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https://www.courtlistener.com/api/rest/v3/opinions/3040171/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3139
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Obed Rodriguez-Lopez, *
*
Appellant. *
___________
Submitted: February 14, 2006
Filed: April 24, 2006
___________
Before LOKEN, Chief Judge, BOWMAN and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
After the district court1 denied his motion to suppress the marijuana seized from
his vehicle, Obed Rodriguez-Lopez pleaded guilty to possession of marijuana with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii). In his plea
agreement, Rodriguez reserved the right to appeal the denial of his motion to suppress.
On appeal, Rodriguez contends that police violated the Fourth Amendment in the stop
of his vehicle because no objectively reasonable basis existed to believe that he
violated Iowa traffic law. We affirm the denial of the motion to suppress.
1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
I. Background
The Sheriff's Office of Dallas County, Iowa, established a decoy checkpoint on
eastbound I-80. Along the highway, deputies posted signs that read "Narcotics
Enforcement Ahead", "Police Drug Dogs in Use", and "Be Prepared to Stop Ahead".
The deputies placed the signs just before the Van Meter exit, which is the last exit
before the announced checkpoint. In fact, no checkpoint existed.2 Instead, the deputies
used the signs hoping that persons transporting narcotics would take the Van Meter
exit to avoid the decoy checkpoint.
Detective Steve Bandy parked his unmarked van at the top of the exit ramp to
observe and videotape cars exiting the interstate. Bandy recorded and reported traffic
violations he observed at the intersection. When he observed a violation, Bandy
instructed deputies waiting nearby to stop the driver who committed the traffic
violation. The deputies kept at least three drug dogs available to assist in checking the
stopped vehicles for illegal narcotics.
Obed Rodriguez-Lopez took the Van Meter exit, followed by a gravel truck.
Detective Bandy observed Rodriguez-Lopez fail to signal a turn when he reached the
stop sign. Detective Bandy videotaped the event and then signaled other officers to
make a stop on the vehicle.
As instructed by Detective Bandy, two nearby deputies stopped Lopez-
Rodriguez's vehicle. As the officers spoke with Lopez-Rodriguez, he became
increasingly nervous and gave inconsistent responses regarding his travel. The officers
employed a drug dog, which alerted to three locations on the exterior of the vehicle.
2
We note that the Supreme Court has held that where the primary purpose of a
checkpoint is to detect ordinary criminal wrongdoing, the checkpoint violates the
Fourth Amendment. City of Indianapolis v. Edmond, 531 U.S. 32, 41–42 (2000).
-2-
Officers subsequently searched the vehicle and found 243 one-pound bricks3 of
marijuana. Lopez-Rodriguez was arrested and his vehicle impounded.
Lopez-Rodriguez was indicted for conspiracy to distribute at least 100
kilograms of a mixture containing marijuana and possession with intent to distribute
the same. He filed a motion to suppress all evidence derived from the traffic stop.
Lopez-Rodriguez argued that he had not violated the relevant Iowa traffic law by not
using his turn signal because no other vehicle was affected by his turn. The district
court denied the motion, holding that police had an objectively reasonable belief that
the gravel truck immediately behind Lopez-Rodriguez's vehicle was affected by his
turn.
Following the denial of his motion to suppress, Lopez-Rodriguez entered into
a plea agreement with the government. Pursuant to the agreement, he pleaded guilty
to possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B)(viii). The agreement allowed him to appeal the denial of his
motion to suppress. The district court sentenced Lopez-Rodriguez to 120 months'
imprisonment.
II. Discussion
On appeal, Rodriguez-Lopez contends that his motion to suppress should have
been granted because the stop of his vehicle was constitutionally invalid, as his failure
to signal his turn did not constitute a traffic violation under Iowa Code § 321.314. We
hold that regardless of the proper interpretation of § 321.314, Detective Bandy could
have reasonably believed that Lopez-Rodriguez's failure to signal his intended turn
violated § 321.314. Therefore, we affirm the denial of Rodriguez-Lopez's motion to
suppress the evidence derived from the stop of his vehicle.
3
The Iowa authorities determined that the total metric weight of the marijuana
was 105.5 kilograms.
-3-
On appeal from denial of motion to suppress, we review the district court's
findings of historical fact for clear error, while the district court's determinations of
reasonable suspicion and probable cause are reviewed de novo. United States v. Foley,
206 F.3d 802, 805 (8th Cir. 2000). Under the Fourth Amendment, any traffic violation
constitutes probable cause to stop the driver of the vehicle. E.g., id.; Whren v. United
States, 517 U.S. 806, 810 (1996). We have held that "the validity of a stop depends
on whether the officer's actions were objectively reasonable in the circumstances, and
in mistake cases the question is simply whether the mistake, whether of law or fact,
was an objectively reasonable one." United States v. Martin, 411 F.3d 998, 1001 (8th
Cir. 2005) (quoting United States v. Smart, 393 F.3d 767, 770 (8th Cir.2005)) (internal
quotations omitted). "[S]ubjective good faith is not sufficient to justify the stop, for
officers have an obligation to understand the laws that they are entrusted with
enforcing, at least to a level that is objectively reasonable. Any mistake of law that
results in a search or seizure, therefore, must be objectively reasonable to avoid
running afoul of the Fourth Amendment." Id. at 1001 (emphasis original).
The relevant traffic law provides
No person shall turn a vehicle from a direct course upon a highway
unless and until such movement can be made with reasonable safety and
then only after . . . giving an appropriate signal in the manner hereinafter
provided in the event any other vehicle may be affected by such
movement.
Iowa Code § 321.314. Rodriguez-Lopez argues that the statute is not violated when
no other vehicle is "affected" by any "turn". He contends the gravel truck which left
the interstate behind him was not affected by his failure to signal and therefore no
violation occurred. The parties cite State v. Malloy, 453 N.W.2d 243 (Iowa App.
1990) as the only Iowa case on point. In Malloy, the Iowa appeals court held that the
defendant driver was not required to signal a turn to a police car that was one and one-
half blocks behind the driver's vehicle because the police car was not affected by the
-4-
turn. However, § 321.314 does not define what distance or condition renders a vehicle
"affected." Fortunately, we need not decide this issue because the resolution of the
case turns upon whether Detective Bandy's belief that the statute was violated was
objectively reasonable not whether it was in fact violated. Martin, 411 F.3d at 1001.
In Martin, the defendant, while within tribal jurisdiction, was stopped when
officers noticed that his right tail light was unilluminated. Id. at 1000. However,
Section 621(3) of the Tribe's Motor Vehicle Code required only that a vehicle be
"equipped with a stop light in good working order." (emphasis added).
Notwithstanding the fact that the defendant's conduct may have been legal under tribal
law, this court held that the "determinative question" was "whether an objectively
reasonable police officer could have formed a reasonable suspicion that [the
defendant] was committing a [traffic] violation." Id. at 1001. Because the laws of
surrounding areas provided for two working brake lights, and because any
misunderstanding of the Tribe's traffic code was understandable given the "confusing"
language of the provision, the Martin court held that the stop was valid, even if the
officer's interpretation was technically incorrect. Id. at 1001–02.
In the case at bar, Detective Bandy's conclusion that the defendant violated the
law by failing to signal a turn was objectively reasonable. An officer observing the
defendant's vehicle exit the highway and the gravel truck following behind it could
have reasonably concluded that Rodriguez-Lopez's failure to signal his turn violated
Iowa's traffic laws by failing to inform the gravel truck behind him that he intended
to turn. Therefore, although Rodriguez-Lopez may have a defense to a prosecution for
violation of § 321.314, Detective Bandy's belief that his failure to signal violated §
321.314 was not unreasonable. We hold the stop was valid under the Fourth
Amendment.
-5-
III. Conclusion
Because the stop of Rodriguez-Lopez's vehicle was permissible under the
Fourth Amendment, we affirm the denial of the defendant's motion to suppress.
______________________________
-6- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3039683/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3227
___________
David Williams, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Correctional Medical Services; Paul * Eastern District of Arkansas.
Torrez, CMS Regional Administrator; *
Arthur Culpepper, CMS Ombudsman; * [UNPUBLISHED]
Patricia Kelly, Dr.; Connie Hubbard, *
A.N.P., Varner Super Max, ADC; Kay *
Brodnax, Infirmary Manager; Laura *
McCarty, CMS Grievance Responder, *
Varner Unit, ADC; Larry Norris, *
Director, Arkansas Department of *
Correction; Max Mobley, ADC Deputy *
Director, *
*
Appellees. *
___________
Submitted: February 7, 2006
Filed: February 15, 2006
___________
Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
In this interlocutory appeal, Arkansas inmate David Williams challenges the
district court’s1 order denying his motion for a preliminary injunction. Following
careful review of the record, including consideration of the factors discussed in
Dataphase Sys., Inc. v. CL Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc), we
agree with the district court that Williams did not meet his burden of establishing a
preliminary injunction should issue with regard to his claims concerning Hepatitis C
testing and treatment. See Manion v. Nagin, 255 F.3d 535, 538 (8th Cir. 2001) (“A
district court has broad discretion when ruling on requests for preliminary injunctions,
and [court of appeals] will reverse only for clearly erroneous factual determinations,
an error of law, or abuse of discretion.”); Dataphase Sys., Inc., 640 F.2d at 113 (to
determine whether injunctive relief is warranted, court must balance threat of
irreparable harm to movant, harm to nonmoving party should injunction issue,
likelihood of success on merits, and public interest). Williams has no standing here
to seek injunctive relief on behalf of other inmates. See Meis v. Gunter, 906 F.2d 364,
366-68 (8th Cir. 1990). In addition, Williams did not assert or show that he was
personally under a threat of irreparable harm necessitating the injunctive relief he
sought, nor did he establish a likelihood of success on the merits. See generally
Bender v. Regier, 385 F.3d 1133, 1135 (8th Cir. 2004) (discussing Hepatitis C).
Accordingly, we affirm the judgment of the district court.
______________________________
1
The Honorable J. Leon Holmes, Chief Judge, United States District Court for
the Eastern District of Arkansas, adopting the report and recommendations of the
Honorable H. David Young, United States Magistrate Judge for the Eastern District
of Arkansas.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/413008/ | 697 F.2d 298
U. S.v.Campbell
81-1441
UNITED STATES COURT OF APPEALS Second Circuit
5/3/82
1
S.D.N.Y.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/481459/ | 808 F.2d 1513
U.S.v.Cunningham
86-1270
United States Court of Appeals,First Circuit.
11/24/86
1
D.Mass.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/205659/ | NOTE: This order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
MILO D. BURROUGHS,
P'etitioner, ~
V.
MERIT SYSTEMS PROTECTION BOARD, _
Respon,dent,
and
DEPARTMENT OF DEFENSE,
Interven0r.
2011-3021
Petition for review of the Merit Systerns Protection
Board in case r1o. DA3330090583-I-1.
ON MOTION
ORDER
Upon consideration of the motions to reform the offi-
cial caption to designate the Merit Systems Protection
Board as the respondent and to permit the Depart1nent of
Defense to intervene,
ltv ls OR1i)ERED THAT:
BURROUGHS V. MSPB 2
(1) The motions are granted. The revised official cap-
tion is reflected above.
(2) Burroughs’ opening brief' and a completed Fed.
Cir. R. 15(c) form are due within 21 days of the date of
filing of this order.
FoR THE CoURT
FEB 28 2011
/s/ J an Horbaly
Date J an Horbaly
Clerk
cc: Milo D. Burroughs (informal brief form and Fed. _Cir.
R. 15(c) forms enclosed)
Vincent D. Phillips, Esq.
Jeffrey Gauger, Esq.
520 ' FILED
ET 0F APPEALS FM
EDERAL C|RCU|T
rea 26 2011
§
32
'I'lC
JANl'IORBALY
ClEHS
* Burroughs also submits arguments in support of
his petition Such arguments, and any documents that
were before the Board, should only be included within his
informal brief | 01-03-2023 | 02-28-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1009140/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1557
BESSIE CRABTREE,
Petitioner,
versus
VIRGINIA CREWS COAL COMPANY; DIRECTOR, OFFICE
OF WORKERS’ COMPENSATION PROGRAMS, UNITED
STATES DEPARTMENT OF LABOR,
Respondents.
On Petition for Review of an Order of the Benefits Review Board.
(01-0664-BLA)
Submitted: October 18, 2002 Decided: November 26, 2002
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Timothy F. Cogan, CASSIDY, MYERS, COGAN, VOEGELIN & TENNANT, L.C.,
Wheeling, West Virginia, for Petitioner. John P. Scherer, FILE,
PAYNE, SCHERER & FILE, Beckley, West Virginia, for Respondents.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bessie Crabtree seeks review of the Benefits Review Board’s
decision and order affirming the administrative law judge’s denial
of black lung benefits pursuant to 30 U.S.C. §§ 901-945 (2000).
Our review of the record discloses that the ALJ’s decision is based
upon substantial evidence and is without reversible error.
Accordingly, we affirm on the reasoning of the Board. See Crabtree
v. Virginia Crews Coal Co., No. 01-0664-BLA (BRB Mar. 28, 2002). We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560738/ | 932 F.2d 960
Mumford (William Craig, Clara Estelle)v.Weidner (William, Chief), Davis (James, Sgt.), Wesley (John)
NOS. 90-1613, 90-1684
United States Court of Appeals,Third Circuit.
APR 15, 1991
Appeal From: E.D.Pa.,
Kelly, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1009216/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7220
JOSE DIAZ,
Petitioner - Appellant,
versus
RONALD J. ANGELONE,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior District
Judge. (CA-01-589-2)
Submitted: November 21, 2002 Decided: December 2, 2002
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Jose Diaz, Appellant Pro Se. Michael Thomas Judge, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jose Diaz seeks to appeal the district court’s order
dismissing his petition filed under 28 U.S.C. § 2254 (2000). The
district court referred this case to a magistrate judge pursuant to
28 U.S.C. § 636(b)(1)(B) (2000). The magistrate judge recommended
that relief be denied and advised Diaz that failure to file timely
objections to this recommendation could waive appellate review of
a district court order based upon the recommendation. Despite this
warning, Diaz failed to object to the magistrate judge’s
recommendation.
The timely filing of specific objections to a magistrate
judge’s recommendation is necessary to preserve appellate review of
the substance of that recommendation when the parties have been
warned that failure to object will waive appellate review. See
Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985); see also
Thomas v. Arn, 474 U.S. 140 (1985). Diaz has waived appellate
review by failing to file objections after receiving proper notice.
Accordingly, we deny a certificate of appealability and dismiss the
appeal.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2101858/ | 233 S.W.3d 234 (2007)
John KIRSCH, et al., Appellants,
v.
Stanley SAKABU, et al., Respondents.
No. ED 89040.
Missouri Court of Appeals, Eastern District, Division One.
September 18, 2007.
Michael A. Gross, St. Louis, MO, for Appellant.
Russell F. Watters, St. Louis, MO, for Respondent.
Before KATHIANNE KNAUP CRANE, P.J., and ROBERT G. DOWD, JR., and KENNETH M. ROMINES, JJ.
Prior report: 2006 WL 4681263.
ORDER
PER CURIAM.
John Kirsch and Michelle Kirsch (collectively referred to as "Plaintiffs") appeal from the trial court's dismissal for lack of subject matter jurisdiction of their claims against Regency Construction Company, Lanny Corley ("Corley"), and Frank Gruchalla. Plaintiffs contend the trial court erred in granting the motion to dismiss for lack of subject matter jurisdiction as to Corley because the claims were not barred by the exclusivity of Missouri's Workers' Compensation Law and were within the court's jurisdiction because Corley's actions constituted "something more" than failing to satisfy Regency's duty to provide a reasonably safe workplace.
We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. The trial court did not abuse its discretion in dismissing Plaintiffs' claims against Corley. An opinion reciting the detailed facts and restating principles of law would have no precedential value. However, the parties have been furnished with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed in accordance with Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3039700/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1527
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Joe Lewis Kelly, Jr., *
*
Appellant. *
___________
Submitted: December 13, 2005
Filed: February 13, 2006
___________
Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
___________
BENTON, Circuit Judge.
Joe Lewis Kelly was convicted of being a felon in possession of ammunition.
Calculating his guideline sentence range as 70 to 87 months, the district court1
sentenced Kelly to 96 months. Kelly appeals. Having jurisdiction under 28 U.S.C.
§ 1291, this court affirms.
1
The Honorable Susan Webber Wright, Chief United States District Judge for
the Eastern District of Arkansas.
I.
Kelly lived with Shawn Jones and their four children. On November 9, 2003,
Jones left home to take her oldest daughter to work, but returned to get her wallet.
Three of her children waited in the car. While in the house, she got into an argument
with Kelly. As Jones was leaving the second time, a man came out of the house and
shot at her and the car five times, hitting the car in several places. She sped away.
Kelly then telephoned Jones's mother, confessing to the shooting, but claiming he
wanted only to scare Jones.
Jones reported the shooting to sheriff's deputies, identifying Kelly as the
gunman. Deputies also tape-recorded the testimony of her seven-year-old son, who
said it was Kelly. They investigated the scene and found ammunition shell casings,
as well as one live bullet, on the ground going away from the house. There were also
bullet holes in Jones's car.
At trial, Jones recanted and said that it was not Kelly, but an unknown, masked
assailant that shot at her. The seven-year-old son also refused to cooperate on the
stand, so the court admitted his taped interview as a prior inconsistent statement under
Federal Rule of Evidence 613(b). The jury found Kelly guilty.
At sentencing, Kelly objected to the presentence report's recommended
enhancement for a prior violent felony conviction based on a state conviction of
breaking-and-entering. The court agreed, reducing Kelly's guideline range from 100-
120 months to 70-87 months. The court then stated that "it was a close call whether
to call the breaking and entering a crime of violence" and varied upward, ultimately
sentencing Kelly to 96 months. Kelly did not object to this sentence at the hearing.
-2-
Kelly appeals, arguing that the court should not have sentenced him above the
guideline range, should have excluded the seven-year-old's recorded testimony, and
that the verdict is not supported by sufficient evidence.
II.
A.
Kelly first argues that the court could not sentence him above the guideline
range because it failed to make additional fact findings beyond those made by the jury.
Essentially, Kelly contends that his sentence is unreasonable. In reviewing a sentence
for unreasonableness, this court uses an abuse of discretion standard. See United
States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005). When sentencing a defendant,
a district court must first determine the appropriate advisory guideline range. Id.
"Once the guidelines sentence is determined, the court shall consider all other factors
set forth in § 3553(a) to determine whether to impose the sentence under the
guidelines or a non-guidelines sentence." Id.
In this case, Kelly admits the district court correctly determined the advisory
guideline range. Even after United States v. Booker, 543 U.S. 220 (2005), courts have
discretion to vary from the advisory guideline range. See United States v. Cramer,
414 F.3d 983, 988 (8th Cir. 2005). The district court did not need to make additional
findings of fact. See United States v. Evans, 272 F.3d 1069, 1089 (8th Cir. 2001),
citing United States v. Flores, 9 F.3d 54, 55 (8th Cir. 1993) ("Despite the language of
§ 3553(c), . . . unless the defendant objects, the court can adopt the recommendation
of the presentence report without stating its reasons on the record."). The facts found
by the jury, stated in the presentence report and considered by the district court – that
Kelly shot a gun at a car containing his girlfriend and children – support the variance.
-3-
The district court stated on the record that it was taking into consideration the
factors in 18 U.S.C. § 3553. One factor in § 3553(a)(5) is "any pertinent policy
statement." The sentencing guidelines state that the "discharge of a firearm might
warrant a substantial sentence increase." U.S. Sentencing Guidelines Manual §
5K2.6 (2004). Although not directly stating so, the district court did consider Kelly's
act of shooting at the car – containing his girlfriend and children – when it sentenced
him. The court "noted the history of this defendant's illegal conduct, criminal conduct,
with respect to guns and firing guns" and took into account the "nature and
circumstances of the offense." Also, the court explained it considered the need for a
"just punishment" to "reflect the seriousness of the offense" and "promote respect for
the law." It is not error to rely on the factors in § 3553 and vary from the guideline
range. See United States v. Mashek, 406 F.3d 1012, 1016 n.4 (8th Cir. 2005) ("When
a district court exercises its discretion to depart or vary from the appropriate
guidelines range, it must continue to provide reasons for its imposition of the
particular sentence."). Thus, the 96-month sentence is reasonable.
B.
Kelly next claims that the variance above the guidelines violates the Ex Post
Facto Clause of the United States Constitution, as well as his due process rights.
Because this is a question of the district court's interpretation and application of the
guidelines, this court reviews it de novo. See id. at 1016.
As applicable here, the Ex Post Facto and due process clauses require that Kelly
have fair warning of the punishment for the crimes which he committed. See Rogers
v. Tennessee, 532 U.S. 451, 456–57 (2001); United States v. Wade, No. 05-2181,
2006 WL 73474, at *2 (8th Cir. Jan. 13, 2006). In the present case, Kelly had fair
warning. As noted, the court could always go above the guideline range, and the 96-
month sentence is below the statutory maximum of 10 years. See 18 U.S.C. §
924(a)(2); see also United States v. Long Soldier, 431 F.3d 1120, 1122 (8th Cir. 2005)
-4-
(after Booker, district courts still have discretion to depart upward). The sentence was
not unexpected or "indefensible by reference to the law which had been expressed
prior to the conduct in issue." Rogers, 532 U.S. at 457, citing Bouie v. City of
Columbia, 378 U.S. 347, 354 (1964).
C.
Kelly contends the court should have held a hearing, sua sponte, because the
child's testimony indicated he was incompetent to testify. Kelly did not raise the issue
of competency at trial, so this court reviews the district court's decision for plain error.
See United States v. Sobrio-Tafolla, 324 F.3d 964, 965 (8th Cir. 2003). Children are
presumed competent to testify. Fed. R. Evid. 601; United States v. Rouse, 111 F.3d
561, 567 n.3 (8th Cir. 1997). The court generally does not have a duty to determine
the competency of a witness sua sponte. See Fed. R. Evid. 601 & advisory
committee's note; United States v. Spotted War Bonnet, 882 F.2d 1360, 1363 (8th
Cir. 1989), vacated on other grounds, 497 U.S. 1021 (1990); 3 Jack B. Weinstein &
Margaret A. Berger, Weinstein's Federal Evidence § 601.03[1][b] (Joseph M.
McLaughlin ed., 2d ed. 2004). Here, the record shows the child only became
uncooperative when questioned about his father's role. The jury is capable of
weighing the credibility of the child's testimony, making a competency hearing
unnecessary in this case. See Fed. R. Evid. 601 advisory committee's note. Thus,
there is no error.
Additionally, Kelly claims the court should not have admitted the child's tape-
recorded testimony. However, because the child refused to testify about the shooting,
the recorded statement is admissible as a prior inconsistent statement under Federal
Rule of Evidence 613(b). Kelly argues, though, that Rule 613(b)'s requirements are
not met because the child, by refusing to answer, was not "afforded an opportunity to
explain or deny the statement." But, this rule only states that a witness be afforded the
opportunity to explain; Rule 613(b) does not require a witness to actually explain or
-5-
deny the prior inconsistent statements. As the district court found when admitting the
recorded statement, the child had the opportunity to explain himself, and Kelly had
the opportunity to cross-examine the child. Moreover, although Kelly complains that
the tape-recorded statement was used for substantive purposes, there is no evidence
it was introduced for anything but impeachment of the witness.
D.
Finally, Kelly argues the jury's verdict was not supported by sufficient
evidence. This court reviews the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the government, with all reasonable inferences
and credibility determinations made in support of the jury's verdict. United States v.
Dieken, 432 F.3d 906, 909–10 (8th Cir. 2006).
In this case there was substantial and sufficient evidence that Kelly was a felon
in possession of ammunition. Shell casings were found outside the house, the car had
bullet holes and Shawn Jones's mother testified that Kelly confessed to shooting at the
car. The jury could reasonably conclude that the testimonies of Jones, her daughter
and her seven-year-old son – who all claimed Kelly was not the shooter – were not
credible. Thus, there is sufficient evidence to support the verdict.
III.
The judgment of the district court is affirmed.
______________________________
-6- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4520558/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00982-CV
JOHN H. GEORGE, Appellant
V.
MARIA GUADALUPE GEORGE, Appellee
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-17-11713
ORDER
Appellee’s second motion for extension of time to file her brief is
GRANTED, and the time for appellee to file her brief is EXTENDED to April 30,
2020.
/s/ LANA MYERS
PRESIDING JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1054297/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 6, 2005 Session
GLORIA KIM SMITH v. CHARLES A. PORTERA, M.D., ET AL.
Appeal from the Circuit Court for Hamilton County
No. 04C282 Samuel H. Payne, Judge
No. E2004-02960-COA-R3-CV - FILED MAY 27, 2005
The plaintiff in this medical battery case argues that the trial court erred in granting the
defendant doctor summary judgment and argues that a genuine issue of material fact exists as to
whether she consented to an unnamed surgical procedure in addition to scheduled procedures named
in a hospital consent form. The trial court granted the defendant’s motion for summary judgment
upon findings that the case was actually a suit for medical malpractice, rather than medical battery,
and that the plaintiff failed to present expert proof that such surgery was not in her best interest. We
vacate the judgment of the trial court and remand for trial on the merits upon our finding that the
plaintiff’s suit states a cause of action for medical battery; and that the consent form signed by the
plaintiff authorized the additional surgery only if it was required by an unforseen condition and
whether there was an unforseen condition requiring the additional surgery remained a genuine issue
of material fact.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated; Cause
Remanded
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and D.
MICHAEL SWINEY , J., joined.
Sam Jones, Chattanooga, Tennessee, for the Appellant, Gloria Kim Smith.
James D. Robinson and Laura Beth Rufolo, Chattanooga, Tennessee, for the Appellee, Charles A.
Portera, M.D.
OPINION
The Appellee/Defendant in this matter, Charles A. Portera, M.D., is a licensed physician
engaged in the specialty practice of gynecologic oncology in Chattanooga, Tennessee. The
Appellant/Plaintiff, Gloria Kim Smith, became Dr. Portera’s patient in 1980. Several years prior to
becoming Dr. Portera’s patient, Ms. Smith was involved in an automobile accident which left her
in a paraplegic condition and she remained in that condition at all times relevant to the matters
herein.
Dr. Portera saw Ms. Smith as a patient on multiple occasions between 1980 and 2000. At
some point during this period, Dr. Portera diagnosed Ms. Smith with uterine fibroid tumors. He
recommended that these fibroid tumors be removed by surgery and, in 1996, he and Ms. Smith
discussed available surgical options in that regard, including the option of an abdominal
hysterectomy. Ms. Smith chose not to undergo a hysterectomy at that time and chose, instead, to
undergo a less radical procedure known as dilation and curettage, also referred to as “D and C”,
which involves the scraping of the lining of the uterus and does not involve the removal of
reproductive organs.
In June of 2000, Ms. Smith presented herself at Dr. Portera’s office complaining of problems
she was experiencing because of the previously diagnosed uterine fibroid tumors. As they had in
1996, Dr. Portera and Ms. Smith discussed the possibility of her having a hysterectomy. Shortly
thereafter, on July 28, 2000, Ms. Smith signed a form at Dr. Portera’s office whereby she consented
to a dilation and curettage, a total abdominal hysterectomy, a bilateral salpingo-oophorectomy,1 an
appendectomy, and a possible exploratory laparotomy. The surgery was scheduled to be performed
at Memorial Hospital in Chattanooga, Tennessee, on August 14, 2000.
Ms. Smith attests that on August 14, 2000, while she was waiting in a surgical holding area
at Memorial Hospital, shortly before the scheduled surgery, she signed a Memorial Hospital form
styled “REQUEST FOR OPERATIVE/SPECIAL PROCEDURE.” This form includes the following
language pertinent to this appeal:
I, GLORIA KIM SMITH , request that TOTAL ABDOMINAL
HYSTERECTOMY, BILATERAL SALPINGO-OOPHORECTOMY,
APPENDECTOMY, POSSIBLE: EXPLORATORY LAPAROTOMY be
performed upon me at Memorial Hospital, Chattanooga, Tennessee.
I REQUEST AND AUTHORIZE my physician, Dr. CHARLES A
PORTERA , and other physicians of his/her choice to assist in the
performance of this operation or procedure.
I understand that during the course of the operation/procedure,
unforseen conditions may be discovered which require an extension of the
original procedure or a different procedure from that described above. I
REQUEST AND AUTHORIZE my physician or other physicians who may
be assisting to perform such additional surgical procedures as are indicated
by good medical practice which they deem to be in my best interest by
exercise of their medical judgment.
1
Removal of the Fallopian tubes.
-2-
The surgery ensued and, in the course of performing the dilation and curettage, Dr. Portera
observed what he refers to as a “lesion” which, he asserts, was “located in or near the same area in
which he had treated other lesions on Ms. Smith” and lateral to the labia majora. Dr. Portera testifies
that he felt this lesion “needed to be removed because it could be cancerous.” Dr. Portera excised
the lesion, sent it to the pathology laboratory for examination and, after receiving a report that the
lesion was not malignant, sutured the site of excision. Dr. Portera testifies that this procedure
extended the planned surgery by a total of thirty or forty minutes. Thereafter, the hysterectomy and
remaining scheduled procedures were apparently concluded without incident.
On February 9, 2004, Ms. Smith filed a complaint2 against Dr. Portera requesting
compensatory damages for medical battery. The complaint alleges that Dr. Portera excised the lesion
described above without Ms. Smith’s consent or knowledge. Among other things, the complaint
further alleges the following:
On August 17 Ms. Smith was discharged from the hospital. On Saturday, August
20, the sutures which had been applied by Defendant Portera to close the added
surgery to cut out the ulcerated area failed to hold that tissue together. The
resulting open wound necessitated admission by Defendant Portera to Memorial
Hospital for treatment, hopefully to effect healing of the unplanned surgical
wound. Such hospitalization provided only minimal improvement. To continue
efforts to promote wound healing, Ms. Smith was basically confined to her bed
for months on end. Home health nursing services provided assistance trying to
obtain closure of the open wound. Only after months was Ms. Smith able to effect
minimal healing of the condition. Finally, by the Fall of 2003 the wound healing
process had gradually progressed and was by that time similar to what Defendant
Portera observed during his examination under general anesthesia on August 14,
2000. In other words, the ulceration had finally returned to its condition from
over three years earlier; however, there had developed more scar or devascularized
tissue.
The complaint also alleges that during the time of her recovery Ms. Smith “suffered
significant muscular atrophy to her body because she was unable to maintain any exercise routine
to treat her impaired lower extremities.”
On July 20, 2004, Dr. Portera filed a motion for summary judgment and supporting
memorandum of law which assert that Ms. Smith expressly consented to the excisional biopsy by
signing the consent form at Memorial Hospital just prior to her surgery. Ms. Smith filed a motion
for partial summary judgment and, thereafter, a consolidated brief in opposition to Dr. Portera’s
motion for summary judgment and in support of her motion for partial summary judgment. In this
brief, Ms. Smith asserts that she did not give Dr. Portera express consent to perform the excisional
2
Ms. Smith’s complaint states that she previously filed suit against Dr. Portera on March 14, 2001, but that that
suit was voluntarily dismissed by order entered February 11, 2003.
-3-
biopsy and that there is no genuine issue of fact in that regard. She further asserts that there is,
however, a genuine issue of material fact with respect to whether she gave implied consent to the
surgery complained of and that this issue should be resolved by a jury. A hearing on these motions
was held on October 18, 2004. The trial court determined that Ms. Smith’s case was actually a cause
of action for medical malpractice rather than medical battery as stated in her complaint. Based upon
this determination and the trial court’s further observation that Ms. Smith had not presented any
expert evidence showing that the surgery complained of was not in her best interest, the trial court
granted Dr. Portera a summary judgment. Thereafter, Ms. Smith filed this appeal.
The sole issue we address in this appeal is whether the trial court erred in granting a summary
judgment in favor of Dr. Portera.
The standard governing our review of a trial court’s decision granting a motion for summary
judgment is set forth by the Tennessee Supreme Court in Staples v. CBL & Associates, Inc., 15
S.W.3d 83, 89 (Tenn. 2000) as follows:
The standards governing the assessment of evidence in the summary judgment
context are also well established. Courts must view the evidence in the light most
favorable to the nonmoving party and must draw all reasonable inferences in the
nonmoving party’s favor. See Robinson v. Omer, 952 S.W.2d [423 (Tenn. 1997)] at 426,
Byrd v. Hall, 847 S.W.2d [208 (Tenn. 1997] at 210-211. Courts should grant a summary
judgment only when both the facts and the inferences to be drawn from the facts permit a
reasonable person to reach only one conclusion. See McCall v. Wilder, 913 S.W.2d 150,
153 (Tenn. 1995).
Because a trial court’s decision to grant a motion for summary judgment is solely a matter
of law, it is not entitled to a presumption of correctness. Carvell v. Bottoms, 900 S.W.2d 23, 26
(Tenn. 1995). In determining whether such a decision is correct, we must review the record to
determine if the requirements of Rule 56.04 of the Tennessee Rules of Civil Procedure have been
satisfied in that “there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.”
At the outset, we are compelled to express our disagreement with the trial court’s
determination that this is a cause of action for medical malpractice rather than medical battery. In
this regard, the trial court stated as follows at the hearing on October 18, 2004:
I think it is medical malpractice. If [Dr. Portera] used bad judgment in
doing the wrong thing, I’m telling you, for the record, I think it’s medical
malpractice, because, if he did something he’s not supposed to do, that’s medical
malpractice.
In Blanchard v. Kellum, D.D.S., 975 S.W.2d 522, 524 (Tenn. 1998), the Tennessee Supreme
Court stated as follows with respect to a cause of action for medical battery:
-4-
Performance of an unauthorized procedure constitutes a medical battery. A
simple inquiry can be used to determine whether a case constitutes a medical
battery: (1) was the patient aware that the doctor was going to perform the
procedure (i.e., did the patient know that the dentist was going to perform a root
canal or that the doctor was going to perform surgery on the specified knee?); and,
if so (2) did the patient authorize performance of the procedure? A plaintiff’s
cause of action may be classified as a medical battery only when answers to either
of the above questions are in the negative.
Similarly, this Court stated as follows in Church v. Perales, 39 S.W.3d 149, 159 (Tenn. Ct.
App. 2000):
A medical battery occurs when a physician performs an unauthorized
procedure. Typically, a medical battery involves a physician performing a
procedure that the patient did not know the physician was going to perform or a
physician performing a procedure on a part of the body other than the one
described to the patient.
Our review of the record convinces us that Ms. Smith’s suit is for medical battery. Her
complaint specifically states that she is suing Dr. Portera for medical battery and the allegation in
the complaint that Dr. Portera excised the lesion or ulceration “without her consent or even
knowledge only after she was awakened from general anesthesia” supports a claim for medical
battery in accordance with our statement in Perales that “a medical battery occurs when a physician
performs an unauthorized procedure.” We also note that on May 21, 2004, an agreed order was
entered by the trial court which decrees that “the instant action against the defendant, Charles A.
Portera, M.D., solely alleges medical battery” and Dr. Portera admitted both in his brief and at the
hearing on October 18, 2004, that this is a medical battery case. The trial court’s determination that
Ms. Smith’s suit is for medical malpractice, rather than medical battery, is erroneous.
Having concluded that Ms. Smith has presented a cause of action for medical battery, we
must now determine whether a genuine issue of material fact exists which would preclude summary
judgment in this matter.
Dr. Portera argues that this is an appropriate case for summary judgment. He contends that
when Ms. Smith signed the consent form at Memorial Hospital on August 14, 2000, she thereby
authorized him to perform the excision in question. In support of this argument, Dr. Portera
references that sentence in the consent form which states, “I REQUEST AND AUTHORIZE my
physician, or other physicians who may be assisting to perform such additional surgical procedures
as are indicated by good medical practice which they deem to be in my best interest by exercise of
their medical judgment.” Dr. Portera contends that this language authorized him to perform a
surgical procedure different from the procedures originally scheduled and that it shows that Ms.
Smith was aware that he might do so. Dr. Portera asserts that, while the plaintiff in a medical battery
case is typically not required to submit expert testimony to sustain the argument that there was no
-5-
consent, this case presents the questions of whether the excisional biopsy was “indicated by good
medical practice” and in the “best interest” of the patient. Dr. Portera notes, and the record confirms,
that Ms. Smith does not dispute the fact that the excisional biopsy was indicated by good medical
practice. Dr. Portera further notes that he attested in his affidavit that the excisional biopsy was in
Ms. Smith’s best interest and this placed the burden upon her to present expert proof that the
excisional biopsy was not in her best interest. Dr. Portera argues that, in light of Ms. Smith’s failure
to present such expert proof, he was properly granted summary judgment.
While we do not necessarily disagree with Dr. Portera’s analysis as far as it goes, it disregards
another provision of the consent form which presents an additional prerequisite to the performance
of any surgical procedures other than those originally scheduled. We refer here to that sentence in
the form which immediately precedes the sentence cited by Dr. Portera. This preceding sentence
states, “I understand that during the course of the operation/procedure unforseen conditions may be
discovered which require an extension of the original procedure or a different procedure from that
described above.” (Emphasis added.) The paragraph, in which this sentence and the sentence
referenced by Dr. Portera appear, consists solely of these two sentences and we are, therefore,
compelled to construe them in conjunction with one another. It is our determination that the second
sentence relates back to the first and that the words “such additional procedures” refer exclusively
to “an extension of the original procedure or a different procedure” as required by the discovery of
“unforseen conditions.” Accordingly, it is our determination that the consent form signed by Ms.
Smith only authorizes an extension of the originally scheduled procedure or a procedure different
from the originally scheduled procedure if such extension or different procedure is 1) “indicated by
good medical practice”, 2) in the patient’s “best interest” and 3) required by an “unforseen
condition.”
We deem the question of whether the excisional biopsy performed by Dr. Portera was
required by an unforseen condition to be a question of material fact which remains unresolved and
renders summary judgment improper in this case. Ms. Smith’s affidavit indicates that the tissue
excised by Dr. Portera was a decubitus ulcer, or pressure sore, resulting from her paralysis and she
attests that it was not an unforseen condition. On the contrary, she attests, both she and Dr. Portera
were aware of the condition before her surgery on August 14, 2000, and had discussed it on several
occasions over the years:
Regarding this place which was on my upper leg and not part of my
genitalia, this was something Dr. Portera had seen and we had discussed on
several occasions. . . . After reviewing his records, I am convinced the first time
we discussed it was May 19, 1986. . . . I do not remember discussing the spot
with Dr. Portera again for several years. . . . After reviewing his records, I believe
the next time there was a discussion about it was May 23, 1995. . . . The spot had
flared up, and we discussed what to do. . . . After reviewing Dr. Portera’s records
I believe the next time there was discussion about this spot was April 16, 1996.
. . . At that time I asked Dr. Portera to prescribe a special cushion for me to keep
pressure off it. . . . The next time I believe there was some discussion with Dr.
-6-
Portera about the pressure sore was April 22, 1997. . . . On this date, he again
prescribed for me the special cushion to help me deal with it. . . . Over the years,
this pressure sore would flare up and calm down. . . . I was not concerned about
it because I had used various herbal solution to treat it and it usually resolved
itself. . . . Dr. Portera was aware of me using this solution. . . . Before he cut it
out, I really did not have too much trouble getting it to heal up when it flared up.
. . . I did not consider it a problem. . . . Had he asked me I would not have
authorized him to cut it out, especially knowing now how severe that problem
would have been. (Numbering in original omitted.)
Even if it is agreed that, in order to avoid summary judgment, Ms. Smith was required to
present expert testimony that the added excisional biopsy was not in her best interest, the same
cannot be said with regard to whether that surgery was required as a result of an unforseen condition.
Ms. Smith’s testimony that she and Dr. Portera had discussed the condition on prior occasions is
sufficient to create an issue of fact as to whether the condition was unforseen and, therefore, whether
she gave consent for the additional surgery.
As we have noted, the motion for summary judgment filed by Dr. Portera and granted by the
trial court contends that Dr. Portera had express consent to perform the excisional biposy on Ms.
Smith and that there is no genuine issue of material fact in that regard. Ms. Smith’s response to this
motion argues that she did not expressly consent to the excisional biopsy and that there is no genuine
issue of material fact in that regard. Ms. Smith further contends that, while there is no genuine issue
as to whether there was express consent, there is a genuine issue of material fact as to whether there
was implied consent. After carefully reviewing the record in this case, we have concluded that a
genuine issue of material fact remains as to whether Ms. Smith consented to the excisional biopsy.
Although we are urged by Ms. Smith to distinguish between “express consent” and “implied
consent”, we do not find such distinction to be of consequence in this case, the salient question being
whether Dr. Portera had consent - not whether such consent was express or implied.
For the reasons stated herein, the judgment of the trial court is vacated and the cause is
remanded for trial on the merits. Costs on appeal are adjudged against Charles A. Portera, M.D.
_________________________________________
SHARON G. LEE, JUDGE
-7-
-8- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154930/ | 963 A.2d 573 (2008)
COM.
v.
SHELTON.
No. 2577 EDA 2007.
Superior Court of Pennsylvania.
September 23, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/500283/ | 837 F.2d 480
Bockbrader (Golda)v.Phillips (Everett)
NO. 86-2534
United States Court of Appeals,Eighth Circuit.
DEC 01, 1987
1
Appeal From: D.Neb.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/205661/ | NOTE: ThiS order is nonprecedential
United States Court of AppeaIs
for the Federal Circuit
LATONYA CHIREE MOORE,
Plaintiff-Appellant, A
V.
UNITED STATES,
Defen,dan,t-Appellee.
2011-5007
Appea1 from the United StateS Court of Federa1
C1ai1nS in case no. 10-CV-357, Judge Marian Blank Horn.
ON MOTION
ORDER
'I‘he United States moves out of time for a 106-day ex-
tension of ti1ne, until March 1, 2011, to file its informal
response brief and appendix
Upon consideration thereof
IT ls ORDERED THA'1‘:
MOORE V. US
The motion is granted
FOR THE COURT
2
FEB 2 8 /s/ Jan Horbaly
Date
cc: LaTonya Chiree Moore
Russel1A. Shultis, Esq.
s21
J an Horba1y
Clerk
§§
§§
va
0
APPEALs ron
ERAL C|RCU|T
FEB 2 8 2011
.lAN HBRBALY
CLEH( | 01-03-2023 | 02-28-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2101866/ | 233 S.W.3d 910 (2007)
In re MOTIVA ENTERPRISES, L.L.C.
No. 09-07-311 CV.
Court of Appeals of Texas, Beaumont.
Submitted July 12, 2007.
Decided August 30, 2007.
Reagan W. Simpson, Reginald R. Smith, R. Bruce Hurley, Aditi R. Dravid, Benjamin D. Seal, King & Spalding, LLP, Houston, for relator.
Thomas J. Pearson, Jason B. Keith, Cimron Campbell, of counsel, Pearson Campbell, P.C., Beaumont, Brock C. Akers, Evelyn Ailts Derrington, Neal D. Kieval, Phillips & Akers, P.C., Houston, for real parties in interest.
Before McKEITHEN, C.J., GAULTNEY, and KREGER, JJ.
OPINION
PER CURIAM.
Motiva Enterprises L.L.C. ("Motiva") petitions for a writ of mandamus to compel the trial court to vacate its order of June 6, 2007, which permitted extensive discovery pertaining to Motiva's "crude expansion project." The sole reason given by real parties in interest for their discovery request regarding the crude expansion project is their claim for "future" damages under their cause of action for permanent nuisance.
We have this day released our opinion in the companion mandamus proceeding, In re The Premcor Refining Group, Inc. and Motiva Enterprises L.L.C., 233 S.W.3d 904 (Tex.App.-Beaumont 2007, no pet. h.) in which we conditionally grant Premcor's and Motiva's petition for writ of mandamus holding the real parties in interest lack standing to pursue their cause of action for permanent nuisance. Therefore, we conditionally grant Motiva's petition for writ of mandamus and direct the trial court to vacate its discovery order of June 6, 2007, at issue in this proceeding. We are confident the trial court will comply with this opinion; the writ issuing only if the court fails to do so.
WRIT CONDITIONALLY GRANTED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560742/ | 932 F.2d 960
Lifestyle Homes, Inc.v.Motorist Mutual Insurance Companies
NO. 90-5962
United States Court of Appeals,Third Circuit.
APR 19, 1991
Appeal From: M.D.Pa.,
McClure, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3039689/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-1878
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Lester Dale Perry, also known as *
Duane Thomas Stamps, *
*
Appellant. *
__________
Submitted: December 13, 2005
Filed: February 14, 2006
___________
Before LOKEN, Chief Judge, WOLLMAN and RILEY, Circuit Judges.
___________
RILEY, Circuit Judge.
Lester Dale Perry (Perry) appeals the district court’s1 denial of his motion to
suppress, and the court’s decision to sentence Perry based on Perry’s two prior felony
drug convictions. We affirm.
1
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
I. BACKGROUND
On July 26, 2003, Perry, a federal fugitive at the time, was arrested by the
Arkansas State Police and taken into custody. While Perry was in custody, the police
conducted an illegal search of a vehicle located in the curtilage of Perry’s residence.2
At the jail, the police presented Perry with a consent to search form which Perry
signed. The police returned to and searched Perry’s residence with Perry present, and
found six firearms. Perry cooperated with officers in the search, disclosing some of
the hidden firearms. Perry was indicted for being a felon in possession of a firearm
and being a fugitive in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)
and § 922(g)(2), respectively.
After being indicted, Perry filed a motion to suppress, claiming his consent to
search his residence was not voluntary. During the suppression hearing, Perry
admitted to pleading guilty previously to two felony drug trafficking offenses. The
district court denied Perry’s motion, holding the totality of the circumstances
demonstrated Perry’s consent was voluntary, and sufficiently voluntary to purge the
primary taint of the earlier illegal search. Perry pled guilty, preserving his suppression
issues, and at sentencing he objected to the Presentence Investigation Report’s (PSR)
use of his two prior felonies for controlled substance offenses in calculating the
recommended base offense level under the Sentencing Guidelines. See U.S.S.G.
§ 2K2.1(a)(2). The district court, relying on the PSR, concluded Perry had committed
his instant offense after two prior felony convictions for controlled substance offenses,
and sentenced Perry to a term of ninety-two months’ imprisonment on the indictment
and an additional eight months under 18 U.S.C. § 3147.
2
Police opened the tailgate of one vehicle to access the vehicle identification
number. We assume, without deciding, the search was illegal.
-2-
II. DISCUSSION
A. Motion to Suppress
We review for clear error the district court’s determination that Perry’s consent
to search his residence was voluntary. See United States v. Poulack, 236 F.3d 932,
936 (8th Cir. 2001). “[T]he question whether a consent to a search was in fact
‘voluntary’ or was the product of duress or coercion, express or implied, is a question
of fact to be determined from the totality of all the circumstances.” Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). Factors relevant to the voluntariness of a
defendant’s consent include: (1) the defendant’s age; (2) the defendant’s general
intelligence and education; (3) whether the defendant was intoxicated or under the
influence of drugs when he consented; (4) whether the defendant consented after
being informed of his right to withhold consent or of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966); (5) whether, because the defendant had been previously
arrested, he was aware of the protections afforded to suspected criminals by the legal
system; (6) whether the defendant was detained and questioned for a long or short
time; (7) whether the defendant was threatened, physically intimidated, or punished
by police; (8) whether the defendant relied upon promises or misrepresentations made
by the police; (9) whether the defendant was in custody or under arrest when the
consent was given; (10) whether the defendant was in a public or secluded place; and
(11) whether the defendant objected to the search or stood by silently while the search
occurred. United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990).
We conclude ample evidence supports the district court’s conclusion Perry
voluntarily consented to the search of his residence. Perry is an older adult with a
lengthy criminal record. He was free from chemical impairment at the time of
consent. While the police did not recite Perry’s Miranda rights before his consent,
Perry admitted he was familiar with the warnings from his extensive experience with
police investigations.3 Perry was detained for a short time before consenting, he was
3
Perry separately claims the fact he was not given Miranda warnings invalidates
his consent. “We have never held that a request to search must be preceded by
-3-
not mistreated by the officers, and he attended the search without objection. The
totality of the circumstances demonstrates Perry’s consent was voluntary.
Perry alternatively claims his consent was involuntary, given the taint of the
prior illegal search of the vehicle in the curtilage of his residence. A defendant’s
consent to a search may be sufficiently voluntary “to purge the primary taint of the
illegal seizure.” See United States v. Yousif, 308 F.3d 820, 830 (8th Cir. 2002). In
making this determination, we consider: “(1) the temporal proximity between the
illegal search or seizure and the consent, (2) the presence of intervening
circumstances, and (3) the purpose and flagrancy of the official misconduct.” Id.
(citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).
We conclude the earlier illegal search did not contaminate Perry’s voluntary
consent. Unlike the traffic stop in Yousif, where minimal time elapsed between the
initial illegal stop and the defendant’s consent to a search of the vehicle, see id. at 831,
here, considerable time passed between the illegal search and the consent (at least
enough time for the officer who discovered the stolen vehicle to drive to the jail,
inform officers of his discovery, and prompt a request to search the residence). The
officer who requested Perry’s consent advised Perry he had the right to refuse to
consent to the search. “Such an intervening circumstance supports the voluntariness
of appellant’s consent indicating that the [officer] was not attempting to exploit an
illegal situation.” United States v. Moreno, 280 F.3d 898, 901 (8th Cir. 2002) (citing
United States v. Ramos, 42 F.3d 1160, 1164 (8th Cir. 1994)). Finally, there is simply
Miranda warnings, or that a lack of Miranda warnings invalidates a consent to search.”
United States v. Payne, 119 F.3d 637, 643 (8th Cir. 1997).
-4-
no evidence of misconduct on the officers’ part. Therefore, we affirm the district
court’s order denying Perry’s motion to suppress.
B. Sentencing
Perry challenges his sentence on three grounds. Perry argues the district court
erred (1) in finding not only the fact of his prior convictions, but also the nature of
those convictions (specifically, that the convictions were for controlled substance
offenses); (2) in following Almendarez-Torres v. United States, 523 U.S. 224 (1998)
(justifying use of prior convictions to boost a defendant’s sentence), which has
implicitly been overruled; and (3) in relying on the PSR as evidence of his prior
convictions.
We review for clear error a district court’s factual determination whether a
defendant has a prior felony conviction for a controlled substance offense pursuant to
U.S.S.G. § 2K2.1(a)(2). See United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir.
2005); cf. United States v. Walterman 343 F.3d 938, 940 (8th Cir. 2003) (“Generally,
a district court’s determination of whether a defendant’s prior convictions qualify him
as a career offender is factual, and thus we review for clear error.”). “A finding is
‘clearly erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)
(quotation omitted). The application of the facts to the Guidelines is reviewed de
novo. Mathijssen, 406 F.3d at 498.
Perry first claims the district court violated his Sixth Amendment rights when
the court found both the fact and nature of his prior convictions. Perry contends
Booker’s exception for prior convictions applies only to the fact a prior conviction
exists, but not to the nature of that conviction. See United States v. Booker, 543 U.S.
220, 125 S. Ct. 738, 756 (2005). Perry’s argument fails. We have held post-Booker
that the nature of a conviction is treated the same as the fact of a conviction for
purposes of Sixth Amendment analysis. See United States v. Griffin, 418 F.3d 881,
-5-
882 n.2 (8th Cir. 2005) (per curiam) (noting Booker did not “ alter[] the rule that both
the fact and the nature of a prior conviction are issues for the sentencing court, not the
jury”); cf. United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (“Once the
sentencing court determines that a prior conviction exists, it is a legal question for the
court whether the crime meets the ‘crime of violence’ definition of [U.S.S.G.] §
4B1.2.”).
Perry also claims the district court erred by enhancing his sentence based on his
two prior felony drug trafficking offenses because, according to Perry, the Supreme
Court in Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005), implicitly
overruled Almendarez-Torres, thereby making it error to enhance a sentence based on
prior convictions. See Shepard, 125 S. Ct. at 1264 (Thomas, J. concurring) (“[A]
majority of the Court now recognizes that Almendarez-Torres was wrongly
decided.”). We disagree. Our court has held “we are bound by Almendarez-Torres
until the Supreme Court explicitly overrules it.” United States v. Torres-Alvarado,
416 F.3d 808, 810 (8th Cir. 2005).
Finally, Perry claims the district court erred by relying on the PSR to find Perry
twice had committed prior felonies for controlled substance offenses, thereby
justifying imposition of a higher base offense level under the Guidelines. The district
court incorrectly relied on the PSR, as Perry claims. See Shepard, 125 S. Ct. at 1257
(clarifying limitations on what evidence a district court may consider in determining
whether a conviction for burglary based on an earlier guilty plea qualifies as a violent
felony under the Armed Career Criminal Act). Given the record as a whole, however,
we do not find the district court’s ultimate finding clearly erroneous. Shepard
instructs that in determining the nature of a prior conviction to which a defendant pled
guilty, a court may look only “to the terms of the charging document, the terms of a
plea agreement or transcript of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the defendant, or to some comparable
judicial record of this information.” Shepard, 125 S. Ct. at 1263. The existence in this
case of a “comparable judicial record” is unmistakable. During the hearing on his
-6-
motion to suppress, Perry admitted, under oath, two prior felony convictions for drug
trafficking offenses, one in a Texas federal court and one in a Florida federal court.
Thus, however inappropriate the district court’s stated ground was for its finding,
based on the record as a whole before us, the substance of that finding was not clearly
erroneous.
III. CONCLUSION
For the reasons stated, we affirm Perry’s conviction and sentence.
______________________________
-7- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3039698/ | Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
2-12-2008
Vivaritas v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4113
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4113
DAWN VIVARITAS,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 05-04600)
Honorable Faith S. Hochberg, District Judge
Argued December 13, 2007
BEFORE: RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges
(Filed: February 12, 2008)
Abraham S. Alter (argued)
Langton & Alter
2096 St. Georges Avenue
Rahway, NJ 07065
Attorneys for Appellant
Christopher J. Christie
United States Attorney
Som Ramrup (argued)
Special Assistant United States Attorney
Kristina Cohn
Special Assistant United States Attorney
Barbara L. Spivak
Chief Counsel – Region II
Karen Fiszer
Senior Attorney
Office of the General Counsel
Social Security Administration
26 Federal Plaza
New York, NY 10278
Attorneys for Appellee
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this Court on appeal from an order entered in the
District Court on August 11, 2006, affirming the final decision of the Commissioner of
Social Security denying appellant Dawn Vivaritas’ application for social security
disability benefits. Vivaritas makes four arguments in support of her appeal. First, she
argues that the Administrative Law Judge (“ALJ”) failed to inform her adequately of her
right to counsel and failed to develop the record adequately in light of her lack of counsel.
Second, Vivaritas argues that the ALJ did not predicate her finding that Vivaritas did not
satisfy the requirements of listed impairment 12.05(C) on substantial evidence. Third, she
argues that the ALJ did not base her finding at the fourth step of the five-step sequential
evaluation procedure that Vivaritas retained the residual functional capacity (“RFC”) to
2
perform her past relevant work on substantial evidence. Fourth, Vivaritas argues that the
ALJ erred by not relying on a vocational expert at the final step of the five-step sequential
evaluation procedure for determining eligibility for benefits.
For reasons that we will discuss, we agree that the ALJ failed to explain
adequately to Vivaritas her right to counsel and that Vivaritas therefore did not waive that
right knowingly and intelligently. We also agree that the ALJ failed to develop the record
adequately with respect to whether Vivaritas satisfied the requirements for listed
impairment 12.05(C). We therefore will reverse the District Court’s order affirming the
Commissioner’s denial of benefits and remand this case to the District Court to remand it
to the Commissioner to develop the record further. Inasmuch as further development of
the record and the ALJ’s decision based on that record may make consideration of steps
four and five of the five-step sequential evaluation procedure unnecessary, we do not
reach Vivaritas’ other challenges to the ALJ’s decision.
On November 5, 2002, Vivaritas filed an application for social security disability
benefits claiming that she became unable to work beginning in October 2002 as a result
of migraines, asthma, and depression. The Commissioner denied her application initially
and on reconsideration. Vivaritas subsequently filed a request for review by an ALJ that
resulted in a hearing on July 15, 2004. The ALJ began the hearing, which Vivaritas
attended without counsel, by informing her that she had the right to counsel and asking
whether she wished to proceed without representation or adjourn the hearing for 30 days
3
in order to find counsel. Vivaritas chose to proceed without representation. During the
hearing, Vivaritas testified to her physical disabilities and to her mental limitations.
Based on Vivaritas’ testimony concerning her mental limitations, the ALJ requested a
consultative examination to evaluate them. In two reports dated October 17, 2004, Dr.
Anthony J. Candela reported on the results of Vivaritas’ examination, describing her
intellectual and psychological condition and documenting her scores on several IQ tests.
On April 21, 2005, the ALJ denied Vivaritas’ application for benefits. Vivaritas
subsequently sought review by the Appeals Council, which concluded that she provided
no grounds for a review of the ALJ’s decision.
On September 22, 2005, Vivaritas filed this action in the District Court challenging
the Commissioner’s denial of her application for benefits. On August 11, 2006, the
District Court affirmed the Commissioner’s denial of benefits. On September 15, 2006,
Vivaritas filed a timely notice of appeal to this Court.
The District Court had jurisdiction over this matter pursuant to 42 U.S.C. § 405(g)
and we have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over
the order of the District Court and over the legal aspects of the Commissioner’s decision.
See Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Inasmuch as the dispositive issues in
this case are legal, we will decide the case on the basis of that standard of review rather
than on the usual basis of ascertaining whether there is substantial evidence in the record
supporting the Commissioner’s decision. See id.
4
Though a claimant does not have a constitutional right to counsel at a social
security disability hearing, she does have a statutory and regulatory right to counsel at
such a hearing. 42 U.S.C. § 406; 20 C.F.R. § 404.1705. The claimant must be given
notice of the right to counsel and can waive this right only by a knowing and intelligent
waiver.1 See, e.g., Smith v. Schweiker, 677 F.2d 826, 828 (11th Cir. 1982). Moreover,
where a claimant is pro se, the ALJ has a duty to help the claimant develop the
administrative record and “must scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts.” Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir.
2003) (internal quotations omitted).
Although an ALJ may deny a pro se claimant benefits, it is appropriate for a
reviewing court to remand a case if there is “a showing of clear prejudice or unfairness at
the administrative hearing.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979);
see also Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980) (“[I]f it is clear that the
lack of counsel prejudiced the claimant or that the administrative proceeding was marked
by unfairness due to the lack of counsel, this is sufficient for remand, or reversal.”). A
1
The Court of Appeals for the Seventh Circuit has stated that “[t]o ensure valid
waivers, ALJs must explain to pro se claimants ‘(1) the manner in which an attorney can
aid in the proceedings, (2) the possibility of free counsel or a contingency arrangement,
and (3) the limitation on attorney fees to 25 percent of past due benefits and required
court approval of the fees.’” Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007)
(quoting Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994)). Although we have referred
to decisions by other courts of appeals in describing the standards for evaluating social
security appeals, we have not required that ALJs explain each of these listed items that
the Court of Appeals for the Seventh Circuit case law requires.
5
determination of whether the claimant waived the right to counsel knowingly and
intelligently determines who has the burden of demonstrating whether remand is
appropriate. As the Court of Appeals for the Seventh Circuit has explained, “[i]f the ALJ
does not obtain a valid waiver of counsel, the burden is on the Commissioner to show the
ALJ adequately developed the record.” Skinner v. Astrue, 478 F.3d 836, 842 (7th Cir.
2007). “While a claimant represented by counsel is presumed to have made his best case
before the ALJ, no such presumption attaches to an unrepresented claimant.” Id.
“Without the shifting of this burden, no sanction would exist for an ALJ’s inadequate
explanation of a claimant’s rights.” Binion v. Shalala, 13 F.3d 243, 245 (7th Cir. 1994).
In this case, the ALJ began the hearing by acknowledging that Vivaritas did not
have counsel and stating: “You know that you have the right to have a representative, but
you are not required to have one.” App. at 26. The ALJ informed Vivaritas that the
notice of the hearing which Vivaritas had received contained a list of possible
representatives and that she could provide Vivaritas with an additional copy if necessary.
Id. The ALJ then described Vivaritas’ right to counsel in the following exchange:
ALJ: Let me first explain to you what a representative could do for
you. A representative could help you to gather medical
records and other documents in support of your case. A
representative could help you to organize your case and could
help you to present your case before an Administrative Law
Judge. There may be representatives that do not charge any
money. Have you given any thought to getting a
representative?
CLMT: I was – I went to check into legal aide [sic] because I can’t
6
afford [sic] and they say – I think they’re on Summit or
something. I was looking for it, but I couldn’t find it.
ALJ: Okay. Well, let me explain to you what your options are
today. First, let me tell you that it’s perfectly possible to have
a fair hearing either with a representative or without a
representative. It’s purely a personal choice of yours. It – so
you have two choices today. You can either choose to
proceed today with the hearing without a representative or I
could give you an adjournment of 30 days to give you a
chance to get a representative. If you choose to proceed today
and if I notice during the hearing that there are any documents
that are missing from your record that I need, I can take steps
through my office to get those and add them to your file.
Also, if you proceed today and for some reason you are not
happy with the [d]ecision that I make, you would be free to
appeal that [d]ecision and you could get a representative at
that time if you so chose [sic]. So what is your [d]ecision?
Do you want to proceed or do you want to have a chance to
get a representative?
CLMT: Well, I’m going to proceed.
ALJ: You want to proceed today?
CLMT: Yeah.
App. at 26-28.
Ordinarily, the foregoing exchange would be sufficient to establish that a claimant
waiving her right to counsel during an ALJ hearing acted knowingly and intelligently. In
this case, however, Vivaritas later testified at the hearing that she suffered from mental
limitations, although the extent of her limitations was unclear at the time of her testimony.
When the ALJ asked Vivaritas to describe her mental limitations, she testified:
Well, I’m a little slower than other people, but I get – manage to get around.
7
That’s what it is. I don’t – do things the way, you know, other people
would do. I’m a little slow at learning things and it’s always been that way.
That’s why I went to special ed[.], but I went to regular high school because
they had a special program for that.
* * *
At night, I went, so it was like a special thing for the special ed[.] to put
them in regular [sic].
App. at 44. Indeed, Vivaritas’ testimony prompted the ALJ to request a consultative
examination to assess her intellectual and psychological condition. Dr. Candela described
the results of that examination as follows:
[Vivaritas] obtained a Verbal IQ score of 72, which has a range of 68 to 78
Verbal IQ points at the 95th percent confidence level. She also obtained a
Performance IQ score of 67, with a range of 62 to 76 Performance IQ points
at the 95th percent confidence level. These two scores yielded a Full Scale
IQ score of 67 with a range of 64 to 72 Full Scale IQ points at the 95th
percent confidence level. The indication here is that her range of abilities
are within the low borderline range. Clearly Dawn has learning difficulties.
Her scores ranged from a low of 3 to a high of 9, indicating the presence of
scatter. There was also scatter on an intra-test basis. General vocabulary
was limited as well as abstract reasoning.
App. at 205. Although it was an open question during the hearing whether Vivaritas’
mental limitations qualified her for disability benefits, her testimony regarding those
limitations, particularly when the subsequent evaluation by Dr. Candela supported her
testimony, should have given the ALJ concerns as to whether her explanation to Vivaritas
of her right to counsel was sufficient and whether Vivaritas’ waiver of that right was
knowing and intelligent.
In addition to the validity of the waiver of counsel problem, there was a second
8
problem with the ALJ’s handling of the case in that she failed to develop the record
adequately on the question of whether Vivaritas satisfied the requirements for listed
impairment 12.05(C), and whether this failure resulted in clear prejudice to Vivaritas’
disability claim. The ALJ found that Vivaritas did not satisfy listing 12.05(C) because
“[s]he does not have a mental disorder that is severe enough to impose significant work-
related limitations of function that are satisfied by the requirements of medical listing
12.05(C) .” App. at 17.
The Commissioner’s regulations provide the following with respect to listed
impairment 12.05(C):
12.05. Mental retardation: Mental retardation refers to significantly
subaverage general intellectual functioning with deficits in adaptive
functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements
in A, B, C, or D are satisfied.
* * *
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a
physical or other mental impairment imposing an additional and significant
work-related limitation of function . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C). In other words, “[t]o meet the
requirements of § 12.05[(C)] a claimant must i) have a valid verbal, performance or full
scale IQ of 60 through 70, ii) have a physical or other mental impairment imposing
additional and significant work-related limitations of function, and iii) show that the
9
mental retardation was initially manifested during the developmental period (before age
22).” Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003).
Vivaritas satisfied the first and second requirements. With respect to her IQ
scores, Dr. Candela reported:
[Vivaritas] obtained a Verbal IQ score of 72, which has a range of 68 to 78
Verbal IQ points at the 95th percent confidence level. She also obtained a
Performance IQ score of 67, with a range of 62 to 76 Performance IQ points
at the 95th percent confidence level. These two scores yielded a Full Scale
IQ score of 67 with a range of 64 to 72 Full Scale IQ points at the 95th
percent confidence level.
App. at 205. In addition, the ALJ found that Vivaritas’ asthma and migraines were
“severe” pursuant to 20 C.F.R. § 416.920, which describes “severe impairment” as
“any impairment or combination of impairments which significantly limits your physical
or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c).
The ALJ, however, did not address whether the record supported a finding that the
onset of Vivaritas’ mental impairments occurred before age 22 as specified in impairment
12.05(c). See app. at 15-23. A claimant seeking benefits pursuant to listed impairment
12.05(C) has the burden of providing evidence showing that the claimed impairment
commenced during the developmental period. See Williams v. Sullivan, 970 F.2d 1178,
1186 (3d Cir. 1992). In Markle v. Barnhart, 324 F.3d 182, the Commissioner denied
benefits to the claimant based in part on a finding that the claimant did not satisfy the
requirements for listed impairment 12.05(C). We reversed the Commissioner’s denial of
benefits, however, because the ALJ had failed to address whether the claimant’s mental
10
retardation had commenced during the developmental period and we wanted to give the
ALJ the opportunity to further develop the record and address the issue in the first
instance. Id. at 189. We found that the claimant had fulfilled her burden of production
sufficiently to warrant remand because the medical evidence did not suggest that
retardation originated after age 21, that the claimant had educational problems, including
taking special education courses through ninth grade, dropping out in the tenth grade, and
struggling to obtain a GED, and that he had not worked for at least 15 years. Id. We also
observed that “the evidence before the ALJ [was] consistent with a finding that Markle’s
mental condition remained constant from childhood through the present, the only change
being that his physical condition worsened as the years went by,” and that “[t]here is no
evidence of a long work history . . . or of a traumatic event that might have induced
mental retardation at a later stage of life.” Id. at 188-89.
Here, as was true of the claimant in Markle, Vivaritas produced evidence
suggesting that her claimed mental impairment had an onset before she reached the age of
22. During the hearing, Vivaritas testified that she attended special education classes
while in high school and the ALJ acknowledged in her decision that Vivaritas “attended
special education class for many years beginning with grammar school.” App. at 18.
When the ALJ asked Vivaritas to describe her mental limitations in greater detail, she
testified that she was “a little slower than other people” and “a little slow at learning
things,” and that “it’s always been that way.” App. at 44. As for the medical evidence,
11
Dr. Candela’s report does not indicate whether Vivaritas’ intellectual limitations began
during her developmental period. See app. 204-10. During oral argument before us,
Vivaritas’ counsel argued that if he had represented her during the hearing, he would have
requested production of her educational records to see whether her IQ test scores prior to
age 22 satisfied the severity requirements of listing 12.05(C). The ALJ did not request
Vivaritas’ educational records, nor did she seek a contemporary medical opinion
concerning the onset age of Vivaritas’ claimed mental impairments.
For these reasons, we conclude that Vivaritas did not waive her right to counsel
during the ALJ hearing knowingly and intelligently and that she clearly suffered prejudice
as a result of her lack of counsel. Accordingly, we are constrained to reverse the District
Court order of August 11, 2006, affirming the Commissioner’s denial of benefits to
Vivaritas and to remand the matter to the District Court to remand the matter to the
Commissioner to develop the record further. See INS v. Orlando Ventura, 537 U.S. 12,
16, 123 S. Ct. 353, 355 (2002). As a practical matter, we expect that Vivaritas, who has
appealed her case with the assistance of highly experienced counsel primarily on the
ground that she was prejudiced as a result of her earlier lack of representation, will have
counsel on remand, in which event the errors that we have described undoubtedly will be
addressed adequately. If Vivaritas decides, however, to proceed without counsel, a
course that we hope she does not follow, the ALJ should explain her right to have counsel
and counsel’s availability in full detail and, if Vivaritas insists on proceeding pro se, the
12
ALJ should develop the record with respect to the question of whether Vivaritas satisfied
the requirements of listed impairment 12.05(C).
The order of August 11, 2006, will be reversed and the matter will be remanded to
the District Court to remand the matter further to the Commissioner for further
proceedings consistent with this opinion.
13 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/413520/ | 698 F.2d 1214
Molinos de Puerto Rico, Inc.v.La Union de Empleados de Molinos de Puerto Rico
82-1133
UNITED STATES COURT OF APPEALS First Circuit
12/21/82
1
D.P.R.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2101871/ | 233 S.W.3d 772 (2007)
Karim AL-NAUMANY, Respondent,
v.
TREASURER OF THE STATE of Missouri, CUSTODIAN OF THE SECOND INJURY FUND, Appellant.
No. ED 89100.
Missouri Court of Appeals, Eastern District, Division Three.
September 25, 2007.
Jeremiah W. (Jay) Nixon, Atty. Gen., Kareitha Angeline Osborne, Assistant Attorney General, St. Louis, MO, for appellant.
Kevin D. Wayman, St. Louis, MO, for respondent.
Before ROY L. RICHTER, P.J., CLIFFORD H. AHRENS, J., and GLENN A. NORTON, J.
ORDER
PER CURIAM.
The Treasurer of the State of Missouri as custodian of the Second Injury Fund ("SIF") appeals the final award of the Labor and Industrial Relations Commission *773 ("Commission") finding SIF liability. We affirm.
We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/544396/ | 907 F.2d 1137Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Henry P. CARRINGTON, Petitioner-Appellant,v.J.T. HADDEN, Warden, FCI, Butner, North Carolina, Respondent-Appellee.
No. 90-7300.
United States Court of Appeals, Fourth Circuit.
Submitted June 4, 1990.Decided June 14, 1990.Rehearing and Rehearing In Banc Denied July 17, 1990.
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (C/A No. 90-63)
Henry P. Carrington, appellant pro se.
Margaret Person Currin, United States Attorney, Raleigh, N.C., for appellee.
E.D.N.C.
AFFIRMED.
Before ERVIN, Chief Judge, and CHAPMAN and WILKINS, Circuit Judges.
PER CURIAM:
1
Henry Carrington was paroled from federal custody to a state detainer in 1982. He was released from state custody in January 1985 and, by his own admission, violated his federal parole that month. He now seeks a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241, claiming that the United States Parole Commission improperly failed to credit him with time served in state custody in 1982 through 1985 in calculating his present parole release date. The district court summarily dismissed Carrington's petition, finding that he has no constitutional entitlement to time spent on parole. Carrington appeals and we affirm.
2
Parole to a state detainer is an authorized form of parole under parole regulations and constitutes "parole" within the meaning of the Parole Commission and Reorganization Act, 18 U.S.C. Secs. 4201 et seq (1976). Garafola v. Wilkinson, 721 F.2d 420, 422-23 (3d Cir.1983), cert. denied, 466 U.S. 905 (1984); 28 C.F.R. Sec. 2.32(a)(1) and (2). Thus the district court correctly concluded that Carrington is not constitutionally entitled to credit for time served in state custody while on federal parole. Furthermore, the fact that the district court may have ordered Carrington's federal sentence to run concurrently with his state time does not improve Carrington's argument. As the district court lacks authority to order a federal sentence to run concurrently with a state sentence, any language to this effect is regarded as surplusage. Ange v. Paderick, 521 F.2d 1066, 1068 (4th Cir.1975); Hamilton v. Salter, 361 F.2d 579, 581 (4th Cir.1966).
3
Accordingly, the dismissal of Carrington's habeas petition is affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the Court and argument would not aid the decisional process.
4
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3964018/ | This action is one to recover damages arising out of injuries inflicted upon certain stock shipped by appellee over appellant's line of road. The only assignment of error questions *Page 551
the judgment of the court below for the reason that the evidence does not warrant the amount of damages found by the jury. The verdict and judgment below was for $240 and interest on that sum from Oct. 15, 1892, at the rate of six per cent. per annum.
When the unsuccessful party in the trial court is dissatisfied with the verdict on the ground that it is contrary to the evidence, the objection should be specifically called to the attention of the trial court by motion for new trial, otherwise the objection will be held as waived. This rule also applies when the complaint is that the verdict is excessive. Jacobs v. Hawkins, 63 Tex. 4.
Simply stating that the verdict is not supported by the evidence, or is contrary to the evidence, is too general, and is not sufficient as a basis for an objection to the verdict on the ground that it is against the evidence.
The motion for new trial, so far as it objects to the verdict, is not broad enough to cover, and does not embrace the objection to the verdict raised by the assignment of error. But independent of this, we think the evidence warrants the verdict and judgment of the trial court.
There is evidence that shows that nineteen head of oxen went into possession of appellant for shipment, and that they were then worth each from forty to fifty dollars, and by reason of the rough and negligent manner in which they were handled when in the possession of appellant, eleven head of them, when they reached Texarkana, their destination, were practically not salable in the market, and were then only worth from seven to ten dollars each. Placing their value at forty dollars each, the lowest amount testified by plaintiff, they would be worth at Texarkana, if in good condition, and allowing ten dollars each as the highest value he states they were worth in the condition in which they were delivered, would fix the amount of damages sustained by reason of injuries to the eleven head at three hundred and thirty dollars. The difference in value at the time they were delivered at Texarkana in their then condition, and the condition in which they should have been delivered, is the measure of damages. Railway v. Hume, 24 S.W. Rep., 917.
Judgment affirmed.
Affirmed. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/240264/ | 236 F.2d 686
98 U.S.App.D.C. 391
Francis S. BROWNE, Appellant,v.W. Carroll BROOKE, Emma Smallzel Wacker, and Eleanor N.Jenkins, Appellees.
No. 12792.
United States Court of Appeals District of Columbia Circuit.
Argued April 4, 1956.Decided June 14, 1956.Petition for Rehearing In Banc Denied July 16, 1956.
[98 U.S.App.D.C. 392] Mr. Charles H. Quimby, Washington, D.C., for appellant.
Mr. Louis M. Denit, Washington, D.C., with whom Messrs. Thomas S. Jackson, Martin R. Fain and Richard A. Bishop, Washington, D.C., were on the brief, for appellees.
Before BAZELON, FAHY and DANAHER, Circuit Judges.
FAHY, Circuit Judge.
1
In the District Court a trial was had before a jury on issues framed as to the validity of an instrument dated November 13, 1952, offered by Francis S. Browne, appellant, as the last will and testament of Mildred Nyman, deceased. A caveat had been filed by W. Carroll Brooke, an appellee, cousin of the decedent and a devisee and legatee named in an earlier will. Eleanor N. Jenkins, niece of deceased, and Emma S. Wacker, another relative and devisee and legatee under the earlier instrument, both of whom are also appellees, joined in the caveat. The jury returned a verdict that decedent at the time of the making of the purported will of November 13, 1952, was not of sound and disposing mind and capable of executing a valid deed or contract. The verdict also included other special findings supporting the caveat but these need not be considered; for if the verdict that decedent was of unsound mind is not impaired by any error, as we hold to be the case, then the order denying probate, which is the order appealed from, should be affirmed.
2
The only serious question about the validity of the jury's verdict of unsoundness of mind has to do with the admission in evidence of the testimony of Dr. Winfred Overholser to the effect that decedent was of unsound mind when he examined her in February, 1952. The purpose of the examination was to enable the doctor to prepare a report on Miss Nyman's mental condition in connection with proceedings to appoint a conservator for her. The question is whether the doctor's testimony was privileged and therefore inadmissible unless the privilege was waived. Since we find for the reason now to be stated that the testimony was not privileged we do not reach the question of waiver. We think it was not privileged because under § 14[98 U.S.App.D.C. 393] 308, D.C.Code (1951), the doctor-patient privilege in this jurisdiction extends only to information the physician acquires 'in attending a patient in a professional capacity.' This does not include information obtained merely by an examination. Taylor v. United States, 95 U.S.App.D.C. 373, 222 F.2d 398. We assume that the person examined, if capable of forming a judgment on the subject, must understand that the physician is not attending or treating him.1 If not capable of forming such a judgment the question of the physician's status must be determined objectively.
3
Here the trial judge made preliminary inquiries to ascertain if Dr. Overholser had attended and treated the decedent or if she could have so believed, so as to give rise to the privilege. We reproduce in the margin a portion of the relevant parts of the record which shows the court's attention to this problem.2 Upon the basis of his inquiries as to the possible professional relationship of the witness to the decedent, and the answers of the witness, the learned trial judge admitted the opinion evidence. We cannot say from the facts thus developed that he erred in ruling that the testimony was not subject to the privilege. Finding no error in this or in other respect, the order is
4
Affirmed.
5
BAZELON, Circuit Judge (dissenting).
6
I think the District Court erred in admitting the testimony of the psychiatrist that the decedent was mentally incompetent to execute a will.
7
The circumstances under which the witness examined the decedent were these: Upon being retained by a bank to give an opinion as to her mental competence to transact business, he sought and obtained the permission of her personal physician to visit her at the nursing home where she was confined. He made the visit and was introduced to her as a doctor by one of the nurses. He examined her in the same manner as he would have examined one of his own patients for a similar purpose. Decedent was not specifically informed by anyone whether the doctor was there to treat her, examine her or pay a social visit.
8
The statute which renders a doctor's testimony incompetent,1 'very broad' though it is,2 does not bar from evidence what the doctor has learned from an examination avowedly made for testimonial rather than therapeutic purposes.3 The 105 S.W. 709, 716-718, 14 L.R.A.,N.S., at all. She asked for no advice. [98 U.S.App.D.C. 394] policy of the statute is to encourage between doctor and patient the free communication which is essential for proper treatment of illness, by assuring the patient that his disclosures will be kept secret. This policy is 'particularly clear and strong' where mental patients are concerned.4 Where the 'patient' knows that the doctor is there to obtain evidence rather than to give treatment, there is no inducement to convey confidences and, consequently, no need to protect his communications against disclosure.
9
Here the psychiatrist's purpose was unquestionably testimonial, but it does not appear that the decedent was aware of that fact. Her normal assumption would have been that the doctor who was examining her was doing so qua doctor, not qua bank investigator. To admit the doctor's testimony in these circumstances would make the patient's rights dependent on the doctor's intentions. The statute, however, is designed for the patient's protection. Her frame of mind, therefore, rather than the doctor's, should determine whether the statute applies.5 Unless it appears that she submitted to examination with knowledge that the doctor might broadcast his findings, her confidences should be respected. To make the testimony competent, it must be found from the record not only that the purpose of the examination was testimonial, but also that purpose was clearly announced to the person examined or her legal representative. No such finding being possible here, the testimony should have been excluded.
10
Although there was other evidence that decedent was mentally incompetent to execute the will, it cannot be said that the inadmissible testimony was merely cumulative and without prejudicial effect upon the jury. I would therefore reverse and remand for a new trial.
1
See Smart v. Kansas City, 208 Mo. 162, 105 S.W. 709, 716-718, 14 L.R.A., N.S., 565 and cases cited; Weitz v. Mound City Ry., 53 Mo.App. 39. Of contrary import, see In re Williams' Estate, 186 Wis. 160, 202 N.W. 314
2
'By The Court: 'Q. I take it from what you have already said that you were undertaking to form an opinion to express to somebody else respecting the condition that you observed this person to be in. A. That is correct, Your Honor
'Q. That was definitely your understanding of the situation. Now, was there anything said or done to you that indicated that Miss Nyman regarded you as her physician and she as your patient? A. Oh, no. I am not at all sure that she even knew I was a physician.
'Q. I heard you say that. A. Yes. And she said nothing to me-- she asked me no questions, for example, as to what she ought to do about herself or her condition at all. She asked for no advice.
'Q. Well, you are perfectly clear in your own mind, at least, then, that there was not the normal patient-physician relationship? A. I am perfectly clear on that, Your Honor, yes, sir.
'Q. And so far as you could observe she was under no misapprehension that there was that relationship? A. I feel very safe in saying that she had no such idea.
'The Court: I shall admit the Doctor's testimony.'
1
D.C.Code § 14-308 (1951)
2
Sher v. DeHaven, 1952, 91 U.S.App.D.C. 257, 260, 199 F.2d 777, 780, 36 A.L.R. 2d 937, certiorari denied, 1953, 345 U.S. 936, 73 S. Ct. 797, 97 L. Ed. 1363
3
Taylor v. United States, 1955, 95 U.S.App.D.C. 373, 377, 222 F.2d 398, 402; Annot., 1937, 107 A.L.R. 1495
4
Taylor v. United States, 95 U.S.App.D.C. at page 376, 222 F.2d at page 401, quoting Guttmacher and Weihofen, Psychiatry and the Law (1952) 272: "The psychiatric patient confides moe utterly than anyone else in the world. * * * It would be too much to expect them to do so if they knew that all they say-- and all that the psychiatrist learns from what they say-- may be revealed to the whole world from a witness stand."
5
The witness' opinion that decedent did not think there was a patient-physician relationship is, in my judgment, not sufficient, in the light of the circumstances, to support a finding that such was in fact her state of mind | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/240265/ | 236 F.2d 689
98 U.S.App.D.C. 394
SACRAMENTO BROADCASTERS, Inc., Appellant,v.FEDERAL COMMUNICATIONS COMMISSION, Appellee, KCRA, Inc., Intervenor.
No. 12854.
United States Court of Appeals District of Columbia Circuit.
Argued April 4, 1956.Decided June 14, 1956.Petition for Rehearing Denied Aug. 13, 1956.
[98 U.S.App.D.C. 395] Mr. Jack P. Blume, New York City, with whom Mr. Peter Shuebruk, New York City, was on the brief, for appellant.
Mr. Henry Geller, Counsel, Federal Communications Commission, with whom [98 U.S.App.D.C. 396] Messrs. Warren E. Baker, General Counsel, Federal Communications Commission, and Richard A. Solomon, Asst. General Counsel, Federal Communications Commission, were on the brief, for appellee. Mr. J. Smith Henley, Asst. General Counsel, Federal Communications Commission, also entered an appearance for appellee.
Messrs. Philip G. Loucks, Joseph F. Zias and Verne R. Young, Washington, D.C., were on the brief for intervenor. Mr. Maurice M. Jansky, Washington, D.C., also entered an appearance for intervenor.
Before BAZELON, FAHY and DANAHER, Circuit Judges.
FAHY, Circuit Judge.
1
Sacramento Broadcasters, Inc., appellant, and KCRA, Inc., intervenor, filed mutually exclusive applications with the Federal Communications Commission for a permit to construct a new television station to be operated on Channel 3 in Sacramento, California. The application of KCRA was granted and that of Broadcasters was denied. The latter's petition for rehearing and reconsideration was also denied. It appeals to this court under section 402(b) (1) of the Communications Act, 48 Stat. 1093 (1934), as amended, 47 U.S.C. § 402(b)(1) (1952), 47 U.S.C.A. § 402(b)(1), and section 10 of the Administrative Procedure Act, 60 Stat. 243 (1946), 5 U.S.C. § 1009 (1952), 5 U.S.C.A. § 1009.
2
Testimony was taken before an Examiner at hearings in which the parties and the Commission's Broadcast Bureau participated as fully as each thought best. The Examiner decided in favor of KCRA, and when the case in due course came on before the Commission the same result was reached. The decision of the Commission contains a full analysis and discussion of the qualifications, both minimal and comparative, of the two applicants, covering, inter alia, technical or engineering matters, composition of the applicants, past records, radio background of principals, programming proposals, program policies, staffing, integration of ownership and management, and financial qualifications. Each applicant was found to be unusually well qualified for grant of a construction permit. Not only so, but neither was found to be superior to the other in any of the areas of comparison except one.1 After commenting on the remarkable eveness of the applicants, the Commission concluded, 'The sole significant difference between the applicants is seen to lie in their past broadcast records,' where KCRA was found to have a 'slight (though a definite and significant * * *)' margin of superiority. The Commission regarded this factor as 'the most critical or determinative one in resolving the important question of likelihood of effectuation of promises or commitments.' The preference was awarded KCRA on the basis of Broadcasters' "spotty' (albeit satisfactory in an overall sense) record of promise as against performance' in its past broadcasting activities and the absence of evidence of any such deficiencies in KCRA's record. This characterization of Broadcasters' record was grounded upon findings that in certain respects Broadcasters had not carried out promises it had made with regard to broadcasting in prior applications to the Commission.
3
Broadcasters challenges the sufficiency of the evidence to support certain findings of the Commission, including the adverse finding on Broadcasters' past broadcast record and several findings as to KCRA's qualifications. The evidence, however, is not so insubstantial as to lead us as a reviewing court to hold that the findings lack legal support. Broadcasters further contends that the evidence of record demonstrates the Commission 'must have employed different standards of decisional significance' in weighing the differences between the applicants. But this attack also goes [98 U.S.App.D.C. 397] to the Commission's judgment on questions within its competence, and we do not find that judgment to have been exercised in this case in an arbitrary manner. Related to this argument is Broadcasters' contention that the Commission should have weighed all the differences in favor of Broadcasters against all the differences in favor of KCRA, rather than disposing of them one at a time by finding each difference too insubstantial to justify the award of a preference. The answer is that the Commission found that the distinctions between the two applicants in the areas to which Broadcasters refers are such as not to provide a basis for favoring either party. A determination that a particular type of factual difference is not significant for purposes of awarding a preference is within the Commission's discretion, and we cannot say on the facts of this case that its discretion was abused.
4
Our decision, therefore, turns upon whether the Commission erred in awarding KCRA the decisive preference upon the basis of a 'spotty' record or promise as against performance on the part of Broadcasters and the absence of any evidence of defects in KCRA's past broadcast record. This was the basis of the Commission's initial decision and was adhered to when the Commission again analyzed the situation in its Memorandum Opinion accompanying its order denying the petition for reconsideration. Broadcasters' attack upon this ultimate ground of decision is that the Commission departed from proper decisional standards in arriving at the preference. Broadcasters says, more precisely, that while there was evidence of some failures on its own part to perform as promised during past operations of its radio station there was no evidence that KCRA had a better record in its comparable past radio operations. This is true. The Commission gave the preference to KCRA without evidence of a better KCRA record of performance. It relied rather upon the absence of evidence of any failure on KCRA's part and the presence of evidence of some failure on the part of Broadcasters. The Commission supported this reliance by reference to our decision in Johnston Broadcasting Co. v. Federal Communications Commission, 85 U.S.App.D.C. 40, 46-47, 175 F.2d 351, 357-358, where this court said of comparative hearings:
5
'* * * The applicants are hostile, and their respective interests depend not only upon their own virtues but upon the relative shortcomings of their adversaries. We think, therefore, that the Commission is entitled to assume that in such a proceeding the record of the testimony will contain reference to all the facts in respect to which a difference between the parties exists, and that the parties will urge, each in his own behalf, the substantial points of preference. The Commission need not inquire, on its own behalf, into possible differences between the applicants which are not suggested by any party, although in its discretion it may do so.
6
'* * * It is only common sense to assume that adversaries with substantial interests at stake will overlook no advantage to be found in an opponent's weaknesses.'
7
In other words the Commission says that since the facts regarding Broadcasters developed by the Broadcast Bureau showed its record of promise against performance to be spotty though satisfactory and no facts of an unsatisfactory character were developed either by the Bureau or by Broadcasters with respect to KCRA, it was justified in concluding that the latter's record in this respect was better and entitled it to the decisive preference, all else being equal. Broadcasters counters that neither applicant claimed a preference in this regard and the subject was not one for it to probe at the hearing.
8
The problem thus posed is a difficult one for the reviewing court. Care must be exercised to avoid making such important decisions as here faced the Commission upon the basis of assumptions rather than upon the evidence. The statute itself creates no factual presumption [98 U.S.App.D.C. 398] by any of its provisions. The evidence on the basis of which an award is made in the public interest to one and not to the other of competing applicants should be developed upon the record. We do not interpret Johnston to permit a departure from this method of decision. The assumption on which the Commission relied in the case now before us was not actually one of fact regarding intervenor but rather that the parties had developed the pertinent facts and had placed the Commission in a position to decide between the applicants on the record made. On the record KCRA, in the judgment of the Commission, was in a better relative position on the whole, and it was assumed that the relevant and available evidence had been adduced. The question is whether such a decisional procedure, which we conceive to be all that Johnston permits, is unfair. We think this question cannot be answered in the abstract for all cases. For example, should the Commission when it considers a record pick out as the basis for decision some phase of the evidence which a party had no reason to think was important or was to be considered by the Commission on any issue, or should a party be lulled into security respecting a subject which the Commission unexpectedly makes decisive, or be otherwise surprised, resort could not successfully be had to Johnston. That case gives no blanket approval of a procedure found to be unfair in a particular context. For Commission proceedings are in the public interest and are not contests of wits, with advantage to be taken of an unwitting lapse. A sincere effort to develop the truth respecting the material factors on which the decision turns is required in each case.
9
Here the subject of promise versus performance on the part of Broadcasters was canvassed at the hearing, particularly by the Broadcast Bureau. KCRA's record in this respect was also explored, though to a lesser degree, during the cross-examination of KCRA's president by Broadcasters' counsel. While neither party, nor the Bureau, submitted proposed findings on the subject, nor specifically objected to their absence from the Examiner's report, the whole record came before the Commission for its consideration. There had been opportunity for Broadcasters to defend and to attack on this ground, with knowledge that its own record had been probed. The Commissioner decided the case on the evidence in the record as thus made. Johnston was relied upon solely for the assumption that other facts which might have made a difference did not exist. Such an assumption is often made when a factual conclusion is to be reached on a record fairly made in relation to the questions to be decided, as we think was here done.
10
The case is a trying one, for Broadcasters stood so well before the Commission in comparison with KCRA. One 'spotty' place in its overall fine qualifications assumed unusual importance. But this occurred only because the case was so close. And a slight difference may be decisive when greater differences do not exist. Moreover, on the subject of promise versus performance Broadcasters' petition for rehearing did not make out a case of sufficient strength, either in its offer to prove that KCRA's record was not altogether good, or in explaining its failure to advance such a contention at the hearing, to cause denial of the petition to amount to an abuse of discretion. This is so although we think it would have been more satisfactory if the matter had been recanvassed more fully by the Commission.
11
Affirmed.
12
BAZELON, Circuit Judge (dissenting).
13
At the outset of the hearing before the trial examiner, all the parties, including the Broadcast Bureau, 'agreed that the program showings of the respective stations, including statistical analyses of logs, would be limited to the year 1952, except that logs for the 1951 composite weeks were to be made available for use in cross-examination.' KCRA and Broadcasters did not cross-examine each other as to pre-1952 matters. Counsel for the Broadcast Bureau allowed KCRA [98 U.S.App.D.C. 399] to come and go unscathed, but then cross-examined Broadcasters as to its pre-1952 record. However, neither the applicants nor the Broadcast Bureau requested findings on that issue and the trial examiner made none. Hence there was no reason to expect the Commission to initiate a finding upon that issue and certainly no reason to expect it to attribute decisional importance to such finding. It is plain that both Broadcasters and KCRA considered inconsequential the point seized upon by the Commission as determinative. In these circumstances, I cannot read Johnston as holding that Broadcasters would have used its ammunition against KCRA if it had any.
14
I am therefore of the view that the Commission abused its discretion in denying the request of Broadcasters, in its petition for rehearing, to 'remand the case for further hearing, so that it will have evidence before it concerning KCRA's record on promise versus performance.'1
15
I would set aside the order under review and remand the case to the Commission for further hearings and reconsideration.
1
The Commission also in its original decision gave a very slight preference to KCRA due to Broadcasters' violation of its liquor advertising policies, but abandoned this position upon reconsideration of the point
1
Although the reasons advanced for the remand in the petition for rehearing were less specific than could be desired, I am persuaded that they were sufficient in the circumstances of this case | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/240269/ | 236 F.2d 719
Ezra T. BENSON, Secretary of Agriculture, Appellant,v.Arthur SCHOFIELD et al., Appellees.NEW ENGLAND MILK PRODUCERS' ASSOCIATION, a Massachusetts corporation, et al., Appellants,v.Arthur SCHOFIELD et al., Appellees.
No. 13127.
No. 13128.
United States Court of Appeals District of Columbia Circuit.
Argued May 22, 1956.
Decided June 29, 1956.
Petition for Rehearing In Banc Denied September 11, 1956.
Mr. Samuel D. Slade, Attorney, Department of Justice, with whom Messrs. Leo A. Rover, U. S. Atty., at the time brief was filed, Herman Marcuse, Attorney, Department of Justice, and Neil Brooks, Assistant General Counsel, Department of Agriculture, were on the brief, for appellant in case No. 13,127. Mr. Oliver Gasch, U. S. Atty., also entered an appearance for appellant in case No. 13,127.
Mr. Reuben Hall, Boston, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Messrs. John W. Cragun and Robert W. Barker, Washington, D. C., were on the brief, for appellants in case No. 13,128.
Mr. Edmund Burke, Boston, Mass., of the bar of the Supreme Judicial Court of Massachusetts, pro hac vice, by special leave of Court, with whom Mr. Robert W. Lishman, Washington, D. C., was on the brief, for appellees.
Before WASHINGTON, DANAHER and BASTIAN, Circuit Judges.
DANAHER, Circuit Judge.
1
Appellees as officials of a voluntary association of Massachusetts milk producers1 sought, and the District Court granted, a preliminary injunction which enjoins and restrains the Secretary of Agriculture from promulgating or making effective that part of his proposed order which would extend the limits of the Greater Boston Marketing Area to reach and include milk distributed and sold in certain named towns. Proceedings with respect to proposed amendments to the present order2 had gone forward in accordance with the applicable rules of practice and procedure,3 public hearings had been held and a referendum had been conducted. Before the Secretary could promulgate his findings and issue his order with respect to the proposed amendments, this action was commenced. Appellants assert that the trial court erred in granting the preliminary injunction in that the District Court lacked jurisdiction because (1) the action was premature, (2) appellees lack standing and (3) the statutory plan prohibits the suspension of orders pending judicial review. Additionally, appellants insist that the preliminary injunction was improperly granted in that there was a failure to make the required findings of fact and conclusions of law, and in that, without regard to the public interest, it was erroneously assumed that appellees had established that they were likely to prevail.
2
The District Court concluded that no substantial constitutional question was presented in view of United States v. Rock Royal Co-op, 1939, 307 U.S. 533, 59 S. Ct. 993, 83 L. Ed. 1446. We may assume the validity of the statute, 7 U.S. C.A. § 608c.
3
It is common knowledge that the production and marketing of milk are vital and that the problems of the industry have long engaged the notice of the Congress, the state legislatures and the courts. Citations to the numerous source references are here unnecessary. It is sufficient to point up our present problem that a few general observations be made. Since there are daily fluctuations in the demand as well as periodic and seasonal fluctuations in supply, even flow and equal distribution of available fluid milk are impossible of achievement. The quantities of fluid milk required to meet normal daily demands in an off-season, as a measure of normal need, may be vastly exceeded by large surpluses in full production periods. Such surpluses, because milk is highly perishable, are the bane of the industry. The Boston Milk Order4 provides for two minimum price classifications: Class I milk which includes fluid milk and certain fluid milk products, and Class II milk which includes quantities in excess of what is required to meet current demands for fluid milk as a food beverage, which surplus here includes all other milk products such as butter, cheese, milk powder and similar items.
4
Fluid milk as a food beverage commands a much higher price than quantities which may not be so consumed and which must be utilized in other categories. It is natural that an individual producer will seek to sell advantageously his more profitable fluid milk.5 Still the public interest in an assured "normal" supply, as well as a proper concern for the economic status of all needed producers, as related to the economy as a whole, caused Congress to direct its attention to the complexities of the milk industry as treated in the Agricultural Marketing Agreement Act of 1937.6
5
To effectuate the purposes of the Act,7 including an equitable distribution of the burden of surplus milk, the Secretary of Agriculture has been given power in certain circumstances to issue orders which are applicable, not to producers or retailers, but to producers as handlers.8 Here the Secretary acted pursuant to the statutory plan, but the authorized Order has not been issued since it must be predicated upon findings to be made by the Secretary,9 which he was here prevented from making because of the assailed injunction.
6
The order of the District Court must be reversed for reasons we shall state.
7
Aside from the fact that the Secretary's order has not been issued, and may never be issued, and that, accordingly, the complaint is premature,10 there would be scant gain if we chose to rest on that ground. Allowing the Secretary to complete his function under the Act, assuming he might make the required findings, would simply result in his doing so, whereupon, it may be supposed his order would be freshly attacked in a similar proceeding. Plain waste of time, effort and money plus possibly continued thwarting of the effectiveness of the legislative and administrative scheme would merely add up to frustration, surely not an end result to be encouraged by the action of the courts. For like reasons we pass over the point that the District Court failed to make the findings of fact and conclusions of law upon which the injunction was based.11 A remand on that score would advance nothing.
8
Rather, we conclude that this action may not be maintained at all.
9
In the first place, so far as handlers12 are concerned, including producers as handlers, the Act expressly provides that when the Secretary has promulgated his order, it becomes "final, if in accordance with law"13 subject to review only as the Act provides.14 Even then, upon such review, if there has been error, the court must remand for proceedings "in accordance with law," and the pendency of proceedings under the subsection noted "shall not impede, hinder, or delay the United States or the Secretary * * * from obtaining relief * * *" as provided in § 608a(6). There is no provision authorizing interference with the administrative plan. When we have in mind the purposes of the legislation, it is difficult to see how Congress in these respects could more effectively have expressed its will than is evident from a mere reading of the Act. If appellees were to be deemed handlers, they would be bound by the administrative remedy and the judicial review provisions of the Act. Appellees, viewed as producers, being unregulated, are given by the Act no greater status than the handlers who are regulated.
10
In the second place, appellees "to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public's interest in the administration of the law."15 Mere loss of income in consequence of the action of Government or economic disadvantage, by itself, constitutes damnum absque injuria which does not confer standing.16 Moreover, there is no certainty of any such loss, for Milk Order No. 4 prescribes merely minimum prices. Appellees realize fully that all this is so, as their amended complaint and their brief make clear.
11
They argue accordingly that they derive standing because of a deprivation of the benefit of the provisions17 of the Act entitling them to notice of and to attend hearings and because of the manner in which the Secretary conducted the required referendum. The denial of such rights is said to stem from a decision and findings lacking substantial support in the evidence and from a referendum which was unfair. In the trial court, appellees' counsel expressly conceded the findings which related to the proximity of the subject area "to Boston, to the transportation improvements, to the growth in population" of the affected towns. While challenging in argument yet other findings, appellees point to no portion of the hearings lacking in substantial evidence to support such findings. Absent a demonstration that the Secretary's action was in fact arbitrary, as alleged, we cannot deny a presumption of its validity.18 Moreover, the record makes indisputably clear that the Secretary acted, so far as he has been permitted to act, only after notice and public hearings in which all interested parties, including appellees, were participants, either in person or through counsel or both. We cannot doubt the validity of the findings.
12
Appellees beam their fire at the manner in which the referendum was conducted, particularly as to the voting plan. They seem to argue that voting must be limited to the local farmers and the suppliers of two handlers in the four towns proposed to be added to the Boston Milk Marketing Area. The short answer is that the Act contains no such requirement. The agent of the Secretary designated to conduct the referendum among the producers19 supplied for the record a detailed account of the procedure followed, comporting both with the requirements of and as permitted by the Act.20 We find no substance in this line of attack.
13
Referring further to the statutory rights already mentioned above, appellees finally urge "* * * since they allege that they have been deprived of those rights it cannot be argued that they have suffered no legal wrong." After thus beating the cow around the barn, appellees claim standing to vindicate a "legal wrong" because of language to be found in Stark v. Wickard.21 But there the Court pointed out: "It is because every dollar of deduction comes from the producer that he may challenge the use of the fund. The petitioners' complaint is not that their blended price is too low, but that the blended price has been reduced by a misapplication of money deducted from the producers' minimum price."22 We still come back to the proposition, as the Stark case points out,23 that absent "justiciable individual rights," (italics ours) the detriment complained of is damnum absque injuria.24 In short, the public interest is paramount.
14
"Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to the control."25
15
Here the Secretary has made the public interest findings contemplated by the Act. Even consumers as such have only a general interest in the execution of the law, and as previously noted, the proposed order by the very terms of the Act shall not be applicable to any producer in his capacity as such. Since it is clear that Congress has not "intended to create a statutory privilege protected by judicial remedies,"26 appellees lack a legal right. For the reasons given, they have demonstrated no legal wrong.27
16
It follows, we conclude, that the complaint should have been dismissed. The order of the District Court is reversed, and the case is remanded for further proceedings conformably to the views herein expressed.
17
Reversed and remanded.
Notes:
1
The association is known as Central Massachusetts Milk Producers' Association comprised of some 97 milk producers who market their milk in the towns of Framingham, Natick, Wayland and Weston which are proposed to be added to the Greater Boston Marketing Area
2
Milk Order No. 4, 7 C.F.R. 904 (1955)
3
7 C.F.R. 900 (1955)
4
Supra note 2; and see H. P. Hood & Sons v. United States, 1939, 307 U.S. 588, 593-594, 59 S. Ct. 1019, 83 L. Ed. 1478, for a description of the "blended" or weighted average price plan
5
Appellees here sold all but 3% of their milk at Class I rates although the industry must carry a daily supply of 15% to 20%. Boston "obtains about 90% of its fluid milk from states other than Massachusetts." H. P. Hood & Sons v. Du Mond, 1949, 336 U.S. 525, 526, 69 S. Ct. 657, 659, 93 L. Ed. 865
6
50 Stat. 246, as amended 7 U.S.C.A. §§ 601-659; some understanding of the intricacies of the problems may be gleaned from United States v. Rock Royal Co-op, 1939, 307 U.S. 533, 59 S. Ct. 993, 83 L. Ed. 1446 and Nebbia v. People of State of New York, 1934, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940
7
7 U.S.C.A. § 608b
8
As defined in § 608c of the Act, which includes associations of producers
9
7 U.S.C.A. § 608c (9); and see H. P. Hood & Sons v. United States, 1939, 307 U.S. 588, 59 S. Ct. 1019, 83 L. Ed. 1478
10
United Air Lines v. Civil Aeronautics Board, 1955, 97 U.S.App.D.C. 42, 228 F.2d 13, 15-16 and cases cited
11
Public Service Comm. of Wisconsin v. Wisconsin Tel. Co., 1933, 289 U.S. 67, 53 S. Ct. 514, 77 L. Ed. 1036; Mayo v. Lakeland Highlands Canning Co., 1940, 309 U.S. 310, 319, 60 S. Ct. 517, 84 L. Ed. 774
12
According to the complaint, appellee Schofield is President and appellee Adams is Secretary-Treasurer of Central Massachusetts Dairy Association, a voluntary association of milk producers. The action was commenced by the named appellees in "behalf of themselves and the other members of the Association who are similarly situated and of whom they are fairly representative." See 7 U.S.C.A. § 608c
13
7 U.S.C.A. § 608c(15) (A)
14
7 U.S.C.A. § 608c(15) (B). As to circumstances under which other relief may be available, see Stark v. Wickard, 1944, 321 U.S. 288, 308, 64 S. Ct. 559, 88 L. Ed. 733
15
Perkins v. Lukens Steel Co., 1940, 310 U.S. 113, 125, 60 S. Ct. 869, 876, 84 L. Ed. 1108
16
Kansas City Power & Light Co. v. McKay, 1955, 96 U.S.App.D.C. 273, 225 F.2d 924, 934, certiorari denied 1955, 350 U.S. 884, 76 S. Ct. 137; United Milk Producers of New Jersey v. Benson, 1955, 96 U.S.App.D.C. 227, 225 F.2d 527; and see generally, Stark v. Wickard, 1944, 321 U.S. 288, 64 S. Ct. 559, 88 L. Ed. 733
17
7 U.S.C.A. § 608c(3, 8, 9)
18
Pacific States Box & Basket Co. v. White, 1935, 296 U.S. 176, 185-186, 56 S. Ct. 159, 80 L. Ed. 138
19
As defined in Milk Order No. 4, as amended, and as proposed to be amended
20
Cf. H. P. Hood & Sons v. United States, supra note 4, 307 U.S. at pages 597-599, 59 S.Ct. at pages 1024-1025
21
1944, 321 U.S. 288, 64 S. Ct. 559, 88 L. Ed. 733
22
Id., 321 U.S. at pages 308-309, 64 S. Ct. at page 570
23
Id., 321 U.S. at page 310, 64 S.Ct. at page 571
24
Id., 321 U.S. at page 304, 64 S.Ct. at page 568; here was no "deduction of a sum to pay the United States a sales tax on milk sold." Id., 321 U.S. at page 303, 64 S.Ct. at page 567
25
Munn v. Illinois, 1877, 94 U.S. 113, 126, 24 L. Ed. 77
26
Stark v. Wickard, supra note 14, 321 U.S. at page 306, 64 S.Ct. at page 569
27
Cf. Tennessee Electric Power Co. v. T.V.A., 1939, 306 U.S. 118, 140, 59 S. Ct. 366, 83 L. Ed. 543; Alabama Power Co. v. Ickes, 1938, 302 U.S. 464, 479, 58 S. Ct. 300, 82 L. Ed. 374 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2774311/ | J-A31042-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.J., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: LUZERNE COUNTY
CHILDREN AND YOUTH SERVICES AND
GUARDIAN AD LITEM
No. 1038 MDA 2014
Appeal from the Decree entered May 27, 2014
In the Court of Common Pleas of Luzerne County
Orphans' Court at No: A-8132
BEFORE: BOWES, OTT, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 28, 2015
Luzerne County Children and Youth Services (Agency) and the
Guardian ad Litem for K.J. (Child) (collectively, “Appellants”) appeal from a
decree denying the Agency’s petition to terminate the parental rights of Q.R.
(Father) to Child. Upon review, we affirm.
Child is currently four years old. Her involvement with the courts
began on March 26, 2012, when the Agency filed dependency petitions
regarding her and her then-one-year-old brother, Z.J. Z.J. had been
admitted to the hospital with serious injuries: bleeding between his brain
and skull and a healing broken arm. To its petition, the Agency attached the
following allegations of dependency:
On March 23, 2012, [Z.J.] was admitted to Geisinger Danville,
from some facility in either Lackawanna [C]ounty or Luzerne
J-A31042-14
[C]ounty. [Z.J.] was admitted with bilateral retinal
hemorrhaging, bilateral subdural hematoma, and a healing right
humerus fracture. The natural parents indicate that [Z.J.’s]
injuries were caused by him getting hit by a toy, [thrown] by
this minor [C]hild.
Physicians at Geisinger indicate that the trauma is non-
accidental, and that the explanation provided by the natural
parents is not plausible to cause [Z.J.’s] injuries. The natural
parents are unwilling to explain the injuries[,] which are
consistent with facts, thereby placing this [C]hild in present
danger.
Dependency Petition, 3/27/12, at 5. The Agency obtained temporary
custody of the children. The children were placed in foster care, where they
remain to date. On May 25, 2012, the trial court adopted the
recommendations of a juvenile master, and adjudicated Child dependent. As
part of the dependency adjudication, the trial court incorporated a Service
Plan for Father.
The Service Plan provides the following reason for Father’s initial
referral:
[Z.J.] has bilateral retinal hemorrhages, bilateral subdural
hematomas, and an old right humerous [sic] fracture. At first,
[Mother] and [Father] were unable to provide a medically
plausible explanation for the injuries. [Mother] later admitted to
shaking [Z.J.] when he would not stop crying.
Master’s Recommendation for Adjudication and Disposition—Child
Dependent, 5/25/12, Attached Service Plan at B-1. The Service Plan lists
the parenting knowledge and mental health of both parents. Id. The
Service Plan called for the Agency to refer Father to a parenting class and
mental health evaluation, and provide supportive counseling. Id. at F-1 – F-
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3. Father was required to participate in counseling and receive a mental-
health evaluation. Id. at F-1 – F-3.
Shortly after Child’s placement, Mother confessed to police that she
caused the injuries to Z.J. Child Protective Services never investigated
Father and had no suspicion that he was involved in Z.J.’s abuse,
notwithstanding the Agency’s initial concerns. See N.T., 2/27/12, at 36-37.
Thereafter, dependency proceedings continued with required periodic
permanency review hearings before the juvenile master. On July 20, 2012,
the trial court adopted the master’s findings following the three-month
review hearing. Crucial to the trial court’s eventual decision regarding
termination, the July 20 order notes that Father lived in New York state, but
that he lacked legal immigration status at the time. Order and Master’s
Recommendations, 7/20/12, at 2 (unpaginated). As such, he was not
eligible to receive services. The order notes further that Father could not be
referred for Agency-provided services, because he lived out of state, but that
an interstate compact had been submitted. Id. at 10 (un-paginated).
On November 21, 2012, the trial court adopted the master’s findings
made following another permanency review hearing. The master found that
Father had not complied with the permanency plan or alleviated the
circumstances leading to Child’s placement, because he had not engaged in
court-ordered services. Order, 11/21/12, at 1-2. The trial court adopted
similar findings following a March 18, 2013 permanency review hearing.
-3-
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In October 2013, the Agency petitioned the trial court to change the
goal for Child from reunification with her parents to adoption. The Agency
also filed petitions to terminate Mother’s and Father’s parental rights.
Regarding Father, the Agency averred he had failed to remedy the
conditions causing the placement by not addressing his mental health issues,
submit to random drug tests,1 or acknowledge the severity of Z.J.’s injuries.
Petition for Termination of Father’s Parental Rights, 10/25/13, ¶ 11. The
Agency also contended Father was not a placement resource at the time of
Child’s placement, and he had not remedied that deficiency.
After a continuance, the trial court held a hearing on February 27,
2014 on the Agency’s goal-change and termination petitions. At the
beginning of the hearing, Father revealed that he recently discovered that he
is not Z.J.’s natural father. Therefore, he voluntarily relinquished his
parental rights to Z.J. For her part, Mother voluntarily relinquished her
parental rights to both children.
At the hearing, the evidence showed that Father had limited resources,
and his lack of legal immigration status hindered his ability to receive
services. In fact, two attempts to establish interstate compacts with New
York failed, in part because of Father’s lack of legal residency. See Trial
____________________________________________
1
It is unclear why the Agency required Father to undergo drug testing. At
the termination of parental rights hearing, the Agency’s caseworker admitted
the Agency had no concerns that Father ever was using illegal drugs or
abusing alcohol. N.T., 2/27/14, at 48-49.
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Court Rule 1925(a) Opinion, 5/27/14, at 4. About ten months after Child’s
placement, Father became a U.S. citizen, which allowed him to apply for
Temporary Assistance for Needy Families (TANF),2 and provide public
assistance and medical coverage to Child.
The parties agreed to incorporate the dependency proceedings into the
record. To meet their burden, Appellants procured the testimony of Jessica
Sprow, an Agency caseworker; Sarah Thompsen, a mental-health counselor;
and Paul Durang, a family development specialist with Family Service
Association of Northeast Pennsylvania. Sprow testified that Child was placed
in foster care because of the injuries sustained by Z.J. and the fact that
neither Mother nor Father gave a medically plausible explanation for those
injuries. N.T., 2/27/14, at 17. Sprow also noted Father’s mental-health
issues, and that he missed two urinalysis appointments—despite admitting
that Father had tested negative during two other drug screening and the
Agency had no concerns that Father was using illegal drugs. Id. at 22-30,
48-49. Sprow also detailed problems setting up services for Father because
he lived in New York with his mother. Id. at 26-27, 42-45. Finally, Sprow
noted that during supervised visits, Father paid more attention to Z.J.—who
has Shaken Baby Syndrome—than to Child. Id. at 31-35, 51-52.
____________________________________________
2
TANF is a federal program that provides block grants to states to, among
other things, assist needy families. See 42 U.S.C. §§ 601-19.
-5-
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Thompsen testified that Father suffers from anxiety and showed
indicators of narcissistic traits. Id. at 73-78. As a result, she requested that
Father seek treatment from a psychiatrist. Id. at 79-80. On cross-
examination, she stated that Father’s mental-health issues might interfere
with his ability to parent, but that therapy, or possibly medication, might be
helpful. Id. at 81-83.
Durang testified as to his involvement with Father in the parenting
program. Over ten months, Father completed 13 out of 15 lessons
regarding parenting skills, but was discharged from the program for lack of
progress. Id. at 89-90. Corroborating Sprow’s testimony, Durang testified
that Father often paid more attention to Z.J. than to Child during supervised
visits. Id. at 94-97, 156-58.
Following the conclusion of testimony, the trial court took the goal-
change and termination requests under advisement. On March 12, 2014,
the trial court entered an order changing the goal for Child to adoption. On
May 27, 2014, the trial court issued an opinion, which it termed a
“Memorandum Issued Pursuant to Pa.R.A.P. 1925(a)” denying the petition to
terminate Father’s parental rights to Child.
Following the trial court’s decision, Appellants moved for
reconsideration. To their motion, they attached the March 12, 2014
dependency order changing the goal to adoption. In response, Father,
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J-A31042-14
averring that he had never been served with the goal-change order, moved
to reconsider the goal-change order.3 The trial court vacated the March 12
order, later admitting it had signed that order—which the Agency prepared—
in error. Trial Court Supplemental Rule 1925(a) Opinion, 7/7/14 2 n.1. The
trial court refused, however, to reconsider its order denying Appellant’s
termination petition. This appeal followed.
Before this Court, Appellants raise six claims of error. However, at the
core, Appellants’ appeal can be encapsulated into one main issue and two
subsidiary issues. Appellants’ main argument is:
I. Did the trial court err in finding that [the Agency] failed to
meet its burden by clear and convincing evidence for
Father’s termination of parental rights [under 23 Pa.C.S.A.
§ 2511(a)(2), (5), and (8)]?
____________________________________________
3
The record supports Father’s contention. In fact, no record evidence
exists regarding service of any orders entered in the dependency
case. The orders themselves contain merely stamps reflecting filing. There
is nothing written or stamped on the orders reflecting service, and no
certificates of service by the clerk of courts exist. The docket contains only
evidence of the orders’ filing.
The Rules of Juvenile Court Procedure require the clerk of courts (or the
equivalent officer) to serve court orders and notices on the litigants, and to
keep a record of the “date and manner of service of the order or court
notice.” Pa.R.J.C.P. 1166(C)(8), 1167(B). That was not done here. This
Court is troubled by the lack of any record evidence showing the clerk of
courts served the dependency court orders on the parties. Amplifying our
concern is the fact that Father was never served with the goal-change
order—an order that affected his parental rights.
-7-
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Appellants’ Brief at 3 (capitalization removed). The two subsidiary
arguments are Appellants’ claims that (1) the trial court abused its discretion
in limiting the presentation of evidence at the termination hearing; and (2) a
claim that the trial court assumed facts not of record. Appellant’s other
arguments are subsumed within its first claim. We will address this appeal
accordingly.
In cases involving the termination of parental rights, our scope of
review is broad and comprehensive, though our standard of review is
narrow. In re P.S.S.C., 32 A.3d 1281, 1285 (Pa. Super. 2011); In re
Adoption of M.R.B., 25 A.3d 1247, 1251 (Pa. Super. 2011). We must
accept the factual findings of the lower court that are supported by the
record. In re T.S.M., 71 A.3d 251, 267 (Pa. 2013). We may reverse only if
the lower court erred as a matter of law or abused its discretion. Id.
In termination proceedings, the petitioner bears the burden by clear
and convincing evidence. Adoption of M.R.B., 25 A.3d at 1251.
The standard of clear and convincing evidence is defined as
testimony that is so clear, direct, weighty and convincing as to
enable the trier of fact to come to a clear conviction, without
hesitance, of the truth of the precise facts in issue. The trial
court is free to believe all, part, or none of the evidence
presented and is likewise free to make all credibility
determinations and resolve conflicts in the evidence. If
competent evidence supports the trial court’s findings, we will
affirm even if the record could also support the opposite result.
Id. (internal quotations and citations omitted).
-8-
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In this case, Appellants argue the trial court erred in failing to
terminate Father’s parental rights under 23 Pa.C.S.A. § 2511(a)(2), (5), and
(8); and (b), which provide:
(a) General rule.--The rights of a parent in regard to a child
may be terminated after a petition filed on any of the following
grounds:
(2) The repeated and continued incapacity, abuse, neglect
or refusal of the parent has caused the child to be without
essential parental care, control or subsistence necessary
for his physical or mental well-being and the conditions
and causes of the incapacity, abuse, neglect or refusal
cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency for a period of at least six months, the
conditions which led to the removal or placement of the
child continue to exist, the parent cannot or will not
remedy those conditions within a reasonable period of
time, the services or assistance reasonably available to the
parent are not likely to remedy the conditions which led to
the removal or placement of the child within a reasonable
period of time and termination of the parental rights would
best serve the needs and welfare of the child.
(8) The child has been removed from the care of the
parent by the court or under a voluntary agreement with
an agency, 12 months or more have elapsed from the date
of removal or placement, the conditions which led to the
removal or placement of the child continue to exist and
termination of parental rights would best serve the needs
and welfare of the child.
(b) Other considerations.--The court in terminating the rights
of a parent shall give primary consideration to the
developmental, physical and emotional needs and welfare of the
child. The rights of a parent shall not be terminated solely on
the basis of environmental factors such as inadequate housing,
furnishings, income, clothing and medical care if found to be
beyond the control of the parent. With respect to any petition
filed pursuant to subsection (a)(1), (6) or (8), the court shall not
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consider any efforts by the parent to remedy the conditions
described therein which are first initiated subsequent to the
giving of notice of the filing of the petition.
23 Pa.C.S.A. § 2511 (other sections omitted). Termination of parental rights
is proper where any one subsection of § 2511(a) is satisfied, along with the
considerations of § 2511(b). In re Z.P., 994 A.2d 1108, 1117 (Pa. Super.
2010). Therefore, we must examine whether the trial court abused its
discretion in not terminating Father’s parental rights to Child under each of
the three subsections at issue here, § 2511(a)(2), (5), and (8). We address
Subsection (2) first. Then, we address Subsections (5) and (8) together.
“The grounds for termination of parental rights under section
2511(a)(2) are not limited to affirmative misconduct. The grounds include
acts of refusal as well as an incapacity to perform parental duties. Parents
are required to make diligent efforts towards the reasonably prompt
assumption of full parental responsibilities.” In re A.L.D., 93 A.3d 888,
895-96 (Pa. Super. 2014) (internal citations omitted). A party seeking
termination under § 2511(a)(2) must demonstrate:
(1) repeated and continued incapacity, abuse or neglect;
(2) that causes the child to be without essential parental care,
control, or subsistence; and
(3) the causes of the incapacity, abuse, or neglect cannot or
will not be remedied.
See id. at 896 (quoting In re Geiger, 331 A.2d 172, 173-74 (Pa. 1975)).
Regarding § 2511(a)(2), the trial court found Appellants failed to carry
their burden:
- 10 -
J-A31042-14
In the case at bar, the evidence adduced at trial does not
support the contention that Father has displayed a repeated and
continued incapacity to perform parental duties for [Child]. The
conditions which gave rise to placement involved abuse by
Mother. Father has displayed a commitment to reunification
with his daughter in that he has worked toward obtaining his
citizenship status, which therefore enabled him to provide
medical assistance for his [C]hild[,] and enables him to provide
housing assistance for his [C]hild. He visits with his [C]hild[,]
and [C]hild calls him “other daddy.” [N.T., 2/27/14, at 32.]
Father did not receive an entirely favorable recommendation
from his parenting education provider; however, the notes of
testimony reveal that the testimony of Mr. Durang and Ms.
Sprow contradict [sic] with regard to bonding between [C]hild
and [F]ather. [Id. at 157-58, 205-06.] Based upon the evidence
presented, this court finds that the Agency did not meet its
burden[,] by clear and convincing evidence, that parental rights
should be terminated [under § 2511(a)(2)].
Trial Court Rule 1925(a) Opinion, 5/27/14, at 4-5.
Appellants’ argument mainly disputes the trial court’s weighing of
evidence, which is the trial court’s role. We are not in a position to
reconsider factual findings supported by the record. Moreover, though
Appellants note that Father never completed his court-order services, they
fail to note that (1) the Agency had no suspicion that Father was using illegal
drugs; or (2) that Father completed 13 out of 15 lessons with Durang. As
the trial court stated, termination of parental rights requires proof by clear
and convincing evidence. Id. at 5-6. We find no abuse of discretion in its
finding that Appellants did not carry their burden regarding § 2511(a)(2).
Termination under § 2511(a)(5) and (8) is similar. Each subsection
concerns termination of parental rights to a child who has been placed under
the care of an agency.
- 11 -
J-A31042-14
To satisfy the requirements of Section 2511(a)(5), the moving
party must produce clear and convincing evidence regarding the
following elements: (1) the child has been removed from
parental care for at least six months; (2) the conditions which
led to the child’s removal or placement continue to exist; (3) the
parents cannot or will not remedy the conditions which led to
removal or placement within a reasonable period time; (4) the
services reasonably available to the parents are unlikely to
remedy the conditions which led to removal or placement within
a reasonable period of time; and (5) termination of parental
rights would best serve the needs and welfare of the child.
In re B.C., 36 A.3d 601, 607 (Pa. Super. 2012) (citing In re Adoption of
M.E.P., 825 A.2d 1266, 1273-74 (Pa. Super. 2003)).
Similarly, section (a)(8):
sets a 12–month time frame for a parent to remedy the
conditions that led to the children’s removal by the court. Once
the 12–month period has been established, the court must next
determine whether the conditions that led to the child[ren]’s
removal continue to exist, despite the reasonable good faith
efforts of [the agency] supplied over a realistic time period.
Termination under Section 2511(a)(8) does not require the court
to evaluate a parent’s current willingness or ability to remedy
the conditions that initially caused placement or the availability
or efficacy of [agency] services.
In re T.M.T., 64 A.3d 1119, 1125-26 (Pa. Super. 2013) (quoting In re
K.Z.S., 946 A.2d 753, 759 (Pa. Super. 2008)).
Here, it is undisputed that Child has been under the Agency’s care for
more than 12 months. The trial court found that the condition leading to the
placement of Child—the abuse of Z.J.—no longer exists because Mother
admitted to committing the abuse and Father has been cleared of any
involvement. Appellants argue that the trial court erred in failing to take
- 12 -
J-A31042-14
into account the service plan attached to the dependency orders. We find
Appellants’ argument unpersuasive.
The record supports the trial court’s determination that Child was
originally placed because of the injuries to her half-brother, Z.J. The order
permitting the Agency to take custody of Child, the order adjudicating Child
dependent, and the Agency caseworker’s testimony at the termination
hearing show that the condition giving rise to the placement of Child was
the abuse of Z.J. Mother initially accepted responsibility for Z.J.’s abuse
(but later recanted), and Father has been cleared. As such, this case is not
analogous to In re I.J., 972 A.2d 5, 11-12 (Pa. Super. 2008),4 because
there, the conditions leading to placement (the mother’s incapacity)
continued to exist. Appellants fail to acknowledge the reason for Child’s
placement. Though a service plan may have been developed as part of that
placement, it was not the reason that the Agency took custody of Child.
Because the conditions leading to Child’s placement no longer exist, the trial
____________________________________________
4
In I.J., the agency took custody of the children because of the mother’s
mental health issues, physical limitations, and inability to care for two of her
other children, who had been adjudicated dependent and were living with a
foster care family. I.J., 972 A.2d at 7-8. We held the trial court erred in
considering the mother’s attempts to remedy the conditions leading to
placement, which is not a factor to consider under § 2511(a)(8). Id. at 11-
12. We stated, “the trial court did not find that either Mother or Father had
remedied the conditions that led to removal of I.J.” Id. at 12. In contrast,
the trial court here found the conditions leading to placement of Child—the
abuse of Z.J. by Mother—had been remedied.
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court did not abuse its discretion in refusing to terminate parental rights
under § 2511(a)(5) or (8), and we need not address the remaining factors
for application of those subsections.
Appellants cite In re J.T., 817 A.2d 505 (Pa. Super. 2003), to support
their proposition that parental rights may be terminated under § 2511(a)(5)
or (8) notwithstanding the alleviation of the condition giving rise to
placement if another reason supports continued placement of the child.
That is not what we held in J.T. Rather, we merely reaffirmed the plain
meaning of § 2511(a)(8): that alleviatory steps taken by the parent
(inability to parent and inadequate housing in that case) are irrelevant under
§ 2511(a)(8). That subsection requires only that the conditions leading to
placement continue to exist. Id. Thus, J.T. actually supports our ruling
here, because the conditions leading to Child’s placement (Mother’s abuse of
Z.J.) do not continue to exist.
We reemphasize that this Court is not the proper forum to argue that
witnesses were not credible. Appellants insinuate that Father was somehow
at fault for Z.J.’s injuries, but they point to no supporting evidence or trial
court findings. Moreover, Appellants mistakenly rely on the trial court’s
findings adopted in the March 12, 2014 goal-change order. The trial court
vacated that order, having entered it in error.
We next briefly address Appellants’ argument regarding the trial
court’s limiting of evidence of Father’s progress in services relating only to
Z.J. “The admission or exclusion of evidence . . . is within the sound
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discretion of the trial court.” In re K.C.F., 928 A.2d 1046, 1050 (Pa.
Super. 2007); see also Pa.R.E. 611 (granting trial courts authority to
exercise reasonable control over the examination of witnesses and
presentation of witnesses). We have some difficulty understanding
Appellants’ argument, because they cite no supporting authority, and
instead merely claim the excluded evidence was “relevant.” It appears
Appellants contend this evidence was pertinent to show Father’s lack of
parenting ability. We find no abuse of discretion by the trial court, especially
given that Appellants have provided no authority supporting their argument.
Moreover, we note that the provision of services to Father, while pertinent to
his parenting ability, did not concern whether the conditions leading to
placement continued to exist under § 2511(a)(5) and (8).
Finally, we address Appellants’ argument that the trial court “assumed
facts not of record.” We have been unable to decipher Appellants’
argument. The difficulty is compounded by the insufficiency of Appellants’
concise statement on this matter. Indeed, the concise statement was so
imprecise that the trial court was forced to guess what Appellants were
arguing. See Trial Court Supplemental Rule 1925(a) Opinion, 7/7/14, at 16-
17. Again, given that Appellants cite no authority to support their vague
proposition, we find no merit to this argument.5
____________________________________________
5
Because no statutory grounds for termination existed under 23 Pa.C.S.A.
§ 2511(a), the trial court did not need to address the best interests of Child
(Footnote Continued Next Page)
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Decree affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
_______________________
(Footnote Continued)
under § 2511(b). See In re M.T., 101 A.3d 1163, 1178-79 (Pa. Super.
2014) (en banc) (noting the analysis under § 2511 is bifurcated, and a court
must first determine that statutory grounds exist for termination under
§ 2511(a)).
- 16 - | 01-03-2023 | 01-29-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2499632/ | 120 F.Supp.2d 78 (2000)
Kennieth F. THOMPSON, Plaintiff,
v.
THE CAPITOL POLICE BOARD, Defendant.
No. CIV.A. 97-2624(RMU).
United States District Court, District of Columbia.
October 26, 2000.
*79 Lolita James Martin, Martin & James, Bowie, MD, LaJuan Martin, Washington, DC, for Plaintiff.
Jean M. Manning, Toby R. Hyman, Rebecca Womeldorf, Erica A. Watkins, Michael J. Yoch, U.S. Senate, Office of Chief Counsel for Employment, Washington, DC, for Defendant.
MEMORANDUM OPINION
URBINA, District Judge.
GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This matter comes before the court on the defendant's motion for summary judgment. The plaintiff, Kennieth F. Thompson ("the plaintiff" or "Mr. Thompson") brought this suit for damages under the Congressional Accountability Act ("CAA"), 2 U.S.C. §§ 1301-1438. He claims that the defendant, the United States Capitol Police ("the defendant" or "the Capitol Police"), discriminated against him on the basis of his race. Specifically, the plaintiff, who is African-American, alleges that the defendant fired him from his position as a Capitol Police officer when he was injured, while allowing similarly situated white officers to retain their jobs. Additionally, the plaintiff asserts that the defendant demonstrated a pattern and practice of racial discrimination against him or African-American employees throughout his employment.
The defendant moves for summary judgment based on lack of subject-matter jurisdiction.[1] The defendant claims that the plaintiff failed to exhaust his administrative remedies by failing to request counseling by the Office of Compliance within 180 days of the alleged violations, as required by the CAA. Thus, the defendant argues that the plaintiff's claims are time-barred. The plaintiff counters that the doctrine of equitable tolling should allow his claim to proceed. For the reasons that follow, the court holds that because the plaintiff presents no facts that would justify applying the doctrine of equitable tolling, his claims are time-barred. Accordingly, the court concludes that the plaintiff has failed to exhaust his administrative remedies, and will grant the defendant's motion for summary judgment. Lastly, because the court holds that it lacks subject-matter jurisdiction, the court need not address the defendant's remaining arguments.
II. BACKGROUND
Mr. Thompson, an African-American man, worked for the United States Capitol Police from 1974 until February 1997, when his employer officially terminated him. See Third Amended Complaint ("Compl.") at 2, 4-5. At the time of Mr. Thompson's termination, he held the rank of Administrative Sergeant. See id. at 2. During the plaintiff's employment with the Capitol Police, he suffered three on-the-job injuries. The first injury occurred in February 1979, when Mr. Thompson hurt his knee while pushing a scout car in the snow. See Defendant's Statement of Undisputed *80 Material Facts in Support of Its Motion For Summary Judgment ("Def.'s Statement") at 4. The second injury occurred in 1985 when a tourist drove into Mr. Thompson's scout car, injuring his left hand and knee. See id. The third injury occurred during a police demonstration in April 1993 when Mr. Thompson ruptured a tendon in his right foot. See Compl. at 7. As a result of these injuries, the plaintiff had several surgical operations, and went on both non-duty status and restricted-duty status at various times. See Def.'s Statement at 4.
On May 17, 1996, the plaintiff was diagnosed with degenerative knee problems. The plaintiffs doctor concluded that with the restrictive range of motion and limitations to the knee, Mr. Thompson could no longer safely continue regular police duties. The doctor diagnosed the plaintiff's knee problems as permanent, and informed Mr. Thompson that nothing more could be done. See Def.'s Statement at 4.
In June 1996, Sergeant Wendy Clark of the Capitol Police spoke to the plaintiff about his options under United States Capitol Police General Order 2030, which states in part, "Members/employees who are unable to return to a Full Unrestricted Duty Status after a one year period in Non-Duty and/or Restricted Duty status should apply for Disability Retirement, Workers' Compensation, or Time Retirement; or they may be separated from the Department without benefits." Plaintiff's Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 4. On June 19, 1996, Mr. Thompson submitted a memorandum addressed to Chief Gary Abrecht requesting a transfer to the Office of Workers' Compensation Programs' (OWCP) temporary rolls. See Def.'s Statement at 5. Acknowledging that his injuries were work-related, the Capitol Police granted Mr. Thompson's transfer to the OWCP rolls. See Mot. for Summ. J., Ex. 2.
Next, in a memorandum dated September 25, 1996, Deputy Chief Fentress A. Hickman informed Mr. Thompson that he would be transferred to the OWCP rolls after exhausting his accrued annual and compensatory leave, and that he would be placed on terminal leave effective October 1, 1996. See Def.'s Statement at 6. Mr. Thompson understood that he would be separated from the rolls of the Capitol Police after he exhausted his terminal leave in February 1997. See id.; Pl.'s Opp'n at 5.
On April 1, 1997, the plaintiff requested counseling from the United States Capitol Police Board's Office of Compliance, alleging that he had suffered race-based discrimination. The plaintiff claimed that white officers who had disabilities that were similar to or more severe than his were accommodated and allowed to remain employed at full-duty status. The plaintiff also claimed that one of the reasons the Capitol Police fired him was a racially motivated desire to prevent his participation in the 1996 promotional process for Lieutenant. See Def.'s Statement at 7. Furthermore, the plaintiff alleges that throughout his employment with the Capitol Police, he encountered a pattern of race-based discrimination. See Compl. at 5.
In his opposition to the defendant=s motion for summary judgment, Mr. Thompson points to several occasions in which he claims he suffered discrimination during his career. See Pl.'s Opp'n at 10-16. First, the plaintiff alleges that the defendant discriminated against him sometime in the 1970s when he applied for a position in the Firearms Section. See id. at 10. According to the plaintiff, he did not initially receive an interview, and he only subsequently received one after he spoke to a Congressman. Id. at 10. Mr. Thompson alleges that when he went for the interview, the interviewer stated something to the effect: "So you are Thompson. You are probably not qualified, but we'll do this interview." See Def.'s Statement at 1. Second, the plaintiff claims that in the mid to late 1970s, he took an exam to become a crime-scene search officer. According to *81 Mr. Thompson, after he took the exam, his Captain, George Salyer, told Mr. Thompson that he thought that Mr. Thompson had received one of the highest scores on the exam, if not the highest. Subsequently, though, the crime-scene unit neither contacted the plaintiff about his exam results nor considered him for the position. See Def.'s Statement at 2.
Third, the plaintiff claims that at some point when he was a member of the patrol division, he was required to split his weekend days off with a white female officer who had less seniority than he did. See id. Fourth, the plaintiff alleges that after he had scored well on the exam to become a Detective, a supervisor disciplined him without cause to prevent him from being promoted. After speaking to the Chief of the Capitol Police about this situation, the plaintiff received a promotion to the rank of Detective. See Def's Statement at 2-3.
Fifth, Mr. Thompson alleges that during the time that he was a Sergeant between 1991 and 1995, his supervisors prevented him from disciplining white officers. The plaintiff claims that whenever he disciplined a white officer, his supervisors would not approve his actions. See Def.'s Statement at 3. Sixth, the plaintiff charges that sometime between 1993 and 1995, his Lieutenant's recommendation that he be named Sergeant of the Month was rejected, despite the fact that the Capitol Police had given this honor to other sergeants who had performed substantially less work. See id.
On June 6, 1997, Mr. Thompson requested mediation from the Office of Compliance in his dispute with the Capitol Police. The Office of Compliance requires both parties in a mediation process to sign a "Mediation and Confidentiality Agreement." For reasons that are not clear from the record, the defendant refused to sign the agreement. Consequently, the mediator informed both parties that the mediation could not go forward. See Pl.'s Opp'n at 20.
On November 6, 1997, the plaintiff filed his complaint, which he has since amended three times. The third amended complaint contains two counts asserting claims for race-based and gender-based discrimination in violation of sections 201(a)(1) and (3) of the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1311(a)(1) and (3). See Compl. at 1. After settlement negotiations failed, the defendant filed a motion for summary judgment. The plaintiff filed his opposition, and the defendant filed its reply. For the reasons that follow, the court will grant the defendant's motion for summary judgment.
III. ANALYSIS
A. Legal Standard
The defendant brings this motion for summary judgment, arguing that the court should dismiss because it lacks subject-matter jurisdiction since the plaintiff failed to exhaust his administrative remedies. In reviewing a motion to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the court must accept the complaint's well-pled factual allegations as true and draw all reasonable inferences in the plaintiff's favor. See, e.g., Pitney Bowes v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C. 1998) (Urbina, J.). While the court must accept all well-pled allegations of fact, allegations that are overbroad and unsupported by specific factual averments are insufficient to state a claim upon which relief can be granted. See DeVoren Stores Inc. v. Philadelphia, 1990 WL 10003, *1 (E.D.Pa.1990); Crowder v. Jackson, 527 F.Supp. 1004, 1006 (W.D.Pa.1981).
On a motion to dismiss pursuant to Rule 12(b)(1), the plaintiff bears the burden of persuasion to establish subject-matter jurisdiction by a preponderance of the evidence. See Darden v. United States 18 Cl.Ct. 855, 859 (Fed.Cl.1989). In determining whether the plaintiff has met this burden, the court is sometimes required to look to matters outside of the pleadings. *82 See Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442 (D.C.Cir.1989).
B. The Plaintiff Filed His Administrative Complaint Late
The Congressional Accountability Act subjects congressional employers, such as the Capitol Police, to potential liability for racial discrimination under Title VII of the Civil Rights Act of 1964. See 2 U.S.C. §§ 1401-1416. As a prerequisite to filing a claim in federal court, a party who believes that he or she has suffered discrimination must file a request for counseling with the Office of Compliance, a federal agency charged with administering certain aspects of the CAA. The CAA states that this request for counseling must be filed "not later than 180 days after the alleged violation." See 2 U.S.C. § 1402(a).
In the instant case, the parties do not dispute that the plaintiff filed a claim with the Office of Compliance on April 1, 1997, 188 days after Deputy Chief Fentress notified him of his termination. See Pl.'s Opp'n at 6; Mot. for Summ. J. at 4. The plaintiff, however, claims that he was going to take an exam for promotion to Lieutenant on October 5, 1996, and that since his termination prevented him from taking the exam, the fact that he could not take the Lieutenant's exam constituted a separate act of discrimination that fell within the limitations period.
The court disagrees. The Supreme Court has held that in employment discrimination cases, "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful." Delaware State College v. Ricks, 449 U.S. 250, 258, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). In Ricks, Delaware State College denied the plaintiff tenure. The college then gave him a one-year "terminal" contract. After the one-year terminal contract expired, Mr. Ricks brought a claim of discrimination based on national origin. He argued that the limitations period should begin to run upon the expiration of the terminal contract. The Supreme Court ruled that the limitations period began to run at the moment the college told Mr. Ricks that he had not received tenure:
It appears that termination of employment at Delaware State College is a delayed, but inevitable consequence of the denial of tenure. In order for the limitation periods to commence with the date of discharge, Ricks would have to allege and prove that the manner in which his employment was terminated differed discriminatorily from the manner in which the College terminated other professors who also had been denied tenure.
Id. at 257-58, 101 S.Ct. 498.
In the instant case, Mr. Thompson would have to prove that he was not allowed to take the exam because of race-based discrimination and that other employees whom the Capitol Police had terminated were allowed to take the Lieutenant's exam. On the contrary, the plaintiff merely alleges that the Capitol Police discriminated against him because his wrongful termination prevented him from taking the exam. This can only be seen as a "delayed, but inevitable consequence" of his termination. See Ricks, 449 U.S. at 257-58, 101 S.Ct. 498. Thus, the refusal to allow the plaintiff to take the Lieutenant's exam does not constitute a separate act of discrimination independent of the plaintiff's termination itself. Accordingly, the last possible act of discrimination B the issuance of the plaintiff's termination notice B occurred on September 25, 1996.
The plaintiff raises a second argument in his attempt to rebut the defendant's statute of limitations defense. In short, the plaintiff argues that the defendant has engaged in a continuing violation of the CAA. See, e.g., Guerra v. Cuomo, 176 F.3d 547, 551 (D.C.Cir.1999) (stating that "The continuing violations doctrine applies in the civil rights context in order to avoid statute of limitations problems when an employer commits repeated, but *83 distinct, discriminatory acts, some inside and some outside of the limitations period.") (citing Bazemore v. Friday, 478 U.S. 385, 394-95, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986)). In the very case the plaintiff cites to support this proposition, however, the court states, "A continuing violation may be established by demonstrating a discriminatory policy which applies to a group of employees or by showing a series of related acts against a single individual, one or more of which falls within the limitations period." Counts v. Reno, 949 F.Supp. 1478, 1484 (D.Haw.1996). The plaintiff does not allege any other discriminatory acts that occurred within the limitations period, except for the failure to take the Lieutenant's exam. Because the court has determined that this exclusion did not constitute a separate discriminatory act from the plaintiff's termination that led to this result, the plaintiff cannot rely on a continuing violation theory to sustain jurisdiction.
C. Equitable Tolling Does Not Apply
The Supreme Court has held that the filing of a timely charge of discrimination is not a jurisdictional prerequisite to a Title VII action. Rather, it is a requirement that is subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). In Zipes, the Supreme Court noted that the portion of Title VII specifying the time for filing charges appears in a separate provision from the portion granting jurisdiction for actions brought under it. Furthermore, the Court observed that the section regarding the timely filing of claims does not speak in jurisdictional terms or refer in any other way to the jurisdiction of the district courts. See id. at 394, 102 S.Ct. 1127; cf. Carlyle Towers Condominium Ass'n Inc. v. Federal Deposit Ins. Corp., 170 F.3d 301, 308 (2d Cir.1999) (holding FDIC-imposed time limits were subject to equitable tolling for similar reasons as in Zipes). Similarly, the CAA provision that specifies a time for filing charges appears in a separate section from the one covering jurisdiction, and does not make any mention of jurisdiction. See 2 U.S.C. § 1402(a), 2 U.S.C. § 1408(a).
Although the court holds that equitable tolling principles do apply to the CAA, the D.C. Circuit has held that the court's power to toll the statute of limitations "will be exercised only in extraordinary and carefully circumscribed instances." See Mondy v. Secretary of the Army, 845 F.2d 1051, 1057 (D.C.Cir.1988). In this case, the plaintiff cites Cada v. Baxter Healthcare Corp., 920 F.2d 446 (7th Cir.1990), for the proposition that equitable tolling can overcome a statute-of-limitations defense if the plaintiff cannot obtain vital information bearing on the existence of the claim. See Pl.'s Op'n at 17. The plaintiff, however, fails to assert what "vital information" he would want or would need to help him survive the statute-of-limitations defense. Accordingly the court does not find this to be an "extraordinary and carefully circumscribed" instance suitable for equitable tolling. The court holds that equitable tolling does not apply in this case.
One final point on the statute-of-limitations issue merits discussion. Although the plaintiff only indirectly raised this theory, the defendant did not waive its limitations defense by appearing at the mediation requested by the plaintiff. In Howell v. Department of the Army, 975 F.Supp. 1293 (M.D.Ala.1997), the court rejected a theory that the defendant had waived its statute-of-limitations defense when it entered into settlement negotiations with the plaintiff. The court held that "the willingness of the Army to work with Howell towards a mutually satisfactory and swift resolution of his claim in no way prejudiced his rights or deprived him of any advantage or opportunity he would have enjoyed. The negotiation ... left Howell in no worse a position than if the Army had originally rejected his claim as time-barred." Id. at 1302. Similarly, in this case, the only action that the defendant took was to attend the initial mediation session. An appearance at a mediation session did not prejudice the rights of *84 the plaintiff, nor did it deprive him of any opportunity he would have enjoyed. Thus, the defendant's participation in mediation did not waive its limitations defense.
D. The Plaintiff Failed to Exhaust His Administrative Remedies
Accordingly, the plaintiff cannot rely on equitable tolling to overcome the statute-of-limitations defense. Because the plaintiff filed his request for counseling 188 days after the defendant notified him of his termination, the court concludes that the plaintiff failed to exhaust his administrative remedies. In sum, the court holds that it lacks subject-matter jurisdiction over this case.
IV. CONCLUSION
For all of these reasons, the court grants the defendant's motion for summary judgment. An order directing the parties in a fashion consistent with this Memorandum Opinion is separately and contemporaneously issued this 26th day of October 2000.
NOTES
[1] Although the defendant styles its motion as one for summary judgment, the gravamen of its motion is a motion to dismiss for failure to exhaust administrative remedies. Accordingly, the court will treat the defendant's motion as a motion to dismiss for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See 5A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (1990) (noting that in these instances courts often "treat the motion for summary judgment as a `suggestion' of lack of subject matter jurisdiction..."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040521/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2525
___________
Craig Trussell, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Michael Bowersox, *
*
Defendant - Appellee. *
___________
Submitted: January 9, 2006
Filed: May 9, 2006
___________
Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.
___________
JOHN R. GIBSON, Circuit Judge.
Craig Trussell appeals from the denial of his petition for habeas corpus. He
claims that the state sentencing court violated the terms of his plea agreement and his
due process rights when it filed an amended sentence and judgment outside of his
presence. The district court1 dismissed his habeas petition as barred by the one-year
statute of limitations provided by the Anti-Terrorism and Effective Death Penalty Act
of 1996. 28 U.S.C. § 2244(d)(1). In the alternative, the district court held that his
petition failed on the merits. We affirm on the merits.
1
The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
I.
On April 11, 2002, Trussell pled guilty in the Circuit Court of Platte County,
Missouri to statutory rape in the first degree under Mo. Rev. Stat. § 566.032 and to
three counts of statutory sodomy in the first degree under Mo. Rev. Stat. § 566.062.
In his "Petition to Enter a Plea of Guilty," he stated that the government had agreed
to recommend a "maximum cap of 15 years for all charges" and that Trussell would
be able to present "any evidence to court for probation or less than 15 years cap." At
the plea hearing, the court emphasized that regardless of this agreement, the
determination of an appropriate sentence would be within the court's discretion and
the statutory maximum sentence for the counts pleaded to was life imprisonment.
Trussell told the judge that he understood and still wished to plead guilty.
Trussell's presentence report recommended that he be denied probation at the
time of sentencing, but that he be placed in the Department of Corrections Sex
Offenders Assessment Unit for a 120-day probation release callback under Mo. Rev.
Stat. § 559.115. At sentencing, the government recommended that Trussell be
sentenced to prison and, in the event the court considered probation, that it adopt the
recommendation of the presentence report. Defense counsel asked the court to
consider either the possibility of probation or participation in the sex offender unit.
The court sentenced Trussell to 15 years' imprisonment on each count to run
concurrently, with a 120-day probation release callback pursuant to § 559.115.
Some time after Trussell arrived at the Missouri Eastern Correctional Center,
the Department of Corrections notified the court that Trussell was ineligible for
assessment under § 559.115. That section provides, "Notwithstanding any other
provision of law, probation may not be granted pursuant to this section to offenders
who have been convicted of ... statutory rape in the first degree pursuant to section
566.032, RSMo; statutory sodomy in the first degree pursuant to section 566.062,
RSMo." Mo. Rev. Stat. § 559.115. As these were the counts to which Trussell pled
-2-
guilty, the court entered a "First Amended Sentence and Judgment" removing the
probationary release callback provision and amending the sentence to a straight prison
term of 15 years. The judgment was entered July 30, 2002, and Trussell was served
with it on November 21, 2002.
Trussell did not directly appeal from the amended sentence and judgment.
Instead, he filed a motion to withdraw his guilty plea, which was denied by the state
circuit court and the Missouri Court of Appeals. Later, Trussell filed state petitions
for habeas relief at the circuit, appellate, and state supreme court levels, alleging that
the amended sentence violated his plea agreement and that its entry outside of his
presence was unlawful. While the circuit court ruled that his claims were procedurally
barred, it also rejected both claims on the merits. The Missouri Court of Appeals and
the Missouri Supreme Court summarily denied Trussell's petitions, prompting him to
seek habeas relief with the federal district court on June 14, 2004, alleging the same
claims. The district court found the petition to be untimely under the one-year statute
of limitations provided by 28 U.S.C. § 2244(d)(1) and declined to equitably toll the
limitations period. However, the court went on to conclude that even if the petition
had been timely filed, it failed on the merits. The district court issued a certificate of
appealability as to the timeliness of his petition as well as to the merits of his claims.
II.
It is doubtful that Trussell filed his petition within the one-year limitations
period set by the Anti-Terrorism and Effective Death Penalty Act, even with the
benefit of tolling during the course of his state post-conviction proceedings. See 28
U.S.C. § 2244(d). Moreover, it is also likely that, as the government contends and the
state circuit court concluded, Trussell procedurally defaulted on his claims as a matter
of Missouri law. See Missouri Supreme Court Rule 24.035; Weeks v. Bowersox, 119
F.3d 1342, 1350 (8th Cir. 1997) (en banc). Nonetheless, because neither the statute
-3-
of limitations nor procedural default constitutes a jurisdictional bar to our review, Day
v. McDonough, --- S.Ct. ---, 2006 WL 1071410, *4 (April 25, 2006), we shall, in the
interest of judicial economy, proceed to the merits of Trussell's petition. See Barrett
v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (en banc).
When considering a petition for habeas corpus, we review the district court's
findings of fact for clear error and its conclusions of law de novo. Lyons v. Luebbers,
403 F.3d 585, 592 (8th Cir. 2005). To succeed under § 2254, a petitioner must show
that the state court adjudication (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a decision
that was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding. 28 U.S.C. § 2254(d).
Trussell first argues that the opportunity to be considered for probation release
pursuant to Mo. Rev. Ann. § 559.115 was a central term of his plea agreement and that
by omitting that provision from his sentence the circuit court breached the agreement
in violation of Santobello v. New York, 404 U.S. 257 (1971). It is well-established
that a breach of a plea agreement violates a defendant's due process rights. United
States v. Fowler, --- F.3d ---, No. 05-2532, 2006 WL 987948, at *2 (8th Cir. April 17,
2006) (citing Santobello, 404 U.S. at 262). However, the circuit court reviewing
Trussell's state petition and the district court both concluded that his plea agreement
did not contain a promise as to probation. Whether a promise is made in the context
of a plea agreement is a question of fact. United States v. Halford, 948 F.2d 1054,
1056 (8th Cir. 1991). Therefore, Trussell is only entitled to federal habeas relief if the
state court made “an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” 28 U.S.C. § 2254(d)(2), which requires clear
and convincing evidence that the state court's presumptively correct factual finding
-4-
lacks evidentiary support. 28 U.S.C. § 2254(e)(1); Whitehead v. Dormire, 340 F.3d
532, 539 (8th Cir. 2003).
Our review of the record likewise demonstrates that the plea agreement did not
include a promise that Trussell would receive an opportunity for probation under §
559.115. Trussell's petition to enter a guilty plea states that the government had
agreed to recommend a "maximum cap of 15 years for all charges," although Trussell
would be able to present "any evidence to court for probation or less than 15 years
cap." Trussell checked that no "officer or agent of any branch of government
promised or suggested" that he would "receive a particular sentence or probation or
any other type of leniency" if he pled guilty. Trussell also checked that he understood
that his sentence was "totally under the control of the Judge and that he can
completely disregard the Prosecuting Attorney's recommendations" and that "you
don't have a right to probation and whether or not you get probation is up to the Judge
and no one else." At the plea hearing, the judge inquired into the voluntariness of
Trussell's plea and assured that he understood these terms as well as the fact that the
maximum sentence for the counts pleaded to was life imprisonment. Trussell stated
that he understood and said that he still wished to plead guilty. There is thus no
indication from Trussell's petition to plead guilty or the plea hearing that he was
promised an opportunity for probation pursuant to § 559.115. While the sentencing
court was mistaken in sentencing Trussell pursuant to § 559.115 without verifying his
eligibility under the statute, the subsequent removal of this opportunity for a probation
release callback did not breach his plea agreement in violation of Santobello.
Trussell also contends that he had a due process right to be present when the
judge issued the amended sentence and judgment, citing Faretta v. California, 422
U.S. 806 (1975). The state circuit court rejected this claim on the ground that because
Trussell was ineligible for probation under § 559.115, the 120-day probation release
callback was "surplussage," and the court did not even need to enter an amended
-5-
judgment. The district court concluded that since probation is not a sentence under
Missouri law, the amended sentence and judgment was not a "re-sentencing" but
simply the correction of a mistake, so there was no need for Trussell's presence.
To secure habeas relief on this claim, Trussell must show that the circuit court's
decision was "contrary to clearly established federal law," in that its decision
contradicted applicable Supreme Court precedent in reasoning or result. 28 U.S.C. §
2254(d); Williams v. Taylor, 529 U.S. 362, 405 (2000); Early v. Packer, 537 U.S. 3,
8 (2002) (per curiam). We are persuaded that the circuit court's decision was not
contrary to the Supreme Court's clearly established due process jurisprudence. The
Supreme Court has held that a defendant has a due process right to be present
"'whenever his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge'" and when "'a fair and just hearing would be
thwarted by his absence.'" Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (quoting
Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). For example, the Court has
held that the revocation of parole or probation without an opportunity to be heard
violates due process in light of the need to "assure that the finding of a ... violation
will be based on verified facts and that the exercise of discretion will be informed by
an accurate knowledge of the [petitioner's] behavior." Morrissey v. Brewer, 408 U.S.
471, 483-84 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 781-82 (1973). However, the
Court has also concluded that "this privilege of presence is not guaranteed 'when
presence would be useless, or the benefit but a shadow.'" Stincer, 482 U.S. at 745
(quoting Snyder at 106-07).
These cases have not clearly established that due process requires a defendant
to be present for the non-discretionary correction of a mistake in a judgment that does
not increase the term of imprisonment or revoke a grant of probationary status.
Trussell's amended judgment merely removed a provision that gave him an
opportunity to be considered for probation release after being assessed by the
-6-
Department of Corrections, an opportunity for which he was statutorily ineligible and
which the Department of Corrections could not have granted. There is no indication
that Trussell's absence thwarted the fairness and justice of the amended sentence
because the change was not a matter within the court's discretion and did not require
any factual determinations. Trussell makes no claim that he could have raised any
arguments before the sentencing court that could have changed the ultimate amended
sentence and judgment, thereby distinguishing his situation from those in which the
Supreme Court has found presence or a hearing constitutionally required. See
Morrissey, 408 U.S. at 483-84; Scarpelli, 411 U.S. at 781-82. In a similar case, the
Sixth Circuit rejected a right to presence claim by a state prisoner who was mistakenly
sentenced to concurrent terms of imprisonment and whose sentence was later changed
to consecutive terms in his absence. The court held that the petitioner had not shown
that this rose to the level of a violation of procedural due process meriting federal
habeas relief. Floyd v. Alexander, 148 F.3d 615, 619 (6th Cir. 1998). We conclude
that in these circumstances it was not contrary to clearly established federal law, as
determined by the Supreme Court, for the circuit court to conclude that the sentencing
court could correct the legal defect in Trussell's judgment outside of his presence.
For the above reasons, we affirm the district court's decision to deny Trussell's
habeas petition.
______________________________
-7- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3040460/ | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUSTEES OF THE SOUTHERN
CALIFORNIA BAKERY DRIVERS
SECURITY FUND; DIRK GEERSEN,
Plaintiffs-Appellants,
No. 04-56982
v.
RICK MIDDLETON; BOB DOSS; RONN D.C. No.
CV-03-05550-ER
ENGLISH; PERRI NEWELL; SOUTH
BAY TEAMSTERS AND EMPLOYERS
HEALTH AND WELFARE AND
RELATED BENEFITS TRUST FUND,
Defendants-Appellees.
TRUSTEES OF THE SOUTHERN
CALIFORNIA BAKERY DRIVERS
SECURITY FUND; DIRK GEERSEN,
Plaintiffs-Appellants,
No. 05-55192
v.
RICK MIDDLETON; BOB DOSS; RONN D.C. No.
CV-03-05550-ER
ENGLISH; PERRI NEWELL; SOUTH
OPINION
BAY TEAMSTERS AND EMPLOYERS
HEALTH AND WELFARE AND
RELATED BENEFITS TRUST FUND,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Edward Rafeedie, District Judge, Presiding
Argued and Submitted
November 14, 2006—Pasadena, California
791
792 TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON
Filed January 18, 2007
Before: Stephen Reinhardt and Jay S. Bybee, Circuit Judges,
and Larry A. Burns,* District Judge.
Opinion by Judge Bybee
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON 795
COUNSEL
J. David Sackman, Reich, Adell, Crost & Cvitan, Los Ange-
les, California, for the plaintiffs-appellants.
Michael A. Vanic, Reish Luftman Reicher & Cohen, Los
Angeles, California, for the defendants-appellees.
OPINION
BYBEE, Circuit Judge:
Plaintiffs-Appellants, Trustees of the Southern California
Bakery Drivers Security Fund and Dirk Geersen (“Bakery
Drivers”), appeal the district court’s summary judgment in
favor of Defendants-Appellees, Rick Middleton and South
Bay Teamsters and Employers Health and Welfare and
Related Benefits Trust Fund (“South Bay Teamsters”) on
claims of breach of fiduciary duty under the Employee Retire-
ment Income Security Act (“ERISA”), 29 U.S.C. § 1001 et
seq., and breach of collective bargaining agreements under the
Labor Management Relations Act (“LMRA”), 29 U.S.C.
§ 301 et seq., and the district court’s award of attorneys’ fees
to South Bay Teamsters.
I
This case involves a dispute between the trustees of two
employee benefit plans over an agreement in which one plan
was to provide certain benefits to plan participants of the
other plan. On August 1, 1987, Bakery Drivers contracted
with South Bay Teamsters for certain death, accidental death,
and dismemberment benefits. In a Trust-to-Trust agreement,
Bakery Drivers contracted to pay $5.50 per month for each
active fund participant to South Bay Teamsters in exchange
for death and related benefits amounting to $10,000 in the
796 TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON
event of death and $5,000 or $10,000 in the event of qualify-
ing dismemberment.1 After a series of Trust-to-Trust agree-
ments continuing the relationship, the parties terminated their
agreement as of May 31, 2001. Bakery Drivers allege that
over the course of the contract, plan participants paid a total
of $2,753,642.00 to South Bay Teamsters, while the total
amount of claims paid to plan participants was $770,768.19
and administrative expenses totaled $220,304.92.
On January 10, 2002, Bakery Drivers sent South Bay
Teamsters a letter requesting the surplus funds paid by plan
participants—namely, the $1,762,568.89 difference between
the amounts paid-in less benefits received and administrative
expenses. South Bay Teamsters refused the request on May
31, 2002. Bakery Drivers filed a complaint in district court
alleging that South Bay Teamsters had breached the fiduciary
duties owed under ERISA by failing to use surplus funds for
the exclusive benefit of plan participants. See 29 U.S.C.
§ 1104(a)(1)(A). It also alleged that South Bay Teamsters had
breached the collective bargaining agreements by failing to
use the contributions for the purposes enumerated in the col-
lective bargaining agreements in violation of the LMRA. See
29 U.S.C. §§ 186(c)(5), 1103(c)(1).2
The district court granted summary judgment for South Bay
Teamsters on Bakery Drivers’ claims. As to the breach of the
ERISA fiduciary duty claim, the court found that South Bay
Teamsters qualified under ERISA’s insurer exemption. The
1
Prior to August 1, 1987, death benefits payable to Bakery Drivers’ plan
participants were obtained through the purchase of a group insurance pol-
icy with an insurance carrier.
2
Bakery Drivers’ original complaint included an additional claim that
South Bay Teamsters violated the “exclusive benefit rule” of 29 U.S.C.
§ 1104(a)(1)(A), for failing to use surplus funds for the exclusive benefit
of the intended beneficiaries. The district court granted summary judgment
for South Bay Teamsters on this claim because Bakery Drivers could not
establish standing as co-fiduciaries or participants. Bakery Drivers’ subse-
quent complaint omitted this claim, but reserved the right to appeal.
TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON 797
district court explained that while “ERISA generally imposes
a fiduciary duty on managers of ‘plan assets[,]’ ” it “contains
an exception for a ‘guaranteed benefit policy.’ ” Such poli-
cies, the district court explained, “provid[e] for benefits the
amount of which is guaranteed by the insurer.” The court con-
cluded that the plan at issue was a guarantee benefit policy.
The court rejected Bakery Drivers’ argument that South Bay
Teamsters did not qualify as an “insurer.” According to the
district court, “[t]he argument that [South Bay Teamsters is]
not an insurance company . . . is covered by the broad defini-
tion that is contained in the law.” The district court found that
—in this case—South Bay Teamsters acted like an “insurer.”
Moreover, the district court reasoned that the parties did not
explicitly provide that paid-in premiums not used to pay bene-
fits should be refunded to plan participants and the parties’
agreement could not be read to require such a refund. The dis-
trict court did not explain its reasoning for granting summary
judgment as to Bakery Drivers’ second claim.
The district court also granted South Bay Teamsters’
motion for attorneys’ fees. The district court discussed the
five factors for considering whether fees should be awarded
under ERISA. See 29 U.S.C.A. § 1132(g); Hummell v. S.E.
Rykoff & Co., 634 F.2d 446 (9th Cir. 1980). The court found
that two of the five Hummell factors “weigh[ed] strongly in
favor of awarding fees”—first, Bakery Drivers acted in bad
faith by pursuing unsupported assertions, adopting inconsis-
tent positions, rescinding its earlier acknowledgment that the
arrangement resembled a standard insurance purchase, and
misrepresenting material facts and, second, the relative merits
favored South Bay Teamsters because Bakery Drivers pur-
sued a meritless position. Also in its analysis, the district court
explained that it had granted summary judgments on Appel-
lant’s breach of collective bargaining agreements claim
because “[t]he Trust-to-Trust agreements simply do not con-
tain any provision incorporating [Bakery Drivers’ collective
bargaining agreements].” This appeal followed.
798 TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON
II
We review a district court’s grant of summary judgment de
novo. See Metro. Life Ins. Co. v. Parker, 436 F.3d 1109, 1113
(9th Cir. 2006). Because we conclude that South Bay Team-
sters does not qualify as an ERISA exempt “insurer” under 29
U.S.C. § 1101(b)(2) and that South Bay Teamsters breached
its ERISA fiduciary duty to the participants in the Bakery
Drivers Security Fund, we reverse the district court’s order
granting summary judgment on Bakery Drivers’ breach of the
ERISA fiduciary duty claim.
[1] Under ERISA, a person is a fiduciary with respect to an
ERISA-qualified plan to the extent he “exercises any author-
ity or control respecting management or disposition of its
assets.” See 29 § U.S.C. 1002(21)(A). ERISA, however, pro-
vides for a limitation on the fiduciary duty of insurers issuing
certain kinds of policies or contracts: “[T]he assets [of a plan
to which a guaranteed benefit policy is issued by an insurer]
shall be deemed to include such policy” but do not “include
any assets of such insurer.” 29 U.S.C. § 1101(b)(2). ERISA
defines “guaranteed benefit policy” as benefits in an “amount
. . . guaranteed by [an] insurer.” 29 U.S.C. § 1101(b)(2)(B).
It defines an “insurer” as “an insurance company, insurance
service, or insurance organization, qualified to do business in
a State.” 29 U.S.C. § 1101(b)(2)(A). In other words, an “in-
surer” who has issued a “guaranteed benefit policy” is a fidu-
ciary with respect to an ERISA plan, but only to the extent of
the funds pledged under the insurance policy or contract. See
29 U.S.C. § 1101(b)(2); see also John Hancock Mut. Life Ins.
Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 96 (1993).
South Bay Teamsters contends that because it offered a
guaranteed death benefit to members of the Bakery Drivers
Security Fund, it is liable to Bakery Drivers for the death ben-
efits alone, and not for any monies paid into the South Bay
Teamsters Trust Fund. South Bay Teamsters asserts that its
fiduciary duty is independent of the money paid in by South
TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON 799
Bay Teamsters. According to South Bay Teamsters, it
assumed the risk that the monthly premiums would not cover
the death benefits it was obligated to pay out over the course
of the contract between the two funds. South Bay Teamsters
asserts that it, in turn, has no fiduciary responsibility to Bak-
ery Drivers for the monthly premiums it collected in excess
of the death benefits it paid and the administrative expenses
it incurred. For its part, Bakery Drivers claims that South Bay
Teamsters accepted no risk and that South Bay Teamsters
received all monies as a fiduciary for the participants in the
Bakery Drivers Security Fund.
[2] Despite the fact that South Bay Teamsters plainly pro-
vided insurance-like benefits, and likely accepted the risks it
describes, it does not qualify under ERISA’s insurer exemp-
tion. South Bay Teamsters is not an “insurer” because it is not
“an insurance company, insurance service, or insurance orga-
nization, qualified to do business in a State.” 29 U.S.C.
§ 1101(b)(2). Indeed, South Bay Teamsters does not purport
to constitute such an organization, and nothing in the record
indicates that it is “qualified to do business in a State.”
[3] Although the district court reasoned that South Bay
Teamsters’ provision of death and disability benefits in an
insurance-like scheme meant that it acted like an “insurer”
based on the benefits it offered, we reject such a broad read-
ing of the insurer exemption. The Supreme Court has stressed
strict adherence to ERISA’s text in interpreting its provisions,
explaining its inclination toward a “tight reading of exemp-
tions from comprehensive schemes of this kind.” John Han-
cock, 510 U.S. at 97. In particular, the Court has admonished
that “Congress has specifically instructed, by the words of
limitation it used, that we closely contain the guaranteed ben-
efit policy exclusion.” Id. Moreover, the policy behind the
exemption reflects ERISA’s historic deference to state insur-
ance law.3 It leaves the regulation of an insurer’s assets—and
3
The McCarran-Ferguson Act requires that the business of insurance be
subject to state regulation and generally mandates that “[n]o Act of Con-
800 TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON
assurance of the insurer’s solvency and ability to deliver
benefits—to the states. See Cate v. Blue Cross & Blue Shield
of Ala., 434 F. Supp. 1187, 1190 (N.D. Tenn. 1977). The
exemption applies to companies otherwise subject to state
insurance law, and consequently, it does not apply to compa-
nies outside the insurance industry. ERISA’s insurer exemp-
tion simply is not written—or envisioned—to cover
companies that offer insurance-like plans but who are not “in-
surer[s]” as strictly defined. As a result, we reject the district
court’s conclusion that South Bay Teamsters qualifies under
the insurer exemption.
[4] Instead, we conclude that South Bay Teamsters was an
ERISA fiduciary of the plan assets of Bakery Drivers, and
that it breached its fiduciary duties with respect to those
assets. South Bay Teamsters exercised “control respecting
management or disposition of [the Bakery Drivers Security
Fund] assets,” 29 U.S.C. § 1002(21)(A), by receiving pay-
ment or assets from Bakery Drivers that were contributed on
behalf of plan participants and then placing those assets into
its fund over which it had authority, inter alia, to write
checks. See IT Corp. v. Gen. Am. Life Ins. Co., 107 F.3d 1415,
1421 (9th Cir. 1997) (“The right to write checks on plan funds
is authority or control respecting management or disposition
of its assets.” (internal quotation marks omitted)). Moreover,
where, as here, the exclusion in § 1101(b)(2) is inapplicable,
all assets paid-in are treated as “plan assets” and an entity that
takes “actions in regard to their management and disposition
gress shall be construed to invalidate . . . any law enacted by any State for
the purpose of regulating the business of insurance . . . .” 15 U.S.C.
§ 1012(b). Although ERISA “supersede[s] any and all State laws insofar
as they may now or hereafter relate to any employee benefit plan,” 29
U.S.C. § 1144(a), to avoid conflict with the McCarran-Ferguson Act, a
savings clause provides that “nothing in this subchapter shall be construed
to exempt or relieve any person from any law of any State which regulates
insurance, banking, or securities,” 29 U.S.C. § 1144(b)(2)(A). See also
Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 364 (2002).
TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON 801
must be judged against ERISA’s fiduciary standards.” John
Hancock, 510 U.S. at 106; see also 29 C.F.R. § 2510.3-
101(a), (j)(12). Finally, the agreements providing that “a plan
of death benefits is hereby established for [Bakery Drivers]
Security Fund participants” also created an ERISA plan,
whose summary plan descriptions characterized both Bakery
Drivers and South Bay Teamsters as “Trustees of the Plan.”
See 29 U.S.C. § 1102(a)(1). Nothing in the agreements or the
summary plan descriptions suggests that South Bay Teamsters
were authorized to use the plan assets for anything other than
“to fund the payment of death benefits to [Bakery Drivers]
Security Fund participants . . . .”
[5] Given that South Bay Teamsters had a fiduciary duty
over plan assets, we conclude that it breached its duties under
ERISA by failing to apply the surplus funds for the benefit of
Bakery Drivers Security Fund participants. See 29 U.S.C.
§ 1104(a)(1) (stating that “a fiduciary shall discharge his
duties with respect to a plan solely in the interest of the partic-
ipants and beneficiaries”). We hold that South Bay Teamsters
is liable to Bakery Drivers for breaching its fiduciary duties
under ERISA. Counsel for the participants has suggested that
certain remedies other than the return of the surplus funds
may be appropriate. Accordingly, we remand to the district
court so that it may determine the appropriate remedy.
III
[6] We affirm the grant of summary judgment as to Bakery
Drivers’ breach of the collective bargaining agreements claim.
The LMRA provides that breaches of collective bargaining
agreements are actionable in federal court. See 29 U.S.C.
§ 185(a). However, as the district court found, the parties’
Trust-to-Trust agreements did not contain any provision
incorporating Bakery Drivers’ collective bargaining agree-
ments. South Bay Teamsters was not bound by Bakery Driv-
ers’ collective bargaining agreements merely because it
agreed to provide benefits to Bakery Drivers’ plan partici-
802 TRUSTEES OF THE SO. CAL. BAKERY DRIVERS v. MIDDLETON
pants, and consequently, South Bay Teamsters has no duty
under those agreements.
IV
[7] Lastly, we reverse the district court’s award of attor-
neys’ fees to South Bay Teamsters pursuant to 29 U.S.C.
§ 1132(g)(1). We review such awards for abuse of discretion.
See Cline v. Indus. Maint. Eng’g & Contracting Co., 200 F.3d
1223, 1235-36 (9th Cir. 2000). To overturn an award of attor-
neys’ fees, “we must have ‘a definite and firm conviction that
the court below committed a clear error of judgment in the
conclusion it reached upon a weighing of the relevant fac-
tors.’ ” Estate of Shockley v. Alyeska Pipeline Serv. Co., 130
F.3d 403, 407-08 (9th Cir. 1997) (quoting Smith v. Jackson,
84 F.3d 1213, 1221 (9th Cir. 1996)). Here, the district court
found that Bakery Drivers acted in bad faith and in pursuit of
a meritless position and awarded attorneys’ fees on that basis.
In light of our reversal of summary judgment as to the ERISA
fiduciary duty claim, we find that the district court’s determi-
nation was clearly erroneous.
V
For the foregoing reasons, we reverse the district court’s
decision granting summary judgment as to the ERISA fidu-
ciary claim, affirm summary judgment as to the breach of col-
lective bargaining agreements claim, reverse the award of
attorneys’ fees to South Bay Teamsters, and remand to the
district court for further proceedings not inconsistent with this
opinion.
AFFIRMED in part; REVERSED in part;
REMANDED | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/227206/ | 189 F.2d 261
Application of LIFTON.
Patent Appeal No. 5747.
United States Court of Customs and Patent Appeals.
June 5, 1951.
Charles M. Palmer, Washington, D. C., for appellant.
E. L. Reynolds, Washington, D. C. (H. S. Miller, Washington, D. C., of counsel), for Commissioner of Patents.
Before GARRETT, Chief Judge, and JACKSON, O'CONNELL, JOHNSON and WORLEY, Judges.
JOHNSON, Judge.
1
This is an appeal from the decision of the Board of Appeals of the United States Patent Office affirming the decision of the Primary Examiner rejecting claims 14, 15, 16, 17, and 21 in appellant's application for a patent for an invention relating to a "Compound Brief Case." Process Claims 18, 19, 20, and 22 were allowed.
The appealed claims read:
2
"14. In a brief case, a gusset, a panel comprising complementary elbows defining a rim including upper horizontally alined and independent reaches having inner ends disposed in juxtaposition and including downwardly extending limbs depending from outer portions of said reaches, said reaches and limbs including lower and side margins respectively and constituting an opening defining an open span, a swingable closure flap for covering said opening and overlapping said margins and having a lower portion intervening said span and secured to the lower part of said gusset, tapes secured to said margins and to said flap and offset relatively thereto, and means securing said panel to said gusset.
3
"15. In a brief case, a gusset, a panel comprising complementary elbows defining an inverted substantially U shaped rim including upper horizontally alined and independent reaches having inner ends contiguously disposed and including downwardly extending limbs depending from outer portions of said reaches and limbs including lower and side margins respectively and constituting an opening defining an open span at the lower parts of said limbs, a swigable closure flap for covering said opening and overlapping said margins and having a lower portion intervening said span and secured to the lower part of said gusset, tapes secured to said margins and to said flap and offset relatively thereto, and means securing said panel to said gusset.
4
"16. In a brief case, a gusset, a panel comprising complementary inverted L shaped elbows defining a rim including upper horizontally alined reaches disconnected from each other having inner ends and including downwardly extending limbs depending from outer portions of said reaches, said reaches and limbs including lower and side margins respectively and constituting an opening defining an open span at the lower ends of said reaches, a swingable closure flap for covering said opening and overlapping said margins and having a lower marginal portion intervening said span and secured to the lower marginal part of said gusset, tapes secured to said margins and to side and upper margins of said flap and offset relatively thereto, and means securing said panel to said gusset.
5
"17. In a brief case, a gusset, a panel comprising complementary and inverted L shaped elbows defining an inverted U shaped rim including upper horizontally alined and independent reaches having contiguously arranged inner ends disconnected from each other and including downwardly extending limbs depending from outer portions of said reaches, said reaches and limbs including lower and side margins respectively and constituting an opening defining an open span, a swingable closure flap for covering said opening and overlapping said margins and having a lower portion intervening said span and secured to the lower part of said gusset, tapes secured to said margins and to said flap and offset relatively thereto, means securing said panel to said gusset, and expandible and contractible bellows secured to said flap and panel, and a swingable tongue having one end covering said inner ends and secured thereto.
6
"21. As a new article of manufacture comprising, a blank cut to form a pair of inverted substantially L shaped elbows having horizontally alined reaches spaced apart by an insert and having a limb vertically depending from the outer marginal portion of each of said reaches and concomitantly defining a flap spanning said limbs and disposed below and contiguously to said reaches to provide an appreciable separation between said limbs and having a lower marginal portion projecting beyond said limbs, said elbows and flap being completely separated from said blank to be clear of said insert for bringing together the inner ends of said reaches and in alinement and juxtaposition to constitute with said limbs an opening smaller than said separation, said flap being smaller than said opening and mounted on said elbows to arrange said lower marginal portion to intervene and to be in line with the lower margins of said limbs and to cover said opening and to overlap the lower margins of said reaches and the inner margins of said limbs, a reinforcing flap covering and secured to said juxtapositioned inner ends, and disconnectable fastening means secured to the side and upper margins of said flap and to said inner and lower margins of said elbows."
7
The references relied upon are: Hagelberg 359,150, Mar. 8, 1887; White 1,367,574, Feb. 8, 1921; Guenther et al. 2,316,328, Apr. 13, 1943; Lifton 2,418,589, Apr. 8, 1947; Hochner, 2,438,780, Mar. 30, 1948.
8
Appellant's application relates to a compound brief case, which includes a gusset fastened by stitching to a panel comprising complementary elbows which define a rim. The rim includes upper horizontally alined and independent reaches having inner ends in juxtaposition and downwardly extending limbs depending from the outer portions of the reaches. The reaches and limbs include lower and side margins respectively and constitute an opening defining an open span. A swingable closure flap for covering the opening and overlapping the margins is secured to the lower part of the gusset intervening the span. Tapes are secured to the margins and to the flap and are offset relatively thereto. There is a swingable tongue which covers the juxtapositioned inner ends of the horizontal reaches for reinforcing purposes.
9
Appellant contends that the appealed claims are directed to an improvement over appellant's earlier structure in Letters Patent No. 2,418,589, supra, wherein the closure flap is integral with the panel and held in the same plane therewith by conventional slide fasteners. In actual practice the fasteners of the patented structure are not only difficult to apply but after attachment they lay substantially parallel to the flap and the panel in the locked position thereby permitting rain to seep into the brief case through the exposed tapes.
10
To overcome those problems appellant proposes to use one blank of leather for both the panel and the closure flap by cutting the flap to shape so that L shaped juxtapositioned elbows are formed at the same time as the flap and from the same piece of stock. The L shaped elbows are then connected to form an opening smaller than the flap, creating a more economically produced brief case wherein the flap overlap prevents seepage and also permits greater ease in attachment of the slide fasteners.
11
The patent to White, supra, relates to a traveling bag. A recess or compartment is formed in one side of the bag. A cover which is secured along the lower edge of the body of the bag on a line below the bottom of the recess or compartment is used to cover the recess or compartment. The upper end of the cover is cut out to form flaps which extend over the frame and inside the bag. The flaps have eyelets and slots which engage fasteners secured within the bag.
12
The patent to Guenther et al., supra, relates to a side pocket for brief cases and the like. The pocket is closed by a flap which is a part of and integral with the front panel of the brief case. Zipper means are utilized to hold the flap co-planar with the side margins of the front panel.
13
The patent to Lifton, supra, which is appellant's earlier patent, relates to a combined brief and overnight case. The wall of the case has a large opening which is closed by a swingable flap integral with the wall of the case and held in the same plane therewith by conventional slide fasteners.
14
The patent to Hochner, supra, relates to a cover structure for suitcases, valises and similar carrying bags. The cover of the bag is attached to the frame of the bag by slide fasteners, in such a way that the cover overlaps the edge of the bag frame.
15
The examiner rejected claims 14 through 17 as presenting no invention over Guenther et al., or Lifton in view of White or Hochner. He rejected claim 21 for the same reason and also, "for indefiniteness, in the sense of being directed to nondescript and improper article of manufacture subject matter, in that it purports to define the article by inclusion of steps in the method of fabricating the article."
16
This court has uniformly held that a claim for an article must define the article by its structure and not by the process of making it. In re Butler, 37 F.2d 623, 17 C.C.P.A., Patents, 810; In re Moeller, 117 F.2d 565, 28 C.C.P.A., Patents, 932. The one exception to this rule, where the invention is in the article and it is impossible to otherwise define it, is clearly ruled out in the present case because appellant has demonstrated the possibility of proper article claims by including several devoid of process limitations.
17
Although Hagelberg, supra, is cited as a reference the board stated: "The Examiner refers to Hagelberg in connection with claim 21 but we are not satisfied that Hagelberg is pertinent to the structure defined by claim 21."
18
The Solicitor for the Patent Office did not mention Hagelberg in his brief or discuss it in the oral argument.
19
Appellant filed a petition for reconsideration which was considered but was denied with respect to making any change in the board's decision.
20
Appellant contends that there is no basic reference cited which relies on independent and juxtapositioned elbows. However, the board pointed out that the complementary elbows of claim 14 are connected into one piece by the swingable tongue as stated in claim 17 and held that this two-part feature is without invention over apparently integral elbows of either Lifton or Guenther et al.
21
In the case of In re Davis, 86 F.2d 342, 24 C.C.P.A., Patents, 704, we held that the change of a unitary frame into one of several pieces welded together would not create a patentable distinction.
22
The flap of both White and Hochner are larger than the opening they cover. We do not think there is invention involved in providing the gusseted front wall panel of either Guenther et al. or Lifton with an overlap for the closure means, in view of either White or Hockner.
23
The features claimed being old in the art and there being no invention in the appealed claims, it is proper to combine a number of references in rejecting the appealed claims. In re Streckert, 167 F.2d 1010, 35 C.C.P.A., Patents, 1148.
24
It seems to us that what appellant has claimed in the appealed claims is not the product of the exercise of the inventive faculties but rather that which would be obvious to persons skilled in the art involved.
25
For the reasons stated the decision of the Board of Appeals is affirmed.
26
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/412976/ | 697 F.2d 297
Sentinel Government Securities, In re
82-3016
UNITED STATES COURT OF APPEALS Second Circuit
6/3/82
1
S.D.N.Y.
MANDAMUS DENIED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/590222/ | 974 F.2d 313
Joan A. KINNEY, Executrix and Surviving Spouse of Frank J.Kinney, Jr., Plaintiff-Appellant,v.CONNECTICUT JUDICIAL DEPARTMENT; William Curry,Comptroller, State of Connecticut; Francisco L. Borges,Treasurer, State of Connecticut; Ellen A. Peters, ChiefJustice of Connecticut Supreme Court; and Aaron Ment, ChiefCourt Administrator, Connecticut Superior Court, Defendants-Appellees.
No. 1862, Docket 92-7378.
United States Court of Appeals,Second Circuit.
Argued Aug. 12, 1992.Decided Sept. 10, 1992.
Roger J. Frechette, Frechette & Frechette, New Haven, Conn., for plaintiff-appellant.
Thomas P. Clifford, III, Asst. Atty. Gen., Hartford, Conn. (Richard Blumenthal, Atty. Gen., Charles A. Overend, and Beth Z. Margulies, Asst. Attys. Gen., of counsel), for defendants-appellees.
Before: WINTER, MINER and McLAUGHLIN, Circuit Judges.
PER CURIAM:
1
The Honorable Frank J. Kinney, Jr. was a Judge of the Connecticut Superior Court from 1972 until his death in 1986. Judge Kinney was a respected jurist who undertook administrative responsibilities above and beyond the normal requirements of his office. Following his death, which might reasonably be attributed to long hours of work, appellant Joan A. Kinney, his surviving spouse, filed a claim for benefits under the Connecticut Workers' Compensation Act (the "Act"). Conn.Gen.Stat. § 31-275 et seq. (1987). After a Compensation Trial Commissioner found that there was an implicit employment contract between Judge Kinney and the State and that Judge Kinney was thus a state employee under the Act, appellant was awarded workers' compensation benefits. Conn.Gen.Stat. § 31-275(5). However, the State challenged the Commissioner's findings, and the Connecticut Supreme Court held that a Judge of the Superior Court is not an employee as defined in the Act. See Kinney v. Connecticut, 213 Conn. 54, 66, 566 A.2d 670 (1989). Appellant has now been denied workers' compensation benefits. She claims that this denial both impairs Judge Kinney's employment contract with the State and violates her Fifth and Fourteenth Amendment rights. We disagree.
2
States violate the Contract Clause when legislative action interferes with existing contractual relations. See Ogden v. Saunders, 25 U.S. (12 Wheat.) 212, 265-68, 6 L.Ed. 606 (1827). As the Supreme Court stated in New Orleans Water-Works Co. v. Louisiana Sugar Refining Co., 125 U.S. 18, 8 S.Ct. 741, 31 L.Ed. 607 (1888), "[t]he prohibition is aimed at the legislative power of the State, and not at the decisions of its courts, or the acts of administrative or executive boards or officers, or the doings of corporations or individuals." Id. at 30, 8 S.Ct. at 747.
3
To be sure, a state court interpretation of a statute may be necessary for an unconstitutional interference with contractual rights to take effect, but the basis for that interference is nevertheless statutory. And, of course, the offending statute necessarily must be enacted after the contract in question has come into effect. A judicial decision that interprets a statute predating the contract in question cannot, therefore, trigger an unconstitutional interference.
4
In the instant matter, all relevant legislation predated Judge Kinney's employment by the State. Appellant's sole claim, therefore, is for a loss incurred because of a state court's interpretation of a statute. This is a result analytically indistinguishable from most losses incurred in litigation and not, by itself, a violation of the Contract Clause. Fisk v. Jefferson Police Jury, 116 U.S. 131, 6 S.Ct. 329, 29 L.Ed. 587 (1885), the authority on which appellant places her principal reliance, is thus distinguishable. That decision held only that the Contract Clause was violated when a state constitutional amendment, and the judicial decision applying it, impaired a pre-existing contract. Id. at 134-35, 6 S.Ct. at 330-32.
5
Appellant's Section 1983 claim was properly dismissed for the reasons given in Judge Dorsey's opinion, namely, that the Fifth and Fourteenth Amendments only apply to property interests recognized by state law. See Paul v. Davis, 424 U.S. 693, 710-11, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976); West Farms Assocs. v. State Traffic Comm'n, 951 F.2d 469, 472 (2d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992).
6
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2786142/ | UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KATHLEEN HANSEN, DOCKET NUMBER
Appellant, PH-0752-14-0008-I-2
v.
DEPARTMENT OF THE ARMY, DATE: March 13, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Kathleen Hansen, Whiting, New Jersey, pro se.
Kurt W. Perhach, Picatinny Arsenal, New Jersey, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision.
BACKGROUND
¶2 The agency removed the appellant from her Contract Specialist position.
Initial Appeal File (IAF), Tab 3, Subtab 4b. She timely appealed the removal,
IAF, Tab 1, and following a dismissal without prejudice, IAF, Tab 8, timely
refiled the appeal, Refiled Appeal File (RAF), Tab 1. After a hearing, the
administrative judge affirmed the removal. RAF, Tab 14, Initial Decision (ID).
¶3 The appellant has filed a timely petition for review in which she asserts,
inter alia, that: the deciding official did not consider her written response; her
prior discipline was improperly considered; the administrative judge improperly
excluded some of her proposed witnesses; the charges against her were
improperly reclassified and improperly sustained; and the administrative judge
was biased. Petition for Review (PFR) File, Tab 1 at 5-12. The appellant also
asserts that the administrative judge erred in finding that she failed to establish
her affirmative defense of equal employment opportunity (EEO) retaliation in
particular because he incorrectly found that the deciding official was unaware that
she had filed an EEO complaint. Id. at 10-11. Additionally, the appellant
reasserts that her removal was a violation of her First Amendment rights and
argues, for the first time on review, that the constant “rehashing” of her past
3
disciplinary record is a violation of the Fifth Amendment in that it constitutes
double jeopardy. 2 Id. at 12. The agency responds in opposition to the petition.
PFR File, Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 When taking an adverse action against an employee, an agency must
establish that: (1) the charged conduct occurred; (2) a nexus exists between the
conduct and the efficiency of the service; and (3) the particular penalty imposed
is reasonable. Crawford-Graham v. Department of Veterans Affairs, 99 M.S.P.R.
389, ¶ 16 (2005) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)). For a charge to be
sustained, an agency must prove all of the elements of the charge by a
preponderance of the evidence. 3 Crawford-Graham, 99 M.S.P.R. 389, ¶ 17
(citing Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir.
1990)).
The administrative judge properly sustained the charges of disrespectful conduct
towards a supervisor and insubordination.
¶5 The appellant was removed based upon six specifications of disrespectful
conduct towards a supervisor and one specification of insubordination. IAF, Tab
3, Subtab 4b. The administrative judge found, based upon the record as a whole,
including the hearing testimony and the content of the emails supporting the
specifications, that the agency proved all six specifications of disrespectful
conduct towards a supervisor. ID at 5-6; see RAF, Tab 9, Exhibits 1-7. With
regard to a charge of disrespectful conduct, the Board considers the context in
which comments are made to determine whether misconduct occurred. Daigle v.
2
Although the appellant has submitted evidence on review, PFR File, Tab 2, we have
not considered it because she has not shown that this evidence is new and material.
5 C.F.R. § 1201.115.
3
A preponderance of the evidence is the degree of relevant evidence that a reasonable
person, considering the record as a whole, wou ld accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
4
Department of Veterans Affairs, 84 M.S.P.R. 625, ¶ 6 (1999). We have
considered the content and context of the emails at issue in the specifications, as
well as the evidence and testimony concerning the appellant’s refusal to attend a
meeting as directed by the proposing official and her second-line supervisor, the
appellant’s communications during meetings, and the appellant’s interactions
with both the proposing official and her second-line supervisor. See IAF, Tab 3,
Subtab 4c; RAF, Tab 9; Hearing Compact Disc (HCD). Based upon this review,
we find no reason to disturb the administrative judge’s finding sustaining all six
specifications of disrespectful conduct.
¶6 The administrative judge also sustained the insubordination charge, finding
that the appellant did not dispute the factual assertions in the specification, that
the appellant’s second-line supervisor issued her a valid order to listen and
remain in a meeting, and that the appellant willfully refused to obey the order
when she abruptly left the meeting. ID at 6-7. Insubordination is the willful and
intentional refusal to obey an authorized order of a superior officer which the
officer is entitled to have obeyed. Parbs v. U.S. Postal Service, 107 M.S.P.R.
559, ¶ 13 (2007), aff’d, 301 F. App’x 923 (Fed. Cir. 2008). The record reflects
that the appellant’s second-line supervisor was entitled to order and did order the
appellant to remain in the meeting, but she willfully and intentionally left the
meeting. See IAF, Tab 3, Subtab 4c; HCD. Therefore, we see no reason to
disturb the administrative judge’s findings sustaining this charge. 4
The appellant has not established her affirmative defense of EEO retaliation.
¶7 On review, the appellant argues that the administrative judge erred in
finding that she did not establish her affirmative defense of EEO retaliation, in
4
The appellant challenges the administrative judge’s finding sustaining the charges
against her, stating that there never was any insubordination or disrespectful conduct.
PFR File, Tab 1 at 6. We find that the appellant’s arguments provide no basis for us to
disturb the initial decision because the appellant’s mere disagreement with the
administrative judge’s conclusions does not provide a basis for Board review. See
Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133–34 (1980).
5
particular because the administrative judge incorrectly found that the deciding
official did not have knowledge of her EEO activity prior to removing her. PFR
File, Tab 1 at 10-11. The appellant points to an email that she sent prior to her
removal to several individuals, including the deciding official, in which she stated
that she had filed an EEO complaint. Id.; see IAF, Tab 3, Subtab 4c.
¶8 Where, as here, the record is complete on the issue of retaliation, the
Board’s inquiry proceeds to the ultimate question of whether, upon weighing the
evidence presented by both parties, the appellant has met her overall burden of
proving retaliation by preponderant evidence. Dwyer v. Department of Veterans
Affairs, 107 M.S.P.R. 632, ¶ 7 (2008). In his initial decision, the administrative
judge considered the deciding official’s testimony that she only became aware of
the appellant’s EEO complaint after she rendered the removal decision. ID at
8-9. However, the administrative judge also found that the appellant failed to
demonstrate a genuine nexus between her prior EEO activity and her removal,
that the agency had a legitimate nondiscriminatory and nonretaliatory reason for
removing the appellant in that she had repeated charges of misconduct, and that
the appellant presented no evidence that the agency’s stated reason was
pretextual. ID at 9-10. Based upon our review of the record as a whole, we find
that, regardless of whether the deciding official knew about the appellant’s EEO
activity prior to removing her, the appellant failed to establish her affirmative
defense of EEO retaliation. See Keller v. Department of the Army, 113 M.S.P.R.
557, ¶ 12 (2010) (even assuming that the appellant engaged in protected EEO
activity of which the proposing official was aware and that retaliation could have
been the motive for the removal action, the appellant failed to establish a genuine
nexus between the protected activity and the removal).
The administrative judge properly determined that the appellant did not prove her
affirmative defense of harmful procedural error.
¶9 On review, the appellant argues that the agency committed harmful
procedural error when the deciding official considered her prior discipline and
6
that the administrative judge erred in excluding witnesses who would have
testified as to issues concerning her prior discipline. PFR File, Tab 1 at 5-6. She
also asserts that the discipline that was the subject of pending EEO proceedings
should not have been considered. Id. at 11-12. An agency may consider prior
discipline as an aggravating factor in a current misconduct case if the employee
was informed of the prior action in writing, the action was a matter of record, and
the employee was permitted to dispute the charges before a higher level of
authority other than the one that imposed the discipline. Bolling v. Department of
the Air Force, 9 M.S.P.R. 335, 339-40 (1981). Here, the appellant was informed
of the prior actions in proposed decisions, she was given the opportunity to
dispute the charges, and the actions were imposed by a deciding official who was
different from the proposing official. IAF, Tab 3, Subtabs 4e-4i. The appellant
was informed in the proposal to remove her that the agency would be relying on
the prior discipline in imposing the penalty. IAF, Tab 3, Subtab 4d. We
therefore find that the appellant has not shown error by the agency as to its
consideration of the prior discipline and that the administrative judge properly
excluded witnesses concerning the prior discipline because the discipline was not
at issue in the current case. Additionally, we find no error in the consideration of
a disciplinary action that was the subject of an EEO complaint because our
reviewing court has held that a prior disciplinary action that is being challenged
through the EEO process may still be considered in assessing a proper penalty.
Blank v. Department of the Army, 247 F.3d 1225, 1230 (Fed. Cir. 2001).
The administrative judge properly determined that the appellant’s removal did not
violate the First Amendment.
¶10 We also find unpersuasive the appellant’s argument that her removal
violated the First Amendment. PFR File, Tab 1 at 12. In order to determine
whether speech is protected by the First Amendment, the Board must determine:
(1) whether the speech addressed a matter of public concern and, if so,
(2) whether the agency’s interest in promoting the efficiency of the service
7
outweighs the employee’s interest as a citizen. Smith v. Department of
Transportation, 106 M.S.P.R. 59, ¶ 46 (2007). Here, we find that the
administrative judge correctly determined that the appellant was not addressing a
matter of public concern and that her removal therefore did not violate the First
Amendment. ID at 11-12.
The appellant’s remaining affirmative defenses do not provide a basis for
disturbing the initial decision.
¶11 The appellant asserts for the first time on review that her removal violates
the constitutional prohibition against double jeopardy and that she did not have a
meaningful opportunity to respond to her proposed removal. PFR File, Tab 1 at
11-12. The Board will not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material evidence
not previously available despite the party’s due diligence. Banks v. Department
of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has made no such
showing here. Even if we did consider these arguments, however, we find that
they are not supported by the record. In particular, the appellant did indeed
respond to the proposed removal and the removal decision specifically addressed
her response. IAF, Tab 3, Subtabs 4b-4c. We therefore find that she had a
meaningful opportunity to respond to the proposal letter. We also find that the
appellant’s argument regarding double jeopardy is without merit because there is
no evidence that she was disciplined twice for the same misconduct. Cooper v.
Department of Veterans Affairs, 117 M.S.P.R. 611, ¶ 5 (2012) (although the
constitutional prohibition against double jeopardy applies only to defendants in
criminal cases, and not to petitioners in administrative proceedings before the
Board, an agency cannot impose a disciplinary or adverse action more than once
for the same misconduct), aff’d, 515 F. App’x 897 (Fed. Cir. 2013); see Frederick
v. Department of Homeland Security, 2015 MSPB 11, ¶ 6 (an agency cannot rely
upon employee misconduct that formed the basis of a prior disciplinary or adverse
action when imposing a subsequent disciplinary or adverse action).
8
The administrative judge correctly determined that there is a nexus between the
charged misconduct and the efficiency of the service.
¶12 Next, we find that the administrative judge properly found a nexus between
the appellant’s charged misconduct and the efficiency of the service. ID at 12.
The Board has held that disrespect toward supervisors seriously undermines the
capacity of management to maintain employee efficiency and discipline. Fonville
v. Department of Health & Human Services, 30 M.S.P.R. 351, 354-55 (1986).
Thus, we agree with the administrative judge that there is a nexus between both
the appellant’s disrespectful conduct towards a supervisor and her
insubordination and the efficiency of the service. See Beaudoin v. Department of
Veterans Affairs, 99 M.S.P.R. 489, ¶¶ 10, 17, aff’d as modified on
recons., 100 M.S.P.R. 507 (2005), aff’d, 202 F. App’x 460 (Fed. Cir. 2006).
The administrative judge properly determined that the penalty was reasonable.
¶13 Where, as here, all of the agency’s charges have been sustained, the Board
will review the agency-imposed penalty only to determine if the agency
considered all of the relevant Douglas factors and exercised management
discretion within the tolerable limits of reasonableness. 5 Woebcke v. Department
of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010). The deciding official
credibly testified that she considered all of the Douglas factors but that she
highlighted the most important factors in her decision. HCD. She testified as to
the most significant Douglas factors, including that: the appellant’s offense of
“storming out of a meeting” was very serious; the offenses were repeated; the
offenses were intentional; the appellant demonstrated no regret or remorse; there
were no mitigating circumstances; and the appellant did not have rehabilitative
potential as there had been previous discipline. HCD; see IAF, Tab 3, Subtab 4b.
The deciding official also testified that she considered the agency’s table of
5
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of twelve factors that are relevant in assessing the
penalty to be imposed for an act of misconduct.
9
penalties and the appellant’s past service and performance. HCD; see IAF, Tab 3,
Subtab 4b. Considering the record as a whole, we find that the agency considered
all of the relevant Douglas factors and exercised management discretion within
the tolerable limits of reasonableness. Therefore, we do not disturb the
administrative judge’s finding that the removal penalty was warranted in this
case.
The appellant has not shown that the administrative judge was biased.
¶14 On review, the appellant asserts that the administrative judge was biased in
favor of the agency. PFR File, Tab 1 at 7. The appellant has not set forth any
evidence or argument to overcome the presumption of honesty and integrity that
accompanies administrative adjudicators. Fox v. Department of the
Army, 120 M.S.P.R. 529, ¶ 46 (2014). We therefore find that the appellant has
not shown bias. We also have considered the appellant’s remaining arguments.
However, we find that they do not present a basis for disturbing the
administrative judge’s initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
10
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
11
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C. | 01-03-2023 | 03-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/4224063/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4407
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KIMBERLY DAWN PALMER,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:06-cr-00043-MR-DLH-4)
Submitted: November 20, 2017 Decided: November 28, 2017
Before SHEDD, DIAZ, and HARRIS, Circuit Judges.
Remanded by unpublished per curiam opinion.
Kimberly Dawn Palmer, Appellant Pro Se. Jill Westmoreland Rose, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina;
John Daren Pritchard, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In December 2014, the district court sentenced Kimberly Dawn Palmer to 168
months’ imprisonment pursuant to her guilty plea to a drug-related offense. In May
2017, Palmer noted an appeal of the criminal judgment pursuant to 18 U.S.C. § 3742(a)
(2012). The district clerk failed to send a copy of Palmer’s notice of appeal to this court,
as required under Fed. R. App. P. 3(d)(1). Instead, the district court denied relief on
Palmer’s filing, noting that her appeal was untimely filed and that the appeal period is
mandatory and jurisdictional. ∗ In June 2017, Palmer filed a notice of appeal from the
court’s order denying relief, which is now before us.
Because Palmer’s first notice of appeal was not properly docketed, we remand to
the district court for the limited purpose of docketing Palmer’s May 2017 pleading as a
notice of appeal of the December 2014 criminal judgment. The record, as supplemented,
will then be returned to this court for further consideration.
REMANDED
∗
Although the appeal period in civil matters is mandatory and jurisdictional, the
appeal period in criminal cases is a non-jurisdictional claims processing rule. See Fed. R.
App. P. 4(a), (b); Bowles v. Russell, 551 U.S. 205, 214 (2007); United States v. Urutyan,
564 F.3d 679, 685 (4th Cir. 2009). Moreover, the district court did not have the authority
to dismiss a notice of appeal. Camby v. Davis, 718 F.2d 198, 200 n.2 (4th Cir. 1983).
2 | 01-03-2023 | 11-28-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/413221/ | 697 F.2d 1091
*Curriev.Guthrie
82-4178
UNITED STATES COURT OF APPEALS Fifth Circuit
1/11/83
S.D.Miss.
VACATED
1
---------------
* Fed.R.App. P. 34(a); 5th Cir. R. 18. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/544424/ | 907 F.2d 1138Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Clinton I. McDANIEL, Plaintiff-Appellant,v.Peggy RHINE; Donald E. Bordenkircher, Warden, West VirginiaPenitentiary, Defendants-Appellees,andUnited States Postal Service, Defendant.
No. 89-6838.
United States Court of Appeals, Fourth Circuit.
Submitted June 4, 1990.Decided June 14, 1990.
Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, Chief District Judge. (C/A No. 83-167-E)
Clinton I. McDaniel, appellant pro se.
Dana Doyle Davis, Assistant Attorney General, Nancy C. Loar, Assistant United States Attorney, Charleston, W.V., for appellees.
N.D.W.Va.
REMANDED.
Before ERVIN, Chief Judge, and CHAPMAN and WILKINS, Circuit Judges.
PER CURIAM:
1
Clinton McDaniel filed this action pursuant to 42 U.S.C. Sec. 1983, claiming that he was denied his constitutional right to access to the courts when mail room personnel at the West Virginia Penitentiary at Moundsville delayed mailing legal mail to the United States district court, resulting in the dismissal of four civil actions McDaniel had pending in that court. The magistrate held an evidentiary hearing on this claim and recommended judgment be entered in favor of the defendants. After consideration of McDaniel's timely objections to the magistrate's report, the district court accepted the magistrate's recommendation and dismissed McDaniel's complaint.
2
We are unable to tell from the district court's order adopting the magistrate's report whether proper de novo review of the record was conducted. Although the order states that "an independent, de novo review of all matters before it" was conducted, the order does not indicate whether this included de novo review of the evidence presented at the hearing by reviewing a transcript or tape of the hearing. Moreover, the record before us includes neither a tape recording nor a transcript of the evidentiary hearing.
3
Where a magistrate makes factual findings after an evidentiary hearing and a party files specific objections challenging those findings, as was done here, de novo review of the transcript or tape of the hearing must be conducted. Orpiano v. Johnson, 687 F.2d 44, 47-48 (4th Cir.1982). Reliance on the magistrate's summary of the evidence is insufficient in this regard. "[A]n appellate court must be satisfied that a district judge has exercised his non-delegable authority by considering the actual testimony, and not merely by reviewing the magistrate's report and recommendation." Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir.1985) (quoting United States v. Elsoffer, 644 F.2d 357, 359 (5th Cir.1981) ). Thus, failure to review the transcript or tapes of the hearing in this case would be reversible error. Wimmer v. Cook, 774 F.2d at 76; Orpiano v. Johnson, 687 F.2d at 48.
4
Because we cannot conclude that a transcript or tapes of the evidentiary hearing were before the district court, we must remand this case. If the district court did undertake a de novo review of McDaniel's objections by reviewing the transcript or listening to the tapes, then it should amend its order to reflect this fact. If it did not, it should do so. We deny McDaniel's motion for the appointment of counsel and dispense with oral argument because the facts and legal contentions are adequately presented in the material before the Court and argument would not aid the decisional process.
5
REMANDED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2548047/ | 83 So. 3d 722 (2012)
JOINER
v.
GUARDIANSHIP OF GOSSETT.
No. 2D11-3413.
District Court of Appeal of Florida, Second District.
March 2, 2012.
DECISION WITHOUT PUBLISHED OPINION
Appeal dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/6709901/ | Petition by defendant for discretionary review pursuant to G.S. 7A-31 denied 5 April 1990. | 01-03-2023 | 07-20-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/413593/ | 698 F.2d 1218
Federal Ins. Co.v.Garber Buick
79-1691, 79-1692
UNITED STATES COURT OF APPEALS Sixth Circuit
2/12/82
1
E.D.Mich.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/500297/ | 837 F.2d 480
Barnett (Harold)v.Secy. of HHS
NO. 87-1558
United States Court of Appeals,Eighth Circuit.
DEC 08, 1987
1
Appeal From: W.D.Ark.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2102064/ | 187 S.W.3d 342 (2006)
Steven W. ARNOLD, Appellant,
v.
STATE of Missouri, Respondent.
No. ED 86581.
Missouri Court of Appeals, Eastern District, Division Two.
March 28, 2006.
Steven W. Arnold, Pollock, LA, for appellant.
*343 Shaun J. Mackelprang, Evan J. Buchheim, Jefferson City, MO, for respondent.
Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
ORDER
PER CURIAM.
Steven Arnold (hereinafter, "Arnold") appeals from the trial court's judgment denying and dismissing his Rule 74.06 and/or in the alternative Rule 29.07(d) motion seeking relief from a judgment and to correct a manifest injustice by setting aside his guilty plea from 1976. Arnold raises five claims of error on appeal.
We have reviewed the briefs of the parties and the legal file and find the trial court's decision was not in error. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 84.16(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2504964/ | 710 S.E.2d 39 (2011)
STATE of North Carolina
v.
Jeffery ROBINSON.
No. 349P09-2.
Supreme Court of North Carolina.
June 15, 2011.
Jeffrey Robinson, for Robinson, Jeffery.
Catherine Jordan, Assistant Attorney General, for State of North Carolina.
Edward W. Grannis, Jr., District Attorney, for State of North Carolina.
ORDER
Upon consideration of the petition filed by Defendant on the 31st of March 2011 in this matter for a writ of certiorari to review the order of the North Carolina Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Dismissed by order of the Court in conference, this the 15th of June 2011." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2504966/ | 721 S.E.2d 763 (2012)
STATE
v.
ROGERS.
No. COA11-907.
Court of Appeals of North Carolina.
Filed February 7, 2012.
Case Reported Without Published Opinion
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054379/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
January 10, 2006 Session
MOZELLA NEWSON v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. P-27349 John P. Colton, Jr., Judge
No. W2005-00477-CCA-R3-PC - Filed July 11, 2006
The Appellant, Mozella Newson, appeals the Shelby County Criminal Court’s denial of her petition
for post-conviction relief. Following a transfer hearing, Newson, who was fourteen years old at the
time of the crimes, was transferred from the juvenile court to the Shelby County Criminal Court to
be tried as an adult. She subsequently pled guilty to carjacking, especially aggravated robbery, and
two counts of especially aggravated kidnapping, for which she received an effective fifteen-year
sentence. On appeal, Newson argues that she was denied her Sixth Amendment right to the effective
assistance of counsel, specifically arguing that the attorney representing her during the transfer
hearing was ineffective by: (1) failing to advise the juvenile court of Newson’s age; (2) failing to
challenge the transfer order which stated that Newson was sixteen years old or older; (3) failing to
present any favorable evidence at the transfer hearing which might have prevented her transfer; (4)
failing to object to the identification procedure employed at the transfer hearing; and (5) failing to
advise Newson of her right to appeal the juvenile court’s decision to transfer the case. After review,
we conclude: (1) Newson’s subsequent guilty pleas waived all issues regarding guilt; and (2)
Newson’s failure to prepare a complete record precludes review of her allegations of deficient
performance which resulted in her transfer to the criminal court. Accordingly, the judgment of the
post-conviction court is affirmed.
Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed
DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ., joined.
Lee Gerald, Memphis, Tennessee, for the Appellant, Mozella Newson.
Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Jack Irving, Assistant District Attorney General,
for the Appellee, State of Tennessee.
OPINION
Factual Background
Sometime between the late hours of December 31, 1999, and the early morning hours of
January 1, 2000, the Appellant, age fourteen, along with two co-defendants, Jermaine Bishop, age
twenty-one, and Nesha Newson, age sixteen, participated in the carjacking, robbery, and kidnapping
of Bryan Morris and Holly Richardson in Memphis. Testimony at the post-conviction hearing and
from the proceedings in a co-defendant’s case indicate that the Appellant, armed with a handgun,
held the gun on Richardson while Richardson was robbed, beaten, and subjected to indignities by
the juvenile, Nesha Newson. The three were later apprehended, and the Appellant gave a statement
to police admitting her presence at the scene but minimizing her involvement in the criminal episode.
On January 19, 2000, a hearing was held in the Shelby County Juvenile Court at which the
Appellant was represented by retained counsel (“trial counsel”). Following the presentation of
evidence and argument, the referee waived the jurisdiction of the court and transferred the Appellant
to the Shelby County Criminal Court to be prosecuted as an adult. No appeal was taken with regard
to the transfer.
On January 23, 2001, the Appellant was indicted by a Shelby County grand jury for
carjacking, two counts of especially aggravated kidnapping, aggravated robbery, and especially
aggravated robbery. The Appellant discharged trial counsel and retained another attorney to
represent her in the criminal court proceedings. On September 23, 2002, the Appellant entered into
a plea agreement, whereby she pled guilty to carjacking, two counts of especially aggravated
kidnapping, and especially aggravated robbery. In exchange, the Appellant received fifteen-year
sentences for each of the kidnapping and robbery convictions and an eight-year sentence for the
carjacking conviction. All sentences were ordered to be served concurrently, resulting in an effective
fifteen-year sentence.
On May 13, 2003, the Appellant filed a pro se petition for post conviction relief alleging,
among other grounds, ineffective assistance of counsel with regard to both her counsel at the juvenile
hearing and counsel during the guilty plea process. Post-conviction counsel was appointed, and an
amended petition was filed on August 20, 2004. A post-conviction hearing was conducted on
October 15, 2004, at which the Appellant, her mother, a Department of Children’s Services
employee, Pastor Ralph White, and both of the Appellant’s attorneys testified.
The Appellant testified that her family retained trial counsel to represent her following her
initial detention. According to the Appellant, she met with trial counsel only one time prior to the
hearing, at which time she informed counsel of her age and provided him with information regarding
her educational background and school activities. Both the Appellant and her mother testified that
trial counsel failed to inform the juvenile court of the Appellant’s age or present any proof with
regard to her educational status, academic grades, lack of prior misconduct, or lack of gang activity
in an attempt to prevent her transfer as an adult. Moreover, she asserts that trial counsel failed to call
-2-
available character witnesses from her school or church or to introduce evidence of her alleged minor
role in the commission of these offenses. Additionally, she contends that trial counsel did not allow
her to testify at the transfer hearing, thereby denying the court the opportunity to judge her
credibility, and failed to present proof with regard to her suitability for various juvenile rehabilitative
programs. Both the Appellant and her mother testified that the victim, Holly Richardson, was unable
to identify the Appellant at the hearing and that trial counsel failed to object when the prosecutor
pointed to the Appellant. Furthermore, trial counsel failed to object to the transfer order, which
reflected that the Appellant was “sixteen years or more of age.” Both the Appellant and her mother
also testified that trial counsel failed to inform them of the right to appeal the juvenile court’s
decision to transfer.
Trial counsel testified that he had practiced in the juvenile court of Shelby County for
approximately forty years. He stated that he did not present evidence of the Appellant’s academic
record or lack of delinquent behavior because this information would have been contained in the
“social file,” which is prepared by a juvenile probation officer and provided to the court. However,
trial counsel did testified that he had personally interviewed the Appellant’s probation officer to
confirm that she had no prior record of delinquency and had not posed disciplinary problems in the
school she attended. Moreover, he asserted that he had reviewed the facts of the case with the
Appellant who told him, as well as the police in her statement, that she had limited participation in
the crimes. However, upon further discussions with the prosecuting attorney, trial counsel learned
that the Appellant’s version of the events was somewhat contradicted by the victim’s statements that
it was the Appellant who held a gun on the victims, allowing the crimes to be accomplished. Trial
counsel testified that he did cross-examine the victim thoroughly at the transfer hearing in order to
challenge her credibility and argued to the court that the Appellant should not be transferred based
upon her age, the lack of credibility of the evidence, and that she possessed the potential for
rehabilitation. However, trial counsel testified that, based upon his past experiences in the juvenile
court, he believed the facts of the case alone were sufficient to transfer the case to the criminal court.
Trial counsel further explained that he did not present evidence of possible disciplinary
alternatives within the juvenile court system as the court was aware of these alternatives and was in
possession of the Appellant’s background information contained in the “social file.” With regard
to the transfer order, which states that “the Court finds that said child was 16 years or more of age
at the time of the alleged conduct,” trial counsel believed that this was simply a “typographical error”
in the form order. With regard to the right to appeal, trial counsel stated that he discussed the
Appellant’s right to appeal the transfer order with the Appellant’s mother; however, she failed to
personally contact him about this issue, as he had requested, and that the time to appeal expired.1
The post-conviction court took the matter under advisement and filed an order on January
6, 2005, denying the petition. This appeal followed.
1
The Appellant’s counsel, during the guilty plea proceedings, also testified at the post-conviction hearing, as
the Appellant was initially alleging ineffective assistance of counsel during the guilty plea process as well. The
ineffectiveness of counsel at the guilty plea hearing, however, was not raised as an issue on appeal.
-3-
Analysis
On appeal, the Appellant asserts that the post-conviction court erred in finding that she
received the effective assistance of counsel during her juvenile proceedings. She specifically asserts
that trial counsel was ineffective in that he: (1) failed to advise the juvenile court of the Appellant’s
age; (2) failed to challenge the transfer order which stated that the Appellant was sixteen years or
older; (3) failed to present any favorable evidence at the transfer hearing which might have precluded
her transfer; (4) failed to object to a suggestive identification procedure employed by the State at the
transfer hearing; and (5) failed to advise the Appellant of her right to appeal the juvenile court’s
transfer decision.
A. Jurisdiction of the Juvenile Court
The juvenile court has original jurisdiction over children who are alleged to be delinquent.
Howell v. State, 185 S.W.3d 319, 326 (Tenn. 2006); State v. Hale, 833 S.W.2d 65, 66 (Tenn. 1992);
T.C.A. § 37-1-134(a) (2003). Section 37-1-134(a)(1)-(4) provides the circumstances in which a
juvenile court “shall” transfer a juvenile accused of conduct that constitutes a criminal offense to the
criminal court to be tried as an adult. Howell, 185 S.W.3d at 329. The juvenile must be at least
sixteen years old at the time of the offense or, if under sixteen, be charged with certain enumerated
offenses, as relevant here especially aggravated kidnapping and aggravated robbery, and be provided
with notice and a hearing. T.C.A. § 37-1-134(a)(1)-(3). During the hearing, the juvenile court must
find “reasonable grounds to believe” that the juvenile committed the delinquent act as alleged, that
the juvenile “is not committable to an institution for the mentally retarded or mentally ill,” and that
the community’s interests require legal restraint or discipline of the juvenile. Id. at (a)(4)(A)-(C).
Thus, a transfer hearing involves three inquiries: (1) whether probable cause exists; (2) whether the
juvenile is mentally disturbed; and (3) whether the juvenile is amenable to juvenile discipline. See
Id. Unless these grounds are found by the juvenile court, transfer from juvenile court to criminal
court is subject to the juvenile court’s discretion. Howell, 185 S.W.3d at 329. The authority of the
juvenile court to order a transfer under section 37-1-134, as well as the authority of the criminal court
to accept transfer and try the juvenile as an adult, has been described in Tennessee decisions as
“jurisdictional.” In this case, the Appellant challenges trial counsel’s performance with regard to
both the finding of probable cause and the finding that the Appellant was not amenable to juvenile
discipline.
B. Probable Cause Finding
As evidenced by the allegations in her petition, the Appellant challenges trial counsel’s
performance at her transfer hearing by asserting that trial counsel: (1) failed to challenge the transfer
order which stated that the Appellant was sixteen years or older;2 (2) failed to object to a suggestive
2
Although the transfer order provides in the body of the order that the Appellant was “16 years or more of age,”
the petition for delinquency, the detention order, the mittimus, and the transfer order clearly set forth on the top of the
(continued...)
-4-
identification procedure employed by the State at the transfer hearing; and (3) failed to advise the
Appellant of her right to appeal the juvenile court’s transfer decision. These issues relate to the
probable cause determination and the Appellant’s guilt in the crimes.
It is clear from the record that the Appellant pled guilty to the offenses in which she was
involved. Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent
that it affects the voluntariness of the plea. Stated another way, deficient performance, standing
alone, irrespective of its egregiousness, is irrelevant to the challenge of a guilty plea, unless it can
be established that the deficient performance is causally connected to the voluntariness of the plea.
A plea of guilty, understandably and voluntarily entered on the advice of counsel, constitutes an
admission of all facts alleged and waiver of all nonjurisdictional and procedural defects and
constitutional infirmities, if any, in any prior stage of the proceedings. State v. David Alan Gold, No.
M2005-00186-CCA-R3-CD (Tenn. Crim. App. at Nashville, Mar. 28, 2006) (citing Shephard v.
Henderson, 449 S.W.2d 726, 729 (Tenn. 1969)). Here, however, no allegations have been asserted
that trial counsel’s deficient representation produced an involuntary or unknowing plea. Moreover,
there is nothing in the record to indicate that the Appellant’s guilty pleas were rendered vulnerable
based upon allegations of trial counsel’s deficient performance. Accordingly, because the Appellant
pled guilty to the crimes, any allegations of deficient performance within the probable cause
determination are waived by the Appellant’s voluntary pleas of guilty.
With regard to the issue that trial counsel was deficient for failing to advise the Appellant of
her right to appeal the juvenile court’s transfer ruling, we find this claim is without merit. There is
no civil or interlocutory appeal from a juvenile court’s ruling, transferring the juvenile to the criminal
court to be tried as an adult. T.C.A. § 37-1-159(d) (2003). An appeal to this court is provided only
following a conviction on the merits of the charge. T.C.A. § 37-1-159(f). The Appellant waived
appellate review of the juvenile court’s transfer by entering a plea of guilty without reserving the
question as provided for by Rule 37(b)(2), Tennessee Rules of Criminal Procedure. See State v.
Griffin, 914 S.W.2d 564, 567 (Tenn. Crim. App. 1995). Trial counsel was not representing the
Appellant at the time she entered her guilty pleas. Accordingly, any issue of deficient performance
in this regard is not attributable to trial counsel.
C. Amenability to Juvenile Discipline
Next, the Appellant argues that trial counsel’s performance was deficient with regard to the
waiver of jurisdiction by the juvenile court. She argues that if counsel had not been deficient in his
performance at the hearing, she would not have been transferred to the criminal court. She asserts
that had trial counsel introduced available proof at the hearing, the juvenile court would not have
transferred her to be tried as an adult. Specifically, she challenges trial counsel’s failure to: (1)
advise the juvenile court of the Appellant’s age; and (2) present any favorable evidence at the
2
(...continued)
page of each of these documents the Appellant’s age and date of birth, confirming that she was fourteen years of age at
the time of these proceedings.
-5-
transfer hearing which could have precluded her transfer. These issues were not waived by her plea
of guilty.
To succeed on a challenge of ineffective assistance of counsel, the Appellant bears the burden
of establishing the allegations set forth in her petition by clear and convincing evidence. T.C.A. §
40-30-110(f) (2003). The Appellant must demonstrate that counsel's representation fell below the
range of competence demanded of attorneys in criminal cases. Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984),
the Appellant must establish (1) deficient performance and (2) prejudice resulting from the
deficiency.
It is unnecessary for a court to address deficiency and prejudice in any particular order,
or even to address both if the petitioner makes an insufficient showing on either. Strickland, 466
U.S. at 697, 104 S. Ct. at 2069. In order to establish prejudice, the petitioner must establish a
“reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” State v. Burns, 6 S.W.3d 453, 463 (Tenn. 1999) (quoting Strickland,
466 U.S. at 694, 104 S. Ct. at 2068).
Initially, we are constrained to note that our efforts to review the merits of the Appellant’s
allegations are frustrated by the lack of a complete record. Although the Appellant challenges
deficiency arising from the transfer hearing, she has failed to include virtually all relevant portions
of the juvenile proceeding, including the transcript of the juvenile hearing, which would confirm
whether or not these deficiencies occurred. Other than the transfer order, which is essentially a form
order, practically all of the records and documents from the juvenile proceedings are conspicuously
absent from the appellate record. This includes the transcript of the juvenile hearing, any exhibits
introduced, and the referenced “social file.” (DELETED)
Also absent is the transcript of the guilty plea hearing which would have provided a factual basis
regarding the Appellant’s admitted conduct, which is relevant to the statutory consideration of
whether the offenses were committed in an aggressive and premeditated manner.3 See T.C.A. § 37-
3
W e note that both trial counsel and counsel at the guilty plea hearing testified that, in their opinions, the
Appellant would have been transferred based solely upon the egregious facts of this case. Counsel, at the guilty plea
hearing, testified that the Appellant’s guilty plea was in large part motivated by the fact that her sixteen-year old co-
defendant, Nesha Newson, was convicted by a jury for her participation in the crimes and received a forty-five year
sentence in the Department of Correction.
Although the record fails to include essential facts relative to the case or to the Appellant’s participation in these
crimes, we are permitted to take judicial notice of the documents of this court. In particular, we take notice of the
affidavit of complaint, which was before this court in an appeal by the co-defendant, Nesha Newson Young. State v.
Nesha Young, W 2000-01252-CCA-R8-CD (Tenn. Crim. App. at Jackson, Aug. 15, 2000). The facts of the case, as
recited in the affidavit, are:
On Saturday, January 1, 2000, shortly after midnight, Holly Richardson and Bryan Morris
got lost trying to find their way back to a party in the area of Park and Massey. They stopped to call
(continued...)
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134(b)(4). In sum, essentially all that is before us is a petition alleging delinquency and a form order
from the juvenile court transferring the case to the criminal court.
It is the appellant's duty to prepare an adequate record for appellate review. Tenn. R. App.
P. 24. Our supreme court, in State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), stated:
When a party seeks appellate review[,] there is a duty to prepare a record which
conveys a fair, accurate and complete account of what transpired with respect to the
issues forming the basis of the appeal. State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983). Where the record is incomplete and does not contain a transcript of the
proceedings relevant to an issue presented for review, or portions of the record upon
which the party relies, an appellate court is precluded from considering the issue.
State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). Absent the
necessary relevant material in the record an appellate court cannot consider the merits
of an issue. See T.R.A.P. 24(b).
Id. at 560-61. In the absence of an adequate record on appeal, this court must presume that the trial
court's actions below are correct and are supported by sufficient evidence. State v. Oody, 823
S.W.2d 554, 559 (Tenn. Crim. App. 1991). This issue is, therefore, waived. Because the Appellant
failed to present a complete record, we must presume that the juvenile court was in possession of
the “social file” (DELETED) and considered this evidence in reaching its decision to transfer the
Appellant to the
3
(...continued)
their friends from a pay phone on the lot of the Amoco station at 4161 W inchester, where they met 2
males and 2 females. Ms. Richardson and Mr. Morris asked these subjects for directions back to Park
and Ridgeway. The 2 females and one of the males got in their car, a white 1989 Acura Integra (TN#
652-PVJ), agreeing to direct them to Park and Ridgeway in exchange for a ride to a relative’s home.
Sometime between 1:15 and 1:40 a.m., one of the female suspects pointed a small chrome handgun
at them while the male suspect took control of the car. Both victims were beaten while being held at
gunpoint. At some point during this ordeal, M r. M orris was able to open a back door and jump out
of the moving car. He ran to a nearby location in the 3200 block of Keystone and called police. Ms.
Richardson tried to jump out of the vehicle when M r. Morris did, but was grabbed by the hair and
prevented from doing so. The beating to her then intensified. She was made to keep her hands at her
side while taking punches to the face. Her lips and tongue were burned with cigarettes and she was
made to swallow cigarette ashes. The suspects then backed the car up to a wooded area at the dead-
end of Royal Ridge and made Ms. Richardson get out of the car. At this point, the male suspect struck
her in the face, breaking her nose. She was then released after being made to take her clothes off. She
ran naked through the woods before receiving assistance from a homeowner in the 3700 block of Bluff
W ood Drive. Besides the vehicle, taken in this incident was a wallet with $8 cash and identification
from Bryan Morris and 3 rings and clothing from Holly Richardson. Mr. Morris received two black
eyes, scrapes to his hands, and a broken finger. Both of Ms. Richardson’s eyes were bruised and
swollen almost shut. She also had knots and bruises on her head, swollen and bruised cheeks, bruises
to her neck and arms, scratches on her arms and hands, and a broken nose.
-7-
criminal court. Accordingly, we conclude that the Appellant has failed to carry her burden of
establishing by clear and convincing evidence the allegations of ineffective assistance of counsel.
Notwithstanding our finding of waiver, we are constrained to review the Appellant’s
allegation of trial counsel’s complete failure to challenge the State’s case or present available
evidence that would have protected the Appellant’s interests. The proof at the hearing established
that the Appellant was fourteen years old, had no prior history of delinquency, attended the eighth
grade, and was not a disciplinary problem at her school. We would agree that, because the Appellant
conceded her presence during the crimes and because the State’s proof placed her at the scene with
a gun which she used to accomplish serious crimes, the only viable strategy available to the
Appellant was that of seeking adjudication as a juvenile. However, trial counsel failed to introduce
any available evidence which could have precluded waiver of juvenile jurisdiction. Trial counsel
explained that he made no attempt to introduce evidence because it would have been futile, as it
would not have prevented transfer of the case in his opinion based solely on the egregious facts of
the case. We must reject trial counsel’s fatalistic reasoning. It is the obligation and duty of an
attorney to represent a client zealously and to serve as an advocate within the bounds of the law.
Tenn. R. Sup. Ct. 8, Canon 7. If evidence is relevant and germane to an issue, counsel should
present the evidence and advocate for his client unless reasoned trial strategy dictates otherwise.
Trial counsel’s decision not to introduce evidence in this case was not based upon trial strategy. We
can see no rationale or advantage to be gained by trial counsel’s decision to forego the presentation
of available evidence that the Appellant was amenable to disciplinary measures of the juvenile court,
particularly, in a case such as this where the only viable strategy available was that of preventing
transfer.
Moreover, with regard to trial counsel’s failure to call the Appellant as a witness at the
transfer hearing, counsel explained that he did so in order to prevent her testimony from being used
against her in later proceedings. This is clearly an incorrect statement of the law, as Tennessee Code
Annotated section 37-1-134(f)(1) expressly provides that statements made by a child at the transfer
hearing are not admissible against the child in the criminal proceedings following the transfer. For
these reasons, we are unable to conclude that trial counsel’s representation regarding the Appellant’s
amenability to juvenile discipline met the standard of objective reasonableness “under prevailing
professional norms,” notwithstanding our holding of waiver of the issue. See State v. Goad, 938
S.W.2d 363, 369 (Tenn. 1996).
CONCLUSION
Based upon the foregoing, the Shelby County Criminal Court’s denial of post-conviction
relief is affirmed.
___________________________________
DAVID G. HAYES, JUDGE
-8- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/413263/ | 697 F.2d 1153
225 U.S.App.D.C. 263
RITTER TRANSPORTATION, INC., Petitioner,v.INTERSTATE COMMERCE COMMISSION and United States of America,Respondents,Port Norris Express Co., Inc., Intervenor.
No. 82-1023.
United States Court of Appeals,District of Columbia Circuit.
Argued Dec. 2, 1982.Decided Jan. 14, 1983.
Chester A. Zyblut, Washington, D.C., with whom Michael D. Bromley, Washington, D.C., was on the brief for petitioner.
Craig M. Keats, I.C.C., Washington, D.C., with whom John Broadley, Gen. Counsel, Henri F. Rush, Associate Gen. Counsel, I.C.C., Robert B. Nicholson and William J. Roberts, Dept. of Justice, Washington, D.C., were on the brief for respondents.
William P. Jackson, Jr. and David C. Reeves, Arlington, Va., were on the brief for intervenor.
Before GINSBURG and SCALIA, Circuit Judges, and GESELL,* United States District Judge for the District of Columbia.
Opinion PER CURIAM.
PER CURIAM:
1
Ritter Transportation, Inc. ("Ritter") seeks to set aside a decision of the Interstate Commerce Commission granting the application of Port Norris Express Co., Inc. ("Port Norris") to broaden the commodities its certificate of public convenience and necessity permits it to carry. A certificate served June 18, 1980, authorized Port Norris to transport "(1) sand, gravel, clay, and stone, and (2) materials used in the manufacture and distribution of glass, in bulk," within a specified territory. Appendix (App.) 3-4; 45 Fed.Reg. 53586 (1980). On July 2, 1981, Port Norris applied, pursuant to the Motor Carrier Act of 1980, Pub.L. 96-296, 94 Stat. 793 (1980), to broaden its authority to transport "(1) sand, (2) clay, concrete, glass or stone products, and (3) commodities in bulk," within the same territory. App. 6. Notice of Port Norris' application was published in the Federal Register and Ritter submitted adverse comments. The ICC's Restriction Removal Board granted Port Norris' application on September 21, 1981, App. 39; Ritter's appeal to the Commission was denied on December 15, 1981. App. 84. Ritter then petitioned for review in this court as authorized by 28 U.S.C. Sec. 2342(5).
2
Ritter contends that the ICC unlawfully failed to consider whether Port Norris is "fit, willing, and able" to carry all "commodities in bulk." For the reasons set forth in Ritter Transportation, Inc. v. ICC, 684 F.2d 86 (D.C.Cir.1982), petition for cert. filed, 51 U.S.L.W. 3448 (U.S. Oct. 4, 1982) (No. 82-594) ("Ritter I"), we agree. Accordingly, we vacate the ICC's order granting Port Norris' application and remand to the Commission for further proceedings.
3
In Ritter I, we held that the ICC's restriction removal mandate under the Motor Carrier Act of 1980 to "reasonably broaden the categories of property authorized by the carrier's certificate," 49 U.S.C.A. Sec. 10922(h)(1)(B)(i), entails consideration whether the applicant is "fit, willing, and able" to provide the additional transportation for which it seeks authorization. 684 F.2d at 87. In so holding, we aligned this Circuit with precedent initiated in the Fifth Circuit, most immediately, Steere Tank Lines, Inc. v. ICC, 666 F.2d 255 (5th Cir.1982), reh'g denied, 671 F.2d 1380 (1982), petition for cert. filed, 51 U.S.L.W. 3013 (U.S. July 9, 1982) (No. 82-41) ("Steere I"). The parties in the case before us ("Ritter II") are the same as in Ritter I and the issues raised are substantially the same.
4
Ritter I involved another certificate held by Port Norris; the certificate's commodities' authorization was broadened from "cullet in bulk" (broken glass) to "commodities in bulk." Our remand in Ritter I required Port Norris to show its fitness to perform the expanded service. We emphasized, however, that the fitness showing need not be detailed and that the Commission should use expedited procedures in ruling on commodity broadening requests.
5
The ICC's decision to broaden Port Norris' certificate in Ritter II was reached before Steere I and Ritter I were decided, and, in accordance with Commission policy in effect at that time, was not predicated on a finding that Port Norris was "fit" to carry "all commodities." The ICC now contends that such a finding was implicit in its decision. The Commission attempts to distinguish Ritter I by pointing to the different scope of the certificate Port Norris initially held in that case. In Ritter I Port Norris started with authority limited to one commodity, "cullet in bulk." In Ritter II Port Norris' original certificate included all bulk materials used in glass manufacturing and distribution, as well as sand, gravel, clay, and stone.
6
We find the attempted distinction unpersuasive. Even if the ICC might reasonably have inferred that Port Norris was "fit" to carry all bulk commodities merely from the breadth of its prior authority to carry numerous itemized bulk commodities, there is no evidence in the record to suggest that the Commission ever considered or made such an inference.1
7
Ritter seeks further relief also sought, but not addressed by the panel, in Ritter I.2 Ritter argues that the notice published in connection with Port Norris' application, 46 Fed.Reg. 37353 (1981), was deficient because it specified only the change in the commodities Port Norris sought authorization to carry, not the territory served. The ICC answers that existing regulations prescribe the scope of notice that is appropriate, and do not require a description of the affected territory when no change in that territory is sought. See 49 C.F.R. Secs. 1137.10(b)(6), .11.3 The Commission points out that any person may check an applicant's filing with the ICC to ascertain what territories it involves. See 49 C.F.R. Sec. 1137.11.
8
A territorial description in all Federal Register notices of restriction removal applications might indeed help members of the public determine when they are interested in an application, without imposing a significant burden on the ICC or carriers applying for restriction removal. However, the issue is not properly presented in the instant proceeding. The courts of appeals have jurisdiction to provide direct review of ICC regulations, 28 U.S.C. Sec. 2342(5), but such review must be sought within sixty days after the regulations issue in final form. 28 U.S.C. Sec. 2344. The regulation challenged here issued December 31, 1980, 45 Fed.Reg. 86757; Ritter's petition for review was filed in this court on January 7, 1982. Ritter's petition is therefore not a timely request for direct review of the ICC's notice regulation.
9
Nor is this an appropriate occasion for indirect review of the regulation on the ground that Ritter was aggrieved by inadequate notice attending the ICC's December 15, 1981, final approval of Port Norris' restriction removal application. Ritter concedes that it had actual, timely knowledge of the territory in which Port Norris had authority to operate. Carriers seeking more informative Federal Register notice, however, are not left without a means to air their complaint. They may petition the ICC for rulemaking to amend 49 C.F.R. Sec. 1137.11, the notice regulation. 5 U.S.C. Sec. 553(e). If the ICC rejects such a petition, judicial review of that final order would be appropriate. WWHT, Inc. v. Federal Communications Commission, 656 F.2d 807 (D.C.Cir.1981).
10
The order under review is vacated and this matter is remanded to the Interstate Commerce Commission for further proceedings consistent with this opinion.
*
Sitting by designation pursuant to 28 U.S.C. Sec. 292(a)
1
We note here, as we did in Ritter I, 684 F.2d at 87-88 n. 2, that the ICC has commenced to determine, in restriction removal cases, the applicant's fitness for expanded commodities service. Steere Tank Lines, Inc. v. ICC, 667 F.2d 490 (5th Cir.1982) ("Steere II"). We do not rule out Commission development of guidelines to facilitate these determinations. Prior operations of a described kind might well serve as a sufficient indicator of fitness for certain expansions
2
In Ritter I, the issue was initially raised in court; here, the argument was first tendered to the Commission
3
Ritter's counsel suggested at oral argument that the notice published in connection with Port Norris' application was exceptional in its failure to describe the territory affected, and stated that of the 48 other removal restriction applications published in the Federal Register with Port Norris', 46 included a description of territories. Brief for Petitioner at 45. The ICC's counsel answered that the notice of Port Norris' application was in the regular form for applications of its type; the applications that included territorial descriptions involved requested changes in the territories served | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3354255/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM
Although the amended complaint goes on for fifteen counts, what this action boils down to is a suit on a note.
William Price was the sole proprietor of a tool and die operation and was doing business as Super Tool and Die Co. In connection with that business, he had incurred various debts including an income tax obligation. To stave off his creditors and to keep the business going on September 23, 1982, he borrowed $20,000 from the plaintiff. He gave the plaintiff his note for that amount payable on December 23, 1982 together with interest at the rate of 19% per annum. That note was renewed by a second note dated September 23, 1982 in the amount of $20,000 payable on or before July 31, 1984, together with interest at the same rate. That note was again renewed on August 1, 1984 in the amount of $24,148.48, the increase representing unpaid interest, payable March 25, 1985. This renewal note again called for interest at 19% per annum, but interest was to be compounded daily. The plaintiff had borrowed $5,000 from a credit union to raise part of the cash for the original loan, and the August 1, 1984 note required Price to reimburse the plaintiff for interest he had to pay the credit union, which is stated to be 15.5% per annum compounded weekly from September 23, 1982. There is no statement as to what interest had in fact been earned by the credit union. That note was again renewed on August 1, 1986, stating a principal balance due of $29,860.70, $9,860.70 of which represented accrued and unpaid interest. This fourth note called for interest at 12% per annum. No reference is made to the credit union loan so it is a fair inference that the $9,860.70 included whatever had been paid to the credit union. The fourth note was to be paid in monthly installments of $300 until the entire obligation was paid, such installments to commence on "the first day of the month next after my residence at 887 Oronoke Road, Waterbury, Connecticut is sold". There are various provisions for acceleration, only one of which is relevant, it being "the failure by the maker to make any payment hereunder within 15 days after it is due." Each of the series of notes provide for costs of collection, including a reasonable attorney's fee. The property at 887 Oronoke Road was sold on June 24, 1987. Various payments on account had been made by Price to the plaintiff but no payments after August 1, 1986 were placed in evidence. At same point in time Price executed a note payable to the plaintiff bearing date of September 23, 1982, CT Page 6849 the same date as the first of the four notes, above listed, promising to pay $20,000 to the plaintiff on June 30, 1986 with interest at 12% per annum. The purpose of this note is obscure but in any event it was superseded by the note of August 1, 1986.
The defendants have interposed as a special defense that the first three notes were usurious in violation of Connecticut General Statutes 37-4 as the interest rate was 19% and the fourth note was likewise usurious insofar as it incorporated interest computed at a usurious rate. However, I am satisfied that the transaction comes within an exception provided in Connecticut General Statutes 37-9 (4) insofar as the loan exceeded $10,000 and was made to an individual engaged primarily in industrial pursuits and the proceeds where utilized in Price's business and not for consumer purposes. Therefore I conclude that William Price is obligated to the plaintiff on the August 1, 1986 note in the principal amount of $29,860.70 together with interest at the rate of 12% per annum from August 1, 1986 to the date of judgment in this action.
On or about September 9, 1983, William Price formed a corporation known as Super Tool Die Co., Inc., and he transferred to it much of the machinery and equipment he had owned while operating as a sole proprietorship in return for 100% of the stock. He became Secretary and Director. His wife, Sandra Price, who had had no connection with the sole proprietorship, became President. On or about October 29, 1986, he granted the plaintiff an interest in certain machinery as security for the note of September 23, 1982. The second count alleges in effect fraud on the part of Price in that the listed machinery was not owned by him but by the corporation. I accept Price's testimony that the security interest he granted was on machinery which he had retained and not transferred. This also disposes of the remaining counts.
Judgment may enter for the plaintiff against William Price on the first count as above noted, and for all defendants on the second through the fifteenth counts, costs to be taxed. I find a reasonable attorney's fee to be $5,000 which is also awarded to the plaintiff.
J. HEALEY, STATE TRIAL REFEREE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/305200/ | 465 F.2d 688
Fed. Sec. L. Rep. P 93,593UNITED STATES of Americav.Albert N. DUKOW, Appellant, et al.
No. 71-1922.
United States Court of Appeals,
Third Circuit.
Argued April 6, 1972.Decided July 31, 1972.
David B. Buerger, Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., for appellant.
Kathleen Kelly Curtin, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before GIBBONS and HUNTER, Circuit Judges, and BECKER, District Judge.
OPINION OF THE COURT
PER CURIAM:
1
This is a securities fraud case. Defendant Albert N. Dukow ("Dukow") appeals from a judgment of sentence after conviction by a jury on charges of Securities Fraud and Mail Fraud.1 Dukow is a certified public accountant and business promoter whose troubles stemmed from his activities in connection with the affairs of Champion Industries, Inc. ("Champion"), a Delaware corporation, of which he obtained control in 1962. His co-defendants, charged in the same indictment, were Thomas S. Crow and Saul Brourman, the executive officers of Crow, Brourman and Chatkin ("CBC"), a Pittsburgh over-the-counter brokerage house which dealt in Champion stock, and William J. Abbott, the CBC sales manager. The indictment charged Dukow and the co-defendants with scheming to defraud investors by the sale of Champion stock and using the mails in furtherance of the scheme.2 The principal thrust of the government's case against Dukow was that, as the controlling party in Champion, he made deliberate misrepresentations and failed to state material facts about the condition of Champion to the CBC management and to its salesmen, who, as the record shows, sold substantial quantities of Champion stock to the investing public.
2
The sole question of substance before us is one of sufficiency of the evidence to sustain a conviction.3 When sufficiency is at issue on appeal, it is fundamental that we must view the evidence in the light most favorable to the government. United States v. Hamilton, 457 F.2d 95 (3d Cir. 1972); United States v. De Cavalcante, 440 F.2d 1264, 1273 (3d Cir. 1971). It is apparent to us that, when the evidence is viewed in that light, it was sufficient to present a jury question and to support the verdict upon which Dukow was convicted. United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972); United States v. Carlson, 359 F.2d 592, 597 (3d Cir. 1966). The record is voluminous, emanating from a six-week long trial. However, it is unnecessary to review the record in its entirety; the following facts which appear of record amply support the jury's verdict.
3
When Dukow acquired the controlling stock interest in Champion, it was a paper corporation with no assets of any substance. Shortly thereafter, Dukow, as the controlling party of Champion, initiated a series of financial maneuvers leading to the acquisition by Champion of the Forsberg Manufacturing Company ("Forsberg"), a Connecticut-based manufacturer of hand tools, by means of a so-called bootstrap operation.4 After the acquisition, Forsberg's cash was used to pay the officers and staff of Champion. In fact, Forsberg was the only source of money for Champion, although, as the result of being acquired by Champion, it had the additional expense of a $150,000 mortgage to the lending firm resulting from the bootstrap operation (see n. 4). There was evidence that Forsberg defaulted on the mortgage notes, and that Dukow was aware of the default. There was also evidence that Champion failed to make payments on the $400,000 debt to Harold Forsberg from whom Champion had purchased the Forsberg stock, and that on October 26, 1962 was declared in default on the agreement of sale.
4
It is clear from the record that the financial condition of Forsberg was central to the condition of Champion and to the legitimacy of the representations made (see infra) by Dukow to the management and salesmen of CBC. Forsberg had been experiencing declining production and sales for several years before its acquisition by Champion; however there was evidence that its condition deteriorated still further after Dukow assumed control. For instance, Miss Catherine Toomey, Secretary-Treasurer of Forsberg, and its bookkeeper for some forty years, testified that, before Dukow assumed control of Forsberg, the company was paying 100% on its accounts payable each month; in August 1962, after Dukow took control, the company paid 75%; in November 60%; and by December, Forsberg was paying only 30% or 40%. According to Miss Toomey, Dukow was aware of this difficulty with creditors. Miss Toomey also testified that during November and December 1962, between sixty and eighty creditors sent certified dunning letters and the company received calls from attorneys demanding payment of outstanding bills. Every day she would give Dukow a list of those who had called, but he would reply, "Well, don't worry about it, I am getting money in." Some suppliers ceased supplying goods to the company. Late in November the payroll checks to the employees "bounced" and a Connecticut state official threatened padlock proceedings unless the checks were made good. Miss Toomey testified that in December Forsberg owed over $5200 to the Internal Revenue Service, and that in January the sum increased to over $12,000; Dukow was aware, according to Miss Toomey, that these sums were unpaid.
5
On the subject of Forsberg's sales, there was evidence that 1962 sales were below those of 1961, during which Forsberg had lost money. Dukow testified that production and sales actually increased during the period from July to December 1962, while he was in control of Forsberg.5 However, the record also establishes that this increase followed a similar increase for the same period in 1961 but was below the increase for that period of 1961. And, there was evidence that, despite Forsberg's financial difficulties, salaries for officers rose substantially during the period of the Dukow management and that Forsberg rented two Lincoln Continentals, one of which was for Dukow's use. Moreover, despite the funneling of funds to it from Forsberg, Champion was constantly in dire need of cash.
6
Dukow had contemplated efforts to raise working capital to put Champion on a sounder financial base so as to make possible the acquisition of other subsidiaries, and it was in this connection that he approached CBC with respect to its sale over the counter of Champion stock. Dukow met with Abbott and Crow in October 1962. A meeting was then arranged for Dukow to speak to the CBC salesman in Pittsburgh on January 24, 1963 about the prospects of Champion. The record supports the conclusion that on this date Dukow was aware of all of the financial problems of Champion and its principal prop of operations, Forsberg, which we have recited. Yet, according to the government's testimony, Dukow represented to the CBC salesmen at the January 24th meeting that: (1) Forsberg was "in the black" and "making money"; (2) the book value of Champion was $1.78 a share; (3) Champion would show between $.22 and $.25 a share earnings in the coming (1963) year, with Forsberg doing up to $60-70 thousand a month in sales; and (4) Champion had a good line of credit. Based upon the facts adduced by the government including those we have set forth above, there was ample basis for the jury to infer that these representations were false.
7
The government introduced testimony that at the January 24, 1963 meeting, Dukow informed the CBC salesmen that Champion had already acquired Sterling Hardware, a wholesale firm in the midwest which would serve as an outlet for Forsberg products. However, the record contains evidence which would support the conclusion that this representation was false; the Dukow's contract to acquire Sterling had expired by January 24, 1963; that there was no second contract; and that Dukow was still seeking funds, as of that date, and as late as February 16, 1962, with which to acquire Sterling.
8
In addition to that misrepresentation about the Sterling Hardware acquisition, the record contains a transcript of messages sent from the CBC office in Pittsburgh to the CBC office in Florida which represented that Champion had already acquired Circle Air Products of New York, A&K Electric Corp. and Ultra-Dynamics Corp. Dukow conceded that no such acquisitions had been made but argues that there is no evidence connecting him with the (mis) representation contained in this transcript. However, a government witness, Brewster, formerly a bank vice president and loan officer, testified that, on Februrary 16, 1963, Dukow had represented to him in the presence of Crow that Champion had acquired, inter alia, A&K Electric and Circle Air Products.
9
At the January 24th meeting, Dukow presented the CBC salesmen with a binder containing a collection of brochures and reports that he had personally prepared for distribution from time to time to the shareholders of Champion. These brochures were to be used by the salesmen to solicit sales for Champion stock. In addition to the evidence from which the jury could conclude that oral misrepresentations were made, the jury could also have concluded that the brochure contained false and misleading statements. The brochure contained a latter from Dukow to the shareholders of Champion dated October 29, 1962 in which Dukow made certain representations about the financial condition of Champion. The letter indicates that the net worth of Forsberg was $538,000 "giving effect to the refinancing and sale and leaseback of the real estate of the company" (Gov't ex. 84). However, there is evidence that there never was a sale and leaseback, although Brodsky testified that he was negotiating for one in the fall of 1962 and in February of 1963. Dukow claims that the August 1962 balance sheet reflecting the sale and leaseback was only a pro forma sheet, yet there is evidence that Dukow never informed the salesmen that this was the case. The October 29 letter also suggests that audited financial figures would soon be forthcoming. In fact, neither Mr. Forney, an accountant hired by Dukow to prepare a balance sheet for Champion, nor the national auditing firm of Arthur Andersen and Co. hired later, was ever able to supply an audited balance sheet since there was neither a general ledger nor any other books of original entry. When Arthur Andersen finally submitted figures to Champion in April, none of the figures were verified. The October 29 letter also stated that:
10
"Comparative sales figures have not been computed, but we can anticipate $800,000 sales volume for Forsberg Manufacturing Company and an estimated net profit of $50,000."
11
The record, on the other hand, shows that comparative sales figures had been computed, and the projection flies in the face of evidence that, on a comparative basis, sales were declining.
12
Supplementing the evidence of misrepresentations, the government introduced evidence that Dukow failed to disclose to the CBC salesmen many material facts of which he had knowledge. Several CBC salesmen testified that Dukow never told them that Champion was in default on the Forsberg notes. Yet, the record also shows that Harold Forsberg was threatening to repossess the plant,5a and that, as of February 5, 1963, Dukow was trying to borrow money to prevent a repossession.6 Indeed, Dukow never informed CBC of these matters until after Harold Forsberg took possession on February 20, 1963. Brourman testified that Dukow told him in March that he was making new financing arrangements to get Forsberg back. CBC stopped selling Champion stock for a short time after learning of the repossession but commenced selling it again on March 15, 1963 after reassurances from Dukow that everything would be taken care of.7 In addition to the foregoing, Dukow also failed to inform the CBC salesmen about Forsberg's tax difficulties or about the many matters testified to by Miss Toomey which we have related above.
13
By the foregoing recitation of facts taken in the light most favorable to the government, we do not mean to suggest that the testimony of each of the many government witnesses was absolutely consistent with the testimony of every other. Although there is evidence to support each of the facts we have recited, the recollections of several of the former CBC salesmen who testified as to the events of the January 24, 1963 meeting differed in some degree. Neither do we mean to suggest that Dukow did not present the facts in a much different light. Indeed, Dukow presented an "answer" for virtually every allegation made by the government (although his "answers" did not always stand up to close scrutiny). Dukow has asserted that he did not misrepresent to the CBC salesmen and that, if they misrepresented to their customers in order to induce them to purchase Champion stock, the misrepresentations are not attributable to him. He also avowed ignorance of certain financial details which it is charged he misrepresented. However, this is the stuff of which jury issues are made. The conflicting contentions were submitted to the jury, and the jury rendered its verdict. What Dukow has in essence said on this appeal is that, viewing the facts in the light most favorable to him, there must be an acquittal. But, of course, that is not the test.
14
In his opinion denying motions for new trial and arrest of judgment in the court below, Chief Judge Marsh summarized the evidence as follows:
15
"Dukow was the principal link between Champion and CBC . . . he addressed CBC's salesmen in Pittsburgh on January 24, 1963, upon the merits and prospects of Champion; and he presented to them a brochure. Undoubtedly, he was then aware of Champion's poor financial status, nebulous prospects for acquiring subsidiaries, the problems at the Forsberg plant, including the breach of warranties, and the lurking danger of its being repossessed for non-payment, none of which did he reveal to the CBC salesmen."
16
As we have indicated in our partial factual review, there is sufficient evidence, both direct and circumstantial, from which reasonable inferences could be drawn which supports these conclusions as well as the conclusion that Dukow engaged in a scheme to defraud investors by the sale of Champion stock and used the mails in furtherance thereof.8 We cannot say that the evidence, looked at in the required light, does not support the jury verdict.
17
The judgment of the court below will be affirmed.
1
Dukow was indicted in a ten count indictment charging him with four counts of violating 15 U.S.C. Sec. 77q(a) (securities fraud) and four counts of violating 18 U.S.C. Sec. 1341 (mail fraud), as well as conspiracy and aiding and abetting. He was found guilty on the eight fraud counts and not guilty on the aiding and abetting and conspiracy charges
2
Abbott was acquitted on all counts. Crow and Brourman were found guilty on counts 3 and 4 (securities fraud) and not guilty as to all other counts. Their conviction was affirmed 453 F.2d 1328 (3d Cir. 1972)
3
Dukow has also contended that the trial court committed reversible error when it failed to charge the jury that Dukow's defense was that he was not guilty, and instead stated to the jury that the defendant contended he was not guilty beyond a reasonable doubt. However, a review of Chief Judge Marsh's charge as a whole (see United States v. Stirone, 311 F.2d 277 (3d Cir.), cert. den. 372 U.S. 935, 83 S. Ct. 881, 9 L. Ed. 2d 766 (1962)), demonstrates that Dukow's defense was accurately presented to the jury and that there was no inconsistency in his charge
4
It was agreed that Champion would purchase Forsberg for the sum of $500,000, of which $100,000 was to be paid as a down payment, and the balance of $400,000 to be in the form of long-term promissory notes to Harold Forsberg from whom the stock was being acquired. The Forsberg stock was to be held in escrow to secure payment. The sales and escrow agreements between the parties had provided that the real and personal property of Forsberg was to be mortgaged only for the purpose of providing working capital (i. e., Harold Forsberg did not want his former assets mortgaged in order to pay the debt). However, a broker, acting on Dukow's behalf, arranged a mortgage of $150,000 on the assets of Forsberg to secure a loan which would supply the down payment of $100,000. Harold Forsberg refused to accept the check of the lending firm to cover the down payment. Dukow's broker, Michael Brodsky ("Brodsky"), who was an unindicted co-conspirator and an important government witness, thereupon arranged for a $100,000 weekend turn-around loan so that a Champion check for $100,000 could be issued to consummate the acquisition
5
The record establishes that during the period of Champion's control of Forsberg, the volume of sales was down $27,000 from the identical period of the previous year
5a The government contends that Dukow was in technical default from the very beginning since Dukow mortgaged the assets of Forsberg to raise the down payment money in violation of the escrow agreement. Dukow testified that the mortgage was dated July 24, 1962 before the sale on July 27, and that the escrow agreement had prospective effect only. Furthermore, Dukow asserted that Harold Forsberg acquiesced in the mortgage. In any event, Dukow never intimated on January 24 that there was any problem with the Forsberg plant.
6
Dukow and his broker, Brodsky, even contacted Crow to ask him to arrange a loan for $10,000. They told him that the money was needed to make a monthly mortgage payment when in fact the money was needed as "good faith" money to keep Harold Forsberg from repossessing. Dukow was claiming certain breaches of warranty and Harold Forsberg had in fact agreed to a reduction in the purchase price but only on the condition that Dukow immediately pay $10,000 "good faith" money and the balance within ninety days thereafter
7
Forsberg was never reacquired and on March 19, 1963, Harold Forsberg filed a petition for an arrangement under Chapter XI of the Bankruptcy Act. There is evidence, howeevr, which indicates that CBC continued to sell Champion stock even as late as June 11, 1963, long after Champion had lost Forsberg, even though, without Forsberg, Champion had no viable assets
8
We refer to a "partial" factual review. There are other facts in the voluminous record which also support the government's position | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/238275/ | 228 F.2d 861
The UNITED STATES of America, Plaintiff-Appellee,v.Claude Mark LIGHTFOOT, Defendant-Appellant.
No. 11470.
United States Court of Appeals Seventh Circuit.
Jan. 12, 1956.Writ of Certiorari Granted March 26, 1956.See 76 S. Ct. 543.
Pearl M. Hart, Chicago, Ill., John J. Abt, New York City, George W. Crockett, Jr., Detroit, Mich., for appellant.
Robert Tieken, U.S. Atty., Chicago, Ill., Kevin T. Maroney, Atty., Dept. of Justice, Washington, D.C., William F. Tompkins, Asst. Atty. Gen., William F. O'Donnell, John F. Lally, John H. Davitt, Attys., Dept. of Justice, Washington, D.C., John Peter Lulinski, James B. Parsons, Asst. U.S. Attys., Chicago, Ill., Northern District of Ill., for appellee.
Francis Heisler, Chicago, Ill., Malcolm P. Sharp, President, National Lawyers Guild, New York City, John T. McTernan, Los Angeles, Cal., Warren Krinsky, Chicago, Ill. (Henry Heineman, F. Raymond Marks, Jr., Chicago, Ill., of counsel), for American Civil Liberties Union, amicus curiae.
Before DUFFY, Chief Judge, and LINDLEY and SWAIM, Circuit Judges.
DUFFY, Chief Judge.
1
Defendant was convicted after a jury trial on a one count indictment which charged violation of the 'membership' clause of Section 2 of the Smith Act. 54 Stat. 671, 18 U.S.C. § 2385.1 The indictment was returned on May 14, 1954 and charged: 1) That, continuously since July 26, 1945, the Communist Party of the United States has been a 'society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit.' and 2) That, continuously since July 26, 1945, the defendant has been a member of the Communist Party of the United States of America well knowing during all of said period that said Communist Party 'was and is a society, group, and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit, and said defendant intending to bring about such overthrow by force and violence as speedily as circumstances would permit.'
2
Defendant moved to dismiss the indictment on the following grounds: 1) Section 2 of the Smith Act and the indictment violate the First and Fifth Amendments; 2) The indictment is barred by Section 4(f) of the Internal Security Act of 1950;2 and 3) Section 2 of the Smith Act, as supplemented by sections 2, 3 and 4 of the Communist Control Act of 1954,3 deny the defendant due process by depriving him of the right to a fair and impartial trial. The trial court denied the motion to dismiss.
3
At the trial, defendant's counsel stipulated that defendant had been a member and an official of the Communist Party during the period covered by the indictment. However, defendant was not a mine-run member of the Communist Party, nor was he an innocent worker, unhappy with his lot, who joined up with the Party in the expectation that it would eventually better his economic position. The evidence disclosed that Lightfoot was an intelligent, dedicated, crusading Communist, who rose to a position of great influence in his Party, not only in the midwest, but also on the national level.
4
The proof was that Lightfoot had been a member of the Communist Party since at least 1934. He was early a Section Organizer for the Young Communist League as well as a member of the District Bureau of that League. In 1936 he was a delegate to the Sixth Congress of the Young Communist International which is affiliated with World Communist Party. Later, he was a Section Organizer for the Communist Party and was a member of the District Committee of the Illinois-Indiana District of the Party.
5
Lightfoot spent considerable of his time in teaching the various doctrines. aims and program of the Communist Party. He taught in Workers Schools as well as a considerable number of inner-party classes. He taught in District Training Schools which were secret schools for hardening and training leadership in Communist activities. These schools were taught only by leading party functionaries. In 1938 and thereafter, he taught under the supervision of the Director of the Chicago Workers Schools and the Educational Director of the Illinois-Indiana District of the Communist Party. He taught such subjects as Marxism-Leninism; History of the Communist Party of the Soviet Union; and other courses relating to the theory and practices of Communism. To teach some of these courses he had to be theoretically skilled in and have detailed information about Communist doctrine.
6
Lightfoot was early recognized as one of the top Communist leaders of the Illinois-Indiana District, and he functioned for many years as a full-time employee and representative of the Party. He was a paid employee of the Party as early as 1937. He made many speeches upon behalf of the Communist Party, at times speaking in praise of the success of the Russian Revolution under the leadership of Lenin and Stalin. At a party meeting in the Ashland Auditorium in Chicago in 1947, Lightfoot spoke of his experiences before the Illinois Legislative Committee which was investigating subversive activities, and he promised protective secrecy for the party records. At this assembly, he advised the membership on the use of the underground.
7
At the 1948 State Convention of the Party, Lightfoot was appointed as a regional director of a new party set-up to bring about Communist infiltration in the fourteen basic or vital community industries. On November 10, 1950 Lightfoot delivered the principal address at a Communist meeting to celebrate the 33rd anniversary of the Russian Revolution. On various business and public records defendant listed himself as Executive Director of the Communist Party of Illinois, and the Secretary of the Illinois State Committee of the Communist Party. Up to the time of the indictment he handled Communist Party funds for the Illinois group. In 1950 he was elevated to the position of Member of the National Committee of the Communist Party of the United States, a position which he held up to the time of the indictment.
8
Defendant moved for a directed verdict and for a judgment of acquittal which motions were denied. Later, he made motions in arrest of judgment and for a new trial which were likewise denied. Defendant urges the verdict and judgment of guilty are not supported by the evidence. Defendant says there was no direct evidence that he had knowledge of any teaching or advocacy of proscribed doctrine by the Communist Party or that he intended to bring about the violent overthrow of the Government of the United States. Defendant insists the Government's case rested entirely upon a series of inferences.
9
The Government offered evidence both documentary and by expert witnesses which, if believed, proved that for a number of years prior to 1944, and from and after July 26, 1945, the Communist Party of the United States was a political organization dedicated to the principles of Marxism-Leninism, and its aim was the destruction of the existing social order (which it called 'Imperialism') as well as the destruction of 'Imperialistic Government' including the United States of America. The Party taught that to reach the goal of the 'Proletarian Revolution and the Dictatorship of the Proletariat', actual class revolt would be necessary, and violence and bloodshed inevitably would result.
10
The proof disclosed that the program of the Communist Party in the United States called for the development of a close, well-disciplined organization with a highly trained staff of professional revolutionaries. The ultimate goal and objective of the Party was unchangeable, but the day-to-day program of activities might change as conditions and circumstances would require. As an illustration, when the United States went to war with Fascist Germany, Hitler was regarded in many parts of the world as the great anti-communist symbol. The revolutionary purposes of the Communist Party in the United States were temporarily abandoned, and a Communist Political Association was organized to take its place. One of the ostensible objectives of the Association was to work for socialism through processes of peaceful change. However, as soon as Hitler was eliminated in 1945, the Political Association was abandoned, and the Communist Party in the United States was reconstituted along the lines of Marxism-Leninism, as an instrument of class war and the dictatorship of the proletariat. The Party went forward with the program which had been temporarily abandoned, and this program continued during the years covered by the indictment.
11
Upon evidence very similar to and in many respects identical with that received in the case at bar, the Court of Appeals of the Second Circuit, in United States v. Dennis, 183 F.2d 201, summarized some of the proof as to the organization, aims and activities of the Communist Party in this country, which summary was quoted by the United States Supreme Court in the Dennis case on appeal, 341 U.S. 494, 498, 71 S. Ct. 857, 861, 95 L. Ed. 1137, as follows:
12
'* * * But the Court of Appeals held that the record supports the following broad conclusions: * * * that the Communist Party is a highly disciplined organization, adept at infiltration into strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled; that Communists, unlike other political parties, tolerate no dissension from the policy laid down by the guiding forces, but that the approved program is slavishly followed by the members of the Party; that the literature of the Party and the statements and activities of its leaders, petitioners here, advocate, and the general goal of the Party was, during the period in question, to achieve a successful overthrow of the existing order by force and violence.'
13
We hold that substantial evidence supports the charge contained in the first paragraph of the indictment, and that the jury was fully justified in finding beyond a reasonable doubt that the Communist Party in the United States has, from and after July 26, 1945, been a society, group and assembly of persons who teach and advocate the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit. A number of courts have held that evidence substantially the same to that appearing in the record before us, warranted a similar finding.4 It might be noted that in the majority opinion in Schneiderman v. United States, 320 U.S. 118, at page 153, 63 S. Ct. 1333, at page 1350, 87 L. Ed. 1796, heavily relied upon and frequently cited by defendant, the Court said, 'We do not say that a reasonable man could not possibly have found, as the district court did, that the Communist Party in 1927 actively urged the overthrow of the Government by force and violence. But that is not the issue here. * * *'
14
We next consider whether there was substantial proof in the record that the defendant was a member of the Communist Party well knowing that it taught and advocated the doctrine of overthrowing and destroying the government of the United States by force and violence, and that said defendant intended to bring about such overthrow by force and violence as speedily as circumstances would permit.
15
The evidence showed that for many years prior to the indictment Lightfoot was completely familiar with the objectives of the Communist Party in the United States, and with the literature of the Party which advocated such objectives. Defendant was intimately acquainted with the 'classical' writings of Marx, Engels, Lenin and Stalin which advocated the violent overthrow of capitalistic governments as speedily as circumstances would permit. In fact, defendant contributed articles to Party publications which stressed the importance of such 'classics' in the Communist program. Perhaps his knowledge is best shown by the fact that Lightfoot was a teacher in the District Training Schools which were the secret schools for training Communist leaders. The teachers in these schools were leading Party functionaries. At no time did Lightfoot disavow the teachings of Communist leaders or writers.
16
There was direct testimony from the former educational director of the Illinois-Indiana District of the Communist Party that under his direction and supervision Lightfoot taught, among other subjects, Marxism-Leninism, and the History of the Communist Party of the Soviet Union. From the exhibits offered by the Government it appears that Russia, where the existing social order was overthrown by a violent revolution, was held up as an example of what could be accomplished by the Communists in this country.
17
We hold that the evidence proved that defendant had knowledge that the Communist Party of the United States advocated the overthrow and destruction of the Government of the United States by force and violence as speedily as circumstances would permit.
18
Defendant insists that there is nothing in the record to show that he personally had the specific intent to bring about the overthrow of the government of the United States by force and violence, and he quotes from Schneiderman v. United States, 320 U.S. 118, 136, 63 S. Ct. 1333, 87 L. Ed. 1796, that membership in an organization with knowledge of its purposes is not evidence of the member's intent to effectuate such purposes.
19
We think the evidence was sufficient to prove not only defendant's knowledge that the aim and program of the Communist Party of the United States was the overthrow of our Government by force and violence as speedily as circumstances would permit, but that defendant likewise had such intent. Defendant was well acquainted with the Party doctrine of 'Democratic Centralism' which required all members of the Party to accept, without question, the teachings of the Communist leadership under penalty of severe disciplinary action or expulsion.
20
'* * *the state of a man's mind must be inferred from the things he says or does.' American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 411, 70 S. Ct. 674, 690, 94 L. Ed. 925. The law assumes every man to intend the natural consequences which one standing in his circumstances and possessing his knowledge would reasonably expect to result from his acts. Cramer v. United States, 325 U.S. 1, 31, 65 S. Ct. 918, 89 L. Ed. 1441. 'Actions of the accused are set in time and place in many relationships. Environment illuminates the meaning of acts, as context does that of words. What a man is up to may be clear from considering his bare acts by themselves; often it is made clear when we know the reciprocity and sequence of his acts with those of others, the interchange between him and another, the give and take of the situation.' Cramer v. United States, 325 U.S. 1, 32-33, 65 S. Ct. 918, 934, 89 L. Ed. 1441.
21
Lightfoot's years of devotion to the Communist Party in the United States, and his zeal in obtaining recruits for those doctrines which the Party advocated, and his energy in carrying out the objectives and program of the Party, all were matters properly considered by the jury upon the question of intent. United States v. Flynn, 2 Cir., 216 F.2d 354, 360. Furthermore, there was direct evidence that at Lake Ivanhoe School conducted by the Party, while instructing a class on the procedures for the revolution of the proletariat the defendant stated: 'If we have to spill blood, we will.'
22
Although defendant's counsel argues there is no proof of defendant's advocacy or of his belief in the program of the Communist Party to overthrow the Government of the United States by force and violence in what may be an effort of justification in case it was found the defendant did so advocate, he quotes the following statement from Thomas Jefferson: 'The tree of liberty must be refreshed from time to time, with the blood of patriots and tyrants. If is its natural manure.'5
23
We are satisfied the evidence was ample both to require that the case be submitted to the jury and to sustain the verdict rendered.
24
Three of defendant's claims of error are: the testimony of the witness Lautner should have been excluded as hearsay; that testimony of the witness Meyer should have been excluded as remote and irrelevant; the excerpts of the 'classics' should have been excluded as prejudicial and irrelevant.
25
John Lautner joined the Communist Party in 1929, and except during his period of army service, was a Communist Party organizer, teacher and leader until January 17, 1950. He has testified in a number of prosecutions under the Smith Act as an expert witness as to the teachings and program of the Communist Party of the United States. It seems clear that he was qualified as an expert witness on the subject about which he testified. In any event, whether the witness was qualified as an expert was a matter confined to the discretion of the trial judge. Cohen v. Travelers Ins. Co., 7 Cir., 134 F.2d 378, 384. No abuse of discretion has been shown. Furthermore, the matters about which he testified were material to the issues of the case at bar. We hold there was no error in receiving Lautner's testimony.
26
Frank S. Meyer testified that from 1934 to 1942 he had been closely associated with the defendant in the Illinois Communist Party. He testified relative to a conversation with defendant in 1940 with reference to the latter's teaching the History of the Communist Party of the Soviet Union. Although this occurred some years before the period covered by the indictment, it was admissible to show defendant's knowledge and intent. United States v. Dennis, 2 Cir., 183 F.2d 201, 231-232; United States v. Mesarosh, 3 Cir., 223 F.2d 449, 454. As stated by Judge Learned Hand in the Dennis case, 183 F.2d at page 231, 'How far back of the commission of the crime one may go is a matter of degree, and within the general control of the judge over the relevancy of evidence. In the case at bar, there is not the least reason to hold that his discretion was abused. * * *' We hold there was no error in receiving Meyers' testimony.
27
Defendant also contends that it was error to admit into evidence excerpts from the Marxism-Leninism 'Classics.' These so-called 'Classics' stress the importance of Marxism-Leninism 'as a guide to action' and treat openly the subject of force and violence in the Proletarian Revolution and the establishment of the Dictatorship of the Proletariat. We think these excerpts were admissible not only as probative of the teachings and program of the Communist Party material under paragraph 1 of the indictment, but many of them were directly connected with the defendant in his capacity as teacher in the Party Schools, and were properly admitted as bearing upon his knowledge and intent.
28
Defendant claims the trial court erred in refusing to order the production of a report made to the FBI by the witness Brzek who was a member of the Communist Party from 1943 to 1947. In the latter year Brzek attended classes taught by defendant Lightfoot at a Communist School conducted in Ivanhoe, Wisconsin. It was at one of these classes Brzek testified that defendant stated: 'If we have to shed blood, we will.' On cross-examination Brzek testified he had made a report with reference to said classes to the Milwaukee office of the FBI. The report thus made was not in the courtroom, nor did the witness use a copy thereof to refresh his memory. The motion to produce was made after the Government had closed its case. Defendant offered no oral testimony. On his claim of error, defendant relies principally upon Gordon v. United States, 344 U.S. 414, 73 S. Ct. 369, 97 L. Ed. 447.
29
In Gordon the Court said, 344 U.S. at pages 418-419, 73 S.Ct. at page 373: 'By proper cross-examination, defense counsel laid a foundation for his demand by showing that the documents were in existence, were in possession of the Government, were made by the Government's witness under examination, were contradictory of his present testimony, and that the contradiction was as to relevant, important and material matters which directly bore on the main issue being tried: * * *.'
30
In the case at bar nothing was developed on cross-examination to the effect that the report to the FBI conflicted with the direct testimony of Brzek. Thus an essential element of the rule stated in Gordon was not here present. No proper foundation was laid for the production of the report, and the trial court was correct in denying the motion to produce. United States v. Echeles, 7 Cir., 222 F.2d 144, 152-153; Starr v. Commissioner of Internal Revenue, 7 Cir., 226 F.2d 721, 724; Jencks v. United States, 5 Cir., 226 F.2d 540, 553; Jencks v. United States, 5 Cir., 226 F.2d 553, 560-561.
31
Furthermore, we think that the District Court, under the rule stated in Goldman v. United States, 316 U.S. 129, 132, 62 S. Ct. 993, 995, 86 L. Ed. 1322, properly denied the defendant's motions. The Court, in that case, used this language:
32
'We think it is the better rule that where a witness does not use his notes or memoranda in court, a party has no absolute right to have them produced and to inspect them. Where, as here, they are not only the witness' notes, but are also part of the Government's files, a large discretion must be allowed the trial judge. We are unwilling to hold that the discretion was abused in this case.'
33
To the same effect: Iva Ikuko Toguri D'Aquino v. United States, 9 Cir., 192 F.2d 338, 375; Imperatore v. United States, 2 Cir., 193 F.2d 409, 410; Neal v. United States, 5 Cir., 203 F.2d 111, 118; United States v. Mesarosh, D.C.W.D.Pa., 116 F. Supp. 345, 349, 350.
34
A more difficult question is presented by defendant's claim that the membership clause of the Smith Act is unconstitutional on its face and as applied by the trial court. Defendant insists this clause imputes guilt solely by reason of association.
35
There is no doubt that an individual, or indeed, a group of individuals, may advocate and teach the desirability of a change in our form of government no matter how unpopular, radical or revolutionary the proposal may be, provided such changes are to be accomplished by processes which the Constitution provides. Had the defendant confined his advocacy and teaching for a change in our form of government within the limits of constitutional processes, he would clearly have been protected by the First Amendment.
36
Defendant's counsel makes frequent reference to the opinion of the Court in Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796, to demonstrate that guilt is personal, and that members of a party or organization need not necessarily agree with the pronouncements of their leaders. Overlooked or ignored in such argument is the proof in the case at bar showing the rigid discipline imposed on Communist Party members during the period covered by the indictment. The cornerstone Party doctrine of 'Democratic Centralism' left no room in the Party for members who might not agree with the program of the overthrow of our Government by force and violence. Party members were bound to accept without question the teachings of the Communist leadership. The defendant was one of the most zealous of those teachers.
37
The United States Supreme Court has consistently recognized the inherent value of free discourse. However, it is settled that the right to free speech is not an unlimited, unqualified right but, as the Court said in Dennis, 341 U.S. at page 503, 71 S.Ct. at page 864: '* * * the societal value of speech must, on occasion, be subordinated to other values and considerations.'
38
Defendant admits that in Dennis the Supreme Court sustained the provisions of the Smith Act making it a crime for any person to wilfully and knowingly advocate the overthrow of the Government of the United States by force and violence; to organize or help organize any group which does so; or to conspire to do so.6 The Court specifically held that a clear and present danger existed. However, defendant argues that the Dennis case marks the outermost limit of the Court's sanction of an abridgement of rights within the area guarded by the First Amendment. Defendant points out that the membership clause of the Smith Act was not an issue in Dennis, and insists that in the period covered by the indictment, no clear or present danger existed.
39
It was in Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 249, 63 L. Ed. 470, that Justic Holmes announced the doctrine that: '* * * The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent.' The latest word from the Supreme Court on the subject of clear and present danger appears in the Dennis case.
40
We have before us an example of the ever-recurring problem presented to courts of striking a balance between freedom for the individual and the security for our country and government. 'Self-preservation is a high prerogative of any sovereignty.' Communist Party of the United States v. Subversive Activities Control Board, D.C.Cir., 223 F.2d 531, 543. 'There is no constitutional right to 'gang up' on the government.' Justice Jackson in Dennis v. United States, 341 U.S. 494, 577, 71 S. Ct. 857, 901, 95 L. Ed. 1137. In Dennis the Court said, 341 U.S. at page 501, 71 S.Ct. at page 863: 'No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.' And again, 341 U.S. at page 509, 71 S.Ct. at page 867: 'Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.'
41
In explaining the phrase "clear and present danger" the Court, in Dennis said 341 U.S. at page 509, 71 S.Ct. at page 867: 'Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success, or the immediacy of a successful attempt.'
42
In United States v. Flynn, 2 Cir., 216 F.2d 354, 367, the Court held that the danger found in the Dennis case had not abated by the summer of 1951, the date of the Flynn indictment. But defendant argues that at the date of the indictment of the case at bar no shooting war was in progress and, therefore, conditions had changed. Furthermore, at the time of the oral argument before this Court, defendant's counsel seemed to be deeply impressed by the Spirit of Geneva, and he professed to believe that the Geneva Conference had resulted in a complete relaxation of International tensions. The period covered by the indictment is, of course, the critical period for us to consider. However, in any case, whether a clear and present danger existed cannot depend on whether the faces of the Communist Leaders in Russia are suffused with smiles. We need only make passing mention of the fact that at the time of the writing of this opinion, the smiles have been replaced with scowls, and the sugary words of such leaders have been supplanted by words of vituperative condemnation.
43
Only one other Court of Appeal has passed upon the claim that the membership clause of the Smith Act is unconstitutional. In Scales v. United States, 4 Cir., 227 F.2d 581, the Fourth Circuit held the membership clause of the Smith Act to be constitutional. See also Frankfeld v. United States, 4 Cir., 198 F.2d 679, 683, 684. We agree with the decision in Scales, and hold the membership clause of the Smith Act to be constitutional.
44
Defendant urges he was deprived of a trial by a fair and impartial jury as a result of the enactment of the Communist Control Act of 1954, wherein Congress declared that the Communist Party advocates the overthrow of the Government of the United States by force and violence. Defendant does not contend that any prejudice on the part of any of the jurors in this case appears from the record. Rather, he urges it must be implied that a jury presumed to know the law will not ignore the statutory findings.
45
In effect, it is defendant's position that all persons subject to prosecution under the Smith Act are immunized from prosecution indefinitely, or at least as long as the Communist Control Act remains a part of the laws of this nation. We do not agree. If any jury had any such prejudgment, the instructions of the Court cured their error. Furthermore, whether any such belief existed in the mind of any juror, might have been discovered on the voir dire examination.
46
Defendant further contends prosecution of the offense charged in the indictment is barred by section 4(f) of the Internal Security Act, 50 U.S.C.A. § 783(f), which provides that:
47
'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute.'
48
Defendant argues that the purpose and intent of the section was specifically to bar prosecution of Communists under the membership clause of the Smith Act.
49
A similar argument was overruled in the Scales case. We quote with approval the following from that opinion:
50
'The purpose of this provision, as defendant correctly argues, was to insure the enforceability of the registration provisions of the act by making the privilege against self-incrimination unavailable as a defense to failure to register. The language of the section relied on, however, provides merely that neither holding of office nor membership in a Communist organization shall constitute per se a violation of a criminal statute. It does not purport to exempt from criminal liability membership in an organization advocating the overthrow of the government by force and violence where such membership is acquired or held with knowledge of the criminal purpose in which the organization is engaged. In other words, mere membership in the party is not a crime. Membership with knowledge of the criminal purpose of the organization remains a crime.
51
'* * * Even though the Communist Party has such purpose, membership per se is not made a crime under the Smith Act; and it is only membership per se, which is exempted from criminal prosecution under section 4(f) of the Internal Security Act. That no modification of the provisions of the Smith Act was intended by Congress in the passage of the Internal Security Act of 1950 is made abundantly clear by section 17 of the Internal Security Act, 64 Stat. 1003, 50 U.S.C.A. § 796, which provides: 'The foregoing provisions of this title shall be construed as being in addition to and not in modification of existing criminal statutes.' In view of this interpretation which Congress itself placed on the statute at the time of its passage, there is no occasion for further discussion as to its effect upon the Smith Act. The charge of the court, heretofore quoted, made it clear that defendant could not be convicted because of mere membership in the party.' (227 F.2d 589)
52
Defendant claims error was committed in other comparatively minor matters. Suffice to say, we have considered his arguments in respect thereto and find them to be without merit.
The judgment of conviction is
53
Affirmed.
1
'* * *
'Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government (in the United States) by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof--
'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both, * * *.'
2
Section 4(f) of the Internal Security Act of 1950, Title 50 U.S.C.A. § 781 et seq., provides: 'Neither the holding of office nor membership in any Communist organization by any person shall constitute per se a violation of subsection (a) or subsection (c) of this section or of any other criminal statute. * * *'
3
Sections 2, 3, and 4 of the Communist Control Act of 1954, 68 Stat. 775-776, 50 U.S.C.A. § 841, 842, 843, find as a fact that the object or purpose of the Communist Party of the United States is to overthrow the government of the United States by force and violence
4
United States v. Dennis, 2 Cir., 183 F.2d 201, affirmed 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137; Frankfeld v. United States, 4 Cir., 198 F.2d 679; United States v. Mesarosh, 3 Cir., 223 F.2d 449; Scales v. United States, 4 Cir., 227 F.2d 581
5
Taken from a private letter to William Smith written in 1787 prior to the adoption of the Constitution of the United States which in Article V made provision for amendment, whereby our form of government could be changed in a peaceful manner
6
The Court did not limit its holding of constitutionality to the organizing clause of this subsection, but held, 341 U.S. at page 516, 71 S.Ct. at page 871:
'We hold that §§ 2(a)(1), 2(a)(3) and 3 of the Smith Act, do not inherently, or as construed or applied in this instant case, violate the First Amendment and other provisions of the Bill of Rights, or the First and Fifth Amendments because of indefiniteness.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3977099/ | Appellant was charged under Art. 567b, P. C., of a violation of what is commonly called the "bad check law" and upon his conviction was assessed a term of five years in the penitentiary, and he appeals therefrom.
We are early met herein with motions to quash the indictment because of the fact that same was found by what is termed an illegal grand jury, that is to say, that at the date of the presentation of this indictment into the court, two of the members of the grand jury were not qualified as such because they had failed to pay their poll tax prior to the first day of February, 1949; and we are cited to the statute (Art. 339, C. C. P.), relative thereto and the decisions thereunder. However, it is of interest to note that upon the empaneling of this grand jury on January 10, 1949, all twelve of the grand jurors had paid their poll taxes and were not at such time subject to an objection for a failure to pay such. Therefore, it follows that when empaneled such was a legal grand jury. The question then arises as to whether such after acquired illegality would affect their entire action in the return of indictments after the last day of January, 1949.
We held in Conklin v. State, 144 Tex.Crim. R., 162 S.W.2d 416, that upon the empaneling of such grand jury, anyone interested in such proceedings had the duty of challenging any person presented as such grand juror who had not paid a poll tax, being subject to such payment, provided such challenger *Page 243
is enlarged on bond to await the action of such jury, and it would become his duty to challenge such juror. In that case, however, the offense had not been committed at the time of the organization of the grand jury, and of course, the accused was not under such bond and was not required by bond to await the action of such jury.
In the present case, no such grounds existed at the time of their organization, all being qualified, and such dereliction upon the part of these two members did not take place until February 1, 1949.
The minutes of the term of court show that such court was opened on January 3, 1949; that on January 10, 1949, the grand jury was summoned to appear in court; that on January 17, 1949, twelve men were selected and sworn in as grand jurors for the January term of court; that on the same day they were granted permission of the court to stand adjourned until January 31, 1949; that on said date they were again granted permission to stand adjourned until February 21, 1949, on which last-named date they returned into open court the indictment herein which is the basis of the complaint.
It is shown by the record that appellant had been previously filed upon in a justice court for this same offense on December 17, 1948, and a warrant issued from the justice court; that an examining trial was waived and bond set at $1200.00; that he made bond on December 22, 1948, to await the action of the grand jury, and was on bond until the indictment was found; that he was on bond at the time this grand jury was empaneled and so remained until after the return of this indictment. It is shown by such bill that this grand jury was empaneled on January 17, 1949, and it seems that appellant's attorney was then present in court and had a list of the grand jurors; that this attorney was also present in court on February 14, 1949, which was one week prior to the finding of this indictment; that no one offered any challenge at such time, either to the array or any certain grand juror. The appellant testified for the purpose of this bill as follows:
"I am S. B. Jones. I am the defendant in Cause No. 11307 styled State of Texas vs. S. B. Jones. I live in Hearne, Texas. I lived in Hearne, Texas, during January and February of this year. That is in Robertson County, Texas. Yes, I was charged with several offenses against the Penal Law of this State during the month of December, 1948. Yes, sir, I was arrested and placed in jail here in Franklin. Yes, I made bond. I made bond *Page 244
and was released either the 22nd or 23rd of December. Yes, sir, I was to appear before the District Court at the January Term, 1949. Yes, sir, I was present on January 7, 1949, and was in attendance at the time the Grand Jury was impanneled. No, sir, I believe that there was no indictment returned charging me with any violation in January, 1949. Yes, sir, I was in attendance at all times, Yes, sir, I was here on February 7, 1949. I do not believe that the Grand Jury met at the time. Yes, sir, I believe I was in attendance on February 14, 1949. No, sir, the Grand Jury did not met on February 14th. I appeared on February 7, and 14th, to appear before the body and to file about the Grand Jurors that were acting in investigating the case. Yes, sir, to make a challenge that they did not have a poll tax receipt. No, sir, the Grand Jury did not meet on either the 7th or 14th. I did not have any notice, I never did have any notice that the Grand Jury was meeting on February 21st, I first knew that the Grand Jury met and returned an indictment when I heard it over the radio. It was between five and six o'clock. In the afternoon. It was the 21st day of February, I believe. If I had of had a notice I would certainly have been here, and called the court's attention to the fact that the poll taxes of some of the jurors were not paid. Yes, sir, this is the first opportunity that I have had in presenting this."
On cross-examination, appellant testified:
"No, sir, I did not file in this Court a motion or objection to any of the men serving on the Grand Jury on the 7thor January. No, I did not file anything, I did not have an opportunity to file on the 7th of February. No, sir, I was not given an opportunity to file anything on the 14th of February. I don't believe the Judge was here, he was here, the date I can't recall. The 7th of February and the 14th of February, he was here, but I did not come up on the 21st of February.
It appears from the above that although present each week in court, appellant never seemed to be thus present when the grand jury was in session. It also appears therefrom that appellant seemed to know when these two grand jurors failed to pay their poll tax prior to February 1, 1949, and yet he failed to challenge such jurors, not only prior to their finding an indictment against him on February 21, 1949, but waited until the calling of this case for trial on April 11, 1949.
There is no question that during the month of January, 1949, these two grand jurors were unobjectionable in so far as their poll tax payment was concerned. Appellant made no objection *Page 245
to either the array or to any certain prospective juror as provided by statute, Arts. 358 and 359, C. C. P. Nor did he make any such objections on or after February 1, 1949, although it seems that he was in possession of knowledge that two members thereof had failed to pay their poll tax for such year, and he failed to challenge them or either of them. Therefore, it appears that appellant did not comply with the law as laid down in Art. 362, C. C. P., by not following the mode of challenge therein prescribed. See Armentrout v. State,138 Tex. Crim. 238, 135 S.W.2d 479; Turner v. State, 116 Tex. Crim. 168,32 S.W.2d 835; Tyson v. State, 146 Tex.Crim. R.,171 S.W.2d 496; Winn v. State, 138 Tex.Crim. R., 135 S.W.2d 118. See also 21 Tex. Jur. p. 98, sec. 17.
We pretermit a further discussion of whether or not after a grand juror upon his empanelment as such as a legal grand juror, it was encumbent on him to discharge the duty of paying a poll tax in order to continue to be such legal grand juror during the remaining portion of the term of court. We do hold that appellant waived his right to challenge such jurors, and we overrule his Bill No. 2.
Bill No. 1 relates to the failure of the clerk to enter upon the minutes certain procedural matters such as the empaneling of the grand jury and the different adjournments from time to time of that body, as well as their return of the indictment herein. This term of court began on January 3, 1949, and continued until July 2, 1949, and we have here present in the record the minutes of such term which, however, were not spread on the minutes at the time of this trial on April 11, 1949. We therefore overrule Bill No. 1.
Bill No. 3 complains because the trial court failed to quash the second count of the indictment and sets forth many grounds requesting the trial court to quash such count therein. The statute makes it unlawful for any person with intent to defraud to obtain any money, goods, service, labor, or any other thing of value by giving or drawing any check, draft, or order upon any bank, person, or corporation, if such person does not at the time said check, draft, or order is so given or drawn, have sufficient funds with such bank, firm or corporation with which to pay such draft or order, and all other checks, drafts, or orders upon said funds outstanding at the time such check, draft or order was so given or drawn. The remaining portion of such Art. 567b, P. C., deals with the method of proving such matter. *Page 246
We think that the count complained of applied and followed the statute and charged an offense thereunder. This statute (Art. 567b, P. C.) supersedes Section 4 of Art. 1546, P. C., 1925, and an offense thereunder no longer comes under the head of swindling but is called obtaining money, goods, etc., with intent to defraud by giving or drawing any check, draft, or order without sufficient funds, which enactment repealed such section 4 of Art. 1546, P. C., 1925. See Acts 46th Legislature, Chap. 17, p. 246, et seq.
There are many objections raised to such count but space forbids our discussing each of them. Suffice it to say that we think the count charges a violation of the statute and that it is a violation of such statute to give a check, draft, or order upon a bank where such giver did not have sufficient funds with which to pay the same. The elements of a swindle do not appear. It is usually sufficient to charge the offense in the language of the statute. See Kuykendall v. State, 143 Tex.Crim. R.,160 S.W.2d 525.
It is contended that appellant received no money from the presentation of said check to the bank. It will be noted that he did receive a deposit slip evidencing a credit in that bank for the sum of $10,850.00, and with such credit he purchased exchange for such sum. The statute does not relate to money alone but goes further and says, "or other thing of value." This deposit slip seems to have been valuable enough to purchase negotiable exchange in such sum.
It is also argued that there was no reliance placed upon any statement made to such bank or any of its agents relative to whether or not appellant had the money in the McAllen State Bank, but that such reliance is negatived by the testimony of Mr. Crane who testified that some person in the McAllen State Bank told him (Crane) over the telephone that such check would be paid. This new statute, Art. 567b, P. C., makes the refusal to pay an account for insufficient funds prima facie evidence of an intent to defraud; and its return under such circumstances is prima facie proof of insufficient funds therein. It will be noted that the presentation of such check without being possessed of sufficient funds in such drawn on bank is prima facie evidence of an intent to defraud, which would be rebuttable, however, as would any other intent where same is a portion of the offense. See Coffee v. State,148 Tex. Crim. 71, 184 S.W.2d 278. We think the fact still remains that appellant gave this check with an intent to defraud, and did *Page 247
defraud the First State Bank of Franklin out of this sum of money as charged in Count 2 of the indictment.
The bills of exception relative to an attempt to quash Counts 1 and 3 of the indictment need not be here considered. The careful trial court submitted only Count No. 2 to the jury, the other two counts thus passing out of the case.
We express the opinion that the trial court committed no error in refusing appellant's request for a peremptory instruction.
It is also suggested to this court that appellant's actions herein were a part of a check "kiting" scheme whereby no deception was practiced upon the complaining bank in that such bank knew from a perusal of appellant's account therein that many large checks were being given by him on divers banks in other cities with no substantial balance in such banks from which such checks could be paid. We gather from such argument that such check "kiting" was known to the First State Bank of Franklin and the appellant also, and that no intent to defraud could be found or presumed because of the failure to pay this check on account of insufficient funds; in other words, that such First State Bank of Franklin knew, or ought to have known, that appellant had no funds in the McAllen State Bank to pay such check and therefore, they were not defrauded by honoring such check. The testimony relied upon to show a lack of intent to defraud rests in the high finance reflected in appellant's account in such First State Bank of Franklin, and the peculiarities there shown in that he made large deposits on one day and soon thereafter, usually two days, he made large withdrawals therefrom; and again, he would pursue the same tactics for about thirty days. This seems to have evidenced a large amount of business, but we fail to see wherein such volume would necessarily mean that these checks were "hot" and not drawn upon actual funds in other banking institutions. True it is that the First State Bank of Franklin earned and collected certain charges for the issuance of its exchange for the amount of the $10,850.00 check as evidenced by the deposit slip, but this charge was a legitimate and customary one, and would be of no probative force relative to a knowledge that there were no funds in the McAllen State Bank sufficient to pay the check thereon, which check was the initial act in the transaction. There is an entire absence of proof that the First State Bank of Franklin knew or participated in any check kiting.
Appellant failed to take the stand and offered no proof relative *Page 248
to such knowledge upon the part of such bank. A distinction is attempted to be made herein, and such deposit slip is contended to evidence a special and not a general deposit. This was not a deposit for any specific purpose, but was placed to appellant's credit as money that he would have a right to withdraw for any purpose. The bank gave him full credit therefor, and he exercised such by drawing the same and converting it into exchange on the same day. Evidently the bank was no one's agent save itself, and the amount was instantly available to appellant, and he utilized the same by converting it into exchange on the same day as received by him.
The trial court gave a comprehensive charge of his own on the matter charged, and four special charges were requested by appellant, such charges embracing every defense suggested by the evidence, as well as some not shown by the testimony; and we think that no serious objections were leveled thereat, but every presentable defense was incorporated in such charge, and evidently disbelieved by the jury, as evidenced by their verdict.
Finding no error in the record, the judgment will be affirmed.
ON MOTION FOR REHEARING. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/590307/ | 974 F.2d 977
In re Raymond AMERSON-BEY; Richard Hopkins; GeraldHopkins-Bey; Gary Hammell El; Nobel LaverneBennett; Samuel Lee Petty, Petitioners.
No. 92-2463.
United States Court of Appeals,Eighth Circuit.
Sept. 3, 1992.
Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.
ORDER
1
Petitioners are private attorneys who were appointed to represent indigent criminal defendants under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A. They have applied to this court for authorization under the CJA to pay their attorney for services that they argue were necessary to their adequate representation of their CJA clients. For the reasons discussed below, we deny petitioners' application.
2
By June 17, 1992, the currently appropriated funds available to pay CJA-appointed attorneys had been completely expended. Petitioners had been authorized to receive interim CJA payments, but had not received any payment for many months and as a result faced serious financial hardship, both professionally and personally. The exhaustion of the CJA funds and the imminent commencement of the underlying criminal trial, United States v. Lewis-Bey, No. 91-00001CR(6), which would have required petitioners' daily attendance and full-time attention and was expected to continue for several months, prompted petitioners to seek an emergency stay of the criminal trial and to retain their own attorney to jointly represent them in connection with that collateral proceeding.
3
On July 6, 1992, this court temporarily stayed the underlying criminal trial and remanded the matter to the district court with directions to hold an evidentiary hearing and certify certain findings of fact and conclusions of law with respect to petitioners' financial condition. As directed, the district court held an evidentiary hearing as well as limited in camera proceedings and filed a memorandum opinion. In the meantime, additional funds were made available by the Administrative Office of the United States Courts in order to pay CJA-appointed attorneys. On July 28, 1992, this court adopted the findings of fact and conclusions of law of the district court, noted the current availability of additional CJA funds, and remanded the matter to the district court for further proceedings, including the immediate filing by petitioners and the prompt processing and review by the district court of applications for interim payment of attorney's fees, costs and expenses under the general provisions previously authorized by the district court.
4
Petitioners have now applied to this court for authorization for payment under the CJA for services of their attorney who represented them in connection with the emergency stay proceedings in this court and in the evidentiary hearing in the district court. Petitioners argue these collateral proceedings were extraordinary and that their attorney's services were necessary to their adequate representation of their CJA clients. Petitioners argue that their attorney is an expert or consultant on the subject of CJA funding and that his services were essential to their obtaining additional CJA funds and thus to the protection of their CJA clients' rights to effective assistance of counsel. At the court's request, the government filed a response.
5
We have considered petitioners' application and memorandum in support, as well as the government's response, and we deny petitioners' application. Petitioners acknowledge that neither this court nor the district court appointed their attorney under the CJA to represent them, individually or jointly, or as co-counsel or associate attorney to represent any of their CJA clients, and that they did not obtain prior authorization for his services. Nor was petitioner's attorney appointed by this court or the district court as an expert or consultant to serve exclusively on behalf of the court. In addition, we are reluctant to extend the scope of "services necessary to adequate representation" beyond the CJA defendant to the attorney appointed to represent the CJA defendant. We simply do not think that petitioners' attorney stands in the same position, at least for purposes of authorization for payment under the CJA, as an investigator or other expert whose services are necessary to the adequate representation of the CJA defendant.
6
Accordingly, petitioners' application for authorization under the CJA for payment to petitioners' attorney is denied. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/500301/ | 837 F.2d 480
Putman (Andrew Lacy)v.Turner (C.A.)
NO. 87-1964
United States Court of Appeals,Eighth Circuit.
DEC 18, 1987
1
Appeal From: W.D.Mo.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3040402/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2833
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Francisco Reyes Rivera, * [UNPUBLISHED]
*
Appellant. *
___________
Submitted: May 19, 2006
Filed: May 23, 2006
___________
Before MELLOY, FAGG, and BENTON, Circuit Judges.
___________
PER CURIAM.
Francisco Reyes Rivera pleaded guilty to possessing with intent to distribute
50 grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1). The district court* sentenced Rivera to 120 months in prison and 5 years of
supervised release. On appeal, Rivera’s counsel filed a brief under Anders v.
California, 386 U.S. 738 (1967), in which he requests leave to withdraw.
*
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
Rivera’s plea agreement contains a valid appeal waiver. See United States v.
Andis, 333 F.3d 886, 889-90 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003);
United States v. Estrada-Bahena, 201 F.3d 1070, 1071 (8th Cir. 2000) (per curiam)
(enforcing appeal waiver in Anders case). Having reviewed the record independently
for any nonfrivolous issues not covered by the appeal waiver, and finding none, we
enforce the waiver, dismiss this appeal, and grant counsel’s request to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1054428/ | IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
December 7, 2004 Session
DAVID BRUCE MYERS v. TERI LYNNE BROWN MYERS
Direct Appeal from the Circuit Court for Greene County
No. 03CV924 Hon. Ben K. Wexler, Circuit Judge
No. E2004-01362-COA-R3-CV - FILED APRIL 22, 2005
The Trial Court enforced a mediated Settlement Agreement, reduced to writing and signed by the
parties, over the wife’s objection. On appeal, we affirm.
Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.
HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which SHARON G. LEE, J.,
and WILLIAM H. INMAN , Sr., J., joined.
Douglas R. Beier, Morristown, Tennessee, for appellant.
Dennis Terry Stapleton, Morristown, Tennessee, for appellee.
OPINION
This action commenced when the husband filed a complaint against the wife for
divorce. During the pendency of the action and on March 22, 2004, the husband filed a Motion to
Enforce Mediated Settlement, asserting that the parties had reached an agreement during a six hour
mediation session on March 9, which was memorialized by a five page written document drafted by
the mediator and signed by the parties and their attorneys. The husband averred that his counsel was
to then draft the Marital Dissolution Agreement, but before it was completed the wife’s attorney
stated that the wife had changed her mind. The signed Mediation Agreement was attached as an
Exhibit.
The Trial Court conducted a hearing on the Motion on March 29, 2004, and heard
argument from counsel, and the wife’s testimony. She testified that she was a 34-year-old teacher,
that the parties had two children, and testified as to the parties’ income and marital properties and
values. She testified that in the mediation they agreed that she would get the house and some land
around it, but she felt she was only getting a value of around $200,000.00 and he would be getting
land valued at $500-600,000.00. She further testified that after the mediation husband came and
attempted to take some antiques that he was not supposed to have, and that the husband refused to
give her half of the tax refund as he had agreed to do.
Finally, she concluded that she felt the agreement was unfair, and that the husband
had misrepresented her interest in their property, and she was of the opinion that the husband would
not uphold his end of the agreement. On cross-examination, the wife admitted that she and her
attorney had signed the document, along with her husband and his attorney, and that she had known
about all the property in the five months the divorce action was pending before mediation. She
testified that she was reluctant to sign the agreement, but decided the following day that it was unfair
and that the mediation had been tiring and she felt pressured.
The Trial Court then ruled that the parties mediated and reached an agreement, which
was written and signed by the parties, and that in the absence of fraud or mistake the agreement was
conclusive. The Trial Court held that while the wife complained of the value of certain real property,
her evidence was equivocal. The Court found there was no fraud or mistake by the mediator, and
that the wife would have received the family home free of any debt. The Court concluded that the
mediation agreement should be enforced. Following the entry of a Final Decree, the wife appealed.
The issue on appeal is whether the Trial Court erred in enforcing the mediated
settlement agreement?
Whether the mediated agreement is enforceable is a question of law, and our review
of this issue is de novo with no presumption of correctness. Union Carbide Corp. v. Huddleston,
854 S.W.2d 87 (Tenn. 1993).
The wife argues that it was improper for the Trial Court to enforce and adopt the
parties’ mediated agreement settling their property issues because she had withdrawn her consent
prior to the hearing before the Trial Court.
The record establishes that the parties entered into mediation (accompanied by their
attorneys) and that at the end of the mediation session, an agreement was reached which was put in
writing, albeit somewhat informally, and signed by the parties and their attorneys. The wife then
withdrew her consent, explaining to the Court that she found out the parties’ property was worth
more than she thought.
The wife insists that this issue is governed by the Supreme Court’s decision in
Harbour v. Brown, 732 S.W.2d 598 (Tenn. 1987), where the Court held that a consent judgment
could not be entered where one party had withdrawn his consent and communicated that fact to the
-2-
trial court. In Harbour, the parties reached a settlement agreement on the day of trial and announced
to the court that they had such an agreement, and that they would submit an order of compromise
and dismissal. Id. at 599. They did not, however, announce the terms of settlement with the court
or place the agreement in the record at that time. Thereafter, the trial court was made aware that one
party had withdrawn its consent, but the trial court entered an order dismissing the case with
prejudice. Id.
The Supreme Court held this to be error, stating that:
The power of the court to render a judgment by consent is dependent on the existence
of the consent of the parties at the time the agreement receives the sanction of the
court or is rendered and promulgated as a judgment.
Harbour v. Brown, 732 S.W.2d 598, 599 (Tenn. 1987) (quoting 49 C.J.S. Judgments §174(b)). The
Court further explained that the rationale behind the rule is that “a consent judgment does not
represent the reasoned decision of the court but is merely the agreement of the parties, made a matter
of record by the court”, and until entered by the court, either party could repudiate the agreement
because of “an actual or supposed defense to the agreement.” Id. at 599-600.
The Harbor Court reversed the trial court’s judgment and remanded the case for
hearing. The parties had apparently entered into a written contract on the day of settlement, and
upon remand the chancellor found the contract to be enforceable and awarded damages for the
breach. Harbour v. Brown, 1989 WL 22712 (Tenn. Ct. App. March 17, 1989). This Court affirmed
the ruling. Id.
The final result was in accord with the Supreme Court’s opinion in Harbor, i.e.:
This is not to say that the compromise agreement may not be a binding contract,
subject to being enforced as other contracts, but only that the court may not enter
judgment based on the compromise agreement, when it has notice that one of the
parties is no longer consenting to the agreement for whatever reason.
Harbour v. Brown, 732 S.W.2d 598 at 600 (Tenn. 1987). Cf, Environmental Abatement, Inc. v.
Astrum R.E. Corp., 27 S.W.3d 530 (Tenn. Ct. App. 2000). (The parties had attended a mediation,
and had come to an agreement, but it had not been reduced to writing and signed by the parties. One
party withdrew consent to the agreement the next morning, and this Court held the agreement was
not enforceable).
However, the Supreme Court recently reiterated that written and signed mediation
agreements must also be “analyzed under contract law”, as was recognized both in Harbour and
Environmental. Ledbetter v. Ledbetter, 2005 WL 775386 (Tenn. Apr. 7, 2005). Moreover, this Court
has previously held that signed, written settlement agreements are enforceable as contracts, under
general principles of contract law. See Vaccarella v. Vaccarella, 49 S.W.3d 307 (Tenn. Ct. App.
-3-
2001); Persada v. Persada, 2002 WL 31640564,(Tenn. Ct. App. Nov. 22, 2002); Golden v. Hood,
2000 WL 122195 (Tenn. Ct. App. Jan. 26, 2000).
In this case, the Trial Court held a hearing to determine whether the wife could show
fraud, mistake, or duress, or any grounds upon which the Court should invalidate the parties’
contract, and found no grounds were shown. The evidence presented was that the wife had simply
changed her mind, and as with any written contract, one cannot be released from one’s obligations
thereunder simply due to a change of heart. Smithart v. John Hancock Mut. Life Ins. Co., 71 S.W.2d
1059, 1063 (Tenn. 1934). For the foregoing reasons, we affirm the Judgment of the Trial Court
which enforced the Mediation Contract between the parties.
The cost of the appeal is assessed to Teri Lynn Brown Myers.
______________________________
HERSCHEL PICKENS FRANKS, P.J.
-4- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2489075/ | 69 So. 3d 1133 (2011)
Jimmy L. SMITH
v.
STATE of Louisiana.
No. 2010-C-1140.
Supreme Court of Louisiana.
September 16, 2011.
Granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054416/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned On Briefs May 10, 2006
RICKY BUTLER v. STATE OF TENNESSEE
Appeal from the Circuit Court for Maury County
No. 11825 Jim T. Hamilton, Judge
No. M2004-01543-CCA-R3-PC - Filed June 27, 2006
The petitioner pled guilty to two counts of aggravated sexual battery. He later filed a petition for
post-conviction relief. The post-conviction court held a hearing on May 8, 2003. The court then
entered an order on May 9, 2003 denying the petition. The petitioner filed a pro se notice of appeal
over a year and a month later on June 17, 2004. We now dismiss the petitioner’s appeal because the
notice of appeal was filed outside of the thirty days required under Rule 4 of the Tennessee Rules
of Appellate Procedure.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Dismissed.
JERRY L. SMITH , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN E.
GLENN , J., joined.
Dwight E. Scott, Nashville, Tennessee for the appellant, Ricky Butler.
Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Larry Nickell, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
The petitioner’s written statement given to the police upon his arrest stated the events
as follows:
On Sunday around 12:00 in the afternoon I was around to [sic] little girls around 11
and 13. We was watching a movie, when I felt like doing it. I then ask [sic] one of
them to come and rub me after I saw see [sic] was interested after she talked to her
sister and she wanted to to [sic]. I let both of them touch me, then I tried to insert
into them when I coundn’t, I pumped their Backside. I put my penis in the crack of
their but [sic]. I rub their vagina and but [sic] cheeks. We heard somebody comin[g]
so thats [sic] why we stop.
The petitioner was charged with rape of a child and aggravated sexual battery. He agreed
with the District Attorney’s office in Maury County to enter an Alford plea1 to two counts of
aggravated sexual battery. As part of his plea agreement, the petitioner would serve eight years at
100 percent for each count to run concurrently and also run concurrently to a sentence he was serving
for another offense. The petitioner’s plea was entered on December 17, 2001, over one year from
the order denying his post-conviction petition.
The petitioner filed a petition for post-conviction relief on September 18, 2002, arguing that
his plea was not entered voluntarily and that he was not afforded the effective assistance of counsel.
The post-conviction court held a hearing on May 8, 2003, and entered an order the next day, May
9, 2003, denying the petition. The petitioner filed a pro se notice of appeal on June 17, 2004.
ANALYSIS
The petitioner argues that his plea was involuntary, that he was afforded the ineffective
assistance of counsel and that the post-conviction court’s order did not meet the requirements of
Tennessee Code Annotated section 40-30-111. The State argues that the plea was voluntary and the
petitioner received effective assistance of counsel.
The State does not, however, address whether the petitioner’s notice of appeal was timely.
Under Rule 4 of the Tennessee Rules of Appellate Procedure, a notice of appeal for an appeal as of
right under Rule 3 should be filed with the clerk of the trial court within thirty days of the entry of
the final order. In the petitioner’s case, the post-conviction court filed the final order denying his
petition on May 9, 2003. The petitioner did not file his notice of appeal until over a year and a
month later on June 17, 2004.2 Clearly, the petitioner’s notice of appeal was outside the thirty day
filing requirement.
Under Rule 4, we can waive the filing requirement in the interest of justice. After reviewing
the post-conviction hearing transcript, the plea hearing colloquy and rest of the record, we have
determined that waiving the filing requirement would not serve the interest of justice in this case.
1
This type of plea is named after North Carolina v. Alford, 400 U.S. 25 (1970), in which the United States
Supreme Court discussed the right of an accused to plead guilty in his best interest while professing his actual innocence.
2
W e wish to emphasize that the tardiness in the filing of the notice of appeal was not the fault of appellate
counsel in this case.
-2-
We realize that the petitioner in this case filed his own notice of appeal and that it was recommended
that he serve his sentence in a special needs facility. These facts would counsel the court’s discretion
in deciding to waive the time requirements for filing the notice of appeal if the petitioner were likely
to be successful on the merits. However, the petitioner’s plea colloquy and statements at the post-
conviction hearing make it clear that his plea was voluntary and he would have pled guilty regardless
of his allegations concerning his counsel’s deficiencies.
CONCLUSION
For this reason, we dismiss the petitioner’s appeal from the trial court’s denial of his
petition for post-conviction relief.
___________________________________
JERRY L. SMITH, JUDGE
-3- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060694/ | IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
FILED
NOT FOR PUBLICATION
August 30, 1999
DWAYNE HAWKINS and )
AL GOSSETT, )
Cecil Crowson, Jr.
)
PLAINTIFFS/APPELLEES, ) Appellate Court Clerk
)
v. ) No. 01S01-9811-CV-00199
)
SUPERIOR MOTORS, INC. and )
PATRICK A. HART, )
)
DEFENDANTS/APPELLANTS, )
)
)
NELSON BOWERS II and BOW ERS )
TRANSPORTATION GROUP, LLC, )
)
DEFENDANTS. )
ORDER
A petition for rehearing has been filed on behalf of Plaintiffs/Appellees,
Dwayne Hawkins and Al Gossett. After consideration of the same, the Court is
of the opinion that the petition is hereby denied.
Upon reconsideration of the allocation of costs in this cause, the Court
hereby vacates its Order of June 28, 1999, filed herein to the extent it assesses
costs and substitutes the following therefor: The costs of this cause accrued in
the Court of Appeals are hereby assessed against Defendants/Appellants,
Superior Motors, Inc. and Patrick A. Hart, for which execution may issue. The
costs of this cause accrued in the Supreme Court are hereby assessed against
Plaintiffs/Appellees, Dwayne Hawkins and Al Gossett, for which execution may
issue.
ALL OF WHICH IS SO ORDERED.
PER CURIAM | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154205/ | 963 A.2d 845 (2009)
197 N.J. 475
STATE
v.
WILLIAMS.
Supreme Court of New Jersey.
January 22, 2009.
Petition for certification. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154207/ | 963 A.2d 563 (2008)
COM.
v.
CORTEZ.
No. 2899 EDA 2007.
Superior Court of Pennsylvania.
September 19, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/237338/ | 224 F.2d 954
Jeavon L. ECKMAN and John P. Eckman, Appellants,v.Abe BAKER, Individually and Trading as Simmonds Upholstering Co.
No. 11520.
United States Court of Appeals Third Circuit.
Argued April 18, 1955.
Decided August 19, 1955.
Paul E. Moses, Pittsburgh, Pa., (Evans, Ivory & Evans, Pittsburgh, on the brief), for appellants.
Thomas P. Monteverde, Pittsburgh, Pa., (James J. Burns, Jr., Pittsburgh, Pa., on the brief), for appellee.
Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.
STALEY, Circuit Judge.
1
The plaintiffs (appellants), Jeavon L. Eckman and John P. Eckman, who are wife and husband and citizens of Pennsylvania, brought a trespass action in the Federal District Court for the Western District of Pennsylvania against Abe Baker, a citizen of Massachusetts. The complaint discloses the following facts: The suit resulted from an automobile accident which occurred in Allegheny County in the Western District of Pennsylvania involving a car which was owned and driven by the husband-plaintiff and another car which was owned by Christine Heftye and driven by her husband, Rudolph T. Heftye. Baker came into the picture because, at the time of the accident, Rudolph T. Heftye was driving the car within the course of employment for the defendant, Baker, and so, under well-known agency principles, Baker could be held liable for Heftye's misconduct.
2
Service was effected upon the defendant by substituted service in accordance with the provisions of the Pennsylvania Act of May 14, 1929, P.L. 1721, as amended by the Act of May 23, 1949, P.L. 1651, 75 Purdon's Pa.Stat.Ann. § 1201, the pertinent section of which reads as follows:
3
"* * * [A]ny nonresident of this Commonwealth, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this Commonwealth to nonresident operators and owners of operating a motor vehicle, or of having the same operated * * * shall, by such acceptance * * * and by the operation of such motor vehicle within the Commonwealth of Pennsylvania, make and constitute the Secretary of Revenue of the Commonwealth of Pennsylvania his, her, or their agent for the service of process. * * *"
4
After a preliminary hearing, the district court quashed the service of the summons and the complaint upon Baker because it construed the term "operator" in the Pennsylvania statute quoted above as limited in meaning to "driver." Since the pleadings disclosed that Baker was neither the owner nor the driver of the car which collided with husband-plaintiff's car, substituted service was not permitted.
5
In arriving at its conclusion, the district court followed the decisions of four different common pleas courts of Pennsylvania.1 (Substituted service in accord with Pennsylvania law is permitted by Rule 4(d) (7) of the Federal Rules of Civil Procedure, 28 U.S.C.)
6
The questions raised by the plaintiffs are whether the district court was bound to follow the common pleas courts' decisions, and, if not, whether the district court correctly concluded, 126 F.Supp. 656, that Pennsylvania law would not permit substituted service upon Baker.
7
The common pleas decisions are the only Pennsylvania decisions which directly interpret the meaning of "operator" in the nonresident motorist statute; no Pennsylvania appellate courts have specifically decided the point. We do not think that those decisions are binding upon the federal courts.
8
We are faced with a problem similar to that which faces a federal court when applying state law under the Rules of Decision Act,2 although here we look to state law because of Rule 4(d) (7). This court has held that the decisions of the lower non-appellate courts of Pennsylvania which have only a county-wide jurisdiction are not controlling upon the federal courts, with the exception that if there is a sufficient body of nisi prius opinion to form a consensus of legal thought on a given subject, the federal court should join in the consensus.3 What would constitute such a consensus is a problem which can only be answered as each specific fact situation is reviewed. Here we have decisions from four common pleas courts rendered over a twenty-year period. A common pleas court sitting in any one of sixty-three other counties in Pennsylvania would not be bound by that which has been decided in the other four as to the construction of the statute involved. Under such circumstances, we do not think there exists in Pennsylvania, a sufficient body of nisi prius law to which we should defer.
9
We shall accordingly attempt to arrive at that result which we think the appellate courts of Pennsylvania would reach.
10
The statutory language does not provide a definitive answer as to whether Baker was subject to substituted service. The term "operator" could be given a narrow meaning limited to "driver" or a more liberal meaning which would include one such as Baker who would be an operator in that he caused a car to be operated which he did not own. Perhaps either construction would be reasonable were we playing the role only of grammatical analysts. But, when statutory language can reasonably be read in more than one way, we must not limit ourselves in the process of construing words and phrases to a paper and printer's ink analysis.
11
Many states have nonresident motorist statutes. Although all these statutes are not identical, they all have the same primary purpose. It is to afford to local residents access to local courts for suits against nonresident tortfeasors, thereby giving the local residents an opportunity to bring a suit which they could not or would not do otherwise because of the many practical, financial, and geographical obstacles.
12
A construction of the statute that limits the word "operator" to "driver" would mean that the legislature intended to allow substituted service upon some tortfeasors but not others.
13
Assuming the facts of the complaint to be true, as we must, defendant Baker is just as liable as a tortfeasor as the driver Heftye. It seems clear to us that to fulfill the legislative policy, the term "operator" must be construed to include one such as Baker who neither owned nor drove the accident car but was responsible for its presence on the highways of Pennsylvania.
14
The rule of construction in our situation is to give effect to the will of the legislature, and there is no evidence that the legislature intended to discriminate in favor of any class of nonresident tortfeasors who through the operation of a motor vehicle in Pennsylvania become legally responsible to Pennsylvania citizens. Act of May 28, 1937, P.L. 1019, 46 Purdon's Pa.Stat.Ann. § 551. The word "operate" is commonly understood to mean control and management as well as performance of the physical act. The Pennsylvania Supreme Court in Midora v. Alfieri, 1941, 341 Pa. 27, 17 A.2d 873, very clearly indicated that it has a like understanding of the word. In that case, substituted service was made upon a New Jersey corporation because it was alleged that the corporation operated a motor vehicle in Pennsylvania since the driver of the car was an employee of the corporation. The Supreme Court of Pennsylvania held that there was no jurisdiction over the corporation only because the evidence at the preliminary hearing clearly showed that the driver was not an employee of the corporation. The court's language clearly indicates that had the driver been an employee of the corporation, the corporation would have been considered the "operator" — and, of course, a corporation cannot drive.
15
Ohio and New Jersey have statutes similar to the Pennsylvania statute. Appellate courts of both states have construed the word "operator" to mean not only the actual driver, but also the person in whose behalf a motor vehicle is being driven, whether or not such person is the owner. Pray v. Meier, 1942, 69 Ohio App. 140, 40 N.E.2d 850, 43 N.E. 2d 318; McLeod v. Birnbaum, 1936, 14 N.J.Misc. 485, 185 A. 667. We believe that the Pennsylvania Supreme Court would reach the same result. The various arguments presented by the defendants have not persuaded us otherwise.
16
For the foregoing reasons, the order of the district court will be reversed and the cause will be remanded with instructions that the service effected upon defendant Baker be reinstated.
Notes:
1
Riccio v. Niagara Cotton Co., 1931, 15 Lehigh Co.L.J. 195, 47 York Leg.Rec. 70; Darling v. Paramount Line, Inc., 1941, 24 Erie L.J. 109; Burns v. Philadelphia Transportation Co., 1942, 44 Pa. Dist. & Co. 654; Stouffer v. Eastern Motor Dispatch, Inc., 1951, 80 Pa.Dist. & Co. 30
2
See King v. Order of United Commercial Travelers, 1948, 333 U.S. 153, 68 S.Ct. 488, 92 L.Ed. 608
3
Berkshire Land Co. v. Federal Security Co., 3 Cir., 1952, 199 F.2d 438, 440-441; Sunbeam Corp. v. Civil Service Employees' Cooperative Ass'n, 3 Cir., 1951, 187 F.2d 768, 771-772 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1009226/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7289
In Re: RAYMOND CHERISSON,
Petitioner.
On Petition for Writ of Mandamus. (CR-94-97)
Submitted: November 21, 2002 Decided: December 13, 2002
Before LUTTIG, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Raymond Cherisson, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Raymond Cherisson petitions for a writ of mandamus, alleging
the district court has unduly delayed acting on his Fed. R. 60(b)
motion. He seeks an order from this court directing the district
court to act. Our review of the docket sheet reveals that the
district court entered an order denying Cherisson’s Rule 60(b)
motion on November 5, 2002. Accordingly, because the district court
has recently decided Cherisson’s case, we grant leave to proceed in
forma pauperis and deny the mandamus petition as moot. 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.
PETITION DENIED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054417/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
April 11, 2006 Session
STATE OF TENNESSEE v. KENNETH LYLE DAVIS
Direct Appeal from the Circuit Court for Madison County
No. 03-92 Donald H. Allen, Judge
No. W2005-02147-CCA-R3-CD - Filed June 22, 2006
The defendant, Kenneth Lyle Davis, appeals from the trial court’s order revoking his probation and
reinstating his original sentence of two years. Following our review, we affirm the judgment of the
trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
J.C. MCLIN , J., delivered the opinion of the court, in which NORMA MC GEE OGLE and ALAN E.
GLENN , JJ., joined.
Gregory D. Gookin, Assistant Public Defender, Jackson, Tennessee, for the appellant, Kenneth Lyle
Davis.
Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
Jerry Woodall, District Attorney General; and Angela Scott and Anna M. Banks, Assistant District
Attorneys General, for the appellee, State of Tennessee.
OPINION
I. Facts & Procedural History
On June 9, 2003, the defendant pled guilty to driving under the influence (DUI) and felony
reckless endangerment. He received an aggregate sentence of two years with five days to be served
in confinement and the remainder to be served on probation. In addition, the defendant was fined
$350.00 and ordered to perform one hundred hours of community service. On April 27, 2005, the
defendant’s probation officer, Susann Lee, filed a probation violation report alleging that the
defendant had failed to pay all fines, supervision fees, and court costs, and had not completed the
required hours of community service. Lee also noted that the defendant’s suspended sentence would
expire on June 3, 2005. On May 16, 2005, the trial court stated, in a written order, that the “cause
came to be heard . . . upon a probation violation warrant. It being shown to the court that the
defendant ha[d] not completed payment of fines, costs, and supervision fees in this matter[.]” The
trial court then extended the defendant’s probation for one year.
In July 2005, a probation violation warrant was issued alleging the defendant violated his
probation by committing the offenses of felony evading arrest, possession of methamphetamine with
intent to sell and/or deliver, and possession of marijuana with intent to sell and/or deliver. A hearing
on the warrant was held on August 15, 2005. At the hearing, Sheriff’s Department Investigator,
Charlie Yarbrough testified that on June 3, 2005, around 7:30 p.m., he noticed a car parked on the
side of Old Humboldt Road. “The driver of the vehicle was leaned forward, [with his] head down,”
so Yarbrough decided to check on the driver’s well-being. As Yarbrough approached the car, the
driver turned to look at Yarbrough and drove away. At that point, Yarbrough recognized the
defendant to be the driver. Yarbrough explained that he recognized the defendant because he had
previously conducted surveillance at the defendant’s residence and was familiar with the defendant’s
car.
When the defendant drove away, Yarbrough activated the lights and siren on his patrol car
and followed in pursuit. The pursuit ended after the defendant drove off Deloach Road onto a dirt
road, got out of his car, and ran into the woods. Yarbrough searched the abandoned car and found
1.6 grams of methamphetamine, 27.7 grams of marijuana, a pipe, and two sets of scales. He also
recovered the defendant’s photograph from the car and identified the person in the photograph as the
driver of the car. According to Yarbrough, the car was registered in the defendant’s name and was
not reported stolen. Warrants for the defendant’s arrest were obtained approximately three to four
weeks later.
Susann Lee testified that she was the defendant’s probation supervisor. She explained that
she had filed the initial probation violation report because the defendant’s probation was nearing
expiration and the defendant had neither completed his community service, nor paid all of the fees
and fines he owed. Lee stated that after a revocation hearing on May 25, 2005, the trial court
extended the defendant’s probation for one year, giving the defendant until June 3, 2006, to complete
the conditions of his probation. On cross-examination, Lee acknowledged that the defendant had
always reported as scheduled, never failed a drug test, completed all of his community service on
May 5th, paid his supervision fees on June 16, 2005, and paid the balance of his fees and fines the
day of this hearing, August 15, 2005.
Karen McPeak testified on the defendant’s behalf. She explained that she employed the
defendant to remodel her hair and beauty salon. According to a notation in McPeak’s appointment
book, the defendant worked, remodeling her salon on June 3, 2005 from “2:30 until 9:30.” On cross-
examination, McPeak admitted that she could not remember when she made the notation in her
appointment book. However, McPeak stated that she stayed with the defendant at the salon until
9:30 p.m. when the defendant quit working.
The defendant testified that his car had been stolen sometime before June 3, 2005. He stated
that he called the sheriff’s department three or four times to report the theft but was ignored.
-2-
However, he acknowledged that he never went down to the police station or met with any police
officer to make a formal report of the theft.
Following closing remarks by the state and defense counsel, the trial court revoked the
defendant’s probation and ordered him to serve the balance of his sentence.
II. Analysis
On appeal, the defendant argues that the trial court erred in revoking his probation and
ordering him to serve his original sentence. We begin our review by noting that the decision to
revoke probation lies in the sound discretion of the trial court. State v. Leach, 914 S.W.2d 104, 106
(Tenn. Crim. App. 1995). The trial court may revoke probation upon finding by a preponderance
of the evidence that the defendant has violated the conditions of his or her probation. See Tenn.
Code Ann. §§ 40-35-310, 311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The judgment
of the trial court to revoke probation will be upheld on appeal unless there has been an abuse of
discretion. Harkins, 811 S.W.2d at 82. If the trial court has exercised “conscientious judgment in
making the decision rather than acting arbitrarily,” then there is no abuse of discretion. Leach, 914
S.W.2d at 107. Discretion is abused only if the record contains no substantial evidence to support
the trial court’s conclusion that a violation has occurred. Harkins, 811 S.W.2d at 82; State v.
Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).
Upon review of the record and the foregoing authorities, we conclude that the trial court did
not abuse its discretion in revoking the defendant’s probation. In the instant case, the trial court
determined that the defendant violated his probation by committing the offenses of felony evading
arrest, possession of methamphetamine with intent to sell and /or deliver, possession of marijuana
with intent to sell and / or deliver, and driving on a revoked license. In making its determination,
the trial court specifically found credible Officer Yarbrough’s testimony that: (1) the defendant was
the driver of the vehicle; (2) the defendant owned the vehicle; and (3) the vehicle contained 1.6
grams of methamphetamine and 27.7 grams of marijuana. In contrast, the trial court found that the
defendant’s testimony regarding the theft of his vehicle lacked credibility in that no police report was
ever filed. Therefore, it is apparent from the record that the trial court accredited the evidence
presented by the state over the evidence presented by the defense. Accordingly, discerning no abuse
of discretion, we affirm the judgment of the trial court.
___________________________________
J.C. McLIN, JUDGE
-3- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/247581/ | 264 F.2d 807
ROOSEVELT MATERIALS COMPANY, a Corporation, Appellant,v.NOLAN BROTHERS, INC., a Corporation, Appellee.
No. 5969.
United States Court of Appeals Tenth Circuit.
March 23, 1959.
C. J. Watts, of Looney, Watts, Looney & Nichols, Oklahoma City, Okl. (Anna B. Otter, Oklahoma City, Okl., on the brief), for appellant.
Richard W. Fowler, of Cochran, Dudley, Fowler, Rucks, Baker & Jopling, Oklahoma City, Okl., for appellee.
Before BRATTON, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
PICKETT, Circuit Judge.
1
Roosevelt Materials Company, an Oklahoma corporation, brought this action against Nolan Brothers, Inc., a Minnesota corporation, to recover damages for an alleged breach of contract. The case was tried to the court without a jury, and judgment was entered for defendant.
2
The defendant Nolan was a prime contractor with the United States for the construction of certain facilities at Clinton Sherman Air Force Base at Clinton, Oklahoma. The Doyle Gilbert Contracting Co., as a subcontractor, agreed to furnish Nolan particular paving materials known as "aggregate", specified and required by the prime contract. This subcontract contained a provision that Gilbert should produce the materials from a location known as the "Graumann lease". Thereafter Roosevelt contracted with Nolan to furnish other paving materials described as "screenings". This subcontract provided: "Supplier (Roosevelt) shall have the option to furnish all materials which Doyle Gilbert Contracting Co. may not be able to produce under his present contract". Gilbert, in order to continue performance under his contract, abandoned the Graumann lease and, subsequent to the execution of Roosevelt's contract, furnished the required materials from other locations. Roosevelt contends that Gilbert's subcontract restricted the materials which he could furnish to those produced from the Graumann lease, and that Nolan's acceptance of materials produced from other sources constituted a denial of the option right.
3
At the close of the plaintiff's evidence, the trial court sustained a motion for judgment in favor of the defendant, after concluding that the parties to the Nolan-Roosevelt contract intended the option to be exercisable only after Gilbert became unable to supply acceptable materials from any source whatsoever, and that since Gilbert had substantially performed his subcontract, Roosevelt's option to furnish materials which Gilbert had agreed to supply never became effective.
4
Speaking of the court's function in determining the intention of parties to a contract, we said in Liberty Nat. Bank & Trust Co. v. Bank of America Nat. Trust & Sav. Ass'n, 10 Cir., 218 F.2d 831, 840:
5
"The primary function of judicial interpretation is to ascertain and give effect to the intention of the parties as expressed in their writing. And the basic rule of universal acceptation for the ascertainment of such intention is for the court, so far as possible, to put itself in the place of the parties when their minds met upon the terms of the agreement, and, taking into consideration the writing itself, its purpose, and the circumstances leading up to and attending its execution, endeavor to ascertain what the parties purposed and intended by their agreement."
6
Applying this rule, we think the evidence shows that the parties did not intend that the option would become effective if Gilbert supplied the materials from sources other than the Graumann lease.1 When its contract was executed, Roosevelt did not know of the provision in the Gilbert contract which referred to the place of production. It knew only that the materials were being furnished from the Graumann lease and that Gilbert would be required to resort to some other source of supply to carry out his contract. When Gilbert abandoned that location and furnished the materials from other sources, Roosevelt did not assert any right under the option and made no demand upon Nolan for that purpose. It is clear that the parties intended that the option would become operative only in case Gilbert failed to perform.
7
It is conceded that Gilbert supplied the materials required by his contract in good faith. The furnishing of materials which satisfied the contract specifications, from locations other than the Graumann lease, was, at the most, no more than a technical variance from the specific terms of the contract, and was not detrimental to Nolan. Gilbert did not cease production "under his present contract", and therefore, Roosevelt never had the right to exercise the option. 12 Am.Jur., Contracts, § 343; Baer Bros. Land & Cattle Co. v. Reed, 10 Cir., 197 F.2d 569; Oklahoma Transp. Co. v. Hartford Accident & Indemnity Co., 206 Okl. 603, 245 P.2d 717; Raitman v. McCune, 167 Okl. 511, 30 P.2d 878; Hunt v. Tulsa Terrazzo & Mosaic Co., 157 Okl. 174, 11 P.2d 521; Robinson v. Beaty, 75 Okl. 69, 181 P. 941.
8
Affirmed.
Notes:
1
The trial court found: "In the negotiation and execution of the subcontract of February 21, 1956, plaintiff and defendant did not intend the option provision contained therein to become effective as long as the said Gilbert was able to supply acceptable aggregate, from whatever source obtained, to meet the defendant's needs, and did not intend that said option provision should apply, or become effective, merely because the said Gilbert might find it necessary to produce the materials required by his subcontracts from locations other than his Penner and Graumann leases." | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/4520559/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01178-CR
GEORGE GUO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-00090-M
ORDER
The reporter’s record was originally due November 22, 2019. The Court
granted two extension requests making it due February 28, 2020. To date, the
reporter’s record has not been filed and we have had no further communication
from court reporter Belinda Baraka.
We ORDER the reporter’s record filed on or before April 15, 2020. We
caution Ms. Baraka that the failure to file the reporter’s record by that date may
result in the Court taking whatever action it deems appropriate to ensure that this
appeal proceeds in a more timely fashion, which may include ordering that she not
sit as a court reporter until the record in this appeal is filed.
We DIRECT the Clerk to send copies of this order to the Honorable Ernest
White, Presiding Judge, 194th Judicial District Court; Belinda Baraka, court
reporter, 194th Judicial District Court; and to counsel for all parties.
/s/ BILL PEDERSEN, III
JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/1060693/ | 999 S.W.2d 773 (1999)
SCHERING-PLOUGH HEALTHCARE PRODUCTS, INC., Plaintiff/Appellee,
v.
STATE BOARD OF EQUALIZATION, Defendant/Appellant.
Supreme Court of Tennessee, at Jackson.
August 30, 1999.
*774 John Knox Walkup, Attorney General and Reporter, Michael E. Moore, Solicitor General, Michael W. Catalano, Associate Solicitor General, Nashville, for Defendant/Appellant.
Fred M. Ridolphi, Jr., Humphreys, Dunlap, Wellford, Acuff & Stanton, P.C., Memphis, for Plaintiff/Appellee.
Donnie E. Wilson, Shelby County Attorney, Robert B. Rolwing, Assistant County Attorney, for Amicus Curiae Shelby County and Shelby County Assessor.
OPINION
DROWOTA, Justice.
This case presents for review the decision of the Court of Appeals which reversed the Chancery Court's dismissal of the petition of Schering-Plough Healthcare Products, Inc. ("Schering-Plough") which sought judicial review of a decision of the State Board of Equalization ("Board"). The Chancery Court dismissed the petition after concluding that it lacked subject matter jurisdiction over the action because Schering-Plough had failed to name Shelby County as a party in the petition and had failed to serve Shelby County with a copy of the petition within sixty days of the final decision of the Board. The Court of Appeals reversed the dismissal and held that Tenn.Code Ann. § 4-5-322(b) (1998 Repl.) does not require that all parties to the contested case be named in the petition for review or that copies of the petition be served upon all parties to the contested case within the sixty-day time limitation. We agree and now affirm the decision of the Court of Appeals.
BACKGROUND
The facts relevant to the legal question in this appeal are undisputed.[1] Schering-Plough owns property located in Shelby County. The Shelby County Board of Equalization prepared a tax assessment of the property. On September 1, 1994, *775 Schering-Plough appealed the assessment. On October 18, 1994, following a hearing, the administrative law judge issued an initial decision and order affirming the assessment. See Tenn.Code Ann. § 67-5-1505 (1998 Repl.). Schering-Plough appealed this decision to the Assessment Appeals Commission ("Commission"), which issued its final decision affirming the assessment on April 10, 1995. See Tenn. Code Ann. § 67-5-1506 (1998 Repl.). The Board declined to review the Commission's decision on May 25, 1995 and thereby rendered the action of the Commission final. See Tenn.Code Ann. § 67-5-1502(j)(1) (1998 Repl.). It is undisputed that Shelby County through its Assessor's office participated as a party in the contested case before the administrative law judge and the Commission.
On July 21, 1995, within sixty days of the agency's final decision, Schering-Plough filed in the Shelby County Chancery Court a "Petition for Review of the Action of the State Board of Equalization." On September 25, 1995, the Board moved to dismiss the action because Schering-Plough had not named Shelby County as a party in the petition and because Schering-Plough had not served a copy of the petition upon Shelby County within sixty days of the agency's final order.
Two days later, on September 27, 1995, Schering-Plough moved to amend its petition to add as party defendants Shelby County, the Shelby County Assessor, and the Shelby County Trustee. After these motions were filed, Schering-Plough served a copy of the petition upon these additional parties. Thereafter, Shelby County, the Assessor, and the Trustee filed a joint motion to quash service, or in the alternative, to dismiss, relying upon the same grounds alleged by the Board: failure to name all parties to the contested case and failure to serve a copy of the petition upon all parties to the contested case within sixty days of the final order of the agency.
Following a hearing, the Chancellor granted the Board's motion to dismiss, stating "Schering-Plough's failure to name Shelby County as a defendant and to serve upon the County . . . a copy of the Petition renders this Court without subject matter jurisdiction over this action."[2] The Court of Appeals reversed the dismissal and held that Schering-Plough had properly preserved its right to judicial review of the administrative decision simply by filing its petition for review with the Chancery Court within sixty days of the final agency decision. Relying upon this Court's decision in Jaco v. Department of Health, Bureau of Medicaid, 950 S.W.2d 350, 353 (Tenn.1997), the Court of Appeals also concluded that the sixty-day time limitation does not apply to the statutory provision which requires that all parties of record be served with a copy of the petition. Thereafter, this Court granted the Board's application for permission to appeal and now affirms the decision of the Court of Appeals for the reasons that follow.
STATUTORY CONSTRUCTION
In resolving the issues in this appeal, we are guided by the following general rules of statutory construction. The role of this Court in construing statutes is to ascertain and give effect to legislative intent. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn.1995). Legislative intent is to be ascertained whenever possible from the natural and ordinary meaning of the language used, without forced or subtle construction that would limit or extend the meaning of the language. Carson Creek Vacation Resorts, Inc. v. State, Dep't of Revenue, 865 S.W.2d 1, 2 (Tenn.1993). If the legislative intent is expressed in a manner devoid of contradiction and ambiguity, *776 there is no room for interpretation or constructions, and courts are not at liberty to depart from the words of the statute. Id. Where the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, "to say sic lex scripta, and obey it." Id., quoting Miller v. Childress, 21 Tenn. (2 Hum.) 320, 321-22 (1841).
With these principles in mind, we next consider the statute that is the focus of this appeal. Under the Uniform Administrative Procedures Act (UAPA),[3] a party aggrieved by a final decision of an administrative agency may seek judicial review of the contested case. Tenn.Code Ann. § 4-5-322(a) (1998 Repl.). The procedure for obtaining review is delineated in Tenn.Code Ann. § 4-5-322(b) (1998 Repl.), which provides, in pertinent part:
(1) Proceedings for review are instituted by filing a petition for review in the chancery court of Davidson County, unless another court is specified by statute.[4]Such petition shall be filed within sixty (60) days after the entry of the agency's final order thereon. ...
(2) In a case in which a petition for judicial review is submitted within the sixty-day period but is filed with an inappropriate court, the case shall be transferred to the appropriate court. . . . Copies of the petition shall be served upon the agency and all parties of record, including the attorney general and reporter, in accordance with the provisions of the Tennessee Rules of Civil Procedure pertaining to service of process.
(Emphasis added.) We agree with the Court of Appeals that the plain language of this statute imposes only two requirements upon a party seeking judicial review of a contested case. First, the statute requires an aggrieved party to file a petition for review in an appropriate chancery court within sixty days after entry of the agency's final order. The sixty-day time limitation upon filing of the petition is jurisdictional. Bishop v. Department of Correction, 896 S.W.2d 557 (Tenn.App.1994) (perm. app. denied March 20, 1995). The second requirement of the statute is that a copy of the petition be served "upon the agency and all parties of record, including the attorney general and reporter, in accordance with the provisions of the Tennessee Rules of Civil Procedure pertaining to service of process." Tenn.Code Ann. § 4-5-322(b) (1998 Repl.).
Contrary to the Board's assertions, these are the only two procedural requirements under Section 322 for obtaining judicial review of a contested case.[5] Nothing in the statute mandates that the petition itself name all the parties to the contested case. So long as a copy of the petition is served upon the "parties of record" to the contested case, the unambiguous dictates of the statute are satisfied. Though we base our decision on the plain language of the statute, we agree with the Court of Appeals that a petition for review is comparable to a notice of appeal. As we stated in Jaco, a petition for judicial review is the continuation of an administrative proceeding in much the same way that an appeal can be characterized as a continuation of the underlying action. The parties to the contested case have previously *777 been determined and are "of record." Jaco, 950 S.W.2d at 352. As the Court of Appeals noted, failure to name a party in a caption of a notice of appeal is not a reason for dismissal of the appeal. See Tenn.R.App. P. 3(f). Similarly, failure to name a party in a petition for judicial review is not grounds for dismissal of the proceeding.
Moreover, we reject the Board's argument that dismissal is required unless a copy of the petition for review is served within sixty days after entry of the final agency order. While the statute clearly requires that the petition for review be filed within the sixty-day time period, the statute does not mandate that service occur within that same time period. The sixty-day limitation appears in the statutory subsection relating to filing not service of the petition for review. In fact, the statute does not designate a definite time period within which service must be accomplished. It provides only that service of a copy of the petition be accomplished in accordance with the Tennessee Rules of Civil Procedure pertaining to service of process. As we stated in Jaco, this portion of the statute refers only to the method and means of service set forth in the rules. Jaco, 950 S.W.2d at 353. Judicially applying the sixty-day period to service of the petition is not appropriate in light of the plain language of the statute.
The Board's assertions that an aggrieved party must name all the parties to the contested case in the petition for review and serve the petition for review within the sixty-day time period simply are not supported by the plain language of the statute. As previously stated, where the language contained within the four corners of a statute is plain, clear, and unambiguous, courts are not at liberty to depart from the language of the statute. Judicial construction simply is not appropriate. Carson Creek Vacation Resorts, Inc., 865 S.W.2d at 2. Moreover, the Board's proposed construction is inconsistent with the General Assembly's expressed intent that the UAPA be "given a liberal construction and any doubt as to the existence or the extent of a power conferred shall be resolved in favor of the existence of the power." Tenn.Code Ann. § 4-5-103 (1998 Repl.). The clear language of the statute confers upon certain chancery courts the jurisdictional power to consider petitions for review which are filed within sixty days after entry of the final agency order. The Board's proposed construction would divest a chancery court of jurisdiction even though an aggrieved party has satisfied all the explicit statutory requirements for obtaining judicial review. We decline to adopt such a construction.
For the reasons discussed above, we reject the Board's proposed construction of Tenn.Code Ann. § 4-5-322(b) (1998 Repl.). The plain language of the statute does not require an aggrieved party to name all parties of record to the contested case in the petition for judicial review, nor does it require service of a copy of the petition within the sixty-day time period.[6] The plain language of the statute requires only that a petition for review be filed within sixty days after entry of the final agency order and that a copy of the petition be served upon the agency and all parties of record, including the Attorney General and Reporter, in accordance with the method and manner prescribed by the Tennessee Rules of Civil Procedure for service of process.
CONCLUSION
Applying these principles to the facts of this case, it is clear that Schering-Plough *778 has satisfied both statutory requisites. Schering-Plough's petition for review was filed within the sixty-day time limitation. The parties of record to the contested case have been served with a copy of the petition. Accordingly, the decision of the Court of Appeals reversing the Chancery Court's dismissal is affirmed.
ANDERSON, C.J., BIRCH, HOLDER, BARKER, JJ., concur.
NOTES
[1] We do not include a summary of the facts relating to the assessment of Schering-Plough's property since the appropriateness of the assessment is not an issue in this appeal.
[2] At the trial level, the Board alleged and the Chancellor cited a third basis in support of dismissalfailure to serve process on all parties of record. In light of this Court's decision in Jaco v. Department of Health, Bureau of Medicaid, 950 S.W.2d 350, 353 (Tenn.1997), the Board has abandoned this position on appeal.
[3] Tenn.Code Ann. §§ 4-5-101 through 4-5-325 (1998 Repl.).
[4] At the time of the filing of Schering-Plough's petition for review on July 21, 1995, Tenn.Code Ann. § 67-5-1511 (1994 Repl.) permitted the filing of a petition for review of a decision of the Board in "Davidson County or the chancery court of the county where the disputed assessment was made." In this case, the disputed assessment was in Shelby County, and Schering-Plough filed its petition in the Shelby County Chancery Court.
[5] The Board's reliance upon Tenn.Code Ann. 67-5-1511(b) (1998 Repl.) is misplaced. This statute governs the scope of evidence admissible at a chancery court hearing on a petition for judicial review of a decision of the Board. It does not delineate the procedure required for obtaining judicial review in chancery court in the first instance.
[6] To the extent inconsistent with our decision herein all previous appellate court decisions are overruled including HRA, Inc. v. Department of Commerce & Ins., 914 S.W.2d 512, 513-14 (Tenn.App.1995). We also expressly disapprove the dicta statement of this Court in Jaco which characterized the result in HRA, Inc. as "clearly correct." Jaco, 950 S.W.2d at 353. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1232484/ | 683 N.W.2d 671 (2004)
471 Mich. 865-869
PEOPLE
v.
BALLARD.
No. 125769.
Supreme Court of Michigan.
July 29, 2004.
SC: 125769. COA: 241583.
On order of the Court, the application for leave to appeal the November 25, 2003 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/413611/ | 698 F.2d 1219
Hendersonv.Bentley
80-5371
UNITED STATES COURT OF APPEALS Sixth Circuit
2/8/82
E.D.Tenn., 500 F.Supp. 62
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1054403/ | IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 14, 2005 Session
STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v.
BINTA AHMAD
Appeal from the Juvenile Court for Coffee County
No. 342-00J Timothy J. Brock, Judge
No. M2004-02604-COA-R3-PT - Filed April 26, 2005
Mother appeals termination of her parental rights to her two minor children. She and her two infant
children immigrated to the United States illegally in 1998 when the children were two and one years
of age, respectively. In 1999, Mother was arrested on felony theft charges. Being unable to make
bond, she remained incarcerated for over a year following which she pled guilty to a felony. She was
then turned over to immigration officials and was detained for an additional two years only to be
deported to Nigeria in December 2002, where she remains. The children have remained in foster
care for more than five years. Mother appeals claiming the evidence to be insufficient to prove
grounds for termination and that termination is not in the children’s best interest. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
FRANK G. CLEMENT , JR., J., delivered the opinion of the court, in which WILLIAM B. CAIN , J., and
DONALD P. HARRIS, SP . J., joined.
Jeffrey D. Ridner, Tullahoma, Tennessee, for the appellant, Binta Ahmad.
Paul G. Summers, Attorney General and Reporter; and Joe Shirley, Assistant Attorney General, for
the appellee, State of Tennessee Department of Children’s Services.
MEMORANDUM OPINION1
The parental rights of the mother and the putative father of each of her two children were
terminated. The putative fathers’ parental rights were terminated on the grounds of abandonment.
1
Tenn. Ct. App. R. 10 states:
This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. W hen a case
is decided by memorandum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
Neither putative father appeals. The mother’s parental rights were terminated on the grounds of
abandonment and failure to remedy persistent conditions. She appeals, raising four issues: (1)
whether the Department proved grounds for termination by clear and convincing evidence; (2)
whether the Department proved that it complied with its mandate to restore the family unit if
possible; (3) whether the Department proved that it made reasonable efforts, and (4) whether
termination was in the children’s best interest.2
The genesis of the grounds for termination of mother’s parental rights was when the mother
was incarcerated in May 1999 for felony theft. Ever since then she has been unable to provide for
her children or to remedy the conditions which led to the Department taking custody of her children.3
Following her arrest, the mother remained in jail for over a year because she could not make
bond. After a lengthy incarceration, she pled guilty to a felony theft charge. Due to the fact she was
an illegal immigrant and a convicted felon, she was not released. Instead, she was transferred to
immigration officials who detained her pending deportation.
The mother and both of her children are illegal immigrants. She was born in Nigeria but
claims she is an Egyptian citizen because her father was Egyptian; however, United States
immigration officials concluded that she was a Nigerian citizen. The mother identified Andrew
Oniha as the father of the older child and Anthony Ukpetnan as the father of the younger child. She
states that she has neither seen nor heard from the children’s fathers since leaving England in 1998.
The putative fathers, whose last known addresses were in London, England, were named as
defendants. They were served by publication in London, England; however, neither filed an answer.
Because the mother was unable to prove her citizenship to the satisfaction of U.S.
immigration officials, they informed her that she would be deported to Nigeria. Prior to the
scheduled deportation, the mother was presented with a dilemma no parent should have to face. It
was not unlike the dilemma faced by the mother of an infant child when King Soloman was to decide
which of two women was the mother of an infant. Though we cannot appreciate the difficulties she
would experience attempting to raise two young children in Nigeria without assets, income, shelter
or family, we assume it would be a most difficult, if not almost impossible, task. Her choices were
limited to two heartrending options. She made a decision she believed to be in the best interest of
her children, that they remain in the custody of the Department with the foster family in Tennessee.
2
Throughout these proceedings, the mother has either been incarcerated on the felony charges, awaited
deportation or resided in Nigeria following deportation. She was fortunate to have been ably represented by Jeffrey D.
Ridner who has zealously advocated on her behalf.
3
A family friend cared for the children for several months following her incarceration. W hen it became apparent
that the mother was not going to be released from jail, the friend contacted the Department in July of 2000, advising that
he was no longer able to provide constant care for them.
-2-
Since her deportation to Nigeria, the mother has been unable to remedy the conditions which
necessitated the Department taking custody of her children.4 The Department has had custody of the
children since September of 2000 because there was no family member or friend available to
properly care for the children while she was incarcerated. Due to her incarceration, which was in
Alabama, and her detention by immigration officials, which was in Louisiana, the children have only
been able to visit with their mother twice in the last six years, which is more than half of each child’s
life.5
Parents have a fundamental right to the care, custody and control of their children. Stanley
v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993). This right
is superior to the claims of other persons and the government, yet it is not absolute. A court may
terminate a parent’s parental rights if it finds by clear and convincing evidence that one of the
statutory grounds for termination of parental rights has been established and that the termination of
such rights is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c); Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002); In re A.W., 114 S.W.3d 541, 544 (Tenn. Ct. App. 2003); In re
C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000).
In an effort to balance the important, fundamental rights of a parent and the best interest of
a child, our legislature has provided that parental rights may only be terminated for specific, well-
defined grounds. In re A.W., 114 S.W.3d at 544. The statutory grounds for termination of parental
rights are set forth within Tenn. Code Ann. § 36-1-113(g). The existence of any one of the statutory
grounds is sufficient to support a trial court’s decision to terminate parental rights. In re C.W.W.,
37 S.W.3d at 473; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). One of those grounds is
failure to remedy persistent conditions. Tenn. Code Ann. § 36-1-113(g)(3).
The statute provides for termination when the child has been removed from the home of the
parent by order of a court for a period of six (6) months and
(i) The conditions which led to the child's removal or other conditions which in all
reasonable probability would cause the child to be subjected to further abuse or
neglect and which, therefore, prevent the child's safe return to the care of the
parent(s) or guardian(s), still persist;
(ii) There is little likelihood that these conditions will be remedied at an early date
so that the child can be safely returned to the parent(s) or guardian(s) in the near
future; and
4
It is most tragic that Mother could not prove she was an Egyptian citizen. If she had, then she and her children
could have been deported together to Egypt. However, since she did not prove her citizenship, immigration officials
concluded that she was a Nigerian citizen and deported her to Nigeria. Because of concerns for the children’s safety in
Nigeria, she requested that her children not be deported to Nigeria. Her plan was to relocate to a safe country and reclaim
her children.
5
The two visits were facilitated by the Department and were in the penal facility in Alabama.
-3-
(iii) The continuation of the parent or guardian and child relationship greatly
diminishes the child's chances of early integration into a safe, stable and permanent
home.
Tenn. Code Ann. §36-1-113(g)(3)(A). The record provides clear and convincing evidence to support
the finding that the mother has been unable to provide for the children for more than six years, that
she has been unable to remedy the conditions which led to the removal of her children, and that there
is little likelihood, if any, that these conditions will be remedied at an early date.6 That is sufficient
to establish one ground for termination, See State v. Layne, No. M2001-00652-COA-R3-JV, 2002
WL 126320 (Tenn. Ct. App. Feb. 1, 2002), and the existence of any one of the statutory grounds will
support a termination of parental rights. In re C.W.W., 37 S.W.3d 467, 473-74 (Tenn. Ct. App.
2000) (citing In re M.C.G., No. 01A01-9809-JV-00461, 1999 WL 332729, at *5 (Tenn. Ct. App.
May 26, 1999); Department of Children's Servs. v. Darr, No. 03A01-9706- JV-00213, 1998 WL
128874, at *3 (Tenn. Ct. App. Mar. 24, 1998).
The reasonableness of the efforts of the Department is disputed. Mother claims the
Department did little other than write a few letters and make a few phone calls. She also complains
that there was no continuity of effort due to three different case managers having worked the case.
The Department claims it made reasonable efforts but was thwarted at every front due to
international roadblocks.
While the Department’s efforts do not appear to be Herculean, they were reasonable under
the circumstances. Moreover, it is most apparent that no matter how zealous its efforts, the
reunification of the family unit, or placement with a family member, were beyond the control of the
Department due to the international constraints over which the Department had no control. The
outcome of this case was predominately affected by matters beyond the control of the Department.
Particularly, the criminal courts of Alabama, the U.S. and British immigration officials, and the
mother’s inability to establish her citizenship and that of her two children. All of these contributed
to determine the outcome of this case. Moreover, the mother was unable to provide current or
accurate information to identify or locate either father of the children. She had not kept in touch with
either father and had no knowledge of their home address or employment. Furthermore, she could
not provide any information on the citizenship of either father which greatly diminished the efforts
of all involved to relocate the children with the mother’s cousin in England.7 As a result, the only
option was to deport the children with their mother or allow them to remain with the foster parents
in Tennessee.
6
The statute only requires a minimum period of six months. Tenn. Code Ann. § 36-1-113(g)(3)(A).
7
This is because the mother and the Department could not prove the children were British citizens and England
would not permit the children to return to that country. Unless the mother and the Department could prove the parentage
of the putative fathers and that they were British citizens, and therefore the children were too, no amount of efforts,
reasonable or well above and beyond reasonable, would have saved the day.
-4-
The final issue is whether termination of the mother’s parental rights is in the best interest
of the children. It is sufficient if the children have been in foster care for more than six months and,
as here, the parent has been and remains unable to provide and maintain stable housing and to
provide adequate support for the children and there is no likelihood that these conditions will be
remedied at an early date. Tenn. Code Ann. §36-1-113(g)(3). Further, it is evident that the children
would suffer emotionally from a change of caretakers because the children have been in a stable
home environment for six years and have only seen their mother on two occasions during this period.
We fully recognize this to be a tragic case; nevertheless, it is most evident that it is in the children’s
best interest to terminate the mother’s parental rights in order to extinguish what has been six years
of purgatory to make the children available for adoption.
Perhaps termination of the mother’s parental rights would not have been necessary had the
mother not migrated illegally to the United States, or had she not committed a felony in Alabama,
or had she been able to prove that she was an Egyptian citizen or that the children were British
citizens. However, putting all the “ifs, ands or buts” aside, what we are faced with is a mother who
was vanquished to Nigeria and who is unable to remedy the conditions that led to the Department
having to take custody of the children, and two minor children whose lives have been in limbo for
six years.
As tragic as this case is, we are not unmindful of what appears to be a silver lining, that is
the children have been residing this entire time with foster parents who desire to adopt both children.
This silver lining makes it obvious that it is in the children’s best interest to terminate the mother’s
parental rights in order to make the children available for adoption.
In conclusion, we hold that the Department has proven by clear and convincing evidence
grounds for termination, failure to remedy persistent conditions, and that termination of parental
rights is in the children’s best interest. Therefore, the judgment of the trial court is affirmed and this
matter is remanded with costs of appeal assessed against the Department of Children’s Services.
___________________________________
FRANK G. CLEMENT, JR., JUDGE
-5- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/7023673/ | JUSTICE DUNN delivered the opinion of the court: Respondent, RA.G., a minor, appeals from the finding of the circuit court of Lake County that he committed the offense of attempted residential burglary. On appeal, respondent contends the evidence was insufficient to establish a requisite element of the charged offense: that respondent intended to commit a felony or theft within the dwelling he allegedly attempted to break into and enter. The State argues that it presented sufficient evidence defendant intended to commit a theft inside the dwelling. We affirm. Patty Zapata testified that she lives at 2312 Hebron in Zion with her husband and three children. WOien she returned home on the evening of September 28, 1987, she noticed that the kitchen window and screen were open and that some tomatoes which had been on the window sill were scattered across the floor. Zapata testified that when she left home earlier that day the window was closed, although she was not sure if it was locked. She testified further that respondent had previously known her sons and had been in the backyard of her property. At the time of the incident, Zapata’s sons were no longer friendly with respondent because respondent had gotten them into trouble on a certain occasion. Stephanie Morey testified that she resides at 2308 Hebron in Zion and is able to view the back entrance of the Zapata home from her house. At about 2 p.m. on September 28, 1987, she heard dogs barking. She looked outside and saw two individuals at the back door of the Zapata residence. They knocked at the door and then looked inside a small window when nobody answered the door. The two individuals then began pushing at the back door with their shoulders. They went to a window on the north side of the house and were pulling at it but were not able to get it out. The two individuals then tried to push in the door again but were unsuccessful. They left for a little while but then returned to the Zapata home and tried to push in the back door again. At this point, Morey called the police. She identified respondent as one of the two individuals she saw at the Zapata residence at this time. Larry Booth, a detective with the Zion police department, testified that he spoke to respondent at the interview room of the Zion police station at about 4:45 p.m. on the date of the alleged offense. Booth asked respondent what had been going on at Aaron Centano’s house. Aaron Centano was the son of Patty Zapata and a prior acquaintance of respondent. Respondent denied being at the house that day. When Booth told respondent that an eyewitness had identified him, respondent admitted he had been there but stated his companion had tried to enter the window. When Booth explained the statement of the witness, respondent admitted he had placed a lawn mower underneath the window, climbed on it and raised the window and screen. Respondent put his head inside the window but ran down an alley after he heard a dog barking. After the trial court denied his motion for a directed verdict, respondent testified. Respondent stated that on the afternoon in question, he and a companion decided to go over to Aaron Centano’s house to see how he was doing. Respondent had not seen Aaron in over a year. They went to the house, knocked on the door, and nobody answered. They left after a few minutes. Respondent and his companion returned shortly thereafter, knocked on the back door, and then knocked on the front door. Nobody answered. Respondent testified that he then stepped on a lawn mower which was under a window. He saw a big dog inside. Respondent told his companion no one was home. The companion stated that someone next door was watching them. Respondent then knocked on the door one more time. The two minors left after receiving no answer. Respondent was apprehended by the police shortly thereafter while walking down an alley. The trial court found that respondent had committed attempted burglary and some other offenses which are not the subject of this appeal. Respondent was placed on probation until March 23, 1990. The instant appeal ensued. We disagree with respondent’s contention that there was insufficient evidence that he intended to commit a theft at the Zapata residence. In the absence of inconsistent circumstances, evidence of unlawful breaking and entry into a building where a theft could occur gives rise to an inference of an intent to commit theft. (People v. Johnson (1963), 28 Ill. 2d 441, 443; People v. Lobdell (1988), 172 Ill. App. 3d 26, 29; People v. Ybarra (1987), 156 Ill. App. 3d 996, 1004.) Such an inference is also proper in an attempted burglary case if there is proof of an attempted unlawful breaking and entry, and there are no inconsistent circumstances. See People v. Semma (1974), 19 Ill. App. 3d 776, 778. Stephanie Morey’s testimony that respondent and his companion tried to push in the Zapatas’ back door several times and were pulling at a window on the north side of the house was sufficient to establish that respondent attempted unlawfully to break into and enter the home, thus giving rise to the inference that he intended to commit theft. Although one of the residents, Aaron Centano, was a prior acquaintance of respondent and respondent asserts he merely went to the home to see how Aaron was doing, we do not believe the circumstances were inconsistent with the State’s claim that respondent intended to commit a theft. By respondent’s own admission, he had not seen Aaron Centano for over a year, making it highly unlikely that he would suddenly decide to just show up at Aaron’s residence. Moreover, attempting to break in a door is not the typical behavior of one who wishes to see an acquaintance but does not receive an answer when knocking at the door to his residence. Additionally, according to the testimony of Detective Booth, respondent falsely stated that he had not even been at the Zapata residence, changed his story by admitting he had been there but his companion had tried to enter the window, not him, and finally admitted he had looked through the window. False exculpatory statements are admissible evidence of the accused’s consciousness of guilt. (People v. McQueen (1983), 115 Ill. App. 3d 833, 837.) Respondent’s false exculpatory statements to Detective Booth are therefore further evidence of his criminal intent. The evidence was sufficient for the trial court to conclude that respondent intended to commit a theft at the Zapata home and had therefore committed the offense of attempted residential burglary. The judgment of the circuit court of Lake County is affirmed. Affirmed. UNVERZAGT, P.J., and INGLIS, J., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7023674/ | JUSTICE INGLIS delivered the opinion of the court: Plaintiff, John Parrish, filed a complaint for declaratory judgment in the circuit court of Du Page County pursuant to section 2 — 701 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701) against defendant, Glen Ellyn Savings and Loan Association (Glen Ellyn), seeking to declare void a deficiency judgment previously entered by default against him. Both parties subsequently moved for summary judgment pursuant to section 2 — 1005 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005). The trial court denied Parrish’s motion for summary judgment and entered judgment in favor of Glen Ellyn. Parrish appeals claiming that the judgment entered against him in the prior proceedings was void because it represented relief different from that requested in the complaint and because he was not given due notice of the new relief sought. We reverse and remand. The transaction underlying the litigation between these parties took place on September 2, 1980, when Glen Ellyn loaned $150,000 to Glenview State Bank (Glenview), as trustee, pursuant to a note undertaken by Glenview. The note was also signed by Michael A. Penzato, who personally guaranteed payment of the note. To secure payment of the note, Glenview executed a mortgage on a parcel of real estate it owned as trustee under a trust designated No. 2118. Parrish was not a signatory of the note or the mortgage; however, in a separate document, he guaranteed “prompt payment when due and at all times thereafter of any and all existing and future indebtedness and liability of every kind, nature, and character” from Penzato to Glen Ellyn. At some point, according to Glen Ellyn, payment on the note fell into arrears, and in May 1982 Glen Ellyn, as mortgagee, brought an action in the circuit court of Du Page County to foreclose on the mortgage. Count I of the foreclosure action named as defendants: Glenview; Penzato; Mark Lovejoy and Associates, Inc.; unknown beneficiaries of trust Nos. 2118 and 2669; unknown owners and nonrecord claimants; and Parrish. The prayer in count I asked: “1. For foreclosure of said mortgage. 2. For a Judicial Sale of the security property. 3. For the appointment of a receiver after sale in the event of a deficiency. 4. For the appointment of a receiver pendente lite. 5. For a judicial determination of the rights, intents, and priorities of the respective parties. 6. For such other relief as in equity may be just.” Count II of the foreclosure action named only Penzato as a defendant and alleged that Penzato had personally guaranteed payment of the debt owed to Glen Ellyn. Count II prayed for a deficiency judgment to be entered against Penzato, but it did not request that a deficiency judgment be entered against any other party. Glen Ellyn’s amended complaint was filed on August 2, 1982, and it added a third count to the foreclosure action seeking injunctive relief against Penzato and Parrish. The first paragraph of count III alleged that both Parrish and Penzato had personally guaranteed payment of the debt owed to Glen Ellyn. Paragraph four alleged: “That, as a result of the diminution in the value of the real estate subject to the mortgage of [Glen Ellyn], it is highly probable that at any judicial sale the said real estate will be sold for [an] amount which is substantially less than the indebtedness due [Glen Ellyn] (and a deficiency judgment will be rendered against the guarantors on the aforesaid note).” Paragraph eight alleged: “That, based upon information and belief, both [Parrish and Penzato] are presently attempting to sell, mortgage, or otherwise encumber their aforesaid assets for the purpose of depriving [Glen Ellyn] of any recovery against them in the event that a deficiency judgment is rendered under either Count I or Count II hereof.” Count III concluded by praying for an injunction against Parrish and Penzato to prevent them from transferring or encumbering their assets. An appearance was entered on behalf of Parrish on August 25, 1982. Parrish failed to file an answer to the complaint for foreclosure, and an order of default was entered against him on November 1, 1982. A judgment of foreclosure issued January 31, 1983. On May 11, 1983, an order approving the sheriff’s sale was entered which provided for a deficiency judgment against Parrish and Penzato in the amount of $63,326.06. In August 1983, an alias citation to discover assets was served on Parrish, and, shortly thereafter, Parrish appeared in court with his attorney and was directed to produce certain documents. Glen Ellyn initiated garnishment proceedings and succeeded in obtaining approximately $35,000 from Parrish toward payment of the deficiency judgment. On August 25, 1983, Parrish filed an action seeking specific performance from Glenview on an alleged agreement by Glenview to indemnify Parrish and hold him harmless as to the deficiency judgment. The record does not reveal the status of this complaint. On September 24, 1987, Parrish filed the complaint for declaratory judgment which is the subject of this appeal. The complaint named Glen Ellyn as the defendant and asked the trial court to dedare void the deficiency judgment entered by default against Parrish in the prior proceedings. The motion alleged that Parrish was not a guarantor of the mortgage or the note. It further alleged that the foreclosure action did not pray for a deficiency judgment against him and that he was not given proper notice that such relief would be sought by Glen Ellyn. Both parties, contending that no material facts were at issue, filed motions requesting that summary judgment be entered in their favor. The trial court denied Parrish’s motion for summary judgment on February 28, 1989, and granted Glen Ellyn’s motion on April 13, 1989. Parrish timely appeals from the order granting Glen Ellyn’s motion for summary judgment. A motion for summary judgment should be granted if the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.' (Purtill v. Hess (1986), 111 Ill. 2d 229, 240.) The evidence is to be viewed in the light most favorable to the nonmovant in determining whether a genuine issue of material fact exists; if there are no such facts in dispute, inferences may be drawn from undisputed facts to determine if the movant is entitled to judgment as a matter of law. Estate of Dompke v. Dompke (1989), 186 Ill. App. 3d 930, 933. At issue at bar is whether the complaint Glen Ellyn filed in the foreclosure action sufficiently alerted Parrish to the fact that a deficiency judgment would be sought against him. Supreme Court Rule 105 (107 Ill. 2d R. 105) requires that notice be given to a party in default if new relief, or relief greater than that originally requested, is sought. Here, Glen Ellyn does not contend that it gave Parrish the notice required by Supreme Court Rule 105. As a result, the only issue here is whether such notice was required or, in other words, whether the deficiency judgment entered against Parrish was new or additional relief as opposed to the relief originally sought in Glen Ellyn’s complaint for foreclosure. Parrish correctly notes that nowhere in the prayer or body of Glen Ellyn’s complaint for foreclosure can there be found a request that a deficiency judgment be entered against Parrish. This court addressed similar circumstances in Palatine Savings & Loan Association v. National Bank & Trust Co. (1980), 80 Ill. App. 3d 437. There, a complaint for foreclosure prayed for a deficiency judgment to be entered “against such of the defendants as may be found personally liable.” (Palatine, 80 Ill. App. 3d at 438.) We found that the complaint at issue in Palatine did not sufficiently specify that a deficiency judgment would be sought against the defendant there, and, thus, notice was required pursuant to Supreme Court Rule 105 if such relief was to be-awarded. Palatine, 80 Ill. App. 3d at 440. Here, Glen Ellyn’s complaint for foreclosure not only failed to specify Parrish as a party against whom a deficiency judgment would be sought, but it sought a deficiency judgment against a different party, Penzato. Such a complaint is at least as insufficient as that in Palatine and, indeed, possibly more so. Glen Ellyn argues that Palatine is distinguishable from the case at bar and cites several factors which it claims should have put Parrish on notice that a deficiency judgment would be sought against him. First, Glen Ellyn notes that paragraph four of count III alleges that “it is highly probable that at any judicial sale the said real estate will be sold for [an] amount which is substantially less than the indebtedness due [Glen Ellyn] (and a deficiency judgment will be rendered against the guarantors on the aforesaid note).” (Emphasis added.) Glen Ellyn argues that unlike the complaint in Palatine, the complaint for foreclosure at issue here identified Parrish and Penzato as the “guarantors” of the note, and the guaranty executed by Parrish was attached and referenced as an exhibit. A cursory examination of Parrish’s guaranty, however, reveals that he did not guaranty payment of the note per se; instead, he guaranteed payment of obligations owed by Penzato to Glen Ellyn. Even if Penzato was primarily liable for the note, the same cannot be said of Parrish, and he cannot have been expected to anticipate that a deficiency judgment would be entered against him in the foreclosure proceedings. See Farmer City State Bank v. Champaign National Bank (1985), 138 Ill. App. 3d 847, 851; Emerson v. LaSalle National Bank (1976), 40 Ill. App. 3d 794, 799 (indicating that a deficiency judgment may not be entered against a guarantor in foreclosure proceedings). Second, Glen Ellyn claims that count III, which sought to enjoin . Parrish from certain activities, should have alerted Parrish to the possibility that a deficiency judgment would be sought against him. Specifically, paragraph eight of count III alleged that Parrish and Penzato were attempting to encumber their assets “for the purpose of depriving [Glen Ellyn] of any recovery against them in the event that a deficiency judgment is rendered under either Count I or Count II.” (Emphasis added.) Thus, according to Glen Ellyn, Parrish should have inferred that a deficiency judgment was being sought against him. We do not accept Glen Ellyn’s argument. Though it is not unreasonable for Glen Ellyn to expect Parrish to have thoroughly read each count of the complaint, the result of this cross-referenced reading of the entire complaint would still not sufficiently alert Parrish to the fact that a deficiency judgment would be sought against him in the foreclosure proceedings. It is of little help to Glen Ellyn that count III of the complaint referred to the possible consequence of a deficiency judgment being granted under counts I or II because the complaint did not request a deficiency judgment against Parrish in either of those counts. The mere reference to an undefined deficiency judgment in count III does not create a request for a deficiency judgment against Parrish in counts I or II. Furthermore, Glen Ellyn’s attempt to enjoin Parrish from encumbering his assets does not necessarily imply that a deficiency judgment was being sought against him in the foreclosure proceedings, as opposed to separate proceedings on the guaranty. See Emerson, 40 Ill. App. 3d at 799. •4 Therefore, we conclude that Glen Ellyn’s complaint in the foreclosure proceedings did not request that a deficiency judgment be entered against Parrish. In the context of a default judgment, such new or additional relief could only have been proper had Parrish been given the requisite notice pursuant to Supreme Court Rule 105. Since no such notice was given, the deficiency judgment entered against Parrish in the foreclosure proceeding was void. Palatine, 80 Ill. App. 3d at 440. Glen Ellyn argues that, even if the deficiency judgment entered against Parrish was void, Parrish retroactively validated the prior order because he appeared in subsequent proceedings without contesting the validity of the deficiency judgment. In support of this argument, Glen Ellyn refers us to the jurisdictional doctrine of revesting as explained by our supreme court in Ridgely v. Central Pipe Line Co. (1951), 409 Ill. 46. Glen Ellyn does not cite any case, however, in which the doctrine of revesting has been applied retroactively to validate the entry of a void judgment. In any event, the doctrine of re-vesting would not validate a void order entered before revesting occurs. (Spears v. Spears (1977), 52 Ill. App. 3d 695, 700.) This issue is different from the question of whether Parrish could have waived recovery of any funds Glen Ellyn obtained through garnishment if Parrish appeared at the garnishment proceedings and did not question the validity of the deficiency judgment. The record does not reflect whether this is actually the case, and neither party addressed the issue at the trial court or on appeal; it was not necessary to do so in the context of Glen Ellyn’s motion for summary judgment. Accordingly, we express no opinion as to the resolution of this question. Finally, Glen Ellyn argues that Parrish cannot prevail here because his complaint did not demonstrate that he exercised due diligence in resisting the foreclosure proceedings or that he has a meritorious defense thereto as required by section 2 — 1401 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). A judgment that is void, as opposed to voidable, may be attacked at any time, either directly or collaterally. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71.) Moreover, the restrictions of section 2 — 1401 do not apply to or affect the right to relief from a void order. (DiNardo v. Lamela (1989), 183 Ill. App. 3d 1098, 1101.) Accordingly, we reject Glen Ellyn’s contention that Parrish’s complaint for declaratory relief was insufficient because it did not comply with the requirements of section 2-1401. We conclude that the deficiency judgment entered by default against Parrish in the foreclosure proceedings was void and, thus, reverse the trial court’s order granting summary judgment in favor of Glen Ellyn and remand for further proceedings. Reversed and remanded. REINHARD and McLAREN, JJ., concur. | 01-03-2023 | 07-24-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2543693/ | 51 So. 3d 409 (2009)
JAMES McCONICO, JR.
v.
WARDEN GRANTT CULLIVER.
No. CR-07-2200.
Court of Criminal Appeals of Alabama.
June 19, 2009.
DECISION WITHOUT PUBLISHED OPINION
Reh. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1661247/ | 413 F. Supp. 28 (1975)
Maryhelen DALY, Personal Representative of the Estate of Harry J. Daly, a/k/a Harry John Daly, Deceased,
v.
John I. BRIGHT, Jr., et al.
Civ. A. No. 71-1412.
United States District Court, E. D. Pennsylvania, Civil Division.
December 19, 1975.
Henry B. FitzPatrick, Jr., Philadelphia, Pa., for plaintiff.
Raymond M. Seidel, Norristown, Pa., for defendants.
OPINION
DITTER, District Judge.
The question presented in this suit is whether, as plaintiff contends, the entire amount of a certain note is due, or whether, as defendants assert, there was an agreement to settle for a considerably lesser sum.[1] The case was tried to the court sitting without a jury, and this opinion will constitute my findings of fact and conclusions of law required by Rule 52(a).
Plaintiff's decedent, Harry J. Daly, an attorney, owned the controlling share of a company which operated a Maryland radio station. Sometime prior to 1969, Daly entered into an agreement to sell his interest to Towson Radio, Inc., a corporation then *29 being formed by the defendants, Bright, Eisenhart, Hamilton, and Paisley. Part of the purchase price was obtained by a loan from Fidelity Bank to Towson, while an additional $200,000. was paid to Daly in the form of a note. This note, which was subordinated to the Fidelity's claim for its loan to Towson, was personally guaranteed by the four defendants. Towson defaulted on its various obligations and eventually was sold to Sudbrink, after which sale insufficient assets remained for Towson to pay the note to Daly. This suit was then instituted against the four guarantors.
At trial, Alexander N. Rubin, Jr., Esquire, testified that beginning in 1969, he represented the defendants, participating in some, although not all, of the negotiations which finally culminated in the sale to Sudbrink. Notwithstanding the objections of some of Rubin's clients, whose interests and investments would be wiped out by the sale, it was regarded as the best possible way out of a hopeless financial situation, and ultimately it was consummated.
In the course of representing the defendants, Rubin negotiated with Norman E. Burke, Esquire,[2] who represented the decedent, Harry J. Daly. In view of Fidelity's superior lien on Towson's assets, Daly favored the sale since it represented his only hope of realizing anything substantial from the interest which he once held.
On March 16, 1970, Rubin proposed to Burke a settlement of Daly's note on the following basis:
1. he would cause the four defendants, who were officers and directors of Towson, to approve the sale to Sudbrink;
2. the four defendants would induce their friends and relatives, who were stockholders in Towson, to approve the sale;
3. the four defendants would cause a guarantee to be executed to Daly on his note from Towson; and
4. the four defendants would pay a total of $15,000. in cash, which would be transmitted to Daly when the Sudbrink sale had been concluded.
Burke later advised Rubin that this offer was satisfactory and acceptable.
To substantiate this agreement, defendants introduced a letter dated March 18, 1970, from Burke to Rubin, which stated:
This will confirm our telephone conversation of Monday, March 16th, during which I told you that after the conditions set forth by the bank are met, my client will agree to accept the sum of $15,000. in cash in exchange for an absolute release of the four individual note signers. As I understand it, this money will not be forthcoming until the Sudbrink matter is closed to the purchaser's satisfaction. However, my client has again raised the point that since the four individuals have never paid him anything, he is not entirely convinced that they will pay him the $15,000. when due. I would hope that we can work out some kind of an arrangement to guarantee this payment once the other conditions of the Sudbrink arrangement have been met.
Rubin obtained $15,000. from the defendants, placed it in his attorney account, and apprised Burke of the fact that the money was in his possession. Daly died on August 19, 1970, but sale to Sudbrink was concluded in late October or November of that year. On December 22, 1970, Rubin tendered the $15,000. to Burke, but Daly's personal representative rejected the sum.
Defendants concede that their only defense to the note is the settlement described by Rubin. Plaintiff contends, however, that even if defendants are given the benefit of all reasonable inferences arising from the evidence, the requirements for a valid settlement have not been established. I agree.
Without questioning in any way the accuracy of Mr. Rubin's testimony, it is apparent that there was no proof of Burke's authority to negotiate a settlement for *30 Daly. Under Pennsylvania law, which the parties agree is controlling, the litigant is the complete master of his own cause of action in matters of substance. See Archbishop v. Karlak, 450 Pa. 535, 539, 299 A.2d 294, 296 (1973); see also Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616, 629 (Roberts, J., dissenting), cert. denied, 417 U.S. 949, 94 S. Ct. 3078, 41 L. Ed. 2d 670 (1974). Unless there is express authority, an attorney may not settle litigation. International Organization Masters, Mates and Pilots of America, Local No. 2 v. International Organization Masters, Mates and Pilots of America, Inc., 456 Pa. 436, 318 A.2d 918 (1974); Archbishop v. Karlak, supra, 450 Pa. at 540, 299 A.2d at 297. A lawyer may not bind his client on the basis of either implied or apparent authority. See id. at 541; 299 A.2d at 297; Starling v. West Erie Avenue Building and Loan Association, 333 Pa. 124, 126, 3 A.2d 387, 388 (1939).[3]
The letter from Burke to Rubin fails to supply the missing authority or even refer to an unconditional acceptance on Daly's part. In effect, the proposition made by Rubin to Burke constituted an offer. Burke's letter to Rubin does not say that Daly accepted that offer; rather, it states that it may be accepted in the future and seeks additional safeguards.[4]
In rebuttal, plaintiff introduced into evidence a letter from Daly to Burke dated March 25, 1970, a portion of which said:
Jack Bright called and advised that a meeting had been held Monday in which the stockholders of Towson Radio, Inc. had apparently approved the Sudbrink offer. I did not receive a copy of that agreement, I have not yet received the letter from the Fidelity Bank in Philadelphia of its willingness to pay $50,000.00 or 5/7 of the amount eventually coming to me out of the Sudbrink sale, I have not received anything in writing on the $15,000.00 to be paid by Bill Hamilton and others, nor how it will be paid, nor how it will be secured, nor have I found out, yet, whether the individual endorsers on the Towson note to me have assets which might make it worth our while to either up their offer or bring action.
This letter shows that Daly had not accepted Rubin's offer for settlement. To the contrary, Daly speaks in the terms of trying to get the defendants to raise their offer or suggests that alternative of bringing suit against them. This language is hardly that which an attorney would use in communicating with his attorney if the matter had been settled.
Even without Daly's letter to Burke, it is plain from Burke's letter to Rubin that as of that moment Daly had not agreed to Rubin's proposal, and there was no other evidence to show that Daly ever assented to Rubin's proposal.
I conclude that plaintiff's decedent never authorized his attorney to assent to Rubin's offer.[5] There was no compromise of the note during Daly's lifetime nor by his personal representative subsequent to his death, and his estate remains entitled to its *31 face amount. Judgment will be entered in favor of the plaintiff and against the defendants accordingly.
NOTES
[1] In a previous opinion and order, I dismissed this action with respect to the senior creditor on the disputed note and his surety. See Daly v. Bright, 345 F. Supp. 11 (E.D.Pa.1972). On March 13, 1975, I granted partial summary judgment to the plaintiff in the amount of $15,000., plus costs of suit and interest, the sum for which defendants contend that they compromised the note.
[2] Burke's whereabouts are apparently unknown and thus the parties were unable to have him appear as a witness at trial.
[3] See also McLaughlin v. Monaghan, 290 Pa. 74, 78, 138 A. 79, 80 (1927); Lipschutz v. Lipschutz, 124 Pa.Super. 380, 386, 188 A. 556, 558 (1936).
[4] reply to an offer, though purporting to accept it, which adds qualifications or requires performance of conditions, is not an acceptance, but it is a counter-offer.
Restatement, Contracts § 60 (1932); see Hedden v. Lupinsky, 405 Pa. 609, 612, 176 A.2d 406 (1962); Eastern Electric Sales Co., Inc. v. Provident Tradesmens Bank & Trust Co., 400 Pa. 429, 435, 162 A.2d 215 (1960).
[5] In view of my disposition of this matter, it is unnecessary to decide whether, had Daly authorized Burke to accept Rubin's offer, defendants would be able to avail themselves of the defense of accord and satisfaction. I note with some interest, however, that since defendants never paid Daly the $15,000., the accord seems not to have been executed, see Hosler v. Hursh, 151 Pa. 415, 422, 25 A. 52 (1892); Duryea v. Long, 191 Pa.Super. 511, 515, 159 A.2d 259 (1960), nor did they show a good faith dispute concerning the amount actually due Daly or consideration flowing to him in return for accepting a lesser amount, both of which elements appear necessary for a valid accord and satisfaction, see Hayden v. Caddington, 169 Pa. Super. 174, 177, 82 A.2d 285 (1951). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1009258/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7307
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SEAN MCKARN,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-99-11, CA-00-194-5)
Submitted: November 27, 2002 Decided: December 20, 2002
Before WILKINS, KING, and GREGORY, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Sean McKarn, Appellant Pro Se. Samuel Gerald Nazzaro, Jr.,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sean McKarn seeks to appeal the district court’s order denying
relief on his motion filed under 28 U.S.C. § 2255 (2000). We have
reviewed the record and conclude for the reasons stated by the
district court that McKarn has not made a substantial showing of
the denial of a constitutional right. See United States v. McKarn,
Nos. CR-99-11; CA-00-194-5 (N.D.W. Va. July 26, 2002). Accordingly,
we deny a certificate of appealability and dismiss the appeal. See
28 U.S.C. § 2253(c) (2000). We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2548038/ | 94 P.3d 876 (2004)
337 Or. 160
STATE v. JENKINS
No. S51392.
Supreme Court of Oregon.
June 15, 2004.
Petition for review denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1009274/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-7433
RICHARD A. HOWELL,
Plaintiff - Appellant,
versus
JACK LEE, Warden; PRISONERS UNKNOWN,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior District
Judge. (CA-02-795-7)
Submitted: December 16, 2002 Decided: December 20, 2002
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Richard A. Howell, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Richard A. Howell appeals the district court’s orders
dismissing his 42 U.S.C. § 1983 (2000) complaint without prejudice
pursuant to 28 U.S.C. § 1915A(b)(1) (2000) and denying
reconsideration of that order. Because Howell may be able to
proceed with this action by amending his complaint to allege
sufficient facts to state a claim, the dismissal order is not final
and thus is not subject to appellate review. See Domino Sugar
Corp. v. Sugar Workers Local Union 392, 10 F.3d 1064, 1066-67 (4th
Cir. 1993). We therefore dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/305272/ | 465 F.2d 996
UNITED STATES of America, Plaintiff-Appellee,v.Louis Emery ROGER, Defendant-Appellant.
No. 72-1011 Summary Calendar.*
United States Court of Appeals,
Fifth Circuit.
Aug. 18, 1972.Certiorari Denied Dec. 4, 1972.
See 93 S. Ct. 517.
Will Gray, Houston, Tex., for defendant-appellant.
Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., D. H. Perkins, Jr., Asst. U. S. Atty., for plaintiff-appellee.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
PER CURIAM:
1
The appellant Louis Emery Roger was convicted of knowingly causing to be transported in interstate commerce a stolen tractor in violation of the Dyer Act, 18 U.S.C. Sec. 2312. We affirm the judgment.
2
On this appeal Roger asks us to hold, first of all, that the district court erred in failing to give the jury a cautionary instruction with respect to the testimony of his accomplice Hubert Cole. Roger made no request at his trial for such an instruction, nor did he object to the instructions which the court gave. He must therefore overcome the heavy burden of showing that the district court committed plain error. Fed.R.Crim.P. 52(b). In similar cases we have found no plain error where the accomplice's testimony was corroborated. Dewitt v. United States, 5 Cir. 1967, 383 F.2d 542; Dunn v. United States, 5 Cir. 1963, 318 F.2d 89; Phelps v. United States, 5 Cir. 1958, 252 F.2d 49; Joseph v. United States, 5 Cir. 1960, 286 F.2d 468. The record shows that Cole's account of his own actions was corroborated by the testimony of Roger's witness Stewart. Another witness, Brandt, supported Cole's account of events at Brandt's garage, where Cole and Roger were attempting to pull the tractor with a truck. The plain error rule, we have said, is "to be invoked only in exceptional circumstances to avoid a miscarriage of justice." Eaton v. United States, 5 Cir. 1968, 398 F.2d 485, 486, cert. denied, 1968, 393 U.S. 397, 89 S. Ct. 299, 21 L. Ed. 2d 273. Cole's testimony, uncorroborated, would have been sufficient to sustain Roger's conviction. Williamson v. United States, 5 Cir. 1966, 365 F.2d 12. Given that it was corroborated, we cannot say that its admission without a cautionary instruction was so plainly unjust as to warrant reversal under Rule 52(b).
3
Roger also objects to the district court's refusal to admit an earlier tape-recorded statement, in which Cole exculpated him, for the purpose of impeaching Cole's testimony. Cole had, however, freely admitted making the statement both on direct and cross-examination, but said that he had made it because of threats from Roger. Admission of the statement would have served no purpose, since it would not have contradicted Cole's testimony. District court judges have broad discretion with respect to the admissibility of evidence. Cotton v. United States, 8 Cir. 1966, 361 F.2d 673, 676. In the circumstances of this case we cannot say that the district court judge abused his discretion by refusing to admit this statement.
4
Roger raises numerous other contentions on this appeal: that the district court was biased, that the court allowed the government unwarranted scope in cross-examining Roger's witness Stewart, that the court erred in denying a motion for mistrial after Cole inadvertently quoted an allusion of Roger's to his having been in prison, and that the court erred in failing to instruct the jury that no inference of guilt or innocence should be drawn from Roger's failure to testify. Upon examination of the record we find these contentions to be without merit.
5
The judgment of the district court is affirmed.
*
Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3040729/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3543
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Bobby Jack Stanley, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 6, 2006
Filed: June 9, 2006
___________
Before MELLOY, FAGG, and BENTON, Circuit Judges.
___________
PER CURIAM.
Bobby Jack Stanley pleaded guilty to distribution of methamphetamine, and
was sentenced to 12 months and 1 day in prison and 3 years of supervised release.
After Stanley began serving his supervised release, the probation officer petitioned to
revoke supervised release alleging that Stanley had violated his release conditions.
At a subsequent revocation hearing, Stanley admitted violating the conditions of his
supervised release as alleged. The district court1 revoked supervised release and
imposed a new sentence of 9 months imprisonment, commenting on the Chapter 7
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas.
Guidelines recommended revocation range, Stanley’s prior and current supervised
release violations, and the leniency of the sentence that he had received for his original
offense. Stanley appeals his revocation sentence.
The revocation sentence was within authorized limits, and the district court
considered appropriate factors in imposing it. See 18 U.S.C. § 3583(e)(3). We
conclude that Stanley’s sentence is not unreasonable. See United States v. Tyson, 413
F.3d 824, 825 (8th Cir. 2005) (standard of review).
Accordingly, we affirm, and we also grant counsel’s motion to withdraw.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1054407/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 6, 2006
ROBIN DAVIS v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. P-27660 W. Otis Higgs, Jr., Judge
No. W2005-02212-CCA-R3-PC - Filed June 28, 2006
The petitioner, Robin Davis, appeals the denial of his petition for post-conviction relief. In this
appeal, he asserts that he was denied the effective assistance of counsel at trial. The judgment of the
post-conviction court is affirmed.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
GARY R. WADE, P.J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.
Juni S. Ganguli, Memphis, Tennessee, for the appellant, Robin Davis.
Paul G. Summers, Attorney General & Reporter; Blind Akrawi, Assistant Attorney General; William
L. Gibbons, District Attorney General; and Paul Thomas Hoover, Jr., Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
In January of 2000, the petitioner was convicted of first degree premeditated murder and theft
over $1000. The trial court imposed an effective sentence of life plus two years in the Department
of Correction. This court affirmed on direct appeal. See State v. Robin Davis, No. W2000-03137-
CCA-R3-CD (Tenn. Crim. App., at Jackson, Mar. 25, 2002). An application for permission to
appeal to our supreme court was denied in October of 2002.
The petitioner then filed a timely petition for post-conviction relief alleging that he was
denied the effective assistance of counsel at trial. He specifically asserted that his trial counsel was
ineffective by failing to adequately prepare for trial; by failing to timely secure all discovery
materials from the state; by failing to conduct an adequate pretrial investigation; by failing to
properly advise the petitioner of the results of the pretrial investigation; by failing to adequately
prepare for voir dire; by failing to effectively cross-examine state witnesses; by failing to object to
leading questions by the prosecutor; by failing to adequately communicate prior to trial; and by
failing to adequately advise him of the right to remain silent.
On direct appeal of the convictions, this court summarized the relevant facts:
On the morning of May 16, 1998, the victim and his wife were awakened by
the sound of the engine starting in their pickup truck. Looking out the balcony of
their bedroom, they saw the defendant sitting in the driver's seat, backing the truck
out of their driveway. When the victim yelled, the defendant got out of the truck and
ran. Telling his wife to stay inside, the victim took off in pursuit, driving the couple's
Toyota Corolla and taking his pistol with him. Soon thereafter, neighbors heard
gunshots and discovered the victim on the ground beside the open driver's door of his
car, dying from a gunshot wound to the chest. The defendant admitted in a statement
to police that he had shot the victim, but claimed that it was only after the victim had
first tried to rob and shoot him.
Id., slip op. at 2.
At the evidentiary hearing on the petition for post-conviction relief, trial counsel testified that
although the case had generated some publicity, he did not believe that a change of venue or the
filing of jury questionnaires was necessary. Trial counsel stated that he met with the petitioner, who
was incarcerated, "[a]s many times as was necessary for trial preparation. . . . [A]t least a dozen
[times], maybe more." Trial counsel insisted that he was adequately prepared "based on [his]
investigation of the case, going to the scene, talking to the witnesses, talking to [the petitioner], [and]
reviewing the state's file." He explained that he did not file a motion to suppress the pretrial
identification of the petitioner because "identification was not [the petitioner's] defense. His defense
was somewhat of a self-defense." Trial counsel described his relationship with the petitioner as
"cordial." He asserted that he made a thorough investigation but was unable to locate any witnesses
to support the petitioner's version of the offense.
The petitioner testified that his trial counsel met with him only three times prior to the trial
and that each visit lasted less than thirty minutes. He claimed that he asked to meet with trial
counsel on other occasions but received no response. The petitioner admitted that trial counsel had
advised him that the penalty for first degree murder was life imprisonment and that such a sentence
would require the service of at least fifty-one years. He also acknowledged that trial counsel had
communicated a plea offer from the state which involved a sentence of twenty-five years in exchange
for a plea of guilty to second degree murder. The petitioner conceded that he actively participated
in his defense and that trial counsel "[s]ometimes" listened to his suggestions and "[s]ometimes he
would go along with what he had planned."
During cross-examination by the state, the petitioner acknowledged that in addition to the
three face-to-face meetings with his trial counsel, he had communicated with trial counsel by
telephone on several occasions. He also admitted that he met with trial counsel during his pretrial
-2-
court appearances. The petitioner conceded that trial counsel had provided him with all of the
discovery materials that he had received from the state.
The post-conviction court denied relief, ruling that the petitioner did not receive the
ineffective assistance of counsel. The court concluded that "[w]ith no proof given that there was
significant pre-trial publicity to overcome [t]rial [c]ounsel's contention that the decision was a trial
strategy, the [p]etitioner has clearly failed to prove by clear and convincing evidence that [t]rial
[c]ounsel's failure to move for a change in venue" resulted in prejudice. With regard to the
petitioner's claim that trial counsel failed to secure discovery materials in a timely manner, the post-
conviction court accredited the testimony of trial counsel that he was permitted to inspect the state's
file and copy any relevant material. As to the petitioner's claim that trial counsel failed to adequately
investigate the case, the post-conviction court accredited the testimony of trial counsel that he
conducted a thorough investigation prior to the trial and concluded that the petitioner had failed to
establish his claim by clear and convincing evidence. The post-conviction court also determined that
petitioner had not met his burden of proof on his claim that trial counsel did not adequately advise
or consult with him as to the results of the pretrial investigation. With regard to the petitioner's claim
that trial counsel failed to adequately prepare for voir dire, the post-conviction court ruled that the
petitioner "presented no evidence in regards to this allegation, thus the matter will not be addressed."
The court accredited trial counsel's testimony that he did not attempt to introduce into evidence the
crime scene reports because they would have been inadmissible hearsay. It also determined that trial
counsel had adequately cross-examined the officers who prepared the reports. The post-conviction
court concluded that trial counsel's decision not to object to leading questions by the prosecutor
qualified as trial strategy and that trial counsel had adequately consulted with the petitioner as to the
plea offer, the potential sentence should he be convicted at trial, and his "chances of winning at trial."
Finally, the post-conviction court accredited trial counsel's testimony that he had advised the
petitioner of both his right to remain silent and his corresponding right to testify in his own behalf.
In this appeal, the petitioner asserts that his trial counsel was ineffective by failing to meet
with him a sufficient number of times prior to trial; by failing to employ the services of an
investigator; by failing to file jury questionnaires; and by failing to prepare the petitioner to testify.
Under our statutory law, the petitioner bears the burden of proving the allegations in his post-
conviction petition by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).
Evidence is clear and convincing when there is no serious or substantial doubt about the accuracy
of the conclusions drawn from the evidence. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App.
1998). On appeal, the findings of fact made by the trial court are conclusive and will not be
disturbed unless the evidence contained in the record preponderates against them. Brooks v. State,
756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the
evidence preponderated against those findings. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim.
App. 1978).
When a petitioner seeks post-conviction relief on the basis of ineffective assistance of
counsel, he must first establish that the services rendered or the advice given were below "the range
-3-
of competence demanded of attorneys in criminal cases." Baxter v. Rose, 523 S.W.2d 930, 936
(Tenn. 1975). Second, he must show that the deficiencies "actually had an adverse effect on the
defense." Strickland v. Washington, 466 U.S. 668, 693 (1984). The error must be so serious as to
render an unreliable result. Id. at 687. It is not necessary, however, that absent the deficiency, the
trial would have resulted in an acquittal. Id. at 695. Should the petitioner fail to establish either
factor, he is not entitled to relief. Our supreme court described the standard of review as follows:
Because a petitioner must establish both prongs of the test, a failure to prove
either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the defendant makes an insufficient showing
of one component.
Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
On claims of ineffective assistance of counsel, the petitioner is not entitled to the benefit of
hindsight, may not second-guess a reasonably based trial strategy, and cannot criticize a sound, but
unsuccessful, tactical decision made during the course of the proceedings. Adkins v. State, 911
S.W.2d 334, 347 (Tenn. Crim. App. 1994). Such deference to the tactical decisions of counsel,
however, applies only if the choices are made after adequate preparation for the case. Cooper v.
State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).
Claims of ineffective assistance of counsel are regarded as mixed questions of law and fact.
State v. Honeycutt, 54 S.W.3d 762, 766-67 (Tenn. 2001); State v. Burns, 6 S.W.3d 453, 461 (Tenn.
1999). When reviewing the application of law to the post-conviction court's factual findings, our
review is de novo, and the post-conviction court's conclusions of law are given no presumption of
correctness. Fields v. State, 40 S.W.3d 450, 457-58 (Tenn. 2001); see also State v. England, 19
S.W.3d 762, 766 (Tenn. 2000).
While trial counsel in this case testified that he did not remember the actual number of times
he met with the petitioner prior to trial, he estimated the number at "at least a dozen" and insisted
that he was adequately prepared. The post-conviction court accredited this testimony. Moreover,
the petitioner has given no reasons why more meetings with trial counsel would have resulted in a
different outcome at trial. The petitioner is not entitled to relief on this issue.
As to his next claim, there was simply insufficient proof offered by the petitioner during the
evidentiary hearing that trial counsel was ineffective by failing to file jury questionnaires in
preparation for voir dire. It was trial counsel's opinion that although the case had generated some
publicity, he did not feel that it was necessary to file jury questionnaires. Typically, this choice
would qualify as a tactical decision. More importantly, however, there was no evidence that the
filing of jury questionnaires might have garnered a different verdict.
-4-
The petitioner also claims that his trial counsel was ineffective by failing to employ the
services of an investigator but has not demonstrated what facts or which witnesses were overlooked
during the pretrial investigation. The post-conviction court accredited the testimony of trial counsel
that he had studied the crime scene and canvassed the area in an attempt to locate helpful witnesses.
In our view, the evidence does not preponderate against the findings of the post-conviction court as
to this issue.
Finally, the petitioner asserts that his trial counsel was ineffective by failing to adequately
prepare him to testify in his own defense. Trial counsel contended that he advised the petitioner of
his right to testify at trial and warned him of questions that would be asked on direct examination
and those he anticipated would be asked on cross-examination. Trial counsel stated that he and the
petitioner practiced a "mock" direct examination. The record establishes that the petitioner chose
not to testify at trial. Further, trial counsel questioned the petitioner outside the presence of the jury
regarding his decision to maintain silence. Under these circumstances, it is our view that the
petitioner has failed to establish this claim by clear and convincing evidence.
Accordingly, the judgment of the post-conviction court is affirmed.
___________________________________
GARY R. WADE, PRESIDING JUDGE
-5- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1060680/ | 2 S.W.3d 180 (1999)
In re: Brittany SWANSON, a Minor,
Tennessee Baptist Children's Homes, Inc., Appellee,
v.
Harry Lee Swanson, Appellant.
Supreme Court of Tennessee, at Jackson.
October 4, 1999.
*181 James H. Bradley, Covington, Webb A. Brewer & Debra N. Brittenum, Memphis Area Legal Services, Inc. Memphis, Tennessee (Amicus Curiae), for Appellant.
H. William Scott, III, Brentwood, ,Frank C. Ingraham Nashville, Paul G. Summers, Attorney General & Reporter (Amicus Curiae), Douglas E. Dimond, *182 Assistant Attorney General (Amicus Curiae), Robert D. Tuke, Tuke, Yopp & Sweeney, Nashville, Tennessee (Amicus Curiae), for Appellee.
OPINION
BARKER, J.
This case concerns the termination of appellant Harry Swanson's parental rights over his biological child, Brittany Swanson, who is now nine years old and in the custody of the appellee Tennessee Baptist Children's Homes, Inc. (Baptist Children's Home). Although Mr. Swanson's parental rights were originally terminated by the Tipton County Juvenile Court, the circuit court of Tipton County denied the petition to terminate parental rights on an appeal by Mr. Swanson. The Court of Appeals reversed the decision of the circuit court and found that Mr. Swanson had "abandoned" Brittany because he had "willfully failed to support" her or "willfully failed to make reasonable payments toward [her] support" within the meaning of Tennessee Code Annotated section 36-1-102(1)(D) (1996). We hold that the statutory definition of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" is unconstitutional because it creates an irrebuttable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional. This presumption violated Mr. Swanson's federal and state constitutional right to the care and custody of his daughter. Accordingly, for the reasons discussed below, the judgment of the Court of Appeals is reversed, and this case is remanded to the circuit court for entry of an order returning custody to Mr. Swanson.
BACKGROUND
Harry and Brigitte Swanson[1] were married in May 1989. Their daughter, Brittany Swanson, was born on June 10, 1990. Subsequently, the family lived with Mrs. Swanson's father, Jim Ellingburg, in Drummonds, Tennessee, a town located in Tipton County. Mr. and Mrs. Swanson separated in the summer of 1991, and Mr. Swanson went to Memphis to work for Delta Airlines. Thereafter, he moved to Mississippi and lived there for a short time before moving to Missouri where he has lived since December of 1991. Mrs. Swanson moved from Tipton County to various places in Shelby County and Mississippi. Mr. Swanson attempted to maintain contact with his daughter during that time, but he testified that the child's mother refused to allow visitation. He also attempted to maintain relations by contacting Mr. Ellingburg, Brittany's maternal grandfather, but Mr. Ellingburg told him that he did not know the whereabouts of Mrs. Swanson or Brittany.[2]
On May 4, 1993, Brittany was placed in the legal custody of the Tennessee Department of Human Services ("DHS") after a dependency and neglect determination was made the juvenile court. Beginning in June of 1993, Brittany resided in foster care through placement by the Baptist Children's Home in the hope that Brittany would be reunified with her parents. In December of 1994, the goal of foster care was changed from reunification with her parents to adoption,[3] and in June of 1995, *183 the Baptist Children's Home filed a petition for legal custody of Brittany. On August 1, 1995, the Baptist Children's Home obtained legal custody of Brittany from DHS by court order.
The Baptist Children's Home then filed a petition on January 25, 1996 to declare Brittany abandoned by her parents and to terminate their parental rights. The petition alleged specifically that Mr. Swanson had "legally abandoned [Brittany] within the meaning of Tenn.Code Ann. § 36-1-102(a) in that [he had] willfully failed to visit or [had] willfully failed to support or to make reasonable payments toward [Brittany's] support for four (4) consecutive months immediately preceding the filing of [the petition]." At the termination hearing, the representative from the Baptist Children's Home testified that he had no record of contact from Mr. Swanson prior to filing a petition to terminate his parental rights on January 25, 1996. At one point, the Baptist Children's Home asked Mr. Ellingburg whether he knew the location of Brittany's father, but Mr. Ellingburg stated only that he thought Mr. Swanson was "somewhere in Missouri." The Baptist Children's Home made no further investigation to locate Mr. Swanson in part "because Missouri's a big state," and they did not know where to search. No one at the Baptist Children's Home asked Brittany's mother about Mr. Swanson's whereabouts.
Mr. Swanson learned of the termination proceeding through someone who saw the published notice in the newspaper. When Mr. Swanson arrived in Tipton County, he learned that a default judgment had already been entered against him, which he appealed. The circuit court entered an order setting aside the judgment and held that Mr. Swanson should be given an opportunity to contest the allegations of abandonment.
Subsequently, a hearing was held in the Tipton County Juvenile Court, wherein the court entered an order terminating the parental rights of Mr. Swanson. Mr. Swanson appealed this termination order to the circuit court which held a hearing on the issue of whether he had abandoned Brittany. The circuit court found no evidence that "he willfully abandoned his child under all the circumstances of this case," and it ordered that the case be remanded to the juvenile court for the placement of Brittany with Mr. Swanson. On appeal by the Baptist Children's Home, the Court of Appeals reversed the circuit court based upon its finding that Mr. Swanson had abandoned Brittany within the statutory definition of Tennessee Code Annotated section 36-1-102(1)(A).
"Willfully failed to support"
In 1951, the General Assembly overhauled Tennessee's adoption laws and listed "abandonment" as a ground for termination of parental rights. 1951 Tenn. Pub. Acts, ch. 202 (codified as Williams Tenn.Code §§ 9572.15 to 9572.52 (Supp.1952)). The Act provided that:
an abandoned child shall be any child under the age of eighteen years who shall be willfully abandoned at least four consecutive months immediately preceding institution of an action or proceeding to declare the child to be [an] abandoned child.
Id. § 2 (codified as Williams Tenn.Code § 9572.16(5) (Supp.1952)). The definition was amended in subsequent years. In 1961, the General Assembly enacted the following provision:
For the purpose of this chapter an "abandoned child" shall be:
*184 1. A child whose parents have willfully failed to visit or have willfully failed to support or make payments toward his support for four consecutive months immediately preceding institution of action or proceeding to declare the child to be an abandoned child; ...
1961 Tenn. Pub. Acts, ch. 227, § 1 (codified as Tenn.Code Ann. § 36-102(5) (Supp.1962)). In 1978, the statutory definition was changed to provide as follows:
Abandoned child means a child whose parents have wilfully failed to visit or have wilfully failed to support or make reasonable payments toward his support for four (4) consecutive months immediately preceding institution of an action or proceeding to declare the child to be an abandoned child. For purposes of this chapter, a father who has wilfully failed to visit or wilfully failed to support or make reasonable payments toward the support of the child's mother during the four (4) months immediately preceding the birth of the child shall be deemed to have wilfully failed to visit or wilfully failed to support or make reasonable payments toward the support of said child. In no instance, however, shall a final order terminating the parental rights of a parent pursuant to this section be entered until at least thirty (30) days have elapsed since the date of the birth of the child.[4]
1978 Tenn. Pub. Acts, ch. 704, § 1 (codified as Tenn.Code Ann. § 36-1-102(1)(A) (1984)).[5]
These definitions applied only to proceedings to terminate parental rights filed in circuit or chancery courts. In 1970, the General Assembly enacted statutory definitions of abandonment for failure to support that were to be used in proceedings to terminate parental rights filed in juvenile court. These definitions tracked the language found in Title 36 of the Code. See 1970 Tenn. Pub. Acts, ch. 600, § 2 (codified as Tenn.Code Ann. § 37-202(7) (Supp.1970)); 1978 Tenn. Pub. Acts, ch. 704, § 3 (codified as Tenn.Code Ann. § 37-1-102(1)(A) (1984)); Tenn.Code Ann. § 37-1-102(b)(1) (Supp.1994).
The courts of this state also articulated a standard that was used to determine "abandonment" in adoption cases. In 1959, the Court of Appeals held that trial courts were not bound by the statutory definition of "abandonment" when making such a determination in an adoption proceeding. The Court held that "`[a]bandonment imports any conduct on the part of the parent which evinces a settled purpose to forego all parental duties and relinquish all parental claims to the child....'" Ex parte Wolfenden, 49 Tenn.App. 1, 5, 349 S.W.2d 713, 714 (1959) (quoting 1 Am.Jur. Adoption of Children § 42). This Court adopted an identical standard in In re Adoption of Bowling, 631 S.W.2d 386, 389 (Tenn.1982).
To determine whether the parent's conduct had evinced "a settled purpose to forego all parental duties and to relinquish all parental claims to the child," the courts developed several factors: (1) the parent's ability to support the child; (2) the amount of support provided; (3) the extent and nature of the contact between the parent and the child; (4) the frequency of gifts; (5) whether the parent voluntarily relinquished custody of the child; (6) the length of time the child has been separated from the parent; and (7) the home environment and conduct of the parent prior to removal. See O'Daniel v. Messier, 905 S.W.2d 182, 187 (Tenn.Ct.App.1995).
It was against this background that the legislature amended the adoption code in 1995. See 1995 Tenn. Pub. Acts, ch. 532 (codified as Tenn.Code Ann. §§ 36-1-101 *185 to 36-1-206 (1996 & Supp.1998)). Since the petition to terminate parental rights in this case was filed on January 25, 1996, this case is governed by the new adoption law enacted in 1995 and effective January 1, 1996. See Tenn.Code Ann. § 36-1-103(b) ("Adoptions and terminations of parental rights pending on January 1, 1996, and surrenders and consents executed prior to January 1, 1996, shall be governed by prior existing law."). Section 36-1-113 provides in relevant part:
(g) Termination of parental or guardianship rights may be based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
Id. § 36-1-113(g)(1). Also, section 36-1-102(1)(A) provides:
"Abandonment" means, for purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or make reasonable payments toward the support of the child;
....
(B) For purposes of this subdivision (1), "token support" means that the support, under the circumstances of the individual case, is insignificant given the parent's means;
(C) For purposes of this subdivision (1), "token visitation" means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child;
(D) For purposes of this subdivision (1), "willfully failed to support" or "willfully failed to make reasonable payments toward such child's support" mean that, for a period of four (4) consecutive months, no monetary support was paid or that the amount of support paid is token support;[6]
(E) For purposes of subdivision (1), "Willfully failed to visit" means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation;
(F) Abandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship rights or seeking the adoption of a child; and
(G) "Abandonment" does not have any other definition except that which is set forth herein, it being the intent of the general assembly to establish the only grounds for abandonment by statutory definition. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental rights and responsibilities in order for a determination of abandonment to be made. Decisions of any court to the contrary are hereby legislatively overruled;
Id. § 36-1-102(1)(A) (emphasis added).
The Court of Appeals determined that this case was entirely controlled by the statute, that the proof was clear and convincing regarding Mr. Swanson's non-support, and that it was therefore bound with regard to the result reached.[7] Mr. Swanson contends that the statutory definition *186 of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" is unconstitutional because the definition contains no element of intent with regard to failure to support. He argues that the definition creates a conclusive presumption that a failure to provide monetary support for four months preceding the filing of the petition to terminate renders a parent unfit. He further argues that this presumption fails to comport with a parent's fundamental constitutional right to the care and custody of his or her children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 650, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Bond v. McKenzie (In re Adoption of Female Child), 896 S.W.2d 546 (Tenn.1995).
Conversely, the Baptist Children's Home asserts that the Court of Appeals correctly construed the statutory definition of abandonment and correctly found that Mr. Swanson abandoned Brittany within the meaning of the statute. It also asserts that the statutory definitions of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support" do not violate Mr. Swanson's fundamental right to parent his child.
Since the constitutionality of a state statute has been questioned, the Attorney General was requested file a brief and has done so. See Tenn. R.App. P. 32. The Attorney General asserts that the element of willfulness should be read into the definition of "willfully failed to support." He contends that reading the element into the statutory definition avoids constitutional problems.[8]
The first issue we must address is whether it is appropriate to read an element of intent into the statutory definition of "willfully failed to support." It is abundantly clear from the language used by the General Assembly that it intended to limit the discretion of trial judges when making a determination as to whether abandonment has occurred. See Tenn.Code Ann. § 36-1-102(1)(G) (1996 & Supp.1998) ("`Abandonment' does not have any other definition except that which is set forth herein, it being the intent of the general assembly to establish the only grounds for abandonment by statutory definition. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental rights and responsibilities in order for a determination of abandonment to be made. Decisions of any court to the contrary are hereby legislatively overruled.").
Notwithstanding the plain language of the statute, Mr. Swanson and the Attorney General would have us read the word "willfully" into the definition of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support." They argue that the word "willfully" should be included in order to effectuate the intent of the legislature and in order to preserve the constitutionality of the statute.
We recognize that there are occasions in which it is appropriate to reject a literal reading of a statute when it would result in the statute being declared unconstitutional. State v. Hudson, 562 S.W.2d 416, 418-19 (Tenn.1978); Kirk v. State, 126 Tenn. 7, 13, 150 S.W. 83, 85 (Tenn.1911). Moreover, courts may supply words when reasonably called for. Metropolitan Gov't *187 v. Poe, 215 Tenn. 53, 74, 383 S.W.2d 265, 274 (1964). Nevertheless, it is the prerogative of the legislature, and not the courts, to amend statutes. Manahan v. State, 188 Tenn. 394, 397, 219 S.W.2d 900, 901 (1949).
In this case, we find that it is inappropriate for this Court to supply the element of intent in the definition of "willfully failed to support" and "willfully failed to make reasonable payments toward such child's support." It appears to us that the definition was carefully crafted by the legislature against a backdrop of both judicial interpretation and legislative enactment. Throughout its forty-four-year history, the definition of "abandonment" as it pertained to failure to support always contained an element of intent or purposefulness. We cannot conclude that the legislature excluded the willfulness aspect of failure to support inadvertently or mistakenly, particularly in light of the legislature's pronouncement that the only definition of abandonment which should be applied is that which is included in the statute.[9] It is evident that the legislature consciously and deliberately excluded the element of intent. We therefore decline to read the statute as suggested by Mr. Swanson and the Attorney General, but instead we will construe its constitutionality as drafted and enacted by the General Assembly.
Constitutionality of Tenn.Code Ann. § 36-1-102(1)(D)
Both the United States and Tennessee Constitutions protect a parent's right to the custody and upbringing of his or her child. Stanley, 405 U.S. at 650, 92 S. Ct. 1208; Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn.1994). In Stanley, the United States Supreme Court held that an unwed father was entitled, as a matter of due process, to a hearing on his fitness as a parent before his children were taken from him. The Supreme Court has also emphasized that unwed fathers must seize upon the opportunity to shoulder significant responsibility for the child's rearing before due process rights are implicated. Once that opportunity has been seized, the child may not be removed in the absence of a finding of parental unfitness. Quilloin v. Walcott, 434 U.S. 246, 256, 98 S. Ct. 549, 54 L. Ed. 2d 511 (1978). See also Caban v. Mohammed, 441 U.S. 380, 395, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1978) (holding unconstitutional a statute that distinguishes between rights of unmarried mothers and unmarried fathers because unwed fathers have a fundamental right to parent children when their identity is known and when they have manifested a significant paternal interest in their children).
Similarly, this Court has held that the Tennessee Constitution provides for a parental right to privacy to care for children without unwarranted state intervention unless there is a substantial danger of harm to the children. Hawk v. Hawk, 855 S.W.2d 573, 579 (Tenn.1993).[10] This Court has also held that the State and federal constitutions require an unwed biological father's parental rights to be determined before the court may proceed with the issue of adoption. See Robertson, 871 *188 S.W.2d at 678.[11] It is therefore beyond question that before a parent's rights can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.[12] Certainly, a parent who has abandoned his child, either by willfully failing to visit or by willfully failing to support, is unfit. However, Tennessee Code Annotated section 36-1-102(1)(D) may be read to permit termination of parental rights even when the failure to pay support was not intentional.[13]
Since the statutory definitions of "willfully failed to support" and "willfully failed to make reasonable payment toward such child's support" in effect create an irrebuttable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional, we hold that those definitions are unconstitutional. The statutory definitions simply do not allow for the type of individualized decision-making which must take place when a fundamental constitutional right is at stake. Therefore, they impermissibly infringe upon a parent's right to the care and custody of his or her children.
The federal and state constitutions require the opportunity for an individualized determination that a parent is either unfit or will cause substantial harm to his or her child before the fundamental right to the care and custody of the child can be taken away. Stanley, 405 U.S. at 658-59, 92 S. Ct. 1208; Bond, 896 S.W.2d at 548. As the Supreme Court noted in Stanley, a procedure which elevates a presumption over a requirement of proof of unfitness may be cheaper and easier to administer than an individualized determination, but it "needlessly risks running roughshod over the important interests of both parent and child." 405 U.S. at 658, 92 S. Ct. 1208.
We further hold that only that portion of the statute contained at Tennessee Code Annotated section 36-1-102(1)(D), which includes the unconstitutional definitions, is hereby invalidated. Under the circumstances of this case, we are able to elide the unconstitutional portion of the statute, and the remaining provisions of the Act may be enforced. Our legislature has specifically declared that the provisions of the Tennessee Code are severable. Tennessee Code Annotated section 1-3-110 provides:
It is hereby declared that the sections, clauses, sentences and parts of the Tennessee *189 Code are severable, are not matters of mutual essential inducement, and any of them shall be exscinded if the code would otherwise be unconstitutional or ineffective. If any one (1) or more sections, clauses, sentences or parts shall for any reason be questioned in any court, and shall be adjudged unconstitutional or invalid, such judgment shall not affect, impair or invalidate the remaining provisions thereof, but shall be confined in its operation to the specific provision or provisions so held unconstitutional or invalid, and the inapplicability or invalidity of any section, clause, sentence or part in any one (1) or more instances shall not be taken to affect or prejudice in any way its applicability or validity in any other instance.
We recognize that the legislature's endorsement of elision does not automatically make it applicable to every situation; however, when a conclusion can be reached that the legislature would have enacted the act in question with the unconstitutional portion omitted, then elision of the unconstitutional portion is appropriate. See State v. Tester, 879 S.W.2d 823, 830 (Tenn.1994); State v. Murray, 480 S.W.2d 355, 356-57 (Tenn.1972).
In this case, the unconstitutional definitions were but a small part of a large act overhauling this state's adoption laws. See Tenn. Pub. Acts, ch. 532. This Act was enacted after extensive study by the Commission to Study the Adoption Laws of the State of Tennessee. See S.J. Res. 17, 98th Gen. Assembly (1993). Given the breadth and scope of the act and the fact that the definitions of abandonment as related to failure to support were but a small portion of the Act, it seems apparent to us that the General Assembly would have enacted the Act notwithstanding the unconstitutional sections. We therefore determine that the unconstitutional definitions are properly elided.
Since the Court of Appeals applied the unconstitutional definitions in Tennessee Code Annotated section 36-1-102(1)(D) to determine that Mr. Swanson had abandoned Brittany, the judgment of the Court of Appeals is reversed. Until otherwise amended by our legislature, the definition that was in effect under prior law shall be applied.[14]Leech v. American Booksellers Ass'n Inc., 582 S.W.2d 738, 740 (Tenn.1979) (holding that prior law is in full force and effect when an act is held unconstitutional); see also State v. Driver, 598 S.W.2d 774, 776 (Tenn.1980).
When the appropriate standard is applied and the presumption of correctness is given to the circuit court's findings of fact, see Tenn. R.App. P. 13(d), it follows that Brittany was not abandoned by her father.[15] We therefore conclude that Mr. Swanson's parental rights to Brittany should not be terminated, and we remand the case to the trial court for preparation and implementation of a plan returning custody of Brittany to Mr. Swanson. The trial court is directed to prepare a plan for Brittany's return which will minimize the trauma to the child by providing for her gradual return. The plan shall provide that she be returned to Mr. Swanson's custody no later than ninety days from the entry of the judgment in this case.
Costs of this appeal shall be paid by the appellee, Baptist Children's Home.
ANDERSON, C.J., DROWOTA, BIRCH, and HOLDER, JJ., concur.
NOTES
[1] Brigitte Swanson died in October of 1996. Her parental rights were never at issue in this litigation.
[2] According to Mr. Swanson's present wife, Mr. Swanson placed over one-hundred phone calls to Mr. Ellingburg to discover the location of Brittany and her mother. Often, these phone calls were not answered.
[3] The case manager for Brittany testified that DHS had no record of support from Mr. Swanson. DHS had made no effort to locate Mr. Swanson in part because DHS had been told by Mrs. Swanson that he was deceased. This information was seemingly collaborated to some extent a false statement made by Ms. Swanson on a Mississippi marriage license application in September of 1992 to the effect that her previous marriage had ended in the death of her husband.
In March of 1993, two months before DHS was granted custody of Brittany, Ms. Swanson obtained an annulment of her marriage on the grounds that the she was not legally divorced from Mr. Swanson. Although DHS had a record of the annulmentand therefore must have known that accounts of Mr. Swanson's death were inaccurateDHS still made no apparent effort to contact him.
[4] In accord with the most recent version of the statute, see Tenn.Code Ann. § 36-102(1)(D) (1996), we use the term "willfully."
[5] This definition contained in the Tennessee Code sections on adoption was in effect just prior to the adoption of the new language in 1995. See Tenn.Code Ann. § 36-1-102(1)(A) (1994).
[6] This provision specifically deleted any requirement for willfulness in the definition of "willfully failed to support" and "willfully failed to make reasonable payment toward such child's support."
[7] The Court of Appeals noted the unusual circumstances of this case, particularly Mrs. Swanson's informing agencies that Mr. Swanson was dead, Mrs. Swanson's relocation with the child several times, and the lack of any attempt to contact Mr. Swanson during the initial proceeding to determine whether Brittany was dependent and neglected.
[8] Two interested parties also filed amicus briefs in this Court. The Memphis Area Legal Services filed a brief in support of Mr. Swanson's position, asserting that the definition of abandonment is unconstitutional since it creates an irrebuttable presumption of unfitness. Robert Tuke, an attorney and member of the Commission to Study the Adoption Laws of the State of Tennessee created by the General Assembly in 1993, also filed an amicus brief. Mr. Tuke contends that this Court should construe the definition of "willfully failed to support" to contain a willfulness element; when so construed, according to Mr. Tuke, the statute is constitutional.
[9] We note, as argued by the Attorney General, that other sections governing abandonment do contain the willfulness element. For example, a separate definition is given for "willfully failed to visit." That term "means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation." Tenn.Code Ann. § 36-1-102(1)(E). The Attorney General argues that since the willfulness element is included elsewhere in the statute, the General Assembly must have intended that it be included in the sections concerning "failure to support." However, it is just as possible that the legislature, by excluding the willfulness term from the definition of "failure to support," meant to define it differently.
[10] See also Lewis v. Donoho (In the Matter of Bianca Arneshe Askew), 993 S.W.2d 1, 4 (Tenn.1999) ("The magnitude of a parent's constitutional right to rear and have custody of his or her children would necessitate a clear finding of substantial harm."); Petrosky v. Keene, 898 S.W.2d 726, 727-28 (Tenn.1995) (holding that if an unwed father has taken affirmative steps to develop a substantial relationship with his child, the state may not interfere except to protect the child from harm); Bond, 896 S.W.2d at 548 ("[I]n a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general `best interest of the child' evaluation in making a determination of custody.").
[11] In Robertson, this Court emphasized that the biological father had grasped every opportunity to develop a substantial relationship with his son and had accepted responsibility for his care and custody. 871 S.W.2d at 678.
[12] We note in passing that the circumstances of Mr. Swanson's relationship to Brittany at her birth and for at least a year thereafter are different than the circumstances of the unwed fathers discussed in most of the cases. Mr. Swanson was married to Brittany's mother at the time of Brittany's birth and was merely separated from her when he lost contact with Brittany. He therefore stands in a stronger position than the unwed fathers who merely had an inchoate right to the care and custody of their children. It is necessary for the unwed fathers to seize upon the opportunity to parent before their right to parent is entitled to due process protection. See Lehr v. Robertson, 463 U.S. 248, 262, 103 S. Ct. 2985, 77 L. Ed. 2d 614 (1983). Mr. Swanson's right to the care and custody of Brittany was not inchoate; it already existed because of his marriage to her mother.
[13] We reject the contention contained in Mr. Tuke's amicus brief that at some point the fact that the child has been in the custody of a non-parent for a period of time means that a lesser standard can be applied in determining whether parental rights may be terminated. Such a standard would increase the likelihood for delaying cases in order that the child remain in foster care. We cannot approve of a standard that would potentially cause that result.
[14] We wish to make it clear that the definition previously in effect was the definition as it existed in 1994. Under the prior statute, the definition of "abandoned child" contained an element of intent both in failures to visit and failures to support. See Tenn.Code Ann. § 36-1-102(1)(A)(i) (Supp.1994).
[15] The circuit court found that Mr. Swanson had not willfully abandoned Brittany. The circuit court also considered the specific circumstances of this case and determined that returning custody of Brittany to her father would not cause substantial harm to her. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/247574/ | 264 F.2d 789
Howard JAMISON, Administrator of the Estate of Mary G. Clark, Deceasedv.Edwin S. KAMMERER and Walter Edelen, Edwin S. Kammerer, Appellant.Howard JAMISON, Administrator of the Estate of Thelma J.Graham, Deceasedv.Edwin S. KAMMERER and Walter Edelen, Edwin S. Kammerer, Appellant.Howard JAMISON, Administrator of the Estate of AlfredWilliam Fallon, Deceasedv.PENNSYLVANIA RAILROAD COMPANY, Allegheny County SanitaryAuthority and United Foundation, UnitedFoundation, Appellant.
Nos. 12766-12768.
United States Court of Appeals Third Circuit.
Argued Dec. 1, 1958.Decided Feb. 26, 1959.
James F. Manley, Pittsburgh, Pa., (James J. Burns, Jr., Pittsburgh, Pa., on the brief), for appellants.
James P. McArdle, Pittsburgh, Pa., for appellee.
Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
PER CURIAM.
1
These appeals present the same issues as those decided today in Corabi v. Auto Racing Co., 3 Cir., 264 F.2d 784. We note that in thirty-three additional civil actions in the court below Mr. Jamison was named as administrator in order to create federal diversity jurisdiction. We observe also, as in the Corabi case, that the events complained of in these three suits occurred in Pennsylvania and the decedents were residents of Pennsylvania. If the situation presented requires a cure that cure in the present state of the law cannot come from this court. For the reasons stated in the Corabi opinion the judgments will be affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2548052/ | 81 So. 3d 435 (2012)
SQUIRES
v.
STATE.
No. 5D11-2931.
District Court of Appeal of Florida, Fifth District.
February 21, 2012.
DECISION WITHOUT PUBLISHED OPINION
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1054437/ | IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
On Brief March 15, 2005 Session
STATE OF TENNESSEE, ex rel., CONNIE MITCHELL v. PERCY
MITCHELL
A Direct Appeal from the Juvenile Court for Shelby County
No. 120514 The Honorable Kenneth Turner, Judge
No. W2004-01320-COA-R3-JV - Filed April 20, 2005
This is a Title IV child support case. Father/Appellee was subject to a court order requiring
him to make monthly child support payments. Mother allegedly requested to end Father’s child
support obligation and Title IV-D services due to a private agreement between the parties whereby
Father paid some child support directly to Mother. The State/Appellant, on behalf of Mother, filed
a contempt petition against Father seeking payment of child support and arrears. Following a
hearing, the trial court dismissed the support orders and forgave any arrears. The trial court also
denied the State’s Motion to Alter or Amend the Judgment. The State appeals based upon T.C.A.
§ 36-5-101(a)(5) because no petition or motion to modify child support was filed and based upon
T.C.A. § 71-3-124 because the State asserts it is entitled to reimbursement from the arrears for public
benefits paid to Mother. We reverse and remand.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Reversed and
Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.
Paul G. Summers, Attorney General and Reporter, Stuart F. Wilson-Patton, Senior Counsel, For
Appellant, State of Tennessee, ex rel., Connie Mitchell
No appearance by Appellee.
OPINION
On September 17, 1987, Connie Mitchell filed a verified “Petition for Child Support” in the
Juvenile Court of Shelby County. Ms. Mitchell sought a child support order against Percy Mitchell
(“Appellee”) on behalf of their child, Christopher Rajanique Mitchell (d.o.b. 5/15/87). On
November 10, 1987, the trial court entered an “Order of Support,” wherein Mr. Mitchell was ordered
to pay $100.00 per week in child support to the Clerk of Court. An “Income Assignment Order” was
issued to Mr. Mitchell’s employer on December 11, 1987 in the amount of $466.66 per month.
On November 20, 1987, Ms. Mitchell filed a “Petition for Citation for Contempt of Court”
against Mr. Mitchell for his alleged failure to pay the court-ordered support. On April 22, 1988, an
“Order for Attachment Pro Corpus” was issued against Mr. Mitchell. On February 2, 1989, the
Juvenile Court Referee (“Referee”) entered his Findings and Recommendations in which he
dismissed the petition for contempt and set child support arrearage at $6,283.46. The Referee
ordered Mr. Mitchell to continue to pay his support obligation by income assignment. These
findings and recommendations were confirmed by the trial court on the same date. On February 9,
1989, an “Income Assignment Order” was issued to Mr. Mitchell’s employer in the amount of
$503.71, which amount included the support obligation of $412.71 per month plus $91.00 toward
the arrearage.
On May 15, 2003, the State of Tennessee (“State,” or “Appellant”), on behalf of Ms.
Mitchell, filed a “Petition for Citation for Contempt of Court” against Mr. Mitchell for failure to pay
child support. A hearing before a special judge was held on August 4, 2003 and, on that same day
an Order was entered dismissing the petition for contempt and finding that Mr. Mitchell had “paid
all child support since January 2, 1990 in full directly to [Ms. Mitchell] and accordingly from
January 10, 1990 to this date all support has been paid in full.” In addition, the Order indicates that
“the Court’s [November 10, 1987] order of support [is] dismissed.”
On August 28, 2003, the State filed a “Motion to Alter or Amend” (the “Motion”). The
Motion reads, in pertinent part, as follows:
1. An order was entered on November 10, 1987 setting child support
for one child at $95.24 per week beginning November 10, 1987.
2. That the parties signed a JC-94 on January 2, 1990, which did not
extinguish the Defendant’s obligation to pay child support to the
Petitioner.
3. That a Contempt Petition for non-payment of child support was
filed by the State at Ms. Mitchell’s request and a hearing was held on
August 4, 2003. At that hearing, Ms. Mitchell testified that Mr.
Mitchell had continued to pay child support directly to her since 1990
and that the money paid to her more than satisfied the child support
obligation set by the Court in 1987. Based on those statements and
with no other proof, this Honorable Court stopped the child support
obligation and zeroed out the child support arrears, which totaled
$77,160.92.
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4. That subsequent to the hearing on August 4, 2003, the State of
Tennessee has learned that Ms. Mitchell has received public
assistance benefits since 1990. Furthermore, Ms. Mitchell visited the
Tennessee Department of Human Services on the day of the hearing,
August 4, 2003, and again applied for public assistance benefits. In
her application, she stated that she received no child support from Mr.
Mitchell.
(Emphasis in original).
On May 10, 2004, a hearing was held before a Referee on the State’s Motion. On the same
day, the Referee entered his findings and recommendations, wherein he denied the State’s Motion.
The findings and recommendations of the Referee were confirmed by the trial court on the same
date.
The State appeals and presents six issues for review as stated in its brief:
I. Whether the trial court erred by retroactively modifying the
November 10, 1987 child support Order in violation of T.C.A. § 36-
5-101(a)(5).
II. Whether the trial court erred by depriving the State of
reimbursement for public assistance benefits in violation of T.C.A. §
71-3-124.
III. Whether the trial court erred by declaring the 1987 and 1989
child support orders to be “dismissed” without any basis for granting
relief from the Judgments
IV. Whether the trial court erred by basing its ruling on documents
which were not properly authenticated, not admitted into evidence,
not included in the record and not the subject of judicial notice.
V. Whether the trial court erred by suspending current child support
and allowing the parties to pay support by private agreement not
approved by the court and not in accordance with the Tennessee Child
Support Guidelines.
VI. Whether the trial court erred by not requiring current and past
due child support payment to be paid through the State of
Tennessee’s Central Collections and Distribution Unit in a case being
enforced under Title IV-D of the Social Security Act.
-3-
Although we will address all of the State’s allegations of error in our discussion, we perceive
that there are, in fact, two main issues in this case–those being State’s Issue I and II as set out above.
Before proceeding to these issues, we first note that Mr. Mitchell has filed no brief in this appeal.
On January 28, 2005, this Court entered an Order that, pursuant to Tenn. R. App. P. 29, the matter
was deemed submitted for decision on the record, Appellant’s brief, and Appellant’s counsel’s oral
argument. Since this case was tried by the court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Unless
the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R.
App. P. 13(d).
The State first argues that the trial court erred by retroactively modifying the 1987 and 1989
child support orders in the absence of either a petition or a motion for modification and by forgiving
$77,160.92 in child support arrears. We agree. T.C.A. § 36-5-101(a)(5) (Supp. 2004) provides:
Any order for child support shall be a judgment entitled to be
enforced as any other judgment of a court of this state and shall be
entitled to full faith and credit in this state and in any other state.
Such judgment shall not be subject to modification as to any time
period or any amounts due prior to the date that an action for
modification is filed and notice of the action has been mailed to
the last known address of the opposing parties. If the full amount
of child support is not paid by the date upon which the ordered
support is due, the unpaid amount is in arrears and shall become a
judgment for the unpaid amounts and shall accrue interest from the
date of the arrearage at the rate of twelve percent (12%) per annum.
All interest which accumulates on arrearages shall be considered
child support. Computation of interest shall not be the responsibility
of the clerk.
(Emphasis added).
Furthermore, our Supreme Court has held in Rutledge v. Barrett, 802 S.W.2d 604
(Tenn.1991) that, pursuant to the above statute, a child support order is not subject to retroactive
modification. Id. at 605-607; see also Alexander v. Alexander, 34 S.W.3d 456, 460 (Tenn. Ct.
App.2000)(providing that "a court has no power to alter a child support award as to any period of
time occurring prior to the date on which [a parent] files his or her petition."). Accordingly, a trial
court may not retroactively forgive a child support arrearage, but may only modify child support
obligations back to the date that a petition or motion for modification is filed and notice is provided
to the non-moving party.
In the instant case, the trial court filed child support orders in both 1987 and 1989. From our
review of the record, it appears that no motions to modify child support were ever filed by either
party. Consequently, the trial court lacked the authority to retroactively modify the child support
-4-
orders. Concerning the reasoning behind the trial court’s decision to “dismiss” the child support
orders, the record reads, in pertinent part, as follows:
THE COURT: Okay. And then the order started up to pay this
support at $100 per week? Now, as I understand, you [Ms. Mitchell]
came down and stopped it in 1990?
MRS. MITCHELL: Uh-huh.
THE COURT: Did you ever change that?
MRS. MITCHELL: No, I did not.
THE COURT: Okay.
MS. KENNEY-McANDREWS: What she told me was, she called the
State because there were some notices that she got about it.
MRS. MITCHELL: Right.
MS. KENNEY-McANDREWS: And she called to figure out what
was going on, and I think the State must have thought she wanted
enforcement, because they made a note, I think, on–that she called in
like to reactivate it, but she said she called in to say, look, I’ve tried
to close it. So I–I think there was a little miscommunication on–on
that front, because she said it was never her intention. Her intention
was to let them know that he’s been paying her outside of court for all
these years. She said every month he gives her $160, and he always
has.
THE COURT: Okay. We’ll show that the order of child support is
dismissed or was dismissed January 2, 1990.
From our review of the record, it appears that the trial court “dismissed” the order(s) of support
either because Ms. Mitchell completed a form (allegedly a JC-94) requesting that she no longer be
provided child support enforcement services from the Title IV-D child support agency or because
the parties made a private agreement whereby Mr. Mitchell would pay his support obligation (or
some portion thereof) directly to Ms. Mitchell. Neither of these reasons, however, is a sufficient
basis on which to forgive Mr. Mitchell’s support obligation or arrearage.
The alleged JC-94 form was not made part of the record on appeal. However, even if we
assume that such form was filed by Ms. Mitchell, there is no factual or legal basis in this record from
which we can conclude that a JC-94 form could constitute “an action for modification” as required
by T.C.A. § 36-5-101(a)(5), supra. Furthermore, there is no proof that the form was filed in
-5-
connection with this particular case. At the hearing, the trial court asks for the “social file,” which
allegedly contained the JC-94. The form’s presence in a “social file” does not satisfy the statutory
requirements that a motion to modify child support obligations be “filed [with the court] and notice
[given] ... to the opposing party.” At the hearing on the State’s Petition to Alter or Amend, Mr.
Mitchell testified, in relevant part, that “...I didn’t get any paperwork. My wife said that she had
come down here and had it [Mr. Mitchell’s child support obligation] dropped.” Consequently, the
JC-94 form does not satisfy the statutory requirements or rise to the level of a petition or motion to
modify the child support obligation.
Concerning any private agreement by the parties that Mr. Mitchell would pay support directly
to Ms. Mitchell, it is disputed in the record as to whether the parties actually had such an agreement.
However, even if we assume arguendo that such was the agreed upon arrangement, the only
testimony concerning the amount Mr. Mitchell allegedly paid to Ms. Mitchell is that it was $160 per
month (at those times when he was employed), which is well below the $412.71 per month set by
the 1989 Order. It is well settled in Tennessee that any agreement by the parents to relieve one
parent of the obligation of support is void as against public policy. See, e.g., Berryhill v. Rhodes,
21 S.W.3d 188, 192 (Tenn. 2000); Witt v. Witt, 929 S.W.2d 360, 363 (Tenn. Ct. App. 1996).
Consequently, we find that the trial court erred in modifying and/or dismissing Mr. Mitchell’s
support obligation.
Concerning the trial court’s forgiveness of Mr. Mitchell’s arrearage, T.C.A. § 36-5-
101(a)(4)(A)(ii) (Supp. 2004) reads as follows:
That in all Title IV-D child or spousal support cases in which
payment of child or spousal support is to be made by income
assignment, or otherwise, and in all cases where payments made by
income assignment based upon support orders entered on or after
January 1, 1994, that are not Title IV-D support cases but must be
made to the central collection and disbursement unit as provided by
§ 36-5-116, and, except as may otherwise be allowed by § 36-5-
501(a)(2)(B), the court shall only order that the support payments be
made to the central collection and disbursement unit pursuant to §
36-5-116. No agreement by the parties in a parenting plan, either
temporary or permanent, entered pursuant to the provisions of title 36,
chapter 6, part 4, or any other agreement of the parties or order of the
court, except as may otherwise be allowed by § 36-5-501(a)(2)(B),
shall alter the requirements for payment to the central collection and
disbursement unit as required by § 36-5-116, and any provision of any
parenting plan, agreement or court order providing for any other
payment procedure contrary to the requirements of § 36-5-116, except
as may otherwise be allowed by § 36-5-501(a)(2)(B), whether or not
approved by the court, shall be void and of no effect. No credit shall
be given by the court, the court clerk or the department of human
-6-
services for child or spousal support payments required by the
support order that are made in contravention of such
requirements; provided, however, the department may make any
necessary adjustments to the balances owed to account for changes in
the Title IV-D or central collection and disbursement status of the
support case.
(Emphasis added).
By its plain language, this statute prohibits the trial court from giving Mr. Mitchell credit for
child support payments made directly to Ms. Mitchell or to Christopher when the court orders
required payment to be made through the courts. Furthermore, even if this were not a Title IV-D
case, T.C.A. § 36-5-101(a)(5) above clearly states that “the unpaid amount is in arrears and shall
become a judgment for the unpaid amounts....” As a “judgment,”arrears may only be forgiven if
one of the criteria for relief from judgments or orders listed in Tenn. R. Civ. P. 60 is proven. None
of the grounds for relief contained therein are raised or supported by the evidence in this record.
Furthermore, although a parent who is in arrears on his or her child support obligation may
be entitled to credit for necessaries that he or she provided to the child, the record contains no proof
that Mr. Mitchell provided such necessaries or that he sought any credit for same. Nonetheless, there
is some indication in this record that Mr. Mitchell made payments to Ms. Mitchell and/or to
Christopher. Consequently, he may be entitled to some credit against his child support arrearage.
For the foregoing reasons, we reverse the order of the trial court dismissing the support order and
forgiving the child support arrears owed by Mr. Mitchell. We remand on the issue of current arrears,
the interest thereon, and for a determination of whether, and to what extent, Mr. Mitchell is entitled
to credit against said arrears.
We now turn to the State’s second issue of whether the trial court erred by depriving the State
of reimbursement for public assistance benefits in violation of T.C.A. § 71-3-124 (2004), which
reads, in pertinent part, as follows:
(a)(1) Each applicant or recipient who receives or authorizes payment
of public or temporary assistance pursuant to Title IV-A or IV-E of
the Social Security Act or any successor program providing
temporary assistance or foster care or adoption assistance shall be
deemed to have assigned to the state any rights to support from any
other person such applicant or recipient may have:
(A) In the applicant's own behalf or in behalf of any other family
member for whom the applicant is applying for or receiving aid; and
(B) That have accrued at the time such assignment is executed.
-7-
Although the particular dates and amounts of assistance are not contained in this record, it
is undisputed that Ms. Mitchell and her children received some public assistance benefits.
According to T.C.A. § 71-3-124, Ms. Mitchell automatically assigned to the State her rights to
receive child support from Mr. Mitchell in the amount of the benefits received. See also Davis v.
Davis, No. W2001-01842-COA-R3CV, 2002 WL 1592547 (Tenn. Ct. App. July 8, 2002). Under
federal law, a request by the recipient parent to end Title IV-D services may be honored only if the
recipient meets at least one of the criteria set forth in the regulation. 45 C.F.R. § 303.11. Based
upon the foregoing discussion, Mr. Mitchell is still in arrears on his support obligation and,
consequently, Ms. Mitchell’s request for cessation of Title IV-D services should have been denied.
For the foregoing reasons, it was clearly error for the trial court to permit Mr. Mitchell and
Ms. Mitchell to bypass the Tennessee Department of Human Services and, by its order relieving Mr.
Mitchell of his child support obligations both past, and future, to approve an arrangement whereby
Mr. Mitchell supposedly paid child support in an unspecified amount directly to Ms. Mitchell. The
contempt proceedings initiated by the State were brought on Ms. Mitchell's behalf in order to
compel the payment of current child support and arrears by Mr. Mitchell. Thus, this is a Title IV-D
case and the trial court did not have discretion to direct payments away from the Tennessee
Department of Human Services. See State ex rel. Patterson v. French, No.
W2000-02668-COA-R3-CV, 2002 WL 1349498, at *3 (Tenn. Ct. App. Feb. 5, 2002). Additionally,
it was error for the trial court to give effect to Ms. Mitchell's request to end Mr. Mitchell's child
support obligation and Title IV-D services, because she had not yet been paid the arrears owed her
by Mr. Mitchell, and the State had not yet been paid its assigned portion of those arrears. See 42
U.S.C. §§ 608(a)(3), 657; 45 C.F.R. §§ 302.32(a), 303.11; T.C.A. § 71-3-124(a)(1) (Supp.2003).
Furthermore, as a Title IV case, all payments of child support and arrears must be made through the
State of Tennessee’s Central Collections and Distribution Unit. As this Court stated in French “the
directive that all payments made in Title IV-D cases be sent to the State disbursement unit does not
give the trial court the discretion to order otherwise.” French, 2002 WL 1349498 at *4; see also
45 C.F.R.§ 302.32(a).
Accordingly, we reverse the Order of the trial court dismissing the prior orders of child
support and forgiving Mr. Mitchell’s arrears. We remand for such further proceedings as may be
necessary consistent with this Opinion. Costs of this appeal are assessed against the Appellee, Percy
Mitchell.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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https://www.courtlistener.com/api/rest/v3/opinions/1054496/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
February 7, 2006 Session
STATE OF TENNESSEE v. DONALD WILLIAMS, JR.
Appeal from the Criminal Court for Shelby County
No. 02-02640 Arthur T. Bennett, Judge
No. W2004-02355-CCA-R3-CD - Filed May 17, 2006
The appellant, Donald Williams, Jr., was indicted on one count of first degree murder, two counts
of felony murder, especially aggravated robbery, especially aggravated burglary and arson. After a
jury trial, the appellant was found guilty of second degree murder, two counts of felony murder,
especially aggravated robbery and especially aggravated burglary. The trial court imposed life
sentences for the two felony murder convictions, a twenty-five year sentence for the second degree
murder conviction, a twenty-five year sentence for the especially aggravated robbery conviction and
a twelve-year sentence for the especially aggravated burglary conviction. The trial court denied a
motion for new trial. On appeal, the appellant argues that the trial court erred: (1) by refusing to
grant a continuance; (2) by refusing to allow the appellant to question Officer Robert Shemwell
about a potentially exculpatory witness; and (3) by admitting an excessively graphic photograph of
the victim. The appellant also contends that the evidence was insufficient to support the verdict.
Because the judgment forms do not reflect whether the sentences were imposed concurrently or
merged for an effective life sentence, we remand the matter to the trial court for entry of corrected
judgment forms to reflect that the convictions for felony murder and second degree murder are
merged into one count of felony murder for an effective life sentence. In all other respects, we affirm
the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.
JERRY L. SMITH , J., delivered the opinion of the court, in which DAVID H. WELLES, and NORMA
MCGEE OGLE, JJ., joined.
Mark Mesler, Memphis, Tennessee, for the appellant, Donald Williams, Jr.
Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Patience Branham and Paul Hagerman, Assistant
District Attorneys General, for the appellee, State of Tennessee.
OPINION
Matthew Montgomery, the victim, lived alone at 3801 Kipling Avenue in Memphis. The
victim was a disabled Vietnam veteran who suffered from paranoid-schizophrenia.
On July 7, 2001, the sixteen-year-old appellant was visiting Robert Phillips, also known as
B.J., who lived across the street from the victim. Marcus Butler was also at B.J.’s house. After a
discussion about robbing someone, the appellant, who was known as “Scoop,” walked across the
street with Mr. Butler to the victim’s house. Mr. Butler asked the victim for money, and, according
to Mr. Butler, as the victim handed over some change, the appellant reached over Mr. Butler’s
shoulder with a pistol and shot the victim. Mr. Butler immediately started to run from the scene and
remembered hearing at least five shots. The appellant ran in a different direction. Mr. Butler and
the appellant met later at a friend’s house, and, after B.J. showed up, all three returned to B.J.’s
house. Later that night, Mr. Butler saw someone wearing a black t-shirt going into the victim’s
house.
The next day, Michael Broady, the appellant’s younger brother, went into the victim’s house
with the appellant. Mr. Broady saw the victim lying dead on the kitchen floor and saw that there was
blood all over the house. Mr. Broady and the appellant found some rifles in the house which they
loaded into the victim’s car. The two later took the rifles and the victim’s car to the home of their
uncle, James Fenner. After taking the rifles, the appellant and Mr. Broady poured gasoline all
around the inside of the house. The victim’s neighbor, Dorothy Rome, saw three young men around
the victim’s house that day, and noticed that the victim’s car was gone the morning of July 8, 2001.1
Later that evening, the appellant’s mother called the Memphis Police Department to report
a suspicious vehicle parked outside her house. Officer William Taylor checked the registration and
determined that the vehicle, a white Dodge Neon, was registered to the victim but had not been
reported stolen. Officer Taylor went to the victim’s house and knocked on the door. Officer Taylor
left because no one answered the door, and he did not notice anything suspicious.
On July 10, 2001, Ms. Rome noticed that the victim’s vehicle was again parked in front of
the victim’s house. It was gone later that day. On July 10, Starkesha Alford purchased a white
Dodge Neon from a man who introduced himself as “Scoop.” She paid $300 for the vehicle and in
exchange, “Scoop” gave her some registration papers with the name “Montgomery” on them.
Several days later, when the police located the vehicle at Ms. Alford’s residence, she identified a
photograph of the appellant as the man who sold her the vehicle.2
1
In a photospread at the police department, Ms. Rome was able to identify B.J. as one of the young men she
saw at the victim’s house. At trial, she was unable to identify the appellant as one of the men.
2
Ms. Alford was unable to identify the appellant at trial, nearly three years later.
-2-
On the evening of July 12, 2001, Mr. Broady went back to the victim’s house with the
appellant. They filled two large garbage cans with items from the house, including ammunition and
gun clips. They also took an air compressor. After they finished filling the garbage cans, Mr.
Broady lit some underwear on fire and tossed it toward the victim’s body. When Ms. Rome drove
home that evening, she saw two young gentlemen pulling what appeared to be a heavy garbage can
down the street in front of her house. Later that night, she heard what sounded like a fire alarm.
After hearing the alarm, Ms. Rome saw police in front of the victim’s house.
Fire Investigator Ranold Williams was called to the scene of the fire. He was able to
determine that the fire started on the victim’s body in the den/dining room area next to the kitchen.
A gas can containing ignitable liquids was recovered from the scene. When the victim’s body was
discovered, the police department was notified, and a homicide investigation was initiated.
Officer Shan Allen Tracy was assigned to investigate the crime scene at the victim’s house.
He located a bullet hole in the front door and another hole in the wall behind the door. A bullet was
lodged in the wall behind the front door. There was also a bullet fragment lodged in the front door
and a spent bullet on the living room floor. There was a large amount of blood throughout the house
and the victim was lying on the floor in the dining room near a mattress that was burned. A red gas
can containing gasoline residue was found near the victim’s body. According to Paulette Sutton,
Assistant Director of Forensic Services at the Regional Forensic Center, the victim bled continuously
and heavily throughout the house after being shot several times at the front door. The blood spatter
throughout the home was consistent with arterial gushing.
Lieutenant Robert Shemwell of the Memphis Police Department was assigned as the case
coordinator for the investigation into the victim’s death. Several days after the victim’s body was
discovered, Lieutenant Shemwell went to the appellant’s house and conducted a search of the
premises. Lieutenant Shemwell recovered several items from the attic crawl space, including a chest
full of videotapes, an air compressor, boxes of ammunition, a drop light, a computer and a remote
control car. He also found two rings under the appellant’s mattress. The victim’s sister was able to
identify all of the items as the victim’s property.
On July 16, 2001, Lisa Marie Nichols called the Memphis Police Department to report that
her brother, James Fenner, was in possession of several rifles. Officer Aaron Merritt collected the
three rifles and turned them over to technicians for chemical processing. Seven of the fingerprints
recovered from the rifles matched the appellant’s fingerprints.
Sometime after the victim’s death, Mr. Broady witnessed the appellant, Mr. Butler and B.J.
burying a small handgun in the backyard at the appellant’s house. Mr. Broady later dug up the gun
and gave it to his uncle, James Fenner. Mr. Fenner turned the gun over to the police on July 18.
After the TBI examined the gun, they concluded that the bullets fired at the scene were fired from
the gun turned over to the police by Mr. Fenner.
-3-
The autopsy on the victim’s body was performed by Dr. O.C. Smith, the medical examiner
for Shelby County. Dr. Smith determined that the victim had been dead for three to four days and
was dead prior to the start of the fire. Dr. Smith opined that the cause of death was multiple gunshot
wounds. One bullet entered the victim’s chin and traveled back and down through the victim’s neck,
severing the right jugular vein and right carotid artery. A second bullet entered the back of the
victim’s left elbow and lodged in the center of his elbow. According to Dr. Smith, the victim was
not immediately incapacitated by his wounds and was able to move around for some period of time
before his death.
The appellant was indicted in March of 2002 by the Shelby County Grand Jury for the death
of the victim. In the multi-count indictment, the appellant was charged with first degree murder,
murder during the perpetration of aggravated robbery, murder during the perpetration of aggravated
burglary, especially aggravated robbery, especially aggravated burglary and arson. After a jury trial,
the appellant was found guilty of second degree murder, two counts of felony murder, especially
aggravated robbery, and especially aggravated burglary. The appellant was found not guilty of arson.
The trial court sentenced the appellant to life in prison for each count of felony murder, twenty-five
years for second degree murder, twenty-five years for especially aggravated robbery, and twelve
years for especially aggravated burglary. The judgment forms do not reflect that the sentences were
merged or whether the sentences were ordered to run concurrently or consecutively.3
3
W e realize that when an indictment charges both premeditated first degree murder and felony murder, the trial
court should instruct the jury to return a verdict on both counts. State v. Cribbs, 967 S.W .2d 773, 788 (Tenn. 1998).
If convictions are returned on both counts, the convictions are to be merged by the trial court into a single conviction
of first degree murder. State v. Price, 46 S.W .3d 785, 824-25 (Tenn. Crim. App. 2000). In other words,
If the jury does return a verdict of guilt on more than one theory of first-degree murder, the court may
merge the offenses and impose a single judgment of conviction. See State v. Addison, 973 S.W .2d
260, 267 (Tenn. Crim. App. 1997). The benefits of instructing the jury in this manner are important.
First, the double jeopardy problem of retrying a defendant after a subsequent appellate opinion
reverses a conviction as unsupported by evidence is precluded. Second, the State will have a basis to
protect other convictions to which it may be entitled. Third, in light of our decision in State v.
Middlebrooks, 840 S.W .2d 317 (1992), a jury verdict on each charged offense will allow the State to
use the felony murder aggravator as an aggravating circumstance in sentencing. See State v. Hall, 958
S.W .2d 679, 692-93 (Tenn. 1997).
State v. Howard, 30 S.W .3d 271, 275 n.4 (Tenn. 2000). Thus, in the case herein, when the jury returned a verdict of guilt
as to both counts of felony murder, the trial court should have merged those two counts into one count of felony murder.
Further, in order to satisfy double jeopardy concerns, the trial court should have merged the lesser offense of second-
degree murder into the greater offense of felony murder. See State v. Addison, 973 S.W .2d 260, 267 (Tenn. Crim. App.
1997); State v. Banes, 874 S.W.2d 73, 81 (Tenn. Crim. App. 1993); see also State v. Zirkle, 910 S.W .2d 874, 889 (Tenn.
Crim. App. 1995). Consequently, we must remand the matter to the trial court for entry of judgment forms which reflect
that the second degree murder conviction and two felony murder convictions merge into one felony murder conviction
with an effective life sentence.
-4-
The appellant subsequently filed a motion for new trial, which was denied. The appellant
then filed a timely notice of appeal. The following issues are presented for our review: (1) whether
the trial court erred in denying a continuance; (2) whether the trial court erred in refusing to allow
the appellant to question Lieutenant Shemwell about a potentially exculpatory witness; (3) whether
the trial court erred by admitting an excessively graphic photograph of the victim; and (4) whether
the evidence was sufficient to support the appellant’s convictions.
Analysis
Denial of Continuance
The appellant first contends that the trial court erred in denying his oral motion for
continuance made at trial. Specifically, the appellant contends that the State “failed to provide
counsel with exculpatory material and reports” and that in response the trial court “refused to reset
the case without even giving counsel the opportunity to attempt to find the exculpatory witness
referenced twice in the materials.” Further, the appellant contends that he was prejudiced by the trial
court’s actions because the exculpatory witness “could have been an eyewitness to the crime.” The
State disagrees, arguing that the trial court did not abuse its discretion and that the appellant has
failed to show that he was prejudiced by the trial court’s ruling.
The granting of a continuance rests within the sound discretion of the trial court. State v.
Odom, 137 S.W.3d 572, 589 (Tenn. 2004). We will reverse the denial of a continuance only if the
trial court abused its discretion and the defendant was prejudiced by the denial. State v. Hines, 919
S.W.2d 573, 579 (Tenn. 1995). In order to show prejudice, the defendant must demonstrate that a
different result might reasonably have been reached if the trial court had granted the continuance or
that the denial of the continuance denied the defendant a fair trial. Id. Moreover, a defendant who
asserts that the denial of a continuance constitutes a denial of due process or the right to counsel
must establish actual prejudice. Odom, 137 S.W.3d at 589. This Court has recognized that a
continuance might be appropriate in order to afford a defendant a “reasonable opportunity” to locate
a witness. State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). However, the burden
rests with the defendant to show that a continuance might have reasonably resulted in locating the
witness. Id.; see also Brown v. State, 489 S.W.2d 855, 857 (Tenn. Crim. App. 1972).
On the first day of the trial proceedings herein, during jury selection, the State gave the
appellant’s counsel some supplemental police reports that were apparently overlooked during
discovery. Counsel for the State acknowledged that the reports should have been supplied in
response to the appellant’s Rule 16 motion because they contained notes of interviews with the
appellant. In the reports, counsel for the appellant also found references to a girl named “Sherry”
who told an anonymous caller that she was told that someone other than the appellant shot the
victim. Counsel for the appellant requested a continuance to locate “Sherry” and possible
exculpatory evidence which would result from her testimony.
-5-
In a jury-out hearing on the matter, Lieutenant Robert Shemwell testified that on July 14,
2001, he received a phone call from an anonymous caller who claimed that “Sherry” told her that
B.J. was the person who shot and robbed the victim. The caller described “Sherry” as a sixteen-year-
old female who overhead a conversation between B.J. and someone else. In a second phone call, the
same anonymous caller told Lieutenant Shemwell that “Sherry” was working at a Summer Youth
Program in Memphis. Lieutenant Shemwell sent investigators to find “Sherry,” but they were unable
to find her or even verify that her name was “Sherry.” Although the police department actively
pursued B.J. as a suspect in the crimes, they could not corroborate the co-defendant’s statements
about B.J.’s involvement.
After hearing the testimony of Lieutenant Shemwell and the arguments of counsel, the trial
court denied the motion for a continuance. In reaching its decision, the trial court voiced concern
that “Sherry,” if she existed, could be located nearly three years after the crime and whether, if
located, would provide any exculpatory evidence. The trial court commented:
If I thought - if I thought that you would be able to get - come up with something that
would be beneficial at this point I would not hesitate to continue the case, but it
appears to me that we just don’t have enough at this point to say that we need to stop
this case and do further investigation on the matter because it’s a shot in the dark
right now.
After reviewing Lieutenant Shemwell’s testimony, we conclude that the trial court did not
abuse its discretion in denying the continuance. The appellant was unable to present any evidence
that indicated that “Sherry” could be located almost three years after the anonymous phone call or
that “Sherry” would have given any information which would exculpate the appellant. Further, at
the hearing on the motion for new trial, the appellant did not present any further evidence regarding
the whereabouts of the potentially exculpatory witness and did not present evidence indicating that
the outcome of trial would have been different had a continuance been granted. Thus, the appellant
failed to show prejudice as a result of the denial of the continuance. This issue is without merit.
Questioning of Lieutenant Shemwell
Next, the appellant contends that the trial court erred by refusing to allow him to elicit
hearsay testimony from Lieutenant Shemwell as a remedy for the State’s failure to timely provide
supplemental police reports in response to a discovery request. Specifically, the appellant contends
that counsel “should have been allowed to question Shemwell about the hearsay statements from an
exculpatory witness” because “the trial court did not give the defense any remedy whatsoever for the
[sic] this horrible breach of the discovery rules.” The State argues that the appellant waived the issue
for failure to cite authority that would give the trial court the authority to fashion such a remedy.
-6-
While the appellant complains that the trial court erred by refusing to allow him to question
Lieutenant Shemwell about the possible exculpatory witness, we interpret the appellant’s argument
as an argument that the State violated Rule 16 of the Tennessee Rules of Criminal Procedure and the
appellant’s rights to due process by failing to disclose the supplemental reports and potential
exculpatory witness during discovery.
In Brady v. Maryland, the Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373
U.S. 83, 87 (1963). In order to establish a due process violation under Brady, four prerequisites must
be met:
1. The defendant must have requested the information (unless the evidence is
obviously exculpatory, in which case the State is bound to release the information,
whether requested or not);
2. The State must have suppressed the information;
3. The information must have been favorable to the accused; and
4. The information must have been material.
State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). Brady does not require the prosecution “to
disclose information that the accused already possesses or is able to obtain.” State v. Marshall, 845
S.W.2d 228, 233 (Tenn. Crim. App. 1992). The burden of proving a Brady violation rests with the
defendant, and the violation must be proven by a preponderance of the evidence. Edgin, 902 S.W.2d
at 389.
This Court has stated that in order to establish a Brady violation, the information need not
be admissible, only favorable to the defendant. See State v. Spurlock, 874 S.W.2d 602, 609 (Tenn.
Crim. App. 1993). Favorable evidence includes evidence that “provides some significant aid to the
defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a
material, although not indispensable, element of the prosecution’s version of the events, or
challenges the credibility of a key prosecution witness.” Johnson v. State, 38 S.W.3d 52, 56-57
(Tenn. 2001) (quoting Commonwealth v. Ellison, 379 N.E.2d 560, 571 (1978)). This Court will
deem evidence material if a reasonable probability exists that the result of the proceeding would have
been different had the evidence been disclosed. See United States v. Bagley, 473 U.S. 667, 682
(1985). A “reasonable probability” is “a probability sufficient to undermine confidence in the
outcome.” Id. at 682 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).
Rule 16(a)(1) of the Tennessee Rules of Criminal Procedure governing discovery, in part,
provides:
(A) Statement of Defendant.--Upon request of a defendant the state shall permit the
defendant to inspect and copy or photograph: any relevant written or recorded
statements made by the defendant, or copies thereof, within the possession, custody
-7-
or control of the state, the existence of which is known, or by the exercise of due
diligence may become known, to the district attorney general; the substance of any
oral statement which the state intends to offer in evidence at the trial made by the
defendant whether before or after arrest in response to interrogations by any person
then known to the defendant to be a law-enforcement officer[.]
If a party fails to comply with a discovery request, “the court may order such party to permit
the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not
disclosed, or it may enter such other order as it deems just under the circumstances.” Tenn. R. Crim.
P. 16(d)(2). Whether a defendant has been prejudiced by the State’s failure to disclose information
is a significant factor in determining an appropriate remedy. State v. Smith, 926 S.W.2d 267, 270
(Tenn. Crim. App. 1995). When arguing that the State violated Rule 16, the defendant bears the
burden of showing “the degree to which the impediments to discovery hindered trial preparation and
defense at trial.” State v. Brown, 836 S.W.2d 530, 548 (Tenn. 1992).
Looking first to the factors necessary to determine if a Brady violation exists, we note that
the appellant filed a motion for discovery well in advance of trial. The State acknowledged during
jury selection that the supplemental reports should have been provided to the appellant in response
to the initial discovery request. Thus, the State admitted that it improperly withheld the information
from the appellant, satisfying the first prong of the Brady analysis. Further, the information
regarding the potentially exculpatory witness was clearly beneficial to the appellant. Indeed, the
State was required to turn over any potentially exculpatory evidence and any statement of the
appellant to the appellant during discovery. However, we cannot conclude that the information was
material or that the appellant was prejudiced by the State’s failure to disclose the information. The
appellant has not shown a reasonable probability that the outcome of the trial would have been
different had he known of the supplemental reports at the appropriate time. The appellant did not
produce “Sherry” at the hearing on the motion for new trial, admitted that the State did not intend
to, and he did not attempt to use his own statements at trial. Thus, we find no Brady violation. We
do, however, acknowledge that the State was guilty of violating Rule 16 of the Tennessee Rules of
Criminal Procedure. The appellant suggests that the trial court should have temporarily suspended
the hearsay rules in order to allow the questioning of Lieutenant Shemwell as a remedy to the State’s
violation of Rule 16. It is arguable that Rule 16(d)(2) permits the suspension of the hearsay rules
by the trial court in response to a violation of the rules. However, in view of the fact that the
evidence the appellant sought to introduce through Lieutenant Shemwell was at least triple hearsay,
i.e. an anonymous caller claiming that “Sherry” told her that “Sherry” was told by someone else that
the appellant did not commit the crime, we are not willing to hold today the rule contemplates
permitting the trial court to allow the introduction of patently unreliable hearsay into evidence as a
remedy to the State’s violation of the rule where the appellant failed to show that a “substantial
prejudice” resulted from the non-compliance with the rule. See e.g.,U.S. v. Adeniji, 31 F.3d 58, 64-
65 (2d Cir. 1994) (holding that where Government violated Federal Rule of Criminal Procedure 16
by failing to disclose acknowledgment of ownership of suit jackets found filled with cocaine by
defendant to agent, district court did not err in failing to strike the testimony of the agent where the
defendant failed to show substantial prejudice resulted from non-disclosure); U.S. v. Taylor, 13 F.3d
-8-
986, 991-92 (6th Cir. 1994) (determining that defendant failed to show substantial prejudice resulted
from failure to disclose test results); U.S. v. Sanchez, 912 F.2d 18, 21 (2d Cir. 1990) (concluding
that defendant failed to show “cognizable” prejudice resulted from non-disclosure of evidence).
Thus, despite the State’s failure to comply with the rule, we conclude that the appellant did not show
that the failure to receive the information significantly hindered the preparation for trial or the
defense utilized at trial or resulted in “substantial prejudice” to the appellant. Consequently, while
the State’s failure to disclose the information is a technical violation of the rule, given the nature of
the hearsay, the trial court did not abuse its discretion in failing to issue a sanction against the State
for failure to comply with the rule. This issue is without merit.
Introduction of Photograph of Victim
Next, the appellant complains that the trial court erred in admitting into evidence a
photograph taken of the crime scene that shows the victim’s body. Specifically, the appellant
contends that the photograph was excessively graphic and that the probative value of the photograph
was substantially outweighed by the danger of unfair prejudice. The State disagrees.
As we begin our analysis, we note well-established precedent providing “that trial courts have
broad discretion in determining the admissibility of evidence, and their rulings will not be reversed
absent an abuse of that discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Moreover,
the Tennessee Rules of Evidence embody, and our courts traditionally have acknowledged, “a policy
of liberality in the admission of evidence in both civil and criminal cases.” State v. Banks, 564
S.W.2d 947, 949 (Tenn. 1978); State v. Robinson, 930 S.W.2d 78, 84 (Tenn. Crim. App. 1995). To
be admissible, evidence must satisfy the threshold determination of relevancy mandated by
Tennessee Rule of Evidence 401. See, e.g., Banks, 564 S.W.2d at 949. Rule 401 defines “relevant
evidence” as being “evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.” Tenn. R. Evid. 401. However, relevant “evidence may be excluded if its
probative value is substantially outweighed by . . . the danger of unfair prejudice.” Tenn. R. Evid.
403; see also Banks, 564 S.W.2d at 951.
Graphic, gruesome, or even horrifying photographs of crime victims may be admitted into
evidence if they are relevant to some issues at trial and their prejudicial effect is outweighed by their
probity. Banks, 564 S.W.2d at 949-51. On the other hand, “if they are not relevant to prove some
part of the prosecution’s case, they may not be admitted solely to inflame the jury and prejudice them
against the defendant.” Banks, 564 S.W.2d at 951 (citing Milam v. Commonwealth, 275 S.W.2d
921 (Ky. 1955)). The decision as to whether such photographs should be admitted is one entrusted
to the trial court, and that decision will not be reversed on appeal absent a showing of abuse of
discretion. Id. at 949; State v. Dickerson, 885 S.W.2d 90, 92 (Tenn. Crim. App. 1993).
In the case herein, the trial judge conducted a jury-out hearing after objection by the appellant
prior to the admission of the contested photograph during the testimony of Paulette Sutton, the blood
stain pattern expert. Upon reviewing all of the photographs that the State intended to introduce
-9-
during the testimony of Ms. Sutton, the trial court weighed the prejudicial effect of the introduction
of the photograph showing the victim’s body with the probative value and made a determination that
the photograph was admissible. The trial court determined that the photograph did not “fall into the
category of gruesome or inflammatory or anything like that.”
The record contains multiple photographs that show the massive amount of blood throughout
the victim’s house and the fire created in the victim’s home, including a photograph of the victim
lying on the floor. The photograph of the victim’s body was not a close-up shot; it showed the
victim lying on his side in the room where he died and was later burned. The photograph was used
at trial during Ms. Sutton’s testimony to describe the blood spatters found throughout the house and
to explain to the jury how the victim moved through the house after he was shot prior to his death.
There were other photographs of the victim’s body introduced during the testimony of the medical
examiner to illustrate the location and nature of the wounds sustained by the victim which were
arguably more graphic than the photograph introduced during Ms. Sutton’s testimony which showed
the victim lying on the floor. See State v. Smith, 868 S.W.2d 561, 576 (Tenn. 1993) (holding that
trial court did not abuse its discretion in allowing autopsy photograph of victim during guilt phase
of trial in part to illustrate Medical Examiner’s testimony).
We determine that the picture was certainly relevant to show the nature of the victim’s
injuries. We have viewed the photograph and conclude that while unpleasant, the probative value
of the photograph was not substantially outweighed by danger of unfair prejudice. Under these
circumstances we cannot say the trial judge abused his discretion in admitting the photograph. This
issue does not merit reversal.
Sufficiency
Lastly, the appellant challenges the sufficiency of the evidence in regards to his convictions
for felony murder and second degree murder.4 Specifically, he contends that “no rational trier of fact
could have found the Defendant guilty with . . . [the] testimony” presented at trial because the “only
eyewitness who testified [Mr. Butler] . . . was obviously lying about every other aspect of his
testimony, and therefore, cannot be found to be credible.” Moreover, the appellant argues, “the other
two eyewitnesses make it clear that B.J. (Robert Phillips) was the real responsible party, which has
been the defense’s theory in the case all along.” The State contends that the jury properly resolved
any conflicts in or challenges to the testimony of the witness and that the evidence was more than
sufficient to support the verdict.
When a defendant challenges the sufficiency of the evidence, this Court is obliged to review
that claim according to certain well-settled principles. A verdict of guilty, rendered by a jury and
“approved by the trial judge, accredits the testimony of the” State’s witnesses and resolves all
4
The appellant does not contest the validity of his convictions for especially aggravated burglary and especially
aggravated robbery. In fact, in his brief, the appellant states that he “never contested that he and the other boys referred
to in the trial removed items from the victim’s house over the course of the four or five days following his death.”
-10-
conflicts in the testimony in favor of the State. State v. Cazes, 875 S.W.2d 253, 259 (Tenn. 1994);
State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). Thus, although the accused is originally cloaked
with a presumption of innocence, the jury verdict of guilty removes this presumption “and replaces
it with one of guilt.” State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the
burden of proof rests with the defendant to demonstrate the insufficiency of the convicting evidence.
Id. The relevant question the reviewing court must answer is whether any rational trier of fact could
have found the accused guilty of every element of the offense beyond a reasonable doubt. See Tenn.
R. App. P. 13(e); Harris, 839 S.W.2d at 75. In making this decision, we are to accord the State “the
strongest legitimate view of the evidence as well as all reasonable and legitimate inferences that may
be drawn therefrom.” See Tuggle, 639 S.W.2d at 914. As such, this Court is precluded from re-
weighing or reconsidering the evidence when evaluating the convicting proof. State v. Morgan, 929
S.W.2d 380, 383 (Tenn. Crim. App. 1996); State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim.
App. 1990). Moreover, we may not substitute our own “inferences for those drawn by the trier of
fact from circumstantial evidence.” Matthews, 805 S.W.2d at 779. Moreover, questions concerning
the credibility of the witnesses, the weight and value of the evidence, as well as all factual issues
raised by the evidence are to be resolved by the trier of fact. State v. Pruett, 788 S.W.2d 559, 561
(Tenn. 1991).
To obtain a conviction for first degree felony murder, the State had to prove “[a] killing of
another committed in the perpetration of or attempt to perpetrate any first degree murder, act of
terrorism, arson, rape, robbery, burglary, theft, kidnapping, aggravated child abuse, aggravated child
neglect or aircraft piracy [.]” Tenn. Code Ann. § 39-13-202(a)(2). Tennessee Code Annotated
section 39-13-202 also provides that “[n]o culpable mental state is required for conviction under
subdivision (a)(2) . . . except the intent to commit the enumerated offenses or acts.” Tenn. Code
Ann. § 39-13-202(b). Additionally, the death must occur “in the perpetration of” the enumerated
felony. State v. Hinton, 42 S.W.3d 113, 119 (Tenn. Crim. App. 2000) (citations omitted). The
killing may precede, coincide with, or follow the felony and still be in the perpetration of the felony,
so long as there is a connection in time, place, and continuity of action. State v. Buggs, 995 S.W.2d
102, 106 (Tenn. 1999). If the underlying felony and killing were part of a continuous transaction
with no break in the chain of events and the felon had not reached a place of temporary safety
between the events, felony murder is sufficiently established. State v. Pierce, 23 S.W.3d 289, 294-97
(Tenn. 2000). Proof of the intention to commit the underlying felony and at what point it existed is
a question of fact to be decided by the jury after consideration of all the facts and circumstances.
Buggs, 995 S.W.2d at 107. A conviction for second degree murder requires proof that the defendant
unlawfully and knowingly killed another. Tenn. Code Ann. §§ 39-13-201, -210(a). A person acts
knowingly with respect to a result of the person’s conduct when the person is aware that the conduct
is reasonably certain to cause the result. Tenn. Code Ann. § 39-11-302(b).
Having carefully reviewed the record, we conclude that the evidence is sufficient to support
the jury’s verdict in this case. Viewed in the light most favorable to the State, the proof at trial
establishes that the victim was killed during a robbery/burglary. Mr. Butler testified that the group
discussed robbing someone, then went across the street and asked the victim for money. At that
time, the victim gave Mr. Butler some money and the appellant pulled out a handgun and began
-11-
firing shots at the victim. Mr. Butler later saw the appellant burying the gun in his backyard. Mr.
Butler retrieved the gun, and it was later turned over to police. Ballistics tests indicated that the
bullets recovered from the crime scene and from the victim were fired from the gun that was buried
in the appellant’s backyard. Further, there was testimony from Mr. Broady that he and the appellant
went back to the victim’s home after the murder and took items including ammunition and an air
compressor. There was testimony from the blood spatter expert that several items inside the home
were moved after the victim died. Further, Ms. Rome saw several young men removing items from
the victim’s home, and the items were later discovered in the attic crawl space of the appellant’s
house. The jury is responsible for determining the credibility of the witnesses. Obviously, the jury
believed the testimony of Mr. Butler, Mr. Broady and Ms. Rome. There was sufficient evidence for
the jury to convict the appellant. This issue is without merit.
Conclusion
For the foregoing reasons, the matter is remanded to the trial court for entry of corrected
judgment forms as stated in this opinion. In all other respects, the judgment of the trial court is
affirmed.
___________________________________
JERRY L. SMITH, JUDGE
-12- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1232491/ | 275 Wis. 2d 278 (2004)
2004 WI App 125
683 N.W.2d 93
STATE v. BAUMANN
No. 03-3114-CR.
Court of Appeals of Wisconsin.
May 19, 2004.
Unpublished opinion. Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2102309/ | 187 S.W.3d 416 (2005)
Ex parte Jimmy JACKSON.
No. WR-62597-01.
Court of Criminal Appeals of Texas.
September 14, 2005.
Gary M. Polland, Houston, for Appellant.
Roe Wilson, Asst. District Atty., Houston, Matthew Paul, State's Atty., Austin, TX, for State.
ORDER
PER CURIAM.
This is an application for writ of habeas corpus filed pursuant to the provisions of Article 11.071, Tex.Code Crim. Proc.
On January 21, 1986, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071(b), and the trial court, accordingly, set punishment at death.[1] This Court affirmed applicant's conviction and sentence on direct appeal. Jackson v. State, 822 S.W.2d 18 (Tex.Crim. App.1990). On June 22, 2005, the Governor of the State of Texas commuted Applicant's death sentence to life imprisonment because Applicant was seventeen years old at the time he committed the offense of capital murder.
Applicant presents six allegations in his application in which he challenges the validity of his conviction and resulting sentence. The trial court did not hold an evidentiary hearing. The trial court adopted the State's proposed findings of fact and conclusions of law recommending that the application be dismissed for lack of jurisdiction. We disagree. This Court was vested with appellate jurisdiction at the time applicant was convicted of capital murder and sentenced to death. Art. 37.071(h); Art. 11.071, § 1. Chapter 48 does not alter our appellate jurisdiction when the Governor grants commutation of punishment.
This Court has reviewed the record with respect to the allegations made by applicant. Based upon our own review, we deny relief on applicant's allegations pertaining to the guilt or innocence phase of his trial. We dismiss as moot applicant's *417 allegations pertaining to the punishment phase of his trial.
MEYERS, J., not participating.
NOTES
[1] Unless otherwise indicated, all references to Articles and Chapters refer to the Texas Code of Criminal Procedure. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2102402/ | 723 A.2d 1219 (1999)
In re Thomas J. MATTINGLY, Respondent.
A Member of the Bar of the District of Columbia Court of Appeals.
No. 98-BG-646.
District of Columbia Court of Appeals.
Submitted December 10, 1998.
Decided March 4, 1999.
Before FARRELL and RUIZ, Associate Judges, and MACK, Senior Judge.
PER CURIAM:
The Board on Professional Responsibility has recommended that respondent be suspended from the practice of law for thirty days, with reinstatement conditioned on his cooperation with the disciplinary system. The recommendation stems from the Board's determination that respondent violated Rule 8.4(d) of the Rules of Professional Conduct by failing to respond to Bar Counsel's inquiries regarding a 1995 complaint brought against respondent by a client,[*] and also failed to reply to an order of the Board on Professional Responsibility requiring him to respond to the 1995 client complaint. See D.C. Bar R. XI, § 2(b)(3).
Respondent has filed no objection to the recommendation, and Bar Counsel concurs with it. We accept the Board's recommendation. See In re Goldsborough, 654 A.2d 1285, 1288 (D.C.1995). Accordingly, respondent is hereby suspended from the practice of law in the District of Columbia for a period of thirty days, with reinstatement conditioned upon his submission to Bar Counsel of a complete written response to the 1995 client complaint.
So ordered.
NOTES
[*] As the Board's recitation of the facts makes clear, respondent failed to answer Bar Counsel's written inquiries not just once but repeatedly. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2154313/ | 963 A.2d 472 (2009)
SANDERS
v.
PENNSYLVANIA BD. OF PROBATION AND PAROLE.
No. 605 MAL (2008).
Supreme Court of Pennsylvania.
January 7, 2009.
Disposition of petition for allowance of appeal. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/560748/ | 932 F.2d 960
Kennedy (Terrill)v.MBS Textbook Exchange
NO. 90-1842
United States Court of Appeals,Third Circuit.
APR 11, 1991
Appeal From: E.D.Pa.,
Giles, J.
1
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2154319/ | 963 A.2d 567 (2008)
COM.
v.
HINTON.
No. 1815 EDA 2007.
Superior Court of Pennsylvania.
September 15, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4520560/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01297-CV
ERICA WHITLOCK, JERRAMY JAY BOYLES, AND WALTER GALE
“TREY” BOYLES, Appellants
V.
CSI RISK MANAGEMENT, LLC, Appellee
On Appeal from the 116th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-16-05743
ORDER
Before the Court is appellants’ March 23, 2020 second request for additional
time to file appellants’ opening brief. We GRANT the motion and ORDER
appellants’ opening brief to be filed on or before May 6, 2020.
/s/ BILL WHITEHILL
JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/3040618/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-2763
___________
In re: Mark Henry Foss, *
*
Debtor. *
------------------- *
*
Mark Henry Foss, *
* Appeal from the United States
Appellant, * Bankruptcy Appellate Panel
* for the Eighth Circuit.
v. *
* [UNPUBLISHED]
Hall County Child Support Office, *
*
Appellee. *
___________
Submitted: June 23, 2006
Filed: June 26, 2006
___________
Before MELLOY, FAGG, and BENTON, Circuit Judges.
___________
PER CURIAM.
Mark Foss appeals from the Bankruptcy Appellate Panel’s (BAP) decision
affirming the bankruptcy court’s1 dismissal of his adversary proceeding with
prejudice. We agree with the BAP that the bankruptcy court abstained from hearing
1
The Honorable Timothy J. Mahoney, Chief Judge, United States Bankruptcy
Court for the District of Nebraska.
the issues raised by Foss in his pending state court proceedings. See 28 U.S.C.
§ 1334(b)-(c)(1) (generally, federal courts have original but not exclusive jurisdiction
of all civil proceedings arising under title 11, or arising in or related to cases under
title 11, but may abstain from hearing such proceeding in interest of comity with state
courts or respect for state law). Accordingly, we do not have jurisdiction to review
the bankruptcy court’s decision to abstain. See 28 U.S.C. § 1334(d) (decision to
abstain under § 1334(c)(1) is not reviewable by courts of appeals). We therefore
dismiss this appeal.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2625608/ | 209 P.3d 764 (2009)
ALDRICH
v.
STATE.
No. 100013.
Court of Appeals of Kansas.
June 26, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3040653/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3399
___________
Gas Aggregation Services, Inc., *
*
Plaintiff - Appellant, *
*
v. *
*
Howard Avista Energy, LLC; Howard *
Energy Marketing, Inc.; *
*
Defendants - Appellees, * Appeal from the United States
* District Court for the District of
Thomas A. Foster; * Minnesota.
*
Movant Below, *
* [UNPUBLISHED]
Howard Avista Energy, LLC; *
*
Third Party Plaintiff. *
*
_______________________ *
*
Manjit Bajwa, *
*
Third Party Defendant. *
___________
Submitted: June 12, 2006
Filed: June 21, 2006
___________
Before BYE, LAY, and RILEY, Circuit Judges.
___________
PER CURIAM.
Gas Aggregation Services, Inc., appeals the district court's1 order granting
Howard Avista Energy, LLC, and Howard Energy Marketing, LLC's motion to alter
or amend the district court's earlier judgment awarding pre-judgment interest on an
award for loss of business damages. The district court has provided a comprehensive
and well-reasoned opinion addressing the issues raised by the parties, and we have
nothing to add to the analysis. Accordingly, we affirm the judgment of the district
court for the reasons stated in its memorandum opinion. See 8th Cir. R. 47B.
______________________________
1
The Honorable Davis S. Doty, United States District Judge for the District of
Minnesota.
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2505956/ | 714 S.E.2d 529 (2011)
STATE
v.
WOODARD.
No. COA10-1078.
Court of Appeals of North Carolina.
Filed August 2, 2011.
Case Reported Without Published Opinion No Error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/413881/ | 698 F.2d 1231
Mannv.Gold
82-5110
UNITED STATES COURT OF APPEALS Ninth Circuit
11/10/82
1
C.D.Cal.
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1055348/ | IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
September 27, 2005 Session
STATE OF TENNESSEE v. CURTIS EMMANUEL LANE
Appeal from the Criminal Court for Knox County
No. 73422 Ray L. Jenkins, Judge
No. E2004-02340-CCA-R3-CD - Filed November 2, 2005
The appellant, Curtis Emmanuel Lane, pled guilty to simple possession of marijuana and was
sentenced to eleven months and twenty-nine days, suspended upon payment of court costs and fines.
Pursuant to Rule 37 (b)(2)(i) of the Tennessee Rules of Criminal Procedure, the appellant attempted
to reserve a certified question of law to this Court on the issue of whether the evidence should have
been suppressed as the result of an illegal arrest. After a thorough review of the record, we conclude
that the appellant failed to properly reserve a certified question of law. Therefore, the appellant’s
issue is not properly before this Court, and this appeal is dismissed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Appeal Dismissed
JERRY L. SMITH , J., delivered the opinion of the court, in which NORMA MCGEE OGLE, and ALAN
E. GLENN , JJ., joined.
Mark E. Stephens, District Public Defender and Robert C. Edwards, Assistant Public Defender, for
the appellant, Curtis Emmanuel Lane.
Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
and Randall E. Nichols, District Attorney General; and Zane Scarlett, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
The appellant was indicted by a Knox County Grand Jury in September of 2001 for simple
possession of marijuana. Subsequently, the appellant filed a motion to suppress the evidence
obtained during a search incident to his arrest as well as a motion to dismiss the charge.
At the hearing on the motion to suppress, Officer Kelly Tanner of the Knoxville Police
Department testified that on July 11, 2000, at about 5:30 p.m., he stopped the appellant’s car on Dora
Street in Knoxville because he noticed that “the vehicle that [the appellant] was driving was bearing
an expired license plate.” After stopping the appellant, Officer Tanner requested the appellant’s
identification. The appellant failed to produce any identification and did not have a driver’s license
or any other form of identification showing his name.
At that time, the appellant told Officer Tanner his name, date of birth, and a social security
number. Officer Tanner was unable to verify the information because “[a]t the time, the mobile data
terminal in the car was out of service - or - let me back up and say that the NCIC capability was out
of service on the mobile data terminal.” The officer explained that he tried to check the veracity of
the information through the “records channel” and was advised that NCIC had been “pulled down”
for some reason. Officer Tanner then decided to arrest the appellant rather than give him a citation
because there was no way to verify the information. Upon the appellant’s arrest, Officer Tanner
found marijuana in the appellant’s possession. On cross-examination, Officer Tanner admitted that
the information that the appellant gave him turned out to be true once he was able to verify it.
The trial court determined that the police officer properly arrested the appellant under the
circumstances and denied both the motion to suppress and the motion to dismiss, making the
following findings:
The Court is of the opinion that the case of Tennessee v. Walker, 12 S.W.3d 460, is
controlling. The proof from the arresting officer indicated that the license plate was
expired, the defendant had no identification, no driver’s license, information given
by the defendant could not be verified through no fault of either party, the NCIC was
out of commission. Therefore, the defendant was arrested properly. . ..
The appellant pled guilty to simple possession of marijuana on September 6, 2004. In
exchange for his guilty plea, the appellant received an eleven month, twenty-nine day sentence,
which was to be suspended upon payment of court costs and fines. The transcript of the guilty plea
hearing indicates that the appellant, State and trial court “agreed . . . [to] take a certified question of
law regarding the arrest on this matter to the Court of Criminal Appeals.” Defense counsel informed
the court that he had the “paperwork ready” for the certified question, but the parties agreed to
reserve judgment until everything was completed. On September 10, 2004, defense counsel
submitted an “addendum to the judgment for the certified question” and informed the trial court that
“everything is in a posture to be appealed on the certified question.” The “addendum to judgment”
and the judgment form were entered on the same day, September 10, 2004. The judgment form does
not reference the “addendum to judgment,” or the certified question of law. The “addendum to
judgment” contains the following language:
This addendum has been prepared for counsel by the defendant and submitted to the
court for approval in order to comply with Tennessee Rule of Criminal Procedure
Rule 37 concerning the submission of a certified question of law to the Tennessee
Court of Criminal Appeals. It is intended to be part and parcel of the judgment of
conviction of the case styled above to which specific references hereby made and said
-2-
judgment makes specific reference hereto so that each document references the other.
The Court therefore makes the following findings:
A. The defendant has entered into a plea agreement under Rule 11(e) but has
explicitly reserved with the consent of the State and the Court the right to appeal a
certified question of law to the Court of [sic] Tennessee Court of Criminal Appeals
that is dispositive of the case.
B. That the judgment in this case must contain a statement of the certified question
of law reserved by the defendant for appellate review. The question of law in this
case is as follows:
“Did the defendant provide satisfactory evidence of identity
when stopped by police when driving his automobile so as to entitle
him to be cited and released for the offense of driving without a
license in his possession; or was the officer entitled to arrest him as,
[sic] allowed by Tennessee Code Annotated § 40-7-118, for failure
to provide satisfactory evidence of identity.”
C. The certified question expressed in the foregoing paragraph has been expressly
reserved for appeal with the consent of the State and the trial judge.
D. The defendant, the State, and the trial judge are all of the opinion that the certified
question in the foregoing is dispositive under the facts of this case. . . .
The appellant filed a timely notice of appeal, presenting the certified question for our review.
Analysis
The appellant presents an ostensible certified question of law on appeal in which he argues
that his arrest was illegal. The State argues that the appellant has failed to properly reserve his
certified question of law for appeal, that this Court lacks jurisdiction to consider the appeal and that
the appeal should be dismissed.
In pertinent part, Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure provides:
An appeal lies from any order or judgment in a criminal proceeding where the law
provides for such appeal, and from any judgment of conviction . . . upon a plea of
guilty or nolo contendere if . . . the defendant entered into a plea agreement under
Rule 11(e) but explicitly reserved with the consent of the State and of the court the
right to appeal a certified question of law that is dispositive of the case, and the
-3-
following requirements are met: (A) the judgment of conviction, or other document
to which such judgment refers that is filed before the notice of appeal, must contain
a statement of the certified question of law reserved by defendant for appellate
review; (B) the question of law must be stated in the judgment or document so as to
identify clearly the scope and limits of the legal issue reserved; (C) the judgment or
document must reflect that the certified question was expressly reserved with the
consent of the state and the trial judge; and (D) the judgment or document must
reflect that the defendant, the state, and the trial judge are of the opinion that the
certified question is dispositive of the case; . . . .
In State v. Preston, 759 S.W.2d 647 (Tenn.1988), our Supreme Court made explicit to the
bench and bar exactly what the appellate courts require as prerequisites to the consideration of the
merits of a certified question of law. These requirements are as follows:
Regardless of what has appeared in prior petitions, orders, colloquy in open court or
otherwise, the final order or judgment from which the time begins to run to pursue
a T.R.A.P. 3 appeal must contain a statement of the dispositive certified question of
law reserved by defendant for appellate review and the question of law must be stated
so as to clearly identify the scope and the limits of the legal issue reserved. For
example, where questions of law involve the validity of searches and the
admissibility of statements and confessions, etc., the reasons relied upon by
defendant in the trial court at the suppression hearing must be identified in the
statement of the certified question of law and review by the appellate courts will be
limited to those passed upon by the trial judge and stated in the certified question,
absent a constitutional requirement otherwise. Without an explicit statement of the
certified question, neither the defendant, the State nor the trial judge can make a
meaningful determination of whether the issue sought to be reviewed is dispositive
of the case. . . . Also, the order must state that the certified question was expressly
reserved as part of a plea agreement, that the State and the trial judge consented to
the reservation and that the State and the trial judge are of the opinion that the
question is dispositive of the case . . . . No issue beyond the scope of the certified
question will be considered.
Id. at 650; see also State v. Caldwell, 924 S.W.2d 117, 118 (Tenn. Crim. App. 1995). Failure to
properly reserve a certified question of law pursuant to Preston will result in the dismissal of the
appeal. State v. Pendergrass, 937 S.W.2d 834, 838 (Tenn. 1996). As the appellate courts have
written time and again, the requirements of Preston are extremely clear. See Pendergrass, 937
S.W.2d at 837. This Court has consistently held that the Preston requirements are jurisdictional.
See State v. Alaric Barrett Crouch, No. 01C01-9906-CC-00216, 2000 WL 31859, at *2 (Tenn. Crim.
App., at Nashville, Jan. 18, 2000), perm. app. denied (Tenn. 2000) ; State v. Stuart Allen Jenkins,
No. 01C01-9712-CR-00590, 1998 WL 917806, at *2 (Tenn. Crim. App., at Nashville, Dec. 21,
1998); State v. Charlotte Little, No. 03C01-9504-CR-00113, 1996 WL 33174, at *3 (Tenn. Crim.
App. at Knoxville, Jan. 30, 1996); State v. Charles R. Sanders, No. 01C01-9312-CC-00420, 1994
-4-
WL 398823, at *1 (Tenn. Crim. App., at Nashville, July 21, 1994), perm. app. denied (Tenn. 1994).
In many of these cases the State, defendant and trial court have all agreed, as evidenced by the guilty
plea transcript, that the question is properly certified, only to have the State correctly argue on appeal
that the certification was not in compliance with Preston, requiring dismissal of the appeal because
this Court cannot assume jurisdiction of a matter upon the agreement of the parties. State v. Wilkes,
684 S.W.2d 663, 667 (Tenn. Crim. App. 1984).
In State v. Irwin, 962 S.W.2d 477, 479 (Tenn. 1998), our Supreme Court relaxed the Preston
requirements somewhat by allowing a certified question to be set out in an independent document,
and such document to be incorporated by reference into the judgment. However, the “addendum to
judgment,” which would arguably satisfy the Preston requirements herein, is not incorporated by
reference into the final judgment entered on September 10.
In the case herein, the judgment makes no mention of the reservation of a certified question
of law. The judgment does not reference or incorporate the “addendum of judgment” filed by
defense counsel in which the certified question of law is enumerated. Accordingly, after carefully
reviewing the record in this case, we determine that the appellant has failed to properly reserve the
right to appeal a certified question of law in accordance with the requirements of Tennessee Rule
of Criminal Procedure 37. Finding the failure to properly certify the question of law a jurisdictional
defect, we must dismiss the appeal.1
Conclusion
For the foregoing reasons, this appeal is dismissed.
___________________________________
JERRY L. SMITH, JUDGE
1
W e are not unsympathetic to the appellant’s inevitable frustration with this Court’s dismissal of his appeal
despite his efforts at compliance with the Preston requirements. However, the holding in Preston and more recently
Tenn. R. Crim. P. 37(b)(2)(i) created a bright-line rule from which this Court may not depart. Because the final judgment
does not contain a statement of the certified question of law, nor does the judgment refer to an independent document
which would satisfy the requirements of Preston, we are left with no choice but to dismiss this appeal.
-5- | 01-03-2023 | 10-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4520561/ | Order entered March 26, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00330-CV
EDGAR TUNCHEZ, Appellant
V.
BRADLY HOUK, Appellee
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-19-02501-A
ORDER
Before this Court is the March 25, 2020 letter from counsel for appellant that
we construe as a motion for extension of time to file the clerk’s record. We
GRANT the motion. The clerk’s record shall be filed by April 8, 2020.
We DIRECT the Clerk of this Court to send a copy of this order to Dallas
County Clerk John Warren and all parties.
/s/ ERIN A. NOWELL
JUSTICE | 01-03-2023 | 03-30-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2513956/ | 71 P.3d 708 (2003)
2003 WY 79
Ernest SALAS, Appellant (Respondent),
v.
GENERAL CHEMICAL, Appellee (Petitioner).
No. 02-111.
Supreme Court of Wyoming.
June 26, 2003.
*709 Michael D. Newman of Hampton & Newman, LC, Rock Springs, Wyoming, Representing Appellant.
Jason M. Tangeman of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming, Representing Appellee.
Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
VOIGT, Justice.
[¶ 1] In May 1999, General Chemical employed appellant, Ernest Salas (Salas), as a shuttle car operator in its trona mine. On May 3rd, Salas was injured when a slab fell from the side of the mine, "rolled" him to the ground, and pinned him there. Following a contested case hearing, the hearing examiner found that the accident materially aggravated the pre-existing degenerative condition in Salas' right knee. The district court reversed the hearing examiner's determination, and Salas appeals the district court's decision to this Court. We reverse.
ISSUES
[¶ 2] Salas phrases the issue on appeal as follows:
Was the Hearing Examiner's decision awarding benefits supported by substantial evidence?
General Chemical phrases the issue in substantially the same manner.
FACTS
[¶ 3] In 1997, Salas underwent a right knee arthroscopy that revealed
a torn meniscus which had been present on the medial side for some time and that torn meniscus was removed. The actual joint itself looked pretty good.
...
... The right knee will be sore for a considerable time from the removal of the medial meniscus but eventually should be a reasonably good knee.
In May 1998, Salas reportedly experienced right knee pain for a two-week period, and a doctor aspirated fluid from the knee. During a November 1998 physical, another doctor noted the "persistence of right knee pain along the medial aspect," and "[p]robable degenerative arthritis of the knees." In a follow-up visit one month later, the same doctor noted that Salas' "knees feel much better with [medication.]"
[¶ 4] On May 3, 1999, General Chemical employed Salas as a shuttle car operator in its trona mine near Green River. That day, *710 a four- to five-hundred pound slab fell from the side of the mine, "rolled" Salas to the ground, and pinned him there. The hearing examiner found that Salas was "pinned to the ground, by the slab, in a crouching position, with his left leg stretched out behind him, his weight being applied to his right knee."[1] Salas stated that when he was pinned beneath the slab, his right knee ultimately folded underneath him. He demonstrated the position of his body for the hearing examiner, and it appeared from the demonstration that Salas' right knee was "bent at an angle and his body kind of twisted to the right side."
[¶ 5] Salas reportedly suffered abrasions to his left shoulder, left elbow, and right knee. After a break, Salas returned to work and did not immediately suffer pain in his right knee, but noted that his "adrenaline was pumping pretty good." Salas testified that he experienced "a clicking" in his right knee in June 1999. Within a "month or two" after the accident, Salas stated that he also experienced a "new," "constant pain" on the inside of his right knee to a degree that when walking, "something would be aggravating [his] knee to where it was painful to walk anymore." Salas claimed that while he previously had experienced soreness in the knee, he had never experienced this kind of "constant" pain whenever his knee would "open or close," and felt that the May 3rd accident "had aggravated it." A co-worker noticed that between May and November 1999, Salas "was having a hard time walking and his gait had changed quite a bit."
[¶ 6] In October 1999, Salas consulted Dr. Thomas Bienz, an orthopedic surgeon, who noted that Salas had reportedly experienced "repeat knee pain, increased swelling and some popping on the medial side" since the May 1999 accident, and the pain was "progressively getting worse." According to Dr. Bienz, x-rays revealed "significant degeneration in the medial compartment" and "extensive medial osteophytes and very little joint space remaining." The doctor concluded that Salas suffered from "[a]cute on chronic right knee pain with extensive medial compartment degeneration...." He initially recommended treatment in the form of physical therapy and medication. By November 1999, Salas had experienced some "good relief of pain," but continued to "report medial sided joint line pain as well as occasional snapping and popping inside his joint," which the doctor confirmed with further examination. The doctor recommended that physical therapy in combination with medication continue, but noted that in "the event that at six weeks he continues to have discomfort, consideration will be given to arthroscopy and debridement."
[¶ 7] Dr. Bienz performed a right knee arthroscopy in March 2000. During the arthroscopy, he discovered a degenerative loss of "articular cartilage" in the knee's medial compartment, and, although it was difficult to assess, what appeared to be a "degenerative-type tear" in the medial meniscus. Salas returned to work in April or May 2000, and his knee "didn't have the pain that it did before and it was back to just the soreness."
[¶ 8] The Division of Workers' Safety and Compensation (Division) issued an amended final determination in February 2000, awarding Salas benefits "for acute treatment only." Both Salas and General Chemical objected to the determination, and a contested case hearing was held in October 2000. The hearing examiner received medical deposition testimony from Dr. Bienz and Dr. Rheim Jones, also an orthopedic surgeon. Dr. Bienz diagnosed Salas with "acute on chronic" right knee pain and stated that the May 1999 accident aggravated or exacerbated the preexisting degenerative condition in Salas' right knee. Dr. Jones, who performed a "record review" for the Division, ultimately concluded that
[b]ased on the available information, to a reasonable degree of medical certainty, there is not a causal relationship between [Salas'] current complaints and the reported injury of 05/03/99.
The record clearly demonstrates Mr. Salas had degenerative changes of the medial compartment of the right knee before the injury of 05/03/99....
*711 The accident of 05/03/99 is not consistent with a significant injury to the right knee....
Mr. Salas's right knee problems are more probable than not related to his initial medial meniscus injury and subsequent degenerative changes caused by the torn fragment and added medial compartment load created by the absence of the medial meniscus.
Relying primarily on the testimony of Dr. Bienz and Salas, the hearing examiner found that the May 1999 accident materially aggravated the pre-existing degenerative condition in Salas' right knee and awarded Salas worker's compensation benefits.
[¶ 9] General Chemical petitioned the district court to review this determination, and the district court reversed the hearing examiner. In a detailed decision letter, the district court concluded that the "evidence leans against Salas," the "greater weight of the evidence leans toward disallowing benefits for Salas' preexisting injury," and the medical testimony did not provide a sufficient "link between the work-related accident and the subsequent injury." Salas appeals from that decision.
STANDARD OF REVIEW
A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. In Re Worker's Comp. Claim of Johnson, 2001 WY 48, ¶ 7, 23 P.3d 32, ¶ 7 (Wyo.2001). We recently held that the substantial evidence test is the appropriate standard of review in appeals from Wyoming Administrative Procedures Act contested case proceedings when factual findings are involved and both parties submit evidence. Newman v. Wyoming Workers' Safety and Comp. Div., 2002 WY 91, ¶ 22, 49 P.3d 163, ¶ 22 (Wyo.2002).... Because both parties presented cases-in-chief, we apply the substantial evidence standard. We afford respect and deference to a hearing examiner's findings of fact if they are supported by substantial evidence. Haagensen v. State ex rel. Workers' Comp. Div., 949 P.2d 865, 867 (Wyo.1997). Our task is to examine the entire record to determine whether substantial evidence supported the hearing examiner's findings. State ex rel. Wyo. Workers' Comp. Div. v. Waggener, 946 P.2d 808, 814 (Wyo.1997). We will not substitute our judgment for that of the hearing examiner when substantial evidence supports his decision. Id. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. Id. A hearing examiner's conclusions of law are afforded no special deference and will be affirmed only if truly in accord with law. State ex rel. Wyo. Workers' Comp. Div. v. Barker, 978 P.2d 1156, 1159 (Wyo.1999).
Hermosillo v. State ex rel. Wyoming Workers' Safety and Compensation Div., 2002 WY 175, ¶ 6, 58 P.3d 924, 926 (Wyo.2002).
[¶ 10] An "injury" does not include a "condition preexisting at the time of employment with the employer against whom a claim is made[.]" Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) (Michie 1997). The
burden is upon the claimant to prove that his work accident, not his preexisting condition, caused the necessity for the surgery. Matter of Corman, 909 P.2d 966, 970 (Wyo.1996); Matter of Claim of Fortier, 910 P.2d 1356, 1358 (Wyo.1996). While aggravation of a preexisting condition is a compensable injury, Matter of Injury to Carpenter, 736 P.2d 311, 312 (Wyo.1987), claimant must prove that his employment aggravated, accelerated, or combined with the disease or infirmity to produce the disability for which compensation is sought. Romero v. Davy McKee Corp., 854 P.2d 59, 61 (Wyo.1993); Lindbloom v. Teton Int'l, 684 P.2d 1388, 1390 (Wyo. 1984).
State ex rel. Wyoming Workers' Compensation Div. v. Roggenbuck, 938 P.2d 851, 853 (Wyo.1997). "To prove aggravation of a preexisting injury, the claimant must demonstrate that the `work effort contributed to a material degree to the ... aggravation ... of the existing condition of the employee.'" Frazier v. State ex rel. Wyoming Workers' Safety and Compensation Div., 997 P.2d 487, *712 490 (Wyo.2000) (quoting Lindbloom v. Teton Intern., 684 P.2d 1388, 1389-90 (Wyo.1984)) (emphasis omitted).
"[T]he causal connection between an accident or condition at the workplace is satisfied if the medical expert testifies that it is more probable than not that the work contributed in a material fashion to the ... aggravation ... of the injury. We do not invoke a standard of reasonable medical certainty with respect to such causal connection. Testimony by the medical expert to the effect that the injury `most likely,' `contributed to,' or `probably' is the product of the workplace suffices under our established standard....
[U]nder either the `reasonable medical probability' or `more probable than not' standard, [a claimant succeeds] in demonstrating the causal connection by a preponderance of the evidence."
Hall v. State ex rel. Wyoming Workers' Compensation Div., 2001 WY 136, ¶ 16, 37 P.3d 373, 378 (Wyo.2001) (quoting In re Pino, 996 P.2d 679, 685 (Wyo.2000)).
[¶ 11] Whether the employment "`aggravated, accelerated, or combined with the internal weakness or disease to produce the disability is a question of fact.'" Brees v. Gulley Enterprises, Inc., 6 P.3d 128, 131 (Wyo.2000) (quoting Lindbloom, 684 P.2d at 1390).
DISCUSSION
[¶ 12] The hearing examiner found that Salas "had pre-existing conditions" and "significant degenerative changes" in his right knee prior to the May 3, 1999, accident. This finding is essentially undisputed based on the information contained in Salas' medical records and the testimony of Drs. Bienz and Jones.
[¶ 13] At issue is the hearing examiner's finding that
[Salas] did suffer a material aggravation of the ... pre-existing condition in his right knee as a result of [his] May 3, 1999 work related accident that required treatment, arthroscopic surgery and a period of time for temporary total disability after said surgery.
In particular, the parties dispute whether the hearing examiner could reasonably rely on Dr. Bienz's testimony to support this finding. Salas notes that the hearing examiner found that he and Dr. Bienz were credible witnesses, and argues that their testimony comprises substantial evidence to support the hearing examiner's finding. According to Salas, the district court essentially reweighed the evidence in reaching a contrary conclusion. General Chemical contends that Dr. Bienz's testimony did not establish that the May 1999 accident materially aggravated the pre-existing degenerative condition in Salas' right knee, but does not otherwise challenge the hearing examiner's findings as to witness credibility.
[¶ 14] Dr. Bienz testified, in pertinent part, as follows:
Q. [General Chemical counsel] And do you recall when the first time it was you saw Mr. Salas?
A. With the benefit of the record, I do. That would be on October 25, 1999.
Q. And Mr. Salas, when you first saw him, was complaining of what you describe as acute on chronic right knee pain; is that correct?
A. That is correct.
Q. What do you mean by acute on chronic right knee pain?
A. It means he is suffering from a preexisting condition with an acute exacerbation. In other words, he is having pain in an extremity that he has had before, but worse than previously.
* * *
Q. And what did your physical examination of Mr. Salas find?
A. He had full range of motion of the knee. He did have medial out of joint line pain and provacative tests on examination of the knee also suggested medial-sided joint line pain.
Q. Do you have an opinion as to what was causing that pain for him?
A. Now or at that time or
Q. Well, how aboutyeah, now.
A. Okay. Yes. I believe it was secondary to degenerative changes in the medial *713 compartment, along withactually, primarily due to degenerative changes in the medial compartment. At the time I thought that maybe it had to do with a medial meniscus tear as well, and apparently after the procedure it appears it was most likely due to both.
[Salas counsel]: Doctor, what did you say? Most likely due to both?
A. Due to both, yes. The medial meniscus tear as well as the degenerative change.
Q. [General Chemical counsel] What do you mean when you say most likely due to both?
A. In other words, the pain that he was experiencing was most likely attributable to both, that the degenerative change in the medial compartmentthat is, loss of articular cartilage and bone-on-bone contact, as well as a degenerative tear in the meniscus.
* * *
Q. And in the preoperative diagnosis, you described left knee degenerative joint disease with possible medial meniscus acute injury?
A. Uh-huh.
Q. What are you referring to in regard to the acute injury?
A.... And what I'm referring to by acute injury is an injury that is a recent injury as opposed to something which is chronic that is an old injury.
Q. And you use the word possible, why do you use the word possible?
A. Preoperative diagnosis suggests the plan or supposition on the initial evaluation, that is, findings that are thought to be present before seeing them on the arthroscopic evaluation.
* * *
Q. Okay. And postoperatively, was it still your opinion that there was a possible medial meniscus acute injury in that right knee?
A. It appeared that there was primarily degenerative medial meniscus tear with significant cartilage degeneration.
* * *
Q. [Salas counsel] Sure. Sure. You have initial diagnosis of acute on chronic injury?
A. Yes.
Q. Do you still carry that opinion today?
A. I do.
Q. Okay. So is it fair to say, to a reasonable degree of medical probability, you feel that the work-related incident that Mr. Salas described caused an aggravation of his preexisting condition?
A. Yes.
* * *
Q. Doctor, you indicated that you found degenerative condition in the knee upon arthroscopy, as well as awhat you defined as degenerative tear
A. Yes.
Q. of the meniscus?
A. Yes.
Q. Do you have an opinionor could you tell from the arthroscopy whether that meniscus tear was caused by this incident?
A. No, that's harder to assess. The medial meniscus was quite minimal in its quantity and degenerative in its quality. That is consistent with the previous history that Dr. Herrington reported that he performed meniscectomy. I do not agree with the IME suggesting meniscectomy, because there was some remnant of the meniscus there. It is very hard to assess, however, whether the tear was acute or chronic, but I will say that it had more of a character of degenerative-type tear, that is it was fibrillated with fraying, there was no specific split that went into the meniscus and traveled along its circumference, so it did look more degenerative than acute.
* * *
Q.... Do you have an opinion that there was degenerative changes in this remnant of a meniscus in Mr. Salas's knee prior to the May 3, 1999 work-related accident?
[objection omitted]
A. Based upon the degree of the articular cartilage loss, I would say there was most[ ] likely degenerative changes in the medial compartment for quite some time, including the meniscus.
*714 Q.... Okay. Doctor, you're unable, diagnostically or objectively, to determine whether this work-related accident of 5/3 of 1999 caused or accelerated the tear of the meniscus?
[objection omitted]
* * *
A. As far as objectively or diagnostically includes a very large breadth of possibilities, so I would say that, yes, I can make some statement to that effect. Objectively, based upon findings in the arthroscopy, it appears he had degenerative changes that probably predated the injury and yet the examination I performed on him with his conclusion that previously he had very minimal pain and subsequently he had rather significant pain that is also included in the objectin the diagnostic findings, and I would suggest he did have an exacerbation of the injury.
Q. So you're basically saying, based upon the history of increased pain in the area of the meniscus, led you to your opinion that there was an aggravation of a preexisting condition caused by the May 3, 1999 work-related accident?
A. That's correct. Exacerbation of his condition, not necessarily of a specific meniscus injury, though.
* * *
Q. Doctor, do you feel that the workrelated incident to Mr. Salas described was consistent with the injury [you] diagnosed and treated?
[objection omitted]
A. I agree that the injury, which he described to me that occurred ... can cause the types of symptoms that he was complaining of.
* * *
A.... I do not believe that it would cause degeneration of the knee, and that's why I diagnosed it as an acute on chronic injury.
* * *
A.... You're saying would I be able to attribute the need for arthroplasty to his injuryto the injury of May?
Q. Of that May 1999 injury.
A. Only from the point of view that he had no complaints before and he complainsor he had no specific acute complaints before, but he had greater complaints then, but as far as degeneration, most of the degeneration was probably present before that injury.
Q. Okay. Do you think that this acute injury that's been described has accelerated the degenerative process?
A. That's hard to say, because I only... saw his knee one time. I did not see it before. I can only say it caused him to have more pain.
Q. So it would be difficult, you're saying, to attribute any accelerated degenerative changes as a result of the May 1999 work-related accident?
A. That's true.
Dr. Bienz also disagreed with Dr. Jones' opinion in one significant respect:
Q. [Salas counsel:] Okay. And under the causation section, Dr. Jones indicates that in the first paragraph, based upon the available information, to reasonable degree of medical certainty, there is not a causal, excuse me, relationship between the examinee's current complaints and reported injury of 5/3/99. And I assume from your previous testimony, you disagree with that at the same time?
A. That's correct.
Q. Okay. And the basis for your disagreement is what, Doctor?
A. The fact that the patient reported to me that he had a pain-free injury prior to that injury, and subsequent to the injury had recurrence of preexisting pain.
[¶ 15] We conclude that, after reviewing the entire record pursuant to the requisite standard of review, the record contains substantial evidence that Salas' May 1999 work accident contributed to a material degree in aggravating or combining with the pre-existing degenerative condition in Salas' right knee, and necessitated the March 2000 right knee arthroscopy; therefore, we cannot substitute our judgment for that of the hearing examiner. We also cannot find that it was unreasonable for the hearing examiner to accept Dr. Bienz's expert medical testimony *715 regarding the May 1999 accident's role in "exacerbating" or "aggravating" the pre-existing degenerative condition in Salas' right knee, especially considering that "the hearing examiner is in the best position to judge and evaluate the expert witnesses and their opinions." Frazier, 997 P.2d at 491.
[¶ 16] Salas testified that after a doctor aspirated fluid from his right knee in May 1998, the knee "felt fine" and he "had no other problems" except that when he completed four or five days of work, he experienced periodic "soreness," but not "constant pain." Indeed, the doctor who performed the 1997 arthroscopy of Salas' knee stated that the right knee would be "sore" for a "considerable time" but "eventually should be a reasonably good knee." After a physical in which another doctor noted right knee pain along "the medial aspect," the same doctor noted that as of December 1998, Salas' right knee was feeling "much better with [medication.]"
[¶ 17] The record does not reveal any other incidents or reports of, or medical treatment for, right knee pain between December 1998 and May 3, 1999. On May 3rd, Salas was involved in the above-described accident at work. Within a month or so thereafter, Salas experienced first a "clicking" in his right knee and then a "constant pain" that he had not experienced prior to the accident, to a degree that he "curtailed a lot of [his] other activities." Dr. Bienz testified that the May 1999 injury Salas described to him "can cause the types of symptoms [Salas] was complaining of" shortly after the accident.
[¶ 18] As Salas' "constant pain" became "progressively" worse, Dr. Bienz initially attempted to treat Salas with physical therapy and medication,[2] but noted that if Salas continued to have discomfort at "six weeks ... consideration will be given to arthroscopy and debridement." By November 1999, Salas had experienced some "good relief of pain" with the physical therapy and medication, although he still suffered knee pain, snapping and popping, which Dr. Bienz confirmed with further examination. Dr. Bienz then "recommended" and performed the right knee arthroscopy for "diagnostic and therapeutic purposes to evaluate and possibly treat the knee." The degenerative changes in Salas' right knee likely occurred prior to May 1999, but in addition to recommending the arthroscopy for diagnostic and therapeutic purposes, Dr. Bienz was able to attribute the need for the arthroscopy in part due to the May 1999 accident because of the pain-specific history Salas provided; Salas lacked "specific acute complaints before, but he had greater complaints" following the accident.
[¶ 19] Dr. Bienz diagnosed Salas with "acute on chronic right knee pain," and the doctor maintained that diagnosis as of the date of his deposition testimony. In other words, according to Dr. Bienz, Salas suffered from "a preexisting condition with an acute exacerbation." Dr. Bienz testified consistently, unequivocally, and to "a reasonable degree of medical probability" that while the May 3, 1999, accident did not cause or appear to accelerate the degenerative changes that existed in Salas' right knee at the time of the accident, the accident did cause an "exacerbation" or "aggravation of his preexisting condition." The doctor's opinion was based on his examination of Salas, and Salas having experienced "very minimal pain" prior to the accident and "rather significant pain" subsequent to the accident. Dr. Bienz expressly disagreed with Dr. Jones' opinion for this reason.
[¶ 20] Dr. Bienz's medical opinion was relevant to determining whether the May 1999 accident materially aggravated the preexisting degenerative condition in Salas' right knee, and constituted evidence that a reasonable mind might accept in support of the hearing examiner's finding on that issue. General Chemical does not argue that Dr. Bienz's testimony was speculative, but rather that Dr. Bienz actually narrowed or qualified his general statements regarding the accident's aggravation of Salas' pre-existing condition because he subsequently testified that Salas' medial meniscus tear appeared to be *716 degenerative. However, Dr. Bienz's opinion appears to be that, despite the fact that the degenerative changes in Salas' right knee likely occurred prior to the May 1999 accident, the doctor's examination, and the pain-specific history Salas provided, confirmed his "acute on chronic" pain diagnosis; the May 1999 accident "acutely" aggravated or exacerbated the pre-existing degenerative condition in Salas' right knee.
[¶ 21] In support of its argument, General Chemical also places particular emphasis on our decision in Brees, 6 P.3d at 131. In Brees, 6 P.3d at 130, Dora Brees claimed "to have sustained a back injury" at work. On appeal, Brees did not dispute that she had a pre-existing back condition, but argued that her doctor's testimony established that her work injury materially aggravated the pre-existing condition. Id. at 131. We concluded that
Dr. Metz' testimony does not establish whether Brees materially aggravated her previous condition ... because Dr. Metz was never directly asked whether Brees' surgery resulted from the pre-existing condition or from twisting and pushing the cart. As a consequence, Brees has not presented any evidence on the question of whether the back pain experienced when twisting and pushing the cart ... materially aggravated her pre-existing condition and resulted in a compensable injury.
Id. at 133. Yet, in the instant case, Dr. Bienz not only was able to attribute the need for arthroscopy in part due to the May 1999 accident, but also opined "to a reasonable degree of medical probability" that the accident aggravated or exacerbated Salas' pre-existing degenerative knee condition.
[¶ 22] The circumstances of the instant case are similar to those contained in Roggenbuck, 938 P.2d at 853. In that case, the claimant had
a history of back problems, scars from two previous back surgeries, and a permanent partial disability of 60 percent, [and] alerted his employer of a work-related injury to his back incurred nine days into his new employment.
Id. at 853. Further,
[m]edical evidence included a statement by the doctor treating claimant since January of 1991 that 50 percent of claimant's current condition was due to the instant injury. This percentage included the normal aging process and normal daily living activities. A comparison of an MRI report after the accident to one performed two and a half years earlier indicates a significant deterioration and worsening of claimant's condition.
It is true that claimant and his doctor discussed surgery before the work-related injury, however notes from claimant's doctor indicate that discussion took place over a two and a half year period before the last injury. As pointed out by the hearing examiner in Finding No. 5, it was the "work effort [that] brought the need for surgery to a head and forced the surgery to be done at this time." Further, testimony indicated that the pain levels experienced by claimant increased after the injury; and, when taken as a whole, the evidence supports the hearing examiner's conclusions that the work efforts on behalf of the employer contributed to a material degree to the precipitation, aggravation or acceleration of his preexisting condition to the point that surgery could no longer be avoided.
Id. at 853-54. Accordingly, we affirmed the hearing examiner's findings and his decision awarding the claimant benefits.
[¶ 23] Having found substantial evidence to support the hearing examiner's findings in the instant case, we reverse the district court's decision, and affirm the hearing examiner's decision awarding Salas benefits.
NOTES
[1] General Chemical does not contest this finding.
[2] According to Dr. Bienz, "[p]hysical therapy can be quite beneficial to patients almost regardless of what their diagnosis is" and if "somebody's getting better with nonoperative intervention, usually we stay the course...." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1009306/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 02-1915
GABRIEL A. BONEY,
Plaintiff - Appellant,
versus
RMP NATIONAL/HOLMAN ENTERPRISE, INCORPORATED;
RODGER CLYDE,
Defendants - Appellees,
and
CARDELL THURMAN,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-
02-1334-PJM)
Submitted: December 16, 2002 Decided: December 19, 2002
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gabriel A. Boney, Appellant Pro Se. Gregg Stanton Avitabile,
VERNER, LIIPFERT, BERNHARD, MCPHERSON & HAND, Washington, D.C., for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gabriel A. Boney appeals the district court’s order granting
summary judgment to Defendants. We have reviewed the record and
find no reversible error. Accordingly, we affirm on the reasoning
of the district court. See Boney v. RMP Nat’l/Holman Enter., Inc.,
No. CA-02-1334-PJM (D. Md. Aug. 9, 2002). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1545740/ | DERRYAN CHISHOLM, Defendant Below-Appellant,
v.
STATE OF DELAWARE, Plaintiff Below-Appellee.
No. 459, 2009.
Supreme Court of Delaware.
Submitted: January 13, 2010.
Decided: February 4, 2010.
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices.
ORDER
MYRON T. STEELE, Chief Justice.
This 4th day of February 2010, upon consideration of the appellant's brief filed pursuant to Supreme Court Rule 26(c), his attorney's motion to withdraw, and the State's response thereto, it appears to the Court that:
(1) The defendant-appellant, Derryan Chisholm, was found guilty in a Superior Court bench trial of Possession With Intent to Deliver Marijuana. He was sentenced to 5 years incarceration at Level V, to be suspended after 3 years for 18 months at Level III probation. This is Chisholm's direct appeal.
(2) Chisholm's counsel has filed a brief and a motion to withdraw pursuant to Rule 26(c). The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) the Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for claims that could arguably support the appeal; and (b) the Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.[1]
(3) Chisholm's counsel asserts that, based upon a careful and complete examination of the record and the law, there are no arguably appealable issues. By letter, Chisholm's counsel informed Chisholm of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw, the accompanying brief and the complete trial transcript. Chisholm also was informed of his right to supplement his attorney's presentation. Chisholm responded with a brief that raises four issues for this Court's consideration. The State has responded to the position taken by Chisholm's counsel as well as the issues raised by Chisholm and has moved to affirm the Superior Court's judgment.
(4) Chisholm raises four issues for this Court's consideration. He claims that a) the Superior Court abused its discretion by failing to suppress the evidence against him on the basis of the illegal stop of the vehicle in which he was a passenger; b) the Superior Court abused its discretion by failing to suppress the evidence based upon an illegal search and seizure; c) the evidence presented at trial was insufficient to support his conviction; and d) the Superior Court abused its discretion by failing to dismiss his counsel prior to trial.
(5) The following evidence was presented at trial. On February 21, 2009, Wilmington Police officer Steven Cancila was observing traffic in the City of Wilmington, Delaware. He stopped a Chrysler 300 for speeding in the 1200 block of Northeast Boulevard. The car was being driven by David Barham and Chisholm was the front seat passenger. Although Officer Cancila did not have a radar detection device, he testified that the vehicle was moving at a high rate of speed in a 25 mph zone. Prior to approaching the vehicle, Officer Cancila ran the registered owner's information and discovered that there was an outstanding capias for Barham. Officer Cancila arrested Barham and asked Chisholm for identification. As he leaned inside the vehicle on the driver's side, Officer Cancila smelled marijuana, which was even stronger on the passenger side, and asked Chisholm to step out of the vehicle. Chisholm clutched at his jacket, suggesting that he was hiding something.
(6) A pat down search of Chisholm revealed two pounds of marijuana inside his jacket and approximately $1500 in cash. Another one-pound bag of marijuana was found in the trunk of the vehicle. Chisholm told the officer that the marijuana belonged to him. At trial, Chisholm's mother testified that she had given him the money found on his person. The State called Detective Chris Popp to the stand, who testified that, given the amount of the drugs, the way in which they were packaged, the amount of money found on Chisholm's person, and the fact that the drugs contained seeds and stems, Chisholm intended to repackage and sell the drugs.
(7) Chisholm's first claim is that the Superior Court abused its discretion by failing to suppress the marijuana on the basis of the illegal stop of Barham's vehicle. Because Chisholm did not own the vehicle, however, he lacks standing to challenge the stop.[2] The stop was reasonable in any case, since there was evidence that the officer observed Barham's vehicle moving much more quickly than the other vehicles in the 25 mph zone, thereby creating a "reasonable articulable suspicion" that a speeding violation was being committed.[3] We, therefore, conclude that Chisholm's first claim is without merit.
(8) Chisholm's second claim is that the Superior Court abused its discretion by failing to suppress the marijuana on the basis that he was subjected to an illegal search and seizure. The evidence at the suppression hearing and at trial, however, was that there was a strong odor of marijuana on the passenger side of the vehicle and that Chisholm was observed clutching his jacket. Taken together, these circumstances constitute probable cause for the search of Chisholm's person.[4] As such, we conclude that Chisholm's second claim is without merit.
(9) Chisholm's third claim is that the evidence presented at trial was insufficient to support his conviction. Specifically, Chisholm contends that the weight of the marijuana seized was insufficient to establish his intent to deliver the drugs. On a claim of insufficiency of the evidence, the standard of review is "whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt."[5] Utilizing that standard, we find that the testimony of Detective Chris Popp was more than sufficient to support the State's claim that Chisholm intended to repackage and sell the marijuana, rather than use it himself.[6] We, therefore, conclude that Chisholm's third claim also is without merit.
(10) Chisholm's fourth, and final, claim is that the Superior Court abused its discretion by failing to dismiss his counsel prior to trial. The trial transcript reflects that the judge, noting that Chisholm had previously moved to dismiss his counsel, asked Chisholm if he still wished to pursue his counsel's dismissal. Chisholm agreed that he had filed the motion, but then simply stated that the motion had been denied. He did not object to proceeding to trial with his counsel and, in fact, told the judge that he wanted to discuss matters with his counsel before the trial began. At no time during the trial did Chisholm express any desire to dismiss his counsel and proceed pro se. Likewise, Chisholm has presented no evidence suggesting that the Superior Court should have dismissed his counsel sua sponte. In the absence of a factual or legal basis for Chisholm's fourth claim, we conclude that it, too, is without merit.
(11) The Court has reviewed the record carefully and has concluded that Chisholm's appeal is wholly without merit and devoid of any arguably appealable issues. We also are satisfied that Chisholm's counsel has made a conscientious effort to examine the record and the law and has properly determined that Chisholm could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot.
NOTES
[1] Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
[2] Jarvis v. State, 600 A.2d 38, 41 n.1 (Del. 1991) (citing Rakas v. Illinois, 439 U.S. 128 (1978)).
[3] King v. State, Del. Supr., No. 281, 2005, Berger, J. (Feb. 22, 2006) (citing Terry v. Ohio, 392 U.S. 1 (1968)).
[4] Jenkins v. State, 970 A.2d 154, 158-59 (Del. 2009).
[5] Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991).
[6] Williams v. State, 539 A.2d 164, 168 (Del. 1988) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). | 01-03-2023 | 10-30-2013 |
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