the police had in mind. While Mr. Agee testified at trial, only Mrs. Agee and Miss Bowman identified Higgins in court.
Utilization of photographs can be a valuable and proper aid to identification or release of suspects in police investigatory procedures. "Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1967). The danger to be guarded against is that, "photographic identification procedure [will be] so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Id. at 384, 88 S.Ct. at 971 (1967). (Emphasis supplied.) State v. Parker, 458 S.W.2d 241, 243 (Mo.1970). Whether this danger exists in a particular case depends on the totality of the surrounding circumstances. Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1967); Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1966); State v. Parker, 458 S.W.2d 241, 244 (Mo.1970).
The resolution of this issue requires a two-step analysis. Were the investigative procedures employed by the police impermissibly suggestive? If so, were they so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial? State v. Charles, 542 S.W.2d 606, 609 (Mo.App.1976). State v. McDonald, 527 S.W.2d 46, 49 (Mo.App.1975). The answer to both questions in the case sub judice is in the negative, hence defendant's contention is not well taken.
Examining the "totality of the circumstances," Stovall v. Denno, 388 U.S. at 302, 87 S. Ct. 1967, we cannot agree that the photo spread techniques employed here were impermissibly suggestive. An array of 5 photographs (apparently "mug shots") were exhibited to the witnesses. Each showed a young Caucasian male with long hair with similar styles of facial hair. According to Bowman, the photo of Higgins' had been placed in one of the three middle positions. The only aspect of suggestiveness we discern from the record is that Detective Riddell may have informed Bowman that the police had in mind a suspect arrested on the night of the offense and that Higgins' mug shot bore a corresponding date. Bowman had no recollection such a statement was made and Riddell's testimony *160 is inconsistent on the point. If it in fact occurred the statement had no measurable effect as Miss Bowman identified Higgins immediately when she turned and saw the photographs.
Assuming arguendo the photo spread techniques were impermissibly suggestive, we find no want of due process in the trial court's rulings on the identification testimony. Reliability, not suggestiveness, "is the linchpin in determining the admissibility of identification testimony . . ." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977); State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978) and reliability of the in-court identification testimony is to be assessed under the "totality of the circumstances."[12]Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); State v. Carter, 572 S.W.2d 430, 435 (Mo. banc 1978); State v. Charles, 542 S.W.2d 606, 609 (Mo.App. 1976). Factors to be considered include: (1) The opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Mrs. Agee and Miss Bowman had ample opportunity to view defendant. Mrs. Agee saw him through the plate glass window of the well lighted store and as he exited pursuing a circuitous route through the well lighted parking lot.[13] She observed the gunman between 5 and 10 seconds. Miss Bowman arrived as the gunman was coming from the store, he pointed a gun at her head, told her to stay back, and walked around her vehicle firing a shot into the ground as he passed. He was at most 20 to 25 feet from Miss Bowman and she had a clear view as "he was looking straight at [her]." The gunman's movements and physical features were readily perceived by both women and their detailed description of defendant's physical features, clothing, and movements demonstrated that each observed the questioned events with the highest level of attention. Moreover, the witnesses' descriptions of the gunman were remarkably consistent from the time of their original statement on the night of the murder, through their collaboration on the composite drawing, to their testimony, at trial. While a testimonial discrepancy appears concerning defendant's facial hair, this may be explained by the fact that Higgins admitted he had about a day's growth of facial hair on the date of the offense. Whether Higgins had a "beard" or was "clean shaven" became a question for the jury to weigh.
Pamela Bowman evidenced a high degree of certainty in her identification of Higgins' photograph. When shown the array she immediately identified Higgins as the gunman. Mrs. Agee tentatively identified someone other than Higgins as the gunman two days after the incident. Then two days later she made a tentative identification of Higgins. Because of her otherwise detailed and consistent identification testimony and her observation of Higgins at the scene her positive in-court identification was not rendered inadmissible. State v. Cummings, 445 S.W.2d 639, 642 (Mo.1969). When asked at trial if it was possible for *161 other persons to have the same description as that she had given the police she replied, "The same description but not the same face."
The fact that Mr. Agee did not testify at trial does not vitiate the admissibility of the other witnesses' identification testimony. State v. Knox, 529 S.W.2d 455, 462 (Mo.App.1975).
As Miss Bowman positively identified Higgins within a week and Mrs. Agee made her tentative identification within that period, the time lag cannot be said to have destroyed the reliability of their testimony. Having appraised the circumstances of the witnesses' identification process we conclude that their testimony was reliable and its admission not violative of due process rights under either the fourteenth amendment, art. 1, § 21 of the Missouri Constitution.
Finally, it should not go unnoted that defendant in his confession not only admitted his presence at the scene but detailed the facts leading to and from as well as his performance of the act of murder.
VI
It is next asserted that the search of defendant's automobile and the seizure of the murder weapon violated rights guaranteed defendant under the fourth amendment to the United States Constitution and art. I, § 15 of the Missouri Constitution. See I-D above for a discussion of the relevant facts.
The officers had probable cause to stop the car, to believe Higgins was driving while intoxicated and seize the beer cans then in open view on the floor of the stopped vehicle. See Harris v. United States, 390 U.S. 234, 236, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968); State v. Achter, 512 S.W.2d 894, 903 (Mo.App.1974). The inadvertent discovery of the pistol was not the result of a search. Instead, as in State v. Rankin, 477 S.W.2d 72, 75 (Mo.1972), the pistol was observed in "plain view" by officers entitled to be where they were. Thus no search in the constitutionally prohibited sense occurred. The contention is meritless.
VII
At the close of the evidence the trial court refused a proffered, non-MAI "identity" instruction and defendant complains of that refusal.[14] For some years it has been the rule that whether to give a separate cautionary instruction on the issue of identity is a matter resting in the sound discretion of the trial court. State v. Collor, 502 S.W.2d 258, 259 (Mo.1973); State v. Taylor, 472 S.W.2d 395, 402 (Mo.1971). A claim such as that at bar was made in State v. Thomas, 541 S.W.2d 775, 777 (Mo.App. 1976), which the court rejected because (a) there was sufficient believable identification testimony and (b) the importance of identity and the dangers of misidentification were extensively dealt with during direct examination, cross-examination and argument to the jury. Here extensive direct and cross-examination occurred on the issue of identity and the possibility of misidentification. Further the question of identification was extensively argued to the jury. For these reasons we find no error. Moreover, the court was justified in its action because the tendered identity instruction was not " . . . simple, brief, impartial, and free from argument" as required by Rule 20.02(d). State v. Sloan, 575 S.W.2d 836, 837 (Mo.App.1978). There was no abuse of discretion in the trial court's refusal to give the proffered non-MAI instruction. Id.
VIII
Defendant insists the court erred in overruling his motion for disclosure as to confidential informants. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), described a governmental privilege protecting the anonymity of informants and indicated that the boundaries of this privilege would require a case by case *162 balancing of the public interest in encouraging the provision of information to the police against the defendant's right to prepare his defense. In this case we have reviewed the in-camera testimony concerning the information provided the Kansas City police by the confidential informants. The informants neither witnessed nor participated in the actions preliminary to or the commission of the crime. The information provided was based principally on hearsay and the overhearing of statements of the defendant going solely to the question of probable cause for issuance of an arrest warrant. In McCray v. Illinois, 386 U.S. 300, 312-313, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967), it was stressed that an informant's identity need not be disclosed when his testimony solely went to procedural aspects of the criminal proceedings, such as the presence of probable cause. We find no abuse of discretion in the trial court's denial of the request to disclose the confidential informant's identity. State v. Redding, 357 S.W.2d 103, 108 (Mo.1962); State v. Edwards, 317 S.W.2d 441, 447 (Mo. banc 1958).
IX
Defendant next contends the trial court erred by admitting in evidence photographs of the body of the victim which he claims were gruesome and prejudicial. The holding in State v. Ford, 585 S.W.2d 472 (Mo. banc 1979) is appropriate here. The photos were a true and accurate representation of the objects and scene represented and were relevant to issues of fact, hence the fact they are characterized by the defense as gruesome does not in itself render the photos inadmissible. The murder produced a dead person and the photographs in question go to that fact. Id. at 474. We have examined the photos of the corpse and while they could be described as grisly they are relevant to various elements in the charge. They establish the identity of the body upon which the autopsy was performed as well as the nature and location of the wounds. They also demonstrate that the victim was indeed shot and are corroborative of the pathologist's testimony as to the cause of death. The nature and location of the wounds are relevant to questions of intent and defendant's state of mind pertinent to the three levels of homicide submitted by the instructions. The question of mens rea was crucial. Having determined that the probative value of the photographs was substantial and that this probative value was not outweighed by the claimed prejudice, we conclude that the trial judge did not abuse his discretion in admitting the photographs into evidence.
X
Defendant also argues his conviction should be reversed because of a technical defect in the information charging him with first degree murder which miscited the statutory sections defining the offense and prescribing the punishment. While Rule 24.01(a) requires the citation of the sections of the Revised Statutes for the offense charged and its punishment, Rule 24.11[15] provides that no judgment of conviction shall be affected unless substantial rights of the defendant are prejudiced on the merits as a result of the flaw in the information.
As the language of the information clearly connotes that defendant was charged with first degree murder and defendant's counsel was aware before trial of the offense charged and the prescribed punishment, we find no prejudice to defendant resulted.
XI
Finally defendant asserts the evidence was insufficient for conviction because the trial court erred in overruling appellant's judgment for acquittal. This *163 point is meritless. We need but mention the identification testimony of the eyewitnesses that Higgins was the gunman, the ballistics test which demonstrated the weapon which killed Miss Parshall was the weapon possessed by defendant when stopped some three hours later and, of course, defendant's detailed confession to the crime. Affirmed.
BARDGETT, C. J., DONNELLY and WELLIVER, JJ., WELBORN, Special Judge, and FINCH, Senior Judge, concur.
SEILER, J., concurs in result in separate opinion filed.
MORGAN, J., not sitting.
HIGGINS, J., not participating because not a member of the Court when cause was submitted.
SEILER, Judge, concurring in result.
I concur in result, as there is evidence linking defendant to the crime other than eyewitness identification which has a strong aspect of police suggestion to it. The example of this case, however, impels me to say something about eyewitness identification in general. Of the three eyewitnesses, one, Mr. Agee, did not identify defendant as the gunman and tentatively identified someone other than defendant. Mrs. Agee at first agreed with her husband in the tentative identification of someone else as the gunman and then when shown more photographs she and her husband still were not able to make a positive identification.
Miss Bowman, according to officer Riddell's own testimony, was probably told by him when he prepared to show her the photographs that the police had in mind a suspect who was arrested the night of the homicide, February 11, 1977. In the five photographs shown Miss Bowman, defendant's picture was the only one bearing the date 2-11-77. The figures stand out prominently in the photograph. They are about the same size as the length of the suspect's nose. As soon as she picked out defendant's photograph, the officer made "an exclamation of happiness," as she put it, and confirmed the fact that this was the suspect the police had in mind. This provided strong reinforcement for her opinion from an authority figure. Miss Bowman, incidentally, was unable to say whether there was any hair on the face of the man she saw come out of the store with the gun in his handno beard or moustache as she related it to the police. Yet the photograph she selected shows defendant with a beard and moustache. The composite sketch of the suspect, which Miss Bowman helped create, showed a man with a beard and moustache. To some the sketch looks like defendant's photograph, to others it might not at all.
It is true that the requirements of the Wade-Gilbert-Stovall cases have been limited to apply to post-indictment lineups, but the concern which gave rise to those opinions is the "very real danger of mistaken identification as a threat to justice." United States v. Telfaire, 152 U.S.App.D.C. 146, 149, 469 F.2d 552, 555 (D.C. Cir. 1972). That danger can exist before as well as after indictment. In the Wade case, the majority opinion quoted Mr. Justice Frankfurter as saying "`What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials.'" The opinion goes on to say: "A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification . . . Suggestion can be created intentionally or unintentionally in many subtle ways . . .", United States v. Wade, 388 U.S. 218, 228-29, 87 S. Ct. 1926, 1933, 18 L. Ed. 2d 1149 (1967).
A note in a recent law review, Did Your Eyes Deceive You? Expert Psychological Testimony on the Unreliability of Eyewitness Identification, 29 Stan.L.Rev. 969 (1977) discusses the psychology of testimony *164 and scientific studies on the fallibility of perception, the unreliability of memory and the inaccuracy of eyewitness testimony. It discusses perceptual selectivity, time perception, poor observation conditions, stressful situation, expectancy, personal needs and biases, cross-racial identification, memory decay over time, filling gaps in memory, inadequacy of verbal descriptions, suggestion in the composition and administration of an identification test, and social psychological influences.
I believe it is worthwhile to quote certain concluding passages of the article (29 Stan. L.Rev. at 1028-29):
For years, members of the legal community have suspected that mistaken eyewitness identifications often send innocent people to prison and even death. Psychological research data amassed over the past 80 years confirm the unreliability of much eyewitness testimony: Psychologists can now point to a large number of cognitive and social factors that subtly but powerfully distort a witness' perception, memory and recall of an event. Moreover, many of these factors repeatedly arise in criminal cases yet do not suggest themselves intuitively to jurors as causes for doubting the reliability of identification evidence. In fact, jurors often rely unquestioningly on eyewitness identifications as the most trustworthy evidence available.
Although courts long have recognized these dangers, they have done little to reduce the likelihood of such miscarriages of justice. The Supreme Court tackled only a relatively minor portion of the problem when, in the landmark Wade trilogy, it afforded the right to counsel and due process protection to pretrial identification procedures. Moreover, in the years since those decisions, the Court has qualified the principles they embodied so thoroughly that the protection now offered to the criminal defendant is minimal at best.
Other safeguards that the criminal justice system provides also fail adequately to protect the defendant from wrongful conviction due to inaccurate eyewitness testimony. No amount of cross-examination can reveal the numerous suggestive influences that subtly bias the recollections of an honest but mistaken witness, and even the most eloquent of closing arguments will not persuade a jury to disregard sincere and apparently truthful eyewitness testimony. Similarly, cautionary jury instructions, even when they effectively focus the jurors' attention on the identification issue, do not provide them with any information with which to evaluate its worth. The remedies of exclusion and corroboration, on the other hand, go too far and undoubtedly would lead to the acquittal of many truly guilty defendants.
This Note proposes another safeguard: the admission at trial of expert testimony on the cognitive and social factors affecting the reliability of eyewitness identification evidence. When used in conjunction with the traditional devices of cross-examination, closing argument and jury instructions, the psychologist's testimony can help the trier of fact to apply the scientific information on the process of perception, memory and recall to the case at hand in order to evaluate meaningfully the eyewitness evidence.
Finally, the psychologist's expert testimony satisfies the traditional standards and principles governing the admission of expert testimony. In fact, the amount and quality of psychological research in this area has progressed to the point at which courts can no longer afford to ignore totally the development of experimental psychology as a science, at least when the liberty and even lives of criminal defendants hang in the balance.[1]
NOTES
[1] Apparently the court of appeals made the transfer in the view that appellant's attack on the facial validity of the mandatory life sentence provision of § 559.009, RSMo Supp. 1975 raised a question of constitutional construction falling within the exclusive jurisdiction of the Supreme Court, under Mo.Const. art. V, § 3 (effective date January 1, 1972, superseded January 2, 1979).
Although the appeal involves a claim of statutory invalidity, resolution of this issue requires only application of settled constitutional principles rather than construction of the United States Constitution or the Constitution of Missouri, State v. Motley, 546 S.W.2d 435, 438 439 (Mo.App. 1976); City of Florissant v. Rouillard, 495 S.W.2d 418, 420 (Mo. 1973) and accordingly does not fall within our exclusive jurisdiction. Nevertheless we retain the appeal in the interest of judicial economy. Rule 83.06. Foremost-McKesson, Inc. v. Davis, 488 S.W.2d 193, 196 (Mo.banc 1972).
[2] Higgins also signed a written document denominated as a "Consent to Search" authorizing a search of his car and trailer.
[3] Section 559.009(3), RSMo Supp.1975, applicable here, was repealed by the legislature, effective May 26, 1977, and replaced by the identical provision, § 565.008(2), RSMo 1978. The pertinent language is, "Persons convicted of murder in the first degree shall be punished by imprisonment by the division of corrections during their natural lives."
[4] See Wilkerson v. Utah, 99 U.S. 130, 25 L. Ed. 345 (1878) and In re Kemmler, 136 U.S. 436, 10 S. Ct. 930, 34 L. Ed. 519 (1890).
[5] The United States Supreme Court recently stated, "[L]egislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases * * * Lockett v. Ohio, 438 U.S. 586, 603-604, 98 S. Ct. 2954, 2964, 57 L. Ed. 2d 973 (1976).
[6] Those states are: Alabama, Ala.Code tit. 13, § 1-74; Arizona, Ariz.Rev.Stat. § 13-703; Colorado, Colo.Rev.Stat. § 18-3-102(3) and § 18-1-105, Delaware, Del.Code tit. 11, § 4209; District of Columbia, D.C.Code § 22-2404; Florida, Fla.Stat. § 921.141; Georgia, Ga.Code § 26-1101; Idaho, Idaho Code § 18-4004; Iowa, Iowa Code § 707.2 and § 902.1; Kansas, Kan.Stat. § 21-4501; Louisiana, La.Rev.Stat. Ann. § 14.30 (West); Maryland, Md.Crim.Law Code Ann. § 27-412, Massachusetts, Mass.Gen. Laws.Ann. ch. 265, § 2 (West); Michigan, Mich.Stat.Ann. § 750.316; Minnesota, Minn. Stat.Ann. § 609.185 (West); Mississippi, Miss. Code Ann. § 97-3-21; Nebraska, Neb.Rev.Stat. § 28-401; Nevada, Nev. Rev. Stat. § 200.030(4); New Hampshire; N.H.Rev.Stat.Ann. § 630:1-a; New Mexico, N.M.Stat.Ann. § 31-18-2; North Carolina, N.C.Gen.Stat. § 14-17; Ohio, Ohio Rev.Code Ann. § 2929.02; Oklahoma, Okl.Stat. tit. 21, § 701.9; Pennsylvania, 18 Pa.Cons.Stat. Ann. § 1102; Rhode Island, R.I.Gen.Laws § 11-23-2; South Carolina, S.C.Code § 16-3-20; South Dakota, S.D.Compiled Laws Ann. § 22-16-12 and § 22-6-1; Tennessee, Tenn. Code Ann. § 39-2402; Utah, Utah Code Ann. § 76-5-202 and 76-3-206; Vermont, Vt.Stat. Ann. tit. 13, § 2303; Washington, Wash.Rev. Code § 9A-32.040; West Virginia, W.Va.Code § 61-2-2; Wisconsin, Wis.Stat.Ann. § 940.01 and § 939.50; Wyoming, Wyo.Stat. § 6-4-101.
[7] At least three jurisdictions have prescribed mandatory sentences for offenses less serious than murder. Texas, Tex.Penal Code Ann. tit. 1 § 12.42(d) and West Virginia, W.Va.Code § 61-11-18 impose mandatory life sentences on thrice convicted recidivist felons. New York has a mandatory life sentence for all class A drug felonies. N.Y.Penal Law § 70.00 subd. 2(a) (McKinney).
[8] Several courts have recently upheld mandatory life sentences for less serious crimes in the face of eighth amendment challenges. New York's mandatory life sentence for all class A drug felonies was sustained in People v. Broadie, 37 N.Y.2d 100, 371 N.Y.S.2d 471, 332 N.E.2d 338 (1975), cert. denied, 423 U.S. 950, 96 S. Ct. 372, 46 L. Ed. 2d 287 (1975); Carmona v. Ward, 576 F.2d 405 (2d Cir. 1978), cert. denied, 439 U.S. 1091, 99 S. Ct. 874, 59 L. Ed. 2d 58 (1979).
[9] Art. II of the Missouri Constitution has been retained unchanged in all crucial aspects since the adoption of Missouri's original (1820) Constitution.
[10] Defendant also appears to argue that mandatory sentencing provisions invade an inherent judicial power to grant probation, though it has been held that the power to grant probation derives from legislative authorization and is not inherent to the judicial power. State v. Motley, 546 S.W.2d 435, 437 (Mo.App. 1976). However, we need not reach that issue here. Section 549.061, RSMo 1978, authorizes circuit courts to grant probation in all cases except for certain recidivist drug offenders and those convicted of capital murder. Higgins was convicted of first degree murder and no statute prevented the trial court from granting probation in such cases.
[11] The McCoy decision has been the object of much criticism even within Idaho. See McMeen, The Constitutional Power of Idaho Courts to Suspend Sentence: The Uncertain Meaning of State of Idaho v. McCoy, 11 Idaho L.Rev. 29 (1974); State v. Lindquist, 99 Idaho 765, 589 P.2d 101, 110 (1978) (dissenting opinion).
[12] Defendant's reliance on United States v. Wade, 388 U.S. 218, 219-220, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 269, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967) is misplaced. Those cases involved post-indictment lineups conducted in the absence of counsel and are distinguishable on that basis. State v. Bibbs, 461 S.W.2d 755, 757 (Mo.1970); State v. Townes, 461 S.W.2d 761, 763 (Mo.1970), cert. denied, 407 U.S. 909, 92 S. Ct. 2445, 32 L. Ed. 2d 683 (1972). Moreover, in Wade at 388 U.S. at 240-241, 87 S. Ct. 1926, and Gilbert at 388 U.S. at 272, 87 S. Ct. 1951, the Court refused to adopt a per se exclusionary rule for the admissibility of in-court identifications of the sort challenged here. Further, in this case the suggestive confrontation techniques detailed in Wade are not present.
[13] The store lights were burning, there were lights in front of the store, a street light illuminated the parking lot, and Miss Bowman's car lights were on.
[14] The proffered instruction appears in an opinion by the Court of Appeals, D. C., United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (D.C. Cir. 1972).
[15] Rule 24.11 provides in relevant part:
No indictment or information shall be deemed invalid, nor shall the trial, judgment or other proceedings thereon be stayed, arrested or in any manner affected: . . . for any surplusage or repugnant allegation when there is sufficient matter alleged to indicate the crime and person charged . . . for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits . . . .
[1] A footnote at this point in the article gives use of radar in speed detection devices as an example of the evolutionary process in use of evidence of scientific nature. At first the courts were unwilling to accept the devices as having sufficient scientific accuracy. Now many courts take judicial notice that radar is sufficiently reliable so as to dispense with proof of its general scientific reliability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559954/ | 20 So.3d 1061 (2009)
Daisy Vining RICHARD
v.
Shawn Jaimie RICHARD.
No. 2009 CU 0299.
Court of Appeal of Louisiana, First Circuit.
June 12, 2009.
*1063 Peter B. Sloss, Emily Stevens Hardin, New Orleans, Counsel for Plaintiff/Appellant Daisy Vining Richard.
Lisa Leslie Boudreaux, Baton Rouge, Counsel for Defendant/Appellee Shawn Jamie Richard.
Before: KUHN, GUIDRY, and GAIDRY, JJ.
GUIDRY, J.
A mother appeals a judgment in which the trial court transferred domiciliary custody of the child to the father.
FACTS AND PROCEDURAL HISTORY
The parties to this matter, Shawn Jamie Richard and Daisy Vining Richard, were married in 1996, and established their matrimonial domicile in Thibodaux, Louisiana. In 2003, the couple adopted a three-year-old boy from a Ukraine orphanage, whom they named August. Eight months after August's adoption, Shawn and Daisy separated, but continued to reside together for three months until Shawn moved to New Orleans with his partner, Tom Landry. A *1064 petition for divorce was filed by Daisy on June 18, 2004, and the marriage was terminated by a judgment signed on January 21, 2005.
In regards to the custody of August, initially following the couple's separation and the filing for divorce, the couple agreed to a consent judgment, rendered on November 10, 2004, wherein the couple was granted joint custody of August with Daisy being designated the domiciliary parent. The consent judgment further outlined a schedule of visitation and support payments. The November 10, 2004 consent judgment remained in effect following the parties' divorce.
In April 2007, Shawn filed a "Petition to Modify Custody, Child Support and Other Incidental Relief," wherein he averred that in August 2005, after Hurricane Katrina struck New Orleans, he relocated to North Carolina. According to the petition, Daisy agreed to allow Shawn to exercise physical custody of August for the entire summer of 2006, since Shawn's relocation limited his ability to exercise visitation in conformity with the alternating weekend schedule outlined in the November 10, 2004 consent decree; however, despite having exercised physical custody of August for the entire summer, Shawn still paid child support to Daisy for that time period. Shawn further averred that given the fact he had relocated out of state and was "no longer able to exercise frequent and continuing contact with the minor child," he requested that Daisy again allow him to exercise physical custody for the entire summer of 2007, but Daisy no longer agreed with that arrangement. Shawn therefore sought modification of the custody and support awards of the November 10, 2004 consent decree, citing the fact of his relocation and Daisy's remarriage and pregnancy as some of the material changes in circumstances requiring the modification. At the hearing on the petition to modify custody, held June 11, 2007, the parties submitted evidence and entered a stipulation into the record, after which the trial court recessed the case to June 14, 2007. On June 14, 2007, the trial court ordered the submission of a consent judgment, which was signed by the trial court on September 12, 2007.
That same month, September 2007, Shawn moved back to New Orleans, and on February 22, 2008, Daisy filed a "Motion to Change Custody/Visitation and Set Child Support," on the basis that Shawn had moved back to Louisiana. Also pursuant to that motion, she sought to have the trial court address other issues raised in the prior hearing that were pretermitted to allow the parties an opportunity to reach an amicable resolution of those issues, which issues included modification of child support. In response to Daisy's motion, Shawn filed a reconventional demand in which he agreed that the prior custody decree needed to be modified for the reasons asserted by Daisy in her motion and for additional reasons set forth in his reconventional demand.
In his reconventional demand, Shawn asserted that he had "recently become aware of information that has caused him grave concern for the safety of his son while [his son] is [in] the actual physical custody of Daisy. It was alleged that the "grave concern" was based on Shawn's discovery that a "Petition for Protection from Abuse" had been filed against Andy Bergeron, Daisy's husband, in June 2006, wherein it was alleged that Andy had physically abused his teenage son from a prior relationship. The petition for protection was later dismissed following Andy's voluntary surrender of parental rights to his son.
The reconventional demand also listed a break down in communications between *1065 Shawn and Daisy and concerns regarding Daisy's adherence to August's prescribed medical treatment and appointments as additional justification for finding a material change in circumstances warranting modification of the existing custody decree.
In conjunction with the filing of the reconventional demand, Shawn requested that the trial court issue an interim order granting him temporary, sole custody of August, or in the alternative, to allow him to maintain actual physical custody of August "at any and all times in which [Daisy] is unable to do so as a result of her nighttime work schedule or when the minor child would be in the sole control and/or custody of Andy." This request was denied by the trial court. Additionally, because modification of custody was contested, Shawn requested that the trial court issue an order requiring the parties and August to submit to a mental health evaluation pursuant La. R.S. 9:331. The trial court appointed Jeanne Robertson, PhD, a licensed professional counselor and marriage and family therapist, educator, and custody evaluator, to evaluate the parties.
Subsequent to filing his reconventional demand, Shawn filed a rule seeking to have Daisy cited for contempt of court for preventing him from filing his 2007 income tax return based on Daisy's failure to execute documentation allowing him to claim August for 2007 as required in the September 12, 2007 consent decree. Shawn further alleged that Daisy had claimed August on her 2007 income tax return, in violation of the September 12, 2007 consent decree, and therefore he requested that Daisy be ordered to amend her 2007 income tax return so that he might claim August. Shawn also requested that Daisy be ordered to pay the attorney fees and court costs incurred as result of the filing of the rule.
A trial on the cross demands for modification of child custody, visitation, and support was held on August 14-15, 2008, following which the trial court found "there has been a substantial change in circumstances materially affecting the welfare of the child." Pursuant to this finding, the trial court maintained the award of joint custody to the parties, but modified the designation of domiciliary parent to designate Shawn as domiciliary parent, with reasonable visitation being awarded to Daisy of alternating weekends and major holidays and one month during the summer. The trial court further decreed that Daisy pay Shawn monthly child support and that the parties share the costs for medical insurance; medical, dental, and prescription expenses not covered by insurance; and childcare for August by a ratio of 76 percent to Shawn and 24 percent to Daisy. Daisy's motion to retroactively modify the prior child support award was denied and Shawn's rule for contempt was pretermitted pursuant to Daisy being required to "pay Shawn a sum of money equal to the difference between Shawn's State and Federal income tax liability for 2007 with and without his claiming the minor child as a dependent." A written judgment and a joint custody plan incorporating these rulings were signed by the trial court on November 5 and 25, 2008, respectively.
ASSIGNMENTS OF ERROR
In appealing the custody decree of the trial court, Daisy raises the following assignments of error:
1. The trial court's misapplication of the burden of proof resulted in legal error.
2. The trial court was manifestly erroneous in disregarding the Appellee's open homosexual lifestyle and several [La. C.C.] art. 134 factors when considering *1066 what was in the best interest of the minor child, August Richard.
3. The trial court was manifestly erroneous in finding that Appellee had met his burden of proving a change in circumstances that materially affected August's welfare, when there was a) no expert testimony concerning August's needs, b) no evidence concerning the suitability of Appellee's domestic partner, Tom Landry, to care for August, and c) no evidence whatsoever that Andy Bergeron poses any risk to August.
4. The court was manifestly erroneous in refusing to recalculate Appellee's child support obligation due to a change in Appellee's income and in failing to order a retroactive payment of child support to Appellant.
DISCUSSION
In her first assignment of error, Daisy alleges that the trial court misapplied the burden of proof in deciding custody based on certain statements made by the trial court in its reasons for judgment. We disagree with Daisy's representation of the trial court's statements.
In explaining how "burden of proof applies in a civil matter, the Louisiana Supreme Court articulated the following:
Generally, the legal term "burden of proof "denotes the duty of establishing by a fair preponderance of the evidence the truth of the operative facts upon which the issue at hand is made to turn by substantive law." Black's Law Dictionary (8th ed). Under Louisiana's civil law, the "burden of proof may shift back and forth between the parties as the trial progresses. Therefore, when the burden of proof has been specifically assigned to a particular party, that party must present sufficient evidence to establish the facts necessary to convince the trier of fact of the existence of the contested fact. Stated another way, the party on which the burden of proof rests must establish a prima facie case. If that party fails to carry his burden of proof, the opposing party is not required to present any countervailing evidence. On the other hand, once the party bearing the burden of proof has established a prima facie case, the burden then shifts to the opposing party to present sufficient evidence to overcome the other party's prima facie case. Louisiana courts commonly apply this "shifting burden of proof in numerous specific instances, such as trial on motions for summary judgment and exceptions, and in workers' compensation cases.
Landiak v. Richmond, 05-0758, p. 8 (La.3/24/05), 899 So.2d 535, 542.
There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and that needed to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). Elliott v. Elliott, 05-0181, p. 8 (La.App. 1st Cir.5/11/05), 916 So.2d 221, 227, writ denied, 05-1547 (La.7/12/05), 905 So.2d 293. If a prior award of custody, as in this case, has been made by consent decree, the party seeking a change in custody must prove that a change materially affecting the welfare of the child has occurred since the original decree. The proponent for change must also show that the proposed modification of custody is in the best interest of the child. MacHauer v. Randolph, 99-0086, p. 3 (La.App. 1st Cir.9/24/99), 754 So.2d 1042, 1043. As the proponent of the request to modify the parties' domiciliary status under the existing consent decree, Shawn bore the burden of proof on this issue. See Hensgens v. Hensgens, 94-1200, pp. 6-7 (La.App. 3d Cir.3/15/95), 653 So.2d 48, 52.
*1067 In finding that Shawn proved the first factor for establishing a modification of custody, the trial court stated the following:
I believe that Shawn[,] in presenting the petition or the motion . . . presented to the Court a change of circumstances that materially affected the welfare of the child. . . . [H]e finds out about what happened with Andy Bergeron in Terrebonne Parish and the allegations that were made. And his testimony about the other issues, the words that his son was speaking to him about whipping your a* * and hearing that on two occasions and hearing from his son that it came from Andy and finding out about the other incident or the allegations against Mr. Bergeron in Terrebonne Parish, those are certainly circumstances that materially affect the welfare of August. I don't think anybody could argue with that.
So, I think at least at that point he has sustained that part of his burden of proof that there were materialthat there was a change and the change is that Daisy is married to Andy Bergeron. They have a household, a family, and that Mr. Bergeron has been accused of abusing his child. And, certainly, that's an issue that materially affects August Richard's well-being. I don't think there's any question about that.
The trial court then went on to discuss those facts that supported its finding that it was in the best interest of the child to designate Shawn as domiciliary parent, the correctness of which we will review in discussing Daisy's second and third assignments of error. Nevertheless, Daisy takes issue with the following statement made by the trial court in discussing the fact of Shawn's sexual orientation:
But I don't consider that to be a factor in this case for several reasons. Number one, it wasn't briefed, and number two, I think if it was going to be a factor, then it was imperative on Daisy to bring evidence to this Court to show that aside from all other factors, that the mere fact that Shawn is a homosexual and lives in a relationship with another man that that fact alone would be detrimental and for that reason it would not be in August's best interest to live there. And I think the burden is on her to prove that, and there's certainly no evidence presented to suggest that.
As previously stated, as the proponent of the request for modification of custody, Shawn had the burden of proving (1) a material change in circumstances affecting the welfare of the child; and (2) that the proposed modification would be in the best interest of the child. Once Shawn made a prima facie case of establishing these two factors, as will be discussed later in this opinion, the burden shifted to Daisy to present countervailing evidence sufficient to overcome Shawn's prima facie showing. Moreover, it is an elementary rule of law that one who asserts a fact must carry the burden of proof of that fact and the fact must be established by a reasonable preponderance of the evidence. Meyer v. State, Dept. of Public Safety License Control and Driver Improvement Division, 312 So.2d 289, 292 (La.1975). Thus, considering the foregoing legal principles, we reject Daisy's assertion that legal error was committed because the trial court misapplied the burden of proof.
In her third assignment of error, Daisy specifies three grounds for asserting that the trial court erred in finding that Shawn had sufficiently proven a material change in circumstances to justify modification of the existing custody decree: (a) there was no expert testimony concerning August's needs; (b) there was no testimony regarding the suitability of Tom Landry, Shawn's *1068 partner, as a caregiver for August; and (c) there was no evidence that Andy poses a risk to August.
In this case, and as in most child custody cases, the trial court's determination was based heavily on factual findings. It is well settled that an appellate court cannot set aside a trial court's findings of fact in the absence of manifest error or unless those findings are clearly wrong. Elliott, 05-0181 at 7, 916 So.2d at 226-227. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. R.J. v. M.J., 03-2676, p. 5 (La.App. 1st Cir.5/14/04), 880 So.2d 20, 23. In order to reverse a fact finder's determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Elliott, 05-0181 at 8, 916 So.2d at 227.
Based on our review of the record before us, we find that there was evidence of an expert quality presented to the trial court concerning August's needs. As previously mentioned, Dr. Robertson was appointed to evaluate the parties on April 4, 2008, and in conjunction with her evaluation, she interviewed Shawn, Daisy, Andy, Tom, Monique Omer (Shawn's sister), Jeffrey Waalk (Andy's teenage son to whom he relinquished his parental rights), Melanie Waalk (Jeffrey's mom), and August. Dr. Robertson also observed August's interactions with family members on two separate occasions: first with Daisy, Andy, and their infant daughter, Amelia; and second with Shawn and Tom. Dr. Robertson additionally consulted with Dr. Jason Wuttke, August's treating psychiatrist, and Arian Elfant, PhD, a clinical psychologist who performed a psychoeducational evaluation of August, at Shawn's request, for the purpose of private school admission. She also reviewed various documentary evidence, including the pleadings filed in the instant matter.
The trial court, in its reasons for judgment, expressly found that Shawn proved the first factor for seeking modification of the September 12, 2007 consent decree through his presentation of evidence that a protective order and criminal charges had been filed against Andy alleging that he physically and emotionally abused his teenage son from a previous relationship. Having reviewed the evidence, we cannot say that the trial court was clearly wrong in finding that Shawn had established a material change in circumstances based on this evidence alone. Proof of the parties' failure to communicate regarding such significant issues as changing residences (both Shawn and Daisy failed to notify the other that they were changing residences until after they had moved) and Shawn's relocation back to Louisiana were additional facts that supported the trial court's finding of a material change in circumstances to justify modification of the existing consent decree.
Nevertheless, we will still address the additional grounds raised by Daisy in challenging the finding that a material change in circumstances existed, but we observe that the challenges raised by Daisy appear more so to be challenges of the trial court's finding that it was in the best interest of August to designate Shawn the domiciliary parent. Therefore, in conjunction with Daisy's second assignment of error, in which she alleges that the trial court disregarded Shawn's "open homosexual lifestyle" and several factors under La. C.C. art. 134 when it made its best interest of the child determination, we will also *1069 consider the specific grounds raised by Daisy in challenging the finding of a material change in circumstances.
Every child custody case must be viewed in light of its own particular set of facts and circumstances. Elliott, 05-0181 at 7, 916 So.2d at 226. Louisiana Civil Code article 131 provides that the paramount consideration in any determination of child custody is the best interest of the child. R.J., 03-2676 at 5-6, 880 So.2d at 23. Thus, the trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Accordingly, a trial court's determination of custody is entitled to great weight and will not be reversed on appeal unless an abuse of discretion is clearly shown. Elliott, 05-0181at 7, 916 So.2d at 226.
In determining the best interest of the child, La. C.C. art. 134 directs the court to consider all relevant factors, which may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.
Daisy's first contention, in her third assignment of error, was that there was "no expert testimony concerning August's needs." Dr. Robertson, as well as Dr. Elfant, found that "August needs a comprehensive neurological and psychological and/or psychiatric evaluation" and that "[t]he presence of additional psychological/psychiatric disorders or concerns should also be ruled out." However, we do not find that the conclusion that further testing and examination is needed to definitively address August's educational and psychological needs invalidates or discredits Dr. Robertson's or Dr. Elfant's opinions regarding the needs of August deduced on the psychological and psychiatric evidence that was available, as well as their own personal observations and research. And while the trial court acknowledged that Dr. Robertson does not "pretend to be an educational specialist" or "child psychologist," based on Dr. Robertson's experience and educational background and other evidence, such as Dr. Elfant's psychoeducational test report, presented to the trial court, we cannot agree with Daisy's representation *1070 that "no expert testimony concerning August's needs" was introduced at trial.
We likewise disagree with Daisy's allegation that "no evidence" was presented concerning Tom's ability to act as a caregiver for August. As noted by the trial court:
Over the years that I've been doing this, I've had many people testify in this courtroom about their mamma being a baby-sitter or they're taking their child to daycare or they're taking their child to some lady around the corner, and not everybody who provides daycare for a child or provides supervision for a child has to come into the courtroom and testify in order for that party to further their request for custody.
So, yes, maybe it would have been nice to hear from Mr. Landry, but the fact that he didn't testify, basically, the evidence presented by Shawn Richard on that point and his role in August's life is uncontradicted, is basically where it's left. There's no evidence to say that Tom Landry should not provide supervision and care for August. It's uncontradicted.
It is also observed that Tom was interviewed by Dr. Robertson in connection with her custody evaluation of the parties. And although Dr. Robertson did not testify at trial, she was deposed by the parties and thoroughly questioned regarding the observations and the conclusions reached in her custody evaluation report. Her deposition and custody evaluation report were introduced into evidence at trial. Notably, Dr. Robertson recounted the following regarding her observation of the interaction between August, Shawn, and Tom:
August was observed on a separate occasion with his father Shawn and his partner Tom Landry. They all sat on the floor. Play and verbal interaction were constant. Shawn and Tom both focused their attention on August. There was some verbal interaction between Shawn and Tom, but it was extremely limited. As they played with August, they guided and taught him about how things operated. They helped August devise extensive scenarios involving Legos, pirates, etc. August was asked how he wanted things; he was encouraged to choose and direct the play.
August interacted and played with both his father and Tom. There was a great deal of laughter. August was clearly relaxed and comfortable. There was constant verbal and eye contact between Shawn and August. August responded frequently.
Thus, we find adequate evidence of Tom's ability to act as a caregiver was presented to the trial court.
As for Daisy's assertion that "no evidence whatsoever" was presented that Andy poses any risk to August, we again must disagree with her assessment of the evidence. According to the evidence and testimony presented at trial, Andy and Daisy met "online" through an internet dating service in November 2005, and they met in person in January 2006. In August 2006, the couple began living together and married on November 10, 2006. In June 2006, however, Melanie Waalk, the mother of Andy's then fourteen-year-old son, Jeffrey, filed a "Petition for Protection from Abuse" against Andy, alleging that on Father's Day, Andy had physically and verbally abused Jeffrey while Jeffrey was visiting at the home of Andy's parents. A protective order was issued against Andy and he was criminally charged with domestic abuse/simple battery; however, before the matter went to trial, the charges were dismissed in exchange for Andy voluntary surrender of his parental rights to Jeffrey. *1071 Although Daisy knew of these proceedings, she did not inform Shawn.
Jeffrey and Freddie Bergeron, Andy's father, both testified at trial. Jeffrey testified that when Andy arrived at his parents' home on Father's Day 2006, Andy sought him out and found him reading a book about Marilyn Manson and possibly listening to the artist's music. Andy and Jeffrey argued about Jeffrey's preference in musicians, which Andy acknowledged; however, Andy denied Jeffrey's further account that he pushed and punched Jeffrey and called Jeffrey derogatory names after dragging Jeffrey outside during their argument. Although Andy's father, Freddie, denied hearing Jeffrey and Andy argue or seeing any evidence of Andy's physical abuse of Jeffrey, he did corroborate Jeffrey's testimony that when Jeffrey re-entered the house, he was crying and that Jeffrey told him that Jeffrey and Andy had been arguing.
In the reconventional demand filed by Shawn, wherein Shawn requested that he be designated the domiciliary parent, he alleged that he had "recently become aware" of the domestic abuse proceedings filed against Andy. At trial, Shawn testified that on learning of the proceedings, he went to Terrebonne Parish to review the record of the proceedings. After reviewing the record and further speaking with Melanie Waalk, Jeffrey's mother, he then realized that some of the troubling behavior that August had been exhibiting might be due to his interactions with Andy. Specifically, Shawn testified he believed that Andy could possibly be subjecting August to some of the same abusive behavior as he had been accused of inflicting on his son Jeffrey because August had developed a facial tic, had begun stuttering, and on at least two occasions had used the expression "I will whip your a* *" when reprimanded. In the domestic abuse pleadings, it was reported that Andy had used such threatening words toward Jeffrey. Shawn stated that August told him that Andy used the phrase when Shawn questioned August about his use of the threatening phrase. Shawn said Daisy denied that Andy used such language when Shawn questioned her about August's disclosure.
Shawn further testified that August's facial tic was so pronounced that Daisy's parents called him on New Year's Eve 2007 and asked him to have August examined by Dr. Wuttke, even though Daisy had already had August examined by his treating pediatrician and the pediatrician had stated that the facial tic could be a side effect of August's medications. In a subsequent examination, Dr. Wuttke also opined that August's facial tic could be a side effect of his medication. When questioned about the diagnosis given by both of August's treating doctors, Shawn observed that neither doctor was aware of the allegations of domestic abuse against Andy at the time. Shawn further testified that Dr. Wuttke had stated that it would be hard to determine if August was being abused because of possible defense mechanisms August may have developed as result of his experience of living in an orphanage in the Ukraine.
As for Dr. Robertson's observations of Andy's relationship with August, she recounted the following in her custody evaluation report:
As I entered the observation room, Andy was correcting August. The mother was sitting on the sofa holding Amelia who was asleep. Andy and August had been playing for awhile and there were a number of toys on the floor. August was instructed to pick them up and he was very cooperative.
. . .
There was frequent verbal communication among Daisy, Andy and August. *1072 The communication between Daisy and Andy was more often. August's verbalizations were extremely polite and respectful and seemed cautious. He appeared to want to please and may have been somewhat fearful of making a "wrong" response.
The level of affection shown toward Amelia by both Daisy and Andy was very strong. The level of affection shown toward August was less clear. He appeared to be secondary for both Daisy and Andy. The level of affection from August to his mother was okay. The level of affection from August to Andy was fair. He appeared to enjoy playing, but seemed slightly fearful.
No discipline was needed. However, both Andy and Daisy corrected him on several occasions. It was not clear what August had done to elicit that response.
. . .
August said his mother and dad (Andy) both cook. He said his mom gets "mad when I don't listen." He told me, "Dad (Andy) gets mad for the same thing." . . . He appeared to understand that he was punished at his mother's house frequently. . . .
August calls his father Papa. At his father's, "Papa and Tom both cook." They fix him cereal for breakfast. He said Papa and Tom do not get mad.
Considering the foregoing evidence, we find that it was sufficient to show that, to an extent, Andy has some adverse influence on August. While the evidence may be insufficient to establish that Andy poses an outright or substantial risk to August, it is sufficient to support a finding that August may have been harmed by some aspects of his relationship with Andy.
As for Daisy's concerns regarding the trial court's assessment of other factors outlined in La. C.C. art. 134, particularly the factor related to the moral character of the parties and Shawn's open homosexuality, we first should point out that the trial court did address this issue and the evidence, or lack thereof, of its affect on August, as previously discussed in reviewing Daisy's first assignment of error. Nevertheless, we recognize that in Scott v. Scott, 95-0816, pp. 8-9 (La.App. 1st Cir.12/15/95), 665 So.2d 760, 766, the following principles were pronounced for assessing what consideration should be given a parent's sexual lifestyle:
In assessing whether a parent's sexual lifestyle is cause for removing or denying custody, we must consider whether the behavior was damaging to the children. This involves a determination of (1) whether the children were aware of the illicit relationship, (2) whether sex play occurred in their presence, (3) whether the furtive conduct was notorious and brought embarrassment to the children, and (4) what effect the conduct had on the family home life.
In the matter before us, it appears that factor (4) is the most critical to a determination of the influence Shawn's homosexuality has on August. There is no question that August is aware of Shawn's homosexual lifestyle; however, the record does not reveal any evidence indicating whether Shawn and Tom engage in "sex play" in August's presence or whether August sufficiently appreciates the significance of Shawn's relationship to be embarrassed by it. Nevertheless, the evidence in this case clearly preponderates to a showing that despite Shawn's alternative lifestyle, August appears to be more comfortable and happy with his father and his partner than with his mom and her husband. Whether personal feelings and moral judgments would incline individuals to consider otherwise, absent evidence to the contrary, we must conclude that the trial court did not *1073 abuse its discretion in refusing to find that Shawn should not be designated domiciliary parent solely on the basis of his homosexuality.
Additionally, in considering the other factors outlined under La. C.C. art. 134, we find no merit in Daisy's assertion that because Shawn (who claims to be of the Catholic faith) does not attend services, he will neglect August's religious training in the faith.[1] Shawn testified that Tom has an uncle who lives in New Orleans and who is a priest, and that if he were designated domiciliary parent, he planned on enrolling August in catechism classes at the uncle's church.
Of greater importance in our review of the factors and the evidence presented in this record are two things. First, as noted by the trial court, based on Dr. Robertson's report and its own observations during trial, there is some genuine concern regarding Daisy's perception of and interaction with August. Dr. Robertson stated that Daisy acknowledged that August "is at the developmental level of a 5 year old with ADD and other significant problems. On the other hand, her expectations about his behaviors do not match these expressed perceptions; they far exceed his ability to comply." The trial court agreed with this finding, stating that "I agree with [Dr. Robertson's] conclusion that Daisy, as much as she loves and cares for August,. . . is [not] realistic about August's needs." The trial court went on to explain "I think that at this point that is not a good household for August Richard. Not because he's not loved, I don't think he's in danger, but I think there's something missing, and I think it's a combination of denial on Daisy's part and I think the rest of it is distraction.. .the other factors of being married and having another child I think has caused serious distraction, and that distraction has been reflected in the lack of communication with Shawn."
An incident that illustrates the trial court's concern regarding the deficiencies of Daisy's consideration of August's special needs and the need to prioritize his care occurred sometime around June 2008 when August killed a kitten while in Daisy's physical custody. Although it was disputed as to exactly when Daisy informed Shawn of the incident (Daisy testified she phoned Shawn the same day and Shawn testified that it was the day following), Daisy freely admitted that later that night when she got ready to go to bed, she placed her infant daughter in the room with her and Andy and locked their bedroom door because the incident frightened her. Despite her fright, Daisy did not immediately attempt to contact Dr. Wuttke, August's treating psychiatrist, about the incident. Once Dr. Wuttke was informed of the incident, he prescribed play therapy for August, which, due in part to the fact that the therapist that Dr. Wuttke prescribed for the treatment being located in New Orleans (where Dr. Wuttke also practices), Shawn attended most of the appointments with August.[2]
The other major factor demonstrated by the record that favors the trial court's decision to designate Shawn domiciliary parent was the issue of education. Based on testimony presented at trial, and Dr. Elfant's report, it was established that because of August's speech problems, diagnosis of ADHD, and other suspected educational *1074 and psychological problems, it was recommended that August attend a "first grade classroom, which provides instruction for students at a variety of levels, and provides a balance between learning that is hands on and learning that emphasizes the development of verbal skills would be optimal for August. He will likely benefit from an intimate, nurturing setting where he can receive adequate attention and support in how to navigate his difficulties focusing and attending."
Prior to selling her house and moving to Galliano, a distance that Shawn testified was an hour and a half longer ride from New Orleans, Daisy had lived in Thibodaux and August had attended St. Joseph's, a private Catholic school. As a consequence of her move, and as domiciliary parent, Daisy testified that she had enrolled August in Golden Meadow, a public school with an average class size of 24 to 25 students.[3] To show that her decision to enroll August in Golden Meadow was not bad decision, Daisy presented Charles Michel, supervisor of special education for the Lafourche Parish School Board, as a witness.
Dr. Michel was accepted by the trial court as an expert in the field of special education. Dr. Michel testified that through the use of "IEPs" (Individual Education Programs), he averred that a specialized curriculum could be designed to meet August's needs, even through the use of resources outside of the school system. Dr. Michel acknowledged that the student-teacher ratio for Golden Meadow was 24 or 25 students to one teacher, but he said if August's IEP dictated,[4] he would be placed in a classroom with inclusion support, which would mean another teacher or paraprofessional would be in his classes, thereby creating a student-teacher ratio of 24 or 25 to two, resulting ultimately in a ratio of 12 or 13 students to each teacher or paraprofessional.
Shawn, in turn, presented evidence of two highly specialized private schools, which met the requirements outlined by Dr. Elfant, that he was considering for August if he were designated domiciliary parent. One of the two schools that Shawn testified about was The Hill School, which was housed downstairs in the building in which Shawn and Tom lived. Shawn stated that The Hill School had done "wonderful things" for his landlord's son, who is autistic. He also said that the average class size for the school was about six to nine students.
Considering this evidence, we find that the record more than sufficiently supports the trial court's finding that it is in the best interest of August to designate Shawn the domiciliary parent. Hence, we find no abuse of the trial court's discretion and decline to disturb its modification of the parties' custody.
As for Daisy's final assignment of error, we note that the previous rule to modify the award of child support was filed by Shawn, and that the parties acquiesced in the trial court's decision to pretermit determination of that issue to allow the parties to reach an amicable resolution. Further, based on our determination that the trial court's decision to designate Shawn domiciliary parent should be affirmed, which means that the trial court's decree *1075 that Daisy is now liable for the payment of monthly child support to Shawn must also be maintained, we decline to give retroactive effect to the award of child support to the date of judicial demand, as this modification of the judgment would benefit Shawn, who did not appeal the November 5, 2008 judgment nor answer the appeal. See La. C.C.P. art. 2133.
CONCLUSION
Even though the parents compared equally in all but a few factors required to be considered in determining the best interest of the child, evidence that the father is better able to provide for the minor child's special educational and psychological needs; that the father has made a better effort than the mother in planning his life around those needs; and that the mother has less restraint and patience, due to distraction and a failure to fully appreciate the special needs of the child that could potentially hinder the child in his ability to overcome his special needs, support the father being designated domiciliary parent. We therefore affirm the judgment of the trial court. All costs of this appeal are cast to the mother, Daisy Vining Richard Bergeron.
AFFIRMED.
KUHN, J., Dissents and Assigns Reasons.
KUHN, J., dissenting.
It is undisputed that August has "special needs." At argument, the parties conceded that neither one could advise the court definitively what August's "special needs" are. For the trial court to have made a determination of the best interest of the child in this vacuum was impossible. Neither parent established the "special needs" of the child, and neither has shown that he or she can satisfy those needs. I would remand to have the trial court determine August's special needs and which parent could best satisfy them. To do otherwise is to ignore the paramount question in this litigationi.e., what is in the best interest of Augustwhich should first be addressed by the parents and then the court.
Moreover, given August's history of physical change in domicile at the age of three, I cannot envision how changing custody from the mother with whom he has lived the majority of his five years in the United States to every other weekend, major holidays, and one month during the summer can be in his best interest.
Accordingly, I dissent.
NOTES
[1] Daisy and Andy both testified that they are of the Catholic faith and attend services "most" Sundays.
[2] Following the cat incident and August's enrollment in play therapy, Shawn testified that Dr. Wuttke increased the frequency of his visits with August from once every three months to once a month. He also stated that August's play therapist had scheduled August for weekly sessions.
[3] Also in conjunction with her move to Galliano, Daisy went from being employed as a fulltime nurse at Thibodaux Regional Hospital, to only working at the hospital one day a month as needed, so she could stay at home and be the primary caretaker for August and Amelia. Andy testified at trial that he is a pilot and that he is employed for six months out of the year with a salary of around $30,000 per year. The remainder of the year, he said he planned to spend with his family.
[4] At the time of trial, the IEP for August had not been completed, although he was already attending Golden Meadow. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560046/ | 20 So.3d 852 (2009)
CUMMINGS
v.
STATE.
No. 2D09-4184.
District Court of Appeal of Florida, Second District.
October 19, 2009.
Decision Without Published Opinion Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560134/ | 20 So.3d 848 (2009)
CIRAFICI
v.
HUTWAGNER.
No. SC09-1825.
Supreme Court of Florida.
October 2, 2009.
Decision Without Published Opinion Review dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559938/ | 249 A.2d 750 (1969)
STATE of Maine
v.
Kenneth A. CADIGAN, Peter Comas, Rasa Lind Garcia, Michael Arthur Krasnow, Lawrence P. Rieger, Christine Staubauch.
Supreme Judicial Court of Maine.
January 29, 1969.
*752 Albert E. Guy, Asst. County Atty., Portland, for the State.
Louis Bernstein, and William W. Willard, Portland, for Cadigan and Garcia.
Jacob Agger, and Joseph Brennan, Portland, for Comas.
John W. Philbrick, Portland, for Krasnow.
Frederick A. Johnson, Portland, for Rieger.
Udell Bramson, Portland, for Staubauch.
Before WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.
DUFRESNE, Justice.
This case is before us on report under Rule 37A(b) of the Maine Rules of Criminal Procedure for Law Court determination of the propriety of an interlocutory order or ruling in the Superior Court denying in part defendants' motion to suppress evidence alleged to have been obtained by virtue of an unlawful search and seizure. Rule 41(e), M.R.Cr.P.
Defendants contended before the Justice below and advanced the same contentions before us that the reference search and seizure was in violation of their respective rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and under Article I, Section 5 of the Constitution of Maine, and more specifically (1) that the warrant, application and affidavit supporting the same were insufficient on their face; (2) that the property seized was not described in the warrant; (3) that there was no probable cause for believing the existence of the grounds upon which the warrant was issued; (4) that the warrant was illegally and unreasonably executed; and (5) that the property was illegally seized without a warrant.
Our consideration of the first stated point of error in the ruling below will suffice to dispose of the case as we agree that the search warrant was insufficient in law and rule that the search thereunder amounted to a warrantless unreasonable search in violation of defendants' constitutional rights.
We must however dispose of the State's threshold argument, sustained in the Court below, that the defendants have no legal standing to raise the constitutional issue respecting the search. The State concedes that the defendant Rieger who admittedly occupied the residence at the time of its search had legal status to question the validity of the search and of the resultant seizure. But in the absence of any stipulation or testimonial evidence to the effect that the other defendants were guests in the home of the defendant Rieger, whose premises were being searched and in whose home all the defendants were arrested when the search turned up a quantity of marijuana, pills and capsules (barbiturates and amphetamines), the presiding Justice *753 ruled that they were not persons aggrieved by the unlawful search and thus had no standing to question its validity.
True, one must have standing to invoke the Fourth Amendment proscription against unreasonable searches and seizures. In Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the United States Supreme Court has identified certain classes of persons eligible to claim aggrievement from a constitutionally unlawful invasion of privacy. They must be either (1) persons against whom the search was directed, (2) persons legitimately on the premises searched against whom the fruits of the search are intended to be used, or (3) persons charged with illegal possession of the property seized and sought to be suppressed.
That the Justice below refused to draw from the stipulated facts the natural inference that the other defendants were in defendant Rieger's apartment under his express or at least implied invitation or as mere licensees seems to us a strained construction of the stipulation. In the light of the sole legitimate conclusion to be reached from the factual posture of the case, the defendants would have standing as persons legitimately on the searched premises against whom the fruits of the search are proposed to be used. But notwithstanding their status on the Rieger premises, the defendants are charged with the crime of unlawful possession of the seized narcotic drugs. As such, they have standing to question the legality of the search.
Jones has set up standing requirements in two alternative ways one of which is, "when * * * possession of the seized evidence is itself an essential element of the offense with which the defendant is charged, the Government is precluded from denying that the defendant has the requisite possessory interest to challenge the admission of the evidence." Simmons v. United States, 1968, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247. Thus, standing no more depends solely on the legitimacy of the existing interest of the person claiming Fourth Amendment protection in the premises searched, even to the extent of mere legitimate presence, but may rest completely upon that person's connection with the seized property, especially where the seized property is contraband, the mere possession or ownership of which is the crime charged against the person seeking its suppression. The rationale underlying the new look given to the legal concept of standing by Jones is that the accused may enjoy the free exercise of Fourth Amendment privileges in testing the validity of the search without at the same time surrendering any other constitutional right. He may press for suppression without assuming the risk that his assertion of possession or ownership of the contraband property to establish standing be used against him to prove guilt in violation of the Fifth Amendment's Self-Incrimination Clause. Simmons v. United States, supra.
The authorities have construed Jones to the effect that the very nature of prosecutions for illicit possession of property, by that very fact, accords the accused the standing to invoke Rule 41(e) [motion to suppress] as a person aggrieved and legally empowered to raise the constitutional question respecting the alleged unlawful search and seizure. Contreras v. United States, 1961, U.S.C.A., 9th Cir., 291 F.2d 63; Monnette v. United States, 1962, U.S.C.A., 5th Cir., 299 F.2d 847; United States v. Holt, 1962, U.S.C.A., 6th Cir., 306 F.2d 198; Niro v. United States, 1968, U.S.C.A., 1st Cir., 388 F.2d 535. We rule that all the defendants have standing to question the validity of the search and seizure through their motion to suppress, and therefore we now pass to a consideration of the merits of their claim that the search and seizure in the instant case was *754 unreasonable and an invasion of their constitutional rights.
One of the main thrusts of the defendants' contentions is that the warrant, application and affidavit justifying the search and seizure are insufficient in law on their face and that the police invasion of the Rieger home was tantamount to a search without warrant and the ensuing seizure of the illicit goods illegal and suppressible. These reference documents read as follows:
STATE OF MAINE
CUMBERLAND , ss. DISTRICT COURT
District Nine
Division of Southern
Cumberland
AFFIDAVIT AND REQUEST FOR
SEARCH WARRANT
To Bernard M. Devine, Judge, of the District Court to be holden at Portland in the County of Cumberland and State of Maine.
Albert E. Guy an Assistant County Attorney of Windham, in the County of Cumberland in said State of Maine, on oath complains that he has probable cause to believe and does believe that on the premises known as the residence of Lawrence P. Reiger located at 47 Bramhall Street, in the City of Portland County of Cumberland in said State, said premises being occupied by Lawrence P. Reiger.
There is now being concealed certain property, to wit; Marijuana, heroin, LSD, and various barbituates and amphetamines that said property (state reason for seizure) is contraband by virtue of the provisions of Title 22, sections 2361 through 2380 of the Maine Revised Statutes Annotated.
WHEREFORE, the said Albert E. Guy prays that a warrant may issue authorizing a search in the daytime of the above described premises, for said property; and that if said property, or any part of the same be there found, the said Lawrence P. Reiger, or the person having said property in his custody or possession may be arrested and held for examination as the law directs.
* The said Albert E. Guy on oath further states that he is positive that the property is in the place to be searched and it is necessary to prevent the removal of said property, that a warrant issue authorizing a search in the nighttime of the above described premises.
Dated at Portland, this seventh day of December 1967.
Albert E. Guv
Subscribed and sworn to by the said Albert E. Guy this seventh day of December 1967, before me
Bernard M. Devine
District Judge"
*755
" STATE OF MAINE
(Seal)
CUMBERLAND , ss. DISTRICT COURT
District of Nine
Division of Southern
Cumberland
SEARCH WARRANT
To the Sheriff of Cumberland County, or any of his deputies or any other authorized officer:
Affidavit having been made before me by Albert E. Guy that he has reason to believe that on the premises known as the residence of Lawrence P. Reiger located at 47 Bramhall Street, in the City of Portland County of Cumberland and State of Maine, said premises being occupied by Lawrence P. Reiger there is now being concealed certain property, to wit; Marijuana, heroin, LSD, and various barbituates and amphetamines.
As I am satisfied that there is probable cause to believe that the property so described and used is being concealed on the premises above described, upon the following grounds:
Affidavit of Assistant County Attorney Albert E. Guy.
You are hereby commanded to search the place named for the property specified, serving this warrant and making the search in the daytime and if the property be found there to seize it, prepare a written inventory of the property seized, and bring the property and the person in whose possession or custody the same was found before a District Judge, to wit Honorable Bernard M. Devine of the Ninth District Court, Southern Division, at Portland.
* Being satisfied that the complainant is positive that the property is in the place to be searched and that it is necessary to prevent the removal of said property you are hereby authorized to search the place named in the nighttime.
DATED, this Seventh day of December 1967.
Bernard M. Devine
District Judge"
It was further stipulated and agreed between all the defendants and the State that Judge Bernard M. Devine, if called as a witness, would testify as follows:
"I am a Judge of the District Court in Cumberland County and I issued the search warrant directed to the premises of Lawrence P. Reiger on December 7, 1967. I do not specifically recall the particular occasion that Albert E. Guy presented his affidavit and request for a search warrant in this matter. I do recall a case in which Mr. Guy came to me for a search warrant and alleged facts additional to those contained in the written affidavit. I recall that the reasons given by Mr. Guy for not including the additional facts in the written affidavit were that he was protecting an informant whose information had proven reliable in the past, and that he was protecting *756 against security leaks which might frustrate the purpose of the search. I do not recall any of the facts given to me orally, but I do recall that I felt the given facts were sufficient to sustain a finding of probable cause. These additional facts were not recorded or reduced to writing; they were sworn to, but I do not recall whether the oath was administered prior to or after the facts were given. Again, however, I am not sure whether or not the recollections I have related involve the case at bar.
My usual practice is that a person giving oral facts to substantiate the issuance of an order requiring an oath is sworn and usually is sworn by me after the recital of the facts has been made.
My personal definition of the word `affidavit' is a `sworn statement in writing'."
Both the Fourth Amendment to the Constitution of the United States and our own Section 5 of Article I of the Constitution of Maine provide that the people shall have the right to be secure in their persons, houses, papers, effects and possessions from all unreasonable searches and seizures and that no warrant to search or seize shall issue without probable cause, [but upon probable cause], supported by oath or affirmation. But affidavits couched in the language of the constitutional declaration such as that the affiant, as in the instant case, has probable cause to believe and does believe that certain contraband property is now being concealed on certain described premises without any statement of adequate supporting facts were ruled to be constitutionally deficient and search warrants issued thereunder were held to be constitutionally invalid as a violation of the Fourth Amendment direction that no search warrant shall issue but upon probable cause. Nathanson v. United States, 1933, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159. Similarly, conclusory affidavits merely alleging that the affiant has received reliable information from a credible person and does believe that certain contraband is being kept at a specifically described place contrary to law, without informative recital of the underlying circumstances from which the informant concluded that the contraband was where he claimed it to be and some of the supportive facts from which the affiant concluded that the informant, whose identity need not be disclosed, was credible or his information reliable, were more recently condemned as in violation of the constitutional command in Aguilar v. State of Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L. Ed.2d 723.
Thus, it is essential that the magistrate to whom application is made for a search warrant be informed of some of the underlying circumstances from which the applicant (or the informer if the applicant's knowledge is from hearsay) concluded that the crime was being or had been committed and that the things to be searched for were and could be found in a designated place; and additionally, in the case of hearsay information, it is necessary that the officer-affiant state, for the enlightenment of the hearing magistrate, some of the underlying circumstances which enabled him to conclude that the informer was credible and his information reliable. The test is not merely whether probable cause existed for the issuance of the search warrant, but whether under all the factual circumstances disclosed to the magistrate they were sufficient for him to determine and make a finding of the existence of probable cause. Aguilar v. State of Texas, supra; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; United States v. Lefkowitz, 1932, 52 S.Ct. 420, 285 U.S. 452, 76 L.Ed. 877.
Probable cause in the instant case could not be constitutionally determined by the Judge of the District Court who issued the search warrant on the Assistant County Attorney's purely conclusory affidavit, stating only that he had probable cause to believe and did believe that certain described contraband property was being concealed at *757 the Rieger residence without detailing any of the underlying circumstances upon which that belief was based. United States v. Ventresca, 1965, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. See also, Giordenello v. United States, 1958, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.
The State contends however that proof of the existence of probable cause at the magisterial predetermination justifying the issuance of a search warrant as commanded by the Federal and State Constitutions respectively may be established not only by the factual information and necessary inferences flowing from the affidavit furnished in support of the application for the warrant, but may be supplemented by sworn oral testimony before the magistrate and that, if together they show probable cause, the search warrant is valid. To bring such contention into proper orbit for desired judicial exploration, the parties have by stipulation agreed upon the scope of the magistrate's testimony as hereinbefore recited relating to the additional factual background upon which his judicial action in issuing the search warrant was allegedly taken.
To be sure, neither the Federal nor State Constitutions require that the facts establishing probable cause before the magistrate be reduced to writing or affidavit form as a necessary prerequisite for the valid issuance of a search warrant. The stated procedural standard for obtaining a search warrant under the Fourth Amendment via the Fourteenth as it applies to the States is the same as under our own Constitution of the State of Maine and merely compels the evidentiary grounds for the issuance of the warrant to be "supported by oath or affirmation." Such general phraseology standing alone would include sworn oral, as well as written, testimony. Sparks v. United States, 1937, U.S.C.A., 6th Cir., 90 F.2d 61, 64.
Some State jurisdictions have so construed the requirements of the Fourth Amendment and have ruled that all the facts establishing probable cause need not be reduced to writing, but that oral sworn statements may be considered by the magistrate in determining the sufficiency of the facts before him to justify his finding of probable cause. State v. Oliveri, 1968, Iowa, 156 N.W.2d 688; State v. Van Meter, 1968, 7 Ariz.App. 422, 440 P.2d. 58; State v. Titus, 1966, 107 N.H. 215, 220 A.2d 154; Commonwealth v. Crawley, 1966, 209 Pa. Super. 70, 223 A.2d 885.
Federal courts in habeas corpus proceedings questioning the validity of search warrants issued under state procedure have similarly approved warrants the sufficiency of which could be shown by supplemental oral testimony permissible under state law, and thus have endorsed the conclusion that the Fourth Amendment as such does not proscribe proof of the existence of probable cause by other than written sworn testimony. Miller v. Sigler, 1965, U.S.C.A., 8th Cir., 353 F.2d 424; Sherrick v. Eyman, 1968, U.S.C.A., 9th Cir., 389 F.2d 648.
In Sherrick v. Eyman, the Court said:
The Supreme Court of Arizona held that the fact, as testified to by both the policeman and the magistrate, that the magistrate examined the policeman under oath "to determine if there's probable cause for the warrant to issue, and then issued the warrant, satisfied the requirement of the Fourth Amendment that `* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation * * *.'"
* * * * * *
"The testimony of the police officers and the magistrates indicates that information was given to the magistrate under oath in addition to the affidavit. This procedure differs from that under Rule 41(c), Federal Rules of Criminal Procedure where the affidavit is the sole basis upon which the determination of probable cause is made. If we had before us only the affidavit we would undoubtedly be bound to conclude under the case of Aguilar v. State of Texas, supra, that *758 it was insufficient. It would have been advisable for the magistrate to have a transcript made of the officer's testimony, which he gave in addition to the affidavit, and he should have recited on the record what facts presented to him constituted "probable cause." This deficiency we do not deem fatal under the circumstances herein as there is evidence in the record showing what was presented to the magistrate prior to the warrant in question being issued."
Before the adoption of our Rules of Criminal Procedure which became effective on December 1, 1965 the constitutional mandate of the Fourth Amendment and of our own State of Maine counterpart constitutional provision, Article I, section 5, received implementation in 15 M.R.S.A. §§ 51-55. The procedural requirements thereunder were that the search warrant would issue upon verified written complaint specially designating the place to be searched, the owner or occupant thereof, if known, the person or thing to be searched for, the substance of the offense in relation to which it was sought. The complaint had to allege the conclusory statement that "the complaint has probable cause to believe and does believe that the same [person or thing to be searched for] is there [in the place specially designated] concealed." Section 52. The search warrant under section 53 had to recite "by reference to the complaint annexed or otherwise, all the essential facts alleged in the complaint * * *." The legislative direction nowhere required that the grounds of probable cause for the issuance of the warrant be stated in the verified complaint or in affidavit form in support thereof, nor in the search warrant itself.
The statutory provisions were repealed by Public Laws, 1965, c. 356, §§ 17, 18, effective on December 1, 1965, when Rule 41 of the Maine Rules of Criminal Procedure substituted for them. The pertinent portion of the rule with which we are presently concerned reads as follows:
"Rule 41. Search and Seizure
(c) Issuance and Contents. A warrant shall issue only on an affidavit sworn to before a person authorized by this rule to issue warrants specially designating the place to be searched, the owner or occupant thereof, if known to the affiant, and the person or thing to be searched for, and establishing the grounds for issuing the warrant. If the judge or complaint justice is satisfied that grounds for the application exist or that there is probable cause to believe that they exist, he shall issue a warrant identifying the property and naming or describing the person or place to be searched. The warrant shall be directed to any officer authorized to enforce or assist in enforcing any law of the State of Maine. It shall state the grounds of probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. * * *" [Emphasis supplied]
Our Rule 41(c) is an exact duplicate, mutatis mutandis, of the federal rule. When it requires that the sworn affidavit establish the grounds for the issuance of the warrant, it uses such language to cover its broadest scope, meaning not only that the nature of the property to be searched for and seized as enumerated under 41(b) must be stated, but also that the grounds of probable cause which must necessarily exist and be disclosed to the magistrate before a warrant can issue be asserted.
The rule must be construed as a whole so as best to discover the intention of the rule makers, and all its parts must be read together to ascertain the true sense of any one part in order to effectuate an harmonious result. The rule says that if the magistrate is satisfied that grounds for the application for the search warrant exist or that there is probable cause to believe that they exist, the warrant is to issue, but then the rule further provides that the warrant cannot issue but upon affidavit; therefore, it necessarily follows that the grounds of *759 probable cause required by the constitutional provisions as a necessary prerequisite of the valid issuance of any search warrant must be contained in the affidavit. This is consistent with the further requirement that the search warrant itself state the grounds of probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof. The central theme of that sentence of the rule is the statement of the grounds of probable cause and it permeates the whole clause so that when reference is made to the names of the persons whose affidavits have been taken in support thereof, the only logical reference must be to those affidavits taken in support of the asserted grounds of probable cause.
Thus, criminal rule 41, promulgated in substitution of the repealed legislation, 15 M.R.S.A. §§ 51-55, for the identical purpose of implementing procedurally the constitutional requirements of the Fourth Amendment, nevertheless circumscribed the exercise thereof within greater strictures by compelling the execution of affidavits respecting probable cause as a necessary prerequisite to the issuance of search warrants.
Similar evidentiary limitations were made mandatory in Massachusetts by legislative enactment. As Chief Justice Wilkins said in Commonwealth v. Monosson, 1966, 351 Mass. 327, 221 N.E.2d 220: "The legislative purpose was to make sure that the Commonwealth could demonstrate by a writing that any given search and seizure was reasonable and based upon probable cause. The surest way to achieve this purpose is the preservation in the affidavit presented to the magistrate of a statement of the grounds relied upon for issuing the warrant. * * * By this method nothing is left to the uncertainty of oral testimony as to what was otherwise stated to the magistrate, and the defendant is given a full opportunity to challenge the legality of the search."
Federal courts have indicated that such is the interpretation to be given to their Rule 41(c). United States v. Whitlow, 1964, U.S.C.A., 7th Cir., 339 F.2d 975; Rosencranz v. United States, 1966, U.S.C.A., 1st Cir., 356 F.2d 310; Sherrick v. Eyman, 1968, U.S.C.A., 9th Cir., 389 F.2d 648, at page 652; United States v. Birrell, 1965, U.S.D. C., S.D. New York, 242 F.Supp. 191.
Since the rule dictates that a warrant shall issue only on an affidavit sworn to before the magistrate establishing the grounds for its issuance and that the warrant itself shall state the grounds of probable cause for its issuance and the names of the persons whose affidavits have been taken in support thereof, all search warrants must be tested for legal vitality solely from the affidavits themselves or the sworn testimony reduced to writing. An affidavit by definition refers to "a sworn statement in writing made esp. under oath * * *" Webster's Third New International Dictionary. Courts generally so understand the term. In re Hoyt's Estate, 246 Iowa 292, 67 N.W.2d 528, 532; Fitzsimmons v. Board of Education, 125 N.J.L. 15, 13 A.2d 305, 306; In re Murphy, 321 Mass. 206, 72 N.E.2d 413, 417; Dawson v. Beasley, 242 Ind. 536, 180 N.E.2d 367, 370. The rule assures certainty of compliance with constitutional requirements of probable cause, establishes upon the record the facts upon which the magistrate made his determination without subjecting him to the inconvenience of being called to account as a witness, and permits orderly review of the magisterial action.
In the instant case, the affidavit was fatally deficient as being a mere conclusory statement of the existence of probable cause to believe that contraband property was being concealed in the Rieger apartment. Even if the testimony of the magistrate were admissible for consideration in reviewing the magistrate's finding of probable cause, it would itself be insufficient to buttress the affidavit since the magistrate admitted uncertainty in his own mind as to whether his recollections related to the instant case and confessed that he *760 did not recall any of the facts which he felt were sufficient to sustain a finding of probable cause. The magistrate's testimony would have disclosed none of the necessary underlying facts and circumstances upon which the suspicion and belief that a crime was being committed were grounded, nor did it reveal any reason for considering the unnamed informant reliable as a source of accurate information. Furthermore, the search warrant itself failed to state the grounds of probable cause as demanded by the rule. The search warrant was null and void and the seizures made in the course of the search were also unreasonable and unlawful. The arrests made as a consequence of the illegal seizures were also unlawful and all further searches and seizures such as in automobiles of the defendants on the premises or in the street adjacent thereto as incidents of the arrests were also unlawful.
Although the defendants were aggrieved by the unlawful searches and seizures, and are entitled to the grant of their motion to suppress the seized property from its being used as evidence against them, nevertheless they are not entitled to an order for its return to them as the property is contraband and its possession is unlawful and criminal. Trupiano v. United States, 1948, 334 U.S. 699, 68 S.Ct. 1229, 1235, 92 L.Ed. 1663.
The report has framed the following issues for decision by this Court:
1. Was the property or any of it illegally seized without a warrant? We answer yes.
2. Is the warrant sufficient upon its face? We answer no.
8. Did the Court err in its order or ruling dated March 1, 1968 denying in part Defendants' motions to suppress? We answer yes.
Since our decision in the particulars made disposes of the cases below, we discharge the report as to all other issues framed therein.
So ordered.
Case remanded to the Superior Court for further proceedings consistent with the opinion herein.
WILLIAMSON, C. J., (did not sit). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566123/ | 9 F.2d 311 (1925)
BLOCK
v.
NATHAN ANKLET SUPPORT CO., Inc.
No. 371.
Circuit Court of Appeals, Second Circuit.
June 16, 1925.
*312 Hans V. Briesen and Morris Kirschstein, both of New York City, for appellant.
James Love Hopkins, of St. Louis, Mo. (Redding, Greeley, O'Shea & Campbell, of New York City, of counsel), for appellee.
Before ROGERS, MANTON, and HAND, Circuit Judges.
HAND, Circuit Judge (after stating the facts as above).
On the issue of infringement we think there should be no doubt. A reversal end for end is as readily accomplished by revolving the pad on a diameter through an angle of 180° as by rotating it in its own plane to a similar extent. Owing to the form of the defendant's pad, a lunette or segment, it was necessary to do this to effect the result of the patent; but, even were the specifications more expressly limited than they are, we should regard it as an equivalent of the patent. If the patent is to have any value whatever, it ought not to be possible to evade it so easily.
Nor do we think the supposed prior use of 1913, Exhibit L, is a defense. We of course recognize it as proved, but we think it did not embody the invention. That the pad could be reversed, and the position of the hump changed, is quite true. We agree, as well, that the mere failure of any one to reverse it would not save the patent. In this we cannot agree with the reasoning of the learned trial judge. But the shape of the wedge and pad forbade the idea that the pad should be put in blunt edge first. The insole and pad were sold and used in combination, and the shape of each made it clear that the pad should enter by its sharp end. If any one had reversed it, he would have perverted it from its plainly intended position; the design of the combination would have cried out against it. An earlier device which must be distorted from its obvious design cannot be an anticipation. United Shirt & Collar Co. v. Beattie, 149 F. 736, 739, 79 Cow. C. A. 442 (C. C. A. 2). The pocket was, it is true, made ample enough to allow of lateral movement, but, while that suggested some accommodation, it was not of the necessary kind. For whatever it was worth the invention still remained in nubibus. The fact that the plaintiff during the trial extended his pretensions to cover such a device is not conclusive upon him. Inordinate claims create no estoppels.
The last and most difficult question relates to the date of the defendant's own invention of the infringing soles. The evidence is as follows: Marteau went into the employ of Nathan in November, 1918, and swore that already at that time he had invented the infringing pads, and had disclosed them to Nathan. In this Nathan corroborated him. He produced some drawings, undated, to show what Marteau had made. While some of these may in fact have been intended to show asymmetrical longitudinal pads, they are by no means clear in that respect. This may be due to difficulties of perspective, but the fact remains. They do not confirm his evidence; so far as we can see, they are quite consistent with a later invention of asymmetrical pads.
However, Nathan put in evidence a pad, longitudinally asymmetrical, which he said was the matrix for his molds and had also been made in November. Naturally it bore no date, and the time of its production rests solely on his testimony, in this detail not corroborated by Marteau. This model Nathan swore he sent to two rubber companies, who gave him bids for the manufacture of molds. The bid of the United States Rubber Company was dated December 31, 1918, that of the La Favorite Company, January 2, 1919. The second he accepted on January 9, 1919, a week before Block filed his application. It is clear that no molds were made before that date. These letters, though produced at the trial, were not offered in evidence, and we have no means of knowing how far they corroborate Nathan, or identify Exhibit W as in existence at their date. We can only suppose that they were not offered, because they showed nothing of consequence. Thus the evidence in the end comes only to this: That Nathan and Marteau, each highly interested witnesses, swear that Marteau had conceived of the asymmetrical pads in November, 1918, and had made the matrix from which eventually, apparently in April, they began to manufacture and sell.
When Revised Statutes, § 4886 (Comp. St. § 9430), prescribes that a patentable invention must not be "known or used" by others, it means something quite different from *313 the prior public use by which it may be abandoned. In the case at bar Nathan clearly did not use the pads before January 16, 1919; indeed none were made. Were they "known" in the sense which the statutes uses the term? The word has acquired a somewhat esoteric meaning, imputed by the courts to accomplish the purpose of the statute. Mere acquaintance with the invention, even if disclosed, is not enough; nothing short of "reduction to practice" will do, whatever that may mean. Reed v. Cutter, 1 Story, 590, 599, Fed. Cas. No. 11,645; Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821; Stitt v. Eastern R. R. Co. (C. C.) 22 F. 649; Imperial Brass Co. v. Nelson, 203 F. 484, 121 Cow. C. A. 606 (C. C. A. 7); Buser v. Novelty Co., 151 F. 478, 81 Cow. C. A. 16 (C. C. A. 6). All this is very old law, though it is by no means always easy to ascertain just when "reduction" has taken place, for the books, perhaps wisely, are reticent of positive definition. We are, however, relieved in the case at bar from deciding whether the earlier invention must always take tangible embodiment and be ready for immediate use; whether no description in words or figures will serve, unless they be in a public document. We think that Exhibit W, although a model made by hand, would have been under any rule adequate "reduction to practice," had the date of its production been certainly fixed. While it is called a "model," it was not truly such, but rather, as we have called it, a matrix from which the working molds were to be made. Taken by itself it was a perfect example of the invention, as complete and perfected as its replicas which were sold.
But, because of the reasons we have already given, it seems to us that the date of its production is not inalterably fixed. While we have no doubt that Marteau and Nathan were at work on their new insoles in November and December, 1918, it is quite impossible, from any documentary evidence, to say when they first made the asymmetrical pads. It is quite likely indeed, we think it extremely probable that they are right in saying that Exhibit W was in existence before January 16, 1919; but in such cases probability, even extreme probability, is not enough. The proof must be as absolute as in a criminal conviction; indeed, the rule comes nearly to this, that one must have contemporaneous records, verbal or structural. Furthermore, it is apparent that to introduce such records does not prove the date of their origin, except grossly, as they bear internal evidence of antiquity, or precisely, if they carry their own date upon them. When the issue concerns so short a time as that at bar, the appearance of the exhibit helps not a jot to fix the date of its production, and upon the relevant issue we are as much dependent upon oral testimony as though it had never been introduced at all. Thus we cannot regard Exhibit W as adding any more to the proofs than Exhibit V; it tells us that it was made, but not just when. That is all that is important here.
Decree affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919694/ | 660 So. 2d 328 (1995)
STATE of Florida ex. rel. Michael L. MORGAN, Petitioner,
v.
W. Douglas BAIRD, Circuit Court Judge, Respondent.
No. 95-01238.
District Court of Appeal of Florida, Second District.
August 30, 1995.
*329 Michael W. Schwartzberg, St. Petersburg, for petitioner.
Robert A. Butterworth, Attorney General, Tallahassee, and Kimberly D. Nolen, Assistant Attorney General, Tampa, for respondent.
BLUE, Acting Chief Judge.
By petition for writ of prohibition, we are asked to determine the propriety of an order denying a motion to disqualify the respondent judge. We conclude that the motion and its supporting documents were legally sufficient and, consequently, the trial judge erred in failing to disqualify himself.
The following facts appear in the petition and supporting documents filed below. Michael L. Morgan was before the respondent judge for sentencing in two criminal cases and for a trial in a third case. The state was seeking a habitual offender sentence in the two cases. The trial judge agreed to postpone sentencing until after the resolution of the third case, indicating that habitualization might not be warranted if Morgan was acquitted. During the jury's deliberations, lasting over seven hours, the trial judge questioned why the jurors would have difficulty reaching a guilty verdict. After the case resulted in a mistrial, the trial judge held a status conference and scheduled the two sentencing cases. When reminded of his decision to delay sentencing until the third case was resolved, the trial judge indicated that he had heard all the evidence and was prepared to proceed.
The state argues that the motion was untimely. Under Florida Rule of Judicial Administration 2.160(c), "[a] motion to disqualify shall be made within ... 10 days after discovery of the facts constituting the grounds for the motion." The state contends that the time began running when the judge commented about Morgan's guilt during the jury deliberations. Morgan argues that the grounds for disqualification did not become apparent until the status conference when the judge announced that he would proceed with sentencing. We agree with Morgan and find the motion timely.
The state also argues that the motion was legally insufficient because the judge's comments in one case have no bearing on his conduct in the other two cases. In Dragovich v. State, 492 So. 2d 350, 352 (Fla. 1986), the supreme court stated:
The function of a trial judge when faced with a motion to disqualify himself is solely to determine if the affidavits present legally sufficient reasons for disqualification. Fla.R.Crim.P. 3.230(d). The test for legal sufficiency is whether the party making the motion `has a well-grounded fear that he will not receive a fair trial at the hands of the judge.' State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697 (1938).
*330 In this case, the judge agreed to delay sentencing until the disposition of the third case. According to the motion's allegations, the judge's decision on whether to impose a habitual offender sentence was contingent, in part, on the outcome of the third case. The decision to proceed, without waiting for a retrial and in light of his comments during the jury deliberations, created in Morgan a well-founded fear that he would be habitualized based on the evidence in the third case but not on a verdict.
`It is not a question of how the judge feels; it is a question of what feeling resides in the affiant's mind and the basis for such feeling.' State ex rel. Brown v. Dewell, 131 Fla. 566, 573, 179 So. 695, 697-98 (1938). See also Hayslip v. Douglas, 400 So. 2d 553 (Fla. 4th DCA 1981). The question of disqualification focuses on those matters from which a litigant may reasonably question a judge's impartiality rather than the judge's perception of his ability to act fairly and impartially.
Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983). Accordingly, we conclude that the motion was legally sufficient and the trial judge erred by denying it.
Petition granted.
FULMER and WHATLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919699/ | 660 So. 2d 1081 (1995)
Edward C. VINING, Jr., Appellant/Cross-Appellee,
v.
Eva MARTYN, Appellee/Cross-Appellant.
No. 94-0415.
District Court of Appeal of Florida, Fourth District.
August 16, 1995.
Rehearing and Certification of Question Denied October 12, 1995.
Edward C. Vining, Jr., pro se.
*1082 Stephen Gellman, Miami, Elton H. Schwarz, Stuart, and Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellant/cross-appellee.
Lauri Waldman Ross of Maland & Ross, Miami, for appellee/cross-appellant.
POLEN, Judge.
This appeal stems from an attorney-client dispute which grew out of Edward J. Vining's representation of Eva Martyn in a 1980 dissolution of marriage proceeding in Martin County. As a result of this dispute, Martyn filed a complaint against Vining, which included counts for conversion, civil theft, and fraud on the court. The trial court entered judgment in favor of Martyn on these counts, and Vining raised five points on appeal challenging the judgment. We affirm on all of appellant's points, but reverse based on a consideration of both points regarding damages that Martyn raised on her cross-appeal.
As to Martyn's first point on cross-appeal, we agree that the trial court should have awarded prejudgment interest from the date the theft occurred. See Florida Steel Corp. v. Adaptable Dev., Inc., 503 So. 2d 1232 (Fla. 1986) (under the "loss theory" applicable in Florida, prejudgment interest is merely another element of compensatory damages and that once a defendant is held liable for a plaintiff's damages "interest should follow as a matter of law"); O'Donnell v. Arcoiries, Inc., 561 So. 2d 344 (Fla. 4th DCA 1990) (recognizing that prejudgment interest was an element of damages in a civil theft case). We are not persuaded by Vining's argument that Martyn was not entitled to prejudgment interest because there was no date certain for the loss set out in the verdict form. See Charles Buzbee & Sons, Inc. v. Falkner, 585 So. 2d 1190 (Fla. 2d DCA 1991) (reversible error not to award prejudgment interest on ostensible basis that date of loss could not be determined where it was apparent from the record). However, we agree with Vining that because the purpose of prejudgment interest is restitution, rather than retribution, the prejudgment interest should only be awarded on the actual amount stolen and not on the treble damages. Zucker v. Sears Roebuck & Co., 589 So. 2d 454 (Fla. 5th DCA 1991) (in a worthless check action, creditor could only recover prejudgment interest on face amount of check but not on treble damages based on the principle that such interest was restitution and not retribution). Although this court in O'Donnell, 561 So.2d at 345, stated that "the trial court properly computed treble damages by including prejudgment interest as an element of damages," this single sentence does not make clear whether this court was authorizing prejudgment interest on the treble damages or the compensatory portion of the award. Thus, we do not read O'Donnell as restricting our opinion at bar.
With regard to Martyn's second point on cross-appeal, we also agree that the trial court erred in its computation of treble damages. The trial court calculated the damages due and owing Eva Martyn by deducting as an off-set the settlement Eva received from codefendant Florida National Bank before trebling the damages. While there is no Florida case law directly on point, Martyn has cited numerous federal cases which support her argument that the verdict should have been trebled before deducting the off-set. See Flintkote v. Lysfjord, 246 F.2d 368, 398 (9th Cir.), cert. denied, 355 U.S. 835, 78 S. Ct. 54, 2 L. Ed. 2d 46 (1957) (the plaintiffs having already received $20,000, it was proper to deduct that sum from the trebled amount. Any other method would have resulted in plaintiffs receiving less than the whole to which they were entitled); Burlington Indus., Inc. v. Milliken & Co., 690 F.2d 380, 391 (4th Cir.1982), cert. denied, 461 U.S. 914, 103 S. Ct. 1893, 77 L. Ed. 2d 283 (1983) ("[T]he heretofore unbroken rule has been that any settlement payments are deducted from the damages awarded after trebling"). Thus, we reverse with directions for the trial court to deduct the off-set in the amount of the Florida National Bank settlement after the verdict is trebled, in addition to awarding prejudgment interest on the compensatory damages from the date the theft occurred.
GUNTHER, C.J., concurs.
FARMER, J., concurs specially with opinion.
*1083 FARMER, Judge, concurring specially.
I write separately only to make clear that our decision today is not inconsistent with Christenson & Associates, Mtg. Co. v. Palumbo-Tucker, 656 So. 2d 266 (Fla. 4th DCA 1995). In that case we held that prejudgment interest was part of the total compensatory damages package for purposes of calculating the presumptive range of allowable punitive damages under section 768.73(1)(a), Florida Statutes (1993).
In today's case, we hold that prejudgment interest should be awarded only on the actual amount of the loss before any statutory trebling of compensatory damages. That is certainly agreeable with the Christenson & Associates holding, in which prejudgment interest was added to the amount of the actual loss, and the combined sum was then trebled to calculate the punitive damages.
With that understanding, I concur in today's decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919722/ | 660 So. 2d 1093 (1995)
INDIAN RIVER FOODS INC.; Becker Groves Inc.; and Becker Holding Corporation, Appellants,
v.
William Keith BRASWELL and Tabetha Braswell, as Personal Representatives of the Estate of Terry Wayne Braswell, deceased, Appellees.
No. 94-1783.
District Court of Appeal of Florida, Fourth District.
August 23, 1995.
Rehearing Denied October 10, 1995.
*1094 Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Fort Lauderdale, for appellants.
William S. Frates, II, of William S. Frates, II, P.A., Vero Beach, for appellees.
FARMER, Judge.
We are asked by this appeal to decide whether a claim by the injured employee of an independent contractor against the owner of the facility at which the contractor was employed should have gone to the jury. We conclude that there is no evidence in the record to support a finding of liability and reverse the denial of the owner's motion for judgment in accord with its prior motion for directed verdict.
Indian River Foods (owner), a subsidiary of Becker Holding, owns a citrus processing plant in Fort Pierce, Florida. Owner contracted with Gulf Machinery Company (Gulf) for the construction of certain improvements and expansions to its citrus plant designed to increase production. The improvements included the design, construction and installation of a feed mill and a number of tanks. This work was designated in section 7 of the contract. At the time of the accident, the work for that section had been billed and paid and the feed mill area had been operational for about 6 months even though only about half of the required tanks had been *1095 installed and there were still problems in other parts of the plant.
The feed mill chops, presses, and dries orange peels, turning them into livestock feed. The process results in a liquid known as "press liquor" which is composed of sugar, water, and a flammable oil known as "d'limonene." The components of the press liquor are separated in an evaporator. Pipes from that evaporator lead to various tanks. In those tanks, sugars are produced into molasses; water is stored and used to clean the plant; and d'limonene is separated from the water and sold. The water is stored in a condensate water tank, and the d'limonene is stored in a separate tank. Gulf designed, built and installed these tanks, including their pipe fittings.
The process for separating the water from the d'limonene is imperfect, and d'limonene can drain into the condensate water tank rather than its own tank. If the separating process is working well, only trace amounts of d'limonene will be found in the water tank. There was a condensate water tank in the feed mill area. The tank was closed and had a foot-long, 2" diameter drain pipe near the top, with a covered manway for maintenance. The purpose of the drain pipe was to allow rising water to escape from the closed tank.
As originally designed and built by Gulf, the excess water would flow from the drain pipe down to the ground below. Because that situation was unsatisfactory, however, Gulf was required to modify the overflow design. Accordingly, two Gulf employees were instructed to extend the protruding pipe over to another tank where the excess water could be stored.
It was undisputed at trial that, at the time of the incident, the water tank was not marked in any way to indicate that it contained hazardous or flammable material. Before the modification had been effected, owner's inspector told Gulf's supervisor that the 2" diameter pipe as originally designed was insufficient and that a 3" diameter pipe should be used. Gulf's supervisor delegated the task to the same two Gulf employees.
Gulf's supervisor testified that he did not know that the tank contained d'limonene, or that no cutting should be done on the tank without venting or flushing first. He also claimed not to know that d'limonene would be found in the water in the evaporator tank as a natural consequence of the production process. He thought that the d'limonene went into a separate tank. Before lunch, the supervisor spoke to the two Gulf employees about changing the size of the pipe. The two employees returned to the condensate tank after lunch to make the change.
One of owner's employees assisted the two Gulf employees in getting their equipment up on the bridge of the tank. Another one of owner's employees controlled the evaporator and the water levels in the tank. One of the two Gulf workers asked him to lower the water level in the tank so that the hot water would not splash on them when they cut the tank. Owner's employee lowered the water level and then switched the valve on the evaporator to get molasses back. As an expert later testified, the agitation caused by the raising and lowering of the water levels placed the d'limonene-water mixture into the explosive range.
As decedent cut into the surface a big flame shot out of the tank, setting him and the other employee on fire. It blew out the bottom of the tank and rocketed the remainder into the air, with the remnants landing some 50-75 yards away. Both Gulf employees were severely burned by the explosion.
One of owner's defenses was that the accident could have been avoided if the two Gulf employees had vented and purged the water tank before cutting into it. The tank could have been vented by removing the manway cover. It could have been purged by filling the tank up with water to force out the d'limonene vapors, by draining and washing the tank, or by blowing an inert gas through the tank. Decedent did not flush the tank; nor did he vent or purge it because he thought the tank contained water only. Gulf safety procedures instruct, however, that a condensate water tank should always be vented and purged.
The case went to the jury with a stipulation as to the amount of both economic and non-economic damages, and thus the jury was asked to consider liability only. The *1096 jury apportioned fault as follows: decedent 10%; Gulf 70%; and owner 20%. Based on the damages stipulation, the court entered judgment for decedent's estate and against owner for its pro rata share of the agreed damages. Owner timely moved post-trial for judgment in accord with its prior motion for directed verdict. This motion was denied, and owner appeals. We reverse.
The general rule is that an owner is ordinarily not liable for work injuries to employees of an independent contractor. Florida Publishing Co. v. Lourcey, 141 Fla. 767, 193 So. 847 (1940); Lake Parker Mall, Inc. v. Carson, 327 So. 2d 121 (Fla. 2d DCA 1976), cert. denied, 344 So. 2d 323 (Fla. 1977). One exception is that the owner has a duty to warn employees of an independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition on his premises. Florida Power & Light Co. v. Robinson, 68 So. 2d 406 (Fla. 1953); Lake Parker Mall, 327 So.2d at 123. Under this exception, if the owner of the property knows of a dangerous condition that the employees are likely to encounter, the owner must either give warning of, or use ordinary care to furnish protection against, such dangers to the employees of the contractor who lack actual or constructive knowledge of the hazards. Florida Power & Light Co. v. Robinson, 68 So.2d at 410-11.
The duty to warn of the dangerous condition is sufficiently discharged if the owner gives appropriate notice to the independent contractor's supervisory personnel. Mozee v. Champion Int'l Corp., 554 So. 2d 596 (Fla. 1st DCA 1989), rev. denied, 564 So. 2d 487 (Fla. 1990); City of Miami v. Perez, 509 So. 2d 343 (Fla. 3d DCA), rev. denied, 519 So. 2d 987 (Fla. 1987); and Lemen v. Florida Power and Light Co., 452 So. 2d 1107 (Fla. 5th DCA 1984); Lake Parker Mall, 327 So.2d at 123.
The evidence here is undisputed that top officials at Gulf were not only aware of the problem but were trying to remedy it. Gulf's CEO, David Walker, knew that d'limonene would sometimes get into the water tanks. He said that Gulf employees were aware of this fact from working at different jobs and from Gulf's safety program warning that d'limonene was to be found in a number of places. He said that one of the two employees knew that there was d'limonene in the areas around the feed mill and in the extractor area. Other top personnel at Gulf, including the head of Gulf's service department and Gulf's troubleshooter, were aware that d'limonene could and did leak into water tanks.
In fact there was testimony that Gulf was in the process of fixing that very problem. They knew that d'limonene was getting into the water tank because they were continuously replacing valves dissolved by chemical reaction of the d'limonene. Several testified that they could not understand why they were unable to get the d'limonene out of the tank. We also note the testimony that Gulf's troubleshooter determined after the accident that the d'limonene leak was caused by a defect in a piece of equipment designed, constructed, and installed by Gulf.
In a number of the cases we have previously cited, the party warned was in fact the on-site supervisor of the injured employee of the independent contractor. In Mozee the on-site superintendent of the independent contractor knew of the condition resulting in the death of the employee. 554 So. 2d at 596. Likewise, the owner in Lemen was found to have discharged its duty to the employee of an independent contractor who was burned by a live wire because it was undisputed that the injured employee's supervisor knew that the wires were live. 452 So. 2d at 1108; see also Horton v. Gulf Power Co., 401 So. 2d 1384, 1386 (Fla. 1st DCA), rev. denied, 411 So. 2d 382 (Fla. 1981) (independent contractor's supervisors had knowledge equal or superior to employee and knew dangers from overloading).
Plaintiff extrapolates a rule from these cases requiring the owner to warn the on-site supervisor in order to discharge its duty. He argues that it was not sufficient that owner make Gulf's highest officials aware of the problem; rather, plaintiff insists that the warning had to go to the employee's immediate supervisor on the scene. We perceive this conclusion to be a leap of logic with a missing premise. None of the cited cases *1097 deal with the facts here, where upper management of the independent contractor has been warned but the immediate supervisor has not.
In Lake Parker Mall, the court expressly held that the owner discharged the duty to warn by giving notice to "the principals" of the independent contractor. There, the independent contractor (M & M) was doing electrical work for a shopping mall when one of its employees was injured by an explosion on the switchboard he was repairing. In addition to evidence showing that the employee himself knew that the switchboard lacked an important safety switch at the time of the accident, the court found a discharge of the owner's duty to warn from "undisputed evidence that the principals of M & M had been notified." Lake Parker Mall, 327 So.2d at 123. The court further explained:
"In fact, Maze, one of the principals in M & M learned of this malfunction several weeks prior to the accident. Ritter, who was supervising the operation at the time of the accident testified that he was knowledgeable about the defective switch. Moreover, meters had been installed previously on the same switchboard by M & M despite their awareness of the defective switch."
327 So.2d at 123-24.
In this case, the evidence is equally without contradiction that owner had informed Gulf's management of the risk. We conclude that notice to management at the highest levels of a corporate independent contractor satisfies an owner's duty to warn of dangerous conditions. As a matter of law in regard to the discharge of owner's duty, Gulf's supervisor was charged with knowing what his management knew. Thus, this exception to the general rule of owner non-liability is not supported by the evidence.
There is a second exception to the general rule of owner non-liability to the effect that "an owner may be held liable if he interferes or meddles with the job to the extent of assuming detailed direction of it, and thus becomes the master of the independent contractor's employee." City of Miami, 509 So.2d at 345-346. The notion here is that the meddlesome owner forfeits his immunity from liability under the general rule by so insinuating himself into his independent contractor's performance of the contract that the performance becomes his own.
We note that under the contract here owner was expressly prohibited from interfering with Gulf's work. Owner argues therefore, as a matter of law its conduct as established by plaintiff's evidence cannot be a predicate for liability, citing St. Lucie Harvesting v. Cervantes, 639 So. 2d 37 (Fla. 4th DCA), rev. denied, 642 So. 2d 1362 (Fla. 1994), a recent personal injury case from this court involving the citrus industry.
In that case, the owners hired an independent contractor to pick fruit from owner's trees, which involved taking fruit to the end of the grove where another contractor would transport it to a processing factory. One of the independent contractor's employees was injured while driving a fruit-loaded "goat" from one grove to another. His suit against the grove was predicated on a contention that the owner's foreman directed the injured employee to take the loaded goat to the next grove without making sure that the goat was unloaded before he made the trip. Loaded goats are more likely to roll over than unloaded ones. The employee argued that, if a truck had been at the end of the grove, he could have unloaded the goat before venturing to the next grove, and the accident would have been thereby avoided.
The jury returned a verdict for the employee. The owner appealed, arguing that the evidence failed to show that it was participating in the details of the work in such a manner that it would be liable to an employee of an independent contractor. We agreed with the owner and reversed the employee's judgment, explaining:
"Nor were defendants exercising any control over the manner in which this crew was performing its work. Defendants' foreman told the independent contractor's foreman when the crew had picked enough fruit at one grove, and where the crew should begin picking thereafter, but exercised no control over how the crew got to the next grove, what equipment was used, what route the crew took, how fast the *1098 crew went, or who drove the goat. The goat, which was allegedly dangerous, was owned by the independent contractor, not the defendants. The plaintiff, who was not experienced in driving the goat on the highway, was told to drive the goat by the foreman of the independent contractor, not the defendants." [c.o.]
639 So.2d at 39-40.
The question here relates to how much interference or meddling is necessary for the owner to forfeit his immunity. Both parties compare and contrast our facts to those in Cervantes in support of their respective positions. In Cervantes we said:
"the grove owners exercised no control over the independent contractor other than to direct the independent contractor in regard to the amount of fruit to be harvested and from which grove. The grove owners had no control over what equipment was used by the independent contractor, how that equipment was used or by whom it was used."
639 So.2d at 40. Hence, to agree with owner we must be able fairly to liken the request of the owner's inspector here to the grove owner's request to direct the harvester where and how much fruit to pick.
To our eyes, there is little to distinguish the two cases. The record discloses that, although owner's inspector requested that the size of the pipe be changed, he did not direct Gulf's employees how or when to change it; nor did he instruct on the means or method for accomplishing that goal. All the owner did was to indicate that the size of the pipe was insufficient for the intended purpose without directing how and when the pipe might be replaced. Gulf had sole responsibility under the contract to devise and construct the change.
We cannot say that in this instance the owner's conduct was any more meddlesome than the grove owner's actions in Cervantes. Gulf and its employees were just as free to change the pipe in their own way as the goat driver was to move the goat his way. Where, as in this case, the owner's conduct is limited to its right under the contract to accept or reject the performance of the independent contractor as either conforming or non-conforming to the contract, it would ill serve the general rule to impose liability on the owner.
Indeed, if the act here could be considered meddling, it is easy to foresee a host of "rejection of performance" acts by the owner that would end the general rule of immunity, thereby allowing the exception to consume the rule. The City of Miami court explained:
"an owner who engages an independent contractor to perform a job for him may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the contract including the right to inspect, to stop the work, to make suggestions or recommendations as to the details of the work, or to prescribe alterations or deviations in the work without changing the relationship from that of owner and independent contractor, or the duties arising from that relationship." [e.s.]
509 So.2d at 346. See also Van Ness v. Indep. Constr. Co., 392 So. 2d 1017 (Fla. 5th DCA), rev. denied, 402 So. 2d 614 (Fla. 1981) [citing Restatement of Torts (Second), § 414, comment (c)]; Juno Indus., Inc. v. Heery Int'l, 646 So. 2d 818 (Fla. 5th DCA 1994) (evidence did not support claim that owner participated in construction project so as to become responsible for safety of contractor's employees on worksite; owner not liable for injuries suffered by employee when welded pipe came apart during testing; written contract showed that contractor was responsible for safety of workers on site and, although landowner had employees and architects on jobsite to ensure compliance with contract terms, none of owner's employees supervised or attempted to supervise anyone).
We conclude that none of the remaining arguments require comment. There is simply no evidence that would support the application in this case of any exception to the general rule of owner non-liability for injuries to an employee of an independent contractor occurring in work on the owner's property. The verdict finding the owner partially liable should have been set aside.
*1099 REVERSED AND REMANDED FOR JUDGMENT IN ACCORDANCE WITH PRIOR MOTION FOR DIRECTED VERDICT.
GUNTHER, C.J., and KLEIN, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919726/ | 660 So. 2d 1298 (1995)
Larry Darnell CRAIG
v.
STATE of Mississippi.
No. 92-KA-00277-SCT.
Supreme Court of Mississippi.
September 7, 1995.
*1299 Lori T. Burson, Laurel, for appellant.
Michael C. Moore, Attorney General, Jackson, Jeffrey A. Klingfuss, Sp. Asst. Attorney General, Jackson, for appellee.
Before HAWKINS, C.J., and SULLIVAN and McRAE, JJ.
SULLIVAN, Justice, for the Court:
The Washington County Grand Jury, during the July, 1991 term, in vacation, returned an indictment against Larry Craig for the murder of Isaac Hardy. Trial was held and the jury returned a verdict on February 11, 1992, finding him guilty of manslaughter. He was sentenced to serve a term of twenty (20) years in the custody of the MDOC. The trial court denied his motion for a new trial on February 28, 1992.
The confrontation resulting in the death of Isaac Hardy happened on the evening of August 2, 1991, at Fred's Stop and Shop in Mound Bayou, Mississippi. Craig was employed at Fred's, but he testified that he entered the store on that evening only to use the telephone. Gregory Esters testified that earlier in the evening Craig stated, "someone is going to die when [I come] back." Esters said that Craig returned and initiated a scuffle by "pointing his finger" in Hardy's face. Craig, at five feet five inches (5' 5") and approximately 130 pounds, was a significantly smaller man than Hardy.
The two men exchanged words in the store, and, according to Craig, Hardy picked him up by both of his arms and rammed him out the door of the store. Michael Vicks said that Hardy forced the defendant outside and "politely took him out." According to Craig, this included being slammed into a post outside the store. After the fight, Esters noticed that an outside post had been knocked down.
Before Hardy turned to walk back into the store, he apparently made some comment to the effect that Craig was too small to fight. All of the State's witnesses maintained that Craig stabbed Hardy in the back as he attempted to walk back into the store. Craig said that Hardy was merely turned at an angle when he stabbed him. The victim, after being stabbed in the back, spun around only to be stabbed again in the chest by Craig. Isaac Hardy subsequently died of a puncture wound to the left chest.
Craig appeals his conviction asserting two separate, but related, errors regarding jury instructions: (1) the trial court committed reversible error when it granted the prosecution's Instruction S-5 which substantively instructed the jury that the defendant had a duty to flee the victim's attack, and (2) the trial court committed reversible error when it refused to instruct the jury that the defendant had a right to stand his ground without waiving his right to self-defense, as long as he was in a place he had a right to be and was not the provoker or aggressor of the combat.
Instruction S-5, which was submitted to the jury over Craig's objection, reads as follows:
The Court instructs the Jury that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm. Where a person repels an assault with a deadly weapon, he acts at his own peril and the question of whether he was justified in using the weapon is for determination by a jury.
The Court further instructs the jury that the law tolerates no justification, and accepts no excuse for the destruction of human life, on the plea of self-defense, except that the death of the adversary was necessary, or apparently so, to save his own life, or his person from greatly bodily injury, and there shall be imminent danger of such design being accomplished. The danger to life, or of great personal injury, must be imminent, present at the time of the killing, real or apparent, and so urgent that there is no reasonable mode of escape except to take life. The term "apparent," as in apparent "danger," means such overt, actual demonstration, by conduct and acts of a design to take life, or *1300 do some great personal injury, as would make the killing apparently necessary to self preservation.
One who leaves an altercation, arms himself, and returns with the intent to and does use his weapon on the other party can not claim self-defense.
(emphasis added). Craig claims that the court committed reversible error in granting the above instruction because it improperly instructed the jury that he was under a duty to flee Hardy's aggression. The law of this state allows a defendant to claim self-defense even if the opportunity to flee and avoid the danger existed provided that the appropriate circumstances existed at the time. Haynes v. State, 451 So. 2d 227, 229 (Miss. 1984). In Long v. State, 52 Miss. 23, 34 (1876), this Court explained the circumstances under which an individual may stand his ground and still be entitled to claim self-defense:
Flight is a mode of escaping danger to which a party is not bound to resort, so long as he is in a place where he has a right to be, and is neither engaged in an unlawful, nor the provoker of, nor the aggressor in, the combat. In such case he may stand his ground and resist force by force, taking care that his resistance be not disproportioned to the attack.
The State first contends that the granted instruction S-5 did not suggest that Craig had a duty to retreat. We find to the contrary. Before the jury could accept the theory of self-defense, they were required to find that the danger was so urgent that the defendant had no "reasonable mode of escape." This deprived the defendant of the right to claim self-defense if he could have avoided the threat to his safety by escaping. Such an instruction is not supported by the law of this state. This error was not cured by any other self-defense instruction ultimately granted by the trial court as no other instruction touched upon the subject of flight. See Ivey v. State, 154 Miss. 60, 73, 119 So. 507 (1928) (so long as the instructions, taken as a whole, correctly state the law, the error will not require reversal). The trial court erred in submitting Instruction S-5 to the jury, but whether or not the error was reversible is conditioned upon the existence of an evidentiary basis supporting the defendant's right to stand his ground.
Long provides that when a person is (1) in a place he has a right to be, and (2) is not the aggressor, "he may resist force by force, taking care that his resistance be not disproportioned to the attack." Id. at 34. Craig was rightfully in Fred's Stop and Shop, as it was a place of business open to the public. The state, however, strongly maintains that all of the evidence proved that Craig's claimed right to stand his ground during the fight did not exist because he was the provocateur and the aggressor in the confrontation. There was assuredly a violent situation occurring at Fred's on the evening in question. At the very least, an argument ensued between Craig and Hardy, and Craig was forcibly removed from the store. Evidence was presented to the jury showing that Hardy shoved Craig through the front door. There was also evidence that once outside, Hardy picked up Craig and slammed him against a post. Moreover, Craig testified that he had to do something to halt the attack because he feared that Hardy was about to turn back around and continue the beating. Hardy was considerably larger than Craig and apparently had the capability of doing substantial harm with his bare hands. When asked the reason he used the knife, Craig responded: "To protect myself. Get this man off me you know this man is trying to hurt me. I couldn't do nothing with him." At the least, it is arguable whether Hardy remained the aggressor throughout the confrontation or whether the incident was over when Hardy turned away from Craig. For this reason, we must conclude that there was an evidentiary basis for the conclusion that Craig was rightfully standing his ground when he fatally wounded Hardy even though the evidence also showed that the victim's first wound was inflicted in his back. Consequently, the submission of Instruction S-5 to the jury commanding them to find the defendant's actions justifiable only in the absence of a reasonable means of escape was reversible error.
Craig also complains of the trial court's refusal to grant his requested instruction D-4. In Cook v. State, 467 So. 2d 203 *1301 (Miss. 1985), this Court held that the trial court committed reversible error in failing to grant a jury instruction which read:
You are instructed that while the danger which will justify the taking of another's life must be imminent, impending, and present, such danger need not be unavoidable except by killing in self defense. The Defendant, Clarence Edward Cook, need not have avoided the danger to his person presented by the deceased, Dudley Chandler, by flight. So long as the Defendant was in a place where he had the right to be and was neither the immediate provoker or aggressor, he may stand his ground without losing the right of self defense.
Id. at 209, n. 4 (emphasis added). We found that it was reversible error to deny this instruction because there was no evidence that Cook was the aggressor. In fact, the drunken victim approached Cook "brandishing the large section of a two-piece pool cue in a dark lounge." Id. at 204. In the case at hand, the trial court refused defendant's requested instruction D-4 which was, for all practical purposes, the exact instruction requested and denied in Cook. Craig's requested Instruction D-4 stated as follows:
The Court instructs the Jury that while the danger which will justify the taking of an adversary's life must be imminent, impending and present, yet it need not be unavoidable except by slaying. A man need not avoid danger by flight; but so long as he is in a place where he has a right to be, and is himself in no unlawful enterprise, not the provoker or aggressor in the combat, he may stand his ground.
(emphasis added). While the facts of this case are not as compelling as the facts in Cook, there was nevertheless an evidentiary basis, as discussed supra, for the trial court to have granted this instruction. A defendant is entitled to present their theory of the case to the jury as long as there is some evidentiary basis, even if the evidence is insufficient or of doubtful credibility, "and even though the sole testimony in support of the defense is the defendant's own testimony." Welch v. State, 566 So. 2d 680, 684 (Miss. 1990). The trial court's denial of defendant's requested instruction D-4 was reversible error as well. This cause is reversed and remanded to the trial court where the defendant will be afforded a new trial.
REVERSED AND REMANDED.
HAWKINS, C.J., DAN M. LEE, P.J., and BANKS and McRAE, JJ., concur.
BANKS, J., concurs with separate written opinion joined by HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN and McRAE, JJ.
SMITH, J., dissents with separate written opinion joined by JAMES L. ROBERTS, Jr., J.
PITTMAN, J., not participating.
BANKS, Justice, concurring:
I concur in the result reached by the majority. I write separately to add a few words in defense of that result.
The plain fact of the matter is that Craig testified to a version of events in stark contrast to that of the great majority of the witnesses. He denies making a remark about killing someone. He denies hearing Hardy make a statement about him being too small to fight. He denies that he was the aggressor and contends that Hardy was the aggressor. He professed fear for his life throughout. His only admission was that in hindsight it might have been better for him not to have acted as he did.
Assessment of his credibility is a task for the jury. The dissent would take on that task for this Court and resolve the dispute against Craig. Having thus resolved the factual dispute, it would follow that there is no need for an instruction. We are duty bound to respect the province of a properly instructed jury with respect to disputed facts, the resolution of which may lead to different legal results.
The State's instruction S-5 clearly compels flight if, under the circumstances, flight is reasonable. Perhaps that is as it should be. That is not our present law. Our present law is embodied in Craig's proffered instruction D-4. There was an evidentiary basis for the instruction in Craig's testimony. It was reversible error not to give it.
*1302 HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN and McRAE, JJ., join this opinion.
SMITH, Justice, dissenting:
In this case, Craig failed to present sufficient evidence to warrant the giving of any self-defense instructions, much less to question the lack of a "stand your ground" instruction in light of the lower court's granting two self-defense instructions. Nevertheless, contrary to the majority's maintaining that Craig was denied an instruction on his theory of defense, the trial court did grant self-defense instruction S-2 and S-5 which, when read and considered as a whole, adequately instructed the jury on the reasonable standard to be applied to the facts of this case. The jury found Craig guilty and this Court should not reverse this case for the reason cited by the majority.
Craig argues and the majority accepts that he was entitled to a "stand your ground" self-defense instruction. The question turns on whether there was an evidentiary basis supporting Craig's right to stand his ground. Absent the appropriate circumstances existing at the time, Craig cannot claim such grounds, thereby utilizing this Court's opinions of Cook v. State, 467 So. 2d 203 (Miss. 1985), Haynes v. State, 451 So. 2d 227, 229 (Miss. 1984), Long v. State, 52 Miss. 23, 34 (1876).
Craig was not entitled to Instruction D-4 because he was the provocateur and the aggressor in the confrontation. An examination of the facts in evidence is indeed helpful in determining this question. Dwayne Rhodes testified that, prior to Hardy arriving at Fred's store, Craig had lost $80.00 playing "Tonk," a game with cards. Craig admitted losing $25.00 to $30.00. Rhodes stated that Craig left and returned to argue with Cleveland "Poochy" Jones, whereupon Peel Liggins, the manager of Fred's, tossed a beer can at Craig and told him to shut up and take it outside. Rhodes stated that Craig and Liggins "got into it." Craig left again. Isaac Hardy came into Fred's and the patrons there quit playing cards and were talking and laughing. Craig soon returned and appeared "real upset," putting his hand in Hardy's face. Rhodes stated that Hardy had done nothing to Craig at that point in time. Rhodes claimed that "No one struck a blow, there was no first blow." Rhodes said the two were wrestling, not fighting and that Hardy "got him and took him outside, and that Isaac [Hardy] turned to walk off, and Larry ran up on him from the back, stabbed [Hardy] and ran off fast."
Roosevelt Hollins testified that someone had chased Craig inside Fred's store and when an argument broke out George McCray grabbed Craig and they walked outside. Hollins stated that when the incident between Hardy and Craig broke out, they were "equally in control when they busted through the door and fought all over the porch." When asked by defense counsel about knocking over the 4 x 4 post, Hollins replied that "a little baby could knock that post over."
Michael Vicks testified that Craig got into it at the back of the store with Mr. Peel and that Peel threw a can at Craig. This incident was broken up and Craig left, but returned 15 to 20 minutes later after Peel had left. Vicks claimed that Craig immediately had words with Hardy and pointed his finger in Hardy's face, whereupon Hardy picked Craig up by his arms and politely took him outside. Vicks claimed that Hardy turned Craig loose and stated, "Man, I ain't going to fight you, you don't weigh enough for me." Vicks stated that when Hardy turned his back to go back inside Fred's store, Craig ran around the ice box and came running toward Mr. Hardy and hit him from behind. When Hardy turned around, Craig, with "two hands on the handle" of the knife, stabbed Hardy in the chest.
Rodney Esters testified that when he left the first time, Craig had stated that he was going to hurt somebody when he returned. Esters also stated, "I've heard him say on several occasions, you know, that he would be the one to hurt Mr. Hardy." Esters claimed that when Craig returned, he came in "like he was mad at somebody." When asked who started it, Esters replied, "Craig." Esters stated that it wasn't really a fight, but that it was "Craig who started the tussle."
While the majority is correct that Craig had the right to be in Fred's Stop and Shop *1303 as provided by the first requisite factor cited in Long, the majority appears to ignore Long's two remaining requisite factors: (1) that Craig not be the aggressor and (2) that his resistance not be disproportionate to the attack in order for Craig to be entitled to a "stand your ground"/"not compelled to flee" self-defense instruction. Long, 62 Miss. at 35. The facts of Long are totally contrary to this case.
In Long, the victim Bailey
drew a dirk-knife and stepped towards Long, raising the knife in his right hand, and grasping Long's shoulder with his left. Long, with both hands, pushed Bailey back; he retreated himself a step or two backwards, then turned and ran ten yards, or thirty feet. As he ran he was pulling at a pistol from behind, which seemed to hang in his clothes; as soon as it was drawn he faced around. He raised and leveled his pistol with great deliberation, and then lowered it. In an instant he raised it again, took deliberate aim, and fired.
Id. at 31-32. The Long Court noted that, "[t]he attitude and demonstrations of the deceased became a vital point in the case." Id. at 32. It is clear that the central issue in the case was "the position and action of Bailey at the moment of the firing." Id.
The overwhelming proof in the case sub judice was that Craig instigated this incident from the very beginning Craig, as the aggressor, cannot benefit from the requested instruction. The majority writes that the reason Craig used the knife was "to protect [him]self. Get [that] man off [him] you know [that] man [was] trying to hurt [him]. [He] couldn't do nothing with [Hardy]." Majority at 6. The majority fails to observe that Craig testified that he carried the knife with him every night and had the knife on his person the entire evening. The majority also writes that Hardy's substantial size as compared to Craig's means that Hardy "apparently had the capability of doing substantial harm with his bare hands." Yet, witness Rhodes stated, "No one struck a blow, there was no first blow." Even Craig admitted that "He didn't strike me with his fists or bodywise." The majority claims that Craig feared a continuance of "the beating." Majority, at 4. The record however, does not support any such beating. The most that can be gleaned from this record is that a loud mouthed, argumentative, fight-picking Craig was simply thrown out of Fred's store, head first, by Hardy, who had no intentions of fighting Craig and said so.
Cook is also distinguishable and thus inapplicable to the case sub judice. The Court noted, "There is not one iota of proof that Cook provoked the incident or was in any way an aggressor." Cook 467 So.2d at 211. Accordingly, all three requisite Long factors were present in Cook, thus this Court properly held that the defendant Cook was entitled to have the jury instructed: "He may stand his ground without losing the right of self-defense." Id. The majority in this case admits that the drunken victim approached Cook "brandishing the large section of a two-piece pool cue in a dark lounge." Majority at 1301. However, the majority fails to mention that in Cook the victim Dudley Chandler, "was as close as two or three feet away and heading in Cook's direction ... his demeanor menacing." Cook 467 So.2d at 204-206. In the case at bar, contrary to the facts in Cook there is overwhelming evidence that Craig was the immediate provoker or aggressor in this incident, that Hardy was not armed and that Hardy rather than advancing towards Craig, had turned his back and was walking away.
Haynes v. State, 451 So. 2d 227 (Miss. 1984) (Hawkins, J.), relied upon by the majority, is also distinguishable from the case sub judice. The facts in Haynes reveal: "Haynes had unquestionably been previously assaulted by Mitchell, and provoked." Haynes, 451 So.2d at 228. The Haynes Court noted:
It has always been the law in this state that a defendant is not deprived of the right to claim self-defense in a slaying even if he could have avoided the threat to his safety by fleeing.
Such an instruction is not often applicable to the facts of a case, however. In this case we think the judge should have either granted the instruction, or some instruction that embraced this principle. There was some testimony by Haynes that he *1304 began to walk away when the trouble started, and the jury could have wondered why he did not simply leave. Whenever, from the facts of the case, it appears that the defendant could have avoided the fatal difficulty only by precipitous retreat, but did not leave, if the other requisite factors are present as stated in Long, supra, then the defendant is entitled to such an instruction.
Id. at 229 (emphasis added).
Justice Hawkins, writing for the Court in Haynes, wisely preserved all three requisite factors of Long in mandating that Haynes was entitled to the instruction under the facts of that case. What should be rather obvious however from the above quoted language is that it is the facts of a case that control and determine whether all three requisite factors are present thus determining whether the instruction may properly be given. The case at bar is clearly distinguishable due to the glaring absence of the two remaining factors: (1) that Craig was the initial instigator or aggressor, and (2) that his resistance in stabbing Hardy, an unarmed man, in the back and again in the chest, which resulted in death, was certainly disproportionate to Hardy's actions. Returning to the case at bar, this Court is not presented with the factual situation where Hardy was advancing upon Craig with all three requisite factors being present, thus entitling Craig to the "stand your ground" to repel the advance of his aggressor instruction.
Next, the majority admits that it is arguable whether Hardy remained the aggressor throughout the confrontation or whether the incident was over when Hardy turned away from Craig. Craig admitted that "[he] heard people say [Hardy] was heading back into Fred's, and that Hardy was laughing at [him]." When asked whether Hardy was mad or upset, Craig responded, "No, he had the advantage over me, so I stabbed him." Craig was asked when Hardy turned back why he didn't walk away. Craig responded, "I wasn't thinking at the time." Prosecutor Pittman asked, "At that time, your life was not in jeopardy, was it?" Craig responded, "Looking back, that is true." (emphasis added).
How could Craig possibly be entitled to the instruction based upon this admission? Craig also admitted that he struck the first blow to Hardy when his back was turned and that when Hardy turned around, Craig braced his hand on Hardy's chest as he struck Hardy in the chest with the butcher knife. The jury could certainly have reasoned that Hardy presented no threat to Craig since he had been freed by Hardy who remained on the porch while Craig was outside of Fred's in the middle of the street. Regardless of prior circumstances between the two individuals, at that point in time, there was no actual, present, or urgent danger to Craig. Nor was there reasonable ground to apprehend an imminent danger of such design by Hardy to do Craig some great bodily harm. Common sense would dictate that the incident was over as Hardy laughingly turned his back, stated he didn't want to fight Craig and started to go back inside of Fred's store. The jury could certainly have been justified in rejecting self-defense offered by Craig.
There was no error in granting instruction S-5. If anything, it was Craig's good fortune to have received any self-defense instructions. The trial judge, in response to Craig's objection, clearly understood the principle of law established by this Court in Long, Haynes and Cook, but noted: "I understand that is a correct statement of the law. It simply doesn't apply here where the defendant is claiming that someone was advancing on him and he stood his ground and repelled the advance. That is not what he said." The learned trial judge was eminently correct as there was no testimony that Hardy was advancing on Craig thereby authorizing that he might stand his ground and repel the aggressor. In fact, S, when read as a whole, the majority suggests that the situation facing Craig was such an imminent, present, real or apparent and urgent danger to his life that no reasonable alternative existed for Craig except to take Hardy's life. The instruction when read with S-2 and considered with all other instructions as a whole adequately informed the jury regarding self-defense. Instruction *1305 S-2, to which Craig raised no objection, specifically instructed the jury as follows:
The Court instructs the Jury that to make a killing justifiable on the grounds of self-defense, the danger to the Defendant must be either actual, present and urgent or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this, he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the Jury to determine the reasonableness of the Defendant's acts. (emphasis added).
Self-defense can be claimed when certain facts and circumstances in evidence exist. As this Court stated in Wadford v. State, 385 So. 2d 951, 955 (Miss. 1980), self defense may be claimed under conditions where the "defendant was justified in having committed the homicide because he was, or had reasonable grounds to believe that he was, in imminent danger of suffering death or great bodily harm at the hands of the person killed." Id. (emphasis added). In Wadford the instructions correctly informed the jury of the "reasonable person" standard for the jury to judge the specific facts and circumstances of the case sub judice. The jury did not believe that self-defense was reasonable under the facts and circumstances presented and promptly found the defendant guilty of the lesser included offense of manslaughter.
Although Craig was not entitled to a self-defense instruction, nevertheless he received proper instructions anyway. In Strong v. State, 600 So. 2d 199 (Miss. 1992), this Court found that refusing a self-defense instruction was not error where the evidence did not support the giving of such instruction. Craig's own testimony fails to warrant the giving of a self-defense instruction. The majority's contention about the size differential between the two men is of no concern either, since that issue has been previously decided. This Court, in Marshall v. State, 220 Miss. 846, 855, 72 So. 2d 169 (Miss. 1954), stated "The mere fact that the deceased may have been physically capable of inflicting great and serious bodily harm upon the defendant with his feet and hands, and that the defendant was afraid of the deceased, was not sufficient in itself to justify the stabbing."
The trial court granted Craig the only instruction on self-defense to which he could remotely have been entitled. This Court in Cook stated:
In accord with common sense, we have held that, where one jury instruction adequately covers the defendant's theory of self-defense, there is no error in refusal of a second or redundant instruction. Evans v. State, 457 So. 2d 957, 959 (Miss. 1983).
467 So.2d at 210.
The bottom line to all this is that Craig apparently was roaming about that night spoiling for a fight. He got into arguments with other patrons of Fred's on several different occasions that same night. Craig lost money in a card game at Fred's and apparently left the store angry. Craig stated that he was going to hurt somebody when he returned. He also got into an argument with another individual at another grocery store shortly before returning to Fred's. Upon his return, Craig got into an argument with Liggins, the manager on duty at Fred's store. Liggins threw a beer can at him and ordered Craig and another individual with whom he was arguing, to take it outside of the store premises. Witnesses testified that Craig acted like he was mad at somebody when he returned. There was testimony that Craig was "real upset." Others stated that it was Craig who started the tussle with Hardy. Witnesses testified that Hardy simply picked Craig up by the hands, wrestled with him and removed him from the premises by going head first through the door. They wrestled all over the porch and knocked loose the post, which according to one witness was so flimsy that, "a baby could have knocked it over." No blows were passed between the two men, as admitted by Craig. Craig heard people say that Hardy was going back inside of Fred's. Craig heard Hardy laughing at him. Witnesses testified that Hardy stated Craig was too little and he wasn't going to fight him. Another witness testified that Craig had stated on several past occasions that he (Craig) would be the one to hurt *1306 Hardy. Craig admitted that Hardy wasn't mad or upset. Hardy had turned Craig loose in the street and turned to enter the store when Craig, armed with the butcher knife that he always carried at night, stabbed Hardy in the back and again in the chest. Craig stated simply that he was scared. Referring to their size differences, Craig stated that Hardy, "had the advantage over me," so I stabbed him. More importantly, when asked whether at that time it was true that his life was not in jeopardy, Craig replied, "Looking back, that is true." Craig waited until Hardy announced that he was not going to fight Craig, turned his back and started to leave. Then Craig attacked an unarmed man with a butcher knife, stabbing him in the back and dropping the knife in the process. Quickly, Craig picked it up and with both hands on the handle, stabbed Hardy in the chest, killing him in the process. Craig certainly intended that which he did. Craig was the provoker, aggressor, and killer, all without provocation by Hardy. As noted in Haynes, considering the facts of this case, Craig was not entitled to a "stand your ground" self-defense instruction. The jury, nevertheless, was properly instructed and their verdict of guilty of manslaughter should stand.
I respectfully dissent.
ROBERTS, J., joins this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559951/ | 20 So.3d 1047 (2009)
LOUISIANA WORKERS' COMPENSATION CORPORATION
v.
LOUISIANA INSURANCE GUARANTY ASSOCIATION.
No. 2008 CA 0885.
Court of Appeal of Louisiana, First Circuit.
May 13, 2009.
Writ Denied October 9, 2009.
*1049 Michael H. Rubin, Rodolfo J. Aguilar, Ronnie L. Johnson, Juston M. O'Brien, Jamie D. Seymour, Baton Rouge, Louisiana, for Plaintiff/Appellee, Louisiana Workers' Compensation Corporation.
James H. Gibson, David J. Ayo, Lafayette, Louisiana, for Defendant/Appellant, Louisiana Insurance Guaranty Association.
Before: KUHN, GUIDRY, and GAIDRY, JJ.
GAIDRY, J.
The Louisiana Insurance Guaranty Association (LIGA) appeals a partial summary judgment in favor of one of its member insurers, Louisiana Workers' Compensation Corporation (LWCC), as well as a judgment denying its cross-motion for summary judgment on the same legal issue. For the reasons described below, we reverse those judgments, granting summary judgment in favor of LIGA and dismissing LWCC's cause of action.
FACTS AND PROCEDURAL HISTORY
We are called upon in this matter to resolve a dispute between LIGA and LWCC, a member insurer of LIGA, regarding LWCC's legal liability for assessments made by LIGA. The central issue of the controversy is whether the 1999 constitutional amendment and enabling legislation that authorized LWCC to join LIGA mandate a special method of assessment, unique to LWCC.
All property and casualty insurers licensed and authorized to sell insurance in Louisiana are generally required to be members of LIGA, which by law imposes assessments upon its member insurers to fund its operations. LWCC was created by the legislature in 1991 upon the passage of a constitutional amendment adopting La. Const, art. XII, § 8.1, authorizing such action. LWCC was intended to fill the need for a workers' compensation insurer of last resort for certain employers, in response to a crisis in availability of such insurance on the open market, and provides only workers' compensation coverage. Upon its creation, it was expressly prohibited from becoming a member insurer of LIGA. Instead, the state itself guaranteed LWCC's obligations with its full faith and credit, pending approval by the U.S. Department of Labor for LWCC to provide federal Longshore and Harbor Worker's Compensation coverage without the state's guarantee.[1]
By 1999, LWCC was successful in becoming financially stable, and sought the introduction of legislation to terminate the state's full faith and credit guarantee and to remove the constitutional and statutory prohibition of LWCC's participation in LIGA and other restrictions on its operations. Accordingly, a constitutional amendment was proposed by the legislature and approved by the voters, removing LWCC's exemption and prohibition from joining LIGA upon the termination of the full faith and credit guarantee. The legislature also enacted appropriate statutory amendments, which became effective upon the approval of the constitutional amendment. Both the constitutional amendment and the enabling legislation provided that LWCC's "participation in, contribution to, and protection under" LIGA would be "on a prospective basis only," applicable to "claims arising from injuries after the extinguishment of the full faith and credit *1050 guarantee." On May 1, 2000, LWCC was authorized by the U.S. Department of Labor to provide federal Longshore and Harbor Worker's Compensation coverage without the state's guarantee, and the state's guarantee of its obligations ended. As of that date, LWCC also became a member insurer of LIGA.
LIGA did not assess its member insurers in 2000 or 2001. However, because of insurer insolvencies in 2001 and 2002, it imposed assessments in 2002. LIGA's first assessment to LWCC was made on May 7, 2002, in the amount of $1,864,911.97, representing 1% of LWCC's premiums of $186,491,197.00 for the year 2001. By check dated June 4, 2002, LWCC paid that assessment without protest. On December 20, 2002, LIGA made another assessment to LWCC in the same amount of $1,864,911.97. By check dated January 17, 2003, LWCC paid that assessment without protest.
On December 5, 2003, LIGA made another assessment to LWCC in the amount of $2,102,139.20, representing 1% of LWCC's premiums of $210,213,920.00 for the year 2002. At some point, LWCC chose to contest the amount of LIGA's assessments to it, based upon its interpretation that the 1999 constitutional amendment and legislation exempted LWCC from assessment by LIGA to the extent that the assessment was based upon any claims against insolvent insurers due to injuries occurring prior to the termination of the state's guarantee (on May 1, 2000), with which its membership in LIGA coincided.
On February 27, 2004, Cherie A. Pinac, LWCC's director of corporate legal services, wrote to Gillis C. Hill, LIGA's executive director, enclosing LWCC's check in the amount of $1,051,069.60, described as representing "a significant partial payment" of the December 5, 2003 assessment. Citing La. Const. Art. XII, § 8.1, Ms. Pinac requested that LIGA provide a "constitutionally-mandated analysis" of those claims upon which the assessment was based, "arising from injuries occurring after [May 1, 2000]."
On March 8, 2004, Ms. Pinac wrote to J. Robert Wooley, the Louisiana commissioner of insurance, advising him of LWCC's interpretation of its "pro rata" liability to LIGA for assessments, and requested his department's "guidance and assistance" in determining the "proper accrual" of its liability, based upon the "prospective" nature of its "contribution" to the LIGA fund. In that letter, Ms. Pinac characterized LWCC's partial payment as "a good faith payment of one-half of the assessment."
On March 15, 2004, Mr. Hill submitted LIGA's response to Ms. Pinac's letter of February 27. Mr. Hill advised her that LIGA disagreed with LWCC's interpretation of the effect of La. Const, art. XII, § 8.1 and La. R.S. 23:1395(D)(2). He summarized LIGA's position that no constitutional or statutory authority supported LWCC's interpretation of its obligation to LIGA for assessments, and that no exceptions or adjustments to assessments were made based upon the year of any insurer's admission to membership or its subsequent withdrawal before the end of the year. Mr. Hill emphasized that "LIGA's assessment authority applies equally to each and every insurer authorized to transact insurance in Louisiana," and that "LWCC, just like any other [m]ember [i]nsurer, is obligated to pay the entirety of any assessment imposed after May 1, 2000." Finally, he enclosed a "past due notice" for the unpaid balance of the assessment.
On the same date as Mr. Hill's above letter, Ms. Pinac wrote to Mr. Hill, enclosing LWCC's check for the assessment balance *1051 of $1,051,069.60, and reiterated LWCC's position regarding its interpretation of its liability and its right to a "constitutionally mandated analysis unique to [LWCC] regarding its LIGA contribution."
On September 1, 2004, LIGA again assessed its member insurers. LIGA issued an assessment of $2,315,230.63 to LWCC, representing 1% of its premiums of $251,523,063.00 for the year 2003. LWCC has never paid that assessment.
On December 14, 2004, Mr. Wooley wrote to Ms. Pinac in response to her letter of March 8. Observing that "this matter presents de novo legal issues that will require constitutional construction, statutory interpretation, and interplay between the applicable provisions," he advised that as commissioner of insurance, he would take no action relating to the status of LWCC's license or imposition of penalties pending an expected judicial determination of the dispute.
On December 23, 2004, LWCC filed a petition seeking the recovery of those portions of the three assessments relating to covered claims against LIGA arising prior to May 1, 2000, with accrued interest since LWCC's payments. It also sought declaratory and injunctive relief. In addition to allegations relating to the history and legal status of both LIGA and LWCC, LWCC's petition alleged that following the 1999 constitutional amendment "LIGA could not collect any moneys, in 1999 or at any point in the future, from LWCC for matters relating to anything connected with claims from injuries occurring prior to the extinguishment of the State guarantee [May 1, 2000]." Similarly, it alleged that under both La. Const, art. XII, § 8.1(F) and La. R.S. 23:1395(D), "LIGA could not seek premiums or assessments from LWCC for any claims or injuries that arose prior to the lapse of the full faith and credit guarantee [May 1, 2000]."
LWCC subsequently amended its petition three times before eventually filing a motion for partial summary judgment on October 26, 2007. LIGA responded with a cross-motion for summary judgment. Both motions were heard on December 3, 2007. The trial court granted LWCC's motion and denied LIGA's cross-motion. The trial court's oral reasons for judgment also set forth its reasons for certifying the partial summary judgment in favor of LWCC as final and appealable.[2] On December 17, 2007, the trial court signed a combined judgment incorporating its rulings on both motions and certifying its judgment as final and appealable.[3] LIGA now appeals the partial summary judgment in favor of LWCC, as well as the denial of its motion for summary judgment.[4]
*1052 ASSIGNMENTS OF ERROR
LIGA assigns the following errors by the trial court in rendering its judgment:
I. The trial court erred in its construction of La. Const, art. XII, § 8.1(F) and La. R.S. 23:1395(D)(2).
II. The trial court erred in denying LIGA's Motion for Summary Judgment seeking dismissal of LWCC's claim for refund of assessments paid without objection.
III. The trial court erred in denying LIGA's Motion for Summary Judgment seeking dismissal of LWCC's claims for payment of a thing not due and unjust enrichment.
DISCUSSION
Standard of Review
The judgment from which this appeal is taken is a partial summary judgment. Appellate courts review summary judgments de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Motorola, Inc. v. Associated Indemnity Corp., 02-0716, p. 5 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 828, writs denied, 04-2314, 04-2323, 04-2326, & 04-2327 (La.11/19/04), 888 So.2d 207, 211, & 212. Similarly, in a case involving no dispute regarding material facts, but only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the trial court's legal conclusions are not entitled to deference. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La.1/30/04), 865 So.2d 34, 43.
The Louisiana Insurance Guaranty Association
All 50 states, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have statutorily created property and casualty insurance guaranty associations to promptly pay the claims of insureds and third-party claimants of insolvent insurers. All of the statutes establishing these associations, with the exception of that of New York, were based upon the Post-Assessment Property and Liability Insurance Guaranty Association Model Act of the National Association of Insurance Commissioners (NAIC Model Act). The NAIC Model Act was initially drafted in 1969 in response to federal congressional efforts to address and regulate insurer insolvencies.[5] A post-assessment (or post-insolvency assessment) guaranty association based upon the NAIC Model Act assesses its member insurers following the insolvency of an insurer, in order to generate a fund to pay the insolvent insurer's policyholders and insureds as claims become due.[6]
In 1970, Louisiana enacted its version of the NAIC Model Act, known as the Insurance Guaranty Association Law, La. R.S. 22:1375, et seq.[7] LIGA is a *1053 private, nonprofit, unincorporated legal entity created by statute. La. R.S. 22:1380(A). Although LIGA is not a state agency, it is a legislative creation, which operates within legislative parameters. La. Ins. Guar. Ass'n v. Gegenheimer, 93-3021 (La.4/21/94), 636 So.2d 209, 210. LIGA is a sui generis type of association created by the legislature as a response to the problem of insurer insolvencies, and its solvency in turn has been recognized to be "an appropriate state interest." Id. A statutory enactment that "serves to minimize the unnecessary depletion of LIGA's funds" has been held to "constitute a legitimate exercise of the state's police power for the purpose of protecting the state's citizens from economic harm." Segura v. Frank, 93-1271 (La.1/14/94), 630 So.2d 714, 732.
LIGA functions solely and exclusively for public benefit. La. Ins. Guar. Ass'n v. Comm'n on Ethics for Pub. Employees, 95-0021, p. 10 (La.App. 1st Cir.5/5/95), 656 So.2d 670, 675, writ denied, 95-1833 (La.11/13/95), 662 So.2d 467. The Insurance Guaranty Association Law "shall be liberally construed to effect the purpose under [La.] R.S. 22:1376, which shall constitute an aid and guide to interpretation." La. R.S. 22:1378. One of the express statutory purposes of LIGA is to assess the cost of its operations among insurers. La. R.S. 22:1376.
LIGA obtains its funds from assessments on member insurers made pursuant to La. R.S. 22:1382(A)(3)(a), which provides, in pertinent part:
A. The association shall:
. . .
(3)(a)(i) Assess insurers amounts necessary to pay the obligations of the association.. . . The assessments of each member insurer shall be in the proportion that the net direct written premiums of the member insurer for the preceding calendar year, whether or not a company withdraws subsequent to the preceding calendar year, bears to the net direct written premiums of all member insurers for the preceding calendar year. . . . (Emphasis supplied.)
Each assessment, evidenced by a certificate of contribution, is offset against the member insurer's premium tax liability, not to exceed a total offset of 100%. La. R.S. 22:1382(A)(3)(c); La. Ins. Guar. Ass'n v. Comm'n on Ethics for Pub. Employees, 95-0021 at p. 9, 656 So.2d at 675. If the assessment paid exceeds the premium tax liability offset, the member insurers may pass on the excess assessment costs to their insureds through premiums, in effect causing an insurer's insolvency to be borne by all insureds of member insurers rather than only by the policyholders or claimants of the insolvent insurer. See La. R.S. 22:1390 and Ursin v. Ins. Guar. Ass'n, 412 So.2d 1285, 1288 (La.1982) (on rehearing); see also La. R.S. 22:1382(A)(3)(e). Louisiana Revised Statutes 22:1382(C)(1) provides that "[n]otwithstanding any other provision to the contrary and unless such other law is specifically excepted from this Section [La. R.S. 22:1382], the provisions of this Section shall supersede and prevail over any other law to the contrary" (Emphasis supplied.)
Louisiana Workers' Compensation Corporation
LWCC contends that it was "formed under the auspices of La. Const, art. XII, § 8.1" and is thus "a constitutionally created entity," while LIGA is not. LWCC's characterization of itself as a constitutional *1054 creation rather than a legislative creation is legally inaccurate. While its creation was authorized by the constitution, the exercise of such authority was delegated to the legislature: "[T]he legislature by law may create a private, nonprofit corporation to provide workers' compensation insurance.. . ." La. Const. art. XII, § 8.1(A). (Emphasis supplied.) Although the LWCC Act was enacted prior to the adoption of the constitutional amendment, it only became effective and operative upon approval of the amendment by the voters. Upon the LWCC Act becoming operative, LWCC was statutorily described as a "private, nonprofit corporation," which "shall not be considered as a state agency." La. R.S. 23:1393(A)(1), (3).
The purpose behind LWCC's creation is stated in La. R.S. 23:1391:
A. It is hereby declared by the Legislature of Louisiana that an adequate market for workers' compensation insurance is necessary to the economic welfare of the state and that without such insurance, the orderly growth and development of the state would be severely impeded; that, furthermore, adequate insurance for workers' compensation is necessary to enable employers to satisfy their legal obligation under R.S. 23:1168.
B. It is the purpose of the corporation to provide a residual market for those employers that have in good faith, but without success, sought workers' compensation insurance in the voluntary market of insurance; to provide a competitive market for preferred risk policies as defined herein; and to insure that rates charged are adequate to provide solvency and self-funding of the corporation.
Louisiana Revised Statutes 23:1394 addresses the applicability of other laws to LWCC, as well as potential conflicts between the LWCC Act and the Louisiana Insurance Code, La. R.S. 22:1-2436. It provides, in pertinent part:
A. The corporation shall be subject to all applicable laws of the Louisiana Insurance Code relative to an incorporated domestic mutual insurer, except as otherwise specifically provided in this Part.
. . .
C. If a conflict arises in the application of the law, the provisions of this Part shall govern first, followed by the provisions of the Louisiana Insurance Code, and finally, by the provisions of Title 12 of the Louisiana Revised Statutes of 1950. (Emphasis supplied.)
Interpretation of the Provisions at Issue
The general rule is that articles of the constitution are to be construed and interpreted using the same canons of interpretation applicable to statutes and written instruments. See State v. Expunged Record (No.) 249,044, 03-1940, p. 4 (La.7/2/04), 881 So.2d 104, 107; Barnett v. Develle, 289 So.2d 129, 146 (La.1974). Thus, under the well-established rules of statutory construction, any interpretation of constitutional provisions begins with the language of the constitution itself. Record, 03-1940 at p. 4, 881 So.2d at 107; Ocean Energy, Inc. v. Plaquemines Parish Government, 04-0066, pp. 6-7 (La.7/6/04), 880 So.2d 1, 7.
When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect and its provisions construed so as to accomplish the purpose indicated by a fair interpretation of the language used. See Perschall v. State, 96-0322, pp. 21-22 (La.7/1/97), 697 So.2d 240, 255; Cajun Elec. Power Co-op., Inc. v. Louisiana Pub. Serv. Comm'n, 544 So.2d 362, 363 (La.1989) (on rehearing). Unequivocal *1055 constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Ocean Energy, 04-0066 at p. 7, 880 So.2d at 7; Cajun Elec, 544 So.2d at 363.
Words of art and technical terms must be given their technical meaning when the law involves a technical matter. La. C.C. art. 11. Stated somewhat differently, "[t]echnical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning." La. R.S. 1:3. Laws on the same subject matter must be interpreted in reference to each other. La. C.C. art. 13.
As originally adopted in 1991, La. Const, art. XII, § 8.1(F) provided as follows:
(F) Guaranty Fund. The corporation shall be exempt from participation in and shall not join or contribute financially to or be entitled to the protection of any plan, pool, association, or guaranty or insolvency fund authorized or required pursuant to the Insurance Code. (Emphasis supplied.)
The original version of La. R.S. 23:1395(D) set out similar language:
Notwithstanding any other law to the contrary, the corporation and its shareholders shall be exempt from participation and shall not join or contribute financially to, nor be entitled to the protection of, any plan, pool, association, or guaranty or insolvency fund authorized or required by the Louisiana Insurance Code; however, the corporation shall pay premium taxes. (Emphasis supplied.)
The original bill introduced in 1999 to amend La. Const, art. XII, § 8.1(F) (House Bill 492) proposed to add the following language:
However, upon the extinguishment of the full faith and credit guarantee of the state, the corporation shall no longer be exempt from participation in any plan, pool, association, or guaranty or insolvency fund authorized or required pursuant to the Insurance Code. (Emphasis supplied.)
The final version of La. Const, art. XII, § 8.1(F), as amended in 1999, added the language emphasized below:
(F) Guaranty Fund. The corporation shall be exempt from participation in and shall not join or contribute financially to or be entitled to the protection of any plan, pool, association, or guaranty fund or insolvency fund authorized or required pursuant to the Insurance Code. However, upon the extinguishment of the full faith and credit guarantee of the state, the corporation shall no longer be exempt from participation in, contribution to, and protection under the insurance guaranty association fund created and operating under R.S. 22:1375 et seq., of the Insurance Code. The corporation's participation in, contribution to, and protection under the insurance guaranty association fund shall be on a prospective basis only. This prospective participation, contribution, and protection shall only apply to claims arising from injuries occurring after the extinguishment of the full faith and credit guarantee. (Emphasis supplied.)
Similarly, the original bill introduced in 1999 to amend La. R.S. 23:1395(D) (House Bill 493) proposed to add the following language to that statute:
However, upon the extinguishment of the full faith and credit guarantee of the state, as provided in the state constitution, the corporation shall no longer be *1056 exempt from participation in any such plan, pool, association, or guaranty or insolvency fund. (Emphasis supplied.)
The final version of that 1999 enabling legislation added substantially the same language as that of the constitutional amendment to La. R.S. 23:1395(D)(2):
However, upon the extinguishment of the full faith and credit guarantee of the state, which occurs when the United States Department of Labor approves the corporation to provide United States Longshore and Harbor Worker's Compensation Act coverage without the state guarantee, the corporation shall participate in, contribute to, and receive protection under the insurance guaranty association fund created and operating under R.S. 22:1375 et seq., of the Insurance Code. The corporation's participation in, contribution to, and protection under the insurance guaranty association fund shall be on a prospective basis only. This prospective participation, contribution, and protection shall apply to claims arising from injuries occurring after the extinguishment of the full faith and credit guarantee. (Emphasis supplied.)[8]
LWCC emphasizes that the word "contribution" was added to both provisions after their original introduction, and that later addition, in combination with the term "prospective," evinces the legislative intent to limit any assessment to LWCC to only those covered claims prompting the assessment that arose from "injuries" after May 1, 2000. Thus, LWCC contends that for any such assessment made, all covered claims that arose prior to May 1, 2000 must be determined and removed as a basis for assessment against it, thereby entitling LWCC to a pro rata reduction of assessment corresponding to the percentage of the latter claims.
Within the language added to both provisions in 1999, the words "participation," "contribution," and "protection" are used together three times, each time in parallel phraseology related to its mandatory membership in LIGA. In that respect, such usage simply mirrors the language of the first sentence, adopted in 1991, relating to LWCC's exemption from "participation in," "contribut[ion] to," or "protection of LIGA. We perceive no novel meaning or legislative intent in the later addition of the words "contribution" and "protection" to the original versions of the 1999 bills, which referred only to LWCC's "participation" in LIGA. Rather, the addition of those terms was obviously intended to duplicate the same type of parallel phraseology used in the 1991 constitutional amendment and legislation. The proper interpretation of the 1999 constitutional amendment and legislation must instead rest upon the meaning of the terms "prospective" and "claims arising from injuries."
Significantly, the adjective "prospective" as used in the 1999 constitutional amendment and legislation modifies not only the term "contribution," but also the terms "participation" and "protection." It therefore stands to reason that the meaning of "prospective," in terms of the effective date of each of those three activities, should be uniform, and the parties seem to agree in this regard. In interpreting the Revised Statutes, "[w]ords and phrases shall be read with their context." La. R.S. 1:3. Taken in its context, the nature of LWCC's "contribution to" the LIGA fund must be interpreted in the same manner *1057 as that of its "participation in" and "protection under" the fund, that is, simply by reference to the effective date upon which it became a member insurer.
In its judgment, the trial court held (and LWCC likewise contends) that "[t]he word `contribution' used in La. Const, art. XII, § 8.1(F) and La.R.S. 23:1395(D)(2) is unambiguous and refers to assessments made by LIGA to its member insurers[.]" LWCC's view of the meaning of "contribution" is, quite simply, incorrect. Its entire argument seems to be founded, for the most part, upon that fundamental misinterpretation. LIGA's assessment to LWCC is not LWCC's contribution to LIGA; it is LWCC's payment of the assessment that constitutes its contribution to LIGA's operations and mission.[9] Thus, we must look to the time of the payment, rather than the time of the assessment in determining whether such is "prospective" relative to LWCC's membership in LIGA. Additionally, LWCC in effect confuses the time of its required contribution to LIGA with the use to which that contribution is applied. Using LWCC's historic premiums for the year prior to assessment as the basis for calculation of the assessment, and using that assessment to offset covered claims arising prior to LWCC's admission to LIGA simply does not amount to an unconstitutional retroactive "contribution" coerced from LWCC. Its contribution (payment of the assessment) is still prospective in nature, that is, assessed and paid after the date of LWCC's admission as a member insurer.
The parties do not dispute that, in the event of LWCC's insolvency, LIGA would not assume responsibility for any "covered claims" under LWCC's policies that arose from injuries that occurred prior to May 1, 2000. Instead, such claims would still be guaranteed by the state under the full faith and credit guarantee. However, part of the 1999 legislation enabling LWCC's entry into LIGA also included the requirement that LWCC provide security to insulate the state from ultimate liability on its guarantee. Louisiana Revised Statutes 23:1395(D)(3) provides:
Upon the extinguishment of the full faith and credit guarantee as provided in R.S. 23:1404(B) and in addition to the deposit required by R.S. 22:808, the corporation shall provide one of the following as security to hold the state harmless from all claims arising from any legal obligation of the corporation to which the full faith and credit guarantee of the state is pledged:. . . . (Emphasis supplied.)
The foregoing provision is obviously in pari materia with La. R.S. 23:1395(D)(2), as they are part of the same statute and both directly relate to the consequences of the extinguishment of the full faith and credit guarantee in favor of LWCC. We agree with LIGA that the obvious interpretation of "claims arising from injuries" is that such claims are synonymous with "claims arising from any legal obligation of the corporation [LWCC]," rather than "covered claims" against LIGA, as contended by LWCC. The terms "claims" and "covered claims" have distinct and different meanings insofar as LIGA is concerned. LIGA is only responsible for "covered claims," a statutorily-defined term having a precise, technical meaning. A claim made against a then-solvent member insurer may or may not later become a *1058 "covered claim" for which LIGA assumes responsibility.[10] Reason dictates that if the legislature had intended for the term "claims" to refer to "covered claims" of other insolvent insurers, for which LWCC and other member insurers would be assessed, then it would likely have used that specific term.
We further agree with LIGA that the use of the term "injuries," the only type of loss covered under workers' compensation, is significant. If the legislature had intended the term "claims" to apply to "covered claims" for which LIGA is responsible, it would seemingly have incorporated reference to such claims deriving from damages, losses, or other occurrences not involving "injuries." Thus, the logical and proper reading of both La. Const, art. XII, § 8.1 and La. R.S. 23:1395(D) is that LWCC's "prospective . . . contribution [to LIGA] shall apply to claims arising from [any legal obligation of LWCC] occurring after [May 1, 2000.]"[11]
Nothing in the current language of La. Const. Art. XII, § 8.1(F) and La. R.S. 23:1395(D)(2) supports LWCC's implicit claim of special status akin to that of a corporate "ward of the state," at least as far as its obligation to pay LIGA assessments is concerned. We need not indulge in detailed efforts to analyze the legislative history of those provisions, as the legislative intent may properly be discerned through analysis of their language and the general principles of statutory interpretation. See 20 P. Raymond Lamonica & Jerry G. Jones, Louisiana Civil Law Treatise: Legislative Law and Procedure § 7.9 (2004). At any rate, the evidence in the record convincingly suggests that in putting the constitutional amendment before the electorate and in enacting La. R.S. 23:1395(D)(2), the legislature was more concerned with protection of LIGA's solvency from a potential insolvency of LWCC rather than protection of LWCC from assessment by LIGA.[12]
The legislature chose not to require LIGA to assess its members using separate categories or accounts of insurance business, but to instead assess all member insurers a uniform percentage of their premiums, regardless of the nature of the liability insurance lines written by either the insolvent insurers or the assessed member insurers. As convincingly argued by LIGA, the legislature's failure to concurrently amend La. R.S. 22:1382(A)(3)(a) to create a unique exception to LIGA's mandatory method of assessment is notably more significant as to its intent than *1059 the later addition of the "contribution" and "prospective" phraseology in the legislative history of La. Const. Art. XII, § 8.1(F) and La. R.S. 23:1395(D)(2).
Finally, we consider it particularly significant that the final versions of La. Const. Art. XII, § 8.1(F) and La. R.S. 23:1395(D)(2) incorporated a specific reference to "the insurance guaranty association fund created and operating under R.S. 22:1375 et seq., of the Insurance Code." Both provisions mandate that LWCC "contribute" to LIGA's operations under La. R.S. 22:1375, et seq., including La. R.S. 22:1382(A)(3)(a). It cannot be presumed that the legislature intended to modify the mandatory provisions of the latter statute and to create a new, more complicated method of assessment for LWCC's unique benefit, without expressly stating so.
We acknowledge that the questions presented are not simple ones, but we have answered them simply because the simple answers are in fact the best under our rules of constitutional and statutory interpretation. See Ursin, 412 So.2d at 1290.[13] Further, our resolution of these issues accords with the express statutory directives (1) that La. R.S. 22:1382 "shall supersede and prevail over any law to the contrary" and any other law not "specifically excepted" from application of that statute [La. R.S. 22:1382(C)(1)]; and (2) that we liberally construe the Insurance Guaranty Association Law, including La. R.S. 22:1382(3)(a), mandating the manner of LIGA's assessments, to accomplish that law's purposes [La. R.S. 22:1378].
Our decision also accords with La. R.S. 23:1394(A) and (C), in that the 1999 amendment to La. R.S. 23:1395 removed the only specific exception of LWCC from assessments under the mandatory language of La. R.S. 22:1382(3)(a). Thus, LWCC is subject to the mandatory formula of assessment dictated in the latter statute, just as all other domestic mutual insurers are. If LWCC sought and was constitutionally and statutorily granted the benefit of protection by LIGA on the same terms as other member insurers, then it is only logical and fair that it should participate in and contribute to LIGA on the same terms as other member insurers.
DECREE
The partial summary judgment in favor of the plaintiff-appellee, Louisiana Workers' Compensation Corporation, and against the defendant-appellant, the Louisiana Insurance Guaranty Association, is reversed. The judgment denying the motion for summary judgment of the defendant-appellant, the Louisiana Insurance Guaranty Association, is reversed, and summary judgment is rendered in its favor, dismissing the petition and cause of action of the plaintiff-appellee, Louisiana Workers' Compensation Corporation, with prejudice. All costs of this appeal are assessed to the plaintiff-appellee, Louisiana Workers' Compensation Corporation.
REVERSED AND RENDERED.
NOTES
[1] La. R.S. 23:1397(C); La. R.S. 23:1404(B)(1)(a). See also La. Const, art. XII, § 8.1(B)(2).
[2] See La. C.C.P. art. 1915(B). We have reviewed the trial court's oral reasons for certification, and conclude that there was no abuse of discretion. See R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122.
[3] The trial court's judgment sets out its certification, but incorrectly purports to also certify its interlocutory judgment denying LIGA's motion as final. A judgment denying a motion for summary judgment is an interlocutory judgment, and cannot be certified under La. C.C.P. art. 1915(B). Bennett v. Ark. Blue Cross Blue Shield, 05-1714, pp. 3-5 (La.App. 1st Cir.9/15/06), 943 So.2d 1124, 1125-26.
[4] We have held that in appropriate cases, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Dean v. Griffin Crane & Steel, Inc., 05-1226, p. 4 n. 3 (La. App. 1st Cir.5/5/06), 935 So.2d 186, 189 n. 3, writ denied, 06-1334 (La.9/22/06), 937 So.2d 387. Because the issues involved in the granting of partial summary judgment are identical to those presented by LIGA's motion for summary judgment, it is clearly appropriate to review the interlocutory judgment denying its motion at this time. Id.
[5] Linda M. Lasley, et al., Insurance Guaranty Funds: The New "Money Pit"?, 416 Practicing Law Inst. Comm'l Law & Practice Handbook Series 113, 115-19 (1987); Davis J. Howard, Uncle Sam versus the Insurance Commissioners: A Multi-Level Approach to Defining the "Business of Insurance" under the McCarran-Ferguson Act, 25 Willamette L.Rev. 1, 14 (1989).
[6] A pre-assessment (or pre-insolvency assessment) guaranty association assesses its members annually to continuously maintain a fund to be used to pay claims related to future insolvency of member insurers. Howard, supra at n. 5.
[7] Carey J. Guglielmo & Daniel J. Balhoff, The ABC's of LIGA, 53 La. L.Rev. 1759, 1759-60 (1993). Effective January 1, 2009, the Insurance Guaranty Association Law was renumbered in the Revised Statutes as La. R.S. 22:2051, et seq. Acts 2008, No. 415, § 1. Because this action arose and was appealed prior to the renumbering, we have chosen for convenience to use the prior statutory numbering in this opinion.
[8] The original 1991 version of La. R.S. 23:1395(D) was designated as La. R.S. 23:1395(D)(1) by the 1999 legislation.
[9] To "assess" is "to impose (as a tax) according to an established rate" or "to subject to a tax, charge, or levy." Merriam-Webster's Collegiate Dictionary 74 (11th ed. 2008). An "assessment" is "the action or an instance of assessing." Id. A "contribution," on the other hand, is "a payment (as a levy or tax) imposed by . . . civil . . . authorities usu for a special or extraordinary purpose," or "the act of contributing." Id. at 272.
[10] For example, for LWCC's purposes, "profit" is generally defined as income less expenses, and included in such expenses are "claims paid and reserved" and "claims incurred but not reported." La. R.S. 23:1392(A)(9). (Emphasis supplied.) A "covered claim" for which LIGA may be liable, on the other hand, does not include any claim for "incurred-but-not-reported losses or unspecified potential losses." La. R.S. 22:1379(3)(e). (Emphasis supplied.)
[11] We cannot help but observe that in its brief to this court, LWCC claims that "LWCC is protected from all of LIGA's liabilities than can be traced back to injuries arising before May 1, 2000, just as LIGA is protected from all of LWCC's liabilities that can be traced back to any matters before May 1, 2000." (Emphasis supplied.) This attempt at semantic distinction is telling. The constitutional and statutory provisions at issue do not make such a distinction between "injuries" [resulting in LIGA covered claims from other insolvent insurers, as LWCC contends] and "matters" [resulting in LIGA covered claims from LWCC's insolvency]. The use of the single term, "injuries," applicable before or after May 1, 2000, logically demands a single, uniform definition of that term, in turn applicable to a single, uniform definition of "claims."
[12] It is obvious that the "protection" afforded LWCC under La. R.S. 23:1395 is protection by LIGA, not from LIGA.
[13] The venerable philosophical principle known as "Occam's razor" is not a formal rule of statutory construction, but has often been cited by courts in reaching logical results. See, e.g., Justiss Oil Co., Inc. v. Kerr-McGee Ref. Corp., 75 F.3d 1057, 1061 n. 10 (5th Cir. 1996) ("Occam's, or Ockham's, razor has been defined as `the philosophic rule that entities should not be multiplied unnecessarily.'"), and Alabama-Tennessee Natural Gas Co. v. Fed. Power Comm'n, 359 F.2d 318, 335 (5th Cir. 1966) ("Occam's razor slices through the arguments based on legislative history and congressional intent."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559968/ | 53 N.J. 167 (1969)
249 A.2d 388
GEORGE B. BREWER, SARA H. BREWER DOWNING, FREDERICK W. BREWER AND GERTRUDE BEE BREWER, PLAINTIFFS-APPELLANTS,
v.
ALONZO PORCH, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued November 4, 1968.
Decided January 20, 1969.
*171 Mr. Gerald W. Conway argued the cause for appellants, (Messrs. Schreiber and Lancaster, and David L. Horuvitz, attorneys).
Mr. Louis B. LeDuc argued the cause for respondent, (Messrs. Herbert H. Butler and Louis B. LeDuc, attorneys).
The opinion of the court was delivered by HANEMAN, J.
The Chancery Division found that defendant had good title to certain realty and that plaintiffs had no right to redeem the land from a tax sale certificate or to other relief incidental thereto. 93 N.J. Super. 66 (Ch. Div. 1966). The Appellate Division affirmed the judgment 98 N.J. Super. 583 (App. Div 1968) and this Court granted plaintiffs' petition for certification. 51 N.J. 464 (1968).
In 1927, George B. Brewer, one of the plaintiffs, had title to the land in question, some 77 acres in Logan Township. In that year he conveyed to his mother, Sara H. Brewer, who died intestate on June 10, 1948. The plaintiffs in this action are her heirs. Although out of title, George Brewer leased a small portion of the property to defendant, who *172 farmed the same during 1936 and 1937. On August 7, 1937, the Tax Collector of Logan Township sold the land for nonpayment of taxes. There being no other purchaser, it was struck off and sold to the Township. In 1938 defendant leased the entire tract from the Township for approximately two years. In 1939 the Township sold and assigned the tax sale certificate to him upon his payment of the full amount of taxes, interest and costs then due the municipality. Defendant immediately entered into possession of practically all of the lands. He farmed practically the entire tract until 1960 when ill health forced him to discontinue his agricultural activities. Since 1961 he has leased the farm to Gordon Hurff who has continued to farm "all of it." Defendant took no action by way of notice under N.J.S.A. 54:5-77 et seq., or by way of action in the Chancery Division of the Superior Court, under N.J.S.A. 54:5-85 et seq., to foreclose plaintiffs' right of redemption.
On March 3, 1965, plaintiffs paid the Tax Collector of Logan Township, the amount required to redeem the lands from the above-mentioned tax sale. (N.J.S.A. 54:5-54) Defendant refused to accept the money so paid and to surrender the tax sale certificate. Plaintiffs then filed suit, demanding the cancellation of the tax sale certificate, recovery of the value of defendant's use of the land since 1938 and an accounting of the rents received by defendant therefrom. Defendant answered that the right of redemption was terminated and that he had obtained fee title by his entry into open possession under the sale, which possession continued for upwards of 20 years without redemption by plaintiffs. See N.J.S.A. 54:5-78. He therefore demanded judgment declaring that he had good title and that plaintiffs had no right of redemption. The trial court found for defendant and judgment was entered accordingly. The Appellate Division affirmed, as noted above.
Plaintiffs argue that the holder of a tax sale certificate cannot, by possession under the certificate, cut off a fee owner's right to redeem. Although plaintiffs admit that the *173 tax sale law at the time of the sale (L. 1918, c. 237, § 47) contained, and presently (N.J.S.A. 54:5-78) contains, a provision barring redemption where there has been "no redemption within twenty years after the purchaser has entered into open possession, since continued, under the sale," they argue that this provision was implicitly repealed when L. 1929, c. 169 deleted from § 34 of L. 1918, c. 237 (the predecessor of N.J.S.A. 54:5-50) the express grant of a right to possession to the holder of a recorded tax sale certificate. The pivotal question is whether L. 1929, c. 169 did implicitly repeal that portion of L. 1918, c. 237, § 47 (N.J.S.A. 54:5-78) which provided for the barring of an owner's right of redemption by 20 years open and continuous possession of the lands under the tax sale certificate. The answer lies in an ascertainment of the legislative intent in adopting L. 1929, c. 169.
At the outset it must be recognized that "municipal liens, and the rights arising therefrom, are solely statutory in origin and are fixed and determined by the statute." Dvorkin v. Dover Tp., 29 N.J. 303, 319 (1959); See also Nelson v. Naumowicz, 1 N.J. 300 (1949); Absecon Land Co. v. Keernes, 101 N.J. Eq. 227 (E. & A. 1927); Raritan Tp. v. Rotante, 92 N.J. Super. 319 (Ch. Div. 1966).
It must also be recognized that, in seeking to ascertain the legislative intent, it is essential that certain cardinal principles of statutory construction be kept in mind.
The first of these is that, ordinarily, implied repealers are not favored in the law. Swede v. City of Clifton, 22 N.J. 303 (1956); Goff v. Hunt, 6 N.J. 600 (1951); Loboda v. Clark Tp., 40 N.J. 424 (1963). However, when a later expression of legislative will is so clearly in conflict with an earlier statute on the same subject that the two cannot reasonably stand together, each in its own particular field, the courts will find a legislative intent to supersede the earlier law. The test is whether the two statutes are inconsistent or repugnant. Swede v. City of Clifton, supra; Montclair v. Stanoyevich, 6 N.J. 479 (1951); Two Guys from *174 Harrison, Inc. v. Furman, 32 N.J. 199, 223 (1960); Dept. of Labor v. Cruz, 45 N.J. 372 (1965).
Another principle is that, in seeking to discover the legislative intent, the statute must be read in the light of the old law, the mischief sought to be eliminated and the proposed remedy, Key Agency v. Continental Cas. Co., 31 N.J. 98, 103 (1959); San-Lan Builders, Inc. v. Baxendale, 28 N.J. 148 (1958), and to that end reference may be had to its history and purpose, State v. Brown, 22 N.J. 405 (1956). In order to ascertain the purpose, the preamble and statements attached to the bill which was enacted into the statute may be considered. Bass v. Allen Home Improvement Co., 8 N.J. 219 (1951). Acts in pari materia as well as related acts not strictly in pari materia, should be examined. Appeal of N.Y. State Realty & Terminal Co., 21 N.J. 90 (1956); State v. Brown, supra; Key Agency v. Continental Cas. Co., supra.
Yet another principle is the assumption that the Legislature is thoroughly conversant with its own legislation and the judicial construction of its statutes. Matawan Borough v. Monmouth Cty. Tax Bd., 51 N.J. 291 (1968); State v. Federanko, 26 N.J. 119 (1958); City of Newark v. Rockford Furniture Co., 4 N.J. Super. 205 (App. Div. 1949).
Where there are two contradictory provisions in a statute, the primary object is to ascertain the legislative design with reasonable certainty, and where the two, separated in point of time of enactment so that the earlier section was by implication repealed by the latter, are embodied in a revision of general laws, the re-enactment of the former is deemed an oversight and ineffective. Hackensack Water Co. v. Division of Tax Appeals, 2 N.J. 157 (1949).
We turn now, to the statute in question and related acts:
In 1918, when the Tax Sale Revision, L. 1918, c. 237 (designated "tax sale law" in the revision of 1937, N.J.S.A. 54:5-1), was adopted, it contained the following provisions:
*175 "34. The purchaser may record the certificate of sale in the office of the clerk or register of the county where the land lies as a mortgage of land, and thereupon shall be entitled to the immediate possession of the property sold and described in the certificate, and to all the rents and profits thereof from and after the date of record until redemption." (Emphasis supplied) (Now N.J.S.A. 54:5-50)
"47. If there shall be no redemption within the said term limited by the notice provided in the preceding section; or if there shall be no redemption within twenty years after the purchaser has entered into open possession, since continued, under the sale; then in either case, the right of redemption shall be barred." (Emphasis supplied) (L. 1918, c. 237.)
As far as here relevant, § 47 has continued in essentially the same form from 1918 to date. See N.J.S.A. 54:5-78. By L. 1926, c. 81, the Legislature amended L. 1918, c. 237, § 34 by adding:
"* * * provided, however, that purchaser at tax sale of a dwelling house occupied by the delinquent owner shall not be entitled to collect rents for such part of the dwelling house as shall be occupied by the delinquent or his immediate family until after the expiration of two years from the date of record of the certificate of sale" (L. 1926, c. 81)
In 1929, a further amendment to § 34 caused it to read, as far as here pertinent, as follows:
"The purchaser may record the certificate of sale in the office of the clerk or register of the county where the land lies as a mortgage of land. * * *" (L. 1929, c. 169)
Appended to the 1929 bill was a Statement which reads: "The purpose of this act is to force the foreclosure of tax liens by eliminating the right of purchasers to collect rents from the properties so purchased by them." (Emphasis supplied) It is to be noted, that so much of the statute as read "and thereupon shall be entitled to the immediate possession of the property sold and described in the certificate, and all the rents and profits thereof from and after the date of record until redemption" (emphasis supplied) was excised by this amendatory act.
*176 In 1933, the Legislature passed the "Stout Act", L. 1933, Special Session, c. 6; R.S. App. A:4-1, et seq. Said act reads in part as follows:
"WHEREAS, the only remedy to collect delinquent taxes against real property is by a tax sale thereof on and after July first following the year in which such taxes become due and payable, and this is inadequate because the purchaser at the tax sale cannot go into possession of the property and collect the rents and income therefrom, and therefore, there is a lack of buyers, and the property is struck off to the municipality and the taxes remain unpaid;" (Emphasis supplied).
* * * * * * * *
"That at any time after any taxes or any installment thereof heretofore or hereinafter levied and assessed against real property in any municipality shall have been delinquent for more than six months and remain due and unpaid, the collector or other officer charged with the collection of taxes in such municipality, hereinafter designated the `collector' may, by and with the approval of the governing body of such municipality, and upon five days' notice to the owner, make application to the Court of Chancery by bill or petition to be appointed receiver ex officio of the rents and income of such real property * * *."
* * * * * * * *
"Real property which has been heretofore or may be hereafter sold for the nonpayment of delinquent taxes, shall be subject to the provisions of this act for the purpose of collecting such delinquent taxes, penalties, interest and costs and expenses as aforesaid."
* * * * * * * *
"This act shall not apply to real property occupied by the owner as his residence and from which he derives no rent or to farm property occupied by the owner thereof and from which he derives no rent.
This act shall take effect immediately and shall continue in force in respect to all proceedings instituted hereunder, within a period of three years from the date hereof."
L. 1936, c. 20 continued the term of the foregoing statute for an additional three years, and L. 1939, c. 362 re-enacted the Stout Act without a preamble and without any limitation on its future continuous viability. The statement appended to the bill reads:
"This act is a copy of the so-called `Stout Act' except that it omits the preamble and makes the act permanent.
The so-called `Stout Act' was enacted as an emergency measure in 1933 for a period of three years, and in 1936 it was further *177 extended for another period of three years, which will expire in October of this year. The results achieved under this Act by municipalities throughout the State have shown that it should be made a part of the permanent laws for the collection of taxes, and that is the purpose of this bill.
This Act takes effect on the last day for instituting process under the temporary Act; proceedings instituted under temporary Act before said date may be continued to conclusion under said Act."
In 1941, the Legislature enacted c. 82, which reads in pertinent part:
"Any person who shall knowingly misrepresent:
* * * * * * * *
c. that the holder of any tax sale certificate other than a municipal corporation is entitled to possession of the premises sold, or to the rents, issues or profits therefrom, shall be guilty of a misdemeanor". (Emphasis supplied).
The Statement of purpose appended to said bill reads:
"The purpose of this act is to make it a misdemeanor to knowingly misrepresent the period for redemption, the amount required for redemption or that the holder of a tax sale certificate is entitled to the possession or the rents of premises sold for taxes." (Emphasis supplied).
In 1942, the tax sale law was amended by c. 54 which reads:
"Whenever a municipality shall have become the purchaser of any lands at any tax sale and the certificate of sale shall have been recorded in the manner provided by chapter five of Title 54 of the Revised Statutes, such municipality shall thereafter be entitled to immediate possession of the property sold and described in the certificate and to all the rents and profits thereof from and after the date of record and while the holder thereof, until redemption, * * *." (Emphasis supplied).
It appears from the foregoing statutes that in 1918 the Legislature granted to the holder of a recorded tax sale certificate the immediate and absolute right to the possession *178 of the property described in the certificate; limited this right in 1926; and completely eliminated it in 1929. From 1929 there has existed no statutory grant of any right to possession by an individual for any purpose. Since the rights arising under a tax sale certificate are, "solely statutory in origin and are fixed and determined by the statute," in the absence of affirmative statutory grant, the holder of a tax sale certificate has no such right. The desire of the Legislature not to append such a right to a tax sale certificate is made abundantly clear not only by the absence of such a grant but is emphasized by the affirmative act of passing a statute which deleted from the then existing law words which had theretofore given rise to such a right.
Within four years the Legislature construed L. 1929, c. 169, in the preamble of the Stout Act, when it stated that "the purchaser at the tax sale cannot go into possession of the property." This reflected the understanding and intent of the Legislature in passing the 1929 act and was expressive of the public understanding thereof as well. That L. 1929, c. 169 was intended to deny this privilege even to a municipal holder of a tax sale certificate is shown by the provision of the Stout Act which created as a substitute for possession by a municipality a limited right to the collection of rents by a court appointed receiver. Had there been a right to possession after 1929, there would have been no necessity for the Stout Act as the right to collect rents is ordinarily incident to the right to possession. The Legislature, by passing the Stout Act, in effect refused to grant the individual holder a right to possession in order to eliminate the cause of the noted lack of buyers of tax sale certificates, i.e., the lack of power of an individual to take possession of the property. Instead, the Legislature employed an alternative for tax collection by sale to an individual by granting the municipality the restrictive right to collect rents. The prohibition against possession by the individual tax certificate holder was continued. The enactment of the Stout Act as a permanent part of the statutory system, re-emphasized *179 the legislative intention to deny an individual holder the right to possession.
Again, by L. 1941, c. 82, the Legislature recognized that the tax certificate holder had no right to possession of the subject property, and made the mere representation by a private holder that he had such a right a misdemeanor. The legislative pattern of denying an individual tax certificate holder the right to possession was again made manifest by L. 1942, c. 54, which granted to a municipality alone the right to possession and then only so long as the municipality continued as owner of the certificate. Implicit in this enactment is the conclusion that assignment of the tax certificate to an individual terminates the right to possession.
We shall next consider judicial construction of the tax sale law with regard to the right to possession. The several courts of this State have in a variety of types of litigation reiteratively held that an individual holder of a tax sale certificate has no right to possession of the tax delinquent lands. Some of these cases and the actions in which the question arose are: Nelson v. Naumowicz, 1 N.J. 300 (1949) (Attempted recovery by certificate holder for repairs and improvements.); Forster v. Davenport, 128 N.J. Eq. 385 (Ch. 1940) (Suit by certificate holder for appointment of a rent receiver.); Diamonde v. Berkeley Township, 142 N.J. Eq. 140 (Ch. 1948) (Recovery by owner for rents and damages from certificate holder who took possession.); Taylor v. Morris, 1 N.J. Super. 410 (Ch. Div. 1948) (Allowance for repairs made by certificate holder to offset rents collected by him while wrongfully in possession.); Morvay v. Gressman, 29 N.J. Super. 508 (App. Div. 1954) (Attempted recovery by certificate holder for repairs and improvements.); Raritan Tp. v. Rotante, 92 N.J. Super. 319 (Ch. Div. 1966) (Motion to open final judgment under In Rem Foreclosure Act by holder of tax sale certificate). The long acquiescence of the Legislature in the above judicial construction further emphasizes the conclusion that such construction was consistent with and expressive of legislative *180 intent. In re Keogh-Dwyer, 45 N.J. 117 (1965); Egan v. Erie R. Co., 29 N.J. 243 (1959); Barringer v. Miele, 6 N.J. 139 (1951).
For defendant to succeed on his thesis he must have begun and continued his possession "under the sale." N.J.S.A. 54:5-78. The phrase "under the sale" denotes possession permitted by the tax sale act. Mere adverse possession without legislative authority is insufficient. The foregoing statutes and cited decisions demonstrate that the legislative intent and purpose which undergirded the passage of L. 1929, c. 169, was to deny the holder of a tax sale certificate the power to terminate the right of redemption by the act of taking possession of the tax delinquent premises and continuing such possession for 20 years. This denial was imposed in order to force the holder to more promptly bar the right of redemption by a Chancery foreclosure action. That unaltered legislative policy has continued since 1929.
The termination of the right to possession made the requirement of N.J.S.A. 54:5-78 for continued adverse possession under the certificate repugnant to the later statute, L. 1929, c. 169. The two statutes cannot reasonably stand together each in its own particular field. The later therefore repealed the former by implication. Newark v. Dept. of Civil Service, 68 N.J. Super. 416 (App. Div. 1961); Two Guys from Harrison, Inc. v. Furman, 32 N.J. 199 (1960). Accordingly, we conclude that so much of N.J.S.A. 54:5-78 as reads "or if there shall be no redemption within twenty years after the purchaser has entered into open possession, since continued, under the sale," was repealed and plaintiffs' right to redemption has not been barred by defendant's actions under said statute. The judgment of the Appellate Division is accordingly reversed.
However, defendant now argues that in any event, he has good title by upwards of twenty years adverse possession under N.J.S. 2A:14-6, 7, and that plaintiffs therefore have no such interest in the land as would entitle them to redeem. N.J.S.A. 54:5-54. What has heretofore been said *181 of defendant's rights under the tax sale act in no way affects the rights he may have under N.J.S. 2A:14-6, 7. Although some evidence was adduced at the trial which might have a bearing on that subject, the record is not clear as to whether defendant had advanced this thesis as an issue. In the light of the uncertainty in the pleadings, and the failure to completely try out this issue, the matter shall stand remanded for a framing of a proper pre-trial order and the trial of that issue. The other issues of right to redemption, recovery for use and occupation, and accounting of the rents, will await the outcome of the primary issue of title.
Reversed and remanded for proceedings consistent with the foregoing.
For reversal and remandment Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7.
For affirmance None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1559986/ | 20 So.3d 966 (2009)
Charles PARKER, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-1091.
District Court of Appeal of Florida, Third District.
October 14, 2009.
Rehearing Denied November 15, 2009.
*967 Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
Before RAMIREZ, C.J., and SHEPHERD, and SUAREZ, JJ.
RAMIREZ, C.J.
Charles Parker appeals his final judgment of conviction and sentence. We reverse Parker's final judgment of conviction and sentence, and remand the case for a new trial because the trial court erroneously permitted the introduction of collateral crimes evidence which highly prejudiced Parker.
1. Factual Background
The State of Florida charged Parker with one count of possession with intent to sell marijuana, and one count of trafficking in cocaine. A jury found Parker guilty as charged in count one and guilty of possession of cocaine as a lesser included of trafficking in cocaine. The trial court adjudicated Parker guilty, and the court imposed a sentence of five years in prison.
Prior to trial, Parker filed a motion in limine to prevent the State from introducing any testimony concerning prior drug activity, specifically that a confidential informant had purchased cocaine and marijuana from him on two prior occasions. At the hearing on the motion, the State conceded that a Williams[1] rule notice had not been filed. The trial court granted the motion. However, at a subsequent hearing, the trial court revisited the issue after the State filed a Williams rule notice. The State argued that the evidence of the prior transactions was admissible to explain the entire context of events leading up to the search warrant, and to demonstrate the reliability of Parker's identification. The trial court found that the evidence of the prior drug transactions was admissible because it was inextricably intertwined with the charged offenses and that it was also admissible pursuant to Williams rule.
At trial, the following evidence was introduced. On March 7, 2007, Detective Valdes was working with a confidential informant to do a controlled buy at a Miami residence. Detective Benovites testified that he and Detective Valdes drove to the residence in an undercover vehicle. They set up surveillance and then advised the officer accompanying the confidential informant, Detective White, whether they should approach the house for a controlled buy. The confidential informant thereafter approached the residence in a second vehicle driven by Detective White. Detective Valdes and Detective Benovites observed the confidential informant walk up to the residence, approach a male who was outside the residence, and hand him money. *968 The male was identified in court as Parker. Parker entered the residence for a couple of seconds, and then he exited and handed the confidential informant a clear plastic bag containing powder cocaine and a clear plastic bag containing marijuana. Upon the completion of the controlled buy, the confidential informant walked away from the residence. Both Detective White and Detective Valdes secured custody over the baggies. The items were later field tested for the presence of narcotics.
On March 12, 2007, Detective Valdes, Detective Benovites, and the confidential informant conducted a second controlled buy on the residence. The detectives observed the confidential informant approach Parker and hand over money. Parker entered the residence, exited the residence, and then he handed the confidential informant a small bag of powder cocaine. Detective Benovites recalled that the confidential informant remained outside of the residence during the transaction. The confidential informant then got into the vehicle driven by Detective White, and at a later time, the confidential informant handed over the items to Detective Benovites. After leaving the premises, Detective Benovites field tested the substance for the presence of narcotics. Detective Valdes and Detective Benovites thereafter procured a search warrant.
A few weeks prior to the execution of the search warrant, Detective Valdes conducted surveillance of the residence. During that time, he observed a young black male approach the residence with a dark colored book bag with a strap. The male entered the residence carrying the bag, and then he exited without the bag.
On March 15, 2007, the police executed a search warrant on the residence. Detective Valdes observed a large black male, later identified as Parker, in front of the residence. Parker ignored the police's command to get down on the ground, and he ran towards the residence. Officer Mellie, a SWAT team member, testified that it appeared that Parker carried an item in his hand. Parker ran inside and attempted to close the door. Approximately ten to fifteen seconds after Parker entered the residence, Officer Mellie breeched the door, and immediately yelled for Parker to show his hands. Parker complied and opened his hands, at which time some money and small baggies with white powder and marijuana fell to the ground by his feet. Sergeant Malgor, another SWAT team member, also observed several plastic baggies laying on the floor of the room where they had detained Parker. Officer Mellie detained Parker. The only other person present at the residence, besides Parker, was his grandmother.
A search of the residence led to the discovery of a cloth bag located inside a closet. This bag was similar to the one that Detective Valdes had previously observed being carried in by the young black male a few weeks prior. No one ever observed Parker in control over the bag. Also inside the closet were clothes for a very large person. The bag contained 339 baggies of cocaine and 212 baggies of marijuana. Additionally, the bag contained over $10,000 dollars in cash. During trial, Officer Mellie testified that she examined each of the 212 baggies of marijuana, and that each baggie had the odor and characteristics of marijuana. Ingrid Corbin, a criminalist with the Miami-Dade Police Department, testified that the items taken from Parker's residence tested positive for cocaine and marijuana.
At the close of the State's case in chief, Parker moved for judgment of acquittal. He argued that the State failed to prove chain of custody. Additionally, he argued that the evidence of the prior sales should not have been introduced because the baggies *969 were not strikingly similar to the baggies found in the residence during the search warrant. He further argued that the State failed to prove exclusive possession over the drugs found in the black bag. The trial court denied the motion for judgment of acquittal. The trial court found that the baggies obtained during the controlled buy and the baggies found in the residence during the execution of the search warrant were "virtually identical," and that the only potential difference was the height of the baggie.
Parker's aunt, Atalie Griffin, testified at trial. She also resided at the residence that was the subject of the search warrant. Griffin stated that in addition to herself and Parker, her son James Griffin and Parker's grandmother, Nancy Williams, also resided at the residence. On the day that the police served the search warrant, she was present, along with her boyfriend, her niece Chrisha, and her mother. She neither observed Parker with the black bag nor did she observe him dealing drugs on the day on which the police executed the search warrant. She further testified that the house constantly had people coming and going and was a very active household.
Nancy Williams, Parker's grandmother, testified. She denied having seen Parker with a black bag on the day on which the police executed the search warrant. She admitted that she saw the black bag before, that other individuals would bring the bag with video games. Williams stated that the closet where the black bag was found is a communal closet.
2. Analysis
We first recognize that the trial court has broad discretion when it determines the relevance of evidence, and that such a determination will not be disturbed absent an abuse of discretion. See Heath v. State, 648 So.2d 660, 664 (Fla.1994). When an appellate court reviews an order denying a motion for judgment of acquittal, the standard of review is de novo. See Jean-Marie v. State, 947 So.2d 484, 487 (Fla. 3d DCA 2006). Upon de novo review, "the appellate court must consider the evidence and all reasonable inferences therefrom in a light most favorable to the State, to establish, as a matter of law, that the evidence is legally adequate to support the charge." Id. at 487.
We now turn to the introduction of the two prior transactions and conclude that the trial court erred when it allowed the State to present evidence of these two prior transactions. It is widely recognized that evidence which is relevant is generally admissible, unless the law precludes its introduction. See § 90.402, Fla. Stat. (2008). Relevant evidence is defined as evidence that tends to prove or disprove a material fact. See § 90.401, Fla. Stat. (2008). However, relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading of the jury, or needless presentation of cumulative evidence. See § 90.403, Fla. Stat. (2008).
In Dorsett v. State, 944 So.2d 1207, 1212 (Fla. 3d DCA 2006), this Court stated that "collateral crimes evidence" is a term commonly used to refer to evidence of bad acts that is not included in the charged offenses. Collateral crimes evidence includes: (1) similar fact evidence (commonly referred to as Williams rule evidence), and (2) all other admissible relevant evidence. Id. Section 90.404, Florida Statutes (2008), governs the admissibility of Williams rule evidence.
Under section 90.404, similar fact evidence is evidence that is unrelated to the charged offenses. This evidence is admissible to prove a material fact in issue, such *970 as motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Dorsett, 944 So.2d at 1212. Section 90.402, governs the admissibility of evidence that is unrelated to the charged offense, including evidence that is inextricably intertwined.
As we stated in Dorsett, evidence is inextricably intertwined if the evidence is necessary to: (1) adequately describe the deed; (2) provide an intelligent account of the crime(s) charged; (3) establish the entire context out of which the charged crime(s) arose; or (4) adequately describe the events leading up to the charged crimes(s). Id. at 1213. Section 90.402, governs the admission of inextricably intertwined evidence.
A review of the introduction of the two prior transactions neither constituted admissible Williams rule evidence nor inextricably intertwined evidence. The two prior transactions were totally unrelated to the charged offenses. These two prior transactions occurred days prior to the occurrence that gave rise to the charged offenses. Additionally, the nature of the two prior transactions differed from the nature of the charged crimes. The two prior transactions involved actual drug sales and the charged offenses involved the crime of possession. Moreover, the two prior transactions were not relevant to any material issue of fact because the prior transactions did not prove that Parker had dominion or control over the drugs the police recovered that formed the basis of the charged crimes.
Furthermore, the admission of evidence of the two prior transactions was highly prejudicial. "When evidence of prior crimes is wrongly admitted, it is presumed harmful error because of the danger that a jury will take the bad character or propensity to crime thus demonstrated as evidence of guilt of the crime charged." Dorsett, 944 So.2d at 1219-20 (citations omitted).
3. Conclusion
For these reasons, we thus conclude that the trial court committed error when it permitted the introduction of the two prior transactions. We therefore reverse Parker's final judgment of conviction and sentence, and remand this case for a new trial.
SUAREZ, J., concurs.
SHEPHERD, J., dissenting.
I respectfully dissent.
Parker's defense in this case was that the bag was not histhat, as the defense argued in closing, the police were "mistaken" to focus on Parker as the trafficker.[2] It is apodictic that evidence of prior offenses is admissible when relevant to prove "absence of mistake." Williams v. State, 110 So.2d 654, 662 (Fla.1959); Dorsett v. State, 944 So.2d 1207, 1212 (Fla. 3d DCA 2006). The evidence of the controlled buys is directly relevant to rebut the defendant's assertion of "mistake." The only baggies of drugs found in the house were in the bag in the closet. The baggies obtained during the two controlled buys were "virtually identical" in size, transparency, and all other respects to the baggies in the bag. Clothing for a "large man" was found in the same closet as the bag. The defendant is 6'5" tall and weighs 350 pounds.
*971 In a constructive possession case, the State's burden "is to show beyond a reasonable doubt that the defendant [1] knew of the presence of the contraband and that he [2] had the ability to exercise dominion and control over it." Jackson v. State, 995 So.2d 535, 539 (Fla. 2d DCA 2008); see also Chicone v. State, 684 So.2d 736, 738 (Fla.1996), superseded by statute on other grounds as stated in Whitehurst v. State, 852 So.2d 902, 903 (Fla. 2d DCA 2003). The evidence of the controlled buys in this case, especially considered in the context of evidence indicating the presence of Parker's clothing, is probative of whether Parker knew of the presence of the contraband and had the ability to exercise dominion and control over it. The trial court did not abuse its discretion by permitting the jury to consider this evidence on the possession element of the State's case.
It is certain the evidence of the prior transactions is "prejudicial," maybe even "highly prejudicial," as emphasized by the majority. See supra p. 970. However, prejudice is not the test. Under such a test, evidence of prior crimes would always be excluded. Instead, as the Florida Supreme Court stated in Williams, 110 So.2d at 662, "relevancy is the test." "If found to be relevant for any purpose save that of showing bad character or propensity, then [the evidence] should be admitted." Id. Moreover, contrary to the majority's unsupported assertion, see supra p. 970, "[a] collateral crime proven by similar evidence does not need to be absolutely identical to the crime charged in order to be admissible." See Triplett v. State, 947 So.2d 702, 704 (Fla. 5th DCA 2007) (citing Schwab v. State, 636 So.2d 3 (Fla.1994)); see also Evans v. State, 693 So.2d 1096, 1102 (Fla. 3d DCA 1997) (holding that where accused is charged with physical abuse of a child, and the State seeks to present evidence of prior physical abuse committed by the accused upon the same child for purposes of proving absence of mistake, there is no need for factual similarity between the charged offense and prior abusive conduct beyond the existence of physical abuse in all instances). In fact, the test for the admissibility of collateral crimes evidence is even more relaxed when the evidence is offered for a purpose other than identity. Triplett, 947 So.2d at 704 (citing Houston v. State, 852 So.2d 425, 426 (Fla. 5th DCA 2003)); Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003). The evidence of the controlled buys is directly relevant to the charge of trafficking in this case.
The conviction should be affirmed.
NOTES
[1] Williams v. State, 870 So.2d 71 (Fla. 2d DCA 2003).
[2] In support of this defense, the defense called Parker's aunt, grandmother, and cousin to testify the house was a veritable revolving door of law abiding relatives, including according to themthe defendant. The defendant exercised his constitutional right not to testify. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560005/ | 20 So.3d 884 (2009)
NATURAL ANSWERS, INC. and Brian A. Feinstein, Appellants,
v.
CARLTON FIELDS, P.A. and Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, Appellees.
No. 3D08-945.
District Court of Appeal of Florida, Third District.
September 2, 2009.
Rehearing Denied October 28, 2009.
*885 Hall, Lamb & Hall and Andrew C. Hall and Matthew P. Leto, Miami, for appellants.
Ross & Girten and Lauri Waldman Ross, Miami; Greenspoon Marder and Maurice M. Garcia, Fort Lauderdale, for appellee Carlton Fields, P.A.; Gary, Williams, Finney, Lewis, Watson & Sperando and Debra S. Nolan, Stuart, for appellee Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando.
Before GERSTEN, ROTHENBERG, and LAGOA, JJ.
ROTHENBERG, J.
Natural Answers, Inc. and Brian A. Feinstein ("Feinstein") (collectively, "NAI") appeal from two orders granting summary judgment in favor of Carlton Fields, P.A. and Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando (collectively, "the law firms"). Because the undisputed facts reveal that any *886 harm to NAI is attributable to failed negotiations, not legal malpractice, we affirm.
The instant legal malpractice action arose from a collapsed business negotiation commenced in 1999. At that time, Feinstein was the President and CEO of Natural Answers, Inc., a company involved in the production and distribution of herbal/natural remedies and vitamins. Feinstein sought to expand Natural Answers, Inc. to the nationwide level. To that end, Feinstein's friend, the Honorable Bruce Kauffman (from the Eastern District of Pennsylvania), introduced him to Melvyn Estrin ("Estrin"), a businessman with experience in national drugstore ventures.
In November 1999, Feinstein and Estrin began negotiating a deal whereby, in exchange for a stake in Natural Answers, Inc., Estrin would provide consulting and business advice, invest in the corporation himself, and procure the investment of additional funds from outside parties. During the initial period of meetings and discussions, NAI was represented by Luis Prats ("Prats"), an attorney with Carlton Fields. Notably, on December 10, 1999, Prats sent a letter to Estrin outlining the "major terms" of the "agreement reached." However, a number of significant terms remained in dispute, and the letter acknowledged an understanding that a different attorney would finalize a formal agreement to be signed by the parties. The record reflects that by early 2000, in an effort to execute a final contract, NAI and Estrin hired transactional attorneys: NAI hired Jerald August, and Estrin hired Morris DeFeo. From January through March 2000, these transactional attorneys exchanged six different proposed drafts, however their clients were unable to agree on a final written contract. In January and February of 2000, Estrin made two payments ($100,000 each) to Natural Answers, Inc. as an "initial investment."
Thereafter, negotiations broke down, and although the parties attempted to recommence discussions (even meeting in Judge Kauffman's chambers at one point), on April 14, 2000, Estrin wrote to Feinstein declaring that while he was willing to make an investment in Natural Answers, Inc., he no longer wished to become personally involved, and that if Feinstein did not want his investment, he should return his $200,000. In response, Feinstein accused Estrin of bad faith and nefarious motives. He did not return the $200,000.
In August 2001, the dispute between NAI and Estrin was brought before the District Court of Maryland with Estrin as the plaintiff seeking the return of his $200,000. Thereafter, the Gary Firm replaced Carlton Fields as counsel for NAI. NAI counterclaimed on the theories of breach of contract, promissory estoppel, and breach of the covenant of good faith/fair dealing. The District Court granted summary judgment in favor of Estrin, ordering the return of the $200,000, finding that: (1) the parties contemplated, but did not reach, a final written agreement; (2) NAI's action for damages, as opposed to specific enforcement of the promise, precluded relief based upon promissory estoppel; and (3) the breach of the covenant of good faith/fair dealing is not actionable under Maryland law. NAI appealed, and the Fourth Circuit affirmed, holding that the parties' failure to complete their negotiations did not give rise to an action for breach of contract.
After losing in federal court, NAI sued the law firms. NAI alleged transactional negligence as to Carlton Fields, arguing that Prats, who represented NAI during its initial negotiations with Estrin, was negligent when he failed to obtain a signature from Estrin after a binding agreement was reached, and for advising NAI that a binding agreement had been *887 reached. NAI also claimed that the Gary Firm and Carlton Fields committed litigation malpractice by not adequately defending NAI against Estrin's motion for summary judgment in the federal litigation.
NAI moved for summary judgment, and the law firms filed cross-motions. Carlton Fields argued that: (1) Prats was not the lead transactional attorneyJerald August was retained and served in that capacity; (2) the federal litigation established that the failure to conclude the parties' negotiations, not malpractice, was the proximate cause of NAI's losses; and (3) NAI's lawsuit was barred by collateral estoppel. The Gary Firm argued that they performed as well as possible in the federal litigation, and that judgmental immunity and collateral estoppel barred NAI's lawsuit. NAI's litigation malpractice claims depended almost entirely upon an "expert" affidavit, which the trial court rejected as speculative, finding that it did not raise any issues of fact.
The trial court denied NAI's motion and granted the law firms' motions for summary judgment in two separate orders, which we review de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Sheikh v. Coregis Ins. Co., 943 So.2d 242, 243 (Fla. 3d DCA 2006).
THE TRANSACTIONAL NEGLIGENCE CLAIM
We begin our analysis with recognition of the decisions rendered by the District Court of Maryland and the Fourth Circuit Court of Appeals, and federal principles of collateral estoppel. The District Court found, and the Circuit Court affirmed, that the undisputed facts reflect that at all times, the parties contemplated the execution of a formal written contract, and that any agreement would not be binding until the transactional attorneys executed the requisite documents and obtained the parties' signatures. In other words, all of the parties involved understood that the negotiations between NAI and Estrin were just thatnegotiations, until the finalized documents were executed and signed. However, these negotiations broke down, and the parties failed to enter into a binding agreement. Thus, there was no meeting of the minds.
Federal principles of collateral estoppel bar re-argument of whether the parties had reached a legally binding agreement. Two federal courts concluded that there was no meeting of the minds, and the failure to conclude negotiations was the sole proximate cause of any loss to NAI. The issue of whether a binding agreement existed at any stage was fully litigated and ruled upon in Maryland, and to the extent that NAI seeks to revisit those rulings, NAI is barred. See I.A. Durbin, Inc. v. Jefferson Nat'l Bank, 793 F.2d 1541, 1549 (11th Cir.1986) (detailing the following federal prerequisites to the application of collateral estoppel: "(1) the issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding").
Even if we were to find that collateral estoppel does not bar re-litigation of the central issues involved in NAI's claims, we agree with the Miami-Dade Circuit Court's finding that NAI's transactional negligence claim against Carlton Fields cannot stand, as Carlton Fields cannot be held liable for failing to obtain a signature on a contract that simply did not exist. *888 The overwhelming undisputed evidence demonstrates that the parties never formed a binding agreement. Hence, Carlton Fields could not have committed transactional negligence for failing to obtain Estrin's signature on a preliminary document.
Reviewing the evidence in the light most favorable to NAI, Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000), it is clear that Prats could not have obtained Estrin's signature on a binding contract in December 1999, because at that time the parties had merely agreed to negotiate an agreement. The final agreement contemplated by the parties was extremely complex, involving tax issues, the sale of securities, and a host of other substantial questions, which the parties continued to negotiate until March 2000. Furthermore, and of critical importance here, the evidence reflects that both sides were aware of these complexities, understood them, and dealt with them by hiring transactional attorneys, who were specifically charged with generating the requisite documents and representing the parties through this process.
Thus, NAI's current argumentthat but for Prats' failure to obtain Estrin's signature in December 1999, NAI would have recovered upwards of $25 million in the federal litigation, and that NAI reasonably relied upon Prats' negligent advice that a final agreement did existdefies not only logic, but reams of undisputed evidence demonstrating that in December 1999, everyone involved was aware that the negotiations were in a very early stage. Carlton Fields certainly cannot be faulted for failing to obtain Estrin's signature and binding him to a legal agreement where many material terms remained unresolved.
We, therefore, affirm the trial court's order granting summary judgment in favor of Carlton Fields as it relates to NAI's transactional negligence claim.
THE LITIGATION MALPRACTICE CLAIMS
Carlton Fields was NAI's lead counsel in the litigation against Estrin until December 2001, when the Gary Firm took over as lead litigation counsel. NAI argued below that the law firms' representation fell below the standard of care and caused the adverse outcome suffered by NAI. The trial court found that the undisputed facts entitled both Carlton Fields and the Gary Firm to judgment in the litigation malpractice claims as a matter of law, as neither firm's conduct could have proximately caused the loss to NAI. See, e.g., Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla.1998) (holding that liability for litigation malpractice requires that the attorney be the proximate cause of the client's loss).
We agree with the trial court. NAI's litigation malpractice claims are entirely devoid of merit. As the trial court found, and the voluminous record reveals, both firms performed admirably during the representation of NAI, and the outcome of the federal litigation was based, not on the deficient conduct of the attorneys, but on the failure of NAI and Estrin to reach a finalized contract. Moreover, the doctrine of judgmental immunity prevents lawsuits based on an attorney's good faith tactical decisions. Crosby v. Jones, 705 So.2d 1356, 1358 (Fla.1998) (noting that an attorney does not act as an insurer for the outcome of a case, and good faith tactical decisions are generally not actionable).
In response, NAI offered an "expert" affidavit of attorney Rubenstein who, without any factual support, speculated that in his opinion, had the law firms conducted the litigation differently, the outcome of the case would have favored NAI. The *889 trial court properly rejected this affidavit and found that it did not create a genuine issue of material fact.
Accordingly, as to NAI's litigation malpractice claims against the law firms, summary judgment was appropriately granted.
CONCLUSION
Although NAI aspired to expand its business and engaged in negotiations with Estrin, their negotiations never resulted in a contract, and NAI never experienced the explosive growth it sought. Having exhausted its attempts to recoup its alleged losses from Estrin, NAI attempted to recover its losses from its former attorneys. The evidence, however, reflects that any loss incurred by NAI was caused by its failure to reach a binding contract with Estrin on terms agreeable to both sides, not a failure to obtain a signature during the preliminary stages of extremely complex negotiations, nor by the legal representation provided to NAI by Carlton Fields and the Gary Firm.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560009/ | 20 So.3d 980 (2009)
Tulio ARIAS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D08-331.
District Court of Appeal of Florida, Third District.
October 21, 2009.
*981 Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
Before COPE, GERSTEN and SUAREZ, JJ.
COPE, J.
This is an appeal of a conviction of manslaughter. The question is whether the trial court erred in excluding evidence from the medical examiner that the victim had alcohol and cocaine in his blood at the time of the shooting. We remand for a new trial.
I.
Defendant-appellant Tulio Arias lived in an apartment complex and parked his car in the parking lot. The defendant works as a security guard and is licensed to carry a firearm. At approximately 10:00 p.m. the defendant went down to his car with his ten-year-old disabled daughter and daughter's friend. He planned to leave the children with a relative and then go to work.
The defendant found that a car had been illegally parked behind his vehicle, so that the defendant was unable to leave. The defendant knocked on several doors in the apartment complex, trying to find out who was blocking him in. When these inquiries were unsuccessful, the defendant called a tow truck. The illegally parked car was owned by the victim, Eduardo Otero-Garriga. He was visiting in another apartment in the complex and saw the tow truck preparing to tow away his car. The victim came downstairs and talked the tow truck driver out of towing the car.
When the victim determined that the defendant was the one who had called the tow truck, the victim made derogatory remarks. Further words were exchanged.
The defendant testified that the victim appeared to be under the influence of alcohol and cocaine, and was acting irrationally. The defendant stated that the victim used a phrase in Spanish which meant that he (the victim) was threatening to kill the defendant.
The defendant told the victim that he was armed and to stay away. The defendant drew his gun and loaded it with an ammunition clip. The defendant testified that he did this in the belief that if the victim saw the loaded firearm, the victim would back away.
Instead, the victim threw his glasses down, ripped his shirt off, and started to hit his chest while telling the defendant to shoot him. The victim then ran toward the defendant and the defendant shot him seven times, killing him immediately. The defendant then called the police and fire rescue.
In connection with the autopsy, the medical examiner found that the victim had a blood alcohol level of .21. He had traces of cocaine in his blood and cocaine metabolites. According to the medical examiner, this meant that the victim had likely consumed cocaine within the ten previous hours, maybe less.
The State charged the defendant with first-degree murder. The defendant claimed self-defense. Prior to trial, the State filed a motion in limine seeking to exclude "[a]ny mention of the fact that the *982 Deceased had alcohol or cocaine or cocaine metabolites in his body at the time of his autopsy." The State argued that "[t]he Defendant and the Deceased were unknown to each other and the Defendant had no knowledge of the Decedent's alcohol and drug use, and thus [the] evidence had no bearing on the Defendant's state of mind." The trial court granted the motion.
II.
We first consider whether the State opened the door to the admission of toxicology evidence when it cross-examined the defendant. Having successfully excluded the toxicology evidence, the State then impeached the defendant's testimony because he was not a toxicologist. The following transpired:
Q. You testified on direct examination that you know how somebody acts when they are under the influence of cocaine, they act a certain way?
A. That is correct.
Q. Are you a toxicologist?
A. No. I'm a security officer for 16 years.
Q. Okay. You are not a toxicologist?
A. No. I don't do toxicology exams to everybody on the street.
Q. Do you know what toxicologist is?
A. Yes.
Q. What is toxicologist?
A. It's one who studies and does testing to see if a person is intoxicated or not.
Q. Okay.
Had you conducted studies to see what the effects are when somebody is under the influence of cocaine?
A. In a very mild way but it is something that is taught in the security training courses.
Q. So in the security training mildly, they teach you if somebody does what if they're under the influence of cocaine?
A. That is correct but it's the 16 years experience that has taught me.
Q. 16 years experience of dealing with people who are under the influence of cocaine?
A. Many occasions, yes.
Q. And these are people that you went back and verified that they were in fact under the influence of cocaine?
A. Those are people who I confirm because of the places where I work that they have been doing cocaine. I saw them. I didn't have to go back and confirm. I saw them doing the drugs.
Q. But you didn't see Eddie doing any cocaine that night. You had never seen him?
A. No.
Q. Not at all?
A. No. Correct.
Q. When you testified to the ladies and gentlemen of the jury that he was acting crazy like on cocaine, that's just your assumption; is that correct, Mr. Arias?
A. It's correct.
After the cross-examination, the defense argued that the State had opened the door to the toxicology evidence and that the defense should be allowed to introduce that evidence. The request was denied.
This court has said:
The prosecutor's use of the privilege of nondisclosure, first as a shield, then as a sword, unfairly prejudiced the defendant. While the State is free to argue to the jury any theory of a crime that is reasonably supported by evidence, it may not subvert the truth-seeking function of a trial by obtaining a *983 conviction or sentence based on the obfuscation of relevant facts.
Gonzalez v. State, 774 So.2d 796, 798 (Fla. 3d DCA 2000); see Garcia v. State, 622 So.2d 1325, 1331 (Fla.1993); Villella v. State, 833 So.2d 192, 197 (Fla. 5th DCA 2002).
In this case the toxicology results showed that the victim had a .21 blood alcohol level, traces of cocaine in the blood, and cocaine metabolites. The State successfully kept the jury from hearing the toxicology results. On cross-examination, the State then attacked the defendant's lay observations of the victim's intoxication on the theory that the defendant was not a qualified toxicologist. Further, the State's parting shot was to make it appear that the defendant's testimony that the victim "was acting crazy like on cocaine" was just an assumption. Of course, the State knew that the toxicology results (excluded on the State's motion) confirmed the defendant's observations. This cross-examination was totally improper. Because this cross-examination deprived the defendant of a fair trial, we must reverse for a new trial.
III.
We presume that on remand the State will not repeat the same error. At the retrial, therefore, there should be no issue of door-opening.
The next question to be considered is whether the trial court erred in entering the order in limine. We conclude that, so long as the defendant takes the stand and testifies to his observation of the intoxication of the victim, the toxicology results are admissible.
A.
The parties have relied on cases decided under subparagraph 90.404(1)(b)1., Florida Statutes (2007).[1] That part of the Evidence Code addresses the circumstances under which evidence may be offered "of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the trait[.]" According to Professor Ehrhardt, "The conduct of the victim is material under the substantive criminal law only in a few situations. The most common situation is when the defense asserts that the accused acted in self-defense." Charles W. Ehrhardt, Ehrhardt's Florida Evidence, § 404.6 at 207 (2009) (footnote omitted).
One circumstance in which "evidence of the victim's violent or aggressive character is admissible ... is to prove that the accused was reasonably apprehensive of the victim and that the defensive measures of the accused were reasonable." Id. at 209. "In this situation, the evidence is being offered to prove the defendant's state of mind, that is, the reasonableness of the defendant's belief concerning imminent danger, rather than the conduct of the victim." Id. at 209-10.
For example, in Diaz v. State, 747 So.2d 1021 (Fla. 3d DCA 1999), the defendant, victim, and two other men were drinking beer together. The defendant testified that he knew the victim had a reputation for violence when intoxicated, and that he perceived the victim was intoxicated. Id. at 1024. The evidence regarding this trait of the victim's charactera reputation for violence when intoxicatedwas admissible because the victim knew of that character trait and perceived that the defendant was intoxicated.
The Diaz case is not squarely applicable here. In the present case, the defendant had never seen the victim before. He had no knowledge of the victim's reputation or propensity for violence in general, or when *984 intoxicated. The defense in this case did not seek to introduce any character or reputation evidence regarding the victim.
The Diaz case is, however, instructive on one point. In Diaz, the defense sought to introduce the toxicology results for the decedent, which indicated that the victim had a blood alcohol level of .21 at the time of death. Id. at 1023. This court said that it was permissible for the defense to offer the toxicology evidence in the defendant's case in chief. That was so because "[t]he medical examiner's toxicological findings served ... to confirm the defendant's perception that the victim was, in fact, intoxicated." Id. at 1024.[2]
Turning now to the present case, the defendant took the stand and testified that the victim was behaving erratically, threatened to kill him, and appeared to be intoxicated and under the influence of cocaine. Assuming that the defendant again takes the stand and so testifies at retrial, the toxicology findings will then be admissible "to confirm the defendant's perception that the victim was, in fact, intoxicated." Id. See also Warren v. State, 577 So.2d 682, 684 (Fla. 1st DCA 1991) ("A homicide defendant is afforded wide latitude in the introduction of evidence supporting his self-defense theory. Where there is even the slightest evidence of an overt act by the victim which may be reasonably regarded as placing the accused apparently in imminent danger of losing his life or sustaining great bodily harm, all doubts as to the admissibility of evidence bearing on his theory of self-defense must be resolved in favor of the accused.") (citation omitted). The toxicology evidence comes in because it is relevant evidence, and not under any theory of admissibility of character evidence under subparagraph 90.404(1)(b)2., Florida Statutes (2007).
For the stated reasons, the conviction is reversed and the case remanded for a new trial.
NOTES
[1] The trial occurred in 2007.
[2] The question in Diaz was whether the defense should have been allowed to make use of the toxicology report in cross-examination of the medical examiner during the State's case in chief. This court concluded that the cross-examination was properly disallowed because the medical examiner had not testified about the toxicology results in the State's case in chief, and therefore the defense attempt at cross-examination regarding toxicology was beyond the scope of direct examination. Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560029/ | 403 F.Supp. 407 (1975)
UNITED STATES of America
v.
Richard Albert JENKINS.
Cr. No. B-63.
United States District Court, D. Connecticut.
October 31, 1975.
Thomas F. Maxwell, Jr., Asst. U. S. Atty., Bridgeport, Conn., for plaintiff.
J. Daniel Sagarin, Bridgeport, Conn., for defendant.
MEMORANDUM OF DECISION ON MOTION TO REDUCE SENTENCE
NEWMAN, District Judge.
This motion under Fed.R.Crim.P. 35 for reduction of an eighteen-year sentence imposed for the crime of armed bank robbery has prompted the Court to explore the relationship between the length of sentences and the duration of time served.
The long sentence was imposed in view of the seriousness of the offense and the defendant's extensive prior record, which includes convictions for two robberies, two larcenies, and a weapons offense. Expressed in terms of sentencing objectives, the sentence was imposed to serve as a general deterrent to others, a specific deterrent to this defendant, and for purposes of incapacitation. While pursuit of these objectives requires *408 a sentence of considerable length, neither they nor any other theories of sentencing indicate what length of sentence is appropriate. In selecting eighteen years, the Court assumed that, even though sentence was imposed pursuant to 18 U.S.C. § 4208(a)(2),[1] one-third of the sentence, six years, was very likely the minimum time defendant would actually serve and that a realistic range of the likely period of actual confinement would be six to nine years.
In considering defendant's motion to reduce, the Court has been concerned that the original sentence may have been unduly influenced by what may appropriately be called the Slovik syndrome[2] the expectation that a sentence will not be fully carried out. The reference is to the American soldier, Eddie Slovik, sentenced to death for desertion in World War II and executed, though the court martial members who imposed the sentence did not expect that it would be carried out. The phenomenon appears to have resulted in confinements longer than anticipated by sentencing judges especially with sentences of less than five years, since parole board guidelines often specify confinement terms of two and three years, far more than one-third and even one-half of many imposed sentences.[3] See United States v. Slutsky, 514 F.2d 1222 (2d Cir. 1975). Whether the phenomenon occurs as frequently with long sentences was unclear, since the parole guidelines for armed robbery range from 26 to 65 months, depending upon salient factor scores, a confinement period that would be less than one-third of sentences longer than fifteen years. What needed to be examined was the length of time convicted bank robbers were actually serving after imposition of longer sentences.
Inquiry to the United States Board of Parole elicited two computer printouts prepared by the Bureau of Prisons showing time served by all bank robbers released during 1974. The first printout covered all those released by an initial parole decision, and the second covered all those released by expiration of the full sentence, less good time credit, i. e., mandatory releases. The data disclosed the type of sentence, the sentence length, and the time served prior to parole or mandatory release. The data were analyzed by this Court for sentence lengths of 10, 15, 20, and 25 years. Only regular adult sentences and indeterminate sentences (imposed pursuant to 18 U.S.C. § 4208(a)(2)) were analyzed.[4]
A summary of the data is set forth in the following Table I.
*409
Table I
Federal Prisoners Serving Bank Robbery Sentences Released in 1974
by Initial Parole or Mandatory Release
-------------------------------------------------------------------------------------------------
| Length and Type of Sentence Imposed |
----------------|------------------------------------------------------------------------------------------------------------------------------------------------------
| | | | | | | | | | | | Totals | |
|Fraction of | 10 Years | 10 Years | 15 Years | 15 Years | 20 Years | 20 Years | 25 Years | 25 Years | Sub-totals | Sub-totals | Regular | Cumulative |
|Sentence Served | Regular[a] | (a)(2)[b] | Regular | (a)(2) | Regular | (a)(2) | Regular | (a)(2) | Regular | (a)(2) | & (a)(2) | Percentages |
|----------------|---------------|---------------|----------|----------|----------|----------|----------|----------|------------|------------|-----------|--------------|
|Over 3/5 - 2/3 | 1(1)[c] | 6(5) | 0 | 2(2) | 0 | 0 | 0 | 0 | 1(1%) | 8(4%) | 9(3%) | 100% |
|----------------|---------------|---------------|----------|----------|----------|----------|----------|----------|------------|------------|-----------|--------------|
|Over 1/2 - 3/5 | 6(2) | 11(6) | 9(1) | 6(2) | 2(1) | 1 | 0 | 0 | 17(22%) | 18(9%) | 35(13%) | 97% |
|----------------|---------------|---------------|----------|----------|----------|----------|----------|----------|------------|------------|-----------|--------------|
|Over 1/3 - 1/2 | 9 | 27 | 9 | 16 | 4 | 2 | 6 | 0 | 28(36%) | 45(23%) | 73(27%) | 84% |
|----------------|---------------|---------------|----------|----------|----------|----------|----------|----------|------------|------------|-----------|--------------|
|Over 1/4 - 1/3 | 9[d] | 30 | 8 | 17 | 9 | 6 | 2 | 1 | 28(36%) | 54(27%) | 82(30%) | 57% |
|----------------|---------------|---------------|----------|----------|----------|----------|----------|----------|------------|------------|-----------|--------------|
|1/4 or less | 3(1) | 26 | 0 | 24(1) | 0 | 15(1) | 1 | 7 | 4(5%) | 72(37%) | 76(27%) | 27% |
|----------------|---------------|---------------|----------|----------|----------|----------|----------|----------|------------|------------|-----------|--------------
|Totals | 28 | 100 | 26 | 65 | 15 | 24 | 9 | 8 | 78(100%) | 197(100%) | 275(100%) |
--------------------------------------------------------------------------------------------------------------------------------------------------------
*410 As the table indicates, of 275 bank robbers sentenced to long sentences, who were paroled or mandatorily released in 1974, 27% served less than ¼ of their sentences, 30% served between ¼ and 1/3 of their sentences, 27% served between 1/3 and ½ of their sentences, 13% served between ½ and 3/5 of their sentences, and 3% served between 3/5 and 2/3 of their sentences. None served more than 2/3 of their sentences. Since prisoners sentenced to ten years or more earn ten days of good time credit per month, 18 U.S.C. § 4161, it is not surprising that no prisoner served more than 2/3 of the sentence imposed. What is interesting to note is how infrequently these prisoners remained in confinement until mandatory release, even with a 1/3 allowance for good time credit. All but 23 of the 275 prisoners examined were released on parole, and of the 56 sentenced to 20 or 25 years, all but 2 were released on parole. In summary, 84% of the entire group served no more than ½ of their sentences, and 57% served no more than 1/3 of their sentences.
The data also indicate that bank robbers receiving long sentences under § 4208(a) (2) are likely to be paroled sooner than those serving regular sentences. The benefits of an (a) (2) sentence appear to be more pronounced at the higher sentence ranges. The parole benefits of an (a) (2) sentence for those given long sentences should be contrasted with previously published data indicating that for sentences of five years or less, time served did not vary whether the sentence was imposed under § 4208(a) (2) or was a regular adult sentence. See Pasela et al., "Sentence Indeterminancy and Length of Incarceration," Appx. D, Table XIV, Research Center, National Council on Crime and Delinquency, Davis, California (1974).
This data concerning time actually served on long sentences, taken together with the impact of the Parole Board's guidelines on time served when sentences are less than five years, raise a disturbing possibility. It may well be that defendants sentenced to five years or less are often serving more time than the sentencing judge anticipated when he selected their sentence lengths, while those sentenced to ten years or more are often serving less time than the sentencing judge anticipated when he selected their sentence lengths. The point is that an expectation that a defendant will be released after serving one-third of his sentence will often be unrealistic. Those sentenced to less than five years will often serve more than one-third, and those sentenced to more than ten years will often serve less than one-third.
There were only 11 sentences, like the defendant's in this case, of eighteen years, but the release pattern approximated the results of the data already considered. Ten prisoners received (a)(2) sentences, and all were paroled. Of these, 4 were released between 1 and 5 years, 3 were released between 5 and 6 years, 3 were released between 6 and 8 years, and none served more than 8 years. One prisoner with a regular sentence was mandatorily released after 12 years. The pattern of release at or before the one-third point prevailed.
It should be noted that the 1974 release figures may not fully reflect the impact of the Board's parole guidelines, since 1974 was the first year the guidelines were fully in effect throughout the country. Bank robbers eligible for parole prior to 1974 thus were not considered under the guidelines when their initial parole hearings occurred. However, since these guidelines set a range of confinement time for armed bank robbery at 26 to 65 months, it is unlikely that their application will increase the average confinement time for those serving long sentences. If anything, their use may decrease the average time served, though the guidelines may have the effect of lessening the number of *411 (a)(2) prisoners released after relatively brief confinement.
With respect to this defendant, the figures indicate that he has a good chance of being released just short of the one-third point of his sentence, and that it would be extremely unlikely for him to be confined beyond the halfway point. Confinement for a period ranging from 6 to 9 years was the Court's expectation when sentence was imposed, with substantial time under supervision to follow. Since the currently available data indicate a high likelihood that defendant's confinement prior to release on parole will be somewhat less than the Court anticipated in imposing sentence, the inquiry has disclosed no basis to reduce the sentence. Cf. Slutsky v. United States, supra. Nor have any other factors arisen warranting reduction of sentence.
Of course, there is no guarantee, either to the defendant or the Court, that parole in his case will in fact be granted within the range reasonably to be predicted from the Board's decisions in other cases. This Court's opinion on this motion is neither a directive to the Board nor the creation of any right for the defendant to obtain parole at any particular time. One problem of the present relationship between sentencing and parole is that a Court intending to cause imprisonment for a substantial length of time (six to nine years) must impose an extremely long sentence (15 to 20 years), thereby creating the risk that a defendant may become one of the few who serve far longer than the average. The Court has specifically considered and accepted that risk in this case. From the defendant's standpoint that risk is simply an unfortunate consequence that may befall any person with an extensive criminal record who elects to commit the crime of armed bank robbery.
The motion to reduce is denied.
NOTES
[1] The (a) (2) provision was used, and the Parole Board so informed, not to signal a preference for early parole, but simply to provide a safety valve that would permit early release in the event that totally unforeseen circumstances might arise following incarceration.
[2] See Newman, Foreward, Parole Release Decisionmaking and the Sentencing Process, 84 Yale L.J. 810, 812-13 (1975).
[3] Of 15,819 defendants sentenced to imprisonment in 1972, 13,036 (82%) were sentenced to terms of five years or less; 9,926 (58%) were sentenced to terms of three years or less. "Federal Offenders in United States District Courts 1972," Table 3, Administrative Office of the United States Courts (1975).
[4] The data do not distinguish, as the parole guidelines formerly did, between armed and unarmed robbery, see 39 Fed.Reg. 20031 (1974), but it seems reasonable to assume that most robbers sentenced to ten years or more were convicted of armed robbery, or were determined to have committed the crime with a weapon, even if they were allowed to plead to the larceny count, 18 U.S. C. § 2113(b).
[a] "Regular" sentences mean those imposed upon adults with parole eligibility at the one-third point. 18 U.S.C. § 4202.
[b] "(a) (2)" sentences mean those imposed upon adults with parole eligibility at any time. 18 U.S.C. § 4208(a)(2).
[c] The numbers in parentheses indicate the number of prisoners in each category who were released by mandatory release.
[d] The data disclosed no explanation as to why 31 of those serving regular adult sentences, with parole eligibility at the one-third point, 18 U.S.C. § 4202, were in fact paroled prior to the one-third point. Key-punching errors may be responsible, or it is possible that in some instances the printout report of time served did not include jail time credit. There is also no explanation for the three instances of mandatory release after service of less than ¼ of the sentence; these are presumably key-punching errors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560037/ | 20 So.3d 440 (2009)
Ramon PEREZ, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-1173.
District Court of Appeal of Florida, Fourth District.
October 21, 2009.
*441 Ramon Perez, Orlando, pro se.
Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
STEVENSON, J.
In this appeal, Ramon Perez challenges the trial court's "dismissal" of his postconviction claim that his scoresheet erroneously included "severe" victim injury points for one of the victims of his crimes despite an agreement that the victim injury points for both victims would be scored as "moderate." We agree that the trial court erred in failing to consider the merits of Perez's claim and reverse the order appealed.
Perez was convicted for the 1998 offenses of attempted first degree murder (count I), aggravated battery with a firearm (count II), and improper exhibition of a firearm (count III). These convictions were affirmed on appeal. Perez v. State, 816 So.2d 642 (Fla. 4th DCA 2002). In 2003, following postconviction proceedings, Perez was resentenced to 16.875 years for counts I and II and to time served for count III. In 2007, Perez filed a petition for writ of habeas corpus, raising a number of challenges to his sentence. In its response, the State argued that Perez's petition was properly treated as a rule 3.800(a) motion, as the time for the filing of a 3.850 motion had long passed, and that *442 Perez was entitled to no relief. The trial court denied Perez's petition for the reasons cited in the State's response.
At the time the trial court signed the order of denial, it was unaware that Perez had filed a "reply" to the State's response. In that "reply," among other things, Perez asserted for the first time that all the parties had agreed to score the victim injury points for both victims as "moderate," that page sixty-seven of the sentencing transcript would support his claim of such agreement, that the scoresheet used at the April 2003 resentencing had assessed "moderate" victim injury points for one victim and "severe" victim injury points for the other, and that the error in scoring the injury to one of the victims as "severe" had resulted in the erroneous inclusion of an additional twenty-two points on his scoresheet. The trial court entered an order "dismissing" Perez's reply, finding that even if the "reply" were treated as a motion for rehearing, such reply simply re-argued the claims. Perez has appealed, challenging only the trial court's "dismissal" of his claim regarding the victim injury points.
The erroneous assessment of victim injury points is a cognizable claim under rule 3.800(a), provided the error is apparent from the face of the record. See, e.g., Chapman v. State, 885 So.2d 475, 476 (Fla. 5th DCA 2004). There is no prohibition to the filing of successive rule 3.800(a) motions so long as the merits of the issue presented have not previously been addressed, and no time limit on the filing of rule 3.800(a) motions exists. See Fla. R.Crim. P. 3.800(a) (providing for the filing of such motion at "any time"); State v. McBride, 848 So.2d 287, 291 (Fla.2003) (recognizing successive motions may be filed, but defendant may not raise the same issue multiple times). Thus, while Perez did not raise the issue concerning the assessment of victim injury points until the filing of his "reply," the trial court nonetheless should have ruled on the merits of the claim, as it had not been raised in petitions before the court and nothing in the record before the court demonstrated that Perez had previously raised the claim in some other filing.
Further, we cannot agree with the State's suggestion that Perez's claim is necessarily without merit. The scoresheet utilized at the April 2003 resentencing and the April 2003 sentencing order are among the documents attached to the petition and response. When Perez was resentenced in April 2003, the scoresheet included fifty-eight victim injury points. With the assessment of these fifty-eight points, Perez's recommended sentence was 184 prison months. Absent written reasons for departure, his minimum permissible sentence was 121.5 months and his maximum sentence 202.5 months (16.875 years). See §§ 921.0014, 921.0016, Fla. Stat. (1997). The trial court imposed the 16.875-year maximum guidelines sentence.
When considering a defendant's entitlement to relief for a scoresheet error raised in a 3.800(a) motion, the "could have been" standard applies, i.e., "if the trial court could have imposed the same sentence using a correct scoresheet, [then] any error [i]s harmless" and the defendant is entitled to no relief. Brooks v. State, 969 So.2d 238, 243 (Fla.2007). Here, had "moderate" victim injury points been assessed for both victims, Perez's recommended sentence would have been 140 months. And, absent a departure, his minimum permissible sentence would have been 105 months and his maximum permissible sentence 175 months (14.583 years). Thus, the 16.875 years actually imposed by the trial court could not have been imposed by the trial court under the corrected scoresheet unless the trial court imposed an upward departure sentence with the accompanying written reasons. *443 Under such circumstances, if established, the alleged scoresheet error requires correction and resentencing. See Hoag v. State, 12 So.3d 907, 908 (Fla. 2d DCA 2009) (reversing denial of 3.800(a) motion and noting that "[w]hen a defendant is sentenced to the maximum guidelines sentence, a scoresheet error that improperly adds sentencing points to the total requires resentencing using a corrected scoresheet").
Accordingly, we reverse the order dismissing Perez's claim alleging error in the assessment of "severe" victim injury points for one of the victims and remand the case to the trial court for consideration of the merits of the claim. If the court finds the claim is properly denied, it must attach to the order of denial those record portions conclusively refuting the claim. See Joseph v. State, 13 So.3d 540, 541 (Fla. 3d DCA 2009); Thompson v. State, 17 So.3d 307, 308 (Fla. 4th DCA 2009).
Reversed and Remanded.
GERBER, J., and BROWN, LUCY CHERNOW, Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560043/ | 20 So.3d 576 (2009)
Susan Elizabeth Jackson PICCIONE
v.
Richard James PICCIONE.
No. 09-300.
Court of Appeal of Louisiana, Third Circuit.
October 7, 2009.
Rehearing Denied November 12, 2009.
*577 Susan Lorna Theall, Attorney at Law, Lafayette, LA, for Defendant-Appellant, Richard James Piccione.
Julie Koren Vaughn Felder, Attorney at Law, Lafayette, LA, for Plaintiff-Appellee, Susan Elizabeth Jackson Piccione.
Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
PICKETT, Judge.
Dr. Richard Piccione appeals a judgment of the trial court granting his former wife's peremptory exception of no cause of action and dismissing his rule for a change in custody/visitation.
STATEMENT OF THE CASE
Dr. Piccione and Susan Jackson Piccione-Mitchell were married in 1993. They had two children, Caroline, born in 1997, and Jackson, born in 1999. Soon after Jackson's birth, the couple separated. They were divorced on January 27, 2000. Following several months of litigation, the trial court issued a judgment on the issues of child support, spousal support, and other ancillary matters. See Piccione v. Piccione, 01-1086 (La.App. 3 Cir. 5/22/02), 824 So.2d 427.
Dr. Piccione filed a Rule to Increase Visitation on April 1, 2008. Ms. Piccione-Mitchell responded by filing a Peremptory Exception of Failure to State a Cause of Action. Ms. Piccione-Mitchell alleged that the rule filed by Dr. Piccione failed to state a cause of action because the parties previously litigated the issue of custody, resulting in the trial court issuing a considered decree as contemplated by Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Pursuant to Bergeron, Ms. Piccione-Mitchell argues that Dr. Piccione "bears a heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child." Bergeron, 492 So.2d at 1200.
Dr. Piccione argued that the parties entered into a consent judgment regarding custody in 2000 and the high burden for a change in custody enunciated in Bergeron is inapplicable. The trial court heard arguments on the exception of no cause of action on September 25, 2008. At the conclusion of the hearing, the trial court granted the exception, finding the Bergeron burden of proof applied in this case and Dr. Piccione's rule failed to meet that standard. The trial court signed a judgment in conformity with its ruling that day. Dr. Piccione now appeals.
ASSIGNMENTS OF ERROR
Dr. Piccione asserts three assignments of error:
1. The trial court erred in concluding that a considered decree of custody had previously been rendered.
2. The trial court erred in determining that the burden of proof enunciated in Bergeron v. Bergeron applies to a request for increased visitation when a party seeks modification of a consent judgment.
3. The trial court erred in granting the exception of no cause of action.
DISCUSSION
The supreme court in Darville v. Texaco, Inc., 447 So.2d 473, 474-75 (La.1984), stated:
The purpose of an exception of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the papers *578 and for the purposes of determining the issues raised by the exception, the well pleaded facts in the petition must be accepted as true. La.C.C.Pro. art. 927; Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984); Haskins v. Clary, 346 So.2d 193 (La.1977). The general rule applicable to a trial of such exception is that an exception of no cause of action must be overruled unless the allegations of the petition exclude every reasonable hypothesis other than the premise upon which the defense is based; that is, unless the plaintiff has no cause of action under any evidence admissible under the pleadings. Haskins, supra at 195; West v. Ray, 210 La. 25, 26 So.2d 221 (1946).
"When a Court can reasonably do so, it should maintain the petition so as to afford a litigant an opportunity to present his evidence." Owens v. Martin, 449 So.2d 448, 452 (La.1984).
In White v. Fetzer, 97-1266, p. 5 (La. App. 3 Cir. 3/6/98), 707 So.2d 1377, 1380, writ denied, 98-931 (La.5/15/98), 719 So.2d 466, this court stated:
In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the supreme court stated that in a case involving modification of a considered decree of permanent custody, the burden of proof for the petitioning party is to show that the continuation of the present custody is so deleterious to the child so as to justify the modification, or that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Id. at 1200. The purpose of this heavy burden is to avoid extensive and repetitive litigation that could be harmful to the child and to avoid unnecessary changes in the child's life. Id.
However, visitation is not strictly a "species of custody" and, instead, has an independent basis in the Civil Code. La. Civ.Code art. 136, Revision Comments 1993(b). A change in visitation rights is not as substantial as a change in actual physical custody. Mosely v. Mosely, 499 So.2d 106 (La.App. 1 Cir.1986), writ denied, 505 So.2d 1138 (La.1987). In such cases, a showing that the change in visitation is in the best interest of the child is sufficient. Bennett v. Bennett, 95-152 (La.App. 3 Cir. 5/31/95); 657 So.2d 413.
We find that Dr. Piccione's Rule for Increased Visitation did not seek to alter the custody arrangement, only the visitation schedule of the children. As such, it is unnecessary for us to determine whether the original custody judgment was a consent judgment or a considered decree. It is enough for us to find that Dr. Piccione's Rule for Increased Visitation states a valid cause of action.
The judgment of the trial court granting the exception of no cause of action is reversed, and the case is remanded for further proceedings consistent with this opinion. Costs of this appeal are assessed to Ms. Piccione-Mitchell.
REVERSED AND REMANDED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560059/ | 945 A.2d 318 (2008)
STATE
v.
Francis D. McCARTHY.
No. 2007-134-C.A.
Supreme Court of Rhode Island.
April 21, 2008.
*319 Christopher R. Bush, Esq., for Plaintiff.
Catherine Gibran, Esq., Providence, for Defendant.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
OPINION
Justice ROBINSON for the Court.
This is an appeal by Francis D. McCarthy from an adjudication of probation violation. This case came before the Supreme Court on January 22, 2008, pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the memoranda submitted by counsel and their oral arguments before us, we are satisfied that cause has not been shown. Accordingly, we shall decide the appeal at this time. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On February 28, 2001, defendant, having pled nolo contendere to three counts of second-degree child molestation, was sentenced to twenty years imprisonment. The defendant was to serve three years of that sentence, and the remaining seventeen years were suspended and he was placed on probation. The conditions of probation required that defendant have no victim contact, that he engage in a sex-offender program, and that he register as *320 a sex offender. As a consequence of those imposed conditions, on March 29, 2001, defendant signed a document entitled "Conditions of Supervised Probation," wherein he specifically acknowledged that he was subject to the special conditions of (1) a no-contact order with respect to the victim; (2) registration as a sex offender; and (3) attendance at sex-offender counseling.
In February of 2005, defendant was arrested on a charge of having violated the conditions of his probation. The original Super. R.Crim. P. 32(f)[1] violation notice indicated that the basis for the violation charge was the allegation that defendant had driven by the home of his sex-offender counselor while informing the counseling agency by phone that he was doing so. According to that violation notice, the counselor felt threatened by defendant's conduct in driving by the counselor's house. The violation notice additionally noted the fact that a person whom defendant had been convicted of molesting resided in the Town of Barrington, in which town defendant was traveling when he drove by the counselor's house.
An amended Rule 32(f) notice of probation violation was filed after the violation hearing had begun but in time for it to be addressed by the parties to that proceeding. As summarized by the magistrate, the amended notice set forth additional alleged facts as constituting further grounds that, in the state's view, would support a determination that defendant had violated the conditions of his probation. Those additional alleged facts were: (1) defendant's failure to have kept an accurate travel log; (2) defendant's failure' to have accurately reported his whereabouts to his probation officer; (3) defendant's failure to have attended sex-offender counseling sessions; and (4) the presence of a pair of female underwear in the lining of the coat that was taken from defendant when he was arrested. The violation hearing was conducted in the Superior Court on June 13, 15, and 16 of 2005.
A
The Testimony of Amanda
A coordinator of services for the Counseling and Psychotherapy Center, who is identified in the record only as "Amanda,"[2] was the first witness to testify. Amanda testified that defendant had been a client of the Counseling and Psychotherapy Center beginning in 2001. She testified that she interacted with defendant by phone; she added that she worked with his probation officer to secure funding for the sex-offender counseling. Amanda testified that defendant had said that he was experiencing financial difficulties in paying for the group-counseling sessions and that his attendance at counseling was sporadic. According to Amanda's testimony, defendant had been on medical leave from counseling for a period of about one year, but *321 he did not submit documentation with respect to his medical problems. It was further Amanda's testimony that, even after defendant was granted funding for counseling, his attendance at counseling did not improve.
B
The "Drive By" Incident
Amanda testified that on November 16, 2004 she, received a phone call at the Counseling and Psychotherapy Center from defendant, who told her that he had been asked to leave a group-counseling session on the previous evening, that he was having financial trouble, and that he, in Amanda's words, "didn't see the problem of not going to group, not paying, not doing what he was supposed to." Toward the end of their phone conversation, Amanda testified, defendant indicated to her that he was, at that very moment, driving by the home of his counselors. As she recalled that conversation in the course of testifying at the hearing, Amanda said that defendant's comment was "along the lines" of the following: "Oh, look. Isn't that nice? He must be home resting."
Amanda indicated in her testimony that it was her understanding that the home to which defendant was referring during that phone call was the home of therapists Travis and Lisa Merrell.[3] Amanda testified that she immediately advised the Merrells of the fact that defendant had driven by their house "because [Amanda] feared for their safety" and because she was "very concerned" and considered it "inappropriate" that a client knew the home address of a clinician. She testified during cross-examination that her evaluation of the situation and her subsequent response to it at that point resulted from her perception that defendant was "aggressive" and had made statements and had written letters (to probation officer Gerald Silva as well as to herself) that she considered to be "passive aggressive."
The state called as a witness one of defendant's therapists, one Travis Merrell, a clinician who offers sex-offender treatment in affiliation with the Counseling and Psychotherapy Center. Mr. Merrell testified that he had been working as a clinician since 1997 and with sex offenders since 1999. He further testified that, when individuals are recommended to the Counseling and Psychotherapy Center by the Probation and Parole Department, such individuals are required to become clients of the center and to attend counseling there. The defendant was one such person recommended by the Probation and Parole Department, and Mr. Merrell testified that he first became acquainted with defendant in the month of July 2003.
As part of the counseling process with Mr. Merrell, defendant engaged in group drama therapy. In his testimony, Mr. Merrell described this type of therapy as follows:
"[D]rama therapy is the use of drama and theater techniques to do the same thing that people do with talk therapy. It's aimed specifically as you can get to the emotional underpinnings of their deviancy and behaviors. * * * One of the first things that a [sex offender] has to do * * * in a group is do a walk through of their offense. That consists of describing *322 what you were convicted of, the sentence and details of the crime. * * * The second step would be to address what led up to the deviant fantasy, for instance, what sparked the behavior. * * * A third step would be reenactment of the crime. * * * I mean to take the person back to the moment to describe step by step the events that occurred, how he assaulted or inappropriately touched or raped * * * a victim."
Mr. Merrell testified that defendant's attendance at counseling was "sporadic" and that "there were often gaps in his attendance based on medical difficulties * * *." Mr. Merrell acknowledged that some of those medical problems were "very serious," but he stated that he had not seen any documentation of defendant's medical problems or treatment.
Mr. Merrell testified that, from July until November of 2003, defendant had attended counseling sessions "off and on probably about half the time" and that, around November of 2003, he "lost track of defendant until he began attending counseling again in April of 2004. Mr. Merrell testified that from April of 2004 to November of 2004 defendant's attendance at counseling was "[a]gain, irregular and when he did show up, we didn't get to do a lot of work." Mr. Merrell opined in his testimony that the lack of progress in the counseling sessions was due to defendant's "resistance, denial." He elaborated by saying that, "[i]n terms of denial, we would start to talk about the crime of conviction and he would become very angry, sometimes provocative in his behavior towards the others."
According to Mr. Merrell's testimony, his clinical relationship with defendant terminated in November of 2004. During a particular counseling session in that month, he and defendant had a disagreement after defendant "denied the seriousness of the events and he got abusive * * * and challenged] and questioned [Mr. Merrell's] skills, [his] wife's skills * * *." Mr. Merrell and his wife then asked defendant to leave the session. On the following day, November 16, 2004, Mr. Merrell received a call from Amanda regarding what defendant had told her about driving by the Merrells' house; he testified that he felt that defendant was "stalking" him and that he felt threatened. Mr. Merrell testified on cross-examination that he made a report about the incident to the police in Barrington, the town where he resided and where the "drive by" incident occurred.
The defendant opted to testify at the violation hearing, and he offered his version of the "drive by" incident. In defendant's direct testimony during the hearing, he explained that he had "probably spent one third of [his] life in Barrington" and was very active in that town. The defendant testified that he had tried to speak to Amanda on the phone earlier on the day of the "drive by" incident, November 16, 2004. He testified that he had gone to visit a former neighbor of his at the YMCA in Barrington; he added that, when he did not find her there, he went to a Dunkin' Donuts coffee shop to purchase a cup of coffee. From there, defendant testified, he drove to a CVS store to peruse a copy of the Barrington Times for job advertisements due to the fact that he was considering relocating to that area. The defendant further testified that he drove from CVS to a supermarket and then to a country club to visit an old friend. The defendant testified that, upon his arrival at the club, he was shocked to learn that his old friend had died between two and a half to three years earlier.
Upset by the news of his friend's death, defendant testified that he then went to *323 the grounds of a local monastery and thereafter walked to Barrington Beach in order "to soak up some fresh salt air to get in [his] lungs and straighten [him] out." He testified that, when he left the beach area in his car, a UPS or Federal Express truck was blocking the route that he had intended to take; he added that, while making a detour as a result of the blockage, he noticed Mr. Merrell's car, which he recognized from group meetings. The defendant testified that he did not know prior to seeing Mr. Merrell's car that his counselors resided in Barrington; he stated that he had previously assumed that Mr. Merrell lived in Bridgewater, Massachusetts because the counselor had mentioned that town a number of times.
The defendant testified that, after seeing Mr. Merrell's car, he placed a call to Amanda, for the third time that day, from a public phone booth located on Route 114 in Warren, Rhode Island. The defendant testified that he and Amanda discussed the possibility of his resuming counseling with a different counselor. According to defendant's testimony, his statements to Amanda regarding the "drive by" incident were limited to (1) the fact that he had seen Mr. Merrell's car and (2) his observation to Amanda that many people on Mr. Merrell's street had been raking leaves that day and (3) his inference that "because everybody was raking leaves I guess he [Mr. Merrell] was resting * * *." He testified that what he said to Amanda was meant "as a friendly comment more than anything else." As for the expression "drive by," defendant stated in the course of his testimony: "I reject that term very vehemently."
With respect to the "drive by" incident, defendant's probation officer, Gerald Silva, testified that defendant admitted to him that he had driven by the Merrells' house. Mr. Silva related in his testimony that defendant had told him that he had learned that his friend had died and that he had perused the newspaper advertisements. Mr. Silva further testified that defendant participated in one more counseling session at the Counseling and Psychotherapy Center after the "drive by" incident occurred, but that "it did not go well." Mr. Silva recalled in his testimony that he then advised defendant that he "needed to get back with * * * another group or he had to find another agency to go to the counseling with."
C
The Underwear in the Lining of Defendant's Coat
In February of 2005, defendant was arrested for violating the conditions of his probation. After his arrest, another matter came to the attention of the state, and the state proceeded to include same as one of the additional allegations set forth in the amended notice of violation.
Richard R. Webb, a correctional officer, testified on the second day of the probation violation hearing. According to his testimony, he was working in the inmate clothing room at the Adult Correctional Institutions on February 2, 2005, the date of defendant's arrest as an alleged probation violator. Officer Webb stated that his duties that day included checking the clothing of new inmates for contraband.
Officer Webb testified that, when defendant arrived after being arrested, he retrieved from inventory a heavy outer coat, a sweater, a pair of blue pants, and a T-shirt belonging to defendant. He added that, during his search of those items of clothing for contraband, he discovered "clothing that [he] thought would be unusual and it arouse[d][his] suspicions the way it was concealed within the clothing." *324 Officer Webb further explained that, after gaining access to the inner part of defendant's coat through a hole in the pocket, he probed the area between the outer shell and the lining of the coat, wherein he found a pair of female underwear.[4] Officer Webb testified that he prepared a report regarding this discovery and that the underwear was placed in an evidence locker.
On cross-examination, Officer Webb testified that he works only eight hours per day and that other officers work during the other shifts. He acknowledged that, with respect to the room in which he worked, "quite a few officers * * * would have access to that room." Officer Webb further testified that, when he arrives for a shift, he generally checks the clothing of inmates who have arrived during the preceding sixteen hours.
D
The Defendant's Failure to Remain Current with Sex-Offender Counseling
According to the testimony of Gerald Silva, who had been defendant's probation officer since April of 2004, defendant was not actively engaged in sex-offender counseling at the time that Mr. Silva began working with him as a probation officer. Mr. Silva testified that defendant was not in compliance with the terms of his probation because of his non-attendance at sex-offender counseling. Mr. Silva further testified about discussions that he and defendant had had concerning defendant's missed appointments at sex-offender counseling; Mr. Silva testified that defendant had told him he suffered from heart problems as well as from leukemia. He further testified that defendant provided him with some medical documentation that "would substantiate his not being in counseling until approximately February of 2004." According to Mr. Silva's testimony, defendant also had told him (1) that he was not working and could not attend sex-offender counseling because he could not afford it and (2) that he was not employable because of his health problems.
Mr. Silva testified about additional documentation that he requested from defendant that defendant did not provide to him. He also asked for documentation indicating that defendant could not attend Monday night counseling sessions, but defendant did not provide any such documentation.
Mr. Silva also testified as to certain efforts he made to remedy the problem of defendant's inability to pay for his counseling sessions. He testified that he succeeded in arranging funding through the Department of Corrections, but that the approval of the funding was conditioned upon defendant's good faith effort to pay part of his debt to the counseling center. Mr. Silva testified that defendant, agreed to pay a lump sum of $125 toward his outstanding debt that he owed to the counseling center; defendant also agreed to pay $10 per week toward the remaining balance. The request for funding from the Department of Corrections was granted in August of 2004 and became available to fund future counseling sessions, but from April until August of that year, defendant had not been attending sex-offender counseling. Mr. Silva testified that defendant had been suspended from counseling during that time due to his sporadic attendance *325 According to Mr. Silya's testimony, defendant "eventually" made the $125 payment toward his debt at the counseling center in October of 2004; Mr. Silva added that defendant thereby regained the opportunity to attend the center's counseling program. At that point, defendant proceeded to pay $10 per week until the day before the "drive by" incident.
E
The Superior Court's Assessment of the Foregoing
At the probation violation hearing in June of 2005, defense counsel argued that there was insufficient evidence to support a finding that defendant had violated his probation. Counsel emphasized that defendant had offered an explanation for his proximity to the Merrells' residence on November 16, 2004. Defense counsel acknowledged that both Amanda and Mr. Merrell interpreted defendant's comment about Mr. Merrell's residence as constituting "some sort of threat," and she also acknowledged that they "took it very seriously." However, while not casting any doubt on the sincerity of those subjective reactions of Amanda and Mr. Merrell, defense counsel argued that those reactions did not constitute a basis for a finding of a violation of probation.[5]
Defense counsel also argued that "[e]ven if the [c]ourt finds that [defendant] has been non-compliant with the counselors, * * * that alone is not enough to pull his probation and send him to jail." She asserted that Mr. McCarthy should be granted another opportunity to return to counseling with different counselors.
As to the discovery of underwear in defendant's coat, defense counsel asserted that that allegation did not constitute a failure to keep the peace and be of good behavior. She argued that, although defendant's possession of the underwear was not "in good taste," it was nonetheless her position that such possession did not constitute a probation violation. "That is not," defense counsel argued, "what not keeping the peace and being of good behavior means"; she then asserted that the prosecution had not met its burden of providing a sufficient evidentiary basis upon which the court could find that defendant had violated the terms of his probation.
The state, for its part, maintained that the combination of factual allegations adduced at the hearing amounted to proof of a probation violation. With respect to those allegations, counsel for the state contended as follows:
"[I]ndividually they are a lot less than they are when you add all of them up. When you add up the drive-by, when you add up the girl's underwear, when you add up his complete abrogation for any responsibility for attending the sex offender counseling, his poor progress and his abusive behavior, verbally assaultive behavior when he is at the counseling, * * * it adds up to something substantial."
After reviewing the testimony that had been brought forth during the hearing, the hearing magistrate first addressed the issue of the underwear found in defendant's overcoat. The magistrate stated that this fact, in and of itself, did not constitute "a failure to keep the peace and be of good behavior," and he said that "[i]f that was the only reason Mr. McCarthy were before the [c]ourt, the [c]ourt would have to say that I find no violation."
The magistrate next addressed the "drive by" incident, again observing that *326 such an incident alone would not rise to the level of a failure to keep the peace and be of good behavior.
The magistrate went on to state, however, that the combination of driving past Mr. Merrell's house a day after he was asked to leave counseling,[6] his failure to pay for counseling, and his phone call informing the counseling office that he had driven past Mr. Merrell's house "raises a serious question in any mind" about why Mr. McCarthy was in Barrington that day. The magistrate then concluded that such a combination of allegations merited a "reasonable inference that his attendance at the home of the parties certainly was an attempt to threaten these counselors * * *." The magistrate referred to the conduct as an "implied threat."
In the judgment of the magistrate, the most important aspect of Mr. McCarthy's behavior, as it related to finding him to be a violator, was his failure to remain involved with his counselor. The magistrate found that this failure, combined with the above-discussed shortcomings, rose to the level of a failure to keep the peace and be of good behavior. The magistrate concluded that the state had "satisfied [him] by a fair preponderance of the evidence" that defendant had violated the terms of his probation. After stating that he was taking into consideration defendant's age (he was sixty-nine at the time of the probation violation proceedings) and his poor health, the magistrate ruled that defendant should serve six years of the seventeen years remaining on his suspended sentence.
II
Standard of Review
The duty of a judicial officer who presides at a probation violation proceeding is to determine whether a defendant failed to keep the peace and remain on good behavior-both being conditions of probation. State v. Forbes, 925 A.2d 929, 934 (R.I.2007). The prosecution's burden of proof in a probation violation proceeding is rather low; the prosecution is required to show that "reasonably satisfactory" evidence supports the finding that a defendant has violated probation. See id.; see also State v. Sylvia, 871 A.2d 954, 957 (R.I.2005).
In reviewing a finding of a probation violation, this Court considers "only whether the hearing justice acted arbitrarily or capriciously in finding a violation." State v. McLaughlin, 935 A.2d 938, 941 (R.I.2007) (internal quotation marks omitted); see also Forbes, 925 A.2d at 934. Witness credibility and the weight of the evidence are determinations that are best made by the fact-finder. State v. Texter, 896 A.2d 40, 43-44 (R.I.2006).
III
Analysis
The purpose of a probation violation hearing is to determine whether a condition of the probation has been breached. State v. Znosko, 755 A.2d 832, 834 (R.I.2000). As we have previously observed, "[k]eeping the peace and remaining on good behavior are conditions of probation." State v. Waite, 813 A.2d 982, 985 (R.I.2003). In a probation violation hearing, the hearing justice weighs the evidence and assesses credibility to determine whether a defendant has breached any of the conditions of probation. Forbes, 925 A.2d at 934.
*327 "The state's burden at a probation violation hearing is to prove, through reasonably satisfactory evidence, that a defendant violated one or more terms of his [or her] probation by failing to keep the peace or remain of good behavior." McLaughlin, 935 A.2d at 942 (internal quotation marks omitted). As we have previously stated, the state's burden of proof at a probation violation hearing "is considerably lower than in a criminal case." State v. Pompey, 934 A.2d 210, 213 (R.I.2007) (internal quotation marks omitted). It is well settled that the prosecution in a probation violation hearing need not prove beyond a reasonable doubt that a defendant has committed a crime. State v. Seamans, 935 A.2d 618, 621 (R.I.2007). Also, in contrast to a criminal trial, the rules of evidence need not be strictly adhered to in probation violation hearings. State v. Bernard, 925 A.2d 936, 939 (R.I. 2007).
According to the decision of the magistrate who presided over this case, three allegations justified the finding that defendant had violated his probation. First, the magistrate referred to the female underwear discovered in the lining of defendant's coat. Secondly, the magistrate considered what he called the "serious question" that defendant's driving by his sex-offender counselors' house (after having been dismissed from counseling) raised; the magistrate concluded that a reasonable inference could be drawn that, by doing so, defendant intended to threaten the counselors. Finally, the magistrate dealt with the issue of defendant's failure to stay involved in sex-offender counseling.
With respect to the first allegation (the discovery of underwear in defendant's coat lining), the magistrate determined that such an allegation, in and of itself, would not rise to the level of a failure to keep the peace and be of good behavior. The magistrate stated that, if the discovery of the underwear "was the only reason Mr. McCarthy were before the [c]ourt, the [c]ourt would have to say that I find no violation."
The magistrate next considered the "drive by" incident. The magistrate straightforwardly stated that to find that this incident alone rose to the level of defendant's having failed to keep the peace and be of good behavior would constitute a "stretch" on the part of the court. The magistrate nonetheless stated that he found Mr. McCarthy's testimony about how he coincidentally drove past the Merrells' house on that day to be "reprehensible and untrue, certainly not credible."
The magistrate further determined that the combination of elements surrounding the "drive by" incident including the "drive by itself," the temporal proximity of the incident to his having been asked to leave a counseling session due to his conduct, his failure to pay his share of the fee at that session, and the phone call he made to inform the staff of the center that he had driven by the counselors' house "when looked at in its entirety certainly raises a serious question in any mind as to why Mr. McCarthy was where he [was] * * *."
The third allegation, which the magistrate determined to be the "most important aspect of Mr. McCarthy's violation," was his "failure * * * to stay involved and current with his counselor." The magistrate determined that Mr. McCarthy was aware that he had an obligation to remain in counseling and yet had failed to attend counseling from November of 2004 until the time of the probation violation hearing.
After reviewing the entire record, it is our judgment that the magistrate acted neither arbitrarily nor capriciously *328 when he determined that defendant had violated the conditions of his probation.[7] As this Court has observed, the state need not prove beyond a reasonable doubt that an alleged probation violator committed a crime; the presiding judicial officer need only be reasonably satisfied by the presented evidence that a defendant breached a condition of probation by failing to keep the peace and remain in good behavior. See Seamans, 935 A.2d at 623. The central issue at a probation violation hearing is whether those aspects of the probationer's conduct that are being scrutinized by the court can be said to be "lacking in the * * * good behavior expected and required by [defendant's] probationary status." State v. Brown, 915 A.2d 1279, 1282 (R.I.2007) (internal quotation marks omitted); see also Hampton v. State, 786 A.2d 375, 379 (R.I.2001).
In the case before us, the magistrate who conducted defendant's probation violation hearing discussed the evidence that had come before him, weighing the evidence and assessing the credibility of witnesses, as is required. See Forbes, 925 A.2d at 934. Although the magistrate noted that two of the allegations would not be sufficient, if either had been standing alone, to merit a determination that defendant had breached a condition of his probation, he nevertheless held that the three allegations combined amounted to a probation violation.
We agree with the result that the magistrate reached in his decision. The defendant had been made aware of the conditions of his probation: significantly, on March 29, 2001, he signed a "Conditions of Supervised Probation" form acknowledging the requirement that he comply with certain conditions of his probation, including attendance at sex-offender counseling. The defendant's legal arguments concerning the non-criminal nature of the underwear possession and the possible explanation for the "drive by" incident are not frivolous; but, because we agree that defendant's failure to remain current with his sex-offender counseling, of which requirement defendant was well aware when he affixed his signature to the "Conditions of Supervised Probation" document, was a patent violation of a clear term of his probation, we need not and do not address the other two allegations upon which the magistrate based his decision. Failure to cooperate with the requirement that he attend sex-offender counseling could reasonably have been found by the magistrate to be a violation of defendant's probation. We therefore cannot say that the magistrate's determination that defendant violated the terms of his probation was arbitrary or capricious.
We have observed on another occasion that "[f]or people under the specter of probation, the failure to keep the peace at all times and remain on good behavior may result in the realization of stringent penalties." State v. Johnson, 899 A.2d 478, 481 (R.I.2006). This is one such instance. We conclude that the magistrate in this case did not err in determining that the behavior of the defendant amounted to a failure to abide by the terms of his probation, and we therefore uphold his decision.
Conclusion
Because we have determined that the magistrate did not act arbitrarily or capriciously in concluding that the defendant had violated a condition of his probation, *329 we affirm the judgment of the Superior Court. The papers in this case may be remanded to the Superior Court.
Justice FLAHERTY, dissenting.
I respectfully dissent from the opinion of the majority in this case. In doing so, I acknowledge that this is a close case, that the bar is low with respect to the quantum of proof required to demonstrate a probation violation, and that we afford significant deference to the hearing magistrate's decision. See State v. Waite, 813 A.2d 982, 984-85 (R.I.2003); State v. Pagan, 793 A.2d 1046, 1046-47 (R.I.2002) (mem.). Nevertheless, my review of the record in this case leads me to conclude that the hearing magistrate's finding of-violation was arbitrary and capricious.
There were three conditions attached to McCarthy's probation; he. was to: (1) register as a sex offender, (2) abide by an order of no contact with his victim, and (3) participate in sex-offender counseling. There has been no allegation whatsoever that he failed to comply with the first two conditions. With respect to the third condition, there is no question that McCarthy's attendance was not a model of consistency. However, there was ample testimony that McCarthy encountered financial and health problems, both of which became obstacles to his attendance. There was also testimony from his probation officer that requests for medical documentation were not met with McCarthy's full cooperation.
Notably, this bumpy road initially was not considered to be serious enough to justify violating McCarthy in the minds of either of two different probation officers who supervised him. The real problem did not arise until McCarthy had been dismissed from a particular group-therapy session, after he drove by the home of his drama therapists, Richard (a.k.a. Travis) and Elizabeth Merrell, and then told the program coordinator for the counseling agency that he was doing so. That is what sparked the notice of violation, and indeed, it is the only incident referred to in the Super. R.Crim. P. 32(f) notice that was filed on November 18, 2004. The reasons for alleging violation of McCarthy's probation were not amended to include technical noncompliance with a condition of probation sex-offender counseling until the hearing was to commence on June 14, 2005. At that time, in open court, the discovery of the female underwear also was added as a reason for violation.[8]
A probation-violation hearing has but one purpose to determine whether the probationer failed to keep the peace, was not of good behavior, or otherwise breached a condition of his probation. See State v. Forbes, 925 A.2d 929, 934 (R.I.2007); Waite, 813 at 985; State v. Znosko, 755 A.2d 832, 834 (R.I.2000). At the conclusion of the proceeding in the Superior Court, the hearing magistrate cited three possible transgressions by McCarthy that could result in a finding of violation: (1) the "drive by" of the counselors' home, (2) the discovery of female underwear in his coat lining when he was processed at the intake center of the Adult Correctional Institutions, where he was remanded after he was presented as an alleged violator of probation, and (3) his failure to attend counseling. Although the hearing magistrate specifically found the first two incidents not to be violations, he determined that the three incidents, in combination, amounted to a probation violation.[9]
With respect to McCarthy's failure to attend counseling to the satisfaction of his *330 probation officer, I find it troubling that before the "drive by" incident, McCarthy's lack of cooperation never occasioned the filing of a notice of violation. Equally troubling to me is the reasoning of the hearing magistrate, who combined two incidents that he specifically found not to be violations with an allegation of partial noncompliance with counseling to determine that McCarthy was a violator.
I also find the probation officers' failure to assist McCarthy in complying with the terms of his probation to be problematic. It is the function of probation counselors to work with offenders to aid them in becoming productive and law-abiding members of society. Individuals on probation have not been model citizens; indeed, that is why they are on probation and under the supervision of probation officers in the first place. Here, the evidence revealed that McCarthy enjoyed more success with his first therapist, Janice Conley, who was not a drama therapist, than he did with the Merrells. His noncompliance arose only after he was required to attend drama therapy with new counselors, and his situation was exacerbated by various financial and health obstacles. The probation officers did not work with McCarthy to overcome these obstacles and, not surprisingly, problems followed.
In summary, it is my opinion that the evidence in this case was not reasonably satisfactory to find McCarthy to be a violator of probation, and I believe that the hearing magistrate was arbitrary and capricious in finding a probation violation. I would, therefore, vacate the judgment of the Superior Court.
NOTES
[1] Rule 32(f) of the Superior Court Rules of Criminal Procedure provides as follows:
"The court shall not revoke probation or revoke a suspension of sentence or impose a sentence previously deferred except after a hearing at which the defendant shall be afforded the opportunity to be present and apprised of the grounds on which such action is proposed. The defendant may be admitted to bail pending such hearing. Prior to the hearing the State shall furnish the defendant and the court with a written statement specifying the grounds upon which action is sought under this subdivision."
[2] The Superior Court allowed Amanda to testify without her having to reveal her last name. However, her status as the coordinator of services for the Counseling and Psychotherapy Center was disclosed and is uncontested.
[3] Mr. Merrell's given name is Richard R. Merrell. He testified, however, that he uses the name "Travis" because it is "the name [he is] known by in the drama therapy community." Mr. Merrell's stated reason for his use of a different name was that, during his drama therapy training at Lesley College, "one of the challenges * * * was to pick a name because the name you pick for yourself is more important than the one people give you and I choose Travis." He testified that he conducts drama therapy sessions using that name.
[4] Although counsel for the state described the underwear as juvenile, the magistrate who presided at defendant's probation violation hearing described the printed underwear as "at least * * * feminine in nature," but he did not make a determination as to whether or not it was juvenile underwear.
[5] With respect to the subjective reactions of Amanda and Mr. Merrell, defense counsel stated: "If they felt threatened, they have a right to but that's not what you can base this violation on."
[6] With respect to Mr. McCarthy's explanation of the "drive by" incident on November 16, 2004, the magistrate described his story as "incredible," "ridiculous," and "self-serving."
[7] With respect to the state's contention on appeal that this Court is without jurisdiction to hear Mr. McCarthy's appeal, we do not deem that argument to have been sufficiently briefed for review by this Court. See generally Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n. 1 (R.I.2002).
[8] The transcript makes it clear that the violation was amended just prior to the hearing. However, the record contains only the original Super. R.Crim. Pro. 32(f) violation notice.
[9] The fact that McCarthy, a twice-convicted sex offender, had female undergarments in his possession is unsettling if not downright disturbing. It is, however, neither a violation of the law nor a breach of a condition of probation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560083/ | 20 So.3d 854 (2009)
MENDOZA
v.
STATE.
No. 2D09-4484.
District Court of Appeal of Florida, Second District.
October 19, 2009.
Decision Without Published Opinion Mandamus denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646814/ | 9 So.3d 586 (2007)
TERRY MICHAEL TILLIS
v.
STATE.
No. CR-06-0949.
Court of Criminal Appeals of Alabama.
June 22, 2007.
Decision of the Alabama Court of Criminal Appeal Without Opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560129/ | 20 So.3d 961 (2009)
Richard H. ELBERT, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 2D07-4896.
District Court of Appeal of Florida, Second District.
October 14, 2009.
Rehearing Denied November 17, 2009.
*962 Richard H. Elbert, Jr., pro se.
Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Richard Elbert filed a five-claim motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The postconviction court treated claim one under rule 3.800(a) and claims two through five under Florida Rule of Criminal Procedure 3.850 and denied all claims. We affirm as to claim one without further comment but reverse and remand as to claims two through five. We treat these latter claims as one claim alleging an involuntary plea due to the affirmative misadvice of counsel.
In January 1993, Elbert was convicted of multiple felonies grouped under seven case numbers. He was sentenced on all charges at one proceeding. For the second-degree felonies, he was sentenced as a habitual felony offender (HFO) to twenty-five years in prison, with twenty years suspended to be served on probation; for the third-degree felonies, he was sentenced to ten years, with five years suspended. These are true split sentences. See Poore v. State, 531 So.2d 161, 164 (Fla.1988), superseded by statute on other grounds as recognized in Crews v. State, 779 So.2d 492, 493-94 (Fla. 2d DCA 2000); see also § 948.01(6), Fla. Stat. (1991) (subsequently renumbered as § 948.012(1), see ch. 2004-373, § 4, Laws of Fla.). All sentences were concurrent.
In March 1995, Elbert violated his probation. Elbert entered a plea, and the court revoked Elbert's probation and sentenced him as an HFO to twenty years in prison for the second-degree felonies and, after a reduction, to five years in prison for the third-degree felonies. For all counts, the court checked the prison credit line item on the sentencing document that reads: "It is further ordered that the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing."
In the present proceeding, Elbert raised five claims in a "motion to correct illegal sentence." The postconviction court properly treated claims two through five under rule 3.850 because they allege, under oath, an involuntary plea and ineffective assistance of counsel at the revocation proceeding. See Hettick v. State, 977 So.2d 797, 798 (Fla. 2d DCA 2008). The court summarily denied the claims.[1]
In his motion, Elbert alleged that shortly before his projected release date, after he had served twelve and one-third years in prison, the Department of Corrections (DOC) performed a prerelease audit and postponed his release date from February 6, 2007, to November 17, 2011. He attached to his motion a copy of his internal grievance to DOC, in which he complained about a loss of gain time, and a copy of DOC's response, in which DOC informed him that prison credit as well as gain time *963 earned during his initial prison term was being removed.[2]
Claims two through five of Elbert's motion are variations on the same theme, with claims two and three alleging an involuntary plea and claims four and five alleging ineffective assistance of counsel. The gist of the claims, taken together, is that Elbert's plea upon violation of probation (VOP) was involuntary because counsel incorrectly informed him that his twenty-year VOP sentence "would effectively be a 15 year sentence" based on prison credit and gain time earned during his initial prison term. The postconviction court denied the claim, in part, on the ground that "forfeiture of accumulated gain time by DOC is a collateral consequence of a plea and neither the Court nor counsel must advise a defendant of this consequence for the plea to be valid."[3] However, "[a]ffirmative misadvice about even a collateral consequence of a plea constitutes ineffective assistance of counsel and provides a basis on which to withdraw the plea." Roberti v. State, 782 So.2d 919, 920 (Fla. 2d DCA 2001). Here, Elbert did allege that counsel advised him to take the twenty-year sentence because it would be reduced by prison credit and gain timea reduction that ultimately did not take place. As such, he raised a facially sufficient claim that his plea was involuntary due to affirmative misadvice.
*964 The postconviction court also attempted to refute Elbert's claim of prejudice from his counsel's misadvice by pointing out that if a consecutive two-year sentence for convictions not at issue here were subtracted from Elbert's current release date calculated by DOC,[4] he would effectively serve about fourteen years, a shorter sentence than the fifteen years his counsel advised him he would serve. However, the postconviction court's reasoning is based on an unfair comparison. Elbert's motion contrasts a fifteen-year sentence with a twenty-year sentence; both terms of years represent preliminary sentencesterms of years that Elbert would or did start out with, reducible by new gain time. The court contrasts a net sentence of fourteen years with a preliminary sentence of fifteen years. Such a comparison does not refute Elbert's claim.
Because claims two through five have not been conclusively refuted, we reverse and remand for an evidentiary hearing. To prevail at that hearing, Elbert "must demonstrate that counsel affirmatively misadvised him and that he would not have pleaded had he been properly advised." Roberti, 782 So.2d at 920.
Affirmed in part; reversed in part with instructions.
WHATLEY, KELLY, and WALLACE, JJ., Concur.
NOTES
[1] Even though the recent opinion of the Florida Supreme Court in Ey v. State, 982 So.2d 618 (Fla.2008), if applied here, might initially cast doubt on the timeliness of claims two and five, we nevertheless conclude that these claims are timely because in February 2007 when the motion was filed, Elbert could not have known of the new Ey rule. We therefore address the merits of these claims.
[2] DOC's revised determination of Elbert's sentence was apparently based on its review of the sentencing documents filled out by the court when it revoked Elbert's probation. How courts fill out postrevocation sentencing documents when the original sentence was a true split sentence has been a source of confusion. The court can impose the original full term of years as the postrevocation sentence, with credit for prison time already served on the nonsuspended component of the original sentence. The court awards this credit by checking the generic "prison credit" line item on the sentencing documents without specifying a certain number of days or years. Alternatively, the court may impose the suspended portion of the original underlying sentence with no credit for time served on the nonsuspended portion. The court may effect such a sentence by leaving the "prison credit" line item unchecked. The net result in terms of net incarceration time is the same under either variation. See Moore v. Stephens, 804 So.2d 575, 577 (Fla. 5th DCA 2002) (describing these two sentencing variations).
Confusion arises when the sentencing court imposes the suspended portion of the original underlying sentence but also checks off the generic "prison credit" line item. In this situation, the defendant, perhaps along with counsel, may believe that credit for time initially spent in prison will be applied. In practice, however, because the court has imposed the suspended portion of the original sentence, DOC applies no credit for prison time served under the original, nonsuspended, sentence. This court has concluded that a circuit court does not err in finding legal this method of effecting a sentence. See Pressly v. Tadlock, 968 So.2d 1057, 1059 (Fla. 2d DCA 2007); see also Roberts v. State, 702 So.2d 239 (Fla. 2d DCA 1997). It would thus appear that the revised prison term as determined by DOC in its prerelease audit was permissible. We note also that DOC acted within its discretion in revoking any gain time associated with Elbert's original, nonsuspended sentence. See §§ 944.28(1), 948.06(6), Fla. Stat. (1993); Eldridge v. Moore, 760 So.2d 888, 890-91 (Fla.2000).
[3] It should be noted that Elbert's claim concerns both prison credit and gain time. The postconviction court found that the DOC documentation attached to Elbert's motion "has failed to show that DOC has removed any of the time actually served by Defendant." This observation is not accurate. DOC noted the following in a memo to Elbert dated February 6, 2007, which he attached to his motion:
The following corrections were made during an audit.
Please review and advise.
PFX B: Reaudit per Roberts & orders of 9/98, 10/98, and 1/07 results in rechaining [sic] & removal of prison credit & application of Mayes/Bennett TRD changes from 7-13-07 to 11-17-2011....
(Emphasis added.)
[4] See § 944.275(3)(a), Fla. Stat. (2003) (requiring that DOC establish a "tentative release date" for each prisoner based on gain time earned going forward). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560132/ | 945 A.2d 261 (2008)
Joan PROCITO, Petitioner
v.
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, Respondent.
No. 2402 C.D. 2006.
Commonwealth Court of Pennsylvania.
Argued December 12, 2007.
Filed March 17, 2008.
*262 Katie R. Eyer, Philadelphia, for petitioner.
Gerard M. Mackarevich, Deputy Chief Counsel, Harrisburg, for respondent.
BEFORE: LEADBETTER, President Judge, and McGINLEY, Judge, and SMITH-RIBNER, Judge, and PELLEGRINI, Judge, and FRIEDMAN, Judge, and SIMPSON, Judge, and LEAVITT, Judge.
OPINION BY Judge SMITH-RIBNER.
Joan Procito petitions for review of an order of the Unemployment Compensation Board of Review (Board) that affirmed the decision of a Referee to deny Procito's request for benefits under Section 402(b) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) provides that a claimant is ineligible for benefits for any week in which his or her unemployment is due to voluntarily leaving work without a necessitous and compelling cause. Procito questions whether the Board erred in its construction of Section 402(b) as categorically excluding same-sex families; whether its construction violated the Equal Protection and Due Process Clauses of the Pennsylvania Constitution; and whether Procito was entitled to benefits if proper legal standards were applied. She additionally, or alternatively, questions whether the Board erred by failing to remand for further proceedings under 34 Pa.Code § 101.104(c).
I
After a hearing at which Procito and her domestic partner participated by telephone from Florida, the Referee issued a decision finding that Procito worked as a full-time financial manager and that she voluntarily resigned her job to follow her domestic partner to Florida because Procito was not financially able to maintain two separate households in two states. Her domestic partner moved to Florida to be near her son, who has a learning disability, and to seek a less stressful environment. The Referee stated that in order to receive benefits under the Law an individual must be legally married and that a domestic partner is not recognized within the definition of Section 402(b) of the Law. The Referee ruled that Procito had not proved that her voluntary separation was due to a necessitous and compelling cause. On review, the Board concluded that the Referee's decision was proper under the Law, adopted and incorporated his findings and conclusions, denied Procito's request for a remand and determined that she left her employment for personal reasons that were not necessitous and compelling under the Law.[1]
*263 Procito first argues that the Referee and the Board articulated only one reason for denying benefits, i.e., that Procito was not married to her life partner. Under Sections 1102, as amended, and 1704 of the Marriage Law, 28 Pa.C.S. §§ 1102 and 1704, however, same-sex couples are categorically prohibited from marrying or from having a marriage performed elsewhere recognized as valid in Pennsylvania. She notes, nonetheless, that the courts have recognized a need to make individualized determinations as to whether claimants had a necessitous and compelling cause for leaving their employment, citing cases including Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa.Cmwlth.2000) (approving benefits where father left his job in the South to move to Pennsylvania to provide needed emotional support to his troubled eleven-year-old son).
Procito maintains that the Board failed to make an individualized determination by holding that she was categorically prohibited from qualifying for benefits by virtue of her unmarried status. In addition, the Board appeared to apply precedent holding that unmarried heterosexual couples did not qualify for compensation under Section 402(b) of the Law to the context of unmarried same-sex couples. She refers to Nimitz v. Unemployment Compensation Board of Review, 699 A.2d 822 (Pa.Cmwlth.1997) (refusing to apply the "following the spouse" doctrine because there was no marriage, where a woman and child left to join a roommate or paramour who was transferred), and to Kurtz v. Unemployment Compensation Board of Review, 101 Pa.Cmwlth. 299, 516 A.2d 410 (1986) (refusing to apply the doctrine where there was no "family unit" because a woman left her job shortly before her marriage and, in any event, made no showing that circumstances required making a home elsewhere). Procito submits that the assumption that no family unit exists in the absence of marriage is simply erroneous in the context of same-sex couples, who may have true "family units" with all proper indicia.[2]
Extending Nimitz and Kurtz to same-sex families would violate the Equal Protection Clauses of the Pennsylvania Constitution, Article I, Sections 1 ("All men are born equally free and independent. . . .") and 26 ("Neither the Commonwealth nor any political subdivision thereof shall deny to any person the enjoyment of any civil right, nor discriminate against any person in the exercise of any civil right."). A facially discriminatory action such as the exclusion of unemployment benefits for same-sex families must be at least rationally related to some legitimate governmental purpose. See Kelley v. State Employees' Retirement Board, 593 Pa. 487, 932 A.2d 61 (2007), cert, denied, ___ U.S. ___, 128 S.Ct. 1260, ___ L.Ed.2d ___ (2008). The policy of the Law is to provide benefits to employees whose job is terminated through no fault of their own. See Section 3 of the Law, 43 P.S. § 752; Savage Unemployment Compensation Case, 401 Pa. 501, 165 A.2d 374 (1960). Moreover, Pennsylvania's public policy does not favor the general non-recognition of same-sex relationships. See Devlin v. City of Philadelphia, 580 Pa. 564, 862 A.2d *264 1234 (2004) (upholding validity of local ordinance requiring certain employers to provide employee benefits to employees' life partners on the same basis as those offered to employees' dependents, while emphasizing that life partnership is not the functional equivalent of a "marriage").[3]
Procito states that she left her job for a necessitous and compelling cause under the general standard. The Court repeated in Brown v. Unemployment Compensation Board of Review, 780 A.2d 885, 888 (Pa.Cmwlth.2001), the general standard to be met for showing necessitous and compelling cause: the claimant must establish that "circumstances existed which produced real and substantial pressure to terminate the claimant's employment; like circumstances would compel a reasonable person to act in the same manner; the claimant acted with ordinary common sense; and the claimant made a reasonable effort to preserve his or her employment." See also Beachem.
In Glen Mills Schools v. Unemployment Compensation Board of Review, 665 A.2d 561 (Pa.Cmwlth.1995), the Court stated the standard to show necessitous and compelling cause for leaving employment to follow a spouse: (1) the spouse elected to move for reasons beyond his or her control, and the decision to move was reasonable and made in good faith, and (2) the couple would face an economic hardship in maintaining two residences or the move has resulted in an insurmountable commuting problem. In her petitions for appeal, Procito elaborated that her partner's son has special needs and that he was starting college in the fall. In Beachem the Court recognized that providing emotional support for a child may be a compelling reason for a parent to relocate. Also, Procito satisfies the condition of showing economic hardship in maintaining two residences or an insurmountable commuting problem.
In the alternative, Procito argues that the Board should have remanded her case for further factual development. Under 34 Pa.Code § 101.104(c) the Board should remand whenever the appeal involves a material point on which the record below is silent or incomplete or appears to be erroneous or where it appears that there may have been a denial of a fair hearing. A Referee will be found to have denied a fair hearing to an unrepresented party where the Referee failed to "advise him as to his rights, aid him in examining and cross-examining witnesses, and give him every assistance compatible with the impartial discharge of [the tribunal's] official duties." 34 Pa.Code § 101.21(a). This includes assisting pro se claimants in developing the facts necessary for a decision. Lewis v. Unemployment Compensation Board of Review, 814 A.2d 829 (Pa.Cmwlth.2003). Procito maintains that the Referee did not assist but in fact obstructed Procito's efforts by stating that the Referee was "not concerned with" facts Procito was attempting to develop, Notes of Testimony (N.T.) p. 6, and that the Referee "wasn't going to *265 get into" an issue that Procito was discussing. Id. p. 7. The Referee advised that he was not there to make new law and failed to explore the nature of the relationship.
The Board first argues that it properly ruled that Procito was ineligible for benefits under the following the spouse doctrine because she was not legally married to her domestic partner. In multiple cases since the doctrine was adopted in Bliley Elec. Co. v. Unemployment Compensation Board of Review, 158 Pa.Super. 548, 45 A.2d 898 (1946), the courts have consistently ruled that the doctrine applies only to legally married couples. Most recently this Court restated that proposition in Nimitz, which did not turn on a finding of no "family unit" but rather on a finding of no marriage. The Board states that it properly complied with recent legislative intent as expressed in Section 1704 of the Marriage Law not to take an expansive approach to marriage. It challenges Procito's characterization of Devlin, arguing that the Supreme Court held that municipalities may confer limited benefits upon same-sex couples that do not begin to reflect the rights and obligations of marriage.
The Board also disputes the argument that it violated equal protection by applying the Nimitz and Kurtz precedent to same-sex couples. In Kramer v. Workers' Compensation Appeal Board (Rite Aid Corp.), 584 Pa. 309, 883 A.2d 518 (2005), the Supreme Court stated that legislative classifications are permissible if they are reasonable rather than arbitrary and bear a relationship to the object of the legislation. The rational basis test is properly employed in an equal protection analysis of social legislation. Id. As in Bievenour v. Unemployment Compensation Board of Review, 42 Pa.Cmwlth. 616, 401 A.2d 594 (1979), the state has a legitimate interest in protecting the limited assets of the Unemployment Compensation Fund and the prohibition advances that interest as well as furthering administrative convenience and finality. Procito was afforded due process in that she received notice and an opportunity to be heard through established adjudicatory procedures.
With regard to the denial of a remand, the Board notes that although 34 Pa.Code § 101.21(a) requires rendering assistance to an uncounseled claimant, a referee should not become a claimant's advocate. The Court will reverse a decision to grant or to deny remand only for an abuse of discretion. Fisher v. Unemployment Compensation Board of Review, 696 A.2d 895 (Pa.Cmwlth.1997). The Referee questioned Procito about her reasons for quitting and gave her the opportunity to call and to question her witness. Testimony and proposed testimony about why her partner quit her job was irrelevant. Finally, Procito would not be entitled to benefits even if the following the spouse doctrine were applied because the necessity to relocate must be caused by circumstances beyond the control of the spouse and must not be a matter of personal preference. A personal preference is not necessary or compelling. Hammond v. Unemployment Compensation Board of Review, 131 Pa. Cmwlth. 166, 569 A.2d 1013 (1990) (holding that wife's move to Oregon was a matter of personal preference, and husband's leaving work and following to preserve the family was not for necessitous and compelling cause).[4]
*266 II
Several standard principles govern the Court's disposition of this case. First, the burden of proof is on a claimant who voluntarily terminates employment to prove that the termination was for a necessitous and compelling cause, and whether the claimant has such cause is a question of law subject to review by the Court. Johnson v. Unemployment Compensation Board of Review, 869 A.2d 1095 (Pa. Cmwlth.2005). If an employer fails to offer evidence regarding availability of continuing work, for example, the claimant is not automatically granted benefits because the claimant still must establish necessitous and compelling cause. Id. Second, when faced with a case raising constitutional and non-constitutional grounds, a court must decide the matter on non-constitutional grounds and avoid constitutional questions if possible. Dauphin County Social Services for Children and Youth v. Department of Public Welfare, 855 A.2d 159 (Pa.Cmwlth.2004).
Based on the foregoing principles, the Court must reach the question of whether the Board unconstitutionally denied benefits to Procito based upon the absence of a marriage only if, assuming that the following the spouse doctrine applies, Procito otherwise meets its requirements. Moreover, the rule is firmly established that this Court may affirm the tribunal below on different grounds if the Court agrees with the result reached below. See City of Philadelphia v. Fraternal Order of Police, Lodge No. 5, 777 A.2d 1206 (Pa.Cmwlth.2001).
Under Glen Mills Schools, Hammond and numerous other cases, in a following the spouse case the reason for the spouse's relocation must be beyond the spouse's control and not a matter of personal preference. In this case, as the Referee correctly perceived, the circumstances of Procito's partner's separation from her employment are irrelevant. That is the topic as to which the Referee expressed no interest, and his comments did not obstruct presentation of relevant evidence. The case of whether the partner had necessitous and compelling cause to quit is not before the Court, and the mere fact of her separation from employment in Pennsylvania did not constitute reason beyond her control to move to Florida. Once the partner separated from her job, she decided to move to Florida to seek work in a less stressful environment and to be near her son. These admitted facts show that the partner did not originally decide to leave work and move to Florida because the son needed her, and Procito offered no such proof.
Procito testified that the main reason her partner left her job was the ongoing stress, and they then decided to coordinate moving to Florida to a less stressful environment "and as an additional reason" to be closer to the son. N.T. p. 10. The son, however, was an adult starting at a college of his choice. This is not a case such as Beachem where a young son's behavioral problems had been shown to be improved *267 markedly by his father's presence. Procito's partner left her job primarily because of ongoing stress, and she and Procito decided to move to a less stressful environment, in; Florida and to be closer to the partner's son who was to attend school there. The partner's decision to relocate to Florida was a matter of personal preference, which would preclude a determination by the Board or this Court that Procito had a necessitous and compelling cause to follow. Hammond.
The Court's review establishes that Procito simply failed to meet her burden to prove that she terminated her job for a necessitous and compelling cause, i.e., that existing circumstances produced real and substantial pressure to quit, that like circumstances would compel a reasonable person to do the same, that she acted with ordinary common sense and that she made a reasonable effort to preserve her job. Brown. As a consequence, and based on this record, the Court need not address any constitutional issues that Procito raised inasmuch as this case certainly can be decided on non-constitutional grounds. Dauphin County Social Services for Children and Youth. The facts are straightforward, and the law is clear. In addition, the Court finds no merit to Procito's argument that the Board erred in denying a remand when there is no indication in the record that the Board abused its discretion in this regard. Fisher. The Referee allowed Procito to testify and otherwise performed the duties required of the Referee under 34 Pa.Code § 101.21. Under these circumstances, the Court must affirm the order of the Board.
ORDER
AND NOW, this 17th day of March, 2008, the decision of the Unemployment Compensation Board of Review is affirmed.
CONCURRING OPINION BY Judge PELLEGRINI.
Both the majority and Judge Friedman's dissenting opinion discuss at length the "follow the spouse" doctrine, while, at oral argument, counsel for Joan Procito (Claimant) only argued that her domestic circumstances were such that she had a necessitous and compelling reason to quit work. The Board does not disagree with that proposition, stating that she could have been eligible for benefits under Section 402(b) of the Act, but she had not set forth evidence under any theory that would have allowed for recovery. Because I agree with the Board that she has not established that she had a right to recovery, under any theory, [including the "follow the spouse" doctrine], I concur with the majority that the Claimant is ineligible for unemployment compensation benefits.
The facts here are not in dispute. Claimant worked as a full-time financial manager for Cushman and Wakefield of Pennsylvania (Employer) making $66 per hour. Claimant resigned on July 31, 2006 to follow her domestic partner to Florida. Claimant's domestic partner found her job in Pennsylvania to be stressful and decided to relocate to Florida to be near her adult son, who was enrolled in college but had a learning disability. Claimant testified that she resigned her position and relocated to Florida because she was not financially able to maintain two separate households in two states.
In Wallace v. Unemployment Compensation Board of Review, 38 Pa.Cmwlth. 342, 393 A.2d 43 (1978), we struck down an absolute prohibition contained in the Unemployment Compensation Act prohibiting a claimant who voluntarily received benefits because of the marital, filial or domestic reasons, stating that:
*268 Because the absolute disqualification by Section 402(b)(2)(II)[1] of all unemployment compensation claimants who voluntarily terminate their employment for marital, filial or domestic reasons bears no rational relationship to a legitimate legislative purpose, it violates the Equal Protection Clause of the United States Constitution; because it denies such claimants individualized determinations of their entitlement to a significant property right when the administrative inconvenience of providing such determinations is negligible, it violates the Due Process Clause.
393 A.2d at 47.
Once the absolute prohibition against awarding benefits for marital, filial or domestic reasons was found to be unconstitutional, unemployment benefits could be awarded to care for a child, to follow a family member or other member of a household that moved or any other domestic reason that created necessitous and compelling reasons that justified a claimant to quit his or her employment. See also Truitt v. Unemployment Compensation Board of Review, 527 Pa. 138, 589 A.2d 208 (Pa.1991).
In Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa. Cmwlth.2000), a case concerning whether a father who voluntarily terminated his employment in another state to return to Pennsylvania to care for his emotionally and behaviorally disturbed child was eligible for benefits. In holding that he was eligible for benefits, we set forth the standard that a claimant must meet to be eligible for benefits when he or she voluntarily left employment for domestic reasons:
A cause of a necessitous and compelling nature exists where there are circumstances that force one to terminate his employment that are real and substantial and would compel a reasonable person under those circumstances to act in the same manner. Livingston v. Unemployment Compensation Board of Review, 702 A.2d 20 (Pa.Cmwlth.1997). As stated by the Supreme Court in Taylor v. Unemployment Compensation Board of Review, 474 Pa. 351, 359, 378 A.2d 829, 833 (1977), quoting from the Sturdevant Unemployment Compensation Case, 158 Pa.Super. 548, 557, 45 A.2d 898, 903 (1946):
A worker's physical and mental condition, his personal and family problems, the authoritative demand of legal duties-these are circumstances that exert pressure upon him and imperiously call for decision and action.
When therefore the pressure of real not imaginary, substantial not trifling, reasonable not whimsical, circumstances compel the decision to leave employment, the decision is voluntary in the sense that the worker has willed it, but involuntary because outward pressures have compelled it. Or to state it differently, if a worker leaves his employment when he is compelled to do so by necessitous *269 circumstances or because of legal or family obligations, his leaving is voluntary with good cause, and under the act he is entitled to benefits.
760 A.2d at 71.
In this case, there is no evidence that Claimant's domestic situation caused her to leave her employment and relocate to Florida. All evidence indicates that her domestic partner moved to Florida to be with her son in college because she wanted to, not because they needed to. This is clearly a personal choice and not a domestic reason that constitutes a necessitous and compelling reason to justify the award of benefits. Accordingly, I concur with the majority that Claimant is ineligible for benefits.
Judges McGINLEY, SIMPSON and LEAVITT did not join in this concurring opinion.
CONCURRING OPINION BY Judge LEAVITT.
I concur in the majority opinion. I write separately because I believe that Wallace v. Unemployment Compensation Board of Review, 38 Pa.Cmwlth. 342, 393 A.2d 43 (1978), was wrongly decided.
Unemployment compensation was initially established to provide a safety net for persons who lost their job, either temporarily or permanently, because of economic factors beyond their control, such as a recession or a plant closing. Unemployment compensation benefits were intended to bridge the gap for these persons while they sought alternate employment. At some point the General Assembly expanded the program to provide this economic bridge to persons who lost their job for compelling job-related reasons, such as on the job discrimination or harassment or an employer's illegal recording of telephone calls. Wallace, 393 A.2d at 46. However, the General Assembly also made it clear that leaving a job for compelling, but not job-related reasons, did not entitle one to benefits. Specifically, leaving a job to follow a spouse or to care for a parent or child did not entitle one to benefits.
Using the rational relationship test, this Court in Wallace found the domestic reason exclusion from benefits to violate principles of equal protection.[1] The decision was reached by a four to three vote, with one of the four votes a concurrence in the result. More important than the close vote is the fact that the jurisprudence expressed in Wallace is dated and not consistent with more recent holdings of the United States and Pennsylvania Supreme Courts. Economic legislation nearly always survives a rational relationship challenge. See, e.g., Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977); Prince v. Unemployment Compensation Board of Review, 832 A.2d 583 (Pa.Cmwlth.2003).
The General Assembly revised the Unemployment Compensation Law to eliminate the statutory provision struck down in Wallace. Accordingly, leaving a job for non job-related, domestic reasons does not render one ineligible for unemployment compensation benefits. Now we have a statutory scheme whereby judges decide what domestic reason for leaving a job qualifies one for benefits. Since we judges have decided the contours of the follow-the-spouse doctrine, we are free to change that doctrine to include couples that are unmarried, whether by choice or compulsion. *270 I believe, however, that the General Assembly, not judges, should make the hard policy decisions on eligibility. Legislators have access to all kinds of relevant information that courts do not have, and they, not judges, are best suited to deciding when an expansion of benefits is appropriate, fair and affordable.
DISSENTING OPINION BY Judge FRIEDMAN.
I respectfully dissent. The majority holds that: (1) the Unemployment Compensation Board of Review (UCBR) did not err in refusing to remand this case for additional evidence relating to the circumstances under which Joan Procito's (Claimant) domestic partner left her employment and moved to Florida because the "following spouse doctrine" does not apply to unmarried same-sex couples;[1] (2) assuming that the "following spouse doctrine" does apply, Claimant would be ineligible for benefits because Claimant failed to prove that her domestic partner's decision to leave her employment and move to Florida was caused by circumstances beyond her control; and (3) because Claimant did not meet that burden, it is not necessary to determine whether the UCBR's failure to apply the "following spouse doctrine" to Claimant's same-sex family violated Claimant's equal protection rights. (Majority op. at 260.) For the following reasons, I cannot agree.
I. Refusal to Remand
In this case, the UCBR, which adopted the determination of the referee, made only four findings of fact.
1. The claimant worked from July 11, 2005 through July 31, 2006, as a full-time Financial Manager for Cushman & Wakefield of Pennsylvania, Inc. The claimant earned $66.00 an hour.
2. The claimant voluntarily resigned her position to follow her domestic partner to Florida.
3. The claimant's domestic partner relocated to Florida in order to be near her son, who has a learning disability.
4. The claimant resigned her position and relocated to Florida because she was not financially able to maintain two separate households in two states.
(Findings of Fact, Nos. 1-4.) Based on these four findings, the UCBR then determined that Claimant was ineligible for benefits under section 402(b) of the Unemployment Compensation Law (Law)[2] because, "unfortunately,"[3] unless Claimant is legally married to her domestic partner, she cannot prove a necessitous and compelling reason for leaving her employment. (Referee's op. at 2); see Kurtz v. Unemployment Compensation Board of Review, 101 Pa.Cmwlth. 299, 516 A.2d 410 (1986) (holding that the "following spouse doctrine" *271 does not apply to an unmarried heterosexual couple because, until there is a marriage, there is no family unit), appeal denied, 516 Pa. 644, 533 A.2d 715 (1987); see also Nimitz v. Unemployment Compensation Board of Review, 699 A.2d 822 (Pa.Cmwlth.1997) (relying on Kurtz to hold that the "following spouse doctrine" does not apply to an unmarried heterosexual couple with children).
The majority agrees that the "following spouse doctrine" does not apply to unmarried couples, but, in order to avoid addressing the constitutional question raised by Claimant on appeal, the majority actually applies the doctrine in this case.[4] The majority's conclusion is that Claimant failed to prove that her domestic partner left her job and moved to Florida due to circumstances beyond her control. However, Claimant attempted to present evidence on that very issue, but the referee would not allow it, believing that the "following spouse doctrine" did not apply and that the circumstances of her partner's separation were irrelevant.[5] It is a clear violation of Claimant's due process rights for the majority to apply the "following spouse doctrine" on appeal when the referee would not allow Claimant a full and fair opportunity to be heard on the matter.
Moreover, the majority's conclusion, i.e., that Claimant failed to meet her burden of proving that her domestic partner quit due to circumstances beyond her control, is based on testimony that the UCBR never used to formulate a finding of fact.[6] Within this court's limited scope of review, this court may examine testimony to determine whether findings of fact are supported by substantial evidence, but this court may not examine testimony for the purpose of making findings of fact. See Platz v. Unemployment' Compensation Board of Review, 709 A.2d 450 (Pa.Cmwlth.) (stating that the exclusive role of fact-finder belongs to the UCBR), appeal denied, 556 Pa. 699, 727 A.2d 1125 (1998); section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Thus, in my view, the majority cannot avoid the constitutional issues by applying the "following spouse doctrine."
II. Necessitous and Compelling Cause
A cause of necessitous and compelling nature exists where real and substantial circumstances force a claimant to terminate her employment and would compel a reasonable person to act in the same manner. *272 Beachem v. Unemployment Compensation Board of Review, 760 A.2d 68 (Pa. Cmwlth.2000). If a claimant leaves employment when compelled to do so by family obligations, the claimant is entitled to benefits. Id.
A. "Following Spouse Doctrine"
Where a claimant leaves work to accompany a spouse to a new locality, the following spouse is entitled to benefits if he or she shows that: (1) there was an economic hardship in maintaining two residences or that the move caused an insurmountable commuting problem; and (2) the spouse's relocation was caused by circumstances beyond the control of the spouse and was not brought about by purely personal preference. Wheeler v. Unemployment Compensation Board of Review, 69 Pa.Cmwlth. 201, 450 A.2d 775 (1982).
The "following spouse doctrine" does not apply to unmarried heterosexual couples because there can be no family unit absent a marriage, even where a child is involved. Kurtz; Nimitz. In other words, the only type of heterosexual family unit recognized by this court for purposes of the "following spouse doctrine" is one within the bounds of marriage.[7] To be clear, this court believes that unmarried heterosexual couples with children, who live together and support one another like families, are not really "families." Thus, whenever this court discusses preservation of the family unit in "following spouse doctrine" cases, this court really is talking about preservation of the marriage.
While preservation of the family unit [i.e., marriage,] does not, in and of itself, give rise to necessitous and compelling reason . . . we are not indifferent to its social desirability. Moreover, in the absence of statutory language mandating such application, we are disinclined to interpret the Law in a way which tends to be disruptive to family [i.e., marital,] unity.
Stevens v. Unemployment Compensation Board of Review, 81 Pa.Cmwlth. 239, 473 A.2d 254, 257 (1984) (citation omitted) (awarding benefits because, although the marriage ultimately failed, the claimant made a good faith effort to keep the family/marriage together).
Clearly, then, heterosexuals who have chosen to raise a family outside the bounds of marriage are not entitled to benefits under the "following spouse doctrine." Nimitz. However, this case is not about a heterosexual couple that made such a choice. This case is about a same-sex couple who would choose to raise a family within the bounds of marriage but may not legally do so. Whether this court should apply the "following spouse doctrine" to same-sex families, where marriage is not an option, is a question of first impression.
B. No Specific Exclusion
In 1953, section 402(b) of the Law specifically excluded necessitous and compelling cause claims based on marital, filial and domestic circumstances; however, that exclusion was repealed in 1955. See Pittsburgh Pipe and Coupling Company v. Unemployment Compensation Board of Review, 401 Pa. 501, 165 A.2d 374 (1960). Recognizing the repeal of the statutory exclusion, our supreme court stated:
In determining whether . . . facts exist [of a necessitous and compelling reason for leaving employment based on marital, *273 filial or domestic circumstances], the test is not whether the claimant has taken himself out of the scope of the [Law], but whether the [Law] specifically excludes him from its provisions. That is what is meant by a liberal and broad construction.
Id. at 509, 165 A.2d at 378 (emphasis added). In other words, if the legislature intended to exclude a specific necessitous and compelling cause claim, the legislature knew how to place the exclusion in the Law.
Section 402(b) of the Law no longer specifically excludes necessitous and compelling cause claims based on marital, filial or domestic circumstances. Thus, any type of necessitous and compelling cause claim based on domestic circumstances is permitted, even a claim based on the domestic circumstances of same-sex families. The "following spouse doctrine" is a type of necessitous and compelling cause claim based on marital and/or domestic circumstances. Because the statute does not limit such claims, the courts cannot limit such claims. Id.
C. In Loco Parentis
Our supreme court has stated that the rights and liabilities arising out of an in loco parentis relationship are exactly the same as between parent and child. T.B. v. L.R.M., 567 Pa. 222, 786 A.2d 913 (2001). The phrase in loco parentis refers to a person who puts himself or herself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.[8]Id. In Pennsylvania, a same-sex domestic partner may seek partial custody of a child based on the doctrine of in loco parentis. Id. This is based on the fact that a child may establish strong psychological bonds with an individual who, although not a biological parent, has lived with the child and provided care, nurture and affection to the child, assuming in the child's eyes a stature like that of a parent. Id. Thus, in every case, the paramount consideration is the best interests of the child. Id.
Inasmuch as our supreme court has recognized the bonds that unite same-sex families, even without the benefit of legal marriage, it would be absurd to suggest that same-sex families do not experience the same real and substantial pressure that traditional families experience when one parent must relocate due to circumstances beyond his or her control. Here, Claimant presented evidence indicating that her domestic partner has "sons," not just the special needs son attending college, and that Claimant has been "an integral part of the raising of [those] sons."[9] (O.R., Item No. 5, ex. 3.) Thus, although Claimant cannot be legally married to her domestic partner, I would consider Claimant's family to be a real family and apply the "following spouse doctrine" in this *274 case.[10]
III. Equal Protection
In my view, the UCBR's failure to apply the "following spouse doctrine" because Claimant is not married to her domestic partner violates Claimant's equal protection rights. The essence of equal protection under the law is that like persons in like circumstances will be treated similarly. Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). Of course, the right to equal protection does not absolutely prohibit the classification of individuals for the purpose of receiving different treatment, provided that the classification is reasonable rather than arbitrary, i.e., the classification must rest upon some ground of difference that justifies the classification. Id.
In Wallace v. Unemployment Compensation Board of Review, 38 Pa.Cmwlth. 342, 393 A.2d 43 (1978), this court held that the exclusion of necessitous and compelling cause claims based on marital, filial or domestic, i.e., family, circumstances violates equal protection rights. Likewise, here, the exclusion of a necessitous and compelling cause claim under the "following spouse doctrine" based on Claimant's marital status violates her equal protection rights.
The UCBR contends that, although section 402(b) of the Law does not classify claimants based on their marital status for purposes of a necessitous and compelling cause claim, courts may do so under the "following spouse doctrine" in order to protect the limited assets of the unemployment compensation fund. (See majority op. at 7.) However, in Wallace, this court rejected the same argument as patently arbitrary. See Wallace. To reiterate, the pressures that create necessitous and compelling cause under the "following spouse doctrine" are real and substantial whether the claimant is married or not. There is simply no difference that would justify dissimilar treatment.
Accordingly, I would vacate and remand for further proceedings and, ultimately, application of the "following spouse doctrine."
NOTES
[1] The Court's review is to determine whether there was a constitutional violation or an error of law, whether any practice or procedure of the Board was not followed and whether necessary findings of fact are supported by substantial evidence. Glenn v. Unemployment Compensation Board of Review, 928 A.2d 1169 (Pa.Cmwlth.2007). In unemployment compensation proceedings, the Board is the ultimate fact finder, and it is empowered to resolve all conflicts in the evidence and to determine the credibility of witnesses. Brannigan v. Unemployment Compensation Board of Review, 887 A.2d 841 (Pa.Cmwlth.2005).
[2] Procito points out that other courts have recognized in comparable contexts that the prohibition on marriage fundamentally distinguishes cases involving unmarried heterosexual and same-sex couples. She cites, among others, Alaska Civil Liberties Union v. Alaska, 122 P.3d 781 (Alaska 2005) (recognizing this distinction and holding that "spousal limitations" in state and local programs such as employee life and health insurance and death benefits could not survive even minimum scrutiny under Alaska's Equal Protection Clause and were invalid).
[3] Similarly, Procito argues that extending Nimitz and Kurtz to same-sex families would violate the Due Process Clauses of Article I, Sections 1 and 11 of the Pennsylvania Constitution. She argues that adopting a construction of Section 402(b) of the Law that categorically excludes same-sex couples from being able to establish the "necessitous and compelling" nature of their reasons for leaving employment would create an "irrebuttable presumption," which would deprive them of the "meaningful opportunity to be heard" guaranteed by Due Process. See Department of Transportation, Bureau of Driver Licensing v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996) (holding that one-year license suspension based on single epileptic seizure, without opportunity to present evidence of fitness, created irrebuttable presumption in violation of due process rights).
[4] In a reply brief Procito asserts that absence of marriage was the sole reason for the Board's decision. She states that the text of Section 402(b) of the Law does not mention marital status of a claimant, and Section 1704 of the Marriage Law does not apply because Procito and her partner are not seeking recognition of a marriage. After restating equal protection and due process arguments, she contends that the Board made no alternate holding, when in fact the Board did determine that Procito failed to prove that she quit due to a necessitous and compelling cause. She asserts, as well, that the Court should conclude that any arguments concerning the adequacy of the reasons for Procito's partner's relocation were waived by virtue of the employer's failure to raise the issue. She cites Wing v. Unemployment Compensation Board of Review, 496 Pa. 113, 436 A.2d 179 (1981) (holding that an employer's theory of termination for willful misconduct rather than voluntary quit, raised for the first time before the Commonwealth Court, was waived). Procito's argument lacks merit as it is her burden to prove this point; it is not something that the employer may waive.
[1] Section 402(b)(2)(II) stated at that time: "An employe shall be ineligible for compensation for any week . . . (2) In which his or her unemployment is due to leaving work (I) to accompany or to join his or her spouse in a new locality, or (II) because of a marital, filial or other domestic obligation or circumstance, whether or not such work is in `employment' as defined in this act: Provided, however, That the provisions of this subsection (2) shall not be applicable if the employe during a substantial part of the six months either prior to such leaving or the time of filing either an application or claim for benefits was the sole or major support of his or her family, and such work is not within a reasonable commuting distance from the new locality to which the employe has moved." The provision was repealed in 1980.
[1] Finding the legislation's eligibility standards to violate equal protection, this Court went on to find an ancillary due process violation, holding that each unemployed person had the right to prove his reasons for leaving a job, whether domestic or job-related, to be compelling.
[1] Under the "following spouse doctrine," where a claimant leaves work to accompany a spouse to a new locality, the following spouse must show an economic' hardship in maintaining two residences or that the move has caused an insurmountable commuting problem. Wheeler v. Unemployment Compensation Board of Review, 69 Pa.Cmwlth. 201, 450 A.2d 775 (1982). The following spouse also must show that the spouse's relocation was caused by circumstances beyond the control of the spouse and was not brought about by purely personal preference. Id.
[2] Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). Section 402(b) of the Law provides that a claimant is ineligible for benefits for any week in which her unemployment is due to leaving work without a necessitous and compelling cause. 43 P.S. § 802(b).
[3] It is apparent that the UCBR believed that, if Claimant had been legally married, she would have met her burden of proving necessitous and compelling cause under the "following spouse doctrine."
[4] On the one hand, the majority states that evidence to prove the "following spouse doctrine" is completely irrelevant; on the other hand, the majority concludes that Claimant did not present sufficient evidence to prove the elements of the "following spouse doctrine." This places Claimant in a "Catch-22" situation, giving her a burden that is impossible to meet.
[5] A referee must give a pro se claimant every assistance that is compatible with the impartial discharge of official duties. 34 Pa.Code § 101.21(a). This means that a referee must help a pro se claimant adequately develop the facts necessary for a decision. Lewis v. Unemployment Compensation Board of Review, 814 A.2d 829 (Pa.Cmwlth.2003). The majority states that Claimant failed to prove that her domestic partner's son needed her in Florida. (Majority op. at, 9.) However, because the referee believed it was irrelevant, the referee made no inquiries about the son's special needs or how the presence of Claimant's domestic partner in Florida would alleviate them.
[6] For example, the majority relies on a portion of Claimant's testimony to find that the domestic partner's main reason for leaving her job was stress. (Majority op. at 9.) While giving credence and weight to that testimony, the majority gives no credence or weight to Claimant's testimony that job stress had an adverse effect on her domestic partner's health. (N.T. at 10.) Of course, only the UCBR can determine the credibility and weight of evidence.
[7] This court recognizes unmarried, heterosexual, single-parent families for other purposes in determining necessitous and compelling cause. See Beachem (holding that a single father who relocated to care for an eleven-year-old son with emotional and behavioral problems had a necessitous and compelling reason for leaving his employment).
[8] I note that an individual may legally adopt the child of her same-sex partner where it would be in the best interests of the child. In Re: Adaption of R.B.F., 569 Pa. 269, 803 A.2d 1195 (2002).
[9] The mere fact that the domestic partner's son is an adult child with special needs does not preclude an inquiry, on remand, into i.e., whether it is in the best interests of that child for his birth mother to leave her employment, i.e., whether the best interests of the child create necessitous and compelling cause to leave employment. The age of the child is irrelevant; indeed, the person with special needs could be an elderly parent or sibling. Moreover, should the UCBR find that Claimant is in loco parentis with her domestic partner's son, so that the Claimant stands in the shoes of a parent, I submit it would be appropriate to apply the "following spouse doctrine."
[10] The majority fails to consider the "best interests of the child" doctrine, which motivates and controls family law. If Claimant were to prove that she has provided care, shelter, nurture and affection to the children of her domestic partner, then Claimant and her partner have a real family, and, in a real family, the best interests of a child can create necessitous and compelling cause for leaving employment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560136/ | 403 F.Supp. 1235 (1975)
Katie RELF, Individually and on behalf of persons similarly situated, et al., Plaintiffs,
v.
F. David MATHEWS et al., Defendants.
NATIONAL WELFARE RIGHTS ORGANIZATION, Plaintiff,
v.
F. David MATHEWS et al., Defendants.
Civ. A. Nos. 1557-73, 74-243.
United States District Court, District of Columbia.
October 22, 1975.
*1236 *1237 Joseph J. Levin, Jr., Morris S. Dees, Jr., Montgomery, Ala., Frederick D. Palmer, Washington, D. C., for plaintiffs in 1557-73.
Thomas G. Corcoran, Jr. Asst. U. S. Atty., Washington, D. C., for defendants in both cases.
Leonard H. Becker, Lois J. Schiffer, Charles R. Halpern, Washington, D. C., for plaintiff in 74-243.
MEMORANDUM ON REMAND
GESELL, District Judge.
These proceedings were initiated by the complaint filed in Civil Action No. 1557-73 on July 31, 1973. After extensive discovery and pretrial motions these consolidated matters were heard on plaintiffs' motions for summary judgment and a cross-motion by defendants to dismiss both actions. The Court filed a Memorandum Opinion and Order on March 15, 1974 (372 F.Supp. 1196 (D. D.C.1974)), granting judgment for plaintiffs. A stay was denied first by this Court and then by the United States Court of Appeals for the District of Columbia Circuit. Defendants appealed. Plaintiffs moved in the Court of Appeals for summary affirmance and defendants moved for summary affirmance "with modifications." On April 18, 1975, the Court of Appeals, per curiam, retained jurisdiction but remanded with the following limited specific direction:
FURTHER ORDERED by the Court that the record is remanded to the District Court for consideration of the proposed modifications.
The modifications would entail a reversal of part of Judge Gesell's order. Before such a course can be considered, we feel it is necessary to have a statement of the District Court's reasons for accepting or rejecting the proposed regulations.
Extensive proceedings have since been under way. Plaintiffs oppose the modifications as contrary to law, impractical and unmanageable, pointing, among other things, to serious deficiencies which have occurred in defendants' enforcement of the existing order which has been in effect now more than eighteen months. The issue on remand is now before the Court after considering numerous briefs, affidavits and several volumes of documents developed mainly through discovery since remand.
The Court originally held, inter alia, that the Secretary's regulations were invalid insofar as they authorized sterilization of persons who were legally incompetent under state law by reason of age or mental condition. In adopting the varying state standards the Court sought to implement the clear congressional intent that sterilization, an irreversible process, would be federally funded only for persons having the necessary capacity to decide voluntarily and free of coercion. Pending appeal the defendants have gone further than required by the decree and across-the-board have barred all sterilizations of persons under age 21 and sterilization of any person mentally incompetent under state law.
The modifications, first proposed in the Court of Appeals, are designed to substitute a universal federal standard of voluntariness which, under various *1238 conditions and procedures to be outlined, will permit sterilization of persons 18 years of age and older even where such persons are otherwise incompetent in fact because of age or mental condition under state standards. The modifications appear to contemplate the following:
The proposed regulations apply to nontherapeutic sterilizations, whereas, with limited exception, the Court contemplated that all sterilizations, except emergency cases, would have to meet the test of voluntariness and informed, noncoerced consent.
The proposed regulations would permit nontherapeutic sterilizations of persons adjudicated incompetent where (i) an interviewer certifies that the patient appears to understand an explanation of the procedure, voluntarily requests the service, and has given his or her informed consent; (ii) a physician certifies that the patient has voluntarily accepted the physician's service; and (iii) a committee (a) determines that the patient has voluntarily requested the sterilization and given his or her informed consent, and (b) certifies that the patient appears to understand specified information about the sterilization. If under state law, the approval of a parent or guardian is required to perform a medical procedure on the adjudicated incompetent, such consent appears to be necessary before a nontherapeutic sterilization may be performed with federal funds.
In addition, if the adjudicated incompetent is institutionalized, a state court of competent jurisdiction must approve the sterilization "to assure that the requirements" of the proposed regulations and of any other applicable state and federal laws are met. A person adjudicated incompetent by a state court who is not institutionalized may be sterilized without any subsequent adjudication by that court that he or she has the capacity to consent to the operation and generally no court approval is required.
It is not disputed that the intrusion on the individual caused by the federal program is one that must be closely supervised, and adequate protections must be afforded to comport with the specific statutory intent and to prevent constitutional difficulties. Family planning through sterilization is a growing and now far-reaching phenomenon. It is an effective, permanent and relatively simply way to prevent childbirth. Its widespread use has profound social, economic and, to many, religious significance. The congressional directive that sterilizations financed by the Federal Government must be voluntary is a requirement that should not be lightly treated. Where minors or mental incompetents are involved, adequate safeguards must be developed to prevent abuses that this record shows frequently occur through overzealous physicians, hospital employees and social workers, or because of ignorance of the regulatory scheme.
An act is voluntary if it is intentional and not induced by coercion. An agreement to be sterilized is a contract. To enter into such a contract an individual must have the legal and mental capacity to decide what is truly in his or her own interest. Throughout modern history civilized government has provided special safeguards for those whose age or mental condition suggests inability to make decisions objectively in their own best interests. These safeguards are especially appropriate where the Federal Government is financing an intrusion on a citizen's body which has a permanent effect on the reproductive process. Part of the present difficulty results from the fact that HEW is not sufficiently funded to enable it systematically to monitor individual decisions to sterilize. Thus HEW must depend in substantial degree on a complex series of procedures to be undertaken by persons not realistically subject to supervision and control or otherwise responsive to Congress. The experience with other phases of the sterilization problem shows the extreme difficulty that *1239 HEW is having in monitoring even the simplest safeguards.
When this case was before the Court prior to its Order, defendants never proposed a federal standard governing voluntariness. Indeed, it is doubtful the Court had power to establish one except by consent. Under the rigid strictures of the mandate the Court of Appeals retains jurisdiction, the appeal is still pending, and this Court has no authority to do more than approve or disapprove the precise modifications proposed and cannot fashion alternative solutions.
The Court has determined that the proposed modifications, as presented, will not be effective, that their coverage is uneven, that they create future uncertainties and that they fail to satisfy statutory standards. Among other things, the Court notes the following:
1. A regulation establishing a federal standard for voluntary sterilization should be considered through the rule-making process, after publication in the Federal Register, so that it will ultimately be fashioned with due regard for the views of the states and interested sectors of the community. The modifications proposed have not been subject to this process.
2. The Court is unwilling to enter an order which would authorize sterilizations contrary to state law and purport to affect the rights of minors and certain adjudicated incompetents to challenge at some later date the intrusion upon their person on the ground it was conducted in a manner inconsistent with applicable state law.
3. The proposed rules do not define what is therapeutic or nontherapeutic.
4. The Court is not satisfied that the complex program envisioned is susceptible to the careful, effective monitoring by the agency that would be essential to prevent abuse.
5. The proposed procedures avoid requiring certifications from the attending physician that the patient has truly given informed consent with full understanding and no provision is made for representation by counsel.
6. The proposed regulations would still not achieve the desired uniformity because they incorporate various state statutes now governing aspects of sterilization.
In denying the proposed modifications, the Court in the exercise of its discretion has, among other things, in addition to the reasons summarized above, found strong support in the supplemental memorandum submitted by plaintiff National Welfare Rights Organization filed September 17, 1975.
Unfortunately the case is in a straightjacket caused by the Government's desire to rewrite the decree in the appellate court while, at the same time, protesting the correctness of the decision below on the merits. The present procedural difficulties can be surmounted only after the appeal has run its course. If the Court erred, it can be reversed. If it did not, then the Order can be affirmed. In the event of affirmance there is nothing to prevent defendants' publishing proposed rules for establishing a workable federal standard. After an appropriate rule-making proceeding and decision, the Court could consider modifying its Order and would have the benefit of extensive data that would be generated in the rule-making proceeding reflecting experience under the Order as drawn.
Incident to this proceeding, plaintiffs have moved to enforce the existing Order pursuant to Rule 70 of the Federal Rules of Civil Procedure. Many serious deficiencies in the enforcement of the Order were brought to the Court's attention insofar as they might suggest, as they did, defendants' inability to make the program envisioned by the proposed modifications viable. In the process, many significant steps have been made by defendants in good faith to effectuate improved compliance. The motion to enforce is, in short, now out of date. If plaintiffs intend to pursue the matter they should file new papers *1240 to initiate a separate proceeding as required by the rules. The motion to enforce will be denied, without prejudice, at this stage.
ORDER
Plaintiffs having moved for an order pursuant to Rule 70 of the Federal Rules of Civil Procedure to enforce the Order now in effect and it appearing that intervening matters have substantially altered the basis for such motion, the motion is denied without prejudice.
So ordered.
ORDER
This matter having been remanded by the United States Court of Appeals for the District of Columbia Circuit to consider proposed modifications to the Decree and the Court having determined in its discretion, for reasons set forth in an accompanying Memorandum, that such modifications are inappropriate and not in the public interest, now therefore it is
Ordered that the modifications shall be and hereby are rejected. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560137/ | 20 So.3d 421 (2009)
The STATE of Florida, Appellant,
v.
Kenneth James OUTLER, Appellee.
No. 3D07-1490.
District Court of Appeal of Florida, Third District.
October 14, 2009.
*422 Bill McCollum, Attorney General, and Jerome Smiley, Jr. and Maria T. Armas, Assistant Attorneys General, for appellant.
Carlos J. Martinez, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellee.
Before RAMIREZ, C.J., and SHEPHERD and ROTHENBERG, JJ.
SHEPHERD, J.
This is an appeal from an order suppressing marijuana found in the defendant's, Kenneth James Outler, automobile after a stop, on the ground law enforcement lacked reasonable articulable suspicion to make the stop under the Fourth Amendment to the United States Constitution and its Florida counterpart, Article I, section 12 of the Florida Constitution.[1]*423 Upon de novo review, we conclude the trial court erred in reaching its judgment and, therefore, reverse the order on appeal.
This case arises out of an investigatory stop. In order not to violate a citizen's Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. State v. Taylor, 826 So.2d 399, 402 (Fla. 3d DCA 2002). Neither speculation nor a mere "hunch" is acceptable. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, the quantum of suspicion required is less than that for probable cause and "considerably less than proof of wrongdoing by a preponderance of the evidence." United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); State v. Lennon, 963 So.2d 765, 768 (Fla. 3d DCA 2007); State v. Gonzalez, 682 So.2d 1168, 1170 (Fla. 3d DCA 1996). The trial court determination is made upon a consideration of the totality of the circumstances. Taylor, 826 So.2d at 402. On review of a trial court ruling, the appellate court is required to accord a presumption of correctness to the trial court's determination of the historical facts, but independently review mixed questions of law and fact that ultimately determine the constitutional issues arising in the context of the Fourth Amendment. State v. Bagley, 844 So.2d 688, 690 (Fla. 3d DCA 2003). Thus, the trial court's ultimate determination is reviewed de novo on appeal. Id.
This case originated out of a telephone call made on April 11, 2006, by Michael Martinez, a detective with the Los Angeles Impact Task Force, to United States Drug Enforcement Administration (DEA) Special Agent Matthew Roberts.[2] Martinez told Roberts the Los Angeles police had seized several crates of marijuana from a Los Angeles trucking company, and the trucking company was carrying a similar crate to Tiffany Transport in Miami-Dade County. He described the crate to Roberts and advised him the shipping name and address were fictitious.
That afternoon, Roberts, accompanied by five other federal agents and two local law enforcement officers Miami-Dade Detective Guillermo Cuba and Coral Gables K-9 Officer Bill Swikehardt visited Tiffany Transport and inspected the crate. One agent diverted to check the delivery information on the accompanying crate and found that, like the shipping information, the delivery name and address also were fictitious. Officer Swikehardt exposed his drug-trained canine to the crate, but the dog did not alert. Special Agent Scott Rosenfeld, one of the six agents on the site, was not surprised. He told the assembled officers the crate was similar in size, weight, and packaging to crates being used in another marijuana trafficking scheme he was investigating. His investigation in that case had revealed the drug smugglers there had a practice of pre-packing the contraband in cardboard boxes before laying them into the crate, then *424 baffling the interior of the crate with oily paper towels and dryer sheets to mask the telltale marijuana odor, and finally securing the crate "excessively," using a combination of nails, screws, glue, and metal banding.
Because the canine failed to alert, the assembled officers were unable to obtain a search warrant. On the other hand, a Tiffany Transport representative told the group that Kenneth Outler, an individual who recently had picked up two other similar crates, was on his way to Tiffany Transport to pick up this one. The officers and agents took positions to observe.
Outler arrived at Tiffany Transport as expected, at approximately four o'clock in the afternoon. A Tiffany forklift operator transported the crate to Outler's car, where it was opened, and the boxes removed and placed in the trunk and on the back seat of Outler's car. Outler then departed to the Palmetto Expressway and traveled north, then east. The DEA agents and local law enforcement officers sought to trail him surreptitiously in six or seven separate vehicles, in what one pursuing officer described as a "rolling tail." After getting beyond rush-hour traffic on the expressway, Outler increased his speed to between sixty and eighty-five miles per hour, as conditions would permit, in what was a fifty-five-mile-per-hour zone. He also weaved back and forth between lanes frequently and, according to Special Agent Roberts, checked his rearview mirrors "excessively." Roberts testified he was left with the impression Outler suspected he was being tailed. Although one of the local law enforcement officers testified he could have pulled Outler over for excessive speed apparently, federal agents do not have the authority to make traffic stops he elected not to do so because he was traveling in an unmarked car. Instead, the agents and officers called for another Miami-Dade officer in a marked car to join them to make the stop.
Before that officer could arrive, Outler left the expressway at Northwest 27th Avenue and proceeded south into a residential area. Both the federal and local law enforcement officers followed. Outler drove hastily through the neighborhood, utilizing the middle of the two-lane residential streets on which he traveled, made frequent right and left turns from block to block, and did not honor stop signs. For community safety reasons, local law enforcement officers elected to stop him, even though the marked car had not arrived. The two local law enforcement officers, together with one other local law enforcement officer in an unmarked car who had joined the chase, blocked Outler's vehicle in the front. Federal officers came up behind. Federal officers then approached Outler's vehicle, guns drawn. As Outler rolled down his car window, the agents detected the unmistakable odor of marijuana wafting from the vehicle's backseat and ordered Outler out of the car. A canine that accompanied the joining law enforcement officer quickly and unambiguously alerted to the marijuana in the vehicle. Outler was Mirandized,[3] consented to the opening of the boxes, and was formally arrested after a few of the cardboard boxes were opened.
Taking all of the circumstances into account in this case, see Taylor, 826 So.2d at 402, we have no difficulty concluding on de novo review, the law enforcement officers in this case had reasonable articulable suspicion to stop Outler. Although urged by the State to conclude the stop was an objectively lawful traffic stop, we conclude the stop that occurred here was clearly an investigatory stop. See id. We determine the officers had reasonable articulable suspicion to make the stop from the following *425 undisputed facts: (1) the officers knew the crate in question had come from a shipping company in Los Angeles from which numerous similar crates had been seized and found to contain marijuana; (2) the officers had on hand DEA Agent Rosenfeld, who related he personally was investigating a marijuana trafficking conspiracy involving crates of similar weight, build, and packaging; (3) employees of Tiffany Transport related that Defendant had picked up two similar crates in the past; (4) neither the senders address in Los Angeles nor the destination address in Miami could be verified by the DEA to exist; and (5) once broken down, the wooden crate was found to contain several cardboard boxes, just as Agent Rosenfeld described from his other investigation. All this information was known to the officers when they were still at Tiffany Transport, long before Outler began his suspicious sojourn down the Palmetto Expressway. Defendants erratic and evasive driving which apparently coincided with his realization he was being tailed only served to increase the reasonableness of the officers suspicion. See State v. Goebel, 804 So.2d 1276, 1277 (Fla. 5th DCA 2002) (evasive driving may serve as one factor among many in a finding of reasonable articulable suspicion); accord State v. Smith, 529 So.2d 1226, 1227 (Fla. 3d DCA 1988); Harrison v. State, 442 So.2d 427, 429 (Fla. 5th DCA 1983); State v. Jones, 417 So.2d 788, 789 (Fla. 5th DCA 1982).
Upon a review of the totality of the circumstances, we conclude the trial court erred in finding the federal agents and local law enforcement officers lacked reasonable articulable suspicion to stop Outler in this case.
Reversed.
NOTES
[1] In 1982, the people of the State of Florida amended their constitution to require that the rights afforded thereunder "shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court." See Am. H.J.R. 31-H, 1982, adopted 1982. The amendment hobbled, but probably did not totally eliminate the utility of Article I, section 12. See Bernie v. State, 524 So.2d 988, 997 (Fla. 1988) (Kogan, J., concurring in part, dissenting in part); see also Perez v. State, 620 So.2d 1256 (Fla. 1993); Thomas Marks, Jr., Now You See It, Now You Don't, Privacy and Search and Seizure in the Florida Constitution: Trying to Make Sense Out of a Tangled Mess, 67 Alb. L. Rev. 691, 696, n. 27 (2004). But see State v. Ridenour, 453 So.2d 193, 194 (Fla. 3d DCA 1984) (Hubbart, J., concurring).
[2] Outler contended below the entirety of this telephone conversation was inadmissible hearsay because Detective Martinez did not testify. That is not so. See Voorhees v. State, 699 So.2d 602, 609 (Fla. 1997) (imputation of collective knowledge of police from two different states investigating the same crime); see also State v. Peterson, 739 So.2d 561, 566 (Fla. 1999) (quoting United States v. Wilson, 894 F.2d 1245, 1254 (11th Cir.1990)) ("Moreover, when a group of officers is conducting an operation and there exists at least minimal communication between them, their collective knowledge is determinative of probable cause."); Johnson v. State, 660 So.2d 648, 664 (Fla.1995) ("Under the fellow-officer rule, information shared by officers investigating a crime is imputed to any one of their number, even those from different agencies working together. Polk v. Williams, 565 So.2d 1387 (Fla. 5th DCA 1990). This effectively means that hearsay from other officers can be repeated by the affiant officer to establish probable cause.").
[3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560170/ | 403 F.Supp. 1260 (1975)
Levi BOSARGE, Sr., in his own behalf, and in behalf of his minor son, Levi Bosarge, Jr., Plaintiffs,
v.
TRIPLE T. BOATS, INC., Defendant.
Civ. A. No. 74-390-T.
United States District Court, S. D. Alabama, S. D.
November 24, 1975.
E. Elliott Barker, Mobile, Ala., for plaintiffs.
A. Clay Rankin, III, J. Hodge Alves, III, Mobile, Ala., for defendant.
ORDER
DANIEL HOLCOMBE THOMAS, Senior District Judge.
This cause came on to be heard on October 17, 1975, on the motion of the plaintiffs for partial summary judgment for maintenance and cure against the defendant, Triple T. Boats, Inc., pursuant to Rule 56 of the Federal Rules of *1261 Civil Procedure. The Court having considered all the pleadings on file, the affidavits of the plaintiffs, Levi Bosarge, Sr., and Levi Bosarge, Jr., and having heard the arguments of counsel finds that there is no genuine issue as to any material fact. However, for the reasons set forth hereinafter, the Court is of the opinion that the plaintiffs are not entitled to a judgment for maintenance and cure as a matter of law, and therefore the motion for partial summary judgment is hereby denied.
This is a seaman's action for damages under the Jones Act, 46 U.S.C. § 688, and under the general maritime law. The complaint's third cause of action seeks maintenance at the rate of $8.00 per day for the period beginning March 1, 1974, and continuing until the minor plaintiff has recovered or until maximum care has been achieved. In its answer the defendant admits that the plaintiff, Levi Bosarge, Jr., a minor, was a seaman employed by the defendant on board the F/V TARA RENITA and that while aboard the vessel the minor plaintiff sustained injuries when he was struck by a piece of chain. As a result of the injuries received on board the vessel, the plaintiff was hospitalized at the Ochsner Hospital in New Orleans, Louisiana, and then transferred and hospitalized in the Mobile General Hospital. Subsequently, on March 15, 1974, plaintiff was transferred to the home of his parents in Bayou La Batre, Alabama.
On June 5, 1975, the plaintiff filed two affidavits in open court. The affidavit of the plaintiff, Levi Bosarge, Sr., states that his son promised after his injury that he would make payments to his parents, from whatever money he should receive, for maintaining the injured plaintiff.[1] The affiant also expressed his expectation of payment by their son for the support that the minor received from his parents. The second affidavit submitted by the minor plaintiff states that the minor promised to reimburse his parents for their support while he was unable to work.[2]
On the basis of the foregoing facts, the Court makes the following Conclusions of Law:
1. The Court has jurisdiction over this matter based upon its admiralty and maritime jurisdiction. 28 U.S.C. § 1333.
2. The minor plaintiff herein seeks maintenance and cure for injuries which he sustained as a seaman in the service of the defendant's vessel.
3. Without a lengthy discussion of the historical purpose of maintenance and cure and of the duty of the shipowner to provide for the seaman's needs, suffice it to state that as a general rule, a seaman cannot recover maintenance and cure during a period in which the seaman has incurred no expense or liability for his care and support. Johnson v. United States, 333 U.S. 46, 68 S. Ct. 391, 92 L.Ed. 468 (1948); Marine *1262 Drilling, Inc. v. Landry, 302 F.2d 127, 128 (5th Cir. 1962); Martinez v. Star Fish and Oyster Co., 386 F.Supp. 560, 563 (S.D.Ala.1974). This fundamental rule supports the denial of maintenance and cure to a minor seaman who lives at home with his parents and incurs no actual expense or liability for his care and support. Johnson v. United States, supra; Field v. Waterman S. S. Corp., 104 F.2d 849, 851 (5th Cir. 1939). A contrary view asserted by the plaintiffs holds that a seaman may recover maintenance for support furnished by a seaman's parents or relatives even though the seaman has not incurred out-of-pocket expenses. McCormick Shipping Corp. v. Duvalier, 311 F.2d 933 (5th Cir. 1963); Duplantis v. Williams-McWilliams Industries, Inc., 298 F.Supp. 13 (E.D.La.1969); Brinkman v. Oil Transfer Corp., 300 N.Y. 48, 88 N.E.2d 817 (1949). The Court is of the opinion that the prevailing view is that a seaman who has not paid for his own expenses, whether that seaman be a minor residing at the home of his parents or otherwise cannot recover maintenance from the shipowner. Marine Drilling, Inc. v. Landry, 302 F.2d 127, 128 (5th Cir. 1962); Field v. Waterman S. S. Corp., supra. Therefore, in order for the minor seaman to recover for maintenance and cure he must show proof of expenses incurred or obligations created during the period that he resides with his parents. Johnson v. United States, supra; Dodd v. The M/V Peggy G, 149 F.Supp. 823, 824 (S.D.Ala.1957); 2 Norris, The Law of Seaman § 573. In the instant case, there is no written evidence which documents that the minor plaintiff has incurred out-of-pocket expenses or made payments to his parents.[3] Accordingly, the Court finds that there is insufficient evidence to support the finding that the minor plaintiff has incurred any expense or liability for his care and support.
4. In support of said motion the plaintiffs have submitted affidavits wherein the minor plaintiff has "expressed his intention" to make payments to his parents from whatever money he should receive and there is an "expectation" on the part of the seaman's parents to be reimbursed. (See Pl. Ex. 1, 2.) The plaintiffs assert that these affidavits satisfy the requirements set out in Duplantis v. Williams-McWilliams, 298 F.Supp. 13, 16-17 (E.D.La.1969) wherein the court stated:
"The Court cannot grant the motion for summary judgment until convinced by undisputed facts that the plaintiff is paying his family for the cost of his maintenance or that he has `expressed intention' to make payment to them from whatever money he should receive, accompanied by an `expectation' on their part to receive reimbursement. McCormick Shipping Corp. v. Duvalier, 311 F.2d 933 (5th Cir. 1963)."
The plaintiffs primarily rely on McCormick Shipping Corp. v. Duvalier, supra, for the proposition that the expressed intention of the minor seaman to make payments to his parents and the expectation of his parents to receive payment are sufficient for the Court to award the plaintiff maintenance and cure. However, McCormick is clearly distinguishable from the case at bar in that in the former, the female seaman received an injury while in the service of the defendant shipowner and later went to the home of a cousin where she stayed for several months while convalescing. At trial, the cousin testified that the seaman had promised to give her something and she expected something. In allowing recovery for maintenance the Fifth Circuit stated:
*1263 "there was an expressed intention of the appellee to make payment and an expectation of her cousin to receive it. There was no intention on the part of either the appellee or her cousin that the one should be an object of charity of the other. . . ."[4]
The Court is of the opinion that McCormick should not be extended to a parent child relationship. In the instant case, the minor plaintiff has always resided at the home of his parents. Since a minor is under no legal liability to his parents for the expenses that he may incur, the Court is unwilling to create an obligation of this kind. Notwithstanding the affidavits submitted into court by the plaintiffs, the Court, though not questioning sincere intentions, is of the opinion that the mere promise to pay and the expectation of being reimbursed made eleven months after the minor plaintiff sustained his injuries is insufficient proof to support the finding that the minor is paying or intends to pay his parents for the cost of his maintenance and cure.
It is therefore Ordered, Adjudged and Decreed that the plaintiffs' motion for partial summary judgment is hereby Denied.
NOTES
[1] The affidavit of Levi Bosarge, Sr. reads: "My name is Levi Bosarge, Sr. and I am the father of Levi Bosarge, Jr. My son, Levi Bosarge, Jr. became eighteen (18) years of age in January of this year and has for some time before his eighteenth (18) birthday been self-supporting and in fact has contributed and helped with the support of his mother and I while living in our home. At the time of his injury in March of 1974, he was living in our home but was contributing to his own support as well as to the upkeep of our household. After he was injured and unable to work he promised me that he would pay me or make up the money that he was unable to contribute after he received some money from his lawsuit. As he had been supporting himself before his injury and as I am unable to afford to support him now, I fully expect to be paid as he agreed to do." (Pl. Ex. 1) References preceded by "Pl. Ex." are to the exhibits admitted into evidence by the plaintiff during arguments heard by the Court on June 5, 1975.
[2] Pl. Ex. 2 reads: "My name is Levi Bosarge, Jr. and I have been supporting myself since before the accident and in fact have been contributing to the support and care of my parents at their home. After I was injured in March of 1974 I agreed with or promised my parents that I would pay them back for my support while I was unable to work."
[3] In answering interrogatories propounded by the defendant, the minor plaintiff claims to have paid his parents for room and board for three years prior to his injury in March 1974. However, the plaintiff admits that he does not recall the exact amounts or dates of any payment. The plaintiff further admits that there is no deposit records of any kind indicating payment in cash or check of any transaction between the plaintiff and his parents. (Defendant's Interrogatories Nos. 11, 11a, 11(b), 11(d), 13(a).
[4] McCormick Shipping Corp. v. Duvalier, 311 F.2d 933, 934 (5th Cir. 1963). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2453806/ | 258 P.3d 994 (2011)
DROGE
v.
STATE.
No. 104355.
Court of Appeals of Kansas.
September 2, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560220/ | 18 So.3d 424 (2009)
STATE of Alabama
v.
Derendrick Laquinton LANDRUM.
CR-07-0646.
Court of Criminal Appeals of Alabama.
February 27, 2009.
*425 Troy King, atty. gen., and J. Thomas Leverette, Montgomery, for appellant.
Tiffany Bullard McCord, Montgomery, for appellee.
KELLUM, Judge.
Derendrick Laquinton Landrum was arrested and charged with unlawful possession of a controlled substance, a violation of § 13A-12-212(a)(1), Ala.Code 1975. Landrum filed a pretrial motion to suppress the evidence seized as the result of an investigatory stop, namely, a plastic bag containing what was later determined to be cocaine. Following an evidentiary hearing, the trial court granted Landrum's motion to suppress.[1] Pursuant to Rule 15.7, Ala. R.Crim. P., the State appeals the circuit court's ruling.
The evidence presented at the suppression hearing established the following: On December 21, 2006, at approximately 10:30 p.m., Cpl. D.K. Corkran was patrolling the Greater Washington Park area in Montgomery when he drove down Sixth Street and observed a Mercury Grand Marquis automobile occupied by two individuals parked on the side of the road next to a vacant lot. Cpl. Corkran observed the driver, later identified as Landrum, get out of the vehicle, leaving the driver's-side door open, walk to a nearby house, and knock on the door. Cpl. Corkran testified that Landrum returned to his vehicle after no one answered the door. Cpl. Corkran continued patrolling the area, returning to Sixth Street a few minutes later. As Cpl. Corkran drove down Sixth Street for the second time, he saw Landrum get out of his vehicle, leave the driver's side door open, and return to the same house. Cpl. Corkran testified that he then drove up to the vehicle and asked Landrum, who had returned to the vehicle, if anything was wrong with his vehicle. Cpl. Corkran testified that he found it suspicious that Landrum was parked next to a vacant lot. Cpl. Corkran explained that the area in which he saw Landrum was known as a high traffic drug area and that he suspected Landrum was involved in possible drug activity. Cpl. Corkran asked Landrum to come over to his patrol vehicle. After talking to Landrum briefly, Cpl. Corkran *426 decided to perform a pat-down search of Landrum for the officer's safety, then instructed Landrum to put his hands on the back of the patrol vehicle. According to Cpl. Corkran, Landrum reached into his pants pocket. Corporal Corkran instructed Landrum a second time to put his hands on the back of the patrol vehicle. As Landrum withdrew his hand from the pants pockets, Cpl. Corkran saw Landrum drop a plastic bag containing a white, powdery substance on the ground. On cross-examination, Corporal Corkran testified that he did not have evidence of Landrum committing a crime before he asked Landrum to step toward the patrol vehicle.
On appeal, the State contends that the circuit court erred by granting Landrum's motion to suppress. The State argues that, based on the circumstances, Cpl. Corkran had reasonable suspicion of illegal conduct to conduct a "stop and frisk" pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
"This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute. See State v. Hill, 690 So.2d 1201, 1203 (Ala.1996); State v. Otwell, 733 So.2d 950, 952 (Ala.Crim.App.1999)." State v. Skaggs, 903 So.2d 180, 181 (Ala.Crim.App. 2004). In State v. Hill, 690 So.2d 1201 (Ala.1996), the trial court granted a motion to suppress following a hearing at which it heard only the testimony of one police officer. Regarding the applicable standard of review, the Alabama Supreme Court stated, in pertinent part, as follows:
"`Where the evidence before the trial court was undisputed the ore tenus rule is inapplicable, and the Supreme Court will sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to those facts.' Stiles v. Brown, 380 So.2d 792, 794 (Ala.1980) (citations omitted). The trial judge's ruling in this case was based upon his interpretation of the term `reasonable suspicion' as applied to an undisputed set of facts; the proper interpretation is a question of law."
State v. Hill, 690 So.2d at 1203-04.
The dissent relies on State v. Ivey, 709 So.2d 502 (Ala.Crim.App.1997), a case in which this court distinguished the Alabama Supreme Court's decision in Hill in order to apply the "clearly erroneous" standard of review. 709 So.2d at 505. In Ivey, this court explained the distinction, saying, "[i]n Hill, no facts were presented that conflicted with or undermined the testimony of the only witness; moreover, the defendant adopted in his brief the statement of facts set out in the State's brief." 709 So.2d at 505.
Judge Welch's dissent refers to and quotes several excerpts from the record in which the circuit court either commented on Cpl. Corkran's testimony or requested further explanation from Cpl. Corkran. The dissent suggests that the comments made and the questions asked by the trial court created the conflicts in Cpl. Corkran's testimony. Unlike the instant case, there is no indication in Ivey that the conflicts in the testimony of the police officer were created by direct questioning from the trial court. The conflicts referred to in Ivey pertained to ambiguities in the police officer's testimony and to a video introduced into evidence that appeared to contradict the police officer's testimony. Ivey, 709 So.2d at 505.
In the instant case, Cpl. Corkran was the sole witness to testify at the suppression hearing. Any conflicts in the evidence presented at the suppression hearing were a direct result of questioning by, or comments made by, the circuit court and are indicative of the circuit court's *427 ultimate ruling on the motion to suppress. Given the Alabama Supreme Court's holding in Hill, the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, and we afford no presumption in favor of the circuit court's ruling.[2]
"The United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), held that `a police officer may, in appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest.' 392 U.S. at 22, 88 S.Ct. at 1880. The standard for allowing a Terry stop is whether there is a reasonable suspicion that `the person being stopped has engaged in some type of criminal activity.' Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App.), cert. denied, 500 So.2d 1282 (Ala.1986)."
Ex parte Carpenter, 592 So.2d 627, 629 (Ala.1991).
"In reviewing reasonable suspicion determinations, courts must look at the `"totality of the circumstances"' to see whether the detaining officer had a `"particularized and objective basis"' for suspecting wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). `This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that "might well elude an untrained person.'" Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690). A determination of probable cause should not be based on a `divide-and-conquer analysis' but should consider a series of acts, each of which is `perhaps innocent in itself,' together in determining whether they warrant further investigation. Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868."
State v. Odom, 872 So.2d 887, 890 (Ala. Crim.App.2003).
In United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), the United States Supreme Court explained:
"Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like `articulable reasons' and `founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances the whole picturemust be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. See, e.g., Brown v. Texas, ... 443 U.S. [47 (1979)]; United States v. Brignoni-Ponce, 422 U.S. [873,] 884 [(1975)].
449 U.S. at 417-18, 101 S.Ct. 690 (emphasis added).
One such basis for suspecting criminal activity is the location where the investigative stop is made. Fullenwilder *428 v. State, 946 So.2d 899 (Ala.Crim.App. 2006).
"`An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Brown v. Texas, 443 U.S. 47 (1979). But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, we have previously noted the fact that the stop occurred in a "high crime area" among the relevant contextual considerations in a Terry analysis. Adams v. Williams, 407 U.S. 143, 144, 147-48 (1972).'"
Fullenwilder, 946 So.2d at 902 (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000)).
In the instant case, Cpl. Corkran saw Landrum at 10:30 p.m. in an area known as a "high traffic drug area." Landrum had parked his vehicle in front of a vacant lot on a dead-end street. On two occasions, within a short period of time, Cpl. Corkran saw Landrum get out of his vehicle, with the engine still running, knock on the door of a nearby house, and get back in his vehicle after no one answered the door. While we recognize that there is nothing inherently suspicious about the driver of a vehicle knocking on the door of a house while a passenger remains in the vehicle, with or without the engine running, those facts considered together as a whole, see United States v. Cortez, supra, with the time of evening that the event took place, the history of drug activity in the area, and the fact that Landrum repeated those actions, created sufficient cause to authorize Cpl. Corkran to approach Landrum and to investigate his behavior. Under the facts of this case, Cpl. Corkran was able to articulate a sufficiently particularized basis for a suspicion to justify investigating Landrum. United States v. Cortez, supra.
Based on the foregoing, we reverse the order of the circuit court and remand this case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
WINDOM, J., concurs.
WISE, P.J., concurs in the result.
WELCH, J., dissents, with opinion.
WELCH, Judge, dissenting.
Derendrick Laquinton Landrum was arrested for possession of a controlled substance, cocaine, a violation of § 13A-12-212, Ala.Code 1975. Landrum filed a motion to suppress, which was heard on December 19, 2007. The trial court granted the motion and the State timely appealed.
I disagree with the conclusion that the evidence before the trial court was essentially undisputed because any inconsistencies were created by the trial court's questions and comments and that, therefore, review on appeal was de novo. The main opinion states:
"In the instant case, Cpl. Corkran was the sole witness to testify at the suppression hearing. Any conflicts in the evidence presented at the suppression hearing were a direct result of questioning by, or comments made by, the circuit court and are indicative of the circuit court's ultimate ruling on the motion to suppress. Given the Alabama Supreme Court's holding in [State v.] Hill[, 690 So.2d 1201 (Ala.1996)], the only issue before this Court is whether the circuit court correctly applied the law to the facts presented at the suppression hearing, *429 and we afford no presumption in favor of the circuit court's ruling."
18 So.3d at 426-27.
In this case, although the trial court did not make written findings of fact, it is obvious that the trial court did not believe Cpl. Corkran's testimony, which contained numerous inconsistencies. Officer Corkran testified that he initially approached Landrum to ask him if he needed any assistance (Supp. R. 3) and that he was suspicious because Landrum was in "a high traffic drug area" (Supp. R. 3).[3] The trial court stated, "Well, now, I don't find your benevolent purpose to be quite accurate, though, because you went down there thinking he was involved in some kind of criminal activity." (Supp. R. 4.) When the officer testified that the suspicion that Landrum might have been involved in criminal activity arose in his mind first, the trial court stated, "Okay. So let's deal with that. I don't buy this business about you going down there to help him." (Supp. R. 4.)
The trial court further questioned Cpl. Corkran about his classification of the location as a high-crime area, and the court asked Cpl. Corkran about the crime statistics for the area. The officer stated that he did not know, specifically, the statistics for the area. The trial court asked, "Well, how can you call it a high crime area?" (Supp. R. 6.) Cpl. Corkran stated, "We have a lot of prostitution." (Supp. R. 6.) Cpl. Corkran also testified that he was aware of at least five houses in the area from which illegal drugs were sold, but he was unable to state how many arrests or convictions for illegal drug sales had come from that area. The trial court then stated, "[D]on't give me this moniker of high crime area. Okay? It doesn't mean much to me." (Supp. R. 7.)
On cross-examination, Cpl. Corkran testified that he stopped Landrum because he was suspicious that Landrum was attempting to purchase or sell drugs. Cpl. Corkran testified that Landrum parked his car next to a vacant lot on a dead-end street, and walked up to a residence. When the trial court asked Cpl. Corkran whether he had any information about the house Landrum was visiting, the officer testified, "I have no evidence that they were doing anything wrong in the house." (Supp. R. 13.) When the trial court asked Cpl. Corkran what evidence he had had at the time that Landrum was doing something wrong, the following exchange occurred:
"[Cpl. Corkran]: He walked up to the door.
"THE COURT: That's a crime in this city?
"[Cpl. Corkran]: No. Knocked on the door, couldn't get anybody, walked back to his car, I left, and he was coming back.
"THE COURT: Well, that's a crime in this city?
"[Cpl. Corkran]: He went up to the same door twice knowing nobody would answer the door.
"THE COURT: Well, maybe he was trying to arouse them. Maybe they were in there [a]sleep."
(Supp. R. 14.)
During redirect examination, the trial court stated that Cpl. Corkran had to have *430 a reasonable suspicion of criminal activity. The prosecutor stated that Cpl. Corkran had stated that, and the trial court replied, "I don't think he has." (Supp. R. 16.) The prosecutor then asked Cpl. Corkran whether Landrum might have been involved in any kind of theft of property at the house, and the officer replied, "Well, we do have a great deal of copper theft." (Supp. R. 16.) The trial court stated, "Well, you had no information at the time. Now, you told me first of all that you went to give him some assistance." (Supp. R. 16). The court noted that Cpl. Corkran had next relied on suspicions of Landrum's involvement in criminal activity. The trial court granted the motion to suppress.
The main opinion holds that de novo review of the trial court's ruling is required because Cpl. Corkran was the only witness and because the conflicts in his testimony were the direct result of questions or comments by the trial court. First, the fact that only one witness testified does not mandate de novo review. Second, I do not agree that the conflicts in Cpl. Corkran's testimony resulted only from questions or comments from the trial court.
In State v. Ivey, 709 So.2d 502 (Ala. Crim.App.1997), this Court considered whether a de novo standard of review should be applied when reviewing a trial court's order granting a motion to suppress, which followed a hearing at which only one witness testified. The Court stated:
"The findings of a trial court on a motion to suppress are binding on this court unless they are clearly erroneous. Simmons v. State, 428 So.2d 218 (Ala. Cr.App.1983).
"The State argues that this court should not apply this standard of review to the trial court's findings, but rather should conduct a de novo review because the evidence is not subject to material dispute because there was only one witness at the hearing and because the trial court did not make findings of fact. The State relies on State v. Hill, 690 So.2d 1201 (Ala.1996). However, Hill is distinguishable from this case. In Hill, no facts were presented that conflicted with or undermined the testimony of the only witness; moreover, the defendant adopted in his brief the statement of facts set out in the State's brief. Id. 690 So.2d at 1204. Hill recognized that where a trial court improperly applies the law to the facts or where the evidence is undisputed, no presumption of correctness exists as to the trial court's judgment. Id. 690 So.2d at 1203.
"In this case, the parties did not stipulate to the facts and they did not adopt the same version of facts in their briefs. Even where the matter rests upon the testimony of only one witness, the trier of fact is free to accept or reject the witness's statements. Where inferences to be drawn from the evidence are susceptible to more than one rational conclusion, the decision is for the factfinder. Willcutt v. State, 284 Ala. 547, 226 So.2d 328 (1969). This court will not interfere when the evidence tends to support the factual finding. Simmons v. State, 428 So.2d 218 (Ala.Cr.App.1983). Although only one witness testified, his testimony was not free of dispute."
709 So.2d at 505. The Court in Ivey applied the "clearly erroneous" standard of review rather than the de novo standard of review, and it upheld the trial court's ruling on the motion to suppress.
As was the case in Ivey, the testimony of the sole witness in this case was inconsistent. It is unclear from Cpl. Corkran's testimony the reason he relied on for stopping Landrum. He testified to at least four different reasons: to offer assistance *431 to Landrum; because he was suspicious that Landrum might have been involved in illegal drug activity; because Landrum was in a high-crime area where prostitution was a problem; because Landrum might have been involved in theft of copper pipe at the residence where he had twice knocked on the door. Thus, as in Ivey, the conflicts in the testimony of the sole witness made the evidence susceptible to more than one rational conclusion, and the factual and credibility determinations based on that testimony were for the trial judge.
Furthermore, I disagree with the assertion in the main opinion that the inconsistencies in Cpl. Corkran's testimony were the result only of the trial court's questions or comments. To the contrary, it was as a result of the prosecutor's questions that Cpl. Corkran testified about three of four different reasons he had for stopping Landrum: that he stopped to ask whether Landrum had a problem with his vehicle; that he was suspicious that Landrum had stopped next to a vacant lot; and that Landrum could have been involved in theft of copper from the property. In any case, the fact that some of the inconsistencies in Cpl. Corkran's testimony resulted from the trial court's questions and comments is irrelevant. The fact is that Cpl. Corkran's testimony was inconsistent. The inconsistencies in the testimony dictate that the "clearly erroneous" standard of review should be applied, no matter how that testimony was elicited.
Applying that standard of review, I would affirm the trial court's order. There is ample support in the record for the trial court's determination that Cpl. Corkran's Terry[4] stop was improper because it failed to establish any reasonable suspicion based on any specific, articulable facts that Landrum was engaged in, or was about to engage in, criminal activity. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979). "In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference." Brown v. Texas, 443 U.S. at 52, 99 S.Ct. 2637.
Because I would affirm the judgment of the trial court, I respectfully dissent from the main opinion.
NOTES
[1] The circuit court did not make any written findings of fact when it granted Landrum's motion to suppress.
[2] It is well settled that this court is bound by the decisions of the Alabama Supreme Court, and this court "`is without authority to overrule the decisions of [that] court.'" Harris v. State, 2 So.3d 880, 902 (Ala.Crim.App.2007)(quoting Jones v. City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288, 290 (1972)). See also § 12-3-16, Ala.Code 1975.
[3] The transcript of the suppression hearing is in the supplemental record, and the pages of that transcript are unnumbered. The State, in its brief, noted that it had numbered the pages beginning with the title page of the transcript, which it designated page 1, and then had numbered the pages consecutively through page 17, the certificate of completion. For purposes of clarity in this dissent, I will use the same page numbering. Pages of the suppression hearing will be designated "(Supp. R.)" and will be followed by the relevant page number or numbers.
[4] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1735046/ | 727 N.W.2d 36 (2006)
RODRIGUEZ
v.
LABOR AND INDUS. REVIEW COMM'N.
No. 2006AP0525
Supreme Court of Wisconsin
November 6, 2006.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560361/ | 931 F.2d 1011
UNITED STATES of America, Plaintiff-Appellee,v.Michael CURTIS, a/k/a Frank, Defendant-Appellant.
No. 90-5665.
United States Court of Appeals,Fourth Circuit.
Argued Jan. 11, 1991.Decided April 22, 1991.
John Joseph Cowan, argued, Charleston, W.Va., for defendant-appellant.
John Kirk Brandfass, Asst. U.S. Atty., argued (Michael W. Carey, U.S. Atty., on brief), Charleston, W.Va., for plaintiff-appellee.
Before SPROUSE and WILKINS, Circuit Judges, and ELLIS, District Judge for the Eastern District of Virginia, sitting by designation.
WILKINS, Circuit Judge:
1
Michael Curtis appeals his convictions of conspiracy to distribute crack cocaine, 21 U.S.C.A. Sec. 846 (West Supp.1991), and possession with the intent to distribute and distribution of crack cocaine, 21 U.S.C.A. Sec. 841(a)(1) (West 1981). He alleges that the prosecution withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the district court erred in failing to suppress evidence obtained following a warrantless arrest in his home. Curtis also appeals his sentence. Finding no error, we affirm.
I.
2
In March 1989, as part of an undercover investigation of crack cocaine distribution in the Charleston, West Virginia area, an informant called Curtis and offered to purchase crack cocaine. Curtis dispatched a courier to meet the informant and sell her 1.5 grams of crack cocaine. Approximately one week later, the informant, wearing a wire transmitter, entered Curtis' residence and bought from him 3.49 grams of crack cocaine. While in Curtis' residence, the informant observed a large quantity of crack cocaine and observed Curtis sell crack cocaine to another individual. Upon leaving the residence, the informant delivered the crack cocaine to Detective Kenneth J. McCracken who had been monitoring the wire transmission. Detective McCracken immediately proceeded to a magistrate's office and obtained a search warrant for Curtis' residence based upon this information. Appellant does not challenge that the warrant was based upon probable cause and was in all other particulars legally sufficient.
3
While waiting for Detective McCracken to return with the search warrant, officers who remained behind to continue surveillance noticed several individuals leaving Curtis' residence in a vehicle. The officers, fearing that those who left might warn Curtis that he was being watched, entered the residence through the unlocked front door, arrested Curtis and another individual, and conducted a protective sweep to determine if other individuals were located in the residence. During the protective sweep, an officer observed in plain view a large rock of crack cocaine, a razor blade, triple-beam scales, and plastic baggies. When Detective McCracken returned with a search warrant, the officers executed it and seized these items in addition to a revolver found between the mattress and box springs in Curtis' bedroom.
4
Other officers stopped the vehicle that left Curtis' residence and arrested its occupants. One of the occupants, George Brown, possessed a quantity of crack cocaine. Brown told the officers that he had obtained the crack cocaine from a source other than Curtis, and an officer memorialized Brown's statement in an investigative report.
II.
5
Curtis argues that the police entry into his home without a warrant was illegal, and that the district court erred in failing to suppress the evidence observed in plain view by the officers as they conducted the protective sweep. See Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). We need not determine if the entry was lawful on the basis of exigent circumstances because we find that even if this justification was not present, the district court properly refused to suppress the evidence.
6
While Curtis is correct that evidence gained through an unlawful arrest in the home should be excluded from trial when it bears "a sufficiently close relationship to the underlying illegality," New York v. Harris, --- U.S. ----, 110 S.Ct. 1640, 1643, 109 L.Ed.2d 13 (1990), evidence otherwise subject to the exclusionary rule may be admitted at trial if an independent source for the discovery of the evidence existed, see Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988); United States v. McCraw, 920 F.2d 224, 231 (4th Cir.1990) (Wilkins, J., concurring and dissenting). Evidence that is initially discovered through unlawful means but is later acquired through lawful means independently of the initial unlawful discovery is admissible. Murray, 487 U.S. at 537, 108 S.Ct. at 2533.
7
In Murray v. United States, law enforcement officers unlawfully entered a warehouse without a warrant and observed numerous bales, presumably of marihuana, wrapped in burlap. The officers appeared before a magistrate who was not informed that the warehouse had already been entered and obtained a search warrant for the building based solely upon information acquired prior to the entry. Id. at 535-36, 108 S.Ct. at 2532-33. Applying the independent source doctrine, the Supreme Court held that evidence seized pursuant to the search warrant issued on the basis of information obtained independently of the unlawful entry was properly admitted at trial, provided the officers would have sought the warrant even if they had not observed the contraband. The Court remanded for the district court to determine whether the officers would have sought the warrant if they had not entered the warehouse, noting that "[t]he ultimate question ... is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue." Id. at 542, 108 S.Ct. at 2535.
8
As in Murray, the warrant authorizing a search of Curtis' residence was issued solely upon information known to the officers before the entry. And, the condition not determined in Murray is resolved here: The record clearly demonstrates that a search warrant would have been sought regardless of the entry because Detective McCracken had already departed to obtain a warrant prior to the entry and had no knowledge of the actions of the other officers. Thus, the search pursuant to the warrant was independent of the entry, and the district court did not err in refusing to suppress the evidence seized pursuant to it.
III.
9
Curtis also claims that he should be granted a new trial because the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose an exculpatory memorandum of the interview with Brown. The prosecution alleges that the failure to disclose was inadvertent but does concede that this failure violates Brady. However, it maintains that the violation does not mandate that Curtis be granted a new trial because the failure to disclose did not undermine confidence in the verdict. See United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 3381, 87 L.Ed.2d 481 (1985). We find that a new trial is not required.
10
Suppression of exculpatory evidence by the government that is material to the outcome of a trial violates the due process clause of the fourteenth amendment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196. Evidence is material when "its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. Or, stated differently, "[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 682, 105 S.Ct. at 3383. When assessing the possibility of a different outcome, the reviewing court should consider the totality of the circumstances. Id. at 683, 105 S.Ct. at 3384.
11
Curtis argues that the memorandum was material because his cross-examination of Brown would have been more thorough had he possessed it and because if armed with it, he would have been able to convince the jury that Brown was responsible for the drug sales at Curtis' residence. Curtis relies on Norris v. Slayton, 540 F.2d 1241 (4th Cir.1976), in which a memorandum withheld by the prosecution revealed that the victim hesitated in her initial identification of the defendant. In Norris, defense counsel did not know of this hesitation prior to trial and, therefore, was not alerted that the victim's identification of the defendant was subject to attack on this basis. Norris does not control our disposition because Curtis knew prior to trial that Brown had made a statement exonerating Curtis of any connection with the crack cocaine Brown possessed when he was arrested, and Curtis cross-examined Brown about his prior statement. Also, Brown testified, without contradiction, that immediately following his arrest, he told government agents that Curtis had not supplied him with the crack cocaine then in his possession.
12
Furthermore, the evidence against Curtis presented through other witnesses was overwhelming and the importance of Brown's testimony was limited. Brown's testimony, although probative of the conspiracy, did not address the specific instances of possession with the intent to distribute and distribution for which Curtis was charged and for which the jury found him guilty. We conclude that there is not a reasonable probability that the outcome of the trial would have changed had the memorandum regarding Brown's interview been disclosed prior to trial. See Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.
IV.
13
Curtis also alleges the district court erred at sentencing in attributing to him possession of a pistol found between the mattress and box springs in his bedroom, in including in its guidelines range determinations drugs that were not listed in the presentence report, and in adjusting his base offense level by four for his role in the offense. We have carefully reviewed these contentions and find them to be without merit.
14
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/992330/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5897
WANSLEY OTTO MASSEY, a/k/a Pops,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
William L. Osteen, Sr., District Judge, sitting by designation.
(CR-94-170)
Submitted: February 11, 1997
Decided: June 3, 1997
Before NIEMEYER, LUTTIG, and MOTZ, Circuit Judges.
_________________________________________________________________
Dismissed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
William E. Martin, Federal Public Defender, John Stuart Bruce, Dep-
uty Federal Public Defender, Greensboro, North Carolina, for Appel-
lant. Mark T. Calloway, United States Attorney, Gretchen C.F.
Shappert, Assistant United States Attorney, Charlotte, North Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
After pleading guilty to conspiring to possess with intent to distrib-
ute cocaine and cocaine base,1 Wansley Massey was sentenced to 180
months incarceration, a $2,000 fine, and five years of supervised
release. Massey appeals, contending that his guilty plea was taken in
violation of FED. R. CRIM. P. 11, that previously appointed counsel
was ineffective, that his sentence was improperly enhanced under 21
U.S.C. § 851 (1994), that the district court misapplied the sentencing
guidelines for crack cocaine, and wrongly delegated its authority to
the probation department in determining the amount and timing of his
fine installment payments. We find that Massey knowingly and freely
waived his right to appeal his conviction and sentence; consequently,
we dismiss the appeal.
At the Rule 11 colloquy, the district court thoroughly questioned
Massey to ensure he was competent to enter a plea, and that he under-
stood the nature and consequences of his plea. Specifically, the court
inquired into Massey's mental health, use of drugs or medication, and
whether Massey understood the consequences and all the rights he
was forfeiting by pleading guilty. Massey acknowledged that he
understood his rights, consulted with counsel, understood the conse-
quences of his plea, and was freely and voluntarily pleading guilty.
We find that any variance from Rule 11 regarding the mandatory
minimum sentence and nature of the charge did not affect Massey's
substantial rights;2 thus, the plea agreement should be upheld because
Massey made an intelligent and informed decision when he voluntar-
ily pled guilty.3
_________________________________________________________________
1 21 U.S.C. § 846 (1994).
2 See FED. R. CRIM. P. 11(h); United States v. DeFusco, 949 F.2d 114,
117 (4th Cir. 1991).
3 See North Carolina v. Alford, 400 U.S. 25, 31 (1970); Boykin v.
Alabama, 395 U.S. 238, 242 (1969).
2
Additionally, the court asked Massey if he understood that he was
waiving the right to appeal the merits of the case as well as his sen-
tence. Massey answered, "Yes." The court also asked if he understood
that he was also waiving his right to challenge his conviction and/or
sentence in a post-conviction proceeding. Again, Massey answered,
"Yes." Finally, the court inquired whether he understood that he
would be bound by his plea agreement even if his sentence was more
severe than he or his attorney expected. Massey answered, "Yes."
Because the court fully questioned Massey during the Rule 11 hearing
regarding waiving his appellate rights, the waiver of appellate rights
is valid and enforceable.4 We find Massey's other allegations of error
to be either waived by his waiver of appeal rights, or for those claims
surviving the waiver such as ineffective assistance of counsel and pro-
secutorial vindictiveness, to have no merit.
Accordingly, we dismiss the appeal. We deny counsel's motion to
withdraw from representation and to withdraw the Appellant's briefs.
We also deny Massey's motions to file a pro se brief, and to proceed
pro se. Massey has a constitutional right to effective assistance of
counsel on appeal, but merely a limited right to proceed pro se. Coun-
sel thoroughly briefed the pertinent issues,5 and appointed counsel
need not appeal every non-frivolous issue requested by the defendant.6
Finally, we deny Massey's motion to expedite his appeal as moot. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
DISMISSED
_________________________________________________________________
4 See United States v. Wessells , 936 F.2d 165, 167-68 (4th Cir. 1991);
United States v. Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).
5 See Penson v. Ohio, 488 U.S. 75, 87 (1988); Anders v. California, 386
U.S. 738, 741 (1967) (counsel must act as advocate and not as amicus
curiae).
6 See Jones v. Barnes, 463 U.S. 745, 752-54 (1983).
3 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/992392/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4632
LINDA JAMES BARNES,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4643
CHARLES PHILLIP JAMES,
Defendant-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., District Judge.
(CR-95-194)
Submitted: May 30, 1997
Decided: June 19, 1997
Before HALL, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina; Michael W. Patrick, HAYWOOD, DENNY & MIL-
LER, L.L.P., Durham, North Carolina, for Appellants. Walter C. Hol-
ton, Jr., United States Attorney, Scott P. Mebane, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Linda James Barnes and Charles Phillip James each pled guilty to
interstate transportation of stolen goods in violation of 18 U.S.C.
§ 2314 (1994). Barnes received a 27-month sentence. James received
a 30-month sentence. Both appeal their sentences, alleging that the
district court clearly erred in determining the loss under USSG § 2B1.1,1
in finding that both had obstructed justice and neither had accepted
responsibility, USSG §§ 3C1.1, 3E1.1, and also erred in ordering res-
titution in the amount of $7200 for James and $2700 for Barnes. We
affirm.
James worked for Mitsubishi Semiconductor America, Incorpo-
rated, in Durham, North Carolina, as an equipment technician from
1983 to December 1994. His job involved retesting parts which had
failed to meet company specifications. Employees at the Mitsubishi
plant assembled several kinds of computer memory modules by
attaching varying numbers and types of computer chips (called "de-
vices") to printed memory boards (circuit boards). The finished mem-
ory modules were supplied to another Mitsubishi facility in
California. The Durham plant also manufactured computer chips, or
devices.
In November 1990, James traveled to a computer show in New Jer-
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
2
sey and arranged to sell Mitsubishi memory modules to United Com-
puter Resources (UCR), a New Jersey company. In 1990, Linda
Barnes (James' sister), went to work at Mitsubishi in the assembly
area. She began assisting James with his scheme in 1991 or early
1992. For a while, she paid Kathy Crabtree, her sister, and Tony
Lloyd, an acquaintance, to help assemble memory modules from parts
acquired by James and Barnes. Between 1991 and 1994, James sold
UCR approximately 19,471 one-megabyte single in-line memory
modules (SIMM's) and was paid a total of $447,891. Barnes received
about $20,000 from James.
Mitsubishi eventually received a tip that James and Barnes were
stealing products and selling them. Barnes' locker was searched in
November 1994 and 493 new circuit boards were found in it. Barnes
was then fired by Mitsubishi. When interviewed by Federal Bureau
of Investigation (FBI) agents, Barnes stated that James had instructed
her to steal good products from the assembly area. She would then
attach the chips/devices to stolen boards. At first, she claimed that she
put the 493 new circuit boards into her locker during a clean-up of the
assembly area. Later, she admitted that the boards were to be used to
make modules for UCR.
In December 1994, FBI agents confronted James. He admitted sell-
ing memory modules to UCR, but said he sold only materials which
had been rejected by Mitsubishi and would have been thrown away.
He said he was able to fix many rejected boards because test failures
were often correctable (when caused by an improperly situated
device) and in other cases the board (or device) was functional but
was simply too slow to meet Mitsubishi specifications. After James
was fired, a search of his work area disclosed 4000 good new devices
hidden under some other equipment.
Following James' and Barnes' guilty pleas, a single probation offi-
cer prepared the presentence report for both defendants. In both cases,
the probation officer recommended no enhancement for loss because
the defendants sold "discarded defective modules" which were of no
use to Mitsubishi.2 The government objected to the recommendation,
arguing that James' profit should be treated as the amount of loss.
_________________________________________________________________
2 In both cases, the probation officer recommended an offense level of
4, which included a 2-level adjustment for acceptance of responsibility.
USSG §§ 2B1.1, 3E1.1. Both defendants were in criminal history cate-
gory I, which produced a recommended guideline range of 0-6 months.
3
Barnes and James were sentenced together in four sentencing hear-
ings. Much of the testimony concerned the various products assem-
bled at the plant and the production methods. At the third hearing, the
district court advised James and Barnes that it could not accept their
assertions that no new materials were taken, stating:
[Barnes] was positioned to put things together so they
wouldn't work, to test things to have false failures. Mr.
James was positioned, certainly, for that, because that was
primarily what he did. He said he was in charge of the test-
ing process.
Now when you have people who have sold a half million
dollars' worth of a product which was stolen, knowing that
that product does have a value, knowing that . . . it's good
and the employer is not aware of it, or the employer is not
aware of the true value, and they are positioned to cause
good product to be failed and put in [a reject bin], or they're
positioned to take other products, it seems to me like the
burden should be on those people to prove what it was they
used and the value of what it was they used, because they
are the ones uniquely positioned to know.
It appears to me to be absolutely incredible, looking at the
evidence that has been presented by the government, look-
ing at the materials in Ms. Barnes' locker, looking at the
statement she made to Agent Thomure, that no new product
was used in the manufacture of the devices which they sold
to UCR. I find that absolutely incredible. Yet I have testi-
mony from each of them that no new product was used.
. . . . [I]t seems to me like the burden can only be so far on
the government, and then it is incumbent on those people
who are specially positioned to cause the loss, who were the
only people positioned to know exactly what was done and
with what, it seems to me the burden should be on them to
come forward with that.
The court informed James and Barnes that it was inclined to
assume that they sold only new materials unless they provided evi-
4
dence of what proportion of their sales were new materials. However,
they never admitted taking any new materials. In the end, the district
court determined that James and Barnes sold some reworked materi-
als and some new materials. The court found that it could not credit
their testimony that only rejected materials were sold. The court
found that it could not determine what proportion of the sales to UCR
were rejected materials. The court estimated that, if James and Barnes
took all good products, the value of what they stole would have been
$530,291. On the other hand, if James and Barnes took only rejects
during 1991 and 1992 but took good products after that, the value
would have been $279,741. Therefore, the court found that James'
gross receipts of $447,891 was the "fairest and perhaps the most accu-
rate figure available" for the amount of loss. The court reduced the
amount of loss in Barnes' case to $342,149 because she entered the
scheme in 1992.
The court found that James and Barnes had obstructed justice by
willfully giving false testimony on a material matter. The court thus
gave each of them a 2-level adjustment for obstruction of justice and
found that neither of them had earned an adjustment for acceptance
of responsibility.
The court's findings raised James' offense level to 19 and resulted
in a guideline range of 30-37 months. Barnes' offense level was 18
and her guideline range was 27-33 months. The court imposed a 30-
month sentence on James and ordered him to make restitution of
$7200. Barnes received a 27-month sentence and was ordered to pay
$2700 in restitution.
On appeal, James and Barnes first challenge the district court's
determination of the loss resulting from their theft. Unless the facts
are undisputed, the amount of loss is a factual matter which is
reviewed for clear error. See United States v. Chatterji, 46 F.3d 1336,
1340 (4th Cir. 1995). In determining the value of stolen items so as
to make the appropriate enhancement under USSG § 2B1.1(b)(1), the
district court "need only make a reasonable estimate of the loss, given
the available information." USSG § 2B1.1, comment. (n.3). Ordinar-
ily, in a theft case, the loss is the fair market value of the property
taken. USSG § 2B1.1, comment. (n.2). This was the approach taken
by the probation officer, who accepted James' and Barnes' represen-
5
tation that the stolen materials were all rejects and had no market
value. However, the district court found that, "if rejected parts were
taken, it did not take much to reconstitute those rejected parts into
good, salable parts that went to UCR." The court thus discounted the
argument that no marketable materials were stolen and also found that
James and Barnes added little value (by way of labor or costs) in
making marketable products from however many rejects they stole.
James and Barnes correctly point out that a defendant's gain may
not be used as a measure of loss when there is no actual or intended
loss to the victim. See Chatterji, 46 F.3d at 1340.3 However, their
argument that the stolen property had no value is incorrect. Whether
rejects or new materials, the items James and Barnes stole obviously
had a fair market value of nearly half a million dollars because James
was able to sell them for that amount to UCR. Even if all the stolen
materials were genuine rejects which Mitsubishi would not have mar-
keted, they still had a market value. Whether Mitsubishi intended to
sell them or recycle them is not determative. Mitsubishi suffered a
loss by having its products stolen and the sale of those products estab-
lished their fair market value.4 For these reasons, we find that the
Defendants' gain was a proper measure of loss and that the district
court did not clearly err in determining that there was a loss of
$447,891 in James' case and $342,149 in Barnes' case. We also find
that the court did not improperly shift the burden of proof by inviting
James and Barnes to explain how much of what they stole was good,
new product.
James and Barnes next contend that the court erroneously equated
their gain with the victim's loss in determining restitution, while the
statute permits restitution only for the victim's actual loss. See 18
U.S.C. § 3663(b)(1) (1994). However, the district court found as a
fact that James and Barnes stole products which were not defective
_________________________________________________________________
3 Like most cases in which loss is an issue, Chatterji involved an
enhancement under USSG § 2F1.1. Under both USSG § 2B1.1 and
USSG § 2F1.1, loss is the value of the money, property, or services
unlawfully taken. See USSG § 2F1.1, comment. (n.7).
4 Presumably, if James stole a painting which the artist had decided to
destroy as not up to his standards, James would argue in court that the
painting had no value even if he had been able to sell it for $5 million.
6
or substandard. The amount of restitution ordered was clearly tied to
the court's determination that good products were stolen and sold,
causing a monetary loss to Mitsubishi. It is unlikely that the small
amount of restitution ordered ($7200 for James and $2700 for Barnes)
is greater than the value of good products stolen and not recovered.
Thus, we find that the court ordered restitution only for actual loss to
the victim.
Finally, James and Barnes contend that they testified truthfully
when they told the court that they took only rejected materials. There-
fore, they argue, the court clearly erred in finding that they obstructed
justice. Because there was evidence that James and Barnes stole good,
new products from Mitsubishi, the court did not clearly err in finding
that they testified untruthfully about a material matter and awarding
each an adjustment for obstruction of justice. See USSG § 3C1.1,
comment. (n.3(b)). As a consequence of the obstruction of justice
finding, an adjustment for acceptance of responsibility would not
have been appropriate in either case. USSG § 3E1.1, comment. (n.4).
The sentences are therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
7 | 01-03-2023 | 07-03-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1539686/ | 218 B.R. 520 (1998)
In re Charles PHILLIPS and Jean Phillips, Debtors.
Charles PHILLIPS and Jean Phillips, Appellants,
v.
Kevin C. MAYER and Scott D. Mayer, Appellees.
Nos. 96-33445 BDM, C97-2754 TEH.
United States District Court, N.D. California.
February 19, 1998.
*521 Matthew J. Shier, Poppin & Shier, San Francisco, CA, for Appellants.
Penn Ayers Butler, Tobias S. Keller, Murphy Weir & Butler, San Francisco, CA, for Appellees.
ORDER
HENDERSON, District Judge.
This matter came before the Court on the appeal of appellants Charles Phillips and Jean Phillips, debtors in a Chapter 13 proceeding. Appellants ask that this Court reverse the bankruptcy court's decision refusing to allow appellants to claim an exemption for a private retirement plan pursuant to Cal.Code Civ. Proc. § 704.115(a)(1). Appellees request an award for costs and expenses, arguing that the appeal is frivolous. After careful consideration of the parties' written arguments, the Court hereby AFFIRMS the ruling of the bankruptcy court. The Court further DENIES appellees' request for costs and expenses.
BACKGROUND
Appellants Charles Phillips and Jean Phillips are 64 and 58 years old, respectively. Charles Phillips is self-employed and Jean is a registered nurse. Appellants have been married for approximately 23 years and have no children. Their combined monthly income is approximately $3,800.
Appellants purchased their first home in 1977, located at 1022 Powell Street, No. 1, San Francisco, CA. Appellants acquired their current residence in 1986, located at 170 Ninth Avenue, San Francisco, CA. In 1977, appellants adopted an "informal retirement fund." However, over the years, appellants used several of the assets transferred into the plan for a variety of purposes, none related directly to their retirement.
In 1985, appellants executed the Charles and Jean Phillips Revocable Trust to consolidate all of their investments and to accomplish certain estate planning purposes. The Trust provides that appellants (as trustors) have general access to the income and principal held in the Trust "for their support, comfort, health, education, and general welfare." Appellants subsequently withdrew funds from the Trust to pay for health insurance, property taxes, and attorney's fees incurred with respect to the underlying litigation. Appellants also expended $50,000 for home improvements, including structural work, kitchen remodeling, and deck construction. *522 In addition, at least one mutual fund account held in the Trust was specifically denominated as a "non-retirement account."
In 1986, appellants sold their Powell Street residence to Kevin and Scott Mayer, but the Mayers sued to rescind the sale of the property in 1993 based upon claims of fraud and misrepresentation. On March 29, 1996, the parties were informed by the Superior Court of San Francisco that judgment would be entered in the Mayers' favor in the amount of $411,079.56. Shortly thereafter, appellants consulted legal counsel and executed the documents necessary to formalize the Phillips Retirement Plan and the Phillips Retirement Trust. Appellants are the participants, sponsors, administrators, and trustees of the Retirement Plan.
On April 24, 1996, in anticipation of filing bankruptcy to deal with creditors' claims, appellants transferred their current Ninth Avenue residence and marketable investments into the Retirement Plan. The value of appellants' residence is approximately $350,000, of which $75,000 is claimed as a homestead exemption under Cal.Code Civ. Proc. § 704.710. The balance of $216,481 is claimed exempt as a private retirement plan pursuant to Cal.Code Civ. Proc. § 704.115(a)(1). The other assets in the Retirement Plan have a value of $74,308. In short, the Retirement Plan contains all but approximately $25,000 of appellants' assets, which were reachable by appellants upon Charles Phillips' 65th birthday in February 1997.
Appellants filed their voluntary Chapter 13 petition with the bankruptcy court on August 7, 1997. Creditors Kevin and Scott Mayer objected to appellants' claimed exemption under section 704.115(a)(1) for assets held in the Retirement Plan. Upon the parties' consent, the bankruptcy court bifurcated the plan confirmation issue, conducting a trial solely on the question of exemption. On March 4, 1997, the bankruptcy court issued a Memorandum Decision and Order sustaining the objections to the claimed exemption, which debtors now appeal.
DISCUSSION
A. Private Retirement Plan
The sole issue on appeal is whether the bankruptcy court erred in refusing to allow appellants to claim an exemption for a private retirement plan pursuant to Cal.Code Civ. Proc. § 704.115(a)(1). Under the standard of review, the factual findings of the bankruptcy court may be set aside only if they are "clearly erroneous." Fed.R.Bankr. Proc. 8013. Conclusions of law are reviewed de novo. In re Commercial Western Finance Corp., 761 F.2d 1329 (9th Cir.1985).
Appellants argue that the Retirement Plan constitutes a "private retirement plan" under the meaning of section 704.115(a)(1), and is therefore exempt from creditor claims. However, it is well settled that a "private retirement plan" is not exempt by mere virtue of its name. Bloom v. Robinson (In re Bloom), 839 F.2d 1376, 1378 (9th Cir.1988); Yaesu Electronics Corp. v. Tamura, 28 Cal. App.4th 8, 14, 33 Cal.Rptr.2d 283 (1994)(adopting Bloom). The Ninth Circuit has interpreted the statute as requiring that a retirement plan be "designed and used" for retirement purposes. Id. Thus, the threshold question before this Court is whether the bankruptcy court's factual finding that the Phillips' Retirement Plan was not "designed and used" for retirement purposes is "clearly erroneous." Fed.R.Bankr.Proc. 8013. If it is not, then this Court must affirm the bankruptcy court's ruling, and the Court need not address the remaining issues raised by the parties.
Having carefully reviewed the record, the Court finds, for the reasons explained below, that the bankruptcy court's determination that the Retirement Plan was not "designed and used" for retirement purposes is supported by the record, and is not "clearly erroneous." First, we agree with the bankruptcy court that appellants' earlier activities between 1977 and 1985 do not support the claim of exemption under section 704.115(a)(1). Although appellants assert that they intended to set aside funds for retirement purposes as early as 1977, there is no concrete evidence of this intent. Their "informal retirement plan" was never reduced to writing and funds were used for a *523 variety of purposes, none related directly to retirement.
In 1985, appellants did make some manifestation of their intent to set aside funds in the Revocable Trust; however, appellants again treated the matter very informally. The Trust provides that appellants (as trustors) have general access to funds "for their support, comfort, health, education and general welfare." Indeed, appellants utilized the monies for a variety of purposes, such as for payment of health insurance, property taxes, home improvements, and legal expenses incurred in connection with the underlying litigation. In addition, at least one mutual fund account said to be in the Trust was specifically denominated as a "non-retirement account."
On April 24, 1996, shortly after being informed about the judgment entered against them by the Superior Court, appellants executed the documents necessary to establish the Phillips Retirement Plan and the Phillips Retirement Trust. At that time, appellants transferred their current residence and all marketable investments into the Retirement Plan. Appellants claimed $75,000 of their residence as a homestead exemption pursuant to Cal.Code Civ. Proc. § 704.710(a)(1), and transferred the excess amount of their assets into the Retirement Plan. This left $25,000 in the reach of creditors. Given these facts, and the previous actions of appellants discussed above, the bankruptcy court inferred that appellants were attempting to shield their assets from creditors rather than enhance their retirement needs.
It has not been shown to this Court's satisfaction that the bankruptcy court erred in determining that the 1996 Retirement Plan was not "designed and used" for retirement purposes. It is not the role of this Court to substitute its own judgment for that of the bankruptcy court short of "clear error." Indeed, here there is a substantial basis in the record to support the findings of the bankruptcy court. Therefore, the Court upholds the bankruptcy court's Memorandum Decision and Order, sustaining objections to appellants' proposed Chapter 13 plan.
B. Appellees' Request for Costs and Expenses
Appellees request an award for costs and expenses, including attorneys fees, arguing that the appeal is frivolous and was pursued for purposes of delay. Appellees contend that sanctions are appropriate pursuant to Fed.R.Civ.P. 11, Fed.R.Bankr.Proc. 9011, Fed.R.App.Proc. 38, and 28 U.S.C. § 1927. However, the Court is not persuaded that all of the above rules and statutes are necessarily applicable to a district court reviewing a bankruptcy appeal. In any event, the Court declines to impose sanctions given the absence of any showing of bad faith on the part of appellants.
CONCLUSION
For the foregoing reasons, the Court finds that the bankruptcy court did not err in refusing to allow appellants to claim an exemption for a private retirement plan pursuant to Cal.Code Civ. Proc. § 704.115(a)(1). Accordingly, and for good cause shown, the judgment of the bankruptcy court is hereby AFFIRMED. The Court further ORDERS that appellees' request for costs and expenses be DENIED.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560174/ | 945 A.2d 617 (2008)
Clement NKOP, Appellant
v.
UNITED STATES, Appellee.
No. 06-CM-632.
District of Columbia Court of Appeals.
Submitted February 13, 2008.
Decided April 3, 2008.
*618 William Francis Xavier Becker, appointed by this court, was on the brief, for appellant.
Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Thomas J. Tourish, Jr., Sarah A. McClellan, and John G. Interrante (a member of the Pennsylvania Bar), Assistant United States Attorneys, were on the brief, for appellee.
Before GLICKMAN and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR, Senior Judge.
PRYOR, Senior Judge:
Appellant Clement Nkop appeals from his convictions after a bench trial for two counts of attempt misdemeanor sexual abuse[1] and two counts of simple assault[2] arising from the inappropriate sexual touching of two female patients at a skilled nursing facility. Specifically, appellant contends the trial court erred in failing to recognize that the attempt misdemeanor sexual abuse convictions merged with the convictions for simple assault. We conclude that simple assault is a lesser-included offense of attempt misdemeanor sexual abuse, and therefore remand solely for the purpose of vacating two of the convictions and for resentencing consistent with the charges that remain.
I.
A. The Government's Evidence
Appellant worked as a certified nursing assistant (CNA) at the Washington Home and Hospice (Washington Home) in Northwest Washington. On the morning of March 7, 2005, appellant entered the room of the first complaining witness at about 1:30 a.m. to change her diaper. The complainant testified that appellant put on a pair of gloves, took a wipe, and then stroked the inside of her thighs several times. Appellant then opened the complainant's diaper, cleaned her with a wipe, and then "started rubbing circles on [her] clitoris" for about two minutes with the wipe in hand. Appellant moved his hand down to the complainant's vagina and repeated the same motion "just barely on the inside of [her] vagina."
*619 Later that same morning, between 3:00 a.m. and 4:00 a.m., the second complaining witness rang the bell in her room to have her diaper changed. Although she usually asked for a female CNA, the second complainant testified that she was "exhausted" and did not make the request that morning. Thus, appellant, who had not previously changed her diaper, responded to her call. Appellant, without putting on gloves, removed the second complainant's old diaper, rubbed the inside of her legs in her upper-thigh area, stroked the top of her pubic hair twice with his fingers, and touched the "outside of [her] vagina." The second complainant told appellant, "Please don't do that." After appellant put a new diaper on the second complainant, he began rubbing her legs again, and she again said, "Please don't do that." Both complainants testified they had not given appellant permission to touch their private areas and that no other male CNA had ever touched them in this manner while changing their diapers. When the first and second complainants discovered appellant had touched both of them inappropriately, they reported the incidents to the unit manager, Jackie Omatoshow.[3]
Johanna Ramsammy, a CNA at the Washington Home, trained appellant and had over twenty years of experience as a CNA. Ramsammy testified about perineal care of incontinent residents like the complainants and explained that it was inappropriate to rub a patient's thighs before putting on a new diaper. She also testified that it was inappropriate to stroke a patient's pubic hair without using a wipe. On cross-examination, Ramsammy testified that no other residents had complained about appellant prior to March 7, 2005.
B. The Defense Evidence
Appellant was the only defense witness. He testified that he had worked at the Washington Home for three years prior to March 7, 2005, and had been a CNA for twelve years. He knew both complainants as residents of the Washington Home and had previously provided them with assistance.
Appellant described the first complainant as a "[v]ery demanding" patient and said she became upset with him about two weeks before March 7, 2005, because her care was interrupted by a cell phone call from appellant's wife and by a call to assist another resident. He also explained how he had changed the first complainant's diaper on March 7, 2005, and denied touching her in any inappropriate manner.
Appellant also testified about his interaction with the second complainant on that same morning. He testified that at about 3:15 a.m., the second complainant signaled for assistance. Appellant responded and told the second complainant that the woman who was taking care of her that morning was on break and offered to change her himself. He said there was nothing unusual about the second complainant's care that morning, and he denied touching her in any inappropriate manner. Finally, appellant testified that the Washington Home had not previously disciplined him for poor performance or poor treatment of a patient prior to March 7, 2005.
II.
To prove misdemeanor sexual abuse, the government must prove the defendant (1) committed a "sexual act" or "sexual contact"; (2) intended to abuse, *620 humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;[4] and (3) "knew or should have known that he or she did not have the complainant's permission to engage in the sexual act or sexual contact." Mungo v. United States, 772 A.2d 240, 245 (D.C.2001) (citing CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.60A (4th ed. 1993 & Supp. 1996)). The element of intent may be shown by virtue of touching or attempting to touch a complainant's private area. For the attempt offense of misdemeanor sexual abuse, the government must prove the defendant (1) intended to commit the crime, and (2) committed an overt act towards completion of the crime that (3) came within "dangerous proximity of completing the crime." Jones v. United States, 386 A.2d 308, 312 (D.C.1978); see also CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA, No. 4.04. Of course, a defendant may be charged with an attempted offense even if the evidence shows he completed the offense. See Evans v. United States, 779 A.2d 891, 894 (D.C.2001).
We noted in Alfaro v. United States, 859 A.2d 149 (D.C.2004), that in this jurisdiction, although there are three forms of simple assault, we follow the common law concept of that offense. 859 A.2d at 156. Thus, an assault may be committed by doing an unlawful act with the general intent to do so, or by the attempt to do the act with the present ability to complete it. See Beausoliel v. United States, 71 App. D.C. 111, 115, 107 F.2d 292, 296 n. 14 (1939). Simple assault in the form of a non-violent sexual touching requires the government to prove (1) the defendant committed (or attempted to commit) a sexual touching on another person; (2) the defendant did so voluntarily, on purpose, and not by mistake or accident; and (3) the other person did not consent to the touching. See Mungo, supra, 772 A.2d at 246; Beausoliel, 71 App. D.C. at 115, 107 F.2d at 296.
This case raises a narrow question: whether an accused may be sentenced (or punished) for both simple assault (unlawful sexual touching) and attempt misdemeanor sexual abuse where the offenses arose out of the same incident. Of course an inquiry of this nature leads to consideration of the protection afforded by the Double Jeopardy Clause. See Alfaro, 859 A.2d at 155. Applying the familiar test in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), to determine whether two different offenses are legally the same, we ask whether the elements of each offense, when compared, requires the proof of an element which the other does not. 284 U.S. at 304, 52 S.Ct. 180. If each offense has an element the other does not, then they are not the same offense. Id. We perceive no jeopardy concern here.
In this instance, it is apparent that simple assault requires an unlawful sexual touching with an intent to do so, or the attempt to touch with the present ability to complete the act. By comparison, attempt misdemeanor sexual abuse requires an intent to accomplish a sexual touching, with an overt act that comes within close proximity of completion. Lastly, the actor must have an additional mens rea "to abuse, humiliate, harass, degrade, *621 or arouse or gratify the sexual desire of any person." D.C.Code § 22-4101(8)-(9); Mungo, supra, 772 A.2d at 246. In Mungo we held that simple assault is the lesser-included offense of the completed offense, misdemeanor sexual abuse. Mungo, supra, 772 A.2d at 246. This simply means that the elements of the lesser offense are a subset of the greater one. Alfaro, supra, 859 A.2d at 155. Here the crime of attempt misdemeanor sexual abuse requires proof of all the elements of simple assault (including an attempted assault), and requires the additional mens rea which the latter does not.[5] We therefore conclude that simple assault is a lesser-included offense of attempt misdemeanor sexual abuse.[6]See Lee v. United States, 668 A.2d 822, 827 (D.C.1995) (holding that the penalty for a lesser-included offense need not be lower, and may be even higher, than for the greater offense).
Accordingly, we remand with instructions to the trial court to vacate the charges for either attempt misdemeanor sexual abuse or simple assault and for re-sentencing consistent with the charges that remain.
So ordered.
NOTES
[1] D.C.Code §§ 22-3006, -3018 (2001).
[2] Id. § 22-404.
[3] Joy Iyamu, a restorative CNA at the Washington Home, testified that the second complainant reported the incident to her on the morning of March 7, 2005. Iyamu, in turn, told the second complainant to report the matter to Omatoshow.
[4] "Sexual act" and "sexual contact" are defined in D.C.Code § 22-3001(8) and (9). For purposes of this case, the government alleged appellant engaged in "sexual contact," which is defined as:
(9) . . . the touching with any clothed or unclothed part or any object, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
D.C.Code § 22-3001(9).
The definition of "sexual act" contains an identical provision for intent.
[5] As we noted in Cullen v. United States, 886 A.2d 870 (D.C.2005), the rule of lenity teaches that "criminal statutes should be strictly construed and that ambiguities should be resolved in favor of the defendant." 886 A.2d at 874 (citing Belay v. District of Columbia, 860 A.2d 365, 367 (D.C.2004)).
[6] The government cites Davis v. United States, 873 A.2d 1101 (D.C.2005), for the proposition that it is possible to commit attempt misdemeanor sexual abuse without committing an assault. The defendant in Davis was charged with a single count of misdemeanor sexual abuse, but not also with assault. He was convicted of attempt misdemeanor sexual abuse based on evidence that he exposed his penis to his daughter and asked her to rub it. The government is mistaken in arguing that this offense did not constitute an assault because there was no actual touching. See Beausoliel, 71 App. D.C. at 115, 107 F.2d at 296 (noting that it has been held to be an assault "to stand in proximity to a young girl in a state of indecent exposure with intent to ravish," or "to sit on the bed of a girl and lean over her with a proffer of sexual intercourse"). As discussed above, assaults included attempted as well as actual batteries. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560176/ | 403 F.Supp. 794 (1975)
CAYMAN MUSIC, LTD., et al., Plaintiffs,
v.
Alphonse REICHENBERGER, Defendant.
No. 75-C-59.
United States District Court, W. D. Wisconsin.
August 28, 1975.
*795 Frank J. Daily of Quarles & Brady, Milwaukee, Wis., and C. Vernon Howard, Madison Wis., for plaintiffs.
Kenneth P. Casey of Julian & Associates, S. C., Madison, Wis., for defendant.
ORDER
JAMES E. DOYLE, District Judge.
This is a civil action for injunctive relief and money damages brought pursuant to 17 U.S.C. § 101 and 28 U.S.C. § 1338.
The complaint alleges three causes of action. In all three causes, plaintiffs allege that defendant infringed a copyright belonging to one of the plaintiffs by giving public performances of a copyrighted composition for the entertainment of persons frequenting defendant's place of business. For each cause of action, plaintiffs seek a permanent injunction restraining defendant from further commission of the infringing acts, $250 in damages, and the costs and reasonable attorneys' fees of the action.
Defendant has moved for a trial by jury; plaintiffs have moved to strike defendant's motion; and the matter is presently before the court on plaintiffs' motion to strike.
Plaintiffs assert that this action is one solely for injunctive relief, that the damages requested are only the statutory minimum required upon a finding of infringement, and that defendant has no right to a jury trial on any of the issues of the law suit.
Defendant asserts that insofar as plaintiffs seek money damages, they have raised a legal issue triable to a jury by right. Defendant argues that this lawsuit is governed by the principles of Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) and Dairy Queen, Inc., v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). These cases hold that the right to a jury trial is not lost by joining a legal issue to an equitable claim, that in a proceeding in which there are both legal and equitable claims, the order of trial must be arranged so that issues common to both the legal and equitable claim are tried first to the jury before the court decides the purely equitable issues, and that the characterization of a legal claim as "merely incidental" to an *796 equitable claim does not defeat the right to a jury trial as to that issue. See, 9 Wright and Miller, Federal Practice and Procedure, ¶ 2312 (1971). It follows from these cases and from the provisions of the Seventh Amendment that a jury trial will be required in this lawsuit if defendant is correct in his assertion that the plaintiffs' request for money damages is a legal claim, whether or not the damages requested are considered "minimal" or "incidental."[1] It does not follow from these cases, however, that every request for money is to be considered a legal claim triable by a jury. Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005 (1974); Swofford v. B. & W. Incorporated, 336 F.2d 406 (5th Cir. 1964).
Certain guidelines for determining whether a particular issue is legal or equitable in nature were set out in Ross v. Bernhard, 396 U.S. 531, 538, n. 10, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). Under these guidelines, the courts are to consider (1) what the custom was with reference to such questions before the 1938 Federal Rules of Civil Procedure authorized the merger into one action of equitable and legal causes of action; (2) the remedy sought; and (3) the practical abilities and limitations of juries.
Applying this test to the case before me, I am persuaded that a jury trial is not required in an action under 17 U.S.C. § 101, where the relief sought is limited to a request for an injunction and for minimum statutory damages.[2] Plaintiffs do not dispute the contention that a jury trial may be appropriate in a copyright infringement action where the relief sought is actual damages. The provision for recovery of minimum statutory damages, however, has always been considered to be part of the equitable proceedings.
Under 17 U.S.C. § 101, a party suing for infringement of a copyright may sue for an injunction restraining the infringement and for "such damages as the copyright proprietor may have suffered due to the infringement, as well as all the profits which the infringer shall have made from such infringement." In lieu of actual damages, the holder of the copyright may sue for an injunction and "such damages as to the court shall appear to be just." 17 U.S.C. § 101(b) [Emphasis Supplied].
The reason for the alternative forms of recovery has been explained by the United States Supreme Court.
"It is evident that in many cases it would be quite difficult to prove the exact amount of damages . . . .
. . . In the face of the difficulty of determining the amount of such damages in all cases, the statute provides a minimum sum for a recovery in any case, leaving it open for a larger recovery upon proof of greater damage in those cases where such proof can be made." Westermann Co. v. Dispatch Co., 249 U.S. 100, 108, 39 S.Ct. 194, 196, 63 L.Ed. 499 (1919) quoting Brady v. Daly, 175 U.S. 148, 154, 20 S.Ct. 62, 44 L.Ed. 109 (1899).
In an action in which the plaintiff seeks only "just damages," the court is required to award at least the minimum statutory damages once it has made the determination that there is a basis for injunctive relief. Douglas v. Cunningham, 294 U.S. 207, 55 S.Ct. 365, 79 L.Ed. 862 (1935); Jewell-LaSalle Realty Co. v. Buck, 283 U.S. 202, 51 S.Ct. 407, 75 L.Ed. 978 (1931); Waterman Co. v. Dispatch Co., supra; Shapiro, Bernstein & Co. v. 4636 S. Vermont Ave., Inc., 367 F.2d 236 (9th Cir. 1966). The just damages are an integral part of the injunctive *797 remedy and not a separate basis for recovery. Chappell & Co. v. Palermo Cafe Co., 249 F.2d 77 (1st Cir. 1957).
The pre-merger history is clear in the copyright infringement cases: suits for injunctive relief and just damages were suits in equity.
The remedy sought by plaintiffs herein is equitable in nature; it is neither for compensation or for punitive damages.[3]Cf., Rogers v. Loether, 467 F.2d 1110 (7th Cir. 1972), aff'd sub nom. Curtis v. Loether, supra, in which the court held that a jury trial was required in a suit for damages for discrimination in the sale or rental of housing under the Civil Rights Act of 1968. In finding the claim a legal one, the court of appeals noted at p. 1118:
Both the determination of the amount which would adequately compensate a litigant for an unliquidated claim and the punitive element of the award are appropriate for jury determination.
As to the practical abilities and limitations of juries, there is no issue. Under the statute, the court has no choice but to award the minimum statutory damages upon a finding that an injunction should issue. There is nothing for a jury to decide under the statutory scheme of § 101.
Accordingly, I conclude there is no right to trial by jury in this case, considering the traditional equitable character of suits such as these, the explicit commitment to the trial judge of discretion in the assessment and awarding of just damages, and the integral relation of the damages to the injunctive relief.
Accordingly, it is ordered that plaintiffs' motion to strike defendant's demand for jury trial is hereby granted.
NOTES
[1] "The Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law." Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 1008, 39 L.Ed.2d 260 (1974).
[2] Although plaintiffs did not identify the request for $250 in their complaint as a claim for statutory damages provided under 17 U.S.C. § 101, it is clear from their briefs and from that of defendant that the parties understand plaintiffs to be seeking minimum statutory damages only in this proceeding.
[3] The Supreme Court has held in a number of cases that the statutory just damages provided under 17 U.S.C. § 101 are not punitive damages. See, e. g., Brady v. Daly, 175 U.S. 148, 20 S.Ct. 62 (1895). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560237/ | 18 So. 3d 1041 (2009)
HUGGINS
v.
STATE.
No. 1D09-793.
District Court of Appeal of Florida, First District.
October 5, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858038/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-189-CR
STEPHEN ANTHONY CAREY,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 910,501, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING
Appellant entered a non-negotiated plea of guilty before a jury (1) to the offense of
aggravated robbery. See Tex. Penal Code Ann. § 29.03 (Supp. 1992). Also, a plea of true was
made by appellant to three enhancement of punishment allegations of prior felony convictions.
Punishment was assessed at seventy years confinement.
In a single point of error, appellant asserts numerous allegations of ineffective
assistance of counsel. Appellant alleges he received ineffective assistance of counsel because
counsel failed to: (1) object to the introduction of the videotape of the offense; (2) obtain a ruling
on his motion for disclosure of extraneous offenses; (3) unnecessarily permitting appellant to
waive the lawyer-client privilege; (4) object to evidence of the details of appellant's pending
misdemeanor cases; (5) object to evidence of a previous robbery. We overrule appellant's point
of error and affirm the trial court's judgment.
The standard for judging ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668 (1984), as applied by the Court of Criminal Appeals, is set forth in
Ex parte Welborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990):
The test to be applied in determining ineffective assistance of counsel is found
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). As this Court has previously noted, no mechanistic formula is provided
by Strickland:
The benchmark for judging any claim of ineffectiveness must be
whether counsel's conduct so undermined the proper functioning of
the adversarial process that the trial cannot be relied on as having
produced a just result.
Butler v. State, 716 S.W.2d 48, 54 (Tex. Cr. App. 1986) quoting Strickland, 104
S.Ct. at 2064. A defendant seeking relief under Strickland must show that
counsel's performance was deficient and the defendant must show that the deficient
performance prejudiced the defense. Butler, 716 S.W.2d at 54. When clarifying
the "prejudice" prong of this two part test, the Strickland Court held:
The defendant must show that there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the proceedings
would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.
Ex Parte Guzmon, 730 S.W.2d 724, 733 (Tex. Cr. App. 1987) quoting Strickland,
104 S.Ct. at 2068.
This standard has never been interpreted to mean that the accused is entitled to
errorless or perfect counsel. Bridge v. State, 726 S.W.2d 558, 571 (Tex. Cr. App.
1986). When reviewing a claim of ineffective assistance of counsel, judicial
scrutiny of counsel's performance must be highly deferential. 466 U.S. at 689,
104 S.Ct. at 2065, 80 L. Ed. 2d at 694. Whether the Strickland standard has been
met is to be judged by "the totality of the representation." Id.; Ferguson v. State,
639 S.W.2d 307, 310 (Tex. Cr. App. 1982). Isolated instances in the record
reflecting errors of commission or omission do not cause counsel to become
ineffective, nor can ineffective assistance of counsel be established by isolating or
separating out one portion of the trial counsel's performance for examination.
Bridge, 726 S.W.2d at 571; Johnson v. State, 629 S.W.2d 731, 736 (Tex. Cr.
App. 1981). An applicant must show omissions or other mistakes made by counsel
that amount to professional errors of a magnitude sufficient to raise a reasonable
probability that the outcome of the trial would have been different but for the
errors. Butler, 716 S.W.2d at 54. The test is to be applied at the time of trial, not
through hindsight. Wilkerson v. State, 726 S.W.2d 542, 548 (Tex. Cr. App.
1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1590, 94 L. Ed. 2d 779 (1987).
Appellant contends that counsel should have objected to the introduction of the
videotape of the offense. Appellant asserts that the videotape constituted a needless presentation of cumulative evidence because identity was not an issue and the tape should have been excluded.
Relevant evidence may be excluded if it constitutes "needless presentation of cumulative
evidence." Tex. R. Crim. Evid. Ann. 403 (Pamph. 1991).
The State's right to introduce evidence is not restricted by a plea of guilty, or by
admission of facts sought to be proved; relevant facts admissible under a plea of not guilty are also
admissible under a plea of guilty. Wilkerson v. State, 736 S.W.2d 656, 659 (Tex. Cr. App.
1987). Introduction of evidence by the State in a felony case tried before a jury is to enable the
jury to intelligently exercise its discretion in assessing the penalty. Id. The fact that witnesses
may have testified to a scene or events and this testimony is unimpeached does not prevent the
introduction of motion pictures depicting the same scenes or events. Huffman v. State, 746
S.W.2d 212, 223 (Tex. Crim. App. 1988).
Turning to appellant's second allegation, he asserts that another instance of
ineffective assistance of counsel occurred when trial counsel failed to obtain a ruling on
appellant's motion that he be furnished with a list of extraneous offenses or acts of conduct by the
appellant which the State is aware of or intends to introduce at trial. Appellant complains that
counsel's failure to secure a ruling on the motion waived his right to assert error on appeal.
In King v. State, 687 S.W.2d 762, 764 (Tex. Crim. App. 1985), complaint was
directed to the action of the trial court in overruling the defendant's motion to quash. As in the
instant cause, the defendant entered a non-negotiated plea of guilty to a jury. The court held that
where a defendant enters a plea of guilty without the benefit of a plea bargain, defendant waives
all nonjurisdictional defects, and thus, waives any right to appeal the trial court's ruling on his
motion to quash. Id. at 766. It is of no moment that counsel failed to secure a ruling on
appellant's motion for disclosure of extraneous offenses since an adverse ruling to his motion
(directed to a nonjurisdictional matter) was waived by his non-negotiated plea of guilty.
Appellant asserts that counsel was ineffective in allowing appellant to waive the
attorney-client privilege unnecessarily. Appellant urges that proof of his emotional state was not
privileged.
The opinion of a lay witness as to the mental condition of a person is admissible
where the witness "had a reasonable opportunity to observe the acts and conduct of the person in
question . . . provided it is preceeded or accompanied by a statement of the facts upon which it
is based." Bradford v. State, 477 S.W.2d 544, 546 (Tex. Crim. App. 1972).
There is no suggestion that appellant's counsel in another cause was an expert
witness qualified to express an opinion as to appellant's emotional state without a statement of
circumstances constituting the basis of his opinion.
Brasfield v. State, 600 S.W.2d 288, 295 (Tex. Crim. App. 1980) and Lopez v.
State, 651 S.W.2d 830, 838 (Tex. App. 1983, pet. ref'd), cited by appellant are distinguishable
from the instant case. In Brasfield, the court concluded that the testimony of an attorney who had
previously represented the defendant in another cause about seeing defendant in Lubbock on a
certain date, standing alone, did not violate the attorney-client privilege. Brasfield, 600 S.W.2d
at 295-96. Relying on Brasfield, the court in Lopez concluded that the testimony of counsel who
had represented the defendant in another matter that he had seen defendant at the scene of the
crime, without disclosing his prior relationship with the defendant, did not violate the attorney-client privilege. Lopez, 651 S.W.2d at 838.
The testimony sought to be elicited regarding appellant's "poor mental and
emotional state during the time the attorney knew him" would undoubtedly open the door for the
State to inquire as to the facts and circumstances upon which such an opinion is based. We cannot
conclude that such an examination would not result in the disclosure of the prior attorney-client
relationship. We also note that prior counsel, before taking the stand to testify, stated that he
wanted it made "clear that he [appellant] is waiving the attorney-client privilege in those words."
Appellant contends that counsel was ineffective in not objecting to evidence elicited
by the prosecutor from counsel who represented him in another case. On direct, counsel testified
that he represented appellant in a pending misdemeanor assault case; that appellant appeared to
be experiencing "stress and anxiety," but he was unable to say "how much [was] an integral part
of his personality -- as opposed to being in the situation he was in." Under cross examination by
the prosecutor, counsel testified, without objection, that appellant related to him that he hit his
girlfriend after she had slashed him with a knife. In response to further questions by the
prosecutor, counsel stated that appellant denied hitting his girlfriend in the face with a belt and
that there was never any mention of appellant throwing a rock at her in an effort to get her to drop
the knife. Assuming, arguendo, that such testimony was inadmissible, the complained-of
testimony was harmless beyond a reasonable doubt in that it made no contribution to the
conviction or the punishment. Appellant entered a plea of true to three prior felony convictions
alleged for enhancement of punishment. Moreover, the testimony elicited on cross examination
regarding the pending misdemeanor assault charge reflected that appellant's attack on his
girlfriend was provoked by her striking at him with a knife.
In his last allegation, appellant asserts another instance of ineffective assistance of
counsel occurred when counsel did not object to testimony elicited from appellant regarding an
unadjudicated offense of robbery.
Before appellant testified, trial counsel advised the court that he had explained to
appellant that it would be in his better interest not to testify in his own behalf and "I have
explained to him everything that it opens it up to." In response to the court's question as to
whether he understood the advice his attorney had given him on the matter of testifying, appellant
responded, "Yes, with that advice, yes, sir, I still wish to testify."
In the course of the prosecutor's cross examination appellant was asked a number
of questions about the details of the robbery in the instant cause. In an unresponsive answer to
this line of questioning, appellant stated, "I didn't want to do it." The prosecutor then elicited the
following unobjected-to testimony from appellant:
Q: You are saying you didn't want to do this?
A: Miss, I am not a robber.
Q: That is what it looked to me like what was going down.
A: It went down, but I am not a robber.
Q: You are not. Well, didn't you, in fact, on September 27, 1990 rob Maryann
Gussey at the Best Western Motel?
A: No, sir. No that is what I have been accused of doing by Austin Police
Department.
Q: Didn't you do it?
A: No, I don't recall that.
Q: You don't recall?
A: No.
Appellant's testimony that he was not a robber constituted unresponsive answers
to questions asked by the prosecutor. Since appellant's answers were beyond the scope of cross-examination, the door was opened to impeachment by the State. See Burrow v. State, 668 S.W.2d
441, 443 (Tex. App. 1984, no pet.). In Burrow, a driving while intoxicated case, the defendant
in response to a question by the prosecutor as to how many beers he had to drink, stated that "he
didn't like to drink and didn't drink that much." Id. The court held that the defendant's
unresponsive answer opened the door for impeachment evidence that he rarely stopped drinking
short of intoxication three or four times a week. Id.
Appellant's unresponsive answers relative to not being a robber left the impression
that he was not a robber and did not want to commit the instant offense. Hence, the door was
opened for the State to impeach appellant with questions regarding an unadjudicated robbery. It
must also be remembered that appellant testified against the advice of his trial counsel. Contrary
to appellant's assertion, appellant's plea of guilty does not restrict the State in its examination of
appellant as to relevant matters. Wilkerson, 736 S.W.2d at 659.
The complained-of conduct on the part of appellant's trial counsel does not
constitute omissions or mistakes that amount to professional errors of a magnitude sufficient to
raise a reasonable probability that the outcome of the trial would have been different but for the
alleged errors. Appellant's point of error is overruled.
The judgment of the trial court is affirmed.
Tom G. Davis, Justice
[Before Chief Justice Carroll, Justices Aboussie and Davis*]
Affirmed
Filed: January 22, 1992
[Do Not Publish]
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment.
See Tex. Gov't Code Ann. § 74.003(b) (1988).
1. A plea of guilty before a jury admits all elements of the offense. Brinson v. State, 570
S.W.2d 937, 938 (Tex. Crim. App. 1978). King v. State, 687 S.W.2d 762, 763 n.1 (Tex. Crim.
App. 1985). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/731241/ | 102 F.3d 763
William C. EVERARD, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 95-2090.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 12, 1996.Decided Oct. 15, 1996.*
Jill Leslie Price (briefed), Richard M. Helfrick (argued), Federal Public Defenders Office, Detroit, MI, for Petitioner-Appellant.
Patricia G. Blake (argued and briefed), Office of the U.S. Attorney, Detroit, MI, for Respondent-Appellee.
Before: NELSON, MOORE and COLE, Circuit Judges.
MOORE, Circuit Judge.
1
Defendant William C. Everard appeals from the district court's order in this federal habeas case concluding that Federal Rule of Criminal Procedure 32(a)(2)1 did not require the sentencing court to advise the defendant of his right to appeal in the circumstances of this case and that defendant knowingly and voluntarily entered his plea agreement. Finding no reversible error in these conclusions, we affirm the decision of the district court.
2
* Everard entered into a Rule 11 plea agreement with the government on March 24, 1993, in which he pleaded guilty to one count of unlawful transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. The worksheets attached to the plea agreement indicated an estimated sentencing guidelines offense level of nine and a criminal history category of I, which in turn produce a sentencing range of four-to-ten months. J.A. at 19. The agreement itself specified: "Defendant agrees not to appeal or otherwise challenge the constitutionality or legality of the sentencing guidelines. Defendant agrees not to appeal the accuracy of any factor stipulated to in the attached worksheets."2 Id. at 14. The district court then sentenced Everard on June 2, 1993, to an incarceration term of ten months, followed by three years of supervised release. Id. at 155. After imposition of the sentence, the Assistant United States Attorney stated to the court that he believed the court was required to inform the defendant of his right to appeal. The court refused to do so, stating that because the sentence was within the guidelines and the defendant had accepted the guideline score, there would be no jurisdiction for an appeal, and thus the court had no duty to inform the defendant of a right that did not exist. Id. at 157-58. No direct appeal ensued.
3
On October 14, 1994, proceeding pro se, Everard filed a 28 U.S.C. § 2255 motion asserting that his guilty plea was in error (1) "because he was told by the sentencing judge that he could not appeal," and (2) because he did not realize that the car in question had been stolen at the time he transported it. J.A. at 45-46. He was appointed counsel for the habeas proceedings shortly after filing his § 2255 motion. The district court denied Everard's petition on February 6, 1995, but not before noting that "the [sentencing] Court would have been better advised to inform petitioner that he may have a right to appeal his sentence...." Id. at 53.3 On February 15, 1995, Everard filed a motion to reconsider the denial of the § 2255 motion. The motion to reconsider was also denied. Id. at 122-27. He then filed this timely appeal.
II
4
In reviewing the denial of a habeas corpus petition, this court applies a de novo standard of review to legal issues. Cardinal v. United States, 954 F.2d 359, 362 (6th Cir.1992). We uphold the district court's factual findings unless they are clearly erroneous. Id.
5
It is undisputed that the court imposing sentence in this case never advised Everard of any right to appeal. The narrow issue we are faced with is whether our holdings in United States v. Butler, 938 F.2d 702 (6th Cir.1991) (order), and United States v. Smith, 387 F.2d 268 (6th Cir.1967), extend to situations in which the defendant waives the right to appeal the sentence in the plea agreement. In Butler we stated that "the failure to advise a defendant of the right of appeal requires vacation of the sentence and remand to the district court for resentencing and notice as to the right of appeal." Butler, 938 F.2d at 703. This rule is based on the premise that the right to appeal a sentence is "so important that the District Judge should give the required advice even though the defendant is represented by counsel." Smith, 387 F.2d at 270.
6
A majority of the other circuits facing this issue have given a similar mandatory reading to Rule 32(a)(2). See United States v. Sanchez, 88 F.3d 1243, 1247 (D.C.Cir.1996); Reid v. United States, 69 F.3d 688, 689-90 (2d Cir.1995) (per curiam); United States v. Deans, 436 F.2d 596, 599 n. 3 (3d Cir.), cert denied, 403 U.S. 911, 91 S.Ct. 2211, 29 L.Ed.2d 688 (1971); Paige v. United States, 443 F.2d 781, 782 (4th Cir.1971); United States v. Benthien, 434 F.2d 1031, 1032 (1st Cir.1970). But see Tress v. United States, 87 F.3d 188, 189-90 (7th Cir.1996) (failure to inform defendant of his right to appeal is harmless error when defendant knew of that right); United States v. Drummond, 903 F.2d 1171, 1173-75 (8th Cir.1990), cert. denied, 498 U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 779 (1991) (same). As the D.C. Circuit stated in Sanchez: "The obvious purpose of Rule 32(a)(2) is to insure that all defendants who might wish to appeal are fully aware of their appeal rights." Sanchez, 88 F.3d at 1246 (quoting Benthien, 434 F.2d at 1032).
7
We believe that the rationale in Butler and the other cases giving a strict reading to Rule 32(a)(2) simply does not apply to the narrow situation in which a defendant knowingly and voluntarily waives his right to appeal. Indeed, a contrary result could lead to circumstances in which defendants are actually misinformed of their options on appeal, the opposite of what Rule 32(a)(2) and Butler were intended to accomplish. For instance, assume that a defendant waived his right to appeal a sentence in a valid Rule 11 agreement, but that the district judge then informed the defendant that he had a right to appeal the sentence. It is quite conceivable in this situation that the defendant would not know whether his waiver of the appeal in the plea agreement or the judge's statements regarding his right to appeal controlled. Facing this precise factual situation, the Ninth Circuit concluded: "Litigants need to be able to trust the oral pronouncements of district court judges. Given the district court judge's clear statements at sentencing, the defendant's assertion of understanding, and the prosecution's failure to object, we hold that in these circumstances, the district court's oral pronouncement controls and the plea agreement waiver is not enforceable." United States v. Buchanan, 59 F.3d 914, 918 (9th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 430, 133 L.Ed.2d 345 (1995). It is this potential for confusion that persuades us to conclude that the district court in this case did not err by refusing to give the Rule 32(a)(2) pronouncements to Everard.
8
In reaching this conclusion, we do not call into question the continuing vitality of Smith and Butler. Rather, we merely hold that when a defendant waives the right to appeal his sentence in a valid plea agreement, he cannot have his sentence vacated and his case remanded for notice as to the right to appeal his sentence and for resentencing solely on the ground that the district court failed to inform him of a right that did not exist.
III
9
Petitioner next argues that his plea agreement must be withdrawn because he did not enter into it knowingly, intelligently, and voluntarily. In particular, he contends that he did not know the car in question was stolen until after the interstate transportation concluded, and that he was not informed that such knowledge was a requirement under the statute. At the plea hearing, the following colloquy between the district judge and Everard occurred:
10
Q. Did you, on or about March 27th, 1990, in this district, unlawfully transport, caused [sic] to be transported in interstate commerce a stolen motor vehicle ... knowing the same had been stolen from Michigan to Florida violating the law?
11
A. Yes, your Honor.
12
J.A. at 138. Everard then went on to describe his precise role in the scheme and again admitted that he "did know the vehicle was stolen" prior to interstate transport. Id. at 139-40.
13
Petitioner's claimed lack of knowledge thus stands in stark contrast to his admissions of guilt before the district court. Furthermore, he has presented no support for his recent recantation. See United States v. Ludwig, 972 F.2d 948, 951 (8th Cir.1992) (stating that the "mere assertion of innocence, absent a substantial supporting record," is insufficient to overturn a guilty plea, even on direct appeal). We therefore hold that Everard knowingly, intelligently, and voluntarily entered into the plea agreement.
14
For the foregoing reasons, we AFFIRM the district court's decision denying Everard's petition for habeas corpus relief.
*
This decision was originally issued as an "unpublished decision" filed on October 15, 1996
1
At the time of Everard's sentencing, Federal Rule of Criminal Procedure 32(a)(2) provided that "after sentence is imposed following a plea of guilty ... the [district] court shall advise the defendant of any right to appeal the sentence." Fed.R.Crim.P. 32(a)(2) (1993). While this directive has been amended and is now incorporated in Rule 32(c)(5), its substance remains unchanged. See Fed.R.Crim.P. 32(c)(5) (1995) advisory committee's note. Because former Rule 32(a)(2) was in effect at the time of Everard's sentencing, it controls our analysis in this case
2
Counsel for Everard correctly notes that "[t]he [waiver] agreement did not include a specific provision that Mr. Everard agreed to waive all rights to appeal his plea or sentence." Brief for Appellant at 4 (emphasis in original). The lack of a specific waiver of all rights to appeal the sentence is troubling to us, given that the Government is arguing for such an interpretation of the waiver provision. Nonetheless, Everard did agree to waive all constitutional and legal challenges to the sentencing guidelines, as well as any challenges to the stipulations in the sentencing worksheets. We cannot identify, nor has Everard's counsel indicated, any other possible ground for an appeal. For this reason, we will treat the waiver as a waiver of all rights to appeal the sentence. Cf. United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir.1996) (treating identical plea language as a binding waiver of right to appeal sentencing issues)
3
It should be noted that the same district judge who imposed Everard's sentence denied his habeas petition. See Rules Governing Section 2255 Proceedings for the United States District Courts, Rule 4(a) (stating that so long as the sentencing judge is available, the habeas petition shall be assigned to that judge) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2858031/ | O'Hara
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-029-CR
PATRICK S. O'HARA,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. CR90-060, HONORABLE ROBERT WRIGHT, JUDGE PRESIDING
Patrick O'Hara was convicted in district court of three counts of aggravated sexual
assault of a child. Tex. Penal Code Ann. § 22.021 (1989). The jury assessed punishment and
the trial court sentenced O'Hara to fifty years, fifty years, and seventy-five years imprisonment
on the three respective counts. We affirm the trial court judgment as to counts one and three of
the indictment, and reverse the trial-court judgment as to count two.
BACKGROUND
In July 1988, Henry M., an eleven-year-old boy whose parents are divorced, went
to live with his father in Garden Ridge, Texas. There Henry met Patrick O'Hara, the appellant
and a friend of Harold M., Henry's father. Through O'Hara's friendship with Harold, O'Hara
had frequent contact with Henry, and the record reflects that O'Hara first attempted to sexually
assault Henry during the 1988 Labor Day weekend. From that point, O'Hara began a pattern of
sexual advances toward Henry that lasted until Henry was hospitalized for emotional problems in
early September 1989.
Henry returned to live with his mother after a month-long stay in the hospital. At
that time he confided to his mother that O'Hara had sexually assaulted him a number of times
between July 1988 and August 1989. This led to a police investigation, and O'Hara's eventual
arrest and conviction.
DISCUSSION
A. Insufficient Evidence.
In his first, second, and third points of error, O'Hara contends that there was
legally-insufficient evidence to show he committed the sexual acts alleged in the three counts of
the indictment. The first and second counts of the indictment alleged that on or about December
23, 1988 and June 5, 1989, O'Hara caused Henry's sexual organ to penetrate O'Hara's mouth.
The third count of the indictment alleged that on or about August 31, 1989, O'Hara penetrated
Henry's anus with O'Hara's sexual organ.
The elements of aggravated sexual assault relevant to this cause are: a person;
intentionally or knowingly; causes the sexual organ of a child to contact or penetrate the mouth,
anus or sexual organ of another person, including the actor; or causes the anus of a child to
contact the mouth, anus or sexual organ of another person, including the actor; and the victim is
younger than fourteen years of age. Tex. Penal Code Ann. § 22.021 (1989). For the State to
obtain a conviction on each count, the State must prove every necessary element of the alleged
offenses. In this case, O'Hara contends there is no evidence of sexual contact or penetration.
Henry testified at trial regarding all three instances of sexual assault. He stated that
on December 23, 1988, O'Hara told him to take off his clothes and that O'Hara "started playing
with my privates" and "put his mouth on my privates." Henry also testified that on June 5, 1989,
he spent the night at O'Hara's trailer and that O'Hara "pulled down my underwear and put his
mouth on my privates." Finally, Henry testified that on August 31, 1989, O'Hara "pulled down
my underwear and stuck himself into my rear end" and that O'Hara then "pulled his privates out
of me."
O'Hara asserts that there is no showing that O'Hara placed his mouth on Henry's
sexual organ on either December 23, 1988, or June 5, 1989. O'Hara also argues that the evidence
does not support the allegation that he penetrated Henry's anus on August 31, 1989. He argues
that because Henry did not define or describe the word "privates," one must speculate about the
meaning of Henry's testimony. O'Hara further contends that Henry's testimony does not show
that O'Hara actually penetrated Henry's mouth or anus with his sexual organ. Finally, he argues
that medical evidence should have been introduced at trial that would have supported Henry's
testimony regarding anal penetration. O'Hara thus concludes that Henry's testimony does not
provide sufficient evidence from which a rational trier of fact could have found the elements of
these three alleged crimes beyond a reasonable doubt.
In a sexual assault case, even if the victim is a child, the victim's testimony alone
is sufficient evidence of penetration to support a conviction. Villanueva v. State, 703 S.W.2d
244, 245 (Tex. App. 1985, no pet.). Moreover, in examining the testimony of a child, the courts
have kept in mind the child's lack of technical knowledge in accurately describing the parts of the
body. See Clark v. State, 558 S.W.2d 887, 889 (Tex. Crim. App. 1977); Chase v. State, 750
S.W.2d 41, 44 (Tex. App. 1988, pet. ref'd); Bryant v. State, 685 S.W.2d 472, 474 (Tex. App.
1985, pet ref'd). In the instant case, although Henry used unsophisticated language, he testified
unequivocally that O'Hara committed the offenses charged in the indictment. In addition to
Henry's testimony, Graciela Clarke, a New Braunfels counselor, recounted her interview with
Henry from which she concluded that he had been sexually abused.
When reviewing a challenge to the legal sufficiency of the evidence to support a
conviction, the appellate court must determine whether, viewing the evidence in the light most
favorable to the conviction, 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); Butler v.
State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). We believe Henry's testimony sufficiently
described sexual contact and penetration. Thus, in viewing Henry's testimony in the light most
favorable to he verdict, we hold that there is sufficient evidence of the sexual acts alleged in the
indictment to sustain O'Hara's convictions. Accordingly, we overrule O'Hara's first three points
of error.
B. Joinder of Offenses.
In his fourth point of error, O'Hara asserts that the State violated the joinder rule
by putting three separate offenses of sexual assault within one indictment. Thus, O'Hara
contends that this court can only uphold one of his three convictions.
The Code of Criminal Procedure provides that "two or more offenses may be joined
in a single indictment, information, or complaint, with each offense stated in a separate count, if
the offenses arise out of the same criminal episode, as defined in Chapter 3 of the Penal Code."
Tex. Code Crim. Proc. Ann. art. 21.24 (1989). That chapter defines "criminal episode" as:
The commission of two or more offenses, regardless of whether the harm is
directed toward or inflicted upon more than one person or item of property, under
the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two
or more transactions that are connected or constitute a common scheme or plan;
or
(2) the offenses are repeated commission of the same or similar offenses.
Tex. Penal Code Ann. § 3.01 (Supp. 1992).
The indictment in this cause charges O'Hara with three separate counts of sexual
assault upon Henry. The record reflects that O'Hara made a series of sexual advances toward
Henry over a period of a year and succeeded in sexually assaulting him on three occasions. We
believe these three instances constitute a "repeated commission of the same or similar offenses"
and therefore conclude that the State properly joined the three offenses in the same indictment.
We overrule this point of error.
C. Venue.
In his fifth point of error, O'Hara seeks to reverse the second count of his
conviction on the ground that the record affirmatively disproves the State's allegation of venue.
The second count of the indictment charged O'Hara with committing aggravated sexual assault
in Comal County on June 5, 1989.
Henry testified at trial that the sexual assault of June 5, 1989, occurred when Henry
and his father spent the night at O'Hara's home. O'Hara's sister, Charlyn Finger, testified at trial
that she resides with O'Hara at 16720 IH 35 North, Lot #29 in Schertz, Texas, which is located
in Guadalupe County. Harold Miller likewise testified that O'Hara's home is located in
Guadalupe County. Finally, the manager of the trailer park where O'Hara resides testified that
O'Hara had been a tenant at the trailer park for approximately four years.
Rule 80 of the Rules of Appellate Procedure provides that the court of appeals
"shall presume that venue was proved in the court below . . . unless such matters were made an
issue in the court below, or it otherwise affirmatively appears to the contrary from the record."
Tex. R. App. P. Ann. 80(d) (Pamph. 1991) (emphasis added). The phrase "or it otherwise
affirmatively appears to the contrary from the record" means "affirmative and conclusive proof
in the record that the venue of prosecution was improperly laid." Holdridge v. State, 684 S.W.2d
766, 767 (Tex. App. 1984), aff'd, 707 S.W.2d 18 (Tex. Crim. App. 1986).
Venue must be proved as alleged. Black v. State, 645 S.W.2d 789, 790 (Tex.
Crim. App. 1983). The evidence in this case established that O'Hara's home, the situs of the
second offense, is located in Guadalupe County, whereas the indictment alleged that the second
offense occurred in Comal County. Failure to prove venue in the county of prosecution
constitutes reversible error. See id. at 791; Romay v. State, 442 S.W.2d 399, 400 (Tex. Crim.
App. 1969). See also Tex. R. App. P. Ann. 81(b)(2) (Pamph. 1991). Accordingly, we must
reverse and dismiss O'Hara's conviction on the second count of the indictment. Following this
dismissal, the State is of course free to seek an indictment against O'Hara in the proper county.
D. Ineffective Assistance of Counsel.
In his sixth and seventh points of error, O'Hara claims that his convictions should
be reversed because he received ineffective assistance of counsel. To prevail on his ineffective
assistance claim, O'Hara must show: (1) that counsel's performance was deficient, in that counsel
made such serious errors that he was not functioning effectively as counsel; and (2) the deficient
performance prejudiced the defense to such a degree that appellant was deprived of a fair trial.
Strickland v. Washington, 466 U.S. 688 (1984); Hernandez v. State, 726 S.W.2d 53, 57 (Tex.
Crim. App. 1986).
In deciding an ineffectiveness claim, this court must judge the reasonableness of
counsel's challenged conduct on the facts of the particular case, viewed at the time of counsel's
conduct. The court must then determine whether, in light of all the circumstances, the identified
acts or omissions are outside the wide range of professionally competent assistance. Strickland,
466 U.S. at 690. "Prejudice" is demonstrated when the convicted defendant shows that there is
a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome of the trial. Id. at 694; Ex parte Guzmon, 730 S.W.2d 724, 733 (Tex.
Crim. App. 1987).
It is O'Hara's burden to prove an ineffective assistance claim. Moore v. State, 694
S.W.2d 528, 531 (Tex. Crim. App. 1985). He must identify the acts or omissions of counsel that
are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S.
at 690. In his sixth point of error, O'Hara argues that he received ineffective assistance of
counsel because his trial attorney failed to properly summon witnesses to testify in his defense.
He identifies five instances in which he claims trial counsel improperly failed to call defense
witnesses.
O'Hara complains that trial counsel failed to call Dr. Cary Leverett as a witness
to give a medical opinion that O'Hara was unable to have an erection. Thus, O'Hara contends
that trial counsel left out important evidence proving that he had no motive for committing the
charged offenses. O'Hara does not contend, however, that his trial counsel failed to seek out and
interview Dr. Leverett or otherwise pursue a defense on O'Hara's behalf.
The record reflects that before trial, O'Hara's counsel filed a motion to dismiss on
the basis that it was physically impossible for O'Hara to commit the acts charged against him.
Attached to the motion was a letter from Dr. Leverett which stated in relevant part:
[O'Hara] states that he has never had intercourse and that since the age of eleven
or twelve anytime he obtained an erection it was very painful. Based on this
statement we did a three day testing called a Dacomed Snap Gauge that checks for
rapid eye movement erections during sleep. Mr. O'Hara was only able to snap the
weakest portion of the gauge which suggests inability to make penetration. . . . If
I were to place this man under a diagnosis I would basically state that he has
organic erectile impotence secondary to lymphatic leukemia.
(emphasis added).
Although this letter indicates Dr. Leverett's probable testimony if he had been
called to the stand in O'Hara's defense, it does not demonstrate that Dr. Leverett could have
proved that O'Hara was unable to committ the charged offenses. We note that O'Hara's alleged
impotence has no bearing whatsoever on two of the charged offenses, which require proof that
Henry's sexual organ penetrated O'Hara's mouth.
Moreover, the record reflects that O'Hara's counsel had subpoenaed Dr. Leverett
to testify, but that events developed during trial that may have caused him not to call Dr. Leverett
to the stand. During a hearing on a motion to suppress evidence, the State presented evidence on
voir dire that police had seized a vibrator, condoms, baby oil, and handcuffs during a warrantless
search of O'Hara's home. The judge ruled that the search was made lawfully with the consent
of Charlyn Finger, a person who had possession of the premises and standing to give consent to
search. The judge then ruled that evidence of the vibrator and condoms was admissible at trial
in the event that counsel asserted the issue of O'Hara's impotence or ability to have an erection.
Thus, had Dr. Leverett been called as a witness, the prosecution would have been free to bring
this damaging evidence to the jury. These circumstances indicate to us that trial counsel's
decision not to call Dr. Leverett as a witness was based on trial strategy, rather than an omission
that reflected the lack of reasonable professional judgment.
O'Hara also complains in this point of error that trial counsel improperly failed to
call the following witnesses: (1) a physician who had medically examined Henry and could not
verify that anal penetration actually had occurred; (2) another physician who could have testified
about Henry's mental condition and thus could have damaged Henry's credibility as a witness; and
(3) a witness to testify that Henry was hospitalized on August 31, 1989, the date of the third
offense. Finally, O'Hara complains that his attorney made him sign a paper stating that he would
not testify at trial, and that had he been allowed to take the stand, he would have testified that
Henry's parents had molested Henry.
Beyond assertions in his brief, O'Hara's contentions lack supporting proof.
Counsel's failure to call witnesses at the guilt-innocence stage of a trial is irrelevant absent a
showing that the witnesses were available and that the appellant would have benefitted from the
presentation of their testimony. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983);
Hunicutt v. State, 531 S.W.2d 618, 625 (Tex. Crim. App. 1976). Here, the record reflects
neither the names of these three potential witnesses nor their abilities to testify about these
matters. The record also contains no proof that Henry had been molested by his parents. Finally,
the record contains no evidence of a document which would have prevented O'Hara from taking
the stand in his own defense.
Before counsel can present a point of error on appeal that is grounded on facts not
otherwise shown on the record, counsel should adduce such facts in a motion for new trial. Tex.
R. App. P. Ann. 30 (Pamph 1991). Here, O'Hara's counsel filed no motion for new trial before
this appeal. Accordingly, we have no basis from which to determine whether O'Hara's trial
counsel rendered ineffective assistance by failing to call these witnesses in O'Hara's defense.
In his seventh point of error, O'Hara argues that he was denied effective assistance
of counsel because his trial counsel failed to object to a series of extraneous acts that resulted in
admission of prejudicial evidence. Specifically, O'Hara complains that trial counsel failed to
object to Henry's testimony regarding three different sexual advances O'Hara allegedly made
toward Henry.
The State elicited the following testimony regarding the first time O'Hara attempted
to assault Henry:
Q: What did Pat O'Hara say to you?
A: He told me to take my clothes off.
Q: And what did he do then?
A: He told me -- he made me bend over on my bed and put my hands down on
it.
Q: What did he do after that?
A: He tried to stick himself in me and I wouldn't let him.
Henry then testified that O'Hara again attempted to sexually assault him a few
weeks later:
Q: Did Pat O'Hara try to do anything to you when you-all went swimming?
A: Yes.
Q: And what did he do or try to do?
A: He tried to stick his privates in my rear again.
Henry also testified that O'Hara made advances to him during a trip to San
Antonio:
Q: Did Pat O'Hara ever try to do anything to you when you went to San
Antonio?
A: When I was in the hot tub he'd get in the hot tub with me and be trying to
pull down my shorts or something.
O'Hara argues that the testimony of these extraneous acts might well have affected the outcome
and influenced the fundamental fairness of the trial.
An accused may not be tried for a collateral crime or for being a criminal
generally. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983). This general rule
prevents admission of extraneous offense evidence unless an exception to the rule applies. Meyers
v. State, 737 S.W.2d 6, 9 (Tex. App. 1987, no pet.). In Texas, courts have long recognized a
narrow exception for admission of evidence of similar extraneous sexual offenses or acts between
a defendant and a minor complainant. Boutwell v. State, 719 S.W.2d 164, 178 (Tex. Crim. App.
1985). In such cases, evidence of extraneous sexual acts is admissible where the extraneous acts
are relevant to a material issue or can help to explain the circumstances of the charged act by
placing it in the proper context of the relationship between the minor and the adult. Id. at 178-79.
Even if trial counsel had objected to Miller's testimony of extraneous offenses, we
believe the testimony would have been admissible under the narrow exception set forth in
Boutwell. Not only does this evidence explain the context in which the charged offenses arose,
but it may also be viewed as evidence of a common scheme or plan to sexually assault Henry.
Id. at 180-81. We therefore cannot say that trial counsel rendered ineffective assistance by failing
to object to a series of extraneous acts which were properly admissible at trial.
Counsel is strongly presumed to have rendered adequate assistance and to have
made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466
U.S. at 690. Here, the record reflects that O'Hara's trial counsel called six character witnesses
to testify in O'Hara's defense, attempted to have this cause dismissed before trial on the basis of
physical impossibility to commit the crime, and attempted at trial to suppress evidence damaging
to O'Hara. By contrast, reasonable explanations exist for counsel's failure to call Dr. Leverett
as a witness or object to the extraneous evidence admitted at trial. Looking at the totality of the
circumstances at the time of counsel's conduct, we cannot say that counsel acted outside the range
of professionally competent assistance in defending O'Hara. Because O'Hara has not met his
burden of proof to show ineffective assistance of counsel, we overrule his sixth and seventh points
of error.
E. Jurisdiction.
In his eighth point of error, O'Hara argues that this court should reverse the
judgment against him because the police officers who arrested him were operating outside of their
jurisdictions.
Steven Starr, a police officer with the City of Schertz, and Parus Dudley, the
Garden City Chief of Police, testified that they were the officers who arrested O'Hara in
December 1989. These officers, along with two others, first went to O'Hara's home in Schertz,
which they searched with the consent of O'Hara's sister. After finding that O'Hara was not at
home, Starr and Dudley went to O'Hara's place of business in San Antonio and arrested him
there. The officers then took O'Hara to the justice of the peace in Universal City, where he was
read his Miranda warnings, then to the Schertz police department for processing, and finally to
the Comal County jail.
O'Hara asserts that the officers were operating outside of their jurisdictions when
they arrested him in San Antonio, which is in Bexar County. However, the Code of Criminal
Procedure provides the following with respect to arrest warrants:
A warrant of arrest, issued by any county or district clerk, or by any magistrate
(except mayors of an incorporated city or town), shall extend to any part of the
State; and any peace officer to whom said warrant is directed, or into whose hands
the same has been transferred, shall be authorized to execute the same in any
county in this State.
Tex. Code Crim. Proc. Ann. art. 15.06 (Supp. 1992) (emphasis added).
In this case, Dudley had an arrest warrant signed by Judge Phillips of Garden
Ridge. Article 15.06 plainly states that any peace officer to whom a warrant is directed or has
been transferred may execute the warrant in any county in the state. In Christopher v. State, 489
S.W.2d 575, 577 (Tex. Crim. App. 1973), the court of criminal appeals, citing article 15.06,
concluded that a Menard County sheriff acted lawfully when he searched for and arrested a person
in Tom Green County.
A city police officer is a peace officer. Green v. State, 490 S.W.2d 826, 827 (Tex.
Crim. App. 1973). We thus conclude that Officer Dudley did not act outside of his jurisdiction
in arresting O'Hara in San Antonio. We overrule this point of error.
DISPOSITION
We affirm the trial court judgment as to counts one and three of O'Hara's
conviction. We reverse the trial-court judgment as to count two, and order that count two of the
indictment be dismissed.
Jimmy Carroll, Chief Justice
[Before Chief Justice Carroll, Justices Aboussie and Kidd]
Affirmed in Part; Reversed, Remanded and Indictment Ordered Dismissed in Part
Filed: January 29, 1992
[Publish] | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1561438/ | 18 So.3d 265 (2009)
Gwen JENKINS, on behalf of the Wrongful Death Beneficiaries of Thomas Jenkins, Deceased, Appellant,
v.
Frank TUCKER, M.D. and Jeff Anderson Regional Memorial Center d/b/a Anderson Infirmary Benevolent Corporation Association, Appellees.
No. 2007-CA-01273-COA.
Court of Appeals of Mississippi.
February 17, 2009.
Rehearing Denied June 16, 2009.
Certiorari Denied October 1, 2009.
*268 Don H. Evans, Jackson, Kenneth Charles Miller, attorneys for appellant.
Chris J. Walker, Ridgeland, Romney Hastings Entrekin, Laurel, John Lewis Hinkle, Bridgette Trenette Thomas, Ridgeland, Peeler Grayson Lacey, attorneys for appellees.
Before MYERS, P.J., ISHEE and CARLTON, JJ.
MYERS, P.J., for the Court.
¶ 1. Gwen Jenkins (Jenkins), on behalf of the wrongful death beneficiaries of Thomas Jenkins, filed suit against Jeff Anderson Regional Memorial Center (Anderson Hospital) and Dr. Frank Tucker. The complaint alleged that on February 20, 1999, Thomas was admitted to Anderson Hospital with three gunshot wounds. He ultimately died on December 20, 1999, allegedly as a result of the defendants' failure to recognize and treat certain complications from his initial injuries. Approximately five years after the complaint was filed, the trial court dismissed the suit without prejudice for want of prosecution, and Jenkins appeals from that judgment. Finding no error, we affirm.
FACTS
¶ 2. The procedural history of this case, being particularly important to the issues on appeal, will be recited in detail.
¶ 3. Jenkins, represented by attorney Don Evans, filed the complaint on February 20, 2001. Dr. Tucker filed his answer on March 20, 2001, and Anderson Hospital filed its answer two days later on March 22.
¶ 4. At the time Jenkins filed her complaint, she also propounded discovery requests to the defendants. Dr. Tucker responded to Jenkins's discovery requests on March 23, 2001, and Anderson Hospital responded on August 24, 2001. Although Jenkins responded to Dr. Tucker's discovery requests on June 26, 2001, Jenkins did not respond to Anderson Hospital's discovery requests propounded on August 30, 2001. On October 5, 2001, several subpoenas duces tecum were issued on behalf of Dr. Tucker for Thomas's medical records, addressed to several medical providers. The returns on the subpoenas were filed on October 18, 2001.
¶ 5. There were no other actions of record until May 12, 2003, when Anderson Hospital filed a "Motion to Stay Proceedings and Other Relief" based on the insolvency of its insurance carrier. The motion requested a stay of at least ninety days or until further order of the court. Jenkins did not file a response, and the trial court did not enter an order on the motion.
¶ 6. On June 23, 2003, Anderson Hospital filed a second motion to stay, stating that its insurance provider had been placed in liquidation on June 20, 2003, and was, therefore, subject to the Mississippi Insurance Guaranty Act. See Miss.Code Ann. §§ 83-23-101 to XX-XX-XXX (Rev. *269 1999). This motion sought an order to stay the action for an initial period of six months from the date of the liquidation order or until December 20, 2003. Again, Jenkins did not file a response, and the trial court did not enter an order on this second motion.
¶ 7. No further actions of record were taken prior to March 24, 2005, when the Lauderdale County Circuit Clerk filed a motion to dismiss for want of prosecution. Jenkins's counsel, Evans, responded to the clerk's motion with a facsimile letter requesting that the clerk not dismiss. The letter stated that Jenkins had not pursued any action in the case for a time because the insurance carrier for Anderson Hospital was in receivership and ultimately liquidation. The letter acknowledged that counsel for Anderson Hospital had now informed Jenkins that the grounds for a stay no longer existed. Evans asserted that he was working with defense counsel to set depositions of the parties.
¶ 8. No action of record was taken by Jenkins following the letter. On July 13, 2006, the circuit clerk filed a second motion to dismiss for want of prosecution. On July 19, 2006, Jenkins filed a motion for trial setting and an appearance by another attorney, Kenneth C. Miller.
¶ 9. On August 31, 2006, Anderson Hospital filed a motion to dismiss under Mississippi Rule of Civil Procedure 41(b), which was joined by Dr. Tucker on September 18, 2006. The motion asserted that Jenkins had failed to prosecute the case since serving discovery on Dr. Tucker on July 27, 2001, a delay of approximately sixty-one months. The motion also asserted that Anderson Hospital propounded interrogatories and requests for production of documents to Jenkins on August 30, 2001, but it had not received a response after five years. Jenkins responded, asserting that she had not prosecuted the action because of Anderson Hospital's motions to stay, and from June 22, 2003, until March 2005, she was unaware that the stay had been lifted. Jenkins also stated that the delay following the first clerk's motion to dismiss was caused by Anderson Hospital's failure to respond to a letter requesting deposition dates for three hospital employees. Jenkins conceded that she had not answered the discovery requests, but she argued that this should be excused because the defendants never filed motions to compel.
¶ 10. The trial court, in a fifteen-page memorandum opinion, found that Jenkins repeatedly delayed prosecution. The court found dilatory conduct in Jenkins's failure to investigate the existence of continuing grounds for a stay, Jenkins's inaction for fourteen months between the first and second clerk's motion, and Jenkins's failure to respond to discovery requests. It also determined that further lesser sanctions would be futile and concluded that no lesser sanction could remedy the prejudice suffered by the defendants after such a lengthy delay. Accordingly, the trial court granted the defendants' motion and dismissed Jenkins's suit without prejudice. This appeal followed.
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DISMISSING THE CASE FOR WANT OF PROSECUTION.
¶ 11. Trial courts have the inherent authority to dismiss cases for lack of prosecution as a means of controlling the court's docket and ensuring the "orderly expedition of justice." Watson v. Lillard, 493 So.2d 1277, 1278 (Miss.1986). Rule 41(b) of the Mississippi Rules of Civil Procedure provides for dismissal of a case upon the motion of the defendant for failure to prosecute. On appeal, this Court reviews such a decision for an abuse of *270 discretion. Cox v. Cox, 976 So.2d 869, 874 (¶ 11) (Miss.2008).
¶ 12. Dismissals for want of prosecution should be employed reluctantly, and while "[t]here is no set time limit for the prosecution of an action ... where the record shows that a plaintiff has been guilty of dilatory or contumacious conduct, or has repeatedly disregarded the procedural directives of the court, such a dismissal is likely to be upheld." Vosbein v. Bellias, 866 So.2d 489, 493 (¶ 6) (Miss.Ct. App.2004) (quoting Watson, 493 So.2d at 1279).
¶ 13. The supreme court has propounded three factors for an appellate court to consider in reviewing dismissals under Rule 41(b): (1) whether the conduct of the plaintiff can be considered contumacious or dilatory; (2) whether lesser sanctions could be applied; and (3) other aggravating factors. Am. Tel. and Tel. Co. v. Days Inn of Winona, 720 So.2d 178, 181-82 (¶¶ 14, 17, 19) (Miss.1998). While contumacious or dilatory conduct may be sufficient to support affirmance, factors other than delay are typically present when a dismissal with prejudice under Rule 41(b) is upheld. Cox, 976 So.2d at 874-75 (¶¶ 16-17).
(1) Contumacious or Dilatory Conduct
¶ 14. The trial court found a clear record of delay, and such appears to be evident from the record. Jenkins undertook no action of record from approximately June 2001 until the clerk's first motion to dismiss, which was filed on March 24, 2005. Other than the facsimile letter to the circuit clerk requesting that the cause not be dismissed, Jenkins took no other action of record prior to the clerk's second motion to dismiss filed on July 13, 2006. Jenkins also failed to respond to discovery requests for a period of more than five years.
¶ 15. Jenkins concedes that there has been substantial delay, but she argues the trial court erred in attributing it to the plaintiff or in not finding it excusable. The supreme court has suggested that delay by the plaintiff, under some circumstances, may be excusable. See, e.g., Cox, 976 So.2d at 875 (¶¶ 20-21) (discussing efforts to substitute counsel and settlement negotiations as examples of potentially excusable delay).
¶ 16. In particular, Jenkins argues that the delay was primarily a result of Anderson Hospital's motions to stay. The trial court acknowledged this argument, but it noted, and we agree, that only a small part of the delay can be excused as a result. This cannot explain the approximately twenty-month delay by Jenkins prior to the first motion to stay being sought. It also does not excuse Jenkins's apparent lack of vigilance in failing to reply to the motion for a stay or even inquire of the continuing need for a stay, prior to the first clerk's motion to dismiss being filed on March 24, 2005.[1]
¶ 17. Jenkins also asserts that the delay over the fourteen months between the first and second clerk's motions to dismiss is attributable to Anderson Hospital's failure to reply to the letter sent by her attorney requesting deposition dates. However, this Court has considered this argument before and found it meritless:
At the hearing to set aside the dismissal, the [plaintiffs] stated that they had continued to attempt to schedule the deposition with the remaining physician. They contended that they asked opposing counsel to schedule the deposition. *271 While they understood they could have subpoenaed the physician to be deposed, they chose to attempt to schedule the deposition without taking such an action. One year later, when [the defendant's] motion to dismiss was filed, essentially nothing had occurred in the case. This can clearly be seen as dilatory conduct.
Hasty v. Namihira, 986 So.2d 1036, 1040 (¶ 17) (Miss.Ct.App.2008).
¶ 18. Jenkins also argues that after her first attorney associated Miller, she began prosecuting the case. She argues that it would be inequitable to allow the defendants to sit idle and only seek to dismiss for want of prosecution in response to renewed activity from the plaintiff. The supreme court, however, has recently rejected this argument. See Cox, 976 So.2d at 879-80 (¶¶ 47-51) (holding that a trial court retains discretion to dismiss prior to consideration of the merits of a case because "the responsibility to prosecute a case rests with the plaintiff, not the defendant").
¶ 19. Finally, Jenkins argues that the trial court erred in finding culpable delay in her failure to respond to Anderson Hospital's discovery requests prior to the filing of the defendants' motion to dismiss, approximately five years after the requests were made. Jenkins asserts that Anderson Hospital cannot now complain because it never sought to compel discovery. We do not see this as excusing Jenkins's failure to answer, especially as Jenkins also argues that she had already addressed the substance of Anderson Hospital's request in her replies to Dr. Tucker's discovery requests in the first few months of litigation. If this is the case, no explanation was offered as to why the same information could not have been provided to the other defendant in a timely manner.
¶ 20. Considering the record before us, we find that the trial court did not abuse its discretion in finding a clear record of delay.
(2) Lesser Sanctions
¶ 21. Lesser sanctions may include fines, costs, or damages against the plaintiff or her counsel, attorney disciplinary measures, conditional dismissal, dismissal without prejudice, and explicit warnings. Days Inn of Winona, 720 So.2d at 181-82 (¶ 17) (citing Wallace v. Jones, 572 So.2d 371, 377 (Miss.1990)). A clerk's notice of dismissal, being an explicit warning, is a lesser sanction. Hasty, 986 So.2d at 1041 (¶ 18). An appellate court should be less likely to uphold a dismissal where there is no indication in the record that the trial court considered lesser sanctions. Cox, 976 So.2d at 874-75 (¶¶ 16-17). We will not presume that lesser sanctions were considered unless there is some indication that the trial court considered them; that lesser sanctions were argued before is sufficient. Id. at 876 n. 10. Lesser sanctions will not suffice where they cannot cure prejudice suffered by a defendant from the delay. Id. at 876 (¶ 26).
¶ 22. Jenkins argues that the trial court did not consider alternative sanctions, but it is apparent from the record that lesser sanctions were not only argued before the trial court, but they were expressly considered and rejected in its memorandum opinion.
¶ 23. Jenkins also argues that the trial court erred in its finding that lesser sanctions would be futile, but this argument is without merit as well. The trial court found that Jenkins had essentially ignored the first clerk's motion to dismiss for the fourteen months prior to the clerk's second motion. It also found a clear history of delay stretching back more than five years and some presumed prejudice to the defendants that could not be cured by lesser sanctions. Under such circumstances, *272 we cannot say the trial court abused its discretion in finding further lesser sanctions to be futile.
(3) Other Aggravating Factors
¶ 24. Aggravating factors bolster a case for dismissal, but they are not required even when dismissal is with prejudice. Hasty, 986 So.2d at 1041 (¶ 20) (citing Hine v. Anchor Lake Prop. Owners Ass'n, 911 So.2d 1001, 1006 (¶ 22) (Miss.Ct. App.2005)). Aggravating factors may include: "(1) whether the delay was caused by the party as opposed to his counsel[;] (2) whether there was actual prejudice to the opposing party[;] and (3) whether the delay was an intentional attempt to abuse the judicial process." Id. at 1041(¶ 19) (citing Days Inn of Winona, 720 So.2d at 182(¶ 19)).
¶ 25. There is no evidence in the record that Jenkins, as opposed to her attorney, was personally responsible for the delay. Nonetheless, the supreme court has stated that a party must bear some responsibility for a long delay in which no substantive action is taken. Cox, 976 So.2d at 877(¶ 31). Although the five years of delay in the instant case is significantly less than the almost nine years the supreme court considered in Cox, we find that Jenkins herself must bear some modicum of responsibility for the delay in this case.
¶ 26. Similarly, although there was no evidence of actual prejudice to the defendants, prejudice may also be presumed for unreasonable delay; but the preference for a decision on the merits must be weighed against any such presumption. Id. at 879(¶ 44). A trial court may, therefore, decide to excuse a plaintiff's lack of diligence in the absence of proof of any actual prejudice to the defendant. Id.
¶ 27. The defendants argued that memories would have faded in the seven years since the incident, but they did not put on any proof to that effect in support of their motion to dismiss. Nonetheless, we have held that similar delays entitle defendants to some presumption of prejudice, even where most of the fact witnesses had been timely deposed. See Hasty, 986 So.2d at 1041(¶ 20). Accordingly, we find that the trial court did not err in finding some presumed prejudice to the defendants.
(4) Conclusion
¶ 28. Considering the clear record of delay, the trial court's consideration and rejection of lesser sanctions, and the presence of aggravating factors, we find that the trial court did not abuse its discretion in dismissing the suit for want of prosecution.
¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.
NOTES
[1] The second motion for stay was filed by Anderson Hospital on June 20, 2003, approximately twenty-one months before the first clerk's motion to dismiss. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3033167/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2756
___________
Roy Bales, Sr., *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Northern
John F. Ault; Russell Behrends; Jim * District of Iowa.
Slaw; Katherine Lint; Marvin Kent; *
Phil Kauder; Don Folkerts; Mary Rose; * [UNPUBLISHED]
Lisa M. Krigsten; Robert Raymond *
Butler; and Thomas J. Miller, *
*
Appellees. *
___________
Submitted: December 5, 2003
Filed: December 15, 2003
___________
Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
PER CURIAM.
Roy Bales, Sr., appeals the district court’s* preservice dismissal of Bales’s civil
action, and the district court’s denial of Bales’s motions for reconsideration. We
conclude most of Bales’s claims are res-judicata barred, because a final judgment on
*
The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
the merits was rendered in an earlier federal case involving the same parties and these
same claims. See Canady v. Allstate Ins. Co., 282 F.3d 1005, 1014 (8th Cir. 2002)
(elements of res judicata). We further conclude any new allegations made by Bales
in his complaint fail to state claims on which relief could be granted. See Ballinger
v. Culotta, 322 F.3d 546, 548 (8th Cir. 2003) (this court may affirm for any reason
supported by record). Finally, we conclude the district court did not abuse its
discretion in denying the motions for reconsideration, whether brought under Federal
Rule of Civil Procedure 59(e) or 60(b). See Perkins v. U S West Communications,
138 F.3d 336, 340 (8th Cir. 1998) (standard of review for Rule 59(e) motions);
Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 905 (8th Cir. 1997) (standard
of review for Rule 60(b) motions). Accordingly, we affirm. See 8th Cir. R. 47A(a).
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/382683/ | 631 F.2d 1154
John Calvin HALL, Appellant,v.Clendenin G. QUILLEN, and William L. Griggs, M. D. and AliceShelton, Gate City, Virginia, administratrix ofthe estate of Albert Mack Shelton,deceased, Appellees.
No. 78-1412.
United States Court of Appeals,Fourth Circuit.
Argued Feb. 8, 1979.Decided Oct. 17, 1980.
Gerald L. Gray, Clintwood, Va., for appellant.
William W. Eskridge, Abington, Va. (Penn, Stuart, Eskridge & Jones, Abington, Va., on brief), Frederick W. Adkins, Norton, Va. (Cline, McAfee, Adkins & Glinnenwater, Norton, Va., on brief), for appellees.
Before WINTER, RUSSELL and WIDENER, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This is a § 1983, 42 U.S.C., action against the judge who heard and issued an order for the plaintiff's involuntary commitment to the Southwestern State Hospital (Virginia), the physician who, under court appointment, examined him, in connection with the disposition of such proceedings, and the attorney who represented him in those proceedings. The district court, in a carefully considered opinion, dismissed the action against all three defendants on the ground of immunity.1 The plaintiff has appealed. We affirm, though not precisely on the grounds stated by the district court.
The plaintiff does not contest seriously the dismissal of the action against the judge. This is understandable in view of the recognized immunity enjoyed by judicial officers. He takes issue, however, with the dismissal of the actions against the physician and the attorney on immunity grounds. By a supplemental brief, he urges that the decision of the Supreme Court in Ferri v. Ackerman, (1979) 444 U.S. 193, 202-204, 100 S. Ct. 402, 408-409, 62 L. Ed. 2d 355, decided subsequent to the decision below, as well as subsequent to oral argument in this court, undercut the continued vitality of Minns v. Paul, on which the district court had relied in absolving the physician and attorney of any liability on immunity grounds, and he urges reversal as to these defendants on the basis of Ferri. We do not agree that the decision in Ferri requires reversal.
It may be conceded that Ferri does cast serious doubt on the continued vitality of the Minns immunity doctrine in this context, and were immunity the only issue in the case we would be disposed to view with greater favor the plaintiff's claim. But immunity as a defense only becomes a relevant issue in a case such as this under § 1983 if the court has already determined affirmatively that the action of the defendant represented state action. This is so because state action is an essential preliminary condition to § 1983 jurisdiction, and a failure to find state action disposes of such an action adversely to the plaintiff. Martinez v. California, (1980) 444 U.S. 277, at 283-285, 100 S. Ct. 553, at 558-59, 62 L. Ed. 2d 481, at 488-89.
The sole question considered in Ferri was not whether there was state action within the coverage of § 1983 but whether, by virtue of the federal court appointment of counsel, federal laws so pre-empted the question of such counsel's liability arising out of his representation under the appointment that a state action for malpractice in connection with that representation was precluded on federal immunity grounds. Thus Mr. Justice Stevens in his opinion said (444 U.S. at 197, 100 S. Ct. at 405):
1
"The narrow issue presented to this Court is whether federal law in any way pre-empts the freedom of a State to decide the question of immunity in this situation in accord with its own law."
2
In short, the issue in Ferri was simply whether private counsel, appointed by a federal court, thereby acquired absolute immunity from a state-recognized and state-established action for malpractice in that representation. That issue and that issue only was involved and that issue alone was decided in Ferri.
3
Accordingly, the initial and threshold issue here is not immunity but whether a state-appointed counsel or physician can be liable under § 1983 in an action in federal court, or, otherwise stated, is the representation by the counsel and the action of the physician in such a situation state action? This was a question on which we reserved decision in Minns v. Paul but it is a question that other circuit courts, with complete unanimity, have answered by declaring unequivocally that there is a lack of state action in such a situation, and, consequently, no liability under § 1983. Jackson v. Salon, (1st Cir. 1980) 614 F.2d 15, 17;2 Housand v. Heiman, (2d Cir. 1979) 594 F.2d 923, 925-26; United States ex rel. Simmons v. Zibilich, (5th Cir. 1976) 542 F.2d 259, 261; Harkins v. Eldredge, (8th Cir. 1974) 505 F.2d 802, 803; Espinoza v. Rogers, (10th Cir. 1972) 470 F.2d 1174, 1175;3 Szijarto v. Legeman, (9th Cir. 1972) 466 F.2d 864; Thomas v. Howard, (3d Cir. 1972) 455 F.2d 228, 229; Milligan v. Schlachter, (6th Cir. 1968) 389 F.2d 231, 233. For decisions to the same effect within our Circuit, though not by us, see Johnson v. Harris, (D.Md.1980) 483 F. Supp. 710, 712; Shelton v. Randolph, (W.D.Va.1974) 373 F. Supp. 448, 449; Wood v. Commonwealth of Virginia, (W.D.Va.1971) 320 F. Supp. 1227, 1229; Vance v. Robinson, (W.D.N.C.1968) 292 F. Supp. 786, 788. There is nothing in the Ferri opinion remotely suggesting that this established principle, so often repeated, was erroneous; in fact, the clear implication of its language is to the contrary. See Johnson v. Harris, supra, 483 F.Supp. at 712. We accordingly conclude that, whether the physician and the lawyer in this case enjoy immunity or not, under the principles suggested in Ferri, they were entitled to the dismissal of plaintiff's § 1983 action against them for want of state action.
4
For the reasons set forth above the judgment of the district court is
5
AFFIRMED.
6
WINTER, Circuit Judge, concurring in part and dissenting in part:
7
While I agree that dismissal of the action against the judge was proper because the judge was immune from suit for actions taken in the performance of his judicial function, I dissent from the holding that suit against the court-appointed lawyer and the court-appointed physician should be dismissed because their actions did not amount to state action.
8
The lawyer and the physician were each appointed by the court to render professional services to plaintiff. Plaintiff did not select either of them. Their appointment was required by Virginia law. Va.Code § 37.1-67.3 (1976). They were compensated from public funds. Va.Code §§ 37.1-67.4 and 37.1-89. Of course their services were to plaintiff, but their services were performed to satisfy the requirements of a state statute. I would hold that, in the performance of their services, they acted under color of state law.
9
I recognize that the numerical weight of authority is opposed to my views, but I think that the better view is expressed in Dodson v. Polk County, 628 F.2d 1104 (8 Cir. 1980); Robinson v. Bergstrom, 579 F.2d 401 (7 Cir. 1978); and Robinson v. Jordan, 494 F.2d 793 (5 Cir. 1974). See also, Note, Liability of Public Defenders Under Section 1983, 92 Harvard L.Rev. 943 (1979).
1
It relied on Pierson v. Ray, (1967) 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288, for denial of the action against the judge, on Duzynski v. Nosal, (7th Cir. 1963) 324 F.2d 924, primarily for dismissal of the action against the physician, and on Minns v. Paul, (4th Cir. 1976) 542 F.2d 899, cert. denied, 429 U.S. 1102, 97 S. Ct. 1127, 51 L. Ed. 2d 552 (1977), for dismissal of the action against counsel, as well as that against the physician
2
In this case, the Court added by way of a note:
"Other courts have also held that court-appointed attorneys do not act under color of law (citing cases). Indeed, we know of no court of appeals which has held the contrary."
3
This case involved a public defender as did United States ex rel. Simmons v. Zibilich, supra, 542 F.2d 259. The court in both of those cases found no state action. See however, Robinson v. Bergstrom, (7th Cir. 1978) 579 F.2d 401, 404-08 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/672366/ | 27 F.3d 111
UNITED STATES of America, Plaintiff-Appellee,v.Timothy L. HARRIS, Defendant-Appellant.
No. 93-5671.
United States Court of Appeals,Fourth Circuit.
Argued April 14, 1994.Decided June 22, 1994.
ARGUED: Randolph Brian Monchick, Asst. Federal Public Defender, Raleigh, NC, for appellant. Paul Arthur Raaf, Judge Advocate General's Corps, Fort Bragg, NC, for appellee.
ON BRIEF: James R. Dedrick, U.S. Atty., Tracy D. Knox, Sp. Asst. U.S. Atty., Fort Bragg, NC, for appellee.
Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and DOUMAR, United States District Judge for the Eastern District of Virginia, sitting by designation.
Vacated and remanded by published opinion. Senior Judge BUTZNER wrote the opinion, in which Judge RUSSELL and District Judge DOUMAR joined.
OPINION
BUTZNER, Senior Circuit Judge:
1
Timothy Harris appeals his conviction and sentence for driving while impaired by alcohol. He contends that the magistrate judge committed prejudicial error by submitting the criminal information to the jury without appropriate clarifying instructions in response to a question from the jury. He also assigns error to the magistrate judge's deviation from the assimilated North Carolina sentencing provision. The district court affirmed the magistrate judge's judgment and sentence. Concluding that the magistrate judge improperly instructed the jury and erred in sentencing Harris, we vacate the district court's judgment.
2
* On January 23, 1992, a military police officer found Timothy Harris parked at the entrance gate to Pope Air Force Base. Suspecting that Harris was intoxicated, the MP administered field sobriety tests and a breath test. The United States subsequently charged Harris with Driving While Impaired in violation of N.C. Gen.Stat. Sec. 20-138.1, assimilated by 18 U.S.C. Sec. 13.
3
The magistrate court suppressed the prosecution's blood alcohol concentration evidence, which the government derived from the breath test. The validity of the suppression order is not an issue in this appeal.
4
At the trial, the MP testified to Harris' behavior at the entrance to the Base and to his performance in the field sobriety tests. Harris testified that he was not intoxicated but was sick and had pulled over to rest.
5
After the jury retired, the magistrate judge, without objection, sent the criminal information to the jury. It stated, in part, that Harris had "a blood alcohol concentration of .10% or more."
6
During its deliberation, the jury submitted a question to the court concerning the criminal information:
7
The charge refers to a statute concerning blood alcohol concentration of .10 percent. Is this a reference to the law or a statement of fact that the content was .10 percent or more? There was no mention of a breathalyzer test.
8
Harris's attorney asked the magistrate judge to instruct the jury that there was no evidence concerning Harris's blood alcohol concentration.
9
The magistrate judge did not grant Harris's request. Instead, he responded to the jury's question by instructing the jury as follows:
10
I listed for you during the first set of instructions the three elements which the government must prove beyond a reasonable doubt. I think your question probably refers more to that third element that requires the government to establish that at the time the defendant was driving the vehicle he was under the influence of an impairing substance.
11
This third element may be proved by evidence beyond a reasonable doubt establishing either one of the following alternatives: The third element may be proved by establishing that at the time the defendant was driving the vehicle, he was under the influence of an impairing substance. As I said, with respect to this alternative, alcohol is an impairing substance.
12
A person is under the influence of an impairing substance within the meaning and intent of the law when he has taken or consumed a sufficient quantity of that impairing substance to cause him to lose the normal control of his bodily or mental faculties or both to such an extent that there is an appreciable impairment of either or both.
13
The third element of impaired driving may also be established if the government proves that at the time the defendant was driving the vehicle he had consumed sufficient alcohol such that at any relevant time after the driving he had an alcohol concentration of .10 or more grams of alcohol per 210 liters of breath.
14
A relevant time is at any time after the driving in which the driver still has in his body alcohol consumed during or before the driving. In determining whether this third element of impaired driving has been established, bear in mind that it is not necessary for the government to prove both; that the defendant was under the influence of an impairing substance, and that he had an alcohol concentration of .10 or higher.
15
Either one will suffice. However, remember that even though the third element may be proved by either method, the government must still establish the existence of this third element beyond a reasonable doubt.
II
16
When one of two independent grounds for conviction is unconstitutional or illegal, a general verdict cannot stand if the court instructed the jury that it could rely on either of the two grounds. Griffin v. United States, --- U.S. ----, ----, 112 S. Ct. 466, 472, 116 L. Ed. 2d 371 (1991); accord United States v. Taylor, 966 F.2d 830, 834 (4th Cir.1992). The verdict will stand if one of the grounds is "merely unsupported by sufficient evidence." --- U.S. at ----, 112 S. Ct. at 472.
17
The magistrate judge instructed the jury that it could rely on either of two independent grounds in determining whether Harris drove his vehicle while under the influence of an impairing substance. The jury, however, could not legally convict Harris on the second ground--that the defendant had a blood alcohol concentration of at least .10 percent. The court had suppressed evidence of blood alcohol concentration.
18
Nevertheless, the verdict may very well have rested on this illegal ground. The criminal information the judge sent to the jury contained a sworn statement by the prosecutor that Harris had a blood alcohol concentration of at least .10 percent. Although initially the judge had told the jury that the criminal information was not evidence of guilt, the jury's question regarding the information indicates that they were confused about its role and may have considered the statement as one of fact. The judge's supplemental instructions did not clarify the function of the criminal information. This was not an error arising merely from insufficient evidence. The error arose because the jury illegally was allowed to rest conviction on the prosecutor's sworn statement in the information that Harris had a blood alcohol concentration of .10 percent or more. Because Harris had no opportunity to cross examine the prosecutor, he was denied his right of confrontation secured by the Sixth Amendment.
19
We conclude that the magistrate judge should not have sent the criminal information to the jury without deleting the reference to Harris's alleged blood alcohol level. This error was compounded by the equivocal supplementary instruction regarding Harris's blood alcohol concentration in response to the jury's question. We also conclude that the Sixth Amendment violation was plain error. The judgment convicting Harris must be vacated.
III
20
Harris was charged with violating the Assimilative Crimes Act, 18 U.S.C. Sec. 13, which assimilated N.C. Gen.Stat. Sec. 20-138.1. The North Carolina statute provides that a person who is convicted of operating a vehicle on a public road while under the influence of alcohol shall be punished in accordance with N.C. Gen.Stat. Sec. 20-179. Section 20-179(k), which the magistrate judge and both counsel agreed was applicable, provides:
21
A defendant subject to Level Five punishment may be fined up to one hundred dollars ($100.00) and must be sentenced to a term of imprisonment that includes a minimum term of not less than 24 hours and a maximum term of not more than 60 days. The term of imprisonment must be suspended, on the condition that the defendant:
22
(1) Be imprisoned for a term of 24 hours as a condition of special probation; or
23
(2) Perform community service for a term of 24 hours; or
24
(3) Not operate a motor vehicle for a term of 30 days; or
25
(4) Any combination of these conditions.
26
The judge may in his discretion impose any other lawful condition of probation and, if required by subsection (m), must impose the conditions relating to assessment, treatment, and education described in that subsection.
27
Pursuant to Sec. 20-179(m) the judge must require a defendant to obtain a substance abuse assessment as a condition of probation. Upon recommendation of the assessing agency, the judge may require a defendant to participate in an appropriate treatment program at the defendant's expense.
28
The magistrate judge did "not consider himself bound strictly by the North Carolina statute." Addressing Harris he also stated, "I intend to impose a punishment which I think fits not only what took place, but which fits the story that you gave about what took place." The magistrate judge imposed a seven-day jail term, a $100 fine, a $25 assessment, 100 hours of community service, a substance abuse assessment, and probation for one year.
29
On appeal to the district court, Harris protested that the magistrate judge did not comply with the Assimilative Crimes Act, 18 U.S.C. Sec. 13, and that he wrongfully enhanced his sentence for perjury in contravention of state and federal law then in effect.
30
Affirming the judgment that the magistrate judge imposed, the district court held that the Assimilative Crimes Act assimilates only the state's maximum and minimum sentences and that the magistrate judge could exercise discretion within this range, giving due regard to the federal guidelines. The district court also held that the magistrate judge did not enhance the sentence for perjury but instead "sentenced him within the appropriate ranges established by North Carolina law."
IV
31
The Assimilative Crimes Act provides that in the absence of federal law, a person who commits a state crime on a federal enclave "shall be guilty of a like offense and subject to a like punishment." 18 U.S.C. Sec. 13(a). In United States v. Press Publishing Co., 219 U.S. 1, 31 S. Ct. 212, 55 L. Ed. 65 (1911), the Supreme Court interpreted the predecessor of Sec. 13 that spoke of the "same punishment" as follows:
32
[I]t is apparent that the statute, instead of fixing by its own terms the punishment for crimes committed on such reservations which were not previously provided for by a law of the United States, adopted and wrote in the state law, with the single difference that the offense, although punished as an offense against the United States, was nevertheless punishable only in the way and to the extent that it would have been punishable if the territory embraced by the reservation remained subject to the jurisdiction of the State.
33
219 U.S. at 9-10, 31 S. Ct. at 213-14.
34
The interpretation placed on the predecessor of Sec. 13 applies to the requirement of "like punishment" stipulated in Sec. 13(a). See United States v. Minger, 976 F.2d 185, 187-88 (4th Cir.1992). The phrase "like punishment," however, does not encompass every incident of a state's sentencing policy. For example, it has long been recognized that the Act does not require adherence to state parole eligibility. The rationale supporting this principle is that a federal prisoner, though convicted and sentenced in accordance with Sec. 13, should be subject to federal correctional policies. This avoids confining two classes of prisoners in federal prisons. See United States v. Smith, 574 F.2d 988, 991-92 (9th Cir.1978).
35
When Congress enacted the Sentencing Reform Act of 1984, it repealed many conflicting provisions of the criminal code. But it did not repeal or amend Sec. 13(a). Instead, 18 U.S.C. Sec. 3551(a), as amended in 1990 to explicitly encompass Sec. 13, provides:
36
Except as otherwise specifically provided, a defendant who has been found guilty of an offense described in any Federal statute, including sections 13 and 1153 of this title ... shall be sentenced in accordance with the provisions of this chapter so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case.
37
Since Congress clearly recognized that both Sec. 13(a) and Sec. 3551(a) are "capable of co-existence," courts are obliged to regard "each as effective." Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018, 104 S. Ct. 2862, 2881, 81 L. Ed. 2d 815 (1984) (quotation and citation omitted). They "are not at liberty to pick and choose among congressional enactments...." Morton v. Mancari, 417 U.S. 535, 551, 94 S. Ct. 2474, 2483, 41 L. Ed. 2d 290 (1974).
38
The Sentencing Commission outlined the means for reconciling Secs. 13(a) and 3551(a) in U.S.S.G. Sec. 2X5.1, comment. (n.1). This commentary reiterates that the Sentencing Guidelines apply to convictions under Sec. 13. Most state penal statutes, like most federal statutes, stipulate a maximum and minimum sentence leaving to the trial court discretion to impose a punishment within these limits. Under such circumstances application of the federal Sentencing Guidelines to an assimilative crime is relatively straightforward. A federal judge, like his state counterpart, has discretion to impose a sentence within the state statutory limits. In exercising this discretion, a federal judge must adhere to the most analogous offense guideline. In U.S.S.G. Sec. 2X5.1, comment. (n.1), the Sentencing Commission has set forth appropriate guidelines and policy statements that can be applied under such circumstances.
39
United States v. Young, 916 F.2d 147, 150-51 (4th Cir.1990), upon which the district court relied, is consistent with Sec. 2X5.1. But neither Young nor any other case that has come to our attention has dealt with a situation such as we have before us.V
40
Harris's offense is a class B misdemeanor, since the maximum sentence under Sec. 20-179(k) is more than 30 days but less than six months. Other subsections of Sec. 20-179 authorize more severe punishment than that permitted by subsection (k). But the government did not prove the elements necessary to bring Harris within the purview of the other subsections.
41
The Sentencing Guidelines do not apply to a class B misdemeanor, and the court is directed to impose a sentence authorized by statute. See U.S.S.G. Sec. 1B1.9 and comment. (n.1). Two statutes are pertinent. Section 13(a) directs the court to determine the punishment the state prescribes for the assimilated offense and then impose "like punishment." Section 3551(a) directs the court to sentence a defendant "so as to achieve the purposes set forth in subparagraphs (A) through (D) of section 3553(a)(2) to the extent that they are applicable in light of all the circumstances of the case."
42
Title 18 U.S.C. Sec. 3553(a) directs a court to consider the following factors when imposing a sentence:
43
(2) the need for the sentence imposed--
44
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
45
(B) to afford adequate deterrence to criminal conduct;
46
(C) to protect the public from further crimes of the defendant; and
47
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;....
48
It is readily apparent that N.C. Gen.Stat. Sec. 20-179(k) satisfies the requirements of Sec. 3553(a)(2). Moreover, nothing in Sec. 3553(a)(2) precludes application of the Assimilative Crimes Act.
49
The North Carolina legislature has accorded the trial court broad discretion in Sec. 20-179(k) subject to one important restriction regarding punishment--initially the state trial court cannot imprison the defendant more than 24 hours. This mandatory restriction in a very real sense is the maximum sentence a state trial judge can impose under Sec. 20-179(k), unless the defendant later violates a condition of probation. The "like punishment" clause of Sec. 13 of the Act places the same restriction on a federal court that is implementing the Assimilative Crimes Act. The federal court, like its state counterpart, cannot imprison a defendant more than 24 hours, unless he violates probation. Nor can the federal court impose a fine in excess of $100. With respect to conditions of probation, both state and federal courts have considerable discretion, except that the federal court should exercise its discretion in accordance with Sec. 3553(a)(2).
50
The judgment of the district court is vacated, and the case is remanded for further proceedings consistent with this opinion.
51
VACATED AND REMANDED. | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1560467/ | 380 A.2d 62 (1977)
WESTINGHOUSE ELECTRIC SUPPLY COMPANY
v.
B. L. ALLEN, INC., et al.
No. 356-76.
Supreme Court of Vermont.
October 31, 1977.
Harry A. Black of Black & Plante, White River Junction, for plaintiff.
Frank G. Mahady, White River Junction, for defendant Traveler's Indemnity Co.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
*63 BILLINGS, Justice.
This is an appeal on report of the superior court by agreement of the parties pursuant to V.R.A.P. 5(a). The question of law presented concerns the applicability of the Miller Act, 40 U.S.C.A. § 270a et seq. (1970). Where the Miller Act applies to a cause of action, jurisdiction is vested solely in the federal district court. Id. § 270b(b). We hold that the Miller Act does not govern this cause.
The complaint giving rise to this appeal was brought by appellant against B. L. Allen, Inc. (hereinafter Allen) and Traveler's Indemnity Company, appellee, for the price of goods sold and delivered to Allen. Allen was a subcontractor to Granger Contracting Company, Inc. (hereinafter Granger), the general contractor for a Performing Arts Center constructed at Bennington College. At the time it contracted with the college, Granger also entered into a payment bond with appellee as surety in favor of the college. The claim against appellee is founded on this bond.
The Miller Act states that:
(a) Before any contract, exceeding $2,000 in amount, for the construction, alteration, or repair of any public building or public work of the United States is awarded to any person, such person shall furnish to the United States ...
. . . . .
(2) A payment bond with a surety or sureties . . . for the protection of all persons supplying labor and material in the prosecution of the work provided for in said contract for the use of each such person. . . .
Id. § 270a.
Appellee's claim that the Miller Act applies to this suit rests in the method used to finance the construction of the Performing Arts Center. Bennington College assigned the construction contract with Granger to the Vermont Educational and Health Buildings Financing Agency, which issued bonds to raise money for the construction. The United States Department of Health, Education and Welfare makes an annual grant to the Vermont agency to fund partially the interest due on these bonds. Appellee contends that the federal grant, with its attendant regulations and restrictions pertaining to the Center, makes the Center a "public building or public work of the United States" and brings this case within the ambit of the Miller Act.
The Miller Act does not define the terms "public building or public work of the United States". Therefore, we look to the purposes of the Act for aid in determining whether the construction done in the instant case comes within the Act.
Enacted in 1935, the Miller Act has as a prime purpose the protection of persons supplying labor and materials for the construction of federal buildings. United States v. Carter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957); United States v. H.R. Morgan, Inc., 542 F.2d 262 (5th Cir. 1976), cert. denied, ___ U.S. ___, 98 S.Ct. 106, 54 L.Ed.2d 86 (1977) (unrelated issues); United States v. Mattingly Bridge Co., 344 F.Supp. 459 (W.D.Ky.1972). "The essence of its policy is to provide a surety who, by force of the Act, must make good the obligations of a defaulting contractor to his suppliers of labor and material." United States v. Carter, supra, 353 U.S. at 216-17, 77 S.Ct. at 797. The protection afforded by the Act is necessary because suppliers of labor and material for federal buildings cannot acquire a lien on the property of the United States. United States v. H.R. Morgan, Inc., supra.
A second purpose of Miller Act bonds is "to protect the United States from suits rested upon its equitable duty to ensure that subcontractors and suppliers of materials receive payment." Id., 542 F.2d at 265; see Kennedy Electric Co. v. United States Postal Service, 508 F.2d 954 (10th Cir. 1974). United States v. Irwin, 316 U.S. 23, 62 S.Ct. 899, 86 L.Ed. 1241 (1942), cited by appellee, is illustrative of this purpose. There the United States contracted for the construction of a library at Howard University and provided the funds necessary for the project. The Miller Act bonds in Irwin served to insure that no equitable actions *64 for payment were brought by subcontractors and materialmen against the federal government. See Kennedy Electric Co. v. United States Postal Service, supra. The Capehart Housing cases also cited by appellee, e. g., Autrey v. Williams & Dunlap, 343 F.2d 730 (5th Cir. 1965), where the lands on which construction took place were in private hands and passed to the government immediately upon completion, facilitating the congressional financing scheme for military housing, are other examples recognizing this purpose of the Miller Act. See United States v. H.R. Morgan, Inc., supra.
Here, neither purpose of the Act is advanced by terming the Performing Arts Center a public building or public work of the United States. The Arts Center is not owned by the United States; federal governmental immunity is no bar to a lien by materialmen and subcontractors here. Also, the United States has provided no funds for the Performing Arts Center project that could be reached by a subcontractor or materialman on an equitable lien theory. See Kennedy Electric Co. v. United States Postal Service, supra.
As two federal courts have recently pointed out, more than federal funding is necessary to invoke Miller Act jurisdiction. United States v. H.R. Morgan, Inc., supra; United States v. Mattingly Bridge Co., supra. Where the funding is limited to interest only, the federal involvement is far too attenuated to be within the scope and purpose of the Miller Act. The action below is properly brought in the superior court, and the reported question, i. e., does this cause of action fall within 40 U.S.C.A. § 270a, et seq., must be answered in the negative.
Question reported by agreement of the parties is answered in the negative and cause remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558388/ | Fourth Court of Appeals
San Antonio, Texas
August 19, 2020
No. 04-20-00371-CV
IN THE INTEREST OF L.M., ET AL CHILDREN
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2019-PA-02077
Honorable Charles E. Montemayor, Judge Presiding
ORDER
After this court advised court reporter Elva G. Chapa that the reporter’s record was late,
she filed a notification of late reporter’s record. She indicated her other duties preclude her from
working on the record, and she expects to file the record by August 21, 2020.
The reporter’s motion for extension of time to file the reporter’s record is GRANTED.
The reporter’s record is due on August 21, 2020. See TEX. R. APP. P. 35.3(c) (limiting an
extension in an accelerated appeal to ten days).
The child’s “need for permanence is the paramount consideration for the child’s present
and future physical and emotional needs.” See Dupree v. Tex. Dep’t of Protective & Regulatory
Servs., 907 S.W.2d 81, 87 (Tex. App.—Dallas 1995, no writ). This court must render its
decision “with the least possible delay,” and any further delays in obtaining the reporter’s record
will hinder this court in its duty. See TEX. R. APP. P. 35.3(c); In re J.L., 163 S.W.3d 79, 82 (Tex.
2005) (quoting TEX. FAM. CODE ANN. § 263.405(a)).
_________________________________
Patricia O. Alvarez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 19th day of August, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2393580/ | 6 Md. App. 344 (1969)
251 A.2d 46
JAMES RAYMOND JONES
v.
STATE OF MARYLAND.
No. 238, September Term, 1968.
Court of Special Appeals of Maryland.
Decided March 17, 1969.
The cause was submitted to MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Robert A. Sapero for appellant.
Bernard L. Silbert, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Hilary D. Caplan, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
PER CURIAM:
The appellant, James Raymond Jones, was convicted in the Criminal Court of Baltimore before Judge George Sachse, sitting without a jury, of larceny of goods of the value of $100.00 or more. He was sentenced to six years under the jurisdiction of the Department of Correction.
The sole question raised by appellant on appeal is whether the State produced sufficient evidence to prove that the goods taken were of a value of $100.00 or more.
At the trial Mrs. Frances McElresth testified that on March 31, 1968 she was sitting on the doorsteps of her house located at 227 East Churchhill Street, directly across from the house of Herman H. Hoetzel, the complaining witness, when she saw appellant walk up the street, take a key, open the door and *346 enter the Hoetzel house. He came back out and walked down the street and shortly thereafter drove up in a '59 or '60 red and white Chevrolet accompanied by another man. He got out of the car, entered the house, and came back out carrying a floor model T.V. set which he put in the trunk of the automobile. The two men then drove off.
Herman H. Hoetzel testified that on the date in question he returned to his home at 228 East Churchhill Street in Baltimore, and when he entered the house he found his television set gone and also a radio and a wrist watch. When questioned as to the value of these articles, he testified as follows:
"Q. What is the value of that television?
"A. $75 or $100.
"Q. What was the value of that radio?
"A. I will say about $25.
"Q. What was the value of the wrist watch?
"A. I would say around $10."
There was no other testimony as to value produced by the State.
The State has the burden of proving that the goods stolen were of the requisite value of $100.00 or more under Maryland Code (1967 Repl. Vol.), Article 27, § 340. Cofflin v. State, 230 Md. 139, 144, 186 A.2d 216; Mercer v. State, 237 Md. 479, 484-85, 206 A.2d 797; Lehr v. State, 2 Md. App. 776, 778, 237 A.2d 529. The test is market value. Cofflin v. State, supra; Mercer v. State, supra; Lauder v. State, 233 Md. 142, 144, 195 A.2d 610; Lehr v. State, supra. The owner of personal property in common use may express an opinion as to its value without qualification as an expert. Cofflin v. State, supra, at p. 142 and cases cited; Mercer v. State, supra, at p. 484.
In Cofflin v. State, supra, the sole witness for the State as to value was the committee of the incompetent who was the owner of the goods stolen. She had no personal knowledge of their value. The Court of Appeals held that her testimony was improperly admitted, since it was based upon an appraisal made by an expert appraiser, and, therefore, was hearsay and inadmissible. Also, while she did testify as to the value of a clock and two swords, her valuation of the swords was based largely on sentiment and not market value, and the court found that *347 the State had failed to meet its burden to prove that the value of the goods taken was in excess of $100.00.
In Mercer v. State, supra, the only evidence offered by the State as to the value of the stolen television set was that of its owner. She testified that the set was purchased for $172.00 in 1960, and that if sold to a dealer she probably would not have received much for it, but that it was worth as much to her at the time it was stolen as she paid for it. The set had been out of order for a week or two before it was stolen. The Court of Appeals found the evidence as to value to be insufficient. In so doing, the Court pointed out that the value put upon it by its owner was admittedly not based on market value, since the article had been purchased some three and one-half years before the theft and needed repairs at the time it was stolen, and, in view of the circumstances, was not of itself sufficient to sustain the burden of proof imposed upon the State.
In Lehr v. State, supra, the appellant was charged with the larceny of a safe. The sales manager for the company from which it had been stolen was offered by the State as a witness to prove its value. While he testified on direct examination that his opinion of its value was $130.00, he admitted on cross-examination that of his own personal knowledge he did not know the value of the safe. This Court, in reversing, found that it was not shown that Mr. Bridgeforth (the sales manager) possessed any knowledge of the market value of the safe.
In each of the above cases cited it is apparent that the value placed upon the articles stolen from the owner or bailee was admittedly not based upon market value and therefore was not sufficient to sustain the burden of proof imposed upon the State.
In the instant case the owner testified that the total value of the television set, the radio and the watch at the time of the theft was between $110.00 and $135.00, and while he did not directly so state, we think it implicit that he meant the fair market value of each item.
In Gazaille v. State, 2 Md. App. 462, 464-65, 235 A.2d 306, the owner's precise testimony indicated that while he was not positive of the fair market value on the date of the theft he felt it would be between $100.00 and $150.00. We found this testimony *348 was sufficient to make the issue a question for the fact finder.
The appellant failed to question the value of the articles alleged to have been stolen as testified to by the owner at the trial below. It is apparent that the lower court found from the direct testimony of the owner he meant market value of the television set, the radio and the watch, although he did not explicitly so state. We think that here, as in Gazaille v. State, supra, there was legally sufficient evidence of value. Therefore, we cannot say that the finding of the lower court was clearly erroneous. Maryland Rule 1086.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393583/ | 214 Pa. Super. 156 (1969)
Jackson Appeal.
Superior Court of Pennsylvania.
Argued December 11, 1968.
March 20, 1969.
*157 Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and HANNUM, JJ.
Irene H. Cotton, for appellant.
James D. Crawford, Assistant District Attorney, with him Lewis P. Mitrano, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY HOFFMAN, J., March 20, 1969:
This is an appeal from an adjudication of delinquency on the charge of conspiracy for assault with intent to kill.
*158 Appellant maintains that the evidence introduced at his trial was insufficient to support this order. The evidence introduced by the Commonwealth consisted solely of the testimony of the complainant. In the light most favorable to the Commonwealth, it may be summarized as follows:
On December 4, 1967, complainant, 13 years old, was approached at 5:00 p.m. on a Philadelphia street by appellant, age 16, who engaged him in conversation. Complainant testified that appellant "started talking to me. And he walked up to me first, and these guys, they walked up behind me. He was standing on the side of me, talking to me, and then the boy that was behind me, he had a zip, and he shot it. I didn't know, you know. And then he kept talking to me, and then he told me to take off my jacket, and I took it off. And then he asked me was I bleeding. And then I said no. And then these other guys this guy was walking down the street on the other side of the street. So then the other guys, they walked around the street, and that's all that happened."
Further, he added "And then I think that's about when I heard the shot, and I snatched my arm, like this (indicating), and then (appellant) said, `Have you ever been shot before?' And I said no.
"Then he said, `You're bleeding ain't you?' And then he said, `Take off your jacket.' And I took off my jacket, and I had on a sweater.
"And then he said, `Are you bleeding?' and like this (indicating). And I said no. And then that's when I saw the guy on the other side of the street, some guy I knew. And then he said something else, and then he went across the street with the guy on the other side of the street, and they walked off."
At no time did complainant notice any communication between appellant and the assailants or any weapon in appellant's possession.
*159 On these facts, the causal relationship between appellant's action in stopping complainant on the street and the subsequent attack on him is too speculative and tenuous to support a delinquency order.
In arriving at this conclusion we need not decide whether in light of In re Gault, 387 U.S. 1 (1967), the Commonwealth's allegations must now be proved beyond a reasonable doubt. Under any standard, the order must be stricken because the evidence adduced does not support the findings of the court.[1]
The District Attorney suggests that appellant "set up" the victim of the attack. The proof at trial, however, has palpably failed to demonstrate that this, in fact, occurred.
The Commonwealth has only proved that appellant was present at the time of the attack. It has not shown, however, his participation in that enterprise with the degree of certitude required for an order to be sustained. No amount of "reading between the lines" can substitute for the requisite prima facie showing of conspiracy.
In summary then, there was no evidence that appellant and the boys who shot complainant planned the incident. In fact, there is no evidence at all in the record that they knew one another. Moreover, the facts themselves reflect that the appellant exhibited a sense of sympathy and concern which would not be expected of one accused in the crime herein. He neither ran away nor sought to hide. Rather, as the complainant's *160 own testimony indicates, he continued to talk to complainant. He told him to take off his jacket and then walked away. Under these circumstances, to find that this boy conspired with the unidentified assailants is to ignore the totality of the situation.
Order reversed with charges dismissed and appellant discharged.
WRIGHT, P.J., and WATKINS, J., would affirm on the opinion of Judge GUTOWICZ below.
NOTES
[1] Cf. Holmes Appeal, 175 Pa. Super. 137, 146, 103 A.2d 454 (1954), affirmed 379 Pa. 599, 109 A.2d 523, cert. denied, 348 U.S. 973, the "basic findings (of the Juvenile Court) must be supported by evidence. . . . The record must be legally and factually adequate to sustain the findings of fact and order of commitment." "A record destitute of any facts justifying the commitment of a minor would require a reversal." Weintraub Appeal, 166 Pa. Super. 342, 71 A.2d 823 (1950). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2393585/ | 700 S.E.2d 701 (2010)
A.M. BUCKLER & ASSOCIATES, INC.
v.
SANDERS.
No. A10A1268.
Court of Appeals of Georgia.
August 27, 2010.
*702 Thompson, O'Brien, Kemp & Nasuti, Ted W. Hight III, Norcross, for appellant.
Hull Barrett, Patrick J. Rice, Augusta; Richard M. Gailey, Jr., Eatonton, for appellee.
ELLINGTON, Judge.
In this garnishment action, A.M. Buckler & Associates, Inc. ("Buckler") appeals from an order of the Richmond County State Court that granted a traverse filed by "Joe Sanders d/b/a Sanders Golf."[1] Buckler contends that the trial court erred in finding that "Joe Sanders d/b/a Sanders Golf" is a legally recognizable entity separate and distinct from "C.R. Sanders, Inc.," that the garnishee, Augusta National, Inc., assented to the modification of a contract between the garnishee and C.R. Sanders, Inc., and that the traverse filed by "Joe Sanders d/b/a Sanders Golf" was timely filed. For the following reasons, we affirm.
Georgia's garnishment statutes, OCGA § 18-4-1 et seq., are "in derogation of the common law and, thus, must be strictly construed[.]" (Citation and punctuation omitted.) Wachovia Bank of Ga. v. Unisys Finance Corp., 221 Ga.App. 471, 474, 471 S.E.2d 554 (1996). See also Akridge v. Silva, 298 Ga.App. 862, 865(1), 681 S.E.2d 667 (2009) ("Garnishment is purely a statutory proceeding and will not be extended so as to reach money or property of the defendant not made subject thereto by statute.") (punctuation and footnote omitted). In a case such as this, in which a plaintiff has obtained a money judgment against a defendant, the plaintiff is entitled to file a garnishment action in a court which has jurisdiction over the garnishee, the person or entity which has in its possession money or property which belongs to the defendant and is subject to *703 garnishment. OCGA §§ 18-4-20 (property subject to garnishment); 18-4-60 (judgment creditor's right to garnishment); 18-4-61 (court must have jurisdiction over garnishee); 18-4-82 (contents of answer of garnishee).
A garnishment proceeding is an action between the plaintiff and the garnishee; but, at any time before a judgment is entered on the garnishee's answer or before money or other property subject to garnishment is distributed, the defendant may become a party to the garnishment for the purposes set out in Code Section 18-4-65[[2]] by filing a traverse to the plaintiff's affidavit stating that the affidavit is untrue or legally insufficient; and he shall be a party to all proceedings thereafter.
OCGA § 18-4-93. Further, under OCGA § 18-4-95,
[a]t any time before judgment is entered on the garnishee's answer or money or other property subject to garnishment is distributed, any person may file a claim in writing under oath stating that he has a claim superior to that of the plaintiff to the money or other property in the hands of the garnishee subject to the process of garnishment; and the claimant shall be a party to all further proceedings upon the garnishment.
If a defendant or other claimant files a traverse or adverse claim in a garnishment proceeding, the trial court must conduct an evidentiary hearing to determine the rights of the parties to the money or other property at issue. OCGA § 18-4-93; Akridge v. Silva, 298 Ga.App. at 867(4), 681 S.E.2d 667 (In a garnishment action, "[t]he question of ownership of the funds [is] one of fact for the [trial] court, as factfinder, to decide.") (footnote omitted). "On appeal of the judgment of a trial judge sitting without a jury, a judgment will not be disturbed if there is any evidence to sustain it." (Citations and punctuation omitted.) Travelers Ins. Co. v. Trans. State, 172 Ga.App. 763, 765(3), 324 S.E.2d 585 (1984).
The record in this case shows that C.R. Sanders, Inc. is a closely-held family corporation that constructs and renovates golf courses. Three brothers, Rob, Cole and Earl Sanders, are the corporation's sole shareholders. Their father, Joe Sanders, has served as a consultant to the corporation. In August 2008, Buckler, a supplier of golf course construction materials, obtained a judgment against the corporation in the amount of $117,735.41, plus post-judgment interest. When Buckler attempted to collect on the judgment, however, it discovered that the bank account of C.R. Sanders, Inc. had a negative balance, despite having had deposits totaling more than $280,000 in the three months since Buckler obtained the judgment.
Buckler then filed the instant garnishment action in Richmond County State Court, naming Augusta National, Inc. as the garnishee. Augusta National had contracted with C.R. Sanders, Inc. for golf course construction from 2004 through 2008. During that time, C.R. Sanders, Inc. had been designated a "qualified contractor" for Augusta National based upon the corporation's past performance, quality of work, and competitive bids. In May 2009, Augusta National awarded another construction contract to C.R. Sanders, Inc. and mailed the company a contract to be signed. When the company returned the contract to Augusta National, however, someone had crossed out all of the references to "C.R. Sanders, Inc." and had handwritten "Sanders Golf" next to them. Also, Cole Sanders had signed the contract as "COO" of "Sanders Golf." Before beginning work under the contract, Sanders Golf provided a certificate of liability insurance to Augusta National.
Even though Augusta National had received the modified contract and insurance certificate showing that "Sanders Golf" had replaced "C.R. Sanders, Inc." as its contractor, Augusta National still filed an answer in the instant garnishment action in which it stated that it had in its possession funds it owed to "C.R. Sanders, Inc.," in the amount *704 of $32,719.80. Augusta National deposited the funds into the registry of the court.
On September 10, 2009, a claimant, "Earl Sanders d/b/a Sanders Golf," filed a traverse to the garnishment, seeking to become a party to the action and asserting a verified claim to the funds paid into the court by Augusta National. The same day, Augusta National filed an amended answer in the garnishment action which stated that an attorney representing "Earl Sanders of Sanders Golf," had notified it that "Sanders Golf" was a "sole proprietorship separate and distinct" from "C.R. Sanders, Inc." and was the entity that had contracted with Augusta National in 2009. The attorney, R. Michael Gailey, Jr., also notified Augusta National that the $32,719.80 it referred to in its original answer to the garnishment action was, in fact, payment for services provided by "Sanders Golf," not "C.R. Sanders, Inc.," and, thus, was not subject to garnishment. On November 9, 2009, however, before the trial court ruled on the first traverse, the same attorney filed another traverse and verified claim to the funds in the garnishment action on behalf of a different claimant, "Joe Sanders d/b/a Sanders Golf."
Finally, even though Augusta National had repeatedly received notice that the funds in the court's registry allegedly belonged to "Sanders Golf," it again stated in an "Answer of Continuing Garnishment" that it had in its possession funds it owed for services rendered by "C.R. Sanders, Inc.," specifically $24,249.80. Augusta National paid the additional funds into the registry of the court.
On November 24, 2009, the trial court conducted an evidentiary hearing on the garnishment petition and the traverse petitions to determine the proper party to receive the funds. Following the hearing, the court concluded that "Joe Sanders d/b/a Sanders Golf" was a separate entity from "C.R. Sanders, Inc.," that "Joe Sanders d/b/a Sanders Golf"not "C.R. Sanders, Inc."had contracted with Augusta National in 2009, that Augusta National had assented to the modification of the contract, and that Augusta National had accepted the performance of the contract by "Joe Sanders d/b/a Sanders Golf." Based upon these findings, the trial court granted the traverse filed by "Joe Sanders d/b/a Sanders Golf" and directed the court clerk to disburse the garnishment funds held in the court's registry to Joe Sanders. Buckler appeals from this ruling.
1. Buckler contends that the trial court erred in finding that Sanders Golf was a separate and distinct entity from C.R. Sanders, Inc., arguing that the evidence in the record is inconsistent and overwhelmingly demonstrates that the Sanderses are playing a business "shell game" to avoid the corporation's debt to Buckler. Specifically, Buckler points to evidence that, while performing work for Augusta National in 2009, Sanders Golf utilized the "same people, same trucks, [and] same equipment," had the same fax number, and had the same contact person (Earl Sanders) as C.R. Sanders, Inc. did when the corporation performed work for Augusta National under previous contracts.
As noted above, the trial court sits as trier of fact in a garnishment proceeding and, when reviewing the court's findings on appeal, this Court is not authorized to weigh the evidence, resolve conflicts in the evidence, or judge the credibility of witnesses. Instead, we are bound by the court's findings as long as there is any evidence to support them.
Viewed from that perspective, the record shows that, in the fall of 2008, when Joe Sanders was 76 years old, he decided that he would like to get back into the business of building and maintaining golf courses, so he started a sole proprietorship that he named "Sanders Golf." Joe Sanders deposed that the company has its own tax identification number and liability insurance and that, although the company does not have any other officers and none of his sons own any part of the business, all three of his sons work for his company and are authorized to sign certain documents on the company's behalf.[3]
*705 Given this evidence, we conclude that there is some evidence to support the court's finding that the sole proprietorship of "Joe Sanders d/b/a Sanders Golf" is a separate and distinct entity from "C.R. Sanders, Inc." Thus, we are bound by that conclusion, and this enumeration presents no reversible error.
2. Buckler claims that the trial court erred in determining that Augusta National assented to the substitution of "Sanders Golf" for "C.R. Sanders, Inc." as the contractor in 2009. In support of this contention, Buckler again points to conflicts in the evidence, as well as evidence that Sanders Golf had not been designated a qualified contractor for Augusta National and had not bid on a contract with the golf club in 2009. Based upon this evidence, Buckler argues that Augusta National representatives actually believed that the golf club had a contract with "C.R. Sanders, Inc." in 2009.
The evidence presented in support of the court's finding, however, included the deposition testimony of an Augusta National representative, who testified that Augusta National was aware that someone had changed the contractor's name on the 2009 contract from "C.R. Sanders, Inc." to "Sanders Golf"; that Augusta National had received a federal tax identification number for Sanders Golf; that Augusta National required Sanders Golf to provide a certificate of liability insurance before beginning work at the golf club; and that Augusta National had no business dealings with C.R. Sanders, Inc. during 2009. According to this representative, as long as Augusta National had the certificate of insurance from Sanders Golf and Earl Sanders was the contact person for the company, "[n]othing else was required."
Another Augusta National representative agreed, testifying that, although he was aware that someone had changed the 2009 contract from "C.R. Sanders, Inc." to "Sanders Golf," he had always dealt with Earl Sanders in the past and that, regardless which company he was working with in 2009, "I was still dealing with Earl Sanders in my mind." "Earl was the guy in the field. Earl was the guy that produced the quality that I was happy with. So as long as I had Earl [on site], it was all the same to me.... That was important to me, [to] have Earl on site."
Accordingly, we conclude that there is some evidence to support the trial court's finding that Augusta National assented to the modification of the contract to replace "C.R. Sanders, Inc." with "Joe Sanders d/b/a Sanders Golf" and thereby name the latter sole proprietorship as the contractor. Thus, we are bound by that finding, and this enumeration presents no reversible error.
3. Buckler contends that the trial court erred in finding that the claim filed by "Joe Sanders d/b/a Sanders Golf" was timely. Buckler relies on OCGA § 18-4-85, which is entitled "Traverse of answer of garnishee by plaintiff" and provides that, once the garnishee serves his answer on the plaintiff, the plaintiff or claimant must traverse the answer within 15 days after it is served or the garnishee is automatically discharged from further liability with respect to the plaintiff's summons. According to Buckler, because Sanders Golf failed to file a claim within 15 days of the answer filed by Augusta National, the claim was not properly before the court and should not have been granted.
Because "Joe Sanders d/b/a Sanders Golf" was not yet a party to the garnishment action when Augusta National filed its answer, however, the applicable Code section is OCGA § 18-4-95, which provides that, "[a]t any time before judgment is entered on the garnishee's answer or money or other property subject to garnishment is distributed, any person may file a claim in writing under oath stating that he has a claim superior to that of the plaintiff to the money or other property in the hands of the garnishee subject to the process of garnishment," and, upon the filing of such a claim, "the claimant shall [become] a party to all further proceedings upon the garnishment." See Akridge v. Silva, 298 Ga.App. at 865(1), 681 S.E.2d 667 (ruling that OCGA § 18-4-95 governed the time period in which a non-party to the garnishment action was required to file a notice of his claim to the funds at issue).
*706 Accordingly, because Sanders Golf filed a claim before the court had entered judgment in the garnishment action or ordered the distribution of the money at issue, the claim was timely under OCGA § 18-4-95, and the trial court did not err in considering it.
Judgment affirmed.
ANDREWS, P.J., and DOYLE, J., concur.
NOTES
[1] This Court granted Buckler's application for discretionary appeal. See OCGA § 5-6-35(a)(4).
[2] "When garnishment proceedings are based upon a judgment, the defendant, by traverse of the plaintiff's affidavit, may challenge the existence of the judgment or the amount claimed due thereon. The defendant may plead any other matter in bar of the judgment," except the validity of the judgment upon which a garnishment is based. OCGA § 18-4-65(a), (b).
[3] Even so, Joe Sanders also testified unequivocally that henot his son, Earlis the proper party to the garnishment action, despite the fact that Earl filed the initial traverse, representing himself as "Earl Sanders d/b/a Sanders Golf." Regarding that claim, because Earl Sanders did not pursue the claim in the court below and the trial court did not rule upon it, we conclude that it has been abandoned. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858077/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-485-CR
OSCAR ALCALA,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF HAYS COUNTY
NO. 39,088, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING
PER CURIAM
This is an appeal from a judgment of conviction for assault.
Punishment was assessed at confinement for 43 days and a $100.00 fine.
Appellant has filed a motion to withdraw the appeal. No decision
of this Court has been delivered. The motion is granted and the appeal is
dismissed. See Tex. R. App. P. 59(b).
Before Justices Powers, Jones and Kidd
Dismissed on Appellant's Motion
Filed: December 22, 1993
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1560273/ | 18 So. 3d 1048 (2009)
RICE
v.
STATE.
No. 2D09-1670.
District Court of Appeal of Florida, Second District.
September 30, 2009.
Decision without published opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/726111/ | 95 F.3d 593
1996-2 Trade Cases P 71,554
CHICAGO PROFESSIONAL SPORTS LIMITED PARTNERSHIP and WGNContinental Broadcasting Company,Plaintiffs-Appellees, Cross-Appellants,v.NATIONAL BASKETBALL ASSOCIATION, Defendant-Appellant, Cross-Appellee.
Nos. 95-1341, 95-1376, 95-3935 and 95-4021.
United States Court of Appeals,Seventh Circuit.
Argued June 4, 1996.Decided Sept. 10, 1996.Rehearing and Suggestion for RehearingEn Banc Denied Oct. 7, 1996.*
James E. Hanlon, Jr., Joel G. Chefitz (argued), Stephen D. Libowsky, Laura Keidan Martin, Ronald S. Betman, Robert K. Niewijk, Katten, Muchin & Zavis, Chicago, IL, for Chicago Professional Sports Ltd. Partnership, in Nos. 95-1341, 95-1376.
James E. Hanlon, Jr., Joel G. Chefitz (argued), Stephen D. Libowsky, Laura Keidan Martin, Ronald S. Betman, Robert K. Niewijk, Wendy Fleishman, Katten, Muchin & Zavis, Chicago, IL, for Chicago Professional Sports Ltd. Partnership, in No. 95-3935.
James E. Hanlon, Jr., Katten, Muchin & Zavis, John R. McCambridge (argued), Darrell J. Graham, Irving C. Faber, Charles S. Bergen, Christopher B. Wilson, Grippo & Elden, Chicago, IL, Charles J. Sennet, Tribune Co., Chicago, IL, for WGN Continental Broadcasting, Inc., in No. 95-1341.
John R. McCambridge (argued), Darrell J. Graham, Irving C. Faber, Michael P. Conway, Charles S. Bergen, Christopher B. Wilson, Grippo & Elden, Chicago, IL, Charles J. Sennet, Tribune Co., Chicago, IL, for WGN Continental Broadcasting, Inc., in No. 95-1376.
James E. Hanlon, Jr., Katten, Muchin & Zavis, John R. McCambridge (argued), Darrell J. Graham, Michael P. Conway, Charles S. Bergen, Christopher B. Wilson, Grippo & Elden, Chicago, IL, Charles J. Sennet, Tribune Co., Chicago, IL, for WGN Continental Broadcasting, Inc., in No. 95-3935.
James E. Hanlon, Jr., Katten, Muchin & Zavis, John R. McCambridge (argued), Darrell J. Graham, Irving C. Faber, Michael P. Conway, Charles S. Bergen, Christopher B. Wilson, Grippo & Elden, Chicago, IL, Charles J. Sennet, Tribune Co., Chicago, IL, for WGN Continental Broadcasting, Inc., in No. 95-4021.
Marc J. Goldstein, Michael A. Cardoza, Bradley I. Ruskin, Steven C. Krane, Stephen D. Solomon, Ronald S. Rauchberg, Howard L. Ganz, Francis D. Landrey, Stephen L. Weinstein, Proskauer, Rose, Goetz & Mendelsohn, New York City, Christopher Wolf, Warren L. Dennis, Proskauer, Rose, Goetz & Mendelsohn, Washington, DC, James C. Schroeder, Tyrone C. Fahner, Andrew S. Marovitz, Matthew A. Rooney, Herbert L. Zarov, John E. Muench, Mayer, Brown & Platt, Chicago, IL, Carole E. Handler, Proskauer, Rose, Goetz & Mendelsohn, Los Angeles, CA, Jeffrey A. Mishkin (argued), National Basketball Ass'n, Office of the General Counsel, New York City, for National Basketball Ass'n, in No. 95-1341.
Herbert L. Zarov, Mayer, Brown & Platt, Washington, D, Marc J. Goldstein, Michael A. Cardoza, Bradley I. Ruskin, Steven C. Krane, Stephen D. Solomon, Ronald S. Rauchberg, Howard L. Ganz, Francis D. Landrey, Stephen L. Weinstein, Proskauer, Rose, Goetz & Mendelsohn, New York City, Christopher Wolf, Warren L. Dennis, Proskauer, Rose, Goetz & Mendelsohn, Washington, DC, James C. Schroeder, Tyrone C. Fahner, Kenneth E. Wile, Andrew S. Marovitz, Matthew A. Rooney, John E. Muench, Mayer, Brown & Platt, Chicago, IL, Carole E. Handler, Proskauer, Rose, Goetz & Mendelsohn, Los Angeles, CA, Jeffrey A. Mishkin (argued), Richard W. Buchanan, National Basketball Ass'n, Office of the General Counsel, New York City, for National Basketball Ass'n, in No. 95-1376.
Michael A. Cardoza, Bradley I. Ruskin, Stephen D. Solomon, Ronald S. Rauchberg, Stephen L. Weinstein, Proskauer, Rose, Goetz & Mendelsohn, New York City, Christopher Wolf, Warren L. Dennis, Proskauer, Rose, Goetz & Mendelsohn, Washington, DC, James C. Schroeder, Andrew S. Marovitz, Matthew A. Rooney, Herbert L. Zarov, Mayer, Brown & Platt, Chicago, IL, Carole E. Handler, Proskauer, Rose, Goetz & Mendelsohn, Los Angeles, CA, Jeffrey A. Mishkin (argued), Richard W. Buchanan, National Basketball Ass'n, Office of the General Counsel, New York City, for National Basketball Ass'n, in No. 95-3935.
Marc J. Goldstein, Michael A. Cardoza, Bradley I. Ruskin, Steven C. Krane, Stephen D. Solomon, Ronald S. Rauchberg, Howard L. Ganz, Francis D. Landrey, Stephen L. Weinstein, Proskauer, Rose, Goetz & Mendelsohn, New York City, Christopher Wolf, Warren L. Dennis, Proskauer, Rose, Goetz & Mendelsohn, Washington, DC, James C. Schroeder, Tyrone C. Fahner, Andrew S. Marovitz, Matthew A. Rooney, Herbert L. Zarov, John E. Muench, Mayer, Brown & Platt, Chicago, IL, Carole E. Handler, Proskauer, Rose, Goetz & Mendelsohn, Los Angeles, CA, Jeffrey A. Mishkin (argued), Richard W. Buchanan, National Basketball Ass'n, Office of the General Counsel, New York City, for National Basketball Ass'n, in No. 95-4021.
Before BAUER, CUDAHY, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge.
1
In the six years since they filed this antitrust suit, the Chicago Bulls have won four National Basketball Association titles and an equal number of legal victories. Suit and titles are connected. The Bulls want to broadcast more of their games over WGN television, a "superstation" carried on cable systems nationwide. The Bulls' popularity makes WGN attractive to these cable systems; the large audience makes WGN attractive to the Bulls. Since 1991 the Bulls and WGN have been authorized by injunction to broadcast 25 or 30 games per year. 754 F. Supp. 1336 (1991). We affirmed that injunction in 1992, see 961 F.2d 667, and the district court proceeded to determine whether WGN could carry even more games--and whether the NBA could impose a "tax" on the games broadcast to a national audience, for which other superstations have paid a pretty penny to the league. After holding a nine-week trial and receiving 512 stipulations of fact, the district court made a 30-game allowance permanent, 874 F. Supp. 844 (1995), and held the NBA's fee excessive, 1995-2 Trade Cas. para. 71,253. Both sides appeal. The Bulls want to broadcast 41 games per year over WGN; the NBA contends that the antitrust laws allow it to fix a lower number (15 or 20) and to collect the tax it proposed. With apologies to both sides, we conclude that they must suffer through still more litigation.
2
Our 1992 opinion rejected the league's defense based on the Sports Broadcasting Act, 15 U.S.C. §§ 1291-95, but our rationale implied that the NBA could restructure its contracts to take advantage of that statute. 961 F.2d at 670-72. In 1993 the league tried to do so, signing a contract that transfers all broadcast rights to the National Broadcasting Company. NBC shows only 26 games during the regular season, however, and the network contract allows the league and its teams to permit telecasts at other times. Every team received the right to broadcast all 82 of its regular-season games (41 over the air, 41 on cable), unless NBC telecasts a given contest. The NBA-NBC contract permits the league to exhibit 85 games per year on superstations. Seventy were licensed to the Turner stations (TBS and TNT), leaving 15 potentially available for WGN to license from the league. It disdained the opportunity. The Bulls sold 30 games directly to WGN, treating these as over-the-air broadcasts authorized by the NBC contract--not to mention the district court's injunction. The Bulls' only concession (perhaps more to the market than to the league) is that WGN does not broadcast a Bulls game at the same time as a basketball telecast on a Turner superstation.
3
Back in 1991 and 1992, the parties were debating whether the NBA's television arrangements satisfied § 1 of the Sports Broadcasting Act, 15 U.S.C. § 1291. We held not, because the Act addresses the effects of "transfers" by a "league of clubs," and the NBA had prescribed rather than "transferred" broadcast rights. The 1993 contract was written with that distinction in mind. The league asserted title to the copyright interests arising from the games and transferred all broadcast rights to NBC; it received some back, subject to contractual restrictions. Section 1 has been satisfied. But the league did not pay enough attention to § 2, 15 U.S.C. § 1292, which reads:
4
Section 1291 of this title shall not apply to any joint agreement described in the first sentence in such section which prohibits any person to whom such rights are sold or transferred from televising any games within any area, except within the home territory of a member club of the league on a day when such club is playing at home.
5
The NBA-NBC contract permits each club to license the broadcast of its games, and then, through the restriction on superstation broadcasts, attempts to limit telecasts to the teams' home markets. Section 2 provides that this makes § 1 inapplicable, so the Sports Broadcasting Act leaves the antitrust laws in force.
6
Our prior opinion observed that the Sports Broadcasting Act, as a special-interest exception to the antitrust laws, receives a beady-eyed reading. A league has to jump through every hoop; partial compliance doesn't do the trick. The NBA could have availed itself of the Sports Broadcasting Act by taking over licensing and by selling broadcast rights in the Bulls' games to one of the many local stations in Chicago, rather than to WGN. The statute offered other options as well. Apparently the league did not want to use them, in part for tax reasons and in part because it sought to avoid responsibilities that come from being a licensor, rather than a regulator, of telecasts. Such business decisions are understandable and proper, but they have consequences under the Sports Broadcasting Act. By signing a contract with NBC that left the Bulls, rather than the league, with the authority to select the TV station that would broadcast the games, the NBA made its position under the Sports Broadcasting Act untenable. For as soon as the Bulls picked WGN, any effort to control cable system retransmission of the WGN signal tripped over § 2. The antitrust laws therefore apply, and we must decide what they have to say about the league's effort to curtail superstation transmissions.
7
Three issues were left unresolved in 1992. One was whether the Bulls and WGN, as producers, suffer antitrust injury. 961 F.2d at 669-70. The NBA has not pursued this possibility, and as it is not jurisdictional (plaintiffs suffer injury in fact), we let the question pass. The other two issues are related. We concluded in 1992 that the district court properly condemned the NBA's superstation rule under the quick-look version of the Rule of Reason, see National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984), because (a) the league did not argue that it should be treated as a single entity, and (b) the anti-free-riding justification for the superstation rule failed because a fee collected on nationally telecast games would compensate other teams (and the league as a whole) for the value of their contributions to the athletic contests being broadcast. 961 F.2d at 672-76. Back in the district court, the NBA argued that it is entitled to be treated as a single firm and therefore should possess the same options as other licensors of entertainment products; outside of court, the league's Board of Governors adopted a rule requiring any club that licenses broadcast rights to superstations to pay a fee based on the amount the two Turner stations pay for games they license directly from the league.
8
Plaintiffs say that the single-entity argument was forfeited by its omission from the first appeal, but we think not. As our 1992 opinion observed, the case went to initial trial and decision within seven weeks, 961 F.2d at 676, a salutary development made possible in part by judicial willingness to entertain in subsequent rounds of the case arguments that could not be fully developed in such short compass. If defendants in complex cases feared that any arguments omitted from the first phase of the case would be lost forever, they would drag their heels in order to ensure that nothing was overlooked, a step that would benefit no one. Cf. Schering Corp. v. Illinois Antibiotics Co., 89 F.3d 357 (7th Cir.1996). That is why we noted that the argument would be available in the ensuing stages of the case, 961 F.2d at 672-73, and why the district court properly entertained and resolved it on the merits.
9
The district court was unimpressed by the NBA's latest arguments. It held that a sports league should not be treated as a single firm unless the teams have a "complete unity of interest"--which they don't. The court also held the fee to be invalid. Our opinion compelled the judge to concede that a fee is proper in principle. 961 F.2d at 675-76. But the judge thought the NBA's fee excessive. Instead of starting with the price per game it had negotiated with Turner (some $450,000), and reducing to account for WGN's smaller number of cable outlets, as it did, the judge concluded that the league should have started with the advertising revenues WGN generated from retransmission on cable (the "outer market revenues"). Then it should have cut this figure in half, the judge held, so that the Bulls could retain "their share" of these revenues. The upshot: the judge cut the per game fee from roughly $138,000 to $39,400.
10
The district court's opinion concerning the fee reads like the ruling of an agency exercising a power to regulate rates. Yet the antitrust laws do not deputize district judges as one-man regulatory agencies. The core question in antitrust is output. Unless a contract reduces output in some market, to the detriment of consumers, there is no antitrust problem. A high price is not itself a violation of the Sherman Act. See Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1, 9-10, 19-20, 22 n. 40, 99 S. Ct. 1551, 1557-58, 1562-63, 1564 n. 40, 60 L. Ed. 2d 1 (1979); Buffalo Broadcasting Co. v. ASCAP, 744 F.2d 917 (2d Cir.1984). WGN and the Bulls argue that the league's fee is excessive, unfair, and the like. But they do not say that it will reduce output. They plan to go on broadcasting 30 games, more if the court will let them, even if they must pay $138,000 per telecast. Although the fee exceeds WGN's outer-market revenues, the station evidently obtains other benefits--for example, (i) the presence of Bulls games may increase the number of cable systems that carry the station, augmenting its revenues 'round the clock; (ii) WGN slots into Bulls games ads for its other programming; and (iii) many viewers will keep WGN on after the game and watch whatever comes next. Lack of an effect on output means that the fee does not have antitrust significance. Once antitrust issues are put aside, how much the NBA charges for national telecasts is for the league to resolve under its internal governance procedures. It is no different in principle from the question how much (if any) of the live gate goes to the visiting team, who profits from the sale of cotton candy at the stadium, and how the clubs divide revenues from merchandise bearing their logos and trademarks. Courts must respect a league's disposition of these issues, just as they respect contracts and decisions by a corporation's board of directors. Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (7th Cir.1978); cf. Baltimore Orioles, Inc. v. Major League Baseball Players Association, 805 F.2d 663 (7th Cir.1986).
11
According to the league, the analogy to a corporate board is apt in more ways than this. The NBA concedes that it comprises 30 juridical entities--29 teams plus the national organization, each a separate corporation or partnership. The teams are not the league's subsidiaries; they have separate ownership. Nonetheless, the NBA submits, it functions as a single entity, creating a single product ("NBA Basketball") that competes with other basketball leagues (both college and professional), other sports ("Major League Baseball", "college football"), and other entertainments such as plays, movies, opera, TV shows, Disneyland, and Las Vegas. Separate ownership of the clubs promotes local boosterism, which increases interest; each ownership group also has a powerful incentive to field a better team, which makes the contests more exciting and thus more attractive. These functions of independent team ownership do not imply that the league is a cartel, however, any more than separate ownership of hamburger joints (again useful as an incentive device, see Benjamin Klein & Lester F. Saft, The Law and Economics of Franchise Tying Contracts, 28 J.L. & Econ. 345 (1985)) implies that McDonald's is a cartel. Whether the best analogy is to a system of franchises (no one expects a McDonald's outlet to compete with other members of the system by offering pizza) or to a corporate holding company structure (on which see Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S. Ct. 2731, 81 L. Ed. 2d 628 (1984)) does not matter from this perspective. The point is that antitrust law permits, indeed encourages, cooperation inside a business organization the better to facilitate competition between that organization and other producers. To say that participants in an organization may cooperate is to say that they may control what they make and how they sell it: the producers of Star Trek may decide to release two episodes a week and grant exclusive licenses to show them, even though this reduces the number of times episodes appear on TV in a given market, just as the NBA's superstation rule does.
12
The district court conceded this possibility but concluded that all cooperation among separately incorporated firms is forbidden by § 1 of the Sherman Act, except to the extent Copperweld permits. Copperweld, according to the district court, "is quite narrow, and rests solely upon the fact that a parent corporation and its wholly-owned subsidiary have a 'complete unity of interest' " (quoting from 467 U.S. at 771, 104 S.Ct. at 2741). Although that phrase appears in Copperweld, the Court offered it as a statement of fact about the parent-subsidiary relation, not as a proposition of law about the limits of permissible cooperation. As a proposition of law, it would be silly. Even a single firm contains many competing interests. One division may make inputs for another's finished goods. The first division might want to sell its products directly to the market, to maximize income (and thus the salary and bonus of the division's managers); the second division might want to get its inputs from the first at a low transfer price, which would maximize the second division's paper profits. Conflicts are endemic in any multi-stage firm, such as General Motors or IBM, see Robert G. Eccles, Transfer Pricing as a Problem of Agency, in Principals and Agents: The Structure of Business 151 (Pratt & Zeckhauser eds. 1985), but they do not imply that these large firms must justify all of their acts under the Rule of Reason. Or consider a partnership for the practice of law (or accounting): some lawyers would be better off with a lockstep compensation agreement under which all partners with the same seniority have the same income, but others would prosper under an "eat what you kill" system that rewards bringing new business to the firm. Partnerships have dissolved as a result of these conflicts. Yet these wrangles--every bit as violent as the dispute among the NBA's teams about how to generate and divide broadcast revenues--do not demonstrate that law firms are cartels, or subject to scrutiny under the Rule of Reason their decisions about where to open offices or which clients to serve.
13
Copperweld does not hold that only conflict-free enterprises may be treated as single entities. Instead it asks why the antitrust laws distinguish between unilateral and concerted action, and then assigns a parent-subsidiary group to the "unilateral" side in light of those functions. Like a single firm, the parent-subsidiary combination cooperates internally to increase efficiency. Conduct that "deprives the marketplace of the independent centers of decisionmaking that competition assumes", 467 U.S. at 769, 104 S.Ct. at 2740, without the efficiencies that come with integration inside a firm, go on the "concerted" side of the line. And there are entities in the middle: "mergers, joint ventures, and various vertical agreements" (id. at 768, 104 S. Ct. at 2740) that reduce the number of independent decisionmakers yet may improve efficiency. These are assessed under the Rule of Reason. We see no reason why a sports league cannot be treated as a single firm in this typology. It produces a single product; cooperation is essential (a league with one team would be like one hand clapping); and a league need not deprive the market of independent centers of decisionmaking. The district court's legal standard was therefore incorrect, and a judgment resting on the application of that standard is flawed.
14
Whether the NBA itself is more like a single firm, which would be analyzed only under § 2 of the Sherman Act, or like a joint venture, which would be subject to the Rule of Reason under § 1, is a tough question under Copperweld. It has characteristics of both. Unlike the colleges and universities that belong to the National Collegiate Athletic Association, which the Supreme Court treated as a joint venture in NCAA, the NBA has no existence independent of sports. It makes professional basketball; only it can make "NBA Basketball" games; and unlike the NCAA the NBA also "makes" teams. After this case was last here the NBA created new teams in Toronto and Vancouver, stocked with players from the 27 existing teams plus an extra helping of draft choices. All of this makes the league look like a single firm. Yet the 29 clubs, unlike GM's plants, have the right to secede (wouldn't a plant manager relish that!), and rearrange into two or three leagues. Professional sports leagues have been assembled from clubs that formerly belonged to other leagues; the National Football League and the NBA fit that description, and the teams have not surrendered their power to rearrange things yet again. Moreover, the league looks more or less like a firm depending on which facet of the business one examines. See Phillip E. Areeda, 7 Antitrust Law para. 1478d (1986). From the perspective of fans and advertisers (who use sports telecasts to reach fans), "NBA Basketball" is one product from a single source even though the Chicago Bulls and Seattle Supersonics are highly distinguishable, just as General Motors is a single firm even though a Corvette differs from a Chevrolet. But from the perspective of college basketball players who seek to sell their skills, the teams are distinct, and because the human capital of players is not readily transferable to other sports (as even Michael Jordan learned) the league looks more like a group of firms acting as a monopsony. That is why the Supreme Court found it hard to characterize the National Football League in Brown v. Pro Football, Inc., --- U.S. ----, ----, 116 S. Ct. 2116, 2126, 135 L. Ed. 2d 521 (1996): "the clubs that make up a professional sports league are not completely independent economic competitors, as they depend upon a degree of cooperation for economic survival.... In the present context, however, that circumstance makes the league more like a single bargaining employer, which analogy seems irrelevant to the legal issue before us." To say that the league is "more like a single bargaining employer" than a multi-employer unit is not to say that it necessarily is one, for every purpose.
15
The league wants us to come to a conclusion on this subject (six years of litigation is plenty!) and award it the victory. Yet as we remarked in 1992, "[c]haracterization is a creative rather than exact endeavor." 961 F.2d at 672. The district court plays the leading role, followed by deferential appellate review. We are not authorized to announce and apply our own favored characterization unless the law admits of only one choice. The Supreme Court's ambivalence in Brown, like the disagreement among judges on similar issues, implies that more than one characterization is possible, and therefore that the district court must revisit the subject using the correct legal approach.
16
Most courts that have asked whether professional sports leagues should be treated like single firms or like joint ventures have preferred the joint venture characterization. E.g., Sullivan v. NFL, 34 F.3d 1091 (1st Cir.1994); North American Soccer League v. NFL, 670 F.2d 1249 (2d Cir.1982); Smith v. Pro Football, Inc., 593 F.2d 1173, 1179 (D.C.Cir.1978). But Justice Rehnquist filed a strong dissent from the denial of certiorari in the soccer case, arguing that "the league competes as a unit against other forms of entertainment", NFL v. North American Soccer League, 459 U.S. 1074, 1077, 103 S. Ct. 499, 500, 74 L. Ed. 2d 639 (1982), and the fourth circuit concluded that the Professional Golf Association should be treated as one firm for antitrust purposes, even though that sport is less economically integrated than the NBA. Seabury Management, Inc. v. PGA of America, Inc., 878 F. Supp. 771 (D.Md.1994), affirmed in relevant part, 52 F.3d 322 (4th Cir.1995). Another court of appeals has treated an electric cooperative as a single firm, Mt. Pleasant v. Associated Electric Cooperative, 838 F.2d 268 (8th Cir.1988), though the co-op is less integrated than a sports league. These cases do not yield a clear principle about the proper characterization of sports leagues--and we do not think that Copperweld imposes one "right" characterization. Sports are sufficiently diverse that it is essential to investigate their organization and ask Copperweld 's functional question one league at a time--and perhaps one facet of a league at a time, for we do not rule out the possibility that an organization such as the NBA is best understood as one firm when selling broadcast rights to a network in competition with a thousand other producers of entertainment, but is best understood as a joint venture when curtailing competition for players who have few other market opportunities. Just as the ability of McDonald's franchises to coordinate the release of a new hamburger does not imply their ability to agree on wages for counter workers, so the ability of sports teams to agree on a TV contract need not imply an ability to set wages for players. See Jesse W. Markham & Paul V. Teplitz, Baseball Economics and Public Policy (1981); Arthur A. Fleisher III, Brian L. Goff & Robert D. Tollison, The National Collegiate Athletic Association: A Study in Cartel Behavior (1992).
17
However this inquiry may come out on remand, we are satisfied that the NBA is sufficiently integrated that its superstation rules may not be condemned without analysis under the full Rule of Reason. We affirmed the district court's original injunction after applying the "quick look" version because the district court had characterized the NBA as something close to a cartel, and the league had not then made a Copperweld argument. After considering this argument, we conclude that when acting in the broadcast market the NBA is closer to a single firm than to a group of independent firms. This means that plaintiffs cannot prevail without establishing that the NBA possesses power in a relevant market, and that its exercise of this power has injured consumers. Even in the NCAA case, the first to use a bobtailed Rule of Reason, see Diane P. Wood, Antitrust 1984: Five Decisions in Search of a Theory, 1984 Sup.Ct.Rev. 69, 110-12, the Court satisfied itself that the NCAA possesses market power. The district court had held that there is a market in college football telecasts on Saturday afternoon in the fall, a time when other entertainments do not flourish but college football dominates. Only after holding that this was not clearly erroneous did the Court cast any burden of justification on the NCAA. 468 U.S. at 111-13, 104 S.Ct. at 2965-67; see also International Boxing Club v. United States, 358 U.S. 242, 79 S. Ct. 245, 3 L. Ed. 2d 270 (1959).
18
Substantial market power is an indispensable ingredient of every claim under the full Rule of Reason. Digital Equipment Corp. v. Uniq Digital Technologies, Inc., 73 F.3d 756, 761 (7th Cir.1996); Sanjuan v. American Board of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994); Hardy v. City Optical, Inc., 39 F.3d 765, 767 (7th Cir.1994); Chicago Professional Sports Limited Partnership v. National Basketball Association, 961 F.2d 667, 673 (7th Cir.1992); Will v. Comprehensive Accounting Corp., 776 F.2d 665, 670-74 (7th Cir.1985); Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 210 (7th Cir.1985). During the lengthy trial of this case, the NBA argued that it lacks market power, whether the buyers are understood as the viewers of games (the way the district court characterized things in NCAA ) or as advertisers, who use games to attract viewers (the way the Supreme Court characterized a related market in Times-Picayune Publishing Co. v. United States, 345 U.S. 594, 73 S. Ct. 872, 97 L. Ed. 1277 (1953)). College football may predominate on Saturday afternoons in the fall, but there is no time slot when NBA basketball predominates. The NBA's season lasts from November through June; games are played seven days a week. This season overlaps all of the other professional and college sports, so even sports fanatics have many other options. From advertisers' perspective--likely the right one, because advertisers are the ones who actually pay for telecasts--the market is even more competitive. Advertisers seek viewers of certain demographic characteristics, and homogeneity is highly valued. A homogeneous audience facilitates targeted ads: breakfast cereals and toys for cartoon shows, household appliances and detergents for daytime soap operas, automobiles and beer for sports. If the NBA assembled for advertisers an audience that was uniquely homogeneous, or had especially high willingness-to-buy, then it might have market power even if it represented a small portion of air-time. The parties directed considerable attention to this question at trial, but the district judge declined to make any findings of fact on the subject, deeming market power irrelevant. As we see things, market power is irrelevant only if the NBA is treated as a single firm under Copperweld; and given the difficulty of that issue, it may be superior to approach this as a straight Rule of Reason case, which means starting with an inquiry into market power and, if there is power, proceeding to an evaluation of competitive effects.
19
Perhaps this can be accomplished using the materials in the current record. Although the judge who presided at the trial died earlier this year, the parties may be willing to agree that an assessment of credibility is unnecessary, so that a new judge could resolve the dispute after reviewing the transcript, exhibits, and stipulations, and entertaining argument. See Fed.R.Civ.P. 63. At all events, the judgment of the district court is vacated, and the case is remanded for proceedings consistent with this opinion. Pending further proceedings in the district court or agreement among the parties, the Bulls and WGN must respect the league's (and the NBC contract's) limitations on the maximum number of superstation telecasts.
CUDAHY, Circuit Judge, concurring:
20
Although I agree with the majority's firm conclusion that the "quick look" doctrine does not apply to these complex facts, I must indicate some differences in significant matters that are reached in the course of the majority opinion. Thus, in arriving at its conclusion that a full Rule of Reason analysis is required, the majority seems to be extrapolating from its discussion of whether the NBA may be a "single entity." Classification as a "single entity" means immunity from Sherman Act, § 1, considerations, a distinction much more drastic than the conclusion that the conduct in question here deserves a "quizzical look" rather than a mere "quick look." So, although it is not entirely clear, the majority seems to be saying that, since the NBA may be a single entity, its conduct certainly merits more than a quick look. Perhaps so, but, since the single entity question is unresolved, I would prefer to address the problem from a slightly different direction.
21
For the "quick look" approach should have a narrow application, reflecting its recent and sharply delimited origin in the NCAA case. Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of the Univ. of Oklahoma, 468 U.S. 85, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984). That case, involving a loose alliance of colleges which had agreed on price and output restrictions on broadcast of their football games, held that under some circumstances a full analysis of market power is not required to determine that an agreement is anticompetitive. This framework should not be extended to the more highly integrated and economically unitary NBA.
22
The colleges which made up the NCAA were entirely separate economic entities, competing with each other in many areas unrelated to their athletic encounters. There is, of course, a sort of continuum of economic integration, with entities at different points along the continuum warranting differing levels of antitrust concern. At one end are loose alliances of economic actors having independent concerns (like the NCAA), the anticompetitive nature of whose agreements is obvious from a "quick look." At the other end are fully-integrated entities in which the economic interests of the participants are so completely aligned that antitrust scrutiny of their policies is unnecessary except where § 2 of the Sherman Act is violated. In the center is the broad range of organizations (generally like the NBA) whose separate constituents are individually owned but are closely but not completely tied economically to their organizations. These entities are capable of anticompetitive agreements, but a full Rule of Reason analysis is necessary to ensure that productive cooperation is not mistaken for anticompetitive conduct. Single entity aside, there is certainly enough concern here for the efficiency of the league as a competitor in the entertainment market to require full Rule of Reason analysis.
23
On a more clear-cut point, I think it was appropriate for Judge Will to examine the size of the NBA's fee for the WGN broadcasts of Bulls games. In this connection, the majority rejects considerations of fairness "and the like" and asserts that, "The core question in antitrust is output." Maj. Op. at 597. Under the reductive view that prevails in antitrust matters, this somewhat grating aphorism appears to be correct. If efficiency (or consumer welfare) is the be-all and end-all, more seems to be better no matter how the more is distributed. But taking these principles as a given, it is still difficult for me to understand how output can be disjoined from cost under the circumstances of this case. In fact, Judge Will found as a fact that, "[the NBA's proposed fee] may well at some future date decrease output and distribution of Bulls games on WGN...." Dist.Ct. Findings of Fact, Conclusions of Law and Opinion, NBA App. at 77a. But, particularly since output is currently constrained to 30 games, rather than whatever the market would produce, it is difficult to ascertain whether the fee is high enough to reduce output below the competitive level. Since it is not clear to me that the magnitude of Judge Will's adjustment was justified by antitrust considerations alone, I would include this issue with other matters to be considered on remand.
24
That said, I turn to the single entity issue, where the discussion of the majority is deserving of comment both as to substance and to procedure. My first reservation is procedural and concerns whether this issue may be reached at all. The majority announces an exception--without precedent to my knowledge--from the usual rules of waiver of issues on appeal. The exception applies, according to the majority, to "defendants in complex cases" without elaboration. Why we should have more forgiving policies for highly skilled and highly compensated counsel in big corporate cases than for pro se litigants or appointed counsel of perhaps lesser qualification is certainly unclear to me. Our earlier opinion in this case states that "the NBA did not contend in the district court that the NBA is a single entity, let alone that it is a single entity as a matter of law." Chicago Professional Sports Ltd. Partnership v. National Basketball Ass'n, 961 F.2d 667, 673 (7th Cir.1992), cert. denied, 506 U.S. 954, 113 S. Ct. 409, 121 L. Ed. 2d 334 (1992). We also stated that:
25
Characterization is a creative rather than exact endeavor. Appellate review is accordingly deferential. The district court held a trial, heard the evidence, and concluded that the best characterization of the NBA is the third we have mentioned: a joint venture in the production of games but more like a cartel in the sale of its output. Whether this is the best characterization of professional sports is a subject that has divided courts and scholars for some years, making it hard to characterize the district judge's choice as clear error.
26
Id. at 672. No one seems to have argued that the basic structure of the NBA has changed since that opinion. I think, therefore, that, despite dicta in our earlier opinion speculating that "[p]erhaps the parties will join issue more fully [regarding the single entity status of the NBA] in the proceedings still to come in the district court," id. at 673, there is a real question whether we can reach the single entity issue--fascinating though it may be.
27
However, on the assumption that the "single entity" question may be reached (and presumably will be reached on remand) a number of considerations will be relevant. Assuming as I must that the sole goal of antitrust is efficiency or, put another way, the maximization of total societal wealth, the question whether a sports league is a "single entity" turns on whether the actions of the league have any potential to lessen economic competition among the separately owned teams.1 The fact that teams compete on the floor is more or less irrelevant to whether they compete economically--it is only their economic competition which is germane to antitrust analysis. In principle, of course, a sports league could actually be a single firm and the individual teams could be under unified ownership and management. Such a firm would, of course, be subject to scrutiny only under § 2 of the Sherman Act and not under § 1. From the point of view of wealth maximization, a league of independently-owned teams, if it is no more likely than a single firm to make inefficient management decisions, should be treated as a single entity. The single entity question thus would boil down to "whether member clubs of a sports league have legitimate economic interests of their own, independent of the league and each other." Sports Leagues Revisited at 127. It follows that a sports league, no matter what its ownership structure, can make inefficient decisions only if the individual teams have some chance of economic gain at the expense of the league.
28
Another form of the same question is whether a sports league is more like a single firm or like a joint venture. With efficiency the sole criterion, a joint venture warrants scrutiny for at least two reasons--(1) the venture could possess market power with respect to the jointly produced product (essentially act like a single firm with monopoly power) or (2) the fact that the venturers remain competitors in other arenas might either distort the way the joint product is managed or allow the venturers to use the joint product as a smoke-screen behind which to cut deals to reduce competition in the other arenas. The most convincing "single entity" argument involving the NBA is that the teams produce only the joint product of "league basketball" and that there is thus no significant economic competition between them. NBA Br. at 25-27. If this is the case, the argument goes, type (2) concerns drop out and only type (1) concerns remain. Type (1) concerns, of course, are exactly those appropriate for § 2 analysis of a single firm.
29
There are, however, flaws in this single entity argument. The assumption underlying it is that league sports are a different and more desirable product than a disorganized collection of independently arranged games between teams. For this reason, it is contended that joining sports teams into a league is efficiency-enhancing and desirable. I will accept this premise.2 It is perhaps true, as argued by the NBA and many commentators, that sports are different from many joint ventures because the individual teams cannot, even in principle, produce the product--league sports. However, the fact that cooperation is necessary to produce league basketball does not imply that the league will necessarily produce its product in the most efficient fashion. There is potential for inefficient decisionmaking regarding the joint product of "league basketball" even when the individual teams engage in no economic activity outside of the league. This potential arises because the structure of the league is such that all "owners" of the league must be "owners" of individual teams and decisions are made by a vote of the teams. This means that the league will not necessarily make efficient decisions about the number of teams fielded or, more generally, the competitive balance among teams. Thus, the fact that several teams are required to make a league does not necessarily imply that the current makeup of the league is the most desirable or "efficient" one.
30
The NBA's justification for its restriction of Bulls broadcasts centers on the need to maintain a competitive balance among teams. Such a balance is needed to ensure that the league provides high quality entertainment throughout the season so as to optimize competition with other forms of entertainment. Competitive balance is not the only contributor to the entertainment value of NBA basketball, however. Fan enjoyment of league sports depends on both the opportunity to identify with a local or favorite team and the thrill of watching the best quality of play. A single firm owning all of the teams would presumably arrange for the number of teams and their locations efficiently to maximize fan enjoyment of the league season. There is, however, no reason to expect that the current team owners will necessarily make such decisions efficiently, given their individual economic interests in the financial health of their own teams.
31
It's not surprising that far-flung fans want to watch the Bulls' superstars on a superstation. The NBA argues that the broadcasting of more Bulls games to these fans will disturb the competitive balance among teams. However, one can also speculate that, since sports viewing has become more of a television activity than an "in the flesh" activity, these fans might prefer to have a league composed of fewer, better teams (like the Bulls). If this were the case, league policies designed to shore up all of the current teams would be inefficient. The point, of course, is not that this speculation is necessarily correct, but that the efficient number of teams (or, more generally, the efficient competitive balance) may not be obtained as a matter of course given the current league ownership framework.
32
The team owners thus retain independent economic interests. This would be the case even if they did not compete for the revenues of the league. Teams do compete for broadcast revenues, however. "A conflicting economic interest between the league and an individual club can exist only when league revenues are distributed unequally among the member clubs based on club participation in the games generating the revenue." Sports Leagues and the Sherman Act at 297-99. When teams receive a disproportionate share of the broadcast revenues generated by their own games, such a situation exists.
33
The analysis of this issue is tricky, however, since decisions about how to allocate broadcasting revenues are made by the league. It may be that "member clubs of a league do not have any legitimate independent economic interests in the league product" and "each team has an ownership interest in every game" (including an equal a priori ownership interest in the broadcast rights to every game). Sports Leagues Revisited at 135-36. If this assumption is correct, then whatever arrangements for revenue distribution the league decides to make will be, like bonuses to successful salespeople in an ordinary firm, presumptively efficient. If, however, broadcast rights inure initially to the two teams participating in a particular game and if, as is certainly the case, some games are more attractive to fans than others, the league cannot be presumed to have made decisions allocating those broadcast revenues efficiently.
34
The analogy, within the context of an ordinary firm, is to allow the salespeople to vote on the bonuses each is to get. Each salesperson has some incentive, of course, to promote the overall efficiency of the firm on which his or her salary, or perhaps the value of his or her firm stock, depends and therefore to award the larger bonuses to the most productive salespersons. However, in this scenario each salesperson has two ways of maximizing personal wealth--increasing the overall efficiency of the firm and redistributing income within the firm.3 The result of the vote might not be to distribute bonuses in the most efficient fashion. The potential for this type of inefficiency is particularly great when, as with the NBA, the league is "the only game in town" so that a team does not have the option of going elsewhere if it is not receiving revenues commensurate with its contribution to the overall league product.4 In any event, a group of team owners who do not share all revenues from all games might well make decisions that do not maximize the profit of the league as a whole.5
35
As this discussion demonstrates, determining whether the potential for inefficient decisionmaking survives within a joint venture because of the independent economic interests of the partners is extraordinarily complex and confusing. For this reason, a simple, if not courageous, way out of the problem might be to establish a legal presumption that a single entity cannot exist without single ownership. To avoid the complexities and confusions of attempted analysis, one might simply ordain that combinations that lack diverse economic interests should opt for joint ownership of a single enterprise to avoid antitrust problems. On the other hand, judges may want to play economist to the extent of resisting simplifying assumptions.
36
In any event, sports leagues argue that they must maintain independent ownership of the teams because separate ownership enhances the appearance of competitiveness demanded by fans. But the leagues cannot really expect the courts to aid them in convincing consumers that competition exists if it really does not. If consumers want economic competition between sports teams, then independent ownership and preservation of independent economic interests is likely an efficient choice for a sports league. But that choice, as with other joint ventures, brings with it the attendant antitrust risks. The NBA cannot have it both ways.
37
Relating all of this to the majority's treatment of the single entity issue, I see two problems with the majority analysis. First, as already noted, divorcing the question of single entity from the question of ownership is likely to lead to messy and inconsistent application of antitrust law. The bottom line may be that the inquiry into whether separate economic interests are maintained by the participants in a joint enterprise is likely to be no easier than a full Rule of Reason analysis.
38
Second, some of the majority's discussion of independent interests is puzzling. The majority contends that the district court "concluded that all cooperation among separately incorporated firms is forbidden by § 1 of the Sherman Act, except to the extent Copperweld permits." Maj. Op. at 598, citing Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771, 104 S. Ct. 2731, 2741-42, 81 L. Ed. 2d 628 (1984). Copperweld concluded that a parent corporation and its wholly-owned subsidiary have a "complete unity of interest" and hence should be treated as a single entity. Here the district court simply concluded that the NBA, because it involved cooperation between separately-owned teams, was subject to antitrust analysis. Dist.Ct. Findings of Fact, Conclusions of Law and Opinion, NBA App. at 34a. This conclusion is a far cry from deciding that all cooperation among separately incorporated firms is forbidden.
39
I also cannot agree with the majority's analysis of the type of "unity of interest" required for single entity status. The majority states, Maj. Op. at 598, that "[e]ven a single firm contains many competing interests." The opinion goes on to cite the competition for salary and bonuses between division managers as an example. However, when Copperweld talks about unity of interests in the single entity context, I think it must be taken to mean unity of economic interests of the decisionmakers. See Copperweld, 467 U.S. at 769, 104 S. Ct. at 2740-41. A single firm does not evidence diverse economic interests to the outside world because final decisions are made by the owners or stockholders, who care only about the overall performance of the firm. Only because this is the case can single firms be assumed to behave in the canonical profit-maximizing fashion. The diverse interests mentioned in the majority opinion seem as irrelevant to the antitrust analysis as is the on-court rivalry between teams in the NBA.
40
Thus, when Copperweld refers to conduct that "deprives the marketplace of the independent centers of decisionmaking that competition assumes," it does not refer to "decisionmakers" whose economic independence is only potential. The antitrust issue is really whether, as a result of some cooperative venture, economic interests which remain independent coordinate their decisions. As Copperweld notes, "[t]he officers of a single firm are not separate economic actors pursuing separate economic interests...." Id. Therefore, their joint decisionmaking is of no antitrust concern. Employees or divisions within a firm, on the other hand, may remain separate economic actors pursuing separate economic interests but they do not make the final decisions governing the firm's operations. They may compete for shares of the firm's revenues, but they do not decree how that revenue will be shared. Thus their conflict or cooperation does not pose antitrust issues either. Joint ventures, on the other hand, are subject to antitrust scrutiny precisely because separate economic interests are joined in decisionmaking, with the potential for distorted results.
41
As long as teams are individually owned and revenue is not shared in fixed proportion, the teams both retain independent economic interests and make decisions in concert. Where this is the case, there is a strong argument that sports leagues should be treated as joint ventures rather than single entities because there remains a potential that league policy will be made to satisfy the independent economic interests of some group of teams, rather than to maximize the overall performance of the league. Thus, it is possible, if more Bulls games were broadcast, league profits might increase. But, if the revenue from the broadcast of Bulls games goes disproportionately to the Bulls, the other league members may not vote for this more efficient result.
42
There may, of course, be cases in which independent ownership of the partners in a joint venture does not pose any real possibility of inefficient decisionmaking. This would be the case if the parties did not compete in any other arena and if all revenues were shared in fixed proportions among the partners. In general, however, a plausible case can be made for the proposition that independent ownership should presumptively preclude treatment as a single entity. This certainly does not mean, of course, that "all cooperation among separately incorporated firms is forbidden by § 1 of the Sherman Act," Maj. Op. at 598. It would mean only that such cooperation must ordinarily be justified under the Rule of Reason. Justification might not be more difficult than the elusive search for treatment as a single entity.
*
Judge Cummings did not participate in the consideration of the suggestion for rehearing en banc
1
See, e.g., Michael S. Jacobs, Professional Sports Leagues, Antitrust and the Single-Entity Theory: a Defense of the Status Quo, 67 Ind.L.J. 25 (1991); Gary R. Roberts, The Antitrust Status of Sports Leagues Revisited, 64 Tul.L.Rev. 117 (1989); Myron C. Grauer, The Use and Misuse of the Term "Consumer Welfare": Once More to the Mat on the Issue of Single Entity Status for Sports Leagues Under Section 1 of the Sherman Act, 64 Tul.L.Rev. 71 (1989); Lee Goldman, Sports, Antitrust, and the Single Entity Theory, 63 Tul.L.Rev. 751 (1989); Gary R. Roberts, Sports Leagues and the Sherman Act: The Use and Abuse of Section 1 to Regulate Restraints on Intraleague Rivalry, 32 UCLA L.Rev. 219 (1984), for discussions of this issue
2
But the Green Bay Packers and the Chicago Bears played, presumably before enthusiastic crowds, before there was a National Football League
3
Those favoring the single entity treatment of sports leagues frequently compare them to law firms, making the argument that sports leagues are like law firms, law firms are single entities, therefore sports leagues are single entities. See, e.g., Myron C. Grauer, Recognition of the National Football League as a Single Entity Under Section 1 of the Sherman Act: Implications of the Consumer Welfare Model, 82 Mich.L.Rev. 1, 23-35 (1983); Maj. Op. at 597-98. This argument is only valid, however, if law firms should be treated as single entities. If law firms do, in fact, have some of the same potential for inefficiencies as sports leagues because of the diverse economic interests of the partners, the economically correct solution is still to treat sports leagues as joint ventures. A mere analogy to law firms is not convincingly invoked by those seeking to defend their arguments on purely economic (rather than precedential) grounds
Applying the same logic in reverse, there is considerable precedent for treating sports leagues as joint ventures. Nat'l Collegiate Athletic Assoc. v. Bd. of Regents of the Univ. of Oklahoma, 468 U.S. 85, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984); Sullivan v. National Football League, 34 F.3d 1091, 1099 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S. Ct. 1252, 131 L. Ed. 2d 133 (1995); Los Angeles Memorial Coliseum Comm'n v. National Football League, 726 F.2d 1381, 1388-90 (9th Cir.1984), cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); North American Soccer League v. NFL, 670 F.2d 1249, 1252 (2d Cir.1982), cert. denied, 459 U.S. 1074, 103 S. Ct. 499, 74 L. Ed. 2d 639 (1982); Smith v. Pro Football, Inc., 593 F.2d 1173, 1179 (D.C.Cir.1978); Levin v. National Basketball Ass'n, 385 F. Supp. 149, 150 (S.D.N.Y.1974). Therefore, one might equally well argue that sports leagues have never been treated as single entities and, to the extent that law firms are like them, law firms should not be treated as single entities either.
4
The hypothetical example of a team taking its broadcast rights elsewhere does seem to suggest, however, that broadcast rights are at bottom the property of the teams participating in a given game. Indeed, if the team does not own the broadcast rights to the games in which it participates, it is hard to understand what it means to own a team at all
5
See Herbert Hovenkamp, Exclusive Joint Ventures and Antitrust Policy, 1995 Colum.Bus.L.Rev. 1 (1995), for a general discussion of the ways in which joint ventures can act inefficiently either by excluding members (or, here perhaps, over-including members) or by excluding products (superstation broadcasts, perhaps?) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/529731/ | 885 F.2d 1180
11 Employee Benefits Ca 1569
Richard W. DE NOBEL; R. Wilson Rowland; John William Ryan;Joseph L. Goodman; Grant H. Snyder, Jr.; Helen A. Hess;Alvin A. Hess; Martin D. Bender; Kathryn C. Moy; MargaretL. Fisher; Emilda M. Costopoulos; Raymond L. Barrie;Frank W. Latson; William B. Lake; William C. Murphy, Jr.;Herbert S. Kline, Plaintiffs-Appellants,v.VITRO CORPORATION; Vitro Corporation Retirement Plan;Administrative Committee Vitro Corporation Retirement Plan;H.L. Dewberry, Chairman; Jack R. Lopez; Gary D.Funkhouser; Nancy E. Neuvelt; Kathy M. Hall, BenefitsCoordinator, Defendants-Appellees.
No. 88-3104.
United States Court of Appeals,Fourth Circuit.
Argued Dec. 6, 1988.Decided Sept. 5, 1989.Rehearing and Rehearing In Banc Denied Oct. 17, 1989.
John Robert Mooney (Hugh J. Beins, Paul A. Green, Beins, Alexrod & Osborne, P.C., Washington, D.C., on brief), for plaintiffs-appellants.
Graeme Webster Bush (Scott D. Michel, Eileen M. Mallon, Caplin & Drysdale, Chartered, Washington, D.C., on brief), for defendants-appellees.
Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PHILLIPS, Circuit Judge:
1
Richard W. de Nobel and fifteen other retired employees of the Vitro Corporation (Vitro) appeal the summary judgment dismissal of their claims against Vitro under various provisions of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1001 et seq. In their amended complaint, the retirees claimed that the administrators of Vitro's ERISA-qualified retirement benefits trust miscalculated the amounts payable under the express terms of the retirement plan to "early retirees" electing to receive their benefits in a lump sum, rather than in a stream of monthly payments. Vitro of course claimed in response that it had paid the retirees all benefits to which they were entitled. Treating the dispute essentially as one over the correct interpretation of various provisions of the trust documents, the district court granted Vitro's motion for summary judgment, finding that the administrators' interpretation was consistent with the plain language of the plan, and that the company's resulting benefits determinations were therefore not arbitrary or capricious.
2
We now affirm, although for reasons somewhat different than those relied upon by the district court.
3
* The relevant facts are not in dispute. Vitro's corporate retirement plan (hereinafter the "Plan") expressly provides for the payment of both "normal" (i.e., age-65) and "early" retirement benefits in the form of a "straight-life" annuity. If a Plan participant elects to retire early--that is, before age 65--her monthly annuity payment will be less than that to which she would have been entitled upon "normal" retirement at a later date, depending of course on the participant's age at the time of retirement. Plan Sec. 3.04, Joint Appendix at 106.1 As the parties agree, however, the actuarial "present value" of straight-life annuity benefits paid to an early retiree is greater than the present value of the benefits the same employee would hypothetically receive if he waited to retire until age 65, inasmuch as early retirement benefits will typically be paid over a much longer period of time.
4
The Vitro Plan also permits retirees to "opt out" of the straight-life annuity and receive their benefits in any one of three optional forms. Relevant for present purposes are the following provisions of the official Plan documents:
Article 4
Form of Retirement Benefit Payments
5
4.01 Normal Form of Retirement Benefit Payments
6
(a) .... The normal form of payment of retirement benefits ... shall be in equal monthly installments commencing on a Participant's Normal Benefit Commencement Date [i.e., the first day of the first month following the Participant's sixty-fifth birthday] ... and payable on the first day of each month for the Participant's life.
7
* * *
8
* * *
4.02 Optional Forms of Retirement Benefit
9
In lieu of receiving payments under the normal form as described in Section 4.01, a Participant who is entitled to a monthly benefit under Article 3 hereof[, which provides for "normal" and "early" retirement benefits,] may elect to have the Actuarial Equivalent value of his monthly retirement benefit paid under the "Ten-Year Certain and Life Option" (defined in subsection (a) below), the "Contingent Annuitant Option" (defined in subsection (b) below) or the "Single-Sum Option" (defined in subsection (c) below)....
10
(a) Ten-Year Certain and Life Option. A Ten-Year Certain and Life Option means a monthly benefit which is Actuarially Equivalent to the benefit under the form described in Section 4.01(a) .... [Mechanics of computation omitted; involves guaranteed ten-year stream of payments to retiree or, in case of his death, to a named beneficiary.]
11
(b) Contingent Annuitant Option. A Contingent Annuitant Option means a monthly benefit which is Actuarially Equivalent to the benefit under the form described in Section 4.01(a) .... [Mechanics of computation omitted; involves stream of payments to retiree and then, after her death, to named beneficiary.]
12
(c) Single-Sum Option. A Single-Sum Option means a single-sum payment which is Actuarially Equivalent to the benefit under the form described in Section 4.01(a).
13
J.A. at 113, 115-16 (emphasis supplied). The Plan in turn defines the phrase "Actuarially Equivalent" as "equivalence in [present] value between two or more methods of payment," given certain computational assumptions not relevant here. Plan Sec. 1.01, J.A. at 83. The quoted language from Article 4 would appear simply to provide, therefore, that a retiree selecting one of the "optional" forms of payment must ultimately receive benefits of the same "net present value" as those she would have received in a straight-life annuity.
14
What logically follows, we are now told, is that payments under each of the Article 4 options will be "Actuarially Equivalent" to each other. That is apparently not, however, what occurred as a matter of practice. Each of the plaintiffs in this case retired early and elected to receive their benefits in but one payment, under the "Single-Sum Option." What they ultimately discovered is that, as Vitro now concedes, the Plan's administrators calculated differently the benefits payable to early retirees who selected either the "Ten-Year Certain and Life" option or the "Contingent Annuitant" option and those payable to early retirees who selected the "Single-Sum Option." Employees who retired early and selected one of the first two options were paid the "Actuarial Equivalent"--again, the "net present value"--of the early retirement benefits they would have received had they chosen the standard, straight-life annuity form of payment. Early retirees who selected the Single-Sum Option, however, were only paid the "Actuarial Equivalent" of the normal, age-65 benefits they would have received had they waited to retire and selected the standard straight-life annuity. As a practical matter, this assertedly "discriminatory" policy in turn yielded Single-Sum Option benefits payments that were substantially less than those early retirees would have received if the computation had accounted for the greater "net present value" of straight-life early retirement benefits.
15
Of course, the plaintiffs now claim that they were shortchanged. First off, and as might be expected, they argue that the "plain language" of the Plan requires the administrators to pay early retirees selecting the Single-Sum Option the "Actuarial Equivalent" of their prospective monthly early retirement benefits, as computed according to the standard straight-life annuity formula. Vitro counters that, under the express terms of the plan documents, early retirees selecting one of the optional forms of payment are entitled only to benefits reflecting the "net present value" of whatever "normal," age-65 benefits might have been available had the employee delayed retirement. As indicated, the company concedes that it paid the actuarial equivalent of straight-life early retirement benefits to employees selecting options other than the Single-Sum form of payment, but argues that it was entitled to do so in an effort to encourage retirees not to draw out their vested benefits all at once.
16
The retirees also claim that, to the extent that the Plan as administered "penalizes" employees selecting the Single-Sum Option, it improperly "cashes out" vested, "nonforfeitable" benefits for less than their full net present value, hence in violation of ERISA Sec. 204(d). 29 U.S.C. Sec. 1054(d). And finally, the plaintiffs press a "federal common law contract" claim, arguing that Vitro's representations to employees in various informal "plan summaries" created a contract which the company now has breached.
17
The district court rejected each of these claims and granted Vitro's motion for summary judgment. This appeal followed.
II
18
Because it is ultimately dispositive on the merits of this appeal, we turn first to the question of the standard of review that controls judicial analysis of whether Vitro improperly denied the retirees' claims for enhanced "Single-Sum Option" retirement benefits.
19
* At the time the district court decided this case, it was thought well-settled that an extremely narrow standard of review applied where the beneficiaries of an ERISA-qualified retirement plan challenged in the courts unfavorable benefits determinations by plan fiduciaries. The generally accepted view was that such determinations could not be disturbed by a reviewing court absent a clear showing that the determination was arbitrary and capricious. See, e.g., Berry v. Ciba-Geigy Corp., 761 F.2d 1003, 1006 (4th Cir.1985).2 This court, for example, emphasized repeatedly that this deferential standard of review applied even where the core dispute was one over the interpretation of the ambiguous terms of plan documents, see, e.g., Holland v. Burlington Industries, Inc., 772 F.2d 1140, 1148 (4th Cir.1985), and that the standard itself was a
20
narrow one. A reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... [T]his inquiry into the facts is to be searching and careful, [but] the ultimate standard of review is a narrow one ..., [and t]he court is not empowered to substitute its judgment for that of the [plan fiduciaries].
21
LeFebre v. Westinghouse Electric Corp., 747 F.2d 197, 204 (4th Cir.1984) (emphasis in original) (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441-42, 42 L.Ed.2d 447 (1974)).
22
Not all courts applying this narrow standard were wholly enamored of it, however, particularly as applied in cases where there were strong indications of biased or otherwise malfeasant administrative decisionmaking. Without abandoning the "arbitrary and capricious" formulation, these courts were willing to apply it somewhat less deferentially when they perceived the possibility of bias or conflict of interest on the plan fiduciary's part. See, e.g., Jung v. FMC Corp., 755 F.2d 708, 711-12 (9th Cir.1985) (less deference owed where plan administered by employer himself, and denial of benefits avoided "considerable outlay" of employer funds); Dennard v. Richards Group, Inc., 681 F.2d 306, 314 (5th Cir.1982) (proper in assessing "arbitrariness" to consider any "inference of lack of good faith"). Reflecting the same concern, this court and the Seventh Circuit expressly espoused a "flexible approach" under which judicial deference would vary in application of this single standard depending upon the apparent degree of impartiality in the fiduciaries' decisionmaking process. See Holland, 772 F.2d at 1149; Van Boxel v. Journal Co. Employees' Pension Trust, 836 F.2d 1048, 1052-53 (7th Cir.1987). Going further, the Third Circuit had found the arbitrary and capricious standard simply unacceptable where plan fiduciary bias or partiality, especially that flowing from a direct conflict of economic interest, was evident. In such cases, that court held that judicial review should be de novo. See Bruch v. Firestone Tire and Rubber Co., 828 F.2d 134, 144-45 (3d Cir.1987). Cf. Struble v. New Jersey Brewery Employees' Welfare Trust Fund, 732 F.2d 325, 333-34 (3d Cir.1984).
23
It was against this background of differing lower court approaches that the Supreme Court, reviewing the Third Circuit's Bruch decision, swept the standard of review board clear in an opinion filed while this appeal was under submission. In Firestone Tire & Rubber Co. v. Bruch, --- U.S. ----, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Court prescribed rules for judicial review of ERISA benefit denials which effectively supplanted all the lower court approaches above summarized--but without rejecting all the concepts of review embodied in those approaches. Those rules of course now control our disposition of this appeal.3
24
Noting that "ERISA abounds with the language and terminology of trust law," the Court held that determination of the appropriate standard of review for actions in which plan beneficiaries challenge benefit denials should be governed by the various common law rules delimiting the discretionary authority of fiduciaries. Id., --- U.S. at ----, 109 S.Ct. at 954. These "settled principles of trust law" necessarily required
25
de novo review of benefit eligibility determinations based on plan interpretations.... As they do with contractual provisions, courts construe terms in trust agreements without deferring to either party's interpretation. "The extent of the duties and powers of a trustee is determined by the rules of law that are applicable to the situation, and not the rules that the trustee or his attorney believes to be applicable, and by the terms of the trust as the court may interpret them, and not as they may be interpreted by the trustee himself or by his attorney." 3 W. Fratcher, Scott on Trusts Sec. 201, at 221 [ (4th ed. 1988) ] (emphasis added). A trustee who is in doubt as to the interpretation of the instrument can protect himself by obtaining instructions from the court.... The terms of trusts created by written instruments are "determined by the provisions of the instrument as interpreted in light of all the circumstances and such other evidence of the intention of the settlor with respect to the trust as is not inadmissible." Restatement (Second) of Trusts Sec. 4, Comment d (1959).
26
Id., --- U.S. at ----, 109 S.Ct. at 955 (some citations omitted). More importantly, application of the more deferential "arbitrary and capricious" standard of review would be inconsistent with the manifest purposes of the statute. "ERISA was enacted 'to promote the interests of employees and their beneficiaries in employee benefit plans ...,' and 'to protect contractually defined benefits.' " Id. (quoting Shaw v. Delta Airlines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983) and Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985)). Application of a narrow standard of review would affirmatively frustrate these objectives because it would "afford less protection to employees and their beneficiaries than they enjoyed before ERISA was enacted." Id., --- U.S. at ----, 109 S.Ct. at 956.
27
The Bruch Court did not, however, do away with "deferential review" part and parcel. Instead, the Court expressly cautioned that "[t]rust principles make a deferential standard of review appropriate when a trustee exercises discretionary powers.... A trustee may be given power to construe disputed or doubtful terms, and in such circumstances the trustee's interpretation will not be disturbed if reasonable." Id., --- U.S. at ----, 109 S.Ct. at 954 (citations omitted). That said, the Court summarized the new rule to be applied in cases such as this one as follows:
28
Consistent with established principles of trust law ..., a denial of benefits challenged under [ERISA] is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan. Because we do not rest our decision on the concern for impartiality that guided the Court of Appeals, see 828 F.2d, at 143-46, we need not distinguish between types of plans or focus on the motivations of plan administrators and fiduciaries. Thus ..., the de novo standard of review applies regardless of whether the plan at issue is funded or unfunded and regardless of whether the administrator or fiduciary is operating under a possible or actual conflict of interest. Of course, if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a "factor[ ] in determining whether there is an abuse of discretion." Restatement (Second) of Trusts Sec. 187, Comment d (1959).
29
Id., --- U.S. at ----, 109 S.Ct. at 956-57 (emphasis supplied).
30
As we read Bruch, the Supreme Court has mandated total abandonment of the "arbitrary and capricious" formulation that guided the district court in the present case. The threshold question for reviewing courts is now whether the particular plan at issue vests in its administrators discretion either to settle disputed eligibility questions or to construe "doubtful" provisions of the plan itself. If the plan's fiduciaries are indeed entitled to exercise discretion of that sort, reviewing courts may disturb the challenged denial of benefits only upon a showing of procedural or substantive abuse. If not, the benefits determination at issue must be reviewed de novo.
31
The district court here of course did not review the Vitro administrators' decisions under the Bruch rules. Because we may do so here on a sufficiently developed record, however, we think it not in the interests of justice to remand for reconsideration by the district court. Instead, we undertake the review now mandated by Bruch in an independent exercise of our appellate review powers. 28 U.S.C. Sec. 2106.
B
32
Notwithstanding the retirees' protestations to the contrary, we think it clear that the Vitro plan gives the defendant administrators broad discretion to pass on precisely the sort of "interpretive" questions that led to the present dispute. In relevant part, the Plan provides that the "Administrative Committee," which acts as the trust's "named fiduciary" under ERISA Sec. 402(a), 29 U.S.C. Sec. 1102(a),
33
shall be generally responsible for the operation and administration of the Plan. To the extent that powers are not delegated to others pursuant to provisions of this Plan, the Committee shall have such powers as may be necessary to carry out the provisions of the Plan and to perform its duties hereunder, including, without limiting the generality of the foregoing, the power:
34
* * *
35
* * *
36
(e) To determine all benefits and resolve all questions pertaining to the administration, interpretation and application of Plan provisions, either by rules of general applicability or by particular decisions, provided that all Employees similarly situated are treated in a uniform and nondiscriminatory manner.
37
Plan Sec. 10.03(e), J.A. at 137-38 (emphasis supplied). The retirees would have us hold that this broad language does not confer on the trustees "discretion" to resolve benefits eligibility disputes or to interpret doubtful provisions of the Plan, for the simple reason that the word "discretion" itself appears nowhere in the Plan documents. "[A]lthough the Administrative Committee [is] empowered to decide issues of Plan interpretation ..., nowhere does the Plan expressly grant discretionary authority to the Committee in exercising these powers." Appellants' Supplemental Brief at 11 (emphasis in original). We perceive no principled basis, however, on which we could engage in semantic hairsplitting of that sort. There are obviously no magic words required to trigger the application of one or another standard of judicial review. In this setting, it instead need only appear on the face of the plan documents that the fiduciary has been "given [the] power to construe disputed or doubtful terms"--or to resolve disputes over benefits eligibility--in which case "the trustee's interpretation will not be disturbed if reasonable." Bruch, --- U.S. at ----, 109 S.Ct. at 954 (emphasis supplied).
38
Tacitly applying this common sense understanding of the principles enunciated in Bruch, we have before held that language far less broad than that involved here vests in plan fiduciaries a sufficient measure of discretionary authority to preclude de novo review of benefits determinations. In Boyd v. United Mine Workers Health & Retirement Funds, 873 F.2d 57, 59 (4th Cir.1989), for example, plan provisions giving administrators "the power of 'full and final determination as to all issues concerning eligibility for benefits' " and the authority " 'to promulgate rules and regulations to implement [the p]lan' " left in our minds "no question that the [t]rustees ... ha[d] discretionary authority." Invoking Bruch, we in turn reviewed the challenged denial of benefits under the deferential "abuse of discretion" standard. Id.4 As indicated, the administrators here enjoy what we think is even broader authority. They are expressly empowered to "determine all benefits and resolve all questions pertaining to the administration, interpretation and application of the Plan provisions."
39
That said, and because there is at the heart of this case nothing more than a dispute over the Vitro trustees' "interpretations" of unclear language found in the plan documents themselves, we are compelled under Bruch 's express mandate to apply the deferential "abuse of discretion" standard as we turn, finally, to the merits of the retirees' claims.
III
40
As the Bruch Court made plain, what follows from the applicability of the abuse of discretion standard is that the trustee's interpretation of relevant provisions of the plan documents--hence the challenged denial of benefits--"will not be disturbed if reasonable." --- U.S. at ----, 109 S.Ct. at 954 (emphasis supplied) (citing G. Bogert & G. Bogert, Law of Trusts and Trustees Sec. 559, at 169-71 (rev. 2d ed. 1980)). See also Van Boxel, 836 F.2d at 1053 ("usual approach" where trust beneficiaries challenge fiduciaries' discretionary construction of governing instrument is for court to "review the trustees' interpretation to decide whether it was reasonable") (citing Quinn v. Burlington Northern Inc. Pension Plan, 664 F.2d 675, 678 (8th Cir.1981)). Of course, inquiry into the "reasonableness" of fiduciaries' interpretations of disputed plan language was considered relevant even under the now abandoned arbitrary and capricious standard for the review of benefits denials in ERISA cases. See, e.g., Dennard, 681 F.2d at 314 ("factors to be considered in applying the arbitrary and capricious standard" include analysis of "reasonableness" of interpretation offered by plan administrators) (citing Bayles v. Central States, Southeast and Southwest Areas Pension Fund, 602 F.2d 97, 100 (5th Cir.1979)); Morgan v. Mullins, 643 F.2d 1320, 1323 (8th Cir.1981) (application of arbitrary and capricious standard requires "examin[ation of] the reasonableness of the Trustees' interpretation" of disputed language); Lowenstern v. International Ass'n of Machinists and Aerospace Workers, 479 F.2d 1211, 1213 (D.C.Cir.1973) (under arbitrary and capricious standard, court owes deference to plan administrators if parties have simply offered "reasonable ..., competing interpretations of the Plan"). It is in turn possible to draw from a number of pre-Bruch cases fairly straightforward rules to guide our analysis of whether the Vitro trustees abused their discretion by interpreting and applying the plan provisions here at issue as they did. We must give due consideration, for example, to whether the administrators' interpretation is consistent with the "goals of the plan," Holland, 772 F.2d at 1149; whether it might render some language in the plan documents "meaningless," Bayles, 602 F.2d at 100, or internally inconsistent, Reiherzer v. Shannon, 581 F.2d 1266, 1273-74 (7th Cir.1978); whether the challenged interpretation is at odds with the procedural and substantive requirements of ERISA itself, Blau v. Del Monte Corp., 748 F.2d 1348, 1353 (9th Cir.1984); whether the provisions at issue have been applied "consistently," Morgan, 643 F.2d at 1324 n. 4; and of course whether the fiduciaries' interpretation is "contrary to the clear language of the [p]lan." Dennard, 681 F.2d at 316.
41
The dispositive principle remains, however, that where plan fiduciaries have offered a "reasonable interpretation" of disputed provisions, "courts may not replace [it] with an interpretation of their own"--and therefore cannot disturb as an "abuse of discretion" the challenged benefits determination. Holland, 772 F.2d at 1149 (citing LeFebre, 747 F.2d at 204-05). And as will appear, it is precisely because we are constrained by this rule of "considered deference" that we cannot now interfere with the Vitro fiduciaries' ultimate decision to deny the retirees' claims for "enhanced benefits."
42
* We have given the standard of review issue such considerable attention for the simple reason that, were we to consider de novo review appropriate, we might well hold for the retirees. Indeed, the appellants have offered an interpretation of the Plan which could be considered not only "reasonable," but "more reasonable" than Vitro's.
43
As we understand it, their claim is this. Determination of the "value" of any retirement benefits to which a Vitro Plan participant may be entitled is governed exclusively by the provisions of Article 3. Section 3.03 fixes the amount of "normal retirement benefits"; while Sec. 3.04 expressly provides for "early retirement benefits" which, given the built-in "deferred annuity factor," are of greater "net present value" than the "normal," age-65 benefits to which an employee would be otherwise entitled if she waited to retire. It is of course in this sense, say the retirees, that Article 3 provides for the "subsidization" of early retirement benefits. Notwithstanding that, if such benefits are paid in the form of a standard, straight-life annuity, the sum an early retiree receives each month will be less than the periodic "normal" benefits payment to which he would have ultimately been entitled, the "net present value" of early retirement benefits paid pursuant to Sec. 3.04 still exceeds that of normal, age-65 benefits available under Sec. 3.03.
44
Article 4, the appellants argue, serves a more limited purpose. It speaks not to the benchmark "values" of plan benefits (which are fixed under Article 3), but instead only to the "forms of payment" in which, at the option of the retiree, such benefits may be disbursed. Under Sec. 4.01(a), the "normal form of payment" is a standard, straight-life annuity. Thus, if she fails to select an "optional form of payment," a retiree will receive her benefits--the "net present value" of which will have already been determined under Article 3--in a stream of monthly payments continuing until the time of her death. Alternatively, if the retiree chooses one of the Sec. 4.02 "options," he will receive his benefits in monthly payments under one of two "fixed term" annuities, or in a single lump sum payable at the time of retirement. Selection of any one of the three Sec. 4.02 options will yield benefit payments of the same "net present value" as the "normal form" monthly payments available under Sec. 4.01(a)--that is, the "value" already fixed under Article 3--however, since Secs. 4.02(a)-(c) explicitly require "actuarial equivalence" between payments under the standard, straight-life annuity and those available under the Article 4 "options."
45
What all of this purportedly suggests is that, if benefits are to be computed according to one of the Sec. 4.02 options, they must remain actuarially equivalent to the monthly, straight-life annuity benefits a retiree would otherwise be entitled to receive under Sec. 4.01(a). In turn, benefits paid under any of the Article 4 options must reflect the "values" fixed by Article 3--including of course any "subsidization" of early retirement benefits. As the retirees interpret the relevant provisions of the Vitro Plan, therefore, their "Single-Sum Option" payments should have been computed as follows. Under Sec. 3.04 of the Plan, they were entitled to "subsidized" early retirement benefits--that is, benefits "enhanced" in net present value by a "deferred annuity factor." As Vitro concedes, had the retirees chosen to draw those benefits in the form of a straight-life annuity under Sec. 4.01(a), any monthly payments they ultimately received would necessarily have reflected this subsidization of present value. In turn, and because Sec. 4.02(c) requires that "Single-Sum Option" payments be "actuarially equivalent" to the monthly straight-life annuity payments available under Sec. 4.01(a), early retirees electing to receive their benefits in but one payment should have received an amount equal to the net present value of their (subsidized) monthly, early retirement benefits. Of course, what they received instead was a lump sum payment "actuarially equivalent" to the lesser net present value of the normal, age-65 benefits which they would have received had they waited to retire. To that extent, the early retirees here were therefore "undercompensated."
46
As indicated, what lies at the heart of this complex line of reasoning is a relatively simple premise. It is that, under the express terms of the Vitro Plan, retirees selecting the Single-Sum Option are entitled to a payment equal to the net present value of whatever monthly benefits they would otherwise have received had they chosen the standard, straight-life annuity. Thus, just as age-65 retirees selecting the Single-Sum Option would receive the net present value of their annuitized "normal" retirement benefits, early retirees selecting the option would receive the present value of annuitized early retirement benefits. That being the threshold claim, the retirees argue further that their interpretation of the Plan finds support not only in the provisions discussed above, but in language appearing elsewhere in the document. They rely heavily, for example, on the prefatory language of Sec. 4.02, which provides that "a Participant who is entitled to a monthly benefit under Article 3 hereof may elect to have the Actuarial Equivalent value of his monthly retirement benefit paid under" one of the thereafter delineated optional forms of payment. The obvious suggestion is, appellants claim, that early retirees selecting the Single-Sum Option must receive the "actuarial equivalent" of the monthly benefits to which they would otherwise have been entitled--i.e., the "subsidized" early retirement benefits for which Sec. 3.04 expressly provides.
47
Finally, and putting all else aside, the retirees urge us to consider the contextual import of Secs. 4.01(a) and 4.02(a)-(c), read "in tandem." What they suggest is that there is manifestly applicable here something akin to the "transitive property": viz., "if A equals B, and B equals C, then A must equal C." The Plan expressly provides that payments under the "Ten-Year Certain and Life" and "Contingent Annuitant" options must be "actuarially equivalent" to the straight-life annuity benefits payable under Sec. 4.01(a). Of course, under Sec. 4.02(c), payments under the Single-Sum Option also must be equivalent to the net present value of benefits otherwise payable under Sec. 4.01(a). What necessarily follows is that, regardless of what Sec. 4.01(a) may provide, payments under each of the three Article 4 options must be actuarially equivalent to each other. Thus, to the extent that Vitro did not pay "equivalent" sums under each of the Sec. 4.02 options, it computed the early retirees' Single-Sum benefits in contravention of the express language of the Plan.
48
What we mean to illustrate with this lengthy recitation of the appellants' position is nothing more than that it finds considerable support in the "plain language" of the Plan itself. Indeed, we consider the suggested interpretation of the governing instrument perfectly consistent with a careful reading of its express terms--vexatiously imprecise or ambiguous though they may be. That simply will not suffice, however, in the face of what we consider the countervailing "reasonableness" of the fiduciaries' alternative interpretation of the Plan documents.
49
Vitro's position is fairly straightforward. The company concedes that, under the express terms of Sec. 4.02(c), all retirees--including those who retire before their sixty-fifth birthdays--must receive a "Single-Sum" payment actuarially equivalent to the monthly benefits available under Sec. 4.01(a). Section 4.01(a)'s "benchmark" for the computation of "actuarial equivalence," however, is the net present value of "benefits [payable] in equal monthly installments commencing on a Participant's Normal Benefit Commencement Date [i.e., at age 65]." Thus, benefits paid to either an "age-65" or "early" retiree under one of the Sec. 4.02 options need only be "actuarially equivalent" to the normal, age-65 monthly benefits to which the Plan participant would otherwise have been entitled.
50
We consider this interpretation of the Plan's controlling provisions at least a "reasonable" one. Of course, that the retirees' position might be more subjectively compelling is of no moment. Here, the trust's fiduciaries have resolved patent ambiguities in the plain language of the governing instrument in a way that obviously leaves some questions unanswered, but that is nevertheless rational on its own merits, finding support as it does in the express terms of the Plan. The administrators' interpretation may leave as mere "surplusage," for example, the prefatory language of Sec. 4.02. In a comparable way, however, the retirees' construction of the document would appear to render meaningless Sec. 4.01(a)'s reference to "monthly installments commencing on a Participant's Normal Benefit Commencement Date." Cf. Bayles, 602 F.2d at 100. Along similar lines, we might question the fiduciaries' concededly "discriminatory" computation of the benefits payable under the alternative Sec. 4.02 options. It obviously undermines the persuasiveness of their position that an early retiree's Single-Sum Option payment need only reflect the net present value of his or her "normal" monthly retirement benefits for the Plan administrators to have consistently computed the amounts payable to early retirees under the other Article 4 options on the basis of "actuarial equivalence" with monthly early retirement benefits. If we are to remain faithful to the "reasonableness" standard which applies in this case, however, we must accept the administrators' explanation that, while not required to do so by the terms of the Plan, they offered "enhanced" payments to early retirees not choosing the Single-Sum Option as an incentive for such employees to guarantee themselves a "lifetime income stream"--hence in furtherance of a "valid plan purpose." See, e.g., Cook v. Pension Plan for Salaried Employees of Cyclops Corp., 801 F.2d 865, 867 (6th Cir.1986) (court obliged to defer to fiduciaries' interpretation of disputed language where it appears "rationally related to a valid plan purpose"); Holland, 772 F.2d at 1149 (courts may not label "unreasonable" administrative interpretations that are consistent with legitimate purposes of the plan).
51
Perhaps most importantly, the defendant administrators adopted their now-challenged interpretation of Article 4 some 13 years ago. They have, moreover, administered the Plan accordingly ever since. We of course recognize that "being consistently wrong can hardly be sanctioned as right." Dennard, 681 F.2d at 318 (quoting Snyder v. Titus, 513 F.Supp. 926, 934 (E.D.Va.1981)). Where, as in this case, the reviewing court cannot say that the fiduciaries' construction of the trust documents is inconsistent with the plan's "plain language," however, consistency of interpretation counsels strongly in favor of judicial deference. See Bayles, 602 F.2d at 100.
52
The question of interpretation that lies at the heart of the parties' dispute in this case is an extremely close one. That alone, given that we must defer to any "reasonable" administrative construction of the Plan, constrains us to find here no "abuse of discretion"--presuming, of course, that the Vitro trustees operated under no substantial "conflict of interest." The question that remains, therefore, is whether the record before us bears out the retirees' allegations of administrative bias.
B
53
The Bruch Court made clear that, even under the deferential "abuse of discretion" standard of review, evidence of administrative bias remains relevant. "[I]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a 'factor[ ] in determining whether there is an abuse of discretion.' " Bruch, --- U.S. at ----, 109 S.Ct. at 956 (quoting Restatement (Second) of Trusts Sec. 187, Comment d (1959)). Here, however, there simply is no evidence in the record to suggest that the Vitro administrators' benefit determinations were tainted by any such conflict of interest. The Vitro retirement benefits trust is a fully funded, defined-benefit plan. Vitro of course makes contributions to the trust fund; but benefits decisions have an immediate impact only on the fund itself. In turn, Vitro incurs no direct, immediate expense as a result of benefits determinations favorable to Plan participants. In those circumstances, we obviously cannot attribute "presumptive bias" to the administrators--notwithstanding that they serve dual roles as company employees and pension plan fiduciaries. Lowry v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 525-26 & n. 7 (5th Cir.1989).
54
The retirees would have us find that the trustees were necessarily operating under a conflict of interest because the Plan itself obviously saved substantial sums as a result of the challenged benefits denials. "[One] can only speculate how much of the Plan's $30 million in excess assets, composed of both employer and employee contributions, is [present] as a direct result" of the fiduciaries' "failure to 'enhance' the lump sum [payments under Sec. 4.02(c) ] in a manner similar to all other benefits." Appellants' Br. at 25 n. 15. That plan administrators' decisions have had a favorable impact on the balance sheet of the trust itself, however, suggests no "conflict of interest." Fiduciaries are obligated to act not only in the best interests of beneficiaries, but with due regard for the preservation of trust assets. Adverse benefits determinations may well have saved considerable sums, but that may simply reflect that the trustees, bearing in mind the interests of all participants and beneficiaries, 29 U.S.C. Sec. 1104(a)(1), made a considered decision to preserve the corpus of the trust, rather than grant a doubtful claim. This the statute affirmatively contemplates; and standing alone it clearly suggests no "presumptive bias."
55
What the retirees effectively seek, therefore, is a broad holding that the fiduciaries of fully funded, defined-benefit ERISA trusts cannot be considered "impartial" if they also serve as employees of the plan's sponsor. Courts have repeatedly rejected such claims, however, and we decline to depart from the settled rule. See, e.g., Local Union 2134, UMW of America v. Powhatan Fuel, Inc., 828 F.2d 710, 713 (11th Cir.1987); McMahon v. McDowell, 794 F.2d 100, 110 (3d Cir.1986); Morse v. Stanley, 732 F.2d 1139, 1146 (2d Cir.1984). That said, and on the basis of our finding that the challenged interpretation of the Vitro Plan was indeed "reasonable," we hold that the defendant administrators' decision to deny the plaintiffs' claims for "enhanced" benefits did not constitute an abuse of discretion.
IV
56
Section 204(d) of ERISA, 29 U.S.C. Sec. 1054(d), specifies the conditions under which the fiduciaries of a defined benefit plan may "buy back," with a single, lump sum payment, the plan's fixed liability for a participant's future pension benefits. Under this "cash out" provision--and under an identical provision of the Internal Revenue Code--any such payments must be at least equal to the "present value of [the beneficiary's] nonforfeitable benefit[s]." Id. Sec. 1054(d)(2). See also I.R.C. Sec. 411(a)(7)(B)(ii). What the appellants now claim, of course, is that the Vitro Plan administrators were required under the express terms of the statute to compute payments under the Single-Sum Option not on the basis of the "net present value" of normal, age-65 monthly benefits, but instead such that any lump sum payments were "actuarially equivalent" to the greater net present value of the monthly early retirement benefits to which the retirees would otherwise have been entitled.
57
The assumption necessarily embodied in this claim is that the monthly early retirement benefits available to the plaintiffs under Sec. 3.04 of the Vitro Plan were "nonforfeitable"--at least within the meaning of ERISA Sec. 204(d) and I.R.C. Sec. 411(a)(7). We reject that assumption, however, on the basis both of an independent reading of the statute, and of our understanding of various Internal Revenue Service interpretive regulations.
58
Section 3(19) of ERISA defines a "nonforfeitable benefit" as "a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan." 29 U.S.C. Sec. 1002(19). As the appellees point out, however, the scope of this definitional provision is considerably more limited than a casual reading might suggest. "[T]he statutory definition of 'nonforfeitable' assures that an employee's claim to the protected benefit is legally enforceable, but it does not guarantee a particular amount or a method for calculating the benefit.... '[I]t is the claim to the benefit, rather than the benefit itself, that must be "unconditional" and "legally enforceable against the plan." ' " Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 512, 101 S.Ct. 1895, 1900, 68 L.Ed.2d 402 (1981) (quoting Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 371, 100 S.Ct. 1723, 1731, 64 L.Ed.2d 354 (1980)) (emphasis supplied).
59
What this intuitively suggests is that the retirees in this case enjoyed nothing more than a "nonforfeitable" right to receive early retirement benefits of some kind. Alessi would appear to make plain, in other words, that the plaintiffs cannot--even if their entitlement to monthly early retirement benefits be termed "nonforfeitable"--rely on ERISA's definitional provisions as the sole basis of their claim to an additional, independent right to have benefits payments computed in a given way. Of course, the retirees have not so limited their argument. To the contrary, their claim is that the "right" implicated here follows not only from the statutory definition of the term "nonforfeitable benefits," but also from the independent "cash out" rule embodied in ERISA Sec. 204(d).
60
Alessi and Nachman remain important, however, when read in light of the courts' repeated recognition that there are two distinct "sources" of benefit nonforfeitability. The first is the statute itself, which devotes considerable attention to the question of what accrued benefits must be treated as nonforfeitable. Under ERISA Sec. 203(a), for example, "[e]ach pension plan shall provide that an employee's right to his normal retirement benefit is nonforfeitable upon the attainment of normal retirement age." 29 U.S.C. Sec. 1053(a). Similarly, under Sec. 203(a)(1), "an employee's rights in his accrued benefit derived from his own contributions [must be] nonforfeitable." Id. Sec. 1053(a)(1).
61
An individual benefit plan might well provide for more extensive vesting than ERISA requires, however, by treating as "nonforfeitable" any number and variety of accrued benefits not expressly so denominated by the statute itself. Indeed, "ERISA leaves the question of what rights are vested by a plan largely to private parties to decide." Dameron v. Sinai Hospital of Baltimore, Inc., 815 F.2d 975, 978 (4th Cir.1987) (citing Alessi, 451 U.S. at 511, 101 S.Ct. at 1900). So it is that a benefit might be considered "nonforfeitable" for either one of two reasons: because the statute treats it as such, or because the plan documents themselves contemplate nonforfeitable "vesting."
62
This in turn guides our analysis of whether, for the purpose of applying the Sec. 204(d) cash out rules, the plaintiffs' asserted "right" to monthly early retirement benefits was indeed nonforfeitable. We note first that, at least as consistently interpreted by the courts, ERISA itself offers the retirees little help. On its face, the statute clearly "does not give an employee any nonforfeitable right to early retirement benefits." McBarron v. S & T Industries, Inc., 771 F.2d 94, 99 (6th Cir.1985). See also Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 577-78 (3d Cir.1985) (ERISA does not protect "rights" to unfunded early retirement benefits); Sutton v. Weirton Steel Division of Nat'l Steel Corp., 724 F.2d 406, 410 (4th Cir.1983) (same); Fine v. Semet, 699 F.2d 1091, 1093 (11th Cir.1983) ("The Act imposes no obligation on a plan to pay benefits before an employee reaches normal retirement age. Any right to earlier benefits and a particular method of payment must be found in the individual agreements.") (citing Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911, 914 (2d Cir.1982)) (emphasis supplied); Hernandez v. Southern Nevada Culinary & Bartenders Pension Trust, 662 F.2d 617, 619 (9th Cir.1981) (ERISA does not require that vested retirement benefits be payable before normal retirement age). Cf. H.R.Rep. No. 807, 93d Cong., 2d Sess. 57, reprinted in 1974 U.S.Code Cong. & Admin. News 4639, 4670, 4726 (nonforfeitability/vesting rules of ERISA not intended to apply to "such items as the value of the right to receive benefits commencing at an age before normal retirement age"). In search of persuasive support for their threshold claim of a "nonforfeitable" entitlement to subsidized early retirement benefits, therefore, the retirees must look to the structure of the Vitro Plan itself.
63
The argument is fairly straightforward, and not without some surface appeal. From an early retiree's perspective, subsidized benefits are "unconditionally" available, in the sense that all the qualifying participant need do is retire. Cf. 29 C.F.R. Sec. 2613.6(a) (1988) (Pension Benefit Guaranty Corporation regulation defining "nonforfeitable" benefit as one payable if the participant "has satisfied all of the conditions required of him or her under the provisions of the plan to establish entitlement to the benefit, except the submission of a formal application, retirement [or] completion of a required waiting period"). Such benefits are also "legally enforceable against the plan," 29 U.S.C. Sec. 1002(19), since an early retiree obviously could compel the administrators to pay if he or she indeed qualified for the benefits under the express terms of the trust instrument. Thus, any subsidized early retirement benefits available under the Vitro Plan must be "nonforfeitable." Id.
64
The reasoning breaks down, however, when one considers what it is that the plaintiffs here ultimately seek. Vitro's early retirees selecting the Single-Sum Option received payments reflecting the net present value of unsubsidized "normal retirement benefits." What they now claim they should have been paid was the net present value of subsidized, early retirement benefits. The difference, of course, is the subsidy itself--that is, the "enhancement" in the present value of monthly early retirement benefits attributable to Sec. 3.04's use of a "deferred annuity factor." What the appellants in the end characterize as "nonforfeitable," therefore, is their asserted "right" to benefit subsidization. By its very nature, however, the early retirement benefits subsidy available under the Vitro Plan is "forfeitable." If a Plan participant retires early and draws his benefits in the form of an annuity, she will enjoy the full benefit of the Sec. 3.04 subsidy. Subsidization will not be available, however, if the participant chooses to wait and retire at age 65.
65
The only point is that, under the express terms of the Plan, early retirement subsidies might become unavailable--that is, might be forfeited--depending on certain prospective "conditions." Were we to accept the appellants' argument that these subsidies constituted "nonforfeitable" benefits, we would then be compelled to hold in the inevitable next case that age-65 retirees who might earlier have qualified for early retirement also are entitled to receive the "net present value" of the Sec. 3.04 subsidy.5 This result the Plan obviously does not contemplate, and we decline to read into its provisions any such manifestly unintended rule.
66
Our holding that the Vitro Plan's early retirement subsidy is indeed "forfeitable," and that ERISA Sec. 204(d)'s cash out provision therefore does not prohibit the Plan's administrators from computing early retirement Single-Sum Option payments as they have, finds considerable support in the IRS interpretive regulations governing application of the forfeitability rules of both ERISA itself and parallel provisions of the Internal Revenue Code.6 Indeed, the IRS's most recent statement on the scope of I.R.C. Sec. 411 would appear to sanction explicitly the very same benefits computation practices that are at issue in the present case.
67
A plan may have more than one optional form of benefit under which benefits may be paid. There is no requirement that each form of benefit be the actuarial equivalent of all other benefit forms. Thus, a plan could have a QJSA [qualified joint and survivor annuity] benefit form that has a larger actuarial value than a benefit payable as a single life annuity and the amount of a single sum optional form could be determined based on the single life annuity. Similarly, a plan may provide for a retirement subsidy or an early retirement benefit that applies to the payment of a specific optional form. Whether these subsidies must be valued when calculating the amount of the single sum distribution depends on the plan provisions.... Thus, a plan may satisfy [the] requirements [of Sec. 411] even though it has a subsidized joint and survivor annuity and determines a single sum distribution based on an unsubsidized single life annuity.
68
53 Fed.Reg. 31,840 (1988) (emphasis supplied). See also, e.g., 53 Fed.Reg. 26,059 (1988) (to be codified as Treas.Reg. Sec. 1.411(d)(4), A-2(a)(2)(i)).7 On its merits, we consider this statement both consistent with and justified by the express language of the statute; and the retirees have offered no substantive reason why we should question the correctness of the administrative interpretation. That said, and on the basis of our independent reading of the applicable statutory provisions, we will affirm the district court's holding that the Vitro Plan does not run afoul of either ERISA Sec. 204(d) or I.R.C. Sec. 411(a)(7).
V
69
The retirees claim finally that Vitro is bound by certain "representations" made in "plan summaries" distributed to participating employees. These summaries assertedly suggest that, notwithstanding what the "official" plan documents may say, early retirees selecting the "Single-Sum Option" under Article 4 of the Vitro Plan will receive the "actuarial equivalent" of the monthly benefits they would otherwise have been paid in the form of a standard, straight-life annuity. Of course, as the appellants would now have it, the summaries not only bolster their interpretation of the Plan itself, but (more importantly) give rise to an independent cause of action under the "federal common law of contracts."
70
We need read no more than the introductory paragraphs of the summaries to reject this claim out of hand. Each summary expressly provides that, "[i]n the event of a conflict between this booklet and a provision in the Plan document, the Plan document provision will control." See, e.g., J.A. at 193. Courts have repeatedly upheld such disclaimers and rejected beneficiaries' attempts to rely on the independent terms of official or unofficial plan summaries. "[W]hen the summary ... expressly states that it is merely an outline of the pension plan and that the formal text of the plan governs in the event a question arises, the plaintiffs cannot rely on the general statements of the [summary] but must look to the plan itself." Kolentus v. Avco Corp., 798 F.2d 949, 958 (7th Cir.1986) (citing cases). We therefore perceive no error in the district court's holding that the retirees were not entitled to relief on the basis of any "material" representations that the Vitro plan summaries might have included.
VI
71
For all of the above reasons, the judgment of the district court is affirmed.
72
AFFIRMED.
1
Section 3.04(a) of the Plan provides that
if a Participant elects ... to have his benefit payments commence prior to his Normal Benefit Commencement Date [i.e., the first day of the first month following the Participant's sixty-fifth birthday], he shall be entitled to receive a reduced normal retirement benefit. The amount of such benefit shall be the amount [of the normal retirement benefit the Participant would have received at age 65] reduced by 6 2/3% for each full year up to five full years ( 1/180th for each month up to 60 months) and further reduced by 3 1/3% for each full year over five full years ( 1/360th for each month over 60 months) that the date the commencement of benefits payments he elects precedes his Normal Benefit Commencement Date, provided that such benefit commencement date shall not be earlier that the first day of the month following his 55th birthday.
Joint Appendix at 106.
2
The "arbitrary and capricious" formulation was widely used to describe the standard. See, e.g., Moore v. Reynolds Metals Co. Retirement Program, 740 F.2d 454, 457 (6th Cir.1984); Short v. Central States, Southeast and Southwest Areas Pension Fund, 729 F.2d 567, 571 (8th Cir.1984); Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 187 (3d Cir.1984); Berg v. Board of Trustees, Local 705 Int'l Bhd. of Teamsters Health and Welfare Fund, 725 F.2d 68, 70 (7th Cir.1984); Miles v. New York State Teamsters Conference Pension and Retirement Fund, 698 F.2d 593, 599 (2d Cir.1983); Dennard v. The Richards Group, 681 F.2d 306, 313 (5th Cir.1982); Lowenstern v. International Ass'n of Machinists and Aerospace Workers, 479 F.2d 1211, 1213 (D.C.Cir.1973)
3
By order dated December 30, 1988, we held this case in abeyance pending issuance of the Supreme Court's opinion in Bruch. The Court decided the case on February 21, 1989, and we shortly thereafter invited the parties to submit supplemental briefs on the impact that decision should have, if any, on our disposition of the present case. The parties therefore have had ample opportunity to present argument on the critical "standard of review" questions discussed herein
4
In several post-Bruch decisions, reviewing courts have construed plan documents as precluding de novo review--notwithstanding that the relevant provisions thereof apparently did not vest in the defendant administrators or fiduciaries "discretionary" authority per se. See, e.g., Guy v. Southeastern Iron Workers' Welfare Fund, 877 F.2d 37, 39 (11th Cir.1989) (de novo review under Bruch inappropriate where plan "confer[red] upon the trustees 'full and exclusive authority to determine all questions of coverage and eligibility' and 'full power to construe the provisions of [the] Trust' "); Lowry v. Bankers Life & Casualty Retirement Plan, 871 F.2d 522, 524-25 (5th Cir.1989) ("abuse of discretion" standard applied where governing instrument "grant[ed] permissive authority to the [administrators] to 'interpret and construe' the [plan] and the power 'to determine all questions of eligibility and status' "); Retirement and Sec. Program for Employees of Nat'l Rural Elec. Coop. Ass'n v. Oglethorpe Power Corp. Retirement Income Plan, 712 F.Supp. 223, 226 (D.D.C.1989) (de novo review inappropriate where plan documents vested in trustees "authority to determine all questions arising in connection with the [plan], including its interpretation"); Ferrara v. Allentown Physician Anesthesia Associates, Inc., 711 F.Supp. 206, 209 (E.D.Pa.1989) (under Bruch, trust language providing that " '[t]he Plan Administrator shall administer the Plan in accordance with its terms and shall have the power to determine all questions arising in connection with the administration, interpretation, and application of the Plan' " gave fiduciaries "sufficient discretionary authority in interpreting plan language" that deferential standard of review applied)
5
Vitro provides an example that illustrates the point well
[A]ssume that a plan provides a normal retirement benefit for a person retiring at age sixty-five of $1000 per month, and that it provides a subsidized early retirement benefit at age sixty of $900 per month ( ["subsidized" in the same sense that] straight actuarial reduction [of normal retirement benefits] would provide less than $900 per month at age sixty).
If the $900 early retirement benefit is considered [nonforfeitable], than [sic] a participant retiring at age sixty-five does not receive the actuarial equivalent of the [nonforfeitable] early retirement benefit because ... $1000 [per month] at age sixty-five is less than the actuarial equivalent of $900 [per month] at age sixty. Under appellants' interpretation, the participant retiring at age sixty-five would [therefore] suffer a forfeiture ..., because the normal retirement benefit of $1000 per month is less than the actuarial equivalent of the subsidized early retirement benefit.
Appellees' Br. at 45 n. 93 (emphasis in original).
6
As indicated, I.R.C. Sec. 411(a)(7), 26 U.S.C. Sec. 411(a)(7), is essentially identical to Sec. 204(d) of ERISA. The Internal Revenue Service is expressly empowered, moreover, to promulgate interpretive regulations covering the indicated provisions of both statutes. See 29 C.F.R. Sec. 2530.200a-2
7
This new regulation includes a discussion of the nonforfeitability rules similar to that quoted in the text
A plan may treat a participant as receiving his entire nonforfeitable accrued benefit under the plan if the participant receives his benefit in an optional form of benefit in an amount determined under the plan that is at least the actuarial equivalent of the employee's nonforfeitable accrued benefit payable at normal retirement age under the plan. This is true even though the participant could have elected to receive an optional form of benefit with a greater actuarial value than the value of the optional form received, such as an optional form including retirement-type subsidies, and without regard to whether such other, more valuable optional form could have commenced immediately or could have become available only upon the employee's future satisfaction of specified eligibility conditions.
53
Fed.Reg. 26,059 (1988) (to be codified as Treas.Reg. Sec. 1.411(d)-4, A-2(a)(2)(i))
As the retirees point out, these regulations are not technically applicable here--both because they are not retroactive, and because they interpret subsections of I.R.C. Sec. 411 not directly relevant to the case. We nevertheless consider the IRS's recent statements persuasive evidence of its general position on the proper application of benefit nonforfeitability rules. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3033168/ | FILED
UNITED STATES COURT OF APPEALS FEB 16 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 07-10446
Plaintiff - Appellee, D.C. No. CR-05-00040-RJJ
v.
ORDER
MARIO WEICKS,
Defendant - Appellant.
Before: HAWKINS and THOMAS, Circuit Judges, and KORMAN,* District
Judge.
Appellee’s Unopposed Petition for Rehearing is GRANTED in part for the
purpose of amending the Memorandum disposition.
The Memorandum Disposition, filed on January 22, 2010, is amended as
follows:
(1) The sentence on page 2 reading “He was sentenced to 420 months
imprisonment plus ten years of supervised release.” is amended to read
“He was sentenced to 360 months imprisonment plus ten years of
supervised release.”
*
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
(2) The sentence on page 2 reading “Absent application of the career
offender provision, Weicks’ Guidelines offense level would be 30, which
would result in a Guidelines sentencing range of 168 to 210 months.” is
amended to read “Absent application of the career offender provision,
Weicks’ Guidelines offense level would be 33, which would result in a
Guidelines sentencing range of 235 to 293 months.”
2 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2453833/ | 258 P.3d 537 (2011)
244 Or. App. 455
IRONS
v.
COURSEY.
No. A139633
Court of Appeals of Oregon.
July 13, 2011.
Affirmed Without Opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566430/ | 592 S.W.2d 796 (1980)
STATE of Missouri, Respondent,
v.
Dennis Lee MORGAN, Appellant.
No. 61504.
Supreme Court of Missouri, En Banc.
January 15, 1980.
Rehearing Denied February 11, 1980.
*798 Cynthia S. Holmes, Sp. Asst. Public Defender, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Steve Garrett, Asst. Atty. Gen., Jefferson City, for respondent.
MORGAN, Judge.
Appellant was convicted in one trial of stealing over $50 and second degree (felony) murder. The victim was killed when the car in which she was a passenger was struck by a car driven by appellant, who was seeking to elude police in a high-speed chase. The stealing had occurred earlier when appellant pulled into a gasoline station and engaged the attendant in conversation about the car while a companion, never seen by the attendant, entered the storage room of the station and stole some cigarettes, a check protector and some quarters.
The Court of Appeals, Eastern District, affirmed appellant's convictions,[1] after which this Court granted transfer and now decides the case as an original appeal.
Seven claims of error are lodged here. Appellant contends that the trial court erred in (1) denying his motion to dismiss on the ground that the two counts in the substitute information subjected him to double jeopardy; (2) denying his motions for acquittal because there was insufficient evidence of stealing; (3) limiting defense counsel's cross-examination of one of the police officers; (4) denying his motion to suppress evidence seized without a warrant at the scene of the wreck; (5) submitting a verdict-directing instruction that varied from the substitute information; (6) failing to give in full MAI-CR 2.70 as required, and (7) overruling defense objections to testimony by the station attendant as to the value of cigarettes stolen and failing to declare a mistrial after sustaining defense counsel's motion to strike testimony as to the value of the check protector, thus prejudicing appellant's right to a fair trial.
The state's evidence established the following: On December 4, 1975, a man identified by the station attendant as appellant drove into the Clark Service Station on South Grand in St. Louis and asked the attendant to check the oil. The attendant described the car as a black over white Cadillac, although his testimony varied on whether it was a two-door or four-door car and he did not know the model of the car. When the attendant told appellant that the oil was fine, appellant then asked the attendant to listen for a knocking noise in the engine. The attendant estimated that the encounter lasted between five and ten minutes. He testified that during that time appellant never got out of the car and that he saw no one else in the car or around the station. When the attendant returned to the station building after appellant had left, he saw that the door to the storage room was open, a bag of cigarettes lay open and some loose change was on the floor. The attendant then called the police. One of the policemen involved in the chase testified that he and his partner were out on routine patrol and began following the Cadillac appellant was driving after a call came over their radio on a holdup at the Clark station. The call included a description, although what the description was is unknown. Very soon after the call, the officer and his partner observed the Cadillac approaching with two persons inside. The driver was a black male, and as the police passed, one officer testified that the driver put his hand up to his face so as to obstruct their view of him, while the passenger in the Cadillac appeared to be doing something down on the seat. After following the Cadillac about half a block, another call came out over the police radio with a description of the automobile and its occupants. At that time the policemen accelerated and turned on the red roof lights and siren. The Cadillac also accelerated at this point, and the chase ending in the fatal crash ensued. After the crash and while the appellant and *799 his companion were subdued, the front seat of the car was searched for weapons. None was found. At some point after ambulances and other police cars had arrived, one of the officers had a radio conversation with the attendant or manager of the service station and told him he had found a carton of cigarettes in the car. The attendant or manager told him more cartons had been stolen. The officer returned to the Cadillac and opened its trunk by means of a remote switch in the glovebox. There he found thirteen cartons of cigarettes and a check protector. Fingerprints on one carton and the check protector were identified later as belonging to appellant. Apparently, appellant was in the ambulance at the time of the trunk's search.
The complexity of the first issue presented, double jeopardy, requires a detailed analysis of this case vis-a-vis Missouri and United States Supreme Court cases on this issue. Appellant relies primarily on Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) to support his claim of double jeopardy here. A superficial comparison of this case and Harris yields the conclusion that the two cases are distinguishable. In Harris a grocery store clerk was shot and killed by a companion of Harris in the course of a robbery. Harris was convicted of robbery under an Oklahoma statute. Thereafter Harris was brought to trial and convicted on a separate information charging felony-murder also under an Oklahoma statute.[2] His motion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause of the fifth amendment was denied. The United States Supreme Court reversed, saying, "When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater crime." In a footnote to this sentence the court said the state had conceded that in the murder case it was necessary for all the ingredients of the underlying felony of robbery with firearms to be proved. The distinction between Harris and the instant case is that in Harris there were two trials and in this case there was one. This cannot be the end of the analysis, however, for several reasons.
The fifth amendment to the United States Constitution states in pertinent part: ". . . nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . . . ." U.S. Const. amend. V.[3] The United States Supreme Court has construed this language to refer to the dangers of multiple prosecution and multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). That court also has addressed the question of what constitutes the same offense for constitutional purposes. Although application of the test developed in this regard has *800 been checkered, Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932) still is the leading case. The defendant there was charged with violating provisions of the Harrison Narcotic Act. Of the five counts charged, defendant was convicted in one trial of three counts. Two of those three, he claimed, constituted but one offense for which only a single penalty lawfully could be imposed. One of those counts charged a sale of morphine hydrochloride not in or from the original stamped package, and the other charged that sale as also having been made not in pursuance of a written order of the purchaser as required by the statute. In finding two offenses, the court stated the following:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not. . . .
Id. at 304, 52 S.Ct. at 182.
The test was reaffirmed in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), which held that it applied to successive prosecutions as well as to the imposition of cumulative punishment at a single trial. The court there noted that the Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense but said, "Because we conclude today that a lesser included and a greater offense are the same under Blockburger, we need not decide whether the repetition of proof required by the successive prosecutions against Brown would otherwise entitle him to . . . additional protection . . ."
Id. at 167, n. 6, 97 S.Ct. at 2226.
Thirteen days after the court handed down Brown v. Ohio, another decision was rendered on greater and lesser included offenses. That case was Harris v. Oklahoma, supra.
The issue addressed in Harris has been before this Court as well. The case urged as controlling here is State v. Chambers, 524 S.W.2d 826 (Mo.banc 1975), cert. denied, 423 U.S. 1058, 96 S. Ct. 794, 46 L. Ed. 2d 649 (1976), decided before Harris. There defendant and a companion, after a four-hour drinking bout, stole a pickup and towed it behind a car. The vehicles weaved through both lanes of the highway and collided with an oncoming automobile, killing four persons. Chambers was convicted in one trial of one count of stealing and four counts of murder, second degree. In his appeal to this Court, Chambers challenged the submission of both the underlying felony and the murders, claiming conviction for both crimes would violate the doctrine of double jeopardy. This Court said in that regard:
The question is now restated, whether, in the circumstances of this case, the stealing charge is an essential element of, or lesser included offense within, the felony-murders as to bring the case within the prohibition of State v. Toombs, [326 Mo. 981, 34 S.W.2d 61 (1930)].
The felony-murder rule permits the felonious intent necessary to a murder conviction to be shown by the perpetration of or attempt to perpetrate a felony. Proof of intent to commit the underlying felony raises a conclusive presumption that the defendant possessed the necessary felonious intent to support conviction for the resulting murder . . . . The rule does not make the underlying felony an element of the felony-murder; it merely provides an additional means of proving the requisite felonious intent for murder. (citations omitted)
Id. at 829.
The Court concluded that the two offenses "are not merged, but are separate and distinct in law and in fact."
The Court of Criminal Appeals of Oklahoma echoed these statements in Harris v. State, 555 P.2d 76 (1976), rev'd per curiam sub nom. Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977). The Oklahoma court had said:
In the case at bar the two offenses complained of, felony murder, and robbery *801 with firearms, are separate and distinct . . .
In a felony murder case, the proof of the underlying felony is needed to prove the intent necessary for a felony murder conviction . . .
555 P.2d at 80, 81.
This language did not go unnoticed by the United States Supreme Court in its subsequent opinion and, in fact, was quoted specifically in that per curiam. 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054.
It is clear that after Harris, the underlying felony is a lesser included offense of felony murder. Respondent here contends that the Supreme Court in Harris meant only to address those states such as Oklahoma, whose felony murder laws require proof of the underlying felony as an element of felony murder. No support can be found for this claim.
The law under which Harris was convicted read:
Homicide is murder in the following cases . . .
3. When perpetrated without any design to effect death by a person engaged in the commission of any felony. Okla. Stat. tit. 21, § 701 (1971), repealed Laws 1973, c. 167 § 7, emergency eff. 5-17-73.
Missouri's statute at the time of appellant's arrest read:
559.007. First degree murder defined. The unlawful killing of a human being when committed without a premeditated intent to cause the death of a particular individual but when committed in the perpetration of or in the attempt to perpetrate arson, rape, robbery, burglary, or kidnapping is murder in the first degree.
559.020. Murder in the second degree. All other kinds of murder at common law, not herein declared to be manslaughter or justifiable or excusable homicide, shall be deemed murder in the second degree.
RSMo 1969 (Supp.1975).
Appellant was charged under the latter statute, under the theory resurrected in State v. Jasper, 486 S.W.2d 268, 271 (Mo. banc 1972):
It is thus clear that Missouri recognizes the common law felony-murder rule under which a homicide committed in connection with a felony other than those enumerated in § 559.010 [Repealed L.1975 H.B. 150 § A, § 559.007 above substituted in its place] is murder in the second degree, absent other evidence from which the jury could find the elements necessary to a finding of murder in the first degree.
A reading of the Oklahoma statute may lead one to the conclusion that it makes the underlying felony an element of felony murder. The Oklahoma Court of Criminal Appeals, however, did not view it in that manner, and the United States Supreme Court did not single out the Oklahoma statute for containing the underlying felony as an element. Rather it spoke of the use of the underlying felony to prove the intent necessary. If the Supreme Court meant to create a distinction between Oklahoma and other states on the basis of the wording of its murder statutes, it gave no hint of that in Harris.
This being the case, Chambers is infirm at least to the extent that it holds that a defendant may be convicted and punished for felony murder and the underlying offense, whether in one trial or two.
The second aspect of this double jeopardy question is whether Harris is distinguishable from this case because it involved two separate prosecutions rather than one in which the two charges were joined.
When North Carolina v. Pearce, supra, declared that the fifth amendment guarantee protected against three separate constitutional protections, including multiple punishment for the same offense, it was merely restating the law as it had existed since at least 1874. The court in Pearce quoted from Ex Parte Lange, 18 Wall. 163, 168, 21 L. Ed. 872:
*802 If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offence. And . . . there has never been any doubt of [this rule's] entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offence.
Although some advocates might seek to limit Lange and Pearce to their facts, other cases reveal that such a limitation would be unwarranted. Those double jeopardy cases which do not involve multiple prosecution or collateral estoppel must necessarily be addressing the problem of multiple punishment. Blockburger is an example of such a case. The two drug statutes there were determined not to be the "same," I. e., that two offenses were committed even though there was only one sale. Although the court gave no indication there as to what the result would have been had the statutes been the "same" it is at the very least reasonable to assume that had they been found to be the same, that finding would have had some significance. After all, if it wasn't potentially a violation of double jeopardy to punish twice in one proceeding for the "same" offense, what could have been the purpose of determining whether the offenses were indeed the same? It is argued that the Blockburger test is to be used only to determine if Congress or a legislature intended that there be separate crimes. The most obvious problem with this contention is its implication that a law-making body can determine the scope of the double jeopardy clause. But beyond that flaw, there exist subsequent cases which lend no support to the theory that Blockburger is merely a rule of statutory construction.
For example, in Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977), the court said:
. . . the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments; but once the legislature has acted, the courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial.
In Jeffers v. United States, 432 U.S. 137, 155, 97 S. Ct. 2207, 2218, 53 L. Ed. 2d 168 (1977), the court said:
The critical inquiry is whether Congress intended to punish each statutory violation separately. [citations omitted] . . . If some possibility exists that the two statutory offenses are the "same offense" for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties. . . .
As petitioner concedes . . . the first issue to be considered is whether Congress intended to allow cumulative punishment for violations of [these enumerated offenses.] We have concluded that it did not, and this again makes it unnecessary to reach the lesser-included-offense issue.
(Emphasis added.)
Less than a year after Jeffers, the court in Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978), said:
Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing, as here, raise the prospect of double jeopardy and the possible need to evaluate the statutes in light of the Blockburger test. That test, the Government argues, is satisfied in these cases. We need not reach the issue. Before an examination is made to determine whether cumulative punishments for the two offenses are constitutionally permissible, it is necessary, following our practice of avoiding constitutional decisions where possible, to determine whether Congress intended to subject the defendant to multiple *803 penalties for the single criminal transaction in which he engaged.
Id. at 11, 12, 98 S.Ct. at 912.
These cases clearly imply that the determination of legislative intent is an exercise independent of the Blockburger test, and therefore that test is not a rule of statutory construction.
These cases also suggest an alternate path this Court could follow in resolving the double jeopardy issue in this case, that is, to determine the legislative intent. Because the theory of murder in this case is based in the common law, however, and not in statutory language, such an excursion would arrive at a dead end.
Missouri's decisions on double jeopardy follow those United States cases in which multiple punishment, rather than successive prosecutions, was the issue. Two cases handed down the same day by this Court, one in division and one en banc, are in point.
In State v. Neal, 514 S.W.2d 544 (Mo. banc 1974), defendant was convicted in one proceeding of first-degree robbery by means of a dangerous and deadly weapon and assault with intent to kill with malice aforethought. The robbery alleged had occurred at a hardware store, and there were two counts of assault on two persons. After affirming the robbery conviction, the Court said at 548:
First, the robbery in this case of Cordes Hardware by taking money from the custody of Johnnie Walton, Count I, was the result of the assault committed upon Johnnie Walton and it was the identical assault also charged in Count III. To thus split the single crime of robbery and prosecute it in Count I and a second time in Count III as an assault violated the rule against double jeopardy. State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970).
In State v. Parsons, 513 S.W.2d 430 (Mo. 1974), two counts of murder were lodged against defendant, first-degree murder by inflicting a mortal wound with an explosive device and causing an explosive device to be exploded whereby the same victim was put in danger of death. The Court found there was only one crime, despite the existence of two distinct statutes, and that conviction on both in the same proceeding violated the double jeopardy protection against multiple punishment for the same offense.
It is therefore clear that under Blockburger as applied in Harris, the felony relied on to prove intent in a felony-murder case is a lesser-included offense of the murder. Here stealing was a lesser-included offense of second-degree murder. That there should be more protection for a defendant who is doubly prosecuted than one who is doubly punished for the same offense is not supported by the cases from the United States or Missouri Supreme Court. A majority of other jurisdictions confronting this double jeopardy issue in the one-proceeding circumstance have ruled as this Court does today on the question. See, State v. Pinder, 375 So. 2d 836, 838 (Fla. 1979); Tyson v. State, Ind., 386 N.E.2d 1185, 1193 (1979); Mitchell v. State, Ind., 382 N.E.2d 932, 934 (1978); State v. Frye, 283 Md. 709, 393 A.2d 1372, 1375 (1978); State v. Innis, R.I., 391 A.2d 1158, 1165 (1978), cert. granted on another issue, 440 U.S. 934, 99 S. Ct. 1277, 59 L. Ed. 2d 492 (1979); State v. Briggs, Tenn., 573 S.W.2d 157, 159 (1978). See also, United States v. Larkin, 605 F.2d 1360 (5th Cir. 1979) and Harrison v. Commonwealth, 257 S.E.2d 777 (Va.1979).[4]
One last question to be considered in this regard is the effect of concurrent sentences *804 imposed here. The state urges this Court to exercise its discretion and refuse to review any claim concerning double jeopardy by reason of the concurrent sentence doctrine.
In Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), the court explained the role of the doctrine at 789-90, 89 S.Ct. at:
One can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent sentence doctrine. [citation omitted] But whatever the underlying justifications for the doctrine, it seems clear to us that it cannot be taken to state a jurisdictional rule. [citations omitted] Moreover, whatever may have been the approach in the past, our recent decisions on the question of mootness make it perfectly clear that the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy.
The court concluded by noting the adverse collateral legal consequences of a conviction, saying:
The concurrent sentence rule may have some continuing validity as a rule of judicial convenience. This is not a subject we must canvass today, however. It is sufficient for present purposes to hold that there is no jurisdictional bar to consideration of challenges to multiple convictions even though concurrent sentences were imposed.
Id. at 791, 89 S.Ct. at 2061.
The two collateral consequences mentioned in Benton pertain in this case as well, i. e., use of all prior felony convictions for the purpose of enhancing sentence under habitual criminal statutes[5] and for the purpose of impeaching his character if put in issue in a future trial. Nothing presented by the state and nothing discovered independently about this case compels this Court to invoke its discretion in this matter.
Appellant also contests the sufficiency of the evidence to sustain submission of the stealing charge to the jury. Before reaching this question, the admissibility of evidence seized from the trunk of the car after the crash must be determined.
Testimony at trial indicated that appellant and his companion were placed under arrest as soon as they were removed from their car after the crash. The evidence contested at trial was not seized until after the arrests. Although the validity of the arrests is not attacked directly in this case, their validity is of no moment here because of the rule from State v. Edmonds, 462 S.W.2d 782, 784 (Mo.1971), restating Chambers v. Maroney, 399 U.S. 42, 51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970):
. . . The right to search [an automobile] and [the] validity of the seizure are not dependent upon the right to arrest but depend upon the existence of reasonable cause on the part of the seizing officer to believe that the contents of the automobile offend against the law.
State v. Hornbeck, 492 S.W.2d 802, 807 (Mo. 1973).
The Court in Hornbeck stated the definition of probable cause to be "more than mere suspicion . . . [existing] where the facts and circumstances within the knowledge of the seizing officers, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed or that the contents of the automobile offend against the law."
Id. at 805.
At the time of the search the officers knew that upon their initial sighting of *805 appellant and his companion, the two tried to cover their faces, that a robbery (later determined to be stealing) had been committed for which the police had issued a description over the police radio seeking two Negro males driving a white over black 1968 Cadillac, that the car that the police had been following before turning on the siren and lights matched the description issued, that the car matching the description accelerated rather than pulling over when the officers activated the siren and red lights, that during a several-block chase the Cadillac failed to stop at any stop sign or light and traveled at excessive speeds, that after the crash but before opening the trunk one of the officers noticed a carton of Kool cigarettes broken open in the seat and loose change lying on the floor and that prior to looking in the trunk one of the officers was in contact by radio with the station manager who advised that there should be more than one carton of cigarettes in the car.
These facts and circumstances meet the test set out in Hornbeck as to probable cause. And as stated in that case, given probable cause to search the automobile, the officers were permitted to carry out an immediate search without presenting the probable cause issue to a magistrate. State v. Hornbeck, 492 S.W.2d at 807, Chambers v. Maroney, 399 U.S. at 51, 90 S. Ct. 1975. Appellant's point is without merit.
As to the sufficiency of the evidence, appellant in his motion for new trial claimed that the state had failed to prove that he had caused the death of the car wreck victim, but on appeal says the state failed to prove that he was guilty of stealing items of a value over $50. Although the latter contention was not preserved properly for appeal, it will be reviewed under the plain error doctrine, Rule 27.20(c).
In determining the sufficiency of the evidence in a criminal case after the verdict of guilty, the Court accepts as true all evidence in the record tending to prove the defendant's guilt, whether such evidence is circumstantial in nature, together with favorable inferences that can be reasonably drawn therefrom and disregards all contrary evidence and inferences. State v. Johnson, 457 S.W.2d 795 (Mo.1970), State v. Chase, 444 S.W.2d 398 (Mo. banc 1969), citing also from State v. Bayless, 362 Mo. 109, 240 S.W.2d 114 (Mo.1951).
When the state's case rests upon circumstantial evidence, "the facts and circumstances must be consistent with each other and with the hypothesis of defendant's guilt, and they must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence." State v. Franco, 544 S.W.2d 533, 534 (Mo. banc 1976), citing from State v. Ramsey, 368 S.W.2d 413, 416 (Mo.1963).
The application of this circumstantial evidence rule is realistically tempered, however, such that the circumstances need not be absolutely conclusive of guilt or demonstrate impossibility of innocence. "[T]he mere existence of other possible hypothesis is not enough to remove the case from the jury." State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970).
With these rules to guide the Court, it is clear that the evidence presented here was sufficient to support submission of the issue of appellant's guilt to the jury. As the court of appeals opinion written by Snyder, J., noted, appellant's presence at the station at the time of the theft, his actions at the station, his proximity to the scene when initially spotted by the police, his behavior when spotted, his subsequent flight, his unexplained possession of the exact property stolen only moments before his arrest and his fingerprints on the stolen goods created a chain of circumstances pointing to his guilt. Moreover, the testimony of the station owner established that the value of the cigarettes exceeded $50, without considering the value of the check protector or the loose change stolen. The trial court did not err in denying appellant's motions for acquittal.
*806 Appellant also complains that his cross-examination of one of the police officer's present at the scene of the wreck was limited unjustifiably. Defense counsel inquired of the officer if he was aware that the victim's mother was contemplating a lawsuit against him. The prosecutor objected to the question and after a conference at the bench defense counsel indicated that he sought to get before the jury whether the officer had "a stake in the outcome" of the suit. The trial court instructed defense counsel that he would be permitted to ask "whether or not there has been any claim made against him personally, or any claims made against him personally arising out of that accident that took place on December 4, 1975. If he said, `yes,' you may inquire as to what the claim is, and you cannot argue with him about it at all." The prosecutor's objection was sustained, and then in open court again, defense counsel asked the following:
Q Mr. Healey, has any claim been made against you personally arising out of this accident?
A Elaborate what you mean by claim, sir?
Q Certainly. Has anybody contacted you pertaining to this accident?
A Anybody?
Q Yeah. Virginia Stuckmeyer?
A She has not contacted me personally.
Q Has her attorney?
A No, sir.
Q Are you aware that a civil action is
At this point the prosecutor objected to this question as going outside the court's ruling. The trial court permitted defense counsel to ask the question which it had authorized earlier. Defense counsel asked, "Are you aware that a claim is pending against you arising out of this accident?" The officer answered in the negative, and defense counsel asked no more questions of him.
Appellant's precise point in this regard is that the trial court erred "in preventing defense counsel from cross-examining Officer Healey as to his knowledge that the mother of the deceased, alleged victim, was considering filing a lawsuit against the officer arising out of the accident, as such questioning would have shown interest and bias of the witness, and therefore constituted proper cross-examination."
While permissible to attempt to show a witness's interest or bias and the extent thereof on cross-examination as bearing on the credit which should be accorded his testimony, the scope of the inquiry is within the discretion of the trial court. State v. Pigques, 310 S.W.2d 942, 947 (Mo.1958). In this instance defense counsel was permitted to ask the officer whether he had knowledge of a civil suit pending against him stemming from the death of the victim. The officer said he had no such knowledge, and questioning was ended by defense counsel. No abuse of discretion has been shown in this regard. Moreover, the limits placed on cross-examination by the trial court need not have frustrated defense counsel's effort to show bias, for once the witness denied knowledge of a suit, defense counsel was free to produce other witnesses or evidence showing the existence or pendency of such a suit. See State v. Pigques, supra.
Appellant next contends that the trial court erred in submitting a verdict director that was a fatal variance from the substitute information filed in lieu of indictment. The pertinent part of the information said that appellant "being then and there in the perpetration of the offense of Stealing Fifty Dollars or Over, did then and there propel his automobile, at, upon and against the body of Connie Duganich, thereby feloniously inflicting a mortal wound. . . ." The challenged instruction included a paragraph alleging "that the defendant either acted alone or knowingly with common purpose together with another in the conduct referred to in the above paragraphs . . . ."
*807 This claim is governed by the rule announced in State v. Scullin, 185 Mo. 709, 84 S.W. 862 (1905). There a similar claim was lodged, to which the Court responded that
"the fact that the instruction tells the jury that the defendant, acting alone or with others then and there present and acting with him, did not make it any broader than the information [which charged the defendant alone with the commission of the crime] . . . It is approved practice in criminal prosecutions, where two or more persons are engaged in the commission of crime, to prosecute them jointly or severally . . . and where only one is prosecuted, it may be shown that others were present, participating in the criminal act, although not included in the indictment or information, and it is not thought that an instruction upon the same lines as in the case at bar is subject to the objection that it is broader than the information."
Id. 84 S.W. at 863.
Accord: State v. Braddock, 558 S.W.2d 776, 779 (Mo.App.1977); State v. Martin, 525 S.W.2d 804, 811 (Mo.App.1975). Appellant's claim in this regard is rejected.
A modification of MAI-CR 2.70 also comes under attack by appellant. The second paragraph of MAI-CR 2.70, which was deleted in this case, reads in pertinent part: "You may find the defendant guilty or not guilty on any or all of the counts submitted against him." The trial judge explained the modification in this way:
The reason the court is eliminating that is under the law of this case, the jury could not logically follow that instruction because the jury cannot find him not guilty on Count I [stealing $50 or over] and guilty of Murder Second Degree on Count II. The court is not instructing the jury with respect to that because in the opinion of the court they can find him guilty on Count II for manslaughter, even though they don't find him guilty of stealing under Count I, which seems in the court's opinion to create some kind of hiatus with respect to Instruction 2.70, which is mandatory under MAI. The court is directing the circuit attorney in his argument to explain to the jury that if they find the defendant guilty of Murder Second Degree on Count II, they must first find him guilty of Stealing under Count I.
Rule 20.02(e) provides that failure to give a required instruction, as is MAI-CR 2.70, "shall constitute error, its prejudicial effect to be judicially determined." This case is not one in which the court failed to give a mandatory instruction; instead, it failed to give the entire instruction as set out in MAI-CR. Assuming, however, that such an omission is error, it is for this Court to determine its prejudicial effect, as well.
State v. Arrington, 559 S.W.2d 749 (Mo. banc 1978), is the most recent case from this Court on the prejudicial effect of omitting 2.70 in its entirety. In reviewing under the plain error rule [27.20(c)], the Court found no prejudice, saying:
Upon reading all of the instructions, taken together, it is clear that the jury knew that it could find appellant guilty or not guilty on either or both counts. [citation]. Separate verdict directing instructions were given on robbery in the first degree, murder in the first and second degrees and manslaughter. Each carried a tail directing acquittal if all elements were not found beyond a reasonable doubt. Further, the jury was given six verdict forms, two of which entitled the jury to find the appellant not guilty of the robbery or the homicide, plus three more verdict directing forms which allowed the jury to find appellant guilty of an offense without assessing punishment. Thereby, the jury was given every opportunity to find appellant guilty or not guilty of each offense.
Id. at 750.
The Court went on to cite State v. Boyington, 544 S.W.2d 300 (Mo.App.1976) to the effect that the purpose of MAI-CR 2.70, as stated in the notes on use as being that *808 separate consideration be given to each offense, had been accomplished "beyond possibility of doubt and there could be no prejudice to defendant." Id. at 304.
The considerations noted in Arrington had been set out earlier in State v. Minor, 556 S.W.2d 35 (Mo. banc 1977), another case in which no prejudice was found by the omission of MAI-CR 2.70. In the present case, separate verdict directors for robbery, murder second degree and manslaughter were given, each with a tail directing acquittal if the jury did not believe every submitted element. Five verdict forms referencing the counts and crimes were given. MAI-CR 3.02 also was given, informing the jury that they could not find appellant guilty of murder in the second degree unless they also found him guilty of stealing. The instructions, viewed in their entirety, clearly mandated separate consideration of every charge. Moreover, the inclusion of the manslaughter instruction precluded the possibility that the jury would convict on the stealing charge only because they believed appellant was in some way responsible for the death of the victim but not guilty of the stealing. The omission of paragraph two of MAI-CR 2.70 in this case did not prejudice appellant.
In his last point, appellant claims error in the overruling of objections to testimony on direct examination by the service station attendant as to the value of the cigarettes. He admitted on cross-examination that he did not order or pay for the items. The value at issue was established at greater than $50 by the testimony of the owner of the station that he had paid $4.20 a carton. Therefore, any possible error in admitting the attendant's testimony was harmless.
Within this last point, appellant also contends that the trial court erred in refusing to declare a mistrial after sustaining his motion to strike the testimony of the station owner on the value of the check protector stolen. The owner admitted after giving a variety of estimates that he did not know the value. The trial court granted appellant's motion to strike the testimony and his request that the jury be instructed to disregard the testimony.
Mistrial, regarded as a drastic remedy, is to be granted only with greatest caution and in extraordinary circumstances. The propriety of using the remedy is lodged securely in the discretion of the trial court. No abuse of discretion was shown here, especially in light of the fact the other evidence established the requisite value for the felony stealing charge.
Inasmuch as the convictions and sentences for the greater offense of felony murder and the lesser included offense of the felony, stealing, violate the fifth amendment proscription against double jeopardy, the judgments are vacated and the cause is remanded to the trial court with directions to enter a new judgment and sentence consistent with the views expressed herein.[6]
BARDGETT, C. J., and SEILER, WELLIVER and HIGGINS, JJ., concur.
DONNELLY, J., dissents in separate dissenting opinion filed.
RENDLEN, J., dissents.
DONNELLY, Judge, dissenting.
The principal opinion treats the Per Curiam in Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977) as decisive here.
In my view, we are not bound by general declarations of law made by the United States Supreme Court. See State v. Clark, 592 S.W.2d 709 (Mo. banc 1979) (Donnelly, J., dissenting) (1979).
Of course, in a given factual setting, when the United States Supreme Court *809 takes jurisdiction over the subject matter and the parties, its adjudication is the law of the case and its judgment is binding on this Court. But this is not the situation here.
I respectfully dissent.
NOTES
[1] Although this Court reaches a different conclusion as to the double jeopardy issue presented here and in the court of appeals, it concurs in the results reached by Snyder, J. as to the other issues involved and adopts his reasoning without use of quotation marks in several parts of this opinion.
[2] Although the opinion in Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), relates that Harris first was convicted of felony murder, then tried and convicted of robbery, the underlying cases in the Oklahoma state courts indicate that the opposite was true. See, Harris v. State, 558 P.2d 1199 (Okl.Cr. 1977) and Harris v. Oklahoma, 439 U.S. 970, 99 S. Ct. 465, 58 L. Ed. 2d 431 (dissenting opinion by Brennan, J.) (1978).
In either event, Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), had made clear that the order of prosecution was of no significance in a double jeopardy situation.
[3] Appellant here also claims entitlement to relief under the double jeopardy provision in the Missouri Constitution. Mo.Const. art. I, § 19 declares that the state is prohibited from placing a person "again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury." The circumstances of this case obviously do not fall within this proscription. It has been said, however, that "there is no readily discernible difference between the Fifth Amendment guarantee against double jeopardy, enforceable against the states through the Fourteenth Amendment, and the common law guarantee [against a defendant being placed twice in jeopardy] as applied in this State. State v. Richardson, 460 S.W.2d 537, 538 (Mo. banc 1970)." State v. Treadway, 558 S.W.2d 646, 651 (Mo.banc 1977), cert. denied, 439 U.S. 838, 99 S. Ct. 124, 58 L. Ed. 2d 135 (1978).
[4] In this Virginia case, defendant was tried in a single bench proceeding on separate indictments for capital murder in the commission of armed robbery and for robbery. The court there found no double jeopardy violation, reasoning that, unlike in Harris proof of the intent necessary for the defendant's murder conviction was supplied by the independent showing that the killing was willful, deliberate and premeditated. Thus it was not a case where "conviction of a greater crime, murder, cannot be had without conviction of the lesser crime [the underlying felony]." Harris v. Oklahoma, 433 U.S. at 682, 97 S.Ct. at 2913.
[5] In the states of Texas and West Virginia, a life sentence is to be imposed upon conviction for third felony. See, Tex. Penal Code Ann. tit. 3, § 12.42(d) (Vernon) and W.Va.Code § 61-11-18 (1977).
[6] The Committee on Pattern Criminal Charges and Instructions is requested hereby to review the applicable instructions in light of the views set forth in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919705/ | 762 N.W.2d 690 (2008)
2009 WI App 2
STATE of Wisconsin, Plaintiff-Respondent[]
v.
Dana EAGLEFEATHERS, Defendant-Appellant.
No. 2007AP845-CR.
Court of Appeals of Wisconsin.
Submitted on Briefs December 7, 2007.
Opinion Filed December 11, 2008.
*692 On behalf of the defendant-appellant, the cause was submitted on the briefs of Patricia A. FitzGerald, Mt. Horeb.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Michael C. Sanders, assistant attorney general, and J.B. Van Hollen, attorney general.
Before HIGGINBOTHAM, P.J., VERGERONT and LUNDSTEN, JJ.
¶ 1 HIGGINBOTHAM, P.J.
Dana Eaglefeathers appeals a judgment of conviction following a plea of guilty to two counts of felony bail jumping for his failure to appear at preliminary hearings in two criminal cases. Eaglefeathers argues that the conviction on two bail-jumping counts was multiplicitous because the preliminary hearings at which he failed to appear were scheduled for the same time, and he had signed only one bond for the two underlying cases. Because we conclude that the State would have needed to prove different facts for each violation of the bail-jumping statute, and that the legislature did not intend to preclude multiple punishments in these circumstances, we conclude that the counts are not multiplicitous and affirm the judgment of conviction.
Background
¶ 2 Dana Eaglefeathers was charged with crimes in two separate cases, aggravated battery and intimidation of a victim in case number 2003CF80, and second-degree reckless endangerment in case number 2003CF81. He was released on a single $2,000 bond that covered both cases. As a condition of the bond, Eaglefeathers was required to "appear on all court dates." The court set preliminary hearings in the two cases, scheduling both hearings for September 4, 2003, at 10:30 a.m. The court sent Eaglefeathers two preliminary hearing notifications, one for each case. Eaglefeathers failed to appear at the preliminary hearings, and was charged with two counts of bail jumping pursuant to WIS. STAT. § 946.49 (2005-2006).[1] Eaglefeathers entered guilty pleas to both bail-jumping counts. The pleas were accepted and he was sentenced to three years' imprisonment for each count. Eaglefeathers later filed a motion seeking to withdraw his guilty pleas, asserting that the conviction on multiple charges violated his double jeopardy rights and that his counsel rendered ineffective assistance for failing to raise the double jeopardy issue in the trial court.
¶ 3 The circuit court denied the motion, rejecting Eaglefeathers' claims of double jeopardy and ineffective assistance because the offenses, while committed at the same time, were different in fact. Eaglefeathers appeals.
Discussion
¶ 4 This case requires us to determine whether the conviction entered *693 against Eaglefeathers for two counts of bail jumping violated Eaglefeathers' double jeopardy rights under the federal and state constitutions. Whether the constitutional right to be free from double jeopardy has been violated is a question of law that we review de novo. State v. Anderson, 219 Wis. 2d 739, 746, 580 N.W.2d 329 (1998).
¶ 5 The double jeopardy provisions of the United States and Wisconsin Constitutions protect persons from being put in jeopardy of punishment more than once for the same offense. U.S. CONST. amend. V; WIS. CONST. art. I, § 8.[2] This protection prohibits the government from pursuing: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Cox, 2007 WI App 38, ¶ 7, 300 Wis. 2d 236, 730 N.W.2d 452 (citation omitted). The present case involves the protection against multiple punishments for the same offense.
¶ 6 The supreme court explained in State v. Derango, 2000 WI 89, ¶ 28, 236 Wis. 2d 721, 613 N.W.2d 833, that whether a punishment is multiplicitous depends on whether the legislature authorized cumulative punishments for the same offense:
Multiplicity (and therefore double jeopardy) is implicated only to the extent of preventing a court from imposing a greater penalty than the legislature intended. In other words, because double jeopardy protection prohibits double punishment for the "same offense," the focus of the inquiry is whether the "same offense" is actually being punished twice, or whether the legislature indeed intended to establish separate offenses subjecting an offender to separate, although cumulative, punishments for the same act.
Id., ¶ 28 (citations omitted).
¶ 7 In Wisconsin, multiplicity claims are examined under a two-part test. Anderson, 219 Wis. 2d 739, ¶ 11, 580 N.W.2d 329. The first part asks whether the offenses are identical in law and in fact. Id. The second part examines whether the legislature intended to authorize multiple punishments. Id. If it is determined under the first part of the test that the charged offenses are identical in both law and fact, a presumption arises under the second part of the test that the legislature did not intend to authorize cumulative punishments. State v. Davison, 2003 WI 89, ¶ 43, 263 Wis. 2d 145, 666 N.W.2d 1. Conversely, if the charged offenses are not identical in law and in fact, a presumption arises that the legislature did not intend to preclude cumulative punishments. Id., 263 Wis. 2d 145, ¶ 44, 666 N.W.2d 1. We evaluate Eaglefeathers' multiplicity claim applying the two-part test, beginning with whether the offenses are identical in law and in fact.
I. Whether the Offenses are Identical in Fact
¶ 8 The parties do not dispute that the offenses charged against Eaglefeathers are identical in law; he was charged with two violations of the same statute, WIS. STAT. § 946.49. Rather, the dispute is over whether the offenses are identical in fact. Offenses are different in *694 fact if the offenses "are either separated in time or are significantly different in nature." State v. Stevens, 123 Wis. 2d 303, 322, 367 N.W.2d 788, cert. denied, 474 U.S. 852, 106 S. Ct. 151, 88 L. Ed. 2d 125 (1985). The test for whether offenses are significantly different in nature "is whether each count requires proof of an additional fact that the other count does not. The offenses are significantly different in nature if each requires a new volitional departure in the defendant's course of conduct." Anderson, 219 Wis. 2d 739, ¶ 20, 580 N.W.2d 329 (citations omitted).
¶ 9 Eaglefeathers contends that the two bail-jumping charges are not separated in time or in nature because they arose from a single volitional act, i.e., his failure to appear in court for preliminary hearings that were scheduled at the same time. Eaglefeathers notes that only one bond was issued for the two offenses in this case, and that the wording of the two charges in the information is identical. He distinguishes Anderson, a case in which the supreme court found that a violation of a single bond supported two separate charges. In Anderson, separate charges were upheld because Anderson committed two separate volitional acts by living with a person with whom he was to have no contact and drinking alcohol, violations of two separate conditions of his bond. Anderson, 219 Wis. 2d 739, ¶¶ 18-22, 580 N.W.2d 329. Eaglefeathers argues that the present case does not support two separate charges because, unlike Anderson, the charged offenses arose from one volitional act, failing to appear for the preliminary hearings.
¶ 10 It appears that the two charged offenses in this case were not separated in time. The preliminary hearings in the two underlying cases were scheduled for the same time, and therefore the act of failing to appear for one hearing was not separated in time from the act of failing to appear for the other hearing. However, we conclude that the two charged offenses are different in nature and therefore are not multiplicitous.
¶ 11 An offense is different in nature from another offense when it requires proof of a fact that the other offense does not. Anderson, 219 Wis. 2d 739, ¶ 20, 580 N.W.2d 329. As the circuit court explained, each count of bail jumping associated with each case would require separate proof by the State. The State would be required to prove that the court notified Eaglefeathers of the preliminary hearing in each case, and that Eaglefeathers failed to appear in each case. Proof of notification and failure to appear in one case would not prove notification and failure to appear in the other. As a result, the two charges were different in nature and therefore were different in fact for purposes of double jeopardy analysis.
¶ 12 In all meaningful respects, Eaglefeathers' case resembles State v. Richter, 189 Wis. 2d 105, 525 N.W.2d 168 (Ct.App. 1994), in which we upheld multiple charges of bail jumping based on one illegal phone call. Richter was charged with three counts of bail jumping for violating the same no-contact condition contained in three separate bonds. Id., 189 Wis.2d at 107-08, 525 N.W.2d 168. The charges resulted from a phone call Richter made to the person whom he was ordered not to contact. Id. We rejected Richter's argument that the second and third bail jumping counts were multiplicitous, concluding that the three offenses were different in fact. Id. at 109, 525 N.W.2d 168.
In each of the three cases there were separate bonds issued by the court. We agree with the trial court that "if the State were put to their proof, they would be required to prove up the condition in each bond." Each count would require *695 proof of facts for conviction which the other two counts would not require because each bond would give rise to an individual factual inquiry.
Id.
¶ 13 The only difference between Richter and the present case is that multiple bonds were issued in Richter corresponding to each of the underlying offenses, while only one bond was issued here in two separate criminal cases. However, the existence of one bond here rather than multiple bonds is a red herring that does not compel a different result in this case. Like Richter, Eaglefeathers' case turns on the fact that "[e]ach count would require proof of facts for conviction which the other two counts would not require" giving rise "to an individual factual inquiry" for each count of bail jumping. Id., 189 Wis.2d at 109, 525 N.W.2d 168.
¶ 14 Having determined that the offenses were different in fact because they were different in nature, and therefore the offenses were not multiplicitous, we turn to the second part of the multiplicity analysiswhether the legislature intended that the charged offenses be brought only as a single count.
II. Whether the Legislature Intended the Offenses to be Brought as a Single Count
¶ 15 As noted, when multiple charged offenses are different in fact or in law, a presumption arises that the legislature did not intend to preclude cumulative punishments. Davison, 263 Wis. 2d 145, ¶ 44, 666 N.W.2d 1. This presumption places the burden of proof on the defendant to show that the legislature intended to preclude cumulative punishments, and "can only be rebutted by clear legislative intent to the contrary." Derango, 236 Wis. 2d 721, ¶ 30, 613 N.W.2d 833. Legislative intent is evaluated by reference to four factors: (1) statutory language; (2) legislative history and context; (3) nature of the conduct involved; and (4) appropriateness of multiple punishments. See id., ¶ 34.
¶ 16 Eaglefeathers argues under the first of the four factors that there is nothing in the language of WIS. STAT. § 946.49 that would allow for multiple charges where one action violates a condition of a single bond. Next, he asserts that the legislative history is silent as to whether multiple charges are permissible in the present circumstances. Turning to the third factor, Eaglefeathers argues that the nature of his conduct does not warrant multiple counts because his failure to appear in court for two preliminary hearings scheduled at the same time arose from a single volitional act. Finally, he argues that multiple punishments are inappropriate here because they do not serve multiple public interests. We conclude that these arguments fail to overcome the presumption that the legislature intended multiple punishments.
¶ 17 Regarding the first two factors, statutory language and legislative history and context, Eaglefeathers argues that nothing in the language, legislative history and context of the statute supports the view that multiple punishments were intended. But this argument is a non-starter because the language, legislative history and context similarly contain no indications that the legislature intended to preclude multiple punishments. The absence of intent manifest in the statutory language and legislative history and context is not helpful to Eaglefeathers, who must prove clear legislative intent to preclude cumulative punishment.
¶ 18 With regard to Eaglefeathers' arguments about the nature of his conduct and the appropriateness of multiple punishments, we note that we have already *696 rejected his assertion that his failure to appear for the hearings represented one volitional act. Moreover, Eaglefeathers fails to acknowledge that his conduct resulted in two separate wrongs, preventing the court from proceeding with preliminary hearings in two separate cases. Under such circumstances, multiple punishments are not inappropriate.
¶ 19 Accordingly, Eaglefeathers has not met his burden of showing clear legislative intent to preclude multiple punishment in these circumstances. We therefore conclude that the charges are not multiplicitous.[3]
Conclusion
¶ 20 In sum, we conclude that multiple bail-jumping charges against Eaglefeathers do not violate his double jeopardy rights where preliminary hearings in two cases were scheduled at the same time and only one bond was issued covering both cases because the counts are different in fact. We further conclude that the charges are not multiplicitous because Eaglefeathers has not met his burden of showing that the legislature intended to prohibit multiple punishments in this context. We therefore affirm the judgment of conviction.
Judgment affirmed.
NOTES
[] Petition for review filed.
[1] WISCONSIN STAT. § 946.49 provides, as pertinent:
(1) Whoever, having been released from custody under ch. 969, intentionally fails to comply with the terms of his or her bond is:
(a) If the offense with which the person is charged is a misdemeanor, guilty of a Class A misdemeanor.
(b) If the offense with which the person is charged is a felony, guilty of a Class H felony.
[2] As pertinent, the Fifth Amendment to the United States Constitution provides that "[n]o person shall ... be subject for the same offence to be twice put in jeopardy of life or limb." Article I, § 8 of the Wisconsin Constitution provides that "no person for the same offense may be put twice in jeopardy of punishment." The state supreme court has generally viewed these provisions as being "identical in scope and purpose." See State v. Kelty, 2006 WI 101, ¶ 15, 294 Wis. 2d 62, 716 N.W.2d 886.
[3] Eaglefeathers also argues that his trial counsel was ineffective for failing to raise the issue of multiplicity in the circuit court. Because we have concluded that Eaglefeathers' multiplicity claim is without merit, it follows that his ineffective assistance claim based on trial counsel's failure to raise the multiplicity issue is also without merit. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858085/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-527-CR
VIVIAN BESSIE SANCHEZ,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT OF SCHLEICHER COUNTY
NO. 2346, HONORABLE ROBERT P. POST, JUDGE PRESIDING
Appellant Vivian Bessie Sanchez appeals her conviction for forgery, a class A
misdemeanor. After the jury found appellant guilty, the trial court assessed punishment at
confinement in the county jail for six months and a fine of two hundred and fifty dollars. The
imposition of the sentence was suspended. Appellant was placed on probation subject to certain
conditions.
Appellant advances four points of error. Three points challenge the legal
sufficiency of the evidence to sustain the conviction. The fourth point of error complains that the
"proceeding as a whole is void due to the failure to follow the appropriate procedure in obtaining
a judge to hear this matter." While the parties agreed upon a special judge, appellant contends,
inter alia, that the special judge did not take the oath required by statute. See Tex. Code Crim.
Proc. Ann. art. 30.04 (West 1989).
The information, filed by the Special Prosecutor and upon which the prosecution
proceeded, provides in pertinent part that the appellant:
did then and there intentionally and knowingly with intent to defraud or harm
another, alter a writing, to wit: the Certificate of Birth of Crystal Vallejo so that
it purports to be a copy of an original when no such original existed. (1)
We are confronted at the outset with the fact that there does not appear to be a
complaint underlying the information. The face of the information reflects that it was based "on
the written affidavit of Robert L. McWhorter," but such affidavit or complaint does not appear
in the appellate record despite the designation of the record by appellant to include all pleadings
by the State. See Tex. R. App. P. 50, 51. In response to our request for a supplemental
transcript, the clerk of the county court has certified that no affidavit or complaint of Robert L.
McWhorter has been filed in the instant cause. "It appears that the reference to an 'affidavit' of
Robert L. McWhorter refers to the indictment, which is the only document signed by Mr.
McWhorter." See footnote one.
Article V, section 17 of the Texas Constitution provides in part: "[P]rosecutions
may be commenced in said [county] court by information filed by the county attorney, or by
affidavit, as may be provided by law." (emphasis added). Article 21.22 of the Texas Code of
Criminal Procedure provides in part that "no information shall be presented until affidavit has
been made by some credible person charging the defendant with an offense." Tex. Code Crim.
Proc. Ann. art. 21.22 (West 1989).
In the past, it has been said that a valid affidavit or complaint is a prerequisite to
a valid information, Holland v. State, 623 S.W.2d 651, 652 (Tex. Crim. App. 1981), and that
without a valid complaint an information is worthless. Williams v. State, 107 S.W.2d 996, 997
(Tex. Crim. App. 1937). Only recently in Aguilar v. State, 846 S.W.2d 318, 320 (Tex. Crim.
App. 1993), the Court of Criminal Appeals recognized past holdings that a defect in the complaint
could render an otherwise valid information invalid, and that such error was often classified as
a jurisdictional error. In Aguilar, however, the court also called attention to the 1985 amendment
to Article V, section 12(b) of the Texas Constitution providing that the presentation of an
indictment or information to a court invests the court with jurisdiction of the cause. Thus, under
the explicit terms of the constitution the mere presentment of an information to a trial court vests
that court with jurisdiction over the person of the defendant, regardless of any defect that might
exist in the underlying affidavit or complaint. Aguilar, 846 S.W.2d at 320; State v. Hall, 829
S.W.2d 184, 188 (Tex. Crim. App. 1992); Studer v. State, 799 S.W.2d 263, 269 (Tex. Crim.
App. 1990). Defects in complaints must now be raised by pretrial motions to set aside the
information; they are no longer "jurisdictional" in the traditional sense. Aguilar, 846 S.W.2d at
320.
In the instant cause, there was not a question of a defect in the complaint, but no
complaint at all. Article 1.14(b) of the Texas Code of Criminal Procedure provides that if a
defendant does not object to a defect, error, or irregularity of form or substance in the indictment
or information before the date on which the trial on the merits commences, he waives and forfeits
the right to object to the defect, error, or irregularity and may not raise the question on appeal or
in a postconviction proceeding. Tex. Code Crim. Proc. Ann. art. 1.14(b) (West Supp. 1993).
Appellant did not object to the lack of a complaint to support the information and waived any right
to raise the irregularity now. If it could be argued that the information was fatally defective, we
still would be required to decide whether the evidence is sufficient to support the conviction as
raised by three of appellant's points of error. See Foster v. State, 635 S.W.2d 710, 717 (Tex.
Crim. App. 1982); Rosamond v. State, 730 S.W.2d 147, 149 (Tex. App.--Corpus Christi 1987,
no pet.); see also McElroy v. State, 720 S.W.2d 490, 493-95 (Tex. Crim. App. 1986).
The standard of reviewing the legal sufficiency of the evidence is whether viewing
the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have
found beyond a reasonable doubt the essential elements of the offense charged. Jackson v.
Virginia, 443 U.S. 307, 319 n.12 (1979); Jackson v. State, 672 S.W.2d 801, 803 (Tex. Crim.
App. 1984). The same standard applies to circumstantial evidence cases as well as cases involving
direct evidence. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990); Christian v.
State, 686 S.W.2d 930, 934 (Tex. Crim. App. 1985); see also Geesa v. State, 820 S.W.2d 154
(Tex. Crim. App. 1991). The sufficiency of the evidence must also be measured against the jury
charge. If the evidence does not conform to the jury instructions given, it is insufficient as a
matter of law. Nickerson v. State, 782 S.W.2d 887, 891 (Tex. Crim. App. 1990); Garrett v.
State, 749 S.W.2d 784, 802-03 (Tex. Crim. App. 1988) (op. on reh'g); Boozer v. State, 717
S.W.2d 608, 610-11 (Tex Crim. App. 1984).
At trial, the State relied upon the testimony of Lidia Vallejo and Texas Ranger
Danny Rhea. Appellant offered alibi testimony but did not personally testify. Vallejo testified
that she was a secretary in the Schleicher County Adult Probation Office where appellant was an
adult probation officer. Vallejo stated that on the afternoon of June 2, 1989, appellant told her
that she needed a birth certificate for appellant's husband in order that he might go to Mexico.
Appellant stated her husband did not have a Mexican passport, but with a birth certificate he could
cross the border as a United States citizen. Vallejo volunteered that she had her daughter's birth
certificate in her purse. At appellant's suggestion, Vallejo went to the Clerk's office and made
a copy of her daughter's birth certificate. Vallejo returned to the probation office and "whited
out" her daughter's name and date of birth. She then typed in the name of appellant's husband
and his birth date and other information supplied to her by appellant. Vallejo admitted that she
signed the altered birth certificate as Carmen Sanchez, the name of the mother of appellant's
husband. Vallejo also altered the clerk's certificate. The State proved that all of the alterations
were made by Vallejo personally.
Texas Ranger Rhea testified that he investigated the alleged offense, that he gave
warnings to appellant concerning her rights, and that she made an oral statement to him. Rhea
reported that appellant told him: "I know that we did wrong when we made it up, and when I
took it to my husband he became angry and tore it up and threw it in the trash." Rhea assumed
that "it" referred to the altered birth certificate. He admitted that it was a matter of assumption
and that "it" as used in the statement was subject to interpretation. There was no clarification of
the term "we."
The trial court charged the jury that Vallejo was an accomplice witness as a matter
of law and that her testimony had to be corroborated. See Tex. Code Crim. Proc. Ann. art. 38.14
(West 1979). (2)
The testimony of an accomplice witness alone cannot furnish the basis for a
conviction, and a conviction so based must be reversed no matter how complete a case may have
been made by the accomplice witness's testimony, and no matter how much credit the jury might
have given such testimony. Paulus v. State, 633 S.W.2d 827, 843 (Tex. Crim. App. 1982). In
Edwards v. State, 427 S.W.2d 629, 632 (Tex. Crim. App. 1968), the Court of Criminal Appeals
stated:
The test as to the sufficiency of the corroboration is to eliminate from consideration
the evidence of the accomplice witness and then to examine the evidence of other
witnesses with the view to ascertain if there be inculpatory evidence, that is
evidence of incriminating character which tends to connect the defendant with the
commission of the offense. If there is such evidence, the corroboration is
sufficient; otherwise it is not.
See also Gomez v. State, 737 S.W.2d 315, 323 n.10 (Tex. Crim. App. 1987); Losada v. State,
721 S.W.2d 305, 308 (Tex. Crim. App. 1986). Thus, in deciding whether there is sufficient
corroborative evidence, we must eliminate the accomplice witness testimony and determine
whether there is evidence that independently tends to connect the appellant to the offense. Leal
v. State, 782 S.W.2d 844, 851 (Tex. Crim. App. 1989).
In applying the test of the sufficiency of the corroboration, each case must be
considered on its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126 (Tex. Crim.
App. 1988); Paulus, 633 S.W.2d at 844. It is not necessary that the corroboration directly link
the accused to the crime or be sufficient in itself to establish the guilt of the accused. Id. at 843.
However, evidence independent of that of the accomplice witness which does no more than point
the finger of suspicion toward appellant is insufficient to corroborate the testimony of an
accomplice witness. Id. at 844.
The only evidence independent of the accomplice witness's testimony is Ranger
Rhea's testimony; that after he gave appellant the Miranda warnings, (3) she volunteered a brief oral
statement. The oral statement was admitted over objection with the State claiming that there was
no custodial interrogation. According to Rhea, the oral statement was made by appellant before
he even asked a question. There was no showing of any other conversation between appellant and
Rhea. Ranger Rhea admitted that he assumed "it" in the oral statement referred to the altered
birth certificate, but acknowledged that the matter was subject to interpretation. The term "we"
in the statement was never clarified. There was no mention of the accomplice witness's name in
the oral statement. Corroborative evidence is insufficient if it connects the defendant to the
offense only when it is considered in connection with the testimony of the accomplice witness.
Sonenschein v. State, 722 S.W.2d 450, 452 (Tex. App.--Austin 1986, pet. ref'd). Such
"bootstrapping" is impermissible in evaluating the sufficiency of corroborating evidence under
article 38.14. Id.; see also Etheredge v. State, 542 S.W.2d 148, 150 (Tex. Crim. App. 1976)
(non-accomplice witness testimony "standing alone" must be sufficient to tend to connect
defendant to the offense charged); O'Donald v. State, 492 S.W.2d 584, 585 (Tex. Crim. App.
1973).
We conclude that the evidence is insufficient to corroborate that of the accomplice
witness as required by article 38.14. We need not, however, rest our disposition of the
sufficiency of the evidence questions on this basis alone.
As noted earlier, the sufficiency of the evidence is measured against the jury
charge. The evidence is insufficient as a matter of law if the evidence does not conform to the
jury instruction given. Nickerson, 782 S.W.2d at 891. The evidence shows that the forgery, the
alteration of the original birth certification, was performed by Vallejo, not appellant. The State
had Vallejo admit that much in her direct examination. Vallejo's testimony showed that appellant
encouraged her, aided her by giving her information, and wiped Vallejo's prints from the seal
placed on the altered document. The State's theory of the case was that Vallejo was the primary
actor and that appellant solicited her, encouraged, directed, aided or attempted to aid Vallejo. No
evidence supported the submission of the case on the theory appellant was the primary actor. See
Jaycon v. State, 651 S.W.2d 803, 808 (Tex. Crim. App. 1983). The court's charge tracked the
allegations of the information and authorized the jury to find appellant guilty of forgery based on
her own behavior and conduct as the primary actor. The trial court did not charge on the law of
parties. See Tex. Penal Code Ann. §§ 7.01, 7.02 (West 1974). The trial court may charge the
jury on the law of parties and apply the law to the facts even if there is no allegation as to parties
in the indictment or information. Williams v. State, 676 S.W.2d 399, 401 (Tex. Crim. App.
1984); Pitts v. State, 569 S.W.2d 898, 900 (Tex. Crim. App. 1978); Miranda v. State, 813
S.W.2d 724, 732 n.2 (Tex. App.--San Antonio 1991, pet. ref'd). When the evidence does not
support the submission of the case on the theory that the defendant was the primary actor, a
correct charge should require the jury to find that the principal actor did commit the criminal act
charged and that the defendant could be held responsible for such criminal act, if at all, because
of his or her solicitation, encouragement of and assistance to the primary actor. See Apodaca v.
State, 589 S.W.2d 696, 699 (Tex. Crim. App. 1979); Anaya v. State, 677 S.W.2d 746, 749 (Tex.
App.--San Antonio 1984, pet. ref'd). There was no objection to the charge by the State nor did
it ask for a special requested charge. By not objecting to a charge which unnecessarily increased
the State's burden of proof, the State accepted that burden. Nickerson, 782 S.W.2d at 891;
Stephens v. State, 717 S.W.2d 338, 341 (Tex. Crim. App. 1986); Ortega v. State, 668 S.W.2d
701, 704-05 n.10 (Tex. Crim. App. 1983). We are bound by the decisions of the Court of
Criminal Appeals that the sufficiency of the evidence must be measured against the jury charge
given. See Nickerson, 782 S.W.2d at 891, Boozer, 717 S.W.2d at 610-11. The instant jury
charge authorized the jurors to convict only if they found appellant guilty as a primary actor in
altering the birth certificate. The evidence showed appellant's guilt, if at all, as a party to the
offense. Thus, the evidence is insufficient when measured against the charge, even assuming the
evidence was sufficient to corroborate the accomplice witness's testimony. Points one through
three are sustained.
In light of Burks v. United States, 437 U.S. 1 (1978) and Greene v. Massey, 437
U.S. 19 (1978), we will reverse the judgment of conviction and reform it to show an acquittal.
We need not reach the fourth point of error in view of our disposition of the first
three points of error. In the last point of error, appellant contends the record does not show that
the Special County Judge who presided at the trial took an oath as Special Judge. Cf. Saylors v.
State, 836 S.W.2d 769 (Tex. App.--Waco 1992, no pet.); Williams v. State, 677 S.W.2d 584 (Tex.
App.--Austin 1984, no pet.). There is no such oath in the record as the State concedes. (4)
The judgment of conviction is reversed and it is reformed to show an acquittal.
John F. Onion, Jr., Justice
Before Justices Jones, Kidd and Onion*
Reversed and Reformed
Filed: December 15, 1993
Do Not Publish
* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by
assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Appellant was originally indicted for the misdemeanor offense of forgery. The
indictment was transferred from the district court to the county court. Thereafter, the
Special Prosecutor filed an information in the county court which added additional
allegations not found in the indictment.
2. Article 38.14 provides: "A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows the commission
of the offense."
3. Miranda v. Arizona, 384 U.S. 436 (1966).
4. Although not raised as a point of error, we also observe that there is no record of the
formal order appointing a Special Prosecutor or his oath. See Tex. Code Crim. Proc. Ann.
2.07 (West 1977 & Supp. 1993). | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/556511/ | 926 F.2d 764
UNITED STATES of America, Appellee,v.Theodore "Ted" HERN, Jr., Appellant.
No. 90-1877.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 16, 1990.Decided Feb. 27, 1991.
Gene Worsham, Little Rock, Ark., for appellant.
Lesa Jackson, Asst. U.S. Atty., Little Rock, Ark., for appellee.
Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and CONMY,* Chief District Judge.
HENLEY, Senior Circuit Judge.
1
Theodore Hern, Jr. appeals from a judgment of the district court1 entered upon a jury verdict finding him guilty of failing to record the receipt of firearms in violation of 18 U.S.C. Sec. 923(g)(1) (Count I), failing to record the sale of firearms in violation of 18 U.S.C. Sec. 922(b)(5) (Count II), conspiracy to sell firearms to nonresidents in violation of 18 U.S.C. Secs. 371 and 922(b)(3) (Count III), and recording false statements in violation of 18 U.S.C. Sec. 922(m). We affirm.
2
Hern was a federally-licensed firearms dealer doing business as Ted's Gun and Pawn Shop in Russellville, Arkansas. On January 8, 1987 undercover police officer Kelly Watkins went to the gun shop and informed Hern that he was interested in purchasing a gun, but that he was a convicted felon and needed to purchase a gun without any "paperwork."2 Watkins testified that Hern reviewed his record books and advised him that a Jennings .22 caliber firearm was available, which Watkins purchased without paperwork. On March 24, 1987 undercover police officer Kimberly Powell also advised Hern that she wanted to purchase a gun, but did not want to complete any paperwork. Hern complied and sold her a Bersa Lusber pistol. The officers reported the undercover sales to the Bureau of Alcohol, Tobacco and Firearms (ATF).
3
On November 2 and 3, 1987 ATF agent Paul Bishop conducted a compliance inspection of Hern's business. Bishop reviewed Hern's acquisition and disposition books and discovered that the Jennings weapon Hern had sold to Watkins had been recorded as having been sold in December, 1986 to Roy Alford and that the Bersa weapon sold to Powell had been recorded as having been sold in March, 1987 to Robert Jackson. Alford testified he had returned the gun to Hern because it was defective and Hern explained that the gun would have to be returned to the factory for repair. Jackson testified that he also returned the Bersa to Hern, but Hern did not remember Jackson returning the gun.
4
During the course of his inspection, Bishop also discovered a large number of transactions in which Hern recorded guns as having been sold the same day they were recorded as having been received in inventory. Bishop thought these transactions were unusual because inventory generally did not turn over so quickly. Hern explained to him that the transactions resulted from sales at gun shows. Lyle Grunland, a federally licensed firearms dealer doing business in Kansas, attended several gun shows in Arkansas. Grunland testified that he knew federal law prohibited him from selling weapons at the shows directly to Arkansas residents,3 but was informed by a gun show promoter that for a fee Hern would act as a "middleman" and complete the necessary paperwork and record the sale of the firearms in his record books. Grunland testified that he believed that Hern conducted at least one hundred transactions for him. Although Grunland stated he did not intend to violate the law, he acknowledged that use of a "middleman" was a "way of circumventing the law, which is a kind of sneaky way of saying it's not legal," and that in other states he would enter into partnerships with resident licensed dealers. Robert Longinotti, Michael Griffin and Derrel Smith testified that they purchased firearms at gun shows from one of Grunland's businesses, and not Hern, and produced cancelled checks or receipts in support.
5
On appeal Hern argues that the district court erred in denying his motion for acquittal on the ground of insufficient evidence. "A district court has very limited latitude in ruling on a motion for judgment of acquittal." United States v. Jewell, 893 F.2d 193, 194 (8th Cir.1990). " 'A motion for judgment of acquittal should be granted only where the evidence, viewed in the light most favorable to the government, is such that a reasonably minded jury must have a reasonable doubt as to the existence of any of the essential elements of the crime charged.' " Id. (quoting United States v. Mundt, 846 F.2d 1157, 1158 (8th Cir.1988)).
6
Before reviewing Hern's allegations concerning the sufficiency of the evidence, we address the penalty provisions of the Firearms Owners' Protection Act (FOPA) set forth in 18 U.S.C. Sec. 924(a).4 "Normally, the mens rea for a crime is set out as part of the substantive offense, not as part of a penalties provision, as in section 924(a)." United States v. Sherbondy, 865 F.2d 996, 1001 (9th Cir.1988). In Sherbondy, the court explained that "[t]he earliest versions of FOPA required that all offenses be 'willful,' " but that the "Treasury Department, along with various witnesses and members of Congress, objected that, with respect to certain serious offenses, ... the government should not be required to prove intent to violate the law." Id. at 1002. "In response to this objection, Congress reduced the mens rea requirement for the most serious offenses from 'willfully' to 'knowingly.' " Id. In Sherbondy, the court held that a "knowing" violation did not require proof of knowledge of the law, noting there are "few exceptions to the rule that ignorance of the law is no excuse."5 Id. The court, however, did not decide what would constitute a "willful" violation. Id. at 1003 n. 9. In this appeal, Hern assumes, and the government does not dispute, that "willful" means an intentional violation of a known legal duty.6 Hern asserts, and the government appears to agree, that Counts I, II and III required proof of willful violations. Hern argues there was insufficient evidence of willfulness.
7
Hern first argues there was insufficient evidence to establish that he willfully failed to record the receipt of the Jennings and Bersa weapons,7 noting there was no direct evidence of his intent. We disagree. Willfulness and intent need not be proven by direct evidence, but "may also be proven by circumstantial evidence and frequently cannot be proven in any other way." United States v. Lanier, 838 F.2d 281, 283 (8th Cir.1988) (per curiam). In this case, we believe a jury could have reasonably found that Hern willfully failed to record the receipt of the Jennings and Bersa weapons, especially in light of the subsequent unrecorded sales of the weapons to officers Powell and Watkins.
8
Hern also argues that there was insufficient evidence to establish that he willfully failed to record the sales to Powell and Watkins. He attacks the officers' credibility and notes that his father testified that on March 24, 1987 he sold the Bersa to a man who left the shop with the gun before completing the paperwork. However, "[i]t is the function of the jury, not an appellate court, to resolve conflict in the testimony or judge the credibility of witnesses." Smalley v. United States, 798 F.2d 1182, 1188 (8th Cir.1986) (quotation omitted).
9
We also reject Hern's assertion that there was insufficient evidence to sustain his conviction for conspiracy to violate 18 U.S.C. Sec. 922(b), which prohibited Grunland from selling guns to Arkansas residents. Hern asserts there can be no conspiracy because Grunland testified it was not his intent to violate the law. However, this court has held that "[t]he government need not prove the specific intent or knowledge of the alleged coconspirators...." United States v. Austin, 823 F.2d 257, 259 (8th Cir.1987), cert. denied, 484 U.S. 1044, 108 S. Ct. 778, 98 L. Ed. 2d 864 (1988). "It need only show that defendant entered into an agreement with at least one other person, the objective of which was unlawful, and that one of those in agreement committed an overt act in furtherance of the objective." Id. Hern also argues that there was no evidence to establish that he intended to violate Sec. 922, noting that he recorded the receipt and sales of the weapons in his books. We disagree. Although the use of a "middleman" may be common practice at gun shows, Sec. 922(b) "is violated by a sham sale made to a resident when the transaction is really with a nonresident, and it is for the jury to decide, on all the relevant evidence ... whether such a charade occurred or whether there was a bona fide sale to a resident." United States v. Brooks, 611 F.2d 614, 619 (5th Cir.1980) (subsequent history omitted); see also United States v. Lawrence, 680 F.2d 1126, 1128 (6th Cir.1982) (toleration of sham sales would in effect be "tantamount" to repeal of gun control legislation). We agree with the government that there was sufficient evidence from which the jury could find that Hern knew the transactions were sham. We note that Grunland paid Hern a fee for his services and admitted it was the "consensus" at gun shows that "middleman" services were designed to circumvent the prohibition on sales to nonresidents. We also reject Hern's assertion that the recording of a sham transaction is not a false statement within the meaning of 18 U.S.C. Sec. 922(m).8 See United States v. Brooks, 611 F.2d at 616. See also Smalley v. United States, 798 F.2d at 1183 (court upholds conviction for conspiracy to violate Sec. 922 where records falsely reflected sales of firearms).
10
Last, Hern challenges his pre-Sentencing Guidelines sentence. Because we find that Hern's violations of the statutory sections were willful, we reject his assertions that the penalty provisions of 18 U.S.C. Sec. 924 were inapplicable. We also reject his assertion that his sentence was excessive or that the district court abused its discretion in imposing imprisonment instead of probation.9 While the totality of the sentence may seem harsh, in sentencing questions this court ordinarily will not substitute its judgment for that of the district court. See United States v. Rosandich, 729 F.2d 1512, 1512 (8th Cir.1984).
11
Accordingly, the judgment of the district court is affirmed.
*
The Honorable Patrick A. Conmy, Chief Judge, United States District Court, District of North Dakota, sitting by designation
1
The Honorable Elsijane T. Roy, United States Senior District Judge for the Eastern and Western Districts of Arkansas
2
18 U.S.C. Sec. 922(b)(5) provides that "[i]t shall be unlawful for any ... licensed dealer ... to sell or deliver any firearm ... to any person unless the licensee notes in his records, ... the name, age, and place of residence of such person...." In addition, a Form 4473 must be completed for each sale. See 27 C.F.R. Sec. 178.124. The purchaser completes part A of the form and the seller completes part B of the form
3
18 U.S.C. Sec. 922(b)(3) provides that "[i]t shall be unlawful for any ... licensed dealer ... to sell or deliver ... any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in ... the State in which the licensee's place of business is located...."
4
Section 924(a)(1) provides for a fine not to exceed $5000 and a term of imprisonment not to exceed five years for whoever:
(A) knowingly makes any false statement or representation with respect to the information required by this chapter to be kept in the records of a person licensed under this chapter ...;
(B) knowingly violates subsection (a)(4), (a)(6), (f), or (k) of section 922;
(C) ... or;
(D) willfully violates any other provision of this chapter....
Section 924(a)(3)(B) provides for a fine not to exceed $1000 and a term of imprisonment not to exceed one year if a licensed firearms dealer "knowingly" makes a false statement in violation of Sec. 922(m).
5
We recognize that in United States v. Traxel, 914 F.2d 119, 122 n. 6 (8th Cir.1990), this court disagreed with the Sherbondy court's interpretation of "burglary" in the sentence enhancement provision of Sec. 924(e). We, however, also recognize that in Taylor v. United States, --- U.S. ----, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990), the Supreme Court rejected this court's interpretation of "burglary" and cited Sherbondy with approval. In any event, we agree with Sherbondy's conclusion that a "knowing" violation of FOPA does not include an intent to violate the law. This interpretation is consistent with the definition of "knowingly" under the former Gun Control Act. See United States v. Udofot, 711 F.2d 831, 835-37 (8th Cir.) ("knowingly" means only that act was done voluntarily and intentionally and not by mistake or accident), cert. denied, 464 U.S. 896, 104 S. Ct. 245, 78 L. Ed. 2d 234 (1983)
6
We believe the legislative history is consistent with this definition of "willful," see, e.g., H.Rep. No. 99-495, 99th Cong.2d Sess., reprinted in 1986 Code Cong. & Admin.News 1327, 1352, and consistent with the term's use in other statutory contexts. See, e.g., United States v. Jerde, 841 F.2d 818, 821 (8th Cir.1988) (willfulness in context of failure to file tax returns "simply means a voluntary, intentional violation of a known legal duty") (quotation omitted); United States v. Mills, 835 F.2d 1262, 1265 (8th Cir.1987) (per curiam) (same in context of damage to government property); United States v. Studna, 713 F.2d 416, 418 (8th Cir.1983) (same in context of odometer fraud)
7
18 U.S.C. Sec. 923(g)(1)(A) provides that "[e]ach ... licensed dealer shall maintain such records of importation, production, shipment, receipt, sale, or other disposition of firearms at his place of business for such period, and in such form, as the Secretary may by regulations prescribe." Hern's suggestion that the statute is inapplicable because "receipt" excludes receipt of a firearm returned due to a defect is clearly without merit in that it runs counter to the plain language of the statute
8
Section 922(m) provides that "[i]t shall be unlawful for any ... licensed dealer ... knowingly to make any false entry in ... any record which he is required to keep pursuant to Section 923...."
9
The district court sentenced Hern to concurrent one year terms of imprisonment on Counts I and IV, to a one year term of imprisonment on Count II to run consecutive to those in Counts I and IV, and suspended sentence on Count III and placed Hern on probation for three years to run consecutively with the sentences imposed on Counts I, II and IV. The court also imposed a $5000 fine | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1560330/ | 18 So.3d 1146 (2009)
PRO-MED CLINICAL SYSTEMS, L.L.C., Petitioner,
v.
UTOPIA PROVIDER SYSTEMS, INC. a/k/a Utopia Providers Systems, Inc., Respondent.
No. 4D09-2698.
District Court of Appeal of Florida, Fourth District.
September 23, 2009.
Rehearing Denied November 6, 2009.
*1147 Ted C. Craig and Rafael R. Ribeiro of Hunton & Williams LLP, Miami, for petitioner.
No appearance for respondent.
PER CURIAM.
Pro-Med Clinical Systems, L.L.C., petitions for a writ of prohibition seeking to prevent the circuit court from proceeding with a breach of contract action filed by respondent, Utopia Provider Systems, Inc. Pro-Med argues that Utopia's claims regarding a breach of a licensing agreement is a claim of copyright infringement, which is within the exclusive jurisdiction of the federal courts. The trial court denied Pro-Med's motion to dismiss, finding that Utopia's claim did not sound in copyright. Pro-Med now seeks a writ of prohibition, arguing that the circuit court lacks subject matter jurisdiction. We agree with the trial court's determination that Utopia's claims do not sound in copyright and deny the petition without prejudice for Pro-Med to re-raise this issue if Utopia is subsequently permitted by the federal courts to bring a copyright infringement action.
Facts
Utopia developed a product called ED Maximus, a system of templates, or charts, for use by emergency room physicians. The charts assist physicians in recording information regarding encounters with patients. Utopia and Pro-Med entered into a licensing agreement where, in exchange for paying a royalty, Pro-Med was given the exclusive right to market and distribute a version of the ED Maximus system for a period of five years. Pro-Med developed its Electronic Physician Documentation (EPD) product, a computer program that is an electronic template system similar to ED Maximus. Pro-Med marketed and distributed the EPD product without paying Utopia royalties. The license agreement expired, and the contract was not renewed.
Utopia filed suit against Pro-Med in both state and federal courts. In federal court, Utopia raised claims of breach of the license agreement and breach of fiduciary duty along with a claim that Pro-Med's development and sale of the EPD product infringed on Utopia's copyright in ED Maximus. The federal court dismissed the breach of contract and breach of fiduciary duty claims without prejudice, finding that they presented questions of state law that would predominate over the copyright claim. The federal district court then issued an order granting Pro-Med summary judgment and holding that the ED Maximus system was not subject to federal copyright protection. Utopia Provider Sys., Inc. v. Pro-Med Clinical Sys., L.L.C., No. 07-60654-CIV., 2009 WL 248376 (S.D.Fla. Feb. 2, 2009). In so holding, the court reasoned that the ED Maximus system of templates for recording patient information was not an original work of authorship or a compilation of data to which federal copyright protection extends.[1]See 17 U.S.C. § 102(b) (2008) ("In no case does copyright protection for an original work of authorship extend to any... procedure, process, system, [or] method of operation ... regardless of the form in which it is described, explained, illustrated, or embodied in such work."); Baker v. Selden, 101 U.S. 99, 25 L.Ed. 841 (1879) (holding that copyright protection did not extend to blank accounting forms or system of bookkeeping described in work on bookkeeping).
*1148 Pro-Med moved to dismiss Utopia's state court action that sought damages for breach of the license agreement and breach of fiduciary duty. Pro-Med argued that Utopia's claim of a breach of the license agreement amounted to a claim of copyright infringement over which the federal courts have exclusive jurisdiction. The trial court determined that Utopia's claims did not sound in copyright and denied the motion to dismiss. Pro-Med filed this petition for writ of prohibition, alleging that the trial court lacks subject-matter jurisdiction because Utopia's claims are veiled allegations of copyright infringement. Pro-Med argues that the circuit court is poised to adjudicate a copyright infringement claim.
Jurisdiction
A writ of prohibition is a proper remedy to prevent a trial court from asserting subject-matter jurisdiction over matters within the exclusive jurisdiction of the federal courts. Sparta Surf, Inc. v. Korda, 599 So.2d 242, 243 (Fla. 4th DCA 1992); Pincus v. Carlisle, 585 So.2d 1172 (Fla. 4th DCA 1991) (granting prohibition where circuit courts were acting over claims of copyright violations within the exclusive jurisdiction of the federal courts); see also Am. Maritime Officers Union v. Merriken, 981 So.2d 544, 547 (Fla. 4th DCA 2008) (granting petition for writ of prohibition relating to claim, which was preempted by federal law).
Analysis
Pro-Med relies on a number of cases in arguing that Utopia's claim of breach of the licensing agreement is equivalent to a copyright infringement claim and within the exclusive jurisdiction of federal courts. See Briarpatch Ltd. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir.2004); Encyclopedia Brown Prods. v. Home Box Office, Inc., No. 91 Civ. 4092(PKL), 1998 WL 734355 (S.D.N.Y. Oct. 15, 1998); MCA Television Ltd. v. Feltner, 89 F.3d 766 (11th Cir.1996); Marshall v. New Kids On The Block P'ship, 780 F.Supp. 1005 (S.D.N.Y.1991); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1089 (9th Cir.1989); Kamakazi Music Corp. v. Robbins Music Corp., 684 F.2d 228 (2d Cir.1982).
It is well-settled that the "Federal Copyright Act preempts state causes of actions that are equivalent to copyright infringement claims." Higher Gear Group, Inc. v. Rockenbach Chevrolet Sales, Inc., 223 F.Supp.2d 953, 956 (N.D.Ill.2002); see 28 U.S.C. § 1338(a) (providing for exclusive federal court jurisdiction of copyright claims). All of the cases relied on by Pro-Med, however, involved preemption of state law claims involving works that fell within the scope and subject matter of the Copyright Act. As explained in Briarpatch, a case relied on heavily by Pro-Med, "[t]he Copyright Act exclusively governs a claim when: (1) the particular work to which the claim is being applied falls within the type of works protected by the Copyright Act... and (2) the claim seeks to vindicate legal or equitable rights that are equivalent to one of the bundle of exclusive rights already protected by copyright law." 373 F.3d at 305. The first prong, or subject-matter requirement, is satisfied "if the claim applies to a work of authorship fixed in a tangible medium of expression and falling within the ambit of one of the categories of copyrightable works." Id. (citation omitted) (emphasis added).
Curiously, in its petition, Pro-Med asserts that "[t]here is no issue here that Utopia's templates ... are works of authorship fixed in a tangible medium of expression" and that "[t]here is further no issue that Utopia's claims for unauthorized reproduction and distribution of its templates or derivatives thereof seek to vindicate the exclusive rights granted Utopia by the Copyright Act." Pro-Med seems to *1149 contend that Utopia's claim falls within the scope of the Copyright Act and that the materials are copyrightable. Of course, Pro-Med asserted a contrary position in the federal litigation where it successfully argued that the ED Maximus materials were not copyrightable.
The federal district court has already determined that federal copyright protection does extend to the materials at issue and that the claims in question are properly brought in state court. Utopia's claim for damages from the breach of the licensing agreement does not apply to a work that falls within the subject matter of the Copyright Act. The trial court in this case is not poised to adjudicate a claim of copyright infringement.
Conclusion
Pro-Med's argument that Utopia's claim is preempted by the Copyright Act is without merit. As it currently stands, Utopia's breach of contract claims do not arise under copyright law and are based solely on contractual rights. See EMSA Ltd. P'ship v. Lincoln, 691 So.2d 547, 550 (Fla. 4th DCA 1997) (holding that when a claim is for a common-law, state-created, or contractual right, the claim does not arise under the Copyright Act and the state court has jurisdiction).
The petition is DENIED. Denial is without prejudice for Pro-Med to re-raise the issue if the federal district court's decision is overturned on appeal, and the federal court subsequently determines that the materials in question fall within the type of works protected by the Copyright Act.
POLEN, HAZOURI and DAMOORGIAN, JJ., concur.
NOTES
[1] Pro-Med has advised this court that Utopia has appealed the federal district court's decision and that the appeal remains pending. Pro-Med did not provide this court with a copy of the federal district court's decision and failed to advise this court that, in the federal litigation, it had successfully argued that Utopia's ED Maximus system was not subject to copyright protection. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560338/ | 945 A.2d 252 (2008)
COMMONWEALTH of Pennsylvania, Appellant
v.
Russell L. DIAMOND, Jr., Appellee.
No. 1698 MDA 2006.
Superior Court of Pennsylvania.
Submitted January 8, 2008.
Filed March 20, 2008.
David J. Arnold, Jr., Assistant District Attorney, Lebanon, for Commonwealth, appellant.
*254 Harry W. Fenton, Lebanon, for appellee.
BEFORE: LALLY-GREEN, GANTMAN, JJ., and McEWEN, P.J.E.
OPINION BY LALLY-GREEN, J.:
¶ 1 Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered on August 30, 2006, upon the conviction of Appellee Russell L. Diamond, Jr. ("Diamond"). We vacate and remand.
¶ 2 The trial court summarized the facts as follows:
[T]he Pennsylvania State Police (PSP) attempted to serve a warrant on [Diamond] at his home. A daylong standoff occurred and entry was ultimately made by a PSP Special Emergency Response Team (SERT). While the troopers were entering[,] they heard the sound of a gun shot from inside the home. A gunshot struck the door jam near where two troopers were standing. The two troopers saw [Diamond] standing holding a shotgun after they entered into the home. [Diamond] was ultimately arrested without further incident.
Trial Court Opinion, 6/22/07, at 1.
¶ 3 On August 11, 2005, Diamond was charged with criminal attempt/criminal homicide (Count I), aggravated assault (Count II), aggravated assault (Count III), terroristic, threats (Count IV), recklessly endangering another person (Count V), simple assault (Count VI), recklessly endangering another person (Count VII), and resisting arrest or other law enforcement (Count VIII). 18 Pa.C.S.A. §§ 901, 2501(a), 2701(a)(3), 2702(a)(2), 2702(a)(6), 2706(a)(1), 2705, 5104.
¶ 4 On May 3, 2006, following a jury trial, Diamond was found guilty on all Counts, except Count I.[1] Sentencing was scheduled for August 2, 2006.
¶ 5 On August 2, 2006, the parties appeared before the sentencing court. During that proceeding, the Commonwealth stated that 42 Pa.C.S.A. § 9712[2] mandated a minimum sentence of at least five years of total confinement on Diamond's Count *255 II aggravated assault conviction. Referring to § 9712(b), which states that "reasonable notice of the Commonwealth's intention to proceed under this section shall be provided [to the defendant] after conviction and before sentencing[,]" the court asked the Commonwealth whether notice was given to Diamond and, if so, whether it was given "post-conviction and prior to sentencing." 42 Pa.C.S.A. § 9712(b). N.T., 8/2/06, at 8. The Commonwealth answered; that although it did not formally notify Diamond of its intention to proceed under § 9712 after he was convicted, it had notified Diamond of its intention in this regard during the discovery process, through statements it made on three receipts provided to defense counsel.[3]
¶ 6 The court deferred ruling on whether the Commonwealth satisfied § 9712's notice requirement, and continued Diamond's sentencing until August 30, 2006,
¶ 7 On August 30, 2006, the court sentenced Diamond to an aggregate prison term of 30 months to six years. Specifically, the court imposed concurrent terms of 30 months to six years for Counts II and III, a concurrent term of 11 months to five years for Count IV, and a concurrent term of four months to two years for Count VIII.[4] In doing so, the court refused to consider application of § 9712's mandatory minimum, based on its determination that the Commonwealth failed to satisfy the statute's notice requirement. The court reasoned that the statements the Commonwealth made to Diamond on receipts during discovery of its intent to pursue § 9712's mandatory minimum sentence were insufficient as a matter of timing and content. The court also concluded that the statement the Commonwealth made regarding application of § 9712's mandatory minimum sentence to Diamond on August 2, 2006 (the day that Diamond's sentencing was continued) did not constitute "reasonable notice . . . after conviction and before sentencing" under the statute. Trial Court Opinion, 6/22/07, at 7. The Commonwealth filed[5] this timely appeal.[6]
¶ 8 The Commonwealth raises two issues on appeal. In reverse order, they are:
1. Whether the trial court erred/ abused its discretion by refusing to apply the mandatory five (5) year prison sentence required by 42 Pa. C.S.A. § 9712, since Appellee was convicted of using a firearm in the commission of his crimes?
*256 2. Whether the trial court erred/ abused its discretion by intentionally ignoring Appellee's prior criminal record, ignoring the deadly weapon enhancement guidelines and sentencing Appellee below the mitigated range of the standard sentencing guidelines?
Commonwealth's Brief at 6.
¶ 9 In its first issue, the Commonwealth challenges the sentencing court's refusal to apply § 9712's mandatory minimum sentence in the instant case. The Commonwealth argues that on August 2, 2006, it gave Diamond the notice that § 9712 required the Commonwealth to give.[7] The Commonwealth contends that the sentencing court misconstrued the statute in reaching a contrary conclusion.
¶ 10 Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Commonwealth v. Leverette, 911 A.2d 998, 1002 (Pa.Super.2006). Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa.Super.2006). Our standard of review over such questions is de novo and our scope of review is plenary. See Leverette, 911 A.2d at 1002.
¶ 11 What notice § 9712 requires of the Commonwealth is a question of statutory construction. Therefore, the Statutory Construction Act of 1972 ("Act") controls. 1 Pa.C.S.A. § 1501 et seq. The Act instructs, in relevant part that, "the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly, and `[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.'" 1 Pa.C.S.A. § 1921(a), (b). A court should resort to other considerations, such as the General Assembly's purpose in enacting a statute, only when the words of a statute are not explicit. 1 Pa.C.S.A. § 1921(c). The Act also provides that "[w]ords and phrases shall be construed according to the rules of grammar and according to their common and approved usage," but that "technical words and phrases and such others as have acquired a peculiar and appropriate meaning . . . shall be construed according to such peculiar and appropriate meaning." 1 Pa.C.S.A. § 1903(a). Finally, in ascertaining the General Assembly's intent, we may presume that the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable. 1 Pa.C.S. § 1922(1).
¶ 12 With these principles in mind, we begin with the words of § 9712(b). The statute states:
§ 9712. Sentences for offenses committed with firearms
* * *
(b) Proof at sentencing. Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford *257 the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S.A. § 9712(b) (emphasis in text added). Presently, the words in § 9712(b) we are called upon to interpret and apply are "reasonable notice" given "after conviction and before sentencing." 42 Pa. C.S.A. § 9712(b).
¶ 13 We first observe that this Court has already determined the meaning of "reasonable notice," as used in the statute. In Commonwealth v. Rizzo, 362 Pa.Super. 129, 523 A.2d 809 (1987), we likened the term, "reasonable notice" in § 9712 to "adequate notice," stating that "to be adequate, notice must be sufficient to permit an objection or a defense[,]" and concluded that what constitutes "reasonable notice" under § 9712 depends on the circumstances. Id. at 811, citing Black's Law Dictionary 37 (5th ed.1979). In this same vein, Black's Law Dictionary defines "reasonable notice" as: "Notice that is fairly to be expected or required under the particular circumstances." Black's Law Dictionary 1008 (7th ed.1990). See 1 Pa.C.S.A. § 1903(a).
¶ 14 As to the meaning of the phrase "after conviction and before sentencing" in § 9712, we note that that the word "after" means "a later time than[,]" and that the word "before" means "previous to; earlier than." Random House Webster's Dictionary 13, 63 (3d ed.1998). See 1 Pa.C.S.A. § 1903(a).
¶ 15 Now, we address whether, in light of the record, the Commonwealth provided the notice that the Legislature intended be given under § 9712. As the record reveals, Diamond was convicted on May 3, 2006. On August 2, 2006, the Commonwealth and Diamond appeared before the sentencing court. At that proceeding, the Commonwealth stated that it was pursuing a sentence under § 9712. Diamond's sentencing was continued. Diamond was sentenced on August 30, 2006. Thus, the Commonwealth notified Diamond after his conviction and almost one month before his sentencing that it intended to pursue application of § 9712.
¶ 16 In light of § 9712's plain meaning and the presumption that the Legislature does not intend unreasonable results in its enactments, we conclude that the Commonwealth did indeed give "reasonable notice" to Diamond of its intent "after conviction and before sentencing" within the meaning of § 9712. 42 Pa.C.S.A. § 9712(b). See 1 Pa.C.S.A. §§ 1921(b), 1922(1). See also Commonwealth v. Saksek, 361 Pa.Super. 173, 522 A.2d 70, 72 (1987) (concluding that three days notice prior to sentencing constituted reasonable notice under § 9712, particularly where the information specifically referred to the defendant pointing a gun at the store clerk and testimony was given at trial to the same extent). Therefore, we also conclude that the sentencing court's refusal to consider whether § 9712's mandatory minimum sentence should be applied to Diamond was erroneous.
¶ 17 Accordingly, since the record reflects that the sentencing court did not follow § 9712(b) and did not determine at Diamond's sentencing whether the statute is applicable by a preponderance of the evidence by considering any evidence presented at trial and affording the Commonwealth and Diamond the opportunity to present any necessary additional evidence, we will remand this case for the sentencing court to do so. See 42 Pa.C.S.A. § 9712(b).
¶ 18 We now turn to the Commonwealth's second issue. In it, the Commonwealth challenges the discretionary aspects of Diamond's sentence.
*258 ¶ 19 A challenge to the discretionary aspects of a sentence is considered a petition for permission to appeal because the right to pursue such a claim is not absolute. Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004). Therefore, the petitioner must set forth in its brief a concise statement of the reasons relied upon for allowance of appeal. Pa. R.A.P. 2119(f). Further, the petitioner must demonstrate that a substantial question exists as to whether the sentence imposed is inappropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). This Court has concluded that a substantial question exists "only when the appellant advances a colorable argument that the sentencing 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. Bullock, 868 A.2d 516, 528 (Pa.Super.2005), aff'd, 590 Pa. 480, 913 A.2d 207 (2006), cert, denied, ___ U.S. ___, 127 S.Ct. 2262, 167 L.Ed.2d 1103 (2007) (citations omitted).
¶ 20 Presently, the Commonwealth sets forth a Pa.R.A.P. 2119(f) statement in its brief. The Commonwealth argues, inter alia, that the sentencing court ignored the proper prior record score and the deadly weapon enhancement in determining the guideline sentence for Diamond. See 204 Pa.Code §§ 303.4, 303.10.[8] Preliminarily, we conclude that the Commonwealth's Pa. R.A.P. 2119(f) statement presents a substantial question for review. Commonwealth v. Magnum, 439 Pa.Super. 616, 654 A.2d 1146, 1149 (1995) (determining that issues relating to the sentencing court's failure to consider the mandatory deadly weapon enhancement raise substantial questions).
¶ 21 We now address the merits of the Commonwealth's challenge to the discretionary aspects of Diamond's sentence. The Supreme Court has set forth our standard of review, stating:
[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion. . . . [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless "the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." In more expansive terms, our Court recently offered: "An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous."
* * *
[T]he abuse of discretion standard includes review of whether the judgment exercised was unreasonable. [T]he Sentencing Code sets forth a requirement of appellate review for whether a sentence outside of the guidelines is "unreasonable." 42 Pa.C.S. § 9781(c). Thus, the statutory unreasonableness inquiry is a component of the jurisprudential standard of review for an abuse of discretion. *259 Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961-962 (2007) (case citations and footnotes omitted).
¶ 22 The Commonwealth contends that the sentencing court failed to determine Diamond's guideline sentence correctly because it ignored Diamond's 1958 Alaska conviction for burglary in calculating his prior record score and disregarded application of the deadly weapon enhancement. 204 Pa.Code §§ 303.4, 303.8(f), 308.10(2)(i).
¶ 23 This Court has repeatedly recognized that a sentencing court is not obligated to sentence within the sentencing guidelines. Commonwealth v. Archer, 722 A.2d 203, 210 (Pa.Super.1998) (en banc). At the same time, however, this Court has repeatedly instructed that the sentencing court must correctly apply the sentencing guidelines to reach the correct point of departure, before exercising its discretion to depart from the guidelines in any particular case. Id.
¶ 24 These rules apply to the deadly weapons enhancement. Commonwealth v. Jones, 433 Pa.Super. 266, 640 A.2d 914, 919 (1994). We have explained that "[t]he trial court lacks the discretion to refuse to apply the deadly weapon sentencing enhancement. The court's discretion comes into play when it is time to impose a sentence, once the court determines the adjusted sentencing guideline range." Id. (citation omitted).
¶ 25 Likewise, these rules apply to the calculation of a defendant's prior record score. See Commonwealth v. Bolden, 367 Pa.Super. 333, 532 A.2d 1172, 1174 (1987). The sentencing guidelines are construed under the Statutory Construction Act. Id. The guidelines plainly state that "determination of the correct prior record score . . . is based on the type and number of prior convictionst[,]" and that "[a]n out of state, federal or foreign conviction . . . is scored as a conviction for the current equivalent Pennsylvania offense." 204 Pa. Code §§ 303.4, 303.8(f). See Bolden, 532 A.2d at 1175. We have recognized that in adopting the sentencing guidelines, "the Sentencing Commission `considered it important to count all non-Pennsylvania crimes systematically[,]'" and that the court is required to score such a conviction as it would a "`current equivalent Pennsylvania offense'" when calculating a prior record score based upon a foreign state conviction. Id. at 1175, citing former 204 Pa.Code § 303.7(d). Further, "[n]either the Sentencing Code nor the sentencing guidelines place any time limits on offenses to be included in the prior record score, as such criminal history is relevant to sentencing." Commonwealth v. Johnson, 421 Pa.Super. 433, 618 A.2d 415, 419 (1992), overruled on other grounds, Archer, 722 A.2d at 211.
¶ 26 At Diamond's sentencing, the parties differed on what the recommended guideline sentence was for Diamond's Count II aggravated assault conviction. The Commonwealth contended that the sentencing guidelines required a prior conviction score of three, to account for Diamond's burglary conviction, and inclusion of the deadly weapon enhancement, such that the recommended standard range sentence for Count II was 60 to 72 months. N.T., 8/30/07, at 10. See 204 Pa.Code § 303.18. Diamond, however, urged the court to use a prior record score of zero and not to apply the deadly weapon enhancement, contending that the recommended standard range sentence for Count II was 22 to 36 months. Id. at 4. See 204 Pa.Code § 303.16.[9]
¶ 27 In arriving at Diamond's sentence, the court adopted Diamond's approach. *260 The court "discounted" Diamond's prior conviction and did not apply the deadly weapon enhancement, stating:
I have looked at the guideline ranges. I am not one to sit here and state that I believe that the when the [S]entencing [C]ommission comes up with the sentencing guidelines they believe that we are going to be looking at somebody's conviction from 48 years ago. We're going to be looking at what you're doing 48 years later and that's going to impact on their sentence, the later on [sic] when they lived that 48 years crime free. So, I know that the sentencing guidelines are advisory only.
I have considered the sentencing guidelines. I have considered the guideline ranges that would be in play here if you have a prior record score of three. And I have considered the additional information that [defense counsel] provided. I discounted that conviction from 48 years ago.
But after considering all those items, Mr. Diamond, again there is a price to pay. I have selected a sentence that falls within the standard range as calculated as if you didn't have that prior conviction 48 years ago, and that range is still 22 to 36 months.
N.T., 8/30/06, at 18-19.
¶ 28 By using a prior record score that did not reflect Diamond's prior conviction and disregarding the deadly weapons enhancement, the sentencing court departed from the rule that it was required to begin its consideration of Diamond's sentence from the correct starting point under the sentencing guidelines. See Archer, 722 A.2d at 210. Therefore, we conclude that the court abused its discretion in sentencing Diamond. Id.
¶ 29 Accordingly, we vacate Diamond's sentence and remand to the sentencing court for re-sentencing. On remand, the court is to: (1) follow the dictates of § 9712(b) and determine whether § 9712 is applicable to Diamond; and (2) determine the guideline sentence recommendations under the Sentencing Guidelines.
¶ 30 If the court determines that § 9712 applies, it shall sentence Diamond accordingly, under § 9712 and 204 Pa.Code § 303.9(h).[10]See also Commonwealth v. Morgan, 425 Pa.Super. 344, 625 A.2d 80, 85 (1993), appeal denied, 535 Pa. 667, 634 A.2d 1115 (1993) ("Since the trial court must consider both the mandatory minimum sentence and the deadly weapons enhancement in fashioning sentence . . . the trial court must add the deadly weapons enhancement to the appropriate sentencing ranges to ascertain whether the sentence should be higher than the mandatory minimum."). If the sentencing court determines that § 9712 does not apply, and wishes to impose a sentence outside the sentencing guidelines, it may do so, provided it places adequate reasons for the deviation on the record.
¶ 31 Judgment of sentence vacated. Remanded for further proceedings. Jurisdiction relinquished.
NOTES
[1] The jury was unable to reach a verdict on Count I. At the Commonwealth's request, the trial court ordered a nolle prosequi of Count I on September 8, 2006.
[2] The statute provides:
§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.
* * *
(c) Authority of court in sentencing. There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
42 Pa.C.S.A. § 9712(a), (c). Section 9714 defines a "crime of violence" as, inter alia, "aggravated assault as defined in 18 Pa.C.S.A. § 2702(a)(1) or (2) (relating to aggravated assault). . . ." 42 Pa.C.S.A. § 9714(g).
[3] On November 9, 2005, February 13, 2006, and February 27, 2006, defense counsel executed a "Discovery Conference Memo," acknowledging inspection and receipt of discovery materials from the Commonwealth. At the bottom of each document, the following was written:
Please be advised that if any enhancement and/or mandatory sentence under the Pennsylvania Sentencing Guidelines is indicated by your client's charges, the Commonwealth will be seeking that mandatory sentence and/or enhancement in regard of these charges.
Trial Court Opinion, 6/22/07, at 6.
[4] Counts V, VI, and VII were merged for purposes of sentencing.
[5] Section 9712 states that "[i]f a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section." 42 Pa.C.S.A. § 9712(d).
[6] On January 5, 2007, the trial court ordered the Commonwealth to file a concise statement of matters complained of on appeal within 14 days under Pa.R.A.P.1925. The Commonwealth complied, filing its Rule 1925(b) statement on January 10, 2007. The trial court issued a Pa.R.A.P.1925(a) opinion on June 22, 2007.
[7] The Commonwealth also argues that the sentencing court erred in concluding that the statements it made on the discovery receipts given to defense counsel were insufficient as notice under § 9712. See supra at 3 & n. 3. Due to our resolution of the other issues raised by the Commonwealth, we need not and do not address this question.
[8] The Commonwealth also contends that the sentencing court did not consider the factors set out in 42 Pa.C.S.A. § 9721(b), that Diamond's sentence was too lenient, and that the court stated inadequate reasons imposing a sentence that fell below the applicable mitigated range. Due to our resolution of the other issues presented by the Commonwealth, we need not and do not address these issues.
[9] It is undisputed that the proper offense gravity score under the Sentencing Guidelines is 10. See 204 Pa.Code § 303.3. Further, it is not disputed that Diamond has a prior conviction for burglary or that the requirements for applying the deadly weapon enhancement to Diamond are met.
[10] The Code provides that "the court has no authority to impose a sentence less than that required by a mandatory minimum provision established in statute. When the guideline range is lower than that required by a mandatory sentencing statute, the mandatory minimum requirement supersedes the sentence recommendation. When the sentence recommendation is higher than that required by a mandatory sentencing statute, the court shall consider the guideline sentence recommendation." 204 Pa.Code § 303.9(h). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1560367/ | 945 A.2d 215 (2008)
Michele FISHER and Lane Fisher, In their Own Right and Michele Fisher and Lane Fisher, Parents and Natural Guardians of Ryan Fisher, a Minor, Appellant,
v.
CENTRAL CAB COMPANY and Timothy Leach, Appellees.
No. 2049 EDA 2007.
Superior Court of Pennsylvania.
Argued January 8, 2008.
Filed March 12, 2008.
*216 Richard M. Golomb, Philadelphia, for appellant.
Allan D. Goulding, Jr., Morrisville, for appellees.
BEFORE: KLEIN, GANTMAN, and KELLY, JJ.
OPINION BY GANTMAN, J.:
¶ 1 Appellants, Michele and Lane Fisher, in their own right and Michele and Lane Fisher, parents and natural guardians of Ryan Fisher, a minor, appeal from the judgment entered in favor of Appellees, Central Cab Company and Timothy Leach. We affirm.
¶ 2 The trial court opinion set forth the relevant facts of this appeal as follows:
On the morning of October 9, 2004, Appellants Michele Fisher and her son, Ryan Fisher, were injured in an automobile accident that occurred near Parkside Avenue at 41st Street in Philadelphia, PA. Michele Fisher was driving eastbound on Parkside Avenue with her then four-year-old son Ryan sitting in a car seat in the back seat of the car. At the same time, [Appellee Timothy Leach] was driving a Coach bus westbound on Parkside Avenue, while in the scope of employment for the other Appellee, Central Cab Company. Mr. Leach was transporting a group from Mount Olivet Baptist Church in Uniontown, PA, to a Baptist Convention at the Christ Community Church on 41st Street in Philadelphia. The bus departed Uniontown at 3:00 a.m. the same morning and had almost arrived at its destination when the accident occurred.
Mr. Leach stopped the bus at a green light at 41st [S]treet before beginning the turn onto 41st Street. As he began to make the left-hand turn, crossing into the eastbound lane of Parkside Avenue, contact was made between the two vehicles. Mr. Leach testified that he did not see any oncoming traffic before beginning to make his turn.
Two passengers on the bus observed . . . Appellant's car prior to the impact with the bus. Natalie Winfrey ("Ms.Win-frey"), *217 who was sitting in the front seat on the right-hand side of the bus, testified that she saw Appellant's car from when it was approximately 50-100 feet from the bus. Ms. Winfrey testified that Appellant's car drove straight into the bus without slowing down, applying the brakes or changing direction. She estimated that Ms. Fisher's car was traveling between 40-45 miles per hour prior to the impact. Ms. Winfrey vocalized her concern more than one time that the approaching car was not stopping.
Another passenger, Alycia Goodson ("Ms.Goodson"), who was also sitting on the right hand side of the bus said that she turned to see . . . Appellant's car approaching after hearing Ms. Winfrey's exclamation and observed [the] car from the time the bus was turning until the time of the accident. Ms. Goodson testified that Ms. Fisher's car did not slow down or try to avoid the bus at all. She also testified that Mr. Leach stopped at the green light before turning and used his turn signal.
At the bus' destination, Christ Community Church on 41st Street, there were already people outside Waiting for [the] arrival of the passengers. One of whom, Susan McCloud ("Ms.McCloud") witnessed the accident while she was standing on a nearby corner. Ms. McCloud testified that . . . Appellant's vehicle did not attempt to slow down or stop and that she saw it drive directly into the turning bus. She also testified that the bus had on its turn signal.
At both her discovery deposition and at trial, Ms. Fisher was unable to give testimony about the details of the car accident because she had no recollection of the accident or her drive that morning after being left briefly unconscious by the impact.
(Trial Court Opinion, entered August 14, 2007, at 1-3) (internal citations to the record omitted).
¶ 3 Appellants commenced this action by filing a negligence complaint on July 21, 2005. On October 31, 2005, Appellees field an answer with new matter. In their new matter, Appellees asserted:
[Appellant] Michele Fisher was operating her vehicle at [an] excessive rate of speed under the circumstances, she failed to maintain her vehicle under full proper control, that she failed to observe other vehicles on the roadway, that she failed to yield to another vehicle already in the intersection, and that she failed to take appropriate and reasonable steps for her own safety, the safety of her passengers and the safety of other motorists on the roadway.
(Answer With New Matter, filed 10/31/05, at 4). Appellants filed a reply to the new matter on November 2, 2005.
¶ 4 On March 28, 2007, a jury found that Mr. Leach, acting on behalf of Central Cab Company, was not negligent. Appellants timely filed a post-trial motion on March 29, 2007. In their motion, Appellants argued the court had erred by permitting Ms. Winfrey, a lay witness, to opine about the approximate speed of the Fisher vehicle. By order entered July 9, 2007, the court denied Appellants' post-trial motion.
¶ 5 Appellants filed their notice of appeal on July 10, 2007. The court did not order Appellants to file a concise statement pursuant to Pa.R.A.P.1925(b). On September 10, 2007, Appellants filed a praecipe to enter judgment on the verdict.[1]
*218 ¶ 6 Appellants now raise one issue for our review:
DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN IT ALLOWED A LAY WITNESS TO OFFER AN OPINION ABOUT THE SPEED OF AN ONCOMING VEHICLE, EVEN THOUGH NO FOUNDATION WAS LAID FOR THE WITNESS TO DO SO?
(Appellant's Brief at 4).
¶ 7 In reviewing a claim of error regarding the admissibility of evidence, we note:
The question of whether evidence is admissible is a determination that rests within the sound discretion of the trial court and will not be reversed on appeal absent a showing that the court clearly abused its discretion.
Moroney v. General Motors Corp., 850 A.2d 629, 632 (Pa.Super.2004), appeal denied, 580 Pa. 714, 862 A.2d 1256 (2004).
¶ 8 Appellants assert Ms. Winfrey could not provide an accurate estimate of the speed of Ms. Fisher's vehicle, because Ms. Fisher was driving directly toward Ms. Winfrey. Appellants also maintain that if Ms. Winfrey saw Ms. Fisher's vehicle approximately fifty (50) to one hundred (100) feet from the bus, traveling at forty-five (45) miles per hour, then Ms. Winfrey saw the oncoming vehicle for about one second. Under these circumstances, Appellants insist Ms. Winfrey did not have an adequate opportunity to observe the vehicle and estimate its speed, and the trial court erred by admitting Ms. Winfrey's opinion testimony. Appellants claim they suffered prejudice due to the admission of this testimony, because no other basis existed for the jury to find in Appellees' favor. Appellants conclude this Court must remand the matter for a new trial. We disagree.
¶ 9 "In Shaffer v. Torrens, 359 Pa. 187, 58 A.2d 439 (1948), the [C]ourt stated that the requirements for admissibility of lay witness estimations of speed include (1) an observation of the vehicular movement in question; and (2) a recognition of impressions of like vehicles at relative speeds." Radogna v. Hester, 255 Pa.Super. 517, 388 A.2d 1087, 1088 (1978).
Other decisions have required that the witness have something more than just a "fleeting" glance of the vehicle in question, . . . the important consideration being that the witness have at least a minimum of time to make a reasonable estimation of speed. Cases which have rejected a witness' observation because the witness did not see the vehicle in motion for more than a few feet before , the collision have indicated that the witness' testimony was not admissible because of the brevity, the fleeting nature of the observation. However, the court has never attempted to establish any minimum distance requirement for competency of lay witness estimates.
There are other cases in which the distance traveled by the moving vehicle *219 during the period of observation has been appreciable, yet the court has rejected the witness' testimony because the moving vehicle had come directly toward the witness, making any estimation of speed speculative. The test for admissibility of lay witness estimations of speed, therefore, is not strictly connected with evidence of the distance traversed by the vehicle in question but, rather, depends upon the existence of an overall opportunity for adequate observation, in addition to the witness' prior experience with moving vehicles. Evidence of the distance over which the observed vehicle moved during the period of observation will go to the weight of the witness' estimation. If the distance is exceedingly small, the court may refuse to allow the witness to offer an estimate of speed because it is apparent that the witness had only a "fleeting" glimpse of the moving vehicle.
Id. at 1088-89 (internal citations and footnotes omitted). See also Heacox v. Polce, 392 Pa. 415, 416, 141 A.2d 229, 232 (1958) (stating plaintiff did not have sufficient time to observe speed of defendant's vehicle immediately before impact; plaintiff stepped into lane, looked up, and saw defendant's vehicle "practically on top of me. . . ."); Catina v. Maree, 272 Pa.Super. 247, 415 A.2d 413, 419 (1979), rev'd on other grounds, 498 Pa. 443, 447 A.2d 228 (1982) (holding trial court properly excluded testimony concerning speed of vehicle where witness observed vehicle travel "on a diagonal" for thirty-five (35) feet on poorly lit road; estimate of speed "may not be predicated on such a slender data base . . . ").
¶ 10 Instantly, Ms. Winfrey is licensed to drive in Pennsylvania and has driven for the last eighteen (18) years. (N.T. Trial, 3/27/07, at 64; R.R. at 312a). On the date of the accident, Ms. Winfrey sat in the front row of the bus, on the right-hand side. (Id. at 50; R.R. at 298a). From her seat, Ms. Winfrey looked out the front window to view the approaching traffic. (Id.) At trial, Ms. Winfrey initially described the accident as follows:
Basically, we were in our turn, making the turn to head on to the church. We were basically at the church. And [Ms. Fisher's] car was fast approaching onto us and she wasn't stopping. And basically, I said slowly under my breath, she's not stopping, she's not stopping, and then vocally louder I began to say that.
(Id.)
¶ 11 Ms. Winfrey estimated Ms. Fisher's vehicle was "about 50 to 100 feet away" from the bus when she first saw it. (Id. at 53; R.R. at 301a). At that point, Ms. Winfrey believed Ms. Fisher's vehicle "was far back enough that I thought it was going to stop. . . ." (Id. at 52; R.R. at 300a). Ms. Winfrey continuously watched Ms. Fisher's vehicle until the time of the collision. (Id. at 53; R.R. at 301a). Although Ms. Winfrey could not remember how many seconds elapsed from the time she first saw the vehicle until the time of the collision, she testified that Ms. Fisher's vehicle did not slow down, change directions, or swerve to avoid the collision. (Id. at 53-54; R.R. at 301a-302a). Ms. Winfrey also opined about the speed of Ms. Fisher's vehicle:
[WINFREY]: I would say it was going at least 40 to 45 miles per hour.
[DEFENSE COUNSEL]: From the time based on your experience as a driver and the things you observed that day between the time you first saw it until the time of the collision, did [Ms. Fisher's] vehicle have sufficient time to stop?
*220 [WINFREY]: Definitely.
(Id. at 54-55; R.R. at 302a-303a).
¶ 12 Contrary to Appellants' arguments, Ms. Winfrey had an adequate opportunity to observe Ms. Fisher's vehicle. From her seat at the front of the bus, Ms. Winfrey had an unobstructed view through the windshield. When Ms. Winfrey first noticed Ms. Fisher's vehicle, it was far enough away from the bus that Ms. Winfrey believed it would stop short of a collision. Ms. Fisher, however, did not stop. As the bus was in its turn, Ms. Winfrey continuously watched Ms. Fisher's car. Prior to impact, Ms. Winfrey vocalized her fears, saying: "She's not stopping." Ms. Winfrey's comment even caused others on the bus to turn and notice the oncoming vehicle. Under these circumstances, we agree with the trial court's conclusion that "Ms. Winfrey's observation constitutes more than just a `fleeting glimpse.'" (Trial Court Opinion at 6). Consequently, Ms. Winfrey's testimony satisfied the requirements for admissibility of lay witness estimations of speed. See Radogna, supra.
¶ 13 Moreover, the trial court noted Ms. Winfrey's testimony did not prejudice Appellants:
Here, the jury found . . . Appellees . . . not negligent at the conclusion of the trial. Appellants contend that Ms. Winfrey's testimony had been excluded from the trial that a verdict would have been returned in their favor. Appellants argue that no other basis existed upon which the jury could have faulted Appellant, Ms. Fisher. This argument is misguided as the jury never faulted Ms. Fisher. Instead the jury found that Appellee, Mr. Leach, acting on behalf of Central Cab Co., was not (emphasis added) negligent.
[]Appellants failed to convince the jury that [the] weight and sufficiency of the evidence showed that Mr. Leach was driving negligently. As explained above, multiple witnesses testified the bus stopped at the light before turning and that Mr. Leach used his left turn signal. Mr. Leach also testified that he did not see any oncoming vehicles before turning left. Further, there was evidence by three eyewitnesses, one of whom was standing on a nearby corner, that Ms. Fisher's car did not slow down or in any way try to avoid the bus. Moreover, no testimony was given by Ms. Fisher that the events leading to the accident occurred in any other way since she was unable to testify as to the details of the accident.
(Trial Court Opinion at 8-9) (internal quotation marks and citations to the record omitted). We accept this analysis. Based upon the foregoing, we conclude the trial court properly admitted Ms. Winfrey's testimony regarding the speed of the Fisher vehicle. See Moroney, supra. As such, Appellants are not entitled to a new trial. Accordingly, we affirm.
¶ 14 Judgment affirmed.
NOTES
[1] Appellants purport to appeal from the trial court's denial of their post-trial motions. Such orders are' interlocutory and generally not appealable. Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 865 (Pa.Super.2000), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001). Rather, the subsequent judgment is appealable. Id. A final judgment entered during the pendency of an appeal is sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and Supply Co., 787 A.2d 1050 (Pa.Super.2001), appeal denied, 569 Pa. 693, 803 A.2d 735 (2002). In the present action, Appellants filed their notice of appeal on July 10, 2007. However, judgment on the verdict was not entered until September 10, 2007. Thus, Appellants' notice of appeal relates forward to September 10, 2007, the date judgment was entered and copies of the judgment were distributed to all the appropriate parties. See Pa.R.A.P. 905(a) (stating notice of appeal filed after court's determination but before entry of appealable order shall be treated as filed after such entry and on date of entry). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3336231/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON DEFENDANTS' MOTIONS TO STRIKE
(1) The court denies the motions to strike the second and fourth counts for the reasons set forth in the attached decision of Amari Jones, PPA,et al v. William Gulley, M.D., et al, No. 558526. The allegations of the negligence count can form the basis of a recklessness claim, see paragraphs 10(c) and (d) of the second count and paragraphs 11(c) and (d) of the fourth count.
(2) The court does grant the motion to strike as to the claim for double or treble damages against Umberto Pitagora for the reasons set forth in Robinson v. McWeeney, 16 CLR 514 (1996), which is attached.
___________________ Corradino, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/608666/ | 995 F.2d 233
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Harvey Wes DANIELS, Defendant-Appellant.
No. 92-50246.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 8, 1993.Decided June 10, 1993.
1
Before: CANBY and NORRIS, Circuit Judges, and TANNER** District Judge.
2
MEMORANDUM***
3
Harvey Daniels appeals his sentence following jury convictions on counts of conspiring to sell stolen bonds, in violation of 18 U.S.C. § 371; aiding and abetting in the distribution of stolen bonds, in violation of 18 U.S.C. § 2315; and possessing counterfeit money, in violation of 18 U.S.C. § 474. For the most part we reject Daniels' challenge to the district court's valuation of loss under U.S.S.G. section 2B1.1. However, we agree with Daniels that he was not an organizer or leader within the meaning of U.S.S.G. section 3B1.1. We vacate the sentence and remand for resentencing.
4
* Daniels conspired with others to sell 48 bonds that had been stolen from a shipment of 1500 bonds destined for sale in Europe. The securities were bearer bonds, and were not registered with the IRS. Each bond had a face value of 10,000 Canadian dollars and contained five dated interest coupons. One coupon matured each year at a fixed rate of 11 7/8%
5
The bonds were probably unmarketable, and their interest coupons unredeemable, because the issuer had never authenticated them. The issuer also stopped payment on the bonds contained in the missing shipment. The entire shipment, including the stolen box, was insured for $2000 to cover reprinting costs.
6
Daniels and his co-conspirators tried to sell to undercover agents the 48 bonds they held. Although Daniels neither stole the bonds nor delivered them to the agents, he participated in negotiations for their sale. Following delivery, it was Daniels who arranged to receive payment from an undercover informant.
7
Daniels brought his brother and another man with him when he met the informant at a restaurant. Daniels and one of his companions each carried a concealed, loaded gun. Daniels talked with the informant inside the restaurant while the two companions waited outside and watched the parking lot.
8
The three men were arrested after Daniels received $90,000 from the informant. The lookouts later told police that Daniels had hired them to provide security and counter-surveillance at the meeting. They denied knowing anything, however, about stolen bonds. Their statements were not introduced at Daniels' trial, nor did the government present evidence showing that the two lookouts knew why Daniels met the informant.
9
At sentencing, the district court calculated loss on the basis of the bonds' face value. Discounting at a stipulated rate of 80 American cents to each Canadian dollar, the face value of the 48 bonds was approximately $380,000. Daniels maintained that the loss was at most $90,000. The larger figure placed Daniels' offense level three steps higher than did Daniels' calculation.
10
The district court added to its figure, over Daniels' objection, the future value of the bond's interest coupons. That value was approximately $228,000. Adding interest to the loss figure added one step to Daniels' offense level.
11
Although the government had not recommended it, Daniels also received a two-step increase under section 3B1.1(c). The district court found that the two lookouts knew criminal activity was afoot at the restaurant meeting. That knowledge, the court determined, was sufficient evidence of their criminal responsibility to hold Daniels accountable as an organizer or leader.
12
After further adjustments not relevant to this appeal, the offense level was fixed at 20. The sentencing range at that level, in light of Daniels' criminal history, was 41-51 months imprisonment. The district court sentenced Daniels to 48 months.
II
13
This court reviews de novo the district court's interpretation of the Guidelines. However, we examine for clear error the district court's factual findings, giving due deference to the court's application of the Guidelines to the facts. United States v. Joetski, 952 F.2d 1090, 1096 (9th Cir.1991).
14
U.S.S.G. section 2B1.1, which establishes offense levels for larceny, embezzlement, and other theft, governs this case. Commentary to that guideline provides in part:
15
"Loss" means the value of the property taken, damaged, or destroyed. Ordinarily, when property is taken or destroyed the loss is the fair market value of the particular property at issue. Where the market value is difficult to ascertain or inadequate to measure harm to the victim, the court may measure loss in some other way, such as reasonable replacement cost to the victim.
16
Section 2B1.1, comment (n. 2).
17
Daniels contends initially that any loss is small because his conduct victimized no one. That argument is meritless. Daniels and his co-conspirators tried to sell stolen bonds. It is irrelevant that their buyer was an undercover agent. Cf. United States v. Van Boom, 961 F.2d 145, 147 (9th Cir.1992) (robber arrested before taking money sentenced on the basis of amount he demanded of bank). Nor does it matter that the issuer of the bonds virtually ensured that they were non-negotiable by stopping payment on them. See Joetski, 952 F.2d at 1096-97 (check amount is intended loss even though bank refused to honor it).1
18
In the alternative, Daniels argues that $90,000 is the loss because that figure is the fair market value of the bonds. There are two problems with Daniels' characterization. The government maintains that $90,000 was only a partial payment, and the district court made no finding on the issue. Even assuming that $90,000 was the total negotiated price, however, the district court was under no obligation to adopt that figure.
19
"The Ninth Circuit has refused to require a strict market value approach in determining the value of stolen goods." United States v. Wilson, 900 F.2d 1350, 1356 (9th Cir.1990). Here, as in Wilson, a figure suggests the value of stolen property in a thieves' market, but there is no easy way to determine a similar figure for that property in an open market. Furthermore, there is no guarantee that the two figures would be equivalent. See id. "Where goods have no readily ascertainable market value," we said in Wilson, "any reasonable method may be employed to ascribe an equivalent monetary value to the items." Id.
20
Because an open market and a black market often yield different figures for stolen goods, neither United States v. Luckey, 655 F.2d 203 (9th Cir.1981), nor United States v. Wallace, 800 F.2d 1509 (9th Cir.1986), cert. denied, 481 U.S. 1019 (1987), control sentencing for federal crimes involving stolen property. Those pre-guideline cases decided only whether blank checks and unissued airline tickets had the requisite value necessary to meet the $5000 jurisdictional minimum.
21
Difficulty in measurement is not the only justification for fashioning an alternative measure of loss. Wilson and subsequent decisions recognize that section 2B1.1 addresses both a defendant's gain and a victim's loss. See Wilson, 900 F.2d at 1356; United States v. Pemberton, 904 F.2d 515, 517 (9th Cir.1990). Expert testimony adduced at trial shows that even if a bank would not have bought one of the stolen bonds, it might have accepted the bond as collateral for a loan. The risk of harm to potential buyers and lenders was far from speculative; furthermore, Daniels intentionally created the risk. Under those circumstances, the district court was entitled to search for a measure of loss that would quantify those risks.
22
The face value of the bonds provided a reasonable quantification of the risk to unsuspecting buyers or lenders. In a similar case involving stolen stock certificates, the Eleventh Circuit ruled that the face value of the certificates could be used to compute the loss. United States v. Jenkins, 901 F.2d 1075, 1084 (11th Cir.), cert. denied, 111 S.Ct. 259 (1990). Although the owners of the certificates in Jenkins had been identified, the rationale of that case is persuasive here. Whether a buyer for these bonds actually existed is irrelevant under the Guidelines. See United States v. Resurrection, 978 F.2d 759, 762-63 (1st Cir.1992) (risk of harm that a defendant intentionally creates is relevant conduct under the Guidelines). Moreover, the government had no duty to show that a potential buyer probably would have paid face value for the bonds. See United States v. Koenig, 952 F.2d 267, 271 (9th Cir.1991).
23
Related Ninth Circuit authority supports application of the Jenkins approach in this case. In United States v. Pemberton, 904 F.2d 515, 517 (9th Cir.1990), we relied on the contract price of stolen architectural drawings that were worthless to anyone but the commissioner of the drawings and the architect who drew them. The defendant's potential gain was negligible, but the harm to the victims was great. This case presents a similar situation.
24
Thus, the district court acted within its discretion in calculating the loss according to the face value of the bonds. The parties now agree, however, that it was error to add the future value of the interest coupons because no buyer would have paid for that benefit. Rather, the court should have calculated a premium for the bonds on the basis of the difference between the 11 7/8% yield these bonds carried and a prevailing interest rate on other investments. We remand for that computation.2
III
25
The second question presented is whether Daniels acted as an organizer or leader within the meaning of section 3B1.1(c). That section applies only when an offense is committed by more than one person who is criminally responsible for the commission of the offense. United States v. Anderson, 942 F.2d 606, 617 (9th Cir.1991) (en banc). Because the relevant facts are undisputed, we review de novo the district court's legal determination that Daniels' two lookouts were criminally responsible. See id. at 609.
26
The district court reasoned that Anderson required less than a showing that alleged participants had the intent to commit a substantive crime. The court stated:
27
As I remember the evidence, [Daniels] came [to the restaurant] for purposes of conducting criminal activity. He brought a couple of guys with him who were armed. They were there to watch, to give him protection. They were there at his instigation. I don't think ... they have to know the exact nature of the criminal activity in order to be supervisees. I think that it was enough that they were aware the criminal activity was afoot and that they were participating in it.
28
"[A]ll that Anderson stands for," the court said, "is [that] manipulating somebody who was innocent into helping you with a crime doesn't make you a supervisor."
29
We disagree with the district court's conclusion that these lookouts were criminally responsible supervisees. There is nothing in the record that would support a finding that either lookout could have been convicted of the substantive offense. We have sustained the conspiracy convictions of defendants who provided surveillance to a ringleader at the moment an illegal transaction occurred. See, e.g., United States v. Mares, 940 F.2d 455, 459 (9th Cir.1991). Here, however, there was no evidence that either man knew that Daniels was selling stolen bonds or counterfeit money, no inference therefore arises that they intended to aid that conspiracy. See United States v. Medina, 940 F.2d 1247, 1250 (9th Cir.1991). Similarly, that lack of knowledge destroys their potential liability on an aiding and abetting theory. See United States v. Vasquez-Chan, 978 F.2d 546, 552 (9th Cir.1992) (an aider and abettor must have "intentionally assisted in the venture's illegal purpose") (citations omitted). Finally, there was no evidence that either lookout "deliberately avoided learning the truth" about the purpose of the meeting between Daniels and the informant. See United States v. Jewell, 532 F.2d 697 (9th Cir.), cert. denied, 426 U.S. 951 (1976). A trier of fact could not have inferred that the lookouts knew that purpose without evidence of their deliberate ignorance. United States v. Chu, No. 92-50295, slip op. 2337, 2344 (9th Cir. Mar. 16, 1993).
30
Because on this record the two lookouts could not have been convicted of any crime, they were not criminally responsible under Anderson. As a result, the district court erred when it found that Daniels was an organizer or leader within the meaning of section 3B1.1(c).
31
VACATED AND REMANDED FOR RESENTENCING.
*
Honorable Alex Kozinski, Circuit Judge, sitting by designation
**
Honorable Jack E. Tanner, Senior United States District Judge for the Western District of Washington, sitting by designation
***
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
1
Joetski applied U.S.S.G. section 2F1.1, addressing fraud and deceit crimes, rather than section 2B1.1. That distinction is unimportant here. The commentary to section 2F1.1 directs courts to assess loss under that section in the same manner as in cases involving section 2B1.1. See section 2F1.1, comment. (n. 7)
2
Daniels suggests that a sentence imposed on the basis of the face value and interest due on the bonds violates due process, citing United States v. Walton, 908 F.2d 1289 (6th Cir.), cert. denied, 111 S.Ct. 532 (1990). Walton held merely that a court lacks authority to hold a defendant responsible for a specific quantity of drugs unless the court can determine that the defendant is more likely than not actually responsible for an amount greater than or equal to the specified quantity. See id. at 1302. That case is irrelevant here, for there is no dispute concerning the number of bonds that Daniels tried to sell. Moreover, the loss computation was not an arbitrary figure, but one taken from the face of the bonds themselves | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1560289/ | 945 A.2d 494 (2008)
107 Conn.App. 321
AFSCME, COUNCIL 4, LOCAL 1565
v.
DEPARTMENT OF CORRECTION et al.
No. 28320.
Appellate Court of Connecticut.
Argued January 15, 2008.
Decided April 29, 2008.
*496 J. William Gagne, Jr., West Hartford, with whom, on the brief, was Kimberly A. Cuneo, for the appellant (plaintiff).
Thomas P. Clifford III, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellees (defendants).
HARPER, LAVINE and BEACH, Js.
LAVINE, J.
The plaintiff, AFSCME, Council 4, Local 1565, appeals from the judgment of the trial court denying its application to vacate an arbitration award upholding the discharge of Eunice Smith from her employment with the defendant department of correction.[1] On appeal, the plaintiff claims that the court's denial of its application to vacate was improper because the arbitration award (1) exceeded the arbitrator's authority in violation of General Statutes § 52-418(a)(4) and (2) violated the clear public policy underlying General Statutes § 54-56e, the statute for the pretrial program for accelerated rehabilitation. We affirm the judgment of the trial court.
The following facts and procedural history are relevant to our resolution of the plaintiff's claim. On January 17, 2003, as the result of a police investigation into a complaint that Smith, a correction officer, had threatened to shoot a coworker for refusing to answer questions about a union related posting, Smith was arrested and *497 charged with making threats, breach of the peace and inciting injury to a person. On January 19, 2003, the police conducted a search of Smith's residence in order to confiscate a weapon registered to her. Due to the officers' discovery of a partially smoked marijuana cigarette and a pill bottle under Smith's bed, Smith was charged with possession of marijuana and drug paraphernalia.
On May 19, 2003, Smith told the captain conducting the defendant's investigation that she had accepted accelerated rehabilitation for the charges against her. On August 27 and September 17, 2003, the defendant held predisciplinary hearings on the matter. Through its investigation, the defendant found that Smith had been arrested and charged with threatening, inciting injury to persons, breach of the peace and possession of marijuana and drug paraphernalia. On November 6, 2003, Smith was dismissed from state service for on and off duty misconduct which violated administrative directive 2.17 of the parties' collective bargaining agreement.[2]
The plaintiff timely filed a grievance on behalf of Smith. After its grievance was denied, the plaintiff proceeded to arbitration. The plaintiff and the defendant were, at all relevant times, parties to a written collective bargaining agreement that provided for final and binding arbitration of disputes arising under the agreement. Attorney Susan E. Halperin of the state board of mediation and arbitration was appointed as the arbitrator. At the arbitration hearings, which were held on October 28, 2004, and January 28, 2005, the plaintiff submitted that Smith's dismissal was unjustified because the defendant had failed to substantiate the violence related claims of the complaining officer. The parties stipulated to the following unrestricted submission:[3] "Was the dismissal of [Smith] for just cause? If not, what shall the remedy be, consistent with the NP-4 contract?" Following the hearings, the arbitrator issued an award stating: "The grievance is denied. The dismissal of [Smith] was for just cause." The arbitrator's award included the following:
"[T]he evidence is clear that something occurred between the two officers over the issue of the distribution of the union material concerning [Smith]. The fact remains that the telephone contact by [Smith] with the other officer resulted in a series of events that led to [Smith]'s subsequent arrest and dismissal. . . . [Smith] was aware of the consequences related to her conduct and had full notice of the [defendant's] rules regarding such conduct. There is no question that the rules are related to the efficient operation of the department, especially in light of its mandates and mission. Although [Smith] claims that she accepted [accelerated rehabilitation] on [the] advice of her attorney, the fact that she asked the court for and was granted accelerated rehabilitation indicates that she accepted responsibility for the charges and assumes culpability. I find that fact to be substantial evidence of her violations before this arbitration. Based on the foregoing, I find that [Smith] was terminated for just cause, and the [defendant] met its burden of proof."
On November 9, 2005, the plaintiff filed an application to vacate the arbitration *498 award. In its application to vacate, the plaintiff offered the following reasons for vacatur: "The [arbitrator] exceeded [her] powers or so imperfectly executed them that a mutual, final and definitive award upon the subject matter was not made. . . . The arbitrator [is] guilty of misconduct by which the rights of the [union] have been prejudiced [and] [t]he award is against public policy." Following a hearing on November 21, 2006, the court denied the plaintiff's application to vacate. In its memorandum of decision, the court stated: "This court cannot find that it was an egregious misperformance of duty in violation of General Statutes § 52-418(a)(3) or (4). The court cannot correct errors of fact or law, substituting its judgment for the arbitrator's where the submission was unrestricted." This appeal followed.
We initially set forth the applicable standard of review. The standard of review relative to arbitration awards depends on the nature of the challenge. With a voluntary, unrestricted submission to an arbitrator, as is the case before us, the court may examine the submission and the award to determine only whether the award conforms to the submission. See Cheverie v. Ashcraft & Gerel, 65 Conn. App. 425, 430, 783 A.2d 474, cert. denied, 258 Conn. 932, 785 A.2d 228 (2001). "In making such a comparison when the submission is unrestricted, the court will not review the evidence or legal questions involved, but is bound by the arbitrator's legal and factual determinations." Id. "When the scope of the submission is unrestricted, the resulting award is not subject to de novo review even for errors of law so long as the award conforms to the submission." (Internal quotation marks omitted.) Saturn Construction Co. v. Premier Roofing Co., 238 Conn. 293, 304, 680 A.2d 1274 (1996).[4]
"Certain conditions do exist, however, under which we conduct a more searching review of arbitral awards. In Garrity v. McCaskey, 223 Conn. 1, 6, 612 A.2d 742 (1992), our Supreme Court reiterated that there are three grounds for vacating an award when the submission is unrestricted. These grounds arise when the award (1) rules on the constitutionality of a statute, (2) violates clear public policy or (3) contravenes one or more of the statutory proscriptions of General Statutes § 52-418." (Internal quotation marks omitted.) Cheverie v. Ashcraft & Gerel, supra, 65 Conn.App. at 430-31, 783 A.2d 474. "[A]n award that manifests an egregious or patently irrational application of the law is an award that should be set aside pursuant to § 52-418(a)(4) because the arbitrator has exceeded [his] powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made. We emphasize, however, that the manifest disregard of the law ground for vacating an arbitration award is narrow and should be reserved for circumstances of an arbitrator's extraordinary lack of fidelity to established legal principles." (Emphasis added; internal quotation marks omitted.) Id., at 438, 783 A.2d 474.
I
The plaintiff first claims that the court's denial of its application to vacate was improper *499 because the arbitrator exceeded her authority and imperfectly executed the award in violation of § 52-418(a)(4).[5] Specifically, the plaintiff argues that in rendering the arbitration award, the arbitrator relied on no findings of fact other than that Smith had accepted accelerated rehabilitation. According to the plaintiff, the arbitrator's impermissible reliance on Smith's acceptance of accelerated rehabilitation precluded her from making a mutual, final and definite award. We do not agree.
"In Garrity, [our Supreme Court] adopted the test enunciated by the United States Court of Appeals for the Second Circuit in interpreting the federal equivalent of § 52-418(a)(4). . . . The test consists of the following three elements, all of which must be satisfied in order for a court to vacate an arbitration award on the ground that the [arbitrator] manifestly disregarded the law: (1) the error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator; (2) the [arbitrator] appreciated the existence of a clearly governing legal principle but decided to ignore it; and (3) the governing law alleged to have been ignored by the arbitration panel is well defined, explicit, and clearly applicable." (Internal quotation marks omitted.) Alexson v. Foss, 276 Conn. 599, 614, 887 A.2d 872 (2006).
Upon application of these principles to the case before us, we conclude that the court properly denied the application to vacate the award. The plaintiff has failed to demonstrate the first Garrity element, which is that the arbitrator's alleged error was obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. First, contrary to the plaintiff's assertions, it is not clearly an error for an arbitrator to acknowledge and to consider that a grievant has accepted accelerated rehabilitation. Our careful review of § 54-56e, the accelerated rehabilitation statute,[6] and of the relevant case law leads us to conclude that an arbitrator, in rendering an arbitration award, is not prohibited from taking a grievant's acceptance of accelerated rehabilitation into account.
The plaintiff argues that because a plea of nolo contendere[7] must not *500 be attributed any evidentiary value, neither should a party's acceptance of accelerated rehabilitation be given any meaning for purposes of an arbitration award. We find that contention to be unpersuasive in light of our Supreme Court's holding that a plea of nolo contendere may be considered as evidence in an arbitration proceeding. In Groton v. United Steelworkers of America, 254 Conn. 35, 52, 757 A.2d 501(2000), our Supreme Court stated: "[A]lthough our jurisprudence traditionally has imposed limitations on the collateral effects to be given, in the civil and administrative litigation contexts, to a conviction based on a nolo plea, the private nature of voluntary arbitration strongly counsels against extending those limitations to the employment sphere governed by a voluntary arbitration clause. . . . In that realm, a conviction based on a plea of nolo contendere does not, in our view, necessarily carry the same set of limitations with it." In light of the foregoing, we conclude that the arbitrator's statement about Smith's accelerated rehabilitation would not be instantly and readily perceived as an error by the average person qualified to serve as an arbitrator.[8]
Moreover, contrary to the plaintiff's claim, the arbitrator clearly relied on findings other than Smith's acceptance of accelerated rehabilitation. The arbitrator explicitly referred to the fact that Smith's telephone contact with another officer led to her dismissal and that Smith "was aware of the consequences related to her conduct and had full notice of the [defendant]'s rules regarding such conduct." The arbitrator further stated: "The fact remains that the telephone contact by [Smith] with the other officer resulted in a series of events that led to [Smith's] subsequent arrest and dismissal."
Because the plaintiff has failed to demonstrate, pursuant to § 52-418(a)(4), that the award in question manifests an egregious or patently irrational application of the law, we conclude that the arbitrator did not exceed her powers or so imperfectly execute them that a mutual, final and definite award on the subject matter submitted was not made. Accordingly, our role is confined to reviewing the court's comparison of the submission with the award. "Arbitrators are only required to render an award in conformity to the submission and an award need contain no more than the actual decision of the arbitrators. An explanation of the means by which they reached the award, unless required by the submission, is needless and superfluous." Malecki v. Burnham, 181 Conn. 211, 213, 435 A.2d 13 (1980). "As long as the arbitrator rules within the parameters of the submission and provides the parties with a fair hearing, the award will not be set aside on judicial review." Bennett v. Meader, 208 Conn. 352, 363, 545 A.2d 553 (1988).
When the parties submitted the grievance to arbitration, they delegated to the arbitrator, by the submission agreement, the power to answer and award on the issue. By agreeing to an unlimited submission, the parties authorized the arbitrator to exercise her judgment *501 and discretion in rendering the award. "[A] party cannot object to an award which accomplishes precisely what the arbitrators were authorized to do merely because that party dislikes the results." American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 187, 530 A.2d 171 (1987). In this case, the award properly answered the submission. We therefore conclude that the court properly denied the plaintiff's application to vacate.
II
The plaintiff also claims that the court's denial of its application to vacate was improper because the arbitration award violated the public policy embodied by § 54-56e. Specifically, the plaintiff contends that permitting an arbitrator to draw an inference that acceptance into the pretrial program for accelerated rehabilitation constitutes guilt would have a chilling effect on the program and on the criminal justice system. We do not agree.
Review of an arbitration award on the basis of a public policy violation "require[s] a two-step analysis. . . ." State v. AFSCME, Council 4, Local 2663, AFLCIO, 59 Conn.App. 793, 797, 758 A.2d 387, cert. denied, 255 Conn. 905, 762 A.2d 910 (2000). "First, we must determine whether a clear public policy can be identified. Second, if a clear public policy can be identified, we must then address the ultimate question of whether the award itself conforms with that policy." Id. Accordingly, we look to whether each of the defendant's public policy claims satisfies this two step analysis.
In this case, the plaintiff claims that the award violates the public policy underlying § 54-56e, the pretrial accelerated rehabilitation statute, which provides, in relevant part: "The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state's attorney or prosecuting attorney with respect to a defendant (1) who, the court believes, will probably not offend in the future, (2) who has no previous record of conviction of a crime . . . (3) who has not been adjudged a youthful offender within the preceding five years . . . (4) who states under oath . . . that the defendant has never had such program invoked in the defendant's behalf. . . ." General Statutes § 54-56e(b). In support of its argument, the plaintiff asserts that the language of § 54-56e mandates that acceptance of accelerated rehabilitation may not be equated with an admission of guilt. We must first ask whether the plaintiff has identified a clear public policy.
The plaintiff insists that § 54-56e "appears to imply that the individual [who applies for accelerated rehabilitation] may not be responsible for the charges and [may] not [be] guilty of the offense." We cannot endorse this interpretation. Our Supreme Court has described one who chooses accelerated rehabilitation as "a person who may be guilty of the offense charged but whom the legislature has declared a worthy candidate for a second chance." State v. Parker, 194 Conn. 650, 658, 485 A.2d 139 (1984). Furthermore, our review of the relevant case law produces no clear public policy prohibiting arbitrators from considering a party's acceptance of accelerated rehabilitation.
In State v. Fanning, 98 Conn.App. 111, 908 A.2d 573 (2006), cert. denied, 281 Conn. 904, 916 A.2d 46 (2007), this court defined accelerated rehabilitation as "a statutory alternative to the traditional course of prosecution available for some defendants and totally dependent upon the trial court's discretion." (Internal quotation marks omitted.) Id., at 116, 908 A.2d 573. Additionally, "a dismissal pursuant to the Connecticut accelerated pretrial rehabilitation *502 program is not a termination in favor of the accused for purposes of a civil rights suit." Roesch v. Otarola, 980 F.2d 850, 853 (2d Cir.1992). In sum, "[t]he only right that the defendant may earn under the accelerated rehabilitation statute is the right to a dismissal of the charges against him, a right that is expressly conditioned on satisfactory completion of the period of probation." State v. Parker, supra, 194 Conn. at 658, 485 A.2d 139.
We conclude that the arbitrator's drawing an inference from Smith's acceptance of accelerated rehabilitation did not violate any clear public policy. Moreover, as noted, the arbitrator set forth an independent basis for her ruling. Consequently, we uphold the court's denial of the plaintiff's application to vacate the arbitration award.
The judgment is affirmed.
In this opinion the other judges concurred.
NOTES
[1] We refer to the department of correction as the defendant. The other defendants in this action are the office of the attorney general and the board of mediation and arbitration of the department of labor.
[2] Administrative directive 2.17 provides in pertinent part: "The following behavior shall be strictly prohibited: 1. Any act that jeopardizes the security of the unit, health, safety, or welfare of the public, staff or inmates. . . . 3. Unauthorized possession of non-department issued firearms or other weapons while on duty or state property. . . . 11. Engag[ing] in unprofessional or illegal behavior, both on and off duty, that could in any manner reflect negatively on the Department of Correction."
[3] In this case, the plaintiff does not dispute that the submission was unrestricted.
[4] Recognizing that arbitration awards are reviewed narrowly in other jurisdictions, our Supreme Court has noted that "[a] mistake which will vitiate or invalidate an award must be gross and manifest to the point of showing bad faith or failure to exercise honest judgment. . . ." (Citation omitted; internal quotation marks omitted.) Garrity v. McCaskey, 223 Conn. 1, 10, 612 A.2d 742 (1992), quoting Baltimore v. Allied Contractors, Inc., 236 Md. 534, 546, 204 A.2d 546 (1964).
[5] General Statutes § 52-418(a) provides in relevant part: "Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides . . . shall make an order vacating the award if it finds any of the following defects: (1) if the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause . . . or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made." (Emphasis added.)
[6] General Statutes § 54-56e(b) provides in relevant part: "The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state's attorney or prosecuting attorney with respect to a defendant (1) who, the court believes, will probably not offend in the future, (2) who has no previous record of conviction of a crime . . . (3) who has not been adjudged a youthful offender within the preceding five years . . . (4) who states under oath . . . that the defendant has never had such program invoked in the defendant's behalf. . . ."
[7] A plea of nolo contendere is a declaration by the accused that he will not contest the charge. Its inconclusive and ambiguous nature dictates that it should be given no currency beyond the particular case in which it was entered. Lawrence v. Kozlowski, 171 Conn. 705, 712 n. 4, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977).
[8] Likewise, we do not conclude that the arbitrator "appreciated the existence of a clearly governing principle but decided to ignore it," which is the second prong of the Garrity test, or that the governing law alleged to have been ignored is "well defined, explicit, and clearly applicable," which is the third prong. Saturn Construction Co. v. Premier Roofing Co., supra, 238 Conn. at 305, 680 A.2d 1274. As discussed in part II, although the accelerated rehabilitation statute serves the salutary purpose of permitting persons accused of crimes to avoid convictions, there is no clear legal principle preventing arbitrators from drawing adverse inferences from the fact that someone has utilized accelerated rehabilitation. | 01-03-2023 | 10-30-2013 |
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