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https://www.courtlistener.com/api/rest/v3/opinions/478721/ | 804 F.2d 148
256 U.S.App.D.C. 150
Edgar M. SKINNER, Appellant,Esther Skinner,v.AETNA LIFE AND CASUALTY.
No. 85-5616.
United States Court of Appeals,District of Columbia Circuit.
Argued Jan. 29, 1986.Decided Oct. 31, 1986.
Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 83-0679).
Jerome P. Friedlander, II, Arlington, Va., for appellant.
Thomas M. Hogan, Washington, D.C., for appellee.
Before BORK and BUCKLEY, Circuit Judges, and WRIGHT, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge BUCKLEY.
BUCKLEY, Circuit Judge:
1
Appellant, Edgar Skinner, seeks damages for the termination of a life and health insurance policy issued by the appellee, Aetna Life Insurance Company ("Aetna"). Based on the record, the district court found that Mr. Skinner's answer to a question in the insurance application form was objectively false and (paraphrasing the language of section 35-414 of the District of Columbia Code) that it "related to a material matter which affected the risk undertaken by the insurer." The court concluded that these findings were sufficient "to defeat a claim under the policy even if the misrepresentation was unintentional" and granted Aetna's motion for summary judgment. Appellant seeks review of this conclusion.
2
Appellant argues that qualifying language contained in the insurance application form--"[t]he foregoing statements and answers are true and complete to the best of my knowledge and belief"--required the application of a subjective test in determining whether the statement was false within the meaning of section 35-414. Given the qualifying language, we conclude the appropriate test of the truth or falsity of Mr. Skinner's statement is whether he in fact believed his answer to be true and, if so, whether that belief can be reconciled with the facts within his knowledge. We find that Mr. Skinner's answer fails that test. The contrast between his stated belief and the conclusions compelled by the facts he knew was such as to require a finding that his answer was false as a matter of law. Accordingly, we affirm the district court's grant of summary judgment.
I.
3
Edgar Skinner was president of The Presidential Yacht Trust, an organization that chartered and operated the former presidential yacht Sequoia. On July 30, 1981, he applied for enrollment in the Aetna group life and health insurance plan in effect for employees of the Trust. Question 14c of the enrollment form asked:
4
During the past 5 years, have you been treated for any sickness, disease or injury, or had any departures from good health not stated elsewhere on this application?
5
Mr. Skinner's answer was "No."
6
Contrary to what that answer suggests, his medical history reveals repeated calls for medical attention. During the year prior to his application, Mr. Skinner sought medical assistance a number of times for severe chest pains, breathing difficulties, and other complaints. In the course of his examinations, he was required to have chest X-rays, a tomogram of the left lung, stress EKG's, and a lung scan. In addition, Mr. Skinner had been suffering from alcohol-related problems since 1976, had attended Alcoholics Anonymous briefly, and in the period prior to his enrollment, his drinking had reached a point where once or twice a week he "drank out of control."
7
Soon after the issuance of the policy, while hospitalized for the treatment of alcoholism, medical tests revealed that Mr. Skinner was suffering from bacterial endocarditis--a condition affecting the lining of the heart. Mr. Skinner's condition continued to worsen throughout the latter part of 1981. In January 1982, when it was determined that heart-valve surgery was necessary, Aetna refused to acknowledge insurance coverage. Shortly thereafter, Aetna terminated the policy on the ground that it was void or voidable because of material misrepresentations of fact. Appellant and his wife (who did not join in the appeal) brought this action for damages related to Aetna's denial of insurance coverage.
II.
8
In granting Aetna's motion for summary judgment, the district court relied on section 35-414 of the District of Columbia Code, which provides:
9
The falsity of a statement in the application for any policy of insurance shall not bar the right to recovery thereunder unless such false statement was made with intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the company.
10
D.C.Code Ann. Sec. 35-414 (1981).
11
The statute sets forth a two-tiered test whereby insurance coverage may be barred. First, the statement must be false. Second, the false statement must have been made with an intent to deceive or must materially affect the acceptance of the risk or hazard assumed by the company.
12
In examining the first tier of this test, the district court did not address the question of Mr. Skinner's knowledge and belief. Instead, it limited its inquiry to a determination of whether he had in fact experienced "any departures from good health" during the prior five years. The court concluded that his response to question 14c was "undeniably false in light of his prolonged history of serious medical problems." "These problems," the court noted, "were well within a reasonable man's interpretation of the application's question seeking information as to treatment 'for any sickness, disease, or ... departures from good health.' "
13
On addressing the second tier, the court concluded that because his false statement "materially affected either the acceptance of the risk or the hazard assumed by the company," it need not determine whether Mr. Skinner intended to deceive Aetna. This finding was based on uncontradicted evidence that Aetna would not have issued a policy to a person with Mr. Skinner's medical history and alcohol-related problems. Because its determination that the statement was both false and material was "sufficient to defeat a claim under the policy even if the misrepresentation was unintentional" (citation omitted), the district court held that Aetna was entitled to judgment as a matter of law. 607 F.Supp. 403 (1985).
14
Appellant argues that the district court's finding that his answer to question 14c was false must be rejected because the court erred in applying an objective test to the inquiry. Appellant contends that each of the questions in the form is qualified by its concluding sentence:
15
THE FOREGOING STATEMENTS AND ANSWERS ARE TRUE AND COMPLETE TO THE BEST OF MY KNOWLEDGE AND BELIEF.
16
(Capital letters in the original). This language, he asserts, establishes a subjective standard, requiring a court to determine not what a "reasonable man" might believe, but what he believed; and as belief is a subjective matter, only the trier of fact may determine the credibility of an individual asserting a belief.
17
Appellant contends that because, on a motion for summary judgment, the evidence must be taken in the light most favorable to him, the district court was required to take his statement of belief as true; therefore, the court erred in granting Aetna's motion for summary judgment based on a finding that the statement was false as a matter of law.
III.
18
Section 35-414 is typical of statutes that "are designed to relieve against the rigorous consequences of the common-law rules as to warranties and misrepresentations concerning insurance, particularly if made in good faith with no intent to deceive and in relation to a matter which does not increase the risk or contribute to the loss." 43 Am.Jur.2d Insurance Sec. 1034 (1982). While section 35-414 and other similar statutes assure the insured of certain basic protections, they do not preclude the parties to an insurance contract from entering into an agreement "more favorable to the insured than the statute prescribes." Id.; see also Sterling Insurance Co. v. Dansey, 195 Va. 933, 81 S.E.2d 446, 451 (1954) (The insurer "could and did make a more favorable agreement with the insured than the statute prescribed"; when answers are qualified by the proviso that they be true to the best of the applicant's knowledge and belief, "an incorrect statement innocently made in the belief of its truth will not void the policy.").
19
In the case before us, Aetna chose to include language in its group insurance enrollment form that had the effect of shifting the focus, in a determination of the truth or falsity of an applicant's statement, from an inquiry into whether the facts asserted were true to whether, on the basis of what he knew, the applicant believed them to be true. Thus Mr. Skinner's answer must be assessed in the light of his actual knowledge and belief. See Jones v. Reliance Ins. Co., 607 F.2d 1, 4-5 (D.C.Cir.1979) (inquiry into an insurance applicant's knowledge and understanding of the truth required where individual questions prefaced with the language, "[t]o the best of your knowledge and belief").
20
Applicant contends that the critical facts of this case cannot be resolved as a matter of law because they depend on the credibility of his assertion that when he applied for enrollment in the Aetna plan, he indeed believed that he had not received treatment for any sickness or disease, nor had experienced any departures from good health, during the prior five years. Summary judgment is inappropriate, he concludes, because the case presents "an issue as to a material fact [that] cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility." Hackley v. Roudebush, 520 F.2d 108, 159 (D.C.Cir.1975).
21
We agree with appellant that the phrase "to the best of your knowledge and belief" is controlling in a determination of what is or is not a false statement within the meaning of section 35-414. We also agree that a nonmoving party is entitled to the benefit of all favorable inferences that may be drawn from the evidence. Rodway v. United States Department of Agriculture, 482 F.2d 722, 727 (D.C.Cir.1973). We cannot agree, however, with appellant's apparent contention that by its very nature, a statement based on knowledge and belief is so subjective that it can never be found false as a matter of law.
22
Appellant bases his contention on the following analysis:
23
When the insurance company asked Mr. Skinner to answer "to the best of your knowledge and belief, have you had any departures from good health," the insurance company placed the resolution of that question into the subjective framework of Mr. Skinner's understanding and belief. It is not an objective standard.
24
Appellant's Brief at 17 (emphasis in the original). The fallacy of his argument is reflected in his attempt to equate "knowledge and belief" with "understanding and belief." The latter might well support a standard in which the subjective understanding of an applicant for an insurance policy will prove conclusive. The language before us, however, refers to knowledge as well as belief. What an applicant knows can be determined, and the conclusions that knowledge compels can be assessed.
25
Judge Bork and I believe the use of the twin qualifiers requires that knowledge not defy belief. In our view, the test to be applied in this case is clear. What the applicant in fact believed to be true is the determining factor in judging the truth or falsity of his answer, but only so far as that belief is not clearly contradicted by the factual knowledge on which it is based. In such event, a court may properly find a statement false as a matter of law, however sincerely it may be believed. To conclude otherwise would be to place insurance companies at the mercy of those capable of the most invincible self-deception--persons who having witnessed the Apollo landings, still believe the moon is made of cheese.
26
On the other hand, the third member of our panel, Senior Judge Wright, believes this test gives undue weight to the word "knowledge" which, he feels, cannot be isolated from the phrase of which it is an integral part. In his view, the phrase "to the best of my knowledge and belief" is merely legal shorthand signifying that the parties have chosen a subjective test for the truthfulness of prior representations. By the same token, he acknowledges that a person's belief may be so unreasonable and out of step with reality that to submit the question to a jury would expose the opposing party to manifest injustice. Judge Wright feels, however, that the facts of this case draw into serious question the actual belief of the appellant at the time of his representation to Aetna. As a consequence, he believes that the limited form of objective review set out in Dewey v. Clark, 180 F.2d 766 (D.C.Cir.1950), should control here, and that this case is not the best vehicle for the establishment of a summary judgment doctrine testing the reasonableness of belief. (In Dewey, the court found that summary judgment is inappropriate for factual issues "unless the evidence on one or the other hand is too incredible to be accepted by reasonable minds or is without legal probative force even if true...." Id. at 772.)
27
Perhaps Judge Bork and I need not have searched out the element that provides a basis for that limited form of objective review. Be that as it may, the three of us are in full agreement that the facts of this case justify the grant of summary judgment in Aetna's favor.
28
Those facts, as confirmed by Mr. Skinner's medical records and the uncontradicted depositional testimony of his doctors, may be summarized as follows: During the year preceding July 30, 1981 (the date on which he signed the insurance enrollment application), Mr. Skinner had sought medical attention on repeated occasions for severe chest pains ("felt like a hot iron") and other problems. Over an eight-day period ending only two weeks before he signed the application, he visited a doctor four times with complaints about persistent pains in his chest, pains in his abdomen, left shoulder and lung, and difficulty in breathing.
29
The medical records and testimony also reveal a history of alcohol-related problems dating back to the fall of 1976. According to the doctor who began treating him for alcoholism within a month of his enrollment in the Aetna plan, Mr. Skinner acknowledged that his drinking had increased to the point where "he said 2 or 3 times a week--and this was his quote, 'I get smashed.' " (Record excerpts at 151, 152).
30
Appellant states that he did not consider that the chest pains and other complaints represented a "departure from good health" because he attributed them to a hiatal hernia and a bout of pleurisy, both of which he considered to be minor ailments. In explaining his failure to make any reference to his alcohol-related problems, appellant cited medical testimony to the effect that it is characteristic of alcoholics to deny their condition.
31
Whatever the explanation, and whatever interpretation Mr. Skinner may have chosen to place on the medical facts, he does not deny that he had knowledge of them. Given the inescapable implications of those facts, we arrive at the same conclusion reached by the district court, and essentially for the same reason. We find that Mr. Skinner's statement of belief was in such direct conflict with human experience as to make it false as a matter of law; and as the statement materially affected Aetna's acceptance of the risk, we conclude the district court was correct in holding the policy void under section 35-414.
32
Accordingly, the court's grant of the motion for summary judgment is
33
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2459926/ | 258 P.3d 1239 (2011)
350 Or. 573
CRAFTS AND CRAFTS
(S059393).
Supreme Court of Oregon.
August 18, 2011.
Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2584373/ | 63 N.Y.2d 396 (1984)
Two Guys from Harrison-N.Y., Inc., Appellant,
v.
S.F.R. Realty Associates et al., Respondents. Grace Retail Corporation, Additional Defendant on Counterclaims, and Vornado, Inc., Additional Appellant on Counterclaims.
Court of Appeals of the State of New York.
Argued October 9, 1984.
Decided November 20, 1984.
Donald S. Snider and Gerald M. Levine for appellants.
M. William Scherer for respondents.
Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
*399Chief Judge COOKE.
The question presented on this appeal is whether a tenant has the right to make substantial changes to the demised premises. Such a right may arise from statute or contract. When, however, the instrument governing the tenancy prohibits such alterations, the tenant may not proceed under either authority.
*400The individual respondents are the holders of a reversionary interest in property located in New Hyde Park which is under a long-term land lease that was originally executed by the predecessor in interest to respondent S.F.R. Realty Associates. Initially, an "anchor building" of 100,000 square feet in a shopping center was leased to W.T. Grant Company, which subsequently sold its interest to petitioner in 1976.
At the end of 1981, petitioner exercised an option to close its store. It vacated the premises in early 1982 and began looking for a suitable subtenant for all or part of the building. It eventually reached an agreement with Grace Realty Corporation, which was to sublease approximately 51% of the floor area for use as a "Channel Home Center" store. To accommodate the sublessee, petitioner made substantial nonstructural changes inside and proposed four exterior changes: (1) extending an existing sign canopy, which would require piercing the roof's waterproofing membrane; (2) adding decorative brick fascia to the I-beams that would support the canopy extension; (3) installing a new ingress/egress door and a related glass front; and (4) adding a loading door at the rear of the building. It is obvious that these constituted substantial structural modifications. When petitioner gave notice of its intent to make these alterations, however, S.F.R. Realty objected and declared that they would violate the terms of the lease. Petitioner commenced this special proceeding, claiming that it had both a statutory and contractual right to make the proposed changes.
The essence of this controversy has its genesis in the law against waste. At common law, a tenant's only right was to make use of property; a right to alter the property did not arise unless the landlord expressly permitted it (see Agate v Lowenbein, 57 N.Y. 604, 607-608). This principle was applied even when the tenant could not economically maintain the property without the change and the alteration would have increased the property's value (see Brokaw v Fairchild, 135 Misc 70, affd no opn 231 App Div 704, affd no opn 256 N.Y. 670). The Legislature long ago acted to ameliorate the harsh effects of this doctrine (L 1937, ch 165), which effort is now codified in RPAPL 803. That *401 statute sets forth certain conditions under which a tenant for life or for years may alter the property over the objections of any owner of a future interest. In brief, the tenant must establish that a prudent owner would make the same change, which will not reduce the market value of the future interests and does not violate any contract regulating the tenant's conduct. In addition, the tenancy must be expected to continue for more than five years, and written notice of the intention to make the alteration must be given. Finally, the owner of a future interest may obtain security that the proposed alteration will be completed.[1]
Petitioner asserted two grounds for its right to make the proposed changes to the building. First, it contended that the lease either expressly permitted the changes or was silent on the issue. Paragraph 6(a) authorized petitioner to "make any interior non-structural alterations, additions *402 and improvements * * * which it may deem necessary or desirable provided Tenant does not thereby weaken the structure of the building" and "provided it does not interfere with the quiet enjoyment of other tenants, [to] remove all or any part of any wall of any building * * * to afford entrance to or connection with improvements on adjoining premises * * *".[2] Petitioner secondly argued that, as a concomitant of its contractual right under Paragraph 12 to sublet or subdivide the premises, it was empowered to make exterior, structural changes.
Neither of the lower courts expressly addressed petitioner's second contention. The trial court concluded that petitioner satisfied the conditions of RPAPL 803 (subd 1) and was entitled to make the proposed exterior alterations. In reaching its determination, the court found the lease to be "silent and nonprohibitive" with respect to the proposed exterior alterations. The Appellate Division unanimously reversed on the reasoning that the express permission to undertake certain alterations granted in Paragraph 6(a) must be interpreted to implicitly prohibit all other alterations. This court now affirms.
Much of petitioner's argument before this court relies on the breadth that it proposes should be accorded to the Legislature's liberalization of the law of waste. This question would be especially pertinent if the controversy were focused on paragraphs a or b of RPAPL 803 (subd 1). Inasmuch as this statutory issue can be resolved on the basis that the lease prohibited the proposed alterations so as to preclude satisfying paragraph c, it is unnecessary to *403 decide the scope of the Legislature's amendment of the common law.
RPAPL 803 (subd 1, par c) permits a "proposed alteration or replacement [that] is not in violation of the terms of any agreement or other instrument regulating the conduct of the owner of the estate for life or for years or restricting the land in question". Applying this provision obviously calls for an interpretation of petitioner's contract. Under the present circumstances, this presents a question of law which this court may consider free of the lower courts' determinations (see West, Weir & Bartel v Mary Carter Paint Co., 25 N.Y.2d 535). In construing a contract, one of a court's goals is to avoid an interpretation that would leave contractual clauses meaningless (see Corhill Corp. v S. D. Plants, Inc., 9 N.Y.2d 595, 599; Muzak Corp. v Hotel Taft Corp., 1 N.Y.2d 42, 46).
Paragraph 6(a) of the lease was the only provision of that contract discussing alterations to the building. Its title "ALTERATIONS, WALLS, Etc." indicates that it was intended to be a comprehensive treatment of that subject. Having been prepared by petitioner's predecessor in interest, it is construed against the tenant (see 151 West Assoc. v Printsiples Fabric Corp., 61 N.Y.2d 732, 734). Critically, Paragraph 6(a) omitted any reference to exterior structural alterations. The section expressly authorized two types of modifications: interior, nonstructural alterations, and removing walls to permit access to improvements on adjoining premises. In neither case did these authorize making structural changes to afford access between petitioner's premises and the parking lot. The first clearly did not apply to the exterior structural changes at issue here.[3] The latter provision, viewed in context, must be read as concerning alterations to provide direct access from petitioner's building to the portions of the shopping center occupied by other tenants, not to the parking lot.
Thus, it must be determined whether the lease, prepared by the tenant, prohibited the changes proposed by petitioner. In considering this problem, guidance is provided *404 by the doctrine of "inclusio unius est exclusio alterius," an applicable maxim when interpreting contracts (see Woodmere Academy v Steinberg, 41 N.Y.2d 746, 750). Under all the circumstances here, the specification of certain permitted activities in Paragraph 6(a) should be read as implicitly prohibiting other alterations.
Petitioner also posits that it was empowered to make external structural changes as a concomitant to its contractual right to sublet or subdivide granted in Paragraph 12 of the lease, relying on a single New York case (Klein's Rapid Shoe Repair Co. v Sheppardel Realty Co., 136 Misc 332, affd no opn 228 App Div 688) and a number of out-of-State decisions (Sherwood Med. Inds. v Building Leasing Corp., 527 S.W.2d 407 [Mo App]; Fair West Bldg. Corp. v Trice Floor Coverings, 394 S.W.2d 707 [Tex Civ App]; Turman v Safeway Stores, 132 Mont. 273; Sparkman v Hardy, 223 Miss 452; Spring St. Realty Co. v Trask, 126 Cal App 765; Mayer v Texas Tire & Rubber Co., 223 S.W. 874 [Tex Civ App]; Kresge v Maryland Cas. Co., 154 Wis 627). These decisions support petitioner's argument only in the general sense that they recognize a power to make alterations as inherent in the right to sublet and subdivide. Only two, however, involved situations where the tenant was attempting to make structural or permanent changes, especially to an exterior wall (see Turman v Safeway Stores, supra; Spring St. Realty Co. v Trask, supra). In each instance, the courts relied on other lease provisions concerning alterations to justify a right in the tenant to make the challenged substantial modifications.
The sounder approach is to accept petitioner's basic premise that a right to sublet or subdivide implicitly includes a power to make alterations but recognize that Paragraph 6(a) was intended to describe the nature and scope of changes that could be made. The foremost feature recommending this analysis is that it would avoid rendering Paragraph 6(a) meaningless. Under petitioner's interpretation, Paragraph 12 gave it a broad power to alter the premises as it deemed necessary for subletting. As a prohibitive clause, however, Paragraph 6(a) would be meaningless if not given effect here because all the conduct it restricts could be freely pursued under Paragraph 12.
*405This court has previously recognized that, generally, a contract which expressly permits an activity will not be construed to prohibit other conduct necessary to carrying out that activity. "[S]ince the covenant permits the conduct of the business itself, the conclusion is almost inescapable that it permits whatever is customarily and necessarily incidental thereto. We may not construe the covenant as prohibiting in one subdivision that which it expressly sanctions in another" (Premium Point Park Assn. v Polar Bar, 306 N.Y. 507, 511). In Polar Bar, a refreshment stand was held to have an incidental right to maintain a parking lot, notwithstanding a restrictive covenant to the contrary, when the stand was located in an area not readily available to pedestrian traffic and 90% of the customers (which could reach 1,000 per day) arrived by car. In contrast, the record here does not demonstrate that petitioner's power to sublet or subdivide 100,000 square feet will be practically defeated if it is not allowed to make structural changes to the exterior wall, as opposed to being limited to erecting partitions and making other interior, nonstructural changes.
Petitioner has failed to establish either that the lease did not prohibit the proposed alterations or that it permitted them. As such, it has no right to make these modifications under RPAPL 803 or the contract.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.
NOTES
[1] In its entirety, the statute provides:
"§ 803. Alterations or replacements of structures by person having estate for life or years.
"1. When a person having an estate for life or for years in land proposes to make an alteration in, or a replacement of a structure or structures located thereon, then the owner of a future interest in such land can neither recover damages for, nor enjoin the alteration or replacement, if the person proposing to make such alteration or replacement complies with the requirements hereinafter stated as to the giving of security and establishes the following facts:
"a. That the proposed alteration or replacement is one which a prudent owner of an estate in fee simple absolute in the affected land would be likely to make in view of the conditions existing on or in the neighborhood of the affected land; and
"b. That the proposed alteration or replacement, when completed, will not reduce the market value of the interests in such land subsequent to the estate for life or for years; and
"c. That the proposed alteration or replacement is not in violation of the terms of any agreement or other instrument regulating the conduct of the owner of the estate for life or for years or restricting the land in question; and
"d. That the life expectancy of the owner of the estate for life or the unexpired term of the estate for years is not less than five years; and
"e. That the person proposing to make such alteration or replacement, not less than thirty days prior to commencement thereof, served upon each owner of a future interest, who is in being and ascertained, a written notice of his intention to make such alteration or replacement, specifying the nature thereof, which notice was served personally or by registered mail sent to the last known address of each such owner of a future interest.
"2. When the owner of a future interest in the affected land demands security that the proposed alteration or replacement, if begun, will be completed and that he be protected against responsibility for expenditures incident to the making of the proposed alteration or replacement, the court in which the action to recover damages or to enjoin the alteration or replacement is pending, or if no such action is pending, the supreme court, on application thereto, on such notice to the interested parties as the court may direct, shall fix the amount and terms of the security reasonably necessary to satisfy such demand. The furnishing of the security so fixed shall be a condition precedent to the making of the proposed alteration or replacement.
"3. This section applies only to estates for life or for years created on or after September 1, 1937."
[2] The complete text of Paragraph 6(a) provided: "The Tenant at its own expense may from time to time during the term of the lease make any interior non-structural alterations, additions and improvements in, on and to Parcel No. 1 of the demised premises which it may deem necessary or desirable provided Tenant does not thereby weaken the structure of the building on the demised premises but it shall make them in a good and workmanlike manner and in accordance with all valid municipal and State requirements applicable thereto. The Tenant may, provided it does not interfere with the quiet enjoyment of other tenants, remove all or any part of any wall of any building standing on the demised premises to afford entrance to or connection with improvements on adjoining premises, and in the event of such removal of walls then, if requested in writing by the Landlord at least ninety (90) days before the expiration of the term, or of any extension thereof should the term be extended, the Tenant at its expense shall restore said wall so far as practicable to its former condition. All salvage from such work shall belong to the Tenant but all permanent improvements (except as otherwise herein provided) shall belong to the Landlord and become part of the premises subject to the lease."
[3] Petitioner's argument that "interior non-structural alterations, additions and improvements" refers to two different activities "interior non-structural alterations" and "additions and improvements" is unsound and can be summarily dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459934/ | 260 P.3d 408 (2011)
OTAK NEVADA, LLC, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK, and The Honorable Douglas Smith, District Judge, Respondents, and
Pacificap Construction Services, LLC; Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; Jason Q. Rennaker; Cheyenne Apartments PPG, LP; and Christopher Watkins, Real Parties in Interest.
No. 56065.
Supreme Court of Nevada.
September 8, 2011.
*409 Weil & Drage, APC, and Jean A. Weil and Thomas A. Larmore, Las Vegas, for Petitioner.
Thagard, Reiss & Brown, LLP, and Thomas Friedman, Las Vegas, for Real Party in Interest Pacificap Construction Services, LLC.
Lewis Brisbois Bisgaard & Smith LLP and Mark J. Brown and Josh C. Aicklen, Las Vegas, for Real Parties in Interest Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; Jason Q. Rennaker; and Cheyenne Apartments PPG, LP.
Lewis & Roca LLP and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas; Simon Law Office and Daniel S. Simon, Las Vegas, for Real Party in Interest Christopher Watkins.
BEFORE SAITTA, C.J., HARDESTY and PARRAGUIRRE, JJ.
OPINION
By the Court, HARDESTY, J.:
In this extraordinary writ proceeding, we must determine whether NRS 11.259(1) compels dismissal where the initial pleading in an action alleging nonresidential construction malpractice was served without filing the attorney affidavit and expert report required by NRS 11.258(1) and (3). We take this opportunity to extend our analysis and holding in Fierle v. Perez, 125 Nev. ___, ___, 219 P.3d 906, 914 (2009) (interpreting NRS 41A.071's expert affidavit requirement in medical malpractice actions) to apply to a defective pleading served in violation of NRS 11.258. Such a pleading is void ab initio and of no legal effect and, thus, cannot be cured by amendment. Therefore, because the initial pleadings[1] served by certain real parties in interest in this case did not include the attorney affidavit and expert report as required by NRS 11.258, those pleadings were void ab initio, and the district court did not have discretionary authority to allow the parties to amend their pleadings to cure their failure to comply with NRS 11.258. Accordingly, we conclude that writ relief is warranted.
FACTS AND PROCEDURAL HISTORY
This wrongful death and personal injury matter arose out of claims for damages allegedly caused by a defect in street improvements to Cheyenne Avenue in Las Vegas. A vehicle operated by someone who is not a party to this writ proceeding was driving on Cheyenne when it ran into a median and collided with oncoming traffic, killing the driver of the other car and injuring the passenger, real party in interest Christopher Watkins. The decedent's family and Watkins filed suit against the parties involved in the construction project, including the other real parties in interest.
In September 2009, real party in interest Pacificap Construction Services, LLC (PCS), the general contractor, filed a third-party complaint against petitioner Otak Nevada, LLC, the design architect, alleging claims for negligence, breach of contract, breach of express and implied warranties, implied indemnity, express indemnity, equitable indemnity, contribution, and apportionment, and seeking declaratory relief, related to *410 Otak's work on the Cheyenne Avenue construction project that led to the fatal automobile collision. The third-party complaint was served on Otak on September 21, 2009. However, no attorney affidavit or expert report was included with the third-party complaint or filed with the district court before the complaint's service on Otak as required by NRS 11.258. Before Otak filed a responsive pleading, in January 2010, PCS filed an amended third-party complaint that did not include allegations of breach of express or implied warranties, or claims for implied or express indemnity. The amended third-party complaint included for the first time an affidavit from PCS's attorney in which he stated that the claim had a reasonable basis in fact and law, and it also included an expert report opining that Otak's engineering services fell below the standard of care.
Otak filed a motion to dismiss PCS's amended third-party complaint on the grounds that the affidavit and report were not filed concurrently with or before the original third-party complaint, as required by NRS 11.258. Citing this court's holding in Fierle, 125 Nev. at ___, 219 P.3d at 914 (holding that a medical malpractice complaint filed without the statutorily required expert report is void and cannot be amended), Otak argued that the third-party complaint was void ab initio. The district court conducted a hearing and denied Otak's motion, stating that the holding in Fierle applied only to medical malpractice cases.
After the district court denied Otak's motion to dismiss, real parties in interest Pacificap Properties Group, LLC; Pacificap Holdings XXIX, LLC; Chad I. Rennaker; and Jason Q. Rennaker (collectively, P & R) filed a motion for leave to amend their answer and assert cross-claims against Otak. Similar to its motion to dismiss PCS's amended third-party complaint, Otak opposed P & R's motion to amend for failure to file the required attorney affidavit and expert report and argued that the cross-claim was void ab initio under Fierle. The district court conducted a hearing on this motion as well and granted P & R's motion to amend, and the court further found that P & R could rely on PCS's expert report instead of filing its own expert report. The district court also orally concluded that, based on its ruling that P & R could rely on PCS's expert report, Watkins[2] could also rely on PCS's expert report in amending his complaint against Otak. Otak now petitions this court for writ relief.[3]
DISCUSSION
In its petition, Otak maintains that the district court erred by ruling that PCS's and P & R's pleadings were not void when those parties failed to file an affidavit and expert report, as required by NRS 11.258(1) and (3). This argument raises an issue of first impression in Nevada: Is a construction design malpractice pleading void ab initio if the statutorily required attorney affidavit and expert report are not filed with the court before the initial pleading is served? Because the determination of this issue is not fact-bound and it involves an unsettled question of law that is likely to recur, and because this case is in the early stages of litigation and resolving this question now promotes judicial economy, we conclude that our consideration of this writ petition is warranted. See County of Clark v. Upchurch, 114 Nev. 749, 753, 961 P.2d 754, 757 (1998) (concluding that addressing an issue was appropriate because it would "likely rise again and its resolution might forestall future litigation"); NRS 34.330 (recognizing that a writ of mandamus is available only when no adequate legal remedy exists); International Game Tech. v. Dist. Ct., 124 Nev. 193, 197-98, 179 P.3d 556, 559 (2008) (noting that the right to appeal from a future final judgment is not always an adequate legal remedy precluding writ relief, such as when the case is at early stages of litigation and writ relief would promote policies of sounds judicial administration); Buckwalter v. Dist. Ct., 126 Nev. ___, ___, 234 P.3d 920, 921 (2010) (recognizing *411 that while "[n]ormally, this court will not entertain a writ petition challenging the denial of a motion to dismiss[,] we may do so where . . . the issue is not fact-bound and involves an unsettled and potentially significant, recurring question of law").
This court has original jurisdiction to issue writs of mandamus. Nev. Const, art. 6, § 4. "A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion." We the People Nevada v. Secretary of State, 124 Nev. 874, 879, 192 P.3d 1166, 1170 (2008).
The district court based its orders denying Otak's motion to dismiss PCS's third-party complaint and granting P & R's motion to file an amended answer and cross-claim on its interpretation and application of NRS 11.258. "This court reviews a district court's statutory construction determinations de novo." Fierle, 125 Nev. at ___, 219 P.3d at 910.
An initial pleading for nonresidential construction defect claims is void ab initio if it is served before an attorney affidavit and expert report are filed with the court
NRS 11.258(1) and (3)[4] provide that "the attorney . . . shall file [the affidavit and expert report] . . . concurrently with the service of the first pleading in the action."[5] Additionally, NRS 11.259(1) provides that the district court "shall dismiss" a party's initial pleading alleging nonresidential construction malpractice if it is served without the party filing the required attorney affidavit and expert report. Because the phrase "shall dismiss" is clear and unambiguous, we must give "`effect to that meaning and will not consider outside sources beyond that statute.'" City of Reno v. Citizens for Cold Springs, 126 Nev. ___, ___, 236 P.3d 10, 16 (2010) (quoting NAIW v. Nevada Self-Insurers Association, 126 Nev. ___, ___, 225 P.3d 1265, 1271 (2010)).
The use of the word "`[s]hall' imposes a duty to act." NRS 0.025(1)(d); see also S.N.E.A. v. Daines, 108 Nev. 15, 19, 824 P.2d 276, 278 (1992) ("`[S]hall' is mandatory unless the statute demands a different construction to carry out the clear intent of the legislature."); Washoe Med. Ctr. v. Dist. Ct., 122 Nev. 1298, 1303, 148 P.3d 790, 793 (2006) ("`[S]hall' is mandatory and does not denote judicial discretion."). Thus, the Legislature's use of "shall" in NRS 11.259 demonstrates its intent to prohibit judicial discretion and, consequently, mandates automatic dismissal if the pleading is served without the complaining party concurrently filing the required affidavit and report. See Washoe Med., 122 Nev. at 1303, 148 P.3d at 793-94.
In Washoe Medical Center v. District Court, 122 Nev. at 1303, 148 P.3d at 793-94, we addressed a statutory interpretation issue similar to the one raised in this case, when we analyzed NRS 41A.071. That statute provides, in pertinent part, as follows:
If an action for medical malpractice . . . is filed in the district court, the district court shall dismiss the action . . . if the action is filed without an affidavit, supporting the allegations contained in the action.
We determined that NRS 41A.071's mandatory language did not give the district court the discretion to allow a party to amend a complaint alleging medical malpractice that was filed without the required affidavit. Washoe Med., 122 Nev. at 1303, 148 P.3d at 793-94. Later, in Fierle, we reasoned that because a complaint filed under NRS 41A.071 without the required affidavit was void ab initio, "such complaints may not be amended because they are void and do not legally exist." 125 Nev. at ___, 219 P.3d at 914; see also Washoe Med., 122 Nev. at 1300, *412 148 P.3d at 792. Our decision also comported "`with the underlying purpose of . . . [NRS 41A.071], which is to ensure that such actions be brought in good faith based [on] competent expert opinion.'" Fierle, 125 Nev. at ___, 219 P.3d at 914 (first and second alterations in original) (quoting Borger v. Dist. Ct., 120 Nev. 1021, 1029, 102 P.3d 600, 606 (2004)). Our analysis in Washoe Medical and Fierle is equally applicable to the instant case, and thus we now extend our analysis in those cases to cases that are governed by NRS 11.258. Therefore, we conclude that because a pleading filed under NRS 11.258 without the required affidavit and expert report is void ab initio and of no legal effect, the party's failure to comply with NRS 11.258 cannot be cured by amendment. See Fierle, 125 Nev. at ___, 219 P.3d at 914; Washoe Med., 122 Nev. at 1304, 148 P.3d at 794.
In this case, PCS served its initial pleading asserting nonresidential construction malpractice claims against Otak without concurrently filing the required attorney affidavit and expert report in direct violation of NRS 11.258, and, thus, we conclude that PCS's initial pleading is void ab initio. The provision of NRCP 15(a) that allows "[a] party to amend the party's pleading once as a matter of course at any time before a responsive pleading is served" is inapplicable when that pleading is void for not complying with NRS 11.258, because a void pleading does not legally exist and thus cannot be amended. See Washoe Med., 122 Nev. at 1304, 148 P.3d at 794. Because the initial pleading was void for violating NRS 11.258, the district court had no discretionary authority to allow PCS to amend its pleading. Therefore, we conclude that the district court abused its discretion when it denied Otak's motion to dismiss PCS's amended third-party complaint.
P & R, rather than simply filing an amended complaint like PCS, moved for the district court for leave to amend their answer and to assert cross-claims for equitable indemnity and contribution against Otak. The district court not only granted P & R's motion, but also allowed them (and Watkins, who did not even move to amend his claims against Otak) to rely on PCS's expert report, rather than requiring each party filing a claim against Otak to file their own expert report. As stated above, granting the motion to amend was reversible error because the pleading was void ab initio for being served without filing the expert report and attorney affidavit. Additionally, the district court erred by allowing P & R (and Watkins) to rely on PCS's expert report because NRS 11.258(1) provides that "the attorney for the complainant shall file" the expert report and affidavit. Each party that files a separate complaint for nonresidential construction malpractice must file its own expert report and attorney affidavit. See Washoe Med., 122 Nev. at 1303, 148 P.3d at 793. Requiring each party to file a separate expert report and attorney affidavit that are particularized to that party's claims is not an unreasonable requirement, as each party must justify its claims of nonresidential construction malpractice based on that party's relationship with the defendant.[6]
Accordingly, for the reasons set forth above, we grant Otak's petition for extraordinary relief as to the nonresidential construction defect claims against Otak[7] and direct the clerk of this court to issue a writ of mandamus instructing the district court to set aside its earlier orders, grant Otak's motion to dismiss PCS's amended third-party complaint, and deny P & R's motion to amend its answer and cross-claim against Otak.[8]
We concur: SAITTA, C.J., and PARRAGUIRRE, J.
NOTES
[1] The pleadings at issue in this case are a third-party complaint and a cross-claim. For simplicity, we will refer to these as "pleadings" unless otherwise necessary.
[2] Watkins did not file any response to Otak's writ petition.
[3] On August 6, 2010, we entered an order partially staying the proceedings below. On August 17, 2011, Otak filed a motion to lift this stay. In light of our decision today, we vacate the stay in its entirety and deny the motion as moot.
[4] NRS 11.258(2) provides an exception to the affidavit filing requirement under certain circumstances, but the facts of this case do not fit that exception.
[5] The main difference between the medical malpractice statute and the nonresidential construction design malpractice statute is that the medical malpractice statute requires the supporting documents to be filed concurrently with the filing of the pleading, NRS 41A.071, whereas the construction statute requires the supporting documents to be filed concurrently with service of the first pleading. NRS 11.258(1). This difference, however, is of no consequence to our analysis here.
[6] The parties do not argue, and we do not address, whether claims of indemnity and contribution fall outside the scope of NRS 11.258(1).
[7] The other claims asserted against Otak are not at issue in this petition, but we do not foreclose the district court's evaluation of the effect of this opinion on those remaining claims.
[8] Otak also argues that the expert report did not meet other requirements outlined in NRS 11.258 and that if this court did not construe NRS 11.258 similarly to NRS 41A.071, it would be a violation of equal protection. Because we conclude that the initial pleadings against Otak were void, we do not reach the merits of these claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2722562/ | NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6078-11T4
A-6370-11T1
NEW CENTURY FINANCIAL
APPROVED FOR PUBLICATION
SERVICES, INC.,
September 2, 2014
Plaintiff-Respondent,
APPELLATE DIVISION
v.
AHLAM OUGHLA,
Defendant-Appellant.
____________________________
MSW CAPITAL, LLC,
Plaintiff-Respondent,
v.
AZEEM H. ZAIDI,
Defendant-Appellant.
_______________________________________
Argued May 22, 2013 – Decided March 5, 2014
Before Judges Grall, Simonelli and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Special Civil Part, Hudson
County, Docket No. DC-4244-12 (A-6078-11),
and Monmouth County, Docket No. DC-4774-12
(A-6370-11).
Philip D. Stern argued the cause for
appellant (both appeals) (Philip D. Stern &
Associates, LLC, attorneys; Mr. Stern, on
the briefs).
Lawrence J. McDermott, Jr., argued the cause
for respondent (both appeals) (Pressler and
Pressler, L.L.P., attorneys; Mr. McDermott
and Steven A. Lang, on the briefs).
John Ukegbu argued the cause for amicus
curiae Northeast New Jersey Legal Services,
Inc. (A-6078-11) (Northeast New Jersey Legal
Services, attorneys; Mr. Ukegbu, on the
brief).
The opinion of the court was delivered by
ACCURSO, J.A.D.
In these two appeals, calendared back-to-back and
consolidated here, we consider the proofs necessary for
plaintiffs to prevail on summary judgment in an action to
collect an assigned debt on a closed and charged-off credit card
account. Plaintiffs are debt buyers. Debt buyers purchase
charged-off credit card debts from the card issuers or other
debt buyers and attempt to collect the debts, that is, the
amount due the card issuer when it charged-off the account, or
re-sell them to other debt buyers.1 Plaintiffs obtained summary
judgments against defendants on charged-off credit card debts
which plaintiffs claim to have purchased from sellers who,
ultimately, albeit indirectly, derived their ownership from the
1
See Federal Trade Commission, The Structure and Practices
of the Debt Buying Industry 11 (2013), available at
http://ftc.gov/sites/default/files/documents/reports/structure-
and-practices-debt-buying-industry/debtbuyingreport.pdf
[hereinafter "Debt Buying Report"].
2 A-6078-11T4
banks that issued the credit cards to defendants. Defendants
contend that the summary judgments were improper because
plaintiffs did not submit sufficient proof of their ownership of
the debts and did not offer admissible evidence of the amounts
allegedly owed.
Plaintiffs suing on assigned, charged-off credit card debts
must prove two things: ownership of the defendant's charged-off
debt and the amount due the card issuer when it charged off the
account. In considering whether plaintiffs established prima
facie proof of their claims, we hold that: lack of notice to
the debtor of the sale of the debt does not affect the validity
of the assignment; the assignment need not specifically
reference defendant's name or account number and instead may
refer to an electronic data file containing that information; a
plaintiff need not procure an affidavit from each transferor in
its chain of assignments and may instead establish prima facie
proof of ownership on the basis of business records documenting
its ownership; and that an electronic copy of the periodic
billing statement for the last billing cycle is prima facie
proof of the amount due on the account at charge off. Applying
those standards to the facts presented on the motions, we affirm
one judgment and reverse the other.
3 A-6078-11T4
The Summary Judgment Motions
Ahlam Oughla
Plaintiff New Century Financial Services, Inc. (New
Century) sued defendant Ahlam Oughla alleging that it was the
owner of Oughla's Credit One Bank, N.A., account on which
$723.82 was due at charge off. Oughla, representing herself,
answered stating "[p]laintiff provided no documentation to
support the charges alleged in the complaint, therefore
defendant denies all allegations." Although each side
propounded limited interrogatories as allowed in actions
cognizable but not pending in the Small Claims Section,
R. 6:4-3(f), neither party provided responsive answers.
New Century moved for summary judgment. In its statement
of material facts, New Century stated that its predecessor in
interest, Credit One, extended credit to Oughla on a specific
account; that as set forth in its supporting certification, New
Century had purchased that account; that the "Electronically
Transmitted Information from Seller," showed that Oughla opened
the account on October 25, 2007; made her last payment on March
2, 2008; and that Credit One charged off the account on October
5, 2008 with a balance due of $723.82, which constituted the
principal balance New Century demanded. New Century also sought
interest of $1.58 calculated at the rate specified in Rule 4:42-
4 A-6078-11T4
11(a)(ii), not at the rate charged by Credit One when the
account was active.
New Century attached what it claimed to be the bill of sale
and assignment by which it acquired Oughla's debt as well as
documents relating to several prior transfers of the account.
Specifically, New Century attached four executed assignment
documents memorializing the sale and assignment of certain
charged-off credit card account receivables, purportedly
described on computer files transferred therewith: from MHC
Receivables, L.L.C. (MHC Receivables) to Sherman Originator,
L.L.C. (Sherman Originator); from Sherman Originator to LVNV
Funding, L.L.C. (LVNV Funding); from LVNV Funding to Sherman
Acquisition, L.L.C. (Sherman Acquisition); and from Sherman
Acquisition to New Century. Only one of the assignments
referenced a portfolio number and none referenced Oughla's
account, or indeed, any individual account.
New Century also attached an electronic copy of the final
periodic account statement for "VISA Account [XXXX]" from Credit
One to Oughla with the same address she noted on her answer,
advising that the account was closed and scheduled to be charged
off with a balance of $723.82.
Oughla filed a response to the motion and consented to
disposition on the papers. She did not dispute any of the
5 A-6078-11T4
particular facts New Century asserted, but contended that there
was no admissible evidence of the formation of a contract
between her and Credit One, or of the breach of any such
contract, and no reference to her name or account number in any
of the assignments. On that evidence, the judge granted New
Century summary judgment in the sum of $725.40 plus costs
without a statement of reasons.
Oughla retained counsel who filed a motion for
reconsideration. Counsel argued that New Century did not
establish its ownership of the debt or provide a proper
foundation for the final periodic account statement.
New Century responded with additional proofs of its
ownership of the debt. Its "business development manager,"
Marko Galic, certified that he participated in the transaction
in which New Century purchased Oughla's debt and thus had
personal knowledge of the records New Century obtained in that
sale, including the assignments, a copy of the electronically-
transmitted spreadsheet New Century acquired, redacted to show
only the information relating to Oughla's account, and the final
periodic statement Credit One issued to Oughla.
In addition, New Century provided evidence of the transfers
that preceded its acquisition, the first being from Credit One
to MHC Receivables. John Mazzoli submitted an affidavit stating
6 A-6078-11T4
that he is an authorized representative for MHC Receivables,
having personal knowledge of "the method and manner" by which
MHC "originates, services, owns and manages VISA and MasterCard
accounts." Mazzoli explained that MHC Receivables "purchases
and holds VISA and MasterCard accounts" originated by Credit
One, which Credit One thereafter continues to service on behalf
of MHC Receivables, the legal owner. According to Mazzoli,
"[t]he Agreements that transfer the accounts between Credit One
and MHC are self-executing, allow for the accounts to be
transferred immediately after origination, and comply with all
state and federal regulations," and that "[c]ardholders receive
appropriate notice of these events in accordance with all state
and federal laws." Mazzoli averred that "[t]he transfer between
MHC and any subsequent buyer [is] evidenced by a Purchase and
Sale Agreement and corresponding Bill of Sale."2
The judge denied the motion for reconsideration and
reaffirmed the entry of summary judgment. She was satisfied
2
New Century also presented a certification from its counsel
Steven A. Lang, Esq., who attached credit reports from 2008 and
2009 for Oughla that counsel's firm "obtained in another
matter." We do not rely on these reports because they are
plainly inadmissible hearsay. See, e.g., Cruz v. MRC
Receivables Corp. 563 F. Supp. 2d 1092, 1095 (N.D. Cal. 2008)
(credit reports offered to prove the accounts and amounts
therein are inadmissible hearsay); Konop v. Rosen, 425 N.J.
Super. 391, 402 (App. Div. 2012) (noting that hearsay within
hearsay requires a separate basis for admission).
7 A-6078-11T4
that New Century had established a prima facie case that it was
the owner of the account and that Oughla was in default in the
sum of $723.82 plus interest of $1.58, for a total due of
$725.40. The judge found that Oughla's only defense to the
motion was that she "was not satisfied" with New Century's
proofs, which the judge concluded was not sufficient to defeat
summary judgment.
Azeem H. Zaidi
Plaintiff MSW Capital, L.L.C. (MSW Capital) sued defendant
Azeem H. Zaidi alleging that it was the owner of Zaidi's "CHASE-
WAMU" account, on which $12,487.36 was due at charge off.
Zaidi, representing himself, filed an answer leaving plaintiff
to its proofs.
MSW Capital served Zaidi with interrogatories seeking the
factual basis for any defense Zaidi claimed, to which Zaidi
declined to provide responsive answers. MSW Capital also served
Zaidi with requests for admissions asking whether he admitted
applying for credit privileges with CHASE-WAMU; whether he made
purchases or received cash advances using the account; and
whether he received monthly statements. Zaidi responded without
admitting or denying any of the requested admissions.
MSW Capital moved for summary judgment. In its statement
of material facts, MSW Capital stated that its predecessor in
8 A-6078-11T4
interest, CHASE-WAMU, extended credit to Zaidi, and that as set
forth in the certification submitted in support of the motion,
MSW Capital was the current owner of that account on which
$12,487.36 was due at charge-off. MSW Capital attached copies
of eighteen monthly billing statements for Zaidi's CHASE-WAMU
account from August 2009 through January 2011, each addressed to
Zaidi at the address indicated on Zaidi's answer.
MSW Capital supported the motion with a certification of
its managing director, Lawrence A. Whipple, Jr., who claimed
both personal knowledge of MSW Capital's "books and business"
and authority to make the certification on its behalf. Whipple
certified that MSW Capital "is the owner by purchase of
[Zaidi's] defaulted CHASE-WAMU Account" on which there is due
the sum of $12,487.36.3
Zaidi, through counsel, opposed MSW Capital's motion and
cross-moved for summary judgment. He denied MSW Capital's
3
Whipple further certified that MSW Capital's records are
maintained electronically, and he attached a "Computer Generated
Report of Financial Information From 1/31/11 to 04/19/12,"
created by MSW Capital for Zaidi's account. We do not rely upon
this report, which was apparently intended to conform to the
requirements of Rule 6:6-3(a), because it cannot qualify as a
business record under N.J.R.E. 803(c)(6). The case caption and
docket number on the document make clear it was prepared in
anticipation of litigation and thus not kept in the normal
course of business. See State v. Berezansky, 386 N.J. Super.
84, 94 (App. Div. 2006), certif. granted, 191 N.J. 317 (2007),
appeal dismissed, 196 N.J. 82 (2008).
9 A-6078-11T4
claims based on its "failure to provide proof that it owns the
alleged account and . . . that I am indebted to [MSW Capital] in
any amount." Zaidi certified that prior to his receipt of the
complaint he had never heard of MSW Capital and never received
notice "that an account between 'CHASE-WAMU' and me had been
transferred, sold or assigned."
MSW Capital responded with a supplemental certification
from Whipple, as well as new certifications from its attorneys.
Whipple explained, as he had not in his original certification,
that his job responsibilities required that he be familiar with
MSW Capital's "records and the manner in which those records are
recorded and maintained," and that he personally participated in
MSW Capital's acquisition of Zaidi's charged-off "CHASE-WAMU
account number [XXXX]." According to Whipple, MSW Capital
acquired Zaidi's charged-off CHASE-WAMU account on July 18, 2011
by bill of sale and assignment from Main Street Acquisition
Corp., (Main Street) a true copy of which he attached. The bill
of sale and assignment recites that:
For value received and subject to the
terms and conditions of the [Purchase and
Sale Agreement, dated as of April 15, 2011],
the Seller [Main Street] hereby transfers,
sells, assigns, conveys, grants, bargains,
sets over and delivers to the Purchaser [MSW
Capital, L.L.C.], and to the Purchaser's
successors and assigns, all of the Seller's
rights, title and interest in and to the
Purchased Accounts and any claims arising
10 A-6078-11T4
out of the Purchased Accounts described in
the Agreement and contained in the Sale File
provided to the Purchaser on July 18, 2011.
This Assignment is executed without
recourse and without representations or
warranties including, without limitation,
warranties as to collectability, except as
otherwise provided in the Agreement.
Whipple certified that Main Street also provided MSW Capital
with a copy of the assignment by which Main Street acquired
Zaidi's charged-off account from Chase, a true copy of which he
attached.
Whipple attested to the electronic information Main Street
provided MSW Capital regarding Zaidi's charged-off CHASE-WAMU
account, including the account number, that the account was
opened on August 16, 2004, that the last payment on the account
had been made on June 7, 2010 in the amount of $300.00, that
Chase Bank charged off the account on January 31, 2011, that the
balance due at charge-off was $12,487.36, Zaidi's address in
Morganville, New Jersey, as well as Zaidi's date of birth and
social security number which Whipple did not list but
represented would be made available to the court at its request.
Finally, Whipple identified, and attached as true copies, the
eighteen periodic statements he obtained from Main Street for
Zaidi's charged-off account, each of which stated "This
Statement is a Facsimile – Not an original."
11 A-6078-11T4
MSW Capital's counsel, Steven A. Lang, submitted a
certification countering Zaidi's sworn statement that he had
never heard of MSW Capital before being served with the
complaint. Lang attached a copy of a demand letter his office
had sent to Zaidi before the complaint was filed, informing him
that his CHASE-WAMU account had been purchased by MSW Capital
and placed with the firm for collection. Lang also explained
that in September 2008, the Federal Deposit Insurance
Corporation (FDIC) seized Washington Mutual Bank (WAMU),
thereafter placing the bank into receivership and eventually
selling "substantially all" of its assets to JPMorgan Chase &
Co., the parent of Chase Bank USA, N.A., the firm's credit card
issuing bank in accordance with JPMorgan Chase & Co.'s public
filings with the Securities and Exchange Commission. Lang
attached copies of those filings to his certification.
The trial judge reviewed all of the evidence submitted by
MSW Capital and the objections to that evidence from Zaidi, and
determined that the billing statements satisfied the
requirements of Rule 6:6-3(a), and LVNV Funding, L.L.C. v.
Colvell, 421 N.J. Super. 1 (App. Div. 2011), and that Whipple's
certification constituted sufficient proof to establish that
Zaidi's charged-off credit card had been transferred to MSW
Capital. The judge noted that Zaidi had not offered anything to
12 A-6078-11T4
dispute his responsibility for the account, the accuracy of the
amount due at charge-off, or his receipt of the billing
statements. Finding no material fact in dispute and that MSW
Capital had proved its claim, the judge entered summary judgment
for MSW Capital in the amount of $12,487.36 plus costs.
Both defendants filed timely notices of appeal. This court
subsequently granted the motion of Northeast New Jersey Legal
Services, Inc. to appear as amicus curiae and to argue in
support of Oughla's appeal.
Brief Overview of the Debt Buying Industry
Because defendants and amicus rely on reports of the
Federal Trade Commission (FTC), a federal agency responsible for
enforcing the Fair Debt Collection Practices Act, 15 U.S.C.A.
§ 1692, issued after the FTC assessed the effect of debt buying
on the collection of consumer debt and its effect on consumers,
we begin with a brief background of the debt buying industry.
The FTC undertook its studies in response to the rapid
increase in debt buying over the last two decades. Although
acknowledging that debt buying reduces the losses creditors
incur in providing credit, thereby helping to keep the price of
credit low and ensuring its wide availability, the FTC was
concerned that the re-selling of debts could lead to debt buyers
having insufficient or inaccurate information about the debts
13 A-6078-11T4
they are trying to collect, resulting in debt buyers attempting
to collect from the wrong debtor or more than the debtor owes.
Federal Trade Commission, Debt Buying Report, supra, at 11, 29-
30, Federal Trade Commission, Repairing a Broken System:
Protecting Consumers in Debt Collection Litigation and
Arbitration i-ii (2010) available at
http://ftc.gov/os/2010/07/debtcollectionreport.pdf, [hereinafter
"Debt Collection Report"]; Federal Trade Commission, Collecting
Consumer Debts: The Challenges of Change, A Workshop Report
1 (2009) available at
http://ftc.gov/sites/default/files/documents/reports/collecting-
consumer-debts-challenges-change-federal-trade-commission-
workshop-report/dcwr.pdf [hereinafter "Debt Collection Workshop
Report"].
The debt buying business apparently traces its origin to
the savings and loan crisis of the late 1980s when the
Resolution Trust Corporation auctioned off billions in unpaid
loans owed to failed thrifts. Debt Buying Report, supra, at 12.
The success of such sales led other owners of delinquent debt,
most notably the banks constituting the largest credit card
issuers, to eventually follow suit. Id. at 12-13.
Federal regulations require banks issuing credit cards to
charge off, that is declare uncollectible, credit card debts by
14 A-6078-11T4
the end of the month in which they become one hundred and eighty
days past due. Final Notice of Uniform Retail Credit
Classification and Account Management Policy, 65 Fed. Reg. 36903
(June 12, 2000). Although banks are prohibited from counting
charged-off debts toward their capital requirements, the debts
remain assets which the banks can continue to try to collect or
sell for cash. Debt Buying Report, supra, at 13 n.58. The
Government Accountability Office reported in a 2009 study that
five of the six largest credit card issuers sold at least some
of their charged-off debt to debt buyers.4
The FTC found that credit card issuers typically bundle
thousands of charged-off accounts into portfolios sharing common
features, such as the amount of time that has passed since a
payment was made on the account.5 Debt Buying Report, supra, at
17. Debt buyers purchasing the portfolios from the credit card
issuers sometimes resell the original portfolios or repackage
the debts into new portfolios. Id. at 19.
4
U.S. Gov't Accountability Office, GAO-09-748, Credit Cards:
Fair Debt Collection Practice Act Could Better Reflect the
Evolving Debt Collection Marketplace and Use of Technology 25
(2009), available at http://www.gao.gov/assets/300/295588.pdf
[hereinafter "GAO Report"].
5
Zaidi's account appears to have been included in a portfolio of
8,842 charged-off accounts that Chase assigned to Main Street.
15 A-6078-11T4
All of the information the debt buyers receive about the
charged-off accounts within a purchased portfolio is transmitted
electronically. Debt collection is no longer based on paper
transactions. The FTC notes that technological innovations over
the past thirty years, such as document imaging and electronic
database management systems, have dramatically enhanced the
ability of creditors and debt collectors to obtain, store, and
transfer data about account holders and their debts. Debt
Collection Workshop Report, supra, at 17.
Upon purchase of a portfolio, the debt buyer receives a
"data file," typically one or more electronic spreadsheets
containing information such as the name, street address, home
telephone number, date of birth, and social security number for
each debtor, along with the credit card account number, the
amount due at charge-off, the date the debtor opened the
account, the date of last payment, and the date of charge-off.
Debt Buying Report, supra, at 20, 34-35. Both plaintiffs in
these cases represented that the information they acquired on
defendants' charged-off debts was through the transfer of
electronic data files. In addition to the data file, buyers of
charged-off accounts also sometimes acquire electronic
documentation or "media," typically account statements, at the
time of sale or the right to request such from the seller for a
16 A-6078-11T4
limited period of time, and often for a fee.6 Id. at 26-28, 39-
40.
The debts within these portfolios are sometimes sold
multiple times pursuant to separate purchase and sale agreements
in which sellers generally disclaim all representations and
warranties regarding the accuracy of the information about the
individual debts. Id. at 25. Defendants and amicus contend
that because plaintiffs are suing on purchased debt of which
they have no personal knowledge, the absence of a warranty
leaves plaintiffs unable to prove that they have sued the right
defendant for the correct amount. The FTC acknowledges,
however, that its study did not permit any conclusions as to the
prevalence of errors or inaccuracies in the information about
the debts transferred in these portfolios.7 Ibid.
Against this backdrop, we turn to consider the matters
before us.
6
Significantly, the FTC found that original sellers typically
had no obligation to provide copies of documents to purchasers
of resold debt; instead, those purchasers had to channel their
requests upstream to the original purchaser for transmission to
the issuer. Debt Buying Report, supra, at 27-28. This was the
manner in which MSW acquired Zaidi's Chase account statements.
7
The FTC speculates that one reason debt sellers may not warrant
the account information on the debts they sell is the cost to a
seller in assessing a warranty claim, that is in trying to
determine if the information it supplied to a buyer about a debt
was inaccurate or whether the debt simply proved uncollectible
for the buyer. Debt Buying Report, supra, at 25, n.108.
17 A-6078-11T4
Standing
We first dispose of defendants' arguments that plaintiffs
failed to establish standing in the trial court. Defendants
assert that "the chain of assignment must be addressed before
deciding other substantive issues" because "[w]hen there is
insufficient proof of assignment, the action is not
justiciable."
We need not engage in an extended discussion on this point.
We agree with defendants that plaintiffs must prove that they
own the charged-off credit card debts on which they sue, whether
one characterizes it as standing to sue or an essential element
of proof on an assigned claim. See Sullivan v. Visconti, 68
N.J.L. 543, 550 (Sup. Ct. 1902), aff'd, 69 N.J.L. 452 (E. & A.
1903); Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 79-
82 (App. Div. 2001); Wells Fargo Bank, N.A. v. Ford, 418 N.J.
Super. 592, 599-600 (App. Div. 2011). We disagree that, in
these Special Civil Part actions, the parties must first
litigate ownership of the debt before any other matter can be
addressed. Such matters are left to the sound discretion of the
trial judge to be exercised in light of any motions filed by the
parties.
As we noted at the outset of this opinion, plaintiffs suing
on assigned credit card debts must prove that they own the debt
18 A-6078-11T4
and the amount due. The proofs on these issues are generally
straightforward and proceed in tandem. Requiring them to be
addressed separately would seem to confound the purposes of the
Special Civil Part Rules, which are designed to control costs
and promote the expeditious resolution of claims under $15,000.
Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 143-44
(1999).
The issue is only important here because defendants have
taken the position that plaintiffs must prove they own the debt
before defendants can be required to participate in discovery.
Both defendants refused to answer basic discovery on the basis
that plaintiffs had not proved that they owned the debts sued
upon. We think it obvious that defendants have the same
obligations as all other litigants in our courts to answer
discovery fully and forthrightly. Dewalt v. Dow Chem. Co., 237
N.J. Super. 54, 60 (App. Div. 1989).
Although information as to ownership of the debt would
almost certainly be confined to plaintiffs, defendants likely
possess relevant information about the credit card account. Our
rules allow litigants in civil litigation to prove claims and
defenses through discovery and admissions obtained from adverse
parties. See Seiden v. Allen, 135 N.J. Super. 253, 255-56 (Ch.
Div. 1975). Defendants cannot shield themselves from legitimate
19 A-6078-11T4
discovery in these collection matters by asserting plaintiffs'
lack of standing.
Proof of Assignments
The parties and amicus agree that the assigned credit card
debts on which plaintiffs sue constitute choses in action
arising on contract, which are assignable pursuant to N.J.S.A.
2A:25-1. Our law does not dictate any precise formula for such
assignments. Sullivan, supra, 68 N.J.L. at 550. All that is
required is evidence of the intent to transfer one's rights and
a description of the intangible right being assigned sufficient
to make it readily identifiable. K. Woodmere Assocs., L.P. v.
Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998) (citing
3 Williston on Contracts § 404 (Jaeger ed. 1957); Transcon Lines
v. Lipo Chem., Inc., 193 N.J. Super. 456 (Cty. Dist. Ct. 1983)).
Although an assignee will ordinarily notify a debtor
promptly of the assignment, as the debtor is discharged to the
extent of his payments to the assignor prior to notice, the lack
of notice to the debtor does not affect the validity of the
assignment.8 Moorestown Trust Co. v. Buzby, 109 N.J. Eq. 409,
8
We do not view Tirgan v. Mega Life & Health Ins., 304 N.J.
Super. 385 (Law Div. 1997), on which defendants rely, to be to
the contrary. Notice was not at issue in that case, which
involved a patient's assignment of his rights under an insurance
contract to his physician. Id. at 391. The Law Division's
statement that "[t]o be effective, . . . the assignment must be
(continued)
20 A-6078-11T4
411 (Ch. 1932) (creditors may dispose of a debt as they choose
including by assigning it to another, notice of any assignment
to the debtor "adds nothing to the right or title transferred").
Notice simply charges the debtor with the duty to pay the
assignee. Russel v. Fred G. Pohl Co., 7 N.J. 32, 40 (1951);
Spilka v. S. Am. Managers, Inc., 54 N.J. 452, 462 (1969);
N.J.S.A. 12A:9-406(a).
Accordingly, we reject defendants' arguments that lack of
notice of the assignments to the account holders is fatal to
plaintiffs' claims. Because it does not involve a dispute over
a material fact, we likewise reject Zaidi's argument that the
factual dispute about his notice of the assignment precluded
entry of summary judgment against him.
Plaintiffs insist that because our law has not historically
required documentary evidence to prove ownership, ownership of
the assigned claims may be proved by testimony alone. That
assertion seems to us beside the point, as plaintiffs in these
cases moved for summary judgments relying on written
assignments.9 Accordingly, our review is of the certifications
submitted on the motions in support of their claims. See Ford,
(continued)
noticed to the obligor," plainly refers only to the obligor's
duty to pay the assignee upon proper notice. Id. at 390.
9
The exception in Oughla's case regarding the first link in MSW
Capital's chain of ownership is discussed infra.
21 A-6078-11T4
supra, 418 N.J. Super. at 599-600. We review the grant of
summary judgment using the same standard as the motion judge.
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).
Thus, we must determine "whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995).
Where a motion for summary judgment is based on facts
either not of record or not judicially noticeable, Rule 1:6-6
allows the court to "hear it on affidavits made on personal
knowledge, setting forth only facts which are admissible in
evidence to which the affiant is competent to testify and which
may have annexed thereto certified copies of all papers or parts
thereof referred to therein." Hearsay may only be considered if
admissible pursuant to an exception to the hearsay rule. Jeter
v. Stevenson, 284 N.J. Super. 229, 233-34 (App. Div. 1995). In
evaluating a summary judgment record involving a challenge to
the competency of affidavits on which the trial court relied, we
review the evidentiary question for abuse of discretion and the
court's legal determination de novo. Estate of Hanges v. Metro.
Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).
22 A-6078-11T4
The central question presented with regard to the
assignments is whether plaintiffs have submitted competent
evidence demonstrating "the full chain of the assignment of the
claim[s]." R. 6:6-3(a); Colvell, supra, 421 N.J. Super. at 6
(noting agreement that Rule 6:6-3(a) provides a guide to the
proofs necessary for summary judgment in credit card collection
cases). We reviewed the requirements for affidavits purporting
to establish a party's ownership of an assigned mortgage debt in
Ford, supra, 418 N.J. Super. at 597-98. Those principles apply
equally here. An affiant must aver that the facts presented are
on personal knowledge, identify the source of such knowledge,
and must properly authenticate any certified copies of documents
referred to therein and attached to the affidavit or
certification. Id. at 599-600. We are satisfied that MSW's
proofs on its motion were sufficient to establish its ownership
of Zaidi's debt. New Century's proofs, however, could not
support summary judgment in Oughla's case.
In Oughla's case, New Century submitted two certifications
from its business developer manager, Marko Galic. Galic
certified that he was familiar "with the business and records"
of New Century, was authorized to make the certifications on its
behalf and did so of his own personal knowledge. Galic
explained that he had personally participated in the transaction
23 A-6078-11T4
in which New Century purchased Oughla's account from Sherman
Acquisition and he attached "true copies" of the bill of sale
and assignment and the information electronically provided to
New Century regarding Oughla's account at the time of sale.
The attached bill of sale and assignment identified Sherman
Acquisition as the assignor and New Century as the assignee and
states that the assignor conveys all of its interest in certain
charged-off receivables described in an attached appendix and
referred to as "Charged-off Accounts" in a purchase and sale
agreement between assignor and assignee of the same date. The
document is signed on behalf of Sherman Acquisition by John
Mazzoli, Director, and witnessed by another officer. Also
attached to Galic's certification are five pages of a
spreadsheet with information relating to Oughla's account with
Credit One and a periodic statement from Credit One to Oughla
noting that the account is closed and scheduled to be charged
off.
Finally, Galic attaches true copies of the remaining three
assignments transferring Oughla's Credit One account from MHC
Receivables to Sherman Originator, from Sherman Originator to
LVNV Funding, and from LVNV Funding to Sherman Acquisition, from
whence it was transferred to New Century.
24 A-6078-11T4
The Galic certifications plainly do not suffer from the
inadequacies of the certifications presented in Ford. Galic
identifies his position with New Century and describes the basis
of his knowledge; he personally participated in the transaction
in which New Century acquired Oughla's Credit One account.
Galic certified that the attached assignments were true copies
of the ones provided to New Century by its assignor Sherman
Acquisition. Nothing further was required to authenticate them
under N.J.R.E. 901. See Celino v. Gen. Accident Ins., 211 N.J.
Super. 538, 544 (App. Div. 1986). Although defendants assert
that the assignments are not admissible because they refer to
agreements and appendices not attached, they cite no case for
that proposition and fail to explain how such documents are
relevant to the issues in dispute.
Defendants note that none of the assignments refers
specifically to Oughla's Credit One account. The point is
undisputed. Galic certifies, however, that Oughla's account was
among the charged-off accounts included in the assignments and
acquired by New Century in the transaction, as evidenced by the
electronic spreadsheet information transferred to New Century,
which he attached to his certification.
As an assignment needs no particular form and requires only
so much of a description of the intangible assigned to make it
25 A-6078-11T4
readily identifiable, K. Woodmere Assocs., supra, 316 N.J.
Super. at 314, we agree with the trial judge that the
assignments need not specify each account transferred to
effectively transfer accounts included in an accompanying
electronic file. The key is the intent of the assignor to
transfer specific accounts. Ibid. That intent is gleaned from
the documents themselves and surrounding circumstances. Id. at
315-16; see also Sullivan, supra, 68 N.J.L. at 546-47
(acknowledging appropriate use of parol evidence to confirm
identity of the thing assigned). Accordingly, we conclude that
New Century's certifications properly authenticate the
assignment documents and electronically-transmitted information
evincing a proper chain of assignments of Oughla's Credit One
account from MHC Receivables through to New Century.
There is, however, no document evidencing the first link in
New Century's assignment chain, the transfer of Oughla's account
from the card issuer, Credit One, to MHC Receivables. New
Century asserts that "[t]here are no documents from Credit One
in the chain because the account was not owned by Credit One."
New Century further explains with reference to Mazzoli's
certification, that the "accounts are originated by Credit One
and then sold, while live, to MHC Receivables, Inc.[,] Credit
One Bank acted thereafter only as the account servicer."
26 A-6078-11T4
We cannot agree that because the credit card accounts are
originated by Credit One and assigned to MHC Receivables while
the accounts are still active, that no proof of assignment is
necessary.10 New Century's assertion that Credit One did not own
the account appears at direct odds with Mazzoli's certification
that MHC Receivables "purchases and holds" Visa and MasterCard
accounts "originated by Credit One."
Further, we note that Mazzoli's affidavit discussing MHC
Receivables is markedly less clear than the Galic
certifications. Instead of explaining his position with MHC
Receivables and describing the source of his knowledge, Mazzoli
says only that as "authorized representative" for that entity,
he has "personal knowledge" of how it "originates, services,
owns and manages Visa and MasterCard accounts." The affidavit
neither reveals his position, if any, with MHC Receivables, nor
the source of his knowledge of this aspect of its operations.
See Ford, supra, 418 N.J. Super. at 599-600. The Mazzoli
affidavit on behalf of MHC Receivables raises more questions
than it answers and thus does not provide sufficient proof of
10
This situation is different from a scenario in which a
successor bank has acquired active credit card accounts through
acquisition of another bank. See Garden State Bank v. Graef,
341 N.J. Super. 241, 245-46 (App. Div. 2001), and our discussion
of this point, infra at 33.
27 A-6078-11T4
Credit One's transfer of Oughla's account to MHC Receivables,
the first link in New Century's chain of assignments. Ibid.
Accordingly, the summary judgment against Oughla must be
reversed because New Century did not establish the full chain of
ownership of its claim. While Mazzoli's affidavit is not
sufficient to establish the transfer of Oughla's charged-off
Credit One account to MHC Receivables, we note that he asserts
that Credit One cardholders are noticed of the transfer of their
accounts, thereby suggesting that proof of MHC Receivables'
ownership of Oughla's account may be established in ways other
than production of an assignment. We express no opinion on the
method by which New Century may prove MHC Receivables' ownership
of Oughla's account on remand. It suffices to say that it must
be established by admissible evidence presented by affidavit of
a witness competent to testify. Ford, supra, 418 N.J. Super. at
599-600.
We also acknowledge that the Oughla matter was within the
cognizance of the Small Claims Section of the Special Civil Part
where the rules of evidence may be relaxed. R. 6:1-2(a)2, 6:11;
N.J.R.E. 101(a)(2)(A), see also Penbara v. Straczynski, 347 N.J.
Super. 155, 158 n.1, 162-63 (App. Div. 2002); Blaisdell Lumber
Co. v. Horton, 242 N.J. Super. 98, 101 (App. Div. 1990). While
we are of the view that critical facts must be proved and not
28 A-6078-11T4
merely assumed, notwithstanding the lack of formality in the
Small Claims Section, Triffin v. Quality Urban Hous. Partners,
352 N.J. Super. 538, 543 (App. Div. 2002), we express no view of
the form those proofs may take and whether relaxation of the
rules of evidence might be appropriate under the circumstances.11
In Zaidi's case, MSW Capital proved its chain of
assignments of Zaidi's charged-off account through the Whipple
and Lang certifications. Whipple's certifications suffice to
establish his knowledge of MSW's records and authenticate the
assignment from Main Street to MSW Capital transferring Zaidi's
charged-off account. See Ford, supra, 418 N.J. Super at 599-
600. Whipple certifies that he is the managing director of MSW
Capital and that his job responsibilities require his
familiarity with "MSW's records and the manner in which those
records are recorded and maintained." Further, Whipple
certifies that he personally participated in MSW Capital's
acquisition of Zaidi's charged-off account which MSW Capital
acquired by way of bill of sale and assignment, a true copy of
which he attached to his certification. The bill of sale and
assignment provides that Main Street assigns to MSW Capital all
11
We reject defendants' contention that New Century may not
avail itself of the relaxation rule because it is intended to
assist self-represented parties. By its terms, the rule applies
to all parties in matters within the cognizance of the Small
Claims Section. See N.J.R.E. 101(a)(2)(A).
29 A-6078-11T4
of Main Street's rights to the "purchased accounts" described in
a certain purchase and sale agreement and "contained in the sale
file" provided to MSW Capital.
Whipple also attached a true copy of the bill of sale MSW
Capital was provided by Main Street evidencing Main Street's
assignment of the account from Chase. That document references
the transfer of 8,842 accounts from Chase Bank to Main Street
"described in the Final Data File, entitled (Account's Primary
File Name) attached hereto and made part hereof for all
purposes" pursuant to the credit card account purchase agreement
between Chase Bank and Main Street.
In addition to raising objections to the failure to attach
the referenced purchase agreements to the assignments and the
lack of any specific mention of Zaidi's account which we have
already rejected, Zaidi maintains that MSW Capital had to
produce an affidavit from each of its predecessors
authenticating the assignment each provided to its transferee
for the entire assignment chain. We disagree.
We reject the claim that a separate affidavit is required
from each transferor authenticating each assignment in the
chain. Third-party documents evidencing ownership, such as
those represented by these assignments, are examples of business
records of one business transferred on sale and incorporated in
30 A-6078-11T4
the purchaser's records to document proof of ownership of the
thing transferred. See, e.g., Stott v. Greengos, 95 N.J. Super.
96, 99-100 (App. Div. 1967) (stock sale confirmation sheets);
State v. Mazowski, 337 N.J. Super. 275, 292 (App. Div. 2001)
(pawnshop receipts); K & K Enters. Inc. v. Stemcor USA Inc., 954
N.Y.S.2d 512, 513 (App. Div. 2012) (bills of lading). So long
as the proponent of the documents can satisfactorily attest to
the circumstances under which it acquired the documents on which
it relies, the documents should be admissible as business
records under N.J.R.E. 803(c)(6). See Hahnemann Univ. Hosp. v.
Dudnick, 292 N.J. Super. 11, 17-19 (App. Div. 1996).
Finally, Zaidi contends that even assuming that the
assignments included in the summary judgment record were
properly admissible, MSW Capital, like New Century, cannot prove
the first link of the assignment chain, here the transfer of
Zaidi's account from WAMU to Chase. We are satisfied that the
trial judge did not abuse his discretion in concluding
otherwise. Estate of Hanges, supra, 202 N.J. at 383-84.
MSW Capital offered the certification of its counsel Lang
to prove that the FDIC had taken over WAMU and subsequently sold
all of its assets to Chase. Lang attached publicly available
documents of Chase's filings with the Securities and Exchange
Commission and the FDIC noting the FDIC's receivership of WAMU
31 A-6078-11T4
and sale of its assets to Chase. While Zaidi contends that
those filings are not the proper subject of judicial notice
under N.J.R.E. 201(a) because the documents are not "findings"
of those agencies, the FDIC's takeover of WAMU and sale of its
assets to Chase would appear a proper subject of judicial notice
under N.J.R.E. 201(a) or (b) as evidenced by the many state and
federal courts that have taken judicial notice of those very
facts. See, e.g., Carswell v. JPMorgan Chase Bank, N.A., 500
Fed. App'x. 580, 583 (9th Cir. 2012); Arguenta v. J.P. Morgan
Chase, 787 F. Supp. 2d 1099, 1101-04 (E.D. Cal. 2011); Shirk v.
JPMorgan Chase Bank, N.A. (In re Shirk), 437 B.R. 592, 596 n.1
(Bankr. S.D. Ohio 2010); Stewart v. JPMorgan Chase Bank, N.A.
(In re Stewart), 473 B.R. 612, 618 n.2 (Bankr. W.D. Pa. 2012),
aff'd, 2013 U.S. Dist. LEXIS 111516;); Scott v. JPMorgan Chase
Bank, N.A., 154 Cal. Rptr. 3d 394, 401-09 (Ct. App. 2013),
modified 2013 Cal. App. LEXIS 280, rev. denied, 2013 Cal. LEXIS
4861.
Although we think the trial court could have taken judicial
notice of the FDIC's transfer of WAMU's assets to Chase, thus
establishing the first link in MSW Capital's chain of
assignments, it was not necessary for the court to have done so.
While Zaidi's account may have originated with WAMU, the
periodic account statements included in the summary judgment
32 A-6078-11T4
record document credit card transactions between Zaidi and
Chase. Accordingly, if those account statements are properly
admissible then no further proof of Chase's assumption of
Zaidi's account was necessary. The account statements would
establish a direct contractual relationship between Zaidi and
Chase. See Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542,
548 (Law Div. 1977) (noting use of a credit card constitutes
acceptance of the offer of credit in accordance with its terms),
aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J.
396 (1978). We turn to those periodic account statements now.
Admissibility of the Account Statements
Defendants contend that even if plaintiffs could prove that
they owned the debts on which they sued, their proofs on the
motions for summary judgment were insufficient to establish the
original creditors' contract claims. Specifically, they contend
that the account statements on which plaintiffs relied to
establish the amounts due and owing were hearsay statements
without foundation and thus not competent evidence.12 We
disagree.
12
We reject defendants' contention that plaintiffs needed to
present the cardholder agreements in order to prove the
contracts giving rise to the debts on which they sued. While
production of the cardholder agreement would be required in a
suit in which the terms of the agreement were in dispute, no
such dispute exists in these cases. Plaintiffs' claims are for
(continued)
33 A-6078-11T4
Plaintiffs offered the monthly credit card statements as
business records under N.J.R.E. 803(c)(6). That rule operates
to except from the hearsay rule
A statement contained in a writing or other
record of acts, events, conditions, and,
subject to Rule 808, opinions or diagnoses,
made at or near the time of observation by a
person with actual knowledge or from
information supplied by such a person, if
the writing or other record was made in the
regular course of business and it was the
regular practice of that business to make
it, unless the sources of information or the
method, purpose or circumstances of
preparation indicate that it is not
trustworthy.
[N.J.R.E. 803(c)(6).]
The purpose of the business records exception is to broaden
admissibility of relevant evidence based on principles of
necessity and trustworthiness. Liptak v. Rite Aid, Inc., 289
N.J. Super. 199, 219 (App. Div. 1996). As the Supreme Court
explained in describing the rule's evolution:
It took a long time for the courts to
recognize that business conditions and
methods demanded relaxation of the strict
rules of evidence which banned a merchant's
books from lawsuits as self-serving hearsay.
(continued)
a sum certain, the balance due on the periodic statement for the
last billing cycle; they do not seek interest or attorneys fees
at the contract rates. See Chase Bank U.S., N.A. v Staffenberg,
419 N.J. Super. 386, 388 n.1 (App. Div. 2011) (production of
cardholder agreement unnecessary where counsel fees awarded as
taxed costs pursuant to N.J.S.A. 22A:2-42).
34 A-6078-11T4
Adoption of the shopbook rule stemmed from a
realization that mercantile and industrial
life is essentially practical, that what is
the final basis of calculation, reliance,
investment, and general confidence in every
business enterprise may ordinarily be
resorted to in proof of the main fact, and
that what the common experience of man
relies upon ought not to be summarily
discredited.
[Mahoney v. Minsky, 39 N.J. 208, 217
(1963).]
The Court quoted Professor Wigmore
The merchant and the manufacturer must not
be turned away remediless because methods
in which the entire community places a
just confidence are a little difficult
to reconcile with technical judicial
scruples . . . . In short, Courts must here
cease to be pedantic and endeavor to be
practical. 5 Wigmore, Evidence (3d ed.
1940), § 1530, p. 379.
[Ibid.]
The requirements for admitting evidence pursuant to
N.J.R.E. 803(c)(6) are now well-established.
In order to qualify under the business
record exception to the hearsay rule, the
proponent must satisfy three conditions:
"First, the writing must be made in the
regular course of business. Second, it must
be prepared within a short time of the act,
condition or event being described. Finally,
the source of the information and the method
and circumstances of the preparation of the
35 A-6078-11T4
writing must justify allowing it into
evidence."
[State v. Sweet, 195 N.J. 357, 370 (2008)
(quoting State v. Matulewicz, 101 N.J. 27,
29 (1985)), cert. denied, 557 U.S. 934, 129
S. Ct. 2858, 174 L. Ed. 2d 601 (2009).]
There is no requirement that the foundation witness possess any
personal knowledge of the act or event recorded. State v.
Martorelli, 136 N.J. Super. 449, 453 (App. Div. 1975), certif.
denied, 69 N.J. 445 (1976). Further, N.J.R.E. 803(c)(6) follows
its federal counterpart, Fed. R. Evid. 803(6), such that
documents may properly be admitted "as
business records even though they are the
records of a business entity other than one
of the parties, and even though the
foundation for their receipt is laid by a
witness who is not an employee of the entity
that owns and prepared them."
[Hahnemann, supra, 292 N.J. Super. at 17
(quoting Saks Int'l, Inc. v. M/V "Export
Champion", 817 F.2d 1011, 1013 (2d Cir.
1987) (citation omitted)).]
Acknowledging in Hahnemann that computers had "become part of
everyday life," now "universally used and accepted," we
specifically disapproved "the application of special evidentiary
requirements for computer-generated business records." Id. at
15-16. Instead, we held that:
A witness is competent to lay the foundation
for systematically prepared computer records
if the witness (1) can demonstrate that the
computer record is what the proponent claims
and (2) is sufficiently familiar with the
36 A-6078-11T4
record system used and (3) can establish
that it was the regular practice of that
business to make the record. If a party
offers a computer printout into evidence
after satisfying the foregoing requirements,
the record is admissible "unless the sources
of information or the method, purpose or
circumstances of preparation indicate that
it is not trustworthy."
[Id. at 18 (citation omitted) (quoting
N.J.R.E. 803(c)(6)).]
Applying those principles in Garden State Bank v. Graef,
supra, 341 N.J. Super. at 245, we held that an employee of a
successor bank could certify on summary judgment to the loan
history printouts of transactions of its predecessor because the
employee's position rendered him sufficiently familiar with the
record system used to allow him to establish that it was the
regular practice of the predecessor bank to make the record.
Acknowledging "the practicality of bank acquisitions, as a
result of which older records may be lost or destroyed," we held
that the records were sufficient to satisfy the successor bank's
prima facie showing of what it claimed was due on the
outstanding loan, notwithstanding that the records did not
itemize all payments made since the inception of the obligation.
Id. at 246. We reasoned that "[t]he printouts are admissible
because they 'appear[] perfectly regular on [their] face and as
having been issued in the regular course of business prior to
37 A-6078-11T4
the inception of any controversy between the parties.'" Ibid.
(quoting Mahoney, supra, 39 N.J. at 213).
The same is true of the credit card statements included in
the summary judgment record here. Plaintiffs submitted
certifications by employees having personal knowledge of the
books and records of plaintiffs and the transactions whereby
plaintiffs acquired the charged-off debts on which they sued.
The employees certified that they acquired the account
statements attached to their certifications as part of the
purchase of the charged-off debts. The employees certified that
the account statements were true copies and reflected amounts
due their predecessors as of the final billing cycle.
Although defendants assert that there was no explanation of
the transactions and credits reflected on the account
statements, the process is familiar to anyone who has ever paid
a credit card bill. See State v. Swed, 255 N.J. Super. 228, 239
(App. Div. 1992) (noting widespread familiarity with the process
whereby meter readers enter readings into hand-held computers
resulting in the monthly statements received by customers of
PSE&G). These account statements are the types of documents our
courts have long accepted as business records excepted from the
hearsay rule under N.J.R.E. 803(c)(6). See Sears, Roebuck & Co.
v. Merla, 142 N.J. Super. 205, 207-08 (App. Div. 1976)
38 A-6078-11T4
(discussing admissibility of such records under prior Evid. R.
63(13)); Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 2 on N.J.R.E. 803(c)(6) (2013).
Even more important in the context of these actions, Rule
6:6-3(a) provides that "if the plaintiff's records are
maintained electronically and the claim is founded on an open-
end credit plan," as defined in 15 U.S.C.A. § 1602(i), the Truth
in Lending Act, and 12 C.F.R. § 226.2(a)(20) (2013), Regulation
Z, as these claims are, "a copy of the periodic statement for
the last billing cycle, as prescribed by 15 U.S.C. § 1637(b) and
12 C.F.R. § 226.7 . . . if attached to the affidavit, shall be
sufficient to support the entry of judgment."
The 1992 Report of the Special Civil Practice Committee
explains the reason for the Rule.
New Jersey law (N.J.S.A. 17:16c-
34.1(b)) brings the kind of credit accounts
at issue here within the ambit of the Truth
in Lending Act. The credit accounts, such
as a Sears charge or Master Card, are
defined as "open end credit plans" by the
Act and by the implementing regulations,
commonly known as Regulation Z, adopted by
the Board of Governors of the Federal
Reserve System. See 15 U.S.C.A. §1602(i)
and 12 C.F.R. §226.2(a)(20). The Act and
Regulation Z require the creditor to furnish
the consumer with a periodic statement for
each billing cycle. 15 U.S.C.A. §1637(b)
and 12 C.F.R. §226.7. In reviewing 12
C.F.R. §226.7 the Committee noted the extent
of the information required and that
subsection (k) requires that the address for
39 A-6078-11T4
notice of billing errors be placed either on
the periodic statement or on a summary
statement of the consumer's billing rights
included with the periodic statement.
The consumer's rights to assert claims
and defenses against the issuer of the
credit card and to contest billing errors
are set forth in detail in 12 C.F.R.
§226.12(c) and §226.13, respectively. When
the credit account is established the
creditor is required by 12 C.F.R. §226.6(d)
to furnish the consumer with a detailed
statement of those rights, in the form set
forth in the appendix to Regulation Z. The
creditor is also required by 12 C.F.R.
§226.9 to furnish a similar statement of
rights to the consumer either annually or
with each periodic billing statement. The
consumer is advised in these statements that
he or she has 60 days from the receipt of a
periodic statement containing a billing
error to give the creditor notice of the
error. The statements and 12 C.F.R. §226.13
set forth the detailed procedures to be
followed in resolving the alleged billing
error.
In this rather elaborate regulatory
context, a logical inference can be drawn
from a consumer's failure to assert a
billing error that the new balance set forth
in the periodic statement is true and
correct. Accordingly, the Committee
believes that it should be sufficient proof
for entry of default judgment, in suits on
credit accounts subject to the Truth in
Lending Act, if the plaintiff attaches to
the affidavit a copy of the periodic
statement for the last billing cycle or a
computer-generated report setting forth the
financial information required to be in that
statement.
[1992 Report of the Supreme Court Committee
on Special Civil Practice at 33-35.]
40 A-6078-11T4
We have held that Rule 6:6-3(a) provides a guide to the
proofs necessary for the entry of summary judgment in a suit on
a credit card.13 Colvell, supra, 421 N.J. Super. at 6. As the
1992 Report of the Civil Practice Committee makes clear, the
elaborate regulatory requirements for the issuance of credit
cards, including the duty of card issuers to provide detailed
periodic account statements, imbues such statements with
"sufficient indicia of trustworthiness and reliability normally
found in business records" admitted under the Rule. Feldman v.
Lederle Labs., 132 N.J. 339, 354 (1993).
The account statements meet all the foundation requirements
of N.J.R.E. 803(c)(6). Although the certifications submitted by
plaintiffs could have been more specific as to plaintiffs'
acquisition of the account statements in connection with their
purchase of defendants' charged-off credit card debts, we reject
defendants' contention that more was required from plaintiffs'
employees to authenticate the account statements under N.J.R.E.
901 and Hahnemann.
Defendants express significant concern over admitting
electronically-transmitted credit card account statements for
13
As the account statements were before the trial courts in both
cases, the concerns we raised in Colvell where such statements
were not admitted are not present here. Colvell, supra, 421
N.J. Super. at 6-8.
41 A-6078-11T4
accounts that have been assigned several times, but they have
not pointed to anything in the record to suggest that the
statements proffered by plaintiffs are not trustworthy.14
Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 380 (2007)
("[t]here is no reason to believe that a computerized business
record is not trustworthy unless the opposing party comes
forward with some evidence to question its reliability.
Hahnemann[, supra, 292 N.J. Super at 18]."). It is not lost on
us that plaintiffs filed their complaints and summary judgment
motions electronically in the Special Civil Part, and that the
judges entered their orders granting the motions in the
Judiciary Electronic Filing and Imaging System (JEFIS), where
they are maintained in electronic case jackets. See Notice to
the Bar: Mandatory Electronic Filing in the Special Civil Part
of the Law Division of the New Jersey Superior Court – Phase Two
1-2 (2010), available at http://www.judiciary.state.nj.us/
14
Zaidi contends that the legend "This Statement is a Facsimile
– Not an Original," on the account statements, provides yet
another reason for not admitting them, relying on Am. Express
Travel Related Servs. v. Vinhee (In re Vee Vinhee), 336 B.R. 437
(B.A.P 9th Cir. 2005) (upholding trial court decision to require
foundational evidence of reliability of American Express's
computer hardware and software because statements proffered bore
term "duplicate copy" as a result of being maintained
electronically). In re Vee Vinhee is not in accord with New
Jersey case law. See Carmona, supra, 189 N.J. at 380, Biunno,
Weissbard & Zegas, supra comment 2 on N.J.R.E. 803(c)(6) (2013).
42 A-6078-11T4
notices/2010/n100722.pdf. Like the litigants that appear in our
courts, our courts are increasingly reliant on electronically
filed and transmitted information.
Finally, defendants contend that the express disclaimers of
representations and warranties in the transfer of these accounts
raise sufficient reliability concerns to bar the admission of
the account statements under N.J.R.E. 803(c)(6). As noted by
the FTC in the reports on which defendants rely, commercial debt
sellers may choose not to warrant account information for
reasons other than the unreliability of that information. The
disclaimers, standing alone, are simply not enough to raise
serious doubt about the dependability of account statements that
appear regular on their face. See Matulewicz, supra, 101 N.J.
at 30. Accordingly, we conclude that the account statements
submitted by plaintiffs are admissible as business records under
N.J.R.E. 803(c)(6), and provide prima facie proof of the amount
due on the debts. See New Century Fin. Servs., Inc. v.
Dennegar, 394 N.J. Super. 595, 599 (App. Div. 2007) (concluding
that the trial judge acted within his discretion in admitting
monthly credit card statements on assigned claim).
The admission of the chain of assignments and account
statements in Zaidi's case did not, of course, assure the entry
of summary judgment. They provided only prima facie proof that
43 A-6078-11T4
MSW Capital is the owner by assignment of Zaidi's Chase-WAMU
charged-off credit card account on which $12,487.36 is due.
Sullivan, supra, 68 N.J.L. at 546-47. But in order to stave off
summary judgment, Zaidi had to come forward with evidence
sufficient to create a genuine issue as to those material facts
on which MSW's prima facie claim was based. Brill, supra, 142
N.J. at 529.
Zaidi failed to come forward with any evidence raising a
genuine dispute as to either the assignments or the account
statements. The trial court found that Zaidi had not offered
anything to dispute his responsibility for the account, the
accuracy of the amount due at charge-off, or his receipt of the
billing statements. Accordingly, we affirm the trial court's
entry of summary judgment in favor of MSW Capital.
We appreciate that the sums in these cases are often modest
and defendants commonly self-represented, but that seems all the
more reason to require that the plaintiffs' proofs be presented
in a clear and straightforward fashion. See Quality Urban Hous.
Partners, supra, 352 N.J. Super. at 543. Plaintiffs' summary
judgment filings were a morass of certifications and exhibits,
with multiple certifications submitted by the same person, often
with exhibits consisting of certifications by other persons.
44 A-6078-11T4
The assignments presented did not consistently identify the
accounts and electronic files by the same names.
In Oughla's case, New Century submitted additional proofs
in opposition to a motion for reconsideration which asserted its
original proofs were inadequate. In Zaidi's case, MSW Capital
submitted additional certifications in response to Zaidi's
cross-motion for summary judgment. We reject defendants'
contention that the judges erred in considering those additional
certifications, such matters are left to the sound discretion of
the trial judge. Capital Fin. Co. of Del. Valley v. Asterbadi,
398 N.J. Super. 299, 310-11 (App. Div.), certif. denied, 195
N.J. 521 (2008). We cannot fail to note, however, that
plaintiffs' presentation of their proofs needlessly complicated
these cases.
The requirements for affidavits in support of summary
judgment on assigned claims are clear. R. 1:6-6; Ford, supra,
418 N.J. Super. at 599-600. Affidavits in which the affiant
fails to identify specifically his position, or explain the
source of his personal knowledge of the facts to which he
attests, or attempts to authenticate attached documents without
explaining precisely what each is and how it came into the
affiant's hands should be rejected. Graef, supra, 341 N.J.
Super. at 245-46. Likewise, trial courts are free to reject any
45 A-6078-11T4
document for which there exists a genuine question of
authenticity. Triffin v. Johnston, 359 N.J. Super. 543, 550-51
(App. Div. 2003). Documents appended to a brief or statement of
material facts, not authenticated in a certification must be
rejected. Celino, supra, 211 N.J. Super. at 544; see also
Pressler & Verniero, Current N.J. Court Rules, comment on R.
1:6-6 (2014).
Although the parties raise various other points in support
of their respective positions, none is of sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We reverse the judgment in A-6078-11, New Century v.
Oughla, and remand for further proceedings. We affirm the
judgment in A-6370-11, MSW Capital v. Zaidi. We do not retain
jurisdiction.
46 A-6078-11T4 | 01-03-2023 | 09-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1540787/ | 272 N.J. Super. 540 (1994)
640 A.2d 862
COMFORTABLY YOURS, INC., PLAINTIFF-APPELLANT,
v.
DIRECTOR, DIVISION OF TAXATION, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Argued March 23, 1994.
Decided April 22, 1994.
*541 Before Judges SHEBELL, LONG and LANDAU.
Michael I. Rubenstein argued the cause for appellant (Leanza, Agrapidis & Kalebic, attorneys; Frank M. Leanza, of counsel; Steve M. Kalebic and Mr. Rubenstein, on the brief).
Lillian E. Brown, Deputy Attorney General, argued the cause for respondent (Deborah T. Poritz, Attorney General, attorney; Joseph L. Yannotti, Assistant Attorney General, of counsel; Carolyn Lurry Mapp, on the brief).
The opinion of the court was delivered by LONG, J.A.D.
Appellant, Comfortably Yours, Inc. (CYI) a New Jersey corporation involved in retail mail order sales, appeals from a use tax deficiency assessed by respondent, Director, Division of Taxation and upheld by the Tax Court. This deficiency represented the tax *542 on the cost of producing and distributing promotional catalogs at the direction of CYI by out-of-state printing contractors who shipped the catalogs by mail to customers and/or potential customers in New Jersey. On appeal, CYI contends that the Tax Court erred in determining that the production and distribution of its promotional catalogs constitute a use within the meaning of N.J.S.A. 54:32B-2(h) and in declaring that the imposition of the tax is not a violation of the commerce clause of the U.S. Const., art. I, § 8, cl. 3.
We have carefully reviewed this record in light of these contentions and have concluded that there is no warrant for our intervention. We affirm substantially for the reasons expressed by the Tax Court judge, Judge Crabtree, in his opinion of September 29, 1992. 12 N.J. Tax 570. In so doing, we recognize that the conclusion reached by the Director and approved by Judge Crabtree is not universally held and that there are fair arguments which support a contrary view. We agree with Judge Crabtree however, that the imposition of the use tax in these circumstances is a reasonable interpretation of the New Jersey Sales and Use Tax Act, N.J.S.A. 54:32B-1 to -29, and that it has support in case law and commentary and does not run afoul of any constitutional provision. D.H. Holmes Co. v. McNamara, 486 U.S. 24, 108 S.Ct. 1619, 100 L.Ed.2d 21 (1988); Mervyn's v. Arizona Dept. of Revenue, 173 Ariz. 644, 845 P.2d 1139 (Tax 1993); L.M. Berry & Co. v. Blackmon, 231 Ga. 659, 203 S.E.2d 520 (1974); K. Mart Corp. v. Idaho State Tax Comm'n, 111 Idaho 719, 727 P.2d 1147 (1986), appeal dismissed, 480 U.S. 942, 107 S.Ct. 1597, 94 L.Ed.2d 784 (1987); Chesapeake & Potomac Tel. Co. v. Comptroller, 72 Md. App. 293, 528 A.2d 536; J.C. Penney Co. v. Olsen, 796 S.W.2d 943 (Tenn. 1990); II Hellerstein & Hellerstein, State Taxation § 16.03(3)(a), 16-16 to 16-17 (1992).
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1354165/ | 462 S.E.2d 25 (1995)
341 N.C. 364
STATE of North Carolina
v.
Ernest Paul McCARVER.
No. 384A92.
Supreme Court of North Carolina.
September 8, 1995.
*30 Michael F. Easley, Attorney General by Charles M. Hensey, Special Deputy Attorney General, for State.
Malcolm Ray Hunter, Jr., Appellate Defender by Gordon Widenhouse, Assistant Appellate Defender, Raleigh, for defendant-appellant.
MITCHELL, Chief Justice.
Defendant was indicted for the 2 January 1987 murder and robbery with a dangerous weapon of Woodrow F. Hartley. He was tried capitally at the 18 April 1988 Criminal Session of Superior Court, Cabarrus County, and was found guilty of both crimes. The jury recommended a sentence of death for the murder, and the trial court sentenced defendant accordingly. The trial court sentenced defendant to forty years in prison for the robbery with a dangerous weapon conviction. On appeal, this Court ordered a new trial on both charges, concluding that prejudicial error occurred when jurors were excused during the capital trial as a result of unrecorded bench conferences between the trial court and jurors in the absence of defendant and his counsel. State v. McCarver, 329 N.C. 259, 404 S.E.2d 821 (1991).
Defendant's second trial occurred at the 8 September 1992 Special Criminal Session of Superior Court, Cabarrus County, before a jury selected from a special venire from Rowan County. Defendant was again convicted of murder in the first degree and robbery with a dangerous weapon. In a capital sentencing proceeding, the jury recommended and the trial court ordered a sentence of death for the murder conviction. The trial court also imposed a sentence of forty years' imprisonment for robbery with a dangerous weapon. Defendant now appeals to this Court.
Evidence presented by the State and defendant at the guilt-innocence and sentencing phases of defendant's trial tended to show the following facts and circumstances: Woodrow F. Hartley was killed on 2 January 1987. An autopsy revealed that Hartley suffered from a bruised neck, a scrape on his chin, a skin tear on his wrist, and three knife wounds to the chest. Dr. Robert L. Thompson, a forensic pathologist, testified that Hartley was alive at the time his neck was injured and that his death was caused by a stab wound which made a one-half inch incision in his aorta. Additionally, Dr. Thompson testified that Hartley had several fractured ribs on his left side which appeared to be caused by something consistent with a person's knees pressed against the ribs.
While working at K & W Cafeteria in Concord, North Carolina, defendant and his brother, Lee McCarver, met and were befriended by Woodrow Hartley. Defendant was sporadically employed at the cafeteria from September 1977 through June 1984. Defendant's usual job was to wash dishes.
On 1 March 1984, defendant was placed on probation for his conviction of eight counts of felonious larceny and one count of forgery. Shortly thereafter, defendant was sent to prison for violating his probation. Defendant believed that Woodrow Hartley, James O'Neal, or defendant's father was responsible for his probation being revoked.
In September 1986, defendant was employed by Shearin Roofing Company in Monroe. While employed with the roofing company, defendant often sought ways to get money. Defendant told co-workers about an old man who worked at K & W Cafeteria who would be an easy target to rob because he always arrived early in the morning to open the cafeteria. Additionally, defendant said the old man had a lot of money on him, especially near payday.
On the evening of 1 January 1987, defendant borrowed a knife from a fellow employee. Early the following morning, defendant and Jimmy Rape drove to Concord in defendant's brown Pontiac. At some time between 4:15 and 4:20 a.m. on Friday, 2 January 1987, defendant was observed by a police officer traveling toward the Carolina Mall in Concord.
From his past employment, defendant was aware that the victim came to work early in the morning. On 2 January 1987, defendant and Rape entered through the rear entrance of the K & W Cafeteria shortly after Hartley arrived at 5:00 a.m. Defendant walked up to Hartley and talked to him for a few minutes. Rape grabbed Hartley from behind in a *31 headlock and attempted to strangle him. Rape released Hartley, who was then grabbed by defendant in a headlock. When defendant let him go, Hartley fell to the ground. Defendant took a knife from his pants pocket and stuck it into Hartley's chest several times. Hartley died within minutes.
Gene Blovsky, an employee of the cafeteria, observed defendant's automobile parked near the back door of the cafeteria. He saw defendant emerge from behind a wall; defendant was carrying a knife, which he attempted to hide in his right hand. Next, Blovsky saw Hartley lying on the floor in the hallway with a spot of blood on his wrist. Blovsky saw another man near Hartley, realized what had happened, became frightened, and ran out the door. Blovsky then observed defendant and Rape as they left the cafeteria and drove off slowly in defendant's automobile.
Defendant and Rape went to David Shearin's residence at 7:00 a.m. on 2 January 1987 to receive their work assignments. Before going to their assigned job site, defendant and Rape pawned a 1902 silver dollar, which had been taken from the victim, for seven dollars at a Monroe pawn shop. Defendant and Rape were arrested by Monroe police at their assigned job site.
After the arrest, defendant and Rape were transported to the Concord Police Department in separate vehicles. Detective Dennis Andrade read defendant his rights. When asked whether he would answer questions without an attorney, defendant responded that he would and signed a waiver. Detective John Hatley was present with Detective Andrade when defendant gave his statement.
Initially, defendant did not give information pertaining to the murder of Hartley at the K & W Cafeteria. Detective Andrade then informed defendant that the police knew everything and that defendant's brother, Lee, had told the police that he had passed defendant while driving his automobile to the K & W Cafeteria. After speaking with his brother, defendant confessed to murdering Hartley.
Several days after defendant confessed to the crime, defendant's brother, Lee, was interviewed by Detective Andrade. Lee stated that after defendant had killed Hartley, defendant told Lee that he was going to the Kannapolis K & W Cafeteria to kill James O'Neal. Defendant said he felt that O'Neal was responsible for his probation being revoked.
Dr. Faye Sultan, a clinical forensic psychologist, testified as an expert regarding her examination and evaluation of defendant. Dr. Sultan's testimony was that defendant was diagnosed as suffering from borderline intellectual functioning with the intellectual and emotional capability of a ten- or twelve-year-old. Defendant had a history of acute depression throughout his life, leading to a diagnosis of dysthymia. Defendant had a substance and alcohol abuse disorder stemming from his childhood experiences. Additionally, defendant was diagnosed as having a personality disorder that was a direct consequence of sexual abuse as a child and a total lack of nurturing. Dr. Sultan also testified that defendant suffered from a mental and emotional disorder that affected his conduct and impaired his capacity to appreciate the criminality of his conduct and that he had a history of passive orientation and nonviolence. Dr. Sultan felt that defendant functioned well in a structured environment as demonstrated by his record while in custody. Additionally, Dr. Sultan testified that defendant suffered greatly from having been emotionally neglected.
On the murder charge, the jury was instructed that it could find defendant guilty of first-degree murder, guilty of second-degree murder, or not guilty. On the robbery charge, the jury was instructed that it could return a verdict of guilty of robbery with a dangerous weapon or not guilty. The jury returned verdicts of guilty of first-degree murder (under theories of premeditation and deliberation and of felony murder) and guilty of robbery with a dangerous weapon.
In seven assignments of error, defendant contends that errors made by the trial court during the jury selection and guilt determination phases entitle him to a new trial. As to each of these assignments of error, defendant contends that both his federal and state constitutional rights were violated. While defendant couches all of his assignments of *32 error in constitutional terms, many of them involve only a question of whether a particular statute or rule of law was followed by the trial court in its rulings. As to each of these assignments of error, a determination that the particular statutes or rules of law have not been violated resolves any possible question of a constitutional violation.
In defendant's first assignment of error, he contends that the trial court committed reversible error in sustaining objections to his questions of a prospective juror regarding the juror's views about defendant's mental impairments and psychiatric testimony. Defendant argues that his questions were proper under the law and were designed to enable him to select an impartial jury and make intelligent use of his peremptory challenges. Defendant contends that the restrictions on his inquiries violated his federal and state constitutional rights to due process of law and freedom from cruel and unusual punishment. We conclude that the trial court did not unduly restrict defendant's inquiries regarding the juror's views; therefore, defendant's federal and state constitutional rights were not violated.
It is well established that both the State and defendant are entitled to a fair and unbiased jury. "[T]he primary purpose of the voir dire of prospective jurors is to select an impartial jury." State v. Lee, 292 N.C. 617, 621, 234 S.E.2d 574, 577 (1977).
The focus of defendant's argument is the voir dire examination of potential juror Danny Burton by defense counsel. The following colloquy occurred:
MR. GROSSMAN: I'm not sure I understand now. Let me make sure I understand. I believe you said that everybody who commits first degree murder
JUROR BURTON: Premeditated.
MR. GROSSMAN: ... premeditated murder should receive the death penalty
JUROR BURTON: Yes.
MR. GROSSMAN: ... period.
JUROR BURTON: Period.
MR. GROSSMAN: No matter what they show as the mitigating factors.
JUROR BURTON: Okay, I understand that. No, that shouldn't. I understand what you're saying now.
MR. GROSSMAN: Can you explain why you've sort of changed? Maybe you don't understand. Maybe I don't understand, that's not unusual either.
JUROR BURTON: Well, it's just my opinion that a premeditated murder should beyou knowis a capital crime which should be punishable by death; but there are extreme circumstances, I reckon, or mitigating factors that would say, you know, that it's not justified punishment.
MR. GROSSMAN: Let me ask you this: Would you be able to considerwe asked this question earlierwhat type of mitigation would you require in order to consider a life sentence?
MR. KENERLY: Objection.
THE COURT: Sustained.
MR. GROSSMAN: Would you be able to consider psychological testimony about Mr. McCarver himself as mitigating?
MR. KENERLY: Objection.
THE COURT: Sustained.
Using one of his peremptory challenges, defendant excused Burton. At the end of the selection process for the twelve regular jurors and the two alternate jurors, defendant had four peremptory challenges remaining. Thus, defendant cannot show prejudice as it relates to sustaining the objections as to questions asked of juror Burton. State v. Conner, 335 N.C. 618, 633, 440 S.E.2d 826, 834 (1994) (no prejudicial error in not allowing defense counsel to question potential juror who was challenged peremptorily where defendant failed to exhaust peremptory challenges); State v. Avery, 315 N.C. 1, 21, 337 S.E.2d 786, 797 (1985) (no prejudicial error or abuse of discretion in refusing to allow defense counsel to elicit information from juror where defendant did not exhaust his peremptory challenges).
Defendant further argues that the trial court tended to keep all inquiries about psychological testimony out of the selection process and that the trial court's ruling in regard to juror Burton chilled subsequent inquiry as to potential jurors' attitudes on psychological *33 testimony through the remainder of the selection process. Defendant's assertions are unsupported by the record. The record indicates that defendant was permitted to question at least five other potential jurors about psychological evidence. Four of the five jurors were questioned after defendant used his peremptory challenge to excuse Burton. Thus, we conclude that defendant's inquiry as to jurors' attitudes about psychological testimony was not chilled by the trial court's ruling and that defendant has not shown prejudicial error in the jury selection process. Defendant was able to select a fair and impartial jury; thus, we reject defendant's first assignment of error.
By his second assignment of error, defendant contends that the trial court committed error by denying his motion to quash the venire after the district court had excused many prospective jurors outside the presence of defendant and his counsel. Specifically, defendant argues that by excusing twenty-three prospective jurors and deferring seven prospective jurors prior to the jury voir dire, the district court violated three of defendant's important protections: (1) his unwaivable state constitutional right to be present at each stage of the capital proceeding, (2) his federal constitutional right to due process of law, and (3) a statutory right to a complete recordation of the jury selection proceedings in a capital case. We find no merit in defendant's contentions.
Each of defendant's contentions assumes that the actions of the trial court occurred during a stage of his capital trial. Here, however, the actions complained of occurred prior to the commencement of defendant's capital trial. Thus, the statute and cases cited by defendant do not apply. Defendant did not have a right to be present when the district court judge in Rowan County excused the prospective jurors; therefore, his statutory right and constitutional rights were not violated.
Because of the publicity surrounding this case, the trial court determined that a jury should be selected from Rowan County and that the jury would be transported every day from Rowan to Cabarrus County. Superior Court Judge James C. Davis signed an order directing the selection of a special venire from Rowan County, and the names for the special venire were drawn during the month of August 1992. Defendant and his counsel were not present when the names for the special venire were drawn or when the district court judge in Rowan County excused twenty-three jurors and deferred seven during the screening process, which was completed on 28 August 1992. However, defendant made no requests to attend either of those proceedings.
On 2 September 1992, defendant filed a written motion to quash the venire on the basis that neither defendant nor his counsel had been present when the district court judge excused and deferred persons selected for the venire. Defendant's case was called for trial on 8 September 1992. Before jury voir dire for the trial started, defendant's motion was heard; after arguments, it was denied.
A similar situation was before this Court in State v. Cole, 331 N.C. 272, 415 S.E.2d 716 (1992). In Cole, the presiding superior court judge heard excuses from members of a venire who had been summoned to serve for a session of court that started on 17 July 1989. The report of the case does not indicate that defendant made any request to be present during the screening process. The presiding superior court judge questioned individual members of the venire at the bench, off the record and out of the presence of defendant and defendant's counsel. The record indicated that the judge "excused those or deferred those that seemed appropriate." Id. at 274, 415 S.E.2d at 716. The remaining members of the venire were administered the oath and dismissed until the next day, 18 July 1989, when the defendant's case was called for trial. We held that it was error to excuse jurors after an unrecorded bench conferences on 19 July 1989 because the defendant's capital trial had commenced and his unwaivable right of presence had attached. However, we rejected the defendant's argument that the trial court committed error by dismissing members of the venire prior to trial and out of defendant's presence. We explained our reasoning as follows:
*34 In this case, it was not error for the court to excuse prospective jurors after the unrecorded bench conferences on 17 July 1989. The defendant's trial had not commenced at that time. The jurors were not excused at a stage of the defendant's trial and the defendant did not have the right to be present at the conferences.
Id. at 275, 415 S.E.2d at 717.
Likewise, in this case, defendant's capital trial had not begun at the time the potential jurors were excused or deferred by the district court judge. Since defendant's capital trial had not commenced, defendant's unwaivable right of presence had not attached. Id.
Defendant distinguishes Cole from this case by arguing that the jury venire in Cole was not picked for a specific trial; while, in this case, the venire was picked specifically for defendant's trial. Essentially, defendant argues that the trial actually began when the district court judge heard excuses pursuant to the authority granted under N.C.G.S. § 9-6(b). Defendant does not cite, and we are unable to find, any authority for the proposition that a capital trial begins prior to the calling of the case for trial. Furthermore, the selection process authorized by N.C.G.S. § 9-6(b) is essentially a pretrial screening process which is delegated to the district court, rather than a part of the capital trial. The district court has no authority to conduct a capital trial; only the superior court has such authority. We decline to extend the unwaivable right to be present at every stage of a capital trial to pretrial jury selection matters.
In his third assignment of error, defendant contends that the trial court erred in permitting the prosecutor to inform jurors that defendant had been previously tried and that corrective appellate review would be available in this case. Defendant argues that this error tended to diminish the jury's responsibility, thereby denying defendant his federal and state constitutional rights to a fair trial, due process of law, and freedom from cruel and unusual punishment. We conclude that the prosecutor's statements did not tend to diminish the jury's responsibility in this capital case; therefore, defendant's state and federal constitutional rights were not violated.
During the jury selection process, the prosecutor made the following statement:
Two other things that you are going to realize is that there has been a previous trial of this matter; and this is a new trial. The information that will be presented, you'll be hearing for the first time. Can you try this case based upon the evidence that is taken and the law that you receive instruction on and make a decision based on that and not be concerned about any other proceedings that [a]ffected Mr. McCarver? If you have any doubts about your ability to do that, if you'd raise your hand.
Defendant did not object to this statement by the prosecutor. Nevertheless, defendant now contends that this statement tended to diminish the jurors' sense of responsibility for their verdict by suggesting that the verdict might be reviewed. We do not agree.
The prosecutor's comment about a previous trial was made without elaboration as to how the new trial came about and with no comment on the results of the prior trial. Clearly, the jurors' understanding of their responsibilities was not diminished by the prosecutor's statement, and no fundamental right to a fair trial was denied. See State v. Green, 336 N.C. 142, 443 S.E.2d 14, cert. denied, ___ U.S. ___, 115 S.Ct. 642, 130 L.Ed.2d 547 (1994); State v. Simpson, 331 N.C. 267, 415 S.E.2d 351 (1992). This assignment of error is without merit.
In his fourth assignment of error, defendant argues that the trial court erred in rescinding its prior order which required that a special venire be summoned in Mecklenburg County for the purpose of selecting a jury to try defendant's case. Defendant contends that his state and federal constitutional rights to a fair trial, due process of law, and freedom from cruel and unusual punishment were violated. Additionally, defendant contends that his statutory right to a complete recordation of the proceedings in a capital case was violated. We reject defendant's contentions.
*35 The trial court rescinded its special venire order prior to the commencement of defendant's trial. As stated in response to defendant's second assignment of error, defendant did not have an unwaivable right of presence at the jury selection proceedings which took place prior to his case being called for trial. Additionally, defendant's statutory right to a recordation of the capital trial was not violated by the pretrial order.
The record in this case discloses that the trial court rescinded its order for a special venire from Mecklenburg County because administrative support and physical facilities were not available in Mecklenburg County due to the trial of another capital case. Thus, no abuse of discretion appears. Further, there is no indication that defendant ever requested that pretrial matters be recorded. Accordingly, we reject this assignment of error.
By his fifth assignment of error, defendant argues that the trial court committed reversible error in denying his motion for the disclosure of material evidence in the possession of the prosecutor. Defendant further argues that the trial court committed error in denying his motions for a mistrial or, in the alternative, a new sentencing hearing. Defendant contends a mistrial should have been granted based on the prosecution's use of an undisclosed statement of defendant that substantially prejudiced him by permitting the prosecutor to rely on an improper argument for motive at the guilt determination phase of the trial. Defendant contends that the trial court's error violated his federal and state constitutional rights to a fair trial, due process of law, and freedom from cruel and unusual punishment. We conclude that no error was committed by the trial court; thus, defendant's state and federal constitutional rights were not violated.
Pursuant to N.C.G.S. § 15A-903(a)(2), defendant made a pretrial request for voluntary discovery, seeking in part the disclosure of any statement made by defendant regardless of the person to whom the statement was made. Defendant simultaneously made a motion, pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), for the disclosure of exculpatory information, including matters which suggested a lessened culpability of defendant with respect to guilt or punishment. The prosecution responded that all such matters had been disclosed. The trial court denied defendant's motion for the disclosure of exculpatory information; however, the trial court made it clear that if anything became available to the State, the State must immediately notify the defense both by telephone and in writing.
Under N.C.G.S. § 15A-910, when a party fails to comply with a discovery order, the trial court may grant a continuance or a recess, prohibit the violating party from introducing the nondisclosed evidence, or enter any other appropriate order. Because the trial court is not required to impose any sanctions for abuse of discovery orders, what sanctions to impose, if any, are within the trial court's discretion. State v. Alston, 307 N.C. 321, 298 S.E.2d 631 (1983); State v. Braxton, 294 N.C. 446, 242 S.E.2d 769 (1978).
At the capital sentencing proceeding, Lee McCarver testified for defendant. He was cross-examined by the State about a statement he had made five years earlier to police. Lee indicated that he did not recall the statement. Defendant objected and moved to strike the question; the objection was allowed, and the jury was instructed to disregard the question.
Outside the presence of the jury, defendant moved for a mistrial or a new capital sentencing proceeding. In the ensuing discussion between counsel and the trial court, it was determined that the State had in its possession a written statement from Lee McCarver to an officer of the Concord Police Department that had not come to the prosecutor's attention until the preceding day. Lee's statement related to defendant's belief that Hartley was responsible for defendant's parole being revoked. The statement had not been furnished to defendant prior to trial. The trial court denied both the motion for a mistrial and the motion for a new capital sentencing proceeding.
In State v. Blackstock, this Court concluded that "[a] mistrial is appropriate only *36 when there are such serious improprieties as would make it impossible to attain a fair and impartial verdict under the law." State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985). Whether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion. State v. Ward, 338 N.C. 64, 92-93, 449 S.E.2d 709, 724 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2014, 131 L.Ed.2d 1013 (1995). In this case, we conclude that the prosecution's conduct did not amount to such a serious impropriety as to make it impossible for defendant to receive a fair and impartial verdict. For this reason, we conclude that the trial court's denial of defendant's motion for a mistrial did not amount to a manifest abuse of discretion reversible on appeal.
As for the trial court's refusal to grant a new capital sentencing proceeding, we again find no error. Defendant has failed to show any abuse by the State of the discovery order or any abuse of discretion by the trial court. The prosecutor discovered the existence of Lee McCarver's statement only a day before seeking its admission. Even if we were to assume some culpability on the part of the prosecutor for not immediately bringing the statement to the attention of defendant, the trial court sustained defendant's objection and instructed the jury to disregard any reference to the statement. Jurors are presumed to follow a trial court's instructions. State v. Rouse, 339 N.C. 59, 92, 451 S.E.2d 543, 561 (1994), reconsideration denied, 339 N.C. 619, 453 S.E.2d 188 (1995). Consequently, defendant has failed to show any prejudice from these statements. This assignment of error is without merit.
In his sixth assignment of error, defendant contends that the trial court erred in allowing defense counsel to make important tactical decisions about this case without allowing defendant's wishes to control in violation of this Court's opinion in State v. Ali, 329 N.C. 394, 407 S.E.2d 183 (1991). We do not believe that Ali applies here, and we reject defendant's argument.
During the State's cross-examination of Lee McCarver, defendant asked to speak to the trial court outside the presence of the jury. Before addressing the trial court, defendant spoke privately with defense counsel, who, after the discussion, stated that defendant "will not speak." Defense counsel then said that Lee McCarver's testimony "had a profound effect upon [defendant]." Concerned that his client might walk out of the proceeding and delay its progression, defense counsel stated:
Two or three times this morning [defendant] wanted me to stop the trial and I refused. Frankly, I was on the edge of my seat wondering if [defendant] would simply get up and walk out. I'm not saying he's violent or anything like that, but he's just having a hard time hearing it.
I would like the Court to know that, if I may. I will not let [defendant] run this case. He knows that. He does not control the defense, he can make suggestions. But if his state is so bad, Your Honor, I may stand up at a point and say, "May we have a short recess?"
Defendant also points to the fact that he was not consulted in the peremptory excusal of prospective juror Cindy Grant.
In Ali, this Court held that "when counsel and a fully informed criminal defendant client reach an absolute impasse as to ... tactical decisions, the client's wishes must control." Ali, 329 N.C. at 404, 407 S.E.2d at 189. Although defense counsel in the present case may have employed a better choice of words in describing the situation at the time, we find no indication in the record of "an absolute impasse" between the client and the defense team as it concerned trial tactics. At no time did defendant voice any complaints to the trial court as to the tactics of his defense team. Accordingly, we conclude that defense counsel acted properly, and we reject this assignment of error.
In his seventh assignment of error, defendant contends that the trial court committed constitutional error in its jury instructions on the principle of acting in concert. Defendant argues that these instructions allowed the jury to apply the principle of acting in concert to convict defendant of specific-intent *37 crimes if it found that another perpetrator had the requisite mens rea to commit them and that the instructions did not require jurors to determine whether defendant ever formed the specific intent required to commit the underlying felony supporting felony murder. We find no error in the trial court's jury instructions.
At the jury instruction conference and before the jury began its deliberation, the trial judge inquired as to whether there were any objections to his giving pattern jury instructions on acting in concert. Defendant did not object to the instructions nor did he request additional instructions or corrections. The trial court gave the pattern jury instructions. Since defendant did not object at trial to these instructions, this issue is before this Court for review only for "plain error." State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).
In State v. Abraham, 338 N.C. 315, 451 S.E.2d 131 (1994), this Court recently addressed the doctrine of acting in concert. This Court stated:
Under the doctrine of acting in concert, where a single crime is involved, one may be found guilty of committing the crime if he is at the scene acting together with another with whom he shares a common plan to commit the crime, although the other person does all the acts necessary to effect commission of the crime. Under this doctrine, where multiple crimes are involved, when two or more persons act together in pursuit of a common plan, all are guilty only of those crimes included within the common plan committed by any one of the perpetrators. As a corollary to this latter principle, one may not be criminally responsible as an accomplice under the theory of acting in concert for a crime which requires a specific intent, unless he, himself, is shown to have the requisite specific intent.... In other words, one may not be found guilty of a crime requiring a specific intent under the acting in concert doctrine unless the crime was part of the common purpose or the specific intent on the part of the one sought to be charged is independently proven.
Id. at 346, 451 S.E.2d at 147 (citations omitted). We conclude that the instructions in this case were in compliance with the doctrine stated in Abraham.
In this case, the trial court gave the following instructions:
Members of the jury, for a person to be guilty of a crime it is not necessary that he himself do all the acts necessary to constitute the crime. If one or more persons act together with a common purpose to commit a robbery with a dangerous weapon, each of them is held responsible for the acts of the others done in the commission of that crime.
So members of the jury, I charge that if you find from the evidence, beyond a reasonable doubt, that on or about the date in question the defendant, acting either by himself or acting together with Jimmy Rape, had in his possession a dangerous weapon, and took and carried away property from the person or in the presence of a person without his voluntary consent by endangering or threatening his life with the use or threatened use of a dangerous weapon, the defendant knowing that he was not entitled to take the property and intending to deprive that person of its use permanently, it would be your duty to return a verdict of guilty of robbery with a dangerous weapon.
At another point, the trial court gave the following instruction:
So finally I charge that if you find from the evidence and beyond a reasonable doubt that on or about the date in question the defendant, acting either by himself or acting together with Jimmy Rape, had in his possession a dangerous weapon, and took and carried away the property from the person or in the presence of a person without his voluntary consent by endangering or threatening their life with the use or threatened use of a dangerous weapon, the defendant knowing that he was not entitled to take the property, and intended to deprive that person of its use permanently; and if you further find, beyond a reasonable doubt, that while committing the crime of robbery with a dangerous weapon, the defendant killed the *38 victim, and that the defendant's act was a proximate cause of the victim's death, it would be your duty to return a verdict of guilty of first degree murder under the felony murder rule.
Specifically, defendant contends that the italicized portions of the above instructions allowed the jury to convict him of crimes regardless of whether defendant himself had the requisite specific intent required to commit the crime. We find no merit in defendant's argument.
A review of the instructions as a whole indicates that the jury was not misled to believe that it could convict defendant based on the intent of his confederate; rather, the instructions made it clear that defendant could have acted either alone or with another to commit the felony. Additionally, the instructions made clear that in order to convict defendant, defendant himself must have had the requisite mens rea. We conclude that the instructions in this case were in conformity with the acting in concert doctrine as set forth in Abraham; therefore, the trial court did not commit error, much less plain error.
In his final assignment of error relating to the guilt determination phase, defendant argues that the trial court committed error in instructing the jury that premeditation and deliberation could be inferred from a lack of evidence of provocation. According to defendant, this instruction misled the jury, was not supported by the evidence or applicable legal authorities, impermissibly shifted the burden of proof, and constituted an inappropriate expression of judicial opinion on the evidence, thereby denying defendant his federal and state constitutional rights to a fair trial and due process of law. We reject defendant's contention.
The trial court gave the following jury instruction:
[N]either premeditation nor deliberation is usually susceptible of direct proof. They may be proved by proof of circumstances from which they may be inferred, such as[] lack of provocation by the victim, conduct of the defendant before, during, or after the killing; threats and declarations of the defendant, use of grossly excessive force, infliction of lethal wounds after the victim is felled, brutal or vicious circumstances of the killing, or the manner in which or means by which the killing was done.
Defendant did not object to the instruction. Thus, our review is for plain error only.
We note that defendant concedes that the trial court followed the pattern jury instructions in giving this instruction. Furthermore, the instruction was consistent with previous decisions of this Court which have stated that "[p]remeditation and deliberation may be inferred from `lack of provocation on the part of the deceased.'" State v. Weathers, 339 N.C. 441, 451, 451 S.E.2d 266, 272 (1994) (quoting State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991)). This Court has also previously stated that the trial court's "mere recital" of circumstances from which premeditation and deliberation may be inferred "cannot be construed as an expression of an opinion that any of them have been proven." State v. Stevenson, 327 N.C. 259, 264, 393 S.E.2d 527, 529 (1990) (rejecting defendant's argument that instruction could be understood by the jury as an opinion of the court that the absence of provocation had been proven).
Additionally, from our review of the record, we conclude that the challenged instruction was justified by the evidence in this case. In this case, the evidence shows that there was no provocation by the victim. The evidence was that the victim, Mr. Hartley, was going about his ordinary duties when he was accosted by defendant and his companion, grabbed by the neck, choked, thrown to the floor, and then stabbed. This assignment of error has no merit.
In his first assignment of error concerning his capital sentencing proceeding, defendant contends that the trial court committed reversible error during his capital sentencing proceeding by refusing to instruct the jury that it did not need to be unanimous in order to answer "no" to Issue Three on the "Issues and Recommendation as to Punishment" form. He contends that, as a result, the instructions irreparably prejudiced him by reducing the State's burden of proof, improperly coerced a verdict, and deprived *39 him of his federal and state constitutional rights. We disagree.
Issue Three on the written Issues and Recommendation as to Punishment form given the jury in this case reads as follows:
DO YOU UNANIMOUSLY FIND BEYOND A REASONABLE DOUBT THAT THE MITIGATING CIRCUMSTANCE OR CIRCUMSTANCES FOUND BY ONE OR MORE OF YOU IS, OR ARE, INSUFFICIENT TO OUTWEIGH THE AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES FOUND UNANIMOUSLY BY YOU IN ISSUE ONE?
After deliberating for several hours, the jury sent a written inquiry to the trial court regarding Issue Three. The note read, "Must there be twelve votes, `Yes,' or twelve votes, `No,' to reach a unanimous decision?" After conferring with counsel, the trial court gave the following instruction:
The answer to that is, Yes, it must be a unanimous twelve person decision as to any answer you reach to that issue, whether it be Yes or whether it be No. It must be a unanimous twelve person decision.
Defendant requested that the trial court amend its instruction in this regard to direct the jury to answer "no"thus recommending a sentence of life imprisonmentif it could not unanimously agree as to whether the mitigators were insufficient to outweigh the aggravators. The trial court denied this request.
In a capital sentencing proceeding, any jury recommendation requiring a sentence of death or life imprisonment must be unanimous. N.C. Const. art. I, § 24; N.C.G.S. § 15A-2000(b) (Supp.1994). The policy reasons for the requirement of jury unanimity are clear. First, the jury unanimity requirement "is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury's ultimate decision will reflect the conscience of the community." McKoy v. North Carolina, 494 U.S. 433, 452, 110 S.Ct. 1227, 1238, 108 L.Ed.2d 369, 387 (1990) (Kennedy, J., concurring) (emphasis added). Second, the jury unanimity requirement prevents the jury from evading its duty to make a sentence recommendation. If jury unanimity is not required, then a jury that was uncomfortable in deciding life and death issues simply could "agree to disagree" and escape its duty to render a decision. This Court has refused to make any ruling which would tend to encourage a jury to avoid its responsibility by any such device. For example, we have expressly stated that a jury instruction that a life sentence would be imposed if a jury could not unanimously agree should never be given because it would be "tantamount to `an open invitation for the jury to avoid its responsibility and to disagree.'" State v. Smith, 305 N.C. 691, 710, 292 S.E.2d 264, 276 (quoting Justus v. Commonwealth, 220 Va. 971, 979, 266 S.E.2d 87, 92 (1980), cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), reh'g denied, 459 U.S. 1189, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983)). The jury may not be allowed to arbitrarily or capriciously take any such step which will require the trial court to impose or reject a sentence of death. State v. Pinch, 306 N.C. 1, 33, 292 S.E.2d 203, 227, cert. denied, 459 U.S. 1056, 103 S.Ct. 474, 74 L.Ed.2d 622 (1982), reh'g denied, 459 U.S. 1189, 103 S.Ct. 839, 74 L.Ed.2d 1031 (1983), overruled on other grounds by State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), and by State v. Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994). Thoughtful and full deliberation in an effort to achieve unanimity has only a salutary effect on our judicial system: It tends to prevent arbitrary and capricious sentence recommendations.
Since the sentence recommendation, if any, must be unanimous under constitutional and statutory provisions, and particularly in light of the overwhelming policy reasons for a unanimity requirement, we conclude that any issue which is outcome determinative as to the sentence a defendant in a capital trial will receivewhether death or life imprisonmentmust be answered unanimously by the jury. That is, the jury should answer Issues One, Three, and Four on the standard form used in capital cases either unanimously "yes" or unanimously "no."[1]
*40 In this case, the trial court submitted to the jury a written "Issues and Recommendation as to Punishment" form, which was slightly modified by the trial court from the standard form presented in the North Carolina Pattern Jury Instructions. N.C.P.I.Crim. 150.10 app. (1993). The form submitted read:
ISSUE ONE
DO YOU UNANIMOUSLY FIND FROM THE EVIDENCE, BEYOND A REASONABLE DOUBT, THE EXISTENCE OF ONE OR MORE OF THE FOLLOWING AGGRAVATING CIRCUMSTANCES?
ANSWER: _____.
....
IF YOU WRITE, "YES", IN ONE OR MORE OF THE SPACES AFTER THE FOLLOWING AGGRAVATING CIRCUMSTANCES, WRITE, "YES" IN THE SPACE AFTER ISSUE ONE AS WELL.
IF YOU WRITE "NO" IN ALL THE SPACES AFTER THE FOLLOWING AGGRAVATING CIRCUMSTANCES, WRITE "NO" IN THE SPACE AFTER ISSUE ONE.
....
IF YOU ANSWERED ISSUE ONE "NO", SKIP ISSUES TWO, THREE, AND FOUR, AND INDICATE LIFE IMPRISONMENT UNDER "RECOMMENDATION AS TO PUNISHMENT," ON THE LAST PAGE OF THIS FORM.
IF YOU ANSWERED ISSUE ONE "YES", PROCEED TO ISSUE TWO.
ISSUE TWO
DO YOU FIND FROM THE EVIDENCE THE EXISTENCE OF ONE OR MORE OF THE FOLLOWING MITIGATING CIRCUMSTANCES?
ANSWER: _____.
....
IF YOU ANSWERED ISSUE TWO "YES", THEN ANSWER ISSUE THREE.
IF YOU ANSWERED ISSUE TWO "NO", THEN SKIP ISSUE THREE AND ANSWER ISSUE FOUR.
ISSUE THREE
DO YOU UNANIMOUSLY FIND BEYOND A REASONABLE DOUBT THAT THE MITIGATING CIRCUMSTANCE OR CIRCUMSTANCES FOUND BY ONE OR MORE OF YOU IS, OR ARE, INSUFFICIENT TO OUTWEIGH THE AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES FOUND UNANIMOUSLY BY YOU IN ISSUE ONE?
ANSWER: ______.
IF YOU ANSWER ISSUE THREE "NO", THEN INDICATE LIFE IMPRISONMENT UNDER "RECOMMENDATIONS AS TO PUNISHMENT".
IF YOU ANSWER ISSUE THREE "YES", THEN PROCEED TO ISSUE FOUR.
ISSUE FOUR
DO YOU UNANIMOUSLY FIND BEYOND A REASONABLE DOUBT THAT THE AGGRAVATING CIRCUMSTANCE OR CIRCUMSTANCES FOUND UNANIMOUSLY BY YOU IN ISSUE ONE IS, OR ARE, SUFFICIENTLY SUBSTANTIAL TO CALL FOR THE IMPOSITION OF THE DEATH PENALTY WHEN CONSIDERED WITH THE MITIGATING CIRCUMSTANCE OR CIRCUMSTANCES FOUND BY ONE OR MORE OF YOU?
ANSWER: _____.
IF YOU ANSWER ISSUE FOUR "NO", INDICATE LIFE IMPRISONMENT UNDER "RECOMMENDATION AS TO PUNISHMENT" ON THE LAST PAGE OF THIS FORM.
IF YOU ANSWER ISSUE FOUR "YES", INDICATE DEATH UNDER "RECOMMENDATION AS TO PUNISHMENT".
*41 RECOMMENDATION AS TO PUNISHMENT
INDICATE YOUR RECOMMENDATION AS TO PUNISHMENT BY WRITING "LIFE IMPRISONMENT" OR "DEATH" IN THE BLANK IN THE FOLLOWING SENTENCE:
WE, THE JURY, UNANIMOUSLY RECOMMEND THAT THE DEFENDANT, _____, BE SENTENCED TO _____.
(Emphasis added.)
If unanimity is required only when the jury answers "yes" for Issue Three, as defendant suggests, then the jury must be instructed to answer "no"and to end the case by recommending life imprisonmentin two situations: (1) when the jury unanimously agrees to answer "no," and (2) when the jury is not unanimous. Both the form given the jury and the jury instructions direct the jury that if it answers "no" to Issue Three, it must recommend life imprisonment. This instruction, if not coupled with an instruction requiring unanimity, conflicts with the Constitution of North Carolina and with the language of our death penalty statute and will force juries to recommend life imprisonment when they are not unanimous. Allowing nonunanimous juries to reach final sentence recommendations of life imprisonment is in direct contradiction to our statutory requirement that "the sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors." N.C.G.S. § 15A-2000(b); see Green, 336 N.C. 142, 443 S.E.2d 14.
The requirement of jury unanimity for either "yes" or "no" answers for Issues One, Three, and Four ensures that the jury properly fulfills its duty to deliberate genuinely for a reasonable period of time in its efforts to exercise guided discretion in reaching a unanimous sentencing recommendation, as required by the Constitution of North Carolina and by our death penalty statute itself. The legislature intended just such a unanimity requirement and intended that should the jury be unable to agree unanimously as to any issue ultimately dispositive of life or death, the jury simply should report that fact to the trial court. It would then be the trial court's duty to impose a sentence of life imprisonment. See N.C.G.S. § 15A-2000(b) ("If the jury cannot, within a reasonable time, unanimously agree to its sentence recommendation, the judge shall impose a sentence of life imprisonment...."). The statutory scheme established by the legislature has the pronounced advantage of providing that a life sentence shall be entered by the trial court if the jury is unable to reach unanimity as to any of the dispositive issues. However, it does so without encouraging any juror to vote for death or life without honestly deliberating with the other jurors, simply because he or she has been informed that he alone may require that a sentence of life be entered by holding out against the other eleven jurors.
The defendant bases his argument on the language used in the printed "Issues and Recommendation as to Punishment" form drawn from the North Carolina Pattern Instructions and used in this case. N.C.P.I.Crim. 150.10 app. Defendant argues that language used on the form requires that a negative response to Issue Three must be given when the jury cannot come to a unanimous decision as to the proper sentence. Although Issue Three on the form and the trial court's initial instructions on the issue may be subject to such interpretation, we will not allow such strained syntax and semantics to determine serious issues of law.
As discussed above, Issue Three as well as Issue One and Issue Four are ultimately dispositive of the jury's recommendation as to whether the defendant must live or die. See McKoy v. North Carolina, 494 U.S. at 463, 110 S.Ct. at 1244, 108 L.Ed.2d at 398 (Scalia, J., dissenting) (Issues Three and Four are "ultimately dispositive"). If a jury answers any of those three issues "no," it must recommend a life sentence. If a jury answers all three of those issues "yes," it must recommend a sentence of death. State v. Robbins, 319 N.C. 465, 515, 356 S.E.2d 279, 308-09, cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). The answers to all three of those ultimately dispositive issues leading to any such recommendation must be reached by unanimous decision, whether the jury answers "yes" or "no." N.C.G.S. § 15A-2000(b). If we do not require *42 unanimity for a jury decision of any issue "ultimately dispositive" as to its recommendation that a defendant live or die, we will violate both our Constitution and our capital punishment statute. Further, we will render capital sentencing proceedings in North Carolina arbitrary and capricious by allowing the unguided discretion of a single juror voting "no" to decide the sentence (life imprisonment) the defendant must receive.
If a jury is unable to agree as to Issue One, Issue Two, or Issue Three after a reasonable time, the trial court will of course be required to acknowledge that fact and itself enter a judgment of imprisonment for life. N.C.G.S. § 15A-2000(b). The jury should not be made aware of this state of the law, however, as to inform the jury that its failure to agree on determinative issues will result in a sentence of life imprisonment would be an open invitation to the juryor a single jurorto avoid its responsibility to fully deliberate and to force a recommendation of life by the simple expedient of disagreeing. State v. Smith, 305 N.C. at 710, 292 S.E.2d at 276. Thus, it has been our law that even when the jury specifically asks what the ultimate result will be if it fails to reach unanimity, the trial court may only inform the jurors that their inability to reach unanimity "should not be their concern but should simply be reported to the court." State v. Smith, 320 N.C. 404, 422, 358 S.E.2d 329, 339 (1987). Here, however, the jury made no such express or specific inquiry, and no such additional instruction was required. Id.
For the foregoing reasons, we conclude that the trial court did not err in its oral answer to the jury's questions when it stated that the jury must be unanimous before answering either "yes" or "no" to Issue Threea dispositive issue with regard to the decision of whether the defendant must live or die. Further, the fact that Issue Three on the form used in this case, and the trial court's initial instructions on that issue, could be read as improperly directing that the jury answer "no" if unable to reach unanimity did not amount to prejudicial error. Assuming that the jury understood Issue Three on the written form to require it to answer "no" if it could not reach unanimity, such an erroneous instruction was favorable to the defendant; the jury would have thought that only one juror need have voted "no" to require that the jury answer the issue "no" and a sentence of life be entered. Such an error favorable to a defendant is clearly harmless beyond a reasonable doubt. See State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982) (improper instruction on self-defense which was advantageous to defendant held harmless beyond reasonable doubt). For the foregoing reasons, this assignment of error is without merit.
In a related assignment of error, defendant contends that the trial court committed reversible error by instructing the jury to resume deliberations in an effort to render a unanimous decision without offering the jury any specific way to report an inability to achieve unanimity.
After the jury asked in a written question, "Must there be twelve votes, `Yes,' or twelve votes, `No,' to reach a unanimous decision?" the following colloquy occurred:
THE COURT: The answer to that is, Yes, it must be a unanimous twelve person decision as to any answer you reach to that issue, whether it be Yes or whether it be No. It must be a unanimous twelve person decision.
Does that answer your question?
JUROR BASINGER: Yes, sir.
One more question, if I may ask. If there is not a unanimous decision, what steps are taken then as to the paper? Unless I'm reading it wrongthe reason that I'm asking because the way that the question is stated I might look at it totally different than juror number one would look at it and that's the reason we came out to ask because we want to be sure of what we were reading.
THE COURT: Well, the answer is that it must be unanimous twelve person decision. If what you're saying isyou understand that it can't be a majority vote, it must be a unanimous twelve person decision. So I'm going to ask you to continue deliberations with that instruction in mind. Does that answer your question?
JUROR BASINGER: Yes, sir.
*43 Defendant contends the jury's question was an inquiry as to what the result would be if the jury failed to reach a unanimous decision. See Smith, 320 N.C. 404, 358 S.E.2d 329. We have held "that upon inquiry by the jury the trial court must inform the jurors that their inability to reach a unanimous verdict should not be their concern but should simply be reported to the court." Id. at 422, 358 S.E.2d at 339. This is not such a case.
We must examine the question posed by the jury in the context of the trial court's instructions to determine if it truly is an "inquir[y] into the result of its failure to reach a unanimous verdict." Smith, 320 N.C. at 422, 358 S.E.2d at 339 (emphasis omitted). The jury's confusion in this case, as discussed above, concerned the phraseology used on the printed Issues and Recommendation as to Punishment form. After being instructed that it must be unanimous for either "yes" or "no," the jury, through its foreman, asked how to answer the confusing Issues and Recommendation form: "[W]hat steps are taken then as to the paper?" A moment later, the jury, through its foreman, reiterated its initial confusion caused by the form: "[B]ecause the way that the question is stated I might look at it totally different than juror number one would look at it...." The questions by the jury did not constitute an inquiry into the results should it fail to reach unanimity. Instead, it appears that during their course of deliberations, the jurors noticed the inconsistency in the trial court's proper instructions and the printed Issues and Recommendation as to Punishment form; the form can be read as requiring that if a single juror disagrees with the other eleven, Issue Three must be answered "no." The jury merely sought guidance as to the procedure for giving an answer to Issue Three. The jury did not ask what would happen if it could not come to a unanimous decision.
Because the jury did not inquire into the result should it not be able to come to a unanimous decision, the Smith instruction was not warranted. Therefore, defendant's assignment of error is without merit.
In his next assignment of error, defendant contends that the trial court committed reversible error by refusing to give peremptory instructions on those mitigating circumstances for which the factual predicate was uncontroverted.
The trial court instructed the jury on each nonstatutory mitigating circumstance as follows:
If any one or more of you find by a preponderance of the evidence that this circumstance exists, and also is deemed mitigating, you would so indicate by having your foreman write, "Yes," in the space provided after this mitigating circumstance on the form. If none of you find the circumstance to exist, or if none of you deem it to have mitigating value, you would so indicate by having your foreman write, "No," in that space.
During the charge conference, defendant specifically requested that North Carolina Pattern Instruction 150.11 be read to the jury. In part, it reads:
[A]s to this mitigating circumstance, I charge you that if one or more of you finds the facts to be as all the evidence tends to show, you will answer "Yes" as to Mitigating Circumstance Number (read number) on the "Issues and Recommendation" form.
N.C.P.I.Crim. 150.11 (1991).
Defendant's proposed instruction would not have been a proper peremptory instruction in the context of this case. In Green, 336 N.C. 142, 443 S.E.2d 14, this Court held that N.C.P.I.Crim. 150.11 is not a proper peremptory instruction to be used with regard to a nonstatutory mitigating circumstance. We said that
before a juror "finds" a nonstatutory mitigating circumstance, he or she must make two preliminary determinations: (1) that the evidence supports the factual existence of the circumstance, and (2) that the juror deems the particular circumstance to have mitigating value in the case in question.
Id. at 174, 443 S.E.2d at 33. The instructions actually given in the present case conform to the requirements of Green. Therefore, we find that defendant's assignment of error is without merit.
*44 In his next assignment of error, defendant contends that the trial court committed reversible error in permitting the prosecutor to cross-examine defendant's expert about the results of a personality test upon which she did not rely and in requiring defendant to disclose the results of the test. Pursuant to the State's request for discovery, the court ordered defendant to produce any and all results of physical and mental examinations in defendant's possession. Defendant specifically objected to the production of individual answers to one test in particular, the Minnesota Multiphasic Inventory Test (MMPI), because defendant did not complete the test and did not intend to introduce its results. Moreover, defendant contends that his expert did not rely on the test in forming her expert opinion on defendant's psychological makeup. Defendant's expert, Dr. Sultan, testified that defendant "wasn't able to perform at a level that was scorable, and so no interpretation of that test is possible...." Dr. Sultan went on to say that "[n]o interpretation beyond the fact that it is not scorable is appropriate. And that is the interpretation of every psychologist who has administered it to him."
N.C.G.S. § 15A-905, which governs the State's right to pretrial discovery in criminal cases, provides that in certain situations the State must be permitted to inspect and copy
results or reports of physical or mental examinations or of tests, measurements or experiments made in connection with the case ... which the defendant intends to introduce in evidence at the trial or which were prepared by a witness whom the defendant intends to call at the trial, when the results or reports relate to his testimony.
N.C.G.S. § 15A-905(b) (1988). The issue in the present case is not whether this particular test was scorable, but whether the expert gleaned any information from the test, its answers, or even defendant's inability to complete a scorable test which related to the expert's testimony. If so, the test is both discoverable and a proper subject for cross-examination.
Although defendant's expert did not score or interpret the entire test, her testimony reveals that she considered the answers he gave and his inability to complete the test in formulating her final opinion of defendant. During direct examination, Dr. Sultan testified that defendant could not complete the test because it was "beyond his intellectual capacity." However, she then stated she was able to derive "some primitive kinds of information" about some "fundamental" information concerning defendant's personality. At this point in her testimony, she was referring to the MMPI and defendant's inability to comprehend the test. Yet, even though the test itself could not be scored, she did derive some "primitive" and "fundamental" information from it which went into the formation of her opinions. Consequently, the State was entitled to inspect and copy the test, which provided her with some "raw data," and to cross-examine her on that subject. This assignment of error is without merit.
In another assignment of error, defendant argues that the trial court erred in allowing defense counsel to withdraw a request to submit the statutory mitigating circumstance that defendant had no significant history of prior criminal activity, a circumstance defendant contends was supported by the evidence. Defendant initially requested the submission of this statutory mitigating circumstance; however, after the trial court questioned the wisdom of defendant's request, defendant withdrew it. Defendant now asserts that the trial court should have submitted the circumstance because the evidence would support a rational jury's finding that defendant did not have a significant history of prior criminal acts.
Whether defendant requested submission of the statutory mitigating circumstance does not concern us here. A "trial court has no discretion as to whether to submit statutory mitigating circumstances when evidence is presented in a capital case which may support a statutory circumstance." State v. Skipper, 337 N.C. 1, 44, 446 S.E.2d 252, 276 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 953, 130 L.Ed.2d 895 (1995). The trial court must submit the circumstance if it is supported by substantial evidence. The trial court is required "to determine whether a rational jury could conclude that *45 defendant had no significant history of prior criminal activity." State v. Wilson, 322 N.C. 117, 143, 367 S.E.2d 589, 604 (1988) (emphasis added).
In the present case, evidence tended to show that defendant had been convicted on 1 May 1981 of three counts of worthless checks. He had also been convicted on 1 March 1984 of eight counts of felonious larceny and one count of forgery. Further, at the age of four years, he and his brother were being hoisted into open windows by their parents to assist in the parents' burglary enterprise. After their parents were sent to prison, defendant and his brother, while living with their grandmother, began to steal to provide for their own subsistence. Defendant also contended that he abused drugs. Shortly before defendant murdered the victim in this case, he talked to a coworker about his plan to write worthless checks for gold, which, in turn, he would pawn for cash.
We have previously held that similar histories barred the submission of "no significant history of prior criminal activity" as a mitigating circumstance. See State v. Jones, 336 N.C. 229, 247, 443 S.E.2d 48, 56-57 (1994) (defendant used illegal drugs, broke into a convenience store six or seven times, and broke into a pawn shop and stole guns), cert. denied, ___ U.S. ___, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994), reh'g denied, ___ U.S. ___, 115 S.Ct. 783, 130 L.Ed.2d 676 (1995); State v. Robinson, 336 N.C. 78, 119, 443 S.E.2d 306, 326 (1994) (defendant used and dealt drugs, had pled guilty to a robbery, carried a pistol, and used another man's driver's license as identification), cert. denied, ___ U.S. ___, 115 S.Ct. 750, 130 L.Ed.2d 650 (1995); State v. Stokes, 308 N.C. 634, 653-54, 304 S.E.2d 184, 196 (1983) (defendant engaged in five incidents of theft and possessed, used, and sold marijuana). Therefore, we conclude that the statutory mitigating circumstance of "no significant history of prior criminal activity" should not have been submitted in this case. Defendant's assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred in overruling his objection to the submission of the aggravating circumstance that the murder was committed to avoid a lawful arrest. Defendant argues that there was insufficient evidence to support the submission of this aggravating circumstance to the jury. We disagree.
The jury in a capital sentencing hearing is allowed to consider as an aggravating circumstance that "[t]he capital felony was committed for the purpose of avoiding or preventing a lawful arrest." N.C.G.S. § 15A-2000(e)(4). Submission of the aggravating circumstance that the capital felony was committed to avoid or prevent a lawful arrest has been upheld in circumstances where a murder was committed to prevent the victim from capturing defendant and where a purpose of the killing was to eliminate a witness. State v. Green, 321 N.C. 594, 365 S.E.2d 587, cert. denied, 488 U.S. 900, 109 S.Ct. 247, 102 L.Ed.2d 235 (1988).
In this case, the evidence tends to show that defendant robbed Mr. Hartley and killed him because defendant believed the victim would testify against him. Prior to the murder, defendant told Tony Jackson and David Shearin that he planned to rob an old man in a cafeteria in Concord's Carolina Mall who had testified against him on a prior occasion. Jackson testified that defendant said if Mr. Hartley saw him, defendant would have to kill Mr. Hartley because he had testified against defendant before and was certain to do so again. After the murder, defendant told Jackson that he stabbed Hartley because "he had testified against him and sent him to prison before."
The evidence was sufficient to support a rational jury's finding that one of defendant's purposes for the murder was the desire to eliminate a witness who defendant felt would testify against him. Therefore, the trial court properly submitted this aggravating circumstance in the defendant's capital sentencing proceeding.
Defendant also argues that the trial court erred in its instructions to the jury regarding this aggravating circumstance. The trial court instructed the jury with respect to this circumstance as follows:
Now, a murder is committed for such purpose if the defendant's purpose at the time *46 he kills is, by that killing, to avoid the arrest of himself or some other person and that arrest would have been lawful.
If you find from the evidence and beyond a reasonable doubt that when the defendant killed the victim, it was in fact his purpose to avoid his arrest and that such arrest would have been lawful, you would find this aggravating circumstance....
Defendant contends this instruction did not adequately define the circumstance or guide the jury in its evaluation of the evidence.
The record shows that defendant did not object to the instructions or request more specific instructions. This assignment of error is therefore barred by Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, and defendant is not entitled to relief unless any error constituted plain error. See State v. Odom, 307 N.C. 655, 659-60, 300 S.E.2d 375, 378. To rise to a level of plain error, the error in the instructions must be "so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him." State v. Collins, 334 N.C. 54, 62, 431 S.E.2d 188, 193 (1993). In other words, the error must be one "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988).
Having reviewed the trial court's instructions on the aggravating circumstance at issue, we find no plain error. The instructions given were of sufficient particularity to enable the jury to understand the law and apply it to the evidence presented. No more was required of the trial court. We therefore cannot say that the trial court committed plain error. This assignment of error is without merit.
Defendant next contends that the aggravating circumstance set out in N.C.G.S. § 15A-2000(e)(4) is overly broad and, therefore, unconstitutional. Defendant did not raise this issue in the trial court and therefore failed to preserve the question for appellate review. State v. Brown, 320 N.C. 179, 211, 358 S.E.2d 1, 23 (1987), cert. denied, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987). This assignment of error is overruled.
By another assignment of error, defendant contends that the trial court erred by excluding testimony that maximum security inmates commonly had homemade knives or "shanks" in their cells and that this exclusion denied defendant a fair sentencing hearing. Dr. Sultan testified that defendant's prison record contained only one significant violation, which involved two such knives found in his locker by prison officials. Comparing defendant's record to that of other inmates, Dr. Sultan testified that defendant's infraction was "very unremarkable." Dr. Sultan also testified that defendant's violation was "not uncommon" among inmates in maximum custody facilities. Later, defense counsel asked: "Is it common for inmates in maximum security to have shanks?" The State objected, and the trial court sustained the objection.
Defendant argues the exclusion prevented the presentation of relevant mitigating evidence to the jury. We disagree. Assuming arguendo that Dr. Sultan's answer would have been relevant, she had already given testimony which answered that question. The trial court did not abuse its discretion by preventing defendant's question which called for repetitious testimony.
In his next assignment of error, defendant contends that the trial court committed reversible error by refusing to instruct the jurors that "preponderance of the evidence," the burden of proof applicable to mitigating circumstances, means proof showing that it is more likely than not that a mitigating circumstance exists. The trial court instructed the jurors that they could find a mitigating circumstance if the evidence "satisfies any one of you" of its existence. Defendant contends that because the jury might have understood the term "satisfies" to mean a greater degree of proof than "more likely than not," the instruction was erroneous.
*47 Defendant did not object to the instruction at trial, so our review is limited to one for plain error. We have previously addressed this same issue in State v. Payne, 337 N.C. 505, 448 S.E.2d 93 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1405, 131 L.Ed.2d 292 (1995). There we held that the trial court's use of "satisfy" did not increase defendant's burden of proof. Id. Accordingly, we conclude there was no plain error and reject defendant's assignment of error.
In his next assignment of error, defendant argues that the trial court committed reversible error by instructing the jury that it could refuse to consider mitigating evidence. In this case, the trial court told the jury to find and consider only the nonstatutory mitigating circumstances one or more jurors found to exist and to have mitigating value. A similar instruction was approved in Green, 336 N.C. 142, 443 S.E.2d 14, and we see no reason to overturn that decision now. Accordingly, we find no merit in defendant's assignment of error.
In another assignment of error, defendant asserts that the trial court committed reversible error in the capital sentencing proceeding by failing to instruct that the entire jury as a whole must consider and weigh any mitigating circumstance found by any juror in reaching its answers as to Issue Three and Issue Four. We have rejected this very argument in State v. Lee, 335 N.C. 244, 439 S.E.2d 547, cert. denied, ___ U.S. ___, 115 S.Ct. 239, 130 L.Ed.2d 162, reh'g denied, ___ U.S. ___, 115 S.Ct. 624, 130 L.Ed.2d 532 (1994). This assignment of error is without merit.
Defendant has also brought forward numerous other assignments of error presenting "preservation issues." As to each of these issues, defendant acknowledges with commendable candor that prior decisions of this Court require a ruling contrary to his contentions. He raises them for the purpose of permitting this Court to reexamine its prior holdings and also for the purpose of preserving these issues for any necessary federal habeas corpus review. Having carefully examined each of those assignments of error, we conclude that they are without merit.
Proportionality Review
Having concluded that defendant's capital sentencing proceeding was free from prejudicial error, we turn to the duties reserved by N.C.G.S. § 15A-2000(d)(2) exclusively for this Court in capital cases. See State v. Williams, 308 N.C. 47, 79, 301 S.E.2d 335, 354-55, cert. denied, 464 U.S. 865, 104 S.Ct. 202, 78 L.Ed.2d 177, reh'g denied, 464 U.S. 1004, 104 S.Ct. 518, 78 L.Ed.2d 704 (1983). It is our duty in this regard to ascertain (1) whether the record supports the jury's findings of the aggravating circumstances on which the sentence of death was based; (2) whether the death sentence was entered under the influence of passion, prejudice, or other arbitrary consideration; and (3) whether the death sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant. Id.
We have thoroughly examined the record, transcripts, and briefs in the present case. We conclude that the record fully supports the aggravating circumstances found by the jury. Further, we find no indication that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary consideration.
We turn now to our final statutory duty of proportionality review. In conducting proportionality review, "we determine whether the death sentence in this case is excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant." Id.
In essence, our task on proportionality review is to compare the case at bar with other cases in the pool which are roughly similar with regard to the crime and the defendant, such as, for example, the manner in which the crime was committed and the defendant's character, background, and physical and mental condition.
State v. Lawson, 310 N.C. 632, 648, 314 S.E.2d 493, 503 (1984), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 267 (1985).
In the present case, defendant was convicted of first-degree murder (under theories of premeditation and deliberation and of *48 felony murder) and of robbery with a dangerous weapon. The jury found the aggravating circumstances that the murder was committed for the purpose of avoiding or preventing a lawful arrest, N.C.G.S. § 15A-2000(e)(4), and that the murder was committed while defendant was engaged in the commission of a robbery with a dangerous weapon, N.C.G.S. § 15A-2000(e)(5).
The jury found as mitigating circumstances that (1) the offense was committed while defendant was under the influence of mental or emotional disturbance, N.C.G.S. § 15A-2000(f)(2); (2) the capacity of defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law was impaired at the time of the offense, N.C.G.S. § 15A-2000(f)(6); (3) defendant has a history of passive orientation and nonviolence; (4) defendant's intelligence quotient is in the lower range of borderline intellectual functioning, similar to that of a ten- to twelve-year-old; (5) defendant has been a good, dependable, hardworking employee; (6) defendant cooperated with law enforcement officers during his arrest and voluntarily gave a statement admitting his involvement and activity at an early stage of the criminal proceeding; (7) defendant does well in a structured setting and has done well in a structured setting; (8) defendant was and is emotionally neglected and has chronic feelings of deprivation, inadequacy, and anger and is uncomfortable and frightened by these feelings; (9) defendant suffers and has suffered from clinical depression throughout his life; (10) defendant was the victim of severe economic deprivation; (11) defendant was taught criminal behavior at a very early age by his parents and was forced by his parents to participate in criminal activity; (12) defendant was the victim of sexual abuse at a young age by an older male, which affected his feelings about men permanently; (13) defendant has been diagnosed as suffering from psychotic behavior; and (14) defendant has the capacity to love and loves his girlfriend, daughter, and brother.
In our proportionality review, we compare the present case with other cases in which this Court has ruled upon the proportionality issue. This case is not particularly similar to any case in which this Court has found the death penalty disproportionate and entered a sentence of life imprisonment. Each of those cases is distinguishable from the present case.
In State v. Benson, 323 N.C. 318, 372 S.E.2d 517 (1988), the evidence tended to show that the defendant hid in the bushes at a bank for about two hours waiting for the victim to make his nightly deposit. When the victim arrived at the bank, the defendant demanded the money bag. The victim hesitated, so the defendant fired a shotgun, striking him in the upper portion of both legs. The victim later died of cardiac arrest caused by the loss of blood from the shotgun wounds. The jury found only one aggravating circumstancethat the murder was committed for pecuniary gain. The defendant also pled guilty during the trial and acknowledged his wrongdoing before the jury.
Benson is easily distinguishable from the present case. In Benson, unlike the present case, some evidence tended to show that the defendant did not intend to kill the victim because he shot the victim in the legs rather than a more vital part of his body. In the present case, defendant purposefully stabbed the victim in the chest and killed him. He had previously stated that if the victim saw him, he would have to kill the victim so that he would not testify against defendant again. Also, unlike the situation in Benson, the jury here found two aggravating circumstances.
In State v. Stokes, 319 N.C. 1, 352 S.E.2d 653 (1987), the defendant and several others planned to rob the victim's place of business. During the robbery, one of the assailants severely beat the victim, killing him. Stokes is also easily distinguishable from the present case because Stokes' codefendant, whom the majority of this Court seemed to believe equally culpable with Stokes, was sentenced to life imprisonment. In addition, the jury in Stokes found only one aggravating circumstancethat the murder was especially heinous, atrocious, or cruelwhile the jury here found two aggravating circumstances.
In State v. Rogers, 316 N.C. 203, 341 S.E.2d 713 (1986), overruled on other *49 grounds by State v. Vandiver, 321 N.C. 570, 364 S.E.2d 373 (1988), the only aggravating circumstance found by the jury was that the murder for which Rogers was convicted was part of a course of conduct which included the commission of violence against another person or persons. In the present case, the jury found two aggravating circumstancesthat the murder was committed for the purpose of avoiding lawful arrest and that the murder was committed while defendant was engaged in the commission of a robbery with a dangerous weapon.
In State v. Young, 312 N.C. 669, 325 S.E.2d 181 (1985), the defendant and two companions went to the victim's home intending to rob and murder him. After gaining entry into the victim's home, the men killed the victim and stole his money. The jury found as aggravating circumstances that the murder was committed during the commission of a robbery or burglary and that it was committed for pecuniary gain. In Young, the jury did not find the aggravating circumstance of witness elimination, a circumstance found in the case sub judice. The finding of this circumstance distinguishes the two cases because witness elimination is an attack upon the judicial system itself.
In State v. Hill, 311 N.C. 465, 319 S.E.2d 163 (1984), the single aggravating circumstance found by the jury was that the murder was committed against a law enforcement officer engaged in the performance of his official duties. Hill is easily distinguishable from this case in which defendant robbed and killed an elderly cafeteria worker with the additional aggravating circumstance of witness eradication.
In State v. Jackson, 309 N.C. 26, 305 S.E.2d 703 (1983), the defendant was on foot and waved down the victim as the victim passed in his truck. Shortly thereafter, the victim's body was discovered in his truck. He had been shot twice in the head, and his wallet was gone. The single aggravating circumstance found was that the murder was committed for pecuniary gain. In contrast, the jury here found that the murder was committed for the purpose of avoiding lawful arrest and that the murder was committed during the commission of a robbery with a dangerous weapon.
In State v. Bondurant, 309 N.C. 674, 309 S.E.2d 170 (1983), the evidence tended to show that the defendant and a group of friends were riding in a car when the defendant taunted the victim by telling him that he would shoot him and questioning whether the victim believed he would shoot him. The defendant shot the victim but then immediately directed the driver to proceed to the emergency room of the local hospital. In concluding that the death penalty was disproportionate there, we focused on the defendant's immediate attempt to obtain medical assistance for the victim and the lack of any apparent motive for the killing. In contrast, the jury in the present case found that defendant killed the victim to prevent him from testifying against him.
It bears noting that we have never found a death sentence to be disproportionate in witness-elimination cases. The reason is clear: "Murder can be motivated by emotions such as greed, jealousy, hate, revenge, or passion. The motive of witness elimination lacks even the excuse of emotion." State v. Oliver, 309 N.C. 326, 375, 307 S.E.2d 304, 335 (1983). The murder in the present case was nothing but cold and calculated. The only reason the victim was killed was to prevent him from testifying against defendant. The purposeful and deliberate killing of witnesses or possible witnesses strikes a blow at the entire publicthe body politicand directly attacks our ability to apply the rule of law and to bear witness against the transgressors of law in our society. See Hill, 311 N.C. 465, 319 S.E.2d 163 (Mitchell, J., dissenting) (murder of law enforcement officer is attack on entire public).
For the foregoing reasons, we conclude that each of the cases in which we have found the death penalty to be disproportionate is distinguishable from the present case. The present case bears little similarity to any of those cases.
It is also proper for this Court to "compare this case with the cases in which we have found the death penalty to be proportionate." State v. McCollum, 334 N.C. 208, 244, 433 S.E.2d 144, 164 (1993), cert. *50 denied, ___ U.S. ___, 114 S.Ct. 2784, 129 L.Ed.2d 895, reh'g denied, ___ U.S. ___, 115 S.Ct. 26, 129 L.Ed.2d 924 (1994). Although we review all of the cases in the pool when engaging in our statutorily mandated duty of proportionality review, we reemphasize here "that we will not undertake to discuss or cite all of those cases each time we carry out that duty." Id. "The Bar may safely assume that we are aware of our own opinions filed in capital cases arising since the effective date of our capital punishment statute, 1 June 1977." Williams, 308 N.C. at 81-82, 301 S.E.2d at 356. Here, it suffices to say that we conclude that the present case is more similar to certain cases in which we have found the sentence of death proportionate than to those in which we have found the sentence disproportionate or those in which juries have consistently returned recommendations of life imprisonment.
In performing our statutory duty of proportionality review, it is also appropriate for us to compare the case before us to all other cases in the pool used for proportionality review. Lawson, 310 N.C. at 648, 314 S.E.2d at 503. However, the factors to be considered and their relevance during proportionality review in a given capital case "will be as numerous and as varied as the cases coming before us on appeal." Williams, 308 N.C. at 80, 301 S.E.2d at 355. "Therefore, the fact that in one or more cases factually similar to this case, a jury or juries have recommended life imprisonment is not determinative, standing alone, on the issue of whether the death penalty is disproportionate in the case under review." Green, 336 N.C. at 198, 443 S.E.2d at 47.
Early in the process of developing our methods for proportionality review, we indicated that similarity of cases, no matter how many factors are compared, will not be allowed to "become the last word on the subject of proportionality rather than serving as an initial point of inquiry." Williams, 308 N.C. at 80-81, 301 S.E.2d at 356. Instead, we have held "that the constitutional requirement of `individualized consideration' as to proportionality could only be served if the issue of whether the death penalty was disproportionate in a particular case ultimately rested upon the `experienced judgments' of the members of this Court, rather than upon mere numerical comparisons of aggravators, mitigators, and other circumstances." State v. Keel, 337 N.C. 469, 502, 447 S.E.2d 748, 767 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1270, 131 L.Ed.2d 147 (1995). Also, "the fact that one, two, or several juries have returned recommendations of life imprisonment in cases similar to the one under review does not automatically establish that juries have `consistently' returned life sentences in factually similar cases." Green, 336 N.C. at 198, 443 S.E.2d at 47.
Defendant here has cited a number of cases involving murders committed in the course of robberies. It suffices to say that we have examined all of the numerous cases cited by defendant. Where defendants have killed their victims as part of a planned witness elimination, some defendants have received life imprisonment and others have been sentenced to death. This murder was committed in the course of a robbery; equally important, it was a murder to eliminate a possible witness. In State v. Robinson, 339 N.C. 263, 451 S.E.2d 196 (1994), cert. denied, ___ U.S. ___, 115 S.Ct. 2565, 132 L.Ed.2d 818 (1995); State v. Sexton, 336 N.C. 321, 444 S.E.2d 879, cert. denied, ___ U.S. ___, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994); McCollum, 334 N.C. 208, 433 S.E.2d 144; State v. Hunt, 323 N.C. 407, 373 S.E.2d 400 (1988), sentence vacated on other grounds, 494 U.S. 1022, 110 S.Ct. 1464, 108 L.Ed.2d 602 (1990), on remand, 330 N.C. 501, 411 S.E.2d 806, cert. denied, ___ U.S. ___, 112 S.Ct. 3045, 120 L.Ed.2d 913 (1992); State v. Maynard, 311 N.C. 1, 316 S.E.2d 197, cert. denied, 469 U.S. 963, 105 S.Ct. 363, 83 L.Ed.2d 299 (1984); Lawson, 310 N.C. 632, 314 S.E.2d 493; and State v. Barfield, 298 N.C. 306, 259 S.E.2d 510 (1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3050, 65 L.Ed.2d 1137, reh'g denied, 448 U.S. 918, 101 S.Ct. 41, 65 L.Ed.2d 1181 (1980), juries imposed death penalties in cases involving witness elimination. We cannot say that juries have consistently recommended life sentences in cases similar to the present case.
All of the evidence presented in the present case was to the effect that defendant *51 planned and executed the robbery and murder of the seventy-one-year-old victim, Mr. Hartley, who had befriended defendant when defendant worked at the K & W Cafeteria. Defendant killed the victim so that the victim could not testify against him. All things considered, we do not find that this case presents any serious proportionality question. After comparing this case carefully with all others in the pool of "similar cases" used for proportionality review, we conclude that it falls within the class of first-degree murders for which we have previously upheld the death penalty. For the foregoing reasons, we conclude that the sentence of death entered in the present case is not disproportionate.
Having considered and rejected all of defendant's assigned errors, we hold that defendant's trial and capital sentencing proceeding were free of prejudicial error. Therefore, the sentence of death entered against defendant must be and is left undisturbed.
NO ERROR.
FRYE, Justice, concurring in part and dissenting in part.
I concur in the Court's decision finding no prejudicial error in defendant's trial and conviction of first-degree murder and robbery with a dangerous weapon. I dissent only as to the capital sentencing proceeding.
I find nothing in the North Carolina Constitution or in our death penalty statute requiring a jury in a capital sentencing proceeding to be unanimous in order to give a negative answer to an issue requiring a positive finding as a prerequisite to a recommendation that a person be sentenced to death. This is the effect of the majority's holding as to the first issue in the capital sentencing proceeding. I therefore dissent as to this issue.
The majority first relies upon Article I, Section 24 of the North Carolina Constitution for the proposition that any jury recommendation requiring a sentence of death or life imprisonment must be unanimous. This section simply says that:
No person shall be convicted of any crime but by a unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.
N.C. Const. art. I, § 24. This section requires a unanimous verdict of a jury in open court in order to convict a person of a crime. In this case, as in all capital cases in North Carolina, we do not get to a capital sentencing proceeding until after a jury has convicted the defendant of the capital crime by a unanimous verdict in open court. The majority's proposition relates to any sentencing recommendation, not a conviction. Thus, I do not find the majority's conclusion to be supported by Article I, Section 24 of the North Carolina Constitution.
The majority cites N.C.G.S. § 15A-2000(b) in support of the same proposition. Note, however, that the proposition is stated in terms of any jury recommendation. The recommendation can be one of only two sentences: life imprisonment or death. Under N.C.G.S. § 15A-2000(b), the jury must hear the evidence, arguments of counsel, and instructions of the court before deliberating and delivering a sentence recommendation to the court. This sentence recommendation (life imprisonment or death) must be based upon the jury's consideration of:
(1) Whether any sufficient aggravating circumstance or circumstances as enumerated in subsection (e) exists; [and]
(2) Whether any sufficient mitigating circumstance or circumstances as enumerated in subsection (f), which outweigh the aggravating circumstance or circumstances found, exists[.]
N.C.G.S. § 15A-2000(b) (Supp.1994). Thus, under N.C.G.S. § 15A-2000(b), before the jury may recommend, it must first consider whether any enumerated sufficient aggravating circumstances exist, whether any enumerated sufficient mitigating circumstances exist, and whether those mitigating circumstances outweigh the aggravating circumstances.
In order to facilitate the jury's consideration of the matters mandated by the statute, the court gives the jury four issues to *52 answer. In order to facilitate the jury's recommendation, the court gives the jury one question to answer. For convenience, and to assist the jury in understanding and following the court's instructions, the court gives the jury a form to take into the jury room. It is labeled: Issues and Recommendation as to Punishment.
N.C.G.S. § 15A-2000(b) says that "[t]he sentence recommendation must be agreed upon by a unanimous vote of the 12 jurors. Upon delivery of the sentence recommendation by the foreman of the jury, the jury shall be individually polled to establish whether each juror concurs and agrees to the sentence recommendation returned." Note again that the language of the statute is that the "sentence recommendation" must be unanimous. There is no express provision in N.C.G.S. § 15A-2000(b) requiring unanimity as to the jury's consideration of matters leading to its recommendation.
The majority next relies on a quote from Justice Kennedy's concurring opinion in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990). In McKoy, the United States Supreme Court held that North Carolina's capital sentencing scheme's unanimity requirement as to mitigating circumstances "violates the Constitution by preventing the sentencer from considering all mitigating evidence." Id. at 435, 110 S.Ct. at 1229, 108 L.Ed.2d at 376. Concurring in the judgment, Justice Kennedy said:
Jury unanimity, it is true, is an accepted, vital mechanism to ensure that real and full deliberation occurs in the jury room, and that the jury's ultimate decision will reflect the conscience of the community. Yet the unique interaction of the elements of the sentencing statute in issue here can allow the same requirement of unanimity to produce a capital sentence that lacks unanimous support of the jurors, and, more than this, is thought to be inappropriate by 11 of the 12.
Id. at 452, 110 S.Ct. at 1238, 108 L.Ed.2d at 387. The second sentence of Justice Kennedy's concurring opinion makes it clear that, at least in some circumstances, requiring unanimity as to one of the issues the jury must consider in making a sentencing recommendation may result in a capital sentence thought to be inappropriate by some, if not most, of the jurors. Thus, I do not believe that, even if Justice Kennedy had spoken for a majority of the Supreme Court, his views would support the majority's rule set forth in this case that the jury must be unanimous to answer "no" to Issue Three.
The majority's ultimate rationale for requiring the jury to be unanimous to give a negative answer to Issue Three is that this requirement prevents the jury from evading its duty to make a sentence recommendation. I do not accept this rationale, and I find nothing in our Constitution, our capital sentencing statute, or our cases to support it. The cases cited by the majority require unanimity in the jury's recommendation as to sentence, and I agree with the rationale of those cases. However, they are not controlling on the question here which relates to an issue the jury must answer before making a recommendation as to sentence. I now consider defendant's argument.
For his first assignment of error in the sentencing phase of his trial, defendant contends that the trial court committed reversible error in giving an erroneous answer to a question by the jury and then refusing to instruct the jury that it did not need to be unanimous in order to give a negative answer to Issue Three on the written Issues and Recommendation as to Punishment form. I agree.
Under subsection (c) of N.C.G.S. § 15A-2000, if the jury recommends a sentence of death, the jury foreman is required to sign a writing on behalf of the jury setting out specific findings in support of the jury's recommendation. Subsection (c) provides:
(c) Findings in Support of Sentence of Death.When the jury recommends a sentence of death, the foreman of the jury shall sign a writing on behalf of the jury which writing shall show:
(1) The statutory aggravating circumstance or circumstances which the jury finds beyond a reasonable doubt; and
(2) That the statutory aggravating circumstance or circumstances found by *53 the jury are sufficiently substantial to call for the imposition of the death penalty; and,
(3) That the mitigating circumstance or circumstances are insufficient to outweigh the aggravating circumstance or circumstances found.
N.C.G.S. § 15A-2000(c) (Supp.1994).
The language of this subsection is mandatory: "the foreman ... shall sign a writing on behalf of the jury which writing shall show" the three requirements set out in this subsection. Id. (emphasis added). If the writing does not show that these requirements have been met, the jury may not recommend, and the judge may not impose, a sentence of death. Thus, unanimity is required in order for the jury to find the statutory requisites to the recommendation of a sentence of death, and unanimity is required for the recommendation itself. In short, while N.C.G.S. § 15A-2000(b) requires the jury recommendation to be unanimous, N.C.G.S. § 15A-2000(c) requires that both the jury's recommendation of death and the findings in support thereof be unanimous.
In compliance with subsection (c) of N.C.G.S. § 15A-2000, Issue Three on the written Issues and Recommendation as to Punishment form submitted to the jury in this case was as follows:
Do you unanimously find beyond a reasonable doubt that the mitigating circumstance or circumstances found by one or more of you is, or are, insufficient to outweigh the aggravating circumstance or circumstances found unanimously by you in Issue One?
The trial court correctly instructed the jury:
If you unanimously find beyond a reasonable doubtyou'll notice, unanimously, twelve person decisionIf you unanimously find beyond a reasonable doubt that the mitigating circumstances found are insufficient to outweigh the aggravating circumstances found, you would answer Issue Number Three, "Yes." If you do not so find, or have a reasonable doubt as to whether they do, you would answer Issue Number Three, "No."
(Emphasis added.)
After several hours of deliberation, the jury sent a question to the judge regarding Issue Number Three. The question read: "Must there be twelve votes, `Yes,' or twelve votes, `No,' to reach a unanimous decision?" After conferring with the parties, the judge had the jury return to the courtroom, and the following colloquy occurred between the judge and the foreman of the jury:
THE COURT: The answer to that is, Yes, it must be a unanimous twelve person decision as to any answer you reach to that issue, whether it be Yes or whether it be No. It must be a unanimous twelve person decision.
Does that answer your question?
JUROR BASINGER: Yes, sir.
One more question, if I may ask. If there is not a unanimous decision, what steps are taken then as to the paper? Unless I'm reading it wrongthe reason that I'm asking because the way that the question is stated I might look at it totally different than juror number one would look at it and that's the reason we came out to ask because we want to be sure of what we were reading.
THE COURT: Well, the answer is that it must be unanimous twelve person decision. If what you're saying isyou understand that it can't be a majority vote, it must be a unanimous twelve person decision. So I'm going to ask you to continue deliberations with that instruction in mind. Does that answer your question?
JUROR BASINGER: Yes, sir.
THE COURT: If you'll step back there and keep trying, please.
After the jury resumed deliberations and the court adjourned awaiting the jury verdict, defendant objected to the judge's instruction and indicated that if all the jurors do not agree on the answer to Issue Three, then the answer to that question is "No." Thus, a unanimous decision is not required to answer "no" to Issue Three. The colloquy continued:
*54 THE COURT: The State need to respond to that?
MR. KENERLY: Your Honor, I think it's just a question of syntax. It's an awkwardly worded question. But if they're not unanimous then we would just say that they cannot answer that question, but not that they would answer it, No. They can only answer it Yes or No if they're unanimous in whichever way they decide.
MR. RUSSELL: Your Honor, if that was the case, we could just strike the word "unanimous" from Issue Three.
Your Honor, I know it's kind of convoluted but in more simple terms if they do not all agree, then they do not find Issue Number Three. If they do not all agree, they cannot answer Yes to Issue Number Three. But they don't all have to agree, No.
I believe that the foreman asked a follow-up question, what happens if we all do not agree or all cannot agree? I think that therein lies the answer. The answer is that if you don't agree unanimously, then the answer to the question is No.
THE COURT: That is a very interesting argument and I certainly see the logic in it, but I don't believe that's a correct statement of the law as it now exists. So until I see some definitive direction from a higher court, I would feel compelled to deny that motion or that request. I'll certainly note that objection for the record.
I believe that defendant's attorney correctly stated the law when he told the judge, "if they do not all agree, then they do not find Issue Number Three. If they do not all agree, they cannot answer Yes to Issue Number Three. But they don't all have to agree, No." Defendant's position is consistent with N.C.G.S. § 15A-2000(b) and (c), the court's initial instruction in this case, and the instructions on the Issues and Recommendation as to Punishment form. Furthermore, defendant's position is not inconsistent with the federal or state constitutions, or any decision of this Court that I have been able to find.
The State contends that the question in this case is controlled by State v. Green, 336 N.C. 142, 443 S.E.2d 14 (1994). I find that Green is distinguishable from the instant case. In Green, the defendant was charged with first-degree murder of two persons. After deliberations, the jury asked: "Does [the jury] decision have to be unanimous on both recommendations?" Id. at 176, 443 S.E.2d at 35. This Court held that "[t]he trial court correctly informed [the] jury that any recommendation [it] made as to sentencing must be unanimous." Id. at 178, 443 S.E.2d at 35 (emphasis added). In Green, the jury was questioning whether it would have to be unanimous in its sentencing recommendations on each of the two murder charges. The correct answer was "yes"; the jury must be unanimous in its sentencing recommendation of life or death. However, the question in this case was not whether the sentencing recommendation must be unanimous but whether the jury must be unanimous in order to give a negative answer to Issue Three, an intermediate step the jury must take prior to reaching a unanimous sentencing recommendation. Accordingly, this case is not controlled by Green.
If the jury does not unanimously agree that the mitigating circumstances are insufficient to outweigh the aggravating circumstances, or if any member of the jury has a reasonable doubt as to whether the mitigating circumstances are insufficient to outweigh the aggravating circumstances found by the jury, the answer to Issue Three is "no." To put it simply, the jury must be unanimous to answer Issue Three "yes," but unanimity is not required to answer "no."[1]*55 "If the jury cannot, within a reasonable time, unanimously agree to its sentencing recommendation, the judge shall impose a sentence of life imprisonment; provided, however, that the judge shall in no instance impose the death penalty when the jury cannot agree unanimously to its sentence recommendation." N.C.G.S. § 15A-2000(b).
In this case, the jury was given two alternative instructions upon which to base its decision: the initial correct instruction required the jury to be unanimous in order to find that the mitigating circumstances were insufficient to outweigh the aggravating circumstances, while the subsequent instruction erroneously required the jury to be unanimous in order to answer the question in the negative. When a jury is given two alternative instructions upon which to base its decision, one of which is improper, the matter must be remanded for a new proceeding. See State v. Pakulski, 319 N.C. 562, 574, 356 S.E.2d 319, 326 (1987). This result is required because the appellate court cannot determine upon which instruction the jury relied in reaching its decision and, therefore, assumes the jury relied on the erroneous, improper instruction. Id. This Court is "not at liberty to" assume upon which instructions defendant's sentencing jury relied. State v. Belton, 318 N.C. 141, 162, 347 S.E.2d 755, 768 (1986). "[T]he Court [construes] the ambiguity in favor of defendant." Id. This is especially true where, as here, the erroneous instruction is given in response to a question, from the jury, which indicates that the answer to the question may determine whether defendant is sentenced to life imprisonment or death. Since the jury may have relied on the erroneous instruction to make its recommendation of a sentence of death, I cannot find the error harmless beyond a reasonable doubt. I would thus find the error prejudicial, vacate defendant's sentence of death, and remand the case to Superior Court, Cabarrus County, for a new capital sentencing proceeding in accord with N.C.G.S. § 15A-2000.
WHICHARD, J., joins in this concurring and dissenting opinion.
NOTES
[1] Issue Two addresses mitigating circumstances and, whether answered "yes" or "no," is not determinative of the outcomedeath or life imprisonment. Under the original capital sentencing scheme of N.C.G.S. § 15A-2000, this Court had required the jury to be unanimous to find any mitigating circumstances. That requirement was found unconstitutional in McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990), solely as it applied to mitigating circumstances.
[1] The majority also seems to decide that the jury must be unanimous in order to answer "no" to Issues One and Four. As to Issue One, the majority's decision seems contra to (1) State v. Kirkley, 308 N.C. 196, 219, 302 S.E.2d 144, 157 (1983) ("The unanimity requirement is only placed upon the finding of whether an aggravating... circumstance exists."); (2) the North Carolina Pattern Jury Instruction, N.C.P.I.Crim. 150.10 (1990) ("If you do not unanimously find beyond a reasonable doubt that one of these facts existed, you would answer Issue One-A `No [.]'"); and (3) Justice Meyer's dissenting opinion in State v. Hightower, 331 N.C. 636, 648, 417 S.E.2d 237, 244 (1992) (Meyer, J., dissenting) ("I conclude that defendant is entitled to a new sentencing hearing based on the trial court's erroneous instruction that the jury could not reject the sole aggravating circumstance submitted unless the jurors unanimously agreed that the evidence presented did not prove the existence of the aggravating circumstance."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/572197/ | 949 F.2d 190
UNITED STATES of America, Plaintiff-Appellee,v.Robert L. HAMILTON, Defendant-Appellant.
No. 91-1086.
United States Court of Appeals,Sixth Circuit.
Argued Aug. 8, 1991.Decided Sept. 24, 1991.*
Kathleen Moro Nesi, Asst. U.S. Atty. (argued), Office of U.S. Atty., Detroit, Mich., Marlene Dayne, Asst. U.S. Atty. (briefed), Office of U.S. Atty., Flint, Mich., for plaintiff-appellee.
Kenneth R. Sasse, Detroit, Mich. (argued and briefed), for defendant-appellant.
Before MARTIN and NELSON, Circuit Judges, and JARVIS, District Judge.**
PER CURIAM.
1
The defendant, Robert L. Hamilton, pleaded guilty to possession of controlled substances with intent to distribute and was sentenced to imprisonment for 33 months, a term within the range prescribed by the sentencing guidelines. He now appeals his sentence, contending that it reflects a misreading by the district court of the guideline sections relating to departures. Concluding that the district court's understanding of the guidelines was correct, we shall affirm the sentence.
2
* Defendant Hamilton is a doctor of osteopathy. He became a compulsive gambler and incurred significant debts to his bookmaker. As his debts mounted, Dr. Hamilton received threats of harm to himself and his family if he did not make good on his obligations. To obtain the funds necessary to pay his gambling debts, he sold narcotic drugs to a fellow gambler.
3
The government filed an information charging Dr. Hamilton with one count of possessing approximately 8,400 tablets of Tylenol IV with intent to distribute them, in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty to this charge.
4
The district court held a sentencing hearing at which Dr. Hamilton sought to convince the court that it should impose a sentence below the range (33-41 months) indicated by the Sentencing Guidelines. Dr. Hamilton argued that a downward departure would be warranted under U.S.S.G. § 5K2.13 because he suffered from diminished mental capacity and under U.S.S.G. § 5K2.12 because he committed his crimes under duress.1
5
In support of his position Dr. Hamilton presented various medical reports and testimony from three expert witnesses. Dr. Emanuel Tanay, a psychiatrist, expressed the opinion that Dr. Hamilton was a pathological gambler and that he suffered from chronic depression. Because of these problems, Dr. Tanay found a significant reduction in mental capacity. Dr. Tanay explained that "I don't mean that his capacity intellectually was reduced. What I mean to say is that the disorder from which he suffers affected his ability ... to be criminally responsible." Dr. Tanay further opined that the threats Dr. Hamilton received were a factor in his crimes.
6
Dr. Steven Miller, a psychologist, testified that although the defendant scored in the normal range in a psychological test (the Minnesota Multiphasic Personality Inventory), he was suffering from a pathological gambling disorder and a major depressive episode at the time he committed his crimes. Dr. Miller also reported that Dr. Hamilton exhibited suicidal tendencies. In Dr. Miller's opinion the gambling disorder had a significant impact on Dr. Hamilton's mental capacity. Dr. Miller also testified that Dr. Hamilton committed his crimes under the coercive impact of the threats he had received.
7
Dr. Allen Michael Ebert, a doctor of osteopathy specializing in addiction medicine, testified that he had treated Dr. Hamilton for his gambling addiction. He explained that because Dr. Hamilton was suffering from a significant gambling disorder and had been suicidal, he had been admitted to an institution in Florida where he received treatment for about thirty days. Dr. Ebert added that the defendant suffered from significant depression.
8
Dr. Hamilton testified that he started to gamble heavily in 1988. After he had incurred significant gambling debts, he said, he received threats of harm to himself and his family if he did not make weekly payments. Afraid that his wife would find out about his gambling problem and that his gambling associates might embarrass him professionally, he ran up his credit card debt, borrowed from his parents, and attempted to get bank loans. The threats escalated after he had exhausted his credit, and he then resorted to selling Tylenol containing codeine.
9
The district court sentenced Dr. Hamilton to imprisonment for 33 months to be followed by two years of supervised release. The sentence was at the bottom of the guideline range. The court declined to depart downward on diminished capacity grounds under Sentencing Guideline § 5K2.13. As far as diminished capacity was concerned, the court said,
10
"I think they [the Sentencing Commission] were talking about things such as a borderline mental intelligence capacity. I don't think they were talking about suffering from a compulsive gambling. So I would decline to apply a diminished mental capacity reduction because I don't think that's authorized by the guidelines."
11
The court declined to depart downward under § 5K2.12 because it concluded that there was no duress of a sort that would justify a departure under this section.
12
The court also denied a motion for bond pending appeal. During the hearing on this motion the district judge noted that he thought his decision not to depart downward was appealable, because he was ruling
13
"that the guidelines do not permit me to take that [diminished capacity and coercion] into account in the facts in this case because I do not think the facts in this case fit the guidelines on coercion and diminished capacity.... I am choosing not to exercise discretion because I find that there is no discretion, those guidelines don't fit."
II
14
When a defendant appeals a sentence imposed under the Sentencing Guidelines, appellate review is restricted to cases where
15
"the sentence--
16
(1) was imposed in violation of law;
17
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
18
(3) is greater than the sentence specified in the applicable guideline range ...; or
19
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable." 18 U.S.C. § 3742(a).
This court has held that
20
"where ... the guideline range was properly computed, the district court was not unaware of its discretion to depart from the guideline range, and the sentence was not imposed in violation of law or as a result of an incorrect application of the guidelines, the failure to depart is not cognizable on appeal under 18 U.S.C. § 3742(a)." United States v. Davis, 919 F.2d 1181, 1187 (6th Cir.1990).
21
See also, United States v. Draper, 888 F.2d 1100 (6th Cir.1989) ("[a] sentence which is within the Guidelines, and otherwise valid ... is not appealable on the grounds that the sentencing judge failed to depart from the Guidelines on account of certain factors which the defendant feels were not considered by the Guidelines and should reduce his sentence"); United States v. Gregory, 932 F.2d 1167 (6th Cir.1991) (no appeal lies to challenge degree of downward departure). We have found sentences subject to appellate review, however, when the district judge "incorrectly believed that it could not consider [the] defendant's mitigating circumstances and exercise discretion to depart from the guidelines based upon such consideration." United States v. Maddalena, 893 F.2d 815, 817 (6th Cir.1989). It is on this exception that Dr. Hamilton relies in arguing that the district court's decision not to depart downward is reviewable in the case at bar.
22
The district court was well aware of its discretion to depart from the Guidelines under sections 5K2.13 and 5K2.12, but the court concluded that the facts in this case did not allow a departure under these sections. The court carefully considered the testimony of Dr. Hamilton and that of the three experts who testified on his behalf, but decided that the facts were not such as to justify findings of coercion or diminished mental capacity as those terms are used in the guidelines.
23
With regard to the support that various citizens had expressed for Dr. Hamilton, the district court said that
24
"if I could interpret the law differently so that I would not have to impose the sentence that I imposed, I probably would have given ... serious consideration to it. I made that very clear, that I consider myself bound by the law. And as I see it in this case, the law requires me to do what I have done. It's that simple."
25
A fair reading of the transcript leaves no room for doubt that the court knew that if it found that the defendant suffered from a significantly reduced mental capacity or had sold drugs because of serious coercion or duress, the court was authorized to depart from the guideline range. The court said "I do not think the facts in this case fit the guidelines on coercion and diminished capacity," and agreed with the Assistant United States Attorney when she suggested that "you would agree that if you had found the facts to support 5K2.12 and 13 that you did have the authority to depart downward under those grounds[.]" There is also no reason to doubt that the district court was aware of its residual discretion to depart downward pursuant to § 5K2.0.2
26
The district court's conclusion that the type of mental state and coercion claimed by the defendant do not fit within sections 5K2.13 and 5K2.12 of the guidelines is a legal conclusion that is reviewable on appeal under 18 U.S.C. § 3742(a)(1). See United States v. Poff, 926 F.2d 588, 590-91 (7th Cir.1991) (en banc) (appellate court may review district court's conclusion that because the defendant committed a crime of violence, it was not authorized to depart downward pursuant to § 5K2.13), cert. denied, --- U.S. ----, 112 S. Ct. 96, 116 L. Ed. 2d 67 (1991); United States v. Rosen, 896 F.2d 789, 791 (3rd Cir.1990) (applying de novo standard of review to district court's conclusion that § 5K2.13 did not authorize a downward departure where the defendant was a compulsive gambler who committed a crime of violence). Having reviewed the district court's decision, we find no error in the conclusion that the circumstances of this case were not sufficient to justify invoking sections 5K2.13 and 5K2.12.
27
The defendant's gambling disorder did not cause him to suffer a "significantly reduced mental capacity" within the meaning of § 5K2.13. The defendant was able to absorb information in the usual way and to exercise the power of reason. He took to selling drugs illegally not because of any inability to understand his situation, but because he needed money. This is hardly an unusual motive--and the fact that Dr. Hamilton needed money to support his gambling habit puts him in no better position, as we see it, than he would have been in if he had needed money to support a drug habit or to finance any other indulgence.
28
Like the district court, we do not believe that the coercion to pay gambling debts represents the type of coercion that could warrant a downward departure pursuant to § 5K2.12. It was immaterial to Dr. Hamilton's bookmakers how he raised the money, and they did not specifically coerce him to sell drugs. He had the option of reporting the threats he received to the authorities, of course, but he chose instead to engage in serious violations of the law.
29
We decline to remand the case for resentencing; the sentence imposed by the district court is AFFIRMED.
*
This decision was originally issued as an "unpublished decision" filed on September 24, 1991. On November 4, 1991, the court designated the opinion as one recommended for full text publication
**
The Honorable James H. Jarvis, United States District Judge for the Eastern District of Tennessee, sitting by designation
1
Those sections provide:
"s 5K2.13. Diminished Capacity (Policy Statement)
If the defendant committed a non-violent offense while suffering from significantly reduced mental capacity not resulting from voluntary use of drugs or other intoxicants, a lower sentence may be warranted to reflect the extent to which reduced mental capacity contributed to the commission of the offense, provided that the defendant's criminal history does not indicate a need for incarceration to protect the public.
§ 5K2.12. Coercion and Duress (Policy Statement)
If the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense, the court may decrease the sentence below the applicable guideline range. The extent of the decrease ordinarily should depend on the reasonableness of the defendant's actions and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. Ordinarily coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property or similar injury resulting from the unlawful action of a third party or from a natural emergency. The Commission considered the relevance of economic hardship and determined that personal financial difficulties and economic pressures upon a trade or business do not warrant a decrease in sentence."
2
Section 5K2.0 provides that "[c]ircumstances that may warrant departure from the guidelines pursuant to this provision cannot, by their very nature, be comprehensively listed and analyzed in advance. The controlling decision as to whether and to what extent departure is warranted can only be made by the courts." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/600456/ | 986 F.2d 281
UNITED STATES of America, Appellee,v.Charles C. STARR, also known as Luther Kinsey, also known asCurtis Lang, also known as Tony Cash, also knownas Tom Taft, Appellant.
No. 92-2558.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 17, 1993.Decided Feb. 24, 1993.
R. Thomas Day of St. Louis, MO, for appellant.
Frederick J. Dana, Asst. U.S. Atty., St. Louis, MO, for appellee.
Before FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and BEAM, Circuit Judge.
PER CURIAM.
1
After Charles C. Starr pleaded guilty to defrauding a bank in violation of 18 U.S.C. § 1344, the district court sentenced him to imprisonment for 19 months. Starr appeals his sentence. We affirm in part, reverse in part, and remand for resentencing.
2
Starr's bank fraud conviction was based on the following facts. Using the alias W. Luther Kinsey, Starr presented documents signed by the executive director of the American Veterans Assistance Corporation (AVAC) to Mercantile Bank and opened an account in the name of an AVAC subsidiary, the Veteran's Wish Foundation (VWF), which is an authentic charitable organization. About six months later, an account was opened at Community Bank in the name of Curtis Lang, another alias Starr used. A check drawn on the Mercantile Bank account was then deposited into the Community Bank account. This check, however, was returned to Community Bank because the Mercantile Bank account had been closed. Because Community Bank had honored the check, the bank lost about $750 as a result of Starr's conduct. Although the parties stipulated to this version of events, the government conceded that with the exception of the $750 loss to Community Bank, other losses calculated in the presentence report (PSR) based on Starr's similar criminal activities were not "presently readily provable."
3
On appeal, Starr argues that because he was convicted of only one count of bank fraud, the district court improperly increased his offense level under U.S.S.G. § 2F1.1(b)(2) for more than minimal planning or defrauding more than one victim. Starr also argues the district court improperly increased his offense level under U.S.S.G. § 2F1.1(b)(3)(A) because his offense did not involve a misrepresentation that he was acting on behalf of a charitable organization. Starr argues the evidence showed he had entered into a valid contract to solicit funds for the VWF, and the only fraud involved a misrepresentation that he had a valid Mercantile Bank account with sufficient funds to cover the check drawn on that account. The government argues that, when considering both the conduct described in the count of conviction and all other relevant conduct described in the PSR, the district court properly increased Starr's sentence. The government asserts Starr waived any objection he had to the relevant conduct described in the PSR by failing to object at his sentencing hearing.
4
In deciding a defendant's base offense level and specific offense characteristics under the Guidelines, a sentencing court considers all "acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2) (defining relevant conduct). The government has the burden of proving relevant conduct with reliable evidence. United States v. Wise, 976 F.2d 393, 402-03 (8th Cir.1992) (en banc), petition for cert. filed, 61 U.S.L.W. 2192 (U.S. Dec. 15, 1992) (No. 92-6960). Here, the PSR included several allegations of fraudulent conduct that, if proven, would most likely have been considered part of the same course of conduct or common scheme or plan as the bank fraud charge to which Starr pleaded guilty. The government, however, did not attempt to prove Starr's other criminal conduct at the sentencing hearing. We reject the government's assertion that Starr waived his objections to the PSR's allegations by failing to raise them at sentencing. Starr objected to the increases in his offense level under sections 2F1.1(b)(2) and 2F1.1(b)(3)(A). The government had the burden of proving these increases, United States v. Dinges, 917 F.2d 1133, 1135 (8th Cir.1990), and if it believed the increases were justified based on relevant conduct, it had the burden of proving that conduct. Further, because the government conceded before sentencing that it could prove no losses beyond those resulting from the offense of conviction, it was reasonable for Starr's attorney to assume the government would not attempt to prove the PSR's allegations of criminal conduct other than the conduct involved in the offense of conviction. The government failed to dispute this assumption even though it had a chance to do so.
5
Considering only the conduct relating to the count of conviction, we conclude the district court did not commit clear error in increasing Starr's sentence under U.S.S.G. § 2F1.1(b)(2). United States v. Lublin, 981 F.2d 367, 370 (8th Cir.1992) (whether defendant engaged in more than minimal planning is factual finding reversible only for clear error). Although the PSR identifies Community Bank as the only entity that incurred a monetary loss from the offense, the record supports a finding that the offense involved more than minimal planning. The Guidelines define "more than minimal planning" as "more planning than is typical for commission of the offense in a simple form." U.S.S.G. § 1B1.1 commentary n. 1(f). This case involved more than simply writing a check on a closed account. Starr opened the account at Mercantile Bank using an alias, then closed it six months later. The following month Starr opened an account at Community Bank using a different alias, and later directed an acquaintance to deposit the check drawn on the closed Mercantile account into the Community account. Community Bank honored the bad check and thus suffered a loss.
6
Because the government did not show Starr misrepresented that he was acting on behalf of a charitable organization, however, the government failed to justify an increase under U.S.S.G. § 2F1.1(b)(3)(A). See Dinges, 917 F.2d at 1135. At Starr's sentencing, the parties agreed a VWF agent would testify that a few months before Starr's offense, the agent entered into a one-year contract with William Kinsey--an individual he never met--to solicit funds for VWF. The government introduced no contrary evidence at the sentencing hearing. Thus, the government failed affirmatively to show Starr lacked authority to act on VWF's behalf at the time of the offense.
7
Accordingly, we affirm the increase under section 2F1.1(b)(2), reverse the increase under section 2F1.1(b)(3)(A), and remand to the district court for resentencing within the proper Guidelines range of 9 to 15 months. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1564645/ | 34 So.3d 18 (2010)
DEUHS
v.
UNEMPLOYMENT APPEALS COM'N.
No. 5D09-1235.
District Court of Appeal of Florida, Fifth District.
April 27, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564650/ | 67 F.2d 669 (1933)
MITCHELL
v.
INVESTMENT SECURITIES CORPORATION.
No. 6931.
Circuit Court of Appeals, Fifth Circuit.
November 25, 1933.
T. Baldwin Martin, of Macon, Ga., for appellant.
Daniel MacDougald and Pope F. Brock, both of Atlanta, Ga., for appellee.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
HUTCHESON, Circuit Judge.
In April, 1931, the Case-Fowler Lumber Company transferred cash and securities to the Investment Securities Corporation, to pay a debt long past due. On May 6, on behalf of bondholders, a foreclosure suit was started and a receiver appointed. On May 8 the company, on its voluntary petition, was adjudicated a bankrupt. On the 17th of July the trustee filed this bill to set the transfer aside as preferential. The District Judge, upon full consideration, finding that the insolvency of the lumber company at the time of the transfer had not been proven, ordered the bill dismissed. The trustee, appealing, brings the record here for review. Fully recognizing the rule that though on an appeal in equity the reviewing court is not bound by the trial court's findings of fact, his findings ought not to be disturbed unless their error is clearly shown, he insists that upon the undisputed facts of record the findings and decree must be set aside as clearly wrong. The circumstances attending the transfer and the situation and prospects of the company when it was made are shown without dispute. They may be briefly stated.
In 1926 the Case-Fowler Lumber Company, which for more than ten years, many of *670 them very profitable, had been a manufacturer of and dealer in hardwood, had through the instrumentality of R. W. Courts bonded its plant for $500,000. The mortgage covered all of the assets of the corporation, the inventory as well as all of the physical properties, except notes, accounts receivable, and cash. This greatly impaired the company's credit position, and, since in only two of the years after the bond issue was there a profit from operations, its position in that regard at the time of the transfer complained of was desperate. In 1929 there was a loss of $278,000; in 1930 of $347,000, not taking into account losses through the bad accounts of officers and loggers which, though carried on the books as assets, were in fact worthless, in excess of $206,000. In the spring of 1930, after Mr. Courts, who since the bond issue had been the financial adviser of the company, and the officers of the lumber company had been unable to obtain funds elsewhere, the company, to pay the spring interest and sinking fund on the bonds, borrowed from Mr. Courts' company, Investment Securities Corporation, without security except stock in the lumber company, put up personally by the president, $26,000. The fall interest and sinking fund was met, by along with other makeshifts, staving off the unsecured creditors. To add to its troubles, banks in which the company carried deposits seized them to apply against long overdue notes. The large sawmill at Macon which could not be operated except at a loss was shut down. In November, the company's affairs were at such a crisis that conferences, in which Mr. Courts participated, were called to consider ways and means of obtaining the operating money, which was absolutely essential to the company's keeping on. In these conferences it was freely stated that the company was broke; that the unsecured creditors would not get 10 cents on the dollar if it was liquidated, and one of the refinancing plans suggested involved the entire elimination of the unsecured creditors. This plan the officers of the company testified they rejected as unfair. Of these conditions Courts was fully aware, having floated the bond issue for the company, and, being one of its unsecured creditors, he kept in active touch with it. Working with the banks, securing extensions from the Union Trust Company, one of the unsecured creditors, endeavoring to enlist new capital, he corresponded with the banks and the creditors with a view to carrying the company along, and, if possible, reviving it. Ever mindful, however, of the $26,000 his company had advanced, which, though secured by the stock of Mr. Fowler in the lumber company he regarded as unsecured, in September, 1930, he wrote a "personal" letter to the president of the Case-Fowler Company, asking assurances that his company would be preferred ahead of other creditors, in the event of a crisis. He wrote: "I told the Investment Securities Corporation that this money, being new money, you would regard it as a loan; that you would take care of ahead of other loans in any time of crisis. Therefore I want you to protect me in this. Of course we do not expect any crisis, but in that event we would do all we could to work out the situation satisfactorily." In reply to this letter the lumber company wrote: "We wish to assure you that we will protect you, should any crisis arise." The record does not show that this understanding was ever communicated to any other of the unsecured creditors. On the contrary, they assumed that Mr. Courts was working for the interest of all alike. The Union Trust Company wrote him in January, 1931, expressing the hope that his efforts might "lead to some plan of putting Case-Fowler out of the situation they are now in. Should the efforts not succeed it seems to us that we should get together and come to some conclusion about a prompt and complete liquidation of Case-Fowler," while on April 10, about the time the transfer was being carried out by remittances drawn to prevent their seizure by bank creditors,[1] the trust company wrote him again: "I understand that a default has either been made or is about to be made on the bonds. If this is the case it looks like the unsecured creditors are up against it. I believe you are in the same boat with us to some extent. * * * In any event, I am counting on you to pull us out of this fix."
Instead of improving after these conferences, the situation of the company became more desperate, not only on account of its own particular situation, but because of the general outlook which caused practically every other hardwood plant in Georgia to shut down. The hardwood lumber market as such was nonexistent. What was sold had to be sold at a constantly decreasing price, each buyer practically dictating what he would pay. Only by heavily discounting its acceptances with what one witness called "loan sharks" and keeping the fact concealed[2] was *671 the company able to go on at all. The time approaching for the spring interest and sinking fund requirements, and there being no way to meet them except by using the surrender value of Mr. Fowler's insurance and a note or two the company had which were negotiable, which would leave the company more strapped than ever, Courts was appealed to to go to Baltimore and secure an extension from the bondholders, and get up a sufficient fund of new money to use as operating capital. Realizing that the crisis had arrived, Courts insisted that the debt of his company be paid, promising, however, if it should be, to use his best efforts to obtain the extension and new capital, and agreeing that, if sufficient new capital could be gotten to put the company on its feet, to have his company contribute $50,000 to the fund. He insisted that he could not consistently either ask for or furnish any part of the new capital while his company was a creditor on paper so long overdue. Arrangements were then made to pay the debt in part with the cash surrender value of Mr. Fowler's policies, and in part by turning over part of the small amount of negotiable paper the company had. At Mr. Courts' suggestion, a statement of the company's assets and liabilities was then prepared as a basis for the application for the extension and the new capital which he had agreed to make. This statement, prepared as to fixed assets on the basis of cost less depreciation, showed fixed plant equipment and mill sites, $559,000, current, $517,000. This was made up of lumber, log, and timber inventories $420,000, and a small amount of cash and accounts receivable. Of this statement the only items representing actual amounts were the liabilities. The asset items, except the small cash, were estimates which in the case at least of fixed assets had no real relation to the present actual fair value of the property, and none whatever to its value as a means of discharging the company's debts. Plaintiff's witnesses, except the officers of the company, attempted to appraise the assets at their convertible cash value; one of them appraised the whole, including the lumber, at $279,000; others appraised only part. Taking them singly and together, the testimony of these witnesses presents a picture of total and complete insolvency. The testimony of the officers of the company was in substance that, viewing the company as a going concern, the estimate was fair, but they recognized that, unless new life could be imparted to the company and it could be made to go on, conditions in the business were such that the fixed assets could not be sold or utilized by anybody at any substantial figure, and that the only real value they had was as junk.
Defendant's main reliance for proof of solvency, apart from its going concern theory, was on the lumber inventory. This was variously estimated in the testimony at from $168,000 to $275,000. The District Judge, saying he thought a valuation of $255,000 for the lumber was reasonable, and taking the going concern value of the plants and equipment, found the company solvent.
Appellant, insisting that this disposition did violence to the actual in favor of a theoretical condition, comes here arguing that, when the transfer was made, the company was, within the meaning of section 1, clause 15, of the Bankruptcy Act (11 USCA § 1 (15),[3] completely insolvent.
We think appellant is right. While it is certainly true that, where the bankrupt was a going concern at the date of the transfer, that fact must be taken into consideration in fixing fair values, and scrap or junk values will not do, if the concern, though nominally alive, is in fact dead on its feet, going concern values may not be taken, for a company can have no going concern value unless it is really, and not merely nominally, a going concern In re Fred D. Jones Co. (C. C. A.) 268 F. 818. We think the statute defining insolvency in connection with preferential transfers makes this entirely clear. In effect, it defines it to be a condition of permanent, as opposed to temporary, inability to pay debts. It declares one insolvent when his ability to pay his debts is not temporary through want of ready funds, but permanent through want of convertible assets. Statutory as well as commercial insolvency arises out of, and consists in, inability to pay debts. One is insolvent under the statute when his assets, if converted into cash, at a fair not forced sale will not pay them. In both cases solvency is tested by ability to pay debts, in the one case promptly, in the other, in time. In testing both kinds of insolvency, the realities of the situation control. In both kinds it is the actual, rather than the theoretical, condition of the debtor which determines it. Mente & Co. v. Old River (D. C.) 3 F.(2d) 38; In re Smith (D. C.) 3 F.(2d) 40, 41; Louisiana National Life Assur. Society v. *672 Segen (D. C.) 196 F. 903; Hard & Rand v. Biston Coffee Co. (C. C. A.) 41 F.(2d) 625; Gates v. First Nat. Bank (D. C.) 1 F.(2d) 820; Updike v. Oakland Motor Car Co. (C. C. A.) 53 F.(2d) 369.
When in the light of this statute the situation existing when the transfer was made is squarely faced, and all its factors are taken into consideration, the company's lack of credit, its lack of market, the total paralysis of the hardwood industry, the strangling pressure of the blanket bond issue, the pall of its heavy annual losses, and the absolute proven certainty that, unless conditions changed, such losses would follow continued operation, we think the conclusion unavoidable that the company was then starkly insolvent and staggering to its fall.
What has been said as to the company's condition, and Courts' connection with and knowledge of that condition, what has been said regarding his insistence that, when the crisis, the imminence of which all foresaw, should come on, his debt should be preferentially paid ahead of the other creditors, together with the very circumstances of the transfer, make it unnecessary to say more upon the issue of the knowledge of defendant that it was being preferred than that the fact of that knowledge stands grimly out, beyond the possibility of question. Every factor in the situation was known to Courts; no one knew better than he that the company was tottering to its fall. When, in its extremity, he took from it to pay his debt its last feeble crutch, the money it had counted on to pay the interest and sinking fund on the bonds, he demonstrated far more effectively than any amount of affirmative testimony could do that he knew its time had come.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
FOSTER, Circuit Judge (dissenting).
The majority opinion apparently is based on the conclusion that, because the bankrupt was not doing a profitable business, it had ceased to be a going concern, and its plant and the stock of lumber on hand had no immediate market value, and therefore neither was to be considered an asset available for payment of its debts. I do not agree with this conclusion. The total liabilities as shown by the record amounted to $537,462.80. The value of the lumber at the lowest estimate shown, $20 per thousand feet, was $266,666.66. The value of the plant and equipment, estimated on the basis of replacement cost, less depreciation, the method almost universally adopted by the courts in estimating fair value in rate cases, was $519,652.24. A fair value given the mill site was $39,904.97. There was also cash on hand to the amount of $11,674.68. There were other assets listed amounting to over $100,000. Leaving this last figure out of consideration entirely, and liberally discounting the estimate of the value of the lumber, mill sites, plant, and equipment, the bankrupt was solvent at the time the payment was made to appellee. The record also supports the conclusion that, in making the payment to appellee, the intention was to bring in new capital and to secure an extension of the bonded indebtedness, rather than to favor an insistent creditor. My conclusion is that the bankrupt was solvent at the time the payment attacked as a preference was made and the judgment of the District Court was right.
For these reasons I respectfully dissent.
NOTES
[1] Letter from H. C. Fowler, R. p. 115: "After considering the matter we decided it would not be advisable to mail your check from one of our local banks."
[2] Testimony of MacEwan, record p. 50: "We did not want it generally known that we sold our accounts to loan sharks."
[3] Section 1, clause 15: "A person shall be deemed insolvent within the provisions of this title whenever the aggregate of his property, exclusive of any property which he may have conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, with intent to defraud, hinder, or delay his creditors, shall not, at a fair valuation, be sufficient in amount to pay his debts." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564722/ | 67 F.2d 475 (1933)
FAIRLESS
v.
COMMISSIONER OF INTERNAL REVENUE.
Nos. 6314-6319.
Circuit Court of Appeals, Sixth Circuit.
November 8, 1933.
*476 Albert B. Arbaugh, of Canton, Ohio (Homer E. Black, and Black, McCuskey, Ruff & Souers, all of Canton, Ohio, on the brief), for petitioners.
A. D. Sharpe, of Washington, D. C. (Sewall Key, Helen R. Carloss, C. M. Charest, and L. M. Berrien, all of Washington, D. C., on the brief), for respondent.
Before MOORMAN, HICKS, and SIMONS, Circuit Judges.
SIMONS, Circuit Judge.
The petitioners in the six cases, grouped under the above style, were all stockholders in the Union Finance Company, an Ohio corporation, which by corporate action taken in October, 1922, transferred all of its assets to the Metropolitan Securities Company on January 4, 1923. The transferor in exchange received a certificate for 5,886 shares of the preferred stock of the purchasing company, and shortly thereafter distributed the stock through a transfer agent to its own stockholders, share for share. The Union Finance Company thereupon ceased to do business, though it did not legally go out of existence until its charter was canceled by the state in 1925.
In its tax return for 1922, the Union Finance Company claimed exemption in the sum of $62,484.14 for bad debts. The respondent upon an audit of its return disallowed the deduction, and determined a deficiency for the years 1921 and 1922. Additional taxes due to such deficiency were assessed in 1926, and, payment not being made, the respondent asserted liability against the petitioners as transferees, which action was sustained by the decisions of the Board of Tax Appeals here sought to be reviewed.
Three questions are presented to us for decision: (1) Are stockholders of a corporation which transferred all of its assets to another corporation in exchange for stock, and thereupon ceased to do business and distributed the stock received to its own shareholders, liable as transferees under section 280 of the Revenue Act of 1926 (26 USCA § 1069 and note)? (2) If liable, are they severally liable for the tax imposed to the extent of the value of the assets received or only for their proportionate share of such tax? (3) Was the respondent right in refusing to allow the deduction for bad debts claimed in the 1922 return?
The pertinent provisions of section 280, printed in the margin,[1] provide for the assessment and collection in the same manner as other deficiencies, of deficiencies in respect of any liability at law or in equity of a transferee of the property of a taxpayer, and define transferee to include distributees. The petitioners contend that, since all of the physical assets and property of the Union Company were turned over to the Metropolitan, the latter is the transferee against which the deficiency should have been declared. We see no merit to this contention. We find nothing in the statute which limits collection of defaulted taxes owing by a dissolved or abandoned corporation to the transferees of its physical assets. Certainly the transferees of a mere holding company which has no property other than shares of stock are not immune from the operation of the section. When the Union Company sold its physical property to the Metropolitan, it became owner *477 of Metropolitan stock, against which the tax liability could have been asserted. Distraint against the Union Company was rendered futile by its distribution of the stock to its stockholders. This is clearly a situation which section 280 was intended to meet, and we have no doubt that the tax can be assessed against and collected from the Union's stockholders to the extent of the assets they received. Hunn v. United States, 60 F.(2d) 430 (C. C. A. 8); Pierce v. United States, 255 U. S. 398, 41 S. Ct. 365, 65 L. Ed. 697; Phillips v. Commissioner, 283 U. S. 589, 51 S. Ct. 608, 75 L. Ed. 1289; Russell v. United States, 278 U. S. 181, 49 S. Ct. 121, 73 L. Ed. 255. It is not material to this inquiry whether or not the Metropolitan Company could also be held liable. Pierce v. United States, supra; Roche v. Commissioners, 63 F.(2d) 623 (C. C. A. 5). Nor do we think that there was obligation on the part of the respondent to have first pursued a manifestly futile remedy against the distributing corporation.
The decision of the Second Circuit Court of Appeals in Reid Ice Cream Corporation v. Commissioner, 59 F.(2d) 189, is not opposed to our conclusion. The taxes there involved were taxes upon the profit or income realized by the selling company upon the sale itself. It was held that where a corporation transfers assets relative to which a tax liability already exists, without reserve for the payment of tax, the claim follows the transferred assets, and the transferee becomes liable to the extent of the assets received, but, where there is no existing claim against the assets and one arises thereafter only out of and because of the sale, there is no liability. The vendee is not obliged to pay his vendor's tax.
The second question is conclusively answered by the case of Phillips v. Commissioner, supra. It was there held by the Supreme Court that one who receives corporate assets upon dissolution is severally liable, to the extent of the assets received, for the payment of the taxes of the corporation; and other stockholders or transferees need not be joined. Whatever may be the petitioners' right to contribution against other stockholders who have also received shares of the distributed assets, the government is not required in collecting its revenue to marshal the assets of the dissolved corporation so as to adjust the rights of its various stockholders. There is nothing in section 280 to indicate that Congress intended to limit the procedure in this way.
It is conceded that debts deducted by the finance company on its 1922 return were not charged off upon its books during the taxable year by formal entries. It is claimed, however, that what was done was to all intents and purposes equivalent. A list of accounts receivable was by the Union Company submitted to the officers of the Metropolitan while negotiations were in progress, and the items in dispute were marked by the Metropolitan as worthless. Thereupon they were listed as bad debts upon the 1922 return.
Section 234 (a) (5), of the Revenue Act of 1921 (42 Stat. 255) provides that, in computing the net income of a corporation subject to the tax imposed by section 230, there shall be allowed, as deductions, "Debts ascertained to be worthless and charged off within the taxable year." It has been said by this and other courts too often to require repetition, that a debt may be deducted as worthless only when it is shown (1) that it was ascertained to be worthless, and (2) that it was charged off within the taxable year. Duffin v. Lucas, 55 F.(2d) 786 (C. C. A. 6); Commissioner v. Liberty Bank & Trust Co., 59 F.(2d) 320 (C. C. A. 6); Domhoff & Joyce Company v. Commissioner, 50 F.(2d) 893 (C. C. A. 6); Continental Pipe Mfg. Co. v. Poe, 59 F.(2d) 694 (C. C. A. 9); Jones v. Commissioner, 38 F.(2d) 550 (C. C. A. 7); Avery v. Commissioner, 22 F.(2d) 6, 55 A. L. R. 1277 (C. C. A. 5). The language of the statute is both clear and specific. It is difficult to see how the judgment of a prospective purchaser, no matter how expressed, can be made the equivalent of a specific act definitely required of the taxpayer as a condition precedent to the allowance of his claim, even though it may have some bearing upon the question of ascertainment. So far as the original taxpayer here is concerned there is nothing in the record to show that anything was done by it until it made its 1922 return, after the close of the taxable year. The Board, because of the fact that the books were not closed at the end of 1922, was not disposed to quibble over the omission of the charge-off in view of the fact that the debts were deducted on the return. Since deduction for bad debts may not be had unless claimed in the return, and since the return is invariably made after the close of the taxable year, to hold the claim of deduction equivalent to the required charge-off would be to render nugatory the statutory requirement. We are cited to decisions of the Board in other cases to the effect that the charge-off of debts may take other forms than entries on the books of the taxpayer, may be effected *478 in a variety of ways, and yet be sufficient for substantial compliance with the statute. This may be conceded without its having any bearing upon the statutory requirement that the charge-off be made within the taxable year. The rule that statutes must be given reasonable interpretation is invoked only when there is room or necessity for interpretation. The language here is unequivocal. Nor does its strict application seem to us unreasonable. It was clearly the purpose of the Congress to condition allowance of deduction for bad debts upon the perpetuation of evidence that they were ascertained to be worthless within the taxable year, and upon some specific act of the taxpayer clearly indicating their abandonment as assets. Undoubtedly Congress was competent to make such provisions, and their value in preventing evasion and fraud is obvious. The Union Finance Company failed to bring its claimed deductions within the allowable class.
Aside from what has been said on the question of charge-off, we think the petitioners' proof fell short of showing that the debts were ascertained to be worthless within the taxable year. Some of the debtors were in bankruptcy, but there is no showing as to the value of their estates, or whether any dividends had been or were likely to be declared. The evidence shows that the Union Company held customers' accounts receivable as collateral. There is no showing as to the value, if any, of such collateral, or whether any effort had been made to collect upon it. In this state of the record we are unable to say that the Board of Tax Appeals was in error in its decisions sustaining the respondent. Collin National Bank v. Commissioner, 48 F.(2d) 207 (C. C. A. 5); Stranahan v. Commissioner, 42 F.(2d) 729 (C. C. A. 6).
The decision of the Board of Tax Appeals in each of the six cases is affirmed.
NOTES
[1] Sec. 280 "(a) The amounts of the following liabilities shall, except as hereinafter in this section provided, be assessed, collected and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this chapter (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds).
"(1) The liability, at law or in equity, of a transferee of property of a taxpayer, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed upon the taxpayer by this chapter or by any prior income, excess-profits, or War-Profits Tax Act. * * *
"(f) As used in this section, the term `transferee' includes heir, legatee, devisee, and distributee." U. S. C. Appendix, title 26, § 1069 (26 USCA § 1069). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564658/ | 67 F.2d 571 (1933)
THE MARIA.
No. 53.
Circuit Court of Appeals, Second Circuit.
November 6, 1933.
Loomis, Williams & Donahue (Homer L. Loomis, of New York City, of counsel), for appellant.
Bigham, Englar, Jones & Houston (D. Roger Englar, Henry N. Longley, and Ezra G. Benedict Fox, of New York City, for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
The libelants were a number of underwriters, who had assured cargo lifted by the motor ship Maria, owned by the claimant, an Italian corporation. On her arrival at destination, Trieste, the master withheld the cargo, claiming a lien for general average because of a jettison made necessary by a strand en route. The consignees made the payments demanded; the master gave them receipts, and thereafter applied to an Italian court in Trieste for the appointment of general average adjusters, whom the court appointed and to whom it directed him to deliver the payments, which he did. Thereupon the libelants, the underwriters, paid the consignees their contributions and took up the general average receipts. They now assert that the ship was unseaworthy and that no general average liens arose. They are American or British corporations; the shippers are American citizens; the consignees are domiciled in Italy. The libel was in rem, but the ship was not arrested; a stipulation being substituted in her stead. The claimant moved to dismiss the suit for lack of jurisdiction, and excepted to the libel for the same reason. The court overruled the objections and denied the motion, and the claimant appealed.
The decree did not determine "the rights and liabilities of the parties" within the meaning of the Act of April 3, 1926 (44 Stat. 233 [28 USCA § 227]), extending our appellate jurisdiction. That statute was primarily intended to avoid the expense and delay of a reference to compute damages, since it is always possible that the libelant may later turn out to have no right to recover at all; and, although it would perhaps be too much to say that it covers that situation alone, it is hard to imagine other instances. Be that as it may, it is clear that here not all of the "merits" have yet been decided, by which we mean those issues on which liability, as distinguished from its amount, may depend finally. Whenever a demurrer is overruled, a successful appeal will terminate the suit, unless the pleading be amended. The reason for denying the appeal, when the case is in that posture, is that, if the decision prove to be right, a second appeal may be necessary. So here, if these decrees should be affirmed, the case would not be at an end, for on the merits the Maria's seaworthiness would be material, and it is in dispute. "The rights and liabilities of the parties" are therefore fixed only on the hypothesis that the ruling was wrong, and that cannot be ascertained while the appeal is pending. Thus the question must be begged on which the existence of our jurisdiction turns.
The decisions are few. In Lissner & Co. v. Oceanic Steam Navigation Co., Ltd. (C. C. *572 A.) 30 F.(2d) 290, we refused to hear an appeal from a decree which left to a commissioner the determination of certain disputed allegations in the libel. That was a plain case. In Aunt Jemima Mills Co. v. Lloyd Royal Belge, 34 F.(2d) 120, we did indeed take jurisdiction, although the authority of the libelant to sue was still undetermined. Thus the decree was in fact interlocutory "on the merits," but we did not observe the defect of our own motion, and the parties apparently did not raise it. In Moore & McCormack Co. v. Valley Camp Coal Co. (C. C. A.) 37 F. (2d) 308, the Fourth circuit entertained an appeal from a decree overruling the libelant's exceptions to a defense in the answer, but expressly noticed the point, and declared that its action was not to be a precedent in other cases. We do not treat it as such. These are the only decisions we can find; they throw no light on the point here, except that the last is an intimation against the appeal at bar.
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564660/ | 34 So.3d 377 (2010)
CAFÉ LeBLANC, INC., Robin LeBlanc, and Andre LeBlanc
v.
CGI HOLDINGS, L.L.C. and ABC Insurance Company.
No. 2009-CA-1042.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 2010.
M. Elizabeth Bowman, Christy M. Howley, Bowman & Howley, Gretna, LA, for Plaintiffs/Appellees.
Mark E. Seamster, Galloway Johnson Tompkins Burr & Smith, Mandeville, LA, for Defendant/Appellant, C.G.I. Holdings, L.L.C.
(Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY).
*378 MICHAEL E. KIRBY, Judge.
This matter arises from a dispute between the owner/lessor and former tenant/lessees of part of a commercial building[1] that flooded during Hurricane Katrina. The owner/lessor, C.G.I. Holdings, L.L.C. ("C.G.I."), appeals a trial court judgment in favor of the tenant/lessees, Café LeBlanc, and Robin and Andre LeBlanc ("the LeBlancs"), awarding them damages of fifty thousand dollars ($50,000.00), plus judicial interest and costs, for the loss of their movable property. For the reasons that follow, we reverse.
In 1989, the LeBlancs opened Café LeBlanc, a restaurant in St. Bernard Parish, located in the commercial building at issue. On August 29, 2005, Hurricane Katrina made landfall just south of New Orleans. A breach at the Industrial Canal levee and the overtopping of the Mississippi River Gulf Outlet levee caused widespread flooding throughout St. Bernard Parish. The interior of the restaurant sustained seven (7) feet of water.
Two weeks after the storm, the LeBlancs contacted Keith Collura, a partner in C.G.I., to inform him that they were in Houston, Texas. Mr. Collura told the LeBlancs that he had returned to St. Bernard Parish on September 10, 2005, to view the devastation. He explained that he did not have a key to access the restaurant, but by looking through the windows, it appeared to him that the restaurant was completely destroyed. Before ending their conversation, the LeBlancs authorized Mr. Collura to enter the restaurant to inspect the damage if he returned again.
In early October 2005, Mr. Collura and Pat Perez, another C.G.I. partner, returned to St. Bernard Parish to begin cleaning their homes and commercial properties, including 1010 East Judge Perez Drive. They cleaned, gutted and removed debris from Café LeBlanc. They placed the commercial restaurant equipment, including refrigerators, freezers, fryers, ovens, sinks, drink machines and an ice machine, outside the building.
While still in Houston, Mr. LeBlanc received a phone call from a friend who informed him that the restaurant equipment was on the side of the road. The LeBlancs returned to St. Bernard Parish on October 9, 2005, and discovered Café LeBlanc had been cleaned and the restaurant equipment discarded onto the street outside the premises. Upon closer inspection, the LeBlancs realized many of the pots, pans, utensils, dishes, and smaller appliances were missing. The following week, the LeBlancs presented Mr. Collura with a letter from their attorney demanding that C.G.I. and its partners cease all activity at the leased premises until the LeBlancs had the opportunity to assess their damages. On March 9, 2006, the LeBlancs filed their petition for damages, alleging that C.G.I. wrongfully evicted Café LeBlanc from the premises and discarded their movable property without permission.
Prior to trial, the LeBlancs stipulated that their claim had a value of no more than fifty thousand dollars ($50,000.00); thus, the matter was tried by the judge without a jury. See. La.Code Civ. Proc. art. 1732. At trial, the LeBlancs testified that although they had authorized C.G.I., through Mr. Collura, to enter the restaurant, they never authorized him to clean *379 and gut their leased space or to remove and discard their movable property before they could assess their damages. They testified that C.G.I. never gave them notice that it intended to remove their property in conjunction with the cleanup. On the other hand, Mr. Collura and Mr. Perez claimed that the LeBlancs had authorized them to enter the restaurant and remove their property to facilitate the cleanup. They claimed that Mr. LeBlanc told them that he and Mrs. LeBlanc had no intention of ever returning to live in St. Bernard Parish.
Following trial, the trial court rendered judgment in favor of Café LeBlanc and the LeBlancs, finding that C.G.I. evicted them while Executive Orders KBB 2005-32, KBB 2005-48 and KBB 2005-67, which temporarily prohibited evictions after the storm, were still in effect. The trial court concluded that C.G.I. failed to afford the LeBlancs due process regarding the eviction. In reasons for judgment, the trial judge emphasized that he found the LeBlancs' testimony to be much more credible than that of the C.G.I. partners.
On appeal, C.G.I. argues that the trial court erred in finding that it wrongfully evicted Café LeBlanc and the LeBlancs from the premises. We agree.
Louisiana Civil Code article 2668 provides, in part, "Lease is a synallagmatic contract by which one party, the lessor, binds himself to give to the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay."
The lessor's principal obligations are set forth in La. Civ.Code art. 2682, which states, "The lessor is bound: (1) To deliver the thing to the lessee; (2) To maintain the thing in a condition suitable for the purpose of which it was leased; and (3) To protect the lessee's peaceful possession for the duration of the lease."
The lessee's principal obligations are set forth in La. Civ.Code art. 2683, which states, "The lessee is bound: (1) To pay the rent in accordance with the agreed terms; (2) To use the thing as a prudent administrator and in accordance with the purpose for which it was leased; and (3) To return the thing at the end of the lease in a condition that is the same as it was when the thing was delivered to him, except for normal wear and tear or as otherwise provided hereafter."
If a lessee fails to pay the rent in the amount and manner agreed upon, a lessor may dissolve the lease and regain possession in the manner provided by law. See La. Civ.Code art. 2704.
"If the leased thing is lost or totally destroyed, without the fault of either party, or if it is expropriated, the lease terminates and neither party owes damages to the other." La. Civ.Code art. 2714.
Furthermore, the written lease between C.G.I. and Café LeBlanc, provided, at lines 23-25:
Should the property be destroyed or materially damaged so as to render it wholly unfit for occupancy by fire or other unforeseen event not due to any fault or neglect of Lessee then Lessee shall be entitled to a credit for the unexpired term of the lease and any unmatured rent notes shall be cancelled.
The appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court's finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Driscoll v. Stucker, XXXX-XXXX, p. 17 (La.1/19/05), 893 So.2d 32, 46.
Upon review, we find the overwhelming evidence in the record, particularly the *380 photographs, indicates that the extensive water damage to the interior of the commercial building rendered the premises uninhabitable and unsuitable for operating a restaurant. Even accepting as true the LeBlancs' claim that they never authorized C.G.I. to remove their movables from the premises, Executive Order KBB 05-67 did not prohibit an owner of immovable property from entering the lease property to make necessary repairs.[2] It is undisputed that the restaurant equipment and other movables had to be removed to remediate the environmental hazards and repair the premises. Because C.G.I. was without fault in causing the damage to Café LeBlanc, and the LeBlancs never paid rent after the month of August 2005, we find the trial court erred in concluding that an eviction occurred and in awarding the LeBlancs damages.
Accordingly, for the above reasons, the judgment of the trial court is reversed.
REVERSED.
NOTES
[1] The commercial building, located at 1010 East Judge Perez Drive, Chalmette, Louisiana, has a total area of 12,000 square feet. In August 2005, three tenants, a restaurant, a dancing school and a bingo hall, leased space in the building. The plaintiff herein, Café LeBlanc, Inc. ("Café LeBlanc"), occupied 2,400 square feet pursuant to a written lease.
[2] Executive Order KBB 05-67, Section 1 E, provides:
Nothing in Subsection C of this Section [regarding the suspension of legal deadlines] shall prohibit an owner of immovable property from reclaiming leased property if abandoned as provided for by law, or entering leased property to make necessary repairs as provided by law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564662/ | 34 So.3d 221 (2010)
Michael NELFRARD, Appellant,
v.
STATE of Florida, Appellee.
No. 4D08-4418.
District Court of Appeal of Florida, Fourth District.
May 12, 2010.
Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
*222 Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
After entering a plea and being sentenced for possession of cocaine, appellant filed a timely motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l). He claimed that his counsel coerced him into entering a plea and misinformed him as to the maximum penalty he could face. The trial court summarily denied the motion, attaching a copy of the transcript of the plea colloquy. On appeal, appellant claims that the trial court erred in failing to appoint an attorney to represent him where he alleged a conflict with his current attorney in his motion. We affirm, concluding that where the record conclusively refuted the allegations of the motion to withdraw a plea pursuant to Rule 3.170(l), the trial court did not err by summarily denying it without appointing additional counsel to represent the appellant.
While defendant was on probation for grand theft, he was arrested for possession of cocaine, which resulted in the filing of an affidavit of violation. At the hearing on the violation, the state made a plea offer which the defendant accepted. His counsel meticulously questioned him on the particulars of the plea and explained to him that he could be sentenced up to ten years in prison for the combined crimes. The court also thoroughly explained the plea to the defendant. Defendant eventually pled to both the violation of probation and to the possession of cocaine, for which the court sentenced him to concurrent sentences of 364 days in custody.
Defendant filed a pro se motion to vacate his plea to the possession of cocaine charge, claiming that counsel coerced him into accepting the plea by telling him that he would be sentenced to five years consecutive to his sentence for the violation of probation. The trial court summarily denied the motion without a hearing. In its order it explained that "[o]nce sentence has been imposed, to withdraw a plea a defendant must demonstrate a manifest injustice requiring correction." It then concluded that he was required to show that his plea was involuntary and "failed to make such a showing of manifest necessity," attaching a copy of the plea colloquy transcript to the order. Defendant appeals.
Where a defendant seeks to withdraw a plea after sentencing, the defendant must prove that a manifest injustice has occurred. Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003); State v. Wiita, 744 So.2d 1232, 1235 (Fla. 4th DCA 1999). This is a more stringent standard than a motion to withdraw a plea filed before sentencing, as the burden falls on the defendant to prove that withdrawal is necessary to correct the manifest injustice. Snodgrass, 837 So.2d at 508. Examples of situations where withdrawal is necessary to correct a manifest injustice include cases where the defendant proves that he received ineffective assistance of counsel or where the defendant's plea was involuntary. See Williams v. State, 316 So.2d 267, 274 (Fla.1975). Similarly, a defendant's entry of a plea based upon defense counsel's misadvice about sentencing can be a basis for allowing a defendant to withdraw the plea. Snodgrass, 837 So.2d at 508.
The defendant argues that his motion stated a facially sufficient claim of coercion through misadvice of defense counsel as to the maximum length of his sentence, and he was entitled to a hearing on the issue. When a defendant files a facially sufficient motion to withdraw plea *223 under rule 3.170(l), due process requires a hearing unless the record conclusively shows the defendant is entitled to no relief. Ragoobar v. State, 893 So.2d 647, 648 (Fla. 4th DCA 2005); Simeton v. State, 734 So.2d 446, 447 (Fla. 4th DCA 1999). However, the plea colloquy itself may conclusively refute a defendant's allegations that counsel misrepresented the length of time the defendant would serve. See, e.g., Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009). Where the court informs a defendant of his sentencing exposure, a defendant may not reasonably rely on a contrary representation by counsel. See, e.g., Scheele v. State, 953 So.2d 782 (Fla. 4th DCA 2007) (holding that a defendant could not reasonably rely on his lawyer's alleged advice that he faced a maximum sentence of only ten years where the trial court told the defendant in no uncertain terms that he faced a maximum of twenty-eight years).
A review of the entire plea colloquy conclusively refutes defendant's allegations that his attorney coerced him by telling him that if he failed to accept the plea offer, he would be sentenced to five years in prison for the cocaine charge. During the plea colloquy, the defense attorney and the court both informed the defendant of the maximum sentences to which he could be sentenced, noting that he could face any sentence up to the maximum of consecutive five-year sentences on the two cases. The trial court also specifically informed him that the length of the sentence was not yet decided. Therefore, he could not have reasonably relied on his counsel's alleged statement that he would receive a five-year prison sentence if he did not accept the state's plea offer, when the trial court told him that the sentence was undetermined.
Defendant also claims that he was entitled to conflict-free counsel to represent him on the motion to withdraw the plea. In Schriber v. State, 959 So.2d 1254 (Fla. 4th DCA 2007), we held that the trial court erred in summarily denying the defendant's pro se motion to withdraw plea after sentencing without appointing conflict-free counsel after he alleged that his prior counsel led him to enter a guilty plea involuntarily. Although in Schriber we directed the trial court to appoint conflict-free counsel to assist Schriber in drafting his motion and instructed the trial court to thereafter determine whether to summarily deny the motion or to hold an evidentiary hearing, the supreme court has announced a new rule regarding appointment of counsel to represent defendants filing pro se motions to vacate pleas. In Sheppard v. State, 17 So.3d 275 (Fla.2009), the court held:
[W]e outline the procedure trial courts should follow when a represented defendant files a pro se rule 3.170(l) motion based on allegations giving rise to an adversarial relationship such as counsel's misadvice, misrepresentation, or coercion that led to the entry of the plea. In these narrow circumstances, ... the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant's allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.
Id. at 286-87 (emphasis supplied) (footnote omitted). Thus, the trial court is not required to appoint conflict-free counsel unless both an adversary relationship exists and the defendant's allegations are not conclusively refuted by the record. While the trial court did not have the benefit of *224 Sheppard and did not hold a hearing to determine adversity between defendant and counsel, the failure to conduct a hearing is at most harmless error, because conflict-free counsel would not be required where defendant's allegations were conclusively refuted by the record.
For the foregoing reasons, we affirm appellant's conviction and sentence.
DAMOORGIAN and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564727/ | 929 S.W.2d 538 (1996)
Mary Ann MOLINA, Individually and as Next Friend of Mary Elizabeth Campos, a Minor, Appellants,
v.
Shirley P. PIGOTT, M.D., and Detar Hospital, Inc., Appellees.
No. 13-95-184-CV.
Court of Appeals of Texas, Corpus Christi.
August 22, 1996.
Rehearing Denied September 19, 1996.
*540 Cage Wavell, Deborah R. Sundermann, Corpus Christi, for Appellants.
Ann P. Watson, Hill, Parker, Franklin & Cardwell, John Roberson, Hill, Parker, Franklin, Cardwell & Jones, Richard M. Law, Nancy Bolin Broaddus, Dunn, Kacal, Adams, Pappas & Law, Houston, for Appellees.
Before DORSEY, FEDERICO G. HINOJOSA, Jr. AND RODRIGUEZ, JJ.
OPINION
DORSEY, Justice.
Mary Ann Molina appeals a take-nothing judgment entered against her in her suit against Dr. Shirley Pigott and Detar Hospital, Inc., for medical malpractice. We affirm.
Ms. Molina came under Dr. Pigott's prenatal care in January 1989. In August 1989, Ms. Molina was admitted to Detar Hospital for induction of her labor. The delivery of Ms. Molina's daughter was complicated when the fetus's shoulder became lodged against Ms. Molina's pubic bone. Dr. Pigott applied pressure and attempted to rotate the fetus in the birth canal to facilitate the birth. After several medical maneuvers, the fetus was partially delivered along with a prolapsed, or compressed, portion of the umbilical cord. The child was eventually born with a nerve injury, resulting in the limited use of one of her arms.
Ms. Molina sued individually and as next friend of her daughter, alleging that Dr. Pigott and Detar Hospital were negligent and committed malpractice, resulting in injury to her daughter. Following a jury trial, the trial court entered a judgment that Ms. Molina take nothing. Ms. Molina brings a limited appeal complaining of the trial court's failure to strike a potential juror for cause during voir dire, and of the defendant's peremptory strikes, which she claims were racially motivated.
Failure to Strike Juror for Cause
By her first six points of error, appellant complains that the trial court should have allowed her to strike a potential juror for cause. Appellant argues that one of the venire members, Ms. Ann Miller, was biased as a matter of law. When the trial court refused to strike Ms. Miller, appellant used a peremptory strike to eliminate her from the venire. Appellant requested an additional peremptory strike (which was denied) then objected that she was unable to use that peremptory strike to eliminate Mr. Dennis Paul Speed from the venire, and that it was *541 error for the trial court to empanel the jury with Mr. Speed sitting as a juror. Appellant thus properly preserved this complaint for our review. Hallett v. Houston Northwest Medical Ctr., 689 S.W.2d 888, 890 (Tex.1985).
Appellant's arguments hinge on whether or not Ms. Miller was in fact biased as a matter of law. If so, the trial court had no discretion in striking her for cause, and the failure to do so was error. Compton v. Henrie, 364 S.W.2d 179, 182 (Tex.1963); Gum v. Schaefer, 683 S.W.2d 803, 808 (Tex.App. Corpus Christi 1984, no writ) (per curiam). If not, the trial court had discretion in determining whether or not to strike her, and we will consider any evidence of her bias in a light most favorable to the trial court's ruling. Gum, 683 S.W.2d at 807.
A person may be disqualified from serving on a jury if they are prejudiced against or in favor of a party to the action. Tex. Gov't Code Ann. Sec. 62.105(4) (Vernon 1988); Garza v. Tan, 849 S.W.2d 430, 431-32 (Tex.App.Corpus Christi 1993, no writ). This disqualification extends to bias or prejudice against the subject matter of the suit as well as against the litigants. Compton, 364 S.W.2d at 182. Once bias or prejudice is established, a potential juror is disqualified as a matter of law. Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex.1963); Gum, 683 S.W.2d at 807.
If prejudice is not established as a matter of law, however, the trial court makes a factual determination as to whether the venireperson is prejudiced enough to merit disqualification. Swap Shop, 365 S.W.2d at 154; Glenn v. Abrams/Williams Bros., 836 S.W.2d 779, 782 (Tex.App.Houston [14th Dist.] 1992, writ denied). This determination is within the discretion of the trial court and will not be overturned absent a showing of abuse. Sullemon v. U.S. Fidelity & Guar. Co., 734 S.W.2d 10, 14-15 (Tex.App.Dallas 1987, no writ).
In order for us to determine that Ms. Miller was disqualified as a matter of law, the record must conclusively show that her state of mind led to the natural inference that she would not act with impartiality. Compton, 364 S.W.2d at 182; Powers v. Palacios, 794 S.W.2d 493, 495-96 (Tex.App. Corpus Christi 1990), rev'd on other grounds, 813 S.W.2d 489, 491 (Tex.1991). In other words we must find that there "was a capricious disregard of competent evidence" of Ms. Miller's bias or prejudice by the trial court. Sullemon, 734 S.W.2d at 14-15 (emphasis added). If, on the other hand, "there is a conflict in the evidence, when it can be said that the inferences are not all one way, or when an opinion to the contrary might lawfully be formed," the trial court's refusal to disqualify Ms. Miller may have been appropriate. Id.
During voir dire, the attorneys related the general facts of the case to the venire to determine whether any venireperson had experienced a similar situation in childbirth and whether this might cause them to feel biased. Ms. Miller responded to the defense counsel's question of whether anyone had experienced complications with obstetrical care. Ms. Miller initially stated that her experience did not cause her a problem with being able to serve on the jury.
Later, another of the attorneys for the defense asked whether anyone had experienced a prolapsed umbilical cord. Ms. Miller again raised her hand. The attorneys for both sides then questioned Ms. Miller at length regarding her prior experience and whether or not it would cause her to be biased. These exchanges bear repetition at length:
MS. WATSON (for the defense):
Has anyone had any experiences with shoulder dystocia?
What about a prolapsed umbilical cord, a squashed cord?
This babyas her head came out, the cord appeared smashed up against her face, compressed.
Has anyone had any experience with that problem?
MS. MILLER: (Raised hand.)
MS. WATSON: You have?
MS. MILLER: My son.
MS. WATSON: Is there any reason why your personal experiences might bear on this case one way or the other?
*542 MS. MILLER: I can't honestly say that it wouldn't.
MS. WATSON: It would not?
MS. MILLER: I don't know.
* * * * * *
MR. LAW (for the defense):
Ms. Miller
MS. MILLER: Yes, sir.
MR. LAW: one of the things that you talked about was youryou had a problem with a prolapsed cord with your son?
MS. MILLER: Uh-huh.
MR. LAW: [D]oes that present any problem with you in being able to sit as a juror in this case?
MS. MILLER: Not in that s[ense]; no, sir.
MR. LAW: Is it too personal or too close to you in order to
MS. MILLER: No, not about that. Not in that particular way.
MR. LAW: All right.
Is there anything else about your personal experience with delivering children or
MS. MILLER: Well, I can just, I'll just simply say this. I just thank God he lived.
MR. LAW: All right.
Does he have impairment?
MS. MILLER: No. He was cut. He has scars. But in every other aspect, he is mentally and physically fine.
MR. LAW: How many years ago was this?
MS. MILLER: He will be 20 in February.
MR. LAW: Was he delivered in this area?
MS. MILLER: In Citizens.
MR. LAW: Okay.
I assume by none of the doctors who participated in the care here?
MS. MILLER: No, sir.
MR. LAW: Nothing about that causes you a problem?
You'll be able to sit here?
Okay, thank you.
MS. MILLER: Thank you.
MR. WAVELL (for the plaintiffs):
There werethere's always two sides to everything.
When Mr. Law was asking a question, you said, "No, not about that" and so on as though there is something that does cause you a problem here; and that's what I want to know about?
MS. MILLER: Just like I said, I was just thankful that they were able to save my baby because he almost died inside of me.
MR. WAVELL: See, in this case that concerns me a little bit because with that strong personal experience you have, I think that it may have an overwhelming effect
MS. MILLER: Right.
MR. WAVELL: because this girl is quite alive, very cute child.
MS. MILLER: She's precious.
MR. WAVELL: Right. She's not injured at all except for the arm. She has no mental injury. And in that regard, you will probably think, well, she is alive, yet
MS. MILLER: Oh, yes.
MR. WAVELL: we are bringing a lawsuit for the disability to her arm.
Now, what type of disability does your son have?
MS. MILLER: None, just [a] scar.
* * * * * *
MR. WAVELL: If he had beenI take it you did not sue in that case?
MS. MILLER: Oh, heavens no.
MR. WAVELL: And was it a case where the doctors did all they could?
MS. MILLER: Yes, sir.
MR. WAVELL: And you were glad they were able to help?
MS. MILLER: Yes, sir.
MR. WAVELL: If the evidence shows that the doctors in this case simply didn't do what they should have done, would you have any reluctance to enter a verdict in favor of the child if the evidence shows that that would be fair; or would that experience with you have *543 such an effect that you probably could not do that?
MS. MILLER: Well, I know everybody could make mistakes.
MR. WAVELL: Right. And, you know, here we're saying a mistake was made; and we want the folks who made it to pay for the injury it caused. We're not, you know, we're willing to say this was just a mistake. Everybody makes mistakes. If you run a stop sign, it was a mistake. You don't have to go to jail, but you have to pay for the damages.
That'sso, would you have a problem?
MS. MILLER: Until they came up about the cord, I had no problems; but once that came, it did make it very personal. It bothered me.
MR. WAVELL: Would it be difficult for you to render a verdict?
MS. MILLER: I don't know. I'm being perfectly honest with you in telling you I do not know.
MR. LAW: What we need to know is whether or not you're willing to listen to the evidence?
MS. MILLER: I would be willing to listen to the evidence.
MR. LAW: And answer the questions the judge gives you based upon the evidence in the way he instructs you?
Can you do that?
MS. MILLER: I believe I could.
MR. WAVELL: But, on the other hand, I'm concerned that this personal experience that you have, which is unusual, most folks don't have that kind of experience, has had such an emotional impact upon you and you are so thankful that your son is alive, that in this case you would be more inclined to say, she is also alive. Folks make mistakes. Let's just go on about it even if you're convinced that she did make a mistake.
In other words, if she made a mistake, the instructions are going to be I think pretty clearly for you to find one certain way; but I think you won't have any trouble doing that?
Am I correct in that?
MS. MILLER: There is that possibility. I think I'm intelligent enough to make a decision on the facts; but still, I'm a mother.
MR. WAVELL: I know.
Would you feel more comfortable not being on this jury in view of your personal experience in the past?
You think you could be more fair on another jury where this wasn't the issue?
MS. WATSON: Do you think you could listen to the evidence and evaluate what the evidence is?
MR. WAVELL: Let her answer the question first.
MS. MILLER: I really don't know that it makes that much difference, but I understand where you'reI understand what you're asking.
MR. WAVELL: What I need you to be able to say is that for certain there is no question in your mind that you can be fair and impartial in this case.
MS. MILLER: I think I could[,] listening to the evidence. But this is, you know, be honestly back to the other [sic]. It would always be in the back of my mind.
MR. WAVELL: What do you think that that might have an [e]ffect upon you in all honesty.
MS. MILLER: That's what I'm trying, you know, I don't think that it would but
MR. WAVELL: You realize there's
MS. MILLER: I realize that it's there. There is a question there. I think I could be because in teaching I have dealt with many situations and even though I was definitely one way going into a situation, I have been shown that I was not right in the first place.
MR. WAVELL: In view of that, would you feel like you could be more fair on another jury?
MS. MILLER: Probably.
We cannot say that Ms. Miller's answers to the attorney's questions conclusively established her prejudice to the point that it leads to the natural inference that she would not *544 have acted with impartiality. Compton, 364 S.W.2d at 182; Powers, 794 S.W.2d at 495-96. Therefore, the trial court was within its discretion in determining that she was able to serve on the jury, and in denying appellant's request for a strike for cause. Swap Shop, 365 S.W.2d at 154. "The common thread running through those cases which are reversed on the grounds of trial court error in refusing a challenge for cause for bias is a forthright panelist who admitted bias." H. Lee Godfrey, Civil Voir Dire in Texas: Winning the Appeal Based on Bias or Prejudice, 31 S. TEX.L.REV. 409, 429 (1990). This is not such a case. In this case, Ms. Miller's statements did not conclusively establish that she had a biased or prejudiced state of mind for or against either side, or that she had particularly strong feelings against the subject matter of the litigation. We find that the trial court did not abuse its discretion in failing to excuse Ms. Miller for cause. Appellant's points of error one through six are overruled.
Batson Hearing
By points of error seven through ten, appellant argues that the trial court erred in denying appellant's Batson challenge at trial. At the close of voir dire, appellant noticed that the defendants had used peremptory strikes against four potential jurors with Hispanic surnames: Juan J. Rivera, juror number one; Fabian Perez Gonzales, juror number seventeen; Stacey Lynette Martinez, juror number nineteen; and Ernest Delgado, juror number twenty-six. Appellants requested a Batson hearing to determine if these venire members were struck for prohibited discriminatory reasons.
Appellant's counsel testified during the hearing that appellant and her daughter are both of Hispanic descent, and that during voir dire he noticed that the defense counsel had not questioned the Hispanic members of the venire or had only questioned them cursorily. He noted that Dr. Pigott's attorney, Mr. Law, did not question any Hispanic venire members and he opined that there was no reason other than those venire members' ethnic background for defense counsel to have struck them.
Mr. Law responded with the following reasons for challenging the four potential jurors:
1) Mr. Rivera was challenged because of his occupation as a U.S. Postal Service employee for twenty-two years and because his wife is a child-care worker. Mr. Law testified that, in his experience, Postal Service employees are "plaintiff oriented," and he reasoned that Mr. Rivera's wife's occupation would make him "sympathetic toward the plaintiffs."
2) Mr. Gonzales was challenged due to his occupation as a projectionist, his tardy return from lunch during the voir dire process, and his "apparent intelligence level."
3) Ms. Martinez was challenged because of her age (nineteen) and her occupation as an assistant manager trainee at the Playhouse Theater.
4) Mr. Delgado was challenged because of his age (nineteen) and his occupation as a laborer in a lumber company.
Mr. Law noted that he did question Ms. Martinez during the voir dire process, that he did question a number of the other Hispanic venire members, and that several Hispanic venire members were not struck by the defense and were eventually seated on the jury panel. Mr. Law testified that the potential jurors that were struck were challenged because of their age and occupation, Mr. Law's experience with picking jurors, and the other potential jurors available to him in the venire. On cross-examination, Mr. Law admitted that his determinations concerning certain occupations were based on assumptions on his part, but reiterated that his experience and training also played a part in his determination of who to strike.
A party may not strike prospective jurors because of their race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69 (1986). This prohibition against racially-motivated peremptory strikes applies to civil cases as well as criminal cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631, 111 S.Ct. 2077, 2088, 114 L.Ed.2d 660 (1991); Powers v. Palacios, 813 S.W.2d 489, 491 (Tex.1991); Benavides v. American Chrome & Chem., Inc., 893 S.W.2d *545 624, 626-27 (Tex.App.Corpus Christi 1994), writ denied, 38 Tex.Sup.Ct.J. 990, 907 S.W.2d 516 (1995) (per curiam). We look to the criminal jurisprudence of Texas for guidance in Batson issues. In the Interest of A.D.E., 880 S.W.2d 241, 243 (Tex.App.Corpus Christi 1994, no writ); Lott v. City of Fort Worth, 840 S.W.2d 146, 149 (Tex.App.Fort Worth 1992, no writ).
When a party appeals the outcome of a Batson hearing, the standard of review calls for reversal of trial court rulings that are "clearly erroneous." Hill v. State, 827 S.W.2d 860, 865 (Tex.Crim.App.1992); Whitsey v. State, 796 S.W.2d 707, 717 (Tex. Crim.App.1989) (opinion on State's motion for rehearing). To determine whether the trial court's ruling was in fact "clearly erroneous," we examine the entire record, in the light most favorable to the court's ruling, in order to determine if we are "left with the `definite and firm conviction that a mistake has been committed.'" Hill, 827 S.W.2d at 865 (citing U.S. v. Fernandez, 887 F.2d 564, 567 (5th Cir.1989)); Camacho v. State, 864 S.W.2d 524, 528 (Tex.Crim.App.1993). If supported by the record, including the voir dire, the attorney's explanation of his use of a peremptory strike, the rebuttal by appellant, and impeaching evidence, the decision of the trial court will not be clearly erroneous. Camacho, 864 S.W.2d at 528 (citing Vargas v. State, 838 S.W.2d 552 (Tex.Crim.App.1992)).
In the present case, Mr. Law provided race-neutral explanations for each of the strikes challenged in the Batson proceeding. These explanations need not have been plausible in order to satisfy the second step of the Batson proceeding. See Purkett v. Elem, ___ U.S. ___, ___, 115 S.Ct. 1769, 1770, 131 L.Ed.2d 834 (1995). We must accept a facially neutral explanation unless a discriminatory intent is inherent in the explanation. Interest of A.D.E., 880 S.W.2d at 243. The burden then shifts back to the complainant to prove by a preponderance of the evidence that the opposition's explanations are mere pretext for discrimination. Salazar v. State, 818 S.W.2d 405, 409 (Tex. Crim.App.1991). The court then determines whether there was a racially motivated strike. Lott, 840 S.W.2d at 150.
A panel member may legitimately be struck based on a hunch, for failure to make eye contact, inattentiveness, or other nonquantifiable characteristics. See Vargas, 838 S.W.2d at 554-55; Doby v. State, 910 S.W.2d 79, 82 (Tex.App.Corpus Christi 1995, pet. ref'd). In addition, peremptory strikes based on a panel member's employment status are allowed. See Earhart v. State, 823 S.W.2d 607, 625 (Tex.Crim.App. 1991); Tompkins v. State, 774 S.W.2d 195, 205 (Tex.Crim.App.1987) (en banc), aff'd, 490 U.S. 754, 109 S.Ct. 2180, 104 L.Ed.2d 834 (1989) (per curiam) (holding that striking a venire member because of their employment with the U.S. Postal Service was permissible). In the present case, Mr. Law provided race-neutral explanations for his peremptory strikes, and the trial court determined that his strikes did not violate Batson. The trial court's decision on the ultimate question of discriminatory intent is to be accorded great deference on appeal, and we will not disturb the ruling unless it is "clearly erroneous." See Whitsey, 796 S.W.2d at 726. After reviewing the record, we do not come to that conclusion. Points of error seven through ten are overruled.
By points of error eleven and twelve, appellant claims that the trial court erred in failing to impanel a jury of her peers and in entering judgment on the verdict of an improperly impaneled jury. Appellant does not offer any argument or authority for these two points of error separate from that provided for points of error seven through ten. We therefore read these points of error as an extension of points of error seven through ten, and overrule them for the reasons recited above.
Conclusion
Finding that the trial court did not err in failing to strike Ms. Miller for cause and in denying appellant's Batson challenge, we AFFIRM the judgment of the trial court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564733/ | 67 F.2d 876 (1933)
COMMISSIONER OF INTERNAL REVENUE
v.
FIELD.
No. 74.
Circuit Court of Appeals, Second Circuit.
December 4, 1933.
Pat Malloy, Asst. Atty. Gen., and Sewall Key and Francis H. Horan, Sp. Assts. to Atty. Gen. (E. Barrett Prettyman, Gen. Counsel, Bureau of Internal Revenue, of Washington, D. C., of counsel), for petitioner.
Beverley R. Robinson and Daniel B. Priest, both of New York City (Edward N. Perkins and Samuel L. Rosenberry, both of New York City, of counsel), for respondent.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
The respondent, in his income tax return for the year 1923, charged off losses sustained by him in the operation of a farm and a racing stable. The Commissioner refused to allow these losses, and, on appeal to the Board of Tax Appeals, the Commissioner's determination was reversed. 26 B. T. A. 116. He filed his petition to review here (sections 1001-1003 of the Revenue Act of 1926, c. 27, 44 Stat. 9, 109, 110, as amended by section 1101 of the Revenue Act of 1932, c. 209, 47 Stat. 169, 286 (26 USCA §§ 1225, 1226, and § 1224 and note).
This petition presents the question whether, in operating his farm and racing stable for 1923, respondent was conducting a business operated for profit so that the expenses and losses incurred therein would be deductible under section 214 (a) of the Revenue Act of 1921. Section 214 (a), 42 Stat. 239 allows as deductions from income:
"(1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * *
"(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise, if incurred in trade or business."
Treasury Regulations 62, promulgated under the Revenue Act of 1921, permits losses of farmers to be deducted even if the taxpayer owns and operates a farm in addition to being engaged in another trade or business, provided the farm is not operated for recreation or pleasure (article 145), and a person cultivating or operating a farm for recreation or pleasure, the result of which is a continuous loss from year to year, is not regarded as a farmer (article 38).
*877 The respondent is engaged in the banking business. In 1923, he devoted considerable time to other enterprises. Among these were the operation of his farm on Long Island and the racing and breeding of horses in England and in this country. At his farm on Long Island he bred and raised Guernsey cattle, offered them for sale, selling some, and also sold the milk. The farm was on very valuable land, owned by his wife, but leased to the farming enterprise at $15,000 per year or $30 per acre. The enterprise was commenced in 1922 in the charge of a man experienced in breeding Guernsey cattle and under an indefinite partnership arrangement by which he was to share in the profits but not the losses, and was to receive a salary of $3,000 annually. He was a graduate of an agricultural college and had previous experience in Guernsey breeding in this country. Respondent testified that it was his intention to enter into the operation of the farm as a business enterprise, intending to develop a fine true-breeding strain and sell the stock. It was his hope to obtain a reputation and to be able to demand high prices for his products. He paid high prices for his bulls and other cattle, equipped the farm with modern buildings and equipment, and raised crops. The milk sold brought higher than market prices. His sales amounted to 200 quarts daily. In addition, he gave his personal time and attention to the project and educated himself in the breeding of cattle by study and reading. The cattle were exhibited at shows and advertised for sale. Books of account were kept and an accurate audit made of the investment and income. It was expected that the losses at the commencement of the enterprise would be greater than later because the heifers were kept rather than sold in order to improve the breeding process and to obtain a permanent herd.
In 1921, the respondent entered his racing and horse breeding operations with an intention, as he testified, of obtaining thoroughbreds with a serious and businesslike desire to make his operations profitable. He obtained what he regarded as the guidance of expert opinions, and acquired thoroughbreds for the purpose of carrying out this business for a profit. The findings below show that the methods and practice pursued indicated his desire to carry on for a profit. He knew and understood the breeding of horses, and, as found below, showed intelligence about its direction. Moreover, he testified that it was his intention to give up the enterprise if it was not successful in making money. He testified that he had just reached the point where he was confident that profits were to be made; that, if he sold his mares he could cover his losses, but that would wreck his enterprise.
The losses in 1923 at his Guernsey cattle farm were $43,282.28. His farm was started about July 1, 1923, with 30 head of pureblood Guernsey cattle. Sales from the farm amounted to $4,518.13 up to December 31, 1923, and there was an inventory on that date of $50,311.48. The losses during this six months' period which constituted the taxable year were $43,282.38. His horse breeding in this country in 1923 was done on a farm in Kentucky. He also bred horses in Ireland since 1921, but trained them for racing in England. His trainers shared in the winnings. English accountants kept his books and made a report of receipts and disbursements in connection with racing and breeding of horses in the British Isles. Records of all receipts and expenditures in connection with breeding and racing in this country were kept under the guidance of certified public accountants. These horses were trained here and raced in this country. During 1923, his operations from racing and breeding horses showed income from purses from the American stable of $2,139.90 and from the English stables £2,250; expenses in America were $12,108.49 and those in England £9,101; the combined losses for the two stables in 1923 were $72,334.45. He continued on in the business after 1923.
There was a deficiency assessed against respondent for 1923 of $364,238.22, which included additions to income of $43,282.28 on account of the operation of the farm and $68,840.07 on account of the operation of the racing stable. The Board of Tax Appeals found that both the farm and racing stable were conducted as businesses for profit and that the losses in connection therewith were deductible in computing his net income.
If the findings of the Board have evidence to sustain them, we may conclude that the enterprises were conducted as businesses for profit and therefore the losses were properly deducted. Comm'r v. Widener, 33 F. (2d) 833 (C. C. A. 3); Wilson v. Eisner, 282 F. 38 (C. C. A. 2). In Flint v. Stone Tracy Co., 220 U. S. 107, 171, 31 S. Ct. 342, 357, 55 L. Ed. 389, Ann. Cas. 1912B, 1312, the court repeated a definition of business as "That which occupies the time, attention, and labor of men for the purpose of a livelihood or profit." It is not essential that the taxpayer be engaged solely in one business. He may have interests in several enterprises among which he divides his time. His intention *878 is important. Thacher v. Lowe (D. C.) 288 F. 994. Unless arbitrarily arrived at, the determination of the Board of Tax Appeals must stand. Avery v. Comm'r, 22 F.(2d) 6, 55 A. L. R. 1277 (C. C. A. 5); Royal Packing Co. v. Comm'r, 22 F.(2d) 536 (C. C. A. 9). The Commissioner's determination, adverse to the taxpayer, required of the latter the initial burden of proving to the satisfaction of the Board of Tax Appeals that his losses came within the act permitting deduction as such. Wilson v. Eisner, 282 F. 38, 42 (C. C. A. 2). Of course, the court may determine whether any finding is supported by evidence. Washburn v. Comm'r, 51 F.(2d) 949 (C. C. A. 8). Also we may determine whether or not, in applying a statute to the facts, the Board of Tax Appeals has misconstrued the statute, but we are not concerned with the mere weight of evidence. W. K. Henderson Iron Works & Supply Co. v. Blair, 58 App. D. C. 114, 25 F.(2d) 538.
In the instant case, there is substantial evidence that the enterprises were conducted as a business for profit and with an expectation of ultimate profits. We cannot say that the expectation of profits is unreasonable or forecast continuous losses in the light of experience in cattle or horse breeding and racing. If the right to deduct losses under the statute required that profit appear to the court to be possible, that requirement would be quite general and would be applicable to any enterprise, whether it was farming, manufacturing, or promotion of any character. We may not, in this way, foredoom any business venture. Cattle breeding and horse racing projects are old. Some have been profitable; others have not. It is a matter of intention and good faith, and all the circumstances in the particular case must be our guide. In this case we think the respondent embarked in these enterprises with the expectation of making profits; at least he did so with an earnest and honest intention.
Judgment affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564688/ | 34 So. 3d 19 (2010)
LUCAS
v.
STATE.
No. 5D09-2616.
District Court of Appeal of Florida, Fifth District.
April 20, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645030/ | 40 So. 3d 85 (2010)
Curtis J. GRAHAM, Petitioner,
v.
STATE of Florida, Respondent.
No. 1D10-2910.
District Court of Appeal of Florida, First District.
July 12, 2010.
Curtis J. Graham, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
PER CURIAM.
The petition alleging ineffective assistance of appellate counsel is denied on the merits.
WOLF, KAHN, and VAN NORTWICK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4515694/ | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: February 19, 2020
* * * * * * * * * * * * *
A.H., * UNPUBLISHED
*
Petitioner, * No. 16-934V
*
v. * Special Master Gowen
*
SECRETARY OF HEALTH * Attorneys’ Fees and Costs;
AND HUMAN SERVICES, * Voluntary Dismissal.
*
Respondent. *
* * * * * * * * * * * * *
Robert J. Krakow, Law Office of Robert J. Krakow, New York, NY, for petitioner.
Colleen C. Harley, U.S. Department of Justice, Washington, D.C., for respondent.
DECISION ON ATTORNEYS’ FEES AND COSTS1
On October 28, 2019, A.H. (“petitioner”), filed a motion for attorneys’ fees and costs.
Petitioner’s Motion for Attorneys’ Fees (“Fees App.”) (ECF No. 106). For the reasons discussed
below, I GRANT petitioner’s motion for attorneys’ fees and costs and award a total of
$102,297.08.
I. Procedural History
On August 3, 2016, A.H. (“petitioner”) filed a petition pursuant to National Vaccine Injury
Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that she suffered autoimmune
dysautonomia, postural orthostatic tachycardia syndrome (“POTS”), and other conditions and
1
Pursuant to the E-Government Act of 2002, see 44 U.S.C. § 3501 note (2012), because this opinion contains a
reasoned explanation for the action in this case, I am required to post it on the website of the United States Court of
Federal Claims. The court’s website is at http://www.uscfc.uscourts.gov/aggregator/sources/7. This means the
opinion will be available to anyone with access to the Internet. Before the decision is posted on the court’s
website, each party has 14 days to file a motion requesting redaction “of any information furnished by that party:
(1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that
includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b). An objecting party must provide the court with a proposed redacted version of the
opinion. Id. If neither party files a motion for redaction within 14 days, the opinion will be posted on the
court’s website without any changes. Id.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et
seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. §300aa
of the Act.
injuries as a result of meningococcal and tetanus-diphtheria-acellular pertussis (“DTaP”)
vaccinations that she received on August 5, 2013. Id. Petitioner further alleged that those
injuries were caused and/or significantly aggravated by human papillomavirus (“HPV”) and
varicella vaccinations that she received on August 5, 2014. Id.
On August 28, 2019, petitioner filed a motion for a decision dismissing the petition. Pet.
Mot. (ECF No. 95). On August 29, 2019, I granted petitioner’s motion and dismissed the claim
for insufficient proof. Decision (ECF No. 96).
On October 28, 2019, petitioner filed an application for attorneys’ fees and costs. Fees
App. Petitioner requests $88,127.75 in attorneys’ fees and $14,169.33 in costs, for a total
request of $102,297.08. Fees App. at 31. Petitioner includes a signed statement averring that
she did not personally incur any costs or pay any retainer to counsel pursuant to General Order
Number 9. Fees App., Attachment 5.
On October 28, 2019, respondent filed a response which provides: “Respondent is
satisfied the statutory requirements for an award of attorneys’ fees and costs are met in this
case.” Respondent’s (“Resp.”) Response (ECF No. 107) at 4. That same day, petitioner filed a
reply in which she respectfully relies on the facts, law, and arguments presented in the
underlying motion. Pet. Reply (ECF No. 108). This matter is now ripe for adjudication.
II. Legal Standard
Under Section 15(e) of the Vaccine Act, a special master “may” award reasonable
attorneys’ fees and costs “if the special master determines that the petition was brought in good
faith and there was a reasonable basis for which the petition was brought” even when a petition
does not result in compensation for petitioner. 42 U.S.C. § 300aa-15(e)(1).
The Vaccine Act permits an award of “reasonable” attorneys’ fees and costs. 42 U.S.C. §
300aa-15(e)(1). The Federal Circuit has approved the use of the lodestar approach to determine
reasonable attorneys’ fees and costs under the Vaccine Act. Avera v. Sec’y of Health & Human
Servs., 515 F.3d 1343, 1349 (Fed. Cir. 2008). Using the lodestar approach, a court first
determines the reasonable hourly rate, which is then applied to the number of hours reasonably
expended on the litigation. Id. at 1347-58 (citing Blum v. Stenson, 465 U.S. 886, 888 (1984)).
Petitioners “bea[r] the burden of establishing the hours expended, the rates charged, and
the expenses incurred” are reasonable. Wasson v. Sec’y of Health & Human Servs., 24 Cl. Ct.
482, 484 (1993). Adequate proof of the claimed fees and costs should be presented when the
motion is filed. Id. at 484 n.1. The special master has the discretion to reduce awards sua
sponte, independent of enumerated objections from the respondent. Sabella v. Sec’y of Health &
Human Servs., 86 Fed. Cl. 201, 208-09 (Fed. Cl. 2009); Savin v. Sec’y of Health & Human
Servs., 85 Fed. Cl. 313 (Fed. Cl. 2008), aff’d No. 99-537V, 2008 WL 2066611 (Fed. Cl. Spec.
Mstr. Apr. 22, 2008). Special masters may look to their experience and judgment to reduce the
number of hours billed to a level they find reasonable for the work performed. Saxton v. Sec’y of
Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the
2
billing records is not required. Wasson, 24 Cl. Ct., aff’d in relevant part, 988 F.2d 131 (Fed Cir.
1993) (per curiam).
III. Analysis
I find no reason to doubt the good faith and reasonable basis for which the claim was
brought. Petitioner asserted that she suffered autoimmune dysautonomia, POTS, and other
injuries as result of the vaccinations received on August 5, 2013, as well as the vaccinations
received on August 5, 2014. Petition at Preamble. The medical records reflected a constellation
of symptoms at various times post-dating the vaccinations. Petitioner retained a medical expert
with specific expertise in autonomic and neurologic disorders, Dr. Svetlana Blitshteyn, who
opined in support of vaccine causation. Ex. 35. Respondent retained an expert with similar
qualifications. Ex. A. I raised questions for both parties to address by way of supplemental
expert reports. Scheduling Order filed September 12, 2018 (ECF No. 65). Petitioner’s expert
submitted a supplemental report. Ex. 53. Respondent continued to litigate the case and retained
a second expert with a different clinical specialty. Exs. C, D. Ultimately, petitioner determined
that she would not be able to prove her entitlement to compensation. She filed a motion for a
decision dismissing the petition.
Upon a careful review of the existing records, it appears unlikely that petitioner would
have been able to establish entitlement to compensation. However, there is objective evidence
that petitioner received the vaccinations and that she developed many of the symptoms at issue.
Her expert’s two reports and cited literature provide additional support for pursuing vaccine
causation. Absent specific objections from the respondent, I find that the claim was supported
by reasonable basis throughout its pendency. Therefore, petitioner should be awarded reasonable
attorneys’ fees and costs.
IV. Reasonable Attorneys’ Fees and Costs
A. Hourly Rate
Petitioner requests that her attorney, Mr. Robert Krakow, be compensated at a rate of
$413.00 per hour for work performed in 2015, $425.00 in 2016, $435.00 in 2017, $450.00 in
2018, and $464.00 in 2019. Fees App., Attachment 2 at 22.
Mr. Krakow has previously been awarded these rates. See, e.g., Lubin v. Sec'y of Health
& Human Servs., No. 17-1147V, 2019 WL 4911070 (Fed. CI. Spec. Mstr. May 17, 2019);
Hodkinson v. Sec'y of Health & Human Servs., No. 14-660V, 2018 WL 6819550 (Fed. Cl. Nov.
27, 2018); Mann v. Sec'y of Health & Human Servs., No. 15-813V, 2017 WL 6206209 (Fed. Cl.
Spec. Mstr. April 18, 2017). Additionally, these rates are within the range deemed to be
reasonable for attorneys with Mr. Krakow’s level of experience within the Vaccine Program. 3
Upon review, I find that these rates are reasonable and should be awarded in the present case as
well.
3
Office of Special Masters – Attorneys’ Forum Hourly Rate Fee Schedules,
https://www.uscfc.uscourts.gov/node/2914.
3
B. Reasonable Number of Hours
The second factor in the lodestar formula is a reasonable number of hours. Reasonable
hours are not excessive, redundant or otherwise unnecessary. See Saxton v. Sec’y of Health &
Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). A line-by-line evaluation of the invoiced
hours is not required; instead I may rely on my experience to evaluate the reasonableness of the
hours expended. Wasson, 24 Cl. Ct. at 484. Petitioner requests a total of $88,127.75 in
attorneys’ fees for 214.5 hours of work performed by Mr. Krakow. I find the billing hours to be
adequately documented and generally reasonable. Accordingly, petitioner is awarded
attorneys’ fees in the amount of $88,127.75.
C. Attorneys’ Costs
Like attorneys’ fees, a request for reimbursement for costs must be reasonable. Perreira
v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. Cl. 1992). Petitioner requests a total
of $14,169.33 in costs. This includes the costs of obtaining petitioner’s medical records,
shipping, postage, photocopying, and the filing fee. These costs are typical for the Vaccine
Program and are adequately documented. See generally Pet. Fees App., Attachment 4.
The most significant cost is for petitioner’s expert, Dr. Svetlana Blitshteyn, who billed
$400.00 per hour for 31.0 hours of work, for a total request of $12,400.00. Pet. Fees App.,
Attachment 4 at 15. This hourly rate for Dr. Blitshteyn has been found to be reasonable in past
cases. See, e.g., Carey v. Sec'y of Health & Human Servs., No. 16-828V, 2018 WL 1559805
(Fed. Cl. Spec. Mstr. Feb. 26, 2018); Turkupolis v. Sec'y of Health & Human Servs., No. 10–
351V, 2015 WL 393343 (Fed. Cl. Spec. Mstr. Jan. 9, 2015). Based on my own review of her
qualifications and the reports submitted in this case, I find no cause to award a lower rate. In
addition, her invoice is sufficiently itemized and detailed. The hours expended are generally
reasonable. Accordingly, petitioner is awarded attorneys’ costs in the amount of $14,169.33.
V. Conclusion
In accordance with the foregoing, petitioner’s application for attorneys’ fees and costs is
GRANTED. Accordingly, the following is awarded:
1) A lump sum in the amount of $102,297.08, representing reimbursement for
petitioner’s attorneys’ fees and costs, in the form of a check payable jointly to
petitioner and her counsel, Robert Krakow.4
4
These amounts are intended to cover all legal expenses incurred in this matter. This award encompasses all
charges by the attorney against a client, “advanced costs,” and fees for legal services rendered. Furthermore,
Section 15(e)(3) prevents an attorney from charging or collecting fees (including costs) that would be in addition to
the amount awarded herein. See generally Beck v. Sec’y of Health & Human Servs. 924 F.2d 1029 (Fed. Cir. 1991).
4
In absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the
Court shall enter judgment in accordance herewith.5
IT IS SO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
5
Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
5 | 01-03-2023 | 03-12-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1564804/ | 34 So.3d 1015 (2010)
SUCCESSION OF Donnie DeWayne CARLTON.
No. CA 09-1339.
Court of Appeal of Louisiana, Third Circuit.
April 7, 2010.
*1016 Thomas Overton Wells, Attorney at Law, Alexandria, LA, for Appellee, Monica Player.
Gwenda Renee' Linzay Lamb, Attorney at Law, Alexandria, LA, for Appellants, Melba Stuckey Phillips, Ellen Fay Wise.
Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
GREMILLION, Judge.
The appellants, Melba Stuckey Philips and Ellen Faye Wise (the Aunts), appeal the trial court's grant of summary judgment in favor of Monica Player, finding her brother, Donnie DeWayne Carlton's, testament a nullity. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Donnie DeWayne Carlton was killed in a car accident in September 2008, leaving behind a one-page notarial testament dated June 14, 2008. In July 2009, Philips and Wise, Carlton's aunts, filed a Petition for Probate of Notarial Testament and Petition for Possession. A judgment of Possession was rendered by the trial court in August 2009. That same month, Player filed a Petition to Annul Probated Testament. Thereafter, in September 2009, Player filed a Motion for Summary Judgment urging the nullity of the testament due to the lack of an attestation clause. Affidavits of the witnesses and notary were attached to the motion and recited that the testament was signed in Carlton's and each other's presence before the notary. Following a hearing, the trial court granted summary judgment in favor of Player and annulled its August 4, 2009 Order probating Carlton's testament and the August 4, 2009 Judgment of Possession. The Aunts now appeal. Although they assign multiple errors, they all derive from the seventh assignment of error, to wit, that the trial court erred in granting summary judgment.
SUMMARY JUDGMENT
On appeal, summary judgments are reviewed de novo. Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. Thus, the appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate. Id. This inquiry seeks to determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La. Code Civ.P. Art. 966(B) and (C). This means that judgment should be rendered in favor of the movant if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show a lack of factual support for an essential element of the opposing party's claim. Id. If the opposing party cannot produce any evidence to suggest that he will be able to meet his evidentiary burden at trial, no genuine issues of material fact exist. Id.
Material facts are those that determine the outcome of the legal dispute. Soileau v. D & J Tire, Inc., 97-318 (La.App. 3 Cir. 10/8/97), 702 So.2d 818, writ denied, 97-2737 (La.1/16/98), 706 So.2d 979. In deciding whether certain facts are material to an action, we look to the applicable substantive law. Id. Finally, summary judgment procedure is favored and designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ.P. art. 966(A)(2). The issue of whether the formalities of a will has been met is a question of law.
DISCUSSION
Louisiana Civil Code Article 1577 states:
*1017 The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, the notary and the witnesses shall sign the following declaration, or one substantially similar: "In our presence the testator had declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this ____ day of ____, ____."
"The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null." La.Civ. Code art. 1573.
Carlton's testament bears his signature, two witnesses signatures, and the notary's signature and includes as its final paragraph:
IN WITNESS WHEREOF, I have signed this, my last will and testament in the presence of the Notary and witnesses named and undersigned.
/s/ Donnie D. Carlton
DONNIE DEWAYNE CARLTON
/s/ Penny Smith
/s/ Cecil Philips
Sworn to and subscribed before me
this 14th day of June 2008.
/s/ Tammy B. George # 78638
Notary Public
Clearly, the legislature intended the signature of the witnesses to be followed by a clause specifically indicating that the testament had been declared by the testator to be his last will and testament in their presence. La.Civ.Code art. 1577. Moreover, the legislature placed such importance on this declaration that failure to do so results in absolute nullity. La.Civ.Code art. 1573. The complete absence of any attestation clause by the witnesses simply cannot be cured. Although this result may seem harsh, failure to adhere to this principle would lead to nullification of the legislature's proclamation. In Succession of Richardson, 05-0552, pp. 3-4 (La.App. 1 Cir. 3/24/06), 934 So.2d 749, 751, writ denied, 06-0896 (La.6/2/06), 929 So.2d 1265 (footnote omitted) (emphasis added), our colleagues on the first circuit stated:
In Succession of Morgan, 257 La. 380, 242 So.2d 551, 552 (1970), the court explained that statutory wills are not founded on the civilian law but rather on common law principles which have as their original source the English Statute of Frauds of 1677. The primary purpose of our statute authorizing this type of will is to afford a simplified means of making a testament whereby the authenticity of the act can be readily ascertained and fraudulent alteration of it will be most difficult. Id. at 553. It further stated, "[i]n construing an attestation clause we will not require strict, technical, and pedantic compliance in form or in language."
However, the law regarding the lack of the witness and notary attestation clause is very clear. We concluded in the Succession of Brown, 458 So.2d 140 (La.App. 1 Cir.1984), a case on all fours with the present case, that all of the formal requisites for confection of a notarial testament must be observed, under penalty of nullity. Although its form is not sacrosanct, there must be an attestation clause, or clause of declaration *1018 signed by the witnesses and the notary. Id. at 142.
Here there is no attestation clause or declaration by the notary and the witnesses, reciting that the notary and witnesses signed their names ... in the presence of the testator and each other. As we concluded in Succession of Brown, 458 So.2d at 143, the attestation clause itself, being non-existent, is not in substantial compliance with the article and this substantial defect is fatal to the validity of the will.
Moreover, the Aunts' argument that their and the notary's affidavits cure the concern for fraud or duress still renders meaningless the requirements set forth by the legislature. This argument has been advanced before and failed as it must do so here. See Richardson, 934 So.2d 749, and Succession of English, 508 So.2d 631 (La.App. 2 Cir.1987).
Finally, the Aunts' reliance on Succession of Guezuraga, 512 So.2d 366 (La. 1987) is misplaced and we have addressed this same argument before in Succession of Slay, 99-1753 (La.App. 3 Cir. 5/17/00), 764 So.2d 102, writ denied, 00-2481 (La.11/13/00), 774 So.2d 144. The significant factor separating Guezuraga from the instant facts is that, in Guezuraga, there was an attestation clause. The minimum formalities required of La.Civ.Code art. 1577 must be met. Carlton's testament does not meet that requirement and the will is invalid because it lacks an attestation clause.
CONCLUSION
There is no question of law that Carlton's testament is absolutely null for want of form. Accordingly, summary judgment was properly granted in favor of the Monica Player. All costs of this appeal are assessed against the plaintiffs-appellants, Melba Stuckey Phillips and Ellen Faye Wise.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564808/ | 67 F.2d 605 (1933)
In re S. W. STRAUS & CO., Inc. (RODELLI et al., Interveners).
Nos. 160, 186, 187.
Circuit Court of Appeals, Second Circuit.
November 6, 1933.
*606 Baker & Obermeier, of New York City (Joseph J. Baker and Oscar S. Rosner, both of New York City, of counsel), for appellant bankrupt.
Nathaniel L. Goldstein, of New York City (Abraham J. Halprin, of New York City, of counsel), for appellant receiver Schultze.
Archibald Palmer and Samuel L. Chess, both of New York City (Sydney Basil Levy, of New York City, of counsel), for appellees intervening creditors.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
S. W. Straus & Co., Inc., is a New York corporation which was formerly engaged in the business of dealing in investment securities. A so-called Martin Act suit was instituted against it in a state court, and on March 3, 1933, a decree was entered therein, with the corporation's consent, appointing permanent receivers, who were later succeeded by Louis F. Schultze as sole receiver. On the same date, March 3, 1933, and after the state court *607 decree had been made, an involuntary petition in bankruptcy was filed against S. W. Straus & Co., Inc., by three of its creditors. Both the alleged bankrupt and receiver, Schultze, appeared in this proceeding and obtained successive extensions of time until August 1st to plead to the petition. In the meantime two ex parte orders of intervention were obtained, one by Rodelli and the other by Weischedel, Glazier, Wiand, and White, upon intervening petitions, each of which alleged that the petitioner was a creditor of the bankrupt. Rodelli also obtained an ex parte order for examination of the bankrupt's officers and other witnesses under section 21a of the act (11 USCA § 44 (a). Thereafter the bankrupt moved to vacate the three orders aforesaid, and has appealed from an order entered August 2d denying this motion.
Determination of the bankrupt's appeal turns upon whether the interveners are shown to have had provable claims in bankruptcy. If they have, they were entitled to intervene by virtue of section 59f of the Bankruptcy Act (11 USCA § 95 (f); if they have not, then they should have been denied intervention. See In re New York Tunnel Co., 166 F. 284 (C. C. A. 2); In re Neve Drug Stores, 48 F.(2d) 693, 696 (C. C. A. 2). It is the contention of the bankrupt that it appears on the very face of the intervening petitions that the petitioners are not creditors.
This contention must be sustained as to Rodelli. He alleges that he purchased from Straus-Manhattan Co., Inc., five of its bonds, "the payment of principal and interest on the said bonds, pursuant to a trust indenture and pursuant to a direct agreement with your petitioner, having been guaranteed by S. W. Straus & Co., Inc., the alleged bankrupt herein." He alleges that interest on said bonds fell due June 1, 1933, and that both Straus-Manhattan Company and the bankrupt defaulted in the payment of it. Had the petition said no more, it could be taken as asserting a claim founded upon a "direct agreement" with Rodelli by which the bankrupt guaranteed payment of the principal and interest of the Straus-Manhattan bonds purchased by him. But the succeeding paragraphs make it clear that the agreement upon which Rodelli is relying is an agreement between the bankrupt and Straus-Manhattan Company. By this agreement, it is alleged, the former agreed to purchase from the latter on or before December 1, 1933, at not less than par value, "the entire amount of the deposited collateral held by the Trustee as security for the issue of the first mortgage convertible collateral trust bonds, of which your petitioner is a holder." It is then alleged that "this agreement is, in effect, a guarantee on the part of S. W. Straus & Co., Inc., that interest will be paid as it becomes due and the principal will be paid on or before December 1, 1933." It is further alleged that there was an anticipatory breach of the bankrupt's "contract of guarantee and repurchase and default in interest payment of June 1st, 1933, and that such breach establishes the liability of the alleged bankrupt." Reading the petition as a whole, it is impossible to accept the contention of Rodelli's counsel that it alleges two agreements one, a direct guaranty of payment of principal and interest; the other, the agreement with Straus-Manhattan Company, which is "in effect a guarantee." We think the claim is founded solely on the latter agreement. If so, no provable claim is alleged on the part of Rodelli. The promisee is Straus-Manhattan Company. Laying aside any question of anticipatory breach, and assuming a breach and that the trustee under the mortgage securing the issue of bonds could sue as a third party beneficiary, this would not avail Rodelli. Without any allegation that the trustee has failed in its duty in this regard, no individual bondholder could have any right to sue. Hence Rodelli's petition showed no facts from which it appears that he is a creditor of the bankrupt, and the order appealed from was erroneous in not vacating the ex parte order of intervention previously granted him.
It is otherwise as to the intervening petitions of Weischedel, Glazier, Wiand, and White. They all contain substantially similar allegations. Each petitioner alleges that he purchased from the bankrupt bonds of another corporation in reliance upon the bankrupt's representations that they were first mortgage bonds and were guaranteed by it, that these representations were false and fraudulent, and that the bonds are of only nominal value and practically unmarketable. By reason thereof it is charged that the purchase price paid to the bankrupt is held for the use and benefit of the petitioner, and payment thereof has been demanded and refused.
The bankrupt contends that each petition alleges a pure tort claim for unliquidated damages caused by fraudulent misrepresentations. Such a claim is, of course, not provable in bankruptcy. Schall v. Camors, 251 U. S. 239, 40 S. Ct. 135, 64 L. Ed. 247. It is true the allegations are sufficient to charge liability in tort for fraud, but they are also sufficient to show liability in contract. One *608 who sells a bond with an absolute representation that it is secured by a first mortgage, may well be found to have given a warranty to this effect. See Burtch v. Child, Hulswit & Co., 207 Mich. 205, 174 N. W. 170; Menard v. Clarence E. Thompson & Sons, 90 Conn. 30, 96 A. 177; 9 C. J. 60. That a claim on a warranty is provable, even though in case of fraud there might be an independent claim purely in tort, is expressly stated in Grant Shoe Co. v. W. M. Laird Co., 212 U. S. 445, 449, 29 S. Ct. 332, 53 L. Ed. 591. We believe that the petitions sufficiently allege a breach of warranty.
But in any event they sufficiently allege a quasi contractual liability for unjust enrichment. Such a claim is provable. See Crawford v. Burke, 195 U. S. 176, 187, 25 S. Ct. 9, 49 L. Ed. 147; Schall v. Camors, 251 U. S. 239, 251, 40 S. Ct. 135, 64 L. Ed. 247; Cawthon v. Banco-Kentucky Co., 52 F.(2d) 851 (D. C. W. D. Ky.). It is urged that the petition cannot be treated as asserting a claim for recovery of the purchase price of the bonds because there is no offer to return them. In a suit in equity the decree may make suitable provision for restitution. In re American Knit Goods Mfg. Co., 173 F. 480 (C. C. A. 2); MacNamee v. Bankers' Union, 25 F. (2d) 614, 618 (C. C. A. 2); Williston, Contracts, § 1460. Proceedings in courts of bankruptcy are in the nature of proceedings in equity, so that the failure to tender restitution before the filing of the petition in bankruptcy is not fatal to the existence of provable claims by the interveners. In re Bancunity Corp., 36 F.(2d) 595, 598 (D. C. S. D. N. Y.). Our own decision of In re Neve Drug Stores, 48 F.(2d) 693, is cited as contrary to this view. It should not be so construed. As the opinion indicates, the acts of the bankrupt were treated as creating only tort claims, but the facts are stated so briefly as not to present clearly the situation which was under consideration. Klein's answer alleged the making of an agreement to sell his store for part cash and part shares of stock in the Neve Drug Stores (the bankrupt), and charged that "thereafter" the bankrupt and others by fraudulent acts caused the stock to depreciate, so as to cheat Klein out of a large part of the consideration which he received for the sale of his store. This is quite different from the case at bar. Here the fraud induced the purchase, and a claim in rescission is suggested by the allegation that the purchase price is held for the use of the petitioner. There was no error below in refusing to vacate the order of intervention granted to Weischedel and the three other interveners.
Since, as we have held, Rodelli was not shown to be a creditor, it was erroneous to grant his petition for an examination of witnesses under section 21a, and the bankrupt's motion to vacate such order should have been granted. It appears from the record that Weischedel also obtained an order for examination of witnesses, but the validity of this order is not before us, because the bankrupt's motion was directed only to Rodelli's order for examination and the order of August 2d from which the bankrupt has appealed is likewise so limited.
For similar reasons we cannot consider the bankrupt's argument as to the insufficiency of the petition in bankruptcy. So far as appears, the bankrupt has never moved to dismiss the petition, nor has it appealed from the denial of the receiver's motion to dismiss. In No. 160 the order appealed from must be modified in accordance with the views above expressed.
We turn now to the appeals of receiver, Schultze. On July 28th he obtained an ex parte order permitting him to intervene and answer the petition for adjudication. On July 31st he filed an answer denying the bankrupt's insolvency and the commission by it of an act of bankruptcy as charged in the petition. The bankrupt itself filed a similar answer. Thereafter counsel for Rodelli moved for vacation of the order allowing the receiver to intervene. The motion was joined in by Mr. Kaye, one of the attorneys for the petitioning creditors. On September 18th an order was entered granting the motion. This is the order on Appeal in No. 187.
Section 18b of the Bankruptcy Act (11 USCA § 41 (b) provides that: "The bankrupt, or any creditor, may appear and plead to the petition within five days after the return day, or within such further time as the court may allow." If this section be deemed exclusive, no one other than a creditor (except the bankrupt himself) may contest the petition for adjudication. This view was intimated in Re Columbia Real Estate Co., 112 F. 643, 647 (C. C. A. 7), but has not generally prevailed. In re Meyer, 98 F. 976, 980 (C. C. A. 2), intervention by assignee for benefit of creditors. As to intervention by equity receivers, In re Hudson River El. Power Co., 173 F. 934, 956 (D. C. N. D. N. Y.), affirmed on other grounds (C. C. A. 2) 183 F. 701, 33 L. R. A. (N. S.) 545; In re Morosco Holding Co., 296 F. 516, 520 (D. C. S. D. N. Y.); Blackstone v. Everybody's Store, 207 F. 752, 756 (C. C. A. 1); Struthers Furnace Co. v. Grant, 30 F.(2d) 576 (C. C. A. 6); Wood v. *609 Natural Soda Products Co., 31 F.(2d) 110 (C. C. A. 9). Cf. In re Bankshares Corp., 50 F.(2d) 94 (C. C. A. 2). Assuming, therefore, that it is within the District Court's power to permit a state court receiver to intervene to contest adjudication, the exercise of such power is clearly discretionary. See Blackstone v. Everybody's Store, supra. Cf. Gratiot County State Bank v. Johnson, 249 U. S. 246, 250, 39 S. Ct. 263, 63 L. Ed. 587. In the case at bar the bankrupt is itself putting up a defense to adjudication; the presence of the receiver appears to be unnecessary and to have resulted largely in a duplication of motions and orders. All the above-cited authorities allowing the receiver to intervene were, with the exception of In re Morosco Holding Co., cases where the bankrupt himself was not contesting adjudication. Under the circumstances of the present case, we see no reason to think that discretion was abused in excluding the receiver from participation.
The remaining appeal, No. 186, is from an order entered September 20, 1933, denying the receiver's motion to dismiss the petition in bankruptcy as insufficient upon its face. As appears from the record in No. 187, on September 18th the court had vacated the order authorizing the receiver to intervene. Technically it may be true, as the appellees urge, that this abated any pending motion of the receiver and requires either affirmance of the order or dismissal of the appeal in No. 186. But, as the sufficiency of the petition to support an adjudication is almost certain to arise again in the course of these proceedings, it seems expedient to express our views on this question, and, as they lead to an affirmance of the order, to affirm on this ground rather than on the more technical one first suggested.
The petition in bankruptcy charged as the only act of bankruptcy the giving of preferences to unknown creditors in unknown amounts, aggregating $2,500. Except in stating a different aggregate sum, it is identically like the petition held insufficient by this court in Re Gaynor Homes, 65 F.(2d) 378. Hence the petition was subject to dismissal had the objection been taken in time. But, as our previous decisions indicate, such a petition gives the court jurisdiction, and the defect is one which may be waived by answer and going to trial. Bradley v. Huntington (C. C. A.) 277 F. 948. Whether it would be waived by answer alone was there left open and is the question presented in the present appeal. Here it appears that both the bankrupt and the receiver answered the petition without reserving any objection to the sufficiency of the petition. The reason for holding a petition which follows the general language of the statute so vague as to be subject to demurrer or motion to dismiss is that it subjects the bankrupt to the danger that the petitioning creditors may prove against him acts of bankruptcy which they did not challenge by their pleading, and there is no way for him to tell what they did mean to challenge. See In re Fuller, 15 F.(2d) 294 (C. C. A. 2). Hence he should take the objection before answering, or should at least reserve it in his answer as was done in Re Gaynor Homes, supra. If the bankrupt answers without such reservation, it may be taken that he is satisfied with the pleading and is able, despite its vagueness, to admit or deny its allegations. In general, demurrers come too late after an answer has been filed, and we see no reason why this general rule should not be applied to pleadings in bankruptcy proceedings. Indeed, there is especial reason why the bankrupt should move seasonably, for the passage of four months may prevent an amendment to correct the defective petition by specifying with precision the act of bankruptcy which the petitioners intended to challenge. In re Fuller, supra; cf. Harney Shoes, Inc., v. Nat. Fabric & Finishing Co., 44 F.(2d) 517 (C. C. A. 1). Holding, as we do, that the defect was waived by answer, we find it unnecessary to consider whether the order might also be sustained under the doctrine applied in Re Standard Aero Corp., 270 F. 779 (C. C. A. 3).
We find no error in Nos. 186 and 187, and the orders involved in those appeals are affirmed. In No. 160 the order is modified as above indicated; and the appellant is awarded one-half its appellate costs to be recovered from Rodelli. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564810/ | 34 So.3d 872 (2009)
Jessica GATLIN, individually and on behalf of the minor child, Joey Collins, Jr.; Jerry Nathaniel Nelson and Catrina Trayshon Sterling-Nelson, Individually and on Behalf of the Minor Children, Taylor Fayer Nelson, Jerry Nathaniel Nelson, and Jacob Neil Nelson
v.
Guy A. KLEINHEITZ, Wheels Inc., Varian Medical Systems, Inc., ABD Insurance & Financial Services, Estate of Sharon M. Bolton, Evelyn J. Johnson, and Allstate Indemnity Company.
No. 2009 CA 0828.
Court of Appeal of Louisiana, First Circuit.
December 23, 2009.
Writ Denied February 26, 2010.
*873 Lara E. White, Jason R. Brown, Laurie Briggs Young, New Orleans, LA, for Defendants/Appellants, Guy A. Kleinheitz, Wheels, Inc., and Varian Medical Systems, Inc.
Daniel R. Atkinson, Jr., Baton Rouge, LA, for Defendants/Appellees, Estate of Sharon M. Bolton and Allstate Insurance Company.
Donna U. Grodner, Charlotte McDaniel McGehee, for Intervenor, Jessica Gatlin, et al.
Stephen M. Irving, Baton Rouge, LA, for Defendant/Appellee, Evelyn J. Johnson.
Before CARTER, C.J., GUIDRY and PETTIGREW, JJ.
CARTER, C.J.
This is an appeal of a partial summary judgment dismissing the plaintiffs' claims against the estate of the driver whose vehicle *874 crossed the interstate median and collided with plaintiffs' vehicle.
FACTS AND PROCEDURAL HISTORY
This suit arises from a motor vehicle accident that occurred on Interstate 12, near Covington, Louisiana. At this stage of the proceedings, it is undisputed that the accident occurred when Sharon Bolton's vehicle, which was traveling westbound, crossed the center median, entered the eastbound lanes, and collided with another vehicle. Bolton died as a result of the injuries she sustained in the accident. The driver of the other vehicle, Jerry Nelson, and his passenger, Jessica Gatlin, were seriously injured and filed the instant suit. The named defendants include Bolton's estate ("the estate") as well as Guy Kleinheitz, who was also traveling westbound at the time of the accident, and who plaintiffs allege caused Bolton to lose control of her vehicle.[1]
The estate filed a motion for summary judgment seeking dismissal of all claims against it, contending that Bolton's vehicle was struck by another westbound vehicle, which caused Bolton to lose control. The estate supported the motion for summary judgment with the deposition of a witness to the accident who testified she saw a vehicle hit Bolton's vehicle before Bolton lost control. The estate claimed Bolton was free of fault in causing the accident, and entitled to summary judgment. The estate specified that it was not moving for summary judgment on the issue of whether Kleinheitz was the driver of the other westbound vehicle involved.
In response to the motion for summary judgment, Nelson (one of the two plaintiffs) filed a "Response to Statement of Material Facts on Summary Judgment." Therein, he stated that all witnesses had testified that another vehicle contacted Bolton's vehicle before she lost control and also stated he was not in possession of any evidence to dispute the statement that Bolton did not do any act that caused her vehicle to go out of control. Gatlin (the second plaintiff) joined in Nelson's position. Kleinheitz did not oppose the motion for summary judgment and did not participate in the hearing on the matter.
After the hearing, the trial court orally ruled that it found the law and evidence in the estate's favor and granted the motion. Before a judgment was presented for signature, Kleinheitz filed a "Response to Statement of Material Facts on Summary Judgment" and attached a copy of his deposition, which had been previously filed into the record in connection with an exception of no cause of action. The trial court signed the judgment, granting the motion for summary judgment and dismissing the claims against the estate, with prejudice. Kleinheitz now appeals.[2]
*875 SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine factual dispute. It should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, the movant's burden does not require him to negate all essential elements of the adverse party's claim. Rather, the movant need only show that there is an absence of factual support for one or more elements essential to the adverse party's claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2); LeBlanc v. Bouchereau Oil Co., Inc., 08-2064 (La.App. 1 Cir. 5/8/09), 15 So.3d 152, 155. If, however, the movant fails in his burden to show an absence of factual support for one or more of the elements of the adverse party's claim, the burden never shifts to the adverse party, and the movant is not entitled to summary judgment. LeBlanc, 15 So.3d at 155. Even in the absence of opposition, the movant must show entitlement to summary judgment. Baker v. Ingram, 447 So.2d 101, 102 (La.App. 4 Cir.1984).
Appellate courts review summary judgment de novo under the same criteria that govern the trial court's consideration of whether summary judgment is appropriate. Granda v. State Farm Mut. Ins. Co., 04-2012 (La.App. 1 Cir. 2/10/06), 935 So.2d 698, 701. Material facts are those that potentially insure or preclude recovery, affect the litigant's success, or determine the outcome of a legal dispute. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Gomon v. Melancon, 06-2444 (La.App. 1 Cir. 3/28/07), 960 So.2d 982, 984, writ denied, 07-1567 (La.9/14/07), 963 So.2d 1005; LeBlanc, 15 So.3d at 155.
DISCUSSION
As stated previously, at this stage of the proceedings, it is undisputed that the accident occurred when Bolton's vehicle left the westbound lanes and entered the eastbound lanes of Interstate 12. Therefore, as these facts establish, Bolton's vehicle was in the wrong lane of travel and collided with a vehicle in its correct lane of travel. A presumption of negligence arises when a driver leaves her own lane of traffic and strikes another vehicle. Shephard v. Scheeler, 96-1690, 96-1720 (La.10/21/97), 701 So.2d 1308, 1318. Once a prima facie case of negligence is established by way of the presumption, it is the driver's burden to show that she was not guilty of any dereliction, however slight, that might have had casual connection with the accident. King v. Louviere, 543 So.2d 1327, 1331 (La.1989); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139, 140-141, 142 (1957). Thus, at trial, the estate would bear the burden of exculpating Bolton from any fault contributing to the accident. See Stapleton v. Great Lakes Chemical Corp., 93-1355, 93-1459 (La.11/29/93), 627 So.2d 1358, 1361; King, 543 So.2d at 1331.
The estate moved for summary judgment seeking dismissal of plaintiffs' claims against it on the basis that Bolton was free of fault. As the mover who would bear the burden of proof at trial, it was the estate's *876 burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See LSA-C.C.P. art. 966 B. The estate supported its motion for summary judgment with the deposition testimony of Harriet Tansiel, who was also traveling westbound and witnessed the accident. Tansiel testified that a sport utility vehicle was following closely behind Bolton's vehicle in the "fast lane." She explained that as the following vehicle attempted to pass Bolton's vehicle, it struck the rear bumper of Bolton's vehicle.[3] Tansiel testified that after Bolton's vehicle was struck, Bolton lost control, and her vehicle began spinning, crossed the interstate median, entered the lanes of eastbound traffic, and collided with the plaintiffs' vehicle. The following vehicle, which Tansiel says first struck Bolton's vehicle, did not stop. The estate contends this exonerates Bolton from any liability.
In response to the estate's motion for summary judgment, plaintiffs essentially agreed with the estate's position, suggested that Kleinheitz was involved, and cited Kleinheitz's deposition testimony. Plaintiffs then referred the court to a memorandum previously filed into the record in connection with an exception, with excerpts of Kleinheitz's deposition testimony attached.
One issue raised on appeal is whether Kleinheitz's deposition testimony can be considered for purposes of the motion for summary judgment. The estate maintains that since the deposition testimony was not attached to a pleading and was not offered and introduced into evidence, it cannot be considered, citing Dyes v. Isuzu Motors Ltd. in Japan, 611 So.2d 126 (La.App. 1 Cir.1992). In Dyes, this court concluded that a document identified as a release, which had been attached to a memorandum, could not be considered in ruling on the motion for summary judgment, stating, "[m]emoranda are not considered pleadings ... consequently, attachments thereto should not be considered by the trial court in resolving motions for summary judgments." Dyes, 611 So.2d at 128. We agree with the legal principle stated, but disagree that it applies to the situation presented here.
Louisiana Code of Civil Procedure article 966 B sets forth the documentation to be considered on a motion for summary judgment, stating, "[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." Article 966 B specifically authorizes consideration of depositions. This includes any depositions "on file," even if simply attached to a memorandum. Aydell v. Sterns, 98-3135 (La.2/26/99), 731 So.2d 189-190 (holding that information contained in affidavits and depositions submitted as attachments to a memorandum were properly before the trial court and appellate court for purposes of a motion for summary judgment). See also Hutchinson v. Knights of Columbus, Council No. 5747, 03-1533 (La.2/20/04), 866 So.2d 228, 232 (holding that "[a]ffidavits in support of or in opposition to motions for summary judgment must be filed into evidence at the hearing on the motion or filed into the record in order for the affidavits to be part of the record on appeal." (Emphasis added.)). Article 966 B does not require that deposition testimony *877 already filed in the record be introduced into evidence at the hearing on the motion for summary judgment.
Kleinheitz's deposition testimony was "on file" within the meaning of Article 966 B.[4] Nelson's response to the motion for summary judgment directed the trial court's attention to the deposition testimony. Thus, Kleinheitz's deposition testimony will be considered during this court's de novo review.[5]See Johnson v. Slidell Memorial Hospital, 552 So.2d 1022, 1023 (La. App. 1 Cir.1989), writ denied, 558 So.2d 571 (La.1990). See also Boland v. West Feliciana Parish Police Jury, 03-1297 (La.App. 1 Cir. 6/25/04), 878 So.2d 808, 814-815, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231 (finding that deposition excerpts could be considered on a motion for summary judgment, whether filed with motion or memorandum).
In his deposition, Kleinheitz admits that he was driving in proximity to Bolton before she lost control, but denies that their vehicles came into contact. Rather, Kleinheitz contends that as he was passing Bolton's vehicle, she attempted to enter his lane of travel, then jerked the wheel to the left to correct herself into her lane of travel, which caused her to lose control. Kleinheitz admits he witnessed the accident, but did not stop and proceeded on to his destination.
As the party moving for summary judgment, the estate's burden was to come forward with evidence sufficient to rebut the presumption that Bolton, the driver of the vehicle that crossed into the wrong lanes of travel, was free of fault. Although one witness attested that Bolton's vehicle was struck by another before losing control, Kleinheitz attested that Bolton lost control when she overcorrected. At this stage, a determination regarding liability would require a credibility determination. Credibility is a question for the trier of fact and cannot be resolved by the court in deciding a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 236. Considering this, summary judgment is not appropriate here.[6]
CONCLUSION
For the foregoing reasons, the judgment appealed, which granted summary judgment *878 and dismissed all claims against the estate, is reversed. This matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed to the estate.
REVERSED.
GUIDRY, J., concurs in the result.
NOTES
[1] The petition alleges that Kleinheitz was in the course and scope of his employment when the accident occurred, and names his employer as a defendant. Whether Kleinheitz was in the course and scope of his employment is not at issue in this appeal. Thus, arguments presented by Kleinheitz and his employer are referred to herein as being advanced by "Kleinheitz."
[2] Although Kleinheitz did not timely oppose the motion for summary judgment, he did not confess judgment or voluntarily and unconditionally acquiesce in the judgment, and is therefore not precluded from appealing. See LSA-C.C.P. art. 2085; Andrus v. Police Jury of Lafayette Parish, 266 So.2d 535, 537-538 (La. App. 3 Cir. 1972). However, this court's appellate review is limited to the evidence that was in the record at the time the trial court rendered its judgment. Dyes v. Isuzu Motors, Ltd. in Japan, 611 So.2d 126, 128 (La.App. 1 Cir. 1992).
[3] We note that it has not been clearly established how the vehicles were positioned prior to their alleged contact. However, that is not pertinent to this appeal, as the estate relies on the fact of contact alone to support its motion for summary judgment.
[4] During oral argument, an issue was raised as to whether the deposition testimony is appropriate for consideration because it is not the complete deposition and consists of excerpts only. Although this issue was not briefed, we note that it is meritless as LSC.C.P. art. 1450 allows the use of any part or all of a deposition for purposes of a motion for summary judgment. Cf. Boland v. West Feliciana Parish Police Jury, 03-1297 (La. App. 1 Cir. 6/25/04), 878 So.2d 808, 815, writ denied, 04-2286 (La.11/24/04), 888 So.2d 231.
Also raised for the first time was the argument that the deposition excerpts were not properly "on file" because they had been filed into the record in connection with a peremptory exception raising the objection of no cause of action, on which no evidence can be introduced. See LSA-C.C.P. art. 931. We note that this issue was not briefed and no supporting legal authority was cited during oral argument. We find no merit to the argument. The court is not reviewing the deposition testimony for the purpose of determining whether the plaintiffs' petition states a cause of action. Rather, the deposition testimony "on file" is being considered in accordance with LSA-C.C.P. art. 966 to determine whether the estate is entitled to summary judgment.
[5] Because we find that the deposition excerpts were properly "on file" and were referenced by Nelson, we pretermit discussion of whether the excerpts could be considered as attachments to Kleinheitz's response to the motion for summary judgment, which was filed after judgment was rendered in open court, but before the judgment was signed.
[6] Our findings herein are limited to the motion for summary judgment and the record before us on appeal. We make no findings regarding the ultimate liability of the parties in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564744/ | 67 F.2d 644 (1933)
THOMPSON
v.
STANDARD OIL CO. OF NEW JERSEY et al.
No. 3496.
Circuit Court of Appeals, Fourth Circuit.
November 18, 1933.
Samuel M. Wolfe, of Gaffney, S. C. (C. T. Graydon and A. F. Spigner, both of Columbia, S. C., on the brief), for appellant.
George L. Buist, of Charleston, S. C. (Benet, Shand & McGowan, of Columbia, S. C., and Buist & Buist, of Charleston, S. C., on the brief), for appellees.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
SOPER, Circuit Judge.
This action was instituted in the court of common pleas for Richmond county, S. C., by Frank R. Thompson, a citizen of South Carolina, against Standard Oil Company of New Jersey, a Delaware corporation, and J. C. King, also a citizen of South Carolina. Recovery of $50,000 in actual and punitive damages was sought for an alleged libel claimed to have been published by defendants, who were sued as joint tort-feasors. The cause was removed to the District Court for the *645 Eastern District of South Carolina, and a petition of the plaintiff to remand was denied on the ground that a federal question was presented. Demurrers were then entered and sustained, and the complaint dismissed as to both defendants, but the sole question raised on this appeal relates to the propriety of the refusal of the trial court to remand the cause to the state court.
The complaint alleges that Thompson, who was plaintiff in the action below, had previously brought a suit in the United States District Court for the Western District of South Carolina, against Standard Oil Company, based upon diverse citizenship, for damages for an alleged breach of contract, and copies of the complaint and of the defendant's answer in that suit are appended to and made a part of the complaint in the pending suit. The libel now complained of is contained in the answer in the former suit. The complaint in that action charged in substance that Thompson, the plaintiff, had been for some years in the employ of the Standard Oil Company, and had been given the position of station agent and general salesman at Anderson, S. C., under a contract with the branch manager of the company at Charleston, S. C., wherein it was agreed that Thompson should hold the position at Anderson until his services warranted promotion, in which event he should be given the position of district manager for the company at Greenville, S. C.; that he served diligently and successfully, and subsequently was definitely promised the position at Greenville by the branch manager, as soon as it became vacant; that the branch manager died and J. C. King, one of the defendants in the pending suit, succeeded him, but failed to abide by the contract when the vacancy occurred, and not only appointed another employee to the place, but removed Thompson from Anderson to a less desirable place, whereupon Thompson, being greatly damaged, severed his connection with the company and brought suit for breach of contract against it.
The answer of the company to this complaint for breach of contract was supported by the affidavit of J. C. King as to the truth of its contents, and denied the execution of the contract as alleged, and charged that the employee, who had been given the place at Greenville, was a man far superior in ability, in integrity, and in character to Thompson, and that Thompson, while in the employ of the company, had entered into a plan with divers persons to form a corporation for the competitive sale of petroleum products and the diversion to it of the salesmen of the company and the trade of its customers; and to that end had secured, in his own name, leases on service stations so framed as to enable him individually to control the sale of petroleum products at such stations and to divert the trade thereof from the products of his employer to the products of a competitor. These allegations of the answer were charged by the complainant in the pending case to be false, and irrelevant to the issue involved, and to have been made by the company and by King jointly with express malice and in utter disregard of the truth; and, as a result, he had been greatly humiliated and damaged in his business reputation and standing.
A short time after the complaint in the present cause was filed, the Standard Oil Company, one of the defendants, filed in the state court a petition for removal on the grounds of diversity of citizenship and separable controversy, and both defendants filed an additional petition for removal on the ground that a federal question was involved. Both petitions were denied by the state court, whereupon the cause was transferred by removal bond and the filing of the record to the District Court of the United States for the Eastern District of South Carolina. A motion to remand was then filed, which was denied by the District Judge upon the ground that the cause was one arising under the Constitution and laws of the United States, in that it involved questions as to the jurisdiction, powers, and functions of a court of the United States, and the rights, duties, and privileges of a litigant therein. The District Judge said:
"The decision in the case will involve the question of the jurisdiction of a court of the United States; the powers and functions of that court; and the rights, duties, and privileges of a litigant therein. If those questions do not arise out of the laws of the United States, then they do not arise out of any laws. All the powers and functions of a federal court arise from federal statutes and the Constitution of the United States, and likewise all the rights, duties, and privileges of a litigant in that court flow from and are protected by the laws of the United States. The mere fact that questions as to those rights and privileges may depend for their solution upon an application of the common law in no way negatives the proposition that the rights and privileges claimed flow from and arise out of the laws and Constitution of the United States." 60 F.(2d) 162, 163.
The situation described very naturally gives rise to the opinion that the power and duty to protect litigants in the exercise of their rights in the courts of the United States should be lodged in those courts, free from *646 the interference or control of the courts of the states; but the jurisdiction of the inferior federal courts rests entirely upon the acts of Congress, and their provisions must be followed even though the dividing line, which separates cases cognizable in the federal courts from those over which no jurisdiction is given, does not follow an entirely logical course. Particularly is this true of the federal removal statutes found in sections 28 to 39 of the Judicial Code, 28 USCA §§ 71 to 82. Section 28 of the Judicial Code, 28 US CA § 71, provides that "any suit of a civil nature, at law or in equity, arising under the Constitution or laws of the United States * * * of which the district courts of the United States are given original jurisdiction by this title * * * brought in any State court, may be removed by the defendant or defendants therein to the district court of the United States for the proper district." Prior to the amendments of the law now incorporated in this section from the Judiciary Act of 1887-88 (Act of March 3, 1887, c. 373, § 2, 24 Stat. 552; Act of August 13, 1888, c. 866, 25 Stat. 434), there was no requirement that the case be within the "original jurisdiction" of the District Court, and a federal question was properly raised, if at the time of the removal, the record, including the defendant's petition for removal, showed that either party claimed a right under the Constitution or laws of the United States. Tennessee v. Davis, 100 U. S. 257, 264, 25 L. Ed. 648; New Orleans, M. & T. Railroad v. Mississippi, 102 U. S. 135, 141, 26 L. Ed. 96; Bock v. Perkins, 139 U. S. 628, 11 S. Ct. 677, 35 L. Ed. 314. Since the Judiciary Act of 1887 and 1888, it has been the uniform holding of the Supreme Court that no case may be removed from a state to a federal court on the ground that it arises under the Constitution or laws of the United States, unless it might have been brought originally in a federal court upon that ground under section 24 (1) of the Judicial Code, 28 USCA § 41 (1). Therefore, a case is not now removable unless the plaintiff's declaration or bill shows by distinct averments that his cause of action, as distinguished from the defense thereto, is based upon a right under the Constitution or laws of the United States, or treaties made under their authority. Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 S. Ct. 654, 38 L. Ed. 511; Third Street, etc., R. Co. v. Lewis, 173 U. S. 457, 19 S. Ct. 451, 43 L. Ed. 766; Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 22 S. Ct. 47, 46 L. Ed. 144; Louisville & N. R. Co. v. Mottley, 211 U. S. 149, 29 S. Ct. 42, 53 L. Ed. 126; In re Winn, 213 U. S. 458, 29 S. Ct. 515, 53 L. Ed. 873; Shulthis v. McDougal, 225 U. S. 561, 569, 32 S. Ct. 704, 56 L. Ed. 1205; American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 36 S. Ct. 585, 60 L. Ed. 987.
The result is that oftimes a plaintiff has the choice of bringing his suit in either a state or a federal court when a federal question forms an ingredient of his case, whereas a defendant may be limited to the state court without the right of removal although his defense involves such a question. This anomaly was well characterized by the late Judge Rose, formerly a member of this court, in his work on "Federal Jurisdiction and Procedure" (4th Ed.) § 380, where he said:
"To say, as does the statute, that a suit which could originally be brought may be removed is easy far easier, perhaps, than it would be in any other way, to describe cases which Congress is willing to have removed from the state to the federal courts. Nevertheless, such simple form of statement has its disadvantages. It makes irremovable cases which it is impossible to distinguish for any practical reason from some of those which are removable. For example, if a plaintiff may bring his case into the Federal Court because it rests upon a claim or right under the Constitution, laws or treaties of the United States, why should not a defendant, who bases his defenses on rights given him by the same enactments, be equally entitled to have that case tried out in the Federal Court? There is no answer except that Congress has not allowed him to do so."
When these principles are applied to the present case, it becomes manifest that the complaint does not disclose a case arising under the Constitution or laws of the United States. The plaintiff's right to an unassailed reputation, the foundation of his cause of action, is a right depending solely upon the law of the state, and is not in any sense conferred by the Federal Constitution or laws. It is true that the cause of action could not have been properly stated without alleging that the defamatory matter was published by the filing of the answer to the complaint with the clerk of the federal court, and hence the complaint discloses that the plaintiff's claim may perhaps be defeated by the application of the rule of law, generally applied, that a statement of fact in a pleading in court, if relevant to the issue, will not support an action of libel even though it is false; but this rule is not based upon any provision found in the Constitution or laws of the United States, but upon the general law of libel which is given effect *647 in this country whether the pleading complained of is filed in a court of the state or a court of the nation. Anonymous v. Trenkmam (C. C. A.) 48 F.(2d) 571; Young v. Young, 57 App. D. C. 157, 18 F.(2d) 807; McGehee v. Insurance Co. of North America (C. C. A.) 112 F. 853; Union Mut. Life Ins. Co. v. Thomas (C. C. A.) 83 F. 803; Hoar v. Wood, 3 Metc. (Mass.) 193, 197.
The right of the plaintiff in the state court to recover in this case in no wise depends upon the existence of the federal court. The false statements in writing reflecting upon his character and efficiency would have been actionable even if the tribunal in which they were filed had been based upon an invalid act of Congress. Nor does the plaintiff's right to recover depend upon the construction of any law of the United States within the meaning of that phrase as used in section 24 of the Judicial Code (28 USCA § 41). No enactment of Congress or rule of court is involved, and no question of federal procedure, in the true sense, is raised. The plaintiff alleges that he was injured by a libelous statement contained in the plea in the earlier case which was not privileged because it was not relevant to the issue. Whether the statement was itself libelous, and whether under the circumstances it was privileged, were both questions of substantive law that depend not at all on any federal enactment. The extent or scope of the privilege may be the subject of some doubt, because certain decisions of the Supreme Court are not in complete harmony with other decided cases. Compare White v. Nicholls, 3 How. 266, 11 L. Ed. 591; Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439, with the cases last cited, and with Cooley on Torts (4th Ed.) § 156; Newell on Slander & Libel (4th Ed.) § 359. The Supreme Court, however, did not enunciate in these decisions a rule of federal law, substantive or procedural, but merely stated and applied the rules of general law as it found them to be. The District Court for the Western District of South Carolina had the undoubted power and duty to pass upon the propriety of the pleading filed in the suit before it, but if it should do so, it would decide a question of state and not federal law, and, in so far as procedure was involved, would follow the state practice under the Conformity Act, 28 USCA § 724. The precise question seems to have been decided in Abbott v. National Bank of Commerce of Tacoma, 175 U. S. 409, 414, 20 S. Ct. 153, 44 L. Ed. 217, where it was held that no question of a federal nature, but only a matter of general law was involved in an action for libel in a state court wherein the plaintiff alleged that the defendant had published defamatory matter as to the solvency of the plaintiff in a pleading in a prior suit instituted by the defendant in a federal court.
The fact that a pleading in a federal court is the subject-matter of the suit is the persuasive circumstance, upon which the opposing argument is based. But it is too remote from the heart of the controversy to give rise to a federal question in the meaning of the statute as it has been construed. If ever the connection of a federal court with a controversy would give rise to a federal question, it would seem to be when a judgment of that court is the subject of a suit; yet it has been held that the fact that a judgment was recovered in a federal court does not, in a suit upon the judgment, raise a question under the laws of the United States. In Provident Savings Society v. Ford, 114 U. S. 635, 641, 5 S. Ct. 1104, 1107, 29 L. Ed. 261, the court said:
"What is a judgment, but a security of record showing a debt due from one person to another? It is as much a mere security as a treasury note, or a bond of the United States. If A. brings an action against B., trover or otherwise, for the withholding of such securities, it is not therefore a case arising under the laws of the United States, although the whole value of the securities depends upon the fact of their being the obligations of the United States. So, if A. have title to land by patent of the United States and brings an action against B. for trespass or waste, committed by cutting timber, or by mining and carrying away precious ores, or the like, it is not therefore a case arising under the laws of the United States. It is simply the case of an ordinary right of property sought to be enforced. A suit on a judgment is nothing more, unless some question is raised in the case (as might be raised in any of the cases specified) distinctly involving the laws of the United States."
Compare Kansas City Southern Ry. v. Guardian Trust Co., 240 U. S. 166, 36 S. Ct. 334, 60 L. Ed. 579.
Even if it should be supposed that the defense in this case involves a federal question because it relates to the right and privilege of a defendant in a federal court freely to plead the facts favorable to his contention, the right of removal would not arise; for in strict obedience to the new policy announced in the Act of 1887-88, the Supreme Court has held in many cases that a suit may not be removed from a state to a federal court under section 28 of the Judicial Code, 28 USCA § 71, because the defendant bases his defense on rights given him by the Constitution or *648 laws of the United States. Similarly, it is well established that a case does not arise under the Constitution or laws of the United States within the meaning of section 24 (1) of the Judicial Code, 28 USCA § 41 (1), which fixes the original jurisdiction of the United States courts, merely because the defense may involve a federal question. These cases are particularly significant here for they demonstrate that the Supreme Court has adhered strictly to the mandate of Congress and has not been moved by the persuasive consideration that federal questions ought to be decided, even in the first instance, by federal rather than state courts, no matter how these questions arise.
Thus it was held in one of the cases discussed in the leading decision in Tennessee v. Union & Planters' Bank, 152 U. S. 454, 14 S. Ct. 654, 38 L. Ed. 511, that a suit in equity, brought by the state of Tennessee in one of its own courts against a state bank to recover taxes alleged to be due under the general tax act of the state, could not be removed to a federal court although the petition for removal showed that the bank was resisting the claim by virtue of an exemption in its state charter on account of which it contended that as to it, the general tax act was a violation of the provision of the Federal Constitution which forbids the state to pass any law impairing the obligations of a contract; and in another of said cases it was held that the federal court did not have original jurisdiction, although the bill filed therein by the state against the bank disclosed in like manner that the bank was relying on the defense that the state law violated the Federal Constitution. In Gableman v. Peoria, etc., R. Co., 179 U. S. 335, 21 S. Ct. 171, 45 L. Ed. 220, it was held that a receiver of a railroad corporation, appointed by a federal court, could not remove to the federal court an action brought against him as such receiver for personal injuries caused by the negligence of his agents in the operation of the train. It was pointed out that the receiver was appointed under the general equity powers of courts of chancery, and not under any provision of the Constitution or laws of the United States; that his liability depended on the general law and his defense did not rest under any act of Congress and that therefore it could not be said that the action arose under the Constitution or laws of the United States. It has since been held that a suit against a receiver appointed by a court created by law of Congress is removable under section 28 of the Judicial Code (28 USCA § 71), but this is because of the amendment of section 33 of the Judicial Code, 28 USCA § 76, which now provides for the removal of any civil or criminal suit commenced in any court of the state against any officer of the courts of the United States for or on account of any act done in the performance of his duties as such officer. Barnette v. Wells Fargo Nevada Nat'l Bank, 270 U. S. 438, 46 S. Ct. 326, 70 L. Ed. 669.
American Well Works Co. v. Layne & Bowler Co., 241 U. S. 257, 36 S. Ct. 585, 60 L. Ed. 987, was a suit for damages for libel and slander of plaintiff's title to the product it manufactured embraced in the statement that it infringed defendant's patent and that defendant would sue both buyer and seller if the product were used. In holding the case improperly removed to the federal court, Mr. Justice Holmes said: (page 260 of 241 U. S., 36 S. Ct. 585, 586, 60 L. Ed. 987)
"What makes the defendants' act a wrong is its manifest tendency to injure the plaintiff's business; and the wrong is the same whatever the means by which it is accomplished. But whether it is a wrong or not depends upon the law of the state where the act is done, not upon the patent law, and therefore the suit arises under the law of the state. A suit arises under the law that creates the cause of action. The fact that the justification may involve the validity and infringement of a patent is no more material to the question under what law the suit is brought than it would be in an action of contract. * * * The state is master of the whole matter, and if it saw fit to do away with actions of this type altogether, no one, we imagine, would suppose that they still could be maintained under the patent laws of the United States."
See, also, Arkansas v. Kansas & Texas Coal Co., 183 U. S. 185, 22 S. Ct. 47, 46 L. Ed. 144; In re Winn, 213 U. S. 458, 29 S. Ct. 515, 53 L. Ed. 873; Venner v. New York Central R. Co. (C. C. A.) 293 F. 373.
We have been referred to the decisions which hold that a federal question is involved in suits against federal corporations which get their existence and derive all their powers, functions, and duties from the federal statutes; Texas & Pacific R. Co. v. Kirk, 115 U. S. 2, 10, 5 S. Ct. 1113, 29 L. Ed. 319; Texas & Pacific R. Co. v. Cox, 145 U. S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Federal Intermediate Credit Bank v. Mitchell, 277 U. S. 213, 48 S. Ct. 449, 72 L. Ed. 854; and in suits to enforce the rights of an obligee under a bond taken by a federal court in conformity with a federal statute; Howard v. United States, 184 U. S. 676, 681, 22 S. Ct. 543, 46 L. Ed. *649 754; Leslie v. Brown (C. C. A.) 90 F. 171; American Surety Co. v. Shultz (C. C. A.) 223 F. 280; and in suits for wrongful acts done in the performance of duty by federal officials holding positions created by acts of Congress; Bock v. Perkins, 139 U. S. 628, 11 S. Ct. 677, 35 L. Ed. 314, a case arising before the Act of 1887-8; First National Bank of Canton, Pa. v. Williams, 252 U. S. 504, 40 S. Ct. 372, 64 L. Ed. 690; Eighmy v. Poucher (C. C.) 83 F. 855; but it is obvious that in all these cases, the relation of the plaintiff's claim to a federal statute is much more intimate and direct than in the case at bar. We are not persuaded, as seems to have been held in Rury v. Gandy (D. C.) 12 F.(2d) 620, that a District Court of the United States has original jurisdiction of a suit merely because the acts of the defendant complained of took place in a proceeding in a court of the United States. If the plaintiff's right of action does not really and substantially involve a controversy respecting the validity or construction of an act of Congress, but depends upon the general or state law, a federal question does not arise.
In short, the federal statutes contemplate that a suit shall be brought in or removed to a district court in the first instance only when "the very foundation and support thereof" is a law of the United States, Tennessee v. Bank of Commerce, 152 U. S. 454, 462, 14 S. Ct. 654, 657, 38 L. Ed. 511, and that where a federal question is involved only by way of defense to a cause of action arising under state law, whether pleaded by the defendant or arising as a matter of law upon the statement of the plaintiff's case, that question must be passed upon in the first instance by the state courts. These decisions, however, in most cases are not final when federal questions are involved, for broad powers of review, either by writ of error, or certiorari, are conferred upon the Supreme Court of the United States by section 237 of the Judicial Code, 28 USCA § 344, when the rights of litigants resting upon federal enactments are denied by state tribunals.
The case was not removable to the federal court by the Standard Oil Company because of the existence of a separable controversy between it and the plaintiff. J. C. King, who like the plaintiff was a citizen of South Carolina, was joined as a defendant with the corporation. The declaration charged, as we have seen, that the company and King, its branch manager, jointly and concurrently composed and filed an answer to the original suit as a public record in the District Court in the Western District of South Carolina, and that King verified the answer by making oath to the truth of the matters therein contained. The appellant contends that since King was not a party defendant to the original suit, it follows that he did not join in filing the answer. The allegations of the complaint are to the contrary. They show that the composition and filing of the answer was done jointly, and it is clear that such a statement is not inconsistent with the fact that King was not a party to the suit, for it was quite possible for him, as the representative of the company on the ground, to prepare and verify the answer and co-operate with the company in the filing of it. The rule is established that when the plaintiff's cause of action is joint and several, or where it arises out of concurrent negligence of the defendants, the plaintiff has the option to sue the defendants individually, or to join them in one action; and if he pursues the latter course, no one of the defendants can treat the suit as it concerns him as several, for the purpose of a removal to the federal court. Slate v. Hutcherson (C. C. A.) 15 F.(2d) 551; Hay v. May Department Stores Co., 271 U. S. 318, 46 S. Ct. 498, 70 L. Ed. 965; Sanders v. Atlantic Coast Line R. Co. (D. C.) 33 F.(2d) 1010.
The judgment of the District Court must therefore be reversed and the case remanded to the District Court with directions to remand it to the state court from which it was removed.
Reversed and remanded.
PARKER, Circuit Judge (dissenting).
I cannot give my assent to the proposition that a federal court is powerless to grant relief to one who has been injured as the result of another's abuse of the privileges of a suitor of that court. The power to administer justice as a court carries with it, as a necessary incident, the power to afford adequate redress for the abuse of the process or procedure of the court; and it is manifest that adequate redress involves the power to award money damages as well as to punish for contempt. Hughes Federal Practice, vol. 1, p. 449, § 580. An action for filing a libelous pleading is one growing out of the abuse of the procedure of the court; and the right to recover in such action involves necessarily the rules of practice of the court, whether embodied in formal written rules or in the court's decisions. I think, therefore, that such action must be held to be one arising under the laws of the United States within the meaning *650 of the jurisdictional statute; that it may be instituted originally in the federal courts; and that, if instituted in a state court, it is removable into the federal courts under the statutes permitting the removal of causes.
In reaching this conclusion two questions must be considered: (1) Whether an action for damages on account of a libelous statement contained in a pleading filed in a federal court is an action arising under the Constitution or laws of the United States, and (2) whether the fact that the libelous statement was contained in the pleading is a part of the cause of action asserted or whether it is merely a matter of defense upon which the defendant may rely. I shall consider these questions separately.
On the first question, it must be remembered that a case is said to arise under the Constitution and laws of the United States, not only where demand is made for something conferred by them, but also wherever it appears that the correct decision of the case depends on the construction of a law of the United States or that some title, right, privilege, or immunity on which the recovery depends will be defeated by one construction of the law or sustained by the opposite construction. Cohens v. Virginia, 6 Wheat. 264, 379, 5 L. Ed. 257; Osborn v. United States Bank, 9 Wheat. 738, 821, 6 L. Ed. 204; Little York Gold Washing & Water Co. v. Keyes, 96 U. S. 199, 201, 24 L. Ed. 656; Starin v. New York, 115 U. S. 248, 257, 6 S. Ct. 28, 29 L. Ed. 388; Patton v. Brady, 184 U. S. 608, 611, 22 S. Ct. 493, 46 L. Ed. 713; Germania Ins. Co. v. Wisconsin, 119 U. S. 473, 476, 7 S. Ct. 260, 30 L. Ed. 461; Ray v. Poulnot (D. C.) 46 F.(2d) 677. And it must be remembered also that, if the right asserted by plaintiff is dependent upon the construction placed upon a law of the United States, it does not defeat the jurisdiction that plaintiff's right may depend also upon application to the case of principles of the common law. Southern Ry. Co. v. Prescott, 240 U. S. 632, 640, 36 S. Ct. 469, 60 L. Ed. 836; Bellaire, Benwood & Wheeling Ferry Co. v. Interstate Bridge Co. (C. C. A. 4th) 40 F.(2d) 323, 326. The rule as to this was thus stated by Chief Justice Marshall in Osborn v. United States Bank, supra:
"We ask, then, if it can be sufficient to exclude this jurisdiction, that the case involves questions depending on general principles? A cause may depend on several questions of fact and law. Some of these may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction, that the title or right set up by the party, may be defeated by one construction of the constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must be decided as incidental to this, which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction, the judicial power of the Union extends, effectively and beneficially, to that most important class of cases, which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the constitution, but to those parts of cases only which present the particular question involving the construction of the constitution or the law. We say, it never can be extended to the whole case, because, if the circumstance that other points are involved in it, shall disable congress from authorizing the courts of the Union to take jurisdiction of the original cause, it equally disables congress from authorizing those courts to take jurisdiction of the whole cause, on an appeal, and thus will be restricted to a single question in that cause; and words obviously intended to secure to those who claim rights under the constitution, laws or treaties of the United States, a trial in the federal courts, will be restricted to the insecure remedy of an appeal, upon an insulated point, after it has received that shape which may be given to it by another tribunal, into which he is forced against his will. We think, then, that when a question to which the judicial power of the Union is extended by the constitution, forms an ingredient of the original cause, it is in the power of congress to give the circuit courts jurisdiction of that cause, although other questions of fact or of law may be involved in it."
The inquiry on the first question, then, narrows itself to this: Does the right to recover damages for the filing of a libelous pleading in the federal court depend upon any law of the United States? Will the right upon which the recovery depends be defeated by one construction of the law of the United States or sustained by another? I think that this question must be answered in the affirmative. There is, of course, no federal statute giving a right of recovery for libel; but the rights and liabilities of litigants with respect to filing pleadings in the federal court are determined by the law of the United States and not of the states, and that law must be looked to for the purpose of determining whether a pleading filed in such court is permitted by *651 the rules of practice there prevailing, and, if not, whether the party who filed it may be called to answer in damages for so doing.
The suggestion of the majority, that the right of plaintiff to recover in no wise depends upon the existence of the federal court but that the false statements would have been actionable if the court had not been validly created, is beside the point. As a matter of fact, the statements relied on are alleged to have been made in a pleading filed in the federal court; and the right to file that pleading depended upon a federal statute, what might properly be inserted in it depended upon the rules of the federal court, and whether the person filing it might be held accountable in damages depended upon the rights of litigants in the federal courts as determined by those courts in the exercise of powers granted them by the Constitution of the United States. A rule of court has the force and effect of law. Weil v. Neary, 278 U. S. 160, 169, 49 S. Ct. 144, 73 L. Ed. 243; Rio Grande Irrigation & Colonization Co. v. Gildersleeve, 174 U. S. 603, 608, 19 S. Ct. 761, 43 L. Ed. 1103. And it is not necessary that the rules of court be written, for established practice has the same force and effect as a rule. Norwegian Nitrogen Products Co. v. U. S., 288 U. S. 294, 325, 53 S. Ct. 350, 77 L. Ed. 796; Duncan v. U. S., 7 Pet. 435, 451, 8 L. Ed. 739.
Whether a person may be held liable in damages for statements contained in pleadings filed in court or whether such statements are absolutely privileged is a matter as to which there has been a conflict in the decisions. The English courts hold to the rule of absolute privilege, and this rule is followed in a number of the state courts in this country. 36 C. J. 1254, and cases there cited. The federal courts hold to the rule of qualified privilege. White v. Nicholls, 3 How. 266, 11 L. Ed. 591; Nalle v. Oyster, 230 U. S. 165, 33 S. Ct. 1043, 57 L. Ed. 1439; Anonymous v. Trenkman (C. C. A. 2d) 48 F.(2d) 571; Young v. Young, 57 App. D. C. 157, 18 F. (2d) 807. These decisions prescribe the rule of practice and lay down the rule of liability for litigants in the federal courts. The rule thus prescribed is just as binding on the courts as though prescribed by Act of Congress; and it is difficult to see why a cause of action depending upon the application of this rule does not arise under a law of the United States within the meaning of the decisions to which I have referred. It is true, of course, that a case does not arise under a law of the United States because a decision of the United States courts is relied upon by one of the parties. But these decisions which fix the liability for acts done in the course of litigation in the federal courts are more than mere decisions on the rule of privilege applied in actions for libel. They fix the limits of proper practice in the federal courts and lay down the principles upon which litigants in those courts will be held to liability for abuse of their privileges as litigants. Litigants in the federal courts have a right to rely on the rules so established irrespective of what rules may prevail in the state courts; and a denial to the federal courts of the power to establish such rules would be a denial to them of the inherent power of all courts to control the proceedings before them. Abbott v. National Bank of Commerce of Tacoma, 175 U. S. 409, 20 S. Ct. 153, 44 L. Ed. 217, is in no sense a decision to the contrary. That was a writ of error to review a decision of the Supreme Court of Washington which affirmed a judgment of the lower court dismissing a suit for libel on the ground that an allegedly libelous statement contained in an answer filed in a suit in a federal court was privileged. Before the Supreme Court of the United States it was argued that there was error in the judgment of the state court: (1) Because it deprived plaintiff of property without due process of law in violation of the Fourteenth Amendment; (2) because it held that the federal court had jurisdiction of the cause in which the allegedly libelous pleading was filed; (3) because it held that the matter contained in the pleading was privileged; and (4) because it held that such matter was pertinent and material to the issue in that suit. The language which the majority thinks decisive of the case here was used in disposing of the point raised under the Fourteenth Amendment. It was not held in that case that the question raised as to the jurisdiction of the federal court was not a federal question, but merely that the decision of the state court thereon was not reviewable under the applicable statute. See 175 U. S. at pages 412 and 413, 20 S. Ct. 153, 44 L. Ed. 217.
While the exact question here presented has not been before the courts in any reported case, a number of cases involve questions of very similar character. Thus in Bock v. Perkins, 139 U. S. 628, 11 S. Ct. 677, 35 L. Ed. 314, a marshal of the United States was sued in trespass for seizing property of plaintiff under a writ of attachment directed to him by a federal court. It was held that he was entitled to remove the case into the federal court as a case arising under the laws of the United States. The court said: "A case, therefore, depending upon the inquiry whether a marshal or his deputy has rightfully executed a lawful precept directed to the former from a court of the United States is one arising under *652 the laws of the United States; for, as this court has said, `cases arising under the laws of the United States are such as grow out of the legislation of congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.'" While this case dealt with the right of removal as it existed prior to the statute of 1887-88, and may not be in point as to whether the plaintiff's case as distinguished from the defendants' defense arose under the laws of the United States, it is direct authority for the position that a question arises under the laws of the United States when those laws must be looked to for determining the rights of the parties. Whether the federal question in the case at bar arises on the plaintiff's case or is a mere matter of defense is dealt with later in this opinion.
In Howard v. United States, 184 U. S. 676, 22 S. Ct. 543, 546, 46 L. Ed. 754, it was held that a suit could be instituted in a federal court on a bond given by the clerk of that court, on the ground that such suit arose under the laws of the United States. The court, speaking through Mr. Justice Harlan, said: "The suit was directly upon a bond taken by the circuit court in conformity with the statutes of the United States, and the case depends upon the scope and effect of that bond and the meaning of those statutes. It was therefore a suit arising under the laws of the United States, of which the circuit court (concurrently with the courts of the state) was entitled to take original cognizance, even if the parties had been citizens of the same state." Certainly the cause of action on a bond arises out of the contract therein contained just as truly as a cause of action for libel arises out of a libelous statement; and it can be just as truly said that the obligation of the bond exists irrespective of where it is filed as that the liability for libel exists irrespective of where the libelous statement is filed. But, as pointed out by the Supreme Court, the bond was taken pursuant to statute and the rights and liabilities thereunder are to be determined by the federal law; and in the case at bar the pleading was filed pursuant to federal statute, the Conformity Act, and the rights and liabilities of the parties with respect thereto are to be determined by the federal law. It would seem that there is as much reason for holding that a cause of action with respect thereto arises under the laws of the United States in the one case as in the other.
On similar principles it has been held that actions may be removed to the federal courts as arising under the Constitution and laws of the United States, where the cause of action alleged was wrongfully causing a United States marshal to levy execution on plaintiff's chattels [Hurst v. Cobb (C. C.) 61 F. 1], where a United States District Attorney was charged with malicious prosecution for causing the indictment and arrest of plaintiff under a criminal charge [Eighmy v. Poucher (C. C.) 83 F. 855], where a warden of a federal prison was sued by a prisoner for damages on account of personal injury resulting from negligence [Steele v. Halligan (D. C.) 229 F. 1011], and where defendants were sued for malicious prosecution on account of alleged false testimony given before a grand jury and on trial in court [Rury v. Gandy (D. C.) 12 F.(2d) 620, 621]. In Young & Jones v. Hiawatha Gin & Mfg. Co. (D. C.) 17 F.(2d) 193, a suit was held removable as arising under the Constitution and laws of the United States, where it was brought to recover the value of cotton which had been burned in a warehouse licensed under the United States Warehouse Act (see 7 USCA § 241 et seq.).
In Rury v. Gandy, supra, Judge Cushman, in holding that the federal courts had jurisdiction of a suit for malicious prosecution arising out of a prosecution in the federal courts, said:
"Fundamentally, there are the same reasons for maintaining the jurisdiction in the present case that exist in an ancillary cause or in a case of contempt of court, which latter is in its nature an ancillary proceeding. That with which the defendants are here charged is, in its nature, a contempt of court; and the court should and does have jurisdiction, not only that it may give a remedy for the wrong, in the accomplishment of which, it is alleged, the court's power has been used power given and defined by national law but the court has jurisdiction because of that public policy under which every government must be vigilant to see that those who, like the defendants, have been witnesses for the government in a criminal cause, are not wrongfully made to suffer because of that fact. Whether as complainants and witnesses before a grand jury of a court of the United States defendants violated the laws of the United States and perjured themselves, and thereby worked their malice upon the plaintiff, presents a federal question."
The reasoning of Judge Cushman in this case seems to me to be unanswerable, and it applies with equal force to the case at bar; for there can be no difference in principle in holding a witness liable for damages for instituting a prosecution and giving testimony *653 in a federal court and in holding a party liable for damages for filing in the federal court a pleading containing libelous and irrelevant statements. In both cases what the defendants are charged with is in its nature a contempt of court, and the court should have jurisdiction, not only that it may give an adequate remedy for the wrong in the perpetration of which the procedure of the court has been used, but also that it may protect litigants who have invoked its jurisdiction and who otherwise may be made to suffer because of that fact.
The proposition that a libelous statement in a pleading in a federal court is to be dealt with just as though it had been made anywhere else, and that no question with respect thereto arises under the federal law because of its incorporation in a pleading filed pursuant to the practice of the federal courts, would necessarily lead to results entirely out of harmony with the whole theory of federal judicial power. Libel is a crime at common law and under the laws of most, if not all, of the states. In South Carolina it is made criminal by section (326)17 of the Criminal Code of 1922. If the proposition above stated be accepted as the law, it follows that the state may prosecute in its courts a litigant in a federal court for statements contained in a pleading filed in accordance with the rules of that court, and thus a pleading which the federal court might hold proper could serve as the basis of punishment in the state courts. Again, the state rule with respect to the privilege attaching to pleadings might vary from the federal rule, as it does in some of the states, and a litigant might find himself powerless to obtain redress for a wrong done him when judged by the federal rule, or might be held to liability for an act which the federal rule might justify as proper. Again, responsibility for libel under state laws is controlled by the Legislature; and the federal court might find itself powerless to afford adequate redress to persons aggrieved by wrongful acts done in the course of proceedings before it, or to afford adequate protection to litigants complying with its rules, because of the libel laws of the state. It will not do to say that the remedy in such cases is found in review of the state courts by the Supreme Court of the United States under writ of certiorari; for, if no federal question is presented by reason of the fact that the alleged libelous pleading was filed in the federal court, then, of course, the Supreme Court has no right of review by certiorari or otherwise.
I come then to the second question, viz., whether the fact that the libelous statement was contained in a pleading filed in the federal court is a part of the cause of action asserted or whether it is a mere matter of defense upon which the defendant may rely. This question is of importance because a case is held to arise under the Constitution and laws of the United States only where plaintiff's statement of his own cause of action shows that it does so arise, and that it is not sufficient that the defendant may find in the Constitution or laws of the United States some ground of defense. In re Winn, 213 U. S. 458, 29 S. Ct. 515, 53 L. Ed. 873; Venner v. New York Central R. Co. (C. C. A. 6th) 293 F. 373. It seems to me to be clear, however, that the federal question here is inherent in plaintiff's cause of action. There can be no libel without a publication; and the only publication alleged is the filing of the pleading containing the alleged libel in a suit in a federal court. Plaintiff, therefore, has no cause of action except such as is dependent upon the procedure, the rules, and the practice of the federal courts. To use the language of Chief Justice Marshall in Osborn v. Bank of United States, the federal question forms an "ingredient" of the cause.
It is true that in the law of libel and slander, privilege is ordinarily a defense to be established by the defendant; but this is not the case where the publication relied upon is in a court proceeding. In such case the burden rests upon the plaintiff to allege and show that the alleged libelous statement was not privileged under the rules and practice of the court. 37 C. J. 33; Miller v. Gust, 71 Wash. 139, 127 P. 845, 846; Hartung v. Shaw, 130 Mich. 177, 89 N. W. 701, 702; Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704; Liles v. Gaster, 42 Ohio St. 631; Cooper v. Phipps, 24 Or. 357, 33 P. 985, 22 L. R. A. 836; Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738. The reason for this distinction is well stated by the Wisconsin court in the case last cited as follows:
"Although where the words used are actionable in themselves, the law ordinarily implies malice from the act of speaking or writing them, and distinct proof of malice is not required; yet when they are written or spoken by parties, counsel, witnesses, jurors or judges in the course of a judicial proceeding, they are prima facie privileged. The circumstances under which they are thus spoken or written exclude the legal notion of malice, and it lies with the party complaining to establish that they were not pertinent or material to the subject in controversy, and that the speaker or writer was animated by ill-will and hatred. This principle is vindicated by the adjudications upon the subject, and is consistent with reason. For it would be extremely *654 inconsistent, and I might say absurd, for the law to presume that judicial proceedings of any kind are resorted to for the mere purpose of enabling parties to indulge their malice and utter slanders, and not in good faith, to attain some legitimate end, or to perform some lawful act or duty, which is useful and beneficial to themselves or others. On the contrary, the presumption is very strong, that persons so situated are using legal proceedings for proper purposes, and that what is said or done proceeds from sufficient cause and right motives; and when that which thus transpires may constitute the basis of an action at all, it is only upon the ground that there is proof of express malice, and that the person complained of has availed himself of his position to gratify his malevolence, by defamatory expressions against parties or others, which have no connection with or bearing upon the subject under investigation."
The Supreme Court of Washington, in Miller v. Gust, supra, in upholding a demurrer to a complaint alleging libel in a pleading filed in court, said:
"The complaint before us does not charge that the allegations complained of, as found either in the offending complaint or in the affidavit, were not relevant and pertinent to the cause or subject there under inquiry. The very nature of that action invites the presumption that they were relevant and pertinent. Their relevancy and pertinency in that case constitute the one dominant, issuable fact in this case, not the truth, falsity, or maliciousness of the words."
And in Hartung v. Shaw, supra, the Supreme Court of Michigan, in sustaining a judgment on the ground that a declaration alleging libel in a pleading did not state a cause of action, said:
"Where a party shows in his declaration a publication presumptively privileged, it is his duty, in order to recover, to prove that the words spoken were not pertinent or relevant, and that they were not spoken bona fide. Mower v. Watson, 11 Vt. 536, 34 Am. Dec. 704; Henry v. Moberly, 6 Ind. App. 490, 33 N. E. 981; McNabb v. Neal, 88 Ill. App. 571; Johnson v. Brown, 13 W. Va. 71. If it be necessary to prove this, it is equally necessary to allege it."
And Corpus Juris, vol. 37, p. 33, thus states the rule:
"Where the action is based on defamatory matter published in due course of a judicial proceeding, if the relevancy of the matter and its pertinency to the subject of inquiry are necessary in order to confer the privilege, its irrelevancy and impertinency must be alleged, and the facts showing the irrelevancy alleged should be set up in the declaration."
To conclude, it seems clear to me that the allegation that the alleged libelous pleading was filed in the federal court was a necessary allegation of plaintiff's cause of action, and not a mere matter of defense; that whether such allegation stated a cause of action depended upon the statutes and rules of practice regulating procedure in the federal courts and the rule of those courts as to liability for libelous statements contained in pleadings; that a federal question was raised for this reason, as well as because the action was an attempt to obtain redress for alleged abuse of the privileges of a litigant in the federal courts; and that as the right of plaintiff to relief depended upon the determination of this federal question, the action was properly removed into the court below. As was well said by the learned judge of that court:
"The decision in the case will involve the question of the jurisdiction of a court of the United States; the powers and functions of that court; and the rights, duties, and privileges of a litigant therein. If those questions do not arise out of the laws of the United States, then they do not arise out of any laws. All the powers and functions of a federal court arise from federal statutes and the Constitution of the United States, and likewise all the rights, duties, and privileges of a litigant in that court flow from and are protected by the laws of the United States. The mere fact that questions as to those rights and privileges may depend for their solution upon an application of the common law in no way negatives the proposition that the rights and privileges claimed flow from and arise out of the laws and Constitution of the United States." 60 F.(2d) 162, 163.
If the case here is not removable to the federal courts, this must be so because it might not have been brought in the federal courts in the first instance; and to deny the federal courts jurisdiction in such a case is to deny them power to afford redress to one who has suffered through abuse of their process or procedure. It cannot be that they are lacking in this fundamental power of all courts. Although the jurisdiction of the federal courts is limited, their power within the limits of that jurisdiction is plenary; and I cannot think that they are without power either to afford relief to those who have suffered through abuse of their process or procedure or to afford protection to suitors who are alleged to have been guilty of such abuse when called in question therefor elsewhere.
The idea that abuses of the process of the *655 federal courts, or wrongful acts done in the course of judicial proceedings before them, can be redressed only by the state courts, would strip the federal courts of a power essential to the maintenance of their power and dignity as courts. To visualize what this would mean, as a practical matter, one has only to remember the varying state enactments on the subject of libel and the varying procedures followed by the different state courts for the redress of grievances. Litigants in the federal courts might well hesitate in the assertion of their rights, if faced with the possibility of being called in question in other courts for acts done there and of having their liability therefor determined under the rules and procedure of such other courts. I do not think that either principle or authority supports the rule which would deny to the federal courts a power so necessary to the proper discharge of their duties and the protection of litigants before them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564745/ | 34 So.3d 503 (2010)
Carol Lynn KOUTROULIS and Marge Ann Revere as Agent and Attorney-In-Fact for Ruth Francys Field, and In Their Respective Individual Capacities, Plaintiffs-Appellants,
v.
CENTENNIAL HEALTHCARE CORPORATION d/b/a/ The Garden Court Nursing Center, Centennial Healthcare Investment Corporation, H. Schober Roberts and The XYZ Insurance Company, Defendants-Appellees.
No. 38,068-CA.
Court of Appeal of Louisiana, Second Circuit.
April 14, 2010.
*504 Georgia P. Kosmitis, Shreveport, for Appellants.
Lunn, Irion, Johnson, Salley, & Carlisle, by James B. Gardner, Shreveport, for Appellees.
Before BROWN, GASKINS, and CARAWAY, JJ.
BROWN, Chief Judge.
Plaintiffs, Carol Lynn Koutroulis and Marge Ann Revere, as agent and attorney-in-fact for Ruth Francys Field, and in their respective individual capacities, appeal the judgment of the trial court in favor of defendants, Centennial Healthcare Corp. d/b/a The Garden Court Nursing Center, Centennial Healthcare Investment Corp., H. Schober Roberts and National Union Fire Ins. Co. of Pittsburgh, Pennsylvania, dismissing their tort suit pursuant to La. C.C.P. art. 561 as abandoned. For the reasons herein, we affirm.
*505 Facts and Procedural Background
On September 10, 1999, plaintiffs, Carol Lynn Koutroulis and Marge Ann Revere, filed a petition for damages alleging negligence in the care and treatment of their mother, Ruth Francys Field, while she was a resident/patient of defendant, Garden Court Nursing Center. An amending petition was filed on December 6, 1999, and defendants filed their answer on January 10, 2000. In response to a formal discovery request, defendants sent their last discovery responses to plaintiffs' counsel on April 4, 2000. Shortly thereafter, counsel for plaintiffs withdrew.
On December 26, 2001, new counsel for plaintiffs enrolled.[1] Immediately thereafter, plaintiffs' attorney forwarded written requests pursuant to La. R.S. 40:1299.96 to Garden Court Nursing Center to obtain certified copies of Ms. Field's medical records. Although all defendants, including Garden Court Nursing Center, were represented by an attorney, the request was not sent to the attorney of record.[2] Plaintiffs' counsel received the medical records from Garden Court Nursing Center in January 2002. Thereafter, in April 2002, pursuant to`La. R.S. 40:1299.96, plaintiffs' attorney sent additional written requests to four nonparty health care providers for medical records pertaining to Ms. Field. None of these requests were served on defendants' attorney. During the interim, plaintiffs' attorney advised defense counsel that she was in the process of obtaining experts to review the records and produce written reports to be used during a settlement conference.
On April 10, 2003, after having not received any written or oral communication from plaintiffs' counsel in over a year, and with the record being devoid of evidence of any formal action within the past three years, counsel for defendants filed a motion to dismiss all claims pursuant to La. C.C.P. art. 561. The trial court signed an order dismissing plaintiffs' claim with prejudice, retroactive to the date of abandonment, April 4, 2003. Plaintiffs filed a motion to set aside the dismissal with prejudice. The trial court held a hearing on the motion, and subsequently issued a written opinion converting the dismissal with prejudice to a dismissal without prejudice. Based upon this ruling, plaintiffs have appealed.
Discussion
The issue presently before us is whether the plaintiffs' request for their mother's medical records from Garden Court Nursing Center in December 2001, pursuant to La. R.S. 40:1299.96, qualifies as a step in the prosecution of this action.
La. C.C.P. art. 561 regulates the abandonment of actions, and it provides in pertinent part:
A. (1) An action . . . is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years. . . .
B. Any formal discovery as authorized by this Code [Code of Civil Procedure] and served on all parties whether or not filed of record, including the taking of a deposition with or without formal notice, shall be deemed to be a step in the prosecution or defense of an action. (Emphasis added).
*506 Article 561 sets forth three requirements: (1) that a party take some "step" in the prosecution or defense of an action; (2) that the step be taken in the trial court and, with the exception of authorized formal discovery served on all parties, appear in the record of the suit; and (3) that the step be taken within three years of the last step taken by either party. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.05/15/01), 785 So.2d 779; Stemley v. Foti, 40,379 (La.App.2d Cir.10/26/05), 914 So.2d 642, writ denied, 06-0224 (La.04/24/06), 926 So.2d 551. For abandonment purposes, a "step" is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Clark, supra; See also La. C.C.P. art. 1446(D); and La. C.C.P. art. 1474.
An action should not be dismissed if a plaintiff has clearly demonstrated before the court that he does not intend to abandon the action. Clark, supra; Moore v. Eden Gardens Nursing Center, 37,362 (La.App.2d Cir.06/25/03), 850 So.2d 998. However, a plaintiff's intention to take a step in the prosecution of his claim without a step actually being taken is not sufficient to preclude a finding of abandonment. Stemley, supra; Sullivan v. Cabral, 32,454 (La.App.2d Cir.10/27/99), 745 So.2d 791, writ denied, 99-3324 (La.01/28/00), 753 So.2d 837.
Plaintiffs contend that under the facts of this case, their seeking to obtain medical records pursuant to La. R.S. 40:1299.96 was proper since their attorney was requesting copies of their mother's medical records.[3] Regardless of whether the request was labeled as a "discovery request," plaintiffs posit that it still shows that there was no intent to abandon the claim, and, therefore, it should be deemed to be a step in prosecution of the case.
To support their contention that the medical records request was a step in furtherance of their prosecuting the case, plaintiffs cite Harrington v. Glenwood Regional Medical Center, 36,556 (La.App.2d Cir.12/11/02), 833 So.2d 1241. Plaintiffs' reliance on Harrington, however, is misguided. In Harrington, supra, one defendant sought a signed medical records release form from plaintiff pursuant to La. C.C.P. art. 1465.1, which plaintiff executed and returned.[4] On appeal defendants attempted to argue that the trial court's finding of abandonment should be upheld since the medical records release request was not formal discovery authorized by the code of civil procedure. Finding, however, that the code of civil procedure expressly provided for that type of discovery, this court disagreed.
*507 In the case sub judice, counsel for plaintiffs sought to obtain plaintiffs' mother's medical records pursuant to La. R.S. 40:1299.96, not under any discovery article of the code of civil procedure. The request was mailed directly to the Garden Court Nursing Center. It was neither filed in the record nor served on defendants' counsel of record. In fact, it is not known if defendants' counsel was even aware of the request prior to plaintiffs' motion to set aside the dismissal of their claim. Clearly this request cannot be considered a formal action before the court or a method of formal discovery authorized by the code of civil procedure.
Accordingly, we find that plaintiffs' request for their mother's medical records pursuant to La. R.S. 40:1299.96 does not amount to a step in the prosecution of the case, and, as such, is insufficient to preclude a finding of abandonment.
Conclusion
For the foregoing reasons, the judgment of the trial court dismissing plaintiffs' action on the grounds of abandonment is affirmed. Costs of this appeal are assessed to plaintiffs.
NOTES
[1] Motions to withdraw, enroll, or to substitute counsel are not considered to be formal "steps" in the prosecution of a suit. See Brown v. City of Shreveport Urban Development, 34,657 (La.App.2d Cir.05/09/01), 786 So.2d 253.
[2] All defendants were represented by the same attorney.
[3] The pertinent portions of La. R.S. 40:1299.96 provide as follows:
A. (1)(b) Except as provided in R.S. 44:17, a patient or his legal representative, or in the case of a deceased patient, the executor of his will, the administrator of his estate, the surviving spouse, the parents, or the children of the deceased patient . . . shall have a right to obtain a copy of such record upon furnishing a signed authorization and upon payment of a reasonable copying charge. . . .
[4] La. C.C.P. art. 1465.1(A). Requests for medical release records, provides:
A. Any party may serve upon the plaintiff or upon any other party whose medical records are relevant to an issue in the case a request that the plaintiff or other authorized person sign a medical records release authorizing the health care provider to release to the requesting party the medical records of the party whose medical condition is at issue. The release shall be directed to a specific health care provider, shall authorize the release of medical records only, and shall state that the release does not authorize verbal communications by the health care provider to the requesting party. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564820/ | 34 So.3d 215 (2010)
Karim BORDES, Appellant,
v.
STATE of Florida, Appellee.
No. 4D09-300.
District Court of Appeal of Florida, Fourth District.
May 12, 2010.
*216 Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
WARNER, J.
Appellant, Karim Bordes, challenges his conviction for burglary of a dwelling, arguing that the trial court erred in failing to give an instruction on the lesser-included crime of trespass. Because all of the elements of trespass were present, and there was evidence to support the charge, the instruction should have been given when requested by the defendant. We reverse.
The police apprehended Bordes in the home of Tori Webber after a neighbor reported a suspicious vehicle in the area. Bordes ran when he first saw police, and dropped gloves as he tried to exit the house. When the officers asked Bordes what he was doing in the house, he told them that a friend who owed him money asked him to come to the house so that he could pay him back. At trial the friend testified that he owed money to Bordes and had called him to tell him to come by and pick it up, but the friend did not tell him to come to the home where the police detained Bordes. The owner of the home, Tori Webber, testified that she did not know Bordes or his friend and did not give either permission to be in her home.
At trial, Bordes requested that the court give the lesser-included instruction of trespass. The court declined, determining that the information did not contain all of the elements of trespass. The jury found Bordes guilty of burglary, and the court convicted and sentenced him to eighteen years in prison as a habitual offender. He appeals.
A trial court must give a jury instruction on a permissive lesser-included offense if: (1) the indictment or information alleges all the statutory elements of the permissive lesser-included offense, and (2) there is some evidence adduced at trial establishing all of those elements. Khianthalat v. State, 974 So.2d 359, 361 (Fla. 2008). Because this issue involves strictly *217 legal determinations, our standard of review is de novo. See Williams v. State, 957 So.2d 595, 598 (Fla.2007).
Bordes was charged with burglary of a dwelling. The information alleged that Bordes did "unlawfully, enter or remain in a structure, to wit: a dwelling ... property of Tori Webber, with intent to commit therein the offense of Theft ... contrary to F.S. 810.02(1) and F.S. 810.02(3)." Trespass is a category II permissive lesser-included of burglary. Where the information alleges all of the statutory elements of the lesser offense, and the evidence at trial establishes each of the elements, it is error not to give the trespass instruction. See Henig v. State, 820 So.2d 1037, 1039 (Fla. 4th DCA 2002); Piccioni v. State, 833 So.2d 247, 248-49 (Fla. 4th DCA 2002). In both Henig and Piccioni we held that an information worded identically to the one in this case (save for the victim's name) included all of the statutory elements of trespass.
The evidence presented at trial covered each element of the crime of trespass. Bordes willfully entered Webber's home without her permission. Thus, both predicate requirements to give the instruction were established, and the jury should have been instructed on trespass.
The state contends that this case is distinguishable from the foregoing cases, because Bordes claimed that his friend gave him "permission" to enter the home, not Webber. This makes no difference to the applicability of the charge. The owner, Webber, did not give permission. The jury must deliberate whether Bordes had the intention to commit a theft within the home, or whether, as he contends, he was simply waiting for his friend in the wrong house, which would be a trespass.
Because this case will have to be retried, we also briefly address Bordes' claim that the court erred in permitting the state to elicit testimony from the victim regarding calls that Bordes' mother made to her, which intimidated her. We agree that it was error to admit the testimony where the state did not use the evidence to explain an inconsistency in the witness's testimony or use it as impeachment. See Koon v. State, 513 So.2d 1253 (Fla.1987); Lopez v. State, 716 So.2d 301 (Fla. 3d DCA 1998).
Reversed and remanded for further proceedings.
DAMOORGIAN and LEVINE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564848/ | 34 So.3d 44 (2010)
Henry VARGAS, Appellant,
v.
STATE of Florida, Appellee.
No. 4D07-121.
District Court of Appeal of Florida, Fourth District.
March 10, 2010.
*45 Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
Bill McCollum, Attorney General, Tallahassee, and, Melanie Surber, Assistant Attorney General, West Palm Beach, for appellee.
GERBER, J.
Henry Vargas (the "defendant") appeals his convictions for dealing in stolen property, operating a chop shop, racketeering, and conspiracy to commit racketeering. The defendant argues that the state failed to prove his knowledge of illegal activity and, thus, the trial court erred in denying his motions for judgment of acquittal. We affirm, finding that the state presented sufficient evidence to prove the defendant's knowledge.
We summarize the state's evidence as follows. In late 2003, undercover agents in the sheriff's auto theft task force met with the ringleaders of a suspected theft organization. The agents agreed to provide the ringleaders with a warehouse to use as a "chop shop" where stolen vehicles could be dismantled and loaded into shipping containers. By April, 2004, the ringleaders set up the warehouse for the chop shop's operation. Meanwhile, the agents recorded the operation on video.
Immediately after the chop shop began operating, one of the agents pushed the ringleaders to get some more workers. The next day, the defendant arrived at the warehouse and was recorded watching others dismantle vehicles. The following day, the defendant and others were recorded dismantling vehicles. Later that day, an agent noticed a marked police car parked outside. The agent told everyone to stop working and turned the lights off. After the police car left, everyone left the warehouse. Ten days later, the chop shop's operation resumed. The defendant was not there that day, but returned on three of the next six days. The defendant and others were recorded dismantling vehicles, bringing in motorcycle parts, and loading shipping containers.
One week later, the agents arrested everyone they believed was involved in the chop shop's operation, including the defendant. The state ultimately charged eleven persons with a combination of twenty-seven counts. The state charged this defendant with four counts of dealing in stolen property (four motorcycles), operating a chop shop, racketeering, and conspiracy to commit racketeering. The state alleged that the offenses of dealing in stolen property and operating a chop shop served as the predicate offenses to charge the defendant with racketeering and conspiracy to commit racketeering.
At the jury trial, after the state closed its case, the defendant made multiple motions for judgments of acquittal. On the *46 counts for dealing in stolen property and operating a chop shop, the defendant argued, in sum, that the state failed to show he knew or should have known that the vehicles and motorcycle parts were stolen. On the racketeering and conspiracy counts, the defendant argued, in sum, that the state failed to show he knew of any criminal plan or organization, or that he joined in concert with others to promote a criminal organization. The trial court denied the motions.
The jury convicted the defendant on all counts except for one of the counts of dealing in stolen property. After the trial court sentenced the defendant, this appeal followed. The defendant challenges the trial court's denial of his motions for judgments of acquittal.
The supreme court articulated our standard of review in Pagan v. State, 830 So.2d 792 (Fla.2002):
In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.
Id. at 803 (internal citations omitted). Applying that standard, we find sufficient evidence exists to sustain the defendant's convictions. We will address the charges for dealing in stolen property and operating a chop shop before turning to the racketeering and conspiracy charges.
Dealing in Stolen Property/Operating a Chop Shop
According to the standard jury instruction for dealing in stolen property, which the trial court used in this case, the state had to prove: (1) the defendant trafficked in or endeavored to traffic in the motorcycle parts; and (2) the defendant knew or should have known that the motorcycle parts were stolen. See Fla. Std. Jury Instr. (Crim.) 14.2 (emphasis added); see also § 812.019(1), Fla. Stat. (2004) ("Any person who traffics in, or endeavors to traffic in, property that he or she knows or should know was stolen shall be guilty of a felony of the second degree....") (emphasis added). According to the statute on operating a chop shop, which the trial court used to craft a jury instruction in this case (because no standard instruction exists), the state had to prove the defendant knowingly owned, operated or conducted a chop shop, or knowingly aided and abetted another in operating, owning, or conducting a chop shop. See § 812.16(2), Fla. Stat. (2004) (emphasis added). A key component of the statutory definition of a "chop shop," which the trial court read to the jury, is the existence of "stolen motor vehicles":
"Chop shop" means any area, building, storage lot, field, or other premises or place where one or more persons are engaged or have engaged in altering, dismantling, reassembling, or in any way concealing or disguising the identity of a stolen motor vehicle or of any major component part of a stolen motor vehicle; where there are two or more stolen motor vehicles present; or where there are major component parts from two or more stolen motor vehicles present.
§ 812.16(1)(a), Fla. Stat. (2004) (emphasis added).
Sufficient evidence exists to show that the defendant knew the vehicles and motorcycle parts were stolen. The vehicles which the defendant dismantled had visible signs that they were stolen. One vehicle's ignition had been tampered with so that it could be started without a key, and its front door handle had been tampered with so that an independent key *47 could be used to open the door. Another vehicle's ignition was popped off the steering column and had cellophane wrap covering the passenger side window. A third vehicle's ignition was dismantled and was being started with a screwdriver. That vehicle's door handle also had been tampered with to allow entry without a key. After dismantling these obviously-tampered vehicles, the defendant loaded the vehicle parts and the motorcycle parts into shipping containers.
The condition of the vehicles should have put the defendant on notice that the vehicles and motorcycle parts were stolen. See Periu v. State, 490 So.2d 1327, 1329 (Fla. 3d DCA 1986) ("[T]he smashed-up condition of the front windshield and the absence of any vehicle identification numbers on the car should have placed a reasonable person on notice of the probable stolen nature of the vehicle...."); B.S. v. State, 320 So.2d 459, 461 (Fla. 3d DCA 1975) ("Knowledge on a defendant's part to sustain a conviction for receiving stolen property may be shown ... if the state proves ... that the circumstances of the transaction were sufficiently suspicious to put a person of ordinary intelligence and caution on inquiry.") (citations omitted). Moreover, the state proved that the motorcycle parts were in fact stolen, and "proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen." § 812.022(2), Fla. Stat. (2004).
Further, the fact that the defendant was present when an agent turned the lights off and told everyone to stop working because there was a marked police car parked outside should have put the defendant on notice that he was working in a chop shop. See United States v. Uder, 98 F.3d 1039, 1042, 1044-45 (8th Cir.1996) (evidence supported knowledge element of conducting operations in chop shop where, among other things, defendant was "waved off" as he approached shop, apparently because police were there, but later returned to continue work).
Racketeering/Conspiracy
According to the standard jury instruction for racketeering, as used in this case, the state had to prove: (1) the defendant was employed by or associated with an enterprise; (2) the defendant conducted or participated in, directly or indirectly, such enterprise by engaging in at least two predicate incidents; and (3) of those incidents in which the defendant was engaged, at least two of them had the same or similar intents, results, accomplices, victims, or methods of commission or were interrelated by distinguishing characteristics and were not isolated incidents. See Fla. Std. Jury Instr. (Crim.) 26.7 (emphasis added); see also § 895.03(3), Fla. Stat. (2004) ("It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity....").
According to the standard jury instruction for conspiracy, as used in this case, the state had to prove: (1) two or more persons, in some way or manner, came to a mutual understanding to try to accomplish a common and unlawful plan, namely to engage in a pattern of racketeering activity as charged in the information; (2) the defendant knowingly and willfully became a member of such conspiracy; and (3) at the time the defendant joined such conspiracy, he did so with the specific intent either to personally engage in at least two incidents of racketeering, as alleged in the information, or he specifically intended to otherwise participate in the affairs of the enterprise with the knowledge and intent that other members of the conspiracy would engage in at least two incidents of racketeering, as alleged in the information, *48 as part of a pattern of racketeering activity. See Fla. Std. Jury Instr. (Crim.) 26.8 (emphasis added); see also § 895.03(4), Fla. Stat. (2004) ("It is unlawful for any person to conspire or endeavor to violate any of the provisions of ... [§ 895.03(3)].").
Sufficient evidence exists to show that the defendant knew he was joining a criminal enterprise, and that he specifically intended to engage in the crimes which the state ultimately charged as the predicate acts for racketeering. Again, the vehicles which the defendant dismantled had visible signs that they were stolen. Periu, 490 So.2d at 1329. The defendant was present when an agent turned the lights off and told everyone to stop working because there was a marked police car parked outside. Uder, 98 F.3d at 1042. After the operation resumed, the defendant returned over multiple days to continue dismantling vehicles and loading parts into shipping containers. The facts that the defendant may not have had full knowledge of all of the operation's details, and was not present from the operation's inception or at all times thereafter, are insufficient to prevent a conviction. See Fla. Std. Jury Instr. (Crim.) 26.8 ("A person may become a member of a conspiracy without full knowledge of all of the details of the unlawful scheme.... So, if a defendant has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy, even though he did not participate before and even though he played only a minor part.") (emphasis added); Salinas v. United States, 522 U.S. 52, 65, 118 S.Ct. 469, 139 L.Ed.2d 352 (1997) ("[I]t suffices that [a conspirator] adopt the goal of furthering or facilitating the criminal endeavor.").
In sum, the state's evidence was sufficient to prove that the defendant was not merely an innocent day laborer who was ignorant of the illegal nature of the operation. Rather, the state's evidence was sufficient to prove that the defendant knew he was joining a criminal enterprise, and that he was committing offenses to further that enterprise. Thus, we affirm the defendant's convictions for dealing in stolen property, operating a chop shop, racketeering, and conspiracy to commit racketeering.[1]
Affirmed.
TAYLOR and LEVINE JJ., concur.
NOTES
[1] Despite our affirmance based on the evidence of this case, we join other courts in cautioning the state to use its prosecutorial discretion wisely in deciding which persons to charge with racketeering and conspiracy. See State v. Otte, 887 So.2d 1186, 1190 n. 4 (Fla.2004) ("[T]he target of RICO Act prosecutions will be [,] appropriately, the professional or career criminal and not nonracketeers who have committed relatively minor crimes.") (citation omitted); Jackson v. State, 858 So.2d 1211, 1213 (Fla. 3d DCA 2003) ("[T]he concept of enterprise is not to be applied to `garden variety criminal undertakings.'") (citation omitted); Mickenberg v. State, 640 So.2d 1210, 1211 (Fla. 2d DCA 1994) ("One danger that lurks in the criminal charge of conspiracy is the tendency to make the crime so elastic, sprawling and pervasive as to defy meaningful definition.") (citation omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2858166/ | tasby
IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-447-CR
CHAKA LOUIS TASBY,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. 0922159, HONORABLE BOB JONES, JUDGE PRESIDING
Chaka Louis Tasby ("Tasby") was convicted for the offense of retaliation. Tex.
Penal Code Ann. § 36.06(a) (West Supp. 1993). (1) After finding that Tasby used a deadly weapon,
the jury assessed an enhanced punishment of 11 years confinement and a $4,000 fine. Tasby
appeals, challenging the legal sufficiency of the evidence supporting his conviction and arguing
that the trial court erred by denying his motion to suppress identification. We will affirm the
conviction.
BACKGROUND
Viewed in the light most favorable to the verdict, the evidence established the
following events. On April 28, 1991, Calvin Britton reported to the police that he had been shot
in the leg by Elvin Tasby, Chaka Tasby's cousin, and that Chaka Tasby was also involved in the
shooting. Both Chaka and Elvin Tasby were arrested for aggravated assault. Chaka Tasby
remained in jail until October 25, 1991. As a result of the shooting, Britton and his family moved
to a new neighborhood and told no one their new address.
On November 27, 1991, Britton and his friend Gilbert Price, along with Britton's
sisters, brother, and other friends, were playing in the yard of his home while his mother was
preparing Thanksgiving dinner. In the late afternoon, a car slowly drove by Britton's home,
turned around, and then drove up to the house again. At that point, Price recognized the
passenger in the car as Chaka Tasby and yelled to Britton, "Chief, get out of Dodge!" Britton
started running toward the gate of the house. As he jumped over the gate, he looked back and
recognized Tasby as the passenger and Stephen Ockletree as the driver. The car stopped near the
gate. Britton fell to the ground, and part of the gate fell on top of him when one of his other
friends also jumped the gate.
Britton lay on his side under the gate, facing the car. His house rested on a hill that
slanted down to the street where the car had stopped about thirty feet away from him. Britton
looked down and saw Tasby in the passenger seat staring at him. He saw Tasby hold an automatic
pistol up in the air and attempt to load the clip. He could hear Ockletree, who was leaning back
in the driver's seat, shout, "Get him. Get him. Shoot him." Price heard Tasby say, "I can't get
the clip in." While Tasby fumbled with the gun, Britton quickly pushed the gate off of himself,
jumped up, ran to the back door of the house and then into the living room.
When Britton's mother found out what was happening, she ran to the front door and called
out for her neighbors to get the license plate number. The neighbors got the license number and
the car drove off. Mrs. Britton called the police, to whom Britton explained what had happened.
Around 10:00 p.m. that evening, Britton saw the same car parked in front of his house with its
lights shining toward the front room. Britton's grandmother called the police. Tasby was arrested
for the offense of retaliation on December 10, 1991.
DISCUSSION
In his first point of error, Tasby challenges the legal sufficiency of the evidence
supporting his conviction. Tasby argues that the State failed to prove beyond a reasonable doubt
that he intended to threaten Britton in retaliation for Britton's earlier report to the police about the
shooting incident on April 28, 1991.
We measure the sufficiency of the evidence against the court's charge. Boozer v.
State, 717 S.W.2d 608, 610 (Tex. Crim. App. 1984). The relevant portion of the charge
instructed the jury to find appellant guilty if they believed from the evidence beyond a reasonable
doubt,
that . . . Chaka Louis Tasby . . . on or about the 27th day of November, 1991 .
. . did then and there intentionally or knowingly threaten to harm Calvin Britton
by an unlawful act, to wit: carrying on or about his person a handgun and
exhibiting it to the said Calvin Britton in retaliation for or on account of the
service of the said Calvin Britton as a witness or a prospective witness or as a
person who has reported the occurrence of a crime and during the commission of
said offense . . . the said Chaka Louis Tasby did use or exhibit a deadly weapon,
to wit: a firearm[.]
(emphasis added). Tasby contends that the State failed to prove a retaliatory intent, that he
intended his acts in retaliation for Britton's earlier report to the police, and that Britton was his
"intended target." He contends that the State's evidence is purely circumstantial and does not
exclude other possible motives or reasons for his actions. He complains that the circumstantial
evidence does not explain why Britton was shot in the leg in April, nor does it show that Chaka
Tasby was ever charged for the aggravated assault stemming from Britton's report to the police.
Tasby ultimately concludes that because the circumstantial evidence does not exclude every
reasonable hypothesis save his guilt, his conviction must be set aside. We disagree.
Circumstantial evidence need not exclude every reasonable hypothesis other than
the defendant's guilt. Geesa v. State, 820 S.W.2d 154, 155 (Tex. Crim. App. 1991). In Geesa,
the Court of Criminal Appeals specifically rejected this analytical construct in reviewing
circumstantial evidence for cases tried thereafter. Id. at 165. For a legal sufficiency challenge,
we review direct and circumstantial evidence under the same standard. We must view all the
evidence in the light most favorable to the prosecution, and decide whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979); see Geesa, 820 S.W.2d at 156-69.
Because of its intangible nature, a person's intent generally must be inferred from
the circumstances under which a prohibited act or omission occurs. See Hernandez v. State, 819
S.W.2d 806, 809-810 (Tex. Crim. App. 1991), cert. denied, 112 S. Ct. 2944 (1992); Dillon v.
State, 574 S.W.2d 92, 94-95 (Tex. Crim. App. 1978). The record reveals circumstances
evidencing Tasby's intent to threaten Britton in retaliation for reporting a crime. Britton reported
to the police that he was the victim of a shooting on April 28, 1991, and that Chaka and Elvin
Tasby were involved in that shooting. The police arrested Elvin and Chaka Tasby for aggravated
assault as a result of this report. Regardless of whether he was ever charged for aggravated
assault, Chaka Tasby remained incarcerated for almost six months after this arrest. Out of fear,
Britton and his family moved to a new neighborhood and gave no one their new address. From
these circumstances, a jury could reasonably infer that Chaka Tasby had a motive to retaliate for
Britton's report to the police.
Moreover, the record provides sufficient evidence that Tasby's actions were
directed toward Britton. The car followed Britton and stopped near the gate where he had fallen.
Britton saw Tasby looking directly at him from the car as Tasby loaded the clip in an automatic
pistol. Britton testified that he could see the gun because Tasby was holding it up in the air.
Britton heard Ockletree yell, "Get Him. Get Him. Shoot him," while Tasby looked at him. We
conclude that a rational trier of fact could find all the essential elements of retaliation. We
overrule Tasby's first point of error.
In his second point of error, Tasby argues that the trial court erred by denying his
motion to suppress identification. In his motion to suppress, Tasby challenged Britton's
identification of him to the police. From a collection of six photographs, Britton identified Tasby
as the person who threatened him. Tasby contends that this photographic identification procedure
was impermissibly suggestive because Sergeant Zahara allegedly told Britton to "pick out Chaka
Tasby." He concludes that this procedure was so suggestive that it tainted Britton's identification
of Tasby at trial.
In reviewing a trial court's ruling on a motion to suppress evidence, we will not
reverse the decision absent a clear showing that the trial court abused its discretion. State v.
Comeaux, 786 S.W.2d 480, 482 (Tex. App.--Austin 1990), aff'd, 818 S.W.2d 46 (Tex. Crim.
App. 1991) (citations omitted). The evidence in the record reveals that the trial court did not
exceed this broad discretion.
As the State notes in its brief, it is unclear from the record whether Zahara actually
told Britton to "pick out Chaka Tasby" or merely asked him to identify the person who threatened
him. However, even if Zahara made this statement, we conclude that Tasby did not meet the
requisite burden of proof. Tasby had to show by clear and convincing evidence that, under the
totality of the circumstances, the in-court identification was so tainted by a suggestive
photographic procedure that there existed a substantial likelihood of irreparable misidentification.
Madden v. State, 799 S.W.2d 683, 695 (Tex. Crim. App. 1990), cert. denied, 111 S. Ct. 1432
(1991); Delk v. State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993).
From the evidence, the trial court could reasonably conclude that the photographic
procedure was neither suggestive nor capable of giving rise to a substantial likelihood of
irreparable misidentification. The record reveals that Zahara left the room when Britton was
looking over the pictures, and that no officer ever pointed out Chaka Tasby's picture to Britton.
In addition, Britton told the police before viewing the photographs that Chaka Tasby was the
person who threatened him. Under these facts, Zahara's alleged statement does not appear unduly
suggestive. See Harris v. State, 827 S.W.2d 949, 959 (Tex. Crim. App. 1992), cert. denied, 113
S. Ct. 381 (1992) (lineup not unnecessarily suggestive simply because complainant was told that
lineup contained suspect); and Zepeda v. State, 797 S.W.2d 258, 260 (Tex. App.--Corpus Christi
1990, pet. ref'd).
Moreover, Britton's in-court identification was independent of the pretrial
photographic procedures and therefore immune from any possible suggestion in Zahara's
statement. Even if a pretrial procedure is impermissibly suggestive, an in-court identification
remains admissible as long as the record clearly shows that the witness' prior observation of the
accused was sufficient to constitute an independent source for the identification at trial. Jackson
v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983) (citations omitted). The record reveals
that Britton knew Tasby by name and appearance about a week before the April shooting and had
reported Tasby's involvement in that shooting. Britton's familiarity with Tasby long before the
photographic identification demonstrates that his in-court identification was based not on the
photograph, but on his previous encounters with Tasby in April and at the crime scene.
Even if Zahara's statement were suggestive, Britton's in-court identification
remains reliable and incapable of giving rise to a substantial likelihood of irreparable
misidentification. Five factors are to be considered when analyzing the reliability of an in-court
identification: (1) the witness' opportunity to view the criminal at the time of the crime, (2) his
degree of attention, (3) the accuracy of his 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 confrontation. Delk, 855 S.W.2d at 706; Webb v. State, 760 S.W.2d 263, 269 (Tex.
Crim. App. 1988), cert. denied, 109 S. Ct. 3202 (1989) (citation omitted). These factors must
outweigh any possible corrupting effect of the identification procedure. Delk, 855 S.W.2d at 706.
The State argues that these factors weigh in favor of the reliability of Britton's in-court identification. We agree. The offense occurred during the daytime, and Britton's testimony
indicated that he had an unobstructed view of Tasby from his point on the hill. He witnessed the
events with attention to detail, describing the type of weapon used and the distance between the
car and where he lay on the ground. He could see Tasby staring directly at him and he watched
Tasby load a semi-automatic pistol. Moreover, Britton had already given positive descriptions
of Tasby when he reported the April shooting, and he did not hesitate in identifying him at trial,
approximately six months after the offense occurred. He reported Tasby to the police the day of
the offense and identified Tasby's photograph within a couple of days afterward. Finally, Britton
stated at the pre-trial hearing that his identification was not based on the photo, but on what he
saw take place at his home. We conclude that under the totality of the circumstances, Tasby did
not show by clear and convincing evidence a substantial likelihood of irreparable misidentification.
We overrule Tasby's second point of error. Accordingly, we affirm the conviction.
Jimmy Carroll, Chief Justice
Before Chief Justice Carroll, Justices Aboussie and B. A. Smith
Affirmed
Filed: October 27, 1993
Do Not Publish
1. Section 36.06(a) of the Texas Penal Code reads:
A person commits an offense if he intentionally or knowingly harms or
threatens to harm another by an unlawful act in retaliation for or on account
of the service of another as a public servant, witness, prospective witness,
informant, or a person who has reported the occurrence of a crime. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1564773/ | 34 So. 3d 847 (2010)
In re Sloan RICHARD.
No. 2010-OB-0869.
Supreme Court of Louisiana.
May 21, 2010.
ON APPLICATION FOR REINSTATEMENT
PER CURIAM.[*]
This proceeding arises out of an application for reinstatement filed by petitioner, *848 Sloan Richard, an attorney who is currently suspended from the practice of law in Louisiana.
UNDERLYING FACTS AND PROCEDURAL HISTORY
In In re: Richard, 08-2603 (La.12/19/08), 996 So. 2d 291 (hereinafter referred to as "Richard I"), we accepted a petition for consent discipline filed by petitioner and the Office of Disciplinary Counsel ("ODC") and suspended petitioner from the practice of law for three years, with all but one year and one day deferred, for violating Rules 8.4(a) (violation of the Rules of Professional Conduct) and 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) of the Rules of Professional Conduct. Petitioner subsequently filed an application for reinstatement with the disciplinary board, alleging he has complied with the reinstatement criteria set forth in Supreme Court Rule XIX, § 24(E). The ODC concurred in petitioner's reinstatement. Accordingly, the matter was referred to the disciplinary board for review.
After considering the evidence presented, the board recommended to this court that petitioner be reinstated to the practice of law. The board further recommended that the time period within which the deferred portion of petitioner's suspension in Richard I may become executory in the event of further misconduct by petitioner be set at two years from the date of petitioner's reinstatement.
After considering the record in its entirety, we will adopt the disciplinary board's recommendation and reinstate petitioner to the practice of law. However, we will also place petitioner on supervised probation for a period of two years, subject to the following conditions:
1. Petitioner shall maintain his trust account in accordance with the Rules of Professional Conduct.
2. Petitioner's trust account shall be subject to quarterly review by a monitor approved by the ODC, at petitioner's expense, during the period of probation.
3. Petitioner shall attend a session of the LSBA's Trust Accounting School.
4. Petitioner shall attend a session of the LSBA's Ethics School.
5. Any violations of these conditions or other misconduct during the probationary period shall be grounds for making the deferred portion of the suspension in Richard I executory, and/or imposition of additional discipline, as appropriate.
DECREE
Upon review of the findings and recommendation of the disciplinary board, and considering the record, it is ordered that Sloan Richard, Louisiana Bar Roll number 28737, be immediately reinstated to the practice of law in Louisiana. It is further ordered that petitioner shall be placed on supervised probation for a period of two years, governed by the conditions set forth in this opinion. The probationary period shall commence from the date petitioner, the ODC, and the probation monitor execute a formal probation plan. Any failure of petitioner to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension imposed in In re: Richard, 08-2603 (La.12/19/08), 996 So. 2d 291, executory, or imposing additional discipline, as appropriate. All costs of these proceedings are assessed against petitioner.
NOTES
[*] Chief Justice Kimball not participating in the opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565290/ | 433 S.W.2d 241 (1968)
Prudence KELSEY et al., Appellants,
v.
Milla HILL et al., Appellees.
No. 7886.
Court of Civil Appeals of Texas, Texarkana.
July 16, 1968.
Rehearing Denied October 15, 1968.
*242 Edward Southerland, Cunningham, Cole & Southerland, Bonham, for appellants.
Gary B. Maddox, Jack G. Neal, Ramey, Ramey & Neal, Sulphur Springs, for appellees.
CHADICK, Chief Justice.
This is an action to construe a will and apportion residuary assets among beneficiaries. The judgment of the trial court is reversed and the case remanded for the joinder of an indispensable party.
The trial court judgment construed the will of Mary E. Foster, deceased, and apportioned and ordered distributed the residue of the Foster estate among beneficiaries designated in the instrument. Leonard Methodist Church (Leonard, Texas) was adjudged to have a 1/17.335 interest in the residue, and the legal representative of the estate was ordered to pay over to the church a sum of money representing that fraction of the residue. The church was not a party to the suit in the district court. That anomaly in the judgment obliges this court to give attention to the problem of joinder of parties, though the parties to the appeal are silent on the subject. If the appeal *243 record shows the church to be an indispensable party to the action, the trial court did not have jurisdiction to render a judgment. Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.1966). The cited authority also holds that trial court proceedings, in the absence of an indispensable party, are fundamentally erroneous and should be noticed by an appellate court as a matter of course. See also 44 Tex.Jur. 2d Parties § 86 (1963).
The composite result of all pleadings, those of the plaintiff Milla Hill, and the parties aligned with her, and those of the defendant, Prudence Kelsey, Administratrix with the will annexed of the estate of Mary E. Foster, deceased, and the parties aligned with her, was to invoke the aid and power of the district court to construe the Mary E. Foster will, determine and declare the fractional interest of each of the parties in the residue of the estate, and to order the administratrix to divide and distribute the estate's residuary assets. Construction of the will and partition of personal property is the subject matter of the suit. The construction urged by the plaintiffs would effect an additional gift to the church; the defendant's construction left the church's bequest unaffected. Apportionment of the residuary assets of the estate depended upon the construction adopted.
In an early paragraph of the Mary E. Foster Will, a $5,000.00 bequest was made to the Leonard Methodist Church, Leonard, Texas, to be used to put the sanctuary in good condition. In a subsequent paragraph under the heading of "Family Bequests" the will lists a gift of $1,000.00 to Mrs. Pauline Riley of Ft. Lupton, Colorado, with the proviso that if Mrs. Pauline Riley should die before the will was probated the $1,000.00 bequest would go to the Leonard Methodist Church. The trial court's finding of fact and conclusions of law contains this paragraph, to-wit:
"The court finds that Pauline Riley died prior to the time the Will of Mary E. Foster was probated and that the Leonard Methodist Church is entitled to receive the proportional interest of the residue of Mary E. Foster's estate that Pauline Riley would have received had she survived the said Mary E. Foster."
The case previously cited, Petroleum Anchor Equipment, Inc., v. Tyra, 406 S.W.2d 891 (Tex.1966) considers the effect on current practice of Texas Rules of Civil Procedure, rule 39 governing joinder of necessary parties. Referring to the rule the opinion says: "It is * * * at once apparent that `persons having a joint interest' within the meaning of paragraph (a), properly interpreted, are indispensable parties, * * *." The section referred to in the rule states that: "Persons having a joint interest shall be made parties and be joined as plaintiffs or defendants." The term "joint interest" means joined together in interest, a united interest or an interest shared in common. A comprehensive definition applicable in all cases detailing the meaning and procedural consequence of the term "joint interest", as the term is used in the rule, would be extremely difficult to fashion. For the purposes at hand a useable test for isolating indispensable parties may be suggested, however. It is this: When a person's interest in the subject matter of a suit is directly involved and must be considered and decided in the process of adjudicating the issues between the parties actually named in the suit, the person has a joint interest in the subject matter of the suit and is an indispensable party to the action.
Does the Leonard Methodist Church have a joint interest, as the term is used in Rule 39, with the other parties to the case on appeal? The answer is affirmative. This is so because the issues raised by the pleadings and the evidence can not be fully and finally adjudicated between the parties to the litigation without determining that Leonard Methodist Church would, or would not, participate in the residuary assets of Mrs. Foster's estate, and without also determining that the church was, or was *244 not, entitled to have apportioned and delivered to it a share of such estate. It seems obvious that a declaratory judgment would be of little or no advantage to the administratrix unless all of the will's beneficiaries entitled to participate in the residuary assets of the estate and the extent of their participation are fixed by a binding decree.
The judgment of the trial court must be reversed, and the case remanded to the trial court with direction that it be dismissed unless the church and all other indispensable parties are brought into the suit within a reasonable time. Consideration has not here been given to the status of Mrs. Pauline Riley or her legal representative, as reversal for the reasons given seemed unavoidable.
DAVIS, J., did not participate in this decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564786/ | 34 So. 3d 5 (2010)
GORDON
v.
STATE.
No. 1D08-6151.
District Court of Appeal of Florida, First District.
May 10, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564785/ | 67 F.2d 642 (1933)
CARTER HOTEL CO.
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 3438.
Circuit Court of Appeals, Fourth Circuit.
November 18, 1933.
*643 Camden R. McAtee, of Washington, D. C. (Mason, Spalding & McAtee, of Washington, D. C., on the brief) for petitioner.
John G. Remey, Sp. Asst. to Atty. Gen. (Sewall Key, Sp. Asst. to Atty. Gen., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Owen W. Swecker, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before PARKER, and SOPER, Circuit Judges, and GLENN, District Judge.
PARKER, Circuit Judge.
This is a petition by the Carter Hotel Company to review a decision of the Board of Tax Appeals. The question involved concerns the right of petitioner to a deduction from its tax return for the year 1926 on account of a loss which it claims to have sustained during that year. This loss is said to have occurred as the result of the issuance of preferred stock in 1924 at less than par with the privilege of redemption within two years, and the failure to exercise this privilege within the redemption period. The Board held that petitioner was not entitled to the deduction.
The facts are as follows: In 1924 petitioner needed a substantial amount of money, but was unable to raise it either by borrowing in ordinary course or by sale of stock. Its directors met the situation by providing for the issuance of preferred stock at 75 per cent. of its par value, with privilege of repurchase or redemption at any time within two years upon repayment of the purchase price with dividends at the rate of 8 per cent. thereon, but subject to the provision that, if not so purchased or redeemed within the two-year period, it should become the absolute property of the holder. Preferred stock of a par value of $40,933.33 was issued pursuant to this plan, and petitioner received for it the sum of $30,700. The two-year redemption period expired in 1926, and the rights of the holders of the stock thereupon became indefeasible. Petitioner claims the right to deduct from income, as a loss of that year, the sum of $10,233.33, being the difference between the amount received for the stock and its par value, on the theory that, by failing to redeem, it in effect gave stock of a value of $40,933.33 in satisfaction of a debt of $30,700. The Board of Tax Appeals disallowed this claim, and the correctness of this ruling is the sole question presented by the petition for review.
The contention of petitioner is that the transaction in which the stock was issued was in effect a borrowing of money at 8 per cent. and a pledging of the stock as collateral security for the money borrowed, subject, however, to an agreement that the stock should be forfeited in payment of the loan unless payment should be made otherwise within the period for which the loan was to run. It is said that the stock was worth par, and that, as a result of its forfeiture under this agreement, petitioner sustained a loss of the difference between its value and the amount of the loan. Reliance is placed upon such cases as Commissioner v. S. A. Woods Mach. Co. (C. C. A. 1st) 57 F.(2d) 635, 636, wherein it is held that gains and losses realized by a corporation in dealings in its own stock should be taken into account in computing income. These cases, however, have no application to such a situation as is here involved; for it is clear that here the petitioner has sustained no loss as a result of the transaction in question. Even if the preferred stock be assumed actually to have been worth par, which does not appear, the corporation certainly sustained no loss in failing to repurchase or redeem it. That failure, resulting as it did in the rights of the preferred stockholders becoming indefeasible, may have had some effect upon the value of the holdings of the common stockholder; but the corporation itself, which is the taxpayer here, sustained no loss of any character.
But there is no reason to regard the transaction as a loan. It was in fact, as well as in theory, a sale of stock at a discount with option reserved to repurchase; and the corporation sustained no loss either as a result of the sale at discount or of the failure to exercise the option. By Treasury Regulations 69, articles 543 and 563, it is provided that the proceeds from the original sale by a corporation of shares of its capital stock shall be *644 taken to constitute capital and not income, and that where the stock is sold at a discount, the amount of the discount is not a deductible loss. As was well said by the Circuit Court of Appeals of the First Circuit in Commissioner v. Woods Mach. Co., supra: "Whether the acquisition or sale by a corporation of shares of its own capital stock gives rise to taxable gain or deductible loss depends upon the real nature of the transaction involved. Walville Lumber Co. v. Com. of Internal Revenue (C. C. A.) 35 F.(2d) 445; Spear & Co. v. Heiner (D. C.) 54 F. (2d) 134. If it was in fact a capital transaction, i. e., if the shares were acquired or parted with in connection with a readjustment of the capital structure of the corporation, the Board rule applies. Doyle v. Mitchell Bros. Co., 247 U.S. 179, 184, 38 S. Ct. 467, 62 L. Ed. 1054; Eisner v. Macomber, 252 U.S. 189, 40 S. Ct. 189, 64 L. Ed. 521, 9 A. L. R. 1570."
The sale of stock here was clearly a capital transaction. The mere fact that the sale at discount was accompanied by an option to repurchase, and that it did not become absolute and irrevocable until two years afterward instead of immediately, cannot affect the application of the rule.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564788/ | 34 So. 3d 932 (2010)
Robin L. Wegener, Wife of and Hildrith WEGENER III
v.
LAFAYETTE INSURANCE COMPANY.
No. 2009-CA-0072.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 2010.
*934 Richard C. Trahant, Richard C. Trahant, Attorney at Law, John H. Denenea, Jr., Shearman-Denenea, L.L.C., New Orleans, Louisiana, Jack E. Morris, Jack E. Morris, Attorney at Law, Metairie, Louisiana, for Plaintiffs/Appellees.
Stephen R. Barry, Kathleen C. Marksbury, Barry & Piccione, APLC, New Orleans, Louisiana, for Defendant/Appellant.
(Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).
JAMES F. McKAY III, Judge.
This Hurricane Katrina litigation involves a dispute between a homeowner and their insurance company over coverage issues. For the following reasons, we affirm the judgment of the court below.
FACTS AND PROCEDURAL HISTORY
Hildreth Wegener III and Robin L. Wegener owned and resided in a waterfront home located in the Venetian Isles subdivision of New Orleans East. On August 29, 2005, Hurricane Katrina caused severe damage to the Wegeners' home. Some of the damage was caused by storm surge and some was caused by wind and wind driven rain. At the time of Hurricane Katrina, the Wegeners' home was insured by Lafayette Insurance Company.
On September 3, 2005, the Wegeners notified Lafayette of their loss. On October 15, 2005, Lafayette assigned the claim to Teresa Nelson, an adjuster with Cunningham Lindsey US, Inc. Ms. Nelson contacted the Wegeners and met them at their property for an inspection on October 19, 2005. On November 14, 2005, Ms. Nelson issued a report which found "significant water damage to the inside of the home" and "extensive damage to the shingles on all slopes" of the roof. However, Ms. Nelson recommended payment of only $24,979.90 for the damage to the Wegeners' dwelling and contents and no payment for damage to other structures or for prohibited use, loss of use, or additional living expenses. Thereupon, Lafayette issued payments to the Wegeners in the sums of $23,888.48 for the covered damage to their dwelling and $1,091.42 for the covered damage to their personal property on November 23, 2005. On January 30, 2006, Lafayette paid the Wegeners an additional $658.66 for an awning and $1,039.20 for a wet mattress set.
The Wegeners were not satisfied with the amounts tendered by Lafayette and *935 they retained a structural engineer, Roy Carruba, to inspect their property and prepare a report on its damage. Mr. Carruba's report, dated March 15, 2006, found that in addition to severe water infiltration, excessive wind pressures had caused the house to move laterally on its foundation, loosened the primary framing member connections, and damaged the wooden structure. Mr. Carruba recommended that the Wegeners demolish the structure entirely down to the foundation. The Wegeners forwarded Mr. Carruba's report to Lafayette on March 22, 2006.
Lafayette then retained Haag Engineering to inspect the issue of wind versus flood damage and prepare a report. Haag issued its report on June 12, 2006. The report stated that "Maximum sustained winds in this neighborhood during Hurricane Katrina were, according to the National Weather Service, on the order of 70 mph, less than hurricane force," attributed almost all damage to the first floor and below to storm surge, and found no apparent storm damage to the frame or foundation of the home. Based on this report, Lafayette refused to make any further payments to the Wegeners.
Based on Mr. Carruba's findings and the recommendations in his report, the Wegeners had their house torn down. About six weeks after Hurricane Katrina, the Wegeners moved into a piece of property they owned in Mandeville and had previously rented out for $1,400 to $1,500 per month.
On May 31, 2007, the Wegeners filed suit against Lafayette for breach of contract, general damages and penalties pursuant to La. R.S. 22:658 and La. R.S. 22:1220. A jury trial was held from June 30, 2008 through July 3, 2008. The jury awarded the Wegeners $20,000.00 for the wind damage to the structure, $4,000.00 for wind damage to the contents of the property and $45,800.00 in additional living expenses. The Wegeners filed a motion for judgment notwithstanding the verdict or new trial (JNOV). A hearing was held on this motion on September 26, 2008, and on October 24, 2008, the trial court granted the JNOV, finding that as to the issues of penalties, pursuant to La. R.S. 22:1220, the facts and inferences pointed so strongly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict that the defendant's failure to pay the plaintiffs for their additional living expenses within sixty (60) days after receipt of satisfactory proof of loss was arbitrary, capricious and without probable cause. Lafayette now appeals from the jury's verdict and the trial court's judgment. The Wegeners have answered the appeal.
DISCUSSION
On appeal, Lafayette raises the following assignments of error: 1) the trial court erred in granting plaintiffs' motion for judgment notwithstanding the verdict and awarding penalties pursuant to La. R.S. 22:1220; 2) the jury erred in awarding damages to the plaintiffs for additional living expenses that were not caused by a covered peril; 3) the jury erred in finding that Lafayette violated the provisions of La. R.S. 22:1220; and 4) the trial court erred by not allowing testimony or evidence of plaintiffs' flood insurance proceeds. On cross-appeal, the Wegeners argue that the trial court erred in failing to grant a new trial on either peremptory or discretionary grounds.
We will first address the defendant's second and third assignments of error. Lafayette contends that the jury erred in awarding damages to the plaintiffs for additional living expenses that were not caused by a covered peril and in finding that Lafayette "misrepresented pertinent facts or insurance policy provisions relating to any coverages at issue *936 and/or arbitrarily, capriciously, or without probable cause failed to pay the amount due on Mr. and Mrs. Wegener's homeowner's claim within sixty days after it received satisfactory proofs of loss."
The jury found that Lafayette owed the Wegeners their policy limits of $45,800.00 for additional living expenses (loss of use), including loss of rental income, incurred as a result of wind damage to their home. At trial, evidence was adduced that indicated that a great deal of the damage to the Wegeners' property was caused by wind damage. Clearly, there was an evidentiary basis for the jury to determine that the Wegeners were entitled to their additional living expenses.
Under La. R.S. 22:1220(B)(1), an insurer breaches its duty of good faith and fair dealing owed to its insured by knowingly "[misrepresenting pertinent facts or insurance policy provisions relating to any coverages at issue." A misrepresentation relating to a coverage issue would involve facts about the policy, "or exclusions from coverage." Talton v. USAA Cas. Ins. Co., XXXX-XXXX, pp. 19-20 (La.App. 4 Cir. 3/19/08), 981 So. 2d 696, 709-710. In the instant case, when the adjuster retained by Lafayette inspected the loss on October 19, 2005, she told the Wegeners: "We both know what happened here, but if water touched it, we're not paying for it." The jury reasonably could have found that this was a misrepresentation regarding the policy.
Under La. R.S. 22:1220(B)(5), an insurer breaches its duty of good faith and fair dealing owed to its insured by knowingly "[f]ailing to pay the amount of any claim due any person insured by the contract within sixty days after receipt of satisfactory proof of loss from the claimant when such failure is arbitrary, capricious, or without probable cause." To recover under the statute, an insured "has the burden of establishing three things: (i) that the insurer received a satisfactory proof of loss, (ii) that the insurer failed to pay the claim within the applicable statutory period, and (iii) that the insurer's failure to pay was arbitrary and capricious." Boudreaux v. State Farm Mut. Auto. Ins. Co., XXXX-XXXX (La.App. 4 Cir. 2/2/05), 896 So. 2d 230, 233 (citing Sterling v. U.S. Agencies Casualty Co., 2001-2360 (La.App. 4 Cir. 5/15/02), 818 So. 2d 1053, 1057. In this case, Lafayette received satisfactory proof of the Wegeners' loss at the latest on October 19, 2005 when Ms. Nelson inspected the insured property and observed "significant water damage to the inside of the home" as a direct result of "extensive damage to the shingles on all slopes" of the roof. The damages to the Wegeners' property included the roof, soffits, facia and siding as well as the electrical system on the third floor and ceilings and contents throughout the structure. An awning over the Wegeners' dock was also blown away. Although Lafayette paid the Wegeners $24,979.90 for the insured dwelling and contents, the jury found that Lafayette violated La. R.S. 22:1220(B)(5). Based on the evidence before this Court, we cannot find that the jury's conclusion was clearly wrong or manifestly erroneous.
We will now address the defendant's first assignment of error. On appeal, an appellate court reviews a JNOV using the same criteria the trial court uses. Thus, the appellate court must determine whether the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict. If the appellate court determines that reasonable persons might reach a different conclusion, then the trial court erred in granting the motion and the jury verdict should be reinstated. Forbes v. Cockerham, XXXX-XXXX, pp. 30-31 (La.1/21/09), 5 *937 So.3d 839, 857-58. In the instant case, the trial court found that on the issue of penalties for bad faith claims adjusting, "the facts and inferences point so strongly and overwhelmingly in favor of plaintiffs on this issue that reasonable jurors could not arrive at a contrary verdict." The jury found Lafayette to be in violation of the provisions of La. R.S. 22:1220 and therefore should have awarded penalties under La. R.S. 22:1220. This Court recently conducted a de novo review of a jury verdict finding that an insurance company "misrepresented policy provisions" and awarded penalties in a Katrina case involving a commercial insurance policy. The Court awarded the plaintiff a penalty of "two times the damages sustained" under La. R.S. 22:1220(C). Neal Auction Co., Inc. v. Lafayette Insurnce Co., XXXX-XXXX (La. App. 4 Cir. 4/29/09), 13 So. 3d 1135, writ denied, XXXX-XXXX, XXXX-XXXX (La.11/6/09), 21 So. 2d 313. That is the same approach employed by the trial court in this case. Accordingly, we find no error in the trial court's granting a JNOV in this case.
In its fourth assignment of error, Lafayette contends that the trial court erred by not allowing testimony or evidence of the plaintiffs' flood insurance proceeds. The Louisiana Fifth Circuit Court of Appeal has observed that wind insurance policies and flood insurance policies "are complimentary and do not cover the same types of losses" and do not create a situation of "double coverage." Urrate v. Argonaut Great Central Ins. Co., XXXX-XXXX (La.App. 5 Cir. 8/31/04), 881 So. 2d 787, 789. Therefore, the Wegener's receipt of payments under a flood insurance policy is not relevant. Any probative value would be greatly outweighed by unfair prejudice and confusion of the issues. See La. C.E. art. 403. Accordingly, we find no merit in Lafayette's fourth assignment of error.
On cross-appeal, the Wegeners argue that the trial court erred in failing to grant a new trial on either peremptory or discretionary grounds. On appeal, a trial court's granting or denial of a motion for new trial is reviewed for abuse of discretion. Davis v. Wal-Mart Stores, Inc., XXXX-XXXX, p. 10 (La.11/28/00), 774 So. 2d 84, 93. It is only when a verdict or judgment appears contrary to the law and evidence that a new trial should be granted. See La. C.C.P. art. 1972. In the instant case, the trial court carefully weighed the evidence before it and applied the law accordingly. We find no abuse of discretion in the trial court's refusal to grant the Wegeners a new trial.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
AFFIRMED.
LOVE, J., concurs and assigns reasons.
BELSOME, J., concurs with reasons.
LOVE, J., Concurs and Assigns Reasons.
I respectfully concur in the results with the majority. However, I write separately to further address the evidence in the record regarding the jury's $45,800 award for additional living expenses. Factual determinations are reviewed by appellate courts using the manifest error/clearly erroneous standard of review. Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989).
Lafayette contends that the flood damage to the Wegeners' home occurred first and rendered it uninhabitable. Lafayette's expert, Stony Kirkpatrick, an engineer from HAAG Engineering, testified that flood waters caused the damage to the first floor of the Wegeners' property prior to the occurrence of any wind damage and *938 that any shifting of the structure was caused by water.
Roy Carruba, the Wegeners' expert in civil and structural engineering and in construction, testified that roof, soffits, facia, and siding of the home were peeled off down to the plywood, studs, and beams in many places, and numerous windows had been broken and blown out. Thus, he concluded that the structure "had substantial wind damage before the flood waters came in." Mr. Carruba stated that wind pressures damaged the Wegeners' property to the extent that he recommended demolishing the structure.
After demolishing their home, the Wegeners moved into a rental property they owned in Mandeville. The Mandeville rental property allegedly rented for $1,400 to $1,500 a month prior to Hurricane Katrina and the rental property located in their demolished home allegedly rented for $600 a month.
Given the juxtaposed evidence in the record, I do not find that the trial court erred by confirming the jury's factual finding that the Wegeners' incurred additional living expenses as a result of perils covered by Lafayette.
BELSOME, J. Concurs with Reasons.
I write separately to address Lafayette's unprofessional conduct prior to and during trial of this matter. First, the record reflects that counsel for Lafayette failed to advise counsel for Appellees until the day before trial that Lafayette intended to use a cartoon animation from the Times-Picayune website entitled "The Inundation of New Orleans" at trial. Appellees objected to the repeated use of this animation, as they were afforded no opportunity to authenticate the animation or challenge its data or methodology. Additionally, Lafayette's structural engineering expert, Carroll Stone Kirkpatrick, testified that in his opinion, the animation comported with the theory that a wall of water destroyed Appellees' home prior to the wind damage. Accordingly, Appellees submit that the animation was not only hearsay, but also a highly prejudicial misrepresentation upon which the jury could have relied as supporting Lafayette's theory that a wall of water destroyed the Wegeners' home before being damaged by hurricane winds.
A review of the trial transcript also evidences that Lafayette did not disclose the identity of a key participant in an inspection of the Wegeners' home until the trial was already in progress. Not until Mr. Kirkpatrick testified was it revealed that Freeman Risener, a licensed electrical engineer, accompanied Mr. Kirkpatrick during his inspection of Appellees' home and participated in taking measurements and photographs of the property. Upon learning of Mr. Risener's existence at that moment, counsel for Appellees objected on the grounds that Mr. Risener had not been identified by Lafayette during the course of discovery[1] and did not appear on any of *939 Lafayette's witness lists; consequently, Appellees were denied the opportunity to depose or cross-examine Mr. Risener regarding his participation in the inspection of the Wegeners' home with Mr. Kirkpatrick.[2]
This writer is troubled by Lafayette's aforementioned lack of professionalism and candor, which was not addressed by the majority. Although I may have decided the matter differently, I cannot say that the trial court's denial of Appellees' motion for new trial was an abuse of discretion. Therefore, I respectfully concur.
NOTES
[1] A review of the trial transcript reveals that counsel for Appellees brought to the trial court's attention that neither Mr. Kirkpatrick's name nor Mr. Risener's name appeared on the inspection reports:
Your Honor, I want to bring several things to the Court's attention and to have this documented on the record because some of it we have gone on the record with, some of it we haven't.
One of the major issues that just came up in this witness's testimony is that there was a technician who accompanied him to the Wegener property on the date of the inspection. That technician not only has not ever been identified. [sic] And I took David Teasedale's, who is the other engineer, deposition. There are two signatures on the report, David Teasedale and Mr. Kirkpatrick. The report consistently says "we". The Court is now aware that in response to discovery as to who inspected the property, Mr. Teasedale, under sworn discovery responses, was identified. Ms. Gober [Lafayette property claims manager] in her deposition also identified David Teasedale as the individual who inspected the property.
It wasn't until Mr. Teasedale's deposition that we found out it wasn't Mr. Teasedale. Mr. Teasedale never stepped foot on the property, but it was Mr. Kirkpatrick.
Now I'm hearing that there was a third person. And so Judge, whoever took measurements and photographsand I can represent to the Court that that person should have been identified and made available for deposition.
[2] At trial, Mr. Kirkpatrick testified that although Mr. Risener was a registered electrical engineer, Mr. Risener did not inspect any electrical system in the Wegeners' home. Appellees submit that the complete omission of Freeman Risener's name by Lafayette is significant because Lafayette did not remit payment for the electrical system damage to the Wegeners' home; when asked whether he knew whether the Wegeners' electrical system was damaged, Mr. Kirkpatrick responded, "Well, I would be assured that it was." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454384/ | 191 F. Supp. 2d 1128 (2000)
UNITED STATES of America ex rel. Dianne B. GILES, Plaintiff,
v.
Lyle SARDIE, an individual, Evan Martinez, an individual; Willie Dixon, an individual; Gregory Dixon, an individual; Wallace Kent, an individual; Sam Okike, an individual; David Lee Weems, an individual; ABC Demolition, a Business Entity of Unknown Legal Status; ACE Industries, a Business Entity of Unknown Legal Status; Cal West Demo, a Business Entity of Unknown Legal Status; Avex, a Business Entity of Unknown Legal Status; Evan Construction, a Business Entity of Unknown Legal Status; West Construction, a Business Entity of Unknown Legal Status; Turner Industries, a Business Entity of Unknown Legal Status; Gideon Enterprises, a Business Entity of Unknown Legal Status; ECA Unity Co, a Business Entity of Unknown Legal Status; Pacific Industries, a Business Entity of Unknown Legal Status; Doheny Construction, a Business Entity of Unknown Legal Status; Forbes Construction, a Business Entity of Unknown Legal Status; Kent & Sons, a Business Entity of Unknown Legal Status; Fynok American, a Business Entity of Unknown Legal Status; All in One Demolition, a Business Entity of Unknown Legal Status; International Industries, a Business Entity of Unknown Legal Status; Trump Construction Co., a Business Entity of Unknown Legal Status; Willie Dixon Truck, a Business Entity of Unknown Legal Status; William Keith Dixon; James E Pratt; DR Schmidt; John Doran; Michael Mitchell; Wilkes Bradley; Israel Cortezx; Paul Medina; Jay Shackelford; Pablo Reyes; Daniel Dulac; Santiago Perez; City of Los Angeles, a municipal corporation, and the following business entities of unknown legal status: AMI Industries; Action Industries; McMasters Construction; MRS Demo; DMD Construction; MSRV; LKE's Demolition; P & K Enterprises; Forbes Construction; State Construction; Excel Construction; D & R Construction; DELS Construction; Sophie Construction; Dani & Co; Douglas Construction & Demolition; Craig & Armand's Wrecking; Carmen Construction Co.; Forty Acres & Contract; Bubba & Sons; McDuffies; Lanzie & Associates; City Training Institute; O'Doran & Co.; Caroll & Co.; Public Works Demolition; Cousin Jack; Contract Management; Greystone Company; Universal Management; Carnegie Enterprises; Peck Construction; Ocean Construction; West International; Eagle Construction; Zion Co.; Hughes Co.; Rockefeller *1129 Industries; Economy Building; Low Budget Construction; DW Construction; Alpro/DW Construction; Pratt's Wrecking; Tiptoe; MCM; LRG Construction; RG Construction; SRM Construction; RGG; GLTG; MDD Construction; DD Construction; LRGG; Doran Engineering; Dixon Demo & Trucking; General Excavation; RG Excavation; LRG Excavation; Wilco Equipment; IDC Builders; Leeco Construction; ADR; RPM; LA City Construction; New Age Demolition; PRS Demolition; Rozanne's Demolition; MS Demolition; Indian Demolition; BTJ; West Coast Land Clearing; Daniel Dulac; MM & R Services; Enviroprop; Santiago Perez; Perez Construction; Gomez & Sons and DOES, 1 through 20, Defendants.
Evan Martinez, Third-Party Plaintiff,
v.
Fleming Construction & Equipment; Terry Fleming; Frank Bresher; and Tony Catone, Third-Party Defendants.
Evan Martinez, Cross-Claimant,
v.
Lyle Sardie; and Michael Mitchell, Cross-Defendants.
No. 96CV2002.
United States District Court, C.D. California.
August 7, 2000.
*1130 ORDER GRANTING FLEMING'S MOTION FOR SUMMARY JUDGMENT
BAIRD, District Judge.
I. INTRODUCTION
This matter comes before the Court upon the third-party defendants' motion for summary judgment of the third party complaint against Fleming Construction & Equipment, et al. ("Fleming"). At issue here is the validity of a release agreement signed by Martinez and Fleming pursuant to the settlement of a state action between the two parties. After careful analysis, the Court finds that the aforementioned release is valid, and thus bars the present claim for indemnification. Therefore, Fleming's motion for summary judgment is granted.
II. FACTUAL BACKGROUND
On January 17, 1994, an earthquake centered in Northridge, California, struck the Los Angeles metropolitan area. The City of Los Angeles ("City") established a city-sponsored demolition and debris removal program under the leadership of the Bureau of Engineering of the Department of Public Works by January 25, 1994. City declared a state of local emergency and entered into demolition and debris removal contracts. City Council also implemented a local preference policy in awarding recovery contracts to help resuscitate the local economy. Third-party plaintiff Martinez was awarded contracts by City as part of the debris removal program. (See Fleming Decl., Ex. A.)
On February 25, 1994, the Public Works Committee Report to City Council stated that several debris removal contractors had submitted invoices which allegedly overbilled and mischarged for their services.
On June 10, 1994, Fleming Engineering, Inc. (erroneously sued as Fleming Construction & Equipment) entered into thirteen separate subcontracts with entities owned by Martinez. (See Martinez Decl., ¶¶ 6-7.) The subcontracts provided that Martinez would be paid 7.5% of the gross income from the contracts which Fleming performed with the remainder being paid to Fleming. (See id. at ¶¶ 4-5.)
*1131 In 1995, Martinez filed a complaint against Fleming in the Superior Court of California, County of Los Angeles, for claims based upon the thirteen subcontracts. The parties eventually negotiated a settlement agreement resolving all claims. (See id. at ¶¶ 16-19; Fleming Decl., Ex. B.) On June 19, 1996, Martinez executed a full release of all claims ("Release").[1] (See Fleming Decl., Ex. B.) In paragraph three of the Release, Martinez expressly waived California Code of Civil Procedure Section 1542. As consideration for signing the Release, Martinez received $15,000 from Fleming. (See id.)
Relator Diane Giles filed the First Amended Complaint in her qui tam action on October 23, 1998. On November 24, 1999, Evan Martinez, a named defendant in the complaint filed by Giles who is representing himself in all matters before this Court, filed an answer to Giles' First Amended Complaint and included a third-party complaint naming Fleming Construction & Equipment, Terry Fleming, Frank Bresher and Tony Catone ("Fleming") as third-party defendants. (See Def. Answer and Third-Party Complaint at 3-6.) On February 3, 2000, Fleming filed the present motion for summary judgment. Martinez filed his opposition to the motion on March 27, 2000. Fleming filed its reply on April 3, 2000.
III. LEGAL STANDARD
Federal Rule of Civil Procedure 56(c) authorizes entry of summary judgment "if ... there is no issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). While a mere scintilla of evidence is not sufficient to defeat a properly supported motion for summary judgment, Anderson, 477 U.S. at 250, 106 S. Ct. 2505, the motion should be denied if there are any genuine issues of material fact in dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). When considering a motion for summary judgment, the trial court must review the evidence in the light most favorable to the non-moving party. See T.W. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir.1987).
IV. THE RELEASE BARS MARTINEZ' PRESENT CLAIM
A. The Terms of the Release
As noted above, the Release executed on June 19, 1996, was the result of a negotiated settlement agreement which resolved all the claims of the state court action between Martinez and Fleming. The first paragraph of the Release provides that Martinez releases Fleming
of and from any and all claims ... of any nature whatsoever, known or unknown, disclosed or undisclosed, whether or not existing as of the date of this release, including, but not limited to those arising out of, or in any way related to, the matters complained of in the arbitration.
(Fleming Decl., Ex. B.) The second paragraph of the Release contains several statements regarding admissions of liability. The third paragraph addresses future claims related to the state action specifically. It includes a waiver of rights under California Civil Code § 1542. (See id.) Section 1542 provides: "a general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, *1132 which if known by him might have materially affected his settlement with the debtor." Cal.Civ.Proc.Code § 1542.
B. The Release is Not Void for Fraud
Martinez argues that the Release is invalid because it was procured by means of fraudulent inducement. (See Opp. at 6-10.) Martinez claims that Fleming was aware of the overbilling practices, but chose not to disclose that fact to Martinez, thus perpetrating a fraud. (See id.) Martinez cites San Diego Hospice v. County of San Diego, 31 Cal. App. 4th 1048, 37 Cal. Rptr. 2d 501 (1995), in support of his argument. Fleming argues in response that the facts do not sufficiently support a finding that each of the elements of fraud are met. (See Reply at 10-12.)
In San Diego Hospice, the plaintiff sued San Diego County in a dispute over land contaminated with hazardous materials that the plaintiff purchased from the County of San Diego, See San Diego Hospice, 31 Cal.App.4th at 1050, 37 Cal. Rptr. 2d 501. The parties reached a settlement agreement that included a release of all known or unknown claims; however, the plaintiff attempted to rescind the release when a second source of contamination was subsequently discovered on the land. See id. at 1051, 37 Cal. Rptr. 2d 501. The plaintiff alleged fraudulent concealment of a second tank which was the source of the previously undiscovered contamination. See id. at 1053, 37 Cal. Rptr. 2d 501. According to the court, a party that seeks rescission based on fraudulent nondisclosure must show:
(1) the defendant failed to disclose a material fact which he knew or believed to be true, and (2) the defendant had a duty to disclose that fact. The duty to disclose arises when two elements are present: (1) the material fact is known to (or accessible only to) the defendant; and (2) the defendant knows the plaintiff is unaware of the fact and cannot reasonably discover the undisclosed fact.
Id. at 1055, 37 Cal. Rptr. 2d 501 (citations omitted). As to the second prong of the analysis in determining whether a duty to disclose existed, the court in San Diego Hospice determined that there was no evidence that San Diego County actually knew of the second source of contamination when it entered into the release, and, therefore, no duty to disclose existed. See id. at 1056, 37 Cal. Rptr. 2d 501.
The same reasoning applies in the present case as neither element of the duty to disclose has been sufficiently established. First, there is no evidence before the Court establishing that Fleming knew of the overbilling practices. Second, and more importantly, even assuming that Fleming was aware of overbilling, Martinez has offered no evidence to show that Fleming knew that Martinez was not aware of overbilling.[2] Martinez instead argues in conclusory fashion that because Fleming had "superior and exclusive knowledge" of any overbilling practices and the preparation of the invoices, it must have known about the alleged overbilling and mischarging. (See Opp. at 10.) Absent evidence of Fleming's knowledge of Martinez' lack of awareness of overbilling, Fleming's duty to disclose is not sufficiently proven. Such general conclusions do not meet the burden for seeking rescission of the Release for fraud.
Therefore, the Court concludes that in the absence of any evidence presented by *1133 Martinez to the contrary, there is no genuine issue of fact that Fleming knew of the overbilling practices, or was aware that Martinez lacked knowledge of the improper billing practices. Accordingly, no genuine issue of fact exists to support a finding of fraudulent nondisclosure; therefore, the Release is not void for fraud.
C. The Release Bars All Unknown Claims
Martinez also argues that the Release does not bar all claims unknown or undisclosed at the time of its signing. (See Opp. at 10-16.) He argues that both the rules of contract interpretation and the circumstances surrounding the negotiation and signing of the release show that the parties did not intend for the Release to cover claims such as the present claim for indemnification. (See id.) The question before this Court is whether the Release can be interpreted to extend to all unknown claims. If no genuine issue of fact remains, summary judgment must be denied.
1. The terms of the Release are clear and unambiguous
The primary task of a court when reviewing the terms of a contract is to give effect to the mutual intentions of the parties at the time of contract. See Cal.Civ.Code § 1636. In doing so, the court will enforce the outward expression of the parties' intentions rather than their uncommunicated subjective intentions. See Edwards v. Comstock Ins. Co. 205 Cal. App. 3d 1164, 1169, 252 Cal. Rptr. 807 (1988); see also Cal.Civ.Code § 1639 (when the contract is in writing "the intention ... is to be ascertained from the writing alone, if possible.").
Martinez has offered parol evidence which establishes his uncommunicated subjective intent as to the meaning of the terms of the Release. Martinez cites Casey v. Proctor, 59 Cal. 2d 97, 109-113, 28 Cal. Rptr. 307, 378 P.2d 579 (1963), for the proposition that extrinsic evidence is admissible to determine the intent of the parties to a contract.[3] Fleming argues that such evidence is inadmissible because the written terms of the agreement are clear.
"Parol evidence is admissible only to prove a meaning to which the language is `reasonably susceptible,' (Pacific Gas & E. Co. v. G.W. Thomas Drayage & Rigging Co., 69 Cal. 2d 33, 38, 69 Cal. Rptr. 561, 442 P.2d 641 (1968)), not to flatly contradict the express terms of the agreement." Winet v. Price, 4 Cal. App. 4th 1159, 1167, 6 Cal. Rptr. 2d 554 (1992) (citation omitted) (emphasis added). In Winet, the court rejected the plaintiff's evidence submitted in support of the proposition that a release did not in fact apply to unknown claims. See id. In reaching its conclusion that the release applied to the unknown claims at issue, the Winet court stated
[the] law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. It judges his intention by his outward expressions and excludes all questions in regard to his unexpressed intention. If his words or acts, judged by a reasonable standard, manifest an intention to agree in this regard to the matter in question, that agreement is established, and it is immaterial what may be the real but unexpressed state of his mind on that subject.
*1134 Id. (quoting Crow v. P.E.G. Const. Co., Inc., 156 Cal. App. 2d 271, 278-79, 319 P.2d 47 (1957)); see also Brinton v. Bankers Pension Servs., Inc., 76 Cal. App. 4th 550, 560, 90 Cal. Rptr. 2d 469 (1999).
It appears to the Court that the language of the Release conveys the intent of the parties to include all unknown claims clearly and unambiguously. The first paragraph of the Release explicitly states that Martinez released Fleming of all claims "known and unknown, disclosed or undisclosed, whether or not existing as of the date of [the] release, including, but not limited to those arising out of, or in any way related to, the matter complained of" in the state action. (See Fleming Decl., Ex. B.) The language is decidedly similar to the language of the release in Winet which the court held extended to all unknown claims. The phrase "including, but not limited to" plainly suggests that future claims not related to the state action are also subject to the Release. (See id.) As in Winet, it is hard to imagine a more clearly worded statement of the parties' intentions with regard to unknown claims.
Furthermore, the parties also negotiated an express waiver of California Civil Code § 1542 in the third paragraph of the Release meaning that the Release would extend to any claims arising from the matters involved in the state action. (See id.) The express waiver of section 1542 is further evidence in support of the Court's finding that the negotiations produced clear and unambiguous language which reflects the parties' intentions to include all unknown claims in the Release. There is no evidence before the Court that Martinez communicated to Fleming an intention to the contrary, that is, that he desired to retain his right to sue Fleming in the future.
2. The circumstances surrounding the signing of the Release
The evidence offered by Martinez in the form of his own declaration and the declaration of his attorney regarding the circumstances surrounding the signing of the Release is simply an attempt to contradict the language of the Release. At most, the declarations establish that neither Martinez nor his counsel were aware of the overbilling practices. (See Martinez Decl., ¶¶ 11, 19-20; Moret Decl., ¶¶ 9, 11.)
As for the circumstances surrounding the signing of the Release, the only factual difference between the present case and Winet is that Martinez allegedly negotiated the settlement on his own behalf. (See Martinez Decl., ¶¶ 15-18; Moret Decl., ¶¶ 10-12.) Even so, there is a discrepancy in the accounts of the settlement negotiations offered by Martinez and his attorney. While Martinez claims to have acted on his own behalf, his counsel states that "[s]ometime after the submission of the Superior court action to private arbitration, I ceased to participate in settlement negotiations," and that he did not participate in the "final settlement negotiations" or review the Release. (Moret Decl., ¶ 12.) While Martinez claims that he negotiated on his own behalf in order to save money and time (See Martinez Decl., ¶ 16.), there is no dispute that he had access to counsel and that he could have, had he chosen to, asked his attorney to review the settlement agreement and Release.
If this Court were to find that the release was invalid as to unknown claims, based on the fact that Martinez lacked counsel, parties to arbitration proceedings could guarantee themselves a similar finding that a settlement agreement was invalid by negotiating on their own behalf and then claiming later that they lacked the advice of counsel. Therefore, given the *1135 circumstances, the Court is not persuaded by Martinez' argument on this point.
Thus, as in Winet, evidence of Martinez' undisclosed intent regarding future claims is inadmissible because it serves merely to contradict the comprehensive and broad language of the Release. See Winet, 4 Cal.App.4th at 1167, 6 Cal. Rptr. 2d 554. Moreover, if the Court were to entertain argument that a release of unknown claims was not intended to include unknown claims, a release could never effectively encompass unknown claims. See id.
Therefore, the Court concludes that no genuine issue of fact remains that the Release applies to all unknown claims including claims for indemnification arising from the subcontracts at issue in the principal case of Giles v. Sardie, et al. in which Martinez is named as a defendant.[4]
V. CONCLUSION
For the foregoing reasons, the Court GRANTS defendants' motion for summary judgment as there is no dispute as to the fact that the Release is valid and properly includes unknown claims such as Martinez' claim for indemnification. Furthermore, the Court DENIES Fleming's request for an award of sanctions.
IT IS SO ORDERED.
NOTES
[1] The parties dispute the extent of the involvement of Martinez' counsel with regard to the settlement agreement. Martinez claims that he negotiated and executed the Release on his own behalf. (See Martinez Decl., ¶¶ 15-18.)
[2] In fact, as Fleming argues, if Martinez had reviewed the invoices before they were submitted to City for reimbursement, he may have easily known that the alleged overbilling was occurring. (See Reply at 12.) It appears that Fleming submitted the invoices directly to City. (See Martinez Decl., ¶¶ 9-11.) There is no dispute, however, that Martinez chose not to review the invoices himself.
[3] Martinez also alleges that Fleming and/or Fleming's counsel drafted the Release; therefore, the Court should construe ambiguities in the language of the Release against Fleming. There is no evidence before the Court, however, sufficient to establish who in fact drafted the Release. Thus, Martinez' argument on this point is lacking in merit.
[4] Fleming requests that the Court impose sanctions pursuant to Federal Rule of Civil Procedure 11. It does not appear to the Court that Martinez' claim for indemnification was wholly frivolous nor that it was presented for any improper purpose. Therefore, Fleming's request for an award of sanctions is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1153778/ | 702 P.2d 371 (1985)
Jackie Lynn STEVENSON, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-84-233.
Court of Criminal Appeals of Oklahoma.
June 24, 1985.
Michael D. DeBerry, DeBerry & Cauthron, Idabel, for appellant.
Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Deputy Chief, Crim. Div., Oklahoma City, for appellee.
*372 OPINION
BRETT, Judge:
Appellant Jackie Lynn Stevenson, Lonnie Leon Young, and Larry Eddie Young were conjointly charged on September 2, 1981, in the District Court of McCurtain County, Case No. CRF-81-166, with First Degree Murder (21 Ohio St. 1981, § 701.7) and Armed Robbery (21 Ohio St. 1981, § 801). On April 12, 1982, the appellant was granted a change of venue to Pushmataha County. Jury trial began there on May 17, 1982. The jury returned a verdict of guilty and sentenced the appellant to ninety-nine years' imprisonment for Armed Robbery and to death for First Degree Murder. The trial court entered Judgment and Sentence in accordance with the jury's verdict, and the appellant lodged an appeal to this Court.
A recitation of facts regarding the murder and robbery is unnecessary because we must reverse and remand this case for a new trial. The appellant herein was forced to proceed to trial without an attorney. The procedural facts follow.
After announcing ready for trial, the appellant's court-appointed attorney Jim McClendon informed the trial judge, the Honorable G. Gail Craytor, that the appellant was not satisfied with his performance and did not want McClendon to represent him. Without inquiring into the reasons for dissatisfaction,[1] Judge Craytor granted a one-week continuance to enable the appellant, who was confined in jail, to retain counsel but warned that even if the appellant did not have an attorney, trial would begin the following Monday. Judge Craytor made good his word, and trial commenced *373 the following Monday although the appellant had no attorney.[2]
Almost throughout voir dire, the appellant stood mute, occasionally interjecting that he needed and wanted an attorney. McClendon did not question any of the prospective jurors. When the court called for argument on a motion to suppress, the appellant again stood mute and McClendon asked the court for clarification of his role as follows:
BY MR. McCLENDON: Your Honor, I don't know if my status is clear in the record. Last Monday I asked permission of the Court to withdraw. I think the Court at that time took my motion and request under advisement and ordered me to return on the 24th, only for the purpose of answering questions and advising the defendant on legal matters. On the 17th he requested that I not represent him and asked the Court for permission for time to employ another attorney. Apparently, he has been unable to as he has advised the Court yesterday. He still advised the Court yesterday that he did not want me to represent him and that is still the position that he takes. I would again ask the Court permission to withdraw as his attorney and will tell the Court that I will make myself available to him if he has any questions, but what is coming up now is a mixed question of fact and law and I think I could advise him, but I don't want to get into a position of making argument to the Court about whether or not the search, if there was one, or seizure, which there was, was legal. When we filed the motion, we didn't think the seizure was legal. I don't think there was a search, but there was a seizure. I think for the purpose of the record, I need to make it clear what my position is. I am not representing Mr. Stevenson, so I can't make any announcement or any argument that would bind him. If the Court would allow me permission to withdraw as his attorney, but order me to be available here for him, if he has any questions he wants to ask me, and that would define for the record what my position is, and it would get me out of a bind and get him out of a bind.
BY THE COURT: Do you have any comment on that, Mr. Stevenson? Do you want Mr. McClendon to represent you in any manner whatsoever?
BY MR. STEVENSON: No.
BY THE COURT: Do you want him to question witnesses either on a motion or in the course of the trial?
BY MR. STEVENSON: No.
BY THE COURT: Very well. At this time let the record reflect that Mr. McClendon will be allowed to withdraw as counsel for the defendant and it will be the order of the Court that Mr. McClendon be available in the courtroom for any legal questions by the defendant, but he is not required to function in any manner as an attorney or assume any liability or responsibility for the defense of this defendant based on the defendant's request that he not represent him in this matter... .
Tr. 238-39.
After twelve jurors and two alternates had been "passed for cause", McClendon approached the bench and told the judge that the appellant asked him whether he could or wanted to represent him. McClendon stated that he did not see how he could since one of the most important parts of trial selecting a jury was over. The court gave McClendon and the appellant twelve minutes to discuss the situation. When court reconvened, the judge stated that McClendon was not of counsel but was present to answer any legal questions the appellant might have.
Shortly thereafter, Vester Songer, an attorney from Hugo, Oklahoma, made an appearance and informed the court he would *374 represent the appellant on three conditions: that the appellant wanted him to represent him; that his fee was paid into his trust account; and that a continuance of at least sixty days be granted. Judge Craytor refused to grant a continuance or empanel another jury. Before leaving, Songer made the following record:
BY MR. SONGER: Your Honor, may I make inquiry on one or two points in order to diligently discuss this matter with the family of Mr. Stevenson?
BY THE COURT: Yes, sir, you may.
BY MR. SONGER: The inquiry is whether the defendant or his then counsel at any time up until it was originally set for trial here have ever asked for or been granted a continuance in the case, except the week's continuance that the Court gave after the trial started?
BY THE COURT: He had that continuance and originally the matter was set on the Idabel jury term and a change of venue was granted prior to that term.
BY MR. SONGER: But there wasn't an official or actual request for continuance, only a change of venue; is that right?
BY THE COURT: Yes, sir.
BY MR. SONGER: Another inquiry. When Mr. Stevenson stated to the Court that he did not wish Mr. McClendon to continue as counsel, did Mr. McClendon request withdrawal as counsel?
BY THE COURT: Yes, he did.
BY MR. SONGER: And was he granted withdrawal by this Court?
BY THE COURT: Not at that time. It was taken under advisement and it was granted yesterday, May the 24th.
BY MR. SONGER: Was that prior to the commencement of any jury selection or of the present jury that is now sworn? Was it prior to the commencement of the selection of the jury that is now sworn to try the cause?
BY THE COURT: I don't believe it was, but Mr. McClendon was given the opportunity by the Court that he did not have to involve himself in the jury selection and for the record, Mr. Songer, he did not involve himself in the jury selection of this jury.
BY MR. SONGER: Was Mr. McClendon counsel of record during the empaneling of this jury or had the Court granted permission to allow Mr. McClendon to withdraw if the Court remembers?
BY THE COURT: I don't remember the exact moment, but the motion to withdraw was allowed and Mr. McClendon was kept available in the courtroom and it was stated to both he and the defendant that he must appear here and be available to answer any legal question by the defendant, even though he was not functioning as his counsel in the case.
BY MR. SONGER: I have one other question and that is, has the defendant ever asked to represent himself in this case?
BY THE COURT: Specifically, no. But he has refused counsel as appointed and has stated that he would retain counsel and be ready on May the 24th.
BY MR. SONGER: Thank you, Your Honor. May I be excused?
BY THE COURT: Yes, you may. Thank you very much, Mr. Songer.
A person charged with a felony in a state court has an unconditional and absolute right to a lawyer. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). He also has a right to represent himself if he voluntarily, knowingly, and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
In the present case, the record clearly shows the appellant never asked to represent himself. To the contrary, he repeatedly told the court that he wanted and needed an attorney. The question presented, then, is whether the appellant waived his constitutional right to be represented by counsel.
The right to counsel may be waived if done knowingly and voluntarily. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The record must show that the accused was offered counsel but intelligently and understandingly *375 rejected the offer. Lineberry v. State, 668 P.2d 1144 (Okl.Cr. 1983). The accused should be made aware of the dangers and disadvantages of self-representation, see Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), so the record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L. Ed. 268 (1942).
In the case at bar, the trial court advised appellant to continue with McClendon if he could not get another attorney; otherwise he would have to proceed to trial the following Monday without counsel. The trial court did not, however, clearly advise appellant of the great disadvantage and hazards of self-representation. Thus, the record is insufficient to show that a voluntary and intelligent waiver was made.
The State argues the appellant, through his dilatory behavior, waived his right to counsel and elected to proceed pro se.[3] As Judge Cornish pointed out in his special concurrence to Lineberry v. State, 668 P.2d 1144, 1146 (Okl.Cr. 1983),
[W]here a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney.
Id. at 1146-47, quoting United States v. Gates, 557 F.2d 1086, 1088 (5th Cir.1977), cert. denied, 434 U.S. 1017, 98 S. Ct. 737, 54 L. Ed. 2d 763 (1978) (emphasis mine).
In this case, the record does not indicate that the appellant was asking for new counsel for dilatory purposes. Only one one-week continuance was granted at appellant's request. Especially in a case in which the death penalty is being sought, one week is insufficient time to retain new counsel expected to be ready for trial. Inasmuch as the trial court did not grant a reasonable amount of time, the appellant's failure to have retained counsel ready for trial did not constitute a waiver of his right to counsel.
By forcing the appellant to trial pro se under the circumstances, the trial court committed reversible error. The case is REVERSED and REMANDED for a new trial.
PARKS, P.J., concurs.
BUSSEY, J., dissents.
NOTES
[1] McClendon advised the court that having to represent a client who did not want him [McClendon] to represent him could change his attitude about the case.
[2] Judge Craytor initially denied McClendon's request to withdraw as counsel but told McClendon that he would not be required to perform as counsel. In effect, Judge Craytor appointed McClendon as stand-by counsel for a pro se defendant. After voir dire, McClendon was allowed to officially withdraw as counsel but remained available to answer legal questions the appellant might have throughout the remainder of the trial.
[3] Most of the cases cited by the State involved defendants who chose to proceed pro se and who were appointed standby counsel. These cases are inapposite. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/391403/ | 651 F.2d 1101
1985 A.M.C. 605
In the Matter of the Complaint of RODCO MARINE SERVICES,INC., As Charterer, and Alidore J. Delgrandile, Jr., AsOwner, Respectively, of the M/V GOOD BOY, praying forexoneration from or limitation of liability, Plaintiffs-Appellants,v.Liliana MIGLIACCIO et al., Claimants-Appellees.
No. 78-3129.
United States Court of Appeals,Fifth Circuit.
July 30, 1981.
Joe L. Horne, George J. Higgins, Jr., New Orleans, La., for plaintiffs-appellants.
George N. Bischof, Jr., Chalmette, La., for Liliana and Peter Migliaccio.
George T. Mustakas, II, Metairie, La., Harry P. Gamble, III, New Orleans, La., for Joy Purcell.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, ANDERSON and THOMAS A. CLARK, Circuit Judges.
THOMAS A. CLARK, Circuit Judge:
1
This appeal is from a district court order dismissing appellants' complaint for limitation of liability on the ground that they "failed to satisfy the condition requiring them to pay or secure all preexisting encumbrances on the vessel M/V Good Boy. 3 Benedict, Admiralty 458 (6th Ed. 1940); Robinson, Admiralty 928, et seq. (1939); Hughes, Admiralty, § 168 (2d Ed. 1920); Gilmore and Black, Admiralty, § 10-48 (2d Ed. 1975)." We hold that the district court erred, and we reverse and remand for further consideration.
2
The record in the case consists solely of the complaint and a minute entry reflecting a status conference between the court and attorneys for various interested parties, following which conference the court entered the order previously described. The complaint alleges that Rodco Marine Services, Inc. (hereafter "Rodco") was the bareboat charterer of the M/V Good Boy, which was owned by Alidore J. Delgrandile, Jr., both of which parties seek limitation of liability under the Shipowners' Liability Act.1 The complaint alleges that the M/V Good Boy sustained a marine casualty and sank in the Mississippi River on December 16, 1977, resulting in the death of the master and two deckhands. The complaint further alleges that the loss of the vessel was not caused or contributed to by any fault or negligence on the part of the plaintiffs or anyone for whom the plaintiffs may be responsible. It is further alleged that the vessel was salvaged by Bisso Marine Company, Inc., which salvage was ultimately successful, but that in the process of the salvage operation Bisso negligently permitted the M/V Good Boy to fall to the river bottom a second time causing additional damage to the vessel. Bisso is alleged to have retained possession of the M/V Good Boy for its salvage lien, but there is no litigation pending between plaintiffs and Bisso. The complaint discloses that there is a preferred ship mortgage in favor of State Bank and Trust Company of Golden Meadow in the principal sum of $365,000.00, that litigation has been filed against the M/V Good Boy in three lawsuits arising from the deaths of the master and the two deckhands, and that there are claims for salvage not in litigation, those of Bisso in the approximate amount of $50,000.00 and of Taylor Driving and Salvage Company, Inc., in the approximate amount of $5,000.00. It is alleged that the owner's interest in the vessel did not exceed the sum of $150,000.00 after the sinking and that the amount owed for freight pending was nominal. The complaint concludes by alleging that complainants are financially unable to give a stipulation with sufficient surety for the owner's interest in the M/V Good Boy and asks permission to surrender the vessel to a trustee to be appointed by the court and that complainants' liability for damages growing out of the casualty be limited to their interest in the M/V Good Boy.
3
We are hampered in deciding the case because of the absence of facts before us since process never issued. The district court dismissed the complaint ex parte based upon the allegations in the complaint and the court's unrecorded conference with counsel for the parties who had filed suits against the plaintiffs herein and the vessel. However, since the complainants could not post adequate security or satisfy all preexisting encumbrances, the district court must have decided that the complainants had to satisfy one of those alternative conditions as a condition precedent to the bringing of an action for limitation of liability. We reverse for two reasons. First, we conclude that neither the limitation statutes, particularly 46 U.S.C. §§ 183 and 185, nor Rule F2 support the requirement that preexisting encumbrances be satisfied prior to the bringing of a suit for exoneration of liability, and we hold that such is not required. Second, the only preexisting encumbrances considered by the court were the preferred ship mortgage and the claims for salvage. Since the mortgage is prima facie subordinate to tort claims pursuant to 46 U.S.C. § 953(a) and since the salvage claims arose from the voyage that gave rise to the limitation proceeding, it was not necessary for complainants to satisfy such encumbrances even if such a rule existed. The trial court erred in dismissing the complaint without appointing a trustee, having the vessel sold, determining the priority of maritime liens, and deciding whether petitioners were entitled to an order limiting their liability.
4
The statutes permitting a ship owner to limit his liability for voyage and disaster debts, in event of a casualty, to the amount or value of his interest in the vessel were enacted in this country in 1851 to encourage investments in this country's shipping industry. Similar laws had existed in European countries for centuries. An investor might have been willing to risk the loss of his capital investment in a vessel resulting from the hazards of a voyage from England to India in the eighteenth century, but he was unwilling to be exposed to the almost limitless liability for damages sustained by crew members, cargo owners, and owners of other vessels resulting from the negligent operation of his vessel by persons over whom he had little or no control. Because of these and similar exposures, owners were permitted to surrender the vessel or its value and all profits from the voyage, in payment of all claims arising from a casualty, in exchange for their liability being limited to the value of the vessel and its voyage profits.3
5
(1) While it might well be argued that such statutes are now anachronisms, 46 U.S.C. Secs. 183 et seq.4 are still on the statute books, and it is the function of Congress, and not that of the courts, to repeal such statutes. There is nothing in the statutes or in Rule F5 which puts any restrictions on the right of a ship owner to file a petition for limitation of liability. The district court erred in dismissing the complaint sua sponte and should have appointed a trustee, had the vessel sold, and the funds paid into the registry of the court. Rule F(5) clearly indicates that adverse parties may contest the limitation of liability. That comes during the litigation and not by dismissing the complaint as was done here.
6
Nothing in the statute or in Rule F requires a ship owner to pay or secure all preexisting encumbrances against the vessel before filing a limitation proceeding. Paragraph (2) of Rule F clearly says:
7
If the plaintiff elects to transfer his interest in the vessel to a trustee, the complaint must show any prior paramount liens thereon ... and any existing liens arising upon any such subsequent voyage or trip.
8
Thus, while the pleader must show in his complaint the prior paramount liens and any existing liens that arose upon subsequent voyages, the Rule clearly does not require that these liens be satisfied or secured as a condition precedent to filing the complaint.
9
While it is not necessary to our holding, we will briefly point out that there were no preexisting encumbrances described in the complaint. The only such encumbrances that could have been considered by the district court according to the record before us would have been the preferred ship mortgage and the salvage claims. Prior to 1920 mortgages on American ships were practically nonexistent, which contributed to the fact that in 1914 there were only 15 American ships of 1,000 tons or over engaged in overseas trade.6 To remedy the problem Congress passed the Ship Mortgage Act of 1920, which was amended in 1954 and is codified in 46 U.S.C. Sec.s 951 et seq. Notwithstanding the impetus given to equity funding of ships by this statute, § 953(b) provides
10
that the preferred mortgage lien shall have priority over all claims against the vessel, except (1) preferred maritime liens, and (2) expenses and fees allowed and costs taxed, by the court.
Subsection (a) of § 953 states:
11
(T)he term "preferred maritime lien" means (1) a lien arising prior in time to the recording and indorsement of a preferred mortgage in accordance with the provisions of this chapter; or (2) a lien for damages arising out of tort, for wages of a stevedore when employed directly by the owner, operator, master, ship's husband, or agent of the vessel, for wages of the crew of the vessel, for general average, and for salvage, including contract salvage.
12
Since collision insurance on a vessel is not contributed to the fund created by a limitation proceeding, this statute does not seem to be as harsh as a first reading would suggest. Thus, as in the case of the M/V Good Boy, the collision insurance would be paid to the mortgagee if the insurance contract so provided.
13
We make these observations about the possible effect of the Ship Mortgage Act on the priority of liens in order to explain why dismissal of the complaint based on the allegations was erroneous. We do not announce a rule for this case, or other cases, on the order of priority of liens as between claimants. Such priorities must be determined on the basis of facts developed by the district court.
14
The other prior encumbrances which the district court must have considered were the salvage claims of Bisso and the diver. That these are not previous encumbrances, but instead are part of the claims arising from the limitation proceeding voyage itself, is made clear by the Supreme Court decision in Metropolitan Redwood Lumber Co. v. Doe, 223 U.S. 365, 375-76, 32 S.Ct. 275, 277, 56 L.Ed. 473 (1912), in which the Supreme Court had the following to say:
15
But it is contended that a salvage claim, such as the one here involved, is not a claim for "damages or injury by collision," within the meaning of § 4283, Revised Statutes, and therefore not one to which the limited-liability act applies; that the damages there referred to are damages by collision to other vessels and their cargo, and that the expense of being towed to port is a claim like one for repairs. It is also said that even if the vessel owners may be able to include what they must pay for such a service in the damages recoverable from the guilty vessel, it is, notwithstanding, not a damage arising from collision, within the meaning of that section.
16
But we need not consider whether the claim is one against the owner of the character described either in § 4283 or the succeeding section, 4284. Those sections have been amended by the 18th section of the act of June 26, 1884 (23 Stat. at L.57, chap. 121, U.S.Comp.Stat.1901, 2945), so as to include "any or all debts and liabilities" of the owner, incurred on account of the ship, without his privity or fault. Richardson v. Harmon, 222 U.S. 96, 32 S.Ct. 27, 56 L.Ed. 110.
17
The service was rendered to the res, benefiting alike owner and creditors. The claim is therefore of a highly meritorious character. But the question of preference in payment out of the fund is one to be determined in the limited-liability case. We therefore express no opinion as to whether such a claim may be preferred or must share pro rata with others.
18
In summary, we hold that the mortgage was not a prior encumbrance barring the owner and bareboat charterer from filing a proceeding to limit their liability. Further, we hold that the salvage claims are not prior encumbrances but instead are part of the claims arising from the voyage during which the casualty occurred and probably become a part of the limitation proceeding.7
19
In considering this matter we have reviewed the textbook authorities cited by the district court in its order, those being 3 Benedict, Admiralty 458 (6th ed. 1940); Robinson, Handbook of Admiralty Law 928, et seq. (1939); Hughes, Admiralty Law § 168 (2d ed. 1920); Gilmore and Black, The Law of Admiralty § 10-48 (2d ed. 1975). While these authorities give some support to the position taken by the district court, particularly Gilmore and Black, we do not find these textbook authorities supported by the statutes, the rule, or any decisional law.
20
The earliest text is that of Hughes, who says, at page 367, "the owner must also surrender the vessel clear of prior liens." Hughes relies on The Leonard Richards, 41 F. 818 (D. N.J. 1890). In that case the owner paid into court $8,000 as the value of the vessel when he filed his petition for limitation. In the limitation litigation the owner urged the court to direct payment from this fund to those liens previously existing against the vessel as well as the voyage liens arising from the disaster voyage. The court refused to accept this position and held that the owner had to pay the prior liens and that the $8,000 was available to satisfy only claims of the disaster voyage. This same point found its way into Robinson's treatise at pages 928 and 929, also relying on The Leonard Richards. Benedict then picks this up at pages 457 and 458 of his sixth edition with a sentence "Prior liens on the vessel, not effected by the limitation petition, must be independently paid or secured." However, Benedict asserts that this applies only to cases where the owner wishes to pay a fund into court and does not apply where the owner wishes to surrender the vessel to a trustee. Gilmore and Black in their § 10-48 rely on Benedict, Robinson, and Hughes, but acknowledge the lack of substantial authority to support such a statement. The principle enunciated had its roots in a dispute over whether prior liens would share in the limitation fund, and had no relationship to payment being a condition precedent to the filing of a complaint.
21
Gilmore and Black, while acknowledging that there is no valid foundation for the principle, nevertheless urge that prior liens must be satisfied by a vessel owner as a condition precedent to filing a petition for limitation as a means of vitiating the effectiveness of the statute and to permit courts to deny limitation altogether. Their argument is that when limitation is denied the owner, the disaster voyage claimants can have priority liens against the value of the vessel and then proceed as general creditors against any other assets the owner of the vessel might have. Under the Act, the disaster voyage claimants are limited solely to the value of the vessel in its disaster condition for satisfaction of their claims. As we have previously stated, the statute may well have lost its usefulness in this time of multiple forms of insurance, and the corporate form of limitation of liability, which business methods permit owners to limit their liability without resort to the statute. However, in this case the owner of the MV Good Boy has filed its petition, we are bound by statute, and we must leave to Congress its abolition.
22
We hold that there is no condition precedent to an owner of a vessel filing a petition for limitation of his liability. The petitioner must offer to surrender title of the vessel to a trustee to be appointed by the court or alternatively offer to pay into court a sum equal to the value of the vessel. If a trustee is appointed the vessel must be sold and the proceeds paid into the registry of the court. The court then determines the priority of the liens against the fund. If the entire fund is not available to voyage claimants, distribution should be made to the proper lienors and the owner denied exoneration.
23
We believe this holding comports with the reasoning of the First Circuit in the only decision we have found which discusses this subject, The Zebroid :
24
The right to limit claims to the value of the vessel applies only to the claims arising during the one voyage. The City of Norwich, (118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134,) ante; The Alpena, N.D.Ill., 1881, 8 F. 280. This includes all liens attaching during the voyage, whether prior in time, In re Moore, E.D.Mich., 1968, 278 F.Supp. 260, 265, or in substance, The H. F. Dimock, S.D.N.Y., 1910, 186 F. 662. Hence, the "well settled rule that liens on the vessel must be independently paid or secured," which the court took from the hornbooks, 3 Benedict, Admiralty, 457-58 (6th ed. 1940); Robinson, Admiralty, 928 (1939); Hughes, Admiralty, § 168 (2d ed. 1920), is over-general. Liens attaching during the voyage will be subject to limitation, but this is to be effected in the court proceedings. Such liens are not to be "independently paid," but rather, the full value of the vessel must be tendered into court. The H. F. Dimock, ante; The Giles Loring, 482 F. (463) at 473. However, obligations which accrued prior to the voyage, not being subject to limitation, remain unaffected by the proceeding. Since vis-a-vis the owner they do not stand to be reduced, it must follow that he cannot throw the security interests of those lienors into the pot.
25
Early examples of the basic principle are to be found in Gokey v. Fort, S.D. N.Y., 1890, 44 F. 364; The U. S. Grant, S.D.N.Y., 1891, 45 F. 642. The fact that there is little decisional authority suggests that it has been universally accepted. Applied to the case at bar this does not mean that petitioner, or its insurer, must pay off prior liens, but merely that a stipulation must be filed to protect the limitation claimant in the amount of the value of the vessel. To do any less would mean that petitioner is limiting claims beyond the authority of the statute.
26
The Zebroid, 428 F.2d 226, at 228-29 (1st Cir. 1970).
27
Finding that the dismissal by the district court was based upon an erroneous assumption that a vessel owner must pay off or secure prior claimants as a condition precedent to filing a limitation proceeding, we vacate the order of dismissal and remand.
28
VACATED and REMANDED.
1
46 U.S.C. § 181 et seq
2
Supplemental Rules for Certain Admiralty and Maritime Claims
3
The history of the limitations acts elsewhere and in this country are described in Gilmore and Black, The Law of Admiralty (2d ed. 1975), §§ 10-1 to 10-3
4
The statutes provide in pertinent part as follows:
46 U.S.C. § 183:
(a) The liability of the owner of any vessel ... for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not ... exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.
46 U.S.C. § 185:
The vessel owner ... may petition a district court of the United States ... for limitation of liability within the provisions of this chapter and the owner (a) shall deposit with the court, for the benefit of claimants, a sum equal to the amount or value of the interest of such owner in the vessel and freight, ... or (b) at his option shall transfer, for the benefit of claimants, to a trustee to be appointed by the court his interest in the vessel and freight, together with such sums, or approved security therefor, as the court may from time to time fix as necessary to carry out the provisions of section 183 of this title. Upon compliance with the requirements of this section all claims and proceedings against the owner with respect to the matter in question shall cease.
There is an exception in § 183(a) designed to protect passengers in case of collision, but that exception does not apply to towing vessels which was the classification of the M/V Good Boy according to the complaint.
5
Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims:
Rule F. Limitation of Liability
(2) Complaint. The complaint shall set forth the facts on the basis of which the right to limit liability is asserted .... If the plaintiff elects to transfer his interest in the vessel to a trustee, the complaint must further show any prior paramount liens thereon, and what voyages or trips, if any, she has made since the voyage or trip on which the claims sought to be limited arose, and any existing liens arising upon any such subsequent voyage or trip, with the amounts and causes thereof, and the names and addresses of the lienors, so far as known; ....
(3) Claims Against Owner; Injunction. Upon compliance by the owner with the requirements of subdivision (1) of this rule all claims and proceedings against the owner or his property with respect to the matter in question shall cease. On application of the plaintiff the court shall enjoin the further prosecution of any action or proceeding against the plaintiff or his property with respect to any claim subject to limitation in the action.
(4) Notice to Claimants. Upon the owner's compliance with subdivision (1) of this rule the court shall issue a notice to all persons assenting claims with respect to which the complaint seeks limitation, admonishing them to file their respective claims with the clerk of the court and to serve on the attorneys for the plaintiff a copy thereof on or before a date to be named in the notice....
(5) Claims and Answer. Claims shall be filed and served on or before the date specified in the notice provided for in subdivision (4) of this rule.... If a claimant desires to contest ... the right to limitation of liability he shall file and serve an answer to the complaint unless his claim has included an answer.
Paragraph (1) of Rule F has been omitted because it is the same in all respects as 46 U.S.C. § 185, which is set forth in note 4 supra.
6
Gilmore and Black, supra note 3, § 9-48
7
In holding as we do on this latter point, we are not unmindful of the fact that there are instances when a salvage contract becomes the personal obligation of the owner or charterer of a vessel, and it is true that in some instances personal contracts are not subject to limitation of liability. However, we cannot get into this difficult point with the dearth of facts available to us in this meager record | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1310929/ | 445 S.E.2d 202 (1994)
191 W.Va. 261
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Sharon JUSTICE, Defendant Below, Appellee.
No. 21859.
Supreme Court of Appeals of West Virginia.
Submitted January 12, 1994.
Decided May 24, 1994.
*205 Stephen R. Van Camp, Asst. Atty. Gen., Charleston, for appellee.
Jane Moran, Williamson, for appellant. *203
*204 PER CURIAM:
This is an appeal by Sharon Justice from an order of the Circuit Court of Mingo County sentencing her to life in the penitentiary with a recommendation of mercy for first degree murder. On appeal, the defendant claims that the jury's verdict was not supported by substantial evidence and that the prosecuting attorney abused his position during trial. She argues that she should have been granted a new trial on the basis of after-discovered evidence; that there was a material variance between the charges contained in the indictment against her and the proof presented by trial by the State; and that the court erred in failing to suppress certain items seized from her car. Lastly, the defendant claims that the State committed a number of acts of prosecutorial misconduct during her trial. After reviewing the questions presented, this Court can find no reversible error. Accordingly, the judgment of the Circuit Court of Mingo County is affirmed.
During the early evening hours of March 22, 1991, the defendant met Harold Cline, an individual who had the reputation of frequently carrying a large amount of money, at the Playpen, a small bar in Gilbert, West Virginia. She sat with him and conversed with him.
While the defendant was talking with Mr. Cline, Richard Collins and Randy Highlander entered the bar. Richard Collins knew the defendant's daughter, and he spoke to the defendant. Sometime later, according to Mr. Collins' testimony during the defendant's trial, the defendant took Mr. Collins aside and told him that Mr. Cline had a large amount of money. She suggested that she lure Mr. Cline to another club and that Mr. Collins follow them. She further suggested that Mr. Collins knock Mr. Cline over the head with a baseball bat, which she had in her car, at an appropriate time so that she could take his money.
After the defendant spoke with Mr. Collins, it was openly suggested that the party go to the next club up the road, where music was available for dancing. Mr. Cline learned of this suggestion and wanted to go along. A short time later, the defendant gave Mr. Collins and Mr. Highlander the keys to her car and asked them to take it up to the next club, and she proceeded to the club with Mr. Cline in his car.
When the defendant and Mr. Cline reached the next bar, which was called "Yesterdays," Mr. Cline parked and got out and started walking around to the passenger side door to let the defendant out. Before he got there, the defendant was already alighting from the car. A moment later, Richard Collins approached Mr. Cline with a baseball bat and struck him on the shoulder. He then proceeded to strike Mr. Cline on the head with sufficient force to fracture his skull. Mr. Cline later died of his injuries.
Shortly after the attack, the defendant, Mr. Collins, and Mr. Highlander left the scene in the defendant's car.
During her trial, the defendant denied that she had conspired with Mr. Collins and testified that she was horrified as she watched Mr. Collins attack Mr. Cline.
*206 Two individuals who were at Yesterdays witnessed the attack on Mr. Cline from a distance. They were not able to identify the assailants, but one of the witnesses, Michael Burke, a security guard at Yesterdays, did manage to get the license plate number of the vehicle in which they left the scene. The license number was 1LF 998, a license plate number registered in the name of the defendant.
The State Police were notified of the attack and traced the license number taken by the witness to the defendant. They later found the defendant's car parked outside her trailer. When they arrived, Mr. Collins and Mr. Highlander were in the car, and the State Police placed them under arrest. One of the State troopers, Trooper Hedrick, observed an aluminum baseball bat lying on the passenger side floorboard. Another trooper, Trooper Schoolcraft, found a one-hundred-dollar bill and two one-dollar bills in Mr. Highlander's possession. A third trooper, Trooper Kuenzel, found two one-hundred-dollar bills and four fifty-dollar bills in the possession of Mr. Collins.
Inside the trailer, Trooper Hedrick advised the defendant of her Miranda rights and questioned her about the incident at Yesterdays. She stated that she knew Mr. Collins and Mr. Highlander and that she had let them use her vehicle. The defendant was not arrested. Her car, however, was impounded by the State Police.
On March 25, 1991, the defendant went to the State Police barracks and inquired about retrieving her car. Trooper Hedrick informed her that he was in the process of obtaining a search warrant for the car, and he indicated that he needed either a search warrant or a consent to search before he could search the vehicle. He also apparently informed her that she could not retrieve her car until it had been searched. The defendant indicated that she would give a consent to search, and she signed a form consent to search authorizing the State Police to search her car. According to Corporal Pope and Trooper Hedrick, who were present at the time the defendant signed the consent to search, the form was read to her, and she indicated that she understood it.
After the consent to search was executed, Trooper Hedrick took a photograph of the vehicle before actually conducting the search. The photograph showed the aluminum bat and a vodka bottle in plain view on the floor of the car. The actual search of the vehicle produced the bat, the vodka bottle, six one-dollar bills, a sock with a rock in it, and a receipt of Harold Cline dated March 9, 1990.
After further investigating the crime, the State Police concluded that the defendant was implicated in it, and she was indicted for murder. Mr. Collins and Mr. Highlander were also indicted. Mr. Collins subsequently plead guilty to first degree murder, and Mr. Highlander plead guilty to second degree murder.
The defendant was tried before a jury on January 6, 7, 8, and 9, 1992. At the conclusion of the trial, the jury found the defendant guilty of murder in the first degree and recommended mercy.
The Circuit Court of Mingo County subsequently sentenced the defendant to life in the penitentiary with a recommendation of mercy.
On appeal, the defendant claims that the evidence adduced during her trial did not support the jury's verdict.
In syllabus point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), this Court summarized what should be considered in determining whether the evidence in a case supported the verdict. The Court stated:
In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done.
During the trial of the present case, Richard Collins, who had previously plead *207 guilty to first degree murder in conjunction with the killing of Mr. Cline, testified in behalf of the State. His testimony clearly implicated the defendant. Mr. Collins testified as follows:
A: She [the defendant] told me that the old man sitting at the bar [Mr. Cline] had $4,000.00 or $5,000.00 on him and that there was a ball bat in the car and she wanted me to knock him out so that she could take his money....
Q: And how was this to be accomplished?
A: I was to get the ball bat and knock him out and I was to follow her up to the club and when she had his back turned I was supposed to knock him out.
Q: Did you agree to do that?
A: Yes, sir, I did.
Q: Why?
A: Because she said her daughter needed some clothes.
Mr. Collins also testified that after he had knocked the victim to the ground, the defendant bent down and started going through Mr. Cline's pockets. He said that the defendant took Mr. Cline's billfold and urged him to follow. She started running toward her car, and he followed. He testified that after the two of them got to the car, the defendant was happy and gave him Mr. Cline's wallet and told him to take some of the money and give her the rest. Later, she took the wallet back, and when the car stopped in a small hollow, she burned the cards and papers in it.
The State adduced the testimony of Randy Lee Highlander, who had plead guilty to second degree murder in conjunction with the killing of Mr. Cline. Mr. Highlander's testimony indicated that Mr. Collins and the defendant planned the robbery of Mr. Cline. His testimony largely corroborated that of Mr. Collins. He further testified that at the time of the attack on Mr. Cline, the defendant did not attempt to help Mr. Cline in any way, that she did not scream, and that she did not run away. Instead, she bent over Mr. Cline's body. He further testified that, at that point, he ran from the scene of the immediate attack. He further testified that he left the general scene with Mr. Collins and the defendant in the defendant's car.
To develop its case further, the State called as a witness Michael Burke, the security guard at Yesterdays Club, who witnessed the assault on Mr. Cline and who managed to get the license number of the vehicle in which the perpetrators of the crime left the scene.
Further evidence adduced by the State showed that the license number obtained by Mr. Burke was registered in the defendant's name. The State also circumstantially connected the defendant's vehicle to the crime by offering evidence that a baseball bat, large amounts of money, and a receipt of Harold Cline's were found in the car.
In this Court's opinion, when the evidence adduced is viewed in the light most favorable to the prosecution, it is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt, and it does not appear that the evidence was manifestly inadequate or that consequent injustice was done.
Under the circumstances, and in view of the rule set forth in syllabus point 1 of State v. Starkey, Id., this Court believes that the defendant's contention that her conviction was contrary to the evidence is without merit.
The defendant also claims that there was a material variance between the defendant's indictment and the proof adduced by the State.
In conjunction with this, the defendant argues that the grand jury which indicted the defendant returned a two-count indictment against her. The first count was for murder in the first degree, and the second count was for aggravated robbery. As previously indicated, the defendant was convicted of first degree murder. In conjunction with the present assignment of error, the defendant argues that the evidence adduced fails to show any intent on the part of the defendant to kill. It also fails to show any evidence of premeditation.
It appears that the defendant was convicted under the felony murder theory.
The record indicates that Count 1 of the indictment against the defendant charged *208 that she "did feloniously, willfully, maliciously, deliberately, and unlawfully slay, kill and murder said Leonard Harold Cline."
The language in the indictment is in conformity with the provisions of W.Va.Code § 61-2-1, which provides:
Murder by poison, lying in wait, imprisonment, starving, or by willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody, or a felony offense of manufacturing or delivering a controlled substance as defined in article four [§ 60A-4-401 et seq.], chapter sixty-a of this code, is murder in the first degree. All other murder is murder in the second degree....
Under the terms of this statute, felony murder, or murder committed in the commission of a robbery, is a form of murder in the first degree.
Under the law of West Virginia, there is no such thing as an indictment for first degree murder or second degree murder. State v. Schnelle, 24 W.Va. 767 (1884). An indictment is for "murder," and the degree of murder depends upon the proof adduced at trial. State v. Johnson, 49 W.Va. 684, 39 S.E. 665 (1901). A general form of indictment for murder is good for conviction of murder in the first degree or the second degree or for any lower grade of homicide. State v. Douglass, 41 W.Va. 537, 23 S.E. 724 (1895). In view of the authorities, this Court believes that the indictment of the defendant for murder, in accordance with W.Va.Code § 61-2-1, was appropriate to support a conviction for first degree murder.
The Court further notes that the statutory form of indictment for murder is sufficient in a case for first degree murder by felony murder. State v. Young, 173 W.Va. 1, 311 S.E.2d 118 (1983); State v. Bragg, 160 W.Va. 455, 235 S.E.2d 466 (1977); Ford v. Coiner, 156 W.Va. 362, 196 S.E.2d 91 (1972). It is not necessary under the law that the indictment set forth the means of the death of the deceased. State v. Bragg, supra.
In syllabus point 5 of State v. Bragg, supra, the Court summarized these principles in the following manner:
An indictment which charges that the defendant feloniously, wilfully, maliciously, deliberately, premeditatedly and unlawfully did slay, kill and murder is sufficient to support a conviction for murder committed in the commission of, or attempt to commit arson, rape, robbery or burglary, it not being necessary, under W.Va.Code, 61-2-1, to set forth the manner or means by which the death of the deceased was caused.
In the present case, the evidence does support the conclusion that the defendant was implicated in the robbery of Harold Cline and that that robbery resulted in his death. The Court believes that there was adequate proof to support a felony murder verdict and that, under the authorities cited, the indictment adequately charged the crime of which the defendant was convicted.
The defendant next claims that the trial court erred in failing to suppress the items seized from her car pursuant to the consent to search.
Prior to trial, the defendant moved to suppress the items which were seized pursuant to the consent to search which she signed.
Before ruling on the suppression motion, the trial court conducted an appropriate suppression hearing. At the conclusion of that hearing, the court ruled that the consent to search was a valid consent to search and that the items seized were properly admissible into evidence.
The record relating to the events surrounding the defendant's giving a consent to search shows that on March 25, 1991, the defendant voluntarily went to the State Police Barracks to inquire about the return of her automobile, which had been impounded. At the State Police Barracks, the defendant was informed that the State Police were in the process of obtaining a search warrant for the vehicle and that they could not release it before the search. According to evidence which was adduced, the defendant, of her own free will, decided to sign a consent to search to speed the return of her vehicle. The consent-to-search form was read to the *209 defendant, and she indicated her understanding by signing the form.
As previously indicated, the trial court found that the consent to search was valid and that the subsequent search conducted pursuant to it was legal and the items found were admissible into evidence.
In syllabus point 1 of State v. Angel, 154 W.Va. 615, 177 S.E.2d 562 (1970), this Court recognized that:
The State and Federal Constitutions prohibit any unreasonable searches and seizures and there are numerous situations in which a search and seizure warrant is not needed, such as an automobile in motion, searches made in hot pursuit, searches around the area where an arrest is made, things that are obvious to the senses, and property that has been abandoned, as well as searches and seizures made that have been consented to.
The Court has also recognized that:
The general rule is that the voluntary consent of a person who owns or controls premises to a search of such premises is sufficient to authorize such search without a search warrant, and that a search of such premises, without a warrant, when consented to, does not violate the constitutional prohibition against unreasonable searches and seizures.
Syllabus point 8, State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971). See also State v. Smith, 186 W.Va. 33, 410 S.E.2d 269 (1991); and State v. Worley, 179 W.Va. 403, 369 S.E.2d 706 (1988), cert. denied, 488 U.S. 895, 109 S.Ct. 236, 102 L.Ed.2d 226 (1988).
Further, the Court has repeatedly indicated that whether a consent to search is voluntary is a question of fact to be determined from the totality of the circumstances. State v. Worley, Id.; State v. Farmer, 173 W.Va. 285, 315 S.E.2d 392 (1983); and State v. Craft, 165 W.Va. 741, 272 S.E.2d 46 (1980).
In the present case, there was evidence that the defendant indicated that she would consent to a search of her car. There was evidence that the police already had the vehicle impounded and that they were in the process of obtaining a warrant to search it. The facts suggest that the defendant had a motivation to consent to a search in that she wanted possession of her vehicle. There was also evidence that the consent to search form was read to her, that she indicated that she understood it, and that she signed it. Rather clearly the State had already impounded the defendant's car, and there was no need for the State to fabricate a consent to search or to compel the defendant to consent to the search.
In this Court's view, the totality of the circumstances suggest that the consent to search was voluntary, and this Court believes that the defendant's assignment of error on this point is without merit.
Lastly, the defendant claims that the prosecution was guilty of a number of acts of prosecutorial misconduct and that she was denied a fair trial.
In conjunction with her charge that the prosecution was guilty of prosecutorial misconduct, the defendant argues that the prosecutor abused her and her counsel during trial. She also claims that the prosecutor, during closing argument, made improper statements and misled the jury on the elements of felony murder.
In arguing that the prosecutor abused her during trial, the defendant claims that the prosecutor improperly questioned her about giving up a child for adoption and improperly inquired into the question of whether she had ever used drugs.
During direct examination, the defendant was asked by her own attorney whether she had any children. She indicated that she did. She was then asked by her own attorney:
Q: There has been testimony that you have adopted one of your children to your mother. Is that correct?
A: Yes.
Q: Why did you do that?
A: My mother could take care of her better financially.
During cross-examination, the State pursued this subject by asking:
Q: And you indicated that you adopted Erica to your mother.
A: Yes. *210 On appeal, the defendant claims that this cross-examination constituted prosecutorial misconduct.
In a number of cases, this Court has recognized that the scope of cross-examination is coextensive with the evidence given on direct examination; that is, a witness may be cross-examined on matters which are raised on direct examination. See, e.g., State v. Asbury, 187 W.Va. 87, 415 S.E.2d 891 (1992); State v. Green, 187 W.Va. 43, 415 S.E.2d 449 (1992); and State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).
The defendant also argues that the State improperly cross-examined her about drug use. There was evidence in the case that Randy Highlander and Richard Collins, the co-conspirators in this case, had used cocaine on the night of the trial. On cross-examination, the prosecutor asked the defendant: "Had you ever done cocaine with Randy?" The defendant responded: "I don't do cocaine. I do not do drugs." The prosecution pursued the question no further.
In syllabus point 7 of State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956), this Court, citing syllabus point 6 of Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945), stated:
Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court.
See State v. Trogdon, 168 W.Va. 204, 283 S.E.2d 849 (1981); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949); State v. Fisher, 123 W.Va. 745, 18 S.E.2d 649 (1941); and State v. Clifford, 58 W.Va. 681, 52 S.E. 864 (1906).
Under this, this Court believes that the defendant waived her right to challenge on appeal the remarks of which she complains. The Court further notes that the remarks did not establish that the defendant used cocaine, a fact which would have obviously been prejudicial to her case. Instead, they constituted a denial that she used cocaine, a point that the State did not challenge.
In addition to claiming that the State improperly examined her during trial, the defendant claims that the prosecution abused her attorney, Jane Moran. This claim grows out of a remark made by the prosecutor during closing argument. The prosecutor argued that the defendant had "used Richard Collins, Randy Highland, and she has used Jane Morgan." The defendant's attorney immediately objected to this remark, and the court instructed the jury:
Ladies and Gentlemen of the jury, the remark that Mrs. Justice has used her lawyer will not be considered by the jury. There is no evidence of that, and you aren't to consider matters that are not in evidence.
This Court has recognized that some latitude should be allowed on closing argument and that improper remarks will not be considered reversible error unless they work a "manifest injustice" or clearly prejudiced the accused. As stated in syllabus point 5 of State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982):
A judgment of conviction will not be reversed because of improper remarks made by a prosecuting attorney to a jury which do not clearly prejudice the accused or result in manifest injustice.
Given the admonitory instruction given by the Court, as well as the nature of the challenged remark, this Court does not believe that the defendant has demonstrated that the prosecutor's remark worked a "manifest injustice" or that it clearly prejudiced the defendant.
In addition to arguing that there was prosecutorial misconduct, the defendant claims that the prosecutor made additional remarks on closing argument that misled the jury. One sequence about which the defendant complains proceeded as follows:
Sharon Justice would have you believe from that witness stand that she left because she was scared of Richardhe had gone hog wild. Yet, she gave Richard her car when they leave Gilbert at the Gilbert Creek Bridge. She would have you believe she was scared of him then, but she takes her elderly mother out later that *211 night to seek this man she's been running from, trying to get away from all night. That's ridiculous, totally ridiculous! All you have to do to gauge her credibility is to look at that, to look at the events....
Another proceeded as follows:
She did not tell the police the truth which was that Dallas Hatfield took her back up to the Playpen ... It wasn't the Cline man ... She said she didn't want to tell the police about Dallas Hatfield because `I didn't want to get him involved,' but she wants to get someone who wasn't involved at allMr. Cline. This makes no sense. It shows that continualthe continual lying of this defendant to the police and on the stand.
The defendant made no objection to these statements.
It appears to this Court that, to a large extent, the prosecutor went through the story told by the defendant and examined the inconsistencies and improbabilities in it.
As indicated in State v. Ocheltree, Id., the question of whether prosecutorial remarks during closing argument constitute reversible error depends on whether they work a "manifest injustice" and whether they clearly prejudice the defendant. Wholly apart from the closing remarks, there was direct evidence that the defendant was involved in the crime charged and circumstantial evidence connecting her vehicle with the crime. The remarks, since they, to a large degree, track the inconsistencies in the defendant's testimony, cannot, in this Court's opinion, be viewed as clearly prejudicing the defendant.
The Court notes that the prosecutor's remark about the defendant lying on the stand was improper, but that in a number of cases more offensive statements have been held to be insufficient to warrant a reversal of a conviction. State v. Dietz, 182 W.Va. 544, 390 S.E.2d 15 (1990) (No manifest injustice where the prosecutor remarked that the defendant was a "liar."); State v. Barker, 168 W.Va. 1, 281 S.E.2d 142 (1981) (Defendant was lying to save his own neck.); State v. Buck, 170 W.Va. 428, 294 S.E.2d 281 (1982) (Buck was in there to kill him.); State v. Lewis, 133 W.Va. 584, 57 S.E.2d 513 (1949) (Prosecutor characterized defendant as an "abortionist, seducer, debaucher, and a butcher." "That is what he is, a butcher.").
The defendant additionally claims that the prosecuting attorney, during his closing argument, improperly misled the jury on the elements of felony murder.
In considering this, the Court notes that the court properly instructed the jury on the elements of felony murder.[1] During closing argument, the prosecutor stated:
I want you to realize now that it's not the State's opinion that murder was committed here premeditatedly and deliberately. That doesn't mean this defendant is not guilty of murder, because the Court has told you there's another first degree murder in this State and it's called felony murder and that's when a person dies at the hands of criminal action though it may be accidental and the reason for that is that people should not escape the death of one in a criminal act. If you return a first degree murder verdict in this case, it is a felony murder case.
To counter this, the defense argued:
[I]f someone is to be found guilty under felony murder theory they must have an intent to commit some crime or some unlawful act. By simply being present at the time this takes place, at the time either the criminal act or the murder takes place that's not enough. The Judge has told you in his instructions there must be a specific intent on the part of that person to commit a crime or an unlawful act.
On rebuttal, the State argued:
[I]f you've involved by yourself or with someone in the commission of a crime such *212 as robbery, an individual dies from that, then you're guilty of felony murderit's first degree murder, and then you decide whether there's mercy or not.
Given the context of the whole trial, and given the fact that the jury was properly instructed by the trial court on the factors to be considered in weighing a felony-murder conviction, this Court cannot conclude that the prosecutor's argument was prejudicial.
Lastly, the defendant claims that there were additional circumstances in her case which conspired to deny her a fair trial and which render her conviction tainted.
Randy Highlander, one of the individuals implicated in the murder giving rise to this case, was represented by Charles West. In preparing Mr. Highlander's case, Mr. West, on at least three occasions, met with the defendant and interviewed her. The defendant claims that as a result of these meetings, she believed that Mr. West was representing her. She further claims that Mr. West sent her to the State Police to retrieve her car without counsel to advise her. She claims that when she went to the police, she signed the consent which led to the search of her vehicle. She claims that she did not understand the significance of her action.
The defendant also argues that Mr. West used information gleaned while she believed that he was acting as her attorney to get a better bargain for his client, Randy Highlander.
In essence, the defendant argues that the legal system, acting through Mr. West, misled her as to her legal posture and acted to deprive her of a fair trial.
During the development of this case, Mr. West testified that he told the defendant on numerous occasions that he would not represent her. He further stated that he interviewed her as a witness and not as a client.
Essentially, the Court believes that the evidence on what occurred during Mr. West's contacts with the defendant is entirely contradictory, and the trial court resolved the contradictions in favor of the State. There is testimony to support the trial court's decision, and although the defendant continues to adhere to her claims, there is nothing in the record other than her testimony which establishes that the legal system misled her or that her contacts with Mr. West resulted in a denial of a fair trial.
A final argument made by the defendant is that the State failed to disclose adverse information about Trooper Donald Hedrick, one of the two troopers who interviewed the defendant and obtained the consent to search her vehicle.
It appears that Trooper Hedrick became the object of an internal State Police investigation while the defendant's trial was pending and that, at the time of trial, Trooper Hedrick was on paid administrative leave from the State Police. Some three to four weeks after the defendant's trial, Trooper Hedrick was discharged from the State Police. He subsequently appealed his dismissal. The charges against Trooper Hedrick arose from a set of facts totally unrelated to those in the present case.
The defendant essentially claims that the investigation of Trooper Hedrick and the fact that he had been suspended from the State Police were factors which potentially would have affected his credibility during trial. She argues that the State should have revealed the investigation and suspension to her prior to trial so that the information could have been available to her attorney during trial.
It appears that at the time Trooper Hedrick became involved in the defendant's case, Corporal Roby Pope was present with him and the defendant at the State Police barracks. Trooper Hedrick's testimony during the defendant's trial involved the obtaining of the consent to search from the defendant, the search, and the defendant's statements. The testimony of Trooper Hedrick was wholly corroborated at trial by the testimony of Corporal Roby Pope.
In this Court's view, even if Trooper Hedrick's credibility had been effectively impeached at trial because of the investigation concerning him and his suspension, the testimony of Corporal Pope would have stood. Additionally, the testimony of neither trooper was wholly necessary to convict the defendant. *213 The defendant's guilt was established by the testimony of co-conspirators, Richard Collins and Randy Highlander, and by other witnesses.
While the Court believes that the State should have revealed the investigation of Trooper Hedrick, the impeachment of Trooper Hedrick could not have affected the outcome of the trial beyond a reasonable doubt.
After reviewing the record and the questions raised in this case, the Court can find no reversible error. Accordingly, the judgment of the Circuit Court of Mingo County is affirmed.
Affirmed.
NOTES
[1] The court told the jury:
1. Murder of the first degree is when one person, with intent to kill, kills another person feloniously, unlawfully, willfully, maliciously, deliberately and premeditatedly.
The Court instructs the jury that murder in the first degree is also committed if the homicide occurs accidentally or otherwise during the commission or the attempt to commit arson, sexual assault, robbery or burglary. In such cases, the State is not required to prove malice or premeditation or that the defendant had any specific intent to kill the victim. This crime is called felony murder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/398637/ | 668 F.2d 22
82-1 USTC P 9145
UNITED STATES of America, Appellee,v.Gardner S. DRAPE, Defendant-Appellant.
No. 81-1284.
United States Court of Appeals,First Circuit.
Argued Oct. 8, 1981.Decided Jan. 14, 1982.
1
Burton E. Atkins, Cambridge, Mass., for appellant.
2
Robert D. Luskin, Atty., Dept. of Justice, Washington, D. C., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., and William C. Bryson, Atty., Dept. of Justice, Washington, D. C., were on brief, for appellee.
3
Before CAMPBELL and BOWNES, Circuit Judges, BONSAL, Senior District Judge.*
4
BONSAL, District Judge.
5
Appellant appeals from his conviction by a jury in the United States District Court for the District of Massachusetts of filing a false and fraudulent income tax return, 26 U.S.C. § 7206(1), and of filing a false claim against the United States, 18 U.S.C. § 287. On April 7, 1981 he was sentenced to six months' imprisonment and a fine of $5,000 on the tax count, and to one year's imprisonment and a fine of $5,000 on the false claim count. The sentencing judge suspended the prison sentences and the fines and appellant was placed on probation for a period of two years, conditioned on his making full payment of all taxes due within six months and on his performing, over the two-year probation period, at least 600 hours of "alternative work service."
6
In 1976 appellant received $215,678 from the sale of his stock in a family-owned fish processing business, Ell Vee Dee, Inc. In February 1977 appellant furnished his income figures for the calendar year 1976 to Theroux, a licensed public accountant and a social friend, as had been his practice for the past fifteen years. Theroux prepared appellant's 1976 income tax return, which showed a tax due of $81,109, and forwarded it to him on March 17, 1977. At about this time, appellant's brother-in-law recommended that appellant contact Garfinkle, an attorney, to review his tax situation. Garfinkle promoted a number of coal tax shelters. Appellant and his wife visited Garfinkle at his office on March 27, and appellant showed him the tax return which had been prepared by Theroux. Garfinkle informed appellant that he could put him into a coal tax shelter which would result in appellant's not having to pay any taxes for 1976 and which might result in a refund for taxes paid by him in prior years. In the course of the meeting, appellant signed several documents presented to him by Garfinkle, including papers relating to Garfinkle's two coal tax shelter partnerships, SJ and G&O, a promissory note in blank, a power of attorney, and an offeree representative disclosure note. At trial, appellant testified that when he signed these documents there were no dates on them and he did not observe that some of them required notarization. However, several of the documents which were received at trial were dated December 15, 1976 and were notarized. Garfinkle informed appellant during the meeting that his accountant, Shocker, would prepare appellant's 1976 Federal and State income tax returns to reflect his new investment in the coal tax shelters. Appellant's wife testified at the trial that she questioned Garfinkle about the legality of the transactions and that he assured both of them that they were legal.
7
Two days after appellant's meeting with Garfinkle, appellant's wife sent Garfinkle a check for $30,000, which was supplemented by a later payment of $45,000 after the Drapes received a tax refund.
8
Shortly after his meeting with Garfinkle, appellant received from the tax shelter partnerships federal income tax forms K-1, which they were required by law to furnish to each investor. The K-1s reflected substantial net operating losses for 1976 and the headings stated that appellant had entered the partnerships in 1976.
9
At Garfinkle's request, the K-1 forms together with the tax return prepared by Theroux were forwarded to Shocker, who then prepared a revised 1976 tax return for appellant. The revised tax return showed that the losses of the partnerships in 1976 ($514,194) more than offset appellant's taxable income. In the revised tax return, appellant claimed a refund of $58,542. Shocker also prepared a Form 1045 claiming a refund for all the federal income taxes paid by appellant from 1973 to 1975. On October 5, 1977 the completed documents were sent by Shocker to appellant, who signed them and filed them with the IRS. In November 1977, appellant and his wife received refunds totalling $114,000 for taxes paid by them from 1973 to 1976. They contacted Garfinkle, who directed them to send him an additional $45,000.
10
The testimony at trial indicated that although appellant had frequent contacts with Theroux during the spring, summer and fall of 1977, he never mentioned to Theroux his investment in the tax shelters, nor did he tell him that he had filed a revised tax return with resulting tax savings of over $100,000. Thereafter, appellant relied on Shocker to prepare his income tax returns for 1978 and 1979.
DISCUSSION
11
Appellant makes two points on his appeal. He contends that the evidence was insufficient to establish beyond a reasonable doubt that he acted with the requisite knowledge or intent under either 26 U.S.C. § 7206(1) or 18 U.S.C. § 287 and that therefore the district court should have granted his motion for an acquittal. He asserts that he did not know that the documents which he signed had later been backdated; that he knew nothing about tax shelters and that he relied on Garfinkle's professional advice.
12
Appellant's second point on appeal is that the district court erred in failing to grant judicial immunity to Garfinkle so that he could testify at the trial and, presumably, confirm appellant's testimony.
13
We conclude that the evidence at the trial was sufficient for the district judge to submit the case to the jury and for the jury to find the appellant guilty. Appellant only saw Garfinkle on one occasion, on March 27, 1977. Two days later, on March 29, his wife sent Garfinkle a check for $30,000. The documents had been backdated to 1976 because 1976 was the last year in which the coal tax shelter using non-recourse promissory notes were recognized. The tax return prepared by Theroux showed a tax payable by appellant of $81,109. The tax return prepared by Shocker through the use of the tax shelter showed a loss of $514,194 which appellant could carry back to 1973, 1974 and 1975 income. It is inconceivable that this raised no questions in appellant's mind. The record shows that although Shocker invited him to ask questions, he did not do so, nor did he question the backdating to 1976 of documents which he signed in 1977.
14
It is significant that throughout 1977 appellant met regularly with Theroux, his friend and financial adviser who had prepared his original 1976 return. He saw him monthly in connection with Theroux's auditing duties at the seafood company where appellant worked and they played golf occasionally. Appellant never mentioned to Theroux either that he had invested in tax shelters or that he had subsequently filed a 1976 tax return prepared by Shocker. Nor did he mention the substantial tax saving which he had obtained. Thereafter, appellant no longer used Theroux to prepare his returns, using Shocker for this purpose.
15
In considering the evidence, we must determine whether there is sufficient evidence from which reasonable persons could find appellant guilty beyond a reasonable doubt. United States v. Leach, 427 F.2d 1107, 1111 (1st Cir.), cert. denied, 400 U.S. 829, 91 S.Ct. 57, 27 L.Ed.2d 59 (1970). The evidence is to be evaluated in the light most favorable to the prosecution, with such inferences as may legitimately be drawn. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Indorato, 628 F.2d 711, 719 (1st Cir.), cert. denied, 449 U.S. 1016, 101 S.Ct. 578, 66 L.Ed.2d 476 (1980).
16
In order to sustain a conviction under 28 U.S.C. § 7206(1), the evidence must show beyond a reasonable doubt that the appellant acted willfully, with knowledge that his return was not correct in material respects. Appellant's signature on his return was sufficient to establish knowledge once it had been shown that the return was false. United States v. Romanow, 509 F.2d 26, 27 (1st Cir. 1974). For the purposes of 26 U.S.C. §§ 7201-7207, the term willfully "simply means a voluntary intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12, 97 S.Ct. 22, 23, 50 L.Ed.2d 12 (1976) (per curiam) (citations omitted). Intent may be established where a taxpayer "chooses to keep himself uninformed as to the full extent that (the return) is insufficient." Katz v. United States, 321 F.2d 7, 10 (1st Cir. 1963). We find that the evidence was sufficient for the jury to find that the appellant acted willfully.
17
Since the evidence showed that appellant filed a false tax return in order to obtain a tax refund to which he was not entitled, it follows that the signing and filing of the tax return constituted a false claim against the United States in violation of 18 U.S.C. § 287; United States v. Miller, 545 F.2d 1204, 1212 n.10 (9th Cir. 1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1549, 51 L.Ed.2d 774 (1977); United States v. Lopez, 420 F.2d 313 (2d Cir. 1969); Kercher v. United States, 409 F.2d 814 (8th Cir. 1969). Where a tax return is filed with the "guilty, actual knowledge that it was false," the jury may infer the requisite intent to defraud the government. United States v. Rifen, 577 F.2d 1111, 1113 (8th Cir. 1978).
18
Evidence indicating that appellant knew what he was doing includes the fact that he signed the return prepared by Shocker; that he had available to him copies of his subscriptions to the partnerships, all of which had been backdated in several places, and that he was sent copies of the K-1 forms which showed false dates for his entry into the partnerships. It taxes credulity that appellant, having met Garfinkle for the first time, would sign a succession of legal documents, including a blank promissory note, and agree to pay Garfinkle $30,000 in cash without knowing what he was doing. Appellant contends that he relied on the assurances of Garfinkle and Shocker that the deductions were legitimate. However, reliance here requires good faith and disclosure to Shocker of the actual date he executed the papers. United States v. Smith, 523 F.2d 771, 778 (5th Cir. 1975), cert. denied, 429 U.S. 817, 97 S.Ct. 59, 50 L.Ed.2d 76 (1976); United States v. Cox, 348 F.2d 294 (6th Cir. 1965). Appellant made no effort to inform or question Shocker about the backdating.
19
Appellant's second contention, that the court erred in refusing to grant judicial immunity to Garfinkle, needs little comment. At the time, Garfinkle was under indictment on a number of charges relating to tax shelters, including the specific transactions in which appellant was involved. The government was not prepared to have immunity granted because it would have jeopardized its case against Garfinkle. The district court properly concluded that the right to a fair trial was not denied appellant by the failure to grant immunity to Garfinkle. Both appellant and his wife testified, without objection, that Garfinkle had told them that the tax shelters were legal. The government did not comment upon Garfinkle's failure to testify, nor did it challenge directly appellant's testimony that Garfinkle had told him that the tax shelters were legal. Moreover, appellant's only support for his motion for a grant of immunity for Garfinkle was an affidavit from appellant's counsel averring that Garfinkle would confirm that he had told appellant and his wife that the tax shelters were legal. Appellant's counsel's affidavit was based on appellant's version of their conversation with Garfinkle and a statement by Garfinkle's attorney that, if compelled, Garfinkle would testify truthfully. This showing fails to support appellant's assertion that Garfinkle's evidence would have been exculpatory and was essential to his defense. Appellant did not have an absolute right to obtain immunity for Garfinkle since to do so would interfere with the exclusive authority of the prosecuting authorities to initiate criminal proceedings. See United States v. Batchelder, 442 U.S. 114, 124-25, 99 S.Ct. 2198, 2204, 60 L.Ed.2d 755 (1979); Ullmann v. United States, 350 U.S. 422, 431-34, 76 S.Ct. 497, 502-504, 100 L.Ed. 511 (1956). In United States v. Davis, 623 F.2d 188 (1st Cir. 1980) we held that a defendant has no general right to obtain immunity for a defense witness nor has the district court any general power to grant such immunity. We noted that the granting of such immunity is only appropriate if the right of a defendant to a fair trial has been denied. We found no violation of due process in Davis, nor do we find a violation here.
20
For the foregoing reasons, the judgment below is AFFIRMED.
*
Of the Southern District of New York, sitting by designation | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1564904/ | 34 So.3d 1 (2010)
COURTNEY
v.
BISHOP.
No. SC09-2362.
Supreme Court of Florida.
March 30, 2010.
Decision Without Published Opinion Review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564859/ | 34 So. 3d 1171 (2010)
J.B. HUNT TRANSPORT, INC.
v.
FORREST GENERAL HOSPITAL.
No. 2008-CA-02111-SCT.
Supreme Court of Mississippi.
May 20, 2010.
Morton W. Smith, David C. Dunbar, Ridgeland, attorneys for appellant.
R. Mark Hodges, Kimberly N. Howland, Jackson, attorneys for appellee.
EN BANC.
*1172 LAMAR, Justice, for the Court:
¶ 1. J.B. Hunt Transport, Inc. ("J.B. Hunt") filed suit against George E. McGee, M.D., and Forrest General Hospital ("FGH") asserting claims of negligence, medical malpractice, and common-law indemnity arising from the treatment of Melissa Hall, who was injured in an automobile accident by a tractor-trailer owned and operated by J.B. Hunt.[1] J.B. Hunt negotiated a settlement with Hall's estate and wrongful-death beneficiaries before filing the instant action. The trial court granted FGH's motion to dismiss, and J.B. Hunt appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On March 8, 2006, Melissa Hall was seriously injured in a motor-vehicle accident involving a tractor-trailer operated by J.B. Hunt. Hall was transported by ambulance to the emergency room at Forrest General Hospital, where she was diagnosed with a closed head injury, as well as other injuries. Hall subsequently was admitted to the intensive-care unit.
¶ 3. On March 11, doctors attempted unsuccessfully to wean Hall from a ventilator. On March 14, a spontaneous breathing trial proved unsuccessful, and Hall remained dependent on sedation and a ventilator.
¶ 4. On the morning of March 16, Hall underwent a tracheostomy to provide long-term access for the breathing tube utilized by the ventilator. However, no order was given that the tracheostomy tube be suctioned periodically. Over the next twelve hours, the tube was suctioned only twice, despite several notations that Hall had developed a severe, productive cough after insertion of the tube. At 10:00 p.m., having gone seven and one-half hours since the tube was last suctioned, Hall began coughing while being bathed by a nurse, dislodging the tube. Attempts to suction and reinsert the tube were unsuccessful, and Hall went into cardiopulmonary arrest. After failed attempts to resuscitate her, she was pronounced dead at 10:22 p.m.
¶ 5. After entering into a settlement agreement with Hall's estate and wrongful-death beneficiaries, J.B. Hunt filed the action at issue in this case, asserting claims of negligence, medical malpractice, and common-law indemnity, and averring that "the wrongful death of Melissa Hall arose distinctly and exclusively as a result of the conduct of the Defendants and not from any actions or omissions of Hunt." J.B. Hunt further asserted that it was "forced to pay as a matter of law and under duress a significant sum for the damages caused by the Defendants and did so as a result of formal claims by counsel for [Hall's] family." Finally, J.B. Hunt asserted that it had "an implied or common law indemnity claim under Mississippi law against the Defendants and, therefore, [had] standing to bring [the] action." J.B. Hunt sought damages as follows:
As a direct and proximate result of the Defendants' conduct, Plaintiff has paid additional consideration and is entitled to recover from the Defendants the value attributable to the following:
a. Melissa's additional pain and suffering on March 16, 2006, preceding her death;
b. Melissa's mental anguish on March 16, 2006, preceding her death;
*1173 c. Melissa's resulting medical expenses associated with the code and her death;
d. Melissa's funeral and burial expenses;
e. Melissa's life expectancy and loss of enjoyment of life;
f. Melissa's wrongful death; and
g. All elements of damage permitted by law and available under the Mississippi Code Annotated of 1972, as amended.
¶ 6. FGH moved to dismiss the complaint for failure to state a claim pursuant to Mississippi Rule of Civil Procedure 12(b)(6). The trial court granted the motion, finding that J.B. Hunt did not have standing to bring the action "based solely on its indemnity claim," as "`a claim for indemnity does not arise until there is legal liability to pay a judgment in favor of [the plaintiff.]'" (quoting Mississippi Transp. Comm'n v. Jenkins, 699 So. 2d 597 (Miss.1997)). The trial court further held that J.B. Hunt was not a beneficiary under the wrongful-death statute and, as such, "lacked standing to bring the claim upon which any right of indemnification depends...."
¶ 7. From this judgment, J.B. Hunt appeals, asserting: (1) that the trial court erred when it found that J.B. Hunt did not have standing to bring a common-law indemnity suit against FGH, and (2) that the trial court erred when it found that J.B. Hunt sought indemnity for severed aspects of a wrongful-death claim. Finding the first issue dispositive, we decline to address the second issue.
ANALYSIS
¶ 8. This Court employs a de novo standard when reviewing a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Rose v. Tullos, 994 So. 2d 734, 737 (Miss.2008) (citing Cook v. Brown, 909 So. 2d 1075, 1077-78 (Miss.2005)). Such a motion for failure to state a claim challenges the legal sufficiency of the complaint. Id. In order to affirm an order granting dismissal on a Rule 12(b)(6) motion, "[t]he allegations in the complaint must be taken as true, and there must be no set of facts that would allow the plaintiff to prevail." Wilbourn v. Equitable Life Assurance Soc'y of the U.S., 998 So. 2d 430, 435 (Miss.2008) (citing Ralph Walker, Inc., v. Gallagher, 926 So. 2d 890, 893 (Miss.2006)).
¶ 9. The question presented by this appeal is whether J.B. Hunt, a negligent tortfeasor in a motor-vehicle accident which resulted in serious injuries to Melissa Hall, can seek indemnity from a healthcare provider (FGH) whose subsequent negligent medical treatment of Hall, according to the allegations of the Complaint, caused Hall's death. We hold that, under the facts before us, an action for indemnity may not be brought and affirm the trial court's dismissal.
¶ 10. This Court has set forth the basis for a claim of indemnity as follows:
An obligation to indemnify may arise from a contractual relation, from an implied contractual relation or out of liability imposed by law. When one person is required to pay money which another person in all fairness should pay, then the former may recover indemnity from the latter in the amount which he paid, provided the person making the payment has not conducted himself in a wrongful manner so as to bar his recovery.
Bush v. City of Laurel, 215 So. 2d 256, 259-60 (Miss.1968) (emphasis added).
¶ 11. Further, this Court has said that:
Two critical prerequisites are generally necessary for the invocation of noncontractual *1174 implied indemnity in Mississippi: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured person; and (2) it must appear that the claimant did not actively or affirmatively participate in the wrong.
Home Ins. Co. v. Atlas Tank Mfg. Co., 230 So. 2d 549, 551 (Miss.1970) (emphasis added).
¶ 12. American Jurisprudence states the rule succinctly:
It should be noted that as a general rule, in the absence of an express contractual or statutory right to indemnity, a party may bring an action for common-law indemnification only if he or she is without fault. Common-law indemnity is not a fault-sharing mechanism.... One who is him or herself at fault is not due indemnity, because liability for indemnity exists only when the party seeking indemnity, the indemnitee, is free of fault and has discharged a debt that should be paid wholly by the indemnitor.
41 Am.Jur.2d Indemnity § 21 (2005) (emphasis added).
¶ 13. FGH argues that J.B. Hunt is a joint tortfeasor, and as such is not entitled to indemnity as there is "no right of indemnity between joint tortfeasors.... The implied common law indemnity cause of action provides a narrow exception to this rule, allowing a joint tortfeasor to recover from another joint tortfeasor if the tortfeasor asserting indemnity was not guilty of any active negligence ..."
¶ 14. J.B. Hunt responds by admitting its original negligence, but argues:
It is admitted that Hunt was actively negligent at the time of the accident, in that Hunt's driver caused the accident and injured Ms. Hall. However, Hunt's negligence was too far removed in time from the death of Ms. Hall, to have still been actively negligent at the time Ms. Hall died. Further, Hall had continually improved medically and was making a recovery. The medical evidence, as submitted at the trial court level and which must be taken as true, shows clearly that Ms. Hall would have survived with only mild to moderate disability, but for the separate negligent acts of FGH causing Hall's sudden death. These facts ... show that Hunt's negligence was remote enough to have become passive negligence at the time of FGH's negligent actions.
¶ 15. J.B. Hunt's liability stems from its admitted negligent acts, which resulted in serious injuries to Hall, forcing her to seek medical care and hospitalization. Obviously Hunt did not participate in the medical care and treatment of Hall, but it was responsible for the event which caused her to seek medical treatment at FGH. We reject Hunt's argument that it was guilty of only "passive negligence" in the death of Hall. In our opinion, the facts of this case could not support a finding that J.B. Hunt was "free of fault" or that it did not "actively or affirmatively participate in the wrong."
¶ 16. We find no authority in this state, nor does J.B. Hunt provide us with any, which would provide rights of indemnity in favor of an actively negligent tortfeasor. To the contrary, the cases in this state that have considered indemnity between tortfeasors have allowed recovery only when one party is liable merely "because of passive negligence in failing to remedy the defect or because of a non-delegable statutory duty." Bush v. City of Laurel, 215 So. 2d 256, 260 (Miss.1968) (allowed indemnity because the City was liable only for passive negligence); Long Term Care, Inc. v. Jesco, Inc., 560 So. 2d 717 (Miss.1990) (denied indemnity because Long Term Care was actively negligent).
*1175 ¶ 17. Moreover, while J.B. Hunt maintains that its cause of action is for indemnity, this is in fact an effort to recover contribution from a successive or subsequent tortfeasor. "It must be remembered that indemnity is an all or nothing proposition damage-wise, and hence should be an all or nothing proposition fault-wise. Apportionment of damages is not contemplated by it. That is the function of contribution." Transcon Lines v. Barnes, 17 Ariz.App. 428, 498 P.2d 502, 509 (1972). Recovery under these circumstances has not been adopted in this state either by statute or by decision of this Court. See Miss Code Ann. § 85-5-7(4) (Rev. 1999) (providing for contribution only among joint tortfeasors who act in concert, not among successive and distinct tortfeasors).
CONCLUSION
¶ 18. Based on the foregoing analysis, we find that the trial court did not err in granting Forrest General's motion to dismiss. Therefore, we affirm dismissal of the complaint by the trial court.
¶ 19. AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.
NOTES
[1] Dr. McGee was subsequently dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564873/ | 34 So. 3d 143 (2010)
M.R., a juvenile, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D09-1074.
District Court of Appeal of Florida, Third District.
April 21, 2010.
*144 Carlos J. Martinez, Public Defender, and Lisa M. Pisciotta, Ross C. Paolino and Nicolas Swerdloff, Special Assistant Public Defenders, for appellant.
Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
SCHWARTZ, Senior Judge.
The conduct of the appellant juvenile, a sixteen-year-old female, which consisted only of walking down the street in a "high prostitution area" at 9:30 in the evening[1], did not give rise to the founded or articulable suspicion of unlawful activity necessary to justify the Terry stop effected by the police when, after engaging in a consensual and uneventful conversation, they placed her in their patrol car pending a "record search." See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1993); Smith v. State, 592 So. 2d 1206 (Fla. 2d DCA 1992); State v. Hoover, 520 So. 2d 696 (Fla. 4th DCA 1988). Because they were thus not then acting in the lawful execution of their duties as Section 843.02, Florida Statutes (2008)[2] requires, she was not guilty, as a *145 matter of law, of resisting an officer under that statute by trying to escape the confinement.[3] See C.H.C. v. State, 988 So. 2d 1145 (Fla. 2d DCA 2008); Davis v. State, 973 So. 2d 1277 (Fla. 2d DCA 2008); E.A.B. v. State, 964 So. 2d 877 (Fla. 2d DCA 2007). See also Tillman v. State, 934 So. 2d 1263, 1271 (Fla.2006) and cases cited. The adjudication of delinquency entered on that basis is therefore reversed and the cause remanded with directions to dismiss the petition.
Reversed and remanded.
NOTES
[1] The fact that M.R. was known to one of the officers as having been involved in prostitution on a previous occasion does not affect the issue of whether her conduct at the time of the incident justified the stop. See Parsons v. State, 825 So. 2d 406 (Fla. 2d DCA 2002); Smith v. State, 592 So. 2d 1206 (Fla. 2d DCA 1992); Johnson v. State, 610 So. 2d 581 (Fla. 1st DCA 1992).
[2] "Whoever shall resist, obstruct, or oppose any officer...; member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree ..." (emphasis supplied)
[3] After the search showed that she was a "runaway," she exclaimed "I'm not going to go back" and attempted to leave the vehicle. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564854/ | 67 F.2d 585 (1933)
CARGILE et al.
v.
NEW YORK TRUST CO.
No. 9789.
Circuit Court of Appeals, Eighth Circuit.
November 18, 1933.
Rehearing Denied December 6, 1933.
Walter L. Pope, of Pocahontas, Ark., and Roy D. Campbell, of Forrest City, Ark. (Hal L. Norwood, of Little Rock, Ark., on the brief), for appellants.
J. W. House, of Little Rock, Ark. (Eugene R. Warren, of Little Rock, Ark., on the brief), for appellee.
Before GARDNER, WOODROUGH, and VAN VALKENBURGH, Circuit Judges.
GARDNER, Circuit Judge.
This is a suit in equity in which the appellee as plaintiff below asked for the appointment of a receiver to take charge of the De Valls Bluff tollbridge, and for general relief. The parties will be referred to as they were designated in the lower court.
The plaintiff is a corporation, organized under the laws of New York, and is a trustee for bondholders designated in a deed of trust executed by the White River Bridge Corporation, former owner of the De Valls Bluff tollbridge, to secure a bond issue in the aggregate sum of $500,000. The defendants, other than the defendant Fred Watson, are members of and constitute the state highway commission of the state of Arkansas, and as such maintain and operate the tollbridge for highway purposes, and the defendant Fred *586 Watson is state revenue commissioner, and as such officer collects the tolls paid by the traveling public for the use of the bridge.
The bill of complaint in substance alleges that the state highway commission had taken over the tollbridge on the 18th of August, 1930, pursuant to a judgment in a condemnation proceeding brought against the White River Bridge Corporation, the then owner of the bridge, by the state of Arkansas, a copy of the judgment being attached to and made a part of the bill of complaint; that under the terms of the deed of trust securing the bonds issued by the White River Bridge Corporation, a payment of $17,500 became due on the 28th day of April and the 28th day of October of each year succeeding the date of the deed of trust, such payments to be used in paying interest due May 1st and November 1st, respectively, of each year on the outstanding bonds, the remainder of the payments to be used in retiring bonds; that since taking over the bridge the state highway commission had collected approximately $200,000 in tolls; that by act of the Legislature of the state of Arkansas for the year 1933, authority to make collections of tolls was vested in the revenue commissioner; and that the Legislature failed to make any appropriation for the payment of the obligations existing against the tollbridges in the state.
It appears from the judgment in condemnation that the state of Arkansas assumed the balance of the bonded indebtedness due on the bridge in full payment for the bridge and all franchises, rights of way, and other properties connected with the bridge. On the date of the entry of the judgment in condemnation, the indebtedness against the bridge was $463,000. This judgment contains provision "that the State of Arkansas shall, in accordance with the terms of the above described deed of trust, assume and pay to the bondholders the outstanding bonds, aggregating $463,000.00, and interest"; that the defendant White River Bridge Corporation recover from the plaintiff the state of Arkansas the sum of $1 damages, which, together with the assumption by the state of the bonded indebtedness, "shall be in full payment and compensation of the above described bridge, franchises, rights of way, and other properties." The judgment also recites that the said properties "be and the same are hereby condemned for public use, and the title thereto divested out of said defendant, the White River Bridge Corporation, and invested in the State of Arkansas, for use and operation by its Highway Commission in such manner and under such terms as the said Highway Commission may determine."
It is also alleged in the bill of complaint that the deed of trust contains provision to the effect that, "If default shall have happened and shall be continued, a receiver may be appointed to take possession of and to operate, maintain and manage the trust estate, or any part thereof"; that the "deed of trust further provided that on or before the 1st day of March of each year 50% of the net tolls collected from the operation of the bridge up to an amount so that the total annual requirements to be paid by the said bridge corporation need not exceed the total sum of $52,000.00, said fund to be used as a sinking fund for the purpose of retiring said bonds in the manner specified in said deed of trust"; that the trustee was authorized to bring suit in the event of default in any of the payments provided for therein. It is further alleged that unless a receiver be appointed to take possession of the tollbridge, all tolls will be collected and spent by the state, in violation of the provisions of said trust agreement; that plaintiff has no adequate remedy at law; and that unless a receiver be appointed to take charge of the property and disburse the tolls in accordance with the order of the court, plaintiff and the bondholders will suffer irreparable injuries. Foreclosure of the deed of trust is not sought, but plaintiff prays for the appointment of a receiver to take charge of the bridge, with authority to collect all tolls, and to operate the bridge under direction of the court, and deposit all funds with the register of the court, and expend the same on the order of the court, and that the court restrain the interference of the receiver by any person, firm, or corporation, either public or private, and for general relief.
To this bill of complaint the defendants filed a motion to dismiss, upon the grounds, among others, that: (1) It does not state facts sufficient to constitute a cause of action against the defendants, or either of them; (2) that it fails to show that there was no adequate remedy afforded the plaintiff; (3) that it shows on its face that it is a suit against the state of Arkansas in its sovereign capacity, and cannot, therefore, be maintained.
On hearing, the court denied the motion to dismiss and entered its decree appointing two receivers, "for the purpose of collecting all tolls and emoluments derived from the De Valls Bluff Bridge, and the said receivers are *587 hereby authorized and directed to take charge of said bridge for said purpose of collecting the said tolls and emoluments, and are authorized and directed to collect all tolls now authorized to be collected by law or by rules and regulations of the Highway Department, and deposit the same daily as directed by this court, and to hold all such collections subject to the further order of this court with respect thereto.
"It is further ordered and decreed that the State Highway Commission and each of the individual members composing the same, their officers, agents and employees, the State Revenue Commissioner, his agents and employees, and all other persons, be, and they are hereby, restrained and enjoined from in any manner interfering with the receivers in the collection of said tolls."
From this decree defendants prosecute this appeal, urging as grounds for reversal: (1) That the appointment of a receiver was the ultimate and only relief sought by the complaint, and the court was without jurisdiction to appoint receivers, except as an incident to some other ultimate relief; (2) that the plaintiff had an adequate remedy at law in the courts of the state of Arkansas for the collection of the interest due on the bonds, and for the enforcement of the terms of its deed of trust; and (3) that this was a suit against the state of Arkansas, interfering with the exercise of one of its sovereign powers, and the federal court was without jurisdiction to hear and determine the matter.
As this last contention goes to the jurisdiction of the court to enter the judgment appealed from, we shall consider it first, because if the court was without jurisdiction, that is determinative of the case, and the other issues presented need not be considered.
The Eleventh Amendment to the Constitution provides that the judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by citizens of another state. Prior to the adoption of this amendment, the judicial power was held to extend to a suit by a citizen of one state against another state. Chisholm v. Georgia, 2 Dall. 419, 1 L. Ed. 440. This case led to the adoption of the Eleventh Amendment, since which time the federal judicial power does not extend to a suit brought against a state, without its consent, by a citizen of another state, even in cases arising under the Constitution or laws of the United States. Carolina Glass Co. v. South Carolina, 240 U.S. 305, 36 S. Ct. 293, 60 L. Ed. 658; Murray v. South Carolina, 213 U.S. 174, 29 S. Ct. 465, 53 L. Ed. 752; Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S. Ct. 458, 53 L. Ed. 742; Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842; Ex parte New York, 256 U.S. 490, 41 S. Ct. 588, 65 L. Ed. 1057; Pennoyer v. McConnaughy, 140 U.S. 1, 11 S. Ct. 699, 35 L. Ed. 363; Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216; Cunningham v. Macon & B. R. Co., 109 U.S. 446, 3 S. Ct. 292, 609, 27 L. Ed. 992; Louisiana v. Jumel, 107 U.S. 711, 2 S. Ct. 128, 27 L. Ed. 448; Hopkins v. Clemson Agri. College, 221 U.S. 636, 31 S. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243; Smith v. Reeves, 178 U.S. 436, 20 S. Ct. 919, 44 L. Ed. 1140; State Highway Commission v. Utah Constr. Co., 278 U.S. 194, 49 S. Ct. 104, 73 L. Ed. 262; O'Connor v. Slaker (C. C. A. 8) 22 F.(2d) 147; Hertz v. Knudson (C. C. A. 8) 6 F.(2d) 812.
It is contended on behalf of the appellee, however: First, that this is not a suit against the state of Arkansas; and, second, that even if it should be held to be such a suit, that the state has consented that it may be so sued.
The Eleventh Amendment limits the jurisdiction of federal courts only in respect to those cases in which the state is a real party in interest. Hopkins v. Clemson Agri. College, 221 U.S. 636, 31 S. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243; Lincoln County v. Luning, 133 U.S. 529, 10 S. Ct. 363, 33 L. Ed. 766; Ex parte Ayers, 123 U.S. 443, 8 S. Ct. 164, 31 L. Ed. 216. It does not limit the jurisdiction over suits against state officers or agents. Martin v. Lankford, 245 U.S. 547, 38 S. Ct. 205, 62 L. Ed. 464; Johnson v. Lankford, 245 U.S. 541, 38 S. Ct. 203, 62 L. Ed. 460; Caldwell v. Sioux Falls Stock Yards Co., 242 U.S. 559, 37 S. Ct. 224, 61 L. Ed. 493; Pitney v. Washington, 240 U.S. 387, 36 S. Ct. 385, 60 L. Ed. 703; Tanner v. Little, 240 U.S. 369, 36 S. Ct. 379, 60 L. Ed. 691; Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60 L. Ed. 131, L. R. A. 1916D, 545, Ann. Cas. 1917B, 283; Harrison v. St. Louis & S. F. R. Co., 232 U.S. 318, 34 S. Ct. 333, 58 L. Ed. 621, L. R. A. 1915F, 1187; Reagan v. Farmers' L. & T. Co., 154 U.S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014. Thus a suit may be maintained to restrain an officer or agent of a state, acting under a statute which is void because in violation of the Constitution of the United States, or otherwise violative of constitutional rights. Reagan v. Farmers' L. & T. Co., 154 U.S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; Looney v. Crane Co., 245 U.S. 178, 38 S. Ct 85, 62 L. Ed. 230; Louisville *588 & N. R. Co. v. Greene, 244 U.S. 522, 37 S. Ct. 683, 61 L. Ed. 1291, Ann. Cas. 1917E, 97; Hopkins v. Clemson Agri. College, 221 U.S. 636, 31 S. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243; Gunter v. Atlantic Coast Line R. Co., 200 U.S. 273, 26 S. Ct. 252, 50 L. Ed. 477; Herndon v. Chicago, R. I. & P. R. Co., 218 U.S. 135, 30 S. Ct. 633, 54 L. Ed. 970; Western Union Tel. Co. v. Andrews, 216 U.S. 165, 30 S. Ct. 286, 54 L. Ed. 430; Old Colony Trust Co. v. City of Seattle, 271 U.S. 426, 46 S. Ct. 552, 70 L. Ed. 1019.
The mere fact, therefore, that the defendants are officers or agents of the state, does not in itself place them beyond the reach of equitable power. Immunity from suit is an attribute of sovereignty which cannot be invoked by public officers when sued for their own wrongful acts, even though such acts might be committed under color of an unconstitutional statute. Individual officers of a state do not constitute a privileged class, but are amenable to the law, and they cannot interpose the shield of the Eleventh Amendment. If, however, the officer is merely a nominal defendant, and the state is the real party in interest, then the suit is in substance one against the state, and cannot be maintained. Carolina Glass Co. v. South Carolina, 240 U.S. 305, 36 S. Ct. 293, 60 L. Ed. 658; Farish v. State Banking Board, 235 U.S. 498, 35 S. Ct. 185, 59 L. Ed. 330; Lankford v. Platte Iron Works Co., 235 U.S. 461, 35 S. Ct. 173, 59 L. Ed. 316; Hopkins v. Clemson Agri. College, 221 U.S. 636, 31 S. Ct. 654, 55 L. Ed. 890, 35 L. R. A. (N. S.) 243; Cunningham v. Macon & B. R. Co., 109 U.S. 446, 3 S. Ct. 292, 300, 609, 27 L. Ed. 992; Christian v. Atlantic & N. C. R. Co., 133 U.S. 233, 10 S. Ct. 260, 264, 33 L. Ed. 589.
As has been observed, the title to the tollbridge was by the judgment in condemnation vested in the state of Arkansas. It became a part of the highway system of the state. The state was in the sole and exclusive possession of it. True, it held this possession through certain officers and agents who were by law charged with the duty of operating the property. Their possession, however, was the possession of the state, and it is apparent that the object of the suit was to deprive the state of that possession and impound the income from the tolls, and thereby directly interfere with the possession of the property owned and possessed by the state in its sovereign capacity. The officers were, therefore, mere nominal parties, and the state was the real party in interest; in fact, as the owner and in possession of this property, the state was a necessary party to the maintenance of such a suit.
In Cunningham v. Macon & B. R. Co., supra, the foreclosure of a mortgage securing certain bonds was sought. Both possession and title to the property rested in the state of Georgia, and the suit was brought against the Governor and trustees of the state and certain private parties. In the course of the opinion in that case, the court said:
"In the case now under consideration the state of Georgia is an indispensable party. It is in fact the only proper defendant in the case. No one sued has any personal interest in the matter, or any official authority to grant the relief asked.
"No foreclosure suit can be sustained without the state, because she has the legal title to the property, and the purchaser under a foreclosure decree would get no title in the absence of the state. The state is in the actual possession of the property, and the court can deliver no possession to the purchaser. The entire interest, adverse to plaintiff, in this suit is the interest of the state of Georgia in the property, of which she has both the title and possession."
In Christian v. Atlantic & N. C. R. Co., supra, the state was in possession of property on which it was sought to foreclose a lien. After quoting from Cunningham v. Macon & B. R. Co., supra, the court said:
"These remarks are strikingly applicable to the present case. The state of North Carolina is the only party really concerned. The whole proceeding is virtually against her. The object of the suit is to get possession of her property; to sequester her dividends, if any there may be, and to compel the payment of them to the complainants; to seize and sell her stock in the railroad, stock of which she is in sole possession. Be it true that the bondholders have a lien on said dividends and stock, it is not a lien that can be enforced without suit, and that a suit against the state. * * *
"We think that the state is an indispensable party to any proceeding in equity in which its property is sought to be taken and subjected to the payment of its obligations; and that the present suit is of that character, and cannot be sustained."
We are, therefore, of the view that this suit is in substance one against the state of Arkansas, and hence cannot be maintained *589 unless, as claimed by the plaintiff, the state has given its consent to the maintenance of this suit.
Immunity from suits in the federal courts under the Eleventh Amendment is a personal privilege which may be waived in a case otherwise within the jurisdiction of the court.
The argument of plaintiff is based upon Act No. 2, p. 2, of the Acts of Arkansas (Ex. Sess.), approved October 3, 1928, which reads in part as follows: "Section 1. Suits against the State Highway Commission, the State Highway Note Board, the members or any member of either, or against any State officer, involving any act done or proposed to be done in the administration of the State Highway Department, or of any law pertaining to the State Highway system, shall be brought only at the seat of government, in Pulaski County."
This suit was brought in the United States District Court for the Eastern District of Arkansas, Western Division, which embraces Pulaski county, and if the above-quoted statute amounts to a consent to a suit against the state, then the lower court had jurisdiction.
The Constitution of Arkansas, section 20, article 5, provides that, "The State of Arkansas shall never be made defendant in any of her courts."
The Supreme Court of Arkansas has had frequent occasion to consider the relation of this provision of the Constitution to the above-quoted statute. These decisions left the matter as to whether such a suit as this could be maintained in grave doubt. Arkansas State Highway Commission v. Dodge, 186 Ark. 640, 55 S.W.(2d) 71; Bull v. Ziegler, 186 Ark. 477, 54 S.W.(2d) 283; Baer v. Arkansas State Highway Commission, 185 Ark. 590, 48 S.W.(2d) 842; Campbell v. Arkansas State Highway Commission, 183 Ark. 786, 38 S.W.(2d) 753; Arkansas State Highway Commission v. Dodge, 181 Ark. 539, 26 S.W. (2d) 879.
A very recent decision of the Supreme Court of Arkansas, however, has removed this matter from the realm of doubt. In the case of Fred Watson, Revenue Commissioner, Petitioner v. Frank H. Dodge, Chancellor of Pulaski Chancery Court, and W. E. Lenon, Receiver, Respondents, 63 S.W.(2d) 993, 994 (not yet reported [in State Report]), handed down since the trial of this suit in the lower court, the Attorney General of the state, in behalf of Fred Watson, state revenue commissioner, sought a writ of prohibition against the chancellor of the Pulaski chancery court, and W. E. Lenon, theretofore appointed receiver, in a certain cause therein pending. The nature of the suit against the prosecution of which a writ of prohibition was sought, was very similar to the present suit, and involved the same property. In the course of the opinion, the court, among other things, said:
"On the threshold of this controversy, we are met with the contention that the suit pending in the Pulaski county chancery court is one, in effect, against the state, and cannot be maintained.
"On behalf of respondent, it is insisted, first, that the suit is not one against the state, and, secondly, that, if so, it may be maintained, the state having expressly consented thereto by legislative enactment."
After holding that the suit was, in effect, one against the state of Arkansas, the court addressed itself to the contention that the state had given its consent to the maintenance of suits against itself, and resolves that question against the contention of respondent, definitely holding that the state had not, by the enactment of the above-quoted statute or otherwise, given consent to the maintenance of a suit against itself.
This construction of the Arkansas statute and Constitution is, of course, binding on this court. City of Campbell v. Arkansas-Missouri Power Co. (C. C. A. 8) 55 F.(2d) 560; Wabash R. Co. v. City of St. Louis (C. C. A. 8) 64 F.(2d) 921; E. C. Warner Co. v. W. B. Foshay Co. (C. C. A. 8) 57 F.(2d) 656.
Having held in the instant case that the suit is one against the state, the jurisdiction of the federal court must fail, even though the state of Arkansas had waived its immunity and consented to be sued. The suit being, in effect, one against the state, the officers named are simply nominal parties. Jurisdiction is based upon diverse citizenship. A state, however, is not a citizen, and a suit between a state and a citizen or a corporation of another state is not one between citizens of different states, and hence the federal court has no jurisdiction, unless the suit arises under the Constitution, laws, or treaties of the United States. There is here no diversity of citizenship between the real parties in interest, the state and the New York Trust Company, as trustee, and no other ground of jurisdiction is asserted. State Highway Commission v. Utah Construction Co., 278 U.S. 194, 49 S. Ct. 104, 73 L. Ed. 262; Postal *590 Teleg. Cable Co. v. Alabama, 155 U.S. 482, 15 S. Ct. 192, 39 L. Ed. 231; Minnesota v. Northern Securities Co., 194 U.S. 48, 24 S. Ct. 598, 48 L. Ed. 870.
The judgment appealed from is, therefore, reversed, and the cause remanded to the lower court, with directions to dismiss the suit for want of jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565070/ | 55 F.2d 468 (1932)
ROWE
v.
HOLTZ.
HOLTZ
v.
ROWE.
Patent Appeals Nos. 2891, 2892.
Court of Customs and Patent Appeals.
February 8, 1932.
O. H. Eschholz, of East Pittsburgh, Pa. (R. E. Marine and O. B. Buchanan, both of Pittsburgh, Pa., Wesley G. Carr, of East Pittsburgh, Pa., and Jo Baily Brown, of Pittsburgh, Pa., of counsel), for appellants.
Charles E. Tullar, of Schenectady, N. Y. (Alex D. Salinger, of Boston, Mass., and Russell A. Warner, of Schenectady, N. Y., of counsel), for appellee.
Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.
BLAND, Associate Judge.
The appeals at bar are both from a decision by the Board of Appeals of the United States Patent Office in an interference in which priority of invention was awarded to Holtz as to counts 3 and 6, and to Rowe as to counts 1, 2, 4, and 5. Holtz appealed from the decision of the Board awarding to Rowe priority of invention of the subject-matter of counts 1, 2, 4, and 5, of which count 1 is illustrative, and follows: "1. A single-phase induction motor comprising a stator member having split poles and shading coils on the trailing sections of said split poles, and a rotor member comprising a magnetizable core member having open slots providing a larger number of poles than said stator poles and a squirrel-cage winding comprising conductors disposed in said rotor slots, the parts being so designed that the rotor poles lock into synchronism with the stator poles at a sub-synchronous speed."
Rowe appealed from the same decision of the Board in the same interference, which awarded priority of invention to Holtz of the subject-matter of counts 3 and 6, of which count 3 is illustrative and follows: "3. An induction reaction motor having a salient pole primary member and a salient pole secondary member, an induction motor secondary winding on said secondary member, the salient poles of said secondary member constituting a reaction motor secondary having a greater number of poles than the primary member said secondary member being so designed *469 that the reaction motor torque at the synchronous speed corresponding to the pole number of the secondary is in excess of the induction motor torque at said speed, whereby said motor is capable of simultaneously operating as an induction motor and a reaction motor at a synchronous speed corresponding to the number of poles of the reaction motor secondary."
The invention involved relates to what is known as subsynchronous electric motors, used in connection with operating time switches, clocks, and different kinds of timing devices, which motors constituted the subject-matter involved in interference No. 55,103, decided by this court concurrently herewith in patent appeal No. 2890, 55 F.(2d) 465.
While the three appealed cases have been separately briefed, there is but one record, and the same testimony of the respective parties has been filed in both interferences, and is relied upon to prove the respective contentions of the parties. Both appeals in the instant interference will be decided in one opinion.
In appeal No. 2890, interference No. 55,103, there were involved an application of Rowe filed April 29, 1922, and an application of Holtz which was filed October 1, 1921. There, Rowe was the junior party. The present interference involves the same application of Rowe but an application of Holtz filed December 18, 1923, which later application of Holtz relates to the same general kind of motor as his former application, but is directed particularly to certain structural features which, for the purposes of this decision, may be regarded as not disclosed or claimed in the first application. Holtz is the junior party in this interference. The fact that one party is senior in one interference and junior in the other interference apparently accounts for the declaration of two interferences.
In this interference, unlike the companion interference, the decisions of the Examiner of Interferences and the Board concur upon each of the issues decided. The Examiner of Interferences and the Board gave Holtz a date not later than October 27, 1919, as the date of conception, and April 8, 1921, as the date of reduction to practice, of the invention of counts 3 and 6, and November 14, 1921, as the date of conception and reduction to practice of invention of counts 1, 2, 4, and 5. The Examiner of Interferences gave Rowe October 27, 1921, as the date of conception and reduction to practice of all the counts, and on the basis of these dates held that Holtz was the first to conceive and reduce to practice the invention involved in counts 3 and 6, and that Rowe conceived and reduced to practice the invention involved in counts 1, 2, 4, and 5, prior to Holtz' date of conception. The Board of Appeals, without discussing the questions at length, agreed with the Examiner of Interferences in his interpretation of the counts, and in the dates awarded to the parties for conception and reduction to practice, and in his award of priority of invention.
We will first dispose of the appeal in which Holtz is appellant.
In this court it is urged by Holtz that he is entitled to a date of conception for counts 1, 2, 4, and 5 (which were awarded to Rowe), of June, 1919, or at least as early as October 31, 1919, and bases his argument chiefly upon Holtz' Exhibit 1, which consists of drawings and notes dated June 15, 1919, which, he states, shows a four-pole, squirrel-cage rotor, meeting the requirement of the counts. He contends that, when it was shown that he made this sketch and explained it to one Anderson, he had proved conception.
It will be noticed that in the companion interference, No. 55,103, Rowe was claiming a date for his conception of the invention involved in that interference which was prior to August 11, 1919, when he had used an aluminum cup rotor. In that interference, Holtz did not need to claim an earlier date than that allowed him by the Board, October 27, 1919, unless Rowe was given his earlier claimed date. In that case, however, Holtz did make claim to June 15, 1919, for his date of conception in event Rowe was given his earliest claimed date. The court did not find it necessary to go into the question as to whether or not Holtz was entitled to June 15, 1919, since it did not give Rowe his earliest claimed date.
In the case at bar, if Holtz wins his appeal as to counts 1, 2, 4, and 5, he not only must be allowed the early date claimed, but it must also be held that he was diligent from a time just prior to Rowe's conception (October 27, 1921), until November 14, 1921, which is the date of reduction to practice by Holtz.
The Examiner of Interferences in his decision in this interference, with respect to Exhibit 1 and the early claimed date of conception of Holtz, said: "The sketch (Exhibit 1) which was drawn by Holtz for Anderson on June 15, 1919, does not prove that Holtz was in complete possession of the invention defined in counts 3, 4, 5 and 6, as alleged by Holtz, for the same reason that said sketch *470 does not amount to complete conception of counts 1 to 6 and 8 to 13 of the companion interference and as pointed out therein."
In the companion interference, No. 55,103, above referred to, the Examiner of Interferences discussed Holtz' Exhibit 1 and Exhibit A, and held against Holtz on his earliest claimed date of conception, and said:
"Holtz testified that he is an electrical engineer and was chief engineer of the Sangamo Electric Co. at the time the invention involved herein was conceived. The circumstances incident to this conception occurred in connection with the development of a KVA measuring device which required the use of a small self-starting synchronous motor. Holtz built a small synchronous motor (Exhibit A) for the equipment. This motor was tested by Holtz and an assistant named Anderson and it was found to be neither self-starting nor synchronous. The rotor of the first motor was bi-polar and upon its failure to start and to come up to synchronous speed Holtz drew a sketch (Exhibit 1) for Anderson on June 15, 1919, of a four-pole squirrel-cage rotor to be built up of soft iron laminations and to be used in the original stator of Exhibit A. Holtz was of the opinion that the data taken on the original structure indicated that such a rotor would probably operate satisfactorily. This rotor, however, was never constructed. * * *
"Holtz contends that the disclosure of Exhibit 1 establishes conception as of that date of all the counts here involved except count 7. A complete conception as defined in an issue of priority of invention is matter of fact and must be clearly established by proof. It is not clear that Holtz at the time he disclosed Exhibit 1 to Anderson had a complete concept of the subject matter of the counts in issue. In answer to cross-questions 145 and 146 Holtz stated that he considered that a hardened steel star disc becoming permanently magnetized was an important or essential feature of the sub-synchronous motor design there under consideration. The motor, under consideration in XQ's 145 and 146, is not the same as the motor shown in Exhibit 1 which is being considered here but, in view of the above answer, it is believed that Holtz should have shown either, that it was not necessary to construct the rotor of the motor in Exhibit 1 of hardened steel, or, if a rotor were constructed of soft iron as indicated in Exhibit 1, it would function at least to some extent. In other words, it is not clearly established that if a rotor were constructed as disclosed in Exhibit 1 and inserted in the stator of Exhibit A, the structure unquestionably would be an operative device. Hence it does not establish conception of any of the counts. Where performance of the device is dependent on the material, the conception is not complete until the right material is ascertained."
In that interference it was not necessary for the Board to pass upon this evidence, inasmuch as it reversed the Examiner of Interferences on the early conception date given Rowe.
In the present interference, the Board of Appeals affirmed the Examiner of Interferences in not allowing Holtz the early date of conception based upon Exhibit 1.
It is argued by Holtz that the tribunals' findings against him on his claim for June 15, 1919, as the date of conception, result from a misunderstanding of the testimony or from the fact that they completely ignored the same. Holtz claims the testimony shows definitely that a hard steel rotor was not necessary for the proper operation of the motor, and that soft steel was preferred, and that at any rate neither the counts in interference nor either of the applications are in any way restricted to hard material. It is argued that the exhibits referred to are only relied upon for conception and not for reduction to practice, and that the holding of the Examiner of Interferences that a rotor constructed as is shown in Exhibit 1, and inserted in the stator of Exhibit A, would not be an "operative device," is holding Holtz to an operative test which is required in reduction to practice, but which is not required for conception.
With respect to this feature of the case, we are of the opinion that the exhibit and the explanation of the same to Anderson would not afford sufficient evidence of conception of the invention of the counts at bar, if, when the rotor had been constructed in accordance with such teachings and inserted in the stator of Exhibit A, it failed to function under such circumstances as are shown in this case. If something else had not been conceived and done which was not then within the contemplation of the inventor, it is obvious that the invention in controversy would not have been produced. As to whether Holtz, in June, 1919, had fully performed the mental part of the invention by conceiving a device responding to the counts which, when constructed, would operate in the manner provided by the counts, we are constrained to be guided in our conclusion by the concurring findings of the tribunals below.
The question involves highly technical matters of electrical engineering, and we cannot *471 say that the tribunals below were clearly in error in their findings. In re Wietzel et al., 39 F.(2d) 669, 17 Cow. C. P. A. 1079, 1082; Gleason v. Dosch et al., 39 F.(2d) 687, 17 Cow. C. P. A. 1012. Furthermore, it seems to us that, if Holtz had a full conception of a motor responding to the counts at bar in June, 1919, he would not have embarked upon the invention and construction of the star-plate rotor upon which he was awarded priority in the companion interference case.
Conception is defined in Robinson on Patents, § 376, as follows: "The conception of the invention consists in the complete performance of the mental part of the inventive act. * * * All that remains to be accomplished, in order to perfect the art or instrument, belongs to the department of construction, not creation. It is thus the formation, in the mind of the inventor, of a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice."
In Mergenthaler v. Scudder, 11 Ohio App. D. C. 264, 279, with reference to conception, the court said: "If drawings be exhibited and relied on, as evidence of the conception of the invention, they must show a complete conception, free from ambiguity or doubt, and such as would enable the inventor or others skilled in the art to reduce the conception to practice without any further exercise of inventive skill."
While no authorities based upon a state of facts identical with those at bar have been found, we think Glidden v. Noble, 5 Ohio App. D. C. 480; Mergenthaler v. Scudder, supra; Appert v. Schmertz, 13 Ohio App. D. C. 117; and Deering v. Winona, 155 U.S. 286, 301-302, 15 S. Ct. 118, 39 L. Ed. 153, support the view that Holtz did not conceive the invention involved in the counts at bar in June, 1919.
Since Rowe was first to conceive and first to reduce to practice the counts in issue in this appeal, it is not necessary to consider the diligence of Holtz, and the Board of Appeals properly awarded priority to Rowe therein.
We will now take up the appeal of Rowe, in the same interference, No. 55,104, from the action of the Board of Appeals in awarding priority to Holtz in the invention of counts 3 and 6.
Both of the counts originated in the Holtz application and the limitations and particular structure involved in this appeal are, we think, sufficiently set out in the claims.
The Examiner of Interferences held that Holtz conceived on October 27, 1919, and reduced to practice April 8, 1921. Rowe was given October 27, 1921, as the date for both conception and reduction to practice. As will be noted in the statement of the case, supra, as to counts 3 and 6 Holtz was held to have conceived the invention and reduced the same to practice before Rowe had conceived the same.
In view of our holding in appeal No. 2890, the only issue involved in this interference is the interpretation of the counts. If the concurring tribunals below have correctly interpreted the counts, their action in awarding priority must be approved.
The character of the claims with reference to limitations and lack of limitations is referred to and discussed in the opinion of the Examiner of Interferences. The views of the Examiner of Interferences were approved by the Board of Appeals. The Board said: "We agree with the examiner of interferences that counts 3 and 6 are broadly worded and that Holtz is entitled to October 27, 1919, for conception of counts 3 and 6 for reasons similar to those upon which we held Holtz entitled to this date for conception of certain counts in the companion interference. The successful tests of the star-plate motor on April 8, 1921, constitutes a reduction to practice of counts 3 and 6."
Since we approve of what the Examiner has said with reference to the character of the claims and the interpretation they are to be given, we do not feel called upon to further comment on this phase of the case.
The date of October 27, 1919, which was awarded to Holtz for conception, is the conception date awarded Holtz in the companion interference for all the counts there involved, except count 7, and we think on that date, which is the date of conception of the star-plate motor, he conceived the invention of the counts herein involved. When this fact is conceded, there is no question as to who is entitled to priority.
The decision of the Board of Appeals, awarding priority of invention to Holtz as to counts 3 and 6 in this interference, was proper and should be affirmed.
We hold that the decision of the Board of Appeals awarding priority of invention in counts 1, 2, 4, and 5 to Rowe and in awarding priority of invention in counts 3 and 6 to Holtz was proper, and the same is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565250/ | 433 S.W.2d 157 (1968)
Louise SMITH, Appellant,
v.
Jere Marie ALEXANDER, Appellee.
No. 5-4689.
Supreme Court of Arkansas.
November 4, 1968.
*158 James C. Cole, Malvern, for appellant.
Wright, Lindsey & Jennings, by William R. Overton, Little Rock, for appellee.
BROWN, Justice.
Louise Smith, plaintiff-appellant, sought recovery for damages arising out of a collision between her car and a vehicle driven by defendant-appellee, Jere Marie Alexander. The jury verdict favored Jere Alexander. Louise Smith seeks a reversal based on the court's giving, and refusal to give, certain instructions.
Three cars were traveling in the same direction on Highway 270 near Malvern, Arkansas. The lead driver is not a party to this suit. Jere Alexander was second in line and Louise Smith was trailing. At the time of the collision, both ladies were in the passing lane, it apparently being the intention of both to ultimately pass the lead vehicle. Jere Alexander contends that she was the first driver to enter the passing lane and that Louise Smith suddenly struck the rear of the Alexander car. Louise Smith argues that she was first in the passing lane and that Jere Alexander suddenly and without warning pulled out in front of the Smith car. Those highly disputed facts are all that are necessary to an understanding of our conclusions. The three points raised for reversal will be discussed as they are listed in italics.
I. The Court Erred in Refusing to Give AMI 101. That instruction is an opening statement to the jury, chiefly concerned with the respective duties of judge and jury. It is designated as a cautionary instruction. The record is silent as to why the trial judge declined to give it. On the other hand there is nothing in the record to show why it should have been given. Appellant made only a general objection. Absent a record to the contrary, we assume the trial judge decided the jury need not be instructed on cautionary matters. It could have been that those same jurors had heard this instruction repeated *159 in previous trials. Considering the state of the record, and the discretion vested in trial courts with reference to cautionary instructions, we are unable to say that reversible error was committed. We would consider it the better practice to give the instruction when requested or recite into the record the specific reasons for refusing to give it. That is because we think the instruction covers substantive matters and a refusal to give it should be an unusual exception.
II. It Was Error to Give a Rule of the Road Instruction Taken from Ark.Stat. Ann. § 75-609(b) (Repl.1957). Within the format of AMI 903, and at the request of defendant, the court gave this statute:
"* * * the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle."
First, there was no evidence of audible signal having been given by either vehicle. Therefore the instruction tendered an issue not in contention. To that extent the instruction was abstract. Harkrider v. Cox, 230 Ark. 155, 321 S.W.2d 226 (1959). Secondly, under the very unusual circumstances of this case the instruction was confusing. The novel situation arises because here we do not have clearly designated overtaken and overtaking vehicles. In fact, the jury could have surmised that the overtaken vehicle was the lead car. The driver of that car is not charged with any negligence and is not a party to the suit. But how was the jury to know but that the instruction was referring to that driver? It was Louise Smith's claim that she had pulled out to pass Jere Alexander and the latter suddenly pulled out in front of Louise Smith. To the contrary, Jere Alexander contends she was overtaking the lead vehicle and was struck from the rear. Thus we have a situation where both parties to this suit contend they held the status of overtaking vehicles. At the same time, plaintiff Smith designates defendant Alexander as an overtaken driver. With that confusion created by the testimony, we conclude that the jury could not possibly know how to apply the instruction in the form given. It should also be pointed out that this rule of the road imposes a duty on the driver being overtaken. The duty was shifted to that driver by Act 300 of 1937. There the requirement that an overtaking driver always sound his horn was deleted. Consequently the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.
III. The Court Erred in Giving AMI 902 as Modified. The form of that instruction, taken from the book, is as follows:
"When two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway [for the purpose of `leaving it to enter an intersecting road' (or other appropriate language)], and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road."
The trial court gave the instruction exactly as written (excepting, of course, the bracketed portion). Specifically, no insertion was entered as explained in brackets. When that instruction is given the specific and applicable purpose for which the lead car has the superior right to the use of the road should be inserted. Otherwise, the instruction could lead the jury to picture the lead car as having far more rights than really exist. In every instance where the rule has been approved by this Court, the instruction or the law under discussion dealt in specific situations as opposed to a general right blanket in nature.
In Madison-Smith Cadillac Co. v. Lloyd, 184 Ark. 542, 43 S.W.2d 729 (1931), we held *160 that the lead vehicle has the superior right to the use of the road "for the purpose of leaving it on either side to enter intersecting roads, and passageways * * *"; in Ward v. Haralson, 196 Ark. 785, 120 S.W.2d 322 (1938), it was stated that the truck driver ahead had the superior right to the use of the road for the purpose of proceeding straight ahead on his right side of the road; in Cohen v. Ramey, 201 Ark. 713, 147 S.W.2d 338 (1941), the phrase "intersecting roads and passageways" was inserted in the instruction; in Acco Transportation Co. v. Smith, 207 Ark. 70, 178 S.W.2d 1011 (1944), the driver of the wagon was proceeding straight on his side of the road and we held for that purpose he had the superior right to the use of the road as opposed to a driver trailing him; and in Jones v. King, 211 Ark. 1084, 204 S.W.2d 548 (1947), there was a turning movement of the lead vehicle in leaving the highway and for that purpose he was declared to have the superior right of use. There are later cases from the same general field; suffice it to say that all which have come to our attention deal in specifics when this rule of the road is applied.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565255/ | 433 S.W.2d 217 (1968)
Deborah SMITH, by Next Friend, Rube Smith, Appellant,
v.
SAFEWAY STORES, INC., Appellee.
No. 381.
Court of Civil Appeals of Texas, Tyler.
October 10, 1968.
Rehearing Denied November 7, 1968.
Miller & Ginn, Hugh M. Miller, Houston, for appellant.
Ramey, Brelsford, Flock, Devereux & Hutchins, Tracy Crawford and Mike Hatchell, Tyler, for appellee.
MOORE, Justice.
Appellant, Deborah Smith, a minor, acting by and through her next friend, Rube Smith, brought suit against Safeway Stores, Inc. for damages for personal injuries allegedly received by her when a stack of milk crates allegedly fell against her while shopping in appellee's store.
The cause was submitted to a jury. In response to Special Issue No. 1, inquiring as to whether or not appellant sustained bodily injuries as a result of being struck by the milk crates, the jury answered "We do not." Since all subsequent issues were conditioned upon an affirmative *218 finding to Special Issue No. 1, the jury did not answer any of the remaining issues. Based upon the jury's findings to Special Issue No. 1, the trial court entered a take-nothing judgment against the appellant, from which she has perfected this appeal.
Appellant attacks the judgment by three points of error asserting: (1) that there is no evidence, or (2) that the evidence is insufficient to support the jury's finding on Special Issue No. 1, and (3) that the verdict and the judgment are against the overwhelming weight and preponderance of the evidence.
A brief review of the evidence shows that on the occasion in question, Deborah Smith, age 14, was in the company of her mother and younger brother while shopping in appellee's store. When Deborah was standing near a stack of milk crates which had been stacked upon a "dolly" cart, the six-foot stack of crates suddenly fell over against Deborah, striking her on the shoulders and back. According to her testimony, the force of the impact knocked her against her younger brother, but did not cause her to fall against the floor or any other hard substance. There is no evidence of any lacerations or bruises. She testified that immediately after the impact, she felt a sharp pain in her stomach and told her mother about the pain but could not remember whether or not she made any complaint to the employees of the store or the store manager when questioned about whether or not she was injured. The store manager and employees of the store testified that appellant told them that she was not injured. After the accident, Deborah and her mother continued with their grocery shopping and then went home. On the following day she testified that she commenced having pain in her back, and that her back continued to bother her. Approximately a week and a half later, her mother took her to Dr. Don Jackson. After seeing Dr. Jackson, she saw six other doctors. Three of these doctors testified at the trial. Dr. Mathis testified that he had seen Deborah on numerous occasions and because of complaints of pain in her back, had placed her in the hospital on two separate occasions. He testified that he found some soreness in the pre-sacral area of the back. Dr. Thomas, a chiropractor, testified that he had treated Deborah for complaints of soreness in the back and had found some tenderness in the muscles of her back and that his x-ray examination showed a left deviation of the lumbar spine. Dr. P. M. DeCharles testified that he had examined Deborah twice. On the first examination he testified that he found some spasms in the muscles of the lower back on rotation and abduction, but on a subsequent examination, he was unable to find any back pathology and that in his opinion her back was perfectly normal.
Neither doctor expressed any opinion as to whether or not her condition was caused by traumatic injury to the back.
The question of whether or not appellant received an injury became a controverted issue of fact by appellee's general denial. Proof of injury was therefore essential to appellant's cause of action. Consequently, appellant had the burden of securing a favorable finding upon such issue. Texas & Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528. As stated, the jury answered the question in the negative.
A negative answer to the issue, when properly interpreted, amounts to nothing more than a failure or a refusal by the jury to find from a preponderance of the evidence that appellant sustained an injury and means, in law, that appellant failed to discharge the burden of proving the fact. C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, (Tex.Sup., 1966). It does not mean that the jury found that she did not sustain an injury. It simply means that the jury was not persuaded by a preponderance of the evidence.
In situations such as this where a jury returns a negative answer to an issue *219 upon which the proponent has the burden of proof, the jury's negative answer need not be supported by affirmative evidence. Therefore, it avails the complaining party nothing to assert that a negative answer is without support in the evidence or is not supported by factually sufficient evidence. Under these circumstances, the complaining party is placed in the position of having to contend that the evidence establishes an injury as a matter of law. See Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas Law Review, 361, 363, (1960). Appellant makes no such contention here. Therefore, we believe we would be entitled to disregard appellant's first two points of error because neither point contains any complaint subject to review.
Nevertheless, since we are required to review all of the evidence in the record because of appellant's third point of error, we have examined the record from the standpoint of whether an injury was established as a matter of law. We have concluded that it was not.
The evidence shows that appellant's cause of action rests mainly upon complaints of pain and suffering. Matters of pain and suffering are necessarily speculative, and it is peculiarly within the province of the jury to resolve these matters. Harbuck v. Ramos, 371 S.W.2d 912, (Tex.Civ.App., n. w. h.); Heckathorn v. Tate, 355 S.W.2d 845, (Tex.Civ.App., n. w. h.).
Furthermore, the only evidence showing that the milk crates actually struck the appellant was the testimony of Deborah Smith and her mother. Thus, the producing cause of her alleged injury was made to rest upon the testimony of the interested parties. This being true, their testimony created an additional fact issue for the jury upon the question of causation. P. T. Whitlock Gas & Oil, Inc. v. Brooks, 396 S.W.2d 922, (Tex.Civ.App., n. w. h.).
As we view the record, appellant's evidence created nothing more than a fact question upon the issue of injury. Consequently, we do not believe that it can be said that injury was established as a matter of law. Nor do we believe that the jury's finding upon the issue of injury is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565257/ | 433 S.W.2d 568 (1968)
STATE of Missouri, Respondent,
v.
Richard William TYARKS, Appellant.
No. 53524.
Supreme Court of Missouri, Division No. 2.
November 12, 1968.
*569 Norman H. Anderson, Atty. Gen., Jefferson City, Carl R. Gaertner, Special Asst. Atty. Gen., St. Louis, for respondent.
Shaw, Hanks & Bornschein, by Joseph Howlett, Clayton, for appellant.
DONNELLY, Judge.
Defendant, Richard William Tyarks, was convicted of stealing an automobile under § 560.156, RSMo 1959, V.A.M.S., by a jury in the Circuit Court of Audrain County, Missouri, and his punishment was assessed at imprisonment in the Audrain County Jail for a period of one year. Following rendition of judgment and imposition of sentence an appeal was perfected to this Court.
Defendant contends the trial court erred in permitting Deputy Sheriff Russell Wilkes, who testified as a witness for the State, "to have continuing custody of the jury throughout the trial and until the return of the verdict and over objection of defense counsel."
Defendant's objection at trial was as follows:
"MR. HOWLETT: Let the record show that counsel for the defendant is continuing to object to the court permitting a witness for the State, to-wit: Deputy Sheriff Wilkes, having custody and continuing to have custody of the jury in his official capacity as deputy sheriff, and continues to request a mistrial.
"THE COURT: Let the record show that the renewed request for a mistrial is denied."
Defendant relies upon Turner v. State of Louisiana, 379 U.S. 466, 85 S. Ct. 546, 13 L. Ed. 2d 424. "The basic teaching of that decision is that when the custodian of the jury who has had continuous and intimate contact with the jury testifies about matters which are more than merely uncontroverted or formal aspects of the case and the credibility of the officer is a factor, then the accused has been denied due process." Crawford v. Beto, 5th Cir., 385 F.2d 156, 157.
Deputy Sheriff Wilkes had custody of the jury throughout the trial. However, there is no showing in the record that he "had continuous and intimate contact with the jury." The trial commenced September 13, 1967. The jury returned its verdict at 6:10 p. m. on said date. We cannot say, on the record before us on appeal, that Turner v. State of Louisiana, supra, applies in this case.
In State v. Stidham, Mo.Sup., 258 S.W.2d 620, 622, this Court held that it was not "reversible error to put the jury in charge of the sheriff during its deliberations when he had been a witness for the state." This broad, general rule should no longer be followed. Instead, the standard shall be as hereinafter set forth.
We now hold that, as a general rule, it is reversible error to permit an officer, who testifies about matters which are more than merely formal aspects of the case, and whose testimony tends to *570 prove the guilt of the defendant, to be in charge of the jury.
Article I, Section 18(a) Const. of Mo., 1945, V.A.M.S., assures a defendant in a criminal case "a speedy public trial by an impartial jury of the county."
"The right of trial by jury guaranteed by our Constitution, if it is to be worth anything, must mean, * * * `the right to a fair and impartial jury.'" Lee v. Baltimore Hotel Co., 345 Mo. 458, 463, 136 S.W.2d 695, 698, 127 A.L.R. 711.
It is fundamental that jurors shall determine guilt or innocence on the basis of what they hear and observe at trial, in an environment where an accused's rights may be judicially protected. We do not believe the right to an impartial jury can be reconciled with a practice which permits a substantial witness for the State to maintain a custodial relationship with the members of the jury throughout the trial. The relationship is one which, "could not but foster the jurors' confidence in those who were their official guardians during the entire period of the trial." Turner v. State of Louisiana, supra, 379 U.S. 466, 474, 85 S. Ct. 546, 550. The practice should no longer be permitted.
We must next determine whether our ruling should be given retroactive application. See Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601; Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453; Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882; and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199.
In Stovall v. Denno, supra, 388 U.S. 293, 297, 87 S. Ct. 1967, 1970, the Court said: "The criteria guiding resolution of the question implicates (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards."
The purpose to be served by the new standard is to eliminate from criminal trials the possibility that an accused may be deprived of a fair and impartial trial because of a practice which lends itself to the presence of influences extraneous to a proper determination of guilt or innocence. It is exceedingly difficult to confidently say that prejudice does or does not exist in any case wherein the practice is followed. We must recognize, however, that the condemned practice has been followed in trials which may have been fair and impartial and wherein no prejudice resulted.
We also recognize that the practice has been considered acceptable in Missouri and in other jurisdictions. State v. Stidham, supra; 53 Am.Jur., Trial § 858; 23A C.J.S. Criminal Law § 1352. Trial courts in Missouri, in reliance upon good authority, have followed the practice for many years. We must conclude that retroactive application of the new standard "would seriously disrupt the administration of our criminal laws." Johnson v. State of New Jersey, supra, 384 U.S. 719, 731, 86 S. Ct. 1772, 1780.
We hold that, except for the instant case, the new standard shall apply only to cases in which the trial begins after the date of publication of this opinion in the advance sheet of the Southwestern Reporter.
We must give defendant Tyarks the benefit of the new standard established in this case. That he be given the benefit is "an unavoidable consequence of the necessity that constitutional adjudications not stand as mere dictum." Stovall v. Denno, supra, 388 U.S. 293, 301, 87 S. Ct. 1967, 1972.
We, therefore, apply the new standard to the facts in this case. According to the evidence, Casper Stuart owned a 1958 Ford automobile on December 9, 1966. That night the automobile was taken from Stuart's Used Car Lot in the City of Mexico, Audrain County, Missouri, was left on a country road for a few days, and was then taken to the Williams' farm. Carl Newsom *571 testified that defendant took the automobile. Defendant testified that Newsom claimed to be the owner of the automobile and that Newsom took the automobile.
Deputy Sheriff Wilkes testified, in part, as follows:
"Q. Please state your name to the Jury.
"A. Russell Wilkes.
"Q. Where do you live, Mr. Wilkes? A. I live in Mexico.
"Q. Are you a member of the Sheriff's staff of this county? A. Yes, sir.
"Q. You are a deputy sheriff? A. Yes.
"Q. I direct your attention back to the date of December 9 and this Ford automobile that we are concerned with in this case and ask you if you made an investigation in the case concerning the automobile? A. Yes, I did.
* * * * * *
"Q. Will you please tell the Jury what action you took in this matter, what investigation you made?
"A. I went to Martinsburg, Missouri and talked to Carl Newsom and from there I went to the R-6 School and talked to Richard Tyarks and then I went to the Carl Williams home and found this Ford car there * * *.
* * * * * *
"Q. When did you visit the Williams farm?
"A. I don't recall the date or the day but it was shortly after this investigation started with reference to this automobile.
"Q. Did Carl Newsom accompany you to the Williams farm?
"A. I don't believe so.
"Q. Did you find this missing Ford automobile there at the Williams farm? A. Yes.
"Q. And then what did you do?
"A. I went to the house and talked to Mrs. Williams about the car. She was the only one there.
"Q. Then what did you do?
"A. I waited there until the car was removed from the premises.
"Q. And who removed the car? A. I don't know.
"Q. Where was it taken, if you know?
"A. It was taken to Stuart's Used Car Lot, a DX service station here in Mexico, Missouri.
"Q. And what next was done in your investigation?
"A. Richard Tyarks was arrested and held in the County Jail and charged with stealing this automobile."
Defendant then testified, in part, as follows:
"Q. Did he [Carl Newsom] at any time ever give you a title to the car? A. Yes, he did.
"Q. Do you know where that title is now?
"A. I gave it to Ross Vance, or Russell Wilkes. One of the two has it. I don't know which one it was.
"Q. You gave it to who? A. Russell Wilkes. He picked it up from the Williams family. The Williams family had it there.
"Q. Where did you get that title? A. From Newsom."
Deputy Sheriff Wilkes then testified, in part, as follows:
"Q. From whom did you receive that title?
"A. From the Williamses.
"Q. The Williamses? A. Yes, I believe Mrs. Carl Williams gave it to me, when I was there investigating this Ford *572 car that was parked there alongside the fence at their farm, this '58 Ford.
"Q. Then the defendant Tyarks did not give you that title?
"A. No; no, the title was given to me therethe title was given to me at the Jail there. Mr. Henry Paschang, Buck Paschang, about 30 minutes after we arrived at the Jail with the defendant Tyarks here, he drove into the Jail parking area there and Mrs. Williams and Mary Ann Williams was with him, and he had this title, and
"Q. Who had the title? A. Buck Paschang. I said, `Buck, where did you get this title?' And he said, `Well, it's Williamses.' Said, `Tyarks gave that car to the Williamses, to Mary Ann Williams' and he said, `Here's the title to it and we want the car.' I said, `Why, this don't appear to be the title to this particular car'
"MR. HOWLETT: I object, Your Honor.
"THE COURT: Objection sustained.
"Q. Did it turn out to be the title to the stolen car?
"A. No."
We believe that Deputy Sheriff Wilkes was a substantial witness for the State. He testified that he talked with Newsom and defendant and found the car. He testified as to other phases of his investigation. He controverted defendant's testimony that defendant was given the title to the stolen car. Under these circumstances, we must conclude that he testified about matters which are more than merely formal aspects of the case, and that his testimony tends to prove the guilt of the defendant.
We recognize that had Deputy Sheriff Wilkes testified only as a rebuttal witness there would have been no duty to replace him as custodian of the jury until he testified. He was endorsed as a witness on the information and testified for the State in its case in chief as well as in rebuttal. He should have been replaced when the trial began.
The judgment is reversed and the cause remanded for new trial.
FINCH, P. J., and GODFREY, Special Judge, concur.
EAGER, J., not sitting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2135771/ | 623 N.E.2d 317 (1993)
157 Ill. 2d 138
191 Ill. Dec. 72
The PEOPLE of the State of Illinois, Appellant,
v.
Jeffrey LEVIN, Appellee.
The PEOPLE of the State of Illinois, Appellee,
v.
Johnnie TYSON, Appellant.
The PEOPLE of the State of Illinois, Appellee,
v.
Robert KNOOP, Appellant.
The PEOPLE of the State of Illinois, Appellee,
v.
Guy JOHNS, Appellant.
The PEOPLE of the State of Illinois, Appellee,
v.
Dennis CARTER, Appellant.
Nos. 71542, 71820, 72736, 72929 and 73108.
Supreme Court of Illinois.
October 21, 1993.
As Modified on Denial of Rehearing November 29, 1993.
*319 Roland W. Burris, Atty. Gen., Springfield, Michael J. Waller, State's Atty., Waukegan, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, Kenneth R. Boyle and Robert J. Biderman, Office of the State's Attys. Appellate Prosecutor, Springfield, and Renee Goldfarb, Theodore Fotios Burtzos, William D. Carroll, Annette N. Collins and Susan R. Schierl, Asst. State's Attys., of counsel), for the People in No. 71542.
Daniel D. Yuhas, Deputy Defender, and Arden J. Lang and Gloria A. Morris, Asst. Defenders, of the Office of the State Appellate Defender, Springfield, for Jeffrey Levin and Guy Johns.
Randolph N. Stone and Rita A. Fry, Public Defenders, Chicago (Evelyn G. Baniewicz, Karen E. Tietz and Michaela J. Kalisiak, Asst. Public Defenders, of counsel), for Johnnie Tyson.
Roland W. Burris, Atty. Gen., Springfield, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, William D. Carroll, Annette N. Collins and Susan R. Schierl, Asst. State's Attys., of counsel), for the People in Nos. 71820, 72736 and 73108.
Rita A. Fry, Public Defender, Chicago (Karen E. Tietz, Evelyn G. Baniewicz and Michaela J. Kalisiak, Asst. Public Defenders, of counsel), for Robert Knoop and Dennis Carter.
Roland W. Burris, Atty. Gen., Springfield, Donald D. Bernardi, State's Atty., Pontiac, and Jack O'Malley, State's Atty., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee Goldfarb, Theodore Fotios Burtzos, William D. Carroll, Annette N. Collins and Susan R. Schierl, Asst. State's Attys., of counsel), for the People in No. 72929.
Justice FREEMAN delivered the opinion of the court:
In these consolidated appeals we are asked to decide whether, at resentencing, double jeopardy bars the State's second attempt to establish a defendant's eligibility for enhanced sentencing under either the Class X sentencing provision or the Habitual Criminal Act, where the appellate court has vacated the defendant's sentence for the State's failure to prove such eligibility in the first sentencing proceeding.
BACKGROUND
These several appeals are linked by the singular issue of whether double jeopardy attaches to enhanced-sentencing proceedings. Four of the appeals, People v. Levin, No. 71542, People v. Tyson, No. 71820, People v. Knoop, No. 72736, and People v. Johns, No. 72929, involve sentencing under the Class X provision of the Unified Code of Corrections (Ill.Rev.Stat.1987, ch. 38, par. 100553(c)(8)). The remaining appeal, People v. Carter, No. 73108, involves sentencing under the Habitual Criminal Act (Ill.Rev.Stat.1989, ch. 38, par. 33B1).
Defendants Levin, Tyson, Knoop, and Johns were convicted and sentenced as Class X offenders (Ill.Rev.Stat.1987, ch. 38, *320 par. 100553(c)(8)), while defendant Carter was convicted and sentenced as an habitual criminal (Ill.Rev.Stat.1989, ch. 38, par. 33B1).
In each case (Levin, 207 Ill.App.3d 923, 152 Ill. Dec. 824, 566 N.E.2d 511; Tyson, 211 Ill.App.3d 1106, 184 Ill. Dec. 239, 613 N.E.2d 9, No. 1900747 (unpublished order under Supreme Court Rule 23); Knoop, No. 1902010 (unpublished order under Supreme Court Rule 23); Johns, 220 Ill. App. 3d 1016, 163 Ill. Dec. 452, 581 N.E.2d 403; Carter, No. 1890931 (unpublished order under Supreme Court Rule 23)), the appellate court affirmed the defendant's conviction. However, the court found the State's proof of each defendant's qualifying prior convictions to be, in some manner, insufficient to support the imposition of enhanced punishment. The nature of the deficiency of proof is not important for purposes of our review. It is significant only that the court vacated the defendants' sentences and remanded those causes to the trial court for resentencing.
In Levin, the court held that, at resentencing, double jeopardy barred the State from again attempting to prove defendant's eligibility for enhanced punishment under the Class X sentencing provision. The State appealed to this court.
In contrast to Levin, the court in Tyson, Knoop, Johns and Carter held that double jeopardy did not preclude the State from seeking enhanced punishment at resentencing. Defendants appealed to this court, contending, inter alia, the applicability of double jeopardy to resentencing.
We granted the various parties' petitions for leave to appeal. (134 Ill.2d R. 315(a).) On this court's motion, the appeals were consolidated and we limited review to the issue of whether double jeopardy applies to Class X and habitual-criminal sentencing procedures.
DISCUSSION
Double Jeopardy and Sentencing
The double jeopardy clause of the fifth amendment provides: "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.) Double jeopardy protections are similarly guaranteed by the Illinois constitution, which provides: "No person shall be * * * twice put in jeopardy for the same offense." (Ill. Const.1970, art. I, § 10.) The double jeopardy clause actually embraces three separate protections, which bar (1) retrial for the same offense after an acquittal, (2) retrial for the same offense after a conviction, and (3) multiple punishment for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656; People v. Stefan (1992), 146 Ill. 2d 324, 333, 166 Ill. Dec. 910, 586 N.E.2d 1239.) It is the first of these three protections upon which defendants seek to rely.
Generally, double jeopardy principles have not been applied to sentencing. The imposition of a particular sentence usually is not regarded as an acquittal of any more severe sentence than could have been imposed. (See Bullington v. Missouri (1981), 451 U.S. 430, 438, 101 S. Ct. 1852, 1857, 68 L. Ed. 2d 270, 278; see also United States v. DiFrancesco (1980), 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328.) Thus, double jeopardy imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. See Pearce, 395 U.S. at 719, 89 S. Ct. at 2077-78, 23 L.Ed.2d at 666.
In Bullington v. Missouri (1981), 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270, however, the Court carved out an exception to the general rule regarding the propriety of imposing a harsher sentence at retrial. In Bullington, the Court found that Missouri's separate capital sentencing hearing resembled the defendant's trial on the issue of guilt. The Court's analogy of the sentencing hearing to trial was supported by the presence of three specific factors at sentencing: (1) the sentencer's determination was guided by substantive standards and based on evidence introduced in a separate proceeding that formally resembled a trial; (2) the prosecution had to prove certain statutorily defined facts beyond a reasonable *321 doubt; and (3) the discretion of the sentencer was restricted to precisely two sentencing alternatives. (Bullington, 451 U.S. 430, 101 S. Ct. 1852, 68 L. Ed. 2d 270; Arizona v. Rumsey (1984), 467 U.S. 203, 209, 104 S. Ct. 2305, 2309, 81 L. Ed. 2d 164, 170.) The formality of the separate proceeding, the standard of proof and the lack of sentencing discretion at the capital sentencing proceeding each paralleled the formality of the proceeding, the standard of proof and the lack of discretion in entering a verdict at the defendant's trial on the issue of guilt. Based upon the presence of these three trial-like factors, the Court characterized Missouri's capital sentencing proceeding as having "the hallmarks of the trial on guilt or innocence." See Bullington, 451 U.S. at 439, 101 S. Ct. at 1858, 68 L.Ed.2d at 279.
By enacting a capital sentencing procedure that resembles a trial on the issue of guilt, Missouri requires the jury to determine whether the prosecution has "`proved its case.'" (Bullington, 451 U.S. at 444, 101 S. Ct. at 1861, 68 L.Ed.2d at 282.) Thus, under the Missouri capital sentencing scheme, a jury sentence of life imprisonment served as an acquittal of "`whatever was necessary to impose the death sentence.'" (Bullington, 451 U.S. at 445, 101 S. Ct. at 1861, 68 L.Ed.2d at 283, quoting State ex rel. Westfall v. Mason (Mo.1980), 594 S.W.2d 908, 922.) Accordingly, at resentencing, double jeopardy would bar the State's second attempt at obtaining the death penalty.
Bullington's determination that insufficient evidence to support the imposition of the death penalty barred any subsequent attempt to seek the death penalty flows directly from those principles announced in Burks v. United States (1977), 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1. In Burks, the Court reasoned that reversal for insufficient evidence is tantamount to an implicit acquittal by the trial court. Thus, the Court held that the double jeopardy clause forbids retrial of a defendant whose conviction is overturned by a reviewing court because of insufficiency of the evidence at trial. Burks, 437 U.S. at 18, 98 S. Ct. at 2150-51, 57 L.Ed.2d at 14.
Prior to Bullington, the Court had held, unequivocally, that if a defendant was convicted, sentenced to life imprisonment and then won reversal of his conviction, the State could seek the death penalty again upon retrial. (See Stroud v. United States (1919), 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103.) However, Stroud, as the Bullington Court distinguished, did not involve a separate sentencing proceeding and the sentencer had full discretion to choose the sentence, wholly unguided by legislative standards. Bullington, 451 U.S. at 439, 101 S. Ct. at 1858, 68 L.Ed.2d at 279.
The Court in Bullington also distinguished United States v. DiFrancesco (1980), 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328, the only case in which the Court had previously considered a bifurcated sentencing proceeding. DiFrancesco involved a government appeal of a sentence imposed under the Federal "dangerous special offender" statute. In Bullington, the Court compared each of the trial-like factors present under Missouri's capital sentencing procedure with those factors present under the dangerous-special-offender sentencing scheme. The Court initially focused on the nature of the resentencing proceeding. In that regard, the Court found DiFrancesco inapposite because the Federal procedures involved at resentencing included appellate review of a sentence "`on the record of the sentencing court,'" rather than a de novo fact finding. Further, the Court noted that in DiFrancesco the sentencer, a Federal judge, had a large amount of discretion in imposing sentence and the prosecution's burden was merely a preponderance of the evidence. Bullington, 451 U.S. at 440-41, 101 S. Ct. at 1858-59, 68 L.Ed.2d at 280.
Before proceeding with our analysis, we note that this case does not represent this court's first opportunity to consider the reaches of Bullington. In People v. Davis (1986), 112 Ill. 2d 78, 96 Ill. Dec. 703, 491 N.E.2d 1163, this court acknowledged that many of the characteristics of the Missouri capital sentencing proceeding which *322 triggered the application of double jeopardy in Bullington are present in our capital sentencing proceeding. Thus, double jeopardy may be implicated in resentencing in capital cases in Illinois. (Accord People v. Page (1993), 155 Ill. 2d 232, 185 Ill. Dec. 475, 614 N.E.2d 1160.) Neither the United States Supreme Court nor this court, however, has had occasion to decide whether the exception carved out in Bullington extends to noncapital sentencing procedures. But see Bohlen v. Caspari (8th Cir.1992), 979 F.2d 109, cert. granted (1993), ___ U.S. ___, 113 S. Ct. 2958, 125 L. Ed. 2d 660 (Missouri case holding Bullington applicable to persistent-offender proceedings).
Application of Bullington v. Missouri
Defendants assert that the sentencing procedures under the Habitual Criminal Act (Act) (Ill.Rev.Stat.1991, ch. 38, par. 33A1) and the Class X sentencing provision (Ill.Rev.Stat.1991, ch. 38, par. 1005 53(c)(8)) closely resemble the sentencing procedure in Bullington. Thus, they entreat us to extend the Bullington exception to these noncapital recidivist sentencing procedures. For reasons which follow, we decline to do so.
The Court in Bullington did not address whether the presence of any one of the three trial-like factors upon which it relied would have been sufficient, alone, to support its trial analogy. Further, the Court seemingly did not place greater significance on any one factor over another. We believe, however, that it was the combined force of all three factors which supported the Court's analogy.
A review of Federal decisional law in this area confirms our view. In cases where the Bullington exception has been extended to noncapital sentencing procedures, all three factors have been present. See, e.g., Durosko v. Lewis (9th Cir.1989), 882 F.2d 357 (habitual-criminal sentencing is tried to a jury, prior convictions must be proved beyond a reasonable doubt, and sentencer must sentence defendant to natural life); Bullard v. Estelle (5th Cir.1982), 665 F.2d 1347, 1357-58 (State required to prove at trial that defendant committed two prior felony offenses, allegations of prior offense must be proved beyond a reasonable doubt, and sentencer has no discretion in sentencing third-time felony offenders); Bohlen v. Caspari (8th Cir.1992), 979 F.2d 109 (defendant has rights of confrontation, cross-examination and the opportunity to present evidence, State must prove facts pleaded beyond a reasonable doubt, and trial court has two alternatives: to find that the defendant is a persistent offender or not).
We, likewise, tailor our analysis to correspond with the analyses applied in Bullington and its progeny. Accordingly, we hold that for Bullington to apply, all three trial-like factors must be present. The absence of any one will defeat the analogy.
ANALYSIS
Habitual-Offender Sentencing
The Habitual Criminal Act mandates the imposition of a natural life sentence on a defendant convicted of three Class X felonies within a 20-year period. (Ill.Rev.Stat.1987, ch. 38, par. 33B1.) Section 33B2 of the Act sets out the procedures that apply when the State seeks to have a court sentence a defendant as a habitual criminal. Section 33B2(a) provides, in pertinent part:
"After a plea or verdict or finding of guilty and before sentence is imposed, the prosecutor may file with the court a verified written statement signed by the State's Attorney concerning any former conviction of an offense set forth in Section 33B1 rendered against the defendant. The court shall then cause the defendant to be brought before it; shall inform him of the allegations of the statement so filed, and of his right to a hearing before the court on the issue of such former conviction and of his right to counsel at such hearing; and unless the defendant admits such conviction, the court shall hear and determine such issue, and shall make a written finding thereon. If a sentence has previously been imposed, the court may vacate such sentence and impose a new sentence in *323 accordance with Section 33B1 of this Act." (Ill.Rev.Stat.1989, ch. 38, par. 33B2(a).)
A defendant must be "adjudged" a Class X offender to be sentenced under the Habitual Criminal Act. See Ill.Rev.Stat.1987, ch. 38, par. 33B1(a).
It is settled that habitual-offender legislation neither creates a separate offense nor directly involves the prior crimes. The prior-conviction evidence for purposes of sentencing enhancement is merely a matter of aggravation going solely to the punishment to be imposed; it is not an ingredient of the main offense charged. People v. Kirkrand (1947), 397 Ill. 588, 590, 74 N.E.2d 813; People v. Lawrence (1945), 390 Ill. 499, 505, 61 N.E.2d 361; People v. Atkinson (1941), 376 Ill. 623, 625, 35 N.E.2d 58; see also A. Campbell, Law of Sentencing § 7.5 (2d ed. 1991).
Defendants assert that the procedure for determining a defendant's habitual criminal status parallels, in all important respects, the capital sentencing procedure considered in Bullington. Defendants specifically note the following similarities between our habitual-criminal sentencing procedure and the capital sentencing procedure in Bullington: (1) a separate hearing is held on the issue of defendant's habitual-criminal status; (2) the prosecutor must prove the habitual-criminal status beyond a reasonable doubt; and (3) the trial judge is not given "unbounded discretion" to select the defendant's punishment but must, instead, impose a sentence of natural life imprisonment. These factors, defendants contend, sufficiently mark the procedure with the "hallmarks of the trial on guilt and innocence" to trigger double jeopardy protections.
We note at the outset that there is a split of authority in the Federal circuits on whether double jeopardy applies to similar habitual-offender sentencing procedures. Bohlen, 979 F.2d 109, Durosko, 882 F.2d 357, Nelson v. Lockhart (8th Cir. 1987), 828 F.2d 446, rev'd on other grounds (1988), 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265, and Bullard, 665 F.2d 1347, vac. on other grounds (1983), 459 U.S. 1139, 103 S. Ct. 776, 74 L. Ed. 2d 987, each hold that double jeopardy applies. Denton v. Duckworth (7th Cir.1989), 873 F.2d 144, and Linam v. Griffin (10th Cir.1982), 685 F.2d 369, however, reach a contrary result.
Incidentally, the court in Denton distinguished Indiana's habitual-offender statute from the Bullington sentencing proceeding on the basis that the Bullington proceeding involved consideration of particular facts underlying the substantive offense, while Indiana's habitual-offender statute did not. (Denton, 873 F.2d at 147.) A similar rationale was offered by the court in Linam for its rejection of Bullington. Further, we note, as did the concurring Justice in Linam, that the focus in Bullington was merely whether the sentencing proceeding resembled trial on the issue of guilt (see Linam, 685 F.2d 369 (Anderson, J., concurring)); the Court made no mention of the uniqueness of the death sentence as a rationale for its holding.
At first glance, our habitual-criminal sentencing procedure appears to share sufficient commonalities with the sentencing procedure in Bullington to warrant extension of the exception here. However, we must be careful to avoid diminishing the value of Bullington by engaging in merely mechanical application. The focus of our inquiry, as was the Court's in Bullington, is whether our proceeding resembles a defendant's trial on the issue of guilt.
We first examine the "separate hearing" factor. Under our criminal code, a sentencing hearing is required after any determination of guilt. (See Ill.Rev.Stat.1991, ch. 38, par. 100541(a).) Thus, to conclude that the sentencing hearing is trial-like simply because it is held separately from the determination of guilt would potentially subject all sentencing proceedings in Illinois to the Bullington exception. Bullington does not compel such a result. We, therefore, must consider those unique aspects of the separate sentencing proceeding which, in Bullington, rendered that factor trial-like.
Under the sentencing provision considered in Bullington, the jury hears evidence *324 in extenuation, mitigation and aggravation of punishment, subject to the laws of evidence. Only such evidence in aggravation as the prosecution has made known to the defendant prior to his trial is admissible at the hearing. In addition, the jury hears argument concerning the punishment to be imposed. The Missouri statute also expressly provides for final arguments to the jury, directing that the prosecuting attorney shall open and that the defense counsel shall conclude the argument to the jury. Further, prior to the jury's deliberations, the judge gives appropriate instructions to guide the jury in its deliberations. (Bullington, 451 U.S. at 433 n. 4, 101 S. Ct. at 1855 n. 4, 68 L. Ed. 2d at 275 n. 4.) Additionally, a jury that imposes the death penalty must designate in writing the aggravating circumstance that it finds beyond a reasonable doubt. (Bullington, 451 U.S. at 434, 101 S. Ct. at 1858-59, 68 L.Ed.2d at 276.) Finally, the Court in Bullington thought it "not without some significance that the Missouri statute [spoke] specifically of the [capital sentencing] hearing in terms of a continuing `trial.'" Bullington, 451 U.S. at 438 n. 10, 101 S. Ct. at 1858 n. 10, 68 L. Ed. 2d at 279 n. 10.
As is apparent, many of the due process protections afforded a defendant at trial on the issue of guilt are provided under Missouri's separate capital sentencing provision. These same evidentiary and procedural safeguards, however, are not present under Illinois' separate habitual-offender sentencing procedure. Except for the records certification requirement, noticeably absent is any mandate that the State comply with formalistic rules of evidence applicable at trial. Also, the State is not required, prior to trial, either to inform the defendant of its intent to seek an habitual-offender determination or to reveal what evidence it plans to present at sentencing. See People v. Tobias (1984), 125 Ill.App.3d 234, 242, 80 Ill. Dec. 496, 465 N.E.2d 608, (holding that a defendant need not be notified prior to the sentencing hearing itself; notice is sufficient if the petition is first read to the defendant at the hearing and he is allowed to reply to the recidivist charges before a sentence is imposed); see also Ill.Rev.Stat. 1989, ch. 38, par. 33B2(a) (Act expressly provides that prior conviction shall not be alleged in the indictment).
Further, although presumably the order of proceeding at sentencing parallels the order at trial, our Act makes no express provision concerning the order of proof or argument. Additionally, a point deemed important by the Court in Bullington, the Act refers to the sentencing proceeding as a hearing, not as a trial.
Even more significant, the defendant, unlike at trial, is not entitled to a jury to decide the issue of habitual-criminal status. In the context of a criminal trial "the Constitution mandates a jury to prevent abuses of official power by insuring, where demanded, community participation in imposing serious deprivations of liberty and to provide a hedge against corrupt, biased, or political justice." (McKeiver v. Pennsylvania (1971), 403 U.S. 528, 551, 91 S. Ct. 1976, 1989, 29 L. Ed. 2d 647, 664 (White, J., concurring).) The absence of a jury requirement here evidences that any similar concern in habitual-criminal sentencing proceedings is not operative.
We are aware that the court in Bohlen, 979 F.2d at 114 n. 6, noted that whether a persistent-offender determination is made by judge or jury does not affect a determination of whether Bullington applies in noncapital cases. The distinction we make here, however, is on the issue of entitlement to a jury.
Finally, we deem it significant that the State's burden of proof for purposes of habitual-criminal sentencing may be satisfied by the presentation of certified records of the defendant's prior convictions. (See People v. Davis (1983), 95 Ill. 2d 1, 31, 69 Ill. Dec. 136, 447 N.E.2d 353.) Notably, such proof is developed outside of the courtroom. As a result, the proceeding does not involve the same degree of adversarial testing characteristic of the evidentiary phase of trial. In contrast, the statute examined in Bullington requires the State to develop the evidence that proves an aggravating factor during the course of the proceeding, as in a trial.
*325 Under our Act, a defendant is not afforded the full panoply of due process rights which are necessarily afforded a criminal defendant at the evidentiary phase of trial. Those standards which, at trial, govern the admissibility of evidence and precisely define the manner in which the court and parties are to proceed are absent. The legislature has fashioned the habitual-criminal sentencing proceeding to be less formalized than a trial. Indeed, the paucity of due process protections at sentencing supports the conclusion that the legislature has deemed the defendant's interests at this stage of the proceeding to warrant fewer of those protections than at trial. We conclude that the separate hearing procedure under our Act bears insufficient formalities of a trial to render that factor analogous to the separate hearing procedure in Bullington and to this defendant's trial on the issue of guilt.
We recognize that the Act provides certain evidentiary and procedural safeguards, such as the requirement that the records of the defendant's prior convictions be certified, that the defendant be informed of the allegations of the prior convictions, and that the court make written findings on the issue of the defendant's habitual criminality. In this regard, the habitual-criminal sentencing proceeding is, at least, more formalistic than sentencing under our general sentencing provision. (Cf. Ill.Rev.Stat. 1991, ch. 38, par. 100541(a); see also People v. Williams (1992), 149 Ill. 2d 467, 174 Ill. Dec. 829, 599 N.E.2d 913.) However, these limited procedural and evidentiary safeguards do not sufficiently color the separate sentencing proceeding with the shades of trial such that the two proceedings appear analogous.
Defendants, proceeding on the premise that the degree of proof required in a habitual-criminal proceeding is beyond a reasonable doubt, assert this and the lack of sentencing discretion as additional commonalities with the procedure examined in Bullington and with a trial.
Our finding that the separate sentencing factor lacks the formality of a trial defeats the analogy of the habitual sentencing procedure to a trial on the issue of guilt. Thus, even accepting the presence of the other two trial-like factors, we hold that the habitual-criminal sentencing proceeding does not so "approximate the ordeal of trial" to bring the proceeding within the exception of Bullington.
Class X Offender Sentencing
Defendants next contend that sentencing under the Class X provision resembles trial on the issue of guilt and, therefore, Bullington should apply. We note at the outset the disagreement in our appellate court concerning whether double jeopardy would bar the State's second attempt to sentence a defendant as a Class X offender on remand where the State failed to present sufficient proof for Class X sentencing in the original sentencing proceeding. People v. Shelton (1991), 208 Ill. App. 3d 1094, 153 Ill. Dec. 722, 567 N.E.2d 680, People v. Brooks (1990), 202 Ill.App.3d 164, 147 Ill. Dec. 519, 559 N.E.2d 859, and People v. Washington (1990), 195 Ill. App. 3d 520, 142 Ill. Dec. 326, 552 N.E.2d 1067, each holds that double jeopardy is not implicated. The court in People v. Hamilton (1990), 198 Ill.App.3d 108, 144 Ill. Dec. 426, 555 N.E.2d 785, however, reached a contrary conclusion. Because we find none of the Bullington trial-like factors operational for Class X sentencing, we agree with Shelton, Brooks and Washington.
We begin our analysis with a brief statement of the Class X offender provision. If a defendant over the age of 21 has been convicted of a Class 1 or a Class 2 felony, after having been twice convicted of any Class 2 or greater class felonies in Illinois, and such charges are separately brought and tried and arise out of a different series of acts, the defendant must be sentenced as a Class X offender. See Ill.Rev.Stat. 1987, ch. 38, par. 100553(c)(8).
Sentencing procedures for Class X offenders are conducted pursuant to section 541 of the Unified Code of Corrections (Ill.Rev.Stat.1987, ch. 38, par. 10054 1(a)). Section 541 provides in part:
"(a) * * * At the hearing the court shall:
*326 (1) consider the evidence, if any, received upon the trial;
(2) consider any presentence reports;
(3) consider evidence and information offered by the parties in aggravation and mitigation;
(4) hear arguments as to sentencing alternatives;
(5) afford the defendant the opportunity to make a statement in his own behalf." Ill.Rev.Stat.1987, ch. 38, par. 100541(a).
Noticeably absent under section 541 are those strict evidentiary and procedural rules attendant at trial. The only requirement for the admissibility of evidence in Class X sentencing under section 541 is that the evidence be relevant and reliable. (Williams, 149 Ill.2d at 490, 174 Ill. Dec. 829, 599 N.E.2d 913, citing People v. Free (1983), 94 Ill. 2d 378, 422-23, 69 Ill. Dec. 1, 447 N.E.2d 218; see People v. Adkins (1968), 41 Ill. 2d 297, 242 N.E.2d 258; Williams, 149 Ill. 2d 467, 174 Ill. Dec. 829, 599 N.E.2d 913 (instructive on the manner in which evidence is admitted at sentencing proceedings).) Unlike sentencing under the Habitual Criminal Act, the State need not present certified records of the defendant's prior convictions for purposes of showing Class X eligibility. Presentence reports are adequate. Williams, 149 Ill.2d at 493, 174 Ill. Dec. 829, 599 N.E.2d 913.
Further, in Williams, 149 Ill. 2d 467, 174 Ill. Dec. 829, 599 N.E.2d 913, this court held that the State had no burden to prove a defendant's prior convictions beyond a reasonable doubt.
Finally, concerning sentencing discretion, we observe that no sentencing judge has complete discretion to fashion what he or she deems an appropriate sentence. Sentencing authorities are constrained in those decisions by statute. In the case of the Class X offender, the sentencer, while required by statute to impose a sentence from an elevated sentencing range, is nonetheless permitted discretion to determine an appropriate sentence within that range. Such restriction is no different from sentencing restrictions generally. However, the sentencer's discretion under section 5 41 is not analogous to the lack of discretion present in Bullington.
We conclude that because none of the trial-like factors present in Bullington are present under our Class X sentencing proceeding, double jeopardy does not bar a subsequent attempt to prove Class X eligibility at resentencing.
Despite the absence of these factors, defendants maintain that double jeopardy applies. They insist that the burden of proof in Class X sentencing procedures is at least by a preponderance of the evidence. They then assert the doctrine of collateral estoppel as applicable to this lesser standard and, therefore, that double jeopardy is implicated.
The reasonable doubt standard applies to criminal proceedings (see 2 J. Strong, McCormick on Evidence § 339 (4th ed. 1992)), to which double jeopardy attaches. In contrast, the preponderance of the evidence standard is generally reserved for civil matters (see 2 J. Strong, McCormick on Evidence § 339 (4th ed. 1992)), to which double jeopardy does not attach (see Village of Maywood v. Houston (1957), 10 Ill. 2d 117, 120, 139 N.E.2d 233). Thus, the requirement of a mere preponderance quantum of proof effectively defeats any analogy to trial on the issue of guilt and, therefore, any claim that jeopardy has attached.
Further, to the extent that defendants suggest collateral estoppel as an independent basis to bar the State's second attempt to prove Class X eligibility, we reject the suggestion. The doctrine of collateral estoppel, embodied in the fifth amendment's guarantee against double jeopardy, applies to bar relitigation of a valid and final judgment. (See Ashe v. Swenson (1970), 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469, 475; see also People v. Frias (1983), 99 Ill. 2d 193, 75 Ill. Dec. 674, 457 N.E.2d 1233.) Sentencing determinations do not carry the same finality as the judgment of guilt or innocence on the merits. (DiFrancesco, 449 U.S. 117, 101 S. Ct. 426, 66 L. Ed. 2d 328.) Thus, in *327 the context of non-trial-like sentencing proceedings, we afford the doctrine of collateral estoppel no viability independent of the double jeopardy clause.
We note defendants' additional argument that res judicata or law of the case bar a second attempt to prove Class X eligibility. Defendants cite to no authority to support the conclusion that either concept, like collateral estoppel, is embodied in double jeopardy. Again, we note, however, that sentencing determinations do not carry the same finality as do final judgments. Thus, defendants' reliance on these concepts is also unavailing.
We hold that Class X sentencing, which is governed by section 541, does not bear sufficient "hallmarks of a trial" on the issue of defendants' guilt. Thus, the Bullington exception is inapplicable to bar resentencing of defendants as Class X offenders; double jeopardy is not implicated.
Policy Considerations
Defendants next urge several policy considerations in support of their assertion that double jeopardy principles are applicable to the noncapital sentencing procedures at issue here. Specifically, defendants assert that as a matter of fairness, the State should not be given an additional opportunity to meet its burden of proof. Second, defendants assert that to bar a second attempt at enhanced sentencing will not result in the defendants' escaping all punishment, merely the most severe punishments. And third, defendants urge that principles of judicial economy would be promoted by the application of double jeopardy.
Double jeopardy assures that the prosecution and punishment of an individual have the degrees of finality and fairness essential to the administration of criminal law. (See Note, A Definition of Punishment for Implementing the Double Jeopardy Clause's Multiple-Punishment Prohibition, 90 Yale L.J. 632, 634 (1981); see also 6 L. Pieczynski, Illinois Practice § 21.3 (1989).) The principle of fairness insures that the defendant receives a punishment, set up by the court and authorized by the legislature, that is commensurate with his criminal liability. See 90 Yale L.J. at 634.
Illinois has a strong interest in protecting its citizenry from individuals who, by their repeated criminal conduct, demonstrate an incapacity to reform. Thus, in our view, the State's ability, at resentencing, to pursue a legislatively defined enhanced penalty for recidivists is not inconsistent with the fairness component of double jeopardy. Furthermore, it is not sufficient merely to conclude that the repeat offender will not, as a result of a double jeopardy bar, escape all punishment. Society's concern is not simply that the criminal offender will be punished, but that he will receive an appropriate punishment. Finally, the State's interest in protecting its citizenry from the offenses of repeat offenders far outweighs any interest in judicial economy.
Illinois' Double Jeopardy Clause
Defendants finally contend that if the Federal Constitution will not support application of double jeopardy principles to these noncapital recidivist sentencing procedures, then the Illinois constitution should. Defendants largely argue for our departure from the "lockstep doctrine" in construing our double jeopardy clause.
Under the "lockstep doctrine" this court would apply decisions of the United States Supreme Court based on Federal constitutional provisions to the construction of comparable provisions of the State constitution. (People v. DiGuida (1992), 152 Ill. 2d 104, 118, 178 Ill. Dec. 80, 604 N.E.2d 336.) As noted earlier in this opinion, the Supreme Court has not yet spoken on the extension of double jeopardy principles to noncapital sentencing procedures. (But see Bohlen v. Caspari (8th Cir.1992), 979 F.2d 109, cert. granted (1993), ___ U.S. ___, 113 S. Ct. 2958, 125 L. Ed. 2d 660.) Because the Supreme Court has not interpreted the Federal double jeopardy provision in the context of noncapital sentencing proceedings, defendants' argument for departure from the lockstep approach in this regard is unavailing.
The question, then, is simply whether our constitution may be interpreted to apply *328 double jeopardy principles to noncapital sentencing procedures.
In that regard, defendants assert that the wording of Illinois' double jeopardy clause supports a broader interpretation than does the wording in the Federal clause. Specifically, defendants refer to the phraseology "of life and limb" in the Federal double jeopardy clause as less expansive than the language in the Illinois clause ("no person shall be twice put in jeopardy for the same offense").
We reject defendants' attempt at a restricted construction of the Federal clause. The clause "of life and limb" has its origins in the common law. The phrase's literal meaning limited double jeopardy protection to capital offenses. (See Kelly, In the Wake of DiFrancesco: Derogation of the Multiple Punishment Bar of the Double Jeopardy Clause, 17 Suffolk U.L.Rev. 923 (1983).) It is axiomatic that the double jeopardy clause in the Federal Constitution applies, without limitation, to any criminal offense. Similarly, our double jeopardy clause applies to all criminal offenses. Thus, the difference in wording offers no substantial basis to support a conclusion that Illinois' clause provides broader protections than does its Federal counterpart. Aside from the difference in language, defendants have not directed our attention to anything, either in the debates or the committee reports of the constitutional convention, which would indicate that the double jeopardy provision in our constitution is intended to be construed differently than the Federal provision. See People v. Tisler (1984), 103 Ill. 2d 226, 245, 82 Ill. Dec. 613, 469 N.E.2d 147.
Defendants next suggest to us that to adequately safeguard the competing interests of judicial efficiency and finality, this court should interpret Illinois' double jeopardy provision to afford the defendants "protection from ordeal and risk."
We have not, heretofore, recognized judicial efficiency as a value underlying double jeopardy protections. Traditionally, the interests which form the foundation of double jeopardy are principles of fairness and finality. (See People v. Gray (1977), 69 Ill. 2d 44, 51, 12 Ill. Dec. 886, 370 N.E.2d 797.) We have already addressed the fairness issue in our discussion of defendants' policy considerations.
Double jeopardy protections represent a balancing of the defendant's interest in finality against society's interest in effective law enforcement. We regard a defendant's interest in finality with respect to sentencing as legitimate. However, we believe that a defendant's interest in the eventual length of his sentence as compared to his interest regarding a determination of guilt or innocence are not coequal. Specifically, a defendant has less of an interest in the length of his incarceration than in not being incarcerated at all. For that reason, many of the due process protections afforded a defendant at trial are not extended to sentencing proceedings. Thus, we conclude that any finality interest in sentencing is far outweighed by the State's countervailing interest to adequately protect its citizenry and to punish recidivists. See Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Sentences, 78 Mich. L.Rev. 1001 (1980).
We conclude that Illinois' double jeopardy clause provides no protection to the non-trial-like sentencing proceedings at issue here.
CONCLUSION
In No. 71542 (People v. Levin), the appellate court affirmed the defendant's conviction but vacated his sentence and directed that, upon remand, the trial court not resentence the defendant as a Class X offender. For the reasons stated, the appellate court's directions as to the resentencing of defendant Levin are vacated; in all other respects the judgment is affirmed. In Nos. 71820 (People v. Tyson), 72736 (People v. Knoop), 72929 (People v. Johns), and 73108 (People v. Carter), the judgments of the appellate court are affirmed.
No. 71542Affirmed in part and vacated in part;
No. 71820Affirmed.
No. 72736Affirmed.
*329 No. 72929Affirmed.
No. 73108Affirmed.
Justice NICKELS took no part in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564843/ | 691 S.W.2d 452 (1985)
STATE of Missouri, Plaintiff-Respondent,
v.
Edith M. VOYLES, Defendant-Appellant.
No. 13564.
Missouri Court of Appeals, Southern District, Division Three.
May 1, 1985.
Motion for Rehearing or Transfer Denied May 22, 1985.
*453 David E. Woods, Public Defender, Poplar Bluff, for defendant-appellant.
John Ashcroft, Atty. Gen., Deborah Neff, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
HOGAN, Judge.
This case is a so-called "welfare cheating" case. The defendant was charged with stealing by deceit, as defined and denounced by § 570.030.1. That statute, in pertinent part, provides:
"A person commits the crime of stealing if he appropriates property or services of another with the purpose to deprive him thereof ... by means of deceit or coercion."
A jury found the defendant guilty, and assessed the defendant's punishment at "No imprisonment, but a fine, in an amount to be determined by the court." The trial court then assessed defendant's punishment at a fine of $5,000, as authorized by § 556.011, RSMo 1978. We reverse and remand.
Some general statement about the case is appropriate. The State's theory was that the defendant obtained state-administered, federally assisted entitlements, specifically, AFDC and Food Stamps in an amount larger than that she should have received because she represented to the Division of Family Services that no member of her household received any Supplemental Security Income (SSI).
The procedure utilized by our Division of Family Services to establish eligibility for state-administered entitlements requires an affirmative statement that an applicant for AFDC (or other public assistance where income level is an eligibility criterion) does not receive SSI benefits, at least when SSI benefits are required to be counted as part of the household income. Upon evidence tending to indicate that defendant represented she was receiving no SSI benefits at a time when she was eligible for and was receiving SSI benefits from the general government and thereby received excessive entitlements the State instituted this prosecution as a theft by deceit. Such procedure was proper even though the representation was made prior to the enactment of § 205.967 in its present form. State v. Malveaux, 604 S.W.2d 728, 734-35[7] (Mo.App.1980); See also Annot., 22 A.L.R. 4th 534, 543-46, § 4 (1983).
With this background in mind, we consider defendant's contention that the trial court should have sustained her motion for judgment of acquittal made at the close of the State's case-in-chief because the information did not allege reliance upon the misrepresentation made by the defendant. The State answers this contention by repeating the unquestioned rule that when an *454 information alleges all essential facts constituting the offense but fails to set out those facts necessary for the accused's defense, then the information is subject to a challenge by a bill of particulars but is not fatally defective. State v. Lewis, 642 S.W.2d 627, 630 (Mo. banc 1982). We do not find that precedent controlling in this case, primarily because of the nature of the offense charged.
The information upon which the defendant was tried read as follows:
"Bradshaw Smith, Prosecuting Attorney of the County of Carter, State of Missouri, under his oath of office as such Prosecuting Attorney, charges that the defendant, Edith M. Voyles in violation of section 570.030, RSMo, committed the class C felony of stealing, punishable upon conviction under Sections 558.011.1(3) and 566.011, RSMo, in that on or about March 10, 1980, in the County of Carter, State of Missouri, the defendant appropriated public assistance payments and food stamps of a value of at least one hundred fifty dollars, which said property was in the possession of and operated by Missouri Department of Social Services, and defendant appropriated such property from the Department of Social Services and with the purpose to deprive them thereof by deceit, by misrepresenting that the defendant did not receive SSI benefits when, in fact, defendant had been and was presently receiving SSI benefits."
The offense of stealing by deceit is a purported innovation of the Criminal Code. So, the narrow inquiry in this case is the extent to which the elements of "stealing by deceit" were changed by the enactment of §§ 570.010 and 570.030. In our opinion, very little. The comment to § 570.030 notes that in 1955, the General Assembly extensively revised the law of larceny, as it did. Laws of Mo.1955, pp. 507-509. The 1955 act contained the following language:
"Section 2. Stealing unlawful. It shall be unlawful for any person to intentionally steal the property of another, either without his consent or by means of deceit."
This section appeared in the 1959 revision and subsequently as § 560.156.2. It was replaced by § 570.030 when the Criminal Code of 1979 was enacted. Section 570.030, as far as material here, adds only the words "or coercion" as a method or means of stealing.
Section 570.010(7), RSMo (Supp.1983), defines "deceit" to mean "purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind." The commentary to the original version of § 570.010 ran as follows:
"(7) `Deceit.' Currently, Missouri statutes do not define deceit. Most of the new codes do define it, but often the definition is verbose and complicated. The Code definition is more straightforward. It makes it clear that the actor must purposely make a representation which is false, which he does not believe is true and upon which the victim relies."
So, the elements of "deceit" as conceived by the framers of the Criminal Code may be conveniently said to be that an accused 1) purposely, 2) make a representation of fact, law, value, intention or other state of mind; 3) which he does not believe to be true, and 4) upon which the victim relies. (Emphasis added.)
There are several rules which are well established and which control and govern the sufficiency of the information filed in this case. An indictment or information must allege all elements of the crime intended to be charged and if such elements are missing they cannot be supplied by intendment or implication. State v. Gilmore, 650 S.W.2d 627, 629[6] (Mo. banc 1983); State v. Brooks, 507 S.W.2d 375, 376 (Mo.1974); State v. Atterberry, 659 S.W.2d 339, 341 (Mo.App.1983); State v. Charity, 619 S.W.2d 366, 367[2] (Mo.App. 1981). Further, if the statute creating the offense uses generic terms in defining the crime, it is necessary that indictments or *455 informations thereunder recite the conduct constituting the crime with sufficient particularity as to inform the accused of the specific offense of which he is accused, so as to enable him to prepare his defense or plead his conviction or acquittal as a bar to further prosecution for the same offense. State v. Kesterson, 403 S.W.2d 606, 609[1] (Mo.1966); State v. Fenner, 358 S.W.2d 867, 869-70 (Mo.1962). And, it is clear that to the extent § 570.030 denounces stealing by deceit, it uses generic terms to define the offense. State v. Eckard, 655 S.W.2d 596, 597-98 (Mo.App.1983).
Perhaps this information recites facts sufficient to apprise the defendant of the fundamental particulars of the offense charged against her so as to enable her to prepare her defense, although the defendant made three separate applications, the information does not specify any particular application, and only by inference can we gather that the defendant represented she was not receiving SSI benefits, knowing the representation to be untrue. Nowhere does the information charge reliance by the Department of Social Services on any of the applications in computing and paying out the public assistance the defendant received. This is an essential element of theft by deceit. State v. Kesterson, supra, 403 S.W.2d at 611[3, 4]. The information is fatally defective, the motion for judgment of acquittal made at the close of the State's case-in-chief was timely and accordingly, the cause is reversed and remanded.
However, so the opinion will not be misunderstood, we should point out that because the information was fatally defective, the trial court never had jurisdiction and thus jeopardy did not attach. Schlang v. Heard, 691 F.2d 796, 798[2] (5th Cir. 1982), cert. denied, 461 U.S. 951, 103 S.Ct. 2419, 77 L.Ed.2d 1310 (1983). Therefore, on remand, the State should be afforded an opportunity to seek leave to file an amended information or take such other action as the State deems advisable. State v. Cunningham, 380 S.W.2d 401, 403[10] (Mo. 1964). It is so ordered.
TITUS, J., concurs.
PREWITT, C.J., and CROW, P.J., concur specially.
MAUS, J., dissents.
PREWITT, Chief Judge, concurring.
I believe that the information was sufficient to adequately advise defendant of the charge but I am compelled to concur by State v. Kesterson, 403 S.W.2d 606, 611 (Mo.1966). By alleging in the information that defendant obtained the property "by deceit, by misrepresenting that the defendant did not receive SSI benefits when, in fact, defendant had been and was presently receiving SSI benefits", the information necessarily alleges reliance upon the misrepresentation.
In Kesterson the information was more general. It alleged that money was obtained "by means of deceit", but did not set forth what the misrepresentation was. However, the opinion stated "that the information must charge that the victim relied on the misrepresentations with which defendant is charged." I read it to require that this be specifically set forth in the information.
In view of present day discovery and procedures, I question whether such specificity should be required, but as the crime charged is basically the same now as it was at the time of Kesterson, and as a decision of the Missouri Supreme Court which this court must follow, I consider Kesterson controlling and reluctantly concur.
CROW, Presiding Judge, concurring.
I concur in the result but find it necessary to point out that, contrary to the State's assertion, the information in the instant case does not track MACH-CR 24.02.2 in faithful detail. MACH-CR 24.02.2 requires that an information charging stealing by deceit include "a concise statement of the ... essential elements of `deceit'... as defined in Section 570.010." (Emphasis added.)
Section 570.010(7), Laws 1979, p. 636, provides, in pertinent part:
*456 "`Deceit' means purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind." (Emphasis added.)
While it might be argued that the information in the instant case implicitly alleges that defendant did not believe the misrepresentation to be true, the information nowhere alleges that the Department of Social Services relied on the misrepresentation. Consequently, it fails to "track" MACH-CR 24.02.2.
MAUS, Judge, dissenting.
I respectfully dissent. In State v. Kesterson, supra, at p. 607, the information charged that the defendant did steal "by means of deceit" $2,564, the property of Jennie L. Walker. There was no reference to any specific representation made by the defendant to Walker. In fact, the information did not allege the deceit was accomplished by any misrepresentation. When used in this context, the term "deceit" was found to be a generic term.
However, I do not believe State v. Kesterson, supra, controls this case. It is significant that in State v. Kesterson, supra, the statement that a recital of reliance by the victim was essential, was not required for the disposition of the case. It is likewise significant the information was not presented in the light of a statutory definition of deceit. See § 570.010, Comment to 1973 Proposed Code (7). It is of decisive significance that the information contained no reference to a misrepresentation. State v. Eckard, 655 S.W.2d 596 (Mo.App.1983) may be distinguished upon the same basis.
It must be conceded the information does not fully follow MACH-CR 24.02.2 and the Notes on Use thereto. An applicable pattern charge should be given careful attention. However, error is not established nor presumed because the information did not follow MACH-CR 24.02.2. State v. Mitchell, 611 S.W.2d 223 (Mo. banc 1981).
"[T]he purpose of an information or indictment is twofold: to inform the accused of charges against him so that he may prepare an adequate defense; and to preclude retrial on the same charges should a jury acquit him." State v. Lewis, 642 S.W.2d 627, 630 (Mo. banc 1982). "The test of sufficiency of an indictment is whether it contains all essential elements of the offense as set out in the statute and clearly apprises defendant of facts constituting the offense." State v. Brown, 660 S.W.2d 694, 698 (Mo. banc 1983). As a corollary of that test, generally an information is sufficient if it follows or tracks the statute declaring the offense. State v. Eckard, supra. This is true even though the statutory definition of the offense uses terms which are, in turn, defined by statute. Compare State v. Copeland, 456 So.2d 1150 (Ala.Cr.App. 1984) and Lewis v. State, 659 S.W.2d 429 (Tex.Cr.App.1983). An information in statutory terms may sufficiently allege an element by intendment. State v. Puckett, 607 S.W.2d 774 (Mo.App.1980); Emmons v. State, 621 S.W.2d 329 (Mo.App.1981). However, as observed in the majority opinion, an information tracking the statute is not sufficient when the statutory definition of the offense employs a generic term. Or stated another way, "[w]hen the statute defines the elements of the offense in generic terms, more is required." State v. Mondaine, 646 S.W.2d 372, 374 (Mo.App. 1982). In this connection, a term is generally said to be generic when it does not proscribe specific conduct by which the offense is perpetrated. State v. Ladner, 613 S.W.2d 951 (Mo.App.1981).
In essence, the information in question alleges the defendant appropriated money of the state "by deceit, by misrepresenting that the defendant did not receive SSI benefits when, in fact, defendant had been and was presently receiving SSI benefits." The information clearly tracks the statute. By statute, the term "deceit" has only one meaning. "`Deceit' means purposely making a representation which is false and which the actor does not believe to be true and upon which the victim relies, as to a matter of fact, law, value, intention or other state of mind." § 570.010(7) (emphasis *457 added). When amplified by specification of the misrepresentation relied upon by the state, the term "deceit" is not generic. By the use of that term, the information sets forth the elements of the offense as set out in the statute. By a fair reading of the information, the defendant had notice of the elements of the offense with which she was charged. State v. Goddard, 649 S.W.2d 882 (Mo. banc 1983). I would hold the information sufficient. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597139/ | 28 So.3d 55 (2010)
JOHNSON
v.
STATE.
No. 3D08-1842.
District Court of Appeal of Florida, Third District.
February 24, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2177216/ | 138 Pa. Commonwealth Ct. 449 (1991)
588 A.2d 116
Arthur MOATS, Petitioner,
v.
WORKMEN'S COMPENSATION APPEAL BOARD (EMERALD MINES CORPORATION), Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs November 16, 1990.
Decided March 14, 1991.
*451 Jonathan E. Jones, Pittsburgh, for petitioner.
No appearance for respondent.
Before SMITH and PELLEGRINI, JJ., and SILVESTRI, Senior Judge.
SMITH, Judge:
Arthur Moats appeals the order of the Workmen's Compensation Appeal Board (Board) of April 18, 1990 affirming a referee's decision which granted the termination petition and petition for review of medical costs filed by Emerald Mines Corporation (Employer). The referee determined that Moats had recovered from his work-related injury as of January 6, 1986 and that certain medical expenses incurred *452 before and after that date were unreasonable and unnecessary. For the reasons hereinafter stated, the order of the Board is reversed in part and this matter is remanded for disposition in accordance with this opinion.
Moats was injured during the course of his employment on May 23, 1985 when the vehicle he was driving was struck by a truck. He was thrown from his vehicle and received injuries to his back and head. Moats began to receive benefits under The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1031, and thereafter entered into a supplemental agreement with Employer for the payment of weekly benefits for an indefinite period. On April 17, 1986, Employer filed a termination petition and a request for a supersedeas, alleging that Moats had recovered from his work-related injuries as of January 6, 1986. The referee denied Employer's request for a supersedeas on May 14, 1986.
Employer, however, unilaterally ceased paying Moats' medical expenses after it had filed the termination petition. Employer also filed a petition to review the necessity or reasonableness of the subject medical bills, which was consolidated with its termination petition. Moats filed a petition for a finding of violation and assessment of penalties against Employer for its refusal to pay medical bills. This petition was also consolidated with the termination proceedings.
After hearings and submission of depositions of medical experts, the referee granted Employer's termination petition and review petition, holding that Employer was not responsible for reimbursing Moats for certain hospitalization costs and for all physical therapy received after January 6, 1986. Concurrently, the referee denied as moot Moats' petition for a finding of violation and assessment of penalties. Moats appealed to the Board which, finding the referee's decision to be supported by substantial evidence, affirmed the referee.
*453 On appeal to this Court, Moats raises the following issues: (1) whether the Board erred by failing to remand the case to the referee to consider after-discovered medical evidence; (2) whether the Board erred by failing to make a negative inference against Employer because of Employer's refusal to pay for the medical testing necessary to establish objective proof of disk pathology and related disability; and (3) whether the Board erred because an important finding of fact was not supported by substantial evidence. This Court's scope of review in worker's compensation matters where both parties have submitted evidence is limited to determining whether the Board committed an error of law, made findings not supported by substantial evidence, or violated constitutional rights. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). Neither Employer nor the Board filed a brief in opposition to Moats' appeal before this Court.[1]
Initially, this Court takes note of an error of law committed by the Board when it affirmed the referee's decision to relieve Employer from liability for medical expenses it failed to pay. It is a clear and unacceptable violation of the Act for an employer to unilaterally refuse to pay a claimant's medical bills. Johnson v. Workmen's Compensation Appeal Board (Albert Einstein Medical Center), 137 Pa.Commonwealth Ct. 176, 586 A.2d 991 (1991). If an employer disputes the reasonableness or necessity of a claimant's medical bills or treatment, it may petition for review of these matters pursuant to Section 306(f)(2)(ii) of the Act, 77 P.S. § 531(2)(ii). The filing of a petition under this section, however, may not act as a supersedeas; and the employer shall be responsible for paying all medical bills incurred during the pendency of the petition. Id. Further, any relief granted an employer pursuant to Section 306(f)(2)(ii) is prospective only as of the *454 date the referee determines that the medical expenses are unreasonable or unnecessary; the employer may not seek reimbursement from the claimant or be relieved of paying past medical bills. Id.; Boehm v. Workmen's Compensation Appeal Board (United Parcel Services), 133 Pa.Commonwealth Ct. 455, 576 A.2d 1163 (1990). If an employer has paid medical bills later determined to be unreasonable or unnecessary, it may seek reimbursement from the Supersedeas Fund. ADIA Personnel Agency v. Workmen's Compensation Appeal Board (Coleman), 137 Pa.Commonwealth Ct. 405, 586 A.2d 507 (1991). Therefore, in the case sub judice, the Board's order must be reversed as to that portion which relieves Employer from paying Moats' medical expenses prior to the referee's decision, and Employer shall be directed to pay all of said medical bills. The Court shall now address Moats' more specific citations of error.
Moats first argues that the Board erred by refusing to remand the case to the referee to consider after-discovered evidence. Moats claims that this evidence consists of a recent medical report from his treating physician, Dr. Monsour, which is based upon a recent lumbar myelogram and CT scan of Moats' lower back and which indicates that Moats suffers from a bulging disk and a herniated disk. Moats argues that he was unable to receive this examination prior to the referee's decision because of Employer's refusal to pay his medical bills; but once Employer's compensation benefits were terminated, Moats was able to receive public medical assistance which enabled him to undergo needed testing. The referee had found that all diagnostic studies ruled out the possibility of Moats suffering from disk herniation and therefore found not credible Dr. Monsour's testimony that the work-related back injury was continuing. See Findings of Fact No. 7.
Although Moats did not file a formal petition for rehearing with the Board under Section 426 of the Act, 77 P.S. § 871, his request for a remand, supported by relevant after-discovered evidence, constitutes the equivalent of a rehearing petition. See Jones v. Workmen's Compensation *455 Appeal Board (First Pennsylvania Bank), 76 Pa.Commonwealth Ct. 345, 463 A.2d 1266 (1983). The decision to grant or deny a rehearing rests within the Board's discretion, and that decision will not be reversed absent an abuse of discretion. Id. This Court has held, however, that the Board abuses its discretion when it refuses to grant a rehearing when newly found evidence in the form of medical test results casts doubt upon an employer's proof that a claimant's disability has ceased. See Patterson v. Workmen's Compensation Appeal Board (Manpower/Transpersonnel, Inc.), 123 Pa.Commonwealth Ct. 541, 554 A.2d 614 (1989) (magnetic resonance imaging scan revealed presence of herniated disks); Johnson v. Workmen's Compensation Appeal Board (Carter Footwear, Inc.), 122 Pa.Commonwealth Ct. 404, 552 A.2d 331 (1988) (myelogram revealed presence of herniated disk); Jones (diagnosis after surgery revealed DeQuerviain's disease and ulnar nerve inflammation).
The difficulty with this Court's review of the issue raised by Moats, however, is that the Board never addressed Moats' request for a remand in its opinion affirming the referee's decision, nor is the alleged myelogram and CT scan result or Moats' letter requesting the remand a part of the record. This Court simply has no basis upon which to make a determination as to whether the Board abused its discretion. On the other hand, it is axiomatic that rehearings should be granted in the interests of justice in order to effectuate the humanitarian purposes of the Act. Cudo v. Hallstead Foundry, Inc., 517 Pa. 553, 539 A.2d 792 (1988). Therefore, this Court shall remand this matter to the Board so that it may consider whether Moats' alleged after-discovered evidence should form the basis for a rehearing in light of the authority cited in this opinion, and the Board shall set forth its findings and reasoning in the record. Because of this disposition, the Court need not at this time address Moats' other arguments in support of a rehearing. See Patterson.
*456 Accordingly, the Board's order is reversed to the extent that it relieves Employer from its responsibility to pay Moats' past medical bills. Further, this case is remanded to the Board to consider Moats' application for a rehearing on the basis of after-discovered evidence, and the Board's findings and conclusions thereto shall be set forth in the record.
ORDER
AND NOW, this 14th day of March, 1991, the order of the Workmen's Compensation Appeal Board at No. A89-883 dated April 18, 1990 is hereby reversed in part to the extent that it affirms the referee's decision denying payment for medical expenses previously incurred because they are unreasonable or unnecessary. Emerald Mines Corporation is directed to pay all of said medical expenses incurred by Arthur Moats prior to the date of the referee's decision of March 17, 1989.
It is further ordered that this matter is remanded to the Board with instructions that a hearing be held on Moats' application for a rehearing based upon after-discovered evidence as described in this opinion.
Jurisdiction relinquished.
NOTES
[1] By order dated November 13, 1990, this Court directed that the matter be submitted upon Petitioner's brief with Respondent precluded from submitting a brief in opposition. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2178648/ | 98 Wis. 2d 130 (1980)
295 N.W.2d 768
Helmut PRAHL, Dynatron Research Foundation, Inc., and Dynatron Research Corporation, Plaintiffs-Appellants,
v.
Bryan BROSAMLE, Forward Communications Corporation, Lieutenant Kuenning, Deputy Hartwig, David Carter, Deputy Hein, Deputy Huber, Richard Homan, Anthony Gerl, Martin Micke, Gregory Martin, City of Madison, County of Dane, and Daniel Rutz, Defendants-Respondents.[]
No. 77-849.
Court of Appeals of Wisconsin.
Argued September 27, 1979.
Decided July 10, 1980.
*132 For the plaintiffs-appellants there were briefs by John P. Koberstein and Voss, Nesson, Koberstein, Erbach & Voss, S.C., of Madison, and oral argument by John P. Koberstein.
For the defendants-respondents Bryan Brosamle et al. there was a brief by Bell, Metzner & Seibold, S.C., of Madison, and oral argument by John Moore of Madison.
For the defendants-respondents Lieutenant Kuenning et al. there was a brief by Conrad H. Johnson and Schlotthauer, Johnson, Mohs, MacDonald & Widder of Madison, and oral argument by Conrad H. Johnson.
Before Gartzke, P.J., Bablitch, J. and Dykman, J.
GARTZKE, P.J.
This appeal arises out of the trial court's dismissal of the complaint at the close of the plaintiffs' case in a jury trial. The plaintiffs are Dr. *133 Helmut Prahl, Dynatron Research Foundation and Dynatron Research Corporation.
Dr. Prahl, a biochemist, is the executive director of the foundation and the sole stockholder and president of the research corporation. His residence, the offices of the foundation and the laboratory of the research corporation are located in a single building on about six acres fronting on Struck Road in a township adjacent to Madison. Dr. Prahl owns the land and building. The Madison Police Department received a complaint June 18, 1975 that shots had been fired at four boys who were bicycling in the area. Dane County sheriff's deputies and the police investigated the report that night. Employees of Forward Communications, operators of television station WMTV, broadcast newscasts of the incident.
Dr. Prahl seeks damages for a claimed violation of his civil rights from Bryan Brosamle, a newscaster for WMTV, and from the deputies and police, and damages for defamation from Brosamle, two other WMTV newscasters and WMTV.[1] Dr. Prahl, the foundation and the research corporation seek damages for negligent performance of procedures from the deputies, the police, the City of Madison and Dane County, and damages for trespass from Brosamle, WMTV, the deputies and the police. Plaintiffs seek compensatory and punitive damages as to all claims except the claim based upon negligence, as to which only compensatory damages are sought.
[1-3]
Before proceeding to a more detailed statement of the facts, we first note the appropriate standard of review. A motion to dismiss will not be granted at the close of a plaintiff's case if, under any reasonable view of the *134 credible evidence and the inferences from that evidence, the jury could find for the plaintiffs. If a jury could disagree on the facts or on the inferences to be drawn from the facts, the motion must be denied and the facts must be left for determination by the jury. Sec. 805.14 (1), Stats; Gries v. First Nat. Bank of Milwaukee, 82 Wis. 2d 774, 776-77, 264 N.W.2d 254 (1978); Nelson v. Travelers Ins. Co., 80 Wis. 2d 272, 278, 259 N.W.2d 48 (1977); Household Utilities, Inc. v. Andrews Co., 71 Wis. 2d 17, 24, 236 N.W.2d 663 (1976). When determining whether a motion to dismiss should have been granted, the evidence is viewed by this court in the light most favorable to the plaintiffs. Gries, supra; Nolden v. Mutual Benefit Life Ins. Co., 80 Wis. 2d 353, 358-59, 259 N.W.2d 75 (1977).
Accordingly, we state only those facts which are favorable to the plaintiffs and which are pertinent to the issues raised on appeal.
After the boys allegedly shot at were interviewed, the police assembled the city's Strategic Weapons and Tactics Squad (SWAT). About 9:30 p.m. officers from the squad positioned themselves behind, to the side and in front of the building. Other officers assembled in squad cars at the Struck Road entrance to the driveway. Lieutenant Kuenning of the sheriff's office took command because the Prahl property was not in Madison. No search or arrest warrant was procured or requested.
The police made a telephone call to Dr. Prahl, requesting that he step outside his residence. Fifteen minutes passed before Dr. Prahl emerged, and when he did so, the police charged the residence on foot and in squad cars. Dr. Prahl was frisked outside his house and the police searched the residence and laboratory. Plaintiffs concede that the search was made with probable cause. The police found a .22 caliber rifle containing seven rounds in the entrance hallway. They found Dr. Prahl's *135 fourteen-year old son in his bedroom. The youth surrendered a pellet gun to the police. Both guns were confiscated.
The police interviewed Dr. Prahl in an office in the building. He said that he often shot gophers on his property. He said that several boys had been playing with antique cars which he kept on the premises, that he asked the boys to leave, and that after a delay to allow them to do so he had shot at a gopher.
Dr. Prahl was not taken into custody. A deputy sheriff told Dr. Prahl that he would be charged with the crime of reckless use of a weapon[2] and told him to report to the district attorney's office June 20.
Brosamle heard the call summoning the SWAT team while he was monitoring a police scanner at WMTV, grabbed a silent movie camera and went to the scene. He introduced himself to the officers on Struck Road and made inquiries. Brosamle asked Lieutenant Kuenning for a ride to the Prahl residence and was told that he could come forward when the situation was under control. Brosamle filmed the squad cars as they charged up the driveway to the building and rode to the building *136 with Lieutenant Kuenning. Brosamle went into the building, positioned himself in the entranceway or vestibule, and filmed officers confiscating the guns and part of the police interview with Dr. Prahl.
Brosamle did not request or receive Dr. Prahl's permission to go upon the premises, to enter the building, or to take pictures inside the building. "No trespassing" signs were located at points on the boundaries of the premises but not at the driveway entrance on Struck Road. There is no evidence that Brosamle, the officers or the deputies knew about the signs. Dr. Prahl saw Brosamle taking pictures but thought that he was an officer or a deputy and did not tell Brosamle to stop or to leave. Brosamle talked to Dr. Prahl's son in a laboratory. Lieutenant Kuenning testified that while on the premises he may have told Brosamle that Dr. Prahl would be charged with reckless use of a weapon.
Brosamle returned to WMTV where he drafted a news script and edited his film. The story was broadcast that evening and the next day. The story consisted of film shots showing police cars driving to the building, officers holding the confiscated guns and Dr. Prahl talking to officers in his office. The gist of the broadcasts was that Dr. Prahl had been charged with the crime of reckless use of a weapon.
Dr. Prahl reported as directed to the district attorney. No charge, however, was made against Dr. Prahl as a result of the June 18 incident.
1. Violation Of Civil Rights
Dr. Prahl's complaint alleges that his constitutional rights were violated by an unreasonable search and seizure, by the filming and broadcasting of that search and seizure without his consent, and by the invasion of his privacy through the release of information obtained in confidence from him in a criminal investigation without his consent.
*137 Dr. Prahl predicates his claim for damages on 42 U.S.C. sec. 1983 which provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .
The elements for recovery under sec. 1983 are twofold. First, the plaintiff must prove that the defendant has deprived him of a right secured by the constitution and laws of the United States. Second, the plaintiff must show that the defendant acted under color of state law. Adickes v. Kress & Co., 398 U.S. 144, 150 (1970).
The record does not support a conclusion that Brosamle acted under color of state law. Brosamle acted exclusively for his private employer. Section 1983 is directed only to state action. Section 1983 "does not reach purely private conduct . . . ." District of Columbia v. Carter, 409 U.S. 418, 424 (1973).
A private person nevertheless acts under color of law for purposes of sec. 1983 if that person is "a willful participant in joint activity with the State or its agents." Adickes, 398 U.S. at 152, quoting United States v. Price, 383 U.S. 787, 794 (1966).
If, however, a private person participates in a joint activity with the state and that activity does not deprive the plaintiff of a right secured by the constitution and laws of the United States, then the first element for recovery under sec. 1983 does not exist. We therefore look to the lawfulness of the search and seizure by the deputies and the police.
Dr. Prahl concedes probable cause for the search and seizure but contends that an otherwise reasonable search *138 or seizure may be rendered unreasonable by circumstances surrounding the event, citing Doe v. Duter, 407 F. Supp. 922 (W.D. Wis. 1976). He argues that the filming and television broadcast of the search and seizure are such circumstances.
The circumstances of a body search, including the manner in which it is ordered, affect the reasonableness of a search. Bell v. Wolfish, 441 U.S. 520, 558-60 (1979).
[4]
We are unwilling to accept the proposition that the filming and television broadcast of a reasonable search and seizure, without more, result in unreasonableness. The unreasonable circumstance in Doe, supra, was unnecessary male participation in body searches of female students at a delinquent girls' school. Neither the search of Dr. Prahl and his premises nor the film or its broadcast has been shown to include intimate, offensive or vulgar aspects.
Paul v. Davis, 424 U.S. 693 (1976), puts to rest the sec. 1983 action for invasion of privacy based upon disclosure of the incident. The plaintiff in Paul claimed damages under sec. 1983 because of a public statement by police that the plaintiff had been arrested for shoplifting. Plaintiff's complaint alleged, among other things, a violation of a right to privacy guaranteed by the United States Constitution. The Supreme Court held that no constitutional protection exists against public disclosure of the fact of arrest. 424 U.S. at 713.
Moreover, the record does not show that the investigation conducted by the deputies and police was confidential. An investigation reminiscent of the charge on San Juan hill is in no sense confidential. The parties have not briefed the question whether Dr. Prahl's rights under the United States Constitution were violated by disclosure to Brosamle of Dr. Prahl's statements to the investigators. *139 We will not rule on constitutional issues raised but not briefed. Dumas v. State, 90 Wis. 2d 518, 523, 280 N.W.2d 310 (Ct. App. 1979).
The evidence, viewed most favorably as to Dr. Prahl, fails to show a violation of 42 U.S.C. sec. 1983. The circuit court therefore properly dismissed that part of the complaint which seeks damages on the basis of that statute.
2. Defamation
Dr. Prahl claims that he was defamed by the television broadcasts.
Analysis of a claim for defamation requires first a determination whether the communication complained of is capable of a defamatory meaning and, if it is, then a consideration of the defenses alleged. Lathan v. Journal Co., 30 Wis. 2d 146, 151, 140 N.W.2d 417 (1966).
This state has adopted the rule of Restatement (Second) of Torts sec. 559 at 156 (1977), which describes a defamatory communication as follows:
A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.
See Lathan, 30 Wis.2d at 153; Starobin v. Northridge Lakes Development Co., 94 Wis. 2d 1, 11, 287 N.W.2d 747 (1980); Schaefer v. State Bar, 77 Wis. 2d 120, 123, 252 N.W.2d 343 (1977).
"It is the function of the court as a matter of law to determine whether a communication is capable of a defamatory meaning." Lathan, 30 Wis.2d at 153, 140 N.W.2d at 421, citing several Wisconsin precedents and Restatement of Torts sec. 614 at 304 (1938).
Dr. Prahl does not contend that the televised scenes were defamatory. His claim is limited to the verbal portions of the newscasts.
*140 The evidence of the verbal portion of the June 18 and 19, 1975 newscasts consists of five scripts. The first script reads as follows:
Dane County authorities tonight charged a man who lives near Madison's west side with reckless use of a fire arm. Authorities say two young bicycle riders complained someone was shooting at them as they rode in the Seybold Road area. They said the shots came from the DYNATRON research building. A Madison police SWAT team was put into action. The three team members surrounded the building in the darkness. They finally got DR. HELMUT PRAHL to come out and then answer questions. PRAHL told officers he was shooting at ground squirrels not the boys. He also claimed the young boys had been fooling around with his car. Authorities confiscated a semi-automatic .22 rifle and a pellet gun. They did not take PRAHL into custody. He's been ordered to see the District Attorney on Friday. PRAHL'S DYNATRON laboratory and home is in the county . . . but sits between several Madison business places. (Emphasis in original.)
The other scripts contain similar statements with minor inconsistencies. One script states that Dr. Prahl "will answer charges of reckless use of a fire arm" and the remaining three state that he was "charged" with reckless use of a firearm.
The verbal portions of the newscasts were capable of a defamatory meaning. A person's reputation may be lowered by a charge of reckless use of a firearm, a crime which by definition involves endangering another's safety or intentionally pointing a firearm at or toward another. Sec. 941.20 (1), Stats.
[5]
A statement that a person has been charged with a crime imputes the commission of a crime to that person and is defamatory. Woody v. Broadcasting Co., 272 N.C. 459, 158 S.E.2d 578 (1968); Martin v. Orange County Publications, Inc., 49 Misc. 2d 84, 266 N.Y.S.2d 875 *141 (1965), aff'd 25 App. Div.2d 471, 266 N.Y.S.2d 348 (1966); Rimmer v. Chadron Printing Co., 156 Neb. 533, 56 N.W.2d 806 (1953); Knoxville Pub. Co. v. Taylor, 31 Tenn. App. 368, 215 S.W.2d 27 (1948).
We turn to the defenses of WMTV and its employees.
[6]
Defendants claim that the newscasts were substantially true. "Substantial truth" is a complete defense to an action for defamation. DiMiceli v. Klieger, 58 Wis. 2d 359, 363, 206 N.W.2d 184 (1973). It is not necessary that the statement in question be true in every particular. "All that is required is that the statement be substantially true." Lathan v. Journal Co., 30 Wis. 2d 146, 158, 140 N.W.2d 417, 423 (1966). Lathan quotes from what is now comment f to sec. 581A, Restatement (Second) of Torts at 237 (1965): "It is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance."
The circuit court found that the first script set forth, in substantial truth, the events of the evening as related by the police and Dr. Prahl and that the other scripts varied somewhat but nevertheless set forth the same information as the first script. Dr. Prahl admitted that the first script was "substantially correct." Regardless, however, of the substantial truth of the balance of the scripts, the fact is that Dr. Prahl was never charged with reckless use of a firearm as a result of the June 18 incident.
A false statement that a person has been charged with reckless use of a firearm is not a slight inaccuracy. We should not permit the "substantial truth" test to sanitize a single but glaring falsehood in a series of true or substantially true statements. We therefore turn to the second claimed defense, that of privilege.
*142 WMTV, Brosamle and the other WMTV employees assert conditional or qualified privileges to protect them from damages for the defamation: a nonconstitutional privilege based upon the public policy favoring the free flow of information; and privileges arising out of the first amendment to the United States Constitution and art. I, sec. 3 of the Wisconsin Constitution.
The distinction between nonconstitutional and constitutional privileges in defamation is noted in Calero v. Del Chemical Corp., 68 Wis. 2d 487, 501, 228 N.W.2d 737 (1975), citing Prosser, Law of Torts sec. 115 at 785 and sec. 118 at 819 (4th ed. 1971). The nonconstitutional privileges discussed by Prosser are based upon protection of the defendant's own legitimate interests, protection of the interests of persons other than the publisher, protection of a common interest between the publisher and the recipient, and protection of the public interest by a communication to those who may take official action. Prosser adds the privilege of fair comment on matters of public concern, which, according to Prosser, has become a constitutional privilege. See Prosser, Law of Torts sec. 115 at 785-796. Restatement (Second) of Torts secs. 594-598A at 263-86 (1977), describe several factors determining the existence of a conditional privilege arising from an occasion which are similar to the privileges described by Prosser.[3]
None of the nonconstitutional privileges described by Prosser or the factors described by the Restatement has been shown to apply to WMTV and its employees. Accordingly, *143 we review the availability of a constitutional privilege to those defendants.
New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), held that "a public official [is prohibited] from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Curtis Publishing Co. v. Butts, 388 U.S. 130 (1976), extended the New York Times test to "public figures." Gertz v. Welch, 418 U.S. 323, 345 (1974), defined a "public figure" as follows:
For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.
Rosenbloom v. Metromedia, 403 U.S. 29 (1971), extended the New York Times test in a holding characterized by Gertz as meaning that "a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test." 418 U.S. at 337. Gertz, however, withdrew the Rosenbloom extension.
We are therefore left with the public official and public figure tests for purposes of a first amendment privilege. There has been no showing that Dr. Prahl meets either test. Dr. Prahl is privately employed and is not a public official. He was not shown to be a public figure, within the Gertz definition. He has not been shown to have injected himself into public controversy or *144 to be a celebrity or famous by virtue of his position.[4] It is immaterial, for purposes of the first amendment privileges, that Dr. Prahl became involved in a newsworthy event. Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 167-68 (1979), held that the newsworthy character of an incident or the fact that an event attracted media attention "is not conclusive of the public figure issue."
[7]
We conclude that no conditional privilege arising out of the first amendment to the United States Constitution protects WMTV and its employees from damages for defamation of Dr. Prahl, subject to limitations imposed by Gertz upon the state's right to permit a recovery.
The Supreme Court held in Gertz, 418 U.S. at 347:
[S]o long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.
Gertz imposed an added limitation: that the states "may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth." 418 U.S. at 349. "It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury." 418 U.S. at 349. "[A]ll awards must be supported by competent evidence concerning the injury. . . ." 418 U.S. at 350.
This state has not announced a post-Gertz standard of liability applicable to defamation of private persons by the press. We need not, however, undertake that task *145 because of the applicability of the Gertz limitations on damages to the facts of this case. Dr. Prahl has shown no basis to recover punitive damages and has not established actual damages arising out of the defamation.
The circuit court found, and we agree, that the record shows no malice or ill will, bad motive, knowledge of falseness or reckless disregard for the truth. A newscaster cannot be said to act with knowledge of falsity or with reckless disregard of the truth by broadcasting that a person has been or will be charged with a crime where that person was told by a deputy sheriff that he would be so charged. The difference between a charge in fact and a charge to be made, in this context, is inconsequential. Accordingly, Gertz prevents the recovery of punitive damages.
Evidence as to Dr. Prahl's damages was directed to the effect of the incident at his residence and its televised coverage, with no reference whatever to the effect of the defamatory statement. Dr. Prahl testified at some length regarding his distress and anguish over the incident and as to the effect of the incident upon his relationships with his son, his fiancee and his business associates and upon his ability to earn a living. Dr. Prahl did not attribute any of his problems to the defamation. His fiancee testified that she broke their engagement because Dr. Prahl became obsessed with the notion that a conspiracy existed against him and that he had become argumentative since the incident. She never referred to the defamation. Dr. Prahl made an offer of proof through the testimony of a potential partner in a real estate development that the witness was left with the impression because of the broadcast that Dr. Prahl was an "irate" individual. The witness was hesitant to do business with Dr. Prahl when he learned that Prahl was the individual involved in the televised incident but never referred to the statement that Dr. Prahl was or would be charged with a crime. *146 Another potential business associate did not do business with Dr. Prahl because of the televised incident. This was the only witness who referred to an arrest.
[8]
Consequently, regardless of the standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual, actual injury from the defamation has not been shown. The action for defamation therefore cannot survive under the Gertz limitations. The trial court properly dismissed this part of Dr. Prahl's claim.
3. Trespass
A. Trespass By Brosamle Established
The circuit court held that Brosamle was not a trespasser. We reject that conclusion.
The common-law rule of liability for intentional intrusion of land as set forth in Restatement (Second) of Torts sec. 158 at 277 (1965), so far as is material, is as follows:
One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third person to do so, . . . .
Comment e adds that conduct which would otherwise constitute a trespass is not a trespass if it is privileged by consent of the possessor or by law.
Proof of entry, without more, is insufficient to establish a claim for trespass. The plaintiff must also show the plaintiff's right to possession. Failure to establish the element of possession is fatal to the claim. Laska v. Steinpreis, 69 Wis. 2d 307, 320, 231 N.W.2d 196 (1975).
There is evidence from which the jury could conclude that Dr. Prahl not only owned the six acres and the building but had a right to possession of that part of the *147 building occupied by him as a residence, that the laboratory in the building was that of the research corporation and that the office in the building was that of the foundation. That evidence consists of Dr. Prahl's statement that the plaintiffs maintained those respective facilities in the building and that he owned the land and building. Brosamle at least positioned himself in the entranceway or vestibule of the building. All persons having a right to use the common way are parties to this action. Additionally, the research corporation may bring trespass for entry of its laboratory.
Consent to entry is a defense to an action for trespass. Baumgart v. Spierings, 2 Wis. 2d 289, 86 N.W.2d 413 (1957); Restatement (Second) of Torts sec. 167 at 309 (1965). That consent may be given expressly or it may be implied from the conduct of the plaintiff, from the relationship of the parties or from custom. Baumgart, 2 Wis.2d at 293.
Express consent was never given. Nothing in the conduct of Dr. Prahl on his own behalf or that of the corporations suggests a consent to entry by Brosamle. Acquiescence by a plaintiff in past intrusions by members of the same class as the defendant is conduct from which a consent to entry may be implied. Baumgart, supra. There is no evidence of past conduct by the plaintiffs which could be interpreted as a consent to Brosamle's entry. No relationship exists between the parties from which a consent may be implied.
Brosamle and WMTV argue that plaintiffs impliedly consented, by custom and usage, to the presence of newsmen on the premises. They do not assert that this record establishes such a custom or usage but rely upon Florida Pub. Co. v. Fletcher, 340 So. 2d 914 (Fla. 1977), cert. denied 431 U.S. 930 (1977).
The facts in the Fletcher case are that following a fire which killed plaintiffs' daughter in their home, a *148 large group of firemen, news photographers and onlookers gathered at the scene. The fire marshal and a police sergeant invited news representatives to enter the house. The representatives entered through an open door without objection to gather news of the fire and death. The marshal requested defendant's photographer to take a picture of the "silhouette" left on the floor after removal of the body. The marshal and sergeant testified that it was common custom and usage to permit news media to enter under such circumstances. Affidavits to the same effect were filed by the sheriff, attorney general of the state and several newspapers and television stations.
Fletcher held that the plaintiffs could not recover for trespass because the entry was effected by an implied consent arising out of a longstanding custom to allow news representatives to enter private property where a disaster has occurred and the officers investigating the calamity invite the entry.
The authorities relied upon by Fletcher deal with the implied invitation by businessmen, tradesmen and professionals to the public to come to their shops and offices, the implied invitation by a householder to others to come to the home for business or information, and the implied consent of landowners to sportsmen to enter land if consent is customarily given. Fletcher, 340 So.2d at 916. The following quotations from two of the authorities relied upon by Fletcher are representative:
Consent to enter on land in the possession of another may be derived from the relationship of the parties, as in the case of intimate friends or social or business visitors. Unless the possessor manifests otherwise, a general or local custom may confer a consent, as where a traveler enters another's land to make inquiry as to the road or where in a particular neighborhood it is customary to permit persons to wander, fish, shoot and *149 camp at will on unenclosed land. Restatement of Torts sec. 167, comment d at 403 (1934).[5]
So every man, by implication, invites others to come to his house as they may have proper occasion, either of business, of courtesy, for information, etc. Custom must determine in these cases what the limit is of the implied invitation. 2 Cooley on Torts sec. 248 at 238 (4th ed. 1932) (footnotes omitted).
Fletcher is distinguishable from the facts of this case. No official requested Brosamle's assistance in the investigation. Brosamle and WMTV do not rely upon record evidence of a custom of the type described in Fletcher.
We will not imply a consent as a matter of law. It is of course well known that news representatives want to enter a private building after or even during a newsworthy event within the building. That knowledge is no basis for an implied consent by the possessor of the building to the entry. Because of reasonable expectations, landowners commonly post their lands against trespassers. Businesses, professionals and homeowners are known to post their buildings against anticipated *150 solicitations. Few private persons anticipate, however, that an unplanned newsworthy event will occur on their property. An advance objection to entry under remotely possible circumstances need not be made, and it is unreasonable to require an objection after entry under distracting circumstances, especially when the identity of the intruder is unknown.
[9]
We conclude that custom and usage have not been shown in fact or law to confer an implied consent upon news representatives to enter a building under the circumstances presented by this case.
The jury could have found at the conclusion of Dr. Prahl's case that Brosamle trespassed by entering the six acres from Struck Road as well as by entering the building.
A custom exists in this state from which a consent or invitation of the type described by 2 Cooley on Torts sec. 248, supra, is implied. That custom is the basis for the holding in Brabazon v. Joannes Brothers Co., 231 Wis. 426, 433, 286 N.W. 21, 25 (1939), that business visitors to a store are "impliedly licensed to enter and be there for the purpose of offering articles and demonstrating the nature or operation thereof in the usual and customary manner, as long as reasonably necessary to accomplish those purposes or the plaintiffs permitted them to remain."
An implied consent to enter the land of another for business or informational purposes creates a privilege to enter only for that purpose. Brabazon, 231 Wis. at 433. Brosamle did not enter Dr. Prahl's land to do business with the plaintiffs or to obtain permission to gather news on the land or in the building. He did not seek information of the type covered by the custom, such as directions.[6]
*151 Accordingly, a new trial must be had as to the claims of Dr. Prahl against Brosamle and his employer for trespass by entering the six acres from Struck Road without permission, unless entry was otherwise privileged.
[10]
Brosamle and WMTV argue that they should be accorded a privilege to trespass stemming from the first amendment to the United States Constitution. No case is cited to support that proposition. On the contrary, Branzburg v. Hayes, 408 U.S. 665, 684-85 (1972), states in dictum, "Newsmen have no constitutional right of access to the scenes of crime or disaster when the general public is excluded . . . ." Le Mistral, Inc. v. Columbia Broadcasting, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978), appeal dismissed 46 N.Y.2d 940 (1979), held that a television broadcast station was not entitled to immunity from damages for trespass by virtue of the first amendment. Le Mistral relied upon Dietemann v. Time, Inc., 449 F.2d 245, 249 (9th Cir. 1971), in which the court of appeals observed in an action for invasion of privacy that "[t]he First Amendment has never been construed to accord newsmen immunity from torts or crimes committed during the course of newsgathering. The First Amendment is not a license to trespass . . . ."
We conclude that the claimed constitutional privilege to trespass does not exist.
B. Damages Recoverable For Trespass By Brosamle
[11]
The circuit court also found that the plaintiffs had failed to show damages to the premises caused by Brosamle's entry and that the damage, if any, from the television *152 broadcast was not caused by Brosamle's presence on the premises. The court concluded that the damages asserted in Dr. Prahl's claim for defamation could not support his claim in trespass.
The circuit court erred in not allowing the plaintiffs at least to recover nominal damages as determined by the jury. A trespasser who has not damaged the property or its possessor is nevertheless liable to the possessor for nominal damages. Hajec v. Novitzke, 46 Wis. 2d 402, 417-18, 175 N.W.2d 193 (1970), affirming an award of one dollar; Diana Shooting Club v. Kohl, 156 Wis. 257, 145 N.W. 815 (1914), affirming an award of six cents; Restatement (Second) of Torts sec. 163 at 294 (1965).
Compensatory and punitive damages have been held recoverable from news representatives for trespass. Le Mistral, Inc. v. Columbia Broadcasting, 61 A.D.2d 491, 402 N.Y.S.2d 815 (1978); Belluomo v. KAKE TV & Radio, Inc., 3 Kan. App. 2d 461, 596 P.2d 832 (1979).
In Le Mistral, CBS directed an employee and a camera crew to visit restaurants which had been cited for health code violations in New York City. The camera crew and the employee entered the plaintiff's restaurant with a camera "rolling." The court found that a trespass had occurred and allowed unspecified compensatory damages and punitive damages.
In Belluomo, defendant's newsmen accompanied a food inspector to the plaintiffs' restaurant. One of the owners was fraudulently induced by the newsmen to grant permission to enter and photograph the nonpublic area of the restaurant. Defendant's television broadcast stated that unsanitary conditions existed in the restaurant and showed sections of the restaurant. The theory of the plaintiffs' claim was tortious conduct, trespass, in defendant's newsgathering, not defamatory falsehood. Plaintiffs sought compensatory damages based upon reduced customer patronage after the broadcast and punitive *153 damages for the fraud. The court held that "a party is entitled to recover compensatory damages for injury resulting from publication of information acquired by tortious conduct," and, "Truth of what was broadcast was no defense to plaintiffs' claim." 3 Kan. App. 2d at 471, 476, 596 P.2d at 842, 845. The court appears to have relied heavily upon Dietemann, 449 F.2d at 250, where it is said, "A rule forbidding the use of publication as an ingredient of damages would deny to the injured plaintiff recovery for real harm done to him without any countervailing benefit to the legitimate interest of the public in being informed."
Belluomo extends a trespasser's traditional liability to include nonphysical harm subsequent to the trespass. Restatement (Second) of Torts sec. 162 at 291-92 (1965), provides:
A trespass on land subjects the trespasser to liability for physical harm to the possessor of the land at the time of the trespass, or to the land or to his things, or to members of his household or to their things, caused by any act done, activity carried on, or condition created by the trespasser, . . . .
The extension to include nonphysical harm from an intrusion of the type involved is reasonable. To allow only nominal damages under the circumstances presented because of lack of physical harm would permit the trespasser to enjoy the benefits of his tort without fully compensating a plaintiff for his loss.
A new trial must therefore be granted as to the plaintiffs' claims for trespass by Brosamle.
Establishing the effect of publication of the tortiously acquired information at the trial, as contrasted to the effect of publication of information lawfully acquired by Brosamle, may be difficult. It is only the film and information obtained during the trespass which were tortiously acquired. The damages recoverable from publication, *154 insofar as mental distress is claimed, are further subject to the rule that, "In intentional torts, substantial other damages in addition to damages for emotional distress are required." Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 694, 271 N.W.2d 368, 378 (1978).
C. Trespass By Lieutenant Kuenning Established
[12]
A new trial must be had with respect to the plaintiffs' claims for trespass against Lieutenant Kuenning and Dane County but not as to the other deputies, officers and the City of Madison. The deputies and police were privileged under the circumstances of this case to enter the land and building. Restatement (Second) of Torts secs. 204-06 at 381-88 (1965).[7]
Lieutenant Kuenning's statement that Brosamle could come forward when the situation was under control may have been intended only to indicate no objection to Brosamle's presence. A jury could find that, however, it constituted a consent to Brosamle's entry upon the premises.
Lieutenant Kuenning had no authority to extend a consent to Brosamle to enter the land of another. Although entry by Lieutenant Kuenning was privileged, he *155 committed a trespass by participating in the trespass by Brosamle. "All persons who cooperate, instigate, command, encourage, ratify, condone, aid, assist, or advise the commission of a trespass are liable as cotrespassers." Dooley, 3 Modern Tort Law sec. 40.11 at 165 (1977) (citations omitted).
There is no evidence that an officer or a deputy other than Lieutenant Kuenning told Brosamle that he could enter the premises or the building. The court properly dismissed the claims for trespass against the deputies other than Lieutenant Kuenning and against the officers and the City of Madison but erred in dismissing the claims as to Lieutenant Kuenning and Dane County. A new trial must therefore be had as to those claims.
4. Negligent Performance Of Official Procedures
The theory presented on appeal of this claim is that the Dane County Sheriff's Department and its deputies and the Madison Police Department and its officers must follow their own regulations and that failure to do so constitutes a denial of due process.
A governmental agency must follow its own regulations. State ex rel. Meeks v. Gagnon, 95 Wis. 2d 115, 119, 289 N.W.2d 357 (Ct. App. 1980); State ex rel. Forte v. Ferris, 79 Wis. 2d 501, 511-12 n. 6, 255 N.W.2d 594 (1977). The principle presupposes, however, the existence of a rule, regulation or procedure which is sufficiently definite to be enforced by a court. The regulations claimed to have been violated pertain to permitting news representatives to enter private property and to releasing information to the news media. The Sheriff of Dane County and the Chief of the Madison Police Department testified only to vague and general unwritten "policies." Plaintiffs failed to establish the existence of definite and pertinent rules, regulations or procedures of either department. The circuit court properly dismissed the claim.
*156 5. Excluded Evidence As To Reputation
[13]
Dr. Prahl complains that a witness was not permitted to testify as to Dr. Prahl's reputation in the community after the television broadcast. The theory under which the evidence was offered is that it pertained to the issue whether Dr. Prahl was defamed by the television broadcast. Counsel for Dr. Prahl offered to prove through the witness that the witness heard of a television broadcast that Dr. Prahl had been arrested and that there were allegations in the broadcast that Dr. Prahl had shot at children and had been summarily forced out of his building. The witness had contemplated but not entered business relationships with Dr. Prahl. The witness felt uneasy about associating with Dr. Prahl, apparently because of the possible effect of the televised incident on Dr. Prahl's value as a court witness, which would be one of his roles in the relationship.
The esteem in which one person holds another does not establish the reputation of the other in his community. Moore v. United States, 123 F.2d 207, 210 (5th Cir. 1941). The testimony was properly rejected in view of the purpose for which it was offered.
The rejected testimony is admissible, however, as to Dr. Prahl's claim that he was damaged by the broadcast. The testimony tends to show a basis for Dr. Prahl's contention that his business income was reduced as a result of the broadcast.
6. Hypothetical Question
[14]
The court sustained an objection to a question asked by plaintiffs of an economist regarding income lost by Dr. Prahl and the research corporation in 1975 and 1976. The ruling is challenged on appeal. The question asked the witness to assume, among other things, that "June 18th, 1975, an incident occurred which seriously and permanently *157 impaired the ability of Helmut Prahl to earn revenue . . . ."
We are referred to no part of the record which tends to show that Dr. Prahl sustained a permanent impairment to his earning ability. The court properly sustained the objection.
If counsel chooses to ask an expert for an opinion based upon a hypothetical set of facts, "the question must be based on assumptions that have some support in the evidence." Schulz v. St. Mary's Hospital, 81 Wis. 2d 638, 652, 260 N.W.2d 783, 787 (1978), citing Kreyer v. Farmers' Co-operative Lumber Co., 18 Wis. 2d 67, 117 N.W.2d 646 (1962).
Appellant relies upon McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245, 260-61, 208 N.W.2d 148, 157 (1973), where it is said, "Whether the jury believes the underlying assumptions is within its fact-finding functions. A party having made an evidentiary showing to support the assumptions is entitled to put his side of the case to an expert for an opinion." McCrossen does not assist appellants because they failed to make an evidentiary showing to support the assumption that Dr. Prahl sustained a permanent impairment to his earning ability.
By the Court. The judgment is reversed insofar as it dismisses the fourth claim in the complaint against Bryan Brosamle, Forward Communications Corporation, Lieutenant Kuenning and Dane County for damages for trespass. A new trial is ordered, limited to that claim. The judgment is otherwise affirmed.
NOTES
[] Petition to review granted.
[1] Dr. Prahl also sought damages for false imprisonment and battery but does not contest dismissal of the complaint as to those claims.
[2] Sections 941.20(1) and (3), Stats. 1975, so far as material, provide:
(1) Whoever does any of the following may be fined not more than $200 or imprisoned not more than 6 months or both:
(a) Endangers another's safety by reckless conduct in the operation or handling of a firearm, . . .; or
. . . .
(c) Intentionally points a firearm at or toward another.
. . . .
(3) Reckless conduct consists of an act which creates a situation of unreasonable risk and high probability of death or great bodily harm to another and which demonstrates a conscious disregard for the safety of another and a willingness to take known chances or perpetrating an injury. It is intended that this definition embraces all of the elements of what was heretofore known as gross negligence in the criminal law of Wisconsin.
[3] Restatement (Second) of Torts sec. 594, publication to protect an important interest of the publisher; sec. 595, publication to protect an important interest of the recipient or a third person where the publisher is under a legal duty to publish the matter; sec. 596, common interest; sec. 597, family relationships; sec. 598, a communication to one who may act in the public interest; sec. 598A, a communication by an inferior administrative officer required and permitted in the performance of his official duties.
[4] News accounts of Dr. Prahl's participation in a press conference seeking to call attention to police abuses of power, and for checks on use of "SWAT" teams, were entered in evidence. The conferences occurred after the incident in question.
[5] Restatement (Second) of Torts has modified the language of Restatement of Torts sec. 167, comment d. Restatement (Second) of Torts sec. 167 at 309, provides that the rules stated in secs. 892-892D as to the effect of consent to the actor's conduct apply to entry or remaining on land. Restatement (Second) of Torts sec. 892 (2) at 362 provides, "If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact." Comment d to sec. 892(2) states:
In determining whether conduct would be understood by a reasonable person as indicating consent, the customs of the community are to be taken into account. This is true particularly of silence or inaction. Thus if it is the custom in wooded or rural areas to permit the public to go hunting on private land or to fish in private lakes or streams, anyone who goes hunting or fishing may reasonably assume, in the absence of a posted notice or other manifestation to the contrary, that there is the customary consent to his entry upon private land to hunt or fish.
[6] The "no trespassing" signs erected on Dr. Prahl's land bear upon his refusal to accede to the custom from which consent is implied to enter for business or information. However, there is no evidence that those signs were so located as to be brought to the attention of a person at the Struck Road entrance to the premises. See n. 5.
[7] Restatement (Second) of Torts sec. 204 at 381 (1965), provides:
The privilege to make an arrest for a criminal offense carries with it the privilege to enter land in the possession of another for the purpose of making such an arrest, if the person sought to be arrested is on the land or if the actor reasonably believes him to be there.
Section 206(1) provides that the privilege to enter land stated in sec. 204 carries with it the privilege to use force to enter a dwelling if the person sought to be taken into custody is in the dwelling but only after explanation and demand for admittance, unless the actor reasonably believes such demand to be impractical or useless. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565754/ | 40 F.2d 921 (1930)
PENNSYLVANIA R. CO.
v.
UNITED STATES et al. (Interstate Commerce Commission, Intervener).
No. 2434.
District Court, W. D. Pennsylvania
May 24, 1930.
*922 William S. Dalzell, of Pittsburgh, Pa., and Albert Ward, of Philadelphia, Pa. (Dalzell, Dalzell & McFall, of Pittsburgh, Pa., of counsel), for complainant.
Elmer E. Collins, Sp. Asst. to Atty. Gen., John Lord O'Brian, Asst. to Atty. Gen., and Louis E. Graham, U. S. Atty., of Beaver, Pa.
John S. Wendt, of Pittsburgh, Pa. (C. F. Taplin and H. H. Hoppe, both of Cleveland, Ohio, W. S. Bronson, of Washington, D. C., and W. W. Ahrens, of New York City, of counsel), for Pittsburgh & W. Va. Ry. Co.
Daniel W. Knowlton, Chief Counsel, and J. Stanley Payne, Asst. Chief Counsel, both of Washington, D. C., for Interstate Commerce Commission.
Before WOOLLEY, Circuit Judge, and GIBSON and SCHOONMAKER, District Judges.
WOOLLEY, Circuit Judge.
The Pittsburgh & West Virginia Railway Company applied to the Interstate Commerce Commission for a certificate of public convenience and necessity authorizing it to construct a branch, some six miles in length, from its line in the Monongahela Valley, known as its Connellsville Extension now under construction, to a point of junction with the Donora Southern Railroad, a four mile line which is practically a plant facility of the American Steel & Wire Company at Donora yet a common carrier subject to the Interstate Commerce Act. The proposed branch is intended to serve one or two minor communities near the Monongahela River but particularly the great plant of the American Steel & Wire Company which at present is served exclusively by a line of the Pennsylvania Railroad Company through connections with the same local railroad. After the Pennsylvania Railroad Company had intervened and a hearing was had, the Commission granted to the Pittsburgh & West Virginia Railway Company the certificate applied for (No. 7737 Finance Docket, 158 I. C. C. 749). The Pennsylvania Railroad Company then filed this bill (under chapter 32 of the Urgent Deficiency Appropriation Act of October 22, 1913, 38 Stat. 219, 220, 28 USCA § 43) to restrain the construction of the branch not on the ground that the Commission was without power to grant or withhold its permission but on the assertion that there was no competent evidence to sustain its certificate of public convenience and necessity. After the Interstate Commerce Commission had intervened, all parties respondent by their answers traversed the complainant's allegation of want of supporting evidence and as an additional defense challenged the complainant's right to maintain its bill because of lack of legal right exclusively to serve the named district and absence of legal injury inflicted by the Commission's order.
Before discussing these issues it may be well to look at the statute under which the proceeding before the Interstate Commerce Commission was inaugurated and concluded. The statute is the Transportation Act of 1920 and the pertinent provisions are paragraphs 18, 19 and 20 of section 1, Interstate Commerce Act, as amended by Transportation Act 1920, § 402 (49 USCA § 1, pars. 18-20). These provisions disclose a wholly new conception of control of interstate rail commerce in the United States a radical departure from the old order. Before this act, any railroad, though engaged in the public service, could, so far as the federal government was concerned, extend or abandon its lines at will, thereby reaching out for or giving up traffic in competitive or noncompetitive regions, resulting at times in increased cost of construction and operation and increased losses to the company so conducting its business and to its competitors, and increased burdens upon the public. The Congress by the act of 1920, however, provided that the expansion or contraction of railroad activities should no longer be a matter of a carrier's independent judgment or desire but, being a matter of national concern affecting the economical development and operation of adequate railway *923 systems, should be a subject for consideration and determination and control by the Interstate Commerce Commission in the interest of the carriers generally and of the public particularly. Texas & Pac. Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U.S. 266, 277, 46 S. Ct. 263, 70 L. Ed. 578; Detroit & M. Ry. Co. v. Boyne City, G. & A. R. Co. (D. C.) 286 F. 540, 545; In the Construction of Railroad Lines in Eastern Oregon, 111 I. C. C. 3, 45. It provided specifically that:
"No carrier by railroad subject to this chapter shall undertake the extension of its line of railroad, * * * or shall engage in transportation under this chapter over or by means of such additional or extended line of railroad, unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, * * * of such additional or extended line of railroad, and no carrier by railroad subject to this chapter shall abandon all or any portion of a line of railroad, * * * unless and until there shall first have been obtained from the commission a certificate that the present or future public convenience and necessity permit of such abandonment." Paragraph 18, § 1.
In establishing this new policy of governmental control and having in mind the maintenance of competition and also the prevention of competition where it might hurt the carriers involved and the public at large, the Congress intended that this scheme of control should not be restricted to certain areas but should extend to all interstate carriers throughout the United States in order more effectively and economically to carry on everywhere the business of interstate transportation. Thus the Congress not only imposed upon the Commission a grave responsibility but reposed in it a broad discretion, one commensurate with the novel undertaking, and one not lightly to be disturbed by the courts. The exercise of this discretion amounts to an administrative judgment, comparable to that involved in a determination of the propriety or application of a rate, rule or practice, not to be set aside when it has substantial support of evidence. Virginian Railway Co. v. United States, 272 U.S. 658, 663, 47 S. Ct. 222, 71 L. Ed. 463; Dayton-Goose Creek Ry. Co. v. United States, 263 U.S. 456, 44 S. Ct. 169, 68 L. Ed. 388, 33 A. L. R. 472; Colorado v. United States, 271 U.S. 153, 166, 46 S. Ct. 452, 70 L. Ed. 878; Texas & Pacific Ry. Co. v. Gulf, C. & S. F. Ry. Co., 270 U.S. 266, 273, 46 S. Ct. 263, 70 L. Ed. 578; C., R. I. & P. Ry. Co. v. United States, 274 U.S. 29, 33, 34, 47 S. Ct. 486, 71 L. Ed. 911. This discretionary power, resulting in nation-wide transportation control, was vested in the Commission because of its peculiar function and extensive knowledge in respect to matters of interstate transportation and there is little in the statute to indicate, or to limit, the manner in which the Commission should exercise this discretion. Whether it should do so only after a hearing is not a question pertinent to the present case because a hearing was in fact held. The main question is whether at the hearing the Commission had competent evidence on which it could base its finding of public convenience and necessity.
The Pennsylvania Railroad says there were no facts proved and no findings of fact made in that regard and that, accordingly, the Commission's action in awarding the certificate was arbitrary and therefore invalid.
In form this proposition is one of law, made as though in a court of law. It is, however, addressed to the action of the Commission which, though vested with quasi judicial powers, is essentially an administrative tribunal. Before administering the law with respect to a given situation it must, of course, find the facts of the situation. But we surmise that it is not required to make formal findings of fact such as are required of a judge who, after a jury has been waived, hears and tries a case alone. Nor do we think that, as in the case of a judge trying facts, every phase of every fact pertinent to an application for a certificate of convenience and necessity need formally be proved and formally found because, in reposing discretion in the Commission, the Congress evidently had in mind that it was legislating with respect to a body of experts whose knowledge of transportation had through the years been accumulated from innumerable sources throughout the United States, and that, in carrying out the new policy of the transportation law, it intended that they should act as such, just as it looks upon the United States Board of Tax Appeals as a body of experts on taxation and intends, in given cases, such as special assessment of corporation taxes, that they should act as experts, and from their action in those cases it provided no appeal. So it seems that in the application for leave to extend the Donora branch, the Commission, an administrative tribunal, came to the trial of the issue of convenience and necessity equipped by training and experience to deal with that question adequately, and finally. Though acting as experts, the Commission must, nevertheless, have before it *924 facts in respect to the situation on which to base its judgment. An attempt to exercise discretion or render judgment without facts would not be an exercise of discretion at all. It would be an arbitrary act and, being beyond its power, would be unlawful. United States v. Abilene & So. Ry. Co., 265 U.S. 274, 288, 44 S. Ct. 565, 68 L. Ed. 1016. So the central issue on this bill is whether there were facts in the case before the Commission and, if so, whether they were substantial enough to warrant the Commission's order, wholly without regard to our views on its action. If there were facts and they were substantial, though differing in character and weight, this court cannot appraise or weigh them and take action of its own but must leave the matter entirely to the administrative body in whose hands the Congress placed it.
Are there any facts?
The first fact on which the complainant relies is that the large manufacturing area of Donora is efficiently and satisfactorily served by a line of its railroad which leads to Pittsburgh and, there meeting its main artery, extends east and west. Through that line and its manifold connections the heavy traffic moving into and out of Donora can be received from or moved to any zone in the United States, in consequence of which, it argues, there is no necessity for another railroad there. Against this fact and the conclusion drawn from it are others to the effect that if the proposed six mile branch of the Connellsville Extension were projected into Donora, a substantial portion of the heavy traffic out of and into that region, moving to and from the southeast and south over the Western Maryland Railroad and its connections, on which is the important port of Baltimore, could, because of the haul, shorter in respect to Donora and Baltimore than that of the Pennsylvania by seventy-one miles, be more speedily and economically handled. In addition, the haul over the Pittsburgh & West Virginia via Pittsburgh to Detroit is shorter by twelve hours than that of the Pennsylvania. Aside from the convenience which the new extension would render the community of Donora in having a line in competition with the Pennsylvania and in developing new industries, as indicated by resolutions of its Board of Trade, and aside from local considerations which move people in a community always to desire more rail facilities, the fact that by the new extension long hauls can be shortened and cheapened is alone a fact of substance which this court, on the complainant's contention that there are no facts, cannot ignore. Nor can it overlook the fact that by this extension the business in this area would have a new outlet not only to the east, southeast and south but to the west and northwest in combination with the Wheeling & Lake Erie, Bessemer & Lake Erie, and possibly the Wabash, to Lake Erie, which means the Lake Ports at which iron ore is received from the main sources of ore supplies farther to the northwest, permitting the return of ore cars to the Lake Ports loaded with coal where now they are returned by the Pennsylvania empty.
While the Commission in stating the case in its report referred to these matters as "claims" made by the contesting parties, these claims were, nevertheless, supported by facts proved by evidence, both pertinent and substantial, of which the Commission took notice and on which it manifestly based its decision. The Commission's allusions to its authorization of the Connellsville Extension previously given (No. 6229 Finance Docket, 138 I. C. C. 755) were more historical than anything else and were evidently made to disclose the "general plan" of the first extension which included transportation service to two very important industrial districts on the Monongahela river of which one is the district of Donora, here in question. In that case also the complainant was an intervening party. The Commission was not required to shut its eyes to what it saw in that proceeding or close its mind to the knowledge it there acquired, and proceed afresh in the instant application for a short extension from the long one without regard to what it knew and could not forget had a bearing one upon the other. Whatever regard the Commission may have given the former application as a related matter, distinguished from an evidential matter, in determining the later application cannot invalidate its last order. United States v. Abilene & S. R. Co., 265 U.S. 274, 44 S. Ct. 565, 68 L. Ed. 1016. There was, we find, independent of that proceeding and wholly within the instant proceeding, competent evidence on which the Commission could, and did, exercise its discretion with reference to the public convenience and necessity involved in the extension in dispute.
Discussion of what is really the first question in the case, that of the right of the Pennsylvania Railroad Company to maintain its bill in view of its lack of legal right to the entire transportation business of Donora and for want of legal wrong, committed or threatened, or of legal injury inflicted, by the Commission's order, has been purposely postponed *925 until after the issues and facts of the case have been stated so that the question of law might stand out more sharply. Being threatened by the Pittsburgh & West Virginia Railway Company, through its proposed extension, with competition for traffic in the Donora district, the Pennsylvania Railroad Company undoubtedly had such an interest in the application for the extension as entitled it to intervene and be heard. It did intervene and was heard. But that interest alone did not give it a right to maintain an independent suit to set aside the Commission's order. Such a suit can be brought and maintained by a competitor only where some right of its own has been violated by the order. Sprunt & Son, Inc., v. United States, 50 S. Ct. 315, 74 L. Ed. ___, decided April 14, 1930. True, the complainant now is and for a long time has been exclusively serving Donora and is now receiving the profits from handling all the traffic flowing into and out of that busy district. But that is a privilege rather than a right a privilege to be enjoyed so long as it shall last, not a right to be asserted, unless it be found somewhere in the law, written or unwritten. Certainly there is no unwritten law that gives a carrier, first to serve a community, the right to hold its traffic against all competitors. It is equally certain that the written law the Transportation Act of 1920 does not explicitly or implicitly accord a noncompetitive traffic area to the first taker as the law accords a trade-mark to the first adopter. Instead of doing this the written law negatives such a right by providing expressly for the invasion by one carrier into a territory exclusively served by another on a showing of convenience and necessity of more transportation service for those inside reaching out and those outside reaching in. Where, as here, the showing is lawfully made and the Commission has validly acted, the carrier at whose expense the change is wrought has had no legal right invaded and has suffered no legal injury. In consequence it has nothing on which to sustain an independent suit to vacate and set aside such an order of the Interstate Commerce Commission.
In disposing of this case we are disturbed by some uncertainty or informality in the proceeding. The case was heard on April 25, 1930, by the court consisting of three judges. 28 USCA § 47. At the opening, the parties respondent moved to dismiss the bill substantially, as we remember, on the point of law last discussed. The hearing came up on a motion for a preliminary injunction to restrain the execution of the Commission's order until final decree. It was, however, argued, because of the need of speedy decision, as though on motion at final hearing for a perpetual injunction. A restraining order was waived on the court's promise of a prompt decision. In this situation, if correctly stated, we prefer to decide the case on the merits. Therefore the motion to dismiss for a specific reason is formally denied and the bill, for the two reasons stated, is dismissed with costs for the original and intervening respondents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565776/ | 40 F.2d 353 (1930)
TRIANGLE ELECTRIC CO.
v.
FOUTCH (two cases).
Nos. 8719, 8720.
Circuit Court of Appeals, Eighth Circuit.
April 14, 1930.
George O. Pratt and Thomas H. Reynolds, both of Kansas City, Mo. (Oscar Fainman, of Chicago, Ill., and Claude A. Ferguson, of Kansas City, Mo., on the brief), for appellant.
*354 Harry L. Jacobs, of Kansas City, Mo. (Edwards, Kramer & Edwards, Frank P. Barker, I. J. Ringolsky, M. L. Friedman, William G. Boatright, and Ringolsky, Friedman, Boatright & Jacobs, all of Kansas City, Mo., on the brief), for appellee.
Before STONE and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.
VAN VALKENBURGH, Circuit Judge.
January 18, 1928, the American Auto & Radio Company was adjudicated a bankrupt in the Western Division of the Western District of Missouri. Appellee, Foutch, is its duly elected and qualified trustee. January 23, 1928, appellant filed against the estate of the bankrupt its claim for merchandise sold in the sum of $4,306.50. Thereafter the trustee filed objections to the allowance of this claim, alleging that on or about December 1, 1927, the bankrupt was insolvent and known so to be by all its officers and directors. That as early as September 1, 1927, the bankrupt and its officers entered into a scheme and conspiracy to purchase all the merchandise possible in the name of the bankrupt on a credit basis, and to dispose of the same for the purpose of hindering, delaying, and defrauding creditors of the bankrupt company; that during the months of November and December, 1927, operations in furtherance of this scheme were begun, and the bankrupt, through its officers, shipped to New York merchandise bought in New York, and threw the same on the New York market at less than cost, for the purpose of realizing thereon money to hide and conceal from creditors, and thereby to prevent them from collecting their debts against the bankrupt company; that on or about December 12, or 14, 1927, to further and facilitate this fraudulent scheme, the bankrupt entered into an agreement with one Arthur Pudlin, who was engaged in business in New York, to handle and dispose of merchandise so transferred to him by the bankrupt in fraud of creditors. That pursuant to this agreement a carload of merchandise, on or about December 14, 1927, was consigned to Pudlin at New York City; but this car was diverted to Chicago and delivered to appellant; that appellant was fully aware of the fraudulent scheme and purpose aforesaid, that said car of merchandise did not belong to Pudlin, but to the bankrupt, and that the bankrupt was insolvent and was thus disposing of its property for the purpose of hindering and delaying its creditors in the collection of its debts. It is alleged further that, with knowledge of the fraudulent scheme in which the bankrupt was engaged, appellant entered into an agreement with Pudlin whereby it was to be claimed that Pudlin was indebted to appellant in the sum, approximately, of $13,100, and that the said car of merchandise was to be delivered to appellant by Pudlin in satisfaction of this alleged fictitious debt. The trustee alleges that the contents of the car in question were of the cash value of $15,167.42, and prayed that appellant's claim be disallowed until it returned to the trustee the car of merchandise or the ascertained value thereof. Thereafter appellant filed two motions, each entitled "Motion to dismiss set-off or counter claim of trustee heretofore filed as objections to claim of Triangle Electric Company." The grounds stated in said motions are:
1. That referee and court have no jurisdiction to determine the matters contained in said trustee's set-off or counterclaim, and have no jurisdiction to enter thereon an affirmative judgment against appellant.
2. That it appears that the claim of the Triangle Electric Company to the property referred to in the trustee's so-called set-off or counterclaim is adverse and must be determined in a plenary suit.
3. That referee and court have no jurisdiction to determine the merits of such set-off or counterclaim to the extent of any excess over the claim of appellant.
4. That the referee and the bankruptcy court have no jurisdiction to determine the merits of any set-off or counterclaim beyond that necessary to determine the amount due upon the claim of Triangle Electric Company.
Upon hearing, the referee ordered that the motions to dismiss be overruled and that "the objections filed by the trustee will be heard and determined by the court on the sole question of whether or not, on evidence introduced, the claim should be allowed with the proviso, that, if the claimant shall, within a specified time, fixed by the court, return to the trustee the carload of merchandise described and mentioned in the objections, or the cash value of the same, that then the claim shall be allowed in full." On review, this order was confirmed and approved by the district court.
From the decree confirming the referee's order appellant has taken two appeals, *355 numbered, respectively 8719 and 8720 in this court. The first was allowed by the district judge, the second by this court under section 47, title 11, USCA, as amended by the Act of May 27, 1926. Inasmuch as this proceeding involves a matter requiring allowance of appeal by this court under the provisions of section 24b, as amended, the appeal allowed by the district court should be dismissed.
The first point raised by appellee is that "the order of the referee and district court, allowing testimony to be adduced on objections to allowance of a claim, is purely a preliminary ruling and no appeal lies therefrom to this court." The statute as it existed prior to the amendment of 1926 (44 Stat. 664) has been considered in numerous decisions by Circuit Courts of Appeals and also by the Supreme Court. The consensus of opinion is that appeals from purely intermediate and preliminary orders should be allowed, if at all, only in very exceptional cases. A very excellent statement of the reasons for this conclusion is contained in the opinion of the Court of Appeals for the Third Circuit, in Re Pechin, 227 F. 853, 854:
"There must be a certain degree of finality about these administrative orders before they can be reviewed; if every order were reviewable, proceedings could easily be so tied up and prolonged that the situation would become intolerable. But where a fairly separable subject has been finally disposed of, so that rights have been definitely determined, and practically nothing remains to be done in that respect, such a subject is ready for review. To confine ourselves to the matter in hand; if the District Court should refuse to allow a specification to be filed, or to be amended, such an order has sufficient finality, and may be reviewed."
See, also, In re Chotiner (C. C. A. 3) 218 F. 813.
The Court of Appeals for the Second Circuit holds that "while we can review interlocutory proceedings, it is not advisable so to do." In re Margolies et al., 266 F. 203. The procedure is not favored in Re Horowitz, et al. (C. C. A. 2) 250 F. 106.
"Where on appeal from a referee's order denying the application of a bankrupt's trustee to introduce certain testimony and allowing the claim, the district judge remanded the proceeding to the referee, with instructions to allow the trustee full latitude of inquiry with regard to the claim, but did not pass on the merits of the application to confirm the referee's report, the order was interlocutory and not appealable." In re Strauss (C. C. A. 2) 211 F. 123.
In re Schaffner, 267 F. 977, the same court took cognizance of a petition to revise an interlocutory order, with the express admonition that it was departing from its settled policy in so doing; and the Court of Appeals for the Sixth Circuit in Board of Road Commissioners v. Keil, 259 F. 76, 79, deemed such a review advisable, but said: "We do not intend to hold that we would entertain such a petition in all cases where there had been merely a preliminary declaration of jurisdiction below."
The Court of Appeals for the Ninth Circuit declares that appellate courts do not sit to anticipate possible grievances, nor to try out controversies in piecemeal. Pearson et al. v. Higgins, 34 F.(2d) 27.
It must be remembered that there is presented here an application for the allowance of a claim with the trustee's objections thereto. By section 25a of the Bankruptcy Act (title 11, USCA § 48(a) it is expressly provided that appeals, as in equity cases, may be taken from the courts of bankruptcy to this court "from a judgment allowing or rejecting a debt or claim of $500 or over." This appeal has been brought under section 24b, as amended. The Court of Appeals for the Ninth Circuit, considering these sections, has this to say: "Under these two provisions, the remedy of one complaining of a judgment or order allowing or rejecting a claim is by appeal [under 25a], and that the remedy is exclusive." Chappell v. Brainard, 8 F.(2d) 987.
Especial reference is made to the following language of the Supreme Court in Matter of Loving, 224 U.S. 183, 187, 32 S. Ct. 446, 448, 56 L. Ed. 725:
"The question now propounded is: Was the trustee also entitled to a review in the circuit court of appeals, under § 24b, by petition for review? Under that section authority, either interlocutory or final, is given to the circuit court of appeals to superintend and revise in matters of law the proceedings of the inferior courts of bankruptcy within their jurisdiction. We think this subdivision was not intended to give an additional remedy to those whose rights could be protected by an appeal under § 25 of the act. That section provides a short method by which rejected claims can be promptly reviewed by *356 appeal in the circuit court of appeals, and in certain cases, in this court. The proceeding under § 24b, permitting a review of questions of law arising in bankruptcy proceedings, was not intended as a substitute for the right of appeal under § 25. Coder v. Arts, supra, p. 233 [of 213 U. S., 29 S. Ct. 436, 53 L. Ed. 772, 16 Ann. Cas. 1008]. Under § 24b a question of law only is taken to the circuit court of appeals; under the appeal section, controversies of fact as well are taken to that court, with findings of fact to be made therein if the case is appealable to this court. We do not think it was intended to give to persons who could avail themselves of the remedy by appeal under § 25 a review by petition under § 24b."
The Supreme Court in the Loving Case then quotes approvingly from the opinion of Judge (afterwards Justice) Lurton In re Mueller (C. C. A. 6) 135 F. 711, 715, as follows:
"The `proceedings' reviewable [under section 24b] are those administrative orders and decrees in the ordinary course of a bankruptcy between the filing of the petition and the final settlement of the estate, which are not made specially appealable under 25a. This would include questions between the bankrupt and his creditors of an administrative character, and exclude such matters as are appealable under 24a."
Under the original act, with which these cases deal, reviews under section 24b were instituted by petition to revise. The amendment of May 27, 1926 (11 USCA § 47(b), provides that this power "shall be exercised by appeal, and in the form and manner of an appeal." This cannot alter the rule announced. Appeals in equity require essential finality in the order or decree appealed from.
Some analogy to the principle involved is found in the ruling of this court in In re W. A. Paterson Co. (C. C. A.) 186 F. 629, 34 L. R. A. (N. S.) 31, wherein it was held that, where neither referee nor court below makes any affirmative order or renders any affirmative decree or judgment for the payment of any damages or any amount on account of the taking of the property, "a court of bankruptcy has jurisdiction by a summary proceeding to diminish or expunge an allowed claim, unless the claimant pays to the trustee the value of the property of the bankrupt which he has taken and converted to his own use, without any prior claim to it, after the petition in bankruptcy was filed."
In the Patterson Case the bankruptcy court was proceeding within its jurisdiction to diminish or expunge a claim already allowed, unless the claimant should pay to the trustee the value of property of the bankrupt which he had taken and converted to his own use without authority of law. In the instant case the referee is exercising jurisdiction to ascertain and determine, from evidence to be taken, whether appellant's claim shall be allowed unless it returns to the trustee property of the bankrupt alleged to have been taken without authority of law, or pays to the trustee the cash value thereof.
One who has presented proof of debt has submitted his claim to the jurisdiction of the bankruptcy court, and must be deemed to have consented to the jurisdiction of that court to decide any defense that may be lawfully interposed. In re Carl Dernburg & Son, Inc. (C. C. A. 2) 5 F.(2d) 37. Undoubtedly the bankruptcy court has the right to determine at the threshold whether a claim is really adverse or merely colorable. There is persuasive authority to the effect that a referee in bankruptcy has jurisdiction, on hearing objections to a claim on the ground that the claimant has received a voidable preference, or has knowingly received from the bankrupt a transfer of his property in fraud of creditors, to direct that the claim shall be allowed on return, within a specified time, of merchandise whose transfer constituted such preference or fraud. Metz v. Knobel et al. (C. C. A. 2) 21 F.(2d) 317; McCulloch v. Savings Bank (D. C.) 226 F. 309; In re W. A. Paterson Co. (C. C. A. 8) 186 F. 629, 34 L. R. A. (N. S.) 31.
Of course the referee has no power to adjudicate an adverse claim, and for this reason, it is presumed, the court in Metz v. Knobel, supra, was of opinion that the referee "may not order return of property held adversely, or payment of money in lieu thereof."
Judge Bledsoe in the Southern District of California, has outlined, for cases like this, the following procedure:
"Upon the reconsideration of the creditor's claims in connection with the asserted counterclaim of the trustee, it would be the duty of the referee, and clearly within his jurisdiction, under the terms of section 68, supra [11 USCA § 108], to enter upon a *357 determination of the validity and extent of those claims. Having determined that the creditor had valid claims against the estate, in such amount as he might find, it would then be his duty to consider whether or not such claims were to be subject to offset in virtue of the counterclaim asserted. If the amount of the counterclaim as asserted was clearly in excess of the amount of the creditor's claims as allowed, and if the trustee did not then and there waive a recovery, and the right to proceed further against the creditor for all amounts in excess of the claims actually allowed, then it would seem as if, under the authorities, it was the instant duty of the referee to refuse to enter upon a determination of the merits of the asserted counterclaim, because of the fact that he lacked jurisdiction. 34 Cyc. 646. He should have contented himself with merely staying the payment of the creditor's claims until there had been a final judgment upon the counterclaim, remitting the trustee in his prosecution of the same to a court possessing the requisite jurisdiction." In re Continental Producing Co. (D. C.) 261 F. 627, 629.
Such procedure would relieve appellant's apprehension that the finding of the referee would constitute an adjudication binding upon the creditor in a subsequent plenary action. McCulloch v. Savings Bank, supra; Breit v. Moore (C. C. A. 9) 220 F. 97.
Although in an earlier part of his specification of objections to appellant's claim the trustee asserted that he was entitled to a judgment against the Triangle Electric Company, his prayer does not ask such affirmative relief, and the referee's order grants none. He decides only to hear evidence on the sole question of whether appellant's claim shall be allowed, and, if so, on what terms. On the issues presented the bankruptcy court may determine that the transaction described in the objections of the trustee has resulted in an adverse claim in appellant, the merits of which the referee has no jurisdiction to determine. In such case the referee may postpone the allowance or payment of appellant's claim until that matter has been adjudicated in a court of competent jurisdiction. On the other hand, the referee may find, on fuller hearing, that appellant's claim is just, and must be allowed without condition. In any event, a case will be presented appealable under section 25a of the Bankruptcy Act, in which all errors, whether of excess of jurisdiction or otherwise, may be reviewed and corrected. Since in our opinion the order appealed from lacks that finality which entitles it to be reviewed under the provisions of 24b, as amended, and that no special circumstances are presented which demand departure from the orderly procedure contemplated by the act, as uniformly construed, it follows that the appeal under consideration is premature and should be dismissed. It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565748/ | 40 F.2d 617 (1930)
NATIONAL CLAY PRODUCTS CO.
v.
HEATH UNIT TILE CO.
No. 8645.
Circuit Court of Appeals, Eighth Circuit.
April 10, 1930.
Butler, Lamb, Foster & Pope, of Chicago, Ill., and Breese & Cornwell, of Mason City, Iowa, for appellant.
Robert M. Witwer, of Mason City, Iowa (John A. Senneff, William L. Bliss, and John A. Senneff, Jr., all of Mason City, Iowa, and Justin W. Macklin, of Cleveland, Ohio, on the brief), for appellee.
Before STONE and VAN VALKENBURGH, Circuit Judges, and DAVIS, District Judge.
STONE, Circuit Judge.
Appellee is the owner of several patents covering shapes of hollow tile used in masonry construction and commercially known as Heath tile. Its business is largely that of making license contracts permitting manufacturers of such clay products to operate under the patents owned by it. Appellant is a manufacturer of clay products, including hollow tile, with its main plants and business located at or near Mason City, Iowa. These plants formerly belonged to National Clay Works, a corporation. This action was brought by appellee against appellant and the National Clay Works to secure a decree adjudicating the cancellation of a license contract between appellee and the National Clay Works and to restrain interference with other licensees of appellee in the territory covered by the above contract. From a decree according the above relief, this appeal is brought by the National Clay Products Company.
Jurisdiction.
Appellant contends that there is lack of jurisdiction in the trial court of the subject-matter involved in this suit. This action was brought in the state court and removed thence to the United States District Court. The contention of appellant is that this is an action involving a patent, and that exclusive jurisdiction of such an action is placed in the United States courts by section 24 of the Judicial Code (USCA tit. 28, § 41 (7); that the United States court, on removal, could take and have only such jurisdiction as the state court could have had; that, since the state court could have had no jurisdiction of such subject-matter, the United States court could derive none through the removal.
We need not examine whether a federal court, which might have had jurisdiction had the suit been filed therein, could have jurisdiction, on removal, if the state court could not, because it is clear that the state court had jurisdiction of the subject-matter here. "Jurisdiction generally depends upon the case made and relief demanded by the plaintiff. * * *" Healy v. Sea Gull Specialty Co., 237 U.S. 479, 480, 35 S. Ct. 658, 659, 59 L. Ed. 1056; also, Odell v. Farnsworth Co., 250 U.S. 501, 503, 39 S. Ct. 516, 63 L. Ed. 1111; Henry v. Dick Co., 224 U.S. 1, 14, 16, 32 S. Ct. 364, 56 L. Ed. 645, Ann. Cas. 1913D, 880. This action is based solely *618 upon the license contract. The sole relief sought is in connection with that contract. Where the suit is on a contract relating to a patent and is not for infringement (Healy v. Sea Gull Specialty Co., supra), nor on a contract of assignment of a patent (Crown Die, etc., Co. v. Nye, etc., Machine Works, 261 U.S. 24, 43 S. Ct. 254, 67 L. Ed. 516), jurisdiction of such subject-matter is unaffected by federal statutes (Odell v. Farnsworth Co., 250 U.S. 501, 39 S. Ct. 516, 63 L. Ed. 1111; Briggs v. United Shoe Mach. Co., 239 U.S. 48, 36 S. Ct. 6, 60 L. Ed. 138; Geneva Furniture Mfg. Co. v. Karpen, 238 U.S. 254, 259, 35 S. Ct. 788, 59 L. Ed. 1295; Henry v. Dick Co., 224 U.S. 1, 13, 14, 32 S. Ct. 364, 56 L. Ed. 645, Ann. Cas. 1913D, 880; New Marshall Co. v. Marshall Engine Co., 223 U.S. 473, 478, 32 S. Ct. 238, 56 L. Ed. 513; Bement v. National Harrow Co., 186 U.S. 70, 22 S. Ct. 747, 46 L. Ed. 1058; Excelsior Wooden Pipe Co. v. Pac. Bridge Co., 185 U.S. 282, 285, 22 S. Ct. 681, 46 L. Ed. 910; and many others). The first case in the long line announcing the above rule was one involving a license contract for use of a patent. Wilson v. Sandford, 10 How. 99, 13 L. Ed. 344.
The action was properly brought in the state court, and the jurisdiction properly lodged in the United States court, by removal proceedings, on the ground of diverse citizenship.
Attack upon Patents.
Upon motion, the court struck from the amended answer averments challenging the validity of two of the patents covered by the license. This portion of the answer is based on a rather singularly stated alternative proposition, to wit: "That if there be no subsisting contract embracing a license to this defendant under plaintiff's patents, and protecting defendant against any charge of infringement of said patents, and if plaintiff nevertheless asserts a right to injunctive relief against defendant arising out of said patents, then, for further answer, with the same reservations as hereinbefore made, defendant avers * * * that said patents are invalid. * * *"
The defense and counterclaims of defendant are based upon the insistence that the license is subsisting in it. Such being its position, and it being in the attitude of a licensee, it is estopped to deny the validity of the patents covered thereby. United States v. Harvey Steel Co., 196 U.S. 310, 25 S. Ct. 240, 49 L. Ed. 492; Kinsman v. Parkhurst, 59 U.S. 289, 292, 293, 15 L. Ed. 385; H. C. White Co. v. Morton E. Converse & Son Co., 20 F.(2d) 311, 313 (C. C. A. 2); Victory, etc., Co. v. O. & J. Mach. Co., 280 F. 753, 759 (C. C. A. 1); Kohn v. Eimer, 265 F. 900, 904 (C. C. A. 2); Miami Cycle Co. v. Robinson, 245 F. 556, 565 (C. C. A. 6); Chicago & A. Ry. Co. v. Pressed Steel C. Co., 243 F. 883, 887 (C. C. A. 7); Tate v. B. & O. R. R. Co., 229 F. 141, 142 (C. C. A. 4); Indiana Mfg. Co. v. J. I. Case Mfg. Co., 154 F. 365, 370 (C. C. A. 7); Holmes, B. & H. v. McGill, 108 F. 238, 244 (C. C. A. 2).
Furthermore, the license contract itself provided: "Validity of Patents. The licensee hereby acknowledges the validity of the Letters Patent, for the full term thereof, and agrees at no time either directly or indirectly to attack or question the validity thereof."
Appellant cannot claim that it is a licensee under and because of this contract and, at the same time, violate that contract in a very essential provision thereof.
Merits.
The allegations of the petition may be briefly summarized as follows: Prior to 1924, several brothers, named Keeler, were engaged in operating brick and tile plants through corporations largely located in or near Mason City, Iowa. This business was rather extensive, and included the manufacture of hollow tile used in masonry construction. This tile was of a character directly competitive with that covered by the patents of appellee. In the latter part of 1924, appellee, being desirous of procuring the manufacture of tile under its patents at Mason City for distribution in adjacent trade territory, opened negotiations with the National Clay Works. Knowing that there would be direct competition with the Keeler products, appellee was solicitous that such competition should be genuine and that any licensee of its patents in that trade territory should in no way be subject to the influence of the Keelers, who would be active competitors. Therefore they particularly inquired whether the Keelers or any one connected with them had any kind of interest whatsoever in the National Clay Works. Upon the assurance of the president, Potter, and the secretary-treasurer, Pearce, of the National Clay Works, that there was no connection of any kind, appellee granted a license to the National Clay Works. This license accorded the exclusive right of manufacture and sale, *619 under the patents, in a designated territory. The licensee was to pay a named royalty, and was required to "maintain an efficient sales effort to properly bring the tile before architects, contractors and owners." A right of cancellation was given to the licensor if the licensee should fail in such marketing requirements. It was provided that "no assignment or transfer of this agreement in part or whole will be binding unless approved by the licensor." The petition further alleges that, after the contract had been in force more than sixteen months without the licensee in any wise performing or attempting to perform the contract, the licensor, on March 7, 1926, notified the licensee that it canceled the contract in so far as the license was exclusive, but would permit the licensee to continue the manufacture and sale under a new agreement to be prepared, if this licensee would indicate its desire to do so; that later, in September, 1926, appellee first ascertained that the property and business of the National Clay Works, including this license contract, had been transferred by deeds, bills of sale, and assignments to appellant, National Clay Products Company, and, thereupon, appellee served written notice upon both such companies of its refusal to approve such assignment and of its final and complete cancellation of the license contract; that thereafter appellee entered into various license contracts with named companies operating in the territory covered by the former above license; that, after the cancellation because of the above assignment, appellee first ascertained that the Keelers were large stockholders and in active though concealed control of the National Clay Works; that the stock, owned by the Keelers, was held in the name of Potter, the president of the National Clay Works, and such ownership and control were known to him and to the secretary-treasurer thereof at the time the license contract was entered into, but were fraudulently concealed by them from appellee. The petition further alleged that, under the terms of its license contracts, appellee was obligated to protect the rights and title of its licensees thereunder, and that appellant and the National Clay Works were interfering with and threatening such licensees and damaging and endangering their business rights thereunder.
Appellant's answer amounts to a claim that the license agreement is in full force and effect, that the rights thereunder come to it by succession and not transfer, and it counterclaims for damages because of the subsequent license contracts made in the same territory.
After a full trial upon the merits, the court made detailed findings of fact, and thereon concluded and decreed that the license contract in question was void for fraud practiced upon the appellee in its inception; that, after a stated date, it became no more than a nonexclusive license; that it was duly terminated by proper cancellation because of the attempted assignment thereof to the appellant; that the counterclaim was without merit; that the license should be deemed annulled, the counterclaim dismissed with prejudice, and appellant enjoined from claiming any rights thereunder and from interfering in any manner with the operations of other licensees.
Appellant challenges the decree upon the merits, upon the three grounds that the court erred in adjudging the license contract void because of fraud in its inception, in adjudging that after April 30, 1926, the licensee was a nonexclusive licensee, and in adjudging that the license was terminated because of assignment by the National Clay Works to it. Determination of this appeal does not require examination of all of these contentions. If there was fraud by the licensee in the inception of this contract and appellee promptly acted to cancel the contract, upon gaining knowledge of the fraud, that is sufficient to dispose of this appeal. The evidence shows such prompt action by the bringing of this action shortly after discovery of the alleged fraud. The question, therefore, is whether such fraud was shown.
The evidence abundantly supports the findings thereon by the chancellor. Not only does the evidence support, but it overwhelmingly compels the results reached by the trial court. Very briefly summarized, it shows the following: The Keeler interests were engaged extensively in operating brick and tile plants at Mason City, Iowa, including the manufacture and sale of large quantities of building tile used for the same purposes as the tile covered by appellee's patents; that they had secretly bought a large amount of the capital stock of the National Clay Works, such purchase being through and held in the name of Potter, who was president of that company. The negotiations of appellee, resulting in the license contract, were carried on with Potter and with Pearce, who was secretary-treasurer of that company and a son-in-law of Potter. Appellee's representatives made very clear to those two men its requirement that the Keelers should have *620 no interest in the National Clay Works business. It was obvious to them that the main advantage to appellee from the license contract would be the royalties, and that the volume of royalties would depend upon the amount of such tile sold. It was clear to them that appellee would not enter into a contract where a formidable competitor would have an interest in the business of its licensee. Up to and at the time this license contract was executed, Potter and Pearce deliberately and actively concealed the true situation from appellee. In fact, they went further than mere concealment, and falsely assured appellee that the Keelers had no such influence. For more than sixteen months after the contract became effective the licensee made no serious effort to market the products under the license. Its entire output of that character during that time was trivial and would have occupied its plants only two days for production thereof. It is very clear that the Keelers, acting through their tools, Potter and Pearce, had secured this license for the one purpose of preventing competition thereunder with their own products, and that such object was successfully carried out. Ignorant of this connection with the Keelers, but observing the utter lack of any effort to market products under the license contract, appellee, after suffering under this contract for sixteen months, exercised its right to revoke the license and annul the contract in so far as its exclusive feature was concerned. Thereafter, and because of the financial difficulties in which the National Clay Works found itself, the appellant was organized and financed and took over the business of the former concern. To carry out this arrangement, the property of the former was transferred by appropriate instruments to the latter. The transfer of this license contract seems to have been attempted through an assignment. This action was taken without any notice to appellee and when it learned thereof it promptly communicated with both companies declaring annulment of the license contract. It was not until "early in December, 1926" that appellee ascertained that the Keelers were interested in the National Clay Works at the time the license contract was made. This action was filed December 13, 1926.
From the above, it is clear that appellee would be within its rights in canceling the license contract because of fraud in its inducement and that it acted promptly.
The decree should be and is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564910/ | 34 So. 3d 1033 (2010)
John TAYLOR, et al.
v.
LEGER CONSTRUCTION, LLC, et al.
No. 09-1263.
Court of Appeal of Louisiana, Third Circuit.
April 7, 2010.
*1034 Eddie J. Lambert, Attorney at Law, Gonzales, LA, for Defendant/Appellee, Post-Tension Slab-General.
Michael Wayne Adley, Judice and Adley, Paul Joseph McMahon, III, Attorney at Law, Lafayette, LA, for Plaintiffs/Appellants, John Taylor, Christine Taylor.
Wayne M. Babovich, Babovich & Spedale, New Orleans, LA, for Defendant/Appellee, Roy Carubba.
Donald Lynn Mayeux, Attorney at Law, Eunice, LA, Gretchen Heider Mayard, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Leger Construction, LLC.
John Daniel Rayburn, Jr., Rachel Welch, Daigle, Crawford & Jamison, Lafayette, LA, for Defendant/Appellee; Post-Tension Slabs, Inc.
Timothy Alan Maragos, Lafayette, LA, for Intervenor/Appellee, State Farm Fire & Casualty Co.
Kyle Patrick Polozola, Liskow & Lewis, Lafayette, LA, for Defendant/Appellee, Randy Rivera.
Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and BILLY HOWARD EZELL, Judges.
SAUNDERS, Judge.
This case involves homeowners whose home was built on an inadequate foundation. The homeowners filed suit against various parties including, but not limited to, the engineer that designed the post-tension slab used in the home and a construction company that constructed a large portion of the home.
The engineer filed exceptions of no right of action and no cause of action, while the construction company filed a motion for summary judgment. The trial court granted the engineer's exception of no right of action without issuing reasons for that judgment. The trial court also granted the construction company's motion for summary judgment based on a finding that *1035 the homeowners could not meet their burden to prove regarding liability.
We reverse the trial court's judgment relative to the exception of no right of action. Further, we affirm the summary judgment granted to the construction company.
FACTS AND PROCEDURAL HISTORY:
Doctor John and Christine Taylor (the Taylors) hired Randy Rivera (Rivera), an architect, to create plans for construction of a new home. In October of 2001, construction began on this home located at # 7 Rue Aline, Crowley, Louisiana, in Acadia Parish. Several parties participated in the building of the home. Those parties included Rivera, Leger Construction, LLC (Leger), who provided construction services of the home, Post-Tension Slabs, Inc. (Post-Tension), which furnished services related to the foundation of the home, and Roy Carubba (Carubba), an engineer who contracted with Post-Tension to design the foundation for the home.
The Taylors occupied the home in October of 2002. Thereafter, the Taylors became aware of numerous defects in the home. On August 30, 2006, the Taylors filed suit against Rivera, Leger, Carubba, and Post-Tension. After some discovery was conducted and three experts hired to find the cause of the defects, it would eventually be the opinion of those experts that the defects were related to the home's inadequate foundation for the types of soil present at the site of its construction. Thereafter, amongst other legal devices filed by parties not pertinent to this appeal, Carubba filed exceptions of no cause of action and no right of action, and Leger filed a motion for summary judgment.
A hearing was conducted on both of Carubba's exceptions and Leger's motion. The Taylors, despite being properly noticed, were not present. The trial court, without giving specific reasons for judgment, granted Carubba's exception of no right of action. Further, the trial court granted Leger's motion for summary judgment based on its finding that the Taylors could not carry their burden to prove fault by Leger at trial. The Taylors timely perfected this appeal alleging the following assignments of error:
ASSIGNMENTS OF ERROR:
1. The trial court erred when it granted the exception of no right of action and dismissed the Taylors' claims against Carubba.
2. The trial court erred when it did not grant the Taylors the right to amend their petition relative to Carubba.
3. The trial court erred when it granted the motion for summary judgment and dismissed the Taylors' claims against Leger Construction.
ASSIGNMENT OF ERROR NUMBER ONE:
The Taylors contend that the trial court erred when it granted Carubba's exception of no right of action and dismissed their claims against him. We find that the Taylors' contention has merit.
This court, in Randall v. Concordia Nursing Home, 07-101, pp. 4-5 (La.App. 3 Cir. 6/22/07), 965 So. 2d 559, 564 (citations omitted), stated the following:
Whether a plaintiff has a right of action is a question of law. An appellate court considers whether a trial court's ruling on an [e]xception of [n]o [r]ight of [a]ction is legally correct via a de novo review.
The burden of proving that a plaintiff has no right of action is on the movant. The test for the application of the [p]eremptory [e]xception of [n]o [r]ight of [a]ction is whether this plaintiff has the capacity or legal interest to enforce the *1036 rights asserted in the petition. This exception is a threshold device that terminates suits brought by one who cannot enforce the right asserted judicially. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case is a member of the class that has a legal interest in the subject matter of the litigation.
In the case before us, the Taylors alleged in their petition that they owned immovable property and built a home on that property. In connection with the construction of the home, the Taylors alleged in their petition, with respect to Carubba, the following:
7.
Further in connection with the construction of their residence, Carubba, a licensed engineer issued to design to Post-Tension for the foundation and foundation system and also inspected and approved the work performed by Post-Tension pursuant to the same.
8.
After commencing occupancy of the residence, the Taylors became aware of serious deficiencies of the same, which deficiencies consists of the following:
a) differential movement in the foundation and foundation system of the residence;
b) cracking in the exterior brick veneer of the residence as a result of the movement;
c) cracking in the interior drywall of the residence as a result of the movement; and
d) other defects to be shown at trial.
9.
The aforementioned defects in the construction of the residence arise out of the failure by the defendants to properly perform their work and/or services to the Taylors in connection with the design and/or construction of the residence, which failures include the following:
b) failure by Carubba to properly design the foundation system for the residence and further failure to properly oversee the foundation work performed by Post-Tension[.]
We must determine whether the Taylors, as owners of a newly built home, have the legal interest or capacity to enforce the rights asserted above against Carubba, the engineer/designer of the foundation system used in constructing their home. Louisiana Civil Code article 2315(A) states, in pertinent part, that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."
The Taylors allege in their petition that Carubba's acts, i.e., failure to properly design the foundation system for their home and failure to properly oversee the foundation work done to construct their home, caused damage to them via damage to that home. Therefore, it is clear that the Taylors possess both capacity and legal interest in enforcing the rights asserted in their petition against Carubba under La.Civ. Code art. 2315.
Carubba argues that the Taylors cannot recover under La.Civ.Code art. 2315 because the article is preempted with respect to him by the New Home Warranty Act (NHWA) found at La. R.S. 9:3141, et. seq. Carubba also argues that even if the NHWA does not preempt La.Civ.Code art. 2315, the Taylors' action against him is *1037 prescribed. These arguments are misguided.
Our fifth circuit, in Mason v. Kansas City Southern Railway Co., 00-208, p. 5 (La.App. 5 Cir. 9/26/00), 769 So. 2d 1249, 1252 (footnotes omitted), stated the following:
The essential function of the exception of no right of action is to provide a threshold device for terminating a suit brought by one with no legal interest to assert it, that is, to challenge the plaintiff's interest in the subject matter of the suit or his lack of capacity to proceed with the suit. This exception is not available to urge a defense to the effect that the plaintiff is without interest simply because the defendants have a defense to the plaintiff's actions, nor can this exception of no right of action be invoked to determine whether a particular defendant can stand in judgment in a particular case. Any such defenses must go to the merits only.
Both arguments raised by Carubba's arguments "urge a defense to the effect that the [Taylors are] without interest simply because [he has] a defense to the [their] actions." Id. Thus, under an exception of no right of action, neither this court, nor the trial court, can use this exception "to determine whether [Carubba] can stand in judgment" in this case. Id. Both of Carubba's arguments are "defenses [that] must go to the merits only." Id.
Accordingly, we find that the trial court committed an error of law by granting Carubba's exception of no right of action. The petition of the Taylors establishes that they have "the capacity or legal interest to enforce the rights asserted in the petition." Randall, 965 So.2d at 564. Therefore, we reverse the trial court's judgment.
ASSIGNMENT OF ERROR NUMBER TWO:
The Taylors assert in their second assignment of error that the trial court erred when it did not grant them the right to amend their petition rather than grant Carubba's exception of no right of action. Our reversal of the trial court's grant of Carubba's exception renders this assignment moot.
ASSIGNMENT OF ERROR NUMBER THREE:
In their final assignment of error, the Taylors argue that the trial court erred when it granted Leger's motion for summary judgment. We do not agree.
Summary judgments are subject to a de novo review. Covington v. McNeese State University, 08-505 (La.App. 3 Cir. 11/5/08), 996 So. 2d 667, writ denied, 09-69 (La.3/6/09), 3 So. 3d 491. Louisiana Code of Civil Procedure Article 966(A)(2) states that "[t]he summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. . . . The procedure is favored and shall be construed to accomplish these ends." Under La.Code Civ.P. art. 966(B), a motion for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." Louisiana Code of Civil Procedure Article 966(C)(2) outlines the burden of proof that a party must carry in order to have a motion for summary judgment granted. It states:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not *1038 require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
La.Code Civ.P. art. 966(C)(2)
In the case before us, the Taylors filed a claim against Leger alleging that Leger, as the general contractor, failed to properly oversee the work performed by its subcontractors, laborers, or any other entity providing services in the construction of their home. The Taylors have the burden to prove this at trial. Therefore, Leger, in order to carry its burden of proof as the movant for the summary judgment, merely has to "point out to the court that there is an absence of factual support for one or more elements essential to the [Taylors'] claim." La.Code Civ.P. art. 966(C)(2).
Leger based its motion for summary judgment on the assertion that the Taylors could not maintain their burden of proof against it at trial. The Taylors respond with two arguments that they claim raise issues of fact material to the case that preclude summary judgment: (1) that Leger was the general contractor of the construction of their home and, as such, is liable unto them as a "Builder" under the NHWA, and (2) that Leger, even if not a "Builder" under the NHWA, was liable unto them under La.Civ.Code art. 2315, under breach of contract, and/or under breach of warranty of workmanlike performance.
The Taylors first argue that there is a genuine issue of material fact regarding whether Leger is liable to them for the inadequate construction of their home as a "Builder" under the NHWA. Louisiana Revised Statutes 9:3150 states that the NHWA:
provides the exclusive remedies, warranties, and peremptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply. Nothing herein shall be construed as affecting or limiting any warranty of title to land or improvements.
Louisiana Revised Statutes 9:3143(1), in pertinent part, defines a "Builder" as "any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home." La. R.S. 9:3144, in pertinent part, states:
A. Subject to the exclusions provided in Subsection B of this Section, every builder warrants the following to the owner:
. . . .
B. Unless the parties otherwise agree in writing, the builder's warranty shall exclude the following items:
. . . .
(8) Loss or damage which does not constitute a defect in the construction of the home by the builder, or any employee, agent, or subcontractor of the builder.
Under the clear language of the statutory scheme set up in the NHWA, the Taylors must show that Leger was a "Builder" as defined by the act, and that Leger, in its capacity as a "Builder," caused some damage to their home. The parties dispute whether Leger is a "Builder" under the NHWA. However, a finding by this court that the Taylors have not raised a genuine issue of material fact with regard to whether Leger caused some damage to their home would make a determination of *1039 Leger's status as a "Builder" moot and, further, would dispense with the Taylors' second argument that Leger was liable unto them under La.Civ.Code art. 2315, under breach of contract, and under breach of warranty of workmanlike performance. Therefore, we will address this issue first.
After a thorough review of the record, we find that there is no evidence that the Taylors' damages were due to a defect created by Leger or any of its employees, agents or subcontractors. The testimony of three experts exists in the record, Carubba, the civil engineer that designed the slab used in the home, Russell Bellard, a civil engineer hired by the Taylors, and Billy R. Prochaska, a geotechnical consultant. The testimony of each expert is in accord with respect to the following: the damage to the Taylors' home was caused by uneven heaving in the soil beneath the foundation; heaving in soil occurs when soil rises in elevation usually due to an increase in the moisture content of that soil; different types of soil react differently to an increase in moisture content, i.e., some types of soil are elevated more than others; these differences in elevations caused too much stress to be put on the type of post-tension slab used as the foundation of the Taylors' home; this stress caused the foundation to fail beneath the Taylors' home, thus damaging the home; and those soil heaving issues could have been avoided had a soil boring test been performed prior to the building of the home's foundation.
The Taylors sole source of evidence that they cite for Leger's fault is the testimony of Dr. Taylor. First, the Taylors assert that Leger was the reason that they chose a post-tension slab. The following is an excerpt of Dr. Taylor's testimony regarding the choice to use a post-tension slab:
Q All right. Now, Let'scan you tell me, Dr. Taylor, how it came about that a post-tension slab was used for the construction of your home?
A As I recall, the plans called for pilings of piers, shafts or something like that, and in my discussions with [Leger] prior to completion of the plans, we talked about post-tension. And I do recall my concern about the foundationthe soil difficulties in the Crowley area. And there was a point at which I asked [] [Rivera] and Brent [Leger] to put their heads together to determine the best choice between those two, between pilings and post-tension.
Q Do you
A Because I was concerned about the soils.
Q All right. And youand your testimony is, at that time, prior to the foundation being poured, you expressed those concerns that you just told us about to both Randy Rivera and Brent Leger.
A Correct.
Q The footings or pilings that you referred to, were those in the original plans and drawings prepared by Mr. Rivera for your home?
A I'm pretty sure, yes.
Q After you discussed your concerns about the soil in Crowley area with [] Rivera and Mr. Leger, what, if anything, did either of those two or anyone suggest to you concerning the foundation of your home?
A I don't recall specific recommendations. I do know that we ultimately did a post-tension slab.
Q And that was a decision that you had the final authority on; is that correct? You approved that?
A It was my house, yes.
*1040 Q And can you tell me, as between [] Rivera and Mr. Leger, whether it was a recommendation from one or the other, or from both?
A I think they were in accord.
The Taylors cite this testimony for their assertion that a genuine issue of material fact exists as to whether Leger recommended the installation of an inadequate foundation. We do not agree.
Dr. Taylor's recollection as to Leger's recommendations is tenuous at best. Throughout Dr. Taylor's deposition he states that his memory is very poor, that his wife would have a better recollection of the events surrounding the building of their home, and that he did make some notes of different conversations that took place between he and other parties due to his poor memory. The Taylors did not produce any of these notes, nor did Mrs. Taylor testify.
Further, even if this court were to find that Dr. Taylor's testimony creates an issue of fact regarding whether Leger influenced Dr. Taylor to choose a post-tension slab, according to all three experts whose testimony is in the record, the choice to use a post-tension slab versus a traditional slab was not the cause for the problems in the home's foundation. The problem with the foundation was either the inadequate depth of the post-tension slab or the lack of other support structures such as pilings or footings that add support to the slab regardless of whether the slab was a post-tension slab. According to those experts, a post-tension slab is simply a technique used to make concrete stiffer than the normal reinforcement of concrete which was steel rebar or welded-wire fabric. Thus, even if Leger influenced Dr. Taylor to use a post-tension slab, it is ultimately up to the designer of that slab to make sure that the slab is adequate given the information available to that designer via the plans of the home and the soil beneath that home. The home's foundation was designed by Carubba who contracted with Post-Tension to create that design. Post-Tension was hired and paid directly by the Taylors. Therefore, neither Carubba nor Post-Tension are the agent, subcontractor or employee of Leger, and there is no evidence that Carubba based his design on anything done or recommended by Leger.
Next, the Taylors assert that it was Brent Leger, the owner of Leger, who advised Dr. Taylor regarding the type of soil testing that needed to be done prior to the installation of the foundation. The Taylors cite the following from Dr. Taylor's testimony to support their assertion:
Q After the selection of the post-tension slab, do you recall any discussions concerning whether or not you needed to have any soil tests performed for consideration of using a post-tension slab?
A No.
Q Don't remember, or there were none?
A No, I don't remember.
Q Okay. Did you have an opportunity to see, at any time prior to the preparation of your foundation . . . we'll mark this "Exhibit # 7," which is a drawing: Post-Tension Slabs, Inc., John Taylor, 449 Fairway Drive, Crowley, Louisiana, foundation plan, drawn by H. Alvarez. Check by R.M.C., date 10-01, and it had a CEI Project Number, 10.15.01-405, and it is referenced as sheet S-1.
I'll ask you, did you ever see that drawing, to your recollection?
A I don't recall having seen this drawing specifically, no.
*1041 Q Do you know whether or not either [] Rivera or Mr. Leger were provided that drawing?
A I don't know.
Q Would you read for methere's a certain number of paragraphs under the notes and specifications section. Would you read for us what is contained in Number 18?
A (Reading) "Owner, builder, general contractor and/or homeowner should verify soil conditions prior to construction to verify design. Foundation designed for minimum bearing capacity of 1200psi, sf3 and TI less than 20."
Q Do you know if any tests were done prior to the building of your foundation which would verify those assumptions or conditions?
A I'm not even familiar with these terminologies.
Q All right. So you have no idea whether or not that was done or not?
A The only testing that I know we did was a soil compaction test.
Q And why did you have that test done?
A I did that at Mr. Leger's recommendation.
Q All right. Can you recall whether or not he made any other recommendations for any type of soil testing?
A I don't recall.
This testimony establishes that Leger may have suggested a soil compaction test be performed, which, again, all the expert testimony in the case stated was necessary. However, this testimony does not suggest that Leger failed to suggest the soil boring test. Dr. Taylor's testimony specifically states that he does not remember if Leger recommended the soil boring test. Accordingly, we find no merit to the Taylors' contention that it was Leger, through its owner Brent Leger, who advised Dr. Taylor regarding the decision to forgo the soil boring test prior to the installation of the foundation. Moreover, according to the testimony of Bellard, it is the engineer that designs the slab that makes the recommendation of whether to have a soil boring test performed.
Finally, the only evidence in the record regarding Leger's involvement with the foundation concerns a contract between Leger and the Taylors for the labor in creating the wooden forms in which the concrete is poured to make slab designed by Carubba. Bellard, the civil engineer hired by the Taylors, was the only source of testimony regarding the adequacy of those forms. An excerpt of his testimony follows:
Q When you observed or went out to observe the Taylors' house, did you notice anything, or could you even tellsee the slab itself, and see whatif there were any deficiencies in the slab or, I guess not the slab, but in the construction of the forms that went around the slab?
A No. Sometimes I do see some irregularities, but I don't recall any in the Taylor, you know. Irregularities meaning a form slipped in theconcrete.
Q Right.
A Protruded a little bit. I mean, there's numerous workmanship irregularities.
Q And you didn't see any of that?
A I don't recall seeing that.
Therefore, the only evidence in the record is that Leger did perform in a workmanlike manner with regard to constructing the wooden forms for the foundation. No other evidence is found in the record that the Taylors have raised a genuine issue of material fact with regard to whether Leger caused some damage to *1042 their home under the NHWA, La.Civ.Code art. 2315, breach of contract, or breach of warranty of workmanlike performance. Accordingly, we affirm the summary judgment granted by the trial court in favor of Leger.
CONCLUSION:
The Taylors raised three assignments of error, that the trial court was improper in granting Leger's motion for summary judgment, in granting Carubba's exception of no right of action, and in failing to allow the Taylors to amend their petition. We affirm the summary judgment granted to Leger, but reverse the exception of no right of action granted to Carubba. The Taylors' assignment of error related to amending their petition is rendered moot by our reversal of Carubba's exception. All costs of this appeal are assessed equally between the Taylors and Carubba.
AFFIRMED IN PART, REVERSED IN PART.
DECUIR, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1564924/ | ARCHIE P. JOSEPH, ET AL.
v.
SANDRA THERIOT, ET AL.
No. 09-1548.
Court of Appeals of Louisiana, Third Circuit.
May 5, 2010.
ARCHIE P. JOSEPH, Attorney at Law, P.O. Box 1283, Breaux Bridge, LA 70517, Counsel for Plaintiffs/Appellants: Archie P. Joseph and Melissa B. Joseph.
KRAIG T. STRENGE, Attorney at Law, P.O. Drawer 52292, Lafayette, LA 70502-2292, Counsel for Defendants/Appellees: Sandra Theroit and National Union Fire, Insurance Company of Louisiana.
Court composed of PETERS, AMY, and PAINTER, Judges.
NOT DESIGNATED FOR PUBLICATION
PAINTER, Judge.
Plaintiffs, Archie P. Joseph and Melissa B. Joseph, appeal the jury's allocation of fault, the amount of damages awarded, and the failure to award attorney's fees pursuant to La.R.S. 3:4278.1, the statute dealing with the cutting of trees without the owner's consent. For the following reasons, we affirm the jury's allocation of fault but amend its award of past damages.
FACTUAL AND PROCEDURAL BACKGROUND
On or about July 23, 1999, Plaintiffs, the Josephs, purchased a lot located in Bayou Oaks Subdivision, II, in Breaux Bridge, Louisiana, from Michael and Linda Combs. The Josephs purchased the lot with the intent to build a home there. A live oak tree alleged to be in excess of one hundred years old was located on the lot. Defendant, Sandra Theriot, who died during the pendency of this litigation, was the owner of Lot 4, which was adjacent to Lot 3.
On or about August 5, 2002, JIL Tree Service Inc., cut down the live oak tree located on the Josephs' lot. The Josephs allege that Ms. Theriot hired JIL to remove the live oak tree. The Josephs filed the present lawsuit, alleging that JIL, at the instruction of Ms. Theriot, illegally entered Lot 3 without the Josephs' consent or knowledge and cut down the live oak tree, did not do a complete job in removing the stump and roots, and thereby caused them to incur expenses to remove the stump and roots, depreciation of the value of their real property, emotional distress, and the loss of the value of the live oak tree. Ms. Theriot, her insurer, and JIL were named as defendants. Ms. Theriot filed a general denial in answer to the suit and also filed a cross-claim against JIL. JIL did not answer the suit, and a preliminary default was taken on June 13, 2005. The Josephs filed a supplemental petition naming the administrations of the estate of Ms. Theriot and National Union Fire Insurance Company of Louisiana as Defendants. The matter proceeded to trial by jury. At the close of Defendants' evidence, the Josephs moved for a directed verdict on the issue of Ms. Theriot's liability. The trial court granted that motion. The matter was then given to the jury, which returned a verdict in favor of the Josephs. The jury found Ms. Theriot to be seventy-five percent at fault and JIL to be twenty-five percent at fault. The jury awarded $225.00 for expenses incurred by the Josephs to remove the stump, roots, and other debris. No damages were awarded for the fair market value of the live oak tree or for attorney's fees. The Josephs filed a motion for judgment notwithstanding the verdict and/or new trial which was denied by the trial court. This appeal by the Josephs followed.
DISCUSSION
The Josephs first allege that the trial court committed reversible error when it allowed the jury to apportion liability after granting their directed verdict on the issue of Ms. Theriot's liaiblity. The Josephs assert that the trial court found that Ms. Theriot acted willfully and intentionally and was one hundred percent liable. We do not find that this assertion is supported by the record. Furthermore, the findings of liability and the allocation of fault are two separate inquiries. Louisiana Civil Code article 2323 provides, in pertinent part, that "[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty." We find no merit in the Josephs' assertion that fault cannot be allocated by the jury after the trial court directs a verdict on the issue of the liability of one party.
The Josephs also argue that the jury's allocation of fault was contrary to the facts presented at trial. The jury apportioned seventy-five percent of the fault to Ms. Theriot and twenty-five percent of the fault to JIL. We note that the Josephs named JIL as a defendant and, in fact, took a preliminary default against JIL when it failed to file an answer and that Ms. Theriot filed a cross-claim against JIL. Thus, the fault of JIL was clearly at issue at trial. The trial court declined to change the jury's assessment of fault when indirectly presented with the opportunity through the motion for JNOV. The Josephs have not appealed the trial court's ruling with respect to the motion for JNOV.
In Domingue v. Excalibar Minerals ofLouisiana, LLC, 05-1018, p. 8 (La.App. 3 Cir. 7/26/06), 936 So. 2d 282, 288, writs denied, 06-2480, 06-2489 (La. 2/2/07), 948 So. 2d 1077, 1078, this court noted:
In reviewing the fact finder's allocation of fault, we are guided by the following standard of review:
The applicable standard of review regarding the factual consideration of respective degrees of fault is the manifest error or clearly wrong standard. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So. 2d 607. This well-known standard prohibits an appellate court from altering a fact finder's determinations, unless those determinations and findings have been found to be clearly wrong upon review of the trial court record. While applying this standard, great deference must be given to the fact finder's results; however, the appellate court is required to simultaneously remain mindful of its constitutional duty to review the facts. La. Const. art. 5, §§ 5(C), 10(B); Clement, 666 So. 2d 607; Ambrose v. New Orleans Police Dept. Ambulance Serv., 93-3099, 93-3110, 93-3112 (La.7/5/94), 639 So. 2d 216. In doing so, should it be determined that the record supports a finding that the fact finder was clearly wrong or that it abused its wide discretion, this court is empowered to reallocate fault. Clement, 666 So. 2d 607. The deference we continue to owe to the fact finder, however, restrains us in any such reallocation, in that we are allowed to adjust fault only to the extent of lowering or raising it to the highest or lowest point, respectively, which would have been reasonably within the jury's discretion. Id.
Yellott v. Underwriters Ins. Co., 04-1342, p. 12 (La.App. 3 Cir. 8/31/05), 915 So. 2d 917, 926, writ denied, 05-2439 (La.4/24/06), 926 So. 2d 540.
Moreover, we are mindful of this court's observation, in Layssard v. State, Department of Public Safety and Corrections, 07-78, p. 4 (La.App. 3 Cir. 8/8/07), 963 So. 2d 1053, 1058, writ denied, 07-1821 (La. 11/9/07), 967 So. 2d 511, that "the allocation of fault is not an exact science, nor is it the search for a precise ratio." Thus, we must consider the jury's allocation of fault under the manifest error standard of review, and we must be mindful of the requirement that credibility determinations are for the trier of fact and that "reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Rosell v. ESCO, 549 So. 2d 840, 844 (La.1989).
The Josephs alleged, in their petition for damages, that JIL was at fault for failure to exercise due caution while on their property to avoid damage thereto and for leaving debris and equipment tracks on the property. The Josephs themselves presented evidence that JIL did not completely remove the stump or all roots of the live oak tree. Considering all the facts adduced from the evidence and testimony presented at trial, we cannot say the jury's allocation of fault is manifestly erroneous.
The Josephs next argue that the jury abused its discretion when it awarded them $225.00 for past expenses. The Josephs assert that the evidence showed expenses totaled $975.00 for the cost of the removal of the debris associated with the cutting of the live oak tree. The Josephs paid Daniel Green Tree Services $225.00 for grinding the remainder of the stump. The Josephs also presented evidence that they paid $350.00 to James Gaines to remove the roots and other debris. However, this expense was incurred some three years after the tree was cut down when Mr. Gaines was constructing a driveway on the property. The Josephs further presented testimony that they obtained a survey at the cost of $400.00 in order to establish their property's boundaries. We agree that the jury abused its discretion in failing to award the costs for the removal of the debris. Therefore, we increase the award of past expenses to $575.00. We decline to award the amount paid for the survey as this was unrelated to the cutting down of the live oak tree.
Plaintiffs next argue that the jury abused its discretion when it awarded nothing for the fair market value of the live oak tree in violation of La.R.S. 3:4278.1.
Louisiana Revised Statute 3:4278. 1 provides, in pertinent part:
A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney's fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.
This is the applicable statute. Mr. Joseph, who represented himself and his wife at trial, did not object to the trial court's failure to charge the jury under La.Civ. Code art. 2315 and neither raises this issue on appeal nor argues in brief that Article 2315 is applicable. We find that the Josephs proved that the live oak tree on their property was cut by Ms. Theriot and JIL without their consent. The Josephs' expert testified, as pointed out by the Josephs themselves, that the tree was irreplaceable and that he could only come close to replacing that loss by replanting. We do not find that this is proof of the fair market value of the tree. See Olsen v. Johnson, 99-783 (La.App. 3 Cir. 11/3/99), 746 So. 2d 740, wherein we noted that the plaintiff's expert testimony as to the cost of replacement did not address the value of the trees that were cut down. Furthermore, there was ample testimony indicating that the tree was rotten and, therefore, had no value. Thus, we do not find that the jury abused its vast discretion in awarding nothing for the fair market value of the tree.
The Josephs next argue that the jury abused its discretion in failing to award attorney's fees under La.R.S. 3:4278.1. We do not agree. Louisiana Revised Statute 3:4278.1(B), as quoted above, provides for the recovery of reasonable attorney's fees where the violation is willful or intentional. We do not find that the evidence proved that Ms. Theriot's conduct was willful or intentional such that the imposition of attorney's fees was mandated by statute. There is evidence in the record to support the jury's finding that no attorney's fees are recoverable in this case, and we find that the jury did not abuse its discretion in failing to make such an award.
DECREE
For all of the foregoing reasons, we affirm the jury's allocation of fault. We increase the award for past expenses from $225.00 to $575.00. In all other respects, the jury's verdict is affirmed. Costs of this appeal are assessed equally to Plaintiffs-Appellants, Archie P. Joseph and Sandra Theriot, and Defendants-Appellees, Sandra Theriot and National Union Fire Insurance Company of Louisiana.
AFFIRMED AS AMENDED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform RulesCourts of Appeal, Rule 2-16.3. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565034/ | 691 S.W.2d 799 (1985)
Willard Eugene ELLIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 01-84-0422-CR.
Court of Appeals of Texas, Houston (1st Dist.).
May 23, 1985.
Steve Hebert, Hebert & Dunham, Houston, for appellant.
John B. Holmes, Jr., Harris County Dist. Atty., Roe Morris, Harris County Asst. Dist. Atty., Houston, for appellee.
Before EVANS, C.J., and COHEN and DUNN, JJ.
OPINION
DUNN, Justice.
A jury convicted the appellant of theft, found two enhancement paragraphs to be true, and assessed punishment at 45 years confinement. We reverse and order a judgment of acquittal.
In his sole ground of error, appellant contends that there was insufficient evidence arising from his possession of recently stolen property to support an inference of guilt.
The record reveals that on March 15, 1984, Rick Cogsgrove, the complainant, parked his truck near the building in which he worked. He did not see the truck again *800 until the next day when he reclaimed it from a storage yard after receiving a telephone call from the Harris County Sheriff's office. Mr. Cogsgrove testified that before his truck was stolen, it was in good condition except for a slight dent in the hood. When he recovered the truck, the complainant found that the hood latch was missing, the ignition switch had been ripped out, and the lock on the left vent window had been broken.
Officer William Hilden of the Harris County Sheriff's Department testified that on March 16, 1984, he went to 5501 Charrin to investigate a report of a stolen vehicle. When he arrived at that location, Officer Hilden observed the appellant working underneath the hood of the truck. The truck was later identified as the vehicle Mr. Cogsgrove had reported stolen.
The officer further testified that before he arrested appellant, he asked him to explain what he was doing to the truck. The appellant answered that he was repairing the broken hood latch. The appellant also stated that a man named Thomas Ray had brought the car to him for repair. There was no evidence that this claim was false or that the police ever investigated the claim. At the end of Officer Hilden's testimony, the State rested.
Appellant argues that there is insufficient evidence because the State failed to disprove the appellant's reasonable explanation for his possession of the truck.
In reviewing the sufficiency of direct or circumstantial evidence, we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Christian v. State, 686 S.W.2d 930 (Tex.Crim.App.1985); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App. 1983). Generally, if a defendant is found in possession of recently stolen property and fails to make a reasonable explanation showing his honest acquisition of the property at the time of his arrest, the factfinder may draw an inference of guilt. Hardesty v. State, 656 S.W.2d 73 (Tex.Crim.App. 1983); Williams v. State, 631 S.W.2d 171 (Tex.Crim.App.1982).
However, before an inference of guilt may arise from the circumstances of possession alone, such possession must be recent, unexplained, and must involve a distinct and conscious assertion of right to the property by the defendant. McLemore v. State, 638 S.W.2d 211, 214 (Tex.App. Houston [1st Dist.] 1982, no pet.); see also Glover v. State, 689 S.W.2d 300 (Tex.App. Houston [1st Dist.], April 18, 1985) (not yet reported).
There must also be evidence in the record that the defendant's explanation is false or unreasonable. See Sanders v. State, 675 S.W.2d 343 (Tex.App.Fort Worth 1984, no pet.). Thus, if the defendant offers a reasonable explanation which sufficiently rebuts the circumstances of possession of recently stolen property, the evidence is insufficient to sustain the conviction unless it shows that the explanation was false. McLemore, 638 S.W.2d at 214; Huff v. State, 492 S.W.2d 532 (Tex.Crim.App.1973). When the explanation is made at the time of arrest, the necessity of showing that the explanation is false is even greater. See, e.g., Callahan v. State, 502 S.W.2d 3 (Tex. Crim.App.1973); see Sanders v. State, 675 S.W.2d 343.
In Huff, the court found the evidence insufficient to support a conviction for the offense of theft of property over the value of $50, where the defendant explained at the time of his arrest that he had purchased the stolen car for $175. Although the defendant also presented the testimony of his companion, who stated that she had given him the money to purchase the car, the court based its decision on the failure of the State to refute or show that the explanation was false. 492 S.W.2d at 533.
In McLemore, this court considered a case in which the defendant was stopped by officers for driving an automobile without a license plate or inspection sticker. The officers observed property that had been stolen earlier that day in the back seat of the car. At the time of his arrest, *801 the defendant stated that he had borrowed the car to seek employment. This court found the evidence insufficient to sustain a conviction for the offense of burglary of a habitation because the State offered no evidence to discredit the explanation given by the appellant at the scene of arrest. Therefore, we held that since the evidence offered by the State did not refute or establish the falsity of the explanation given by appellant at the scene of his arrest, it did not justify the inference that the defendant committed the burglaries. 638 S.W.2d at 214.
The State argues that it need not prove that the appellant's explanation was false, because it was not a reasonable explanation. In Sanders v. State, 675 S.W.2d 343, the court found that the circumstances of appellant's possession of a stolen guitar refuted the reasonableness or truthfulness of the defendant's explanation. However, in that case, the defendant, who did not play a guitar, purchased a guitar in the middle of the night from a man whose name he could not recall, while the guitar still had the price tag on it. The record also showed that someone matching appellant's description had been seen at the pawn shop from which the guitar had been stolen just prior to the burglary. Further, Sanders was arrested eight blocks from the store that was burglarized soon after the burglar alarm went off.
In contrast, the circumstances of the instant case do not refute the reasonableness of the appellant's explanation at the time of arrest. One of the State's own witnesses, Officer Hilden, testified that appellant was observed working on the stolen vehicle, during the daytime, in plain view. The hood latch on the truck was obviously broken, and appellant explained that he was repairing it for a man named Thomas Ray. Unlike the circumstances in Sanders, there is no other circumstantial evidence linking appellant to the theft of the truck.
Under the circumstances outlined, the appellant's explanation was reasonable, and there was no evidence to refute or establish the falsity of the explanation. Thus, there is no inference that appellant committed the offense, and the evidence is insufficient to support the conviction.
The ground of error is sustained.
The judgment of conviction is reversed, and a judgment of acquittal is entered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565048/ | 691 S.W.2d 875 (1985)
15 Ark.App. 215
George BIRCH, Administrator, Appellant,
v.
Sue G. COLEMAN, Appellee.
No. CA 84-378.
Court of Appeals of Arkansas, Division II.
June 19, 1985.
*876 Spears, Sloan & Johnson, West Memphis, for appellant.
Skillman & Durrett, West Memphis, for appellee.
CLONINGER, Judge.
Appellant, George Birch, brings this appeal from an order of the Probate Court of Crittenden County, admitting a will to probate which was executed on February 5, 1981, by his uncle, James Holcomb. We think the chancellor erred in admitting the will to probate and reverse.
The evidence established that on December 10, 1980, the decedent's wife died and appellee, Sue Coleman, who was not related to the decedent, filed a petition to have herself appointed guardian of the person and estate of the decedent. At that time, the decedent was 85 years old, hospitalized with a heart attack, and physically unable to manage his affairs. On December 23, 1980, the court granted appellee's petition and entered an order appointing appellee guardian of the decedent. On February 1, 1981, the decedent moved into appellee's home and for the most part resided there until his death on October 22, 1982. During the twenty-two month period in which appellee acted as decedent's guardian, she opened at least six different guardianship accounts at a branch bank in Marian, Arkansas, and expended a substantial amount of the decedent's money on furniture and clothes for herself. According to appellee, all of the expenditures were made at decedent's request.
After the decedent's death, two wills purportedly executed by the decedent were filed for probate. One was dated December 30, 1980, and named appellant as primary beneficiary. A second will was dated February 5, 1981, which was five days after decedent's move into appellee's house, and named appellee as primary beneficiary.
The circumstances surrounding the making of the second will are relevant to this appeal. Thomas G. Montgomery, an attorney, did the legal work for appellee in relation to the guardianship estate for the decedent. Mr. Montgomery testified that appellee asked him to prepare a will for the decedent and that appellee asked, "Well, what if he wants to leave something to me?" Mr. Montgomery replied, "... in that case I can't prepare the will, you'll have to get somebody else to do it." Following that conversation with Mr. Montgomery, appellee testified that at the decedent's request, she called a woman named Judy Gobbell to come to the house and talk to decedent about his will. Miss Gobbell was not an attorney but was employed at the bank in Marian and had been instrumental in setting up the numerous guardianship accounts for appellee. There was testimony that appellee and Miss Gobbell occasionally saw each other on a social basis.
Miss Gobbell testified that she went to appellee's house and spoke with the decedent who gave her some will forms and asked her to prepare a will for him. She testified that she proceeded to draft the will and that she read this will over the telephone to Thomas G. Montgomery who said the will was fine. Mr. Montgomery denied that this conversation took place. Miss Gobbell testified that she then took the will to appellee's house where she read it to the decedent and witnessed his signature on it. A woman named Kay Osborne also witnessed the decedent's signature at that time and appellee testified that she paid Miss Osborne $15.00 for coming to witness the will. Miss Gobbell testified that during the reading and signing of the will, appellee was in the house but not in the room with decedent, and that appellee never saw the will.
Appellant petitioned the court to contest the second will being admitted to probate for two reasons. He alleged first that the decedent was not mentally competent to execute the will and second, that appellee exercised undue influence over the decedent *877 and that she procured the will. After a hearing, the court found that the decedent was competent to make and execute the will of February 5, 1981, and that appellee did not exercise undue influence over the decedent to make the will. The court ordered that the second will be admitted to probate and appellant brings this appeal from that order.
Appellant first argues that the court erred in not applying a presumption of undue influence in this case. Appellant contends that because appellee was decedent's guardian, the relationship was confidential and therefore a will leaving most of the decedent's estate to appellee should have been presumptively void. Appellant also argues that the evidence established that appellee "procured" the will and thus the court should have shifted the burden of proof to the appellee to show that the decedent "had both the mental capacity and freedom of will to render the will valid." Appellant admits that the case is one of first impression and that, normally, the one who contests a will must prove undue influence. However, appellant urges this court to apply presumption of the undue influence in cases where a ward makes his guardian the primary beneficiary of his will.
For support, appellant cites several cases from other jurisdictions where the courts have applied a rebuttable presumption of undue influence in situations where guardians have been named principal beneficiaries of their wards' wills. For instance, in In Re Cowdry's Will, 77 Vt. 359, 60 A. 141 (1905), the executor, proponent and principal beneficiary of the will in issue, was also the guardian of the decedent before and at the time the will was made. The court held that there was presumption of undue influence which "did more than to take the burden of proof from the contestants and place it upon the guardian. It established prima facie the existence of such influence, and was sufficient to defeat the will unless and until it was overcome by counter-proof...." Id. at 142. Also, in Garvin's, Administrator v. Williams, 44 Mo. 465 (1869), the court held that a guardian is in a confidential relation with his ward, that the most exact good faith is required of him, and that "it was incompetent for him to take a benefit for himself without showing that the benefit flowed from the free, unbiased, independent will and uninfluenced volition of his ward." Id. at 478. Finally, in Pepin v. Ryan, 133 Conn. 12, 47 A.2d 846 (1946), the court held that the guardian of the decedent failed to prove that her influence did not overcome the free agency and independence of the decedent, stating:
Ordinarily, the burden of proving undue influence rests upon him who seeks to have a will set aside on this ground, but "where the natural object of the testator's bounty is excluded from participation in his estate, where a stranger supplants children, and the will is in favor of ... the guardian having charge of his person and estate ... there is imposed upon the proponents of the will, upon the trial of the issue as thus raised, the obligation of disproving by a clear preponderance of evidence the affirmation of the actual exercise of undue influence by such beneficiaries of the will. St. Leger's Appeal, 34 Conn. 434, 450, 91 Am.Dec. 735; Dale's Appeal, 57 Conn. 127, 143, 17 A. 757."
Id. 47 A.2d at 847.
In response, appellee points out that the decedent was mentally competent to make the will, even though he was technically under a guardianship. Furthermore, appellee maintains that there is a question about the validity of the guardianship because the decedent had only a physical incapacity. We fail to see the merit in this argument. The evidence clearly established the existence of a guardianship relationship between appellee and the decedent. The decedent was bedridden and living at appellee's house. Appellee conducted substantially all of the decedent's financial transactions. She opened and maintained all of his bank accounts during the period of the guardianship. Appellee filed the petition to have herself appointed the decedent's guardian and she filed an accounting *878 after his death. We do not think at this late date that appellee should be allowed to question the guardianship relationship. Based on these same facts, we do not think that appellee can deny that a confidential relationship existed also.
Arkansas courts have recognized a presumption of undue influence in various situations. For instance, in Park v. George, 282 Ark. 155, 667 S.W.2d 644 (1984), the court held that where the beneficiaries of the decedent's will had also procured the execution of the will, they had the burden of proving beyond a reasonable doubt that the decedent was not unduly influenced and possessed the mental capacity to execute the will. In Reeder v. Meredith, 78 Ark. 111, 93 S.W. 558 (1906), the court recognized that a trustee, by virtue of his relationship to the beneficiaries of the trust, must assume the burden of proving the fairness of a transaction with the beneficiary of the trust which benefits himself. In Young v. Barde, 194 Ark. 416, 108 S.W.2d 495 (1937), the court recognized the general rule that where special trust and confidence exists between the parties to a deed, the gift to the party holding the dominant position is prima facie void. The court stated that gifts "will be scrutinized with the most jealous care when made between parties who occupy such confidential relation as to make it the duty of the person benefited by the contract or bounty, to guard and protect the interest of the other and give such advice as would promote those interests." Id. at 419, 108 S.W.2d 495.
More on point is the case of Gingrich v. Bradley, 232 Ark. 884, 341 S.W.2d 33 (1960), where the appellant argued that the appellee, decedent's spiritual adviser, occupied a confidential relationship with the decedent and had both the motive and opportunity to exert undue influence over her, and so the will naming him primary beneficiary should have been set aside. The court recognized that "the circumstances surrounding the execution of this will call for the closest scrutiny and may even give rise to a rebuttable presumption that undue influence was exercised." Id. at 890, 341 S.W.2d 33. However, the court went on to find that the weight of the evidence did not require that the will be set aside. Then, in Union National Bank v. Leigh, 256 Ark. 531, 509 S.W.2d 539 (1974), the court stated that although normally the burden of proving the invalidity of a will is upon the contestants, in this case the proponent of the will, who was the decedent's wife, had the burden of overcoming a rebuttable presumption of undue influence because of her confidential relationship with the decedent and because she was instrumental in the execution of the will. However, the court went on to state that the widow's participation in the drafting and execution of the will was not so dominating or overpowering as to call for proof beyond a reasonable doubt.
We think the above cases clearly support appellant's argument for the application of a presumption of undue influence in the instant case. However, as in the Union National Bank case, we do not think appellee's participation in the execution of the decedent's will was so dominating as to call for proof beyond a reasonable doubt, which appears to be the standard in procurement cases. See, e.g., Neal v. Jackson, 2 Ark.App. 14, 616 S.W.2d 746 (1981). We agree with appellee that the evidence is insufficient to enable us to find that she procured the will. However, we do not think that a finding of procurement is a necessary prerequisite to our shifting the burden of proof to the proponent of the will. We hold that where a ward names his guardian as a principal beneficiary of his will, the existence of undue influence on the part of a guardian should be presumed and the will should be prima facie void, unless the guardian can show by clear preponderance of the evidence that he took no advantage of his influence with the ward and that the ward's testamentary gift was a result of his own volition.
On appeal from probate courts, we review the case de novo and will affirm the order of the probate judge unless his findings are clearly erroneous or clearly *879 against the preponderance of the evidence. Rule 52(a) of the Arkansas Rules of Civil Procedure; Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979). In this case, we think the evidence is fully developed on the issue of undue influence and based on our de novo review, we find that the probate judge's finding of no undue influence is not consistent with the law we have declared herein, and is clearly against the preponderance of the evidence.
The decedent had executed a will in favor of appellant, his nephew, about five weeks before he executed the will in favor of appellee. Several longtime friends of the decedent testified that he was very close to his nephew and considered him like a son. There was no evidence of any rift occurring in that relationship during the five weeks after the decedent named appellant as his principal beneficiary. The evidence does establish that during that time, appellee was appointed decedent's guardian and that decedent moved into appellee's house but remained bedridden. There was evidence that appellant was having health problems at the time and that this prevented his visiting with his uncle. Other friends of the decedent testified that they did not visit him at appellee's house because she made them feel uncomfortable.
Several days after decedent moved in with appellee, she asked a business and social acquaintance of hers, who was not an attorney, to assist decedent in drawing up another will. This followed a refusal by her regular attorney to prepare a will in which appellee was to be a beneficiary. At that time, decedent was totally dependent on appellee for his personal care and his financial management. It is clear that in the ordinary course of affairs, decedent had the most implicit faith in appellee and that she exercised a considerable amount of influence over him. This is evidenced by her actions and by the expenditures she made in her capacity as decedent's guardian.
We think that when all these circumstances are combined they support our conclusion that appellee failed to show that decedent had the freedom of will necessary to make a legally valid will. We reverse and direct the probate court to dismiss the order admitting the will of February 5, 1981 to probate.
Because we have found the will to be invalid, we do not need to discuss appellant's third argument, that the proof of will is not in compliance with statutory requirements.
Reversed.
GLAZE and MAYFIELD, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565030/ | 34 So. 3d 70 (2010)
Edward LOCASCIO, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D07-1272.
District Court of Appeal of Florida, Third District.
March 24, 2010.
Rehearing and Rehearing En Banc Denied May 25, 2010.
Peter Raben, Coconut Grove, for appellant.
Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
PER CURIAM.
Affirmed.
ROTHENBERG and LOGOA, JJ., concur.
SHEPHERD, J., dissenting.
I respectfully dissent. Because the State impermissibly made evidence of Appellant Edward Locascio's other misdeeds throughout the course of the marriage and divorce proceedings a feature of the trial, I would reverse the convictions below.
Edward Locascio was charged as a principal and co-conspirator to his brother Michael's killing of Defendant's soon-to-be ex-wife, Silvia. The State's theory of this wholly circumstantial case was, because the divorce proceedings between Edward and Silvia were so hotly contested, Edward was motivated to have his wife killed in order to avoid parting with his assets. In support of its theory, the State introduced voluminous testimony evidencing Defendant's *71 failures as a father, his unlawful tactics as a certified public accountant and investor, and his contemptuous behavior during the family law case. Along with the testimony of two divorce attorneys, spanning over three days of trial, the State presented documented evidence of Locascio's acts of perjury, forgery, and subordination of perjury during the course of the divorce proceedings. The State highlighted this extrinsic evidence in both its opening and closing arguments, propagating to the jury that Locascio engaged in acts of "lying, frauding," and "[behaving as a] CPA at his finest."
It is well-settled law in this State that where evidence of an uncharged crime is inextricably intertwined with the charged offense, the extrinsic evidence is admissible "where it is impossible to give a complete or intelligent account of the crime charged without referring to the other crime." See Simmons v. State, 790 So. 2d 1177, 1178 (Fla. 3d DCA 2001) (quoting Nickels v. State, 90 Fla. 659, 106 So. 479, 488 (1925)). However, this Court recently has reaffirmed the rule of law which commands that such evidence shall not become a feature of the trial. See Morrow v. State, 931 So. 2d 1021, 1022 (Fla. 3d DCA 2006) (citing Bryan v. State, 533 So. 2d 744, 746 (Fla.1988)). Whether the collateral crimes have become a feature of the trial is not measured simply by the number of references; however, "voluminous references to the collateral crime are evidence of a prohibited transgression." Morrow, 931 So.2d at 1023. A careful review of the record in this case reveals this is indeed a case of voluminous references. As recognized by the Fourth District:
The danger in making extrinsic evidence the feature of the trial is that the proceeding is transformed from development of facts pertinent to the main issue of guilt or innocence into an assault on the character of the defendant, whose character is insulated from attack unless he introduces the subject.
Sutherland v. State, 849 So. 2d 1107 (Fla. 4th DCA 2003).
Although I can agree with the State's assertion that some of the extrinsic evidence was necessary to establish Defendant's motive, I cannot agree that all of it was, especially in light of the characterizations of Locascio as a fraud, a liar, a tax evader, and "a CPA at his finest." As it appears the surplus was directed primarily at impermissibly attacking the defendant's character, I would reverse the defendant's convictions and remand for a new trial, heavily directing the State to apply an editing eye to its case-in-chief. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565033/ | SUCCESSION OF LOUIS F. WAGNER.
SUCCESSION OF LEILA MAE CORNAY WAGNER.
No. 2009 CA 0812, Consolidated With No. 2009 CA 0813.
Court of Appeals of Louisiana, First Circuit.
March 30, 2010.
Not Designated for Publication.
T. JAY SEALE, III, PATRICK K. RESO, GLEN R. GALBRAITH, FRANK J. DIVITTORIO, HAMMOND, LA, Counsel for Plaintiff/Appellee, Warren Wagner, Individually and in his Capacity as Succession, Representative of the Succession, of Louis F. Wagner.
MARGARET H. KERN, COVINGTON, LA, Counsel for Defendant/Appellant, Faye L. Wagner, Independent, Executrix of the Succession of Leila Mae Cornay Wagner.
Before: CARTER, C.J., PARRO, GUIDRY, PETTIGREW, and GAIDRY, JJ.
PETTIGREW, J.
In this succession proceeding, Faye L. Wagner, as independent executrix of the succession of Leila Mae Cornay Wagner, appeals from a judgment of the trial court ordering the estate of Leila Wagner to pay the estate of Louis F. Wagner one-half of the total interest that would have been earned on six accounts that remained in the physical possession of Leila Wagner following Louis Wagner's death. For the reasons that follow, we affirm.
Louis and Leila Wagner were married on April 24, 1937, and had two children, Warren and Faye. Following Louis's death on May 22, 2001, Warren filed a petition for probate of his father's last will and testament, which named him as universal legatee and executor of his father's estate.
Thereafter, on October 3, 2001, Leila filed a petition for possession, for return of community assets, and for other relief. In her petition, Leila asserted that all property owned by Louis at the time of his death belonged to the community and that as the surviving spouse, she was entitled to immediate possession of one-half of the assets belonging to the community. Additionally, she listed the following as assets of the community: a Charles Schwab account, gold coins, a Hibernia certificate of deposit, and two bank accounts in her name. Leila also acknowledged that a $100,000.00 certificate of deposit donated to Faye prior to Louis's death was a community asset.
On March 3, 2002, Leila died, leaving her entire estate to Faye. Thereafter, Faye opened her mother's succession with a petition for probate of Leila's last will and testament and was appointed as executrix of Leila's estate. The two successions were later consolidated, although the consolidation order specifically provided they would continue to be administered separately.
Warren and Faye filed several rules and motions in these proceedings regarding the classification of certain properties as being either community or separate in nature and regarding the validity of certain donations made by Louis and Leila to one or the other of their children. Following hearings on April 20, 2004, and December 18, 2004, the trial court rendered judgments as to these issues. Warren and Faye appealed from those judgments. In Succession of Wagner, XXXX-XXXX (La. App. 1 Cir. 8/8/08), 993 So. 2d 709, this court affirmed the judgments of the trial court, except for the portion of the trial court's judgment ordering the estate of Leila Wagner to pay interest to the estate of Louis Wagner on all moneys in Leila's possession at the time of her death. This court vacated that portion of the judgment because the trial court failed to set forth the precise rate at which interest was to be paid, and, as to the certificate of deposit, the rate or period of time for which interest was payable, and remanded the matter to the trial court for further proceedings.
On November 26, 2008, the trial court conducted a hearing, whereby Warren and Faye stipulated as to the amounts involved and the applicable rates of interest. The court also entertained argument by counsel on Faye's request for the trial court to reconsider its determination that any interest was due and payable at all. Thereafter, on December 15, 2008, the trial court signed a judgment ordering the estate of Leila Wagner to pay the estate of Louis Wagner one-half of the total interest that would have been earned on each of the six accounts in Leila's possession, at their respective interest rates, from the date of Louis's death, May 22, 2001, until July 11, 2008. The judgment set forth the amounts for each account and their applicable rates of interest. Additionally, the trial court denied Faye's request for reconsideration of whether any interest was due and payable at all. This appeal by Faye followed.
On appeal, Faye argues that the trial court erred in awarding the estate of Louis Wagner interest on all community funds in the possession of Leila at the time of her death and on the certificate of deposit. Alternatively, Faye asserts that if an award of interest was appropriate, it should only have been awarded from the date of the judgment of partition of the community of assets, not from the date of Louis's death.
Following an extensive review of the record and exhibits in this matter, we cannot conclude the trial court was manifestly erroneous in its findings or committed legal error in its application of the law. As previously indicated, the parties stipulated to the community funds at issue and subject to interest. The parties also stipulated to the applicable interest rates. After hearing argument from the parties, the trial court ruled in favor of the estate of Louis Wagner, ordering the estate of Leila Mae Cornay Wagner to pay the estate of Louis Wagner "a certain sum equal to one-half (1/2) of the total interest which would have been earned on the amounts ... at the respective interest rates shown, from the date of death of Louis Wagner, May 22, 2001 and ending July 11, 2008." The estate of Louis Wagner, as co-owner of these various accounts and certificates of deposit at issue, was clearly entitled to its share of the interest that would have been earned on said former community funds. Thus, we find no error in the trial court's ruling, which was reasonable and supported by the record.
Accordingly, we affirm the trial court's judgment and assess all costs associated with this appeal against the appellant, Faye L. Wagner, independent executrix of the succession of Leila Mae Cornay Wagner. We issue this memorandum opinion in compliance with Uniform Rules-Courts of Appeal, Rule 2-16.1(B).
AFFIRMED.
GUIDRY, J., dissents and assigns reasons.
GUIDRY, J., dissenting.
I respectfully disagree with the majority opinion, finding no manifest error in the trial court's judgment ordering the estate of Leila Wagner to pay the estate of Louis Wagner one-half of the total interest that would have been earned on each of the six accounts in Leila's possession, at their respective interest rates, from the date of Louis' death, May 22, 2001, until July 11, 2008.
Warren Wagner, as succession representative for Louis Wagner's estate, asserts that the succession was entitled to one-half of the interest that the funds in Leila's possession earned or would have earned had they not been liquidated by Faye. As support for this claim, Warren relies on La. C.C.P. art. 3222, which states:
A succession representative shall deposit all moneys collected by him as soon as received, in a bank account in his official capacity, in a state or national bank in this state, and shall not withdraw the deposits or any part thereof, except in accordance with law.
On failure to comply with the provisions of this article, the court may render a judgment against the succession representative and his surety in solido to the extent of twenty percent interest per annum on the amount not deposited or withdrawn without authority, such sum to be paid to the succession. He may also be adjudged liable for all special damage suffered, and may be dismissed from office. [Emphasis added.]
Article 3222 provides that when a succession representative fails to deposit moneys collected by him into a bank account, the succession representative is liable for a penalty, which is to be paid to the succession. However, in the instant case, Warren is not seeking to hold Faye, as succession representative, liable to Leila Wagner's succession for the interest that would have been earned on the funds in Leila's possession at her death. Rather, he is asserting that Leila's failure to turn over the community property in her possession after Louis' death and Faye's subsequent liquidation of these funds as succession representative results in Leila's estate owing Louis' estate for the interest on these amounts. This clearly does not come within the plain language of article 3222.
Accordingly, because Warren failed to establish that Louis Wagner's estate is entitled to interest on the funds retained by Leila under article 3222, and there is no other positive law[1] which would entitle Louis Wagner's estate to such an award, I would find that the trial court erred in awarding Louis Wagner's estate interest on the funds retained by Leila.
NOTES
[1] On appeal, Warren asserts alternatively that Louis Wagner's estate is entitled to interest on the funds retained by Leila under the theory of unjust enrichment. However, Warren did not raise this argument in the trial court. As such, it cannot be considered by this court for the first time on appeal. Uniform Rules, Courts of Appeal, Rule 1-3; Walston v. Lakeview Regional Medical Center, 99-1920, p. 8 (La. App. 1st Cir. 9/22/00), 768 So. 2d 238, 242-243, writ denied. 00-2936 (La. 12/15/00), 777 So. 2d 1229. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565056/ | 691 S.W.2d 379 (1985)
STATE of Missouri, Plaintiff-Respondent,
v.
William P. TAYLOR, Defendant-Appellant.
No. 48101.
Missouri Court of Appeals, Eastern District, Division One.
April 16, 1985.
Motion for Rehearing and/or Transfer Denied May 17, 1985.
Application to Transfer Denied June 25, 1985.
*380 David Hemingway, St. Louis, for defendant-appellant.
John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 17, 1985.
PUDLOWSKI, Presiding Judge.
The appellant, William Phillip Taylor, was convicted by a jury of the crime of receiving stolen property with a value of more than $150.00, a violation of § 570.080 RSMo 1978. The court found appellant to have been a persistent offender and, accordingly, sentenced him to fifteen years in the custody of the Missouri Department of Corrections. On appeal, appellant raises two contentions of error. First he contends that the evidence was not sufficient to support his conviction because there was allegedly no evidence that he knew or believed the property was stolen at the time he disposed of it. Appellant's second contention is that the trial court erred in overruling his objection and mistrial request pertaining to certain statements made by the prosecutor during closing arguments concerning appellant's failure to testify at trial. We find no merit to his contentions of error and affirm.
The facts are as follows: On June 26, 1979, Melvin Bishop who was employed as a medical technologist for the West County Medical Laboratory in Ballwin, Missouri (of which he was also part owner) received a phone call from a man identifying himself as Dr. Phillip Taylor, Ph.D. The caller indicated that he had a microscope which he wished to sell. Mr. Bishop expressed an interest in purchasing the microscope and arranged to meet with appellant at the laboratory that same day.
Appellant brought the microscope, an American Optical, to the lab as planned, at which time Mr. Bishop talked to appellant about the microscope. Mr. Bishop used the discussion to determine whether appellant truly had the medical background which he claimed. Impressed by the good condition of the microscope and satisfied with appellant's medical knowledge, Mr. Bishop agreed to buy the microscope for $850.00. He deemed this to be a fair market price considering that, although it constituted roughly one-third the cost of a new model, he was purchasing a third-hand microscope. Mr. Bishop gave appellant a check for $850 and, in return, received the microscope and a bill of sale. This bill of sale showed that the microscope, serial number 780115, was previously sold to Dr. Taylor by a Richard Soto. The previous transfer bore a notarized date of August 16, 1976. Appellant indicated that this was the bill of sale he received when he purchased the microscope from Richard Soto. On the back of this bill of sale, appellant typed a new bill of sale, showing the transfer of ownership from himself to the West County Medical Laboratory.
Subsequent to the sale, Mr. John Griffin, a security officer for Missouri Baptist Hospital, contacted Detective Sergeant Dennis Niece of the Ballwin Police Department in connection with some microscopes recently *381 stolen from his hospital. Mr. Griffin informed Detective Niece that Mr. Bishop had recently purchased a microscope. Detective Niece went to the West County Laboratory where he confiscated the recently purchased microscope as stolen property. Detective Niece ran the information about the microscope in the National Criminal Information Computer System. As a result of the information received from this computer check, Detective Niece contacted the Memphis Police Department and Kay Mitchell, Chief Medical Technical for Methodist Hospital South in Memphis to verify that the microscope purchased by Mr. Bishop had in fact been stolen. According to Mr. Mitchell, the microscope had been stolen some time in mid-to late June, 1979.
Detective Niece conducted an investigation in connection with this stolen microscope. He attempted to contact appellant using a Houston, Texas address and telephone number given to Mr. Bishop by appellant at the time of the sale. These attempts proved to be unsuccessful, as did an attempt to track down appellant through a driver's license check. Detective Niece discovered that the address obtained through the license check was actually a post office box for the University of New Mexico.
On October 7, 1982, Mr. Bishop received a phone call at his lab, now located in Chesterfield, from appellant, who again stated that his name was Dr. Phillip Taylor. This time, appellant identified himself as a retired pathologist (which would have involved an M.D. degree) who had a son who was graduating from medical school and who was not going to follow his father's career in pathology. Appellant stated that he was interested in selling a microscope, which he had retained from his son. Mr. Bishop made arrangements with appellant to come out to the Chesterfield lab to show him the microscope. Mr. Bishop then immediately contacted Detective Niece at the Ballwin Police Department. Detective Niece made arrangements with Mr. Bishop to be at the Chesterfield lab when and if appellant brought the microscope.
Appellant arrived at the lab approximately two hours after the arrival of Detective Niece and his partner. A secretary escorted appellant to Mr. Bishop, who was in the lab, and then notified the officers that the person she escorted was the same person who had previously sold them the stolen microscope. The police officers then entered the lab whereupon Mr. Bishop also identified his caller as the same man who had previously sold them the stolen microscope. Detective Niece then told appellant that he was under arrest. Appellant stated that there must have been some mistake in that he had left an address and phone number where he could be contacted. At the time of the arrest, Detective Niece seized the microscope, substage light source, microscope cover and a bill of sale that appellant was using for the microscope.
At trial, Mr. Bishop identified appellant as the person who had sold him the microscope in 1979 and who had attempted to sell him the second microscope in 1982. Detective Niece also identified appellant as the man in Bishop's office in 1982. The prosecutor did not produce the 1979 microscope which the state alleged appellant disposed of as stolen property. Niece testified in cross-examination that he photographed the microscope in 1979, but lost the photographs when the police department moved in 1980. The court admitted the exhibit consisting of the microscope from October 1982, but did not pass it to the jury.
In reviewing this case, the facts and evidence and all favorable inferences reasonably drawn therefrom must be considered in the light most favorable to the state, disregarding all contrary evidence and inferences. State v. McCoy, 647 S.W.2d 862, 863 (Mo.App.1983).
In order to support a charge of receiving stolen property the state bears the burden of proving beyond a reasonable doubt that: 1) the property was in fact stolen, 2) the defendant exercised dominion over the property by disposing of it, 3) the *382 defendant knew or believed that the property had been stolen, and 4) the defendant intended to deprive the owner of a lawful interest in the property. State v. Hurd, 657 S.W.2d 337, 339 (Mo.App.1983). Appellant's challenge in this case concerns only the third element of this offense: knowledge or belief. In regard to this third element, the courts have generally recognized that "knowledge of the stolen character of goods is seldom proved directly and may be inferred from the facts and circumstances in evidence." McCoy, supra at 865. Therefore direct evidence of the defendant's knowledge or belief is not required. State v. Rogers, 660 S.W.2d 230, 232 (Mo.App.1983).
While the state did not produce any direct evidence proving appellant's knowledge or belief that the microscope was stolen, according to Rogers, the state was not required to do so. It is sufficient that the evidence adduced at trial supported a reasonable inference of appellant's knowledge of the stolen nature of the microscope. In view of the facts, there is no dispute that the microscope which appellant sold to Bishop on June 26, 1979, was stolen from the Methodist Hospital South in Memphis, between mid-to late June, 1979. Kathryn Mitchell testified that the hospital had acquired the microscope in December, 1972. Thus, the hospital had possession of the microscope between 1972 and June, 1979. Yet, the bill of sale which appellant presented as proving a legal transfer to him by Richard Soto was dated August 16, 1976. No explanation was given for this discrepancy and, thus, appellant's possession of the microscope remained unexplained. While unexplained possession of recently stolen property does not give rise to an inference that the possessor is guilty of receiving stolen property, it is nonetheless, "a circumstance that the jury is entitled to consider, together with other facts and circumstances in the case." State v. Sours, 633 S.W.2d 255, 258 (Mo.App.1982). Other factors which a jury may consider in determining whether a defendant is guilty of receiving stolen property include suspicious conduct and deceptive behavior, Sours, supra at 258, and "whether the defendant has given false, evasive or contradictory statements as to his possession of the property, the nature and character of the property as passing readily from hand to hand ... and other conduct and declarations of the defendant inconsistent with his claim of innocence." McCoy, supra at 865.
In addition to the unexplained possession of the recently stolen microscope, appellant gave false statements as to his possession of the microscope when he presented Mr. Bishop with a bill of sale purporting to represent a legal sale in 1976 from Richard Soto. In view of Ms. Mitchell's testimony as to the date the microscope was in possession of Methodist Hospital South, such a sale by Richard Soto to appellant could not have occurred. Second, appellant exhibited deceptive behavior in giving a false address and telephone number. Appellant also exhibited deceptive and suspicious behavior in representing himself as a doctor with a Ph.D. degree in the first instance in 1979 and as a doctor with an M.D. degree in 1982. In view of the fact that, in reviewing this case, the facts and evidence and all favorable inferences reasonably drawn therefrom must be considered in the light most favorable to the state, disregarding all contrary evidence and inferences, the third element of the offense of receiving stolen property the requirement of knowledge or belief was therefore proven beyond a reasonable doubt.
As pertaining to the trial court's overruling of appellant's objection and mistrial request, the trial court did not abuse its discretion to the prejudice of appellant. Appellant contends that the trial court erred in failing to grant the defendant's request for a mistrial during the closing argument on behalf of the state when the prosecutor stated "Don't you think the defendant would want to point that out." Appellant alleges that this statement was a comment upon his failure to testify in violation of § 546.270 RSMo, Rule 27.05(a), and *383 the Fifth Amendment of the United States Constitution.
The record on appeal reveals the following transpired at trial during closing argument:
(Mr. O'Blennis): Now, Mr. Walsh characterizes the state's entire case as a venire [sic]. And if it were a venire [sic], don't you think the defendant would want to point that out, defendant's attorney would want to point that out?
Mr. Walsh: Approach the bench.
(The following was heard at the bench, out of the hearing of the jury).
Mr. Walsh: Based on the prosecutor's statement, `the defendant would want to point that out,' I would ask for a directed verdict. The only way the defendant could point that out is to testify. It is so close, I don't know what else it would be.
Mr. O'Blennis: I wanted to finish my statement. I was gong to say the defense attorney would put on evidence and name some names and he got it from the lawyer who made up the document, and so on and so forth.
The Court: All right, I will overrule the objection. You may proceed.
Mr. Walsh: He was going to say the phrase The defendant would point out, he should say, the defendant's attorney. I would like to ask it be read back where he said the defendant and paused and started to say defendant's attorney.
Mr. O'Blennis: I did say defendant's attorney, but I did say defendant first.
The Court: Objection overruled. You may proceed.
Appellant contends that the prosecutor's use of the phrase "Point that out" is equivalent to the use of the word testify, and that therefore the prosecutor's statement constituted an impermissible and direct reference to appellant's failure to testify. Alternatively, appellant contends that even if these words are not considered as equivalent to the word testify, the prosecutor still violated the proscription against indirect comments on the defendant's decision not to testify.
The rules do prohibit such reference to an accused's failure to testify, but the comments made by the prosecutor during the closing argument fell outside of these rules. § 546.270 RSMo 1978, and Supreme Court Rule 27.05(a) provide:
If the accused shall not avail himself or herself to his or her right to testify, ... it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt nor be referred to by any attorney in the case.
The case law categorizes such improper argument into "direct" and "indirect" references to the right not to testify. The indicia characterizing direct comments is the use of the words "defendant" and "testify" or words equivalent thereto. State v. Reed, 583 S.W.2d 531, 534 (Mo. App.1979). Indirect comments on this right are those which, when viewed in context, would cause the jury to infer that the remarks made reference to the accused's failure to testify. Id.
Upon the direct criterion, only a comment by the prosecutor which is a direct and certain reference to the failure of the accused to testify would be considered as satisfying the test. State v. Hutchinson, 458 S.W.2d 553 (Mo.1970). The argument in this case did not contain direct and certain reference to failure of appellant to testify. The phrase "point that out" cannot be equated with the word "testify."
Nor does the prosecutor's statement violate the proscription against indirect comments on the defendant's decision not to testify. In a fact situation such as that presented here, the scope of appellant's review of the action of the trial court with reference to objections to the comments made is:
Whether or not a particular improper argument is so prejudicial under the facts in the particular case, as to necessitate a reprimand of counsel or a discharge of the jury, is largely within the discretion of the trial court. An appellate court will not interfere unless the record shows that the trial court abused *384 its discretion to the prejudice of the appellant. State v. Hutchinson, supra at 556.
In the case of an indirect reference, the court must review the statement in the context in which it was made and determine whether it highlighted or was reasonably apt to have directed the jury's attention to the fact that the defendant did not testify. Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.App.1975). In reviewing the decision reached in Eichelberger, the court in State v. Arnold, 628 S.W.2d 665 (Mo. 1982), reasoned that implicitly, "[T]he evidence referred to must be vital to the state's case and damaging to the accused. If it is not, a jury would not expect contrary testimony by the accused [and therefore defendant's] failure to testify would be neither highlighted nor the jury's attention directed to it."
The statement by the prosecutor was in response to a prior closing argument by the defense attorney claiming that the state's entire case is a veneer. Read in this context, the statement does not highlight the appellant's failure to testify rather it merely directs the jury's attention to the weakness of the appellant's case at trial. The prosecutor's statement relates to appellant's failure to offer evidence, rather than his failure to testify. This is critical distinction in that under § 546.270, "the prohibition is against commenting on failure of the accused to testify and not that the defendant did not offer evidence." State v. Hutton, 645 S.W.2d 22, 23-24 (Mo. App.1982). Appellant claims that the prosecution's statement was in reference to the "defendant" while the respondent claims his statement was in reference to "defendant's attorney." In view of the fact that the prosecutor's statement pertained to a failure to present evidence rather than a failure to testify, the question of whether the comment referred to defendant or defendant's attorney is inconsequential.
We have evaluated the entire record. We conclude that the "trial court did not abuse its discretion to the prejudice of appellant" and the comments of the prosecutor were not prejudicial or injurious to the defendant. Accordingly, we find no prejudicial error which would justify reversal of this case.
Judgment affirmed.
GAERTNER and KAROHL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454393/ | 901 S.W.2d 190 (1995)
John B. PAPINEAU, Respondent,
v.
Stephen Morin BAIER, Hilda Baier, Appellants.
Steve Michael Baier, Defendant.
No. WD 48846.
Missouri Court of Appeals, Western District.
April 25, 1995.
Motion for Rehearing and/or Transfer Denied May 30, 1995.
Application to Transfer Denied July 25, 1995.
*191 Steven B. Small, Kansas City, for appellants.
Robert R. Laing, Overland Park, KS, for respondent.
Before ULRICH, P.J., and KENNEDY and BERREY, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 30, 1995.
ULRICH, Judge.
In this action to enforce a mechanic's lien, Stephen Morin Baier and Hilda Baier (the Baiers) appeal a $1,705 judgment entered on a jury verdict against them and for John B. Papineau. John Papineau moves for frivolous appeal damages. The judgment is affirmed.
Steve Michael (Mike) Baier, who works as a building contractor, engaged John Papineau for construction work. Pursuant to their verbal arrangement, John Papineau agreed to do grading, steel framing, and rough-in carpentry on a house being built for Mike Baier's parents, Stephen and Hilda Baier, on land the parents owned.
After completion of the work, Mike Baier paid only $6,881.00 against the total bill of $14,350.82. John Papineau filed a mechanic's lien statement against the Baiers' property for the unpaid balance of $7,469.82. To enforce that lien, John Papineau filed a lawsuit naming as defendants the Baiers, Mike Baier, and the lenders. In an amended petition, John Papineau also sued Mike Baier for breach of contract.
After a jury trial, Mike Baier prevailed on the breach of contract claim; John Papineau prevailed on the mechanic's lien claim with a jury verdict for $1,705.
The Baiers present seventeen points on appeal. Countering, John Papineau asserts that none of those points are properly preserved for appellate review.
The record supports John Papineau's assertion. The only matter apparently amenable to appellate review is the denial of the Baiers' motion for directed verdict. In that oral motion, the Baiers' counsel asserted that John Papineau failed to prove the "just and true account" element of his mechanic's lien action. In support counsel pointed to John Papineau's cross-examination testimony in *192 which he admitted to inadvertently miscalculating five hours of time charged for labor. The only post-trial motion filed was the Baiers' motion for judgment notwithstanding the verdict, which claimed that no evidence supported the amount of the jury's award and challenged the validity of the lien statement and pre-trial lien proceedings.
A defendant's motion for directed verdict made at the close of evidence challenges the submissibility of the plaintiff's case; a post-trial motion for judgment notwithstanding the verdict preserves the submissibility issue for appellate review. See Buttram v. Auto-Owners Mut. Ins. Co., 779 S.W.2d 1, 2 (Mo.App.1989). Yet, here, the motion for judgment notwithstanding the verdict and the points on appeal do not explicitly address the issue of submissibility on the theory presented in the motion for directed verdict. The Baiers' appeal presents claims unrelated to the submissibility of the mechanic's lien case and matters not raised in any post-trial motion. In a letter filed after oral argument at this court's request, counsel for the Baiers fails to demonstrate proper preservation. Claims of error not properly presented in the trial court will not be considered on appeal. Wagner v. Piehler, 879 S.W.2d 789, 793 (Mo.App.1994).
Further, the brief filed on the Baiers' behalf violates court rules. One point is defective for failing to identify the ruling appealed from. Rule 84.04(d). Five other points lack any corresponding argument. Rule 84.04(e). The argument in support of another point consists of two sentences that fail to address the matters raised and fail to discuss any legal authority. Rule 84.04(e). Claims of error presented in defective points relied on or without supporting argument preserve nothing for appellate review, and are deemed abandoned. Wilson v. Danuser Mach. Co., Inc., 874 S.W.2d 507, 514 (Mo. App.1994); Saunders-Thalden v. Thomas Berkeley Consult. Eng'r, Inc., 825 S.W.2d 385, 387 (Mo.App.1992).
The points in the Baiers' brief present nothing amenable to appellate review. Nevertheless, in the interest of justice, this court has examined the Baiers' contentions that the mechanic's lien action was abandoned, that it was time-barred, and that it failed to join a necessary party. That examination reveals no basis for reversal of the trial court's judgment.
Respondent Papineau moves for frivolous appeal damages. Rule 84.19, which authorizes sanctions for frivolous appeal, states:
If an appellate court shall determine that an appeal is frivolous it may award damages to the respondent as the court shall deem just and proper.
An appeal is frivolous if it presents "no justiciable question and is so readily recognizable as devoid of merit on the face of the record that there is little prospect that it can ever succeed." Vallejo-Davila v. Osco Drug, Inc., 895 S.W.2d 49, 54 (Mo.App.1995), citing In re Estate of Voegele, 805 S.W.2d 177, 179 (Mo. App.1990); Fields v. R.S.C.D.B., Inc., 865 S.W.2d 877, 879 (Mo.App.1993).
The purpose of sanctions is (1) to prevent congestion of appellate court dockets with cases devoid of merit which, by their presence, contribute to delaying resolution of cases with merit and (2) to compensate respondents for incurring expenses defending judgments against meritless issues. Dynacon Builders v. Janowitz, 892 S.W.2d 807, 808 (Mo.App.1995). Sanctions are imposed with extreme caution to avoid chilling an appeal of even slight, colorable merit. Id.
As discussed, the Baiers' brief presents nothing amenable to appellate review. Neither the Baiers' motion for judgment notwithstanding the verdict nor the points asserted on appeal explicitly address the issue of whether Mr. Papineau proved the "just and true account" element of his mechanic's lien action, the only matter amenable to appellate review. Thus, the points raised by the Baiers on appeal are devoid of merit on the face of the record and are devoid of any prospect of success. The appellants' brief so breaches the requirements of Rule 84.04 in its failure to raise and address properly preserved issues that it presents nothing for appellate review.
The appeal is frivolous. It has contributed to delaying resolution of other cases of merit *193 pending before this court, has compelled the respondent to defend and to incur additional unnecessary expense and attorney fees, and has caused the respondent unnecessary delay in resolving the matter.
Sanctions for frivolous appeal can be imposed against either the appellants or their counsel. Vallejo-Davila, 895 S.W.2d at 54. Because the attorney, not the client, normally decides the legal arguments to assert, preserves issues for appellate review and writes the brief, sanctions for the infractions noted are most appropriately assessed against the attorney. See, e.g., Rule 55.03(c)(2)(A) (which requires assessment of sanctions against the attorney, not the client, when unwarranted claims and other legal contentions are filed).
The appellants' attorney is ordered to pay $1,000 directly to the respondent's attorney to the benefit of respondent. The total sum shall be paid within fourteen days of the mandate of this court. Receipt for the sum shall be filed in this court by the respondent's attorney within five days following receipt of the sum.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2270146/ | 19 Cal. App. 4th 86 (1993)
23 Cal. Rptr. 2d 261
THE PEOPLE, Plaintiff and Respondent,
v.
KEVIN GEAR, Defendant and Appellant.
Docket No. D016208.
Court of Appeals of California, Fourth District, Division One.
October 1, 1993.
*87 COUNSEL
Jan Stiglitz, under appointment by the Court of Appeal, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Raquel Gonzalez, Deputy Attorney General, for Plaintiff and Respondent.
*88 OPINION
TODD, Acting P.J.
The sole issue presented in this appeal is the constitutionality of Penal Code[1] section 288.5, which created the crime of "continuous sexual abuse of a child."
A jury convicted Kevin Gear of one count of section 288.5. The jury also found true an allegation that Gear occupied a position of special trust to the victim within the meaning of section 1203.066, subdivision (a)(9). The trial court sentenced Gear to the middle term of 12 years in prison on the section 288.5 count. Gear appeals, contending section 288.5 is unconstitutional because it (1) violates his right to jury unanimity on the actus reus of the crime, and (2) deprives him of due process of law by not providing adequate notice of the specific acts that formed the basis of the charge.
FACTS
Gear and his wife Deborah lived in a house in El Cajon with three children of the marriage and two of Deborah Gear's children from a prior marriage, including Ameris D.
In the spring or early summer of 1990, as Ameris was completing the sixth grade, Gear began to molest her. During the first incident, Gear called Ameris into the garage, had her sit on a stool, unzipped his pants and put his penis in her mouth. Gear told Ameris not to tell anyone about the incident. About a month later, Gear again called Ameris into the garage and had her orally copulate him. This conduct was repeated a couple of weeks later.
Ameris testified Gear also had her orally copulate him a number of times in the master bathroom while she sat on the toilet seat. Ameris said Gear had her orally copulate him about 15 times in the garage and 5 times in the master bathroom. One time in the bathroom, Gear put his penis on Ameris's breast and ejaculated on her breast.
At various times, Gear also touched Ameris's breast, both over and under her clothing. Twice, Gear unzipped Ameris's pants and put his hand inside the pants and felt around her vagina. On two other occasions, Gear tried to "French kiss" Ameris while she was watching television.
Ameris also testified about an incident in which Gear called her into the master bedroom where he was lying on the bed and told her to take off her clothes and get in bed with him. She complied. After she lay there for a *89 couple of minutes, Gear told her to get dressed and leave. This incident occurred about three months after the first oral copulation.
Generally, the oral copulation incidents took place while Deborah Gear was away from the house, and the other incidents occurred at night after Deborah Gear had gone to bed and Ameris was in her bed.
On July 19, 1991, Gear felt Ameris's breast through her clothing while she was folding laundry. The next night mother and daughter were together in the kitchen when Deborah Gear, sensing that Gear was hurting Ameris, asked her daughter if Gear had ever hit her while she was gone. Ameris told her mother Gear had touched her in places she did not want to be touched. Deborah told Ameris she would not let Gear hurt her again. On July 21, Deborah telephoned her brother and told him to contact the police.
Testifying in his defense, Gear denied all of Ameris's accusations. Also testifying for the defense were a number of character witnesses who said Gear never exhibited any sexual interest in children. The defense also called witnesses who questioned Ameris's credibility.
DISCUSSION
I
(1a) Gear first attacks the constitutionality of section 288.5[2] on the ground that the statute and the concomitant jury instruction (CALJIC No. 10.42.6)[3] deprived him of his right to a unanimous jury verdict (Cal. Const., art. I, § 16) by allowing a conviction without requiring jury unanimity as to which three underlying acts occurred. This attack is without merit.
*90 (2) The general rule is that the jury must unanimously "agree upon the commission of the same act in order to convict a defendant of a charged offense." (People v. Masten (1982) 137 Cal. App. 3d 579, 588 [187 Cal. Rptr. 515], disapproved on other grounds in People v. Jones (1988) 46 Cal. 3d 585, 600, fn. 8 [250 Cal. Rptr. 635, 758 P.2d 1165].) Essentially, an "either/or" rule has evolved: "[W]hen the accusatory pleading charges a single criminal act and the evidence shows more than one such unlawful act, either the prosecution must select the specific act relied upon to prove the charge or the jury must be instructed ... that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act." (People v. Gordon (1985) 165 Cal. App. 3d 839, 853 [212 Cal. Rptr. 174], fn. omitted.)
This fundamental rule has presented vexing proof problems in cases involving resident child molesters those persons who reside with a minor or have unchecked access to a minor and are charged with repeatedly sexually molesting the minor over a prolonged period of time. As the Supreme Court explained in People v. Jones (1990) 51 Cal. 3d 294, 305 [270 Cal. Rptr. 611, 792 P.2d 643], young victims of such molestations "may have no practical way of recollecting, reconstructing, distinguishing or identifying by `specific incidents or dates' all or even any such incidents." A series of cases predominantly from the Court of Appeal for the Fifth Appellate District highlighted the problems of proof and instructions in the resident child molester class of cases. Generally, the Fifth District held that where a unanimity instruction had been given and the evidence of the several acts of *91 molestation did not present a distinguishing characteristic or individualizing aspect, there was a violation of due process. (See People v. Van Hoek (1988) 200 Cal. App. 3d 811, 816 [246 Cal. Rptr. 352]; People v. Atkins (1988) 203 Cal. App. 3d 15, 19 [249 Cal. Rptr. 863]; People v. Luna (1988) 204 Cal. App. 3d 726, 746 [250 Cal. Rptr. 878]; People v. Vargas (1988) 206 Cal. App. 3d 831, 845-846 [253 Cal. Rptr. 894].)[4] In Van Hoek, the defendant was accused of molesting his daughter from her third through her thirteenth year. The daughter testified the molestations always began in the same way her father would talk sweetly to her, kiss her and then caress her breasts or vagina. When the daughter was 12 and 13, 5 or 6 acts of sexual intercourse occurred, but she could not link them to any specific date or significant event. The Fifth District found the failure to allege and prove specific acts of molestation constituted a deprivation of due process because the defendant was not afforded an opportunity to prepare an adequate defense. (200 Cal. App.3d at p. 818.) The Fifth District also found that it was impossible for the jury to unanimously agree upon any specific acts to support a conviction under section 288 when testimony of the victim is generic and consequently unspecific as to time or place. (200 Cal. App.3d at p. 816.) "Implicit in the cases requiring specificity of charges and the charges being supported by specific testimony given at trial is the fundamental due process rule, steeped in antiquity, that the prosecution must prove a specific act and the twelve jurors must agree on one specific act." (Id. at p. 817, relying upon People v. Williams (1901) 133 Cal. 165 [65 P. 323] and People v. Castro (1901) 133 Cal. 11 [65 P. 13].)
Section 288.5, creating the new crime of continuous sexual abuse of a child, was the Legislature's response to Van Hoek, supra, 200 Cal. App. 3d 811. (Stats. 1989, ch. 1402, § 1, subd. (a), p. 6138 ["The Legislature finds and declares that because of the court's decision in People v. Van Hoek, 200 Cal. App. 3d 811, there is an immediate need for additional statutory protection for the most vulnerable among our children ... some of whom are being subjected to continuing sexual abuse...."].)
(1b) Gear attacks the statute as abrogating his constitutional right to a unanimous jury verdict because the statute and the jury instruction do not require the jury to unanimously agree on which three acts of molestation constitute the crime. In mounting this attack, Gear virtually ignores the established continuous-course-of-conduct exception to the requirement of jury unanimity on which specific acts the defendant committed.
The continuous-course-of-conduct exception "arises ... when, as here, the statute contemplates a continuous course of conduct of a series of acts *92 over a period of time." (People v. Thompson (1984) 160 Cal. App. 3d 220, 224 [206 Cal. Rptr. 516].) In Thompson, the continuous-course-of-conduct exception was applied to spousal battering. (Id. at p. 225.) It also has been applied to varying crimes that cover "`repetitive or continuous conduct'" (ibid.) such as child abuse (§ 273a) (People v. Ewing (1977) 72 Cal. App. 3d 714, 717 [140 Cal. Rptr. 299]); misdemeanor child annoyance or molestation (former § 647a) (People v. Moore (1986) 185 Cal. App. 3d 1005, 1015 [230 Cal. Rptr. 237]); pimping (People v. Lewis (1978) 77 Cal. App. 3d 455, 461 [143 Cal. Rptr. 587, 3 A.L.R. 4th 1185]); pandering (People v. White (1979) 89 Cal. App. 3d 143, 151 [152 Cal. Rptr. 312]); failure to provide for a minor child (People v. Morrison (1921) 54 Cal. App. 469, 471 [202 P. 348]); contributing to the delinquency of a minor (People v. Lowell (1946) 77 Cal. App. 2d 341, 345-347 [175 P.2d 846]); and dissuading a witness from testifying (People v. Salvato (1991) 234 Cal. App. 3d 872, 879 [285 Cal. Rptr. 837]).
The crime of continuous sexual abuse of a child (§ 288.5) is a continuous-course-of-conduct crime and therefore falls within the exception to the rule that jurors must agree on the particular criminal acts committed by the defendant before convicting him. (People v. Higgins (1992) 9 Cal. App. 4th 294, 301-304 [11 Cal. Rptr. 2d 694]; see also People v. Avina (1993) 14 Cal. App. 4th 1303, 1309-1311 [18 Cal. Rptr. 2d 511].) As Justice Mosk observed: "The Legislature has chosen to address the substantial constitutional problems raised by Van Hoek and its progeny by creating a continuous-course-of-conduct crime the crime of resident child molestation." (People v. Jones, supra, 51 Cal. 3d 294, 329 (dis. opn. of Mosk, J.).)
Gear asks us not to follow Higgins, supra, 9 Cal. App. 4th 294, saying it was not correctly decided, but he does not substantively attack its analysis on the continuous course of conduct exception. We find the analysis by the court in Higgins to be thoughtful, well-reasoned and correct. Accordingly, we shall follow it.[5]
Contrary to Gear's assertions, section 288.5 was not "enacted without due regard for and in contravention of the constitutional requirement that an accused cannot be convicted of a crime without a unanimous verdict of a jury of his peers." This is so because section 288.5 criminalizes a continuous course of conduct; the actus reus of the crime is the course of conduct encompassing the individual acts of sexual conduct. The statute requires jury *93 unanimity with respect to the course of conduct i.e., the actus reus and thereby satisfies the constitutional requirement. As Justice Mosk explained: "The continuous-course-of-conduct crime does not require jury unanimity on a specific act, because it is not the specific act that is criminalized. The actus reus of such a crime is a series of acts occurring over a substantial period of time, generally on the same victim and generally resulting in cumulative injury. The agreement required for conviction is directed at the appropriate actus reus: unanimous assent that the defendant engaged in the criminal course of conduct." (People v. Jones, supra, 51 Cal. 3d 294, 329 (dis. opn. of Mosk, J.).)
Gear's reliance on federal cases such as United States v. Gipson (5th Cir.1977) 553 F.2d 453; U.S. v. Beros (3d Cir.1987) 833 F.2d 455; U.S. v. Echeverri (3d Cir.1988) 854 F.2d 638, and U.S. v. North (D.C. Cir.1990) 910 F.2d 843 [285 App.D.C. 343] is unavailing. None of these cases except Echeverri involves a crime that is a continuous-course-of-conduct crime. In Echeverri, the defendant was convicted of, among other things, one count of operating a continuing criminal enterprise. (21 U.S.C. § 848(b) [currently codified at 21 U.S.C.A. § 848(c) (Supp. 1993)].) The trial court instructed the jury it must find three violations of drug laws, but refused Echeverri's request to instruct the jury it was required to unanimously agree on which three acts constituted the continuing series of violations. The Court of Appeals found this was error. It did so on the authority of Beros, a case that did not involve a continuous-course-of-conduct statute. Furthermore, at no point did the Echeverri court mention the continuous-course-of-conduct exception to the unanimity requirement. Since Echeverri did not address this issue, we feel no compulsion to follow it. (Accord, Higgins, supra, 9 Cal. App. 4th 294, 305-306.)
We also reject Gear's suggestion that section 288.5 is unconstitutional on the basis of Jones, supra, 51 Cal. 3d 294. In Jones, the Supreme Court said: "In a case in which the evidence indicates the jurors might disagree as to the particular act defendant committed, the standard unanimity instruction should be given. [Citation.] But when there is no reasonable likelihood of juror disagreement as to particular acts, and the only question is whether or not the defendant in fact committed all of them, the jury should be given a modified unanimity instruction which, in addition to allowing a conviction if the jurors unanimously agree on specific acts, also allows a conviction if the jury unanimously agrees the defendant committed all the acts described by the victim." (Id. at pp. 321-322.) Gear argues section 288.5 does not comply with this standard. The problem with this argument is that it is akin to comparing apples with oranges.
In Jones, supra, 51 Cal. 3d 294, 300, the defendant was charged with 28 counts of lewd and lascivious acts on children under the age of 14 (§ 288, *94 subd. (a)), not with violating section 288.5. Moreover, the Jones court made the above quoted prescription in the context of discussing whether generic testimony by children victims in such cases violated the right to a unanimous jury after the court rejected "... the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described. [¶] ... [E]ven generic testimony describes a repeated series of specific, though indistinguishable, acts of molestation." (51 Cal.3d at p. 321.) Thus, what the court in Jones did in this part of the opinion was sanction convictions of multiple counts of section 288 based solely on generic testimony by finding no constitutional abridgment of the right to a unanimous jury and allowing a "relaxed quantum of proof of multiple violations of section 288." (Higgins, supra, 9 Cal. App. 4th 294, 301.) We agree with the Court of Appeal in Higgins: "[I]f the Supreme Court is satisfied there is no constitutional infirmity to section 288 convictions predicated exclusively on generic testimony, then neither does the codification of generic proof in section 288.5 violate ... the right to a unanimous verdict." (Ibid.)
II
(3) Gear contends section 288.5 violates a defendant's right to due process by not requiring the prosecution to specify the acts of molestation that formed the basis of the charge. The contention is without merit.
In Jones, supra, 51 Cal. 3d 294, 317, the Supreme Court addressed this issue in the context of nonspecific molestation charges, noting "[d]ue process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial."[6]
With respect to the defendant's right to notice, the court in Jones, supra, 51 Cal.3d at page 318, observed the availability of the preliminary hearing, demurrer and pretrial discovery procedures and concluded the prosecution of child molestation charges based on generic testimony does not necessarily result in a deprivation. Adopting the reasoning of Justice Sims of the Third Appellate District in his concurring opinion in Gordon, supra, 165 *95 Cal. App.3d 839, 870-871, the court in Jones, supra, 51 Cal.3d at page 317, noted the defendant does not have a right to notice of the specific time or place of an offense occurring within the applicable limitation period. "[T]he `modern answer' to [the] rhetorical inquiry as to how defendant can prepare a defense against nonspecific molestation charges `is that, at a minimum, a defendant must be prepared to defend against all offenses of the kind alleged in the information as are shown by evidence at the preliminary hearing to have occurred within the timeframe pleaded in the information.'" (Ibid., quoting Gordon, supra, 165 Cal. App. 3d 839, 870-871 (conc. opn. of Sims, J.); accord, Higgins, supra, 9 Cal. App. 4th 294, 308.)
The court in Jones, supra, 51 Cal. 3d 294, 318-319, also held the passage of Proposition 115, which dispensed with post-indictment preliminary hearings for felonies prosecuted by indictment, would not affect its analysis. We are neither inclined, nor in a position (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal. 2d 450, 455 [20 Cal. Rptr. 321, 369 P.2d 937]), to second-guess our Supreme Court on this point.
In any event, this case proceeded by information and preliminary hearing. Gear contends the fact that at this post-Proposition 115 preliminary hearing the factual basis for the charges was provided by a police officer rather than Ameris prevented Gear from receiving the information needed to satisfy due process. We disagree.
At the preliminary hearing, the officer testified the molestations by Gear began in June 1990 as Ameris was completing the sixth grade. The officer said the molestations took place in the master bedroom, the bathroom off the master bedroom and the garage. The officer said Ameris described incidents of oral copulation and fondling to the breasts and the vaginal area as well as an instance in which Gear told Ameris to take off her clothes and lie in bed with him. The officer related a description of acts of oral copulation in the bathroom as well as in the garage. He also related Gear's last molestation when he fondled Ameris's breast while she was folding clothes. Notwithstanding Gear's quoting of a portion of the officer's testimony in which he could not answer what Ameris meant by "several months ago," we find the officer's testimony was very similar to the testimony provided by Ameris at trial, and, coupled with the information, provided sufficient due process notice to him of the charge of engaging in a continuous course of sexual abuse against Ameris.
Nor was Gear's right to present a defense violated. Here, not untypically, Gear presented an all-or-nothing defense based on credibility either he is telling the truth and he did not commit any act of molestation or Ameris is *96 telling the truth and he is guilty. As the Supreme Court noted in Jones, supra, 51 Cal. 3d 294, 319, the defendant in a resident child molester case rarely can offer a successful alibi or wrongful identification defense. (Ibid.) The inability to do so is not caused by the nonspecificity of dates, locations and other details of the generic charges; rather, the inability has to do with the fact that the defendant in a resident child molester case has lived with or has had access to the victim on a continuous basis. (Ibid.)
Moreover, we note the peculiar facts of this case possibly could have led to an alibi defense at least to some of the acts described by Ameris. Because the Gears did not have a workable vehicle, Deborah Gear used taxi tickets to run her errands. Gear could have reviewed the taxi logs to determine possible dates for some of the acts described by Ameris and then testify he was not at home on those days. He chose not to pursue this line of defense. As the Supreme Court noted in Jones, supra, 51 Cal. 3d 294, 319: "[T]here is no reason why the jury would be less inclined to credit the [alibi] defense as applied to appropriate counts, merely because the victim's generic testimony has implicated the defendant in additional counts or offenses not challenged by the alibi. Indeed, the fact that the defendant has established an alibi covering some of the time periods alleged in the information could significantly undermine the victim's testimony as to the remaining counts."
DISPOSITION
Affirmed.
Huffman, J., and Nares, J., concurred.
Appellant's petition for review by the Supreme Court was denied December 29, 1993.
NOTES
[1] All statutory references are to the Penal Code unless otherwise specified.
[2] Section 288.5 provides in pertinent part: "(a) Any person who either resides in the same home with the minor child or has recurring access to the child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with a child under the age of 14 years at the time of the commission of the offense, as defined in subdivision (b) of Section 1203.066, or three or more acts of lewd or lascivious conduct under Section 288, with a child under the age of 14 years at the time of the commission of the offense is guilty of the offense of a continuous sexual abuse of a child and shall be punished by imprisonment in the state prison for a term of 6, 12, or 16 years. [¶] (b) To convict under this section the trier of fact, if a jury, need unanimously agree only that the requisite number of acts occurred not on which acts constitute the requisite number."
[3] CALJIC No. 10.42.6, as given, reads: "The defendant is accused in count 1 of the information of the crime of continuous sexual abuse of a child, a violation of section 288.5(a) of the Penal Code. [¶] Every person who either resides in the same home with a minor child or has recurring access to a child, who over a period of time, not less than three months in duration, engages in three or more acts of substantial sexual conduct with the child under the age of 14 years at the time of the commission of the offense, or three or more acts of lewd or lascivious conduct with a child under the age of 14 years at the time of the commission of the offense, is guilty of the crime of continuous sexual abuse of a child, a violation of section 288.5(a) of the Penal Code.
"Substantial sexual conduct means penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender. [¶] A lewd or lascivious act means any touching of the body of a person under the age of 14 years with the specific intent to arouse, appeal to, or gratify the sexual desires of either party. To constitute a lewd or lascivious act it is not necessary that the bare skin be touched. The touching may be through the clothing of the child. [¶] The law does not require as an essential element of the crime that the lust, passions, or sexual desires of either of such persons be actually aroused, appealed to, or gratified. [¶] It is no defense to this charge that the child under the age of 14 years may have consented to the substantial sexual conduct or the lewd and lascivious to the conduct or the lewd and lacivious conduct.
"In order to prove such crime, each of the following elements must be proved: [¶] 1. A person is a resident in the same house with a minor child, and [¶] 2. Such person over a period of time, not less than three months in duration, engaged in three or more acts of substantial sexual conduct or lewd and lascivious conduct with the child under the age of 14 years at the time of the commission of the sexual or lewd conduct. [¶] The People have introduced evidence tending to prove that there are more than three acts of substantial sexual conduct or lewd and lascivious conduct upon which a conviction in count 1 may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt and you unanimously agree that the defendant committed three such acts. It is not necessary that you unanimously concur on which acts constitute the required number."
[4] All of these cases were disapproved in People v. Jones, supra, 51 Cal. 3d 294, 322.
[5] At oral argument, counsel for Gear suggested we also not follow the recently decided case of Avina, supra, 14 Cal. App. 4th 1303. Again, no substantive reason for disregarding this precedent was offered. We view Avina as we view Higgins, namely thoughtful, well-reasoned and correct.
[6] In making his attack based on due process grounds, Gear quotes a passage from Jones, supra, 51 Cal.3d at page 316, as setting the standard of specificity required for resident molester cases and then states that standard was not met here. However, this discussion in Jones deals with an assignment of error based on insufficiency of the evidence, not a deprivation of due process. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/996568/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4379
ZACHARY B. TINSLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-97-301)
Submitted: September 15, 1998
Decided: October 13, 1998
Before ERVIN and WILKINS, Circuit Judges, and
HALL, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
JeRoyd Wiley Greene, III, ROBINSON & GREENE, Richmond, Vir-
ginia, for Appellant. Helen F. Fahey, United States Attorney, S. David
Schiller, Assistant United States Attorney, Richmond, Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Zachary B. Tinsley was convicted by a jury of two
counts of being a felon in possession of a firearm in violation of 18
U.S.C.A. § 922(g) (West Supp. 1998). Prior to trial, Tinsley moved
to suppress seized evidence of a handgun and ammunition; he
asserted that the evidence was not obtained pursuant to a valid con-
sent and that it was not seized pursuant to a lawful arrest. After a
hearing, the district court denied the motion. On appeal, Tinsley
asserts that the district court improperly denied his motion to suppress
evidence. We affirm.
In October 1997, the Richmond Police Department received a 911
call from a pay phone. The caller, Christine Terry, called twice to ask
for help because her boyfriend, Tinsley, was "beating her up." Officer
Bates responded to the call and located Terry; he immediately noted
she had no shoes on and that she had a "blood dried lip."
Terry informed Bates that she was running away from her boy-
friend, who had beaten her up. She stated that Tinsley hit her in the
face with a shoe, choked her, and punched her in the stomach. Terry
continued that as a result of assistance from her and Tinsley's son, she
was able to escape from Tinsley to place the 911 calls. Terry stated
that Tinsley pursued her and threatened to shoot her; she also
informed Bates that Tinsley kept a gun in a dresser drawer in their
bedroom in the residence in which they both lived. She also told
Bates he could enter the house, and Bates believed this was sufficient
authority and consent for him to enter.
When they arrived at the residence, the officer observed Tinsley's
car as Terry described it parked behind the house. Bates called for
back-up protection, and several police units responded. Bates and sev-
eral officers knocked on the door, and Terry and Tinsley's eleven-
2
year-old son eventually answered the door. Though the boy initially
stated his father was not home, he ultimately let the officer in and told
him that his father was in the back room of the house.
The officers located Tinsley in a back bedroom with another child,
and he complied with their direction to walk towards them with his
hands up. In the hallway, the officers handcuffed and arrested Tinsley
for domestic violence. Bates then conducted a search for guns; he
went to the dresser in the bedroom and found the pistol as Terry
described. The weapon was ten to twelve feet from where Tinsley was
arrested; the drawer was open, and the loaded gun was in plain view.
Upon his arrest and after receiving Miranda* warnings, Tinsley
informed the officers that he was a convicted felon, but he denied he
had a weapon.
The court concluded after a hearing on Tinsley's motion to sup-
press that the search was a search incident to arrest and denied the
motion. The court found that both Terry and her son consented to
Bates's entry into the house and that the search was incident to Tins-
ley's arrest.
We review the district court's factual findings on a denial of a
motion to suppress for clear error and its legal conclusions de novo.
See United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
Fourth Amendment rights are waived and a search may be conducted
without probable cause or a search warrant when valid consent is
given. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).
Such consent may be obtained from a third party"who possessed
common authority over or other sufficient relationship to the premises
or effects sought to be inspected." United States v. Matlock, 415 U.S.
164, 171 (1974). Such common authority rests on general access to
or mutual use of the place to be inspected under circumstances that
make it reasonable to believe that the third party has the right to per-
mit the inspection in her own right and that the absent target has
assumed the risk that the third person may grant this permission to
others. See United States v. Block, 590 F.2d 535, 539-40 (4th Cir.
1978). A warrantless entry is valid even if based upon the consent of
a third party whom police reasonably believe has authority over the
_________________________________________________________________
*Miranda v. Arizona, 384 U.S. 436 (1966).
3
premises but who does not. See Illinois v. Rodriguez, 497 U.S. 177,
185-89 (1990). The determination of such consent must be judged
against an objective standard, whether the facts available to the offi-
cer warrant a person of reasonable caution in the belief that the con-
senting party had authority over the premises. See id. at 188. The
district court's factual findings on consent are reviewed under a
clearly erroneous standard. United States v. Lattimore, 87 F.3d 647,
650 (4th Cir. 1996) (in banc).
We agree with the Government that Bates had no reason to ques-
tion whether Terry had the authority to consent to his entry into the
house in which he arrested Tinsley. She told him she lived there and
was co-owner of the house and accurately described the bedroom and
the location of the gun. Thus, Bates acted reasonably in concluding
that he entered the home with appropriate consent. The district court's
determination in this respect was not clearly erroneous.
Tinsley continues that because he was not lawfully arrested, the
officers improperly searched for the gun. He continues that because
he was handcuffed, the police acted unreasonably in locating and
seizing the gun, which was several feet away. As a safety measure,
officers may conduct a protective search of an area in connection with
an arrest to search for weapons within the grab area of an individual
when the officers have a reasonable belief that the individual is poten-
tially dangerous. See Michigan v. Long, 463 U.S. 1032, 1048-49,
1052 n.16 (1983); Terry v. Ohio, 392 U.S. 1, 27 (1968). The fact that
a suspect is handcuffed and being observed may restrict the area
within his reach, but it does not negate all risk he may obtain a
weapon and thus pose a danger. See United States v. Horne, 4 F.3d
579, 586 (8th Cir. 1993).
First, we conclude that Bates's warrantless arrest of Tinsley was
proper under Va. Code Ann. § 19.2-81.3 (Michie Supp. 1998). Officer
Bates received the radio report, spoke with the victim, observed her
condition (including a bloodied lip), and was in a position to assess
her credibility. Therefore, any search incident to that arrest was law-
ful.
In addition, we also conclude that the officer's protective sweep of
the residence when arresting Tinsley was appropriate. When a reason-
4
ably prudent officer, based upon articulable facts, would believe that
an area to be swept harbors a danger to those on the arrest scene, a
protective sweep of a personal residence in conjunction with an in-
home arrest is authorized. See Buie v. Maryland , 494 U.S. 325,
333-34 (1990). Here, police located Tinsley, who had beaten and
threatened Terry, in his home with two small children. They were also
informed that Tinsley possessed a firearm in the home. Therefore, it
was reasonable to conduct a cursory sweep for weapons for their own
safety and the safety of the children in the home to secure the weapon
Terry told them was there. Moreover, the loaded gun was in plain
view in an open drawer close to Tinsley. We therefore agree with the
court's denial of suppression on this basis as well.
For these reasons, we affirm Tinsley's convictions. We dispense
with oral argument because the factual and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/819578/ | Slip Op. 99-134
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: SENIOR JUDGE NICHOLAS TSOUCALAS
__________________________________
:
RHP BEARINGS LTD., NSK BEARINGS :
EUROPE LTD. and NSK CORPORATION, :
:
Plaintiffs, :
:
v. : Consol. Court No.
: 97-02-00217
UNITED STATES, :
:
Defendant, :
:
THE TORRINGTON COMPANY, :
:
Defendant-Intervenor. :
_________________________________:
Plaintiffs, RHP Bearings Ltd., NSK Bearings Europe Ltd. and
NSK Corporation (collectively, “RHP-NSK”), move pursuant to
USCIT R. 56.2 for judgment upon the agency record challenging
various aspects of the Department of Commerce, International
Trade Administration’s (“Commerce”) final determination,
entitled Antifriction Bearings (Other Than Tapered Roller
Bearings) and Parts Thereof From France, Germany, Italy, Japan,
Singapore, and the United Kingdom; Final Results of Antidumping
Duty Administrative Reviews (“Final Results”), 62 Fed. Reg. 2081
(Jan. 15, 1997), as amended, Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof from Germany: Amended
Final Results of Antidumping Administrative Review, 62 Fed. Reg.
2130 (Jan. 15, 1997), and Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof From France, Germany,
Italy, Japan, and Singapore; Amended Final Results of
Antidumping Duty Administrative Reviews, 62 Fed. Reg. 14,391
(Mar. 26, 1997).
Specifically, RHP-NSK claims that Commerce erred in: (1)
using aggregate data that encompasses all foreign like products
under consideration for normal value for calculating constructed
value (“CV”) profit under 19 U.S.C. § 1677b(e)(2)(A) (1994); (2)
including sample transactions that were not supported by
consideration in RHP-NSK’s United States sales database; and (3)
Consol. Court No. 97-02-00217 Page 2
excluding imputed inventory carrying costs in the constructed
export price (“CEP”) offset for RHP-NSK when Commerce matched
CEP sales to CV.
Torrington responds that: (1) Commerce reasonably calculated
profit for CV on the basis of the statutory preferred method of
19 U.S.C. § 1677b(e)(2)(A); (2) RHP-NSK failed to prove that the
sample transactions in question were without consideration or,
if a remand is ordered, Commerce should determine whether RHP-
NSK’s sample transactions are in fact without consideration; and
(3) Commerce should not include imputed inventory carrying costs
when comparing CEP sales to CV or, if a remand is ordered, any
deduction of such costs should be capped not to exceed actual
expenses.
Held: RHP-NSK’s motion is denied in part and granted in
part. The case is remanded to Commerce to: (1) exclude from
RHP-NSK’s United States sales database any sample transactions
that were not supported by consideration and to adjust the
dumping margins accordingly; and (2) include imputed inventory
carrying costs in the calculation of CEP offset for RHP-NSK when
matching CEP sales to CV.
[RHP-NSK’s motion is denied in part and granted in part. Case
remanded.]
Dated: December 16, 1999
Lipstein, Jaffe & Lawson, L.L.P. (Robert A. Lipstein,
Matthew P. Jaffe and Grace W. Lawson) for plaintiffs.
David W. Ogden, Acting Assistant Attorney General; David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Velta A. Melnbrencis,
Assistant Director); of counsel: Mark A. Barnett, Patrick V.
Gallagher and David R. Mason, Office of the Chief Counsel for
Import Administration, United States Department of Commerce, for
defendant.
Stewart and Stewart (Terence P. Stewart, James R. Cannon,
Jr., Wesley K. Caine, Geert De Prest and Lane S. Hurewitz) for
defendant-intervenor.
Consol. Court No. 97-02-00217 Page 3
OPINION
TSOUCALAS, Senior Judge: Plaintiffs, RHP Bearings Ltd., NSK
Bearings Europe Ltd. and NSK Corporation (collectively, “RHP-
NSK”), move pursuant to USCIT R. 56.2 for judgment upon the
agency record challenging various aspects of the Department of
Commerce, International Trade Administration’s (“Commerce”)
final determination, entitled Antifriction Bearings (Other Than
Tapered Roller Bearings) and Parts Thereof From France, Germany,
Italy, Japan, Singapore, and the United Kingdom; Final Results
of Antidumping Duty Administrative Reviews (“Final Results”), 62
Fed. Reg. 2081 (Jan. 15, 1997), as amended, Antifriction
Bearings (Other Than Tapered Roller Bearings) and Parts Thereof
from Germany: Amended Final Results of Antidumping
Administrative Review, 62 Fed. Reg. 2130 (Jan. 15, 1997), and
Antifriction Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France, Germany, Italy, Japan, and Singapore;
Amended Final Results of Antidumping Duty Administrative
Reviews, 62 Fed. Reg. 14,391 (Mar. 26, 1997).
Specifically, RHP-NSK claims that Commerce erred in: (1)
using aggregate data that encompasses all foreign like products
under consideration for normal value (“NV”) for calculating
constructed value (“CV”) profit under 19 U.S.C. § 1677b(e)(2)(A)
Consol. Court No. 97-02-00217 Page 4
(1994); (2) including in RHP-NSK’s United States sales database
any sample transactions that were not supported by
consideration; and (3) excluding imputed inventory carrying
costs in the constructed export price (“CEP”) offset for RHP-NSK
when it matched CEP sales to CV.
Torrington responds that: (1) Commerce reasonably calculated
profit for CV on the basis of the statutory preferred method of
19 U.S.C. § 1677b(e)(2)(A); (2) RHP-NSK failed to prove that the
sample transactions in question were without consideration or,
if a remand is ordered, Commerce should determine whether RHP-
NSK’s sample transactions are in fact without consideration; and
(3) Commerce should not include imputed inventory carrying costs
when comparing CEP sales to CV or, if a remand is ordered, any
deduction of such costs should be capped not to exceed actual
expenses.
The Court will address each of these arguments in turn.
BACKGROUND
This case concerns the sixth administrative review of the
antidumping duty order on antifriction bearings (other than
tapered roller bearings) and parts thereof (“AFBs”) imported
Consol. Court No. 97-02-00217 Page 5
from the United Kingdom during the review period of May 1, 1994
through April 30, 1995.1 Commerce published the preliminary
results of the subject review on July 8, 1996. See Antifriction
Bearings (Other Than Tapered Roller Bearings) and Parts Thereof
from France, Germany, Italy, Japan, Romania, Singapore, Thailand
and the United Kingdom; Preliminary Results of Antidumping Duty
Administrative Reviews, Termination of Administrative Reviews,
and Partial Termination of Administrative Reviews (“Preliminary
Results”), 61 Fed. Reg. 35,713. On January 15, 1997, Commerce
published the Finals Results at issue here. See 62 Fed. Reg. at
2081.
JURISDICTION
The Court has jurisdiction over this matter pursuant to 19
U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994).
STANDARD OF REVIEW
The Court will uphold Commerce’s final determination in an
1 Since the administrative review at issue was initiated
after December 31, 1994, the applicable law in this case is the
antidumping statute as amended by the Uruguay Round Agreements
Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) (effective Jan.
1, 1995) (“URAA”). See Torrington Co. v. United States, 68 F.3d
1347, 1352 (Fed. Cir. 1995) (citing URAA § 291(a)(2), (b)
(noting effective date of URAA amendments)).
Consol. Court No. 97-02-00217 Page 6
administrative review unless it is “unsupported by substantial
evidence on the record, or otherwise not in accordance with
law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (1994).
I. Substantial Evidence Test
Substantial evidence is “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Universal Camera Corp. v.
NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is
something less than the weight of the evidence, and the
possibility of drawing two inconsistent conclusions from the
evidence does not prevent an administrative agency’s finding
from being supported by substantial evidence.” Consolo v.
Federal Maritime Comm’n, 383 U.S. 607, 620 (1966) (citations
omitted). Moreover, “[t]he court may not substitute its
judgment for that of the [agency] when the choice is ‘between
two fairly conflicting views, even though the court would
justifiably have made a different choice had the matter been
before it de novo.’” American Spring Wire Corp. v. United
States, 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984) (quoting
Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.
Consol. Court No. 97-02-00217 Page 7
1983) (quoting, in turn, Universal Camera, 340 U.S. at 488)).
II. Chevron Two-Step Analysis
To determine whether Commerce’s interpretation and
application of the antidumping statute is “in accordance with
law,” the Court must undertake the two-step analysis prescribed
by Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Under the first step, the Court
reviews Commerce’s construction of a statutory provision to
determine whether “Congress has directly spoken to the precise
question at issue.” Id. at 842. “ To ascertain whether Congress
had an intention on the precise question at issue, [the Court]
employ[s] the ‘traditional tools of statutory construction.’”
Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed. Cir.
1998) (citing Chevron, 467 U.S. at 843 n.9). “The first and
foremost ‘tool’ is the statute’s text, giving it its plain
meaning. Because a statute’s text is Congress’s final
expression of its intent, if the text answers the question, that
is the end of the matter.” Id. (citations omitted). Beyond the
statute’s text, the tools of statutory construction “include the
statute’s structure, canons of statutory construction, and
legislative history.” Id. (citations omitted); but see Flora
Consol. Court No. 97-02-00217 Page 8
Trade Council v. United States, 23 CIT __, 41 F. Supp. 2d 319,
323 n.6 (1999) (noting that “[n]ot all rules of statutory
construction rise to the level of a canon, however”) (citation
omitted).
If, after employing the first prong of Chevron, the Court
determines that the statute is silent or ambiguous with respect
to the specific issue, the question for the Court becomes
whether Commerce’s construction of the statute is permissible.
Chevron, 467 U.S. at 843. Essentially, this is an inquiry into
the reasonableness of Commerce’s interpretation. See Fujitsu
Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996).
Provided Commerce has acted rationally, the Court may not
substitute its judgment for the agency’s. See IPSCO, Inc. v.
United States, 965 F.2d 1056, 1061 (Fed. Cir. 1992); see also
Koyo Seiko Co. v. United States, 36 F.3d 1565, 1570 (Fed. Cir.
1994) (holding that “a court must defer to an agency’s
reasonable interpretation of a statute even if the court might
have preferred another”). The “[C]ourt will sustain the
determination if it is reasonable and supported by the record as
a whole, including whatever fairly detracts from the
substantiality of the evidence.” Negev Phosphates, Ltd. v.
United States Dep’t of Commerce, 12 CIT 1074, 1077, 699 F. Supp.
Consol. Court No. 97-02-00217 Page 9
938, 942 (1988) (citations omitted). “In determining whether
Commerce’s interpretation is reasonable, the Court considers,
among other factors, the express terms of the provisions at
issue, the objectives of those provisions and the objectives of
the antidumping scheme as a whole.” Mitsubishi Heavy Indus.,
Ltd. v. United States, 22 CIT __, __, 15 F. Supp. 2d 807, 813
(1998)).
DISCUSSION
I. Calculation of Profit for Constructed Value
A. Statutory and Factual Background
An antidumping duty is imposed upon imported merchandise
when (1) Commerce determines such merchandise is sold or likely
to be sold in the United States at less than fair value (“LTFV,”
i.e., at a price which is lower than the price at which the
merchandise is sold in the country of exportation or to a third
country), and (2) the International Trade Commission determines
that domestic industry is materially injured or threatened with
material injury, or the establishment of an industry in the
United States is materially retarded, by reason of imports of
the subject merchandise or by reason of the LTFV sales or
likelihood of LTFV sales of that merchandise for importation.
Consol. Court No. 97-02-00217 Page 10
See 19 U.S.C. § 1673 (1994). In calculating the antidumping
duty, Commerce compares the price of the imported merchandise in
the United States ( i.e., export price (“EP”) or CEP)2 to its NV.
See id. The dumping margin is “the amount by which the [NV]
exceeds the [EP] or [CEP] of the subject merchandise.” 19
U.S.C. § 1677(35) (1994).
NV is the comparable price for a product like the imported
merchandise when first sold (generally, to unaffiliated parties)
“for consumption in the exporting country, in the usual
commercial quantities and in the ordinary course of trade and,
to the extent practicable, at the same level of trade as the
export price or constructed export price.” 19 U.S.C. §
1677b(a)(1)(B)(i) (1994). Where home market sales of such
foreign like product are not available or usable as a basis for
determining NV, Commerce may measure dumping by comparing the EP
or CEP to NV based on either: (1) sales in a third-country
market, that is, sales of the foreign like product to a country
other than the home market or the United States, see 19 U.S.C.
§ 1677b(a)(1)(B), (C); or (2) CV of the imported merchandise,
2Typically, Commerce uses the export price when the
foreign exporter sells directly to an unrelated United States
purchaser. See 19 U.S.C. § 1677a(a) (1994). Commerce uses the
constructed export price when the foreign exporter sells through
a related party in the United States. See id. § 1677a(b).
Consol. Court No. 97-02-00217 Page 11
see 19 U.S.C. § 1677b(a)(4),3 which is calculated pursuant to 19
U.S.C. § 1677b(e) (1994).
Profit is a component in the calculation of CV. 4 See 19
U.S.C. § 1677b(e)(2)(A). Under current antidumping law, as
amended by the Uruguay Round Agreements Act (“URAA”), Pub. L.
No. 103-465, 108 Stat. 4809 (1994), the preferred method for
determining profit for CV is to add to CV “the actual amounts
incurred and realized by the specific exporter or producer being
examined in the investigation or review . . . for profits, in
connection with the production and sale of a foreign like
product, in the ordinary course of trade, for consumption in the
foreign country[.]” 19 U.S.C. § 1677b(e)(2)(A). The Statement
3 See Statement of Administrative Action (“SAA”)
accompanying the URAA, H.R. Doc. No. 103-316, at 839 (1994),
reprinted in 1994 U.S.C.C.A.N. 3773, 4175 (stating that
“[c]onstructed value is used . . . for normal value where home
market sales of the merchandise in question are either
nonexistent, in inadequate numbers, or inappropriate to serve as
a benchmark for a fair price, such as where sales are
disregarded because they are sold at below-cost prices”).
4 See SAA at 839 (“Because constructed value serves as a
proxy for a sales price, and because a fair sales price would
recover [selling, general and administrative (“SG&A”)] expenses
and would include an element of profit, constructed value must
include an amount for SG&A expenses and for profit.”).
Consol. Court No. 97-02-00217 Page 12
of Administrative Action5 (“SAA”) accompanying the URAA provides
that Commerce may disregard sales that it considers to be
outside the ordinary course of trade, that is, “Commerce may
ignore sales that it disregards as a basis for normal value,
such as those disregarded because they are made at below-cost
prices.” H.R. Doc. No. 103-316, at 839 (1994), reprinted in 1994
U.S.C.C.A.N. 3773, 4175-76; see 19 U.S.C. § 1677(15) (1994); 19
U.S.C. § 1677b(b)(1) (1994).
In promulgating its amended regulation 19 C.F.R. § 351.405
to the URAA, which deals with calculating NV based on CV,
Commerce determined that it would use aggregate figures of
foreign like products to calculate CV profit under the preferred
methodology of 19 U.S.C. § 1677b(e)(2)(A). See Antidumping
Duties; Countervailing Duties; Proposed Rule, 61 Fed. Reg. 7308,
5 The SAA represents “an authoritative expression by the
Administration concerning its views regarding the interpretation
and application of the Uruguay Round agreements.” SAA at 656.
“It is the expectation of the Congress that future
Administrations will observe and apply the interpretations and
commitments set out in this Statement.” Id. (quoted in
Delverde, SrL v. United States, 21 CIT __, __, 989 F. Supp. 218,
229-30 n.18 (1997)); see also 19 U.S.C. § 3512(d) (1994) (“The
statement of administrative action approved by the Congress ...
shall be regarded as an authoritative expression by the United
States concerning the interpretation and application of the
Uruguay Round Agreements and this Act in any judicial proceeding
in which a question arises concerning such interpretation or
application.”).
Consol. Court No. 97-02-00217 Page 13
7335 (Feb. 27, 1996) (“Proposed Regulations”). Commerce
reasoned as follows:
The Department’s practice had been to use aggregate
figures [for selling, general and administrative
expenses (“SG&A”) and profit]. Notably, section
773(e)(1)(B) [i.e., 19 U.S.C. § 1677b(e)(1)(B)] of the
pre-URAA statute provided for calculation of an amount
for profit and SG&A “equal to that usually reflected
in sales of merchandise of the same general class or
kind as merchandise under consideration” (emphasis
added). In comparison, section 77[3](e)(2)(A) [i.e.,
19 U.S.C. § 1677b(e)(2)(A)] of the amended Act
provides for use of the actual amounts incurred and
realized for profit and SG&A “in connection with the
production and sale of a foreign like product.” The
use of “a” arguably could be interpreted to mean a
particular model. The SAA, on the other hand, refers
to actual amounts incurred, “in selling the particular
merchandise in question (foreign like product).” SAA,
at 839. This language supports a view that the use of
“a” was not intended to overturn our prior practice of
relying on aggregate figures for profit and SG&A.
Moreover, if “a” were to be interpreted literally, the
Department would have the discretion to pick and
choose the sale of the foreign like product from which
profit and SG&A would be taken. This clearly would
undermine the predictability of the statute. Given
these distinctions, the amended Act arguably provides
for a narrower basis for the calculation of profit and
SG&A than did the prior statute. Therefore, the
Department intends to calculate profit and SG&A based
on an average of the profits of foreign like products
sold in the ordinary course of trade.
Id.
If the statutory preferred method cannot be followed under
19 U.S.C. § 1677b(e)(2)(A), “either because there are no home
market sales of the foreign like product or because all such
Consol. Court No. 97-02-00217 Page 14
sales are at below-cost prices,” then Commerce may calculate CV
profit using one of three alternative methods in §
1677b(e)(2)(B). 6 SAA at 840. The SAA provides that §
1677b(e)(2)(B) “does not establish a hierarchy or preference
among these alternative methods.” Id.
In this case, Commerce matched United States models to NV
models according to the following methodology, in order of
preference: (1) it first looked for an identical home market
model; (2) if no identical match was found, it matched by family
designation (i.e., similar match); and (3) for those United
States models for which no identical or similar match was found,
the CV of the United States model was used as the basis for NV.
6 If actual data are not available with respect to the
amounts described in 19 U.S.C. § 1677b(e)(2)(A) (1994), then §
1677b(e)(2)(B) provides one of the following three alternative
methods for calculating amounts for (SG&A expenses and) profit
for purposes of constructed value:
(1) actual amounts incurred or realized by the same
producer on home market sales of the same general
category of products; (2) the weighted-average of
actual amounts incurred or realized by other
investigated companies on home market sales in the
ordinary course of trade (i.e., profitable sales) of
the foreign like product; or (3) any other reasonable
method, provided that the amount for profit does not
exceed the profit normally realized by other companies
on home market sales of the same general category of
products (the so-called profit cap).
SAA at 840.
Consol. Court No. 97-02-00217 Page 15
See NSK-RHP Bearings--Preliminary Results Analysis Memo--
Antifriction Bearings from the U.K.--Sixth Administrative
Review, 5/1/94-4/30/95, A-412-801, Proprietary Doc. No. 12
(Fiche 71), at 2 (July 2, 1996).
Commerce calculated profit for CV using the statutorily
preferred methodology of 19 U.S.C. § 1677b(e)(2)(A). See
Preliminary Results, 61 Fed. Reg. at 35,718. In particular,
Commerce calculated CV profit for each respondent by aggregating
each respondent’s profits for the foreign like products sold in
the ordinary course of trade.
In the Final Results, respondents, including RHP-NSK, 7
argued that Commerce erred in applying 19 U.S.C. §
1677b(e)(2)(A) because this section requires Commerce first try
to calculate CV profit for imported merchandise based on profit
amounts on the sales of the imported merchandise’s ‘foreign like
product,’ which did not exist here when NV was based on CV. See
62 Fed. Reg. at 2113.
7 Although the “Profit for Constructed Value” section of
the Final Results refer only to arguments of “NSK,” that is, NSK
Corporation, see 62 Fed. Reg. at 2113, as abbreviated at 62 Fed.
Reg. at 2085, the Court assumes that “NSK” collectively refers
to RHP Bearings Ltd., NSK Bearings Europe Ltd. and NSK
Corporation, as noted in plaintiffs’ “General Issues Rebuttal
Brief” at 1, received after the Preliminary Results by Commerce
on Aug. 12, 1996.
Consol. Court No. 97-02-00217 Page 16
Specifically, respondents requested that Commerce apply the
same definition of “foreign like product” used for home market
price calculations to determine CV profit. In other words,
respondents requested that if the foreign like product is an
identical bearing, CV profit should be based on profit amounts
for above-cost identical bearing matches, or alternatively, if
there is no identical model, CV profit should be based on the
profit amounts for above-cost bearing family matches. Where
there are no home market sales of identical or family bearings,
respondents asserted that under 19 U.S.C. § 1677b(e)(2)(A) there
can be no profits on sales of the foreign like product in the
home market in the ordinary course of trade. Respondents,
therefore, argued that since there were no usable sales of
“foreign like product” when Commerce used CV to calculate NV,
the only option for Commerce was to calculate CV profit on the
basis of one of the three alternatives in § 1677b(e)(2)(B). See
id. Although the three alternative methods are not listed in
order of preference, respondents claimed that there is a strong
preference for using the first alternative CV profit
calculation, that is, “the use of company-specific data
regarding the same general category of merchandise.” Id.
(citing 19 U.S.C. § 1677b(e)(2)(B)(i)).
Consol. Court No. 97-02-00217 Page 17
Commerce disagreed with respondents that it did “not have
any ‘foreign like products’ for use in calculating CV profit”
and, therefore, it rejected their suggested model-matching
methodology for calculating CV profit under 19 U.S.C. §
1677b(e)(2)(A). Id. Consistent with its statutory
interpretation and reasoning contained in the Proposed
Regulations regarding application of § 1677b(e)(2)(A), Commerce
found that:
Respondents’ definition of the term “foreign like
product” is overly narrow with respect to its use in
the CV-profit provisions. In applying the “preferred”
method for calculating profit (as well as SG&A) under
section 773(e)(2)(A) [i.e., 19 U.S.C. §
1677b(e)(2)(A)], the use of aggregate data that
encompasses all foreign like products under
consideration for NV represents a reasonable
interpretation of the statute and results in a
practical measure of profit that we can apply
consistently in each case. By contrast, an
interpretation of section 773(e)(2)(A) that would
result in a method based on varied groupings of
foreign like products, each defined by a minimum set
of matching criteria shared with a particular model of
the subject merchandise, would add an additional layer
of complexity and uncertainty to antidumping
proceedings without generating more accurate results.
It would also make the statutorily preferred CV-profit
methodology inapplicable to most cases involving CV.
Id.
Consol. Court No. 97-02-00217 Page 18
B. Contentions of the Parties
1. RHP-NSK’s Contentions
RHP-NSK contends that Commerce defined “foreign like
product” for purposes of the CV profit calculation in a manner
contrary to the statutory definition of the term and well-
established agency practice. See Pls.’ Mem. Supp. Mot. J.
Agency R. at 4. In particular, RHP-NSK asserts that 19 U.S.C.
§ 1677b(e)(2)(A) requires that Commerce first try to calculate
CV profit for imported merchandise based on actual profit
amounts incurred in the home market production and sale of
“foreign like product,” that is, model or family products, that
match each bearing model sold in the United States. See id. at
6, 15.
RHP-NSK notes that 19 U.S.C. § 1677(16) (1994) defines
“foreign like product” by establishing three distinct categories
of products for model-matching purposes. See id. at 8. The
first category of merchandise is identical merchandise, the next
category is nonidentical merchandise made by the same producer
in the same country and is similar in value to the merchandise
under investigation, and the third category is merchandise made
by the same producer in the same country and used for the same
purposes as the merchandise under investigation. See id. RHP-
Consol. Court No. 97-02-00217 Page 19
NSK asserts that once Commerce finds merchandise in one
category, merchandise in the subsequent categories can never be
considered foreign like product because § 1677(16) directs
Commerce to determine foreign like product in the first of the
listed categories. See id. § 1677(16); see also Federal-Mogul
Corp. v. United States, 20 CIT __, __, 918 F. Supp. 386, 396
(1996); Cemex, S.A. v. United States, 133 F.3d 897, 903 (Fed.
Cir. 1998) (noting same for pre-URAA § 1677(16)). RHP-NSK
argues, therefore, that since the plain language of § 1677(16)
clearly creates a descending hierarchy for selecting foreign
like product, Chevron dictates that the Court, as well as
Commerce, must give effect to the unambiguously expressed intent
of Congress and, thus, the reasonableness of Commerce’s
interpretation of 19 U.S.C. § 1677b(e)(2)(A) is irrelevant. See
id. at 8-10.
RHP-NSK also argues that Commerce erred in claiming that in
this review it followed its past practice of using aggregate
figures for calculating CV profit. See Pls.’ Reply Mem. Supp.
Mot. J. Agency R. at 4. RHP-NSK notes that prior to the URAA,
the antidumping law required Commerce to base CV profit on “an
amount for . . . profit equal to that usually reflected in sales
of merchandise of the same general class or kind as the
Consol. Court No. 97-02-00217 Page 20
merchandise under consideration.” Id. (quoting 19 U.S.C. §
1677b(e)(1)(B) (1988)). Citing several administrative reviews,
RHP-NSK asserts that after the enactment of the URAA, Commerce
continually rejected requests that it base CV profit on reported
home market sales because the agency “did not consider these
sales representative of the profit for the general class or kind
of merchandise.” Id. (citations omitted). RHP-NSK, therefore,
argues that contrary to Commerce’s claim, the agency in prior
reviews repudiated the type of CV profit calculation performed
in this review. See id.
RHP-NSK also maintains that the legislative history of the
URAA confirms that Commerce should calculate CV profit on a
model or family basis when using the preferred methodology under
19 U.S.C. § 1677b(e)(2)(A). See Pls.’ Mem. Supp. Mot. J. Agency
R. at 10. RHP-NSK notes that when Commerce revised its
regulations to conform to the URAA, in particular 19 C.F.R. §
351.405, the agency specified it would use “an aggregate
calculation that encompasses all foreign like products under
consideration for normal value.” Antidumping Duties;
Countervailing Duties; Final rule (“Final Regulations”), 62 Fed.
Reg. 27,296, 27,359 (May 19, 1997). RHP-NSK further notes that
Commerce found this method for calculating CV profit as
Consol. Court No. 97-02-00217 Page 21
“consistent with the Department’s method of computing SG&A and
profit under the pre-URAA version of the statute, and, while the
URAA revised certain aspects of the SG&A and profit calculation,
we do not believe that Congress intended to change this
particular aspect of our practice.” Id. Nevertheless, RHP-NSK
claims that contrary to Commerce’s finding, the URAA legislative
history makes clear that the current preferred methodology for
calculating CV profit is not consistent with Commerce’s pre-URAA
methodology. See Pls.’ Mem. Supp. Mot. J. Agency R. at 10. The
URAA legislative history, according to RHP-NSK, first recites
the pre-URAA law, 19 U.S.C. § 1677b(e)(1)(B) (1988), with
reference to profit amounts based on the same general class or
kind as the merchandise under investigation, then announces that
19 U.S.C. § 1677b(e)(2)(A) (1994) “establishes new methods of
calculating SG&A expenses and profits consistent with methods
provided for in the [URAA].” Id. (quoting SAA at 839) (emphasis
added). RHP-NSK specifically notes that the new §
1677b(e)(2)(A) “establishes as a general rule that Commerce will
base amounts of SG&A expenses and profits only on amounts
incurred and realized in connection with sales in the ordinary
course of trade of the particular merchandise in question
(foreign like product).” Id. at 10-11 (quoting SAA at 839)
Consol. Court No. 97-02-00217 Page 22
(emphasis added). RHP-NSK, therefore, argues that the URAA
legislative history directly contradicts Commerce’s position and
demonstrates Congress’ clear intent to alter the preferred basis
on which Commerce calculates CV profit. See id. at 11.
RHP-NSK further notes that after taking into account changes
in nomenclature of the URAA, the first alternative methodology
for CV profit, 19 U.S.C. § 1677b(e)(2)(B)(i), is nearly
identical to the pre-URAA CV profit methodology, 19 U.S.C. §
1677b(e)(1)(B), except that sales at issue do not have to be in
the ordinary course of trade. See id. at 11. RHP-NSK also
notes that the URAA legislative history provides that “[w]ith
respect to alternative (1), this methodology is consistent with
the existing practice of relying on a producer’s sales of
products in the same ‘general class or kind of merchandise.’”
See id. (quoting SAA at 840). RHP-NSK, therefore, maintains
that if § 1677b(e)(1)(B) is meant to be consistent with
Commerce’s pre-URAA practice, then necessarily § 1677b(e)(2)(A)
is meant to be different. See id.
In addition, contrary to Commerce’s suggestion in the
Proposed Regulations that “use of ‘a’ was not intended to
overturn [the agency’s] practice of relying on aggregate figures
Consol. Court No. 97-02-00217 Page 23
for profit and SG&A,” RHP-NSK claims that the use of word “a” in
the CV profit provision does not obliterate the explicit
hierarchy for identifying “foreign like product” as established
by 19 U.S.C. § 1677(16). See id. at 12. RHP-NSK argues that it
makes no difference if the word “a” means “any,” as in “any
foreign like product,” or “the,” as in “the foreign like
product,” because the CV profit calculation is the same, that
is, it must be based on a “foreign like product,” not on an
aggregate of products, some of which may qualify as foreign like
product, but most would not. See Pls.’ Reply Mem. Supp. Mot. J.
Agency R. at 5.
RHP-NSK also asserts that if Commerce is correct that the
term “foreign like product” permits it to use “an aggregate
calculation [for CV profit] that encompasses all foreign like
products under consideration for normal value,” then it must
also be the case that NV or cost of production (“COP”) may be
based on an aggregate price or cost, as appropriate, for all
products under consideration for NV. Pls.’ Mem. Supp. Mot. J.
Agency R. at 14 (quoting 62 Fed. Reg. at 27,359). RHP-NSK
appears to assert that such a conclusion is indisputably wrong
because extending Commerce’s definition of “foreign like
product” to other key antidumping provisions would upend the
Consol. Court No. 97-02-00217 Page 24
entire legal framework of the antidumping statute. See id. at
13-14. RHP-NSK claims that it is equally indisputable that 19
U.S.C. § 1677b(e)(2)(A) does not permit Commerce to calculate CV
profit based on the aggregate profit for all sales in the above-
cost foreign sales database. See id. at 14-15.
NSK–RHP requests that the Court remand the Final Results to
Commerce to calculate CV profit based on actual profit amounts
incurred in the home market production and sale of model or
family products that match each bearing model sold in the United
States or, in the absence of such profit data, to use one of the
alternative profit methodologies specified under 19 U.S.C. §
1677b(e)(2)(B). See id. at 15.
2. Commerce’s Contentions
In response, Commerce asserts that it applied a reasonable
interpretation of 19 U.S.C. § 1677b(e)(2)(A) and properly based
CV profit for each respondent, including RHP-NSK, upon the
actual profit data of that respondent. See Def.’s Partial Opp’n
to Mot. J. Agency R. at 17. Although Commerce recognizes that
19 U.S.C. § 1677(16) establishes a descending hierarchy that
articulates preferences for the type of foreign like product the
agency must select for matching purposes, it, nevertheless,
Consol. Court No. 97-02-00217 Page 25
claims, in essence, that where the subject merchandise is
complex, encompassing numerous characteristics for matching, the
foreign like product typically embraces more that one of the §
1677(16) categories. See id. at 10. Commerce contends that the
term “foreign like product” is not limited to the product which
is “identical” (i.e., “model-specific”) or “like” (i.e.,
“similar to”) the subject merchandise, because if neither is
available, merchandise of the same “general class or kind” as
the subject merchandise will qualify as the foreign like
product. See id. at 10-11.
Commerce additionally claims that there is no indication by
referencing to “a foreign like product” in 19 U.S.C. §
1677b(e)(2)(A), Congress intended that CV profit be calculated
based on merchandise that is identical or similar to the subject
merchandise. See id. at 11. Commerce also notes that CV becomes
available for NV only when identical or similar home market
merchandise is not available for comparison with United States
sales either because there are no such home market sales or they
are below-cost and, thereby, are disregarded. See id. Commerce
maintains that Congress could not have intended to limit the CV
profit calculation under § 1677b(e)(2)(A) to profit incurred in
the production or sale of merchandise identical or similar to
Consol. Court No. 97-02-00217 Page 26
the subject merchandise because, in that event, the preferred
method of § 1677b(e)(2)(A) would rarely be applicable. See id.
Commerce, therefore, argues that since there were sales of
foreign like products that were not disregarded and actual
profit amounts were realized by each respondent in connection
with these sales, Commerce properly applied the preferred method
by aggregating those profits. See id. at 13. To apply an
alternative methodology where there are sales of the foreign
like product, according to Commerce, would virtually eliminate
the statutory preference to calculate CV profit based upon §
1677b(e)(2)(A). See id.
Commerce further notes that in the Proposed Regulations, see
61 Fed. Reg. at 7335, it properly determined that (1) the
language of 19 U.S.C. § 1677b(e)(2)(A) is unclear; and (2) the
URAA legislative history does not show that the intent of
Congress was to require Commerce to make separate CV profit
calculations for identical bearings or bearing families, based
upon RHP-NSK’s narrow interpretation of the term “foreign like
product,” see id. at 11-15. Commerce, therefore, argues that
its statutory interpretation of calculating CV profit, as
reflected in its Proposed Regulations and the Final Results, was
reasonable. See id. at 12.
Consol. Court No. 97-02-00217 Page 27
Moreover, Commerce disagrees with RHP-NSK’s assertion that
Commerce ignored the explicit hierarchy of 19 U.S.C. § 1677(16)
by calculating CV profit based on profits for products from all
§ 1677(16) categories. See id. at 15. Citing U.H.F.C. Co. v.
United States, 916 F.2d 689 (Fed. Cir. 1990) (a pre-URAA case),
and Toyota Motor Sales, U.S.A., Inc. v. United States, 22 CIT
__, 15 F. Supp. 2d 872 (1998) (a post-URAA case), Commerce
argues that it is simply following its practice established
under pre- and post-URAA law of applying the categories set
forth under § 1677(16), which defines “such or similar”
merchandise (now “foreign like product”), depending upon the
particular context. See Def.’s Partial Opp’n to Mot. J. Agency
R. at 15-17.
Because it is following established practice, Commerce also
argues that there is no merit to RHP-NSK’s claim that if
Commerce’s interpretations of the term “foreign like product”
and 19 U.S.C. § 1677b(e)(2)(A) are correct, then Commerce must
also use an aggregate price in calculating NV or COP. See id.
at 17. Similarly, contrary to RHP-NSK’s claim that Commerce
expanded the meaning of the term “foreign like product” based
upon the fact § 1677b(e)(2)(A) uses the term “a foreign like
Consol. Court No. 97-02-00217 Page 28
product” rather than “the foreign like product” or simply
“foreign like product,” Commerce claims that it merely set forth
its statutory interpretation that the word “a” was not intended
to overturn its prior practice of aggregating figures for profit
and SG&A. See id.
Commerce, therefore, argues that the Court should sustain
its CV profit determination because it is supported by
substantial evidence and in accordance with law. See id. at 17-
18.
3. Torrington’s Contentions
In support of Commerce, Torrington first contends that 19
U.S.C. § 1677b(e)(2)(A) on its face permits a flexible
application of “foreign like product” in CV profit calculations.
See Torrington’s Resp. to Pls.’ Mem. Supp. Mot. J. Agency R. at
7. Torrington asserts that § 1677b(e)(2)(A)’s plural
expression, “profits,” and flexible expression, “in connection
with,” carries the clear meaning and intent that Commerce may
calculate CV profit from multiple sales of relevant merchandise
and by reference to more than one bearing “family,” so long as
the models in the calculation are reasonably “connected” to the
particular model for which CV is being determined. See id.
Consol. Court No. 97-02-00217 Page 29
Torrington, therefore, argues that § 1677b(e)(2)(A) does not
limit Commerce to any particular narrow product-group. See id.
Torrington also contends that rules of statutory
construction necessitates Commerce’s broad and flexible
interpretation of 19 U.S.C. § 1677b(e)(2)(A). See id. at 8.
Torrington first notes that § 1677b(e)(2)(A) is the general rule
and preferred basis for determining CV profit. See id.
Torrington also notes that in most cases, CV forms NV only when
a respondent reports insufficient sales of “foreign like
product,” as the term is narrowly understood, in the ordinary
course of trade. See id. Accordingly, Torrington claims that
if the Court construes § 1677b(e)(2)(A) narrowly in the CV
profit context, it will effectively negate the general rule and
preferred basis for CV profit calculations. See id. In support
of its claim, Torrington asserts that (1) “courts [must] strive
to give effect to all provisions in a statute, so as not to
render a provision inoperative,” id. (citing United States v.
Menasche, 348 U.S. 528, 538-39 (1955)); and (2) courts must also
“avoid giving statutes manifestly absurd interpretations which
literal readings would otherwise support,” id. (citing United
States v. Brown, 333 U.S. 18, 27 (1948)). Torrington argues if
the Court were to adopt RHP-NSK’s position for calculating CV
Consol. Court No. 97-02-00217 Page 30
profit, the Court would clearly violate both of these rules.
See id.
Torrington further contends that the crux of RHP-NSK’s
argument is that the term “foreign like product” under 19
U.S.C. § 1677(16) must be applied with rigid consistency in two
different contexts, namely, those for (1) calculating price-
based NV from home market sales of comparable merchandise, and
(2) calculating CV profit. See id. at 10. Torrington disagrees
with RHP-NSK, arguing first that “a determination . . . can be
satisfactorily made” language of 19 U.S.C. § 1677(16) clearly
provides that Commerce has discretionary authority to select
among the categories of identical and similar merchandise to
reach a satisfactory determination. See id. In other words,
Commerce has the authority to make a satisfactory determination
of what is encompassed by “foreign like product” and, therefore,
it acted reasonably when it based CV profit on the sales of all
foreign like products. See id. at 10-11, 13.
Torrington also asserts that Commerce reasonably concluded
that “foreign like product” can differ by context, that is,
depending upon whether the dumping comparison is based on (1)
price-to-price, or (2) price-to-CV. See id. at 11. First,
Consol. Court No. 97-02-00217 Page 31
Torrington notes that when there are adequate home market sales
made at above-cost prices of identical or similar merchandise,
there is no need to determine profit, and the application of
“foreign like product” turns to model-matching issues. See id.
Under the model-matching methodology, Torrington notes that when
price-to-price comparison is not between identical merchandise,
a “satisfactory” determination of “foreign like product”
dictates finding the most nearly similar product in order to
minimize the need for adjusting NV for difference in cost
attributable to differences in physical characteristics of the
merchandise compared, pursuant to 19 U.S.C. § 1677b(a)(6)(C)(ii)
(1994). See id. at 11, 13. Otherwise, according to Torrington,
if Commerce determined that similar merchandise encompassed many
AFB families, it would then have a rather difficult task of
making numerous and highly complex adjustments, on a part-by-
part basis, and then aggregating those adjusted prices to
determine final NVs. See id. at 11-12. Torrington thereby
contends that, in the context of model-matching methodology,
Commerce might reasonably give the term “foreign like product”
a narrow and pragmatic application to minimize such complex
adjustments. See id. at 12.
On the other hand, Torrington notes that CV profit is
Consol. Court No. 97-02-00217 Page 32
invoked only when there are no available or usable home market
sales of identical or similar merchandise in the ordinary course
of trade. See id. Moreover, Torrington notes that Commerce
does not use an absolute price in a home-market sale for CV
profit; rather, it calculates an average profit rate (i.e.,
based on total profits earned by total costs of goods sold)
that, unlike a price for a particular bearing model, does not
have to be adjusted for differences in physical characteristics
between merchandise being compared. See id. Torrington claims
that Commerce reasonably assumes that the profit rate earned on
home market sales of all “foreign like products” is the rate
that would have been earned for sales of the identical product,
if sold at home in the ordinary course of trade. See id. at 12-
13. Thus, Torrington asserts that “less precision in
comparability is required to determine an appropriate CV profit
rate than to determine appropriate models to compare.” Id. at
13. Torrington, therefore, argues that, in the context of CV
profit calculations, Commerce must give the term “foreign like
product” a broader application so that “a determination . . .
[could] be satisfactorily made,” that is, a satisfactory
determination on the basis of sales of all foreign like
products. See id. at 12-13 (quoting 19 U.S.C. § 1677(16)).
Consol. Court No. 97-02-00217 Page 33
Torrington also argues, inter alia, that, contrary to RHP-
NSK’s suggestion that the Court interpret the term “a foreign
like product” of 19 U.S.C. § 1677b(e)(2)(A) in all contexts as
referring to a singular class of identical merchandise or to a
singular bearing family, the selection of the word “a” in the
statute commonly means “any,” and can be “applied to more than
one individual object; whereas ‘the’ is an article which
particularizes the subject spoken of.” Id. at 14 (quoting
Allstate Ins. Co. v. Foster, 693 F. Supp. 886, 889 (D.Nev. 1988)
(quoting, in turn, Black’s Law Dictionary, 1, 1324 (5th ed.
1979)). In addition, Torrington claims that judicial precedent
supports construing the word “a” in a broader manner. See id.
at 14-15 (citations omitted). Consistent with the common
meaning and judicial precedent, Torrington asserts that the
Court should sustain Commerce’s interpretation that “a foreign
like product” can mean “any” such product and all such products
combined for purposes of calculating CV profit under §
1677b(e)(2)(A). See id. at 15.
C. Analysis
The issue primarily presented by RHP-NSK is whether 19
U.S.C. § 1677b(e)(2)(A) requires Commerce to calculate CV profit
Consol. Court No. 97-02-00217 Page 34
based on actual profit amounts incurred in the home market
production and sale of model or family bearings that match each
bearing model sold in the United States or, in the absence of
such profit data, to use one of the alternative profit
methodologies in § 1677b(e)(2)(B).
Section 1677b(e)(2)(A) specifically provides that Commerce
must base CV profit on “actual amounts incurred and realized .
. . in connection with the production and sale of a foreign like
product.” Similarly, the legislative history of the statute
clarifies “that Commerce will base . . . profit only on amounts
incurred and realized in connection with sales in the ordinary
course of trade of the particular merchandise in question
(foreign like product).” SAA at 839. Accordingly, an analysis
of the statutory definition for the term “foreign like product”
is critical to settle the CV profit issue RHP-NSK raises.
Title 19, United States Code, § 1677(16) sets forth, like
its pre-URAA form,8 a tripartite hierarchy for ascertaining
8Title 19, United States Code, § 1677(16) (1994) revised
the pre-URAA precursor, 19 U.S.C. § 1677(16) (1988), inter alia,
by substituting the term “foreign like product” for “such or
similar merchandise,” and deleting the phrase “which is the
subject of an investigation” from § 1677(16). See SAA at 820;
see generally NSK Ltd. v. United States, 190 F.3d 1321, 1329
(Fed. Cir. 1999); Cemex, S.A. v. United States, 133 F.3d 897,
(continued...)
Consol. Court No. 97-02-00217 Page 35
“foreign like product.” Section 1677(16) provides:
The term "foreign like product" means merchandise in
the first of the following categories in respect of
which a determination for the purposes of part II of
this subtitle can be satisfactorily made:
(A) The subject merchandise and other merchandise
which is identical in physical characteristics with,
and was produced in the same country by the same
person as, that merchandise.
(B) Merchandise–
(i) produced in the same country and by the
same person as the subject merchandise,
(ii) like that merchandise in component
material or materials and in the purposes for
which used, and
(iii) approximately equal in commercial value
to that merchandise.
(C) Merchandise–
(i) produced in the same country and by the
same person and of the same general class or
kind as the subject merchandise,
(ii) like that merchandise in the purposes
for which used, and
(iii) which the administering authority
determines may reasonably be compared with that
merchandise.
19 U.S.C. § 1677(16) (1994).9 From this language, it is clear
8(...continued)
902-03 (Fed. Cir. 1998) (both cases discussing pre-URAA §
1677(16)’s hierarchy for determining “such or similar
merchandise”).
9 Although a “literal” reading of 19 U.S.C. § 1677(16)’s
definition of the term “foreign like product” is for “a
determination for the purposes of part II” of subtitle IV of the
Tariff Act of 1930, the Court nevertheless finds that general
rules of statutory construction dictate part IV’s § 1677(16) is
applicable in this case, that is, an administrative review of a
final determination pursuant to part III of subtitle IV. See
generally Freytag v. Comm’r, 501 U.S. 868, 877 (1991)
(continued...)
Consol. Court No. 97-02-00217 Page 36
that Commerce must first select merchandise that is identical
(i.e., model-specific) with the subject merchandise sold in, or
to, the United States. See 19 U.S.C. § 1677(16)(A). If such a
match is not possible, then Commerce must select merchandise
that is like (i.e., similar to) the subject merchandise. See
id. § 1677(16)(B). Finally, if neither identical nor like
merchandise is available, merchandise of the “same general class
or kind as the subject merchandise” will qualify as the “foreign
like product.” Id. § 1677(16)(C). In other words, as RHP-NSK
correctly notes, once Commerce finds merchandise that matches
the criteria stated by a § 1677(16) category, it need not
consider the remaining categories because the statute
specifically directs Commerce to determine “foreign like
product” on the “first of the following categories in respect of
which a determination . . . can be satisfactorily made.” Id. §
1677(16); see Federal-Mogul, 918 F. Supp. at 396, Cemex, S.A.,
133 F.3d at 903 (noting same for pre-URAA § 1677(16)).
Additionally, § 1677(16)’s “can be satisfactorily made”
language indicates, as Torrington imprecisely argues, that
9(...continued)
(expressing “a deep reluctance to interpret a statutory
provision so as to render superfluous other provisions in the
same enactment”) (citation and internal quotation marks
omitted).
Consol. Court No. 97-02-00217 Page 37
Commerce has the discretionary authority to select “foreign like
product” in the first of the enumerated categories in which a
satisfactory determination can be made. However, if a
determination cannot be “satisfactorily made” relying on one of
the three § 1677(16) categories, the Court notes that the
statute and its legislative history are ambiguous with regard to
the selection of “foreign like product” for use in calculating
CV profit. Therefore, under these circumstances, the Court
would have to proceed to the second step of Chevron to ascertain
if Commerce’s “foreign like product” selection for use in
calculating CV profit was a reasonable interpretation under 19
U.S.C. § 1677b(e)(2)(A).
In this case, as noted earlier, Commerce decided that “[f]or
those U.S. models which no identical or similar match was found,
the CV of the U.S. model was used as the basis for the NV.”
NSK-RHP Bearings--Preliminary Results Analysis Memo--
Antifriction Bearings from the U.K.--Sixth Administrative
Review, 5/1/94-4/30/95, A-412-801, Proprietary Doc. No. 12
(Fiche 71), at 2 (July 2, 1996); see Preliminary Results, 61
Fed. Reg. at 35,718 (Commerce “used CV as the basis for NV when
there were no usable sales of the foreign like product in the
comparison market”). In other words, Commerce did not find
Consol. Court No. 97-02-00217 Page 38
merchandise that matches the criteria of the “identical” or
“like” categories of “foreign like product” for purposes of
calculating CV profit. See 19 U.S.C. § 1677(16)(A), (B).
Rather, in calculating CV profit, Commerce used “aggregate data
that encompasses all foreign like products under consideration
for NV” to calculate profit for CV. Final Results, 62 Fed. Reg.
at 2113. The Court finds that use of such aggregate data
matches the criteria of § 1677(16)(C)’s “same general class or
kind” category and, therefore,10 Commerce’s determination under
19 U.S.C. § 1677b(e)(2)(A) was in accordance with law.
10 In its brief, Commerce advanced the position that
“[w]here . . . the subject merchandise is complex, encompassing
numerous characteristics for matching, the foreign like product
typically embraces more than one of the categories established
in section 1677(16).” Def.’s Partial Opp’n to Mot. J. Agency R.
at 10. The Court, however, cannot defer to this post hoc
rationalization as a basis to uphold or overturn Commerce’s
decision to rely on aggregate data for “foreign like product”
because Commerce’s final determination must be sustained, if at
all, on the same basis articulated in the determination by
Commerce itself. See Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168-69 (1962) (“The courts may not accept
. . . counsel’s post hoc rationalizations for agency action; .
. . an agency’s discretionary order [must] be upheld, if at all,
on the same basis articulated in the order by the agency
itself.”); see also Martin v. Occupational Safety and Health
Review Comm’n, 499 U.S. 144, 156 (1991) (“[A]gency ‘litigating
positions’ are not entitled to deference when they are merely .
. . counsel’s ‘post hoc rationalizations’ for agency action,
advance for the first time in the reviewing court.”); Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 213 (1988) (“Deference to
what appears to be nothing more than an agency’s convenient
litigating position would be entirely inappropriate.”).
Consol. Court No. 97-02-00217 Page 39
Moreover, the Court notes that since Commerce found that there
were sales of foreign like products that were not disregarded
and actual profit amounts were realized by RHP-NSK in connection
with these sales for use in calculating CV profit under §
1677b(e)(2)(A), see id., the three alternative CV methodologies
in § 1677b(e)(2)(B) are in applicable, see 19 U.S.C. §
1677b(e)(2)(B) (stating that subparagraph (B) is applicable when
“actual data are not available with the respect to the amounts
described in subparagraph (A)”). Furthermore, in examining the
structure of § 1677b(e), the Court concludes, as Commerce
argued, that to apply one of § 1677b(e)(2)(B)’s alternative
methodologies where there are such sales of the foreign like
products would virtually eliminate the statutory preference to
calculate CV profit based upon § 1677b(e)(2)(A). The Court also
finds that the URAA legislative history supports the use of such
actual profit data under § 1677b(e)(2)(A) to compute CV profit
before resorting to § 1677b(e)(2)(B)’s alternative
methodologies. See SAA at 839-40. In addition, having reviewed
the record, the Court finds that Commerce's factual
determinations concerning CV profit calculations are supported
by substantial evidence. Accordingly, Commerce’s CV profit
methodology is affirmed.
Consol. Court No. 97-02-00217 Page 40
The Court declines to address RHP-NSK’s arguments concerning
19 C.F.R. § 351.405 conforming to the URAA because the revised
regulation became effective for all administrative reviews
initiated on the basis of requests made on or after July 1, 1997
and, therefore, is not applicable in this case. See 19 C.F.R.
§ 351.701 (1998) (clarifying applicability dates for regulations
under 19 C.F.R. § 351); see also Final Regulations, 62 Fed. Reg.
at 27,358-59 (discussing final amended regulation 19 C.F.R. §
351.405 and determination of product categories for calculating
SG&A and profit for CV under 19 U.S.C. § 1677b(e)(2)(A)).
II. Inclusion of Zero-Priced Samples Transactions
in RHP-NSK’s United States Sales Database
During this review, Commerce included in RHP-NSK’s United
States sales database free sample bearings given away at no
charge to potential United States customers. See Final Results,
62 Fed. Reg. at 2123. RHP-NSK argues that this case should be
remanded to Commerce with instructions, pursuant to NSK Ltd. v.
United States, 115 F.3d 965 (Fed. Cir. 1997), to exclude RHP-
NSK’s zero-priced sample transactions from the dumping margin
calculations. See Pls.’ Mem. Supp. Mot. J. Agency R. at 4-5,
15-16; Pls.’ Reply Mem. Supp. Mot. J. Agency R. at 9-10.
Consol. Court No. 97-02-00217 Page 41
Commerce agrees that a remand under NSK is proper and that,
on remand, it should exclude from RHP-NSK’s United States sales
database those sample transactions for which RHP-NSK received no
consideration. See Def.’s Partial Opp’n to Mot. J. Agency R. at
2-3, 18.
Although Torrington concedes that NSK holds that sales must
be for consideration to be cognizable under the antidumping law,
Torrington nevertheless argues that RHP-NSK failed to meet its
burden of proving that the transactions in question were free of
broader forms of consideration, that is, consideration other
than money and, therefore, no remand is necessary. See
Torrington’s Resp. to Pls.’ Mem. Supp. Mot. J. Agency R. at 16-
18. In the alternative, Torrington argues that if a remand is
ordered, the Court should not rule that RHP-NSK’s sample
transactions should be categorically excluded; rather, it should
instruct Commerce to reevaluate the record to determine whether
RHP-NSK’s sample transactions are in fact without consideration.
See id. at 16, 18.
Commerce is required to impose antidumping duties upon
merchandise that “is being, or is likely to be, sold in the
United States at less than its fair value.” 19 U.S.C. § 1673(1)
Consol. Court No. 97-02-00217 Page 42
(1994). A zero-priced transaction, however, does not qualify as
a “sale” and, therefore, cannot be included in Commerce’s
dumping margin calculations. See NSK, 115 F.3d at 975 (holding
“that the term ‘sold,’ as used in 19 U.S.C. §§ 1673 and
1677a(c), requires both a transfer of ownership to an unrelated
party and consideration”). Thus, the distribution of AFBs for
no consideration falls outside the purview of § 1673.
Consequently, the Court remands to Commerce to exclude from RHP-
NSK’s United States sales database any sample transactions that
were not supported by consideration and to adjust the dumping
margins accordingly.
III. Inclusion of Imputed Inventory Carrying Costs
in the CEP Offset When Comparing CEP Sales to CV
In the Final Results, Commerce “regard[ed] the inventory
carrying costs [RHP-NSK] incurred in the home market, which are
incurred prior to the sale, transfer, or shipment of the
merchandise to the U.S. affiliate, as an expense incurred on
behalf of the sale to the U.S. affiliate.” 62 Fed. Reg. at
2124. Commerce did not consider this to reflect a commercial
activity in the United States and, therefore, it did not deduct
domestic inventory carrying costs from CEP for the Final
Results. See id.
Consol. Court No. 97-02-00217 Page 43
RHP-NSK claims that Commerce correctly complied with the CEP
offset provision, 19 U.S.C. § 1677b(a)(7)(B) (1994), by
including inventory carrying costs in the CEP offset when it
matched CEP sales to home market price-based NVs, but it
violated the statute when it failed to include imputed inventory
carrying costs in the CEP offset when it matched CEP sales to
CV. See Pls.’ Mem. Supp. Mot. J. Agency R. at 5, 16-17. RHP-
NSK notes that Commerce corrected this clerical error in the
subsequent AFB review when it included inventory carrying costs
in the CEP offset for CEP sales matched to CV. See id. at 5
(citing Antifriction Bearings from Japan–NSK Ltd. (NSK)
Preliminary Results Analysis Memo Seventh Administrative Review
5/1/95-4/30/96, A-588-804, Proprietary Document, at 10-11 (Mar.
28, 1997)). RHP-NSK requests that the Court remand the issue
and instruct Commerce to include inventory carrying costs in the
CEP offset when matching CEP sales to CV. See id. at 17.
Commerce agrees with RHP-NSK’s remand request. See Def.’s
Partial Opp’n to Mot. J. Agency R. at 3, 18.
Torrington disagrees with RHP-NSK, noting that although
under Commerce’s prior practice “deductions from exporter’s sale
price (now called [CEP]) included imputed costs for carrying
Consol. Court No. 97-02-00217 Page 44
inventory from the time the merchandise left the home market
factory to the time of its shipment to the first unrelated
customer in the United States,” Commerce’s practice under the
new law, on the United States side, is not to deduct “the cost
of carrying inventory from the time the merchandise leaves the
factory to the time of the sale to the U.S. affiliate.”
Torrington’s Resp. to Pls.’ Mem. Supp. Mot. J. Agency R. at 19.
Thus, Torrington argues that the rationale for an offsetting
deduction has evaporated. See id. In the alternative,
Torrington contends that if a remand is ordered, the Court
should instruct Commerce to ensure that the sum of the average
imputed financial expenses (i.e., both imputed credit and
imputed inventory carrying costs) deducted from CV do not exceed
the per-unit actual interest expenses included in the CV-
buildup. See id. Torrington explains that since 19 U.S.C. §
1677b(e) requires that CV be “equal to” all actual costs of
materials and fabrication, SG&A and profit, deductions of
imputed financial expenses greater than the reported actual
amounts will result in the unlawful diminution of the reported
costs. See id. at 19-20. Torrington, therefore, asserts that
if a remand is ordered, Commerce’s margin calculation program
should be modified to include an appropriate cap on the
Consol. Court No. 97-02-00217 Page 45
deduction of average imputed expenses from CV. See id. at 20.
Title 19, United States Code, § 1677b(a)(1)(B) requires
Commerce to establish NV to the extent practicable, at the same
level of trade (“LOT”) as the EP or CEP. When Commerce is
unable to match United States sales with foreign market sales at
the same LOT, an adjustment to NV should be made to account for
the differences in price that result from the differences in
LOT. See 19 U.S.C. § 1677b(a)(7)(A). When the data available
does not provide an appropriate basis to grant a LOT adjustment
under § 1677b(a)(7)(A), but NV is established at a LOT
constituting a more advanced stage of distribution than the LOT
of the CEP, the statute ensures a fair comparison between United
States price and NV by reducing NV by what is known as the “CEP
offset.” See 19 U.S.C. § 1677b(a)(7)(B) (CEP offset is an
adjustment that is made to NV when NV is being compared to CEP
sales in the United States). Specifically, the CEP offset
adjustment is made by reducing NV “by the amount of indirect
selling expenses incurred in the country in which [NV] is
determined on sales of the foreign like product,” but this
deduction may not exceed (i.e., it is “capped” by) the amount of
the indirect selling expenses deducted in calculating CEP. See
id. Since the inventory carrying costs at issue constitute an
Consol. Court No. 97-02-00217 Page 46
indirect selling expense incurred in the home market on the
sales of the foreign like product, the Court, therefore, remands
to Commerce to include the imputed inventory carrying costs in
the calculation of CEP offset for RHP-NSK when matching CEP
sales to CV. See generally Notice of Final Determination of
Sales at Less Than Fair Value: Static Random Access Memory
Semiconductors From Taiwan, 63 Fed. Reg. 8909, 8915 (Feb. 23,
1998) (Commerce included inventory carrying costs in the CEP
offset for CEP sales matched to price-based NVs and CV).
CONCLUSION
For the foregoing reasons, the case is remanded to Commerce
to: (1) exclude from RHP-NSK’s United States sales database any
sample transactions that were not supported by consideration and
to adjust the dumping margins accordingly; and (2) include
imputed inventory carrying costs in the calculation of CEP
offset for RHP-NSK when matching CEP sales to CV. Commerce’s
final determination is affirmed in all other respects.
______________________________
NICHOLAS TSOUCALAS
SENIOR JUDGE
Dated: December 16, 1999
New York, New York
ERRATUM
Slip Op. 99-134
RHP BEARINGS LTD. v. UNITED STATES
Consol. Court No. 97-02-00217
On page 2, second full paragraph, the first sentence after Held: should
read as follows:
RHP-NSK’s motion is denied in part and granted in part.
December 16, 1999
ERRATUM
Slip Op. 99-134
RHP BEARINGS LTD. v. UNITED STATES
Consol. Court No. 97-02-00217
On page 24, line 2, which reads as “typically embraces more that one” should
read as follows:
“typically embraces more than one ”
April 19, 2000 | 01-03-2023 | 02-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1220896/ | 262 S.C. 276 (1974)
204 S.E.2d 50
Ted K. O'SHIELDS and Patricia O'Shields, Respondents,
v.
SOUTHERN FOUNTAIN MOBILE HOMES, INC., Appellant.
19794
Supreme Court of South Carolina.
April 1, 1974.
*277 Messrs. J.D. Todd, Jr., and O. Doyle Martin, of Greenville, for Appellant.
*278 Kenneth C. Porter, Esq., of Greenville, for Respondents.
*279 April 1, 1974.
LEWIS, Justice:
Respondents brought this action to recover damages resulting from alleged fraud and deceit perpetrated by appellant in the sale to them of a mobile home. The trial resulted in a verdict in favor of respondents for both actual and punitive damages. While other questions are raised, we need only consider appellant's contention that there was no evidence to establish liability for fraud and deceit and that the trial judge erred in refusing its timely motion for a directed verdict on that ground. The material facts are undisputed.
It appears that respondents, after considerable shopping among various dealers, purchased a mobile home from appellant, a dealer at Greenville, South Carolina. Since respondents desired an unfurnished home and all of those in appellant's stock were furnished, a unit meeting the specifications of respondents was ordered by appellant from the manufacturer.
The sale of the mobile home was evidenced by a written "purchase agreement," dated January 16, 1973, which recited a down payment of $200.00 with a balance of $5644.00 to be paid "before delivery of the home." The agreement also specified the make or style of the home as "Plantation" and gave the color, number of bedrooms, the length, width, and model. In the space for "optional equipment, labor and accessories," it was specified that "all furniture including built in Refer (refrigerator) and range, bar, bar light and cabinet, and shag" would be deleted; and the following additions would be made (spelling as it appears in agreement):
"Add: Total elect, house type windows Hi-Lo harvest gold in living room & master bedrm. Whitewood panel in both bdrms, Balsam in rest. Black & White accent wall in bathroom and kit. # 534. Tile in rest of house. Range hood and dryer respictile. Exterior brown and white."
*280 Respondents were told by appellant's agent that, if they were not satisfied with the trailer home when it was delivered by the manufacturer, they did not have to accept it.
The home was delivered to the sales lot of appellant in February 1973, and shortly thereafter was inspected by respondents before it was delivered to them. At the time respondents inspected the unit on appellant's lot, they noticed that it varied from that which they had ordered in four particulars, namely: (1) the ceilings were seven (7) feet instead of eight (8); (2) it did not have exposed beams in the living room; (3) there were no "swag lights"; and (4) the hall was not carpeted. Respondents testified that the unit purchased by them was to have the foregoing items. In all other respects, the trailer home was as ordered.
Although respondents inspected the home, saw that in the foregoing particulars it was not as ordered by them, and had been told that they did not have to take the unit if they were not satisfied, they, nevertheless, paid the balance of the purchase price ($5644.00) and accepted delivery and installation of the trailer home on their lot about February 20, 1973.
Later, in April, after having occupied the home since the latter part of February, respondents received a manufacturer's certificate of origin which stated that the style or make of their mobile home was a "Vagabond," instead of a "Plantation" as their purchase agreement specified. Respondents then became dissatisfied and protested, contending that they had not received what they had ordered, since a "Vagabond" was a cheaper model than the "Plantation."
It developed, however, that the essential difference between the Vagabond and Plantation models was in the quality of the furnishings. The Plantation contained deluxe furnishings and the Vagabond less expensive ones.
Respondents contend that the appellant's agents fraudulently represented to them that they would receive a Plantation model mobile home containing *281 the above features, with no intention of fulfilling such promise and substituted the cheaper Vagabond model because the company would lose money under the contract as it was written. The mere fact, however, that a unit designated as a Vagabond model was delivered, instead of a Plantation, would, under this record, be of no consequence. This is true because respondents purchased an unfurnished trailer home and it is undisputed that there is no essential difference in quality and construction of the basic "chassis" and "shell" of the two units.
The basic contention of respondents was therefore that appellant had promised to deliver to them a trailer home containing, among other features, an eight (8) foot ceiling, exposed beams in the living room, swag lights, and carpeting in the hall, with no intention of fulfilling such promise. It is undisputed that, whether the trailer home be designated "Vagabond" or "Plantation," if it had contained the above four features, the unit delivered would have been of the quality and design specified in the purchase agreement, and respondents would have had no complaint.
It is well settled that, in order to recover in an action for fraud and deceit, based upon representation, the following elements must be shown by clear, cogent and convincing evidence: (1) a representation; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth of falsity; (5) intent that the representation be acted upon; (6) the hearer's ignorance of its falsity; (7) the hearer's reliance on its truth; (8) the hearer's right to rely thereon; (9) the hearer's consequent and proximate injury. Failure to prove any one of the foregoing elements is fatal to recovery. Carter v. Boyd Construction Company, 255 S.C. 274, 178 S.E. (2d) 536; Moye v. Wilson Motors, Inc., 254 S.C. 471, 176 S.E. (2d) 147.
Assuming that other elements are present, the record fails to show that respondents were ignorant of the omitted features of the mobile home or relied upon *282 appellant's alleged representations thereabout. The omission of the features complained of was open and easily observed. In fact, respondents readily admit that they did inspect the unit before it was delivered to them and saw that the four items were missing. They, nevertheless, without objection, accepted delivery, even though they had been previously advised by appellant that they did not have to do so if they were dissatisfied when the unit arrived.
We have recognized that "one cannot rely upon misstatement of facts, if the truth is easily within his reach." Flowers v. Price, 190 S.C. 392, 3 S.E. (2d) 38; Thomas v. Jeffcoat, 230 S.C. 126, 94 S.E. (2d) 240.
The present record shows that, if false representations were made as alleged, there was no actionable fraud, because respondents were fully aware of the falsity of the statements and had every opportunity to protect their interests. Since there is no showing that respondents were deceived by any representations of appellant's agents, the trial judge should have granted appellant's motion for a directed verdict.
Reversed and remanded for entry of judgment in favor of appellant.
MOSS, C.J., and BUSSEY, BRAILSFORD and LITTLEJOHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/996571/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4594
JAMES W. PEYTON,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4595
LOUIS E. PEYTON,
Defendant-Appellant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James R. Spencer, District Judge.
(CR-97-33)
Submitted: September 15, 1998
Decided: October 13, 1998
Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lance D. Gardner, Fairfax, Virginia; James C. Clark, LAND,
CLARK, CARROLL, MENDELSON & BLAIR, P.C., Alexandria,
Virginia, for Appellants. Helen F. Fahey, United States Attorney,
Charles A. Beamon, Special Assistant United States Attorney, Alex-
andria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury convicted brothers Louis E. Peyton and James W. Peyton
of conspiracy to possess with intent to distribute and to distribute
1000 kilograms or more of marijuana and a detectable amount of
cocaine.1 The district court sentenced Louis Peyton to serve 151
months' imprisonment. The court sentenced James Peyton to serve
seventy-eight months' imprisonment. In these consolidated appeals,
both Appellants challenge their sentences by asserting that the district
court erroneously determined the amount of marijuana for which they
were held accountable. James Peyton also contends that the district
court erred by denying him a two-level sentencing reduction for
acceptance of responsibility. Finding no reversible error, we affirm.
During their joint trial, the Government presented numerous wit-
nesses, primarily co-conspirators, who provided overwhelming evi-
dence of Appellants' involvement in the acquisition and distribution
of massive amounts of marijuana and cocaine for more than a decade.
Following their convictions and based upon the evidence presented at
_________________________________________________________________
1 See 21 U.S.C. § 846 (1994). The jury also convicted Louis Peyton of
four counts of filing false tax returns, in violation of 26 U.S.C. § 7206(1)
(1994), but he does not challenge these convictions in this appeal.
2
trial, the probation officer recommended that Louis Peyton was
responsible for 3375 kilograms of marijuana and 11,793.6 grams of
cocaine. The cocaine was converted to its equivalent in marijuana,
2358 kilograms, for a total of 5733 kilograms of marijuana. The pro-
bation officer recommended that James Peyton was accountable for
1020.6 kilograms of marijuana. During sentencing, Appellants
attacked the credibility of the Government's witnesses and argued
that the presentence report grossly over-represented the amount of
drugs involved in the distribution conspiracy. Specifically, Louis Pey-
ton suggested that he should not be held accountable for more than
400 to 700 kilograms of marijuana (the same amount for which
Stephen Hatcher, his primary co-conspirator and chief Government
witness, was held accountable). James Peyton argued that he should
only be held accountable for one-half the marijuana attributed to
Louis Peyton, since he was James Peyton's sole supplier of mari-
juana. Finding inconsistencies in some of the co-conspirators' testi-
mony, the court rejected the amount of marijuana attributable to each
Appellant and held Louis Peyton responsible for 640 kilograms of
marijuana, combined with the cocaine conversion of 2358 kilograms,
for a total of 2998 kilograms of marijuana. The court also reduced the
amount of marijuana attributable to James Peyton to 518 kilograms
of marijuana.
For sentencing purposes, the district court's factual determination
concerning the amount of drugs attributable to Appellants should be
upheld absent clear error.2 Appellants bear the burden of showing the
inaccuracy of those drug amounts.3 However, with unrecovered drugs,
the district court may estimate the amount of drugs attributable to
each Appellant for an accurate reflection of their involvement in the
drug trafficking conspiracy.
Here, the fact that the district court reduced the amount of mari-
juana attributable to Appellants totally belies their allegations that the
court accepted each witness's testimony at face value. In fact, the
court explicitly found that portions of Hatcher's testimony were
_________________________________________________________________
2 See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398);
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
3 See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
3
uncorroborated and used this as a basis for reducing Louis Peyton's
total drug accountability from 5733 to 2998 kilograms of marijuana.
The court's assessment of witness credibility is not subject to review.4
Therefore, since the court's weight determination for the unrecovered
drugs is supported by a preponderance of the evidence, we find no
clear error.5
Next, James Peyton challenges the district court's denial of a sen-
tence reduction for acceptance of responsibility. 6 He claims that he
was entitled to the reduction because during sentencing, he admitted
distributing between twenty-five to fifty pounds (or 11.34 to 22.68
kilograms) of marijuana. Peyton objected to the recommendation in
the presentence report to deny the sentencing reduction. The court's
silence on Peyton's objections is tantamount to a denial of the reduc-
tion, which we review for clear error.7
A defendant is entitled to a two-level reduction in offense level
under USSG § 3E1.1 if he clearly demonstrates acceptance of respon-
sibility for his offense. Here, Peyton did not accept responsibility for
his offense. He did not plead guilty to the charged offenses. He com-
pletely denied all involvement in the conspiracy to distribute cocaine
and attempted to downplay his involvement in distributing marijuana.
Further, Peyton refused to cooperate with the probation officer during
the preparation of his presentence report. Because Peyton's uncooper-
ative behavior and his refusal to fully disclose his involvement in the
drug trafficking conspiracy are inconsistent with acceptance of
responsibility, we find that the district court did not clearly err in
denying him the two-level reduction in offense level under USSG
§ 3E1.1.8
_________________________________________________________________
4 See United States v. Saunders , 886 F.2d 56, 60 (4th Cir. 1989).
5 See United States v. Williams , 986 F.2d 86, 90 (4th Cir. 1993).
6 See U.S. Sentencing Guidelines Manual § 3E1.1 (1995).
7 See United States v. Strandquist , 993 F.2d 395, 401 (4th Cir. 1993).
8 See United States v. Beal, 960 F.2d 629, 632 (7th Cir. 1992) (holding
that sentencing court properly considered defendant's failure to cooper-
ate with probation office's investigation in denying reduction for accep-
tance of responsibility).
4
Accordingly, we affirm Appellants' sentences. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/734145/ | 105 F.3d 997
UNITED STATES of America, Plaintiff-Appellee,v.William Joseph KIRK, Defendant-Appellant.
No. 94-50472.
United States Court of Appeals,Fifth Circuit.
Feb. 3, 1997.
Richard L. Durbin, Jr., Asst. U.S. Attorney, Mark Randolph Stelmach, Assistant U.S. Attorney, Office of the United States Attorney, San Antonio, TX, for plaintiff-appellee.
Edwin Gerald Morris, Morris & Florey, Austin, TX, for defendant-appellant.
Keith S. Hampton, Cynthia Lanning Hampton, Austin, TX, for Texas Criminal Defense Lawyers Association, amicus curiae.
Appeal from the United States District Court for the Western District of Texas; Sam Sparks, Judge.
Before POLITZ, Chief Judge, and KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,* STEWART, PARKER and DENNIS, Circuit Judges.
Prior report: 70 F.3d 791
PER CURIAM:
1
By virtue of an equally divided en banc court, the judgment of the district court is AFFIRMED.
2
ROBERT M. PARKER, Circuit Judge, joined by POLITZ, Chief Judge, and KING, HIGGINBOTHAM, DAVIS, WIENER, STEWART and DENNIS, Circuit Judges, would affirm for the following reasons:
3
In my view, there was a rational basis for Congress to conclude that post-1986 incidents of manufacture, transfer, and possession of machineguns fall within its power to regulate interstate commerce. Every circuit that has examined 18 U.S.C. § 922(o)--both before and after United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995)--has determined that § 922(o) does not exceed the authority granted to Congress by the Commerce Clause.1
4
A careful reading of Lopez compels this conclusion. In Lopez, the Supreme Court held that Congress exceeded its Commerce Clause power by enacting § 922(q) which criminalizes possession of a firearm within 1000 feet of the grounds of a school, see § 921(a)(25), a small geographic area finitely circumscribed and related to education, a uniquely local concern. In contrast, the extensive history of federal firearm regulation and the national scope of § 922(o) distinguishes it from § 922(q). It is important to the understanding of Lopez that the Supreme Court intended to establish an outer limit to congressional authority, not to retreat from well-established Commerce Clause precedent. United States v. Kenney, 91 F.3d 884, 887 (7th Cir.1996). As Chief Justice Rehnquist noted, "[S]ome of our prior cases have taken long steps down that road, giving great deference to congressional action. The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further." Lopez, 514 U.S. at ----, 115 S.Ct. at 1634.
5
Simply stated, I believe that we should join the other circuits in holding that Congress had a rational basis for concluding that the manufacture, transfer and possession of machineguns substantially affect commerce and § 922(o) therefore is constitutional.
6
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by POLITZ, Chief Judge, and DAVIS and WIENER, Circuit Judges, would affirm for the following reasons:
7
We are persuaded that a legislative judgment that possession of machine guns acquired after 1986 has a substantial effect on interstate commerce, particularly by facilitating the trade in illegal drugs, is supported by our judicial experience and facts about machine guns and interstate criminal activity common to public discourse. Congress did not exceed its power under the Commerce Clause, and we today correctly affirm this conviction.
I.
8
This case ultimately turns on the role of congressional findings in judicial review of congressional exercises of its commerce power. Our opinion in United States v. Lopez, 2 F.3d 1342 (5th Cir.1993), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), stressed the absence of congressional findings of the relationship between Congress's regulation of guns near schools and its commerce power. We required that Congress justify its authority by findings. The Supreme Court affirmed our holding that Congress lacked authority to regulate possession of a gun in proximity to a school, but it did not adopt our rationale. Rather, the Court shied away from so direct an imposition of procedure upon the Congress. Nonetheless, the court did give weight to the absence of congressionally identified ties between the regulation and the commerce power. 514 U.S. at ---- - ----, 115 S.Ct. at 1631-32.
9
Lopez, then, adhered to a rational basis standard of review. This deferential standard does not insist that Congress actually make factual findings. To the contrary, its tolerance of hypothetical, judicially supposed purposes and means gives the rational basis standard its deferential character. Courts can assume a more activist role in judicial review by refusing to look to a basis for legislation not identified by Congress. This elevates the standard of review, according significantly less deference to Congress. Giving weight to the absence of congressional findings lies in the middle ground between an intrusive absolute insistence upon legislative findings and traditional rational basis inquiry. Congressional findings are not merely playthings of formalism. They help define the respective roles of the courts and the Congress and the federal and the state governments. So the role of findings demands our attention. But their absence does not end our inquiry. Here Congress made no findings. We give weight to the absence of findings, but we do not find their absence controlling. Under Lopez, we must continue to apply the rational basis test, which asks courts not to set aside congressional acts as exceeding the Commerce Clause power if the Congress could have found that the relevant intrastate activity has a substantial effect on interstate commerce. This deference respects differences between the fact-finding of courts and legislative findings, differences of a constitutional order. Legislative "findings," relative to judicial findings, are untidy in their blending of empirical assessment and policy judgments. The difference reflects the fundamentally different roles of the judiciary and the Congress. Congress must respond actively to problems faced by political communities; its judgment is accented by its look to the future and its effort to offer solutions to social ills. The judicial decision looks backward, responding to the limits of a case or controversy. We must not forget these differences in inquiring what the legislature rationally could have found. Losing sight of these differences risks a blurring of the respective roles of Congress and the courts, a difference the rational basis test is intended to respect. On the one hand, courts have a constitutional duty to scrutinize congressional actions to ensure that Congress stays within its constitutionally enumerated powers; "if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits." United States v. Rybar, 103 F.3d 273, 291 (3d Cir.1996) (Alito, J., dissenting). On the other hand, we must discipline our scrutiny to ensure that we are about the business of judicial review and not the business of social policy. Stated another way, respecting the policy-making role of majoritarian legislative bodies is not an empty recitation.
10
This familiar problem for rational basis review is especially awkward when the issue is whether an intrastate activity has a substantial effect on interstate commerce. Unless the Court follows Justice Thomas away from an effects test, see Lopez, 514 U.S. at ---- - ----, 115 S.Ct. at 1642-51 (Thomas, J., concurring), we cannot escape this difficulty. Justice Breyer's elaborate study of education, guns, and commerce will continue to be commonplace, despite the reality that judicial searches for data that might have supported a legislative finding raise the troubling prospect of the courts doing work the Congress ought to have done. See id. at ---- - ----, 115 S.Ct. at 1659-62 (Breyer, J., dissenting). And as Justice Souter has pointed out, the doctrine of clear statement offers no escape. See id. at ----, 115 S.Ct. at 1655 (Souter, J., dissenting). What the Supreme Court will do with the meaning of "substantial effect" remains to be seen. These plastic words may lessen deference to Congress by judicial demands for empirical evidence as well as normative valuations of state and federal "interests." Regardless of that future, according weight to the absence of legislative findings in close cases fairly accommodates these competing interests. Cases are at least close when courts feel the need to conduct elaborate empirical studies to determine whether the facts support exercise of the federal commerce power. If the facts were not within our easy reach, this would be a close case indeed, and the absence of findings would then tilt the outcome. This simply states a limit upon the role of the courts in their inquiries into whether there is a rational basis for a legislative judgment.
II.
11
In executing the rational basis test, we turn to facts bearing on the relationship between possession of machine guns and interstate commerce. The prosecution has not aided our factual inquiry on this score. But the concern over machine guns was hardly exotic. To the contrary, concern over both the unique firepower of automatic weapons and the recent increase in their number was the subject of public discussion, as a simple repair to the popular press makes plain. That exercise also sheds light on the type of data and expert opinion available to the Congress. A 1985 article in a national weekly magazine alerted Americans to the dangerous proliferation of machine guns and reported that "[t]he MAC-10 has become the side arm of choice for 'cocaine cowboys' and other drug smugglers." Machine Gun U.S.A., NEWSWEEK, October 14, 1985, at 46. According to the article, American gun dealers imported an average of 55,000 machine guns during the early 1980s. In 1988, two years after the passage of § 922(o), the International Association of Chiefs of Police estimated that criminals possessed between 650,000 and two million automatic and semi-automatic weapons. The Arms Race in Your Own Back Yard, U.S. NEWS & WORLD REPORT, April 4, 1988, at 24. Presumably, the great percentage of these weapons were semi-automatic weapons and not machine guns. In 1987, the DEA "seized an average of one machine gun a day," which led the press to report that "most of this ferocious firepower is deployed in connection with narcotics trafficking." Id. This sort of information, easily accessible to Congress, would support a legislative judgment that the possession of machine guns interferes with federal drug enforcement; that regulating the simple possession of machine guns acquired after 1986 is necessary to stop the rapid growth of the pool of supply. Indeed, there is reason to think that Congress had these sorts of figures in mind when it enacted § 922(o). See 1986 U.S.S.C.A.N. 1330 (noting that an alternative bill "prohibited the transfer and possession of machine guns, used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime").
12
The efficacy of § 922(o) also suggests that a legislative judgment of a strong tie between machine guns and federal crimes would have been valid. In 1983, ATF seized 871 machine guns and conversion kits; by 1985, that number had ballooned to 3,263. NEWSWEEK, October 14, 1985, at 46. After passage of § 922(o), however, this figure dropped dramatically. There were only 834 ATF machine gun seizures in fiscal year 1987, as opposed to 2,854 seizures in fiscal year 1986, a decrease of 71 percent. Semiautomatic Assault Weapons Act of 1989: Hearings before the Subcommittee on Crime of the Committee on the Judiciary, 101st Cong., 1st Sess. 354 (1989) (Appendix 9: "The 1986 Machine Gun Law Works"); Tony Freemantle, Police Groups Warm to Bill on Gun Control, HOUSTON CHRONICLE, March 19, 1989, at A1. These figures at least suggest that § 922(o) succeeded in substantially reducing the number of machine guns in the hands of criminals encountered by federal law enforcement. And the striking effectiveness of federal enforcement of the congressional freeze of the machine gun market gives us reason to think that in 1986 Congress could have mustered facts to support its legislative judgment that the ban would be effective in reducing the availability of machine guns to those confronting federal law enforcement, particularly in the drug trade. That other inferences might be drawn from the data or that there is conflicting data is no answer because our question is not what judges think or prefer, but what rational judgment Congress could have made.
13
The bill that enacted § 922(o) also imposed on drug traffickers who use a machine gun a special ten-year sentence rather than the standard five-year sentence for other firearms. Pub.L. No. 99-308 § 104, 100 Stat. 456, 457 (May 19, 1986) (amending 18 U.S.C. § 924(c)(1)). Two years later, Congress thought it prudent to add another twenty years to this penalty. Pub.L. No. 100-690 § 6460, 102 Stat. 4373, 4373 (Nov. 18, 1988). This concerted attention to the dangers of automatic weapons is at odds with the suggestion that Congress's freeze on the market in machine guns rests on an irrational judgment about the ties between machine guns and drug dealers and about the effects of tolerating their possession after 1986. Federal law enforcement recognizes the importance of having such powerful weapons in confrontations with drug traffickers. In 1988, DEA, the primary enforcement agency in the regulation of drugs, moved away from shotguns and made 9-mm, 32-round weapons that can be fired automatically its "primary" weapons. U.S. NEWS & WORLD REPORT, April 4, 1988, at 24. These developments make it clear that it is at least rational to conclude that federal regulation of a distinct market in machine guns is part and parcel of federal drug regulation.
14
Judge Parker in his opinion for the panel found it important that Congress has done more here than outlaw simple possession of a machine gun. We agree. Not every possession is prohibited. Rather, the Congress has left lawful the possession of machine guns manufactured before 1986 and lawfully possessed before that date. It is a crime to transfer any machine gun after 1986 or to possess a machine gun manufactured after that date. That is, Congress froze in place the market in machine guns. Judge Garwood made this point in his opinion for the panel in Lopez:
15
Section 922(o) is restricted to a narrow class of highly destructive, sophisticated weapons that have been either manufactured or imported after enactment of the Firearms Owners' Protection Act, which is more suggestive of a nexus to or [e]ffect on interstate or foreign commerce than possession of any firearms whatever, no matter when or where originated, within one thousand feet of the grounds of any school.
16
2 F.3d at 1356 (emphasis in original) (footnote omitted). It is true that simple possession is the stated offense under the statute, but by excepting activity occurring before 1986, a proscribed possession, by definition, must have been the product of a post-1986 transfer, interstate or intrastate (putting to one side the remote cases of worn guns and, for the moment, cases involving conversion into fully automatic guns). Such careful regulation reflects legislative deliberation we are bound to respect.
17
Machine guns possess a firepower that outstrips any other kind of gun. Persons knowledgeable about firearms, such as those who campaign for repeal of gun regulations, usually emphasize that machine guns stand in a class of their own. See Assault Weapons: A View from the Front Lines: Hearing before the Committee on the Judiciary, 103d Cong., 1st Sess. 183, 185-86 (1994) (emphasizing that the cosmetic similarities between machine guns and semi-automatic assault weapons belie functional differences that make assault weapons more like hunting and target rifles than like machine guns). The destructive capacity of machine guns puts them in the same category as explosives, which the federal government has heavily regulated for over twenty-five years, except machine guns have little lawful use. See Organized Crime Control Act of 1970, Title XI, § 1102(a), Pub.L. No. 91-452, 84 Stat. 953-55 (codified as amended at 18 U.S.C. §§ 842-843) (prohibiting, among other things, the storage of explosives without a federal permit); United States v. Dawson, 467 F.2d 668, 673 (8th Cir.1972) ("There being a rational basis upon which Congress properly could have determined that the misuse of explosive materials is one activity which, as a class, affects commerce, the Government need not specifically allege and prove a connection between interstate commerce and the conduct made criminal by § 842(h)."), cert. denied, 410 U.S. 956, 93 S.Ct. 1427, 35 L.Ed.2d 689 (1973).
18
This fundamental difference between machine guns and other guns is reflected in the long history of machine-gun regulation by Congress. Initially, Congress used the taxing power to insist upon machine gun registration. See National Firearms Act of 1934, Pub.L. No. 474 §§ 2-6, 48 Stat. 1236, 1237-38. It soon turned to the Commerce Clause as a basis for restricting the market in machine guns. See Federal Firearms Act of 1938, Pub.L. No. 785, 52 Stat. 1250. That law remained in effect for thirty years, when Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197 (current version at 18 U.S.C. §§ 921-928), of which § 922(o) is now a part. Machine guns, then, have not been the exclusive regulatory domain of the states. Their lethal force has produced a national response.
III.
19
Those who urge that this legislation is unconstitutional are at pains not to undercut the constitutionality of laws prohibiting the simple possession of drugs. Yet it is difficult to conclude that Congress could not have rationally found that machine guns play a large role in major drug transactions and thus that the availability of these weapons of war has a substantial effect on the interstate traffic in drugs. Congress has acted on that effect in providing that the use of a gun, otherwise lawful, in a drug transaction brings substantially increased penalties. 18 U.S.C. § 924(c)(1). We have repeatedly recognized firearms as one of the drug dealer's "tools of the trade." See United States v. Martinez, 808 F.2d 1050, 1057 (5th Cir.), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 533 (1987). The firepower of a machine gun puts it in a quite different category from the handguns, shotguns, and rifles so popular with sportsmen. Its continuous fire puts the machine gun on a different plane from the semi-automatic. The routine cases on the criminal docket in federal courts make the connection between machine guns and major drug transactions undeniable. Whether the effect is "substantial" is less certain, as we have explained. See supra at 1000-01. But we need conduct no elaborate study. As shown above, the writing of the popular press and the scale of congressionally-set penalties demonstrate that the baseline of public debate assumes a heavy use of machine guns in drug-related crimes. Significantly, our cases provide anecdotal information that meshes with this data and together would make § 922(o) a rational way to cabin both violence attending the drug trade and the trade itself.1 The quantity of machine guns that federal courts encounter in drug cases is high enough to conclude that Congress would have had a rational basis for a legislative judgment that prohibiting their intrastate possession would have a substantial effect on the interstate commerce in illegal drugs.
20
This rationale would not "convert the commerce power into a reserved 'general federal police power' " (quoting Lopez, 514 U.S. at ----, 115 S.Ct. at 1632). As observed, machine guns are very different weapons from guns without the capability of automatic fire and have been the subject of federal commerce regulation for nearly sixty years. We would expect a national rather than a state-by-state regulatory pattern of, say, anti-tank bazookas, plastic explosives, plutonium, or other tools of terrorists. Federal regulation of machine guns, as distinguished from other guns, does not bring similar invasions of traditional state interests. Although § 922(o) and § 922(q) both criminalize the possession of certain guns, § 922(o) ought not be brushed off as a mere "clone" of § 922(q).
21
Of course, the Lopez Court insisted that we distinguish between the regulation of crime and the regulation of commercial activity. 514 U.S. at ---- - ----, 115 S.Ct. at 1630-31. This case differs from Lopez in the critical respect that criminals use machine guns to evade regulation of the national drug trade while guns near schools have a negligible effect on the traditionally local activity of public education, which is not itself commercial. Crime can be interstate business. And local intrastate criminal activity can have a substantial effect on that interstate activity. Indeed, Congress might rationally conclude that the relationship between "local possession" of machine guns and the drug trade is even more compelling than the ties between local loan sharking and organized crime. See Perez v. United States, 402 U.S. 146, 157, 91 S.Ct. 1357, 1362-63, 28 L.Ed.2d 686 (1971) ("[L]oan sharking in its national setting is one way organized interstate crime holds its guns to the heads of the poor and rich alike and siphons funds from numerous localities to finance its national operations.").
22
The judiciary's role in policing the process of federalism brings hard calls, including the task of distinguishing national economic activity from local crime. Lopez is not merely symbolic jurisprudence. Rather, it announces that there are yet limits upon Congress's use of the commerce power to make a federal case out of traditionally local concerns, particularly in criminal law enforcement. That said, we part company with the declaration that § 922(o) is an invasion of the state's traditional police power. That the Congress has attached a criminal penalty to the possession of a machine gun or storage of explosives does not alone mean that it has invaded the traditional police power of the states. With respect, that announces an outcome, not a rationale.
23
There is no social utility in the distribution of cocaine and marijuana, and their interstate character is undeniable. It is no surprise, then, that Congress "regulates" the national market in these drugs by banning them, a ban that rationally extends to simple possession. There is little social utility in acquiring since 1986 operable machine guns or in making them. They are not sporting weapons; they are weapons of war. They are guns in the same sense that pussycats and tigers are both members of the cat family. The courts have learned that a machine gun's destructive capacity makes it highly useful for protecting commerce in contraband such as narcotics.
24
Given the rapid influx of machine guns, it is hardly irrational to conclude that meaningful regulation of their use in lines of interstate commerce requires regulation of this intrastate possession. The attempt to distinguish drugs and machine guns on the basis of fungibility fails to appreciate the fact that many guns can easily be converted from semi-automatic to fully automatic. See, e.g., United States v. Branch, 91 F.3d 699, 736-37 (5th Cir.1996) (affirming a § 922(o) conviction where the defendant used conversion kits and instructional books and videotapes to manufacture fully automatic weapons out of semi-automatic weapons). News reports describe the process as "so low tech on some brands that [ATF] agents ... have seen it done with a paperclip." U.S. NEWS & WORLD REPORT, April 4, 1988, at 24. As with drugs, identifying and tracing the fully automatic nature of machine guns is often impossible.
25
Efforts to minimize the consequences of striking down this statute by reassuring that Congress can cure the defects it finds by inserting a jurisdictional element are empty of content: for example, it can provide penalties for possession of weapons that are "in or affecting commerce." With deference, this velvet over the sword in fact erodes the logic of an otherwise not insubstantial argument. If the present statute cannot be sustained because Congress could not rationally have made a legislative judgment of the need to freeze the post-1986 market, there is little federal regulatory scope left; that reality should be forthrightly acknowledged. If a legislative decision to freeze the class is irrational, proof that an individual member of the class had a substantial effect on commerce in a given case is problematic if "substantial effect" is accorded a constant meaning. So those who would strike this statute cast themselves as protecting state interests by insisting that the Commerce Clause empowers Congress to outlaw only those machine guns where in a specific case the government proves that the use of the machine gun was in commerce or affecting commerce. The irony is that this requirement is more intrusive of state interests than the test we apply and they reject. It is more tolerant of federal intrusion because it may be met by showing merely that a gun "has previously traveled in interstate commerce." United States v. Bass, 404 U.S. 336, 350, 92 S.Ct. 515, 524, 30 L.Ed.2d 488 (1971). That is, this minimal nexus to commerce could give Congress more latitude in exercising its federal commerce power than the substantial-effects test we have employed here. A case-by-case inquiry into whether the defendant possessed a gun that was once in interstate commerce, even "after any number of intermediate sales within the State and after any lapse of time," United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 333, 92 L.Ed. 297 (1948), would allow federal regulation of items that, taken as a class, have virtually no effect on interstate commerce. It would concede congressional power to outlaw possession of guns in general, an upset of a traditional state-federal balance and a concession we are not persuaded to make. Lopez would indeed look more like symbolic jurisprudence with little real implementation of the federalist arrangement of our Constitution. After all, few guns have never crossed a state line. It is not for us to say that Bass cannot survive Lopez. We would not embrace it, however, to support a rejection of a less intrusive inquiry.
26
In general, judges are not equipped by training to engage in elaborate empirical studies; more importantly, the courts are institutionally ill-equipped. Deference to Congress does not require courts to leave their traditional roles by pursuing empirical research. But it does require courts not to ignore the obvious, at least when the obvious is born of judicial experience. We need look no further than our considerable experience with the drug market and the role of automatic weapons in that activity. Based on that experience, we are comfortable in concluding that Congress could have rationally found the required nexus between its careful regulation of the possession of machine guns and the interstate commerce in, for example, illegal drugs, as well as the attendant commerce in machine guns alone. The federal government has the power under the Commerce Clause to wage the war on drugs. It equally has the power to freeze the escalating destructive power of the weapons of that war, the automatic firepower drawn by the drug trade.
27
Automatic and non-automatic weapons fire on different planes, functionally and legally. Guns without the capability of automatic fire are lawfully found in the hands of thousands of persons across the country. The states have traditionally regulated these weapons, indeed virtually all guns, except the machine gun. We weigh the absence of congressional findings against the constitutionality of § 922(o), but given the facts we have outlined conclude that the absence of an invasion of a traditional state interest tilts this case in favor of the constitutionality of the statute. Saying so pulls no teeth from Lopez and sounds no retreat from the judicial scrutiny of efforts to make federal cases of state crimes.
28
EDITH H. JONES, Circuit Judge, joined by GARWOOD, JOLLY, SMITH, DUHE, BARKSDALE, EMILIO M. GARZA and DeMOSS, Circuit Judges, would reverse for the following reasons:
29
This appeal has provided an occasion for our en banc court to consider the breadth of Congress's power to enact criminal laws under the Commerce Clause in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The specific issue is whether Congress breached its Commerce Clause authority in enacting 18 U.S.C. § 922(o), which was the basis for appellant Kirk's conviction for the wholly intrastate possession of a machinegun. Half of the judges participating in this en banc1 rehearing conclude that Lopez has more than mere symbolic significance. Carefully applied, it compels the conclusion that the § 922(o) ban on mere intrastate possession of a machinegun exceeds Congress' authority "[t]o regulate Commerce ... among the several States." U.S. Const., Art. 1, § 8, cl.3. The other half of the participating judges disagree with this conclusion, although their reasoning differs. Kirk's conviction must be affirmed by an equally divided court, but the importance and recurring nature of these issues lead us to publish this opinion.I. BACKGROUND
30
William J. Kirk was charged in a four-count indictment with violations of 18 U.S.C. § 922(o)(1988). The indictment charged Kirk with two counts of unlawful possession of a machinegun (Counts One and Three); and two counts of unlawful transfer of a machinegun (Counts Two and Four).2 The possession counts make no mention of interstate commerce or of any connection between Kirk's machinegun or his possession of it with commerce, interstate or otherwise. Kirk moved to dismiss the indictment, contending in part that § 922(o) exceeds Congress' delegated powers under the Commerce Clause in that it punishes the transfer or possession of a machinegun with no showing that the intrastate transfer or possession affects interstate commerce. The district court denied the motion to dismiss. Kirk then pled guilty to Count One for unlawful possession of a machinegun, reserving his right to appeal the denial of his pre-trial constitutional challenge to § 922(o).
31
A divided panel of this court rejected Kirk's constitutional challenge and affirmed his conviction. United States v. Kirk, 70 F.3d 791 (5th Cir.1995), reh'g en banc granted, 78 F.3d 160 (5th Cir.1996). Because this case poses similar constitutional questions to those presented in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), we granted rehearing en banc, vacating the panel opinion to determine the constitutionality of the § 922(o) ban on the possession of machineguns.3
II. PREFACE
32
The language and legislative history of § 922(o) and a brief discussion of Lopez form a backdrop for further analysis.
A. Section 922(o)
33
In 1986 Congress amended the Gun Control Act of 1968, 18 U.S.C. §§ 921-28, with the passage of the Firearms Owners' Protection Act (FOPA), Pub.L. No. 99-308, 100 Stat. 449 (1986). Section 102(9) of FOPA added § 922(o) to the existing statute. 100 Stat. at 453. Section 922(o) provides:
34
(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
35
(2) This subsection does not apply with respect to--
36
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or
37
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.
38
18 U.S.C. § 922(o). Section 922(o) became effective May 19, 1986. See FOPA § 110(c), 100 Stat. at 461 (effective date).
39
The legislative history of § 922(o) is sparse. See David T. Hardy, The Firearms Owners' Protection Act: A Historical and Legal Perspective, 17 Cumb. L.Rev. 585, 669-71 (1987). Section 922(o) was added to FOPA as a last minute amendment on the House floor and its provisions were not debated. See United States v. Wilks, 58 F.3d 1518, 1519 (10th Cir.1995); United States v. Lopez, 2 F.3d 1342, 1356 (5th Cir.1993), aff'd, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); 132 Cong. Rec. H1750-52 (daily ed. April 10, 1986); Hardy, supra, at 670. The only apparent explanation for § 922(o) is a statement from its sponsor, Representative Hughes, who, rushing to explain his position before the time for debate expired, stated, "I do not know why anyone would object to the banning of machineguns." 132 Cong. Rec. H1750 (daily ed. April 10, 1986). No other reference to § 922(o) appears in committee reports or elsewhere, with the exception of a brief Senate colloquy primarily concerned with the scope of the provision's exemptions as they relate to machinegun manufacturers and government-authorized machineguns. 132 Cong. Rec. S5358-62 (daily ed. May 6, 1986); Hardy, supra, at 670-71 & nn. 462-463.4 Thus, the legislative history of § 922(o) itself provides no insight into the relationship between § 922(o) and interstate commerce.
B. United States v. Lopez
40
In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court considered the constitutionality of 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V), which banned the possession of firearms near a school and which had been overturned in this court. United States v. Lopez, 2 F.3d 1342 (5th Cir.1993).5 The Court recognized that Congressional power over interstate commerce under the Commerce Clause extends to (1) legislation regulating "the use of the channels of interstate commerce;" (2) laws regulating and protecting "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities;" and (3) regulations of intrastate activities that have a substantial effect on interstate commerce. Id. at ---- - ----, 115 S.Ct. at 1629-30.
41
Each of these categories of cases represents a distinct way, exemplified by the Court's chosen citations, to describe the impact of federal legislation upon interstate commerce. See United States v. Robertson, 514 U.S. 669, 115 S.Ct. 1732, 131 L.Ed.2d 714 (1995). Before going further, we note that although Lopez does not explicitly abandon the deferential rational basis standard of review, see, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276-80, 101 S.Ct. 2352, 2360-61, 69 L.Ed.2d 1 (1981), neither does the Court defer unblinkingly to Congress's judgment. Indeed, the Court's citations emphasize that it is the judicial duty ultimately to review conformity of legislation to the Commerce Clause. Lopez, 514 U.S. at ---- n. 2, 115 S.Ct. at 1629 n. 2; see also Hodel, 452 U.S. at 311, 101 S.Ct. at 2391-92 ("simply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so.") (Rehnquist, J. concurring in judgment). As Lopez demonstrates, exercise of this duty requires independent judicial scrutiny of the reasons advanced to explain why the regulation is necessary to protect interstate commerce. Even a statutorily imposed requirement of a jurisdictional nexus to interstate commerce will not insulate a provision from judicial review. See, e.g., United States v. Pappadopoulos, 64 F.3d 522, 527 (9th Cir.1995).6
42
Moving to a more detailed consideration of the Lopez categories, regulation of the "channels of interstate commerce," the first category, is limited to direct regulation of the interstate channels themselves. The cases cited in Lopez, or by its reference to Perez v. United States, 402 U.S. 146, 148, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971), to describe the first category involve statutes that contain an express jurisdictional nexus element. See, e.g., 18 U.S.C. §§ 2312-2315 (interstate shipment of stolen goods); 18 U.S.C. § 1201 (interstate transport of kidnaping victims); United States v. Darby, 312 U.S. 100, 61 S.Ct. 451, 85 L.Ed. 609 (1941) (regulation of working conditions in the production of goods "for interstate commerce"). This category must be limited to legislation that specifically reaches interstate transfers, possessions, and transactions and business "engaged in commerce." United States v. Robertson, supra at ----, 115 S.Ct. at 1733 (goldmine "engaged in commerce").
43
The second category of Commerce Clause power permits laws regulating or protecting instruments of interstate commerce, or persons or things in interstate commerce, even though the threat may derive from intrastate activity. The Court cites in this connection the Shreveport Rate Cases, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), which upheld rate regulation of a railroad engaged in interstate commerce, and Southern Railway Company v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911), permitting regulation of interstate railway safety. The Court also cites a statute criminalizing the destruction of aircraft used in interstate commerce, 18 U.S.C. § 32, and vehicle thefts from interstate shipments, 18 U.S.C. § 659. This category includes regulation or protection pertaining to instrumentalities or things as they move in interstate commerce.
44
With regard to the third category of cases, as the Court put it, "the pattern is clear." Lopez, 514 U.S. at ----, 115 S.Ct. at 1630. Federal regulation of even intrastate economic activity will be sustained if the activity substantially affects interstate commerce. The Court's citations again bear out its purpose. See Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276-280, 101 S.Ct. 2352, 2360-61, 69 L.Ed.2d 1 (1981) (upholding regulation of intrastate coal mining); Perez v. United States, supra (intrastate extortionate credit transactions); Katzenbach v. McClung, 379 U.S. 294, 299-301, 85 S.Ct. 377, 381-382, 13 L.Ed.2d 290 (1964) (restaurants utilizing substantial interstate supplies); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 252-253, 85 S.Ct. 348, 354-355, 13 L.Ed.2d 258 (1964) (inns and hotels catering to interstate guests). All of the cases involved economic regulations or legislation bearing on commercial activity, and in those cases, the intrastate activity either substantially affected interstate commerce, or it had to be regulated in order not to undercut a federal commercial regulatory scheme. Lopez, 514 U.S. at ----, 115 S.Ct. at 1631.7
45
The Court majority agreed that § 922(q) neither regulates "the channels of interstate commerce" nor protects "an instrumentality of interstate commerce or a thing in interstate commerce," id. at ----, 115 S.Ct. at 1630. The problem in Lopez centered on the third category of Commerce Clause power. There are three steps to the Court's analysis of the substantial effects test. The threshold question is whether the local activity sought to be regulated is commercial in nature, or whether its regulation is necessary to effectuate federal regulation of a larger commercial activity. The majority agreed that the ban on possession of a gun in a school zone fails to "substantially affect any sort of interstate commerce." Id. at ----, 115 S.Ct. at 1634. Further, § 922(q) "by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Id. at ---- ----, 115 S.Ct. at 1630-31. The majority easily rejected the notion that the act of possessing a gun in a school zone is subject to federal regulation because, viewed in the aggregate, such acts substantially affect interstate commerce. Lopez, 514 U.S. at ----, 115 S.Ct. at 1631. What this means is that non-commercial intrastate acts may not be deemed commercial, for purposes of extending federal regulation, simply by considering them en masse;8 such activities are only subject to federal regulation if their regulation is essential to a larger economic regulatory scheme. Lopez thus holds that "commercial activity" is not a definitional vacuum waiting to be filled by a creative Congress and judges. While the Court acknowledges that characterizing an intrastate activity as commercial or non-commercial may create some legal uncertainty, 514 U.S. at ----, 115 S.Ct. at 1633, the Court's conclusion regarding the purely criminal provision, § 922(q), caused no interpretive difficulty to the majority. Lopez sends a clear cautionary signal that federal criminalization of intrastate noneconomic activity, when such regulation is not essential to a broader regulation of commercial activity, will have difficulty satisfying the substantial effects basis for Commerce Clause regulation.
46
The second element of the substantial effects test is whether the statute contains a jurisdictional nexus to interstate commerce. Lopez commented on the absence of any jurisdictional nexus requirement in § 922(q) that would insure, through case-by-case inquiry, that a particular firearm possession substantially affects interstate commerce. Lopez illustrated how a jurisdictional nexus requirement could save a statute from Constitutional infirmity by describing United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). The provision at issue in Bass criminalized, inter alia, a felon's possession of a firearm "in commerce or affecting commerce." Former 18 U.S.C. § 1202(a). The government convicted Bass without offering proof of a nexus to interstate commerce. The Court reversed the conviction for this omission and "thus interpreted the statute to reserve the Constitutional question whether Congress could regulate, without more, the 'mere possession' of firearms." Lopez, 514 U.S. at ----, 115 S.Ct. at 1624 (citing Bass, 404 U.S. at 339, n. 4, 92 S.Ct. at 518, n. 4). As previously noted, a jurisdictional nexus requirement does not ipso facto validate a statute against an as-applied Commerce Clause challenge,9 but its existence is reassuring against a facial challenge.
47
The final element of the substantial effects inquiry is whether there are limits in the statute that mark a boundary of some sort between matters of truly national concern and those traditionally subject to state regulation. In this connection, the Court acknowledged that legislative findings, while not legally necessary, would facilitate judicial review of the substantial effects question. Lopez, 514 U.S. at ---- - ----, 115 S.Ct. at 1631-32; Perez, supra, 402 U.S. at 156, 91 S.Ct. at 1362. No such findings accompanied § 922(q), however. The Court also agreed with the Fifth Circuit10 that legislative findings pertaining to previous firearms statutes could not be imported into the analysis of § 922(q). 514 U.S. at ----, 115 S.Ct. at 1632. The Court finally rejected both the "costs of crime" and "national productivity" theories proffered by the federal government to demonstrate substantial interstate commerce effects, and it rejected Justice Breyer's equation of education with commercial activity. 514 U.S. at ---- - ----, 115 S.Ct. at 1632-34. Neither of these attenuated strings of logic, according to Lopez, furnishes any principled limit on federal power in areas such as criminal law enforcement or education, where states have traditionally been sovereign.
III. DISCUSSION
48
On its face, § 922(o) seems a clone of § 922(q), the provisions struck down in Lopez. The statute bans for present purposes "mere possession" of machineguns manufactured or imported after 1986; it is supported neither by a jurisdictional nexus requirement nor by salvaging legislative findings; it is a criminal, not an economic regulatory provision; and it clearly overlaps state and local law enforcement authority. Other circuit courts and other judges in this court, however, have not seen it that way,11 although their reasons for upholding the statute differ significantly. Most of these cases err by assuming that every intrastate possession of machineguns involves interstate commerce. That error leads to misapplication of the first and second categories of Commerce Clause cases described by Lopez, and to an untenable distinction between § 922(o) and § 922(q) when the third Lopez category is considered. The errors in other cases are best exposed by our analysis,12 which will discuss § 922(o) under each category of Lopez, and which takes Lopez seriously as establishing at least an outer boundary on Congress's criminal jurisdiction under the Commerce Clause.13
49
A. Does § 922(o) Regulate "Channels of" or "Things in" Interstate Commerce?
50
The Government contends that § 922(o) may be justified under either of the first two Lopez categories, as a regulation of the channels of interstate commerce or of a thing in interstate commerce. There is circuit court support for each position. See United States v. Wilks, 58 F.3d 1518 (10th Cir.1995) (upholding § 922(o) as regulation of a thing in interstate commerce); United States v. Rambo, 74 F.3d 948 (9th Cir.1996) (§ 922(o) valid as regulation of channels of interstate commerce); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996) (§ 922(o) valid under all three Lopez categories); but see United States v. Kenney, 91 F.3d 884 (7th Cir.1996) (§ 922(o) upheld only under substantial effects prong of Lopez ).
1. The Channels of Interstate Commerce
51
Recourse to the first two Lopez categories suffers initially, however, from a serious factual error. Proponents of the constitutionality of § 922(o) assume that every possession of a machinegun manufactured after May 19, 1986, excepting only the narrow class of possessions permitted in the statute, connotes that the gun traveled or was transferred in interstate commerce. These decisions overlook that an automatic weapon may be created by modifying a semiautomatic weapon, see United States v. Jones, 976 F.2d 176, 178 (4th Cir.1992), cert. denied 508 U.S. 914, 113 S.Ct. 2351, 124 L.Ed.2d 260 (1993) (describing home conversion of shotguns), or that it may evolve from ordinary wear and tear on a semiautomatic firearm. In United States v. Anderson, 885 F.2d 1248, 1250-51 (5th Cir.1989) (en banc ), this court recognized that "[s]everal of the most popular shotgun models, many handguns, and not a few rifles" can by "either wear and tear or a simple operation" become "machineguns" within the statutory definition. Section 922(o) would therefore prohibit the simple possession of an ordinary semi-automatic pistol whose sear wore off in 1987. Shorn of the misunderstanding that illegal possession cannot occur without illegal transfer14, § 922(o) plainly reaches mere intrastate possession of machineguns as well as possession of machineguns which have illegally moved or been transferred in interstate commerce. Any decision upholding § 922(o) under Lopez must come to grips with this reality.
52
Rambo, for instance, seeks to justify § 922(o) as regulating the channels of interstate commerce because it is "an attempt to prohibit the interstate transportation of a commodity through the channels of commerce." Rambo, 74 F.3d at 951, citing Lopez, 514 U.S. at ----, 115 S.Ct. at 1630. But because § 922(o) also prohibits purely intrastate possession of machineguns, Rambo 's logic proves too much. The first Lopez category, as earlier described, included cases that were distinguished by express jurisdictional nexus requirements to movements or transactions in interstate commerce. In Kenney, the court rejected the channels of commerce rationale for § 922(o) on this basis:
53
... although it may be true that Congress must regulate intrastate transfers and even mere possessions of machineguns in aid of its prerogative of preventing the misuse of the channels of interstate commerce, the regulation still regulates much more than the channels of commerce.
54
91 F.3d at 889.
55
Lopez summarily rejected the argument that banning firearm possession in school zones regulates the channels of commerce. Section 922(o) does not more clearly express a nexus to channels of commerce than did its virtual clone, § 922(q), the Lopez provision. To disregard the similarity of the provisions trifles with Lopez. Section 922(o) is limited neither to transfers nor to possession in or even affecting interstate commerce. It criminalizes, as in this case, the mere possession of a machinegun independent of any type of transfer. This provision does not regulate the channels of interstate commerce. Decisions like Rambo and the panel opinion, in holding otherwise, have distorted the channels of commerce rationale and are attempting to read a statute which does not exist.
56
Cases relying on the channels of commerce rationale also misplace emphasis on the temporal limit on the possession ban and the dangerousness of the product. Neither of these characteristics more closely aligns § 922(o) with a regulation of the channels of interstate commerce. The grandfather clause of the ban applies it only to machineguns manufactured or imported after May of 1986, but that feature fails to enhance its relation to interstate commerce.15 After 1986, both interstate and wholly intrastate private possessions are prohibited, yet there are no Congressional findings that this drastic impact upon intrastate activity was connected to or mandated by a relation to the channels of interstate commerce. Similarly, the fact that machineguns are a dangerous commodity does not place them more or less within the channels of commerce for purposes of federal regulation. United States v. Bishop, 66 F.3d 569, 587 n. 28 (3d Cir.1995) ("The dangerousness of the object is not the source of Congressional power; the connection to interstate commerce is.") Baseball cards as well as toxic chemicals can be regulated by Congress only if there is a necessary relationship to interstate commerce. The argument based on dangerousness is more closely attuned to justifying a national police power than a national commerce power. Lopez reminded us that the Constitution does not confer a general police power upon the federal government. Lopez, 514 U.S. at ----, 115 S.Ct. at 1634.
2. Things in Interstate Commerce
57
The flawed premise underlying regulating machineguns as "things in interstate commerce" is that they are by their nature a commodity "transferred across state lines for profit by business entities." Wilks, 58 F.3d at 1521 (citation omitted). We agree again with the Seventh Circuit's criticism of this reasoning, because "the regulation is much broader than the category." Kenney, 91 F.3d at 889. The second Lopez/Perez category, as previously explained, includes regulations of instrumentalities or things--such as interstate transportation rates and safety regulations--whose nexus to interstate commerce is obvious. Thus, again to quote Kenney:
58
The Wilks court's observation that "[t]he interstate flow of machineguns 'not only has a substantial effect on interstate commerce; it is interstate commerce,' " 58 F.3d at 1521 [ (quoting United States v. Hunter, 843 F.Supp. 235, 249 (E.D.Mich.1994)) (emphasis in original) ], is correct as far as it goes, but it does not address the different question of the propriety of § 922(o)'s regulation of intrastate possession and transfer.
59
91 F.3d. at 889.
60
Criminal possession of a machinegun after May 19, 1986 under § 922(o) is not dependent on or related to the movement of the machinegun in interstate commerce, and it is not "bound up with interstate attributes." Wilks, 58 F.3d at 1521. Further, not all commerce is interstate commerce, as commerce "which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other States" is not commerce within the meaning of the Commerce Clause. Gibbons v. Ogden, 9 Wheat. 1, 22 U.S. 1, 194, 6 L.Ed. 23 (1824). The Wilks reasoning makes the things in commerce basis of Commerce Clause regulation limitless, contrary to its purpose.
61
Nor are we persuaded that § 922(o) can be upheld on the basis of legislative findings--eighteen years old when § 922(o) was enacted--contained in the Omnibus Act16 and the Gun Control Act of 1968.17 Cases such as Wilks have sought to enhance the things in commerce rationale by describing § 922(o) as an incremental development in a seamless web of federal firearm regulation. Wilks, 58 F.3d at 1521-22. But as explained in detail by Judge Garwood's opinion in Lopez, all previous federal gun control laws have been expressly tied to the conduct of the firearms business, a business whose inter- and intra-state activities are clearly commercial. See Lopez, 2 F.3d at 1348-57. The Supreme Court in Lopez approved this court's reading of the general legislative history and pattern of previous federal firearms legislation, Lopez, 514 U.S. at ----, 115 S.Ct. at 1632, and refused to rest on Congressional findings from other statutes to justify § 922(q). Id. at ----, 115 S.Ct. at 1632. Like the Supreme Court in Lopez, and unlike Wilks, we find reliance on Congressional findings from previous federal firearms legislation inappropriate to support the § 922(o) possession ban. See Lopez, 2 F.3d at 1357 n. 31.
62
Reliance on findings from other legislation not only contradicts the Supreme Court, it is a misleading indicator of the relevant gun control law. The Congressional findings relating to FOPA indicate that the Act's purpose was to secure the rights of citizens to possess firearms and to ensure that no "undue or unnecessary Federal restrictions " are placed on citizens "with respect to the acquisition, possession or use of firearms." FOPA § 1(b)(2), 100 Stat. at 449 (emphasis added) (quoting Gun Control Act of 1968 § 101, 82 Stat. at 1213-14 (1968)).18 Neither the language of § 922(o) nor its legislative history provides any indication that Congress viewed the prohibition on possession of machineguns as an essential part of a broader regulatory scheme or that Congress considered the relationship between the ban on possession of machineguns and interstate commerce.
63
In comparison to § 922(o), which lacks any reference to interstate commerce, Congress specifically tied other regulations enacted concurrently with § 922(o) to interstate commerce. FOPA § 102, 100 Stat. at 451-52.19 Two other provisions contained in § 922 were amended and one new subsection was added to § 922(o). FOPA § 102, 100 Stat. at 451-53. Congress thus maintained the "basic jurisdictional structure" found in previous firearms legislation, which required the "licensing of all firearms dealers and manufacturers, ... and in all other instances [provided] an express nexus either to interstate commerce or to the activity of, or dealing with, federally licensed dealers or manufacturers...." Lopez, 2 F.3d at 1354. Unlike § 922(o) and (q), these other regulations, however, are grounded in either Congress' taxing powers, or are expressly tied to interstate or foreign commerce. Id. at 1354-57. Neither the language of § 922(o) nor its legislative history supports a finding that the ban on possession of machineguns regulates only machineguns connected with interstate commerce. See supra part II.A. Section 922(o) stands isolated from the rest of the FOPA because it conspicuously lacks either a nexus to commerce or the support of findings that banning mere intrastate possession of machineguns is essential to effectuate federal regulation. Section 922(o) cannot be upheld as a permissible regulation of a "thing" in interstate commerce.20
64
B. Does § 922(o) "Substantially Affect" Interstate Commerce?
65
The essential question in this case as in Lopez becomes whether § 922(o) represents a valid exercise of Congressional authority to regulate an activity "substantially affecting" interstate commerce. "Where economic activity substantially affects interstate commerce, legislation regulating that activity will be sustained." Lopez, 514 U.S. at ----, 115 S.Ct. at 1630.
66
The Government contends that § 922(o) has the requisite effect, as it is part of a comprehensive approach to the regulation of machineguns and that a single intrastate possession or transfer of a machinegun is nationally significant because of the cumulative effect such a transaction has on the supply-and-demand for machineguns. In a similar vein, Kenney argues that both the nature of § 922(o) and the history of federal firearms legislation support the provision's consistency with the post-Lopez scope of the Commerce Clause. Kenney first analogizes the banning of private post-1986 machinegun possession to the farmer's harvest of excessive wheat in Wickard v. Filburn, 317 U.S. at 125, 63 S.Ct. at 89, and concludes, "... there is a rational basis to regulate the local conduct of machinegun possession, including possession resulting from home manufacture, to effectuate § 922(o)'s purpose of freezing the number of legally possessed machineguns at 1986 levels, an effect that is closely entwined with regulating interstate commerce." 91 F.3d at 890. Kenney also describes the possession ban as rooted in a sixty-year history of federal machinegun regulation and thus as an incremental step in federal firearms regulation; it is a measure commanding "deference to Congress's accumulated institutional expertise." Id.
67
Among the three elements of Lopez 's substantial effects test, the first and most critical is that of characterization: whether § 922(o) fulfills the mission of regulating interstate commerce as (1) a regulation of economic activity which, although itself local, has substantial effect on interstate commerce, or (2) a regulation of activity which is essential to maintaining a larger, interstate regime of economic regulation. Neither Kenney nor the government in supporting § 922(o) has characterized it as a regulation of economic activity. It is not. It is "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms." Lopez, 514 U.S. at ---- - ----, 115 S.Ct. at 1630-31.
68
Defenders of § 922(o) argue instead that the possession ban is an essential part of the regulation of "commercial activity," either to insure federal control of the market for machineguns or to enforce a freeze on the number of available machineguns. See, e.g. Beuckelaere, 91 F.3d at 785; Kenney, 91 F.3d at 890. No doubt Congress has undertaken fully to regulate the business of firearms dealing, insofar as sales and transfers in or affecting commerce are concerned.21 But as we have repeatedly noted, mere intrastate possession of a machinegun does not necessarily involve a transfer or an economic transaction of any kind.22
69
Moreover, the analogy to Wickard is flawed. In Wickard, the government's agricultural program aimed to control and support prices in the wheat market. Filburn's consumption of home-grown wheat substituted for the controlled wheat, impairing to that extent the price support effort. Section 922(o), by contrast, intends to extirpate any domestic commercial market for machineguns manufactured or imported after 1986. Even if this goal constitutes a legitimate regulation of interstate commerce, it does not follow that criminalizing purely private, intrastate possession is necessary to eliminate the market. Section 922(o) also prohibits transfers of machineguns and, to the extent it represents a permissible exercise of Commerce Clause power,23 that prohibition aims directly and completely at commercial activity in machineguns. Private possession of a machinegun does not involve a market activity, and there is no legitimate market in which a substitution effect would occur.
70
Another way of explaining the superfluousness of the § 922(o) ban on possession is to compare firearms regulation to the narcotics trafficking laws. Not only are most of those criminal provisions also expressly tied to the commerce in illegal controlled substances, but Congress also made extensive findings to establish the necessary relationship of possession and intrastate trade to the overall scheme. See, e.g., United States v. Leshuk, 65 F.3d 1105, 1112 (4th Cir.1995); Lopez, 2 F.3d at 1367, n. 51; United States v. Lopez, 459 F.2d 949, 951-53 (5th Cir.), cert. denied sub nom. Llerena v. United States, 409 U.S. 878, 93 S.Ct. 130, 34 L.Ed.2d 131 (1972).24 The nature of controlled substances supports Congress's findings: they are fungible, and their intrastate, interstate or imported origin is often impossible to discern. Firearms, including machineguns, are identifiable and traceable. Banning private, intrastate machinegun possession is not an essential link in the chain of federal regulation of firearms dealing.
71
Kenney also asserts that because Congress has historically regulated firearms and has evinced particular interest in regulating machineguns, its "accumulated institutional expertise" justifies § 922(o). This argument might be called "the nose under the camel's tent" theory of Commerce Clause power: once Congress has begun to regulate a particular activity, courts should defer to any extensions of regulation that Congress legislates. Surely this position renders any theoretical limit on the enumerated Commerce Clause power nugatory.
72
Because we have concluded that mere intrastate possession is neither an economic activity nor an intrastate activity whose regulation is essential to a larger commercial regulatory regime, § 922(o) cannot pass muster under the Lopez substantial effects test. Reinforcing this conclusion, although not necessary to it, are the results of the other two parts of the test, which deal with Congressional findings and the limits on federal authority.
73
If Congress had made findings explaining the connection of mere intrastate possession of machineguns to interstate commerce, or if there were an expressly required nexus between such possession and commerce,25 § 922(o) might be vindicated under the second Lopez prong. These features are lacking. Whatever the effect a single intrastate possession of a machinegun has on economic activity in firearms, the text and legislative history of § 922(o) do not support any conclusion that Congress considered such effects or viewed § 922(o) as part of a comprehensive approach to federal regulation of commerce in machineguns. As discussed previously, § 922(o) was inserted into FOPA with virtually no discussion of its content and with absolutely no discussion of its place in the broad scheme of federal firearms regulations. See supra part II.A. Like § 922(q) found unconstitutional in Lopez, no Congressional findings attest that § 922(o) is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Lopez, 514 U.S. at ----, 115 S.Ct. at 1631. No studies, testimony or evidence of any other sort--Congressional or otherwise--is adduced in favor of § 922(o). Nor does § 922(o) contain a "jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce." Id. at ----, 115 S.Ct. at 1631. To infer in the face of this void that regulation of intrastate possession is essential to effectively regulate interstate traffic in machineguns states a naked conclusion, a fiat without supporting facts. Congress has not helped us to discern a connection between the possession ban and interstate commerce which is otherwise invisible to the naked eye. Lopez, 514 U.S. at ----, 115 S.Ct. at 1632.
74
Finally, like § 922(q), § 922(o) intrudes upon the traditional police powers of the states and violates Lopez 's third mandate for a substantial-effects regulation of intrastate activity because it affords no logical demarcation between the national and local interests. Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 1720, 123 L.Ed.2d 353 (1993)(states have primary authority for defining and enforcing criminal law); see Lopez, 514 U.S. at ---- n. 3, 115 S.Ct. at 1631 n. 3; Bass, 404 U.S. at 349-50, 92 S.Ct. at 523-24. Section 922(o) would punish a local resident for the mere possession of a machinegun acquired after 1986 with "no requirement that his possession of the [machinegun] have any concrete tie to interstate commerce." Lopez, 514 U.S. at ----, 115 S.Ct. at 1634. The Supreme Court avoided such a result in Bass. Bass, 404 U.S. at 349-50, 92 S.Ct. at 523-24. To uphold § 922(o), a purely criminal law, with no nexus to interstate commerce, whose enforcement intrudes upon traditional police powers of the states, would convert the commerce power into a reserved "general federal police power." Id. at ---- - ----, 115 S.Ct. at 1632-33; see also id. at ----, 115 S.Ct. at 1638 (Kennedy, J., concurring)("Were the Federal Government to take over the regulation of entire areas of traditional state concern, areas having nothing to do with the regulation of commercial activities, the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory."). The rationale that Congress can, on a blank slate, criminalize possession under the interstate Commerce Clause in order to regulate "the demand side of the market" can be applied to the possession of anything. Following Lopez, § 922(o) cannot be upheld as a regulation which substantially affects interstate commerce.
CONCLUSION
75
Regardless of one's view of the wisdom of banning the private possession of machineguns, the question before this court is whether the Commerce Clause grants Congress the authority to ban private, intrastate possession of a machinegun with no showing that the prohibition is connected in any way to interstate commerce or is part of a broader federal regulatory scheme. Congress's commerce powers are broad, reaching even Roscoe Filburn's wheat field in Ohio. Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). Lopez, however, closely controls this case. Lopez does not permit Congress, acting pursuant to the Commerce Clause, to criminalize the mere intrastate possession of machineguns without some indication that the possession ban is necessary to the regulation of, or has some other substantial tie to, interstate commerce. Section 922(o)'s ban on the mere possession of a machinegun exceeds Congress's authority under the Commerce Clause.
*
Judge Benavides was recused from consideration of this case
1
See United States v. Rybar, 103 F.3d 273 (3d Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Hale, 978 F.2d 1016 (8th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123 L.Ed.2d 174 (1993)
1
A brief survey of recent federal cases reveals many examples. See, e.g., Smith v. United States, 508 U.S. 223, 224, 113 S.Ct. 2050, 2052, 124 L.Ed.2d 138 (1993) (defendant in possession of a fully automatic MAC-10 and MAC-11 machine gun attempts to buy cocaine by selling the MAC-10, a gun that "apparently is a favorite among criminals" because it "can fire more than 1,000 rounds per minute"); United States v. Powell, 469 U.S. 57, 59, 105 S.Ct. 471, 473, 83 L.Ed.2d 461 (1984) (search of defendant's car yields, among other things, two kilograms of cocaine and a machine gun); County Court v. Allen, 442 U.S. 140, 143, 99 S.Ct. 2213, 2217, 60 L.Ed.2d 777 (1979) (loaded machine gun and more than a pound of heroin found in the trunk of defendants' car); United States v. Jones, 102 F.3d 804, 806 (6th Cir.1996) (cocaine dealers attempt to sell federal agents a MAC-10, a MAC-11, and an AK-47, two of which have obliterated serial numbers); United States v. Agis-Meza, 99 F.3d 1052, 1054 (11th Cir.1996) (two defendants charged with violation of § 922(o) plead guilty to possession of marijuana); United States v. Alerta, 96 F.3d 1230, 1233 (9th Cir.1996) (two brothers arrested for methamphetamine distribution are found in possession of two fully automatic weapons: a MAC-10 and a converted TEC-9); United States v. Hawthorne, 94 F.3d 118, 120 (4th Cir.1996) (automatic pistols used during drug transactions); U.S. v. Ulloa, 94 F.3d 949, 950-51 (5th Cir.1996) (defendant trading cocaine for five MAC-10's, 48 M-16's, one UZI, and other weapons), petition for cert. filed, No. 96-6914 (U.S. Nov. 25, 1996); United States v. Cannon, 88 F.3d 1495, 1505 (8th Cir.1996) ("The record in this case contains evidence that a machine gun is a drug dealer's most prized possession."); United States v. Moskovits, 86 F.3d 1303, 1311 (3d Cir.1996) (affirming a finding that a defendant convicted of distributing cocaine committed perjury when he denied owning a machine gun), cert. denied, --- U.S. ----, 117 S.Ct. 968, 136 L.Ed.2d 853 (1997); United States v. Blue, 78 F.3d 56, 58 (2d Cir.1996) (DEA agents discover a machine gun under a mattress while searching an apartment during a cocaine investigation); United States v. Garcia, 77 F.3d 274, 275 (9th Cir.1996) (sheriff's deputies discover a machine gun in "a typical stash house where drugs are stored and weapons are kept to protect the merchandise"); United States v. Buchanan, 70 F.3d 818, 824-25 (5th Cir.1995) (9mm fully automatic pistol found in car with 280 grams of crack cocaine), cert. denied, --- U.S. ----, 116 S.Ct. 1366, 134 L.Ed.2d 532 (1996); United States v. Murphy, 69 F.3d 237, 239 (8th Cir.1995) (defendant convicted of attempt to manufacture methamphetamine, use of a firearm in relation to a drug offense, and possession of a machine gun), cert. denied, --- U.S. ----, 116 S.Ct. 1032, 134 L.Ed.2d 109 (1996); United States v. Brantley, 68 F.3d 1283, 1286 (11th Cir.1995) (defendant convicted of both possession of cocaine with intent to distribute and use of a fully automatic firearm in the commission of a drug offense), cert. denied, --- U.S. ----, 116 S.Ct. 964, 133 L.Ed.2d 885, --- U.S. ----, 116 S.Ct. 1334, 134 L.Ed.2d 484 (1996); United States v. Zermeno, 66 F.3d 1058, 1060 (9th Cir.1995) (marijuana, packaging materials, money counters, camouflage gear, two assault rifles, a machine gun, and 1,550 rounds of ammunition found in "stash house"); United States v. Luciano-Mosquera, 63 F.3d 1142, 1149 (1st Cir.1995) (M-16 carried onto beach during off-loading of cocaine base from boat), cert. denied, --- U.S. ----, 116 S.Ct. 1879, 135 L.Ed.2d 174 (1996); United States v. Melendez, 60 F.3d 41, 44 (2d Cir.1995) (heroin trafficking operation accumulates a number of machine guns and other firearms that were used to protect its operations), cert. denied, --- U.S. ----, 116 S.Ct. 1020, 134 L.Ed.2d 99 (1996), --- U.S. ----, 116 S.Ct. 900, 133 L.Ed.2d 834 (1996), --- U.S. ----, 116 S.Ct. 429, 133 L.Ed.2d 345 (1995), --- U.S. ----, 116 S.Ct. 258, 133 L.Ed.2d 182 (1995); United States v. Messino, 55 F.3d 1241, 1245 (7th Cir.1995) (cocaine dealer sells a fully automatic machine gun with a silencer to a confidential informant); United States v. Davis, 53 F.3d 638, 639 (4th Cir.1995) (probation of defendant who pled guilty to distributing cocaine revoked after he is seen carrying a machine gun on a college campus); United States v. Taffe, 36 F.3d 1047, 1048-49 (11th Cir.1994) (UZI machine pistol equipped with a silencer used in heist of three bales of cocaine and fired at police officers); United States v. Thomas, 12 F.3d 1350, 1361-62 (5th Cir.1994) (AR-15 rifle modified to fire as a machine gun used by defendant for protection because of "his line of business" in conspiracy to distribute cocaine, amphetamine, methamphetamine and marijuana), cert. denied, 511 U.S. 1095, 114 S.Ct. 1861, 128 L.Ed.2d 483 (1994), 511 U.S. 1114, 114 S.Ct. 2119, 128 L.Ed.2d 676 (1994); United States v. Garcia, 997 F.2d 1273, 1277 (9th Cir.1993) (machine gun used to protect and embolden drug dealer found in house with a kilo of heroin, 4.5 kilos of cocaine, and 1.24 grams of cocaine base); United States v. Sims, 975 F.2d 1225, 1230 (6th Cir.1992) (ATF agents discover two AR-15 rifles, converted to fire fully automatically, and 257 rounds of ammunition in the back seat of a car in connection with the arrest of defendants attempting to buy $337,500 worth of cocaine); United States v. Capote-Capote, 946 F.2d 1100, 1102-04 (5th Cir.1991) (machine gun used to protect kilogram of cocaine), cert. denied, 504 U.S. 942, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992); United States v. Moore, 919 F.2d 1471 (10th Cir.1990) (loaded British Sten machine gun found in open closet of room containing cocaine, ziplock bags, weighing scale, dealing records, $3,400, and a calculator); United States v. Rogers, 921 F.2d 1089 (10th Cir.1990) (same facts as recited in Moore ), modified, 925 F.2d 1285 (10th Cir.), cert. denied, 501 U.S. 1211, 111 S.Ct. 2812, 115 L.Ed.2d 985 (1991); United States v. Lucas, 932 F.2d 1210, 1223-24 (8th Cir.) (along with thirteen other guns, machine gun "kept at the ready" to safeguard crack house and facilitate illegal manufacture and trade in crack cocaine), cert. denied, 502 U.S. 869, 112 S.Ct. 199, 116 L.Ed.2d 159 (1991), 502 U.S. 949, 112 S.Ct. 399, 116 L.Ed.2d 348 (1991), 502 U.S. 991, 112 S.Ct. 609, 116 L.Ed.2d 632 (1991), 502 U.S. 1100, 112 S.Ct. 1186, 117 L.Ed.2d 429 (1992); United States v. Matra, 841 F.2d 837, 839 (8th Cir.1988) (machine gun, along with eight other weapons, made the crack house a "veritable fortress")
1
Judge Benavides was recused from consideration of this case
2
For purposes of 18 U.S.C. § 922(o), a "machinegun" is defined as "any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person." 26 U.S.C. § 5845(b)(1988); see 18 U.S.C. § 921(a)(23)
3
With certain exceptions, § 922(o) bans both the transfer and possession of machineguns. See infra part II. We need not consider here the constitutionality of § 922(o)'s restriction on the transfer of machineguns. The prohibition on the transfer of machineguns raises different constitutional questions than those raised by § 922(o)'s ban on their mere possession
4
Following a colloquy between Senators Hatch and Dole concerning the exemptions contained in § 922(o), Senator Metzenbaum expressed concern that the colloquy did not express the correct interpretation of the amendment. In partial response, Senator McClure stated: "I know that the Senator [Metzenbaum] from Ohio has interposed a reservation with respect to my request. I take this time only to say to the Senator from Ohio that this discussion [concerning § 922(o) ] is up at all because the other body injected some language at the very last minute, literally, of their debate, and there is no legislative history as to what that language means. There are a substantial number of House Members as well as other interested parties who have asked questions about what it means; and what we are trying to do is provide some legislative history as to our understanding of what the House provision means, since the House itself had no legislative history on this subject." 132 Cong. Rec. S5361-62 (daily ed. May 6, 1986)
5
Section 922(q)(1)(A) was enacted as part of the Gun-Free School Zone Act of 1990 and provides: "It shall be unlawful for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone."
6
"... where Congress seeks to regulate a purely intrastate noncommercial activity that has traditionally been subject to exclusive regulation by state or local government, and where the connection of the regulated activity as a whole to interstate commerce is neither readily apparent nor illuminated by express congressional findings, the government must satisfy the jurisdictional requirement by pointing to a 'substantial' effect on or connection to interstate commerce." Pappadopoulos, 64 F.3d at 527 (holding arson directed against a private home not sufficiently related to interstate commerce)
7
See also United States v. Robertson, supra, ("The 'affecting commerce' test was developed in our jurisprudence to define the extent of Congress's power over purely intrastate commercial activities that nonetheless have substantial interstate effects."); United States v. DiSanto, 86 F.3d 1238, 1245 (1st Cir.1996)
8
This reasoning does not undermine Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942), because the farmer's activity there, albeit local, directly distorted the federally controlled market for wheat. Lopez, 514 U.S. at ----, 115 S.Ct. at 1630. Nevertheless, the Court's analysis does not hold that any intrastate commercial activity is regulable by Congress simply because it is commercial--the substantial effects test must be met to ensure a sufficient connection with interstate commerce
9
See United States v. Collins, 40 F.3d 95, 99-101 (5th Cir.1994) (robbery of an individual victim lacks sufficient nexus to interstate commerce to prosecute under Hobbs Act)
10
United States v. Lopez, 2 F.3d at 1366
11
United States v. Kenney, 91 F.3d 884 (7th Cir.1996); United States v. Beuckelaere, 91 F.3d 781 (6th Cir.1996); United States v. Rambo, 74 F.3d 948 (9th Cir.1996); United States v. Wilks, 58 F.3d 1518 (10th Cir.1995); United States v. Rybar, 103 F.3d 273 (3d Cir.1996)
12
Judge Parker and Judge Higginbotham imply that this analysis strays from the rational basis test for evaluating the constitutionality of legislation. Not so. First, as a general principle, following Lopez, the rational basis test will apply the data created, referenced or expressed by Congress in conjunction with an enactment to the three aspects of federal commerce clause power described in Lopez. That is what we have done here, hampered by the absence of data from Congress concerning how banning the possession of machineguns nationwide involves or substantially affects interstate commerce. Second, the rational basis test assumes the existence of data created or referenced in the legislative process whose rationality can be analyzed. Here, there are no relevant data relating the ban on mere intrastate possession of machineguns by § 922(o) to Congress's interstate commerce jurisdiction. There are no legislative findings, no committee reports, and no pertinent Congressional debate that "would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye...." Lopez, 514 U.S. at ----, 115 S.Ct. at 1632. Most important, there is neither an explicit jurisdictional nexus requirement nor any other tie to interstate commerce apparent from the statutory architecture. It is not this court's responsibility or place to invent a rational basis for Congress. Third, the absence of such data mirrors the situation before the Court in Lopez and reinforces the consistency between these two cases. In Lopez, Congress had not endeavored in § 922(q) to express any connection between interstate commerce and possession of a gun in a school zone. Unlike the majority, the dissent there was willing to create a factual backdrop for the statute, just as Judges Parker and Higginbotham seek to do here
13
It would be a mistake to argue that because Justices Kennedy and O'Connor concurred in Lopez and joined a separate writing, the Lopez analysis is not definitive. The two justices joined and endorsed Justice Rehnquist's majority opinion. ("As the Chief Justice explains, unlike the earlier cases to come before the Court, here neither the actors nor their conduct have a commercial character, and neither the purposes nor the design of the statute have an evident commercial nexus.") Lopez, 514 U.S. at ----, 115 S.Ct. at 1640 (Kennedy, J., citing Rehnquist opinion)
14
United States v. Kirk, 70 F.3d 791, 796 (5th Cir.1995); Rambo, supra, 74 F.3d at 952 (same); Beuckelaere, supra, 91 F.3d at 783 (same)
15
The effect of the grandfather clause does, paradoxically, assure a nexus between interstate commerce and criminal possession of pre-1986 unlawfully possessed machineguns, because, as this court's Lopez opinion noted, pre-1986 regulatory laws expressly embodied a jurisdictional nexus to commerce. See Lopez, 2 F.3d at 1356, n. 29
16
Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197 (1968)
17
Gun Control Act of 1968, Pub.L. No. 90-618, 82 Stat. 1213 (1968)
18
Additionally, § 1 of FOPA contains Congressional findings that the rights of citizens "to keep and bear arms under the second amendment of the United States Constitution ... require[s] additional legislation to correct existing firearms statutes and enforcement policies." FOPA § 1(b)(1)(A), 100 Stat. at 449
19
Section 922(g) was amended to provide that it would be unlawful for certain persons (as defined by § 922(g))--"to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." FOPA § 102, 100 Stat. at 452
Section 922(h) was replaced in its entirety and states: "It shall be unlawful for any individual, who to that individual's knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment--(1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or (2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Id.
Section 922(n) was added to § 922 and provides: "It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate commerce." Id.
20
Section 922(o) also does not regulate an "instrumentality" of interstate commerce. Like § 922(q) in Lopez, § 922(o) regulates mere possession of a machinegun, regardless of its movement in interstate commerce. See Lopez, 514 U.S. at ----, 115 S.Ct. at 1630; see also Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359, 28 L.Ed.2d 686 (1971)(aircraft are instrumentalities); Houston & Shreveport R. Co. v. United States, 234 U.S. 342, 351, 34 S.Ct. 833, 836, 58 L.Ed. 1341 (1914)(interstate carriers are instruments of interstate commerce). Section 922(o) therefore fails to regulate an instrumentality of interstate commerce
21
See generally Lopez, 2 F.3d 1342, 1348-1360 (Garwood, J.), reciting the history of federal firearms legislation
22
Taking a different slant at the substantial effects test, Judge Higginbotham's novel approach to the test pays verbal obeisance to Lopez while seriously undermining it. Judge Higginbotham posits that rational basis review should lead federal courts to uphold the possession ban based on "facts ... within our [judges'] easy reach." Lacking any data from the legislative process, his opinion stitches together bits of news articles, statistics, and Congressional testimony from unrelated hearings to conclude that Congress might have banned machinegun possession to stem the illegal drug trade. His is an interesting empirical creation, but methodologically it follows Justice Breyer's dissent in Lopez. More troubling, Judge Higginbotham's opinion begs the question: it never explains why banning the wholly intrastate, non-crime-related, noncommercial personal possession of a machinegun is reasonably or substantially necessary to control use of these firearms in the illegal drug trade or other interstate commerce. Unlike the Lopez majority, his opinion ultimately substitutes wholesale deference to Congress for any attempt to define the boundaries of the commerce clause, even in noncommercial criminal statutes like § 922(o)
23
Not all transfers are commercial in nature. Transfers by gift or by succession would not be
24
See United States v. Genao, 79 F.3d 1333 (2d Cir.1996) (upholding 21 U.S.C. §§ 841, 846); United States v. Leshuk, 65 F.3d 1105 (4th Cir.1995) (21 U.S.C. § 841(a)(1)); United States v. Clark, 67 F.3d 1154 (5th Cir.1995) (upholding 21 U.S.C. § 860), cert. denied, --- U.S. ----, 116 S.Ct. 1432, 134 L.Ed.2d 554 (1996); United States v. Tucker, 90 F.3d 1135 (6th Cir.1996) (same); United States v. Bell, 90 F.3d 318 (8th Cir.1996) (upholding 21 U.S.C. § 841(a)(1)); United States v. Brown, 72 F.3d 96 (8th Cir.1995) (same); United States v. Yoon, No. 95-16698, 1996 WL 367621 (9th Cir. June 28, 1996) (unpublished per curiam) (upholding 21 U.S.C. § 841(a)(1)); United States v. Wacker, 72 F.3d 1453 (10th Cir.1995) (upholding 21 U.S.C. §§ 841(a)(1), 846); United States v. Kremetis, 903 F.Supp. 250 (D.N.H.1995) (same); United States v. Smith, 920 F.Supp. 245 (D.Me.1996) (upholding 21 U.S.C. §§ 841(a)(1)-(2), 846); United States v. Salmiento, 898 F.Supp. 45 (D.P.R.1995) (upholding 21 U.S.C. § 860); United States v. Gonzalez, 893 F.Supp. 935 (S.D.Cal.1995) (upholding 21 U.S.C. § 841(a)(1)); United States v. Garcia-Salazar, 891 F.Supp. 568 (D.Kan.1995) (upholding 21 U.S.C. § 860); United States v. Murillo, No. CR 93-20131 JW, 1995 WL 621797 (N.D.Cal.1995) (upholding 21 U.S.C. §§ 841(a), 843(b), 846); United States v. Grafton, 1995 WL 506001 (N.D.Ga.1995) (upholding 21 U.S.C. §§ 841, 846); United States v. Walker, 910 F.Supp. 837 (N.D.N.Y.1995) (upholding 21 U.S.C. §§ 841, 846, 848); United States v. Bramble, 894 F.Supp. 1384 (D.Haw.1995) (upholding 21 U.S.C. §§ 841(a)(1), 844(a))
25
We are not at liberty to question the Supreme Court's approval of the predecessor statute to 18 U.S.C. § 922(g)(1), which criminalizes possession of a firearm by a felon "in or affecting commerce." Only a minimal jurisdictional nexus is required, i.e. that at some time the firearm had travelled in interstate commerce. Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 1969, 52 L.Ed.2d 582 (1977). As this broad reading of the Commerce Clause has Supreme Court inprimatur, albeit pre-Lopez, we can only note the tension between the two decisions and will continue to enforce § 922(g)(1). See United States v. Rawls, 85 F.3d 240, 243 (5th Cir.1996) (Garwood, J., specially concurring) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2339491/ | 272 P.3d 123 (2011)
WEST
v.
21ST JUDICIAL DIST. CT.
No. OP 11-0407.
Supreme Court of Montana.
July 26, 2011.
DECISION WITHOUT PUBLISHED OPINION
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1567452/ | 10 So.3d 303 (2009)
STATE of Louisiana
v.
Terrell SCHNYDER.
No. 08-KA-1199.
Court of Appeal of Louisiana, Fifth Circuit.
March 24, 2009.
*305 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, Louisiana, for Plaintiff/Appellee.
Jane L. Beebe, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS, and MADELINE JASMINE, Pro Tempore.
EDWARD A. DUFRESNE, JR., Chief Judge.
The Jefferson Parish District Attorney filed a bill of information charging defendant, Terrell Schnyder, with possession of heroin in violation of LSA-R.S. 40:966(C) (count one) and with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A) (count two). Defendant was arraigned and pled not guilty. Thereafter, defendant advised the trial court that he wished to represent himself. The trial court allowed defendant to represent himself and denied counsel's request to withdraw, ordering that counsel serve as an advisor to assist defendant.
On June 29, 2007, the trial court heard and denied defendant's motion to suppress evidence and statement. Thereafter, on July 17, 2007, the matter proceeded to trial before a twelve-person jury. After considering the evidence presented, the jury found defendant guilty as charged as to both counts. On August 17, 2007, defendant was sentenced to ten years imprisonment at hard labor for count one. For count two, defendant was sentenced to thirty years imprisonment at hard labor, with the first two years to be served without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently with each other. Defendant now appeals.
FACTS
On March 13, 2007 at approximately 8:30 p.m., Lieutenant Daniel Jewell of the Jefferson Parish Sheriffs Office, Narcotics Section, was conducting surveillance of a Time Saver at the intersection of Central Avenue and Jefferson Highway, an area *306 notorious for narcotics activity. Lieutenant Jewell had previously made numerous narcotics arrests in the same parking lot area.
Lieutenant Jewell observed a white female loitering in the parking lot and then saw her use the payphone to make a call. Approximately five minutes later, a green van pulled into the parking lot. The driver of the van was later identified as defendant. The female entered the passenger door of the van and sat down in the front seat. At this time, a white male passenger exited from a truck and walked to the driver's door of the van. Defendant turned to the female and engaged in some activity with her that lasted maybe a minute. Defendant then turned to the white male standing outside of his window. At this point, Lieutenant Jewell observed the white male hand defendant currency, and he saw defendant hand the white male something small. The white male looked at what was placed into his hand, closed his hand, and then walked away.
Lieutenant Jewell elected to follow defendant. He gauged defendant's speed with his own speedometer and realized defendant was speeding. Defendant was driving 55 mph in a 30 mph zone. He decided to initiate a traffic stop, but in the meantime a train was passing so defendant came to a stop. Lieutenant Jewell activated his lights and siren and then exited his vehicle. Lieutenant Jewell approached the driver's side of the vehicle and requested that defendant turn off the engine and step out of his vehicle. Defendant complied. While defendant was standing within the open driver's door, Lieutenant Jewell asked defendant his name. Defendant did not respond. Lieutenant Jewell asked him his name and why he was speeding. Again, defendant did not answer. Defendant appeared to be "edging toward" the edge of the door, possibly trying to get around the door. Lieutenant Jewell noticed defendant's cheeks were swollen and it looked like he might be moving something around in his mouth. Lieutenant Jewell asked defendant if he had anything illegal in his mouth.
Lieutenant Jewell testified that at this point he believed he had observed a narcotics transaction and believed defendant had a large quantity of an illegal substance in his mouth. According to Lieutenant Jewell, it was common for narcotics to be concealed in the mouth to avoid detection. He questioned defendant again and received no response. Lieutenant Jewell then had to "take hold of him" to prevent him from swallowing whatever was in his mouth for his safety and to prevent the destruction of evidence. Lieutenant Jewell stated that this took about three seconds and that the whole time he was telling him to spit it out. Defendant spit out the object from his mouth. Defendant was handcuffed and patted down for weapons. Thereafter, Lieutenant Jewell retrieved what defendant had spit out from off the ground.
After defendant was advised of his rights, Lieutenant Jewell asked what defendant had spit out. Defendant stated it was heroin and that he was selling crack cocaine to support his heroin addiction. Additionally, defendant received a citation for speeding and for no driver's license.
Thomas Angelica, an expert in the field of testing analysis and identification of controlled dangerous substances, tested the evidence and testified that the 16 individually wrapped pieces of off-white material tested positive for cocaine and the small piece of aluminum foil containing brown powder tested positive for heroin. Lieutenant Jewell, who was accepted as an expert in the field of use, packaging, distribution, and value of narcotics, testified *307 that it was his opinion that these rocks of crack cocaine were intended for sale.
DENIAL OF MOTION TO SUPPRESS
On appeal, defendant challenges the trial court's denial of his motion to suppress evidence claiming that the evidence was illegally retrieved. Defendant specifically contends that the observations at the Time Saver and the pretextual reason for the stop were insufficient probable cause to arrest defendant. He argues that he was under arrest at the time he was ordered out of his vehicle and because he was arrested without probable cause, the evidence should have been suppressed as fruit of the poisonous tree.
Defendant further argues that the officer did not even have reasonable suspicion for the investigatory stop. Defendant argues that the officer only observed money being paid and failed to observe criminal activity. Defendant also argues that the circumstances leading to the stop were insufficient to justify the detention and the frisk. He argues the officer was not justified in choking defendant to force him to spit out what was in his mouth. For the reasons that follow, we find no merit to defendant's arguments.
The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. State v. Triche, 03-149 (La.App. 5 Cir. 5/28/03), 848 So.2d 80, 84, writ denied, 03-1979 (La.1/16/04), 864 So.2d 625. If evidence is derived from an unreasonable search or seizure, the proper remedy is exclusion of the evidence from the defendant's trial. State v. Burns, 04-175 (La.App. 5 Cir. 6/29/04), 877 So.2d 1073, 1075.
In a hearing on a motion to suppress, the State bears the burden of proof in establishing the admissibility of evidence that is seized without a warrant. LSA-C.Cr.P. art. 703(D). The trial court's decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Burns, 877 So.2d at 1075.
Law enforcement officers are authorized by LSA-C.Cr.P. art. 215.1, as well as state and federal jurisprudence, to perform investigatory stops which permit officers to stop and interrogate a person who is reasonably suspected of criminal activity. The Terry[1] standard, as codified in LSA-C.Cr.P. art. 215.1, authorizes police officers to stop a person in a public place whom they reasonably suspect is committing, has committed, or is about to commit an offense and demand that the person identify himself and explain his actions. State v. Becnel, 04-1266 (La.App. 5 Cir. 5/31/05), 904 So.2d 838, 852.
The "reasonable suspicion" needed for an investigatory stop is something less than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual's right to be free from governmental interference. The facts upon which an officer bases an investigatory stop should be evaluated in light of the circumstances surrounding the incident. A reviewing court is to take into consideration the totality of the circumstances and give deference to the inferences and deductions of a trained police officer that might elude an untrained person. Factors that may support reasonable suspicion for an investigatory stop include an officer's experience, his knowledge of recent criminal patterns, and his knowledge *308 of an area's frequent incidence of crimes. State v. Burns, 877 So.2d at 1075-76.
At the suppression hearing, Lieutenant Jewell testified that on March 13, 2007, he was conducting surveillance of the parking lot of the Time Saver located at Jefferson Highway and Central Avenue, an area notorious for narcotics trafficking. At approximately 8:30 p.m., he observed a white female loitering in the parking lot and two white males sitting in a Dodge pickup truck, parked with the lights off. The officer then observed the white female walk to the payphone located near the intersection and make a call. Within five minutes, a green van driven by defendant pulled into the parking lot. The white female rushed over to the van and got into the front passenger seat. At this point, the white male passenger of the truck walked to the driver's side window of the van. According to Officer Jewell, defendant turned to the white female and engaged in some activity with her that lasted about a minute. Defendant then turned to the white male standing outside his window. The officer saw the white male hand defendant currency, and defendant handed some small object to the white male. The white male looked at what was in his hand, nodded his head to defendant, clenched the object in his fist, and got back into the truck. The white female then exited the van and got into the truck. At this point, the officer decided to follow the van. At the suppression hearing, Lieutenant Jewell further testified that based on his training and experience, he believed what he observed was a narcotics transaction. He testified that he had been in the Narcotics Section with the Jefferson Parish Sheriffs Office for five years. He had made thousands of narcotics arrests, including arrests for drug transactions in the Central area.
In State v. Fearheiley, 08-0307 (La.4/18/08), 979 So.2d 487, 488-89, the Louisiana Supreme Court found reasonable suspicion existed for an investigatory stop where the police officer observed an apparent hand-to-hand transaction even though the officer "could not see what either person had in his or her hand." The court noted the apparent exchange lasted no more than 15 to 20 seconds inside one of two cars which had arrived separately in the parking lot of a convenience store with no apparent purpose that evening other than facilitating the brief exchange between the parties. The supreme court further noted that even though the encounter had other possible innocent explanations, including the one offered by the defendant that the unidentified subject involved in the transaction paid a debt owed to the defendant, the officer was not required to "turn a blind eye to the circumstances and ignore what two years of experience in narcotics investigations... had taught him."
In State v. Flagg, 99-1004 (La.App. 5 Cir. 4/25/00), 760 So.2d 522, 527, writ denied, 00-1510 (La.3/9/01), 786 So.2d 117, this court found that an experienced officer's observation of an apparent hand-to-hand transaction that occurred at night in a high crime area, which was the subject of on-going complaints, and the defendant's startled expression at the sight of police officers, gave rise to reasonable suspicion of criminal activity to support an investigatory stop. See also State v. Manson, 01-159 (La.App. 5 Cir. 6/27/01), 791 So.2d 749, 754, cert, denied, 01-2269 (La.9/20/02), 825 So.2d 1156, where this court concluded that the officers made a valid investigatory stop based on reasonable suspicion of criminal activity.
Applying the jurisprudence to the facts of this case, we conclude that the officer had reasonable suspicion of criminal *309 activity to justify an investigatory stop. Moreover, soon after defendant left the Time Saver, the officer had an additional basis for conducting an investigatory stop.
Lieutenant Jewell testified that he followed defendant when he left. Defendant left at a high rate of speed and was going about 55 mph in a 30 mph zone. Lieutenant Jewell was able to pace him with his own car's speedometer to determine defendant's speed. Defendant had to stop because of a train. At this point, Lieutenant Jewell activated his lights and conducted a traffic stop.
A traffic violation serves as a valid basis for an investigatory stop. State v. Leonard, 06-361 (La.App. 5 Cir. 10/31/06), 945 So.2d 764, 766. In the present case, defendant was speeding. In State v. Lopez, 00-0562 (La.10/30/00), 772 So.2d 90, 92, the Louisiana Supreme Court recognized that the defendant's speeding above the posted limit gave the officer an objective probable cause basis to pull over the vehicle for a traffic violation, without regard to subjective intent. As such, Lieutenant Jewell lawfully stopped defendant after he committed a traffic violation.[2]
Defendant argues that the officer used the pretext that he was speeding to justify a stop. However, both the federal and state supreme courts have held that officers may make an initial traffic stop after observing a traffic infraction, even if the stop is a pretext to investigate for controlled dangerous substances. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879. Generally, the decision to stop a vehicle is reasonable where the police have probable cause to believe that a traffic violation has occurred, and the standard is purely objective, without taking into consideration the subjective beliefs or expectations of the detaining officer. State v. Waters, 00-0356 (La.3/12/01), 780 So.2d 1053; State v. Leonard, 945 So.2d at 766.
Although defendant argues that the order for him to exit his vehicle was unwarranted, following the lawful stop of defendant's vehicle for the traffic violation, the officer was authorized to order that defendant exit his vehicle. See State v. Smith, 07-815 (La.App. 5 Cir. 3/11/08), 982 So.2d 821, 825, writ denied, 08-0927 (La.11/14/08), 996 So.2d 1088. See also Pennsylvania v. Mimms, 434 U.S. 106, 111, 98 S.Ct. 330, 333, 54 L.Ed.2d 331 (1977).
Defendant next complains that he was unjustifiably detained and that he was arrested from the moment he exited his vehicle. However, we find that defendant's detention was proper and that he was not arrested until later.
LSA-C.Cr.P. art. 215.1(D) states that in conducting a traffic stop "`an officer may not detain a motorist for a period of time longer than reasonably necessary to complete the investigation of the violation and issuance of a citation for the violation, absent reasonable suspicion of additional criminal activity.'" State v. Lopez, 772 So.2d at 92.
Defendant was initially stopped for a traffic violation. During the stop, however, it appears that defendant's actions created reasonable suspicion of additional criminal activity. Defendant failed to respond to the officer's questions and his cheek seemed swollen as if he was holding a large object in his mouth. Further, the officer noticed that defendant started to edge away. Lieutenant Jewell testified that he believed he was concealing narcotics in his mouth and trying to escape. Lieutenant Jewell testified that the mouth was a common place to conceal narcotics. *310 Additionally, Lieutenant Jewell had previously observed defendant's involvement in a hand-to-hand transaction. As such, the officer had reasonable suspicion to enlarge the scope of his investigation. State v. Lopez, 772 So.2d at 93.
Defendant further complains that the officer was unjustified in choking him to force him to spit the objects from his mouth. At the suppression hearing, Lieutenant Jewell testified that he prevented defendant from swallowing what was in his mouth. At trial, however, the officer explained in more detail how he accomplished this. He testified that he took hold of defendant to prevent him from swallowing whatever was in his mouth for his safety and to prevent the destruction of evidence. He explained that this took about three seconds and the whole time he was telling defendant to spit it out. He explained that officers prevent defendants from swallowing by applying pressure on the clavicle or jugular notch, which causes pain and makes it hard to swallow. He said that they can also push the defendants' heads forward to make it hard to swallow.
It is common knowledge that narcotic offenders often try to swallow narcotics to defeat the law enforcement process. State v. Wood, 262 La. 259, 263 So.2d 28, 32 (1972). Law enforcement officials may adopt reasonable measures to retrieve contraband and prevent its destruction. State v. Charles, 95-498 (La. App. 5 Cir. 12/13/95), 666 So.2d 1147, 1150. Although policemen can use reasonable force to prevent the swallowing of evidence, officers may not constitutionally beat and choke suspects in order to gain that evidence. State v. Tapp, 353 So.2d 265, 268 (La.1977). Whether police action in extracting contraband from the defendant's person is unreasonable depends upon the totality of the circumstances. State v. Charles, 666 So.2d at 1150.
In State v. Winfrey, 359 So.2d 73 (La. 1978), officers pulled the defendant over during a traffic stop. They observed the defendant and passenger pick some objects up from the middle of the seat and place them in their mouths. One officer saw the defendant place pieces of foil in his mouth. He informed the defendant he was under arrest, and a struggle ensued during which the officer placed one hand by the defendant's mouth and the other hand on his throat to prevent him from swallowing. The Louisiana Supreme Court noted that the struggle was initiated by the defendant, only lasted one to two minutes, and there were no injuries. It concluded the officers used reasonable measures in procuring heroin from the defendant.
In State v. Montgomery, 95-1852 (La. App. 4 Cir. 11/16/95), 665 So.2d 101, writ denied, 95-2996 (La.2/9/96), 667 So.2d 538, the officers saw the defendant put something in his mouth. Upon questioning the defendant, one of the officers saw some objects inside the defendant's mouth. The officer then asked the defendant what he had in his mouth. After the defendant denied he had anything in his mouth the officer grabbed him by the throat and made him spit the objects out. The Montgomery court found there was no indication that the choking was anything but brief nor was there any indication from the record that the defendant required medical attention. The court found that under those circumstances, the trial court erred in ruling that the officers used excessive force in retrieving the evidence. See also State v. Charles, 666 So.2d at 1148-51; State v. Desmond, 593 So.2d 965 (La.App. 4 Cir.1992), writ denied, 600 So.2d 637 (La.1992); and State v. Bolton, 548 So.2d 345 (La.App. 4 Cir.1989), where the appellate courts found that the measures utilized by police to retrieve the contraband and prevent its destruction were reasonable.
*311 Having considered the jurisprudence on what does and does not constitute reasonable force[3], we conclude that the officer in the present case used reasonable force to prevent defendant from swallowing the contraband within his mouth. We note that the officer's efforts to prevent defendant from swallowing the narcotics and destroying evidence were short in duration and limited in extent. Further, no injuries resulted.
Finally, the recovery of the cocaine and heroin that defendant subsequently spat from his mouth provided probable cause for his arrest. In State v. Washington, 00-1936 (La.12/15/00), 775 So.2d 1066, the Louisiana Supreme Court found that the officers had reasonable grounds to stop the defendant who was riding a bicycle and that the officers' recovery of a rock of cocaine in the plastic bag that the defendant had spit from his mouth provided probable cause for his arrest.
Based on the foregoing discussion, we find no error in the trial court's denial of defendant's motion to suppress evidence. Accordingly, the arguments raised by defendant are without merit.
ERROR PATENT DISCUSSION
We have also reviewed the record for errors patent in accordance with LSC.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).
Our review reveals that there are discrepancies regarding defendant's sentences when comparing the commitment to the transcript. According to the commitment, defendant was sentenced to ten years imprisonment at hard labor with two years of the sentence to be served without benefit of parole, probation or suspension of sentence for count one and thirty years imprisonment for count two. According to the transcript, however, defendant was sentenced to ten years imprisonment at hard labor for count one. For count two, defendant was sentenced to thirty years imprisonment at hard labor, with the first two years of the sentence to be served without benefit of parole, probation, or suspension of sentence.
The transcript prevails when there is a discrepancy between the commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this matter for correction of the commitment to reflect the sentence as indicated in the transcript.
For the reasons set forth herein, we affirm defendant's convictions and sentences and remand the matter for correction of the commitment.
CONVICTION AND SENTENCE AFFIRMED, REMANDED WITH INSTRUCTIONS.
NOTES
[1] Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
[2] Defendant received a traffic citation for speeding and for no driver's license.
[3] See Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) and State v. Tapp, 353 So.2d 265 (La.1977), where the courts found the level of force excessive. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1646124/ | 9 So.3d 639 (2009)
Anthony HAWKINS 1st, Petitioner,
v.
Walter A. McNEIL, Secretary, Florida Department of Corrections, Eric Lane, Warden at J.C.I., State of Florida, Respondents.
No. 1D09-0507.
District Court of Appeal of Florida, First District.
March 3, 2009.
Rehearing Denied May 28, 2009.
*640 Anthony Hawkins, pro se, Petitioner.
Bill McCollum, Attorney General, Tallahassee, for Respondent.
PER CURIAM.
The petition for all writs jurisdiction is denied because petitioner has an adequate legal remedy in the appeal now pending before this court in Hawkins v. McNeil, 1D09-0506.
DENIED.
BARFIELD, THOMAS, and CLARK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/757254/ | 152 F.3d 1113
135 Lab.Cas. P 10,220, 41 Fed.R.Serv.3d 417,98 Cal. Daily Op. Serv. 6277,98 Cal. Daily Op. Serv. 7046,98 Daily Journal D.A.R. 8681,98 Daily Journal D.A.R. 9740
Gene MINETTI, Plaintiff-Appellant,v.PORT OF SEATTLE; Local 9 ILWU; Local 19 ILWU; PacificMaritime Association; International Longshoremen's &Warehousemen's Union; Cargill Inc.; Western GatewayTransfer; Port of Tacoma; David E. Wilson; Philip K.Sweigert; Carolyn R. Dimmick; Thomas S. Zilly; William L.Dwyer, Defendants-Appellees.
Nos. 96-36073.
United States Court of Appeals,Ninth Circuit.
Submitted April 20, 1998.*Decided Aug. 11, 1998.As Amended Sept. 9, 1998.
Gene Minetti, Olympia, Washington, in pro per for the plaintiff-appellant.
No appearance for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, Chief District Judge, Presiding. D.C. No. CV-96-01288-BJR.
Before: BRUNETTI, RYMER, and T.G. NELSON, Circuit Judges.
PER CURIAM:
1
Gene Minetti appeals pro se the district court's order denying his application to proceed in forma pauperis. Minetti contends that the district court erred by not affording him an opportunity to submit objections to the magistrate judge's recommendation. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review for abuse of discretion, see Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir.1987), and we affirm.
2
Minetti sought to file an action against the Port of Seattle, Local 9 of the International Longshoremen's and Warehousemen's Union, and other defendants alleging, inter alia, fraud, conspiracy and violations of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962. On September 3, 1996, the magistrate judge recommended that the application to proceed in forma pauperis be denied on the grounds that Minetti's claims were barred by res judicata, lack of standing and judicial immunity. The magistrate judge's recommendation was forwarded to the district judge, who then signed the order denying pauper status on September 4, 1996.
3
28 U.S.C. § 636(b)(1)(C) provides parties with a ten day period during which to object to the proposed findings and recommendations of a magistrate judge. However, a magistrate judge is only required to make proposed findings and recommendations to the district court with respect to motions specified in 28 U.S.C. § 636(b)(1)(A). See 28 U.S.C. § 636(b)(1)(B). Section 636(b)(1)(A) contains no reference to an application to proceed in forma pauperis. Rather, the magistrate judge's authority to make rulings or recommendations on dispositive pretrial matters not specified in 28 U.S.C. § 636(b)(1)(A) is derived from 28 U.S.C. § 636(b)(3), which does not require the magistrate judge to submit proposed findings and recommendations. Section 636(b)(3) does not provide a party with ten days to file written objections with the district court.
4
Minetti's reliance on Fed.R.Civ.P. 72 is misplaced because Rule 72(b) in consistent with section 636(b)(1)(B). Further, an application to proceed in forma pauperis is not a nondispositive matter under Rule 72(a). See Advisory Committee Notes (indicating that Rule 72(a) does not apply to matters referred to under § 636(b)(3)).
5
Consequently, we conclude that Minetti was not entitled to file written objections to the magistrate judge's recommendation that Minetti's application to proceed in forma pauperis be denied.1
6
Minetti also contends that the district court erred by denying him leave to proceed in forma pauperis based upon findings that the claims in his complaint are barred by res judicata, lack of standing and judicial immunity. We disagree.
7
"A district court may deny leave to proceed in forma pauperis at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." First Nat'l Bank & Trust, 821 F.2d at 1370.
8
First, the district court properly concluded that Minetti's claim that he was wrongfully denied employment due to the racketeering activities and threats of violence by defendants is barred by res judicata because Minetti filed two prior actions previously dismissed by the district court involving the same parties or their privies and substantially the same evidence, and which arose from the same transactional nucleus of facts. See In re Imperial Corp. of America, 92 F.3d 1503, 1506 (9th Cir.1996).
9
Second, the district court properly concluded that Minetti lacked standing to bring a claim against various corporate defendants for their alleged acts of fraud which affected members of the public and which somehow indirectly affected his employment opportunities. See Construction Indus. Ass'n of Sonoma County v. City of Petaluma, 522 F.2d 897, 903 (9th Cir.1975).
10
Finally, the district court properly determined that the defendant judges named in this action are entitled to absolute judicial immunity for their judicial actions in Minetti's prior cases. See Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 963, 136 L.Ed.2d 848 (1997).
11
Accordingly, we conclude that the district court did not abuse its discretion by denying Minetti's application to proceed in forma pauperis based upon the lack of merit in his complaint. See First Nat'l Bank & Trust, 821 F.2d at 1370.
12
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a); 9th Cir. R. 34-4
1
This case is distinguishable from our decision in Tripati v. Rison, 847 F.2d 548 (9th Cir.1988). In Rison, we held that this court lacks jurisdiction to review directly a magistrate judge's denial of a motion to proceed in forma pauperis, and that a magistrate judge has no authority to issue a dispositive order denying in forma pauperis status absent the district judge's review and adoption of the magistrate judge's order or the consent of the parties. Although the district court's order in this action denying Minetti leave to proceed in forma pauperis was based on a recommendation by the magistrate judge, it was nevertheless reviewed and signed by the district judge. Therefore, unlike Rison, the magistrate judge here did not act on his own by entering a final judgment. The language in Rison referring to an opportunity to object to a magistrate judge recommendation to deny in forma pauperis status is dicta that was not intended to require the result suggested by Minetti | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2003518/ | 660 N.E.2d 919 (1995)
168 Ill.2d 509
214 Ill.Dec. 212
The PEOPLE of the State of Illinois, Appellee,
v.
Alton COLEMAN, Appellant.
No. 75902.
Supreme Court of Illinois.
November 2, 1995.
Rehearing Denied January 29, 1996.
*924 Mary Elizabeth Kopko, Chicago, Robert P. Davidow, Arlington, VA, for appellant.
Roland W. Burris, Attorney General, Springfield, and Michael J. Waller, State's Attorney, Waukegan (Rosalyn B. Kaplan, Solicitor General, and Arleen C. Anderson and Steven J. Zick, Assistant Attorneys General, Chicago, and Matthew Chancey and Joy C. Silzer, Assistant State's Attorneys, of counsel), for the People.
Justice NICKELS delivered the opinion of the court:
Following a jury trial in the circuit court of Lake County, defendant, Alton Coleman, was found guilty of aggravated kidnapping (Ill. Rev.Stat.1983, ch. 38, par. 10-2) and murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1) in connection with the abduction and death of nine-year-old Vernita Wheat. The jury found defendant eligible for the death penalty (Ill. Rev.Stat.1983, ch. 38, pars. 9-1(b)(3), (b)(7)) and found that there were no mitigating circumstances sufficient to preclude imposition *925 of the death penalty. The trial court sentenced defendant to death and to a 15-year term of imprisonment for aggravated kidnapping. On direct appeal to this court, defendant's convictions and sentence were affirmed. (People v. Coleman (1989), 129 Ill.2d 321, 135 Ill.Dec. 834, 544 N.E.2d 330, cert. denied (1990), 497 U.S. 1032, 110 S.Ct. 3294, 111 L.Ed.2d 802.) Defendant subsequently filed a petition for relief under the Post-Conviction Hearing Act (Ill.Rev.Stat.1991, ch. 38, par. 122-1 et seq.) in the circuit court of Lake County. The circuit court dismissed the majority of the claims in defendant's petition without an evidentiary hearing. Following an evidentiary hearing, the circuit court denied relief on the remaining claims. Defendant appeals directly to this court pursuant to Supreme Court Rule 651 (145 Ill.2d R. 651). For the reasons set forth below, we affirm.
BACKGROUND
The factual background of the trial and sentencing is set forth in this court's opinion in defendant's direct appeal (People v. Coleman (1989), 129 Ill.2d 321, 135 Ill.Dec. 834, 544 N.E.2d 330), and only a relatively brief summary is necessary here. We note that although defendant was initially represented by Lake County Public Defender Michael Melius and Assistant Public Defender Joan Pantsios, six days before trial defendant requested to waive the right to counsel and act as his own attorney. The trial court granted defendant's request, and appointed attorneys Melius and Pantsios to act as advisors to defendant during trial.
The following evidence was presented at trial. On June 19, 1984, the body of the victim, Vernita Wheat, was discovered in a bathroom in an abandoned apartment building in Waukegan. Her hands were bound, and a cable was wrapped around her chest and neck. Dr. Larry Blum performed an autopsy and determined that the cause of death was ligature strangulation and that the victim had died about three weeks before the discovery of the body. A forensic entomologist studied the development of fly larvae on the body and concluded that the body had probably been placed in the building on May 29 or May 30. Two fingerprints were found side by side on the lower portion of the door to the bathroom where the body was found. One of the fingerprints matched defendant's, and the other was unidentified.
Juanita Wheat, the victim's mother, testified that at the time of the offense she lived in Kenosha, Wisconsin, with her children, Vernita and seven-year-old Brandon. Juanita met defendant in late April or early May 1984, and knew him by the name Robert Knight. Defendant had told Juanita that he lived in her neighborhood in Kenosha, although in actuality he lived in Waukegan. He also falsely claimed that he was employed by American Motors. Juanita last saw Vernita alive on May 29, 1984. That evening, defendant stated that he wanted to give Juanita a stereo as a gift. At about 10:15 p.m., with Juanita's permission, Vernita accompanied defendant to pick up the stereo at defendant's apartment. Juanita did not give defendant permission to take Vernita to Waukegan. Defendant failed to return with Vernita, and Juanita contacted the police.
Defendant and the victim were observed entering an establishment in Kenosha known as the "400 Club" at about 11:35 p.m. on May 29. Upon arrival at the 400 Club, defendant used the telephone, and a short time later a cab arrived to pick up defendant and Vernita. One of the patrons of the 400 Club testified that the cab driver's name was Keith. Cab driver Keith Hach testified that at 11:35 p.m. on May 29 he was dispatched to the 400 Club where he picked up a black man and a black girl. Defendant is black, as was Vernita. The man first directed Hach to drive to a location in Zion, Illinois. When they arrived, the man asked Hach to drive to Waukegan. Hach dropped the man and girl off near Slater's Barbeque in Waukegan. James Adams was working in the area near Slater's Barbeque in the early morning hours of May 30. At about 1:30 a.m., he observed a black man wearing a large floppy hat walking with a young girl near Slater's Barbeque. Slater's Barbeque is located about two blocks from the building where Vernita's body was discovered.
On May 31, 1984, a Waukegan police officer observed defendant near defendant's sister's *926 house. When the officer activated his squad car's lights, defendant fled. The State also presented evidence that subsequent to Vernita Wheat's disappearance, defendant attempted to obtain false identification cards and defendant left the State.
Anna Ross, an acquaintance of the Wheats, testified on defendant's behalf that on the afternoon of May 30, 1984, she saw Vernita and defendant walking together in front of her house in Kenosha. Ross waved to Vernita and Vernita waved back.
The jury was instructed on theories of intentional murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(1)), murder based on knowledge of a strong probability of death or great bodily harm (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(2)) and felony murder (Ill.Rev.Stat.1983, ch. 38, par. 9-1(a)(3)) based on aggravated kidnapping. The jury returned general verdicts of guilty of aggravated kidnapping and murder.
Thereafter, a bifurcated death penalty hearing was conducted before the jury that had found defendant guilty. At defendant's request, attorneys Melius and Pantsios were reappointed to represent him at sentencing. At the first stage of sentencing, the jury found that defendant was at least 18 years of age at the time of the murder and was eligible for the death penalty on the basis that he had been convicted of intentional murder in Indiana and Ohio, under laws substantially similar to the laws of the State of Illinois (Ill.Rev.Stat.1983, ch. 38, 9-1(b)(3)). The record reveals that the Indiana and Ohio murders occurred after the murder of Vernita Wheat, but defendant was tried for those murders first. The jury also found defendant eligible for the death penalty because the victim was under 12 years of age and death resulted from exceptionally brutal or heinous behavior indicative of wanton cruelty. (Ill.Rev.Stat.1983, ch. 38, par. 9-1(b)(7).) The State also sought to impose the death penalty on the basis that defendant personally killed the victim and acted knowingly or intentionally. (Ill.Rev.Stat.1983, ch. 38, par. 9-1(6)(b).) However, the jury could not reach a verdict finding defendant eligible for the death penalty on this basis.
After the jury found defendant eligible for the death penalty, defendant again requested to act pro se. The trial court granted the request and attorneys Melius and Pantsios were again appointed to act as advisors. At the second stage of the sentencing proceedings, the State introduced evidence that in June and July of 1984, defendant participated in the murders of seven-year-old Tamika Turks and Eugene Scott, whose bodies were discovered in Indiana; 15-year-old Tonnie Storey, Marlene Walters and Virginia Temple and her nine-year-old daughter, Rachelle, whose bodies were discovered in Ohio; and Donna Williams, whose body was discovered in Michigan. At the time of trial in the instant case, defendant had already been found guilty of the murders of Tamika Turks, Marlene Walters and Tonnie Storey. The State also presented evidence of defendant's involvement in other offenses during this time period, including attempted murder, sexual assault, robbery and kidnapping.
As evidence in mitigation, defendant presented the testimony of Reverend Lloyd R. Davis, pastor of the Christian Fellowship Church in Waukegan, who had counselled defendant. According to Reverend Davis, defendant sought spiritual guidance and indicated his desire to find peace with God.
The jury unanimously found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty, and the trial court sentenced defendant to death. As noted above, this court affirmed the conviction and sentence. On May 31, 1991, defendant filed a petition under the Post-Conviction Hearing Act (Ill.Rev.Stat. 1991, ch. 38, par. 122-1 et seq.). The circuit court dismissed all of the claims in defendant's petition, as amended, except a portion of defendant's claim of ineffective assistance of counsel relating to trial counsel's performance during the first stage of sentencing (eligibility), and his claim that his waiver of counsel at trial and at the second stage of sentencing (aggravation/mitigation) was invalid. Following an evidentiary hearing, the circuit court denied those claims. This appeal followed.
*927 ANALYSIS
I
At the outset, we note that the circuit court ruled that numerous claims in defendant's post-conviction petition were waived because they could have been raised in defendant's direct appeal. A proceeding under the Post-Conviction Hearing Act does not constitute an appeal. Rather, the Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. (People v. Mahaffey (1995), 165 Ill.2d 445, 452, 209 Ill.Dec. 246, 651 N.E.2d 174; People v. Thompkins (1994), 161 Ill.2d 148, 157, 204 Ill.Dec. 147, 641 N.E.2d 371.) It is well established that the scope of post-conviction review is limited to constitutional matters which have not been, and could not have been, previously adjudicated. (People v. Brisbon (1995), 164 Ill.2d 236, 245, 207 Ill. Dec. 442, 647 N.E.2d 935; People v. Winsett (1992), 153 Ill.2d 335, 346, 180 Ill.Dec. 109, 606 N.E.2d 1186.) Accordingly, determinations of the reviewing court on direct appeal are res judicata as to issues actually decided and issues that could have been raised on direct appeal but were not are waived. (Mahaffey, 165 Ill.2d at 452, 209 Ill.Dec. 246, 651 N.E.2d 174; People v. Thomas (1995), 164 Ill.2d 410, 416, 207 Ill.Dec. 490, 647 N.E.2d 983; People v. Flores (1992), 153 Ill.2d 264, 274, 180 Ill.Dec. 1, 606 N.E.2d 1078; People v. Collins (1992), 153 Ill.2d 130, 135, 180 Ill.Dec. 60, 606 N.E.2d 1137.) Occasionally, these procedural bars may be relaxed when fundamental fairness requires. Thompkins, 161 Ill.2d at 158, 204 Ill.Dec. 147, 641 N.E.2d 371.
It is true that numerous claims in defendant's post-conviction petition involve matters documented in the trial record which could have been raised on direct appeal. Nevertheless, in his post-conviction petition, defendant alleges that appellate counsel's failure to raise these issues on direct appeal constitutes ineffective assistance of counsel. A defendant is guaranteed the effective assistance of counsel on appeal. (Evitts v. Lucey (1985), 469 U.S. 387, 393-97, 105 S.Ct. 830, 834-37, 83 L.Ed.2d 821, 828-30; Flores, 153 Ill.2d at 277, 180 Ill.Dec. 1, 606 N.E.2d 1078.) This court has held that the doctrine of waiver should not bar consideration of an issue where the alleged waiver stems from incompetency of counsel on appeal. (People v. Salazar (1994), 162 Ill.2d 513, 520-21, 205 Ill.Dec. 407, 643 N.E.2d 698; Winsett, 153 Ill.2d at 346, 180 Ill.Dec. 109, 606 N.E.2d 1186; Flores, 153 Ill.2d at 282, 180 Ill.Dec. 1, 606 N.E.2d 1078; People v. Ruiz (1989), 132 Ill.2d 1, 10, 138 Ill.Dec. 201, 547 N.E.2d 170; see People v. Brisbon (1995), 164 Ill.2d 236, 255, 207 Ill.Dec. 442, 647 N.E.2d 935.) Claims of ineffective assistance of appellate counsel are evaluated under the standard set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, which requires the defendant to show both deficient performance by counsel and resultant prejudice. We note that appellate counsel "has no obligation to raise every conceivable argument which might be made, and counsel's assessment of what to raise and argue will not be questioned unless it can be said that his judgment in this regard was patently erroneous." Collins, 153 Ill.2d at 140, 180 Ill.Dec. 60, 606 N.E.2d 1137.
Accordingly, we will examine the merits of the issues which could have been raised on direct appeal as they relate to defendant's allegations of ineffective assistance of counsel on appeal. We note that unless the underlying issues are meritorious, defendant obviously suffered no prejudice due to appellate counsel's failure to raise them on direct appeal. See Winsett, 153 Ill.2d at 347, 180 Ill.Dec. 109, 606 N.E.2d 1186.
II
Turning to the merits of defendant's post-conviction claims, we first address those claims which the circuit court denied following an evidentiary hearing.
A. Competence to Waive Counsel
Defendant contends that the circuit court in the post-conviction proceedings erred in concluding that he was competent to waive counsel during trial and the second stage of sentencing. A criminal defendant may not waive his right to counsel unless he does so "`competently and intelligently.'" *928 (Godinez v. Moran (1993), 509 U.S. 389, 396, 113 S.Ct. 2680, 2685, 125 L.Ed.2d 321, 330, quoting Johnson v. Zerbst (1938), 304 U.S. 458, 468, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461, 1469.) Competence to waive counsel is measured by the same standard as competence to stand trial. (People v. Mahaffey (1995), 166 Ill.2d 1, 19, 209 Ill.Dec. 607, 651 N.E.2d 1055, citing Godinez, 509 U.S. at 397, 113 S.Ct. at 2685, 125 L.Ed.2d at 330.) A defendant is considered unfit to stand trial if, because of a mental or physical condition, he is unable to understand the nature and purpose of the proceedings against him or to assist in his defense. (People v. Eddmonds (1991), 143 Ill.2d 501, 512, 161 Ill.Dec. 306, 578 N.E.2d 952.) Fitness speaks only to a person's ability to function within the context of trial; it does not refer to sanity or competence in other areas. (See People v. Fowler (1991), 222 Ill.App.3d 157, 164, 164 Ill.Dec. 770, 583 N.E.2d 686.) A person can be fit for trial although his mind may be otherwise unsound. See Fowler, 222 Ill.App.3d at 164, 164 Ill.Dec. 770, 583 N.E.2d 686.
At the post-conviction evidentiary hearing, defendant's trial attorneys and an attorney who represented defendant in a Federal kidnapping prosecution testified that defendant was extremely distrustful, uncooperative and difficult to work with. Defendant also presented the testimony of Dr. Leonard D. Elkun, a physician specializing in forensic psychiatry. Dr. Elkun personally interviewed defendant and reviewed reports from other mental health professionals concerning defendant's mental and emotional health and various materials relating to legal proceedings and defendant's personal background. Dr. Elkun formed the opinion that at the time defendant waived counsel, he was suffering from borderline personality disorder, a serious mental illness characterized by a poor capacity to organize one's life and plan for the future, the elevation of personal motivations above societal values, unstable interpersonal relationships, and instability in mood. According to Dr. Elkun, individuals suffering from borderline personality disorder experience transient psychotic episodes, but may otherwise appear outwardly normal. Dr. Elkun testified that defendant's grandmother, allegedly a practitioner of voodoo, instilled in defendant the belief that he possessed supernatural powers and was exempt from the laws of society. Dr. Elkun believed defendant's condition caused him to overestimate his ability to conduct his own defense. According to Dr. Elkun, defendant's paranoid thinking, characterized by mistrust of his attorneys, combined with his delusions of grandeur, prevented defendant from being able to make a knowing and intelligent decision whether to waive counsel.
Defendant contends that in view of Dr. Elkun's testimony, the circuit court erred in denying post-conviction relief. We disagree. Mindful that determinations by the trial court in post-conviction proceedings will not be disturbed on review unless contrary to the manifest weight of the evidence (People v. Eddmonds (1991), 143 Ill.2d 501, 514, 161 Ill.Dec. 306, 578 N.E.2d 952), we note that the ultimate issue of fitness is for the trial court, not the experts, to decide (see People v. Bleitner (1989), 189 Ill.App.3d 971, 976, 137 Ill.Dec. 487, 546 N.E.2d 241). The mere fact that a psychiatrist expresses the opinion that the defendant was unfit does not require a similar finding by the trial court; it is the trial court's function to assess the credibility and weight to be given to psychiatric expert testimony. See Bleitner, 189 Ill.App.3d at 976, 137 Ill.Dec. 487, 546 N.E.2d 241.
The circuit court indicated that in light of all the evidence presented, it did not find Dr. Elkun's testimony to be credible. In this regard we note that the circuit court had the opportunity to observe Dr. Elkun's demeanor on the witness stand, including his demeanor during the State's sometimes vigorous cross-examination. In addition to Dr. Elkun's testimony, the trial court heard testimony from mental health professionals who had examined defendant in 1984 and found him fit to stand trial on criminal charges in another jurisdiction. Other evidence before the circuit court included the observations of defendant's demeanor and behavior by his trial attorneys and others who had frequent contact with him prior to and during his trial. While these witnesses lacked formal training in psychiatry or psychology, nonexperts who *929 have had an opportunity to observe a person may give their opinions of mental condition or capacity based on their observations, and such lay opinions may overcome an expert opinion. (See Bleitner, 189 Ill.App.3d at 976, 137 Ill.Dec. 487, 546 N.E.2d 241.) Moreover, in assessing defendant's fitness the circuit court could properly consider defendant's conduct at trial, as reflected in the trial transcripts. Defendant's conduct at trial clearly demonstrates that he understood the nature and purpose of the proceedings against him.
Dr. Elkun's testimony that defendant suffered paranoid thought processes might suggest an inability to assist counsel in his defense. However, there was testimony that while acting pro se defendant was sometimes agreeable to the recommendations of the attorneys acting as his advisors. From this evidence it is possible to infer that defendant's distrustfulness was not so pervasive as to constitute paranoia. While Dr. Elkun offered the opinion that defendant's decision to conduct his own defense was symptomatic of paranoid thinking, the trial court could conclude that the decision may have been in part a response to the fact that in three prior capital cases in other jurisdictions, his attorneys had been unable to save him from the death penalty. In view of all the circumstances, the circuit court's determination that defendant's waiver of counsel was valid is not against the manifest weight of the evidence.
B. Ineffective Assistance of Counsel During the Eligibility Phase of the Sentencing Proceedings
Defendant contends that he was deprived of effective assistance of counsel during the first stage of the sentencing proceedings. According to defendant, his attorneys should have asserted a defense to imposition of the death penalty based on the eighth amendment proportionality principles set forth in Enmund v. Florida (1982), 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140, and Tison v. Arizona (1987), 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127. In Enmund, the Court concluded that the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) precludes capital punishment for an offender "who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed." (Enmund, 458 U.S. at 797, 102 S.Ct. at 3376, 73 L.Ed.2d at 1151.) Subsequently, in Tison, which was decided shortly after the sentencing proceedings in the case at bar, the Court held that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement." Tison, 481 U.S. at 158, 107 S.Ct. at 1688, 95 L.Ed.2d at 145.
Defendant maintains that certain physical and testimonial evidence presented at trial suggests that even to the extent he was involved in the murder of Vernita Wheat, he did not act alone. Defendant asserts that the evidence provides no basis for a rational conclusion as to the respective roles and mental states of the participants, and accordingly it cannot be established that he acted with the degree of personal culpability necessary to permit imposition of the death penalty. At the post-conviction evidentiary hearing, defendant presented the testimony of Robert Isaacson, a defense attorney with extensive experience in capital cases. Isaacson testified that defendant's attorneys should have sought a ruling from the trial court that defendant was ineligible for the death penalty as a matter of law. According to Isaacson, if the trial court declined to rule that defendant was ineligible for the death penalty, defendant's attorneys should have requested that the jury be instructed in accordance with Enmund and should have offered argument on the question. Defendant contends that trial counsel's failure to take these steps constituted ineffective assistance of counsel. We disagree.
As noted, claims of ineffective assistance of counsel based on deficient representation of a criminal defendant are evaluated in accordance with the two-prong test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Strickland provides as follows:
"A convicted defendant's claim that counsel's assistance was so defective as to *930 require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." (Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.)
Where it is possible to resolve an ineffective-assistance claim on the basis that the defendant suffered no prejudice as a result of counsel's allegedly defective performance, the claim may be decided against the defendant without consideration of whether counsel's performance was actually deficient. Strickland, 466 U.S. at 697, 104 S.Ct. at 2070, 80 L.Ed.2d at 699; see also Mahaffey, 165 Ill.2d at 457-58, 209 Ill.Dec. 246, 651 N.E.2d 174.
Having carefully reviewed the trial record, we conclude that the omissions by trial counsel upon which defendant bases his ineffective-assistance claim did not result in prejudice within the meaning of Strickland. Enmund and Tison place limits on when the death penalty may be imposed on a person who aids and abets a felony during the course of which a murder is committed by others. Neither decision limits the imposition of capital punishment upon an offender who personally performs the acts causing death. (See Mann v. Dugger (11th Cir.1987), 817 F.2d 1471, 1478, vacated on other grounds on reh'g (11th Cir.1987), 828 F.2d 1498; State v. Atwood (1992), 171 Ariz. 576, 650, 832 P.2d 593, 667; People v. Hayes (1990), 52 Cal.3d 577, 632, 276 Cal.Rptr. 874, 908, 802 P.2d 376, 410; State v. Fields (1995), 127 Idaho 904, ___, 908 P.2d 1211, 1224.) In finding defendant guilty of murder under the instructions given in this case, the jury necessarily determined beyond a reasonable doubt that defendant himself killed the victim. As the State correctly points out, the jury was not instructed on the principles of accountability. All of the murder instructions required the jury to find that defendant performed the acts causing Vernita Wheat's death in order to return a guilty verdict.
We note that "Enmund does not impose any particular form of procedure upon the States." (Emphasis in original.) (Cabana v. Bullock (1986), 474 U.S. 376, 386, 106 S.Ct. 689, 697, 88 L.Ed.2d 704, 716.) What is required is that "the State's judicial process leading to the imposition of the death penalty must at some point provide for [the requisite findings]." (Emphasis in original.) (Bullock, 474 U.S. at 390-91, 106 S.Ct. at 699, 88 L.Ed.2d at 719.) Accordingly, the jury's guilt phase verdict will satisfy Enmund when the verdict necessarily establishes either: (1) that the defendant personally killed the victim or (2) that the defendant acted with the requisite culpable mental state in cases where an accomplice may have killed the victim. (See Andrews v. Shulsen (10th Cir. 1986), 802 F.2d 1256, 1272 ("A death sentence may rest upon a guilty verdict which necessitates a finding of intent"); Wingo v. Blackburn (5th Cir.1986), 783 F.2d 1046, 1050 (where jury was instructed that it could not find the defendant guilty of first degree murder unless he was proved to have intended to kill, Enmund did not impose a constitutional requirement that the instruction on specific intent be repeated at the sentencing stage); State v. Atwood (1992), 171 Ariz. 576, 650, 832 P.2d 593, 667 (jury's finding that defendant actually killed victim implicit in its verdict of guilty of first degree felony murder was sufficient under Enmund); State v. Fields (1995), 127 Idaho 904, ___, 908 P.2d 1211, 1224 (where the jury found at the guilt phase that the defendant actually killed his victim, Enmund was inapposite); Mann v. State (Okla.1988), 749 P.2d 1151, 1161 ("To apply the Enmund criteria and its progeny in a malice aforethought murder at the sentencing stage, would be the equivalent of asking the jury to re-examine their finding of guilt" (emphasis in original)); Webb v. State (Tex.Crim.App.1988), 760 S.W.2d 263, 269 (where jury was required to find an intent to *931 promote or assist commission of an intentional murder before it could convict defendant as a party to the offense in the first instance, jury's later punishment verdict was not fatally defective).) Because the jury determined at the guilt phase that defendant himself killed the victim, defendant was not entitled to have the question revisited at the sentencing phase, and defense counsel's failure to submit instructions and offer argument on Enmund caused no prejudice under the Strickland test. Since from a procedural standpoint there was no right to have the jury pass upon the issue at sentencing, we need not speculate as to what the jury would have found had the issue been before it. Similarly, assuming the evidence supports the jury's determination, a motion to bar imposition of the death penalty would have been properly denied, and defense counsel's failure to make such a motion was not prejudicial under Strickland.
Defendant maintains, however, that the evidence at trial suggests the involvement of another individual who may have been the actual killer. Defendant notes James Adams' testimony that he observed a black male wearing a large hat walking with a young girl near the building where the victim's body was discovered. Defendant points out that there was no testimony that he was wearing a hat during the relevant time frame. Defendant also contends that pubic hairs not belonging to him were present at the victim's autopsy. Lastly, defendant notes the unidentified fingerprint found next to his own on the door to the bathroom where the victim's body was discovered.
We are not persuaded that this evidence raises a reasonable doubt as to whether defendant performed the acts causing Vernita Wheat's death. First, that the individual observed by James Adams wore a hat does not mean that that individual was someone other than defendant. Even if defendant was not seen wearing a hat at other points in time, he might have worn one at the time Adams made his observation. Defendant's reliance on pubic hairs which he claims were present at the victim's autopsy is similarly unpersuasive. Defendant's argument is somewhat misleading inasmuch as he neglects to mention conflicting evidence regarding the origin of the pubic hairs and other testimony casting doubt on whether the hairs belonged to a participant in the crimes. Dr. Larry Blum performed the autopsy with the assistance of James Murray, a deputy coroner for Lake County. Murray testified that he observed Dr. Blum "pull" hairs from the pubic area of the victim. On the other hand, Dr. Blum testified that he did not recall taking any pubic hairs from the victim and did not discover any loose hairs in the pubic area of the victim. Dr. Blum also testified that he found no signs of sexual abuse. Chester Blythe, a special agent with the Federal Bureau of Investigation, compared the pubic hairs to specimens obtained from defendant and concluded they did not match. However, Special Agent Blythe also testified that the hairs appeared to have been forcibly removed. Moreover, he noted the presence of tissue on the hairs, which was consistent with hairs obtained from a decomposing body. Given the somewhat conflicting testimony of Dr. Blum and Murray, and Agent Blythe's testimony suggesting that the hairs may have been plucked from a decomposing body, the jury need not have viewed the pubic hairs as establishing the involvement of an accomplice.
Finally, although the unidentified fingerprint near defendant's own fingerprint might theoretically have been left by an accomplice, it might also have been left by someone unconnected to the crime, and its proximity to defendant's fingerprint could rationally be attributed to coincidence. We are aware that in rebuttal to defendant's closing argument the State asserted that the unidentified fingerprint belonged to an unknown party to the crime. Nonetheless, the State's argument was not binding on the jury. As noted above, the jury was not instructed on principles of accountability, and thus to convict defendant of murder under any of the theories presented, it had to conclude beyond a reasonable doubt that defendant was the actual killer. The question before us is whether the evidence supports this determination. We conclude that it does. Where circumstantial evidence relied upon to support the defense that another committed the crime is unsatisfactory, based upon mere surmise *932 or possibility, without evidence to support it, a hypothesis of innocence may be rejected by the trier of fact. (People v. Hendricks (1986), 145 Ill.App.3d 71, 102, 99 Ill.Dec. 20, 495 N.E.2d 85, rev'd on other grounds (1990); 137 Ill.2d 31, 148 Ill.Dec. 213, 560 N.E.2d 611.) In the case at bar, the jury was under no obligation to speculate that the victim may have been killed by a hypothetical accomplice.
Even if we were to adopt defendant's theory that Vernita Wheat may have been killed by an accomplice, we would still conclude that trial counsel's inaction was not prejudicial. Under Tison, when a murder occurs during the course of another felony, major participation in the felony combined with reckless indifference to human life satisfies the eighth amendment's standard of personal culpability required for imposition of capital punishment. Although Tison was decided after the sentencing proceedings in the case at bar, defendant must demonstrate prejudice with reference to the Tison standard even though the existing standard under Enmund alone may arguably have been more favorable to defendant. See Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180, (although objection to death penalty eligibility might have been successful based on existing precedent at time of death penalty hearing, habeas corpus petitioner could not rely on that precedent, which had since been overruled, to demonstrate that trial counsel's failure to make the objection was prejudicial).
Even assuming, arguendo, that defendant may have had an accomplice who actually killed the victim, defendant was clearly a major participant in the underlying felony of aggravated kidnapping. Additionally, although the State's case depended upon circumstantial evidence which does not elucidate all the details of the victim's death, when the evidence is viewed in its entirety, the conclusion that defendant acted at least with reckless indifference to the victim's life is practically inescapable. The evidence clearly establishes that defendant kidnapped the young victim and that defendant was present at the location where the victim's body was discovered with her hands and chest bound and a cable wrapped around her neck. Given this evidence, it strains credulity to postulate that defendant might have acted with a mental state less culpable than reckless indifference to human life. We conclude both that the evidence was sufficient to establish beyond a reasonable doubt the requisite culpability under Tison, and that no reasonable probability exists that the jury would have found otherwise if the question had been submitted to it.
III
We next consider those post-conviction claims which the circuit court dismissed without an evidentiary hearing.
A. Ineffective Assistance of Counsel Prior to Trial
i. Failure to Investigate Mitigating Evidence
Defendant contends that his attorneys' performance prior to trial was deficient because they failed to conduct any meaningful investigation into his personal background and mental or emotional condition for purposes of developing mitigating evidence for use during the penalty phase of the proceedings. Defendant claims that an adequate investigation would have yielded evidence of his severe mental or emotional problems and that he experienced an extremely troubled childhood. According to defendant, had this evidence been available at the second stage of sentencing (aggravation/mitigation), there is a reasonable probability that the jury would have spared him from the death penalty. The circuit court dismissed this claim without an evidentiary hearing, concluding that the omitted evidence would not have changed the outcome of sentencing.
Defendant's post-conviction petition includes affidavits from family members and acquaintances, and affidavits from several mental health professionals discussing defendant's personal background and offering opinions regarding defendant's mental or emotional condition. According to these affidavits, defendant was raised in a highly unstable, abusive and sexually inappropriate environment. The affidavits from mental health professionals variously indicated, inter *933 alia: (1) a probable diagnosis of borderline personality disorder (which sometimes involves psychotic episodes when the sufferer is subjected to extreme stress); (2) that defendant suffered from a severe personality disorder with borderline, paranoid and antisocial elements; (3) that defendant was probably suffering from manic-depressive psychosis at the time of the offenses; and (4) that there were strong indications that defendant's aberrant behavior and personality disorder were linked, in part, to attentional deficit hyperactivity disorder and associated emotional stress during childhood and adulthood.
Where an adequate investigation has been conducted, the failure to present mitigating evidence does not itself establish that defense counsel was ineffective. (See Burger v. Kemp (1987), 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638; People v. Perez (1992), 148 Ill.2d 168, 186, 170 Ill.Dec. 304, 592 N.E.2d 984.) An informed decision not to present certain mitigating evidence may represent a valid strategic choice, particularly where the evidence is potentially damaging. However, where counsel has neglected to conduct a proper investigation into mitigating circumstances, the failure to introduce mitigating evidence cannot be attributed to strategy. (Perez, 148 Ill.2d at 190, 170 Ill.Dec. 304, 592 N.E.2d 984; see also Baxter v. Thomas (11th Cir.1995), 45 F.3d 1501, 1514, quoting Horton v. Zant (11th Cir.1991), 941 F.2d 1449, 1462 ("`[O]ur case law rejects the notion that a "strategic" decision can be reasonable when the attorney has failed to investigate his options and make a reasonable choice between them'").) In such cases, counsel's performance falls below objective standards of reasonableness.
Even where counsel's performance is deficient due to the failure to investigate mitigating circumstances, the defendant must still demonstrate prejudice to sustain a claim of ineffective assistance of counsel. In evaluating prejudice in a capital sentencing context, "the question is whether there is a reasonable probability that, absent the errors, the factfinder * * * would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." (Strickland v. Washington (1984), 466 U.S. 668, 695, 104 S.Ct. 2052, 2068-69, 80 L.Ed.2d 674, 698.) In making this determination, a court must consider the totality of the evidence, and "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 695-96, 104 S.Ct. at 2069, 80 L.Ed.2d at 698-99.
This case differs from the typical "failure to investigate" case in that, although defendant was represented by counsel for a period prior to trial, he invoked the right to self-representation at the aggravation/mitigation stage of sentencing. The State argues that because defendant proceeded without counsel at the aggravation/mitigation stage, he may not pursue an ineffective-assistance claim relating to the outcome of that portion of the proceedings. (But see Hance v. Kemp (1988), 258 Ga. 649, 650, 373 S.E.2d 184, 186 (although defendant was permitted to act as "co-counsel" at sentencing, defendant could pursue an ineffective-assistance claim based on counsel's alleged failure properly to investigate, prepare and present evidence of his mental condition and family background where it appeared that the defendant's claim of ineffectiveness related primarily to the performance of his attorney before defendant sought to act as co-counsel).) We need not address this argument. Even if defendant's waiver of counsel does not foreclose the present claim, we conclude that the circuit court committed no error in dismissing the claim without an evidentiary hearing on the basis that trial counsel's alleged failure to investigate was not prejudicial.
A defendant is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. (People v. Guest (1995), 166 Ill.2d 381, 389, 211 Ill.Dec. 490, 494, 655 N.E.2d 873, 877; People v. Gaines (1984), 105 Ill.2d 79, 91-92, 85 Ill.Dec. 269, 473 N.E.2d 868.) The trial court's determination will not be disturbed unless manifestly erroneous. (Guest, 166 Ill.2d at 389, 211 Ill.Dec. at 494, 655 N.E.2d at 877; People v. Griffin (1985), 109 *934 Ill.2d 293, 303, 93 Ill.Dec. 774, 487 N.E.2d 599.) We acknowledge the critical importance to the sentencing decision of evidence of capital defendant's background and any mental or emotional problems that afflict him. (See, e.g., Baxter v. Thomas (11th Cir. 1995), 45 F.3d 1501, 1515, quoting Middleton v. Dugger (11th Cir.1988), 849 F.2d 491, 495 ("Psychiatric mitigating evidence `has the potential to totally change the evidentiary picture'").) At the same time, not every mental or emotional condition that can be classified as a "disorder" will necessarily be mitigating, and in the case at bar it is not clear that expert testimony would have produced a profile that the jury would have viewed in an entirely sympathetic light. For instance, the affidavit of clinical psychologist Nancy Schmidtgoessling, Ph.D., submitted in support of the post-conviction petition, indicates that defendant had developed personality characteristics likely to be viewed as aggravating rather than mitigating, namely a lack of empathy and lack of guilt or anxiety attached to illegal or antisocial behaviors.
Moreover, we must assess prejudice in a realistic manner based on the totality of the evidence. Accordingly, it is improper to focus solely on the potential mitigating evidence. As our cases illustrate, the nature and extent of the evidence in aggravation must also be considered. See People v. Thomas (1995), 164 Ill.2d 410, 427-29, 207 Ill.Dec. 490, 647 N.E.2d 983; People v. Caballero (1992), 152 Ill.2d 347, 365-67, 178 Ill.Dec. 390, 604 N.E.2d 913; People v. Eddmonds (1991), 143 Ill.2d 501, 534-36, 161 Ill.Dec. 306, 578 N.E.2d 952; see also Stafford v. Saffle (10th Cir.1994), 34 F.3d 1557, 1564 ("In deciding whether Stafford was prejudiced, we must keep in mind the strength of the government's case and the aggravating factors the jury found as well as the mitigating factors that might have been presented if Stafford had been provided effective assistance of counsel"); Schlup v. Armontrout (8th Cir.1991), 941 F.2d 631, 639 (in light of numerous aggravating circumstances, expert psychiatric or psychological testimony would not with "reasonable probability" have been likely to change the defendant's sentence); Campbell v. Kincheloe (9th Cir.1987), 829 F.2d 1453, 1464 (even if evidence of defendant's background, childhood, family relationships, child abuse, upbringing and drug abuse could have been presented without opening the door for damaging rebuttal evidence by the prosecution, given the overwhelming aggravating factors and the heinous nature of the crime there was no reasonable likelihood the jury's verdict would have been different had the mitigating evidence been introduced); Squires v. Dugger (M.D.Fla.1992), 794 F.Supp. 1568, 1577 (evidence of the defendant's unfortunate childhood did not outweigh aggravating factors, and no prejudice resulted from counsel's failure to present mitigating evidence of the defendant's troubled childhood).
In light of the overwhelming aggravating circumstances, the introduction of potentially mitigating evidence of defendant's background and mental and emotional health would not have been sufficient to change the jury's sentencing decision. The crime in the case at bar was a horrifying and despicable attack on a defenseless child accomplished by deception of the child's mother. Moreover, the jury heard evidence that in the weeks following the murder of Vernita Wheat, defendant engaged in a brutal interstate crime spree, murdering or terrorizing numerous children and adults. Given the aggravating circumstances in the case at bar and the nature of the proposed mitigating evidence, the only realistic conclusion to be drawn is that there is no reasonable probability that the proposed mitigating evidence would have persuaded the jury that the balance of aggravating and mitigating factors did not warrant the death penalty.
Defendant relies principally on People v. Perez (1992), 148 Ill.2d 168, 170 Ill.Dec. 304, 592 N.E.2d 984, where this court ordered a new sentencing hearing based on counsel's failure to properly investigate and present mitigating evidence. In Perez, a diligent investigation would have revealed, inter alia, that during childhood the defendant had been abandoned by his family and that the defendant's IQ placed him in a category between "low average (dull)" and "mentally deficient." This court concluded that, under the circumstances of the case, there was a *935 reasonable probability that had the jury known of the mitigating evidence which counsel failed to investigate, the jury would not have found that the death penalty was warranted.
In the case at bar, defendant's conduct in defending himself at trial suggests that he is of at least an average intellectual capacity, while the evidence of his crimes establishes him as a cunning predator. The quantum of aggravating evidence here also clearly distinguishes this case from Perez. In Perez, the defendant, an inmate of the Illinois correctional system, was eligible for the death penalty for murdering a fellow inmate (see Ill. Rev.Stat.1979, ch. 38, par. 9-1(b)(2)). Other aggravating circumstances consisted of the defendant's prior convictions for armed robbery and purse snatching, the fact that the defendant had held a scissors blade to the neck of a victim of an armed robbery and defendant's disciplinary violations in prison. (See People v. Perez (1985), 108 Ill.2d 70, 90 Ill.Dec. 932, 483 N.E.2d 250.) Because the aggravating circumstances in Perez were in no way comparable to the circumstances of the case at bar, defendant's reliance on Perez is misplaced. (See also People v. Thomas (1995), 164 Ill.2d 410, 430, 207 Ill.Dec. 490, 647 N.E.2d 983.) The circuit court did not err in dismissing defendant's claim without an evidentiary hearing.
ii. Failure to Move for Substitution of Judge
Defendant contends that trial counsel's failure to move for a substitution of judge at trial represents ineffective assistance of counsel. Apparently, at the time of the commission of the offense in the case at bar, defendant was free on bond with sex offense charges pending against him. The trial judge in the case at bar was also the judge who admitted defendant to bail. A local newspaper editorial was critical of the fact that defendant was free on bond at the time of the offense. While defendant cites no authority involving similar facts, he insists that under these circumstances trial counsel's failure to move for substitution of judges deprived him of an impartial tribunal. We disagree.
This court has noted that outside of situations where a judge's pecuniary interest in a case requires disqualification, "[a]nother guiding principle on the issue of judicial bias is whether the case involves a possible temptation such that the average person, acting as judge, could not hold the balance nice, clear and true between the State and the accused." (People v. Del Vecchio (1989), 129 Ill.2d 265, 275, 135 Ill.Dec. 816, 544 N.E.2d 312, citing Tumey v. Ohio (1926), 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749, 758.) In Del Vecchio, this court further observed that only under the most extreme cases would disqualification for bias or prejudice be constitutionally required. (Del Vecchio, 129 Ill.2d at 275, 135 Ill.Dec. 816, 544 N.E.2d 312, citing Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 821, 106 S.Ct. 1580, 1585, 89 L.Ed.2d 823, 832.) No doubt any judge would be distressed to learn that an individual admitted to bail by that judge had thereafter been accused of committing a violent crime. But to conclude from this alone that the judge could not set aside personal feelings and act in an impartial manner would give too little credit to the temperament and integrity of members of the bench.
The additional element of media attention to defendant's freedom on bail at the time of the offense does not alter our conclusion. The mere fact that a judge has been subjected to press criticism in connection with a case or a party does not necessarily require the judge's disqualification. In one court's words, "[b]y training and inclination, judges meet media criticism of their actions with robust insensitivity." (United States v. Martorano (3d Cir.1989), 866 F.2d 62, 69 (although the press had criticized the trial judge for acting as a character witness for defendant's attorney in other proceedings, court rejected argument that the trial judge dealt harshly with defendant to refute the implication of favoritism towards defendant's attorney).) In any event, the editorial in the case at bar posed no significant danger of judicial bias. While the editorial mentioned that defendant was free on bond at the time of Vernita Wheat's murder, its overall theme was that the criminal justice system as a whole had failed. The criticism was *936 not levelled against the trial judge personally, and the editorial did not fault the trial judge personally for defendant's release on bond. Indeed, the trial judge is not even identified by name. Trial counsel's failure to move for a substitution of judges did not deprive defendant of an impartial tribunal or otherwise engender prejudice.
iii. Per se Sixth Amendment Violation
Defendant maintains that the Lake County public defender's office was deficient in the areas of training, supervision and the use of investigative and mitigation services in capital cases, and that attorney Pantsios personally lacked adequate training in defense of capital cases. Defendant submits that these circumstances constitute "resource deprivation" and give rise to a per se violation of the sixth amendment right to counsel. As has been seen, ineffective-assistance claims are ordinarily evaluated in accordance with the Strickland test which requires a showing of deficient performance and resultant prejudice. However, defendant cites United States v. Cronic (1984), 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657, which noted that in some situations ineffective assistance may be presumed without inquiry into counsel's actual performance.
In Cronic, the defendant was charged with mail fraud in connection with a "check kiting" scheme. An inexperienced lawyer with a real estate practice was appointed substitute counsel for the accused and was afforded 25 days to prepare for trial. The Cronic Court indicated that "[c]ircumstances * * * may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." (Cronic, 466 U.S. at 659-60,104 S.Ct. at 2047, 80 L.Ed.2d at 668.) To illustrate, the Cronic Court cited Powell v. Alabama (1932), 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158. In Powell the defendants had been indicted for a highly publicized capital crime. Six days before trial, the trial court appointed "all members of the bar" for purposes of arraignment. On the day of trial an out-of-State attorney appeared in court, but indicated that he was unwilling to assume the defense of the accused because he was unfamiliar with the case and local procedures. Notwithstanding his protestations, the attorney was appointed to represent the defendants with whatever help the local bar could provide. In the Cronic Court's view, these circumstances in Powell justified a presumption of prejudice. In Cronic itself, however, the Court found that the circumstances surrounding the defendant's representation the lawyer's level of experience and the time for trial preparationdid not justify a similar presumption. With regard to the former circumstance, the Court stated that "[t]he character of a particular lawyer's experience may shed light in an evaluation of his actual performance, but it does not justify a presumption of ineffectiveness in the absence of such an evaluation." Cronic, 466 U.S. at 665, 104 S.Ct. at 2050, 80 L.Ed.2d at 672.
The per se approach suggested in Cronic is "in all events the exception, not the rule." (Scarpa v. Dubois (1st Cir.1994), 38 F.3d 1, 12.) We believe the exception is properly limited to cases involving circumstances of a similar magnitude to those in Powell. Moreover, the character of the circumstances, as well as their magnitude, is significant. The per se approach is available when the circumstances are such that "any lawyer, even a fully competent one" would be unlikely to be able to provide effective assistance. (Cronic, 466 U.S. at 659-60, 104 S.Ct. at 2047, 80 L.Ed.2d at 668.) Thus, Cronic contemplates an inquiry into the circumstances surrounding the defendant's representation in a particular case; it does not envision scrutiny of the attorney's overall competence. Consequently, the lawyer's lack of relevant practice experience in Cronic was viewed by the Court as a factor in evaluating his actual performance, but did not justify a presumption of ineffective assistance of counsel.
While defendant styles his claim as one of "resource deprivation," the thrust of his allegations goes to a narrow aspect of the overall competence of his attorneys and the Lake County public defender's office to *937 represent capital defendants. (There appears to be no dispute that the attorneys were experienced and capable in the area of criminal defense generally.) The general allegations in this case of inadequate training and deficient office practices do not demonstrate circumstances of either the character or magnitude that would give rise to a per se ineffective assistance of counsel claim.
B. Waiver of Counsel in a Capital Case
Defendant argues that his constitutional rights were violated when the trial court permitted him to waive counsel in a capital case. In Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, the Court held that a criminal defendant has a constitutional right to refuse State-provided counsel and proceed without representation if he voluntarily and intelligently elects to do so. (See Silagy v. Peters (7th Cir. 1990), 905 F.2d 986, 1007.) Defendant contends, however, that Faretta is not controlling here because it was not a capital case. Defendant argues that the death penalty has been recognized to be qualitatively different from other forms of punishment. (See Gardner v. Florida (1977), 430 U.S. 349, 357, 97 S.Ct. 1197, 1204, 51 L.Ed.2d 393, 401 (plurality opinion).) The eighth amendment requires increased reliability of the process by which capital punishment may be imposed. (Herrera v. Collins (1993), 506 U.S. 390, 406, 113 S.Ct. 853, 863, 122 L.Ed.2d 203, 219.) It is defendant's position that the demands of increased reliability in the capital setting require that the accused be represented by counsel notwithstanding his own desire to conduct his defense pro se. We disagree.
In Faretta, the Court explained:
"Although not stated in the [Sixth] Amendment in so many words, the right to self-representationto make one's own defense personallyis * * * necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
The counsel provision supplements this design. It speaks of the `assistance' of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendantnot an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. * * * It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. [Citations.] This allocation can only be justified, however, by the defendant's consent, at the outset, to accept counsel as his representative. An unwanted counsel `represents' the defendant only through a tenuous and unacceptable legal fiction." Faretta, 422 U.S. at 819-21, 95 S.Ct. at 2533-34, 45 L.Ed.2d at 572-73.
This reasoning applies with no less force in a capital case than in other cases. We are not persuaded by defendant's argument that the heightened need for reliability in capital cases justifies forcing the accused to accept representation by counsel. Defendant's argument assumes that the representation by counsel is invariably beneficial to the accused. However, in Faretta the Court noted that it is conceivable that in rare instances the accused may be able to present his case more effectively by conducting his own defense than entrusting his defense to counsel. Moreover, as the Court observed, "[p]ersonal liberties are not rooted in the law of averages." Faretta, 422 U.S. at 834, 95 S.Ct. at 2540, 45 L.Ed.2d at 581.
In People v. Silagy (1984), 101 Ill.2d 147, 179-81, 77 Ill.Dec. 792, 461 N.E.2d 415, this court implicitly rejected a distinction between capital and noncapital cases for purposes of the right to self-representation. Reviewing the district court judgment in Federal habeas corpus proceedings related to Silagy, the United States Court of Appeals for the Seventh Circuit explicitly held that the right to self-representation applies in capital sentencing proceedings. (Silagy v. Peters (7th Cir.1990), 905 F.2d 986,1007-08.) *938 The Seventh Circuit noted that in Faretta, the Court did not impose any restrictions upon a defendant's right to refuse the assistance of counsel except to require that the right be "knowingly and intelligently" waived. (Silagy, 905 F.2d at 1007.) The Silagy court further stated that it could "think of no principled reason to deny a death-eligible defendant his Faretta right to proceed without the assistance of counsel." (Silagy, 905 F.2d at 1007.) Accordingly, the trial court did not err in honoring defendant's request to conduct his own defense during portions of the original proceedings.
C. Jury Exposure to Pretrial Publicity
Defendant contends his right to a fair trial was compromised because certain members of the jury were exposed to pretrial publicity about the case. Specifically, defendant contends that several jurors were aware that he had already been convicted in other jurisdictions of offenses occurring during the alleged crime spree following the Vernita Wheat murder.
At the outset, we note that defendant, acting pro se, accepted each of the jurors in question. The failure to challenge a juror for cause or by peremptory challenge waives any objection to that juror. (People v. Collins (1985), 106 Ill.2d 237, 271, 87 Ill. Dec. 910, 478 N.E.2d 267.) Considerations of waiver aside, defendant's argument is meritless. A juror's exposure to publicity about a case is not enough to demonstrate prejudice; jurors need not be totally ignorant of the facts and issues involved. (People v. Sutherland (1992), 155 Ill.2d 1, 15, 182 Ill.Dec. 577, 610 N.E.2d 1.) What is essential is the juror's ability to lay aside impressions or opinions and return a verdict based upon the evidence presented in court. Sutherland, 155 Ill.2d at 16, 182 Ill.Dec. 577, 610 N.E.2d 1.
In order to minimize the impact of pretrial publicity, the jury was selected from a pool composed of residents of Rock Island County, rather than Lake County, where the offense occurred. While defendant contends that five jurors were aware of his convictions in other jurisdictions, review of the record reveals that only two of the jurors identified by defendant had such knowledge. Those jurors had only minimal knowledge of the defendant's other offenses and were apparently unfamiliar with the details of those offenses. Both of the jurors indicated that they believed they could disregard defendant's prior convictions and decide the issues based solely on the evidence.
A juror's knowledge of the accused's prior convictions for other offenses does not create a presumption of prejudice. (Murphy v. Florida (1975), 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589.) Defendant attempts to distinguish Murphy on the basis that, unlike the case at bar, the prior convictions in Murphy did not arise from the same "crime spree" as the pending charges. We do not find the distinction to be persuasive. Whatever the content of the pretrial publicity, from a constitutional standpoint the ultimate question remains whether the juror is "to be believed when he says he has not formed an opinion about the case." (Mu'Min v. Virginia (1991), 500 U.S. 415, 425, 111 S.Ct. 1899, 1905, 114 L.Ed.2d 493, 506 (holding that the accused is not constitutionally entitled to inquire as to the content of pretrial publicity to which prospective jurors have been exposed).) The jurors in question offered their assurances of impartiality, and defendant points to nothing casting suspicion on those assurances.
We note parenthetically that inflammatory pretrial publicity may sometimes rise to a level creating "such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed." (Patton v. Yount (1984), 467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847, 854, citing Irvin v. Dowd (1961), 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751.) However, the jury in this case was selected in Rock Island County, not Lake County, where the offense occurred. Nothing indicates that pretrial publicity generated a sense of community outrage in Rock Island County.
Defendant also contends that some jurors may have been aware that defendant had previously been sentenced to death in other jurisdictions, thus diminishing the jurors' *939 sense of responsibility for imposing the death penalty in the case at bar. The record provides no support for defendant's contention that any members of the jury were aware he had previously been sentenced to death.
D. Peremptory Challenges to Jurors Expressing Reservations About the Death Penalty
Defendant argues that the trial court erred in allowing the State to exercise peremptory challenges against certain prospective jurors who expressed some reservations about the death penalty, but whose views did not rise to the level of cause under Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and its progeny. Under Witherspoon, a prospective juror may not constitutionally be excused for cause based on general objections to the death penalty on moral or religious grounds. Defendant contends that through the use of peremptory challenges the State was able to achieve what it could not achieve through the use of challenges for cause: "a jury uncommonly willing to condemn a man to die" (Witherspoon, 391 U.S. at 521, 88 S.Ct. at 1776, 20 L.Ed.2d at 784). On several occasions, this court has held that Witherspoon does not limit the use of peremptory challenges. (People v. Williams (1994), 161 Ill.2d 1, 55-56, 204 Ill.Dec. 72, 641 N.E.2d 296; People v. Howard (1991), 147 Ill.2d 103, 136-38, 167 Ill.Dec. 914, 588 N.E.2d 1044; People v. Stewart (1984), 104 Ill.2d 463, 481-82, 85 Ill.Dec. 422, 473 N.E.2d 1227.) Defendant acknowledges these decisions but urges us to reconsider them. However, we find no persuasive reason to depart from this court's holdings in this area. Accordingly, the circuit court properly dismissed this post-conviction claim.
E. Death-Qualified Jury
Defendant contends that it was improper to allow "death qualification" of the jury. Defendant maintains that in a case where the same jury determines guilt and decides whether the death penalty will be imposed, it is impermissible to excuse prospective jurors for cause based on their views about the death penalty even when the standard for exclusion under Witherspoon v. Illinois (1968), 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, and its progeny has been satisfied. Defendant acknowledges that in Lockhart v. McCree (1986), 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137, the United States Supreme Court upheld the use of Witherspoon challenges in capital cases where a single jury sits at both the guilt and sentencing phases. However, defendant argues that we should prohibit "death qualification" under the due process clause of our State constitution (Ill. Const.1970, art. I, § 2). We find no persuasive reason to do so.
Even prior to McCree, on several occasions this court rejected the argument that qualification of prospective jurors pursuant to Witherspoon results in a conviction-prone jury, denying the accused a fair trial. (See People v. Collins (1985), 106 Ill.2d 237, 278, 87 Ill.Dec. 910, 478 N.E.2d 267 (and cases cited).) Shortly after McCree was decided, this court stated that upon independent consideration of the matter, the court perceived no State constitutional basis for departing from its prior cases and the United States Supreme Court's position on the same issue. (People v. Sanchez (1986), 115 Ill.2d 238, 266, 104 Ill.Dec. 720, 503 N.E.2d 277.) Accordingly, defendant's contention that "death qualification" violates our State constitution is meritless.
F. Death Eligibility Under the Multiple Murders Factor Based on Subsequent Murders
Defendant was found eligible for the death penalty under the multiple-murder eligibility factor (Ill.Rev.Stat.1983, ch. 38, par. 9-1(b)(3)) on the basis of convictions for other murders which occurred after the murder of Vernita Wheat. Defendant argues that because at the time of the Vernita Wheat murder the other murders had not yet been committed, he had no notice of his eligibility for the death penalty, and imposition of the death penalty violates due process. In support of this argument, defendant relies exclusively on Bouie v. City of Columbia (1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. In Bouie, the Court recited the venerable due process axiom that a criminal statute must be "`sufficiently explicit to *940 inform those who are subject to it what conduct on their part will render them liable to its penalties.'" (Bouie, 378 U.S. at 351, 84 S.Ct. at 1701, 12 L.Ed.2d at 898, quoting Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328.) We fail to see how that principle was offended here. The relevant statutory provision placed defendant on notice that after the murder of Vernita Wheat, the commission of additional murders in Illinois or another jurisdiction would make him eligible for the death penalty. We further note that this court has previously held that the multiple-murder eligibility factor does not violate due process simply because eligibility may be based on conduct occurring after the murder for which punishment is imposed. See People ex rel. Daley v. Strayhorn (1988), 121 Ill.2d 470, 483, 118 Ill.Dec. 387, 521 N.E.2d 864.
In a related point, defendant notes that in People v. Albanese (1984), 104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246, this court held for the first time that a defendant could be found eligible for the death penalty under the multiple-murder factor on the basis of murders committed after the murder for which the defendant was being sentenced. Defendant contends that because Albanese was decided after the Vernita Wheat murder, he did not have notice of this interpretation of the statutory eligibility factor. In Bouie, the Court held that "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law" and is forbidden by the due process clause. (Bouie, 378 U.S. at 353-54, 84 S.Ct. at 1702-03, 12 L.Ed.2d at 899-900.) However, Albanese hardly represents an "unforeseeable judicial enlargement" of the multiple-murder eligibility factor. Instead, Albanese simply held that under the plain language of the statute, eligibility pursuant to the multiple-murder factor does not depend on the sequence of the murders. (Albanese, 104 Ill.2d at 533-34, 85 Ill.Dec. 441, 473 N.E.2d 1246.) A judicial decision which merely interprets a statute in accordance with its plain and unambiguous language does not operate like an ex post facto law. Defendant's argument is without merit.
G. Evidence of the Death Penalty's Lack of a Deterrent Effect
Defendant contends that the trial court erred in granting the State's motion in limine barring defendant from introducing evidence that the death penalty has proved ineffective as a deterrent to crime. In People v. Williams (1983), 97 Ill.2d 252, 301, 73 Ill.Dec. 360, 454 N.E.2d 220, this court held that such testimony is improper, noting that "[arguments against the death penalty in general and not containing evidence in mitigation are inadmissible." Defendant seeks to distinguish Williams, noting in that case the witnesses whose testimony was barred would have testified as to their beliefs about the unwisdom and immorality of the death penalty and the repellant nature of an execution in the electric chair, in addition to the death penalty's lack of deterrence. However, this court concluded that none of this evidence was admissible. Accordingly, defendant's argument is without merit.
H. Constitutionally Infirm Jury Instructions at Sentencing
Citing People ex rel. Free v. Peters (N.D.Ill.1992), 806 F.Supp. 705, defendant argues that the instructions to the jury at sentencing result in the arbitrary and unguided imposition of the death penalty in violation of the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV). As defendant acknowledges, the United States Court of Appeals for the Seventh Circuit reversed the district court decision in Free, concluding that the jury instructions are not constitutionally infirm. (Free v. Peters (7th Cir. 1993), 12 F.3d 700.) This court has previously endorsed the Seventh Circuit's reasoning on this question. (People v. Franklin (1995), 167 Ill.2d 1, 29, 212 Ill.Dec. 153, 656 N.E.2d 750; People v. Kokoraleis (1994), 159 Ill.2d 325, 333-34, 202 Ill.Dec. 279, 637 N.E.2d 1015; see also People v. Thomas (1995), 164 Ill.2d 410, 432, 207 Ill.Dec. 490, 647 N.E.2d 983.) While defendant urges us to reconsider the question, we see no persuasive reason to depart from our holdings. The circuit court properly dismissed defendant's post-conviction *941 claims alleging unconstitutional jury instructions at sentencing.
I. Natural Life Instruction
Because of defendant's multiple murder convictions, the only sentencing alternative to the death penalty was natural life imprisonment. (Ill.Rev.Stat.1983, ch. 38, par. 1005-8-1(a)(1).) Defendant contends that the trial court erred in refusing his tendered instruction informing the jury that if the death penalty were not imposed, he would receive a mandatory natural life sentence. Instead, the jury was simply instructed that if defendant were not sentenced to death the trial court would sentence him to a term of imprisonment. See Illinois Pattern Jury Instructions, Criminal, No. 7A.01 (2d ed. 1981).
This court addressed the same issue in defendant's direct appeal. (People v. Coleman (1989), 129 Ill.2d 321, 348-49, 135 Ill. Dec. 834, 544 N.E.2d 330.) The court noted that in People v. Gacho (1988), 122 Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146, a prospective rule was announced requiring jurors to be informed of the mandatory natural life sentence for offenders convicted of multiple murders who do not receive the death penalty. However, because defendant's sentencing occurred prior to the decision in Gacho, it did not apply to his case. (Coleman, 129 Ill.2d at 348, 135 Ill.Dec. 834, 544 N.E.2d 330.) This court further held that the Gacho rule was not of constitutional dimension, and thus rejected the argument that under the principles of Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649, Gacho applied retroactively to cases pending on direct review when it was announced. (Coleman, 129 Ill.2d at 349, 135 Ill.Dec. 834, 544 N.E.2d 330.) Defendant currently attempts to offer slightly different rationales for applying Gacho retroactively. However, because the issue has already been decided, the doctrine of res judicata precludes reconsideration of the issue. See People v. Franklin (1995), 167 Ill.2d 1, 23, 212 Ill.Dec. 153, 656 N.E.2d 750.
Defendant also cites the United States Supreme Court's decision in Simmons v. South Carolina (1994), 512 U.S. ___, 114 S.Ct. 2187, 129 L.Ed.2d 133, in support of his claim that the jury should have been instructed on mandatory natural life imprisonment for multiple murders. In Simmons, the Court held that if the defendant's future dangerousness is at issue and under State law the only sentencing alternative to the death penalty is life imprisonment without parole, due process requires that the sentencing jury be accurately informed of that alternative.
This court has yet to decide whether Simmons applies retroactively in post-conviction proceedings where the defendant's conviction and sentence were affirmed on direct review before Simmons was decided. (See Franklin, 167 Ill.2d at 24-25, 212 Ill.Dec. 153, 656 N.E.2d 750.) Assuming for the sake of argument that Simmons does apply retroactively, defendant's reliance on Simmons is misplaced. In Simmons, the prosecution specifically raised the issue of the defendant's future dangerousness during closing argument by asking the jury "what to do with [the defendant] now that he is in our midst" and by stating that a death sentence would be "a response of society to someone who is a threat. Your verdict will be an act of self-defense." (Simmons, 512 U.S. at ___, 114 S.Ct. at 2190-91, 129 L.Ed.2d at 139.) The Court held, in essence, that due process entitled the defendant to inform the jury that if sentenced to life imprisonment he would never be released on parole in order to rebut the prosecution's argument that, if not executed, defendant would pose a threat to society. (Simmons, 512 U.S. at ___, 114 S.Ct. at 2193, 129 L.Ed.2d at 142 (plurality opinion); Simmons, 512 U.S. at ___, 114 S.Ct. at 2201, 129 L.Ed.2d at 151 (O'Connor, J., concurring, joined by Rehnquist, C.J., and Kennedy, J.).) We note that no majority opinion was delivered in Simmons. The reasoning of the plurality opinion might arguably apply in situations where the State does not argue future dangerousness. However, only a more limited rule applicable where the prosecution specifically argues future dangerousness received the support of a majority of the members of the Court. (See Note, Simmons v. South Carolina: Safeguarding a Capital Defendant's Right to Fair Sentencing, 26 Loy.U.Chi.L.J. 511, 539-40 (1995).) Here, unlike Simmons, the State did not rely on future dangerousness in its argument to the *942 jury as a reason for imposition of the death penalty. Thus Simmons does not apply.
Defendant appears to acknowledge that the prosecution did not raise the issue of future dangerousness. However, defendant maintains that the pre-Gacho instruction given here itself raises the issue of future dangerousness. We disagree. While the instruction may not dispel concerns of future dangerousness as effectively as a Gacho instruction, neither does the instruction raise the issue of future dangerousness in the sense contemplated by Simmons. Defendant also contends that the State in effect misled the jury about sentencing alternatives. During his closing argument at the aggravation/mitigation stage of sentencing, defendant intimated that if the death penalty was not imposed, he would receive a life sentence. The trial court sustained the State's objection to these remarks. Even if the State's objection could somehow be viewed as misleading, defendant's argument would fail. Citing a footnote in the plurality opinion, defendant contends that Simmons embraces a general principle that the prosecutor may not mislead the jury. In context, the comments in the footnote to which defendant refers are clearly limited to cases where the prosecution has placed future dangerousness at issue. (Simmons, 512 U.S. at ____ n. 5, 114 S.Ct. at 2194 n. 5, 129 L.Ed.2d at 143 n. 5 ("[T]he State may not mislead the jury by concealing accurate information about the defendant's parole ineligibility. The Due Process Clause will not tolerate placing a capital defendant in a straitjacket by barring him from rebutting the prosecution's arguments of future dangerousness with the fact that he is ineligible for parole under state law").) Thus Simmons does not support defendant's claim that he was constitutionally entitled to have the jury instructed on the mandatory natural life sentence for multiple murder convictions.
J. Reliability of the Sentencing Phase Verdict
Defendant claims that the trial judge erred in allowing the jury to deliberate on whether the death penalty should be imposed without first hearing mitigating evidence of his background and mental or emotional condition. According to defendant the absence of such evidence undermined the reliability of his sentence in contravention of the guarantees of the eighth amendment.
Courts in other jurisdictions have considered and rejected the argument that the eighth amendment requires that mitigating evidence must somehow be presented on a defendant's behalf notwithstanding the defendant's choice to refrain from introducing it. In Wallace v. State (Okla.Crim.App. 1995), 893 P.2d 504, the defendant argued that the eighth amendment requires the sentencer to consider mitigating evidence to reach a rational and individualized determination of the appropriate sentence and when the defendant refused to present such evidence the death sentence was imposed in an arbitrary and unreliable manner. Quoting from the decision of the Supreme Court of California in People v. Bloom (1989), 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, the Wallace court responded:
"`[T]he required reliability is attained when the prosecution has discharged its burden of proof at the guilt and penalty phases pursuant to the rules of evidence and within the guidelines of a constitutional death penalty statute, the death verdict has been returned under proper instructions and procedures, and the trier of penalty has duly considered the relevant mitigating evidence, if any, which the defendant has chosen to present. A judgment of death entered in conformity with these rigorous standards does not violate the Eighth Amendment reliability requirements.'" (Emphasis added.) (Wallace, 893 P.2d at 511, quoting Bloom, 48 Cal.3d at 1228, 259 Cal.Rptr. at 690, 774 P.2d at 719.)
(Accord Silagy v. Peters (7th Cir.1991), 905 F.2d 986, 1008.) We agree and find this reasoning consistent with language in decisions of this court and the United States Supreme Court indicating that the eighth amendment is complied with where the defendant has the opportunity to present mitigating evidence. (See People v. Silagy (1984), 101 Ill.2d 147, 181, 77 Ill.Dec. 792, 461 N.E.2d 415 ("Society's interest in the proper administration of justice is preserved by giving *943 a defendant the right freely to present evidence in mitigation"); Wallace, 893 P.2d at 510 n. 4 (and cases cited).) In the case at bar, defendant did in fact present some mitigating evidence relating to his desire to find peace with God. Defendant now claims that other mitigating evidence should have been introduced, but because he was afforded a complete opportunity to present mitigating evidence as he saw fit, and because rigorous procedural standards were adhered to in connection with sentencing, defendant's sentence is not constitutionally unreliable.
K. Racial Discrimination in Sequence of Prosecutions
Defendant alleges in his post-conviction petition that representatives of the State met with prosecutors in other jurisdictions to determine the sequence of prosecutions arising from defendant's alleged multistate crime spree, and that as a result it was decided that defendant would first be tried for the murder of Marlene Walters, the only white victim among the several alleged murder victims. While defendant contends that this decision violated his constitutional rights, he has failed to cite any pertinent authority or advance any meaningful argument or analysis in support of this contention. Accordingly, the issue is waived. See People v. Patterson (1992), 154 Ill.2d 414, 472, 182 Ill.Dec. 592, 610 N.E.2d 16.
L. Constitutionality of the Death Penalty
Defendant finally urges us to abolish the death penalty altogether. In Gregg v. Georgia (1976), 428 U.S. 153, 187, 96 S.Ct. 2909, 2913-32, 49 L.Ed.2d 859, 882-83, the United States Supreme Court rejected the proposition that imposition of the death penalty for the crime of murder is, under all circumstances, cruel and unusual punishment under the eighth and fourteenth amendments to the United States Constitution. Defendant argues that Gregg should be "overruled." Defendant also contends that in view of the international trend disfavoring the death penalty, capital punishment is contrary to evolving standards of due process. Defendant has failed to cite any pertinent authority or advance any meaningful analysis in support of this contention. As presented, this argument and defendant's related assertion that the death penalty is violative of the United Nations Charter are without merit.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Lake County dismissing or denying each of defendant's post-conviction claims is affirmed. The clerk of this court is directed to enter an order setting Tuesday, January 23, 1996, as the date on which the sentence of death, entered in the circuit court of Lake County, is to be carried out. Defendant shall be executed in the manner provided by law. (Ill.Rev.Stat.1991, ch. 38, par. 119-5.) The clerk of this court shall send a certified copy of the mandate to the Director of Corrections, to the warden of Stateville Correctional Center, and to the warden of the institution where defendant is now confined.
Affirmed.
Justice MILLER, concurring:
I concur in the judgment of the court, and I join much of the court's opinion. Unlike the majority, however, I would reject the defendant's claim of ineffective assistance of counsel at the second stage of the sentencing hearing squarely on the ground that the defendant, acting pro se at that time, can make no claim that counsel was ineffective. See McKaskle v. Wiggins (1984), 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122, 133 n. 8; Faretta v. California (1975), 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562, 581 n. 46, People v. Gibson (1990), 136 Ill.2d 362, 382, 144 Ill.Dec. 759, 556 N.E.2d 226.
Six days before trial, the defendant chose to proceed pro se. The two public defenders who had been representing the defendant were then appointed to act as standby counsel. Following the defendant's conviction for murder and aggravated kidnapping, the State asked for a death penalty hearing. For the first stage of the sentencing hearing, the defendant requested the assistance of counsel, and the two public defenders represented him during that portion of the case. At the second stage of the hearing, however, the defendant once more waived the assistance *944 of counsel, and the two public defenders again acted only as standby counsel. The only evidence in mitigation presented by the defendant was the testimony of a clergyman. (People v. Coleman (1989), 129 Ill.2d 321, 331, 135 Ill.Dec. 834, 544 N.E.2d 330.) The defendant now contends that additional evidence in mitigation could have been introduced at the death penalty hearing.
To avoid the principle that a person proceeding pro se may not later complain that he received the ineffective assistance of counsel, the defendant attempts to couch the present argument in terms of the attorneys' failure to adequately prepare for the sentencing hearing during the period when they were still representing him. Thus, the defendant states in his reply brief that counsel in this case "neglected to obtain [mitigating] evidence in a manner which would allow it to be introduced at the sentencing hearing and thereby prevented the Petitioner from having any chance of presenting such evidence after the Attorneys' discharge." Nowhere, however, does the defendant explain in what way the conduct of his former attorneys actually prevented him from introducing evidence in mitigation. This is not a case in which former counsel's conduct later precluded a defendant, then pro se, from introducing evidence, presenting a motion, or doing anything else. Here, the defendant seeks merely to avoid the consequences of his decision to represent himself during the second stage of the sentencing hearing.
To succeed on a claim of this nature, the defendant should be required to establish, at the least, that actions of the defense attorneys prior to their withdrawal from the case actually prevented the defendant from accomplishing something he would otherwise have been able to do while acting pro se. To suggest otherwise means that counsel not only must prepare, on the schedule they determine, the case they believe they will be presenting, but also must anticipate their eventual unemployment and do in advance whatever additional preparation the pro se defendant's case will require. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1566115/ | 34 So. 3d 717 (2009)
STATE of Alabama
v.
Marvin Tobias COWLING.
CR-07-1544.
Court of Criminal Appeals of Alabama.
October 2, 2009.
*718 Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellant.
Timothy A. Offord, Jr., Montgomery, for appellee.
WINDOM, Judge.
The State of Alabama appeals the circuit court's May 30, 2008 order granting Marvin Tobias Cowling's "Motion to Suppress." On January 26, 2007, the Montgomery County Grand Jury issued an indictment charging Cowling with one count of possession of marijuana for other than personal use, a violation of § 13A-12-213, Ala.Code 1975, and one count of possession of drug paraphernalia, a violation of § 13A-12-260, Ala.Code 1975.
On April 10, 2007, Cowling filed a "Motion to Suppress," in which he argued that the State's evidence should be suppressed because such evidence was the fruit of an illegal search and seizure. After conducting an evidentiary hearing, the circuit court granted Cowling's motion. However, the circuit court subsequently entered an order on April 30, 2007 denying Cowling's motion. One year later, on April 30, 2008, Cowling filed a "Motion to Renew Motion to Suppress," wherein he moved the circuit court to "clarify any ambiguity created with the original motion," and suppress all evidence obtained by the police relating to his case. (C.R. 24.) After conducting a second hearing on May 30, 2008, the circuit court set aside its April 30, 2007 order and granted Cowling's "Motion to Renew Motion to Suppress." On June 3, 2008, the State of Alabama timely filed its notice of appeal.[1]
The following facts were established during the suppression hearing. On August 6, 2006, Officer R.J. Harris, with the Montgomery Police Department, along with several additional officers, executed a search warrant on a duplex home located *719 at 1112 Oak Street in Montgomery, Alabama (hereinafter "the duplex"). The search warrant was obtained based upon alleged alcohol violations occurring at the duplex. Officer Harris and her fellow officers were instructed that there would be drugs in the area and that anyone near the duplex should be interviewed. (R. 9.)
Upon arriving at the duplex, the officers pulled into a grassy lot, used for parking, that adjoined the duplex. "[D]irt driveways" running through the grassy lot connected the backyard of the duplex to the street. (R. 13, 7.)
As the officers drove onto the grassy lot, Cowling and several other men were standing around Cowling's automobile. When the men noticed the officers approaching, Cowling and the other men got into Cowling's vehicle. As the officers were parking and getting out of their vehicles, Cowling and the other men "got out and started running down Oak Street." (R. 8.) Officer Harris and the other officers chased Cowling and the other individuals, eventually caught them, and brought them back to the lot in order to talk with them. Officer Harris testified that the individuals were not under arrest at that time, rather that the officers chased the individuals in order to "detain them to see why they're running because it's supposed to be drugs and alcohol at that residence." (R. 15.)
While the officers were questioning Cowling and the others in an attempt to determine why they ran, Officer Harris observed marijuana smoke emanating from the interior of Cowling's car. After discovering the marijuana smoke, Office Harris searched Cowling's vehicle and found a burning marijuana cigarette, digital scales, and ten ounces of prepackaged marijuana inside. Shortly thereafter, Cowling admitted that the car and the items inside belonged to him. Based on this evidence, the circuit court suppressed Cowling's statement and the evidence seized from his car.
On appeal, the State argues that the circuit court erroneously granted Cowling's renewed motion to suppress evidence seized or obtained during Cowling's detention and the search of his car. Specifically, the State argues that law enforcement officers had sufficient reasonable suspicion to detain Cowling under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny; therefore, Cowling's statement should not have been suppressed. The State further argues that the search of Cowling's car was proper under the "automobile exception" because probable cause existed to justify the search; therefore, the circuit court should not have suppressed the evidence found in Cowling's car. This court agrees with both of the State's arguments.
"This Court reviews de novo a circuit court's decision on a motion to suppress evidence when the facts are not in dispute." State v. White, 28 So. 3d 827, 829 (Ala.Crim.App.2009) (citing State v. Skaggs, 903 So. 2d 180, 181 (Ala.Crim.App. 2004)) (internal citations omitted). In the instant case, the facts are uncontested; therefore, the only issue before this court is the circuit court's application of the law to those facts. Consequently, this Court affords no presumption in favor of the circuit court's ruling and reviews the circuit court's decision de novo.
It is well settled that warrantless searches and seizures are per se unreasonable under the Fourth Amendment unless the State establishes that the search or seizure falls within a recognized exception. Ex parte Hilley, 484 So. 2d 485, 488 (Ala. 1985). Exceptions to the warrant requirement include: 1) objects in plain view; 2) consensual searches; 3) a search incident to a lawful arrest; 4) hot pursuit or emergency *720 situations; 5) probable cause coupled with exigent circumstances; and 6) an investigatory detention and frisk pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Ex parte Tucker, 667 So. 2d 1339, 1343 (Ala.1995). Another recognized exception to the warrant requirement is the "automobile exception," which allows law enforcement to search an automobile based on probable cause alone. State v. Black, 987 So. 2d 1177, 1180 (Ala.Crim.App.2006) (citing Maryland v. Dyson, 527 U.S. 465, 466-67, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999)). Thus, this court must determine whether Cowling's detention and the subsequent search of his vehicle fall within one of these recognized exceptions to the Fourth Amendment's warrant requirement.
I.
The State first argues that, under the totality of the circumstances, the police officers had a reasonable suspicion to believe that Cowling was engaged in criminal activity; therefore, his brief detention was justified under Terry v. Ohio and its progeny. The State further argues that because Cowling's detention falls within the Terry exception, the circuit court erroneously granted Cowling's motion to suppress evidence obtained pursuant to that detention, i.e., Cowling's inculpatory statement.
Regarding a brief investigatory detention,
"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)."
Muse v. State, [CR-08-0699, Aug. 28, 2009] ___ So.3d ___, ___ (Ala.Crim.App. 2009) (quoting Ex parte Carpenter, 592 So. 2d 627, 629 (Ala.1991)); see also Gaskin v. State, 565 So. 2d 675, 677 (Ala.Crim.App. 1990) ("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 make a brief investigatory detention based upon a `reasonable suspicion' of criminal activity.").
"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)."
Muse, ___ So.3d at ___. A brief investigatory detention is proper under Terry if, based on the totality of the circumstances, "the detaining officers . . . have a particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).
*721 In the instant case, Officer Harris and the other officers were in the process of executing a search warrant on a duplex at 1112 Oak Street. Prior to executing the warrant, Officer Harris was informed that the area was known for drug activity. Upon arriving at the duplex, the officers pulled into a vacant, grassy lot, used for parking by the occupants of the duplex. As the officers were pulling into the lot, Officer Harris saw Cowling and other individuals standing next to a car. When Cowling noticed the officers, he and the other individuals got into the car. Shortly thereafter, the officers parked their cars. While the officers parked their cars, Cowling and three other individuals got out of Cowling's car and ran from the officers. The officers chased and caught Cowling to question him regarding why he ran. During the brief detention, Cowling made inculpatory statements.
Cowling's presence in an area known for drug activity coupled with his unprovoked flight from the police provided the officers a reasonable suspicion to believe that Cowling was involved in criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 124-25, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000) (holding that a defendant's presence in a high crime area coupled with the defendant's unprovoked flight upon noticing the police justified an investigatory stop pursuant to Terry). Therefore, Cowling's detention was not unlawful, and the circuit court erroneously granted Cowling's motion to suppress evidence resulting from that detention, i.e., Cowling's inculpatory statement.
II.
The State next argues that the circuit court erroneously suppressed evidence seized from Cowling's car because Officer Harris had probable cause to believe that evidence of a crime existed in the car. Specifically, the State asserts that the search of Cowling's car was proper under the "automobile exception" to the warrant requirement because Officer Harris observed smoke emanating from the car and smelled burning marijuana. We agree.
As noted above, one recognized exception to the warrant requirement is the "automobile exception," which allows law enforcement to search an automobile based on probable cause alone. Black, 987 So.2d at 1180 (citing Dyson, 527 U.S. at 466-67, 119 S. Ct. 2013). Under the "automobile exception" to the warrant requirement, "`[a] warrantless search of a vehicle is justified where there is probable cause to believe the vehicle contains contraband.'" Harris v. State, 948 So. 2d 583, 587 (Ala.Crim.App.2006) (quoting Lykes v. State, 709 So. 2d 1335, 1337 (Ala.Crim.App. 1997)). "`Probable cause to search a vehicle exists when all the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and the vehicle contains contraband.'" Harris, 948 So.2d at 587 (quoting State v. Odom, 872 So. 2d 887, 891 (Ala.Crim.App.2003)). "The level of evidence needed for a finding of probable cause is low." State v. Johnson, 682 So. 2d 385, 387 (Ala.1996). "In dealing with probable cause . . . we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, and legal technicians act. . . ." Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). "[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Stone v. State, 501 So. 2d 562, 565 (Ala.Crim.App.1986)(quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969)).
*722 At the suppression hearing, Officer Harris testified that after the officers detained Cowling, she walked over to Cowling's vehicle. Once she was next to the vehicle, Officer Harris noticed smoke emanating from the interior of the vehicle and that the smoke smelled like marijuana. Officer Harris further testified that it was the marijuana smoke that "drove" her to look inside the vehicle, where she found a burning marijuana cigarette, ten ounces of prepackaged marijuana, and digital scales. (C. 9, R. 10.)
"[I]t is well settled . . . that the odor of burned marijuana emanating from an automobile is enough to provide probable cause to search the vehicle." Blake v. State, 772 So. 2d 1200, 1202 (Ala.Crim.App. 2000). See also State v. Gargus, 855 So. 2d 587, 592 (Ala.Crim.App.2003) (holding that an officer's detection of "the odor of `burnt marijuana smoke' emanating from [a] vehicle. . . established probable cause" to search the vehicle); Key v. State, 566 So. 2d 251, 254 (Ala.Crim.App.1990) (same). C.f. Adams v. State, 815 So. 2d 578, 582, n. 4 (Ala.2001) (holding that "where police officers smell the odor of burned or burning marijuana coming from a legally stopped automobile, police officers have probable cause to arrest all of the automobile's occupants . . ."). Based on Officer Harris's undisputed testimony that she smelled burning marijuana emanating from Cowling's car prior to the search, the officers had "`probable cause to believe the vehicle contained] contraband.'" Harris, 948 So.2d at 587 (quoting Lykes, 709 So.2d at 1337). Therefore, Officer Harris's search of Cowling's car was justified under the "automobile exception" to the warrant requirement. Accordingly, the circuit court erred in granting Cowling's motion to suppress evidence seized during the search of his car.
For the foregoing reasons, the judgment of the circuit court is reversed and this cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
WISE, P.J., and WELCH, KELLUM, and MAIN, JJ., concur.
NOTES
[1] Cowling argues that the State's notice of appeal was untimely; therefore, this appeal should be dismissed. The State, however, filed it notice of appeal on June 3, 2008, less than seven days after the circuit court entered its May 30, 2008 order granting Cowling's renewed motion to suppress. (C.R. 3, 27.) Therefore, the State's notice of appeal was timely pursuant to Rule 15.7, Ala. R.Crim. P. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1970693/ | 647 A.2d 1083 (1994)
John M. SMITH, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.
No. 237, 1993.
Supreme Court of Delaware.
Submitted: August 31, 1994.
Decided: September 23, 1994.
David W. Jones, Blades, Pryor & Benson, P.A., Dover, for appellant.
Gary A. Myers, Dept. of Justice, Georgetown, for appellee.
Before VEASEY, C.J., WALSH and HOLLAND, JJ.
*1085 VEASEY, Chief Justice:
In this appeal we consider whether the Superior Court erred in admitting against defendant below-appellant John M. Smith ("Smith") testimony of Jeanine Weedon ("Mrs. Weedon"), the wife of codefendant below William Weedon, Jr. ("Weedon"). In relevant part, the testimony recounted a conversation Weedon had with Mrs. Weedon on October 10, 1992, that implicated Smith in the subject offenses. For the reasons below, we hold that the Superior Court committed plain error by admitting the pertinent testimony and therefore REVERSE Smith's convictions and REMAND the case to the Superior Court for a new trial.
I. FACTS
In the early morning hours of October 10, 1992, Ronald Ward ("Ward") was attacked while sleeping in his house in Lewes, Delaware. Ward did not see who attacked him. As a result of the attack, Ward received severe injuries to his face, skull, arm and fingers.
Later that morning, Officer Gilbert Clampitt ("Clampitt"), of the Lewes police, stopped a blue Chevrolet Nova for a speeding violation. Smith and Weedon identified themselves, respectively, as the driver and passenger/owner of the vehicle. Located inside the vehicle were two baseball bats. Clampitt ticketed Smith for speeding and allowed the two to proceed.
The police learned of Weedon's and Smith's involvement in Ward's assault primarily through a phone call Mrs. Weedon placed to the Delaware State Police. In that call, she recounted certain events which occurred in early October, 1992, which events are summarized as follows: between 3:00 and 5:00 p.m. on October 9, Weedon arrived at the Weedon residence; Mrs. Weedon apprised Weedon of unfortunate developments relating to the sexual molestation of their children; upon learning from Mrs. Weedon of an accusation by his son Billy that Ward molested him, Weedon declared that he would kill Ward and stormed off; Weedon returned to the Weedon residence between 10:00 and 10:30 a.m., October 10, where he told Mrs. Weedon that he and "John" (later identified as Smith) had gone to Ward's house and beaten Ward with two baseball bats; he continued that "John [Smith] hit him in the head like he was hitting a baseball."
Upon Mrs. Weedon's recitation of the above events, the police pieced together what had occurred in the early hours of October 10, eventually leading to a five-count indictment of Weedon and Smith on January 11, 1993. A joint jury trial commenced on April 26, 1993, in which Smith testified on his own behalf and presented an alibi defense. Weedon did not take the stand. Mrs. Weedon testified as to the events of October 9 and 10, including a recounting of her October 10 conversation with Weedon. The trial ended on May 4, 1993, with the jury finding Weedon and Smith guilty of Attempted Murder *1086 First Degree,[1] Burglary First Degree,[2] Possession of a Deadly Weapon During Commission of a Felony[3] and Conspiracy First Degree.[4] Smith was sentenced on June 18, 1993, to a total incarceration period of 17 years. He filed a timely appeal.[5]
Smith originally raised two contentions on appeal. First, he argued that admission as to Smith of Mrs. Weedon's testimony regarding Weedon's October 10 statement to her violated Bruton[6] and the Confrontation Clause.[7] Second, Smith contended that the Superior Court erred in denying his timely motion for judgment of acquittal. This Court subsequently ordered supplemental briefing on whether Delaware should adopt the standard enunciated in Williamson v. United States, ___ U.S. ___, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994), in defining the scope of D.R.E. 804(b)(3).
II. ANALYSIS UNDER D.R.E. 804(b)(3)
Though conceding that he failed to object to the introduction of this evidence in the Superior Court, Smith argues that the court committed plain error in admitting portions of the October 10 conversation between Weedon and Mrs. Weedon that implicated him. He asserts that Williamson provides the more analytically sound approach to D.R.E. 804(b)(3) issues. The State initially notes that Williamson is only marginally involved because only those portions of Weedon's statement that used a plural, first-person pronoun and the component that directly inculpated Smith are at issue. The State contends that because Williamson was based on federal statutory analysis, this Court is not bound by that decision and, further, that policy considerations favor rejection of Williamson. Premised on such rejection, the State concludes that Weedon's October 10 statement was admissible against Smith under D.R.E. 804(b)(3).[8]
D.R.E. 804(b)(3) only allows admission of truly self-inculpatory statements. That provision, which codifies the declaration-against-interest exception to the hearsay rule, allows admission of the following:
A statement which was, at the time of its making, so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.
D.R.E. 804(b)(3). In Williamson v. United States, ___ U.S. ___, 114 S. Ct. 2431, 129 L. Ed. 2d 476 (1994) (O'Connor, J., majority), the United States Supreme Court clarified the scope of statements admissible under Federal Rule of Evidence 804(b)(3) ("F.R.E. 804(b)(3)"), ___ U.S. at ___-___, 114 S.Ct. at 2433-37, the federal counterpart to D.R.E. 804(b)(3). In that case, a declarant ("Harris") during a custodial interrogation made a confession that incriminated himself as well as the defendant ("Williamson"). Subsequently, Harris recanted parts of his confession as fabricated but made a second confession. The second confession still incriminated himself and Williamson, though under a different set of circumstances. At Williamson's *1087 trial, because Harris (who was called as a witness under use immunity) refused to testify, the court allowed the interrogating officer to recount Harris' second confession which inculpated both Harris (the declarant) and Williamson (the defendant). Id. at ___-___, 114 S.Ct. at 2433-34.
The issue before the Court was whether the confession should be dissected to its self-inculpatory and non-self-inculpatory components. Relying on the denotative meaning of "statement" in F.R.E. 804(b)(3) and the underlying basis for admissibility of such statements trustworthiness attributable to declarations against interest the Court explicated that F.R.E. 804(b)(3) renders admissible only those components of a declarant's confession that are truly self-inculpatory as to the declarant in light of all the surrounding circumstances. Id. at ___-___, 114 S.Ct. at 2436-37.[9]
The policy behind the declaration-against-interest exception is that self-inculpatory statements are inherently reliable and trustworthy. Williamson, ___ U.S. at ___, 114 S.Ct. at 2435 ("reasonable people, even reasonable people who are not especially honest, tend not to make self-incriminatory statements unless they believe them to be true"); United States v. Matthews, 2d Cir., 20 F.3d 538, 545 (1994) ("people do not ordinarily make statements damaging to themselves unless they are true") (quotation omitted). There is no clear policy basis, however, for attributing equal guarantees of trustworthiness to declarations appurtenant to the self-incriminatory ones, particularly those that are self-serving. Williamson, ___ U.S. at ___, 114 S.Ct. at 2435; Lee v. Illinois, 476 U.S. 530, 541, 106 S. Ct. 2056, 2062, 90 L. Ed. 2d 514 (1986); Matthews, 20 F.3d at 545. Justice O'Connor, speaking for the majority of the Supreme Court in Williamson, analyzed the rule as follows:
Rule 804(b)(3) is founded on the commonsense notion that reasonable people, even reasonable people who are not especially honest, tend not to make self-inculpatory statements unless they believe them to be true. This notion simply does not extend to the broader definition of "statement." The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.
* * * * * *
Self-exculpatory statements are exactly the ones which people are most likely to make even when they are false; and mere proximity to other, self-inculpatory, statements does not increase the plausibility of the self-exculpatory statements.
* * * * * *
Nothing in the text of Rule 804(b)(3) or the general theory of the hearsay Rules suggests that admissibility should turn on whether a statement is collateral to a self-inculpatory statement. The fact that a statement is self-inculpatory does make it more reliable; but the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement's reliability. We see no reason why collateral statements, even ones that are neutral as to interest ... should be treated any differently from other hearsay statements that are generally excluded.
* * * * * *
In our view, the most faithful reading of Rule 804(b)(3) is that it does not allow admission of non-self-inculpatory statements, even if they are made within a broader narrative that is generally self-inculpatory. The district court may not just assume for purposes of Rule 804(b)(3) that a statement is self-inculpatory because it is part of a fuller confession, and this is especially true when the statement implicates someone else. *1088 Williamson, ___ U.S. at ___, 114 S.Ct. at 2435.
Although not bound by the Supreme Court's interpretation of F.R.E. 804(b)(3) in construing our identical D.R.E. 804(b)(3), we have repeatedly noted that construction of identical rules by the federal judiciary is accorded "great persuasive weight" in our interpretation of the Delaware counterparts. See Hoffman v. Cohen, Del.Supr., 538 A.2d 1096, 1098 (1988) (quoting Canaday v. Superior Court, Supr., 49 Del. 456, 119 A.2d 347, 352 (1956)).[10] We find Justice O'Connor's reasoning to be persuasive and we therefore adopt it in construing the Delaware rule.[11]
As the Court in Williamson held, there is no theoretical basis for the admission of neutral, collateral statements. Hearsay statements are generally inadmissible. D.R.E. 802.[12] A hearsay declaration is admissible, usually under a specific exception, only where the declaration has some theoretical basis making it inherently trustworthy. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980); D.R.E. 803 (listing hearsay exceptions where availability of declarant is immaterial); D.R.E. 804 (listing hearsay exceptions requiring unavailability of declarant). Thus, absent some special indicia of reliability and trustworthiness, hearsay statements are inadmissible. Neutral, collateral statements enjoy no such guarantees of reliability and trustworthiness. Williamson, ___ U.S. at ___, 114 S.Ct. at 2435. Non-self-incriminatory components of a declaration purportedly falling within D.R.E. 804(b)(3) are presumptively inadmissible hearsay because they cannot claim any special guarantees of reliability and trustworthiness.[13] This result is consistent with Delaware's traditional approach of viewing constitutional protection of confrontation accorded the accused by the United States Constitution as a floor rather than a ceiling. See, e.g., Bryan v. State, Del.Supr., 571 A.2d 170, 176-77 (1990); Hammond v. State, Del.Supr., 569 A.2d 81, 86-87 (1989).
In the instant case, the Superior Court allowed Mrs. Weedon to testify to the entire conversation she had with Weedon on October 10, 1992. In that conversation, Weedon described his assault on Ward, inculpated himself and also inculpated Smith. Under the D.R.E. 804(b)(3) analysis set forth above, only those portions of Weedon's October 10 communication to Mrs. Weedon that were truly self-inculpatory as to Weedon under all the circumstances were admissible. The Superior Court committed plain error in not analyzing the October 10 communication to distill those portions that were truly self-inculpatory and admissible from those that were not.
III. INAPPLICABILITY OF THE CO-CONSPIRATOR EXCEPTION
The State's reliance on D.R.E. 801(d)(2)(E) is misplaced. That provision states in relevant part: "A statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement made by a co-conspirator of a party during the course and in furtherance of the conspiracy[.]" *1089 D.R.E. 801(d)(2)(E). To fall within the co-conspirator statement exclusion, the admitted statement must have been made during the course and in furtherance of the conspiracy. Lloyd v. State, Del.Supr., 534 A.2d 1262, 1264 (1987); see also Lutwak v. United States, 344 U.S. 604, 617, 73 S. Ct. 481, 489, 97 L. Ed. 593 (1953) (applying federal counterpart); Krulewitch v. United States, 336 U.S. 440, 442-43, 69 S. Ct. 716, 717-18, 93 L. Ed. 790 (1949) (same).[14] Duration of a conspiracy depends on the fact-specific scope of the original agreement, but generally a conspiracy terminates upon accomplishment of the principal objective unless specific evidence is introduced indicating that the scope of the original agreement included acts taken to conceal the criminal activity. Lutwak, 344 U.S. at 616, 73 S. Ct. at 488; Krulewitch, 336 U.S. at 442-43, 69 S. Ct. at 717-18. A declaration made by a co-conspirator after termination of the conspiracy is inadmissible under the co-conspirator hearsay exclusion against any co-conspirator other than the declarant. Lutwak, 344 U.S. at 617-18, 73 S. Ct. at 489-90; Krulewitch, 336 U.S. at 443, 69 S. Ct. at 718 (reversing conviction where post-conspiracy declaration improperly admitted under exception).
In the instant case, the State does not specify when the conspiracy to assault Ward ended. There is nothing in the record requiring departure from the general rule that a conspiracy terminates upon the accomplishment (successfully or unsuccessfully) of the primary object, here the assault on Ward.[15] Thus, the October 10 conversation does not fall within the ambit of the co-conspirator hearsay exclusion. See D.R.E. 801(d)(2)(E); Lutwak, 344 U.S. at 617-18, 73 S. Ct. at 489-90; Krulewitch, 336 U.S. at 443, 69 S. Ct. at 718.
IV. ANALYSIS UNDER THE CONFRONTATION CLAUSE
Smith contends that the Superior Court erred in admitting Mrs. Weedon's testimony regarding Weedon's October 10 statement because such admission ran afoul of Bruton and the Confrontation Clause. The State retorts that Bruton is unavailing because its rule is predicated on inadmissibility of the subject statement against Smith. The State continues that the precondition is not met here because the October 10 statement was admissible under D.R.E. 804(b)(3) or D.R.E. 801(d)(2)(E). This begs the question and is incorrect as a matter of law.
In a joint trial, admission of a codefendant's confession that also incriminates the defendant violates the Confrontation Clause, Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 1622, 20 L. Ed. 2d 476 (1968), unless the confession is sufficiently redacted to exclude the possibility that a jury will use it against the defendant, Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709, 95 L. Ed. 2d 176 (1987); Blodgett v. State, Del.Supr., 310 A.2d 628, 629 (1973) (analysis under federal Confrontation Clause).[16] The instant case implicates Bruton because it involves a joint trial of codefendants where the inculpatory statement of one defendant (Weedon) was used against both Weedon and the codefendant (Smith). We have held that those statements of Weedon within the October 10 conversation with Mrs. Weedon that were not truly self-inculpatory *1090 did not fall within the ambit of D.R.E. 804(b)(3). See Part II, supra.[17]
The majority in Williamson predicated its decision solely on its interpretation of F.R.E. 804(b)(3) and did not base its decision under the Confrontation Clause.[18] That clause states in relevant part: "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const., amend. VI. Hearsay statements, however, may be admissible notwithstanding the Confrontation Clause if (1) the declarant is unavailable to testify and (2) the statement "bears adequate indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d 597 (1980) (quoting Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S. Ct. 2308, 2313, 33 L. Ed. 2d 293 (1972)). A declarant who invokes the Fifth Amendment testimonial privilege against self-incrimination is "unavailable" for Confrontation Clause purposes. See D.R.E. 804(a)(1) & (2); see also United States v. Bakhtiar, 2d Cir., 994 F.2d 970, 977, cert. denied, ___ U.S. ___, 114 S. Ct. 554, 126 L. Ed. 2d 455 (1993); State v. Payne, Conn. Supr., 219 Conn. 93, 591 A.2d 1246, 1258 (1991); State v. Smith, Me.Supr., 415 A.2d 553, 559 (1980); State v. Grossi, R.I.Supr., 588 A.2d 607, 608 (1991). A statement may be sufficiently reliable if it falls either within a firmly rooted hearsay exception or if it otherwise has "particularized guarantees of trustworthiness." Lee, 476 U.S. at 543, 106 S. Ct. at 2063; Roberts, 448 U.S. at 66, 100 S. Ct. at 2539 (footnote omitted).
The United States Supreme Court has left open the question of whether the declaration-against-interest exception is "firmly rooted." See Williamson, ___ U.S. at ___, 114 S.Ct. at 2437. The lower federal circuits have split on the issue. Compare United States v. York, 7th Cir., 933 F.2d 1343, 1363-64, cert. denied, ___ U.S. ___, 112 S. Ct. 321, 116 L. Ed. 2d 262 (1991) (firmly rooted); United States v. Seeley, 1st Cir., 892 F.2d 1, 2 (1989) (same) with United States v. Flores, 5th Cir., 985 F.2d 770, 783 (1993) (not firmly rooted); Olson v. Green, 8th Cir., 668 F.2d 421, 428, cert. denied, 456 U.S. 1009, 102 S. Ct. 2303, 73 L. Ed. 2d 1305 (1982) (same). This Court need not reach the issue, however, because as earlier discussed, see Part II, supra, we hold that portions of the larger October 10 narrative that were not truly self-inculpatory lacked sufficient indicia of reliability and trustworthiness irrespective of whether D.R.E. 804(b)(3) is a firmly rooted exception.
Given that Weedon's October 10 narrative does not fall within the declaration-against-interest hearsay exception, co-conspirator exclusion, or any other hearsay exception or exclusion, the Superior Court's admission of that statement against Smith constituted plain error under the Delaware Rules of Evidence. To permit the introduction of the evidence as to Smith squarely implicates the Confrontation Clause. See Fuson v. Jago, 6th Cir., 773 F.2d 55, 60-61 (1985), cert. denied, 478 U.S. 1020, 106 S. Ct. 3334, 92 L. Ed. 2d 739 (1986) (interpreting Ohio Rule of Evidence 804(B)(3)). Accordingly, the interpretation of D.R.E. 804(b)(3) which we adopt today saves the constitutionality of the Rule since to construe D.R.E. 804(b)(3) to permit the introduction of the Weedon statement as to Smith would have violated his constitutional rights under the Sixth Amendment to the United States Constitution and Article I, § 7, of the Delaware Constitution.[19]
Furthermore, the Superior Court's error was not harmless. Upon a finding that a defendant's constitutional rights were violated, a reviewing court must "weigh the significance of the error against the strength of the *1091 untainted evidence of guilt to determine whether the error may have affected the judgment." Van Arsdall v. State, Del.Supr., 524 A.2d 3, 11 (1987) (reversal based on Confrontation Clause violation). Constitutional errors are of such magnitude that "reversal is required whenever the reviewing court `cannot say that the error was harmless beyond a reasonable doubt.'" Id. (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967)). In the instant case, there was no untainted direct evidence linking Smith to commission of the subject offenses. The only circumstantial evidence allowing for an inference of culpability was Clampitt's testimony that he stopped a car driven by Smith for speeding in the early morning hours of October 10 and saw two baseball bats in the car's compartment.[20] Given the paucity of untainted evidence against Smith, the gravity of Mrs. Weedon's testimony relating to portions of the October 10 conversation that inculpated Smith is palpable. Thus, the Court cannot say that the improper, wholesale admission of that conversation constituted error that was harmless beyond a reasonable doubt.[21]
We therefore REVERSE Smith's convictions and REMAND the case to the Superior Court for a new trial consistent with this opinion.
NOTES
[1] 11 Del.C. § 636(a)(1).
[2] Id. § 826(1).
[3] Id. § 1447(a).
[4] Id. § 513(1). The fifth count, Criminal Mischief, id. § 811(a)(1), was nolle prossed by the State prior to trial.
[5] In Weedon's companion appeal, this Court, in an opinion issued contemporaneously herewith, affirmed Weedon's conviction. Weedon v. State, Del.Supr., Veasey, C.J. (1994) (OPINION), 647 A.2d 1078.
[6] Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
[7] U.S. Const., amend. VI; Del. Const., art. I, § 7 (1897).
[8] As an initial matter, this Court is empowered to review Smith's argument even though he failed to object to admission against him of the October 10 conversation. Where a party fails to object to introduction of evidence in the Superior Court, the issue is whether plain error mandates review in the interests of justice. Supr.Ct.R. 8; Robertson v. State, Del.Supr. 596 A.2d 1345, 1355 (1991); Weber v. State, Del.Supr., 457 A.2d 674, 680 n. 7 (1983). The Court finds that the Superior Court committed plain error, requiring review in the interests of justice.
[9] Cf. Hooks v. State, Del.Supr., 416 A.2d 189, 201 (1980) (excluding collateral, self-serving statement that was purportedly part of more general, admitted confession); but cf. United States v. Matthews, 2d Cir., 20 F.3d 538, 546 (1994) (those portions of a declaration against interest that have "sufficient `particularized guarantees of trustworthiness'" do not violate the Confrontation Clause and are therefore admissible) (quotation omitted).
[10] See also State v. Riviera, Del.Super., 515 A.2d 182, 184 (1986) (where Delaware has not ruled on the scope of a term in an evidentiary rule, deference to interpretation accorded the term by federal and other states' case law is appropriate, though not binding).
[11] As noted infra the Supreme Court did not predicate its opinion on the Confrontation Clause of the United States Constitution. Hence, we are not bound by any federal constitutional mandate emanating from Williamson.
[12] That rule states: "Hearsay is not admissible except as provided by law or by these Rules." D.R.E. 802. Note that under D.R.E. 801(d)(2) a party defendant's own statement is not hearsay. Thus Weedon's statement to his wife implicating himself is not hearsay as to him. Accordingly, it is admissible as to Weedon unless protected by the marital privilege. In Weedon's companion case decided today, we have held that the marital privilege was waived, the statement was admissible as to Weedon and his conviction was affirmed. Weedon v. State, Del.Supr., Veasey, C.J. (1994) (OPINION), 647 A.2d 1078.
[13] Also, the State's argument that the Court's Special Advisory Committee's failure to adopt a sentence that codified the Bruton rule into D.R.E. 804(b)(3), D.R.E. 804(b)(3) cmt., proves too much. Though analysis under Bruton and D.R.E. 804(b)(3) can be coextensive, the Bruton sentence, had it been adopted, would not have been determinative here; its rejection provides even less guidance.
[14] The Court has earlier noted the parallel between D.R.E. 801(d)(2)(E) and its federal counterpart. Lloyd, 534 A.2d at 1264.
[15] Even if the State had produced evidence expanding the conspiracy to include concealment of the Ward assault, the subject statement involved disclosing the crime and thus would not be in furtherance of this collateral sub-conspiracy.
[16] See also United States v. Enriquez-Estrada, 9th Cir., 999 F.2d 1355, 1359 (1993) (redaction sufficient protection); United States v. Macko, 11th Cir., 994 F.2d 1526, 1536 (1993) (same); United States v. Chatman, 10th Cir., 994 F.2d 1510, 1513, cert. denied, ___ U.S. ___, 114 S. Ct. 230, 126 L. Ed. 2d 185 (1993) (same); United States v. Strickland, 7th Cir., 935 F.2d 822, 826 (1991), cert. denied, ___ U.S. ___, 112 S. Ct. 884, 116 L. Ed. 2d 787 (1992) (same); United States v. Benitez, 2d Cir., 920 F.2d 1080, 1087 (1990) (same); United States v. Espinoza-Seanez, 5th Cir., 862 F.2d 526, 534 (1988) (same); but see United States v. Payne, 8th Cir., 923 F.2d 595, 597, cert. denied, 501 U.S. 1219, 111 S. Ct. 2830, 115 L. Ed. 2d 1000 (1991) (redaction not sufficient to protect defendant's confrontation clause rights); United States v. Pickett, 6th Cir., 746 F.2d 1129, 1132-33 (1984), cert. denied, 469 U.S. 1226, 105 S. Ct. 1222, 84 L. Ed. 2d 362 (1985) (same).
[17] We have also held that the entire October 10 narrative was inadmissible under D.R.E. 801(d)(2)(E). See Part III, supra.
[18] Justices O'Connor and Scalia expressly stated that Confrontation Clause analysis was not necessary in light of the Court's holding. Id. ___ U.S. at ___, 114 S.Ct. at 2437.
[19] Delaware's Confrontation Clause states in relevant part: "In all criminal prosecutions, the accused shall hath a right ... to meet the witnesses in their examination face to face[.]" Del. Const., art. I § 7 (1897). Although it is unnecessary for us to decide whether Smith's constitutional claim under the Delaware Confrontation Clause differs from his claim under the United States Constitution, the Court notes that the protection accorded an accused by that clause may be greater than its federal counterpart. See Van Arsdall v. State, Del.Supr., 524 A.2d 3, 7 n. 5 (1987).
[20] Also, Smith offered an alibi defense in which he essentially claimed he was not in Lewes, Delaware (where Ward was attacked) on October 10. His testimony, however, was contradicted by other witnesses.
[21] The Court finds Smith's primary claim dispositive and thus need not decide Smith's second claim that the Superior Court erred in denying his motion for judgment of acquittal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/480667/ | 807 F.2d 994
U.S.v.Buckley
86-2295
United States Court of Appeals,Fifth Circuit.
12/3/86
1
E.D.Tex.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1565180/ | 34 So. 3d 280 (2010)
STATE of Louisiana
v.
Mark E. RICHIE.
No. 2009-KO-2492.
Supreme Court of Louisiana.
April 30, 2010.
Denied.
CLARK, J., recused. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4558395/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-19-00317-CR
Victor SANTIAGO,
Appellant
v.
The STATE of Texas,
Appellee
From the 290th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR0894
Honorable Jennifer Pena, Judge Presiding
BEFORE JUSTICE CHAPA, JUSTICE RIOS, AND JUSTICE RODRIGUEZ
In accordance with this court’s opinion of this date, the trial court’s judgments of
conviction are AFFIRMED.
SIGNED August 19, 2020.
_____________________________
Luz Elena D. Chapa, Justice | 01-03-2023 | 08-25-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1541069/ | 260 Pa. Super. 85 (1978)
393 A.2d 1024
COMMONWEALTH of Pennsylvania
v.
Ernest COTTLE, Appellant.
Superior Court of Pennsylvania.
Submitted June 21, 1977.
Decided November 3, 1978.
*86 John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Deborah E. Glass, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
*87 VAN der VOORT, Judge:
Appeal is taken from judgment of sentence rendered following revocation of probation. The questions presented here are whether a sentencing judge should be obliged to place upon the record his explanation as to sentencing, or write an opinion thereon; whether the judge in this case abused his discretion in sentencing appellant to confinement when the probation department recommended to the contrary; and whether the sentence was excessive.
The subject of the trial court's need to explain reasons for the sentence given has recently been much discussed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), mandates that such reasons must be made part of the record. See also Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977) and Commonwealth v. Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978). This requirement has been met in this case by Judge BRAIG'S Opinion in which he stated his reasons for his sentence. Therein the sentencing judge pointed out that for four years, during which appellant had been arrested several times, he had not made himself available to probation officials. Consequently he was sentenced to confinement. The lower court opinion amply describes the facts which were the basis of the probation revocation and which gave rise to the sentencing. That opinion states as follows:
"On September 4, 1969 Ernest Cottle appeared before Judge Herbert Levin of the Philadelphia Court of Common Pleas and pled guilty to charges of Aggravated Robbery and Larceny of Motor Vehicle and Receiving Stolen Goods. On the Larceny and Receiving Stolen Goods charges, he was placed on five years probation to begin at the expiration of the sentence on the Robbery charge, the probationary period being from January 25, 1971 to January 25, 1976. During the probationary period, the defendant was arrested on charges of Burglary, Larceny, Receiving Stolen Goods and Violation of the Uniform Firearms Act. He failed to appear for three separate trials and hearings on these charges, and his whereabouts *88 were unknown to anyone in the Courts or Probation Department from September 6, 1972 until his arrest on a Bench Warrant on March 13, 1976. The Bills of Indictments on the charges, which resulted in the three separate arrests during the probationary period, were either nolle prossed or dismissed in April of 1976.
"Defendant appeared before this Court (Judge Levin no longer being on the bench) for a Gagnon I hearing on June 2, 1976 and a Gagnon II hearing on June 22, 1976. At the Gagnon II hearing, this Court found that defendant had violated Judge Levin's sentence of probation on the larceny and Receiving charges, revoked that probation and imposed a sentence of incarceration of 2½ to 5 years on the defendant. Specifically, the violation upon which defendant's probation was revoked was his failure to report to or cooperate with the Probation Department for approximately a four year period."
Furthermore, the Opinion of the court below fully answers the other assignments of error. We find wholly without merit the allegations of abuse of discretion as to sentencing and the claimed excessiveness of the sentence. For appellant to have absented himself from the processes of criminal justice for four years, and to have been arrested and failed to appear in court numerous times during that period, are strong reasons justifying the sentence imposed.
Judgment of sentence affirmed.
SPAETH, J., files a dissenting opinion.
WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.
SPAETH, Judge, dissenting:
The judgment of sentence should be vacated and the case remanded for resentencing by another judge.
*89 -1-
It is settled that the sentencing judge must state the reasons for the sentence. Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).
Here, when imposing sentence, the judge said:
THE COURT: This is a Gagnon 2 Hearing. There is no question in the Court's mind that he is in violation of the terms and conditions of the probation imposed by Judge Levin on Bill of Indictment 549, specifically because of his refusal to report to and cooperate with the efforts of the Probation Department.
I think we have a sufficiently clear record now supported by the facts to reach that conclusion, and I find he has violated the terms and conditions of the probation imposed by Judge Levin. I will therefore revoke that probation and re-impose a prison sentence on Bill 549 of not less than two and a half nor more than five years in the State Correctional Institute.
Now, Mr. Cottle, you have certain appellate rights from the sentence that was just imposed on you, and I would like to read these . . . . [etc.].
N.T. 39.
This statement did not comply with Riggins or Kostka. To be sure, it stated a reason for revoking appellant's probation: "because of his refusal to report to and cooperate with the efforts of the Probation Department." However, that decision made, the judge next had to decide on appellant's sentence. The statement only shows that he decided on the longest possible sentence; no reason for that decision is given.
Neither did the judge in his opinion to this court state any reason for the sentence. The opinion reads as follows:
On September 4, 1969 Ernest Cottle appeared before Judge Herbert Levin of the Philadelphia Court of Common Pleas and pled guilty to charges of Aggravated Robbery and Larceny of Motor Vehicle and Receiving *90 Stolen Goods. On the Larceny and Receiving Stolen Goods charges, he was placed on five years probation to begin at the expiration of the sentence on the Robbery charge, the probationary period being from January 25, 1971 to January 25, 1976. During the probationary period, the defendant was arrested on charges of Burglary, Larceny, Receiving Stolen Goods and Violation of the Uniform Firearms Act. He failed to appear for three separate trials and hearings on these charges, and his whereabouts were unknown to anyone in the Courts or Probation Department from September 6, 1972 until his arrest on a Bench Warrant on March 13, 1976. The Bills of Indictments on the charges, which resulted in the three separate arrests during the probationary period, were either nolle prossed or dismissed in April of 1976.
Defendant appeared before this Court (Judge Levin no longer being on the Bench) for a Gagnon I hearing on June 2, 1976 and a Gagnon II hearing on June 22, 1976. At the Gagnon II hearing, this court found that defendant had violated Judge Levin's sentence of probation on the Larceny and Receiving charges, revoked that probation and imposed a sentence of incarceration of 2½ to 5 years on the defendant. Specifically, the violation upon which defendant's probation was revoked was his failure to report to or cooperate with the Probation Department for approximately a four year period.
When the sentencing judge fails, or refuses, to state the reasons for the sentence, the sentence must be vacated and the case remanded for resentencing. Commonwealth v. Kostka, supra; Commonwealth v. Riggins, supra; Commonwealth v. Wertz, 252 Pa.Super. 584, 384 A.2d 933 (1978).
-2-
It is also settled that on appropriate appeal this court and the Supreme Court have the responsibility to vacate a sentence determined to be so manifestly excessive as to constitute too severe a punishment. Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976). Indeed, one reason for *91 requiring the sentencing judge to state the reasons for the sentence is to enable the discharge of this responsibility. Commonwealth v. Riggins, supra, 474 Pa. at 131, 377 A.2d at 148. Thus, even if here the sentencing judge had stated a reason for imposing the longest possible prison sentence, still we should have to decide whether that sentence was so manifestly excessive as to constitute too severe a punishment.
In making this decision the appellate court must always ask at least two questions: First, did the sentencing judge consider the circumstances of the offense and the character of the offender? Commonwealth v. Martin, supra. And second, did the sentencing judge comply with the Sentencing Code, 18 Pa.C.S.A. §§ 1301 et seq. (Supp. 1977)? The Code provides for five possible sentences, which may be combined,[1] and specific criteria by which the sentencing judge is to choose from among these five. The appellate court must ask whether the sentencing judge's choice of sentence was guided by these criteria. Commonwealth v. Riggins, supra.[2]
Here, the record demonstrates that the sentencing judge gave no consideration to the circumstances of the offense. Appellant pleaded guilty before Judge LEVIN, who is now retired. The sentencing judge therefore did not himself have any knowledge of the circumstances of the offense. The sentencing judge was told that on September 4, 1969, appellant appeared before Judge LEVIN, and pleaded guilty to charges of aggravated robbery, larceny of a motor vehicle *92 and receiving stolen goods; and that Judge LEVIN sentenced appellant to serve six to twenty three months for the robbery, this sentence to expire January 25, 1971, to be followed by five years probation for the larceny and receiving stolen goods. However, all the sentencing judge could learn from this information, so far as the circumstances of the offense were concerned, was that whatever the circumstances were, Judge LEVIN'S opinion must have been that they were such as to dictate a relatively mild sentence.[3]
There was some evidence of appellant's character. This was all received, however, during the Gagnon I and Gagnon II hearings; as appears from the statement by the sentencing judge, quoted page 1 supra, there was in fact no sentencing hearing at all, the judge instead proceeding at once from the decision to revoke probation to the imposition of sentence.
This procedural shortcut is of critical importance. At a Gagnon II hearing, the hearing judge must decide whether the probation has proved to be an "effective vehicle." Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973); Commonwealth v. Davis, 234 Pa.Super. 31, 336 A.2d 616 (1975). If the judge decides that the probation has not proved effective, he may revoke it. Here, the evidence received during the Gagnon I and Gagnon II hearings showed repeated violations of the conditions of Judge LEVIN's probation. Appellant argues that these violations were not important. For example, although he did not report to his probation officer as required, and did not attend an alcoholic treatment program, he says that he has resolved his alcoholism on his own, and has become "a working, tax paying member of society," who has "not even been arrested in the last five years." Appellant's Brief at 25. The Commonwealth argues that appellant's violations of probation were important. For example, the Commonwealth says: "Not only did [appellant] fail to cooperate in *93 any way with the probation department, he was again arrested less than two weeks after the hearing. [Appellant] then failed to appear at the preliminary hearing on this latest charge, jumped bail, and eluded authorities until March 13, 1976, almost four years, admittedly to avoid arrest." Commonwealth's Brief at 8-9. All of this, however, is beside the point. We may assume that appellant's violations of probation were of such a nature as to warrant the hearing judge in finding that appellant's probation had not been an effective vehicle and should therefore be revoked.[4] Given this assumption, the question remained: What sentence should then be imposed? More specifically: Should a new, stricter probation be imposed? Should appellant be fined? Should he be sentenced to a work release program (partial confinement)? Or should he be sentenced to prison (total confinement)? If to prison, how long should his term be? No evidence was received with respect to any of these questions, nor did the sentencing judge address any of them; for no sentencing hearing was held, at which the evidence could have been received, and the questions addressed. In addition, the sentencing judge did not address any of these questions in his opinion to us. Indeed, nothing in the opinion so much as recognizes the existence of the questions, much less the responsibility to answer them by applying the criteria specified in the Sentencing Code.
Of these criteria, three are particularly pertinent. The Code provides in § 1371(c), that:
The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime he is not imprisoned; or
*94 (3) such a sentence is essential to vindicate the authority of the court.
(Emphasis added.)
So far as the record discloses, appellant has not been convicted of another crime. Perhaps the sentencing judge believed that appellant was likely to commit another crime unless imprisoned, but he made no finding to that effect; moreover appellant's failure to commit a crime for several years and his gainful employment, would argue against such a finding. The first two criteria, therefore, do not support a sentence of total confinement.
With respect to the third criterion: The record does suggest that the sentencing judge believed that a sentence of total confinement was essential to vindicate the authority of the court. Thus, at the Gagnon I hearing, the judge said:
But if I understand this situation correctly, he for four years did not show up in court for a variety of charges, for whatever reasons they were dropped. I don't know, but they were dropped, they no longer exist, but he did not cooperate with the Probation Officer for four years.
Now, if that is not an insult to the sentence that Judge LEVIN imposed, I don't know what is.
N.T. 9.
If one accepts this statement, still, it sheds no light on why the judge decided a sentence of total confinement for 2½ to 5 years the longest possible period was required. The essence of the holding in Commonwealth v. Riggins, supra, is that no sentencing judge may impose such a sentence without explanation.
-3-
From the foregoing it is plain that the judgment of sentence should be vacated and the case remanded for resentencing. The only remaining question is whether the remand should be to the same sentencing judge. Several reasons suggest that it should be to a different judge.
In the first place, the connection of the sentencing judge to the case was accidental. As has been mentioned, appellant pleaded guilty before, and was initially sentenced by, *95 Judge LEVIN, who is retired. Accordingly, the usual rule, that sentence should be imposed by the judge before whom the defendant pleads or is tried, is inapplicable.
In the second place, sometimes, when a proceeding gets off on the wrong foot, as this one has, it is better on remand to start fresh, before a judge who has had nothing to do with the case. Here, the conclusion that a fresh start should be made derives in part from the manner in which the sentencing judge conducted the proceedings, in particular his failure to hold any sentencing hearing or to offer any explanation of his sentence. In further part, however, this conclusion derives from a quite remarkable aspect of the record, which has so far not been mentioned, but which requires the most thoughtful consideration.
On February 25, 1969, one Mike Matthew Holmes was sentenced by Judge NIX (now Mr. Justice NIX) for a robbery committed on a SEPTA trolley; the sentence was eleven and a half to twenty three months in prison, to be followed by five years probation. Apparently, at the sentencing, appellant stepped up and confessed to having been involved in the robbery, also up to that point he had not been implicated. That this occurred appears from the transcript of appellant's sentencing proceeding before Judge LEVIN. Then, the assistant district attorney told Judge LEVIN:
At that time, the defendant stepped up and stated he wanted to say something. Judge NIX advised him not to say anything, but he wanted to say something.
He was taken to the District Attorney's office. Detective Hahn interviewed him. The victim still cannot identify the defendant.
Normally, your Honor, I would ask for a more stringent sentence, but since he came in and pled guilty, I would ask for a sentence of six to twenty-three months. Judge NIX said he never experienced anything like this, as a lawyer and as a Judge.
One may suspect that indeed very few lawyers or judges have had such an experience. It is surprising that here, *96 neither the representative of the probation department nor appellant's counsel mentioned this aspect of the case to the sentencing judge; perhaps the explanation is there was no sentencing hearing; the evidence might have seemed irrelevant to a Gagnon hearing. In any case, the transcript of the proceeding before Judge LEVIN is in the record, and presumably was before the sentencing judge.
Furthermore, the representative of the probation department did recommend to the sentencing judge that appellant's probation be terminated and appellant discharged. This recommendation was first made at the Gagnon I hearing. The judge stated that he had "some difficulty" with it, and asked, "What reason do you have for that other than you may have a heavy case load?", going on to say that "[appellant's] failure to report to your office for four years seems to me to be a violation of that probation, without any explanation why he did not appear." N.T. 11-12. At the Gagnon II hearing the following colloquy between the representative of the probation department and the judge occurred:
As Your Honor recalls, on June 2nd Your Honor asked me to be more specific with my reasons for termination.
THE COURT: For recommending.
MR. WHITE: For recommending termination. Your Honor, may I read
THE COURT: Certainly. What are your reasons?
MR. WHITE: Your Honor, at the time there were no direct violations, there were no convictions stemming from an arrest during his period of probation. The expiration date had passed when we had our violation hearing. The defendant had been incarcerated for a total of nine months and 22 days during his probation period. They were periods from 12/18/71 to January 12th, 1972; from March 3, '72, to August 18, '72; from March 13, 1976, to the present date. These incarcerations stem from either his arrest or from his failure to report to the Probation Department. While on probation all of his arrests stemmed from his drinking problem.
*97 He stated that during 1971 and 1972 he was drinking two or three-fifths of whiskey every day. Although he had not reported from 1972, from August '72 until his arrest as a violator on March 13th, 1976, he had, in fact, stopped drinking and had become gainfully employed as a mechanic. This would have been the plan of the probation had he been reporting.
THE COURT: Is that your reason?
MR. WHITE: Those are my reasons.
N.T. 23-24.[5]
Thus the record indicates an initial mitigating circumstance of the most striking sort, and subsequent conduct leading to the probation department's recommendation of discharge. When one considers the sentence imposed, and the manner of its imposition, in light of this record, the conclusion is inescapable that on remand a fresh start should be made.
The judgment of sentence should be vacated, and the case remanded for resentencing before another judge.
NOTES
[1] Order of probation, § 1322; determination of guilt without further penalty, § 1323; partial confinement, § 1324; total confinement, § 1325; and fine, § 1326.
[2] In some cases the appellate court must ask additional questions, as, for example, whether the sentencing judge considered inaccurate or impermissible information, see generally Commonwealth v. Phelps, 450 Pa. 597, 301 A.2d 678 (1973) (defendant and his counsel entitled to examine presentence investigation report); and see Commonwealth v. Smith, 250 Pa.Super. 537, 378 A.2d 1278 (1977) (considering whether sentencing judge could consider statement that defendant was drug dealer), or whether an excessive disparity in sentence has occurred, Commonwealth v. Thurmond, 257 Pa.Super. 464, 390 A.2d 1330 (1978).
[3] The transcript of the proceeding before Judge LEVIN demonstrates that this was indeed the case. This transcript is discussed infra, in part 3 of this opinion.
[4] It must be noted, however, that in fact the hearing judge made no such finding; he only said: "I find he has violated the terms and conditions of the probation imposed by Judge LEVIN. I will therefore revoke that probation and re-impose a prison sentence . . . . [etc.]." See the judge's statement, quoted on page 1026 supra.
[5] Later the witness said that he had "verified" appellant's employment. N.T. 35. At the Gagnon I hearing, when asked, "Do you know whether [appellant] has solved his alcoholic problem?" he had answered, "No, I don't." N.T. 13. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1541080/ | 482 Pa. 212 (1978)
393 A.2d 629
ESTATE of Mike TOSE, Deceased.
Appeal of Andrea TOSE.
Supreme Court of Pennsylvania.
Argued June 27, 1975.
Decided March 23, 1978.
Reargument Denied November 27, 1978.
*213 *214 Harold E. Kohn, Bayard M. Graf, Philadelphia, for appellant.
Desmond J. McTighe, Norristown, for appellees, Leonard H. Tose and Desmond J. McTighe, Executors of Est. of Mike Tose, Dec'd.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
*215 OPINION
NIX, Justice.
Appellant, Andrea Tose, one of the 11 pecuniary legatees under the will of her father-in-law, Mike Tose, deceased, now appeals from a decree of the Orphans' Court Division of the Court of Common Pleas of Montgomery County entered August 23, 1974. The testator died on October 23, 1965, leaving a will under the terms of which he bequeathed One Hundred Sixty Thousand Dollars ($160,000) among 11 pecuniary legatees in varying amounts.[1] In addition, the testator specifically bequeathed his stock to his son, Leonard H. Tose. Leonard was named as co-executor along with Desmond J. McTighe, Esquire.
The first and final account filed by the executors on July 29, 1971, showed that all available assets other than the stock, which was the subject of testator's specific bequest, had been used to pay the Federal Estate and Pennsylvania Inheritance Taxes and other fees and expenses. Leonard Tose contributed Fifty Thousand Eight Hundred Thirty-four Dollars and Sixty-five Cents ($50,834.65) toward the payment of the Federal Estate taxes and the stock had been distributed to Leonard leaving nothing available for distribution to the pecuniary legatees. Andrea Tose, one of the pecuniary legatees, filed objections and supplemental objections to the account alleging that the State and Federal death taxes attributed to Leonard's specific legacy, the stock, should have been apportioned to it and paid by Leonard. She also contended that certain administrative expenses should have been similarly apportioned. The Auditing Judge in his adjudication of March 22, 1972, sustained the position of Ms. Tose with reference to the apportionment of the death taxes attributed to Leonard's specific bequest and thereby made available a fund of Thirty-eight Thousand One Hundred Sixty Dollars and Twenty-six Cents ($38,160.26) for the partial satisfaction of the 11 pecuniary legacies. Exceptions were filed by the executors to the direction *216 to apportion and by Andrea Tose to the allowance of the executors' commission and the failure to direct the apportionment of certain administrative expenses. Both sets of exceptions were dismissed on January 26, 1973.[2]
The executors then filed a schedule of distribution as directed in the adjudication to which Andrea Tose filed objections. An Opinion Sur Objections to a Schedule of Distribution was filed on April 23, 1974, and thereafter exceptions were filed by Andrea Tose. On August 23, 1974, a final decree was entered dismissing the exceptions to the schedule and it is from that decree that this appeal has been taken.
Appellant has raised three arguments. First, it is contended that interest should be paid at a rate of three per cent (3%) per annum on the pecuniary legacies commencing one year from the date of the decedent's death. It is argued that this result is required by the Probate, Estates and Fiduciary Code. Act of June 30, 1972, P.L. 508, No. 164, § 2, 20 Pa.C.S.A. § 3543(a) (1975).[3] Secondly, appellant contends that the interest paid on the delinquent estate and inheritance taxes should not have been apportioned to the pecuniary legacies. Specifically, it is argued that the account of the executors shows that they paid interest on the tax liability in the amount of Nine Thousand Eight Hundred *217 Eighty-one Dollars and Thirty-one Cents ($9,881.31) which was taken into account in charging the pecuniary legatees. It is asserted that the delay in payment of these tax obligations arose because of a dispute as to the value of the stock, which was the subject of the specific bequest, and therefore the pecuniary legatees should not have been held responsible for the interest that accrued. Thirdly, appellant charges that her counsel should have been paid out of the fund "created" for the benefit of all of the pecuniary legatees.
Appellee initially responded to the instant contentions by asserting that these claims should be dismissed because they were not raised in accordance with the rules of court. We find this argument persuasive only as to appellant's second claim. Rule 10, Section 6 of the Supreme Court Orphans' Court Rules, applicable at the time of the proceedings in the lower court, provided as follows:
"Objections to an account . . . shall be made and filed . . . as local rules shall prescribe."
Montgomery County Orphans' Court Rule 70.1 stated:
"Objections to accounts shall be in writing, numbered consecutively, signed by the objector or his attorney, and each objection shall
(1) be specific as to description and amount
(2) raise but one issue of law and fact, but if there are several objections to items included in or omitted from the account relating to the same issue, all such objections shall be included in the same objections; and
(3) set forth briefly the reason or reasons in support thereof."
The first and final account was filed approximately five years and six months after the death of the testator and the account reflected the interest paid on the death taxes as having been apportioned against the fund out of which the pecuniary legatees would otherwise have been paid. Thus, in the objections to the account appellant had available to her the claim that the interest paid on the death taxes should not have been apportioned, as well as her objection, which she did raise, to the portion of the principal of these *218 taxes for which the specific bequest should have been held accountable.[4] Although appellant filed objections and supplemental objections and exceptions to the adjudication, this claim was raised for the first time in the objections to the unconfirmed schedule of distribution. Under the clear language of Montgomery County Orphans' Court Rule 73(c) it was clearly not permissible for the assertion of the claim at that belated stage. Local Rule 73(c) provided:
Objections to unconfirmed schedules of distribution shall be filed with the clerk and may be filed not later than the tenth day after the schedule was filed. Such objections may raise questions relating only to the schedule itself, and shall in no event raise questions which actually were or else could have been raised previously, by claims, or by objections to the account or exceptions to the adjudication. (Emphasis added).
In the Estate of McGrorey, 474 Pa. 402, 378 A.2d 855 (1977), which arose also from Montgomery County, the appropriate objections were apparently properly filed to the account and ruled upon adversely in a nisi adjudication. Nevertheless, we held in that decision that the questions were waived and not reviewable on appeal because the party had failed to file exceptions as provided by the local rules.[5] The procedural irregularity here is more grievous than that in McGrorey, since here this objection was not filed and the Auditing Judge was not presented with the question prior to his confirmation of the account. We therefore hold that appellant's claim for interest paid on the delinquent Federal *219 Estate and Pennsylvania Inheritances taxes has been waived and will not be considered here.
We must reject appellee's arguments of waiver as they pertain to appellant's remaining two claims. Each of these claims were dependent upon a final adjudication providing for a fund available for payment of the pecuniary bequests. It would have been ludicrous to claim interest on the legacies until there was a resolution of the question as to whether the legacies abated because of the absence of a fund to pay them. It would be equally absurd to claim contribution for counsel fees on a theory that new funds had been generated as a result of the litigation until the proceedings establishing the alleged new fund had become final. Both of these claims could not have ripened until the exceptions to the confirmation of the account had been resolved. Appellant properly initiated these claims by raising them at the first available opportunity by way of objections to the schedule of proposed distributions filed by the executors.
We now turn to the merits of appellant's argument that she was entitled to interest at the rate of three per cent (3%) per annum. In her brief appellant concentrates upon the fact that Section 3543(a) of the Probate, Estates and Fiduciaries Code, 20 Pa.S. 3543(a) and its predecessor, Section 753 of the Fiduciaries Act of 1949, 20 P.S. 320.753(a) made it mandatory that a pecuniary legacy, not in trust, shall bear interest from one year after the death of decedent until the payment of the legacy. She also cites Smith Estate, 13 Fiduc.Rep. 244, 30 D. & C.2d 1 (1962) where the court directed that the interest on pecuniary legacies shall be paid out of income. What appellant ignores is that the question is not her entitlement to interest but the existence of a fund out of which such payment could be made. As the learned court below properly noted, appellant's arguments are of no avail where all of the income is included in the balance for distribution, as was the case here, and still the legacies could not be paid in full. To achieve the result appellant seeks to obtain, it would be necessary either to surcharge the executors or to charge the specific legacy to *220 generate a fund out of which payment might be made. Appellant has failed to offer any authority for either course of action nor are we aware of any reason here for such a result.
In denying appellant's claim for counsel fees, the lower court relied upon this Court's decision in Sowers Estate, 383 Pa. 566, 119 A.2d 60 (1956). In Sowers this Court was confronted by an exceptant's claim for counsel fees to be awarded out of estate assets. In denying this claim, we stated:
It is only in very exceptional cases that an exceptant to the account of an executor, administrator or trustee in the Orphans' Court will be allowed counsel fees out of the fund. The rule in such cases is that the exceptant must pay his own counsel fee.
Where the fund is in the hands of the court and in no jeopardy, except from the possible mistake of the court in dealing with it, and an exceptant is merely protecting his own interest, he will not be allowed counsel fees, although through his efforts others may also be benefited.
Id., 383 Pa. at 572-73, 119 A.2d at 64, citing Peoples-Pittsburgh Trust Co. v. Pittsburgh United Corp., 334 Pa. 107, 5 A.2d 890 (1939); Harrison's Estate, 221 Pa. 508, 70 A. 827 (1908).
Although considering itself bound by the rule in Sowers, the lower court in the instant case concluded that our decision in Hempstead v. Meadville Theological School, 286 Pa. 493, 134 A. 103 (1926), established a less rigid rule governing awards of counsel fees in equity actions and that if Hempstead were applied, counsel fees could properly be awarded in the instant case. The lower court suggested that we adopt Hempstead as being the better rule.
Initially we note that the Hempstead language seized upon by the lower court in the instant case was taken out of context. A full reading of Hempstead discloses no difference between the rule stated in Sowers and the rule actually applied by this Court in Hempstead. It must also be pointed out that Hempstead involved an adversary action between *221 minority and majority trustees, whereas the instant case involves litigation by a legatee against the executors of an estate. In Hempstead, dissenting trustees brought an equity action to restrain the trustees of an educational institution from transferring its assets and the management of its educational activities to an out-of-state corporation. Eventually, the dissenting trustees were partially successful in that an injunction was granted preventing the majority trustees from transferring the institution's assets to the out-of-state corporation. The dissenting trustees then included a claim for counsel fees; the lower court awarded the counsel fees. On appeal, after stating the general rule that each party to adversary litigation must pay his own counsel fees, this Court reversed the lower court's award of counsel fees.
A close scrutiny of the cases underpinning the Hempstead rule and an analysis of the holding in Hempstead convinces us that there is no probate rule-equity rule dichotomy as suggested by the lower court in the instant case. The Pennsylvania cases allowing awards of attorneys fees and relied upon by the Court in Hempstead in arriving at its formulation of the rule involved litigation which protected an estate or fund from fraud or illegal claims. Id., 286 Pa. at 496, 134 A. at 103, citing Weed's Estate, 163 Pa. 595, 30 A. 272 (1894) (certain unsecured creditors of insolvent estate brought suit to set aside conveyance and judgments confessed by trustee in fraud of creditors); Manderson's Appeal, 113 Pa. 631, 6 A. 893 (1886) (attorney employed on behalf of trustee defended trust estate from certain illegal claims). This element of protection of the fund or estate from fraud was also present in the United States Supreme Court case of Trustees v. Greenough, 105 U.S. 527, 26 L. Ed. 1157 (1881), which was cited by the Court in Hempstead and relied upon by appellant in the instant appeal. Finally, the Court in Hempstead in reversing the lower court's award of attorney fees stated:
It is clearly evident that the action of the [majority] trustees was prompted by the highest motives. . . . *222 There was no disruption, or attempted disruption, waste or embezzlement of the property or of the trust funds.. . . There is not the slightest allegation of proof of fraud. Even in those states where the payment of counsel fees have been authorized there was an element of dishonesty that amounted to fraud or actual fraud present in the disposition of the subject-matter of the litigation. Hempstead v. Meadville Theological School, supra, 286 Pa. at 500, 134 A. at 105.
The Hempstead Court then went on to characterize the purpose of the minority trustee's litigation:
"Its [the litigation's] effect was to control the managerial acts of the [majority] trustees. It was not to preserve property or a fund, and consequently under no stretch of our law could it be brought within the scope of the cases allowing counsel fees." Id., 286 Pa. at 501, 134 A. at 105.
Thus, the denial of attorney fees in Hempstead turned at least in part upon the lack of fraud or illegality on the part of the majority trustees.[6]
With this analysis of Hempstead as background, it becomes clear that Hempstead and Sowers are reconcilable. The rule stated in Sowers suggests that where the fund before the court is "in jeopardy" and an interested party's litigation protects the fund from this jeopardy, counsel fees may be allowed to the litigant out of the fund. The Hempstead decision merely provides concrete examples of when a fund is "in jeopardy," viz., when the fund is threatened by fraud or illegal claims. When Sowers and Hempstead are read in this light, it is clear that there is no legal basis upon which appellant in the instant case could be awarded counsel fees. The assets in this estate were not in jeopardy.
Appellant also contends that through her efforts a fund was "created" for partial satisfaction of the 11 pecuniary *223 legacies. Appellant then implicitly attempts to take advantage of the language of Hempstead which indicates that where litigation has "raised" a fund for distribution or administration by a court, counsel fees may properly be awarded to the litigant. Id., 286 Pa. at 495, 134 A. at 103. In so arguing, appellant would have us adopt a broader interpretation of this Hempstead language than we think is warranted by our case law.
Those few cases which have allowed counsel fees under this theory involve situations where due to one litigant's efforts a fund was brought before a court or a fund already before the court was augmented by new assets. Miller v. Meyers, 300 Pa. 192, 150 A. 588 (1930); Weed's Estate, supra. In Sowers, we observed:
The Court below correctly refused to allow counsel fees to be paid out of the trust to counsel for the exceptants. No new assets or additional funds were created by the filing of exceptions to the executors' or trustees' account. All of the assets of the estate were included in the Fiduciary Account and the only question was whether they should be retained as part of the trust or distributed, and if so, how.
Sowers Estate, supra, 383 Pa., at 572, 119 A.2d at 63.
In the instant case, although due to appellant's efforts the Tose estate was reapportioned so as to allow partial payment of the pecuniary legacies, appellant did not bring new assets before the court for distribution. Thus we cannot find that appellant "raised" or "created" a fund for distribution. Counsel fees were properly denied appellant by the Orphans' Court.
The decree of the Orphans' Court Division of the Court of Common Pleas of Montgomery County is affirmed. Each party to pay own costs.
JONES, former C.J., did not participate in the decision of this case.
NOTES
[1] The Will provided for appellant to receive a bequest of Twenty-five Thousand Dollars ($25,000).
[2] An appeal was taken to this Court by Andrea Tose from the final decree of January 26, 1973, which dismissed the exceptions and made final the Decree Nisi of March 22, 1972. That appeal was discontinued on October 31, 1973.
The amount of thirty-eight thousand one hundred sixty dollars and twenty-six cents ($38,160.26) does not reflect the Orphans' Court's sua sponte modification of the pecuniary legatees' tax liability (opinion of April 23, 1974), the result of which was to increase the fund available for these legatees to an amount somewhat in excess of fifty thousand dollars ($50,000). This increase, however, does not affect our disposition of the instant appeal.
[3] Section 3543(a) provides in pertinent part:
(a) Pecuniary legacy. A pecuniary legacy bequeathed in trust shall bear interest at the rate of 3% per annum from the death of the decedent until the payment of the legacy, and when not in trust shall bear interest at the rate of 3% per annum from one year after the death of the decedent until the payment of the legacy.
20 Pa.C.S.A. § 3543(a) (1975).
[4] The rules provided for further assertion of that contention by way of exception to an adjudication rejecting the objection. See Supreme Court Orphans' Court Rules, Section 7, Rule 1 and Montgomery County Orphans Court Rule 75.2. The latter rule provides:
"An adjudication shall be confirmed absolutely as of course, unless written exceptions thereto are filed with the clerk within ten (10) days after the date of the filing of the adjudication. However, such exceptions shall in no event raise questions which could have been but were not raised by objections to the account or by claims presented at the audit of the account." (Emphasis added).
[5] As has been noted in the recitation of the procedural history, Andrea Tose did file exceptions to the adjudication but those exceptions did not touch upon this claim.
[6] The lack of a fund before the court was an alternative basis for the denial of counsel fees in Hempstead v. Meadville Theological School, 286 Pa. 493, 498, 134 A. 103, 104 (1926). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1444975/ | 836 P.2d 622 (1992)
The STATE of Nevada and Las Vegas Metropolitan Police Department, Appellants,
v.
Father Alain RICHARD, O.F.M., Brother Harry Vasile, O.F.M., Brother Gary Sponnholz, O.F.M., Michael F. Radding, William Wilmers, Ann Kennan, Mickey Kennan and Kelly Kennan, a minor, By and Through his Parent and Next Friend Mickey Kennan, Respondents.
No. 22109.
Supreme Court of Nevada.
August 20, 1992
*623 Frankie Sue Del Papa, Atty. Gen., David Sarnowski, Deputy Atty. Gen., Carson City, Roy A. Woofter, Las Vegas City Atty., Rex Bell, Dist. Atty., Mary-Anne Miller, Deputy Dist. Atty., Las Vegas, for appellants.
George Rudiak, Michael V. Stuhff, Susan Quig-Terry, Las Vegas, for respondents.
OPINION
PER CURIAM:
The respondents, four homeless persons and four advocates for the rights of the homeless, brought suit in the United States District Court, District of Nevada, challenging the constitutionality of certain state and municipal loitering laws, including NRS 207.030(1)(i)[1] and Las Vegas Municipal Code sections 10.74.010 and 10.74.020.[2] The respondents claimed that the law and ordinance are facially void because they are unconstitutionally vague and overbroad. Subsequently, pursuant to NRAP 5,[3] the United States District Court certified the issue of the constitutionality of the state statute and the municipal codes to this court. After reviewing the laws in question, we conclude that the challenged provisions of both the Nevada statute and the Las Vegas Municipal Code are unconstitutionally vague.
Initially, we note that criminal statutes are designed to punish persons because they have committed specific prohibited acts. Traditional vagrancy laws, however, have sought to punish persons based on their status as vagrants, and not merely for culpable acts. See, e.g., Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Fenster v. Leary, 229 N.E.2d 426 (N.Y. 1967). As a remnant of these traditional status-based laws, the Nevada vagrancy statute retains language that ostensibly punishes persons because *624 they are vagrants. Specifically, subsection (1) of NRS 207.030 lists certain acts and character traits which define a person as a vagrant; subsection (2) states that "[e]very vagrant shall be punished."[4] Vagrants may not be punished for being vagrants; only persons who commit culpable acts are liable for criminal sanctions.[5]
Aside from its language prescribing punishment for being a vagrant, NRS 207.030 is unenforceable because it is unconstitutionally vague, as are Las Vegas Municipal Code sections 10.74.010 and 10.74.020. A vague law is one which fails to provide persons of ordinary intelligence with fair notice of what conduct is prohibited and also fails to provide law enforcement officials with adequate guidelines to prevent discriminatory enforcement. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Lanzetta v. New Jersey, 306 U.S. 451 (1938); Eaves v. Board of Clark Co. Comm'rs, 96 Nev. 921, 620 P.2d 1248 (1980). In this case, the Nevada laws criminalize "loitering" on private property when an individual has no "lawful business with the owner or occupant thereof." We conclude that this language is inadequate to inform the public of what conduct is prohibited. References to "loitering" and "lawful business" fail to provide sufficient notice of when stepping onto private property will subject an individual to arrest. Under these laws, an individual must necessarily guess as to when an innocent stroll becomes a criminal "loitering."
Because they lack articulable standards, these laws fail to provide law enforcement officials with proper guidelines to avoid arbitrary and discriminatory enforcement. We conclude that the challenged provisions of the Nevada vagrancy statute and the Las Vegas Municipal Codes are vague and therefore unconstitutional under the due process clauses of the federal and state constitutions.
NOTES
[1] NRS 207.030, entitled "VAGRANTS," provides in part:
1. Every person who:
... .
(i) Loiters, prowls or wanders upon the private property of another, without visible or lawful business with the owner or occupant thereof... .
... .
is a vagrant.
2. Every vagrant shall be punished:
... .
(d) For a violation of any provision of paragraphs (d) to (j) ... of subsection 1, for a misdemeanor.
[2] LVMC § 10.74.010 provides:
It is unlawful for any person to loiter or prowl upon the private property of another without lawful business with the owner or occupant thereof.
LVMC § 10.74.020 provides:
Among the circumstances which may be considered in determining whether or not a person who loiters or prowls upon the private property of another has lawful business with the owner or occupant thereof is the fact that such a person takes flight upon the appearance of a police officer or endeavors to conceal himself or any object.
[3] NRAP 5 provides in part:
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, or of the District of Columbia, or a United States District Court, when requested by the certifying court, if there are involved in any proceeding before those courts questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the supreme court of this state.
[4] See supra, note 1.
[5] We also note that by retaining the concept of vagrancy, the Nevada statute, and others like it, remain rooted in the poor laws of Elizabethan England and thus reflect an antiquated view of society. Commenting on the poor laws, Caleb Foote explains that they were enacted "to confine those unable to work to their own parish; if they wandered they were liable to punishment and compulsory removal to the parish that was legally bound to support them." Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 615-17 (1956).
Recognizing the outmoded nature of such laws, some jurisdictions have repealed their vagrancy statutes and replaced them with laws which exclude all references to vagrancy or vagrants. See, e.g., People v. Weger, 59 Cal. Rptr. 661 (Cal.Ct.App. 1967) (explaining that California enacted disorderly conduct laws specifically to replace its vagrancy laws); Gary v. Dubin & Richard H. Robinson, The Vagrancy Concept Reconsidered: Problems and Abuses of Status Criminality, 37 N.Y.U.L.Rev. 102, 135 (1962) (noting that "Illinois enacted legislation which eliminated the vagrancy concept and imposed sanctions which would apply only where there is clear and definite proof of the commission of specific criminal acts"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2454457/ | 250 P.3d 844 (2011)
ROBERTS
v.
STATE.
No. 102916.
Court of Appeals of Kansas.
April 22, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565581/ | 433 S.W.2d 550 (1968)
STATE of Missouri, Appellant,
v.
Charles R. TODD, Respondent.
No. 53560.
Supreme Court of Missouri, Division No. 2.
November 12, 1968.
*551 Norman H. Anderson, Atty. Gen., Jefferson City, David G. Dempsey, Special Asst. Atty. Gen., Clayton, for appellant.
James K. Prewitt, Springfield, for respondent.
EAGER, Judge.
This is an appeal by the State from an order of the Circuit Court vacating a judgment and sentence entered by it on December 17, 1962, upon a motion filed under our Rule 27.26, V.A.M.R. The situation is rather complicated and some material facts are not developed as specifically as they should be. For convenience, we shall refer to the movant, Charles R. Todd, as the defendant.
On December 17, 1962, defendant, having been found guilty by a jury, was sentenced to a term of five years for obtaining money "by means of Confidence Game." He was represented at the trial by employed counsel. The Court found that defendant had previously been convicted of a felony and therefore fixed and imposed the sentence. The judgment was that defendant be committed "for a period of Five (5) years, from the 17th day of December 1962, * * *." Therein lies the basis for the present controversy. On appeal, the judgment was affirmed. 372 S.W.2d 133.
On March 13, 1967, defendant filed, pro se, a motion to vacate the judgment, proceeding under our then Rule 27.26. It is not necessary to state in detail the contents of that motion, but in substance he alleged that the five years imposed should have run concurrently with a prior sentence (which will be referred to later) and also that he had complied with the five-year sentence under the three-fourths rule of § 216.355, RSMo 1959, V.A.M.S.[1] The Court denied that motion after an evidentiary hearing and an appeal was taken. In this Court an order was made reversing the order and judgment and remanding the cause with directions to proceed under our amended Rule 27.26 and in accordance with our opinion in State v. Stidham, Mo., 415 S.W.2d 297.
*552 On November 15, 1967, counsel having been appointed, a new motion to vacate the judgment was filed in accordance with and upon the form provided in our amended rule. In this motion it was alleged: that the officials of the penitentiary had caused defendant's five-year sentence (already described) to run cumulatively to a prior sentence notwithstanding the date of beginning thereof fixed in the judgment; that this action was taken without notice or hearing before the trial court; that he was under sentence from another court that he had not challenged; that his five-year sentence had been served and that he should be discharged; also, that his privately employed counsel who was paid for services at trial and on appeal failed to represent him on the appeal. This motion was later amended by leave to state that three days after defendant was received at the penitentiary on the five-year sentence the Department of Corrections "removed" him from service of that sentence and proceeded to hold him on a prior conviction, upon which he had been on parole; also, that he was ill, that the action was violative of due process, and that it constituted cruel and unusual punishment.
On December 8, 1967, an evidentiary hearing was held, with defendant present. He testified in substance: that he had been convicted and sentenced to a term of five years in Greene County, "beginning December 17, 1962"; that when he was delivered to the penitentiary, accompanied by his "sentence and judgment paper," he was processed, and that "All information stated I was serving five years for conviction in Springfield, Greene County, Missouri" (obviously a conclusion, though perhaps true); that on the third day he was called in, reprocessed, told that his parole had been broken, and told that he would serve the prior sentence before the five-year sentence; that he had previously been serving a fifteen-year sentence on a conviction for armed robbery in St. Louis, but had been out on parole for four years and seven months; that he then finished serving that prior sentence on November 18, 1966, and was discharged from it. (Many of these statements do not constitute the best evidence, but the record is generally sufficient for our purposes.) He further testified concerning his bad health and offered a certificate thereon. He also testified: that he had paid his attorney $1,700, but that he later learned that no brief had been filed on the appeal; that federal officials had a detainer on him for a two-year sentence to commence at the end of his state term. Considerable colloquy took place between defendant and the trial court which is really immaterial to our consideration.
At the conclusion of the hearing the Court entered an order sustaining the motion; therein it set aside its prior judgment, and ordered defendant discharged "for the reason that the action of the Department of Records of the Missouri State Penitentiary in arbitrarily changing the starting date of said sentence from the date designated by the Court to a time some four years later, without notice to the Court and without notice to the Defendant and without affording him a hearing before the committing Court, at which time the action of the prison authorities could have been reviewed, was a denial of due process of law under the constitution of the State of Missouri and of the United States." Defendant was, however, remanded to the Department of Corrections. An appeal was taken by the State.
Defendant has filed a motion to dismiss the appeal on three grounds, all of which are also raised as "Points Relied On" in the respondent's brief. They are: (1) that the State had no right of appeal from this order; (2) that if there was any right of appeal the right could not be exercised by the Authority General as it was here; and (3) that in the notice filed the names of the parties were reversed. We shall consider these, but it makes no difference whether we do so on the motion or as points in the brief, for the result is the same.
*553 As to (1), the right of the State to appeal, defendant relies primarily on §§ 547.200 and 547.210, State v. Hughes, Mo.App., 223 S.W.2d 106, and State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782. These statutes and cases merely mean that in a criminal case, the State may not appeal except when an indictment or information has been held insufficient on motion or in arrest of judgment. Our amended Rule 27.26 expressly provides that an appeal may be taken from the order of the trial court "as in a civil case" and that the order sustaining or overruling the motion shall be deemed a final judgment "for purposes of appeal by the prisoner or by the State." Paragraph (a) of the Rule provides that such a motion "is an independent civil action which should be separately docketed." It is clear that neither the cited statutes nor the cases construing them are controlling here. The State is expressly given the right of appeal. However, defendant further says that those parts of Rule 27.26 allowing an appeal to the State are unconstitutional under Art. 5, Sec. 5 providing that court rules may not change "the right of appeal." State v. Pottinger, 365 Mo. 794, 287 S.W.2d 782. If, as the Rule states, this is a civil action, then either party has and has always had the right of appeal from a final judgment; hence, there has been no change. The Rule expressly declares such actions to be civil proceedings; we have so held in State v. King, Mo., 380 S.W.2d 370, cert. denied 379 U.S. 979, 13 L. Ed. 2d 569; State v. Floyd, Mo., 403 S.W.2d 613; State v. Gullett, Mo., 411 S.W.2d 227. In Floyd, supra, the Court said, loc. cit. 615: "In State v. King, Mo.Sup., 380 S.W.2d 370, 373, the applicable law under Rule 27.26, V.A.M.R., is stated as follows: `A motion filed under this rule to vacate a judgment of conviction is not a step in a criminal proceeding against the defendant, but is, like habeas corpus, a means of testing the validity of his detention after conviction. Under this proceeding a collateral inquiry may be made as to the validity of the judgment under which defendant is held. The proceeding is governed by Court rules applicable to civil proceedings.'" In State v. Keeble, Mo., 427 S.W.2d 404, the question was discussed at some length, and the Court recognized the nature of the proceedings as civil, although having some quasi-criminal attributes. Proceedings under this rule, if not wholly civil, would constitute a new type of action, partly civil and partly criminal, in which a right of appeal may be granted to the State without changing any "right of appeal" as theretofore existing. We hold that the State had a right of appeal and that this did not rest in the discretion of the trial court under § 547.210.
The next point is that the Attorney General did not have the right to take the appeal. Again, defendant relies largely on the provisions of § 547.210 which are in part that if, upon an indictment or information being adjudged insufficient, the "prosecuting attorney prays an appeal to an appellate court, the Court may, in its discretion, grant an appeal." We do not have such a situation here. As already pointed out, this is a wholly different type of proceeding. Rule 27.26 provides, in essence, that the State may appeal. Defendant says, generally, that the prosecuting attorney is responsible "for the commencement and carrying out of a criminal case to its conclusion," citing State ex rel. Dowd v. Nangle, 365 Mo. 134, 276 S.W.2d 135. That case is wholly inapplicable here; it merely held that the Circuit Attorney had the sole authority to nolle pros a criminal case or to reduce the charge, and that the Court could not take such action without the consent of the Circuit Attorney. It is true that the prosecuting attorney has the general responsibility for the prosecution of a criminal case. Under § 27.030 the Attorney General shall aid him in the trial court "when directed by the Governor." It has been held that he may assist even without an order from the Governor. State v. Naylor, 328 Mo. 335, 40 S.W.2d 1079; see also, generally, State v. Huett, 340 Mo. 934, 104 S.W.2d 252. That statute was obviously intended primarily, if not exclusively, *554 to cover the institution and trial of criminal cases, and proceedings before grand juries. The Attorney General is expressly given the management of all appeals and writs of error to which the State is a party, Section 27.050, and he shall enforce any and all rights of the State in whatever court or jurisdiction such action may be necessary. Section 27.060. The Attorney General is the chief legal officer of the State; actually, the various offices of the prosecuting attorneys are "carved out of" this overriding authority, with local implications.
Proceedings under our Rule 27.26 have frequently been held to be similar to that of habeas corpus. State v. Turner, Mo., 353 S.W.2d 602; State v. Keeble, Mo., 427 S.W.2d 404; State v. Floyd, Mo., 403 S.W.2d 613. Indeed the rule itself expressly incorporates all relief previously available by habeas corpus. Rule 27.26(a). In habeas corpus there is no appeal; however, the proceedings may be reviewed on certiorari, State ex rel. Stewart v. Blair, 357 Mo. 287, 208 S.W.2d 268, and the adjudicated cases indicate that the Attorney General institutes and prosecutes such a proceeding. Stewart, supra; State ex rel. Gentry, Atty. Gen., v. Westhues, Banc, 315 Mo. 672, 286 S.W. 396. Rule 27.26 grants the right of appeal to the State, from an adverse ruling on a motion to vacate. That appeal is in a proceeding of a wholly different type from those provided for in § 547.210, upon which defendant relies. In the absence of any applicable statutory prohibition, and in view of the general authority of the Attorney General to represent the State in such matters, we hold that the Attorney General did have the authority to file the notice of appeal. Certainly, under the practice and the statutes generally, he would always be required to prosecute it.
The next point, No. 3, requires no real discussion. It asserts that the notice of appeal was invalid merely because the caption used was State of Missouri vs. Charles R. Todd, rather than a showing of the parties in reverse order. We frequently note such transpositions and disregard them. The body of this notice stated clearly that the State was appealing, the notice bore the correct number and it was duly filed in the present case. The point is of no substance and it is denied. No one could possibly have been misled. In fact, both parties have entitled their briefs in the manner thus objected to.
Finally, we reach the State's contention on the merits that the order vacating the judgment and sentence and discharging the defendant was clearly erroneous. The reason given by the trial court for its action was that the Department of Corrections had acted arbitrarily in failing to comply with (and in changing) the "starting date" of the sentence as fixed therein by the trial court, "without notice to the Court" or to the defendant and without a hearing "before the committing court," all of which it concluded was a denial of due process. We have determined that this order must be reversed. The basic error occurred when the Court attempted to fix the date for the beginning of the sentence in its original judgment. The law, and not the trial court, fixes such dates, and a recital such as appeared in this judgment is mere surplusage. State v. Amsden, Mo., 299 S.W.2d 498; Higlin v. Kaiser, Banc, 352 Mo. 796, 179 S.W.2d 471; State v. Hicks, Mo., 376 S.W.2d 160; State v. Testerman, Mo., 408 S.W.2d 90; King v. Swenson, Mo., 423 S.W.2d 699. Section 222.020 provides that when one "while under sentence" commits a crime in any county of the state, he may be tried therefor, and in case of conviction the sentence "shall not commence to run until the expiration of the sentence under which he is held." This statute has long been held to be controlling. See the cases last cited. And it has been held specifically that it is also applicable to a previously convicted person who is on parole at the time of the second conviction. King v. Swenson, supra; State v. Hicks, supra; State v. Campbell, Mo., 307 S.W.2d 486, cert. denied 356 U.S. 922, 78 S. Ct. 708, 2 L. Ed. 2d 718. In other words, this defendant was being "held" under a prior *555 sentence during the period involved here. That sentence, as testified to by the defendant at the hearing on the present motion, was one of 15 years for armed robbery imposed in St. Louis County in about 1956; defendant has not and does not challenge that conviction and sentence. Strangely enough, upon examination of the transcript on the original appeal from this now contested five-year sentence, we find that the prior conviction there shown and found was one of two years from St. Charles County on a "bogus check" charge, which sentence had allegedly been served, with no mention of the robbery conviction and sentence. But be that as it may, our opinion on the original appeal, 372 S.W.2d 133, shows that when the controverted five-year sentence was imposed the Court had found that defendant had been previously convicted of a felony; whether it then knew that he was out on parole from a prior sentence is immaterial. The law, by Section 222.020, steps in and takes care of that situation. It is clear that the armed robbery sentence had not then been completed, by defendant's own admission.
Technically, the prison authorities erred when they initially assigned the defendant to the new five-year sentence without checking his prior record. On the third day, however, the error was discovered, the parole was revoked, and defendant was assigned to serve the balance of his previously uncompleted term for robbery. This error or omission cannot change the provisions of § 222.020. It was entirely correct for the officials to proceed in accordance with the statute upon discovery of the error. Defendant will undoubtedly be given credit for the two or three days which he had served in the interim.
The State has complete authority to fix the extent of punishment for all classifications of crime, including the right to enact § 222.020; and that statute does not infringe upon the constitutional rights of due process or equal protection. King v. Swenson, Mo., 423 S.W.2d 699. There was no necessity for a notice to or a hearing before the trial court prior to the correction of the records. The defendant was notified. The officials merely complied with the law, and the trial court would have had no authority to do anything else.
Most of the issues covered in this point have been adjudicated in State v. Hicks, Mo., 376 S.W.2d 160. We merely refer to that opinion without any elaboration of its facts and rulings. The defendant here is not being required to serve a sentence "in instalments," as counsel contends. The erroneous entry made upon his admittance was corrected promptly, and that objection is of no substance under these facts. The cases which defendant cites on this point are inapplicable.
Defendant's conclusions are that: (1) under the decision of the penitentiary officials putting him back on his prior fifteen-year sentence he completed the service of that sentence in 1966; and (2) that since his five-year sentence has now been vacated he should be discharged. The courts do not propose to make the computations for the Department of Corrections, so we are in no position to affirm or deny No. (1). As to No. (2), we hold that the five-year judgment and sentence of December 17, 1962, was erroneously vacated and that the findings, conclusions and judgment of the trial court in the present proceeding are clearly erroneous. It is doubtful, to say the least, whether the relief sought in this motion is even within the scope of Rule 27.26, for it does not pretend to attack the original judgment, but rather seeks to support it, while attacking actions of the Department of Corrections, a branch of the Executive Department.
Defendant's motion to dismiss the appeal is overruled. The order and judgment of the trial court is reversed, with directions to reinstate the original judgment of December 17, 1962.
DONNELLY, Acting P. J., and EWING, Special Judge, concur.
FINCH, P. J., not sitting.
NOTES
[1] All statutory citations will be to that revision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2459979/ | 252 P.3d 648 (2011)
STATE
v.
WILSON.
No. 104287.
Court of Appeals of Kansas.
June 10, 2011.
Decision Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565239/ | 34 So. 3d 851 (2010)
In re J.M.C. & M.A.C. Applying for Private Adoption.
No. 2010-CJ-0969.
Supreme Court of Louisiana.
May 5, 2010.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1809645/ | 681 So.2d 276 (1996)
Ex parte Walter Leroy MOODY, Jr.
(In re STATE of Alabama v. Walter Leroy MOODY, Jr.).
CR-95-1501.
Court of Criminal Appeals of Alabama.
June 17, 1996.
Walter Leroy Moody, Jr., pro se.
Jeff Sessions, Atty. Gen., and Sandra Stewart, Asst. Atty. Gen., David Barber, District Atty., for Respondent.
TAYLOR, Presiding Judge.
The petitioner, Walter Leroy Moody, Jr., filed this petition for a writ of prohibition against the Honorable William Rhea, III, circuit judge. Moody seeks an order prohibiting Judge Rhea from denying him continued assistance from a paralegal appointed by Judge Rhea at the state's expense in October 1994 to assist him in preparing his defense. Although the paralegal has agreed to assist the petitioner without compensation, Judge Rhea has refused to continue the appointment. The petitioner is charged with the murder of Judge Robert S. Vance, a murder made capital because the murder was of "a state or federal public official" and was "related to [Judge Vance's] official position." See § 13A-5-40(a)(11), Code of Alabama 1975. The petitioner is also charged with first degree assault of Helen Vance, Judge Vance's wife. The charges resulted from the explosion of a mail bomb sent to Judge Vance at his home in Birmingham.
The writ of prohibition has been characterized as follows:
"A writ of prohibition is an extraordinary writ which is to be employed with extreme caution and used only in cases of extreme necessity. Ex parte State Dep't of Mental Health & Mental Retardation, 536 So.2d 78 (Ala.Civ.App.1988); see also Ex parte Perry County Board of Education, 278 Ala. 646, 180 So.2d 246 (1965). Prohibition is not a favored writ and will not issue unless there is no other adequate remedy. Ex parte Strickland, 401 So.2d 33 (Ala.1981); Barber Pure Milk Co. of Montgomery, Inc. v. Alabama State Milk Control Board, 274 Ala. 563, 150 So.2d 693 (1963); Ex parte Burch, 236 Ala. 662, 184 So. 694 (1938). The petition for the writ *277 `properly tests jurisdiction, and lies when a court acts in excess of its jurisdiction.' Ex parte City of Tuskegee, 447 So.2d 713, 716 (Ala.1984). The writ is preventive rather than corrective and is utilized to prevent the usurpation of excessive jurisdiction by a judicial tribunal. Ball v. Jones, 272 Ala. 305, 132 So.2d 120 (1961); see also Mental Health, supra. Issuance of a writ of prohibition lies within the discretion of the court, and the writ is granted or withheld according to the nature and circumstances of the case, not as a matter of right. Barber, supra; Dear v. Peek, 261 Ala. 137, 73 So.2d 358 (1954). `Prohibition is the proper remedy to intercept and put an end to usurpation of jurisdiction.' Ex parte State ex rel. Bragg, 240 Ala. 80, 85, 197 So. 32, 36 (1940)."
Ex parte Shoemaker, 644 So.2d 958, 959 (Ala. Civ.App.1993), rev'd, 644 So.2d 961 (Ala.), on remand, 644 So.2d 966 (Ala.Civ.App.1994).
In order to prevail on a writ of prohibition, the petitioner must show: "(1) usurpation or abuse of power by an inferior court ..., (2) lack of another adequate remedy, (3) injury to the petitioner, and (4) presentation of the question before the inferior tribunal" before filing the writ. Barber Pure Milk Co. v. Alabama State Milk Control, 274 Ala. 563, 565, 150 So.2d 693, 695 (Ala.1963).
The petitioner filed a petition for certiorari review with the Alabama Supreme Court after this court, on motion of the state, quashed all ex parte orders of the trial court directing the payment of attorney fees, expenses, and expert fees. Before the Supreme Court issued a ruling on this petition for writ of certiorari, the petitioner moved to proceed pro se. That motion was granted, thus rendering the issues raised in the Supreme Court moot. The Court quashed the writ and the petitioner then filed a petition for a writ of mandamus with the Alabama Supreme Court, asking that the Court determine whether he was entitled to certain experts and, if so, whether those experts are entitled to be paid in advance. In granting the petitioner's writ, the Alabama Supreme Court noted:
"We point out that currently Moody is not represented by legal counsel and intends to act on his own behalf. The trial court appointed a paralegal to aid Moody in his defense; it abused its discretion in doing so. If Moody desires to be represented by counsel, he may have counsel appointed. However, we find no authority to support the appointment of a paralegal to aid an indigent defendant who wants to represent himself. We find nothing in the Sixth Amendment right to effective assistance of counsel that includes appointment of a paralegal for an indigent who wants to proceed pro se. `When an accused manages his own defense, he relinquishes, as purely factual matter, many of the traditional benefits associated with the right to counsel.' Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). Once an indigent defendant chooses to proceed pro se, he takes on responsibilities that an attorney would have had in representing him and voluntarily relinquishes some aid that may have been available to him through an attorney. DeFries v. State, 597 So.2d 742 (Ala.Cr. App.1992), citing Owen v. State, 272 Ind. 122, 396 N.E.2d 376 (1979)."
Ex parte Moody, [Ms. 1941642, April 19, 1996] ___ So.2d ___, ___ (Ala.1996).
Moody has failed to satisfy the requirements for the issuance of a writ of prohibition. As the Alabama Supreme Court stated, the petitioner is not entitled to the assistance of a paralegal. Furthermore, contrary to the petitioner's assertions, the trial court has not denied him access to the voluntary services of a paralegal. The trial court has merely followed the dictates of the Alabama Supreme Court and refused to continue the appointment of a paralegal for an indigent defendant even when that appointment results in no cost to the state. The petitioner, who previously fired two well-qualified court-appointed attorneys, may still avail himself of the assistance of court-appointed counsel.
The petition for a writ of prohibition is due to be denied.
PETITION DENIED.
All the Judges concur, except LONG, J., who recuses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/494635/ | 829 F.2d 558
Lindelo M. DZANA, Plaintiff-Appellant,v.Charles C. FOTI, Jr., et al., Defendants-Appellees.
No. 86-3668
Summary Calendar.United States Court of Appeals,Fifth Circuit.
Oct. 16, 1987.
Jane Johnson, Supervising Atty., Karen L. Campbell, Student Atty., Tulane Law Clinic, New Orleans, La., for plaintiff-appellant.
Usry & Weeks, Freeman R. Matthews, Metairie, La., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
JOHNSON, Circuit Judge:
1
An Immigration and Naturalization Service (INS) detainee appeals from the dismissal of his civil rights action against officials of the Orleans Parish prisons. Because we must hold that the district court applied the wrong legal standard in dismissing the case, we reverse and remand.
I. BACKGROUND
2
Lindelo Moses Dzana arrived in the United States from South America as a stowaway on March 9, 1979. Dzana petitioned for asylum, claiming that, as a former member of the African National Congress, he would be in danger from both the government and his former colleagues if he were forced to return. The INS initially denied the asylum application and set Dzana's bond at $4,000. Dzana could not make the bond and was confined to the Orleans Parish prisons under a contractual arrangement between the INS and the parish.
3
While in prison, Dzana was disciplined several times by being sent to disciplinary segregation, on one occasion for more than thirty days. On August 23, 1985, the INS sent Dzana a letter revoking his bond with the following language:
4
In view of our subsequent determination that you have no further viable claim to possible asylum in the United States, or other administrative relief available, and in view of the clear threat to the peace and security of the United States due to your training and affiliation, as reevidenced by your behavior during your encarceration [sic], it is determined that the bond conditions be revoked and that you be henceforth detained without bond.
5
Plaintiff's Exhibit No. 1, at 2 (emphasis added).
6
In September 1985 Dzana filed a pro se civil rights complaint against prison authorities. In November 1985, Dzana filed an amended complaint alleging that he had received inadequate medical care, that he had been beaten, and that he had been disciplined without due process. In January 1986, the Tulane Law Clinic took over representation of Dzana. In March 1986, Dzana received asylum and was released from prison. After a bench trial held March 31, 1986, a magistrate concluded (1) that Dzana's claim of inadequate medical treatment alleged, at most, negligence under state law, and should be dismissed for lack of jurisdiction; (2) that prison staff had used no more than reasonable force on Dzana; and (3) that the procedures followed by Orleans prison officials before disciplining Dzana met the due process requirements set forth in Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983). The district court accepted the magistrate's recommendation that all of Dzana's claims be dismissed with prejudice.
7
Dzana appeals only the district court's denial of his due process claim.
II. DISCUSSION
8
A prisoner has a claim under section 1983 for placement in segregation only if he possessed a "liberty interest" in remaining among the general prison population. Helms, 459 U.S. at 466, 103 S.Ct. at 869; McCrae v. Hankins, 720 F.2d 863, 866 (5th Cir.1983). The due process clause, by itself, does not grant a prisoner the right to be free from segregation. Helms, 459 U.S. at 468, 103 S.Ct. at 869; McCrae, 720 F.2d at 866. However, local statutes and regulations, if they significantly limit prison authorities' discretion and carry mandatory force, can create a liberty interest. Helms, 459 U.S. at 469, 103 S.Ct. at 870; Green v. McKaskle, 788 F.2d 1116, 1125 (5th Cir.1986); McCrae, 720 F.2d at 866; Martin v. Foti, 561 F.Supp. 252, 258 (E.D.La.1983).
9
In the instant case, Dzana's rights as to the severity of his confinement were governed by federal statutes and regulations, because Dzana was a federal prisoner.1 See 28 C.F.R. Sec. 500.1(d) (1986) (defining the "institutions" to which the regulations apply as including metropolitan jails). The federal Bureau of Prisons regulations provide: "Disciplinary action may not be capricious or retaliatory" (Id. Sec. 541.10(a)(4)); "Specific sanctions are authorized for each category.... Imposition of a sanction requires that the inmate first is found to have committed a prohibited act" (Id. Sec. 541.13(a)). The regulations then establish four offense categories, with specific sanctions for each. Id. Sec. 541.13. These regulations resemble statutes and regulations found by previous courts to be clear and mandatory enough to create a liberty interest. Ponte v. Real, 471 U.S. 491, 105 S.Ct. 2192, 2195, 85 L.Ed.2d 553 (1985); Helms, 459 U.S. at 470, 103 S.Ct. at 870-71; Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974); McCrae, 720 F.2d at 867 (Louisiana state penitentiary regulations).
10
The second step in the inquiry is a determination of what level of process is due the prisoner. In making this determination, the courts balance the needs of prison administration against the deprivation suffered by the prisoner. Helms, 459 U.S. at 473, 103 S.Ct. at 872. A key consideration is the type of sanction imposed on the prisoner and any collateral consequences that sanction may carry with it. Id. Thus, the Supreme Court has held that a prisoner punished by solitary confinement and loss of good-time credits must receive: (1) "advance written notice," at least twenty-four hours before the hearing, of the charges against him; (2) a "written statement of the factfinders as to the evidence relied on and the reasons for the disciplinary action taken"; and (3) the opportunity "to call witnesses and present documentary evidence," so long as this right does not create a security risk. Wolff, 418 U.S. at 563-66, 94 S.Ct. at 2978-80. See also Ponte v. Real, 105 S.Ct. at 2194 (reaffirming the validity of Wolff after Helms ). However, when a prisoner faces only a few days of administrative segregation pending a hearing, with no effect on parole, "informal nonadversary evidentiary review" will suffice, with "some notice" to the prisoner and an "opportunity to present a statement." Helms, 459 U.S. at 476-77, 103 S.Ct. at 874.
11
Thus, the Supreme Court has established at least two levels of due process in prison disciplinary proceedings: the elevated Wolff standard requiring an adversary proceeding, advance written notice, and other safeguards; and the lower Helms standard. This Court has held that a prisoner facing disciplinary segregation for slightly less than a month fell under the Helms rather than the Wolff standard. McCrae, 720 F.2d at 866. This Court has not, however, drawn a clear boundary between the two standards.
12
The sanctions faced by Dzana in the instant case were unique. Like McCrae, Dzana was placed in disciplinary segregation for approximately a month. Unlike McCrae, however, Dzana's discipline had further consequences. The INS, at its request, was sent the records concerning disciplinary actions taken against Dzana in the Orleans Parish prison. The magistrate found that this was standard practice for INS prisoners held on a contractual basis. The INS explicitly cited Dzana's disciplinary record as a reason for withdrawing bond.2
13
The key question in the instant case is whether Dzana, in facing disciplinary segregation and loss of bond, resembles more closely the prisoners in Wolff, who faced segregation and loss of good time, or the prisoners in Helms and McCrae, who faced only segregation. We hold that Dzana falls more naturally into the Wolff group. Loss of bond, like loss of good-time credits, can affect the amount of time the prisoner spends behind bars under confinement. To hold that deprivation of good-time credits triggers the Wolff guarantees, but deprivation of bond does not, would be to place pretrial detainees in a much worse and more oppressive situation than that applicable to convicted prisoners.3 Dzana was being held pursuant to an initial denial of asylum which was later reversed. Whatever the formal characterization of the sanctions Dzana received, these sanctions had a more severe practical effect than segregation coupled with loss of good time would have had on a convicted prisoner. It is therefore clear that the prison authorities should have accorded Dzana the process mandated by Wolff.
14
The record reveals that the process actually given Dzana fell short of the Wolff standard in at least one respect. Dzana received only oral notice of his disciplinary hearings and the charges against him, usually just before the hearing. Thus, Dzana had little chance to prepare a defense. Wolff clearly requires twenty-four hour written notice. 418 U.S. at 563-64, 94 S.Ct. at 2978-79. In addition, Dzana claims that he was denied the right to call certain witnesses,4 and that he received no written notice of the decision or its basis. On remand, the district court may determine whether Dzana was in fact deprived of these procedural rights.
15
Finally, we must determine whether Foti, as sheriff, and the other defendants, as prison officials, are eligible for qualified immunity. In Harlow v. Fitzgerald, the Supreme Court held that government officials can be held liable for damages when their conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In 1983, the Eastern District Court of Louisiana found that Orleans Parish prison authorities had an established practice of punishing prisoners with segregation, and loss of good time or parole, without giving those prisoners twenty-four-hour written notice of the charges. Martin, 561 F.Supp. at 261. The Martin court held that this practice violated a right clearly established by Wolff, granting the prisoners damages and an injunction. Id. at 261-62. The Martin court injunction read:
16
Henceforth, all inmates charged with prison violations for which they could possibly be deprived of good-time, or otherwise suffer because of their disciplinary record an increased possiblity of same or of a lessening of their chances for parole, shall be given written notification of the charges against them at least twenty-four hours prior to appearing before the prison disciplinary board.
17
Id. at 262 (emphasis added). An explicit determination plus an ongoing injunction of a United States federal district court suffices to inform Orleans Parish officials of Dzana's rights. Under these circumstances the defendant officials find no shelter behind qualified immunity.
III. CONCLUSION
18
The district court applied the wrong standard in measuring the process due Dzana in his prison disciplinary hearings. Therefore, the case must be reversed and remanded. On remand, the district court may consider what procedures were actually followed in Dzana's disciplinary hearings, and whether Dzana suffered more than nominal damages.
19
REVERSED AND REMANDED.
1
If Orleans Parish regulations apply to the decision to place Dzana in disciplinary segregation, the result is the same. A district court in this Circuit has held that the Orleans Parish regulations concerning segregation are sufficiently mandatory to create a liberty interest. Martin, 561 F.Supp. at 258. The Martin court reproduced these regulations in the appendix, and we agree that they have mandatory force. Id. at 262-69. On remand, the district court in the instant case may consider whether the Orleans Parish prison regulations have been revised since 1983 in such a way as to change their mandatory character. Absent such proof or any contrary contention by the parties, we feel confident in assuming that the regulations considered in Martin remain substantially the same
2
At trial Dzana's counsel stipulated that INS District Director David Lambert, if called, would have testified that he considered Dzana's disciplinary record in deciding whether to withdraw the bond, but that he would have reached the same decision even if Dzana had had no disciplinary record. Record Vol. 3 at 22. Presumably, the INS believed, at the time, that sufficient other considerations militated against bond. The record does not make it clear whether Dzana's counsel stipulated that Dzana's disciplinary record in fact did not affect the INS' decision, or merely that Lambert would so testify if called. The district court may clarify this question on remand
In any case, it is clear that the arrangement between the INS and Orleans Parish contemplated that the INS would make use of prisoners' disciplinary records. Due process levels must be determined considering probable consequences as they existed at the time of the hearing. See, e.g., Wolff, 418 U.S. at 561, 94 S.Ct. at 2977 (the loss of "good time" credits mandates a certain level of due process, even though that loss is not an "immediate disaster" for the prisoner, and, indeed, its effects may not be felt until after the suit). We believe that the question of whether Dzana's prison discipline actually lengthened his incarceration is best addressed at the damages stage, should Dzana prove liability on remand.
3
In holding pretrial detainees, a prison may impose regulatory restraints, but those restraints may not be so severe that they amount to punishment before trial. Bell v. Wolfish, 441 U.S. 520, 535-38, 99 S.Ct. 1861, 1872-73, 60 L.Ed.2d 447 (1979)
4
The magistrate found that Dzana requested no witnesses. Dzana disputed this finding in his objections to the magistrate's findings. Dzana pointed out that he testified about requesting witnesses, while the prison authorities testified only that they could not recall such a request. Our review of the record confirms Dzana's characterization of the testimony. Of course, under Helms, which the magistrate mistakenly applied, the prisoner does not necessarily have the right to call witnesses. 459 U.S. at 476, 103 S.Ct. at 874. Hence, the district court may have felt no compulsion to resolve this factual dispute | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1769461/ | 340 So. 2d 914 (1976)
FLORIDA Publishing Company, a Florida Corporation, Petitioner (Defendant),
v.
Klenna Ann Fletcher, Etc., Respondent (Plaintiffs).
No. 48372.
Supreme Court of Florida.
October 7, 1976.
Rehearing Denied January 10, 1977.
Harold B. Wahl, of Wahl & Gabel, Jacksonville, for petitioner.
*915 Ellis E. Neder, Jr., and Rudolph J. Inman, Jr., Jacksonville, for respondent.
George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, and Richard N. Winfield and Betty B. Robbins, of Rogers & Wells, New York City, for Associated Press.
Charles S. Isler, Jr., and George P. Daniels, of Isler, Higby, Brown & Smoak, Panama City, for Florida Freedom Newspapers, Inc.
William C. Ballard, of Baynard, Lang & Ballard, St. Petersburg, for Times Publishing Co.
Ted R. Manry, III, of MacFarlane, Ferguson, Alison & Kelly, Clearwater, for The Tribune Co.
J. Laurent Scharff, of Pierson, Ball & Dowd, Washington, D.C., and George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for Radio Television News Directors Association.
George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for The Greater Jacksonville Chapter of the Society of Professional Journalists/Sigma Delta Chi.
William G. Mateer, of Mateer, Harbert, Bechtel & Phalin, Orlando, and John W. Fleming and Rex Conrad, of Fleming, O'Bryan & Fleming, Fort Lauderdale, for Gore Newspapers Co. and Sentinel Star Co.
Dan Paul and Sanford L. Bohrer, of Paul & Thomson, Miami, for The Miami Herald Publishing Co., The New York Times Company and Gannett Company, Inc.
DuBose Ausley and C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for The Tallahassee Democrat and Florida Society of Newspaper Editors.
James D. Whisenand, Deputy Atty. Gen., and Sharyn L. Smith, Asst. Atty. Gen., for Robert L. Shevin, Atty. Gen., State of Florida, amici curiae.
ROBERTS, Justice.
This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Fletcher v. Florida Publishing Co., reported at 319 So. 2d 100 (Fla.App. 1, 1975), which directly conflicts with Jacova v. Southern Radio and Television Co., 83 So. 2d 34 (Fla. 1955), thereby vesting jurisdiction in this Court pursuant to Article V, Section 3(b)(3), Florida Constitution.
The facts supported by the record are succinctly stated in the summary final judgment of the trial judge who determined that there was no real dispute as to the material facts. Respondent, Mrs. Fletcher, left Jacksonville for New York on September 15, 1972, to visit a friend. She left in Jacksonville her three young daughters, including seventeen-year-old Cindy. A "baby sitter" was to spend the nights with the children, but there was no one with them in the home during the daytime except a young man who had a room in the house and whom Mrs. Fletcher described as Cindy's "boy friend." On the afternoon of September 15, 1972, while Cindy was alone in the house, a fire of undetermined origin did large damage to the home, and Cindy died.
The fire and police departments were called by a neighbor who discovered the fire, but too late to save the child. A large group of firemen, news media representatives, and onlookers gathered at the scene and on Mrs. Fletcher's property.
When the Fire Marshal and Police Sergeant Short entered the house to make their official investigation, they invited the news media to accompany them, as they deposed was their standard practice. The media representatives entered through the open door; there was no objection to their entry; they entered quietly and peaceably; they did no damage to the property; and their entry was for the purpose of their news coverage of this fire and death.
The Fire Marshal desired a clear picture of the "silhouette" left on the floor after the removal of Cindy's body. He and Sergeant Short in their depositions explained that the picture was important for their respective investigations to show that the body was already on the floor before the heat of the fire did any damage in the room. The Fire Marshal took one polaroid *916 picture of the silhouette, but it was not too clear, he had no further film, and he requested photographer Cranford to take the "silhouette" picture which was made a part of the official investigation file of both the Fire and Police.
This picture was not only a part of the investigation but News Photographer Cranford turned it and his other pictures over to the defendant newspaper. It and several other pictures appeared in the news story of The Florida Times-Union on September 16, 1972.
Respondent first learned of the facts surrounding the death of her daughter by reading the newspaper story and viewing the published photographs.
Respondent filed an amended complaint against petitioner alleging (1) trespass and invasion of privacy, (2) invasion of privacy, (3) wrong intentional infliction of emotional distress seeking punitive damages.
The trial court dismissed Count II and granted final summary judgment for petitioner as to Counts I and III. Relative to the granting of summary judgment for Petitioner as to Count I, the trial judge cogently explicated:
"As to Count I, the question raised by the motion for summary judgment is one of law as there is no genuine issue of material fact. The question raised is whether the trespass alleged in Count I of the complaint was consented to by the doctrine of common custom and usage.
"The law is well settled in Florida and elsewhere that there is no unlawful trespass when peaceable entry is made, without objection, under common custom and usage. See Prior v. White (1938) 132 Fla. 1, at 19, 180 So. 347; Boston v. Fornalski (Fla. DCA 4, 1970) 234 So. 2d 386, 387; 52 Am.Jur., Trespass, Section 39; 87 C.J.S., Trespass, Section 49b; Conley on Torts (4th Edition) Sections 251 and 248; Harper and James on Torts, Section 1.11; Restatement of the Law of Torts, Section 167(d), Trespass, page 403.
"In Martin v. Struthers (1943) 319 U.S. 141, 149 [63 S. Ct. 862, 87 L. Ed. 1313], the Court struck down an unconstitutional and `invalid in conflict with the freedom of speech and press' a city ordinance which made it unlawful trespass to knock on doors and ring doorbells to distribute literature. In so doing, at pages 147-149 [63 S. Ct. 862] it made the far reaching pronouncement followed by the Florida Supreme Court in Prior v. White (Fla. 1938) 132 Fla. 1, 180 So. 347, 356:
"`Traditionally the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. * * We know of no state which, as does the Struthers ordinance in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away.'
"In McKee v. Gratz (1922) 262 [260] U.S. 127 [43 S. Ct. 16, 67 L. Ed. 167], the Supreme Court recognized the rule that it was not trespass when under the `habits of the country' entry was commonly made.
* * * * * *
"Not only did the Fire Marshal and Detective Sergeant Short testify it was common custom and usage to permit the news media to enter under the circumstances here, and of the great number of times they had permitted it in private homes, but many affidavits were filed to the same effect, including those of Duval County Sheriff Carson and Florida Attorney General Shevin.
"Similar affidavits have been filed from the Chicago Tribune; the ABC-TV News, New York; the Tallahassee Democrat; the Pensacola Journal; the Associated Press; the President of the American Newspaper Publishers Association; the President of the Radio Television News Directors Association; the Miami Herald; United Press International; The Florida Times-Union and Jacksonville Journal; The Washington Post; TV-12 at Jacksonville; TV-10 at Miami; TV-4 at Jacksonville; the New York Daily News; the Milwaukee Journal; the Birmingham *917 Post-Herald; the Memphis Commercial Appeal; the Macon Telegraph; and the Tampa Tribune; all attesting that it is common usage, custom and practice for news media to enter private premises and homes under circumstances like those here.
"Plaintiff filed no affidavits except her own; she makes no attempt to qualify as an expert; and she simply states her personal belief generally, without going into the situation involving coverage of a news story of public interest. She shows no qualifications to make an affidavit on the custom and usage in such matters.
"In Mrs. Fletcher's deposition, she stated she was in New York at the time of the fire; there was no one at the scene who objected to the entry; and she makes it clear she does not contend there was any force used for entry, or any physical damage done to the premises.
"Plaintiff likewise concedes that it was perfectly proper for the Fire and Police to enter without permission. The Fire and Police used the picture as part of their official investigation and actually requested that such picture be taken and would have made such request even had the Plaintiff been there and objected. There is no evidence that any restriction was placed upon the Defendant's photographer in the use of the photographs he took at the request of the Police and Fire Marshal.
"Numerous affidavits, as above set forth, have been filed by the Defendant in support of its motion for summary judgments. All these affidavits attest to the fact that it is common usage, custom and practice for news media to enter private premises and homes to report on matters of public interest or a public event. The court therefore finds that there is no genuine issue of material fact and that as a matter of law an entry, that may otherwise be an actionable trespass, becomes lawful and non-actionable when it is done under common usage, custom and practice. The court further finds that the entry complained of in Count I of the Plaintiff's complaint was one permitted by common usage, custom and practice, and that the Defendant is entitled to a summary judgment as a matter of law as to matters alleged in Count I of the Plaintiff's complaint."
On appeal, the District Court of Appeal reversed as to the granting of summary judgment on Count I, stating:
"We do not here hold that a trespass or `intrusion' did in fact occur sub judice: We simply find that such is alleged in Count I of the amended complaint and that the proofs before the learned trial judge are insufficient to resolve the point by summary judgment."
Although recognizing that consent is an absolute defense to an action for trespass and that the defense of custom and usage is but another way of expressing consent by implication that is consent may be implied from custom, usage or conduct the District Court commented that the emergency of the fire was over and that there was no contention that petitioner's employees entered the premises to render assistance, explained that respondent did not either impliedly or expressly invite petitioner's employees into her home, and concluded that the proofs before the court were not sufficient to show that there was no genuine issue of material fact as to whether implied consent by custom and usage authorized entry into the premises without invitation by appellant.
As to the other points on appeal, the District Court of Appeal, First District, determined that although punitive damages are recoverable in a proper case for trespass resulting in invasion of privacy, the trial judge did not err in granting summary judgment for petitioner on issue of punitive damages, held that the trial court correctly dismissed Count II with prejudice, and correctly granted summary judgment for petitioner as to Count III.
The District Court erred in reversing summary judgment for petitioners as to Count I. The trial court properly determined from the record before it that there was no genuine issue of material fact insofar *918 as the entry into respondent's home by petitioner's employees became lawful and non-actionable pursuant to the doctrine of common custom, usage, and practice and since it had been shown that it was common usage, custom and practice for news media to enter private premises and homes under the circumstances present here.
Judge McCord in his dissenting opinion could not agree with the majority that the news photographer who entered the burned out home was a trespasser or that the photograph published by petitioner and the news story resulting from the entry were an actionable invasion of privacy. We agree with and approve the following well-reasoned explication by Judge McCord in his dissenting opinion:
"The only photographs taken and published were of fire damage none were of deceased or injured persons. There, is no contention that the particular photograph complained of (the silhouette picture) and the news story were in any way false or inaccurate. There could, therefore, be no recovery under the `false-light' doctrine of invasion of privacy. See Cantrell v. Forest City Publishing Company, 419 U.S. 245, 95 S. Ct. 465, 42 L. Ed. 2d 419 (1974). Thus, there could be no recovery from the publication if the same photograph had come from a source other than from the news photographer's entry upon the premises. Any recovery in this case must necessarily be based upon trespass, and, therefore, the only question is whether or not there was a trespass by the news photographer. The majority opinion discusses the implied consent doctrine under which a person, who does not have express consent from the owner or possessor of premises, may legally enter under circumstances which infer or imply consent (common usage, custom and practice). It is my view that the entry in this case was by implied consent.
"It is not questioned that this tragic fire and death were being investigated by the fire department and the sheriff's office and that arson was suspected. The fire was a disaster of great public interest and it is clear that the photographer and other members of the news media entered the burned home at the invitation of the investigating officers. (Numerous members of the general public also went through the burned house.) Many affidavits of news editors throughout Florida and the nation and affidavits of Florida law enforcement officials were filed in support of appellee's motion for summary judgment. These affidavits were to the general effect that it has been a long-standing custom and practice throughout the country for representatives of the news media to enter upon private property where disaster of great public interest has occurred entering in a peaceful manner, without causing any physical damage, and at the invitation of the officers who are investigating the calamity. The affidavits of law enforcement officers indicate that the presence of the news media at such investigations is often helpful to the investigations in developing leads, etc.
"The affidavits as to custom and practice do not delineate between various kinds of property where a tragedy occurs. They apply to any such place. If an entry is or is not a trespass, its character would not change depending upon whether or not the place of the tragedy is a burned out home (as here), an office or other building or place. An analysis of the cases on implied consent by custom and usage, indicates that they do not rest upon the previous nonobjection to entry by the particular owner of the property in question but rest upon custom and practice generally. Implied consent would, of course, vanish if one were informed not to enter at that time by the owner or possessor or by their direction. But here there was not only no objection to the entry, but there was an invitation to enter by the officers investigating the fire. The question of implied consent to news media personnel to enter premises in a circumstance such as this appears to be one of first impression not only in this jurisdiction but elsewhere. This, in itself, tends to indicate that the practice has *919 been accepted by the general public since it is a widespread practice of long-standing. Due to such widespread and long-standing custom, reason and logic support the application of implied consent to enter the premises in the case before us. It, therefore, was not a trespass, and I would affirm the trial court." (emphasis supplied)
Accordingly, that portion of the decision of the District Court of Appeal, First District, reversing summary judgment for petitioner as to Count I is quashed, and the cause is remanded for further proceedings consistent herewith.
It is so ordered.
OVERTON, C.J., and ADKINS, BOYD and HATCHETT, JJ., concur.
SUNDBERG, J., dissents with an opinion.
ENGLAND, J., did not participate in this decision.
SUNDBERG, Justice (dissenting).
I dissent from the majority opinion. I dissent not because of the decision reached on merits, but because I cannot conscientiously conclude, as does the majority, that there is direct conflict between the decision of the District Court of Appeal in the instant case and Jacova v. Southern Radio & Television Co., 83 So. 2d 34 (Fla. 1955). Jacova dealt altogether with the issue of whether a communications medium has a qualified privilege to publish the name or photo of a person who has become an "actor" in a newsworthy event. No element of trespass was presented in that case as it is here. In Jacova the plaintiff was photographed by television camera during a police "raid" at a cigar shop located in a hotel.
As explicated by the majority, the issue sub judice is whether the trial court erred in entering summary judgment on the count of the amended complaint which alleged trespass and invasion of privacy. The District Court of Appeal concluded that the proofs were insufficient to determine on summary judgment that there was no trespass based on the affidavits of "custom and usage" utilized to supply the implied consent to the entry found by the trial judge. The opinion below expressly recognized the principle of Jacova with respect to the privilege to publish matters of legitimate, general public interest without being subject to a claim of invasion of privacy:
"Unquestionably the fire in appellant's home coupled with the tragic death of her daughter was of obvious legitimate public interest. That the published matter complained of is of general public interest has always been considered a defense to a claim of invasion of privacy by publication. Finding that the matter published was of obvious legitimate public interest, the publication, per se, was not an invasion of privacy. However, if the entry by appellee's employees into appellant's home constituted a trespass or `intrusion' it follows that such intrusion constituted a sufficient basis for the tort of invasion of privacy, entitling the injured party (appellant here) to such damages incident to the trespass action as may be proved to have resulted therefrom... ." (Footnotes omitted)
Fletcher v. Fla. Publishing Co., 319 So. 2d 100, 111 (Fla. 1st DCA 1975).
It might be asserted that there is conflict on the issue of trespass with the decision of this Court in Prior v. White, 132 Fla. 1, 180 So. 347 (1938). The Prior case dealt with the constitutionality of a municipal ordinance declaring solicitation "in and upon private residences" a nuisance. As pointed out by the majority below, the opinion discussed the principle of implied consent supplied by custom and usage but in the context of the city's exercise of its police power to declare certain conduct a nuisance. The District Court of Appeal opinion carefully discussed and distinguished the Prior decision as not being determinative of the trespass issue sub judice. Fletcher v. Fla. Publishing Co., supra, at 105.
Judge McCord in dissenting from the majority opinion below recognized that this is a case of first impression when he stated, "The question of implied consent to news media personnel to enter premises in a circumstance *920 such as this appears to be one of first impression not only in this jurisdiction but elsewhere." 319 So. 2d 100, 113 at 114.
There is little doubt in my mind that this case is one of great public interest which would justify consideration by this Court. Nonetheless, our jurisdiction is circumscribed by Article V of the Constitution, and it is the function under our constitutional scheme of the district courts of appeal to initiate review by this Court of questions of great public interest through certification. See Article V, Section 3(b)(3), Florida Constitution.
As so aptly stated by Justice Drew in Fla. Power & Light Co. v. Bell, 113 So. 2d 697, 699 (Fla. 1959):
"... Although the question at hand is not whether certiorari should be granted but whether the case is one within the express limitations of our constitutional provisions, the same principles of division of appellate jurisdiction were plainly operative in the drafting of our amended judiciary article and must influence any interpretation of its terms. The constitutional objectives can be achieved and the creation of the district courts justified only if we recognize that the primary function of this Court, particularly in the area of `conflicts' here involved, is to stabilize the law by a review of decisions which form patently irreconcilable precedents... ."
Finding no decisional conflict and the absence of certification of the question to this Court by the District Court of Appeal, First District, I would discharge the writ for lack of jurisdiction.
Rehearing denied; OVERTON, C.J., ADKINS, BOYD and HATCHETT, JJ., and ROBERTS, RET. J., concur.
SUNDBERG J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565316/ | 433 S.W.2d 877 (1968)
Kenneth HACK, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.
Court of Appeals of Kentucky.
November 8, 1968.
*878 Andrew J. Russell, Paducah, for appellant.
John B. Breckinridge, Atty. Gen., Howard E. Trent, Jr., Asst. Atty. Gen., Frankfort, for appellee.
WILLIAMS, Judge.
Appellant Kenneth Hack was found guilty of storehouse breaking by a jury in the McCracken Circuit Court. Punishment was fixed at three years in the penitentiary. His sole question on this appeal is stated thusly:
"Is the fingerprint evidence introduced by the Commonwealth insufficient as a matter of law to support appellant's conviction of storehouse breaking where that evidence alone connects the appellant with the said offense?"
The plate glass front door of Marjel's Cocktail Lounge in Paducah was shattered, entry was made and a quantity of liquor removed between the hours of 1:00 a. m. and 8:00 a.m. on August 11, 1967. A police investigator discovered latent fingerprints on a piece of the broken glass. The latent impressions were dusted, lifted and preserved for identification purposes. Later an anonymous caller advised the police investigator that Kenneth Hack was the person who had broken into Marjel's Cocktail Lounge and had been trying to sell the whiskey taken therefrom. The latent fingerprint lifts and a card with the fingerprint impressions of Hack were transmitted to the Federal Bureau of Investigation for comparison. At the trial an FBI fingerprint examiner testified that the latent fingerprints submitted by the police investigator were the same as the known fingerprints of Hack.
Hack had been in and around the cocktail lounge prior to the morning of the break-in. The owner testified that the plate glass front door had been washed since Hack had been there.
Appellant insists that, under the rule set out in Mason v. Commonwealth, Ky., 357 S.W.2d 667 (1962), the evidence offered to establish Hack's identity is insufficient as a matter of law. Although Hack was identified by an anonymous caller as the person who committed the crime, the principal evidence was the existence of his fingerprints on a broken piece of the plate glass door. In Mason, we rejected the general rule that fingerprints alone will support a conviction only if they are found in a place where the crime was committed under such circumstances that they could only have been impressed at the time when the crime was committed. It was held that an acceptance of that choice of words would refute the rule that, if there is any evidence, however slight or circumstantial, which tends to show guilt of the crime charged or any of its degrees, it is the trial court's duty to submit the question to the jury.
In Mason, forcible entry to an office had been made and a soft drink vending machine had been moved and damaged by a blunt instrument. A thumbprint was found on the side of the vending machine. There was no other evidence to connect Mason with the crime nor was there any evidence that he had had access to the vending machine prior to the day the crime was committed. We held that the unexplained presence of the fingerprint on the machine immediately after it had been handled by the guilty party tended to identify Mason as that party. We said:
"* * * However weak the inference may have been, it was stronger than the speculative possibility that the prints were impressed innocently, and was sufficient to sustain the verdict."
*879 In this case, Hack had been in and around the cocktail lounge prior to the date of the crime and could possibly have left his fingerprints on the door at that time. But the owner testified the door had been washed the day before and following the last time Hack had been present. The jury had every right to believe that testimony. It would necessarily follow then that Hack's fingerprints were not impressed innocently, and the evidence was sufficient to sustain the verdict.
In view of this conclusion, it is unnecessary to consider the Commonwealth's argument that the appeal should be dismissed because of certain procedural defects.
The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2460016/ | 260 P.3d 494 (2011)
350 Or. 717
STATE
v.
FLENNORY.
(S058871).
Supreme Court of Oregon.
September 15, 2011.
Petition for Review Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565718/ | 34 So. 3d 737 (2008)
CYNTHIA SALVADOR
v.
GEICO.
No. 1070200.
Supreme Court of Alabama.
August 8, 2008.
Decision of the Supreme Court of Alabama Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919780/ | 660 So. 2d 330 (1995)
In the Interest of A.C., a child.
STATE of Florida DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant,
v.
The NATURAL PARENTS OF A.C., A Child, Appellees.
No. 94-02303.
District Court of Appeal of Florida, Second District.
August 30, 1995.
Wesley Pardue, Tampa, for appellant.
Sandra M. Kellaher, Brandon, for appellees.
*331 THREADGILL, Chief Judge.
The Department of Health and Rehabilitative Services (HRS) appeals an order in which the trial court denied a petition for termination of parental rights based on its belief that section 39.464, Florida Statutes (Supp. 1992), does not permit termination of parental rights of either parent where only one parent commits abuse. We disagree with this interpretation and therefore reverse.
HRS instituted termination proceedings against the parents of A.C. after A.C. was admitted to the pediatric intensive care unit of St. Joseph's Hospital with severe injuries at the age of three and one-half months. Testimony at the adjudicatory hearing revealed that A.C. had suffered the following injuries: a very large depressed skull fracture extending from above his left ear to the middle of the back of his head; a subdural hemorrhage to the brain in the left parietal area where the fracture started; another subdural hemorrhage on the right forehead area; retinal hemorrhages behind both eyes, indicative of a shaking episode; and a burned finger. A.C. had also suffered injuries to three ribs. There was testimony that the rib injuries could have been older fractures in the late phases of healing or could have resulted from some type of crushing just before A.C. was presented for treatment. Two physicians testified that A.C.'s injuries were life-threatening.
Initially, the mother reported that A.C. had fallen from his crib and then had fallen from her arms as she rushed to take him to the hospital. The mother subsequently admitted to a detective that she had shaken A.C. and forcefully placed him into his crib, at which time his head bounced onto the wooden rail. At the adjudicatory hearing, however, the mother recanted her admission to the detective. She again claimed the child had sustained the injuries in falls from the crib and her arms. In its orders of adjudication and disposition, the trial court specifically found that the mother was guilty of severe and continuing abuse or neglect of A.C. and that she had also engaged in egregious abuse of A.C.
The mother testified that A.C.'s father was at work at the time A.C. suffered the skull fracture. A physician who testified at the hearing opined that the right frontal hemorrhage to A.C.'s brain was two to four weeks old at the time A.C. was admitted to the hospital. The physician testified that as a result of this injury, a caretaker would have been alerted by the child's distress. The trial court, however, rejected this testimony and found that there was an absolute dearth of testimony to indicate the father was in a position to be aware of A.C.'s injuries. The mother and father have continued in their relationship since the time of A.C.'s injuries. In its adjudication order, the trial court held: "pursuant to its reading of Florida Statute 39.464, it is not appropriate for this court to terminate parental rights when, as in this case, the severe and continuing abuse or neglect and/or the egregious abuse or neglect is found to have been committed by only one parent."
Section 39.464, Florida Statutes (Supp. 1992), sets forth the grounds for termination of parental rights. Subsections (3) and (4) of that provision permit a petition for termination of parental rights under the following circumstances:
(3) SEVERE OR CONTINUING ABUSE OR NEGLECT. The parent or parents have engaged in conduct towards the child or towards other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life or well being of the child regardless of the provision of services.
....
(4) EGREGIOUS ABUSE. The parent or parents have engaged in egregious conduct that endangers the life, health, or safety of the child or sibling, or the parents have had the opportunity and capability to prevent egregious conduct that threatened the life, health, or safety of the child or sibling and have knowingly failed to do so.
....
For the purposes of this subsection, "egregious abuse" means conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct. *332 "Egregious abuse" may include an act or omission that occurred only once, but was of such intensity, magnitude, or severity as to endanger the life of the child.
We disagree with the trial court's interpretation of section 39.464. As noted by the First District in In the Interest of S.F., 633 So. 2d 120 (Fla. 1st DCA 1994), chapter 39 does not preclude instituting termination proceedings against one parent where the other natural parent would be a satisfactory placement. Sections 39.464(3) and (4) allow a petition for termination where the parent or parents have engaged in severe or continuing abuse or neglect or egregious abuse. By this plain language, the legislature has provided a means for termination of parental rights based upon the conduct of one or both parents. See Lamont v. State, 610 So. 2d 435 (Fla. 1992) (where language of statute is clear and unambiguous, language must be given its plain meaning). Thus, the trial court had the authority to grant the petition for termination of parental rights as to the mother if it found the requirements of chapter 39 had been met, even if it denied the petition as to the father.
This court must avoid a construction of the statute that would lead to an absurd or unreasonable result. State v. Webb, 398 So. 2d 820 (Fla. 1981). The purpose of chapter 39 is to provide for the care, safety, and protection of children. § 39.001, Fla. Stat. (1991). While it seems absurd to terminate one parent's rights where the parents continue their relationship as a family, it would be more absurd, given the purpose of chapter 39, to restrict the court's ability to terminate a parent's rights if necessary to protect the child from life-threatening injuries. The evidence clearly supports the application of section 39.464 as to the mother in this case. See In the Interest of D.J., 553 So. 2d 378 (Fla. 1st DCA 1989). We, therefore, remand for the trial court to reconsider, in light of this opinion, whether the mother's parental rights should have been terminated. The other points raised on appeal are without merit.
Reversed and remanded for further proceedings.
DANAHY and BLUE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1919840/ | 91 B.R. 9 (1988)
In re Miguel V. APONTE, Debtor.
Miguel V. APONTE, Plaintiff,
v.
Walter AUNGST, Jr., Defendant.
Bankruptcy No. 85-03157T, Adv. No. 85-0844.
United States Bankruptcy Court, E.D. Pennsylvania.
September 23, 1988.
*10 Kevin J. Kelleher, Bethlehem, Pa., for defendant.
Judith L. Jones, Lehigh Valley Legal Services, Allentown, Pa., for plaintiff/debtor.
MEMORANDUM OPINION
THOMAS M. TWARDOWSKI, Bankruptcy Judge.
Twenty eight (28) days after we entered an order against defendant Walter Aungst, Jr. ("defendant") based on his violations of 11 U.S.C. § 362, defendant filed a motion for leave to extend the appeal period. Plaintiff Miguel V. Aponte ("plaintiff") has filed an objection, alleging that defendant has not shown the excusable neglect required by N.B.R. 8002(c). We agree with plaintiff and deny defendant's motion.
Rule 8002(c) creates a two-tiered system for evaluating motions for leave to appeal. If the motion is filed within the appeal period, the court may grant the extension. If the motion is filed no more than twenty (20) days after the expiration of the appeal period, the court may grant the extension if movant makes a showing of excusable neglect.[1] N.B.R. 8002(c). The failure to file a notice of appeal in timely fashion is a jurisdictional defect barring appellate review. In re Universal Minerals, Inc., 755 F.2d 309, 310 (3rd Cir. 1985); Doyle v. Paolino (In re Energy Savings Center, Inc.), 60 B.R. 732, 737 (E.D.Pa.1986), aff'd 810 F.2d 1162, 1164 (3rd Cir.1987); Ganz v. Kovatech Corp (In re Wicaco Machine Co., Inc.), 60 B.R. 415, 417 (E.D.Pa.1986), aff'd 806 F.2d 252, 256 (3d Cir.1986). As a result, N.B.R. 8002 is strictly construed. In re Universal Minerals, Inc., 755 F.2d 309, 311; In re W & L Associates, Inc., 74 B.R. 681, 683 (Bankr.E. D.Pa.1987). Because N.B.R. 8002 is jurisdictional in character, the concept of excusable neglect developed under that rule should not be interchanged with the concept of excusable neglect developed under Fed.R.Civ.P. 60.[2] The resolution of an appeal has a more direct impact on the public interest in "seeing an end come to litigation." In re W & L Associates, 74 B.R. 681, 683, quoting In re Washington County Broadcasting, Inc., 39 B.R. 77, 79 (Bankr.D.Me.1984). Thus, although we have espoused our circuit's liberal view of Fed.R.Civ.P. 60(b), we will not afford N.B.R. 8002(c) motions for extension the same broad interpretation. See e.g., Tamarkin v. Wells (In re Wells), 87 B.R. 862 (Bankr. E.D.Pa.1988).
As a result of the strict interpretation used in these N.B.R. 8002 cases, there are virtually no cases in which recalcitrant counsel have mounted successful allegations of excusable neglect. One notable exception is In re William B. Kessler, Inc., 29 B.R. 358 (Bankr.S.D.N.Y.1983) in which a combination of circumstances gave rise to a finding of excusable neglect:
(t)he extreme illness of the partner in charge of the case, the confusion caused *11 by the merger and relocation of the . . . law offices, the inability to locate the case file, the prompt action taken to rectify the situation, the magnitude of the controversy, the brevity of the delay, and the absence of prejudice to the appellee . . .
Id. at 359. In light of recent decisions within this circuit, see e.g., In re W & L Associates, Inc., 74 B.R. 681, it is not at all certain that we would have reached the same conclusion as was reached by the Kessler court. We need not decide that question, however, because the instant facts are far less compelling.
Defendant's attorney testified that he received our February 19th opinion on February 22nd, the date on which he became attached for trial in a lengthy state court proceeding. He avers in his motion that he became attached for trial on February 23rd, and in his memorandum that this key date was February 21, 1988. He also testified that he is a sole practitioner, and that his secretary accompanied him as his assistant. The trial ended on March 1st, and counsel testified that he was unable to review the opinion until March 2, 1988. At that time he mailed a copy of the opinion to his client, with the request that the client review it and respond. He did not meet with his client until March 14th, and appeared in chambers on March 17th bearing an order which would have extended the appeal period based on his "excusable neglect." We reminded counsel that he had not filed an underlying motion, notified opposing counsel or appeared at a hearing, and we therefore refused to sign the order. On March 18th he filed a formal motion, and the matter was heard after he effected proper service.
The most significant part of this saga is what counsel fails to state or explain. Counsel would have us believe that he did not review the opinion until March 2nd because he did nothing in that time period other than attend his other trial. Attorneys, even sole practitioners, simply do not fail to address all other client files when engaged in litigation.
Counsel's argument that he could not review our opinion until March 2nd is belied by his testimony that the opinion was received in his office on February 22nd. It is implausible that counsel was totally unaware of the daily flow of paperwork for that week long period. Whether he wanted to take time to contact defendant to discuss the possibility of appeal is another question, but he could, at the very least, have sent out a copy of the opinion.
Counsel's response after the end of the state court trial was less than active. Instead of calling his client on March 2nd to discuss the appeal problem, he sent a letter. It took him nearly two weeks to meet with his client, and his first attempt to remedy the situation illustrated a complete disregard for the rules of procedure. These are not the uniquely compelling circumstances presented in Kessler.
We will, however, analyze each separate element of this situation, as suggested by our Court of Appeals. See Consolidated Freightways Corp. of Delaware v. Larson, 827 F.2d 916 (3d Cir.1987). In Larson, the court reviewed Fed.R.App.Proc. 4(a), from which Rule 8002 is derived,[3] and concluded that:
. . . a thoughtful analysis of this issue in a particular context will, at a minimum, require a weighing and balancing of the following factors: (1) whether the inadvertence reflects professional incompetence such as ignorance of the rules of procedure, Campbell v. Bowlin, 724 F.2d 484 (5th Cir.1984) (failure to read rules of procedure not excusable); (2) whether the asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court, Airline Pilots v. Executive Airlines, Inc., 569 F.2d 1174 (1st Cir.1978) (mistake in diarying counsel's calendar not excusable); (3) whether the tardiness results from counsel's failure to provide for a readily foreseeable consequence, United States v. Commonwealth of Virginia, 508 F.Supp. 187 (E.D.Va.1981) (failure to arrange coverage during attorney's vacation *12 which encompassed end of appeal period not excusable); (4) whether the inadvertence reflects a complete lack of diligence, Reinsurance Co. of America, Inc. v. Administratia, 808 F.2d 1249 (7th Cir.1987); or (5) whether the court is satisfied that the inadvertence resulted despite counsel's substantial good faith efforts toward compliance.
Id. at 919.
First, the instant record does not allow us to rule on counsel's competence. We do, however, chastise defendant's counsel for attempting to contact the court, ex parte, with the goal of securing entry of an order (with no motion attached thereto) which would have granted an extension, thereby precluding his opponent from raising the excusable neglect issue.
Second, however, attachment for trial is not an "easily manufactured excuse." By the same token, when we consider the third Larson factor, we hold the events underlying this matter were readily foreseeable. Courts have not found excusable neglect when counsel's inability to act in a timely fashion was the result of an absence related to the birth of a child, In re Wildflower Land Holding Assoc. Ltd., 34 B.R. 4, 5 (Bankr.M.D.Fla.1983), or counsel's vacation, Elias v. Zeller (In re Zeller), 38 B.R. 739, 742 (9th Cir.BAP 1984). Even failure to act caused by unanticipated events, such as a serious illness in the debtor's family, has not given rise to a finding of excusable neglect. See e.g., In re DiDio, 1 B.R. 196, 199 (Bankr.E.D.Pa.1979) (interpreting former Rule 802). Clerical oversight, another unanticipated event, does not create excusable neglect. Oregon v. Champion Intl. Corp., 680 F.2d 1300, 1301 (9th Cir.1982).
While we are sympathetic to the demands of litigation, such is a foreseeable consequence of practicing law and such an excuse does not rise to the level of N.B.R. 8002 excusable neglect. See e.g., Rowles, Winston & Co. v. T.C. Morrow (In re T.C. Morrow), 564 F.2d 189, 190 (5th Cir.1977) (interpreting former Rule 802(c)); In re Uiterwyk Corp., 57 B.R. 166 (Bankr.M.D. Fla.1986) (press of other business not excusable neglect even under the more liberal Rule 60(b) standard). When counsel's inability to act is the result of events that could reasonably have been anticipated, courts will not find excusable neglect.
In applying the fourth and fifth elements of the Larson analysis to these facts, we conclude that counsel's inadvertence reflected a complete lack of diligence and that his actions did not constitute "substantial good faith efforts" toward compliance. Assuming he had been completely unaware until March 2nd of the order which had been sitting on his desk since February 20th, the potential of a jurisdictional defect and the magnitude of the underlying order warranted a more immediate response.
Defendant's counsel argues that we must take a two step approach and review the merits of the defense and the prejudice resulting from an adverse decision. In re Smith, 44 B.R. 46, 48 (Bankr.D.N.M.1984). Specifically, he argues that his client would be severely prejudiced by our refusal to extend the appeal period because the underlying order awarded plaintiff, among other things, treble damages. We cannot accept that the sheer magnitude of our underlying order should prompt a finding of excusable neglect when counsel's actions were less than diligent. The development of the term "excusable neglect" within the case law does not support such a holding. We suspect that the Smith court was confusing the N.B.R. 8002 excusable neglect standard with the standard applied to Fed. R.Civ.P. 60(b) motions. In the latter, courts consider (1) whether the default occurred as a result of defendant's culpable conduct, (2) whether plaintiff will be prejudiced if the default is lifted, and (3) whether defendant has a meritorious defense. Zawadski de Bueno v. Bueno Castro, 822 F.2d 416, 419-20 (3d Cir.1987). Additionally, requiring a court to determine whether the amount of an award creates prejudice would choke courts with extraneous facts and issues centered on the hardship caused by an award. We also have severe due process concerns about this type of analysis; it is thoroughly possible to envision two cases, one with a wealthy defendant and one with a poor defendant, in which *13 counsel committed the same error. Under this hardship analysis, the poor defendant might be granted an extension to appeal while his wealthier counterpart was saddled with an expired appeal period. Defendant has presented no authority to support the proposition that sole practitioner should be held to a lesser standard of diligence required of all attorneys. We have considered counsel's conduct in light of the Larson standards and hold that this sole practitioner has simply failed to sustain his burden of showing excusable neglect under all of the relevant circumstances.
An appropriate order follows.
NOTES
[1] The Rule excludes appeals from orders authorizing the sale of property, the obtaining of credit, the incurring of debt or orders approving disclosure statements, confirming plans or dismissing or converting cases. N.B.R. 8002(c).
[2] Fed.R.Civ.P. 60 allows relief from judgment or orders for ". . . mistake, inadvertence, surprise or excusable neglect." Fed.R.Civ.P. 60(b)(1).
[3] See N.B.R. 8002, Advisory Committee Note. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304514/ | OWEN, J.
Alice Griffiths hereinafter called complainant, filed her bill February 25, 1923 in the chancery court in Knox county seeking to recover a certain house and lot on Middlebrook avenue. It appears that the lot in controversy is thirty-seven feet by one hundred feet and it is described minutely. In complainant’s bill it was shown that she purchased the lot in controversy, from Frederick Ball and wife Mary Ball, ánd deeded to her on the 3rd day of January, 1896. It was alleged that the defendants were in possession of complainant’s property, that they were claiming title by virtue of a deed made by the widow of Frederick Ball and his children which deed was executed the-21st day of July, 1920. Complainant sought to recover in addition to the lot, the rents. The defendants answered denying that complainant was entitled to possession or that she had a valid deed from *696Frederick Ball or tbat sbe was entitled to rents. By way of cross-bill tbe defendants made tbe following allegations:
Defendants by way of cross-bill alleged tbat tbe property was conveyed to Frederick Ball in March, 1889, and tbat tbe said Frederick Ball died and left surviving him bis widow, Mary A. Ball (who later married Sam Lygbtle) and three children, Oliver Ball, W. A. Ball and Frederick Ball, Jr., and that by deed dated July 21, 1920, Mary A. Lygbtle, Oliver Ball, "W. A. Ball and Frederick Ball, Jr., conveyed the property to B. C. Ogle, who went into immediate possession of tbe same.
Defendants further allege tbat B. 0. Ogle and wife, Nellie Ogle, on September 22, 1920, conveyed tbe property to J. J. Conner and Charles Galbraith, and that on December 27, 1920, tbe said Charles Galbraith reconveyed bis undivided one-half interest in the said property to B. C. Ogle. Afterwards B. C. Ogle and J. J. Conner conveyed tbe property to Jasper Wallace and Maggie Wallace. Defendants further allege tbat at the time tbe complainant claims to have obtained tbe deed from the said Frederick Ball to tbe property, tbe said Frederick Ball had been adjudged insane and a guardian bad been previously thereto appointed to look after tbe said Frederick Ball’s property, an tbat the guardian was at tbe time exercising bis rights as guardian; and tbat on January 6, 1896, Jobe C. Lawrence, who had been appointed as guardian, resigned. Defendants allege that if Alice Griffiths has in her possession a deed to the property, tbat tbe same was void on tbe ground that the said Frederick Ball was insane at tbe time be signed tbe deed, and that this fact was known to tbe complainant.
Defendants and cross-complainants prayed tbat tbe deed Under which Alice Griffiths claims title to tbe property, be declared null and void, and of no effect, and tbat it be removed as a cloud upon cross complainant’s title; but tbat, if they be mistaken in their rights, and tbe court should be of tbe opinion tbat Alice Griffiths is the owner of said property, a judgment be rendered against her in favor of J. J. Conner and B. C. Ogle for tbe value of tbe improvements made upon tbe said property, and for the taxes paid by them.
Alice Griffiths, cross defendant, answered the cross,-bill of B. C. Ogle et ah, denying tbat Frederick Ball was insane at the time tbe deed was executed by him and his wife, conveying the property to cross defendant. Cross defendant alleges tbat tbe said Frederick-Ball was of so-und mind and knew and understood tbe results of bis act, and tbat tbe deed was in all respects regular in every way and properly recorded in tbe Register’s office of Knox county, Tennessee, and tbat tbe said deed on its face showed a valuable consideration for the transfer of the title.
*697Cross defendant further alleged that for more than twenty years she was in possession of the property and exercised ownership, and paid taxes on the said property.
A number of depositions were taken. The Chancellor sustained complainant’s bill and ordered reference to the Clerk and Master to ,aseertain as to what improvements had been made by the defendants, the value thereof, how much the property had enhanced by these improvements, what taxes had been paid by the defendants, what rents the defendants had collected and what interest the defendants were entitled to upon their taxes paid and improvements made. The Chancellor held that the defendants purchased in good faith from the heirs of Frederick Ball. The Clerk and Master after some delay on account of some of the papers, in the file, having been lost, made his report. This report was confirmed and the Chancellor filed the following findings of fact:
I.
“That Frederick Ball and wife, Mary Alice Ball, on January 3, 1896, conveyed the property in question to the complainant, Alice Griffiths, an unmarried colored'woman, which deed was recorded on March 3, 1896 (see copy of said deed on file), and that thereafter the complainant paid taxes for many years upon the said property, including the years 1924 and 1925.
II.
“That on July 21, 1920, Mary A. Lyghtle (formerly Mary Alice Ball, her husband having died in the meantime), conveyed jointly with the children and heirs of the said Frederick A. Ball, namely, Oliver Ball, "W. A. Ball, and Frederick Ball, Jr., the said property to defendant, B. C. Ogle, which deed was recorded on October 1, 1920. (See copy of deed on file.) '
III.
“That before the defendant, B. C. Ogle, bought the property he talked with the heirs of Frederick Ball, deceased, and they claimed to own it, and he agreed with them on a price and he (Ogle) then made an investigation in the Register’s office but failed to find the deed under which the complainant claims title and heard nothing of her claim until after he (Ogle) had sold the property to the defendant J. J. Conner and one Galbraith (said Galbraith is -not sued in this cause). The court further binds that the said Ogle acted in good faith in purchasing the property.
IV.
“That on September 22, 1920, the defendant, J. J. Conner, bought the said property from the defendant, B. C. Ogle and the said Gal-*698braitb and went into possession thereof and built a new bouse on the land, and that the deed made to Conner by the said Ogle and Galbraith was a special warranty deed.
Y.
“That on March 13, 1922, the defendant, J. J. Conner, sold the said property to the defendant, Jasper Wallace, and made him a deed therefor, and the said Jasper Wallace at once went into possession, building one house soon after he bought it and another house the following year, and that there are now three houses on the property. But, when Ogle first bought the property there was no house on it except a dilapidated building worth nothing except for material and the material was of very little value.
YI.
“That defendant, Jasper Wallace, who is now in possession and has been in possession of the property since he purchased it from Conner, has been paying the taxes thereon ever since he bought it and that the said Wallace did not have the title examined, but that his vendor, the defendant, J. J. Conner, told him that the complainant, Alice Griffiths, was talking about bringing a lawsuit claiming the property belonged to her, but that he (Connor) would stand by him (Wallace) if anything turned up and would repay him all the money he paid into the property. '
YII.
“That (confirming the report of the Master) the improvements placed on the property by Conner and Wallace are worth thirteen hundred and ninety-three ($1393) dollars, and that the said Conner and Wallace have paid one hundred and seventeen dollars and twelve ($117.12) cents of taxes on the property since they purchased it and that the enhanced value of the land by reason of said improvements is $1700 and that the increase in value from the time the defendants purchased it to the time of the decree in this cause is fourteen hundred ($1400) dollars.
VIII.
“That (confirming the report of the Master) the rents of the property since its purchase by the defendant Conner amount to eleven hundred and fourteen ($1114) dollars without interest, and that after allowing the defendants credit for the improvements and taxes with interest thereon and after charging the defendants with rents without interest there is a balance due the defendants of six hundred ninety dollars and fifty ($690.50) cents. This January 31, 1927.”
Both parties excepted to the final decree, prayed and were granted appeals to this court. The defendants perfected an appeal. The *699complainant has filed the record for writ of error, and has assigned four errors as follows:
1.
The court erred in holding that the defendants were not chargeable with notice when they made the improvements on the land.
2.
The court erred in rendering a decree against the complainant for the sum of $690.50, which amount represented the difference, between the enhanced' value of the property and the amount of rents to which the complainant was entitled to recover from the defendants.
3.
The court erred in taxing the complainant with half the costs of this cause.
4.
The court erred in not allowing complainant interest on the sum of $1114, being the amount of the rents collected by defendants.
The defendants have assigned three errors; defendants ’ errors raise the following propositions:
1.
The court erred in holding that complainant was the owner of the lot in controversy and entitled to possession of same.
2.
The court erred in charging the defendants any rents.
3.
If chargeable with any rents, the court should not have charged continuous rents on the building but charged with the rents actually received.
As to defendants’ first assignment of error, the court reached the right conclusion in holding that the complainant was entitled to the lot. It appears that Frederick Ball, a colored man was a pensioner. He was a soldier in the Federal (Army and drew $216 every three months as á pension. Before Frederick Ball married Mary Alice Ball he had a guardian appointed to collect his pension money, but after he married, the guardian I resigned and the county court of Knox county, T’ennessee, decreed that Frederick Ball was capable of attending to his own affairs. Lawrence resigned as guardian January 6, 1896. The fact is that while Frederick Ball was blind he was never insane ; he bought and sold several parcels of land in Knox county. The complainant, after she purchased this lot from Ball, received rents from a tenant named Gray, $.50 a week. The complainant moved to Chicago and resided in Chicago from about the time she purchased her lot until she filed her bill. Shortly before defendant, Ogle purchased the lot in controversy, Frederick Ball and Mary Ball’s youngest child reached his majority. The children of Frederick and Mary Ball who had been remarried to one Lyghtle, conveyed this lot to defendant, B. C. Ogle. Mr. Ogle is a lawyer. He examined the title *700and be states that by some oversight be overlooked tbe deed from Frederick Ball and Mary Ball to complainant; that bad be seen that deed be would not have purchased tbe property. It is also stated that tbe deed to complainant is void because there was no consideration. Neither of these insistences can be sustained. Tbe first assignment of error is overruled; as to tbe last two assignments (by tbe defendants, we are of tbe opinion that tbe defendants should have been charged with rents and tbe amount charged as rents is tbe concurrent finding of tbe Clerk and Master and tbe Chancellor, and we find evidence to sustain the same. The defendant’s assignment of error is «overruled; as to complainant’s assignments of error we are of tbe opinion that tbe defendants are entitled to recover for their improvements; that they were acting in good faith.. I It is true that before some of tbe improvements were made, defendant, Wallace beard that some woman was claiming tbe property but she took no step to assert her rights before the filing of tbe bill and she knew that tbe defendants were placing valuable improvements upon her lot, and we are of tbe opinion that the Chancellor reached tbe right conclusion in allowing tbe complainants to recover for tbe improvements made. 15 Cyc., page 205, which is said:
“A bona-fide occupant holding possession of land under color of title is not liable for the increased rental value of the land caused by improvements put upon it himself. In such.cases the estimate of rent should be made with reference to tbe condition of the land at tbe time when be entered upon it, unless tbe occupant has been allowed full compensation for improvements, or the owner is required to pay interest on tbe value of tbe improvements.”
Our own case of Howard v. Mjasengill, 13 Lea, 588, bolds to tbe same effect that tbe complainant cannot take tbe property of the defendants without compensation.
‘ ‘ All of these improvements. have been made in tbe past five years, and without knowledge of complainant’s title; some of tbe most valuable of them are yet incomplete, their progress having been arrested by this suit. Tbe builders and occupants have as yet received little or nothing from their outlay. To limit their allowance for betterments, by the amount of rents and profits, is practically a total denial of the very equity of their claim, i. e., that complainant shall not take from them, without compensation, things of value, placed by them in good faith on her land, which now, because they are fixtures, necessarily inure to her benefit.”
This proposition is sustained by the following Tennessee cases:
Aiken v. Suttle, 4 Lea, page 122; McKinley v. Holliday, 10 Yerg., page 477. It results that complainant’s first assignment of error is overruled. The other- assignments of error (by complainant raise the proposition of the costs taxed to complainant and in-not allowing interest on the rents. These were matters clearly within the sound dis*701cretion of the Chancellor, and we are of the opinion that he committed no error in his decree which results that all assignments are overruled. The decree of the (lower court is affirmed; the costs in the lower court will be paid as decreed by the Chancellor. Complainant's petition for writ of error is dismissed. The costs of the appeal and filing of the record for error will be paid one-half by complainant and her surety on writ of error bond and one-half by defendants and their surety on appeal bond, execution will issue accordingly. This cause will be remanded to the chancery court of Knox county for the purpose of carrying out the Chancellor’s decree.
Heiskell and Senter, JJ., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3034443/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-3680
___________
Cornelius Moore, *
*
Appellant, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Bruce Wagner; John Cherry, Dr.; State * [UNPUBLISHED]
of Nebraska; Frank Hopkins, *
*
Appellees. *
___________
Submitted: April 5, 2004
Filed: April 8, 2004
___________
Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
___________
PER CURIAM.
Nebraska inmate Cornelius Moore appeals the district court’s* dismissal of
Moore’s civil complaint. After carefully reviewing the record, we conclude the
district court properly dismissed Moore’s complaint as time-barred. Accordingly, the
judgment is affirmed, see 8th Cir. R. 47B, and we deny Moore’s motion for
reimbursement of funds.
*
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska. | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2694751/ | [Cite as In re Henderson, 2012-Ohio-4848.]
Court of Claims of Ohio
Victims of Crime Division
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
IN RE: CAROLYN E. HENDERSON
CAROLYN E. HENDERSON
Applicant
Case No. V2011-60930
Commissioners:
E. Joel Wesp, Presiding
Susan G. Sheridan
Necol Russell-Washington
ORDER OF A THREE-COMMISSIONER PANEL
{¶1} On July 18, 2011, applicant, Carolyn Henderson, filed a compensation application
as the result of an incident which occurred on July 15, 2009. On August 16, 2011, the
Attorney General issued a finding of fact and decision denying the applicant’s claim
because she did not qualify as a victim of criminally injurious conduct pursuant to R.C.
2743.51(C)(1). On September 16, 2011, the applicant filed a request for
reconsideration. On November 14, 2011, the Attorney General rendered a Final
Decision finding no reason to modify the initial decision.
{¶2} On December 16, 2011, the applicant filed a notice of appeal from the
November 14, 2011 Final Decision of the Attorney General. Hence, this claim was
heard before this panel of commissioners on March 8, 2012 at 9:55 A.M.
{¶3} The applicant, Carolyn Henderson and her counsel, Byron Potts, appeared at the
hearing, while Assistant Attorneys General Gwynn Kinsel and Melissa Montgomery
represented the state of Ohio.
{¶4} The only issue on appeal is whether the applicant qualifies as a victim of criminally
injurious conduct. After brief opening statements, the applicant, Carolyn Henderson
took the witness stand. The applicant stated on July 15, 2009, she was shopping at
Case No. V2011-60930 - 2 - ORDER
Kroger at approximately 12:30 A.M., while checking out at the U-Scan a Kroger
employee approached her and began knocking her groceries on the floor. As she
attempted to finish her grocery checkout, the employee again began to interfere in a
disruptive manner. The applicant stated she asked the employee for assistance but he
became agitated, and started throwing boxes at her. A beam separated her from the
employee and when the boxes hit the beam small metal clippings and dust were
propelled into her eyes. Mrs. Henderson testified that she experienced fear and
apprehension at the time of the incident. She stated she believed another employee
reported the incident to Kroger management.
{¶5} At that point she left the store and went to the emergency room. She recalled a
doctor numbed and rinsed her eyes and directed her to contact the police. The
applicant was shown Applicant’s Exhibit 1, a call report from the Mansfield Police
Department dated July 15, 2009. She identified the report and stated the call was
made to police as the result of the assault which occurred at Kroger.
{¶6} The applicant was then presented with Applicant’s Exhibit 2, an adult triage report.
The applicant read the report concerning the incident at Kroger and that she had dust in
her eyes. Finally, the applicant was shown Applicant’s Exhibit 3, a letter from Juan
Penhos, M.D., dated July 27, 2009. The letter outlined the incident at Kroger and
stated that as a result of this incident she got dust in her eyes.
{¶7} Upon cross-examination, the applicant stated that another store employee
witnessed the incident. The applicant conceded she did not speak to the store
manager or file an incident report with Kroger, nor did she make any follow up visits.
{¶8} The Attorney General introduced State’s Exhibit A, a Mansfield Hospital
Emergency Department Report. The Attorney General directed the applicant to read
the section of the report entitled “History of Present Illness.” The applicant read the
following:
a. “Patient was at the grocery store when one of the clerks apparently
moved a bunch of boxes and the dust from the boxes went into her eyes.
Case No. V2011-60930 - 3 - ORDER
None of the boxes struck her. Patient stated she got some dust in her
eyes, which caused some irritation and she presented here for
evaluation.”
{¶9} The applicant revealed that the doctor found material in her eyes when he put her
under a machine. He informed her, her eyes would need to be numbed so he could
rinse them. The Attorney General then directed the applicant to read the last sentence
of the section entitled “Physical Examination.” Applicant read, “There is no foreign
material seen.”
{¶10} The Attorney General directed the applicant’s attention to Applicant’s Exhibit 1.
The applicant read the following: “Wanted to speak with an officer reference dirt in her
eyes. The applicant stated an officer appeared at the hospital and she informed the
officer what had happened at Kroger, but it did not appear to her that the officer ever
memorialized her comments.”
{¶11} On redirect examination, the applicant stated she had the impression that Kroger
was aware of the incident by the actions of the other employees. Furthermore, the
applicant was never advised that she should file an incident report.
{¶12} The applicant’s attention was directed to State’s Exhibit A. The applicant does
not know who typed this document nor was she allowed to review this document at the
time it was prepared. She reiterated that material was in her eyes which had to be
rinsed out.
{¶13} Finally, the applicant stated, based on the Attorney General’s inquiry, that to the
best of her knowledge no one had been criminally charged as the result of this incident.
{¶14} Upon questioning by the panel of commissioners the applicant clarified the
conduct of the Kroger employee at the time of the incident. She related that her first
encounter with the employee was when he spun the carousel upon which her groceries
were resting, flinging them onto the floor. The applicant asserted her request for
assistance seemed to trigger his agitated behavior. At that point he went over to the
Case No. V2011-60930 - 4 - ORDER
cash register and began opening and closing drawers in a disturbing manner. She
then discussed how she exited the store and the frightening nature of the experience.
{¶15} The applicant acknowledged that after this encounter she went to the emergency
room to receive treatment for her eyes. The applicant described her medical treatment
since the events of July 15, 2009. Whereupon, the applicant’s testimony was
concluded.
{¶16} In closing, the Attorney General argued that the uncorroborated statements of the
applicant are insufficient to prove she was a victim of criminally injurious conduct. In
the case at bar there is no corroborating evidence, no incident report from Kroger, and
no police report. Accordingly, the Attorney General’s Final Decision should be
affirmed.
{¶17} The applicant averred that the burden of proving criminally injurious conduct had
been met. The conduct was corroborated by the evidence submitted at the hearing.
Accordingly, the applicant’s prays that the Attorney General’s Final Decision is
reversed.
{¶18} R.C. 2743.51(C)(1) in pertinent part states:
a. “(C) ‘Criminally injurious conduct’ means one of the following:
b. “(1) For the purposes of any person described in division (A)(1) of
this section, any conduct that occurs or is attempted in this state; poses a
substantial threat of personal injury or death...”
{¶19} The applicant must prove criminally injurious conduct by a preponderance of the
evidence. In re Rios, 8 Ohio Misc. 2d 4, 455 N.E. 2d 1374 (Ct. of Cl. 1983).
{¶20} Black’s Law Dictionary Eighth Edition (1999) defines prima facie as “the
establishment of a legally required rebuttable presumption...enough evidence to allow
the fact-trier to infer the fact at issue and rule in the party’s favor.”
{¶21} Black’s Law Dictionary Sixth Edition (1990) defines preponderance of the
evidence as: “evidence which is of greater weight or more convincing than the evidence
Case No. V2011-60930 - 5 - ORDER
which is offered in opposition to it; that is, evidence which as a whole shows that the
fact sought to be proved is more probable than not.”
{¶22} Black’s Law Dictionary Sixth Edition (1990) defines burden of proof as: “the
necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised
between the parties in a cause. The obligation of a party to establish by evidence a
requisite degree of belief concerning a fact in the mind of the trier of fact or the court.”
{¶23} The credibility of witnesses and the weight attributable to their testimony are
primarily matters for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E. 2d
212 (1967), paragraph one of the syllabus. The court is free to believe or disbelieve, all
or any part of each witness’s testimony. State v. Antill, 176 Ohio St. 61, 197 N.E. 2d
548 (1964).
{¶24} “[T]he uncorroborated statement of the applicant does not constitute sufficient
proof, by a preponderance of the evidence, to establish the criminally injurious conduct
occurred.” In re Warren, V2008-30014tc (9-5-08) at 3 citing In re Minadeo,
V79-3435jud (10-31-80).
{¶25} Upon review of the case file and with full and careful consideration given to the
testimony and arguments presented at the hearing, we find the applicant has met her
burden of proof that she was a victim of criminally injurious conduct. We believe the
applicant has made a prima facie case based upon the credible testimony of the
applicant, the contemporaneous statements of the applicant elicited in the adult triage
report, and Doctor Penhos’ letter. Accordingly, the burden of proof shifted to the
Attorney General to rebut the presumption created by the applicant. The Attorney
General failed to do so. Applicant’s evidence was admitted without objection, the
evidence’s veracity was not questioned and no contra witnesses were presented.
Accordingly, based on the Attorney General’s failure to rebut the presumption we find
that the applicant qualifies as a victim of criminally injurious conduct and the Attorney
General’s Final Decision is reversed.
{¶26} IT IS THEREFORE ORDERED THAT
Case No. V2011-60930 - 6 - ORDER
{¶27} Applicant’s Exhibits 1, 2, and 3 are admitted into evidence;
{¶28} State’s Exhibit A is admitted into evidence;
{¶29} The November 14, 2011 decision of the Attorney General is REVERSED and
judgment is rendered in favor of the applicant;
{¶30} This claim is remanded to the Attorney General for calculation of economic loss
and decision;
{¶31} This order is entered without prejudice to the applicant’s right to file a
supplemental compensation application, within five years of this order, pursuant to R.C.
2743.68;
{¶32} Costs are assumed by the court of claims victims of crime fund.
_______________________________________
E. JOEL WESP
Presiding Commissioner
_______________________________________
SUSAN G. SHERIDAN
Commissioner
_______________________________________
NECOL RUSSELL-WASHINGTON
Commissioner
ID #I:\Victim Decisions to SC Reporter\Panel Decisions\2012\June - Sept 2012\V2011-60930 Henderson.wpd\DRB-tad
A copy of the foregoing was personally served upon the Attorney General and
sent by regular mail to Richland County Prosecuting Attorney and to:
Filed 6-27-12
Jr. Vol. 2283, Pgs. 78-84
Sent to S.C. reporter 10-18-12 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/3034444/ | FILED
NOT FOR PUBLICATION MAR 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
UNITED STATES OF AMERICA, No. 08-50421
Plaintiff - Appellee, D.C. No. 2:05-cr-00814-GAF
v.
MEMORANDUM *
ROOSEVELT ROY NEWTON, AKA
SEAL B, AKA Birdman, AKA Bird,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Roosevelt Roy Newton appeals from the denial of his motion pursuant to 18
U.S.C. § 3582(c)(2) for a reduced sentence. Pursuant to Anders v. California,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
SR/Research
386 U.S. 738 (1967), Newton’s counsel has filed a brief stating there are no
grounds for relief, along with a motion to withdraw as counsel of record. We have
provided the appellant with the opportunity to file a pro se supplemental brief. No
pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district
court’s judgment is AFFIRMED.
SR/Research 2 08-50421 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/996964/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4546
RICKY BANKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Richard L. Voorhees, Chief District Judge; Richard L. Williams,
Senior District Judge, sitting by designation.
(CR-96-115)
Submitted: September 29, 1998
Decided: November 16, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Edward A. Fiorella, Jr., HARKEY, LAMBETH, NYSTROM, FIO-
RELLA & MORRISON, L.L.P., Charlotte, North Carolina, for
Appellant. 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:
Ricky Banks appeals from his conviction and sentence imposed for
possessing with the intent to distribute heroin. See 21 U.S.C.
§ 841(a)(1) (1994). Banks was a deputy sheriff working as a jailor. He
and a prisoner, Joe Richardson, arranged for Banks to purchase two
ounces of heroin in two separate transactions. Federal agents arrested
Banks after the first transaction, however, after Richardson alerted
them to Banks's desire to purchase heroin. Banks claimed at trial that
he was actually engaged in undercover work when he purchased the
heroin to impress his newly-appointed Sheriff. The government con-
tended that Banks engaged in the transaction to resolve financial trou-
bles. Finding no reversible error, we affirm.
We reject Banks's arguments that he was entrapped as a matter of
law and that he was entitled to a jury instruction on entrapment. A
valid entrapment defense contains two elements: government induce-
ment and a lack of predisposition to commit the crime by the defen-
dant. See United States v. Phan, 121 F.3d 149, 153-54 (4th Cir. 1997),
cert. denied, 66 U.S.L.W. 3388 (U.S. Feb. 23, 1998) (No. 97-863). At
trial, Banks claimed that he was trying to consummate the drug trans-
action in order to impress his superiors at the Sheriff's Department.
Therefore, on the facts of this case, there is not even a scintilla of evi-
dence of entrapment.
Banks next argues that his right to present a defense was violated
when the district court sustained the government's objection to a por-
tion of the testimony of defense witness Alleyne. The district court
sustained the objection because the testimony would have been hear-
say. See Fed. R. Evid. 802 (hearsay generally not admissible). Banks
fails to argue that the testimony was not hearsay or fell within an
exception to the general rule of inadmissibility. Therefore, we find no
abuse of discretion. Even if the district court had abused its discretion,
2
the error was harmless. Contrary to Banks's assertion, Alleyne's testi-
mony would not have negated Banks's mens rea. Alleyne was pre-
pared to testify about advice he had given Banks on how to conduct
an undercover drug investigation. The statute in question, 21 U.S.C.
§ 841(a)(1) (1994) requires only the intent to distribute, it does not
require the intent to distribute illegally. As a result, Alleyne's testi-
mony would have hurt Banks by providing evidence of his plan to
distribute heroin.
Banks next contends that certain comments made by the trial court
during his trial deprived him of his right to a fair trial. Banks com-
plains, inter alia, that the district court admonished counsel not to go
on an "Easter egg hunt," referred to certain evidence as irrelevant,
warned counsel not to waste the jury's time on minutia, and noted that
a piece of documentary evidence "doesn't have any significance." The
question is whether the judge's comments rose to a level of prejudice
that they denied him a fair trial. See United States v. Parodi, 703 F.2d
768, 776 (4th Cir. 1983). After reviewing the instances cited by
Banks, we find that they do not rise to such a level of prejudice.
Rather, we conclude that the judge's statements were either legitimate
evidentiary rulings or innocuous attempts to keep counsel focused on
the issues in the case.
Banks argues that his Fifth Amendment privilege against self-
incrimination was violated when the government used his testimony
from his first trial, which ended in a mistrial, against him in his sec-
ond trial. The general rule is that a defendant's testimony at a former
trial is admissible against him in a later proceeding. See Harrison v.
United States, 392 U.S. 219, 222 (1968). We find that the general rule
controls here. See United States v. Baker, 850 F.2d 1365, 1369-70
(9th Cir. 1988). Thus, Banks's Fifth Amendment right was not vio-
lated.
Finally, Banks asserts several arguments that the trial court erred
in determining his sentence. He first claims that the government failed
to produce sufficient evidence to enable the district court to properly
find that he willfully obstructed justice by committing perjury. See
United States Sentencing Guidelines Manual § 3C1.1 (1995). The dis-
trict court determined that Banks committed perjury when he denied
that he made the initial contact with Richardson, when he testified
3
that his activities were part of an undercover operation, and when he
testified that he engaged in buying drugs to ingratiate himself with the
new Sheriff. Banks claims that the evidence supports his version of
the truth, that he made the drug purchases to impress superiors, as
much as it supported the government's theory that he made the drug
purchases to resolve his financial difficulties. After reviewing the evi-
dence, we cannot find that the district court clearly erred in enhancing
Banks's sentence on this basis. See United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995).
Banks next challenges the amount of drugs for which the district
court held him accountable. Because the evidence amply supports the
district court's conclusion that Banks had the intent to participate in
the second one-ounce drug transaction, we reject his argument that
the evidence shows that he did not intend to purchase, or was not rea-
sonably capable of purchasing, two ounces of heroin. He was, there-
fore, properly held accountable for the two ounces. See U.S.S.G.
§ 2D1.1 comment. (n.12).
Next, Banks argues that the district court should have reduced his
offense level for acceptance of responsibility under U.S.S.G. § 3E1.1.
He continues to deny having any criminal intent in purchasing the
heroin, and we find that his denial is sufficient to prevent application
of the reduction. See United States v. Gordon , 895 F.2d 932, 936 (4th
Cir. 1990) (defendant must accept responsibility for all criminal con-
duct).
Banks also contends that the district court erred in enhancing his
sentence under U.S.S.G. § 3B1.3 because he abused a position of
trust. He argues that the position of deputy sheriff is not a position of
trust and that he did not use his position to commit the offense. These
arguments are without merit. The district court was correct in catego-
rizing his position as a deputy sheriff as a position of trust. Further,
his duties as a jailor significantly contributed to his commission of
this drug offense. The district court did not err in enhancing his sen-
tence.
Finally, Banks argues that the district court erred in denying his
request for a downward departure under U.S.S.G.§ 5K2.0 for exem-
plary conduct while he was on bond and under U.S.S.G. § 5K2.10
4
based on the victim's conduct. He fails to argue that the district court
mistakenly viewed its discretionary authority to depart on these bases.
Thus, these claims are not subject to review. See United States v.
Hall, 977 F.2d 861, 866 (4th Cir. 1992).
Accordingly, we affirm Banks's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
5 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565586/ | 40 F.2d 189 (1930)
AEOLIAN CO. et al.
v.
FISCHER et al.
No. 270.
Circuit Court of Appeals, Second Circuit.
April 7, 1930.
*190 Pavey & Higgins, of New York City (Walter Gordon Merritt and James C. Higgins, both of New York City, of counsel), for appellants.
James E. Smith, of New York City, for appellees.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
The appellants appeal from a decree dismissing the bill of complaint after final hearing. The suit seeks to restrain the appellees, labor unions and individuals associated with them, from combining to restrain interstate commerce and destroying the business of the appellants by calling strikes or threatening to call strikes in building trades employed on buildings where the appellants were installing their organs, sold and shipped in interstate commerce. The case was here before, Aeolian Co. v. Fischer, 29 F.(2d) 679, where we affirmed an order denying the application for a preliminary injunction.
All the appellants but one are foreign corporations, and are organ manufacturers selling their product in interstate commerce to moving picture theaters, churches, and for private uses. The contracts are interstate in their nature, and provide for the building, shipping, erection, and sale of the completed organ in the house of installation.
The record differs in one aspect from that which we considered when it was here before. At final hearing, it was established and found by the court below, that the appellants were engaged in interstate commerce in the sale, shipment, and installation of its organs. The court below found that the appellants, with one exception, maintained organ factories outside of the state of New York and entered into contracts for the sale and installation of organs within the state; that the essential parts of the organ are made in the factories, with the exception of the flues leading from the air pipe to the air box of the chambers; some parts are temporarily assembled before shipment and are tested in the factory, but shipment is then made in separate parts and installed on the premises of the purchaser. The District Judge said:
"The agreement of the organ manufacturer to install is not only relevant and appropriate to the interstate sale but is essential if an organ, as distinguished from its parts, may be sold at all. The thing sold is a musical instrument, complete in itself. * * * Without descending to mechanical description it may be said that the work of installation is of the most vital importance in the construction of the completed organ, and requires in its performance not only the highest mechanical skill but a thorough understanding of the methods employed by the manufacturer in the arrangement of mechanical *191 and electrical connections. * * * Whatever distinctions may be drawn in doubtful cases, it is clear that the instant case is governed and controlled by the decision in the ice machine case (York Mfg. Co. v. Colley, 247 U.S. 21, 38 S. Ct. 430, 62 L. Ed. 963, 11 A. L. R. 611). The distinction there drawn between the setting up of lightning rods (Browning v. Waycross, 233 U.S. 16, 34 S. Ct. 578, 58 L. Ed. 828) and the installation of an ice machine shows that the contracts here in question for the construction and installation of organs clearly involve interstate commerce not only in the manufacture and shipment of the organ, but in its installation after arrival within the state."
With this conclusion we agree.
The only work performed by the purchaser is hoisting the organ parts, if unduly bulky, installation of high-voltage electrical connections, furnishing and installing the wind trunking between the blower room and the organ chamber, and the furnishing of light, heat, and electric power required for the erecting, tuning, and completion of the instrument. The other work of installation was performed by the appellants' skilled workers.
Labor troubles developed in the industry because of demands made by Organ Workers' Local No. 9 relative to wages and working conditions and the employment of men in New York City. This related to installation work. A general strike was called by that union, which lasted for fourteen weeks in 1925. In September, 1927, a delegate of the Organ Workers' Local No. 9 presented a form of union contract for signature to the appellant Wurlitzer Company, which made provision for the employment of none but union men and women. This contract was not signed by this appellant, and some of the men who were members of the union left the union. Organ Workers' Union No. 9 became affiliated with the Building Trade Council through the representation of its delegate, and the council consisted of various building trade unions of New York City. Its constitution forbids "their members to work with a nonunion man, or with members of a dual or hostile body to any industry represented." This co-operation on the part of the unions made it impossible for an employer or contractor engaged in the building trades to do his work with nonunion men, and the record shows that it is impossible for a building to be erected in this city without the exclusive employment of union labor. It resulted in having the force and effect of the Building Trades Council in back of the efforts of the Organ Workers' Local No. 9 to force unionism upon appellants' nonunion organ workers. It may be questioned whether installation of an organ is the work of erecting a building, for, when it is installed, the organ is still a musical instrument.
Organ Workers' Local No. 9 is also affiliated with the Combined Amusement Crafts, an association of stage hands and theater operators whose sympathetic support it had threatened to use. In February or March, 1928, Local No. 9 had a membership of about ninety men, and its delegate endeavored to get the nonunion men to join. His purpose was to unionize fully the outside work of erecting organs in New York and other parts of the country and then to unionize the factories by the requirements that all organs erected in a building where union labor is employed must be manufactured by union men and bear the union label. In order to prevent nonunion men working in the buildings where the appellants were installing organs, the delegate of Local No. 9 told purchasers of organs that he would call out all the trades on strike if the particular organ was installed by nonunion men. This threat was made to one Hammerstein, a purchaser of an organ for the Hammerstein Temple of Music, and to an owner who purchased an organ for the Plaza Theatre. In the Elks Club, Brooklyn, one of the appellants' (the Aeolian Company) men were locked out from the building. At the Plaza Theatre in Linden, N. J., workers were secretly substituted for the Wurlitzer men in violation of the terms of the contract of installation, and, after these men had been discovered and removed, it became necessary for the Wurlitzer Company to work at night in order to avoid interference with the building trades. The Wurlitzer Company men were driven from the work at the Ritz Theatre, Lindenhurst, N. J., and were off the job for a week until the electricians and other building trades had completed their work. Another instance of interference was a delay of from two to four days at the Castle Hill Theatre. Men were assaulted at the Marble Hill Theatre, and the entire force had to be removed and stayed away for about six weeks. The Wurlitzer men were arrested for trespassing at the Oxford Theatre, Little Falls, N. J., after the general contractor had been served with a general strike order. The owner of the Pythian Theatre was threatened with a general strike, and he paid to have the organ workers reinstated in the union so that they might finish the work unmolested. One contract, between the appellant Estey Organ *192 Company and the Capital Theatre for additions and repairs to an organ was canceled after threats to call out the theatrical trade, and the work was finished by union men not in the employ of the Estey Organ Company. The Austin Organ Company's workmen were taken off the installation of a theater at Mt. Vernon, N. Y., after threats made by a union delegate and were not permitted to return until after they had been unionized at the company's expense. The Skinner Organ Company was given three days of grace to unionize its men at the Colony Theatre, and they were only allowed to go on with the work after they had joined the Local No. 9 at the expense of that company. Other acts of interference with the appellants' interstate commerce consisted of threats to strike and unjustified claims of right of the sheet metal workers' delegate to do the wind trunking within the organ as well as without; also threats were made by the riggers' union delegate that the organ would have to be taken out of the building because it was rigged by nonunion men. In one instance a switchboard was nailed up and the electric wires cut by an electrician on the Universal Theatre job. The Electricians' Union Local No. 3 refused to do the wiring on the organ installed in the Church of the Redeemer in Brooklyn, and a general strike followed there.
These interferences with the appellants' business have seriously affected their good will, for organ purchasers are fearful of contracting with them, feeling that they would have difficulty in installing their instruments and also with the building trades unions. This interference stands uncontradicted, although the delegate of Union No. 9 was a witness for the defense.
In Anderson v. Shipowners' Ass'n, 272 U.S. 359, 47 S. Ct. 125, 126, 71 L. Ed. 298, plaintiff sought to enjoin the shipowners' association whose men controlled substantially all the merchant vessels of American registry, who engaged in interstate and foreign commerce, because they had entered into an arrangement to control the employment of all seamen on their vessels by maintaining employment agents in California and where every seaman was compelled to register and await his turn in order to secure employment. No person could secure employment unless he was registered, with the result that some seamen were delayed in securing work. The plaintiff was barred from employment because of failure to comply with these regulations, and brought this suit asking for an injunction and damages. In holding that the combination was illegal, the court said:
"If the restraint thus imposed had related to the carriage of goods in interstate and foreign commerce that is to say, if each ship owner had precluded himself from making any contract of transportation directly with the shipper, and had put himself under an obligation to refuse to carry for any person without the previous approval of the associations the unlawful restraint would be clear. But ships and those who operate them are instrumentalities of commerce, and within the commerce clause, no less than cargoes. * * * It is not important, therefore, to inquire whether, as contended by respondents, the object of the combination was merely to regulate the employment of men, and not to restrain commerce. A restraint of interstate commerce cannot be justified by the fact that the object of the participants in the combination was to benefit themselves in a way which might have been unobjectionable, in the absence of such restraint. * * * These shipowners and operators having thus put themselves into a situation of restraint upon their freedom to carry on interstate and foreign commerce according to their own choice and discretion, it follows, as the case now stands, that the combination is in violation of the Anti-Trust Act."
The undoubted purpose of the appellees was to monopolize the work with which the appellants were concerned, that is, the installation of organs, and require only their membership or union workers for each job. It restricted the liberty of employers and employees to engage in interstate commerce, whenever the employment of nonunion members is involved, and is an interference with interstate commerce. It is immaterial whether the combination is unlawful because it interferes with the right of nonunion men to engage in such part of interstate commerce or with the right of employers of nonunion men to so engage; the result is the same. If the combination is illegal for either reason, the person or corporation injured in its or his property rights is entitled to relief. Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, 27 S. Ct. 65, 51 L. Ed. 241; U. S. v. Colgate & Co., 250 U.S. 300, 39 S. Ct. 465, 63 L. Ed. 992, 7 A. L. R. 443; Loewe v. Lawlor, 208 U.S. 274, 28 S. Ct. 301, 52 L. Ed. 488, 13 Ann. Cas. 815; U. S. v. Patten, 226 U.S. 525, 33 S. Ct. 141, 57 L. Ed. 333, 44 L. R. A. (N. S.) 325. The inquiry is not as the court below conceived it to be, whether or not there was a combination to exclude the appellants' organs from interstate trade or commerce. It is as much a violation of the Sherman Act, as amended *193 by the Clayton Act (15 USCA § 1 et seq.), for combinations to exclude individuals from work in interstate commerce. Finding that the installation of the organ was work in interstate commerce and that there was a combination directly to restrict and obstruct that work, the opportunities of engaging therein was work of interstate commerce. But the interference with this interstate commerce was not confined to preventing workmen from engaging in the employment of the appellants as nonunion men. There was a combination to obstruct and interfere with the appellants in carrying out their interstate trade and commerce in their usual and practical way which, of itself, was a violation of the act. It is not material or important whether the restraint operates upon this interstate commerce at the point of origin or at the point where it comes to rest. Bedford Cut Stone Co. v. Journeymen Stone Cutters' Ass'n, 274 U.S. 37, 47 S. Ct. 522, 71 L. Ed. 916, 54 A. L. R. 791; Binderup v. Pathe Exchange, Inc., 263 U.S. 291, 44 S. Ct. 96, 68 L. Ed. 308; Ramsay Co. v. Associated Bill Posters, 260 U.S. 501, 43 S. Ct. 167, 67 L. Ed. 368; Duplex Printing-Press Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196. The combination formulated by the appellees to curtail the liberty of the appellants and their employees to engage in the phase of the interstate commerce involving installation was a violation of the anti-trust laws, and their refusals to permit nonunion men to work and striking to interfere with the work of the appellants in installing organs was a violation of the anti-trust acts. Duplex Printing-Press Co. v. Deering, supra; Bedford Cut Stone Co. v. Journeymen Stone Cutters' Ass'n, supra.
The organs involved were not part of the building construction, and there is no evidence of any community of interest between the erectors of these organs and the numerous and various trades engaged in erecting a building. There was no evidence of close contact between these groups, but the evidence is ample and undisputed that the purpose of the appellees was to secure for the organ workers' union a complete monopoly of the work of installing organs in New York and Northern New Jersey and to bring about a condition which would impose upon the craftsmen in the trade, for refusing to join their union, an impossibility of employment in their trade and thereby gaining a livelihood.
The appellee Meller made clear upon his examination that he was a member of the Building Trades Council and I "have something behind me." This he described as full sympathetic support, and, as he said, "no organ will be erected in New York City unless they erect it by union labor, as the building trades will not work with any non-union workers." The courts have condemned such interference. Hitchman Coal Co. v. Mitchell, 245 U.S. 249, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Bitterman v. Louisville & Nashville R. Co., 207 U.S. 205, 28 S. Ct. 91, 52 L. Ed. 171, 12 Ann. Cas. 693; Central Metal Products Corp. v. O'Brien (D. C.) 278 F. 827; Hodge v. Meyer (C. C. A.) 252 F. 479; Amer. Malting Co. v. Keitel (C. C. A.) 209 F. 351; Irving v. Joint District Council (C. C.) 180 F. 896; Lehigh Structural Steel Co. v. Atlantic Smelting & Refining Works, 92 N. J. Eq. 131, 111 A. 376; McCord v. Thompson-Starrett Co., 129 A.D. 130, 113 N. Y. S. 385.
In thus preventing the appellants and their employees from carrying on their business because the workmen do not belong to the union, there was formed a combination having for its primary purpose the obstruction of the appellants in carrying on their interstate business. The injury to them is not merely incidental; the direct and immediate purpose is to oust the appellants and their employees from the conduct of their business in New York and its vicinity unless they submit. The means adopted to declare a labor boycott of all the trades on the buildings, within the affected area where the appellants carry on their business, and by their control of the building business, make it impossible for the owners, contractors, or architects to do business in this area with the appellants. Such combination is a secondary boycott. Duplex Printing-Press Co. v. Deering, supra; O'Brien v. Fackenthal (C. C. A.) 5 F.(2d) 389. In such a combination against an employer there is every suggestion of coercion, attempted monopoly, and deprivation of livelihood and remoteness of the legal purpose of the union to better its members' condition. American Steel Foundries v. Tri-City Council, 257 U.S. 184, 42 S. Ct. 72, 66 L. Ed. 189, 27 A. L. R. 360; Hitchman Coal & Coke Co. v. John Mitchell, 245 U.S. 229, 38 S. Ct. 65, 62 L. Ed. 260, L. R. A. 1918C, 497, Ann. Cas. 1918B, 461; Iron Molders' Union v. Allis-Chalmers Co. (C. C. A.) 166 F. 45, 20 L. R. A. (N. S.) 315.
The record before us justified a decree in favor of the appellants for an injunction.
Decree reversed.
AUGUSTUS N. HAND, Circuit Judge (concurring).
*194 I concur with the majority because of the controlling decisions of the Supreme Court in Duplex Printing-Press Co. v. Deering, 254 U.S. 443, 41 S. Ct. 172, 65 L. Ed. 349, 16 A. L. R. 196, and Bedford Cut Stone Co. v. Stone Cutters' Association, 274 U.S. 37, 47 S. Ct. 522, 71 L. Ed. 916, 54 A. L. R. 791.
The District Judge relied on United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762, United Leather Workers' Union v. Herkert & Meisel Trunk Co., 265 U.S. 457, 44 S. Ct. 623, 68 L. Ed. 1104, 33 A. L. R. 566, and Industrial Association v. United States, 268 U.S. 64, 45 S. Ct. 403, 69 L. Ed. 849. But these decisions do not, in my opinion, support the conclusion reached. Mining is not interstate commerce. United Mine Workers v. Coronado Coal Co., supra. Manufacturing is not interstate commerce. United Leather Workers' Union v. Herkert & Meisel Trunk Co., supra. Building is not interstate commerce. Industrial Association v. United States, supra. In all of these cases the interference was at a point where interstate commerce was not in operation, and not, as here, at a point where in contemplation of law it continued to exist.
The fact that the installation of the organs was interstate commerce required that such installation (in the same way as transportation) should be free from unlawful interference. Because of the decisions in Duplex Printing-Press Co. v. Deering, and Bedford Cut Stone Co. v. Stone Cutters' Association, supra, we must hold that the interference here was unlawful and was a violation of the Sherman Anti-Trust Law (15 USCA §§ 1-7, 15). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1565472/ | 34 So. 3d 18 (2010)
FORRESTER
v.
STATE.
No. 5D09-4113.
District Court of Appeal of Florida, Fifth District.
April 27, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
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