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315 A.2d 483 (1974)
SEAWAY SHOPPING CENTER CORPORATION
v.
The GRAND UNION STORES, INC., OF VERMONT, and the Grand Union Company.
No. 3-73.
Supreme Court of Vermont, Chittenden.
February 5, 1974.
*484 James D. Foley, of Yandell, Page & Archer, Burlington, for plaintiff.
Wilson, Curtis, Bryan, Quinn & Jenkins, Burlington, for defendants.
Before SHANGRAW, C. J., and BARNEY, SMITH, KEYSER and DALEY, JJ.
SHANGRAW, Chief Justice.
This is an appeal from a judgment entered in a civil action tried by the Chittenden County Court on December 6, 1972. Jury trial was waived and following a hearing by the court plaintiff was awarded damages in the amount of $14,839.05 and its costs. A judgment for this amount followed, and the defendants have appealed therefrom.
Plaintiff, a Vermont corporation, owns and operates the Seaway Shopping Center in South Burlington, Vermont. Its principal stockholder and officer is Thomas Farrell, who developed the shopping center.
The Grand Union Stores, Inc., of Vermont, is also a Vermont corporation, and a wholly owned subsidiary of The Grand Union Company. The Grand Union company is a Delaware corporation with its principal office in East Paterson, New Jersey. The Grand Union Company is a guarantor of the performance of its subsidiary company under the lease here in question.
For the purposes of this opinion, Seaway Shopping Center is hereinafter referred to as "Seaway", The Grand Union Stores, Inc., of Vermont, as "Tenant", and The Grand Union Company as "Parent Company."
The original lease, here in question, was between Thomas Farrell and the above Tenant. The Parent Company was guarantor of the Tenant. The lease was subsequently assigned by Farrell to Seaway. Its terms are not in dispute.
Without reciting verbatim all of the pertinent provisions of the lease, the court determined under finding No. 5 that it provided, in substance, as follows:
(a) That the Landlord would maintain the surface of the parking area, rights of way, curb-cuts, approaches and sidewalks in good condition.
(b) That if the Landlord failed to carry out any of its obligations, the Tenant might, after reasonable notice or without notice if in the Tenant's judgment an emergency should exist, perform the obligation at the expense of the Landlord.
(c) That if Tenant did so, it would be entitled to reimbursement from the Landlord, and could apply the claim against subsequent rent installments.
(d) That the Landlord should also mark and reline the parking areas as often as necessary.
(e) That notices or demands under the lease should be given by each party to the other by mail, to the addresses therein set forth.
The trial court continued with the following findings.
6. It is undisputed, and we find, that the Tenant in July 1971, caused a substantial part of the parking area adjacent to its store premises to be repaired and repaved, and subsequently remarked. The cost of the paving was $14,050.00, and of the remarking $903.15, both costs being reasonable.
*485 7. It is also conceded, and found, that Tenant made withholdings from its rent as follows:
January 1, 1972 $2,500.00
February 1, 1972 2,500.00
March 1, 1972 2,500.00
April 1, 1972 2,500.00
May 1, 1972 2,500.00
June 1, 1972 2,453.15
8. It is virtually, if not actually, conceded, and we find, that the remarking in question was required and necessary, whether or not the repaving was, and we find that the deduction of $903.15 by Tenant was justified and is an allowable reduction of plaintiff's claim.
9. Since the rental obligation itself is not in question, the central issue here involved is the condition of the parking lot before the repaving was done, i. e. whether it was in "good condition" as required by the lease. We find that it was, and that the repaving by the Tenant was not justified. Additionally, no notice of the repaving was given to the Landlord, the notice which was given referring only to "repair." (Def.Ex. T)
10. Over the course of six years prior to the repaving, Tenant had from time to time notified Seaway of the recurrent need for repairs to the lot, and Seaway had made them, presumably to the satisfaction of Tenant, since the non-performance clause had not previously been invoked.
11. When repairs were needed, Seaway had an arrangement with one Armand Pare and one Rene Barsalou to make them, using their equipment and hot mix (or cold patch in winter) purchased from local suppliers.
12. The cost of these repairs to Seaway were as follows: 1966, $760.65; 1967, $20.15; 1968, $670.09; 1969, $232.01; 1970, $469.91; and 1971, $1,835.91. The total is $3,968.72, almost half of which was just before the repaving in question.
13. Mr. Farrell testified that the repaving was done by Tenant, not because of necessity, but because it desired to give the premises a "new look" and to upgrade the store to meet growing competition. We so find, for the following reasons:
(a) By letter of May 5, 1970, the parent company advised Seaway (Def.Ex.L) that the parking area was badly in need of repair, "creating a very shabby appearance in comparison to the other Shopping Centers in the area."
(b) It then, in August, 1970, proceeded to get an estimate of the cost of repaving from L. M. Pike & Son, Inc., (Pl.Ex. 2, p. 4) even though it did not proceed with the work.
(c) On June 25, 1971, in a telephone conversation with Farrell, Mr. Hayes, Vice-president for the real estate of the parent company (which handled all these matters completely without reference to its subsidiary), asked Seaway to pay half of the cost of repaving, to upgrade the store to meet competition. Mr. Farrell refused, advising Hayes that substantial repairs had already been made and more were in process.
(d) At that time, a second quotation for repaving had already been obtained by defendants, and another was in the process.
(e) We are unable to find, and defendants' evidence could not make clear, who made the decision to repave. Notice was mailed July 1, 1971, although it did not specify that repaving was to be done, referring only to repairs. This notice came from Mr. Charles Bailey, assistant maintenance supervisor for the parent company. The following day he accepted the low quote for the work, and it proceeded.
(f) When Mr. Bailey gave this notice and accepted the quote, he did *486 not know repairs had been made, was unaware of the then condition of the lot and had had no communication from local officials of the Tenant about the repairs.
(g) Mr. Bailey testified he did not know who in the chain of command made the decision to repave. He thought it might have been the "legal department." A representative of the legal department was present through the trial, but did not testify. The vagueness of this whole line of testimony as to individual decisionmaking within the corporate structure tends to reinforce the conclusion that the reasons for repaving were other than as stated in the formal notice.
14. The defendants, although entitled to deduct the sum of $903.15 from the rent, were not entitled to deduct the further sum of $14,050.00. Plaintiff is entitled to recover from defendants that sum, with interest to date in the amount of $789.05, for a total of $14,839.05, plus its taxable costs.
In its conclusions the court, in part, stated:
No substantial legal questions are here presented. As agreed, by the parties, the main issue involved is one of fact, whether the parking lot in question was in good condition under the terms of the lease when the repaving was done, or in such bad condition, unremedied by the landlord after tenant's request, that repaving was necessary. Strengthened by the information that tenant's responsible officials did not know of, or take into consideration, the substantial repairs which landlord had made, we have concluded that the repaving was not necessary, but was done for purposes of "upgrading" to meet competition, a worthy motive but not the landlord's responsibility under the lease.
The issues raised by the defendants on appeal are primarily challenges to the findings of fact made by the trial court which they claim are clearly erroneous. The standard by which such a challenge is tested is stated in V.R.C.P. 52(a) thus:
Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses and the weight of the evidence.
The above Vermont rule is similar to Rule 52(a) of the Federal Rules of Civil Procedure. Defendants argue that this Court should not follow the long history of Vermont case law, but should
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
__________
No. 02-3035
__________
Dan McCarthy, as Parent and as Next *
Friend of his Minor Daughter, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Ozark School District; Faye Boozman, *
in his Official Capacity as Director, *
State of Arkansas Department of Health; *
John Doe, 1 through 20, in their Official *
Capacities as Agents, Servants, *
Employees or Officials of the State of *
Arkansas, Department of Health, *
*
Defendants - Appellees. *
___________
No. 02-3094
___________
Shannon Law, as Parent and Legal *
Guardian of her Minor Children Joey *
Law, Rob Law, and Claire Law; *
*
Plaintiff, *
*
Susan Brock, as Parent and Legal *
Guardian of her Minor Children Harley *
Brock, Mason Brock, Kathrine Brock *
and Michael Jarrell, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
*
Fay W. Boozman, in his Official *
Capacity as Director of the Arkansas *
Department of Health; Cutter Morning *
Star School District; Lake Hamilton *
School District; Raymond Simon, in his *
Official Capacity as Director of the *
Arkansas Department of Education, *
*
Defendants - Appellees. *
__________
No. 02-3104
__________
Cynthia Boone, Individually and as *
Next Friend of Ashley Boone, *
*
Plaintiff - Appellant, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Arkansas.
Cabot School District; Fay Boozman, in *
his Official Capacity as the Director of *
the Arkansas Department of Health; *
John Doe, 1 through 20, in their Official *
Capacities as Agents, Servants, *
-2-
Employees or Officials of the State of *
Arkansas, Department of Health, *
*
Defendants - Appellees. *
___________
No. 02-3195
___________
Shannon Law, as Parent and Legal *
Guardian of her Minor Children Joey *
Law, Rob Law, and Claire Law, *
*
Plaintiff, *
*
Susan Brock, as Parent and Legal *
Guardian of her Minor Children Harley *
Brock, Mason Brock, Kathrine Brock, * Appeal from the United States
and Michael Jarrell, * District Court for the Eastern
* District of Arkansas
Plaintiff - Appellee *
*
v. *
*
Fay W. Boozman, in his Official *
Capacity as Director of the Arkansas *
Department of Health, *
*
Defendant, *
*
Cutter Morning Star School District; *
Lake Hamilton School District, *
*
Defendants - Appellants, *
*
Raymond Simon, in his Official *
-3-
Capacity as Director of the Arkansas *
Department of Education, *
*
Defendant. *
___________
Submitted: March 10, 2003
Filed: March 8, 2004
___________
Before HANSEN1, Chief Judge, RILEY and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
These consolidated appeals involve the application of an Arkansas statute that
requires the immunization of Arkansas schoolchildren against Hepatitis B. Ark. Code
Ann. § 6-18-702(a).2 The district courts3 held that the statute's religious beliefs
1
The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
2
Ark. Code Ann. § 6-18-702 (2002), as in effect at the time of the district
courts’ decisions, provided:
(a) Except as otherwise provided by law, no infant or child shall be
admitted to a public or private school or child care facility of this state
who has not been age appropriately immunized from poliomyelitis,
diphtheria, tetanus, pertussis, red (rubeola) measles, rubella, and other
diseases as designated by the State Board of Health, as evidenced by a
certificate of a licensed physician or a public health department
acknowledging the immunization.
....
(d)(2) The provisions of this section shall not apply if the parents or
legal guardian of that child object thereto on the grounds that
-4-
exemption violated the Establishment Clause of the First Amendment because the
exemption applied only to the “religious tenets and practices of a recognized church
or religious denomination.” Ark. Code Ann. § 6-18-702(d)(2) (2000) (emphasis
added). The district courts then determined that the exemption was severable from
the remainder of the statute. Construing the statute without the exemption, the district
courts held that the underlying immunization requirement survived Due Process,
Equal Protection, Free-Exercise, and Hybrid Rights challenges. On appeal, we do not
reach the merits of the claims raised below because the Arkansas legislature rendered
these issues moot when it broadened the exemption to encompass philosophical as
well as religious objections. See Ark. Code Ann. § 6-18-702(d)(4)(A) (2003).
Instead, we set forth the general history of these matters, explain the changes in
Arkansas law, and address the issue of mootness as discussed by the parties in their
supplemental, post-argument briefs.
I. Background
Because the issues in this case do not turn on the specific facts that differentiate
each individual party, we forgo a detailed discussion of the individual parties and the
specific facts that gave rise to their actions. Instead, we describe the parties generally
immunization conflicts with the religious tenets and practices of a
recognized church or religious denomination of which the parent or
guardian is an adherent or member.
(Emphasis added). The State Board of Health, in cooperation with the Board of
Education, on July 27, 2000, promulgated regulations that listed Hepatitis B as one
of the designated diseases under Ark. Code Ann. § 6-18-702(a).
3
The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas (Case No. 02-3035), and the Honorable Susan Webber
Wright, United States District Judge for the Eastern District of Arkansas (Case Nos.
02-3094, 02-3104, and 02-3195).
-5-
by their respective roles. The first group of parties consists of Arkansas
schoolchildren who were excluded from school or threatened with exclusion from
school for failure to receive immunization treatments for Hepatitis B. This group also
includes the parents of the schoolchildren (collectively, the “Schoolchildren”). The
second group consists of the Arkansas Departments of Health and Education and
various officials from these two departments, including Fay W. Boozman, the
Director of the Arkansas Department of Health (collectively, the “Officials”). The
final group consists of various individual Arkansas school districts (collectively, the
“School Districts”). In each case, the Schoolchildren brought suit against the School
Districts and/or the Officials.
The Schoolchildren in each case alleged that they held sincere religious beliefs
that prevented each child from being immunized for Hepatitis B. The Schoolchildren
did not belong to any recognized religion that had as one of its tenets opposition to
immunization for Hepatitis B. We, like the district courts, assume for the purposes
of our analysis that the Schoolchildren held sincere religious beliefs against Hepatitis
B vaccination.
In Case No. 02-3035 the Schoolchildren argued that the religious beliefs
exemption violated the Establishment Clause of the First Amendment by permitting
exemptions only for beliefs associated with a recognized religion. They also argued
that the underlying immunization requirement violated their Equal Protection and
Due Process rights under the Fourteenth Amendment. The district court accepted the
Schoolchildren's arguments regarding the Establishment Clause challenge, but held
the religious beliefs exemption severable. The district court then
|
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274 Kan. 939 (2002)
58 P.3d 716
STATE OF KANSAS, Appellee,
v.
JAMES McINTOSH, Appellant.
No. 86,386.
Supreme Court of Kansas.
Opinion filed December 6, 2002.
*940 Paige A. Nichols, assistant appellate defender, argued the cause, and Reid T. Nelson, assistant appellate defender, Steven R. Zinn, deputy appellate defender, and Jessica R. Kunen, chief appellate defender, were with her on the briefs for appellant.
Keith E. Schroeder, district attorney, argued the cause, and Thomas R. Stanton, deputy district attorney, and Carla J. Stovall, attorney general, were with him on the briefs for appellee.
The opinion of the court was delivered by
LOCKETT, J.:
Defendant petitions for review from the Court of Appeals' affirmance of his convictions of rape, aggravated indecent liberties with a child, and two counts of aggravated criminal sodomy and his sentence of 316 months' imprisonment. Defendant claims (1) the trial court erred in finding that he failed to establish a compelling reason to require the victim to submit to an independent psychological examination; (2) the Court of Appeals erred in finding that a district court has no authority to order an independent physical examination of a victim in a criminal case; and (3) the trial court erred in admitting expert testimony.
The facts as set forth in the Court of Appeals' opinion provide sufficient background in this case. Further facts are incorporated in the opinion as necessary.
"McIntosh lived with Zoe D., his girlfriend, from December 1995 until July 1999. After McIntosh moved out, Zoe's daughter, A.D., told her mother that McIntosh had sexually abused her. Zoe reported the sexual abuse to the police.
"A.D. was interviewed by Detective Eric Buller, but the interviews were not recorded. A.D. told Detective Buller that McIntosh raped her using his finger and penis and that he anally and orally sodomized her. A.D. stated that the incidents occurred in several different locations throughout their residence and in the *941 family van. A.D. also told the detective that the sexual abuse began when McIntosh moved into the house when A.D. was 7 years old and ended when McIntosh moved out of the house when she was 10 years old.
"McIntosh was charged [in a complaint attested to by the prosecuting attorney] with five counts of rape, nine counts of aggravated criminal sodomy, five counts of aggravated indecent liberties with a child, and two counts of aggravated indecent solicitation of a child. Two counts of aggravated criminal sodomy and two counts of aggravated indecent solicitation of a child were dismissed at the preliminary hearing. Single counts of aggravated criminal sodomy and rape were dismissed by the State after it conceded that it could not prove that those offenses occurred in Reno County, Kansas. A jury convicted McIntosh of two counts of aggravated criminal sodomy and single counts of rape and aggravated indecent liberties with a child. McIntosh was sentenced to 316 months' imprisonment." State v. McIntosh, 30 Kan. App.2d 504, 505-06, 43 P.3d 837 (2002).
The Court of Appeals affirmed McIntosh's convictions. McIntosh filed a timely petition for review. We granted review solely upon the three issues briefed to this court. See K.S.A. 20-3018(c); Supreme Court Rule 8.03(a)(5)(c) (2001 Kan. Ct. R. Annot. 56).
DISCUSSION
Prior to trial, McIntosh filed a motion requesting both a physical and psychological examination of the victim, A.D. The trial judge denied the motion.
Psychological Examination
A trial court's denial of a defendant's motion to compel the victim, who is not a party in the State's criminal action but is often referred to as the complaining witness or complainant, in a sex abuse case to undergo a psychological examination is reviewed for abuse of discretion. See State v. Gregg, 226 Kan. 481, 489, 602 P.2d 85 (1979); State v. Bourassa, 28 Kan. App.2d 161, 164, 15 P.3d 835 (1999), rev. denied 269 Kan. 934 (2000). The party who asserts the court abused its discretion bears the burden of showing such abuse. State v. Thompkins, 271 Kan. 324, 334-35, 21 P.3d 997 (2001). "Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion." State v. Doyle, 272 Kan. 1157, 1168, 38 P.3d 650 (2002).
*942 In Gregg, this court was faced, as a matter of first impression, with whether the trial court abused its discretion in denying the defendant's motion for the victim in a criminal case involving a sex crime to submit to a psychiatric examination. The victim in Gregg was an 8-year-old girl who was the sole witness to corroborate the charges against the defendant. The Gregg court first looked to other jurisdictions for guidance and noted that other jurisdictions fell into one of the following three categories: (1) The court has no inherent power to compel a psychiatric examination; (2) the defendant has an absolute right to an order compelling a psychiatric examination; and (3) the trial judge has the discretion to order a psychiatric examination of a complaining witness where compelling reason is shown. The court noted that the minority view was that the court had no inherent power to compel a psychiatric examination, while the majority of jurisdictions recognized that the trial judge has discretion to order a psychiatric examination when a compelling reason exists. 226 Kan. at 485-87.
The Gregg court adopted the majority view, stating:
"We, too, adopt the `middle ground' and hold a trial judge has the discretion to order a psychiatric examination of the complaining witness in a sex crime case if the defendant presents a compelling reason for such examination. Even if a trial court finds a compelling reason for ordering the psychiatric examination, the further safeguard as to its admissibility remains." 226 Kan. at 489.
The Gregg court, in finding that the trial court did not abuse its discretion in denying the defendant's motion for psychiatric examination of the victim, relied upon the fact that the defendant in that case failed to put forth evidence as to (1) the victim's mental instability; (2) the victim's lack of veracity; (3) the victim's having asserted similar charges against other men that were later proven to be false; or (4) other reasons why the victim should be required to submit to such an examination. 226 Kan. at 490.
In reaching its decision, the Gregg court quoted in length from Ballard v. Superior Court, 64 Cal.2d 159, 49 Cal. Rptr. 302, 410 P.2d 838 (1966) (statutorily overruled by Cal. Penal Code § 1112 [West 1985]):
"`We therefore believe that the trial judge should be authorized to order the prosecutrix to submit to a psychiatric examination if the circumstances indicate a *943 necessity for an examination. Such necessity would generally arise only if little or no corroboration supported the charge and if the defense raised the issue of the effect of the complaining witness' mental or emotional condition upon her veracity. Thus, in rejecting the polar extremes of an absolute prohibition and an absolute requirement that the prosecutrix submit to a psychiatric examination, we have accepted a middle ground, placing the matter in the discretion of the trial judge.' 64 Cal.2d at 17[6]-177, []." Gregg, 226 Kan. at 489.
See State v. Rucker, 267 Kan. 816, 822, 987 P.2d 1080 (1999) (recognized trial judge has discretion to order psychological examination of victim in sex crime case if defendant presents compelling reason); State v. Lavery, 19 Kan. App.2d 673, Syl. ¶ 1, 877 P.2d 443, rev. denied 253 Kan. 862 (1993); see Annot, 45 A.L.R. 4th, 310.
Unlike the California Legislature, the Kansas Legislature has not statutorily overruled the 22-year-old decision in Gregg. Thus, it can be said that the legislature approves of the court ordering such examinations. Cf. In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000) (when legislature fails to modify statute to avoid standing judicial construction of statute, legislature is presumed to agree with court's interpretation).
The trial court in this case found:
"Here, the defense hasn't put on any evidence or any reason whatsoever that would get to a level of compelling. The defense is more than free at trial to attack the findings of Horizons [John Theis], and they are more than free to attack Dr. Glover's examination. But the fact that this defendant simply wants to have those findings verified is not a compelling reason to have a little eleven-year-old girl subjected to a psychological exam and particularly to a physical exam."
Regarding this issue, the Court of Appeals stated:
"Here, McIntosh argues that an independent psychological examination was required because a State witness completed a sexual abuse evaluation of A.D. and that he wanted his own expert to evaluate A.D. Specifically, McIntosh wanted an independent psychological examination of A.D.
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Cite as 2014 Ark. 184
SUPREME COURT OF ARKANSAS
No. CR-13-223
ROBERT LEANDER STIGGERS Opinion Delivered April 24, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT, FIFTH
DIVISION
[NO. CR2003-793]
STATE OF ARKANSAS
APPELLEE HONORABLE WENDELL LEE
GRIFFEN, JUDGE
AFFIRMED.
KAREN R. BAKER, Associate Justice
On June 16, 2005, a Pulaski County jury convicted appellant, Robert Leander
Stiggers, of first-degree murder and first-degree battery. He was sentenced to forty years
imprisonment for the murder conviction and twenty years imprisonment for the battery
conviction with the sentences to run consecutively. Stiggers’s convictions and sentences
were affirmed in Stiggers v. State, CACR 05-1399 (Ark. App. May 31, 2006) (unpublished).
Stiggers’s convictions and sentences stem from a January 10, 2003 shooting that
occurred in the Hollingsworth Courts neighborhood in Little Rock. Raynaud Muldrew and
Wardell Newsome were both shot. Muldrew was found in a vehicle, and Newsome was
lying near it. Muldrew died as a result of his injuries. Despite being shot in the back of the
head, Newsome survived his injuries. Immediately after the shooting and at trial, Newsome
identified Stiggers as the shooter. The relevant facts, as recounted by the court of appeals in
Stiggers’s direct appeal are as follows:
Cite as 2014 Ark. 184
Sergeant Sidney Allen . . . discovered Wardell Newsome lying on the ground near the
vehicle. He had been shot four times in the right shoulder and once behind his right
ear. While at the scene, Newsome told Sgt. Allen that [Stiggers] was the person who
shot him.
. . . Detectives Eric Knowles and Keith Cockrell questioned Newsome about
the incident while he was undergoing treatment at UAMS. Newsome explained that
he had borrowed a friend’s car earlier in the evening and picked up Muldrew. He told
the detectives that Muldrew had purchased marijuana and then the two of them went
to a liquor store to purchase cigarettes and a couple of Swisher cigars. While there,
they saw [Stiggers] who asked for a ride to Hollingsworth Courts. [Stiggers] was
riding directly behind Newsome in the back seat of the car, and during the ride,
[Stiggers] apparently became aggressive and started yelling. Newsome stated that, at
one point, he turned around and noticed that [Stiggers] was holding a small handgun.
While following [Stiggers’s] directions into the Hollingsworth Courts neighborhood,
Newsome testified that [Stiggers] told them to “say goodnight” and “say your
prayers” because he was going to kill them. Newsome indicated that he did not think
[Stiggers] was serious because they had known each other and been friends for years.
Newsome explained that, as he pulled into an alley in the residential complex
at [Stiggers]’s request, [Stiggers] shot him behind the right ear. He pointed out that
he lost consciousness immediately, and when he regained consciousness, he noticed
Muldrew slumped over in the front passenger seat. Newsome explained that he then
crawled out of the vehicle to look for help, and a neighbor called the police.
Newsome recognized [Stiggers]’s picture in a group of photos presented by Detectives
Knowles and Cockrell, and he again identified him as the shooter.
Stiggers, CACR 05-1399, slip op. at 1.
After the court of appeals issued its mandate, on August 20, 2006, Stiggers filed his
initial Rule 37.1 petition in Pulaski County Circuit Court. After several continuances due
to issues related to Stiggers’s representation, on July 2, 2012, Stiggers filed an amended
petition and the circuit court held a hearing that same day. On November 16, 2012, the
circuit court denied Stiggers’s petition. Stiggers now brings this appeal and presents one issue
for review: the circuit court erred by denying Stiggers’s Rule 37.1 petition because Stiggers
received unconstitutional ineffective assistance of counsel when his counsel failed to interview
2
Cite as 2014 Ark. 184
and call certain witnesses.
“On appeal from a circuit court’s ruling on a petitioner’s request for Rule 37 relief, this
court will not reverse the circuit court’s decision granting or denying post-conviction relief
unless it is clearly erroneous. E.g., Prater v. State, 2012 Ark. 164, at 8, 402 S.W.3d 68, 74. A
finding is clearly erroneous when, although there is evidence to support it, the appellate court
after reviewing the entire evidence is left with the definite and firm conviction that a mistake
has been committed. Id., 402 S.W.3d at 74.” Mason v. State, 2013 Ark. 492, at 1–2, ___
S.W.3d ___, ___.
Our standard of review requires that we assess the effectiveness of counsel under the
two-prong standard set forth by the Supreme Court of the United States in Strickland v.
Washington, 466 U.S. 668 (1984). Claims of ineffective assistance of counsel are reviewed
under the following standard:
A convicted defendant’s claim that counsel’s assistance was so defective as to require
reversal of a conviction has two components. First, the defendant must show that
counsel’s performance was deficient. This requires showing that counsel made errors
so serious that counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said that the conviction resulted
from a breakdown in the adversary process that renders the result unreliable.
Burton v. State, 367 Ark. 109, 111, 238 S.W.3d 111, 113 (2006) (quoting Strickland, 466 U.S.
at 687).
The reviewing court must indulge in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. Id. The petitioner claiming
ineffective assistance of counsel has the burden of overcoming that presumption by identifying
3
Cite as 2014 Ark. 184
the acts and omissions of counsel which, when viewed from counsel’s perspective at the time
of trial, could not have been the result of reasonable professional judgment. See id. Therefore,
Stiggers must first show that counsel’s performance fell below an objective standard of
reasonableness and then that counsel’s errors actually had an adverse effect on the defense. Id.
Stiggers must satisfy both prongs of the test, and it is not necessary to determine whether
counsel was deficient if Stiggers fails to demonstrate prejudice as to an alleged error. Abernathy
v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam).
Further, with respect to an ineffective-assistance-of-counsel claim regarding the decision
of trial counsel to call a witness, such matters are generally trial strategy and outside the
purview of Rule 37.1. Banks v. State, 2013 Ark. 147. Where a petitioner alleges ineffective
assistance of counsel concerning the failure to call witnesses, it is incumbent on the petitioner
to name the witness, provide a summary of the testimony, and establish that the testimony
would have been admissible into evidence. Moten v. State, 2013 Ark. 503 (per curiam);
Stevenson v. State, 2013 Ark. 302 (per curiam) (citing Hogan v. State, 2013 Ark. 223 (per
curiam)). In order to demonstrate prejudice, the petitioner is required to establish that there
was a reasonable probability that, had counsel performed further investigation and presented
the witness, the outcome of the trial would have been different. See Carter v. State, 2010 Ark.
231, 364 S.W.3d 46 (per curiam). Trial counsel must use his or her best judgment to
determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic
decisions must still be supported by reasonable professional judgment. Id. Finally, “[w]hen
assessing an attorney’s decision not to call a particular witness, it must be taken into account
4
Cite as 2014 Ark. 184
|
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994 F.2d 1433
Bankr. L. Rep. P 75,277In re Gilbert G. BEEZLEY, Debtor.Gilbert G. BEEZLEY, Appellant,v.CALIFORNIA LAND TITLE COMPANY, Appellee.
No. 91-55809.
United States Court of Appeals,Ninth Circuit.
Submitted Oct. 6, 1992.*Decided June 4, 1993.
Gilbert G. Beezley, pro se.
Mark E. Rohatiner, Ellen L. Frank, Schneider, Goldberg, Rohatiner & Yuen, Beverly Hills, CA, for appellee.
Appeal from the Ninth Circuit Bankruptcy Appellate Panel.
Before O'SCANNLAIN and RYMER, Circuit Judges, and ZILLY,** District Judge.
PER CURIAM:
1
Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court's denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm.
2
Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (bankruptcy court's refusal to reopen a closed case under 11 U.S.C. § 350(b) reviewed for an abuse of discretion). We disagree. Based on the assumption that amendment was necessary to discharge the debt, Beezley sought to add an omitted debt to his schedules. Beezley's, however, was a no asset, no bar date Chapter 7 case. After such a case has been closed, dischargeability is unaffected by scheduling; amendment of Beezley's schedules would thus have been a pointless exercise. See American Standard Ins. Co. v. Bakehorn, 147 B.R. 480, 483 (N.D.Ind.1992); In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992); In re Tucker, 143 B.R. 330, 334 (Bankr.W.D.N.Y.1992); In re Peacock, 139 B.R. 421, 422 (Bankr.E.D.Mich.1992); In re Thibodeau, 136 B.R. 7, 10 (Bankr.D.Mass.1992); In re Hunter, 116 B.R. 3, 5 (Bankr.D.D.C.1990); In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). If the omitted debt is of a type covered by 11 U.S.C. § 523(a)(3)(A), it has already been discharged pursuant to 11 U.S.C. § 727. If the debt is of a type covered by 11 U.S.C. § 523(a)(3)(B), it has not been discharged, and is non-dischargeable.1 In sum, reopening here in order to grant Beezley's request would not have "accord[ed] relief to" Beezley; thus, there was no abuse of discretion.
3
AFFIRMED.
O'SCANNLAIN, Circuit Judge, concurring:
4
The simple question with which we are presented--whether the bankruptcy court abused its discretion by denying the debtor's motion to reopen--requires, in my view, more than a simple answer. I write separately to address certain matters that the per curiam opinion does not discuss, but which are squarely presented on the record before us and implicate important principles of bankruptcy law.
5
* Beezley filed for bankruptcy under Chapter 7 on June 10, 1987. Because he had no assets available for distribution to his creditors in bankruptcy, no bar date was set by the court establishing a deadline for creditors to file proofs of claim.
6
Three years earlier, California Land Title Co. ("Cal Land") had obtained a default judgment against Beezley in California state court arising out of a 1979 transaction in which Beezley was the seller and Cal Land the title insurer of certain real property. Beezley made no mention of Cal Land's claim or of its judgment against him in any of his schedules. Consequently, Cal Land did not receive notice of Beezley's bankruptcy. Beezley received his discharge on November 6, 1987, and his case was thereafter closed.
7
In January 1990, Beezley moved to reopen his bankruptcy case for the purpose of amending his schedules to add the omitted debt to Cal Land. Cal Land filed a memorandum with the bankruptcy court in opposition to Beezley's motion to reopen, advising the court that Cal Land would seek to establish that its claim was nondischargeable. The bankruptcy court held a hearing, at the conclusion of which it denied Beezley's motion, citing the case of In re Stark, 717 F.2d 322 (7th Cir.1983) (per curiam). The Bankruptcy Appellate Panel ("BAP") subsequently affirmed by memorandum, citing the same authority.
II
8
The source of the bankruptcy court's power to reopen a closed case is section 350(b).1 This section gives the court discretion to reopen a case "to administer assets, to accord relief to the debtor, or for other cause." The question posed by this appeal is whether the bankruptcy court abused that discretion in denying Beezley's motion to reopen. See In re Herzig, 96 B.R. 264, 266 (9th Cir. BAP 1989) (decision on motion to reopen reviewed for abuse of discretion). Answering this question is a complicated affair, and requires close attention to the difficult language of sections 523 and 727 of the Bankruptcy Code.
9
* Section 727(b) of the Bankruptcy Code states in part: "Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter [i.e., the date of the bankruptcy filing]...." "The operative word is 'all'. There is nothing in Section 727 about whether the debt is or is not scheduled. So far as that section is concerned, a pre-bankruptcy debt is discharged, whether or not it is scheduled." In re Mendiola, 99 B.R. 864, 865 (Bankr.N.D.Ill.1989). See In re Stecklow, 144 B.R. 314, 317 (Bankr.D.Md.1992) ("breadth of the discharge" under § 727 is "comprehensive"); In re Thibodeau, 136 B.R. 7, 8 (Bankr.D.Mass.1992) ("s 727(b) itself makes no exception for unlisted debts"). Thus, unless section 523 dictates otherwise, every prepetition debt becomes discharged under section 727.
Section 523(a) provides in part:
10
(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt--
11
(3) neither listed nor scheduled ... in time to permit--
12
(A) if such debt is not of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim, unless such creditor had notice or actual knowledge of the case in time for such timely filing; or
13
(B) if such debt is of a kind specified in paragraph (2), (4), or (6) of this subsection, timely filing of a proof of claim and timely request for a determination of dischargeability of such debt under one of such paragraphs, unless such creditor had notice or actual knowledge of the case in time for such timely filing and request[.]
14
Unscheduled debts are thus divided into two groups: those that are "of a kind specified in paragraph (2), (4), or (6) of this subsection," and those that are not. Loosely speaking, the paragraphs in question describe debts arising from intentional wrongdoing of various sorts (respectively, fraud, fiduciary misconduct, and the commission of malicious torts). What distinguishes these from all other debts is that, under section 523(c) and rule 4007(c), a creditor must file a complaint in the bankruptcy court within 60 days after the date established for the first meeting of creditors in order to assert their nondischargeability. Failure to litigate the dischargeability of these sorts of debts right away disables the creditor from ever doing so; an intentional tort debt will be discharged just like any other.
15
Section 523(a)(3) threatens nondischargeability in order to safeguard the rights of creditors in the bankruptcy process. The difference between subparagraphs (A) and (B) reflects the different rights enjoyed by and requirements imposed upon different kinds of creditors. For most creditors, the fundamental right enjoyed in bankruptcy is to file a claim, since this is the sine qua non of participating in any distribution of the estate's assets. Section 523(a)(3)(A) safeguards this right by excepting from discharge debts owed to creditors who did not know about the case in time to file a claim. By contrast, for creditors holding intentional tort claims the salient rights are not only to file a claim but also
|
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137 F.3d 326
AVONDALE INDUSTRIES, INC., Petitioner,v.Rodney PULLIAM; Director, Office of Worker's CompensationPrograms, U.S. Department of Labor, Respondents.
No. 97-60569
Summary Calendar.
United States Court of Appeals,Fifth Circuit.
March 31, 1998.
Joseph J. Lowenthal, Jr., R. Scott Jenkins, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Petitioner.
Joseph Paul Demarest, Favret, Demarest, Russo & Lutkewitte, New Orleans, LA, for Pulliam.
Thomas O. Shepherd, Jr., Clerk, Benefits Review Bd., Washington, DC, Carol DeDeo, Assoc. Sol., U.S. Dept. of Labor, Dir., Office of Workers Comp. Programs, Washington, DC, for Director, Office of Worker's Compensation Programs, U.S. Dept. of Labor.
Petition for Review of an Order of the Benefits Review Board.
Before DUHE, DeMOSS and DENNIS, Circuit Judges.
DUHE, Circuit Judge:
1
Appellee injured his shoulder and sued Appellant, his former employer, for permanent and total disability payments under the Longshore and Harbor Workers' Compensation Act. The administrative law judge awarded him permanent, partial disability payments and calculated his wage earning capacity by averaging the hourly wage of five jobs which Appellant had found for Appellee. The Benefits Review Board affirmed. The res nova issue presented is the proper method of computing post-injury wage earning capacity when the employer locates more than one suitable job for the claimant. We affirm the ALJ's use of averaging.
2
* In May 1992, Rodney Pulliam ("Pulliam"), a sheet metal mechanic for Avondale Shipyards ("Avondale"), fell off a scaffold and injured his shoulder. Pulliam continued to work for Avondale until July when he quit.
3
In February 1994, Pulliam underwent surgery on his shoulder but was not able to return to work until January 1995. In the meantime, Avondale hired a certified rehabilitation counselor to analyze Pulliam's ability to be re-employed. The counselor conducted a labor market survey to identify jobs within Pulliam's mental and physical capabilities as well as his geographic area. The counselor found forty-four such jobs, none of which Pulliam secured.
4
Pulliam sued Avondale for permanent, total disability compensation under the Longshore and Harbor Workers' Compensation Act ("LWHCA"). In attempting to establish total disability, Pulliam argued to the administrative law judge ("ALJ") that he had diligently tried to obtain other employment, but that no one would hire him. He pointed to the fact that he contacted all but five1 of the prospective employers. The ALJ disagreed, finding that Pulliam had not been diligent in his job search. Rather, the ALJ found that Pulliam had, in at least two instances, misrepresented the status of his injury so as to hurt his chances of being hired. Thus, Pulliam was entitled only to permanent, partial disability.2
5
In calculating Pulliam's post-injury wage earning capacity, the ALJ averaged the hourly wage of the five jobs for which Pulliam did not apply. Avondale unsuccessfully appealed to the Benefits Review Board ("BRB") arguing alternatively that the ALJ should have based Pulliam's compensation using the highest wage of the five jobs and that the ALJ should have considered all forty-four jobs in his calculation. The BRB affirmed the ALJ's findings and adjusted the ALJ's calculation of the average.3 Avondale now appeals.
II
6
When the BRB affirms an ALJ's decision, we may reverse the ALJ's decision only if it is not supported by substantial evidence and is not in accordance with the law. New Thoughts Finishing Co. v. Chilton, 118 F.3d 1028, 1030-31 (5th Cir.1997). Substantial evidence is evidence that "a reasonable mind might accept as adequate to support a conclusion." Pierce v. Underwood, 487 U.S. 552, 564-65, 108 S.Ct. 2541, 2549-50, 101 L.Ed.2d 490 (1988) (internal quotation marks omitted).
7
* While 33 U.S.C. § 908(c)(21) sets forth the formula for calculating an employee's lost wage earning capacity, it gives no guidance for determining what the post-injury earning capacity is. Thus, the courts have determined post-injury earning capacity on a case by case basis. See Licor v. Washington Metropolitan Area Transit Authority, 879 F.2d 901 (D.C.Cir.1989); Pilkington v. Sun Shipbuilding and Dry Dock, 9 B.R.B.S. 473.
8
Avondale argues that the BRB should have vacated and remanded the ALJ's decision because the ALJ used the average of the wages rather than the highest wage. In P & M Crane v. Hayes, 930 F.2d 424 (5th Cir.1991), this Court held that an employer could satisfy its burden of proving alternate employment by showing that there was one job available in the local community. Here, Avondale points out that it more than satisfied its burden by showing that there were forty-four jobs available. Moreover, Avondale could have avoided this litigation altogether by finding the highest paying alternate employment for Pulliam. Instead, it provided Pulliam with a choice of forty-four jobs.
9
Avondale also urges this Court to reverse the ALJ's judgment based on policy. It contends that were we to affirm the ALJ, we would be discouraging other employers from attempting to find a range of suitable, alternate employment. To get around the averaging scheme, an employer would have to find only one, high paying job. Thus, should we reverse the ALJ, we would be encouraging employers to find a range of alternate employment. We disagree.
10
First, we find the policy argument unpersuasive. The employer, to avoid paying permanent, total disability benefits, has to show that there is suitable, alternate employment. We think it unlikely that an employer would risk having to pay permanent, total disability benefits by showing only one job available. Rather, the presumption that the employee is permanently and totally disabled would seem to encourage the employer to find as many alternate jobs as possible.
11
Second, in Shell Offshore, Inc. v. Cafiero, 122 F.3d 312, 318 (5th Cir.1997), we held that averaging was a reasonable method for determining an employee's post-injury wage earning capacity. We now explain why. We have held that an employer need not show that a specific job opening is available when proving suitable, alternate employment. See, Avondale Shipyards, Inc. v. Guidry, 967 F.2d 1039 (5th Cir.1992) (holding that an employer has to show only general availability). Thus, the courts have no way of determining which job, of the ones proven available, the employee will obtain. Averaging ensures that the post-injury wage earning capacity reflects all jobs available.
B
12
We now address Avondale's argument that the ALJ should have calculated Pulliam's post-injury wage earning capacity by using all forty-four jobs. Avondale argues that the ALJ acted improperly in finding that Pulliam was not diligent and that he had applied for all but five of the forty-four jobs. While we agree that these findings seem inconsistent, we give deference to an ALJ's findings of fact. Wilkerson v. Ingalls Shipbuilding, Inc., 125 F.3d 904, 906 (5th Cir.1997). It is reasonable that the ALJ could find that Pulliam merely applied for most of the forty-four jobs and yet was not diligent in his job search. Thus, we do not find error in the ALJ using the five jobs to determine the average.
CONCLUSION
13
For the above reasons we AFFIRM.
1
We note that the ALJ stated that Pulliam contacted all but six of the prospective employers; however, we are concerned with only five of those jobs because Pulliam gave no explanation for failing to contact those prospective employers
2
Under the LWHCA, the ALJ calculates loss of wage earning capacity by taking two thirds of the difference between the average of what the worker had earned and what the worker can earn post-injury. See 33 U.S.C. § 908(c)(21)
3
The ALJ had initially found that the average of the five jobs was $5.25/hour. The BRB adjusted the average to $5.99/hour
|
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
Leonardo Ramirez, § No. 08-19-00097-CR
Appellant, § Appeal from the
v. § 41st District Court
The State of Texas, § of El Paso County, Texas
State. § (TC# CR 20170D04632)
§
ORDER
The Court GRANTS the Court Reporter’s third request for an extension of time within
which to file the Reporter’s Record until August 12, 2019. NO FURTHER REQUESTS
FOR EXTENSION OF TIME TO FILE THE REPORTER’S RECORD WIL BECONSIDERED
BY THIS COURT.
It is further ORDERED that Bertha A. Prieto, Official Court Reporter for the 41st District
Court, for El Paso County, Texas, prepare the Reporter’s Record for the above styled and
numbered cause and forward the same to this Court on or before August 12, 2019.
IT IS SO ORDERED this 29th day of July, 2019.
PER CURIAM
Before McClure, C.J., Rodriguez and Palafox, JJ.
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611 S.E.2d 750 (2005)
272 Ga. App. 91
REYNOLDS
v.
The STATE.
No. A05A0768.
Court of Appeals of Georgia.
March 9, 2005.
Certiorari Denied June 6, 2005.
*751 George Jackson, Jackson & Schiavone, Savannah, for Appellant.
Daniel Craig, District Attorney, Henry Syms, Jr., Madonna Little, Assistant District Attorneys, for Appellee.
BLACKBURN, Presiding Judge.
Having pled guilty in 1999 to aggravated child molestation and child molestation, Gary Reynolds directly appeals the trial court's denial of his motion to set aside his sentence, which motion was filed more than four-and-one-half years after his unappealed sentence was entered. We hold that since Reynolds's sentence fell within the range of allowable sentences for the charged crimes, his claim that the sentence was void is without merit. Accordingly, his motion to set aside that sentence was untimely, depriving this direct appeal of jurisdiction. For this reason, we must dismiss the appeal.
*752 In March 1999, Reynolds was charged with six counts of child molestation[1] and one count of aggravated child molestation[2] arising out of conduct that took place between October 1992 and December 1994. In May 1999, he pled guilty to one count of child molestation and to one count of aggravated child molestation.
At the guilty plea hearing, attorneys for both sides, Reynolds himself, and the judge all believed and discussed that the range of punishment for the aggravated molestation count was ten to thirty years, with the range for the child molestation count five to thirty years. All were further under the impression that Reynolds faced a mandatory minimum sentence of ten years to serve on the aggravated child molestation count. The court sentenced Reynolds to twenty years on each count (ten to serve and ten on probation), with the sentences to run concurrently. The final sentence was entered on May 17, 1999.
After serving four-and-one-half years of his prison sentence, Reynolds in December 2003 moved the court to set aside his sentence on the ground that at the time he committed the crimes, former OCGA § 16-6-4 set the punishment range for aggravated child molestation from two to thirty years (not ten to thirty years with a ten-year-imprisonment mandatory minimum as was believed at the sentencing hearing) and set the punishment range for child molestation from one to twenty years (not five to thirty). Reynolds argued that he had received a sentence greater than that prescribed by law and that therefore his sentence was void. He claimed that, as his sentence was void, no time restriction precluded him from bringing the present motion to set aside, even though it was filed four-and-one-half years after his sentencing.
The trial court disagreed. The court held that a motion to set aside a sentence (based on the ground that the court had misapprehended the law and had therefore failed to exercise its discretion) was required to be filed within the term of court during which the sentence was entered. The court further held that even though void sentences may be challenged at any time, the twenty-year sentences here fell within the range of allowable sentences even under the former OCGA § 16-6-4, and that therefore the sentences were not void. As four-and-one-half years were far beyond the term of court, the court found it had no jurisdiction and denied the motion. We agree.
1. It is undisputed that the court misapprehended the law at the time it sentenced Reynolds. Where the court has made such a mistake, a defendant is normally entitled to have his sentence vacated and to be resentenced by a court that has a correct apprehension of the possible range of punishments. See Banks v. State;[3]Mallarino v. State.[4]
However, the defendant's right to have his sentence so modified is not unlimited. He may raise the issue in his initial direct appeal of his conviction (the procedure followed in Banks and Mallarino; Reynolds, however, filed no initial direct appeal here). Otherwise, he must make a timely motion in the trial court below. "Except as provided by statute, a sentencing court has no power to modify a valid sentence of imprisonment after the term of court in which it was imposed has expired." State v. Hart.[5] See Sasser v. Adkinson[6] ("in the absence of a statute providing to the contrary, the trial court's authority to vacate or modify a judgment ends with the expiration of the term of court in which the judgment was entered") (punctuation omitted).
*753 Subsequent to the 1992 amendment of OCGA § 17-10-1(a) and prior to 2001, no statute purported to extend beyond the court's term the time in which a court could modify a sentence. Levell v. State;[7]Latham v. State.[8] See Ga. L. 1992, p. 3221, § 1. Thus, at the time the court imposed Reynolds's sentence in May 1999, the court's power to modify the sentence was limited to the court's term. In 2001, however, the General Assembly enacted OCGA § 17-10-1(f), which provides:
Within one year of the date upon which the sentence is imposed, or within 120 days after receipt by the sentencing court of the remittitur upon affirmance of the judgment after direct appeal, whichever is later, the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.
Ga. L. 2001, p. 94, § 5.
Regardless of whether OCGA § 17-10-1(f) should be applied to Reynolds's December 2003 motion to set aside his sentence, that motion was far too late. It was not filed in the term in which the sentence was entered,[9] nor was it filed within a year of the date upon which the sentence was imposed, nor was it filed within 120 days of the trial court's receipt of a direct-appeal remittitur (as no direct appeal was filed). Accordingly, the trial court lacked subject matter jurisdiction and did not err in denying the motion. Kinsey v. State.[10]
2. Reynolds argues, however, that his sentence was void and therefore could be challenged at any time. Crumbley v. State[11] held that "[w]here a sentence is void, . . . the court may resentence the defendant at any time." See Jones v. State[12] ("a trial court's jurisdiction to modify a sentence extends beyond its statutory limitation only when the sentence is void") (footnote omitted); Howard v. State[13] ("`if the sentence imposed was a void sentence, then a new and valid sentence can be imposed by the trial judge at any time'").
The sentence here, however, was not void. "A sentence is void if the court imposes punishment that the law does not allow." Crumbley, supra at 611(1), 409 S.E.2d 517. "When the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1(f)." Jones, supra at 670, 604 S.E.2d 483. See Daniel v. State.[14]
Here, Reynolds's two twenty-year concurrent sentences (ten to serve, ten on probation) on the child molestation count and on the aggravated child molestation count fell within the ranges of punishment allowed in former OCGA § 16-6-4 (one to twenty for child molestation; two to thirty for aggravated child molestation) that applied to such offenses committed between October 1992 and December 1994. Accordingly, the sentences were not void. See Rehberger v. State;[15]Kinsey, supra at 653-654(1), 578 S.E.2d 269; Daniel, supra at 475(3), 585 S.E.2d 752. Compare Gonzalez v. State[16] (where fines were not authorized by controlling statute, sentence was void); Hahn v. State[17] (where imprisonment not authorized, *754 imprisonment sentence was void); McCranie v. State[18] (incest sentence void where incest merged with rape charge). Thus, the motion to set aside those sentences, filed four-and-one-half years after sentencing, was untimely. See Barber v. State;[19]Shaw v. State.[20]
Reynolds argues that the court's misapprehension of the applicable range of sentences voids the sentences. However, "[a]ssertions taking issue with the procedure employed in imposing a valid sentence or questioning the fairness of an imposed sentence do not allege a sentence is void and therefore are not a means for post-appeal, post § 17-10-1(f) sentence modification." Jones, supra at 670-671, 604 S.E.2d 483. See Williams v. State[21] (failure to conduct required hearing did not render a sentence void). A court which misapprehends the law and therefore fails to properly exercise its discretion in sentencing commits a procedural error; since the procedural error does not void the resulting sentence, a dissatisfied defendant must challenge the sentence in a timely manner. Daniel, supra at 475(3), 585 S.E.2d 752; Newby v. State;[22]Shaw, supra at 232-233, 504 S.E.2d 18. Absent such a timely challenge, the only avenue for reviewing the sentence lies in a petition for writ
|
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FILED
UNITED STATES COURT OF APPEALS DEC 06 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
RICHARD RAYMOND TUITE, No. 09-56267
Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB
Southern District of California,
v. San Diego
MICHAEL MARTEL, Warden,
ORDER
Respondent - Appellee.
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
The memorandum disposition filed on September 8, 2011 is hereby
withdrawn. A new disposition will be filed.
The majority of the panel votes to deny the petition for rehearing. Judge
Callahan votes to grant the petition for rehearing. Judge Berzon votes to deny
petition for rehearing en banc and Judge Noonan recommends denying the petition
for rehearing en banc. Judge Callahan votes to grant the petition for rehearing en
banc.
The full court has been advised of the petition for rehearing en banc, and no
judge of the court has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
The petition for rehearing is DENIED and the petition for rehearing en banc
is DENIED.
No further petitions for rehearing and for rehearing en banc will be
entertained.
2
FILED
NOT FOR PUBLICATION DEC 06 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD RAYMOND TUITE, No. 09-56267
Petitioner - Appellant, D.C. No. 3:08-cv-01101-J-CAB
v.
MEMORANDUM*
MICHAEL MARTEL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Argued and Submitted December 9, 2010
Pasadena, California
Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.
Richard Raymond Tuite appeals the denial of his petition for a writ of
habeas corpus. Applying Brecht v. Abrahamson, 507 U.S. 619 (1993), and holding
that there is at least “grave doubt” as to whether the confrontation clause error at
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3. The panel finds that a published opinion
might cast unjust aspersions upon those not before the court.
issue had a substantial and injurious effect or influence on the verdict, we reverse
and remand. See Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010).
FACTS AND PROCEEDINGS
On January 20, 1998, Stephanie Crowe, aged twelve, was stabbed nine times
by knife in her own bed in her own bedroom. She had been on the phone about 10
p.m. and died before midnight. Her body was discovered by her grandmother
about 6 a.m., the next day.
Within two weeks of her death, the Escondido police had identified three
teenage boys as suspects, had interrogated them, and had obtained confessions. On
May 22, 1998, these suspects were indicted for Stephanie’s murder. The district
attorney of San Diego County prepared the case for trial, calling on an F.B.I.
expert, Mary Ellen O’Toole, for help in developing the case. But in February
1999, the state Attorney General dismissed the indictments without prejudice. This
court recently reversed the dismissal of a § 1983 lawsuit brought by the former
suspects against the investigating police officers, so that case is going forward. See
Crowe v. County of San Diego, 608 F.3d 406 (9th Cir. 2010).
Here, however, we consider only the record as it developed in Tuite’s
criminal trial. That record shows that the day after Stephanie’s death, the police
picked up Tuite, an itinerant known to have been as close as one quarter of a mile
2
to the Crowe house at one point on the fatal evening. They took hair samples and
fingernail scrapings, photographed him and impounded some of his clothes, in
particular a red turtleneck shirt and a white T-shirt. These items were examined on
April 28, 1998 for bloodstains. Wetting the red shirt completely and using a
fluoroscopic process, the police found no blood on the red shirt. The red shirt was
subsequently photographed using a tripod that had previously been used at the
scene of the crime without using protective coverings for the legs so as to avoid
contamination. The white T-shirt had visible bloodstains and was sent to a
laboratory for DNA testing. The test excluded Stephanie as the donor. Search of
the Crowe house found no physical evidence of Tuite ever having been there.
Tuite was a mentally deficient person, without known employment or home,
who had been living in the San Diego area. On the evening of January 20, he had
bothered three residences as he sought “the girl” or “Tracy.” After Stephanie’s
death, he continued this quest during the rest of January, February and March
1998. Sometimes he annoyed residents enough that they called the police. On no
occasion was he violent or did he use a weapon.
The San Diego District Attorney recused himself. The state Attorney
General took over the case. In May 2002, the Attorney General obtained the
indictment of Tuite for murder in the first degree.
3
At trial, the state presented evidence that a criminologist in 1999 had
retested the red shirt worn by Tuite and found Stephanie’s DNA in a stain on it; in
April 2003, a second criminologist had retested Tuite’s white T-shirt and found her
DNA on it. The defense countered these reports with expert testimony that the
police could have inadvertently contaminated the shirts while they were in their
custody as they investigated the case. O’Toole, the F.B.I. expert first retained by
the district attorney to prosecute the boys, testified for the defense that in her
judgment “the crime scene” reflected organization, that is, control of the victim and
of surrounding events and circumstances so that the murder could be brought off
without alarming the family members sleeping nearby, and without the murderer
leaving fingerprints or the murder weapon. The prosecution rebutted O’Toole with
its last witness, Gregg O. McCrary, who had been an agent of the F.B.I. for nearly
thirty years, and was now in the business of consulting on criminal behavior. He
testified that the crime scene was, on the whole, “disorganized,” reflecting a
random attack.
The defense moved to impeach McCrary by cross-examining him on a letter
he had written, attacking O’Toole’s analysis of the crime scene, accusing her of
undermining the prosecution of this case, suggesting that she had acted unethically,
and expressing a strong desire that O’Toole be persuaded not to testify at Tuite’s
4
trial. After a hearing outside the presence of the jury, the court excluded the letter
and cross-examination based on the letter.
McCrary’s excluded letter, dated February 24, 2004, was written to the
International Criminal Investigative Analysis Fellowship (ICIAF) about O’Toole’s
proposed testimony for the defense, and what he termed “ethical issue[s]” that
testimony raised. He wrote that Tuite was the “true killer,” and that he was hopeful
O’Toole would not testify. He went on:
Neither the San Diego County Sheriff’s Office nor the Office of the
Attorney General for the State of California has requested the
assistance of the NCAVC [National Center for the Analysis of Violent
Crime] or the ICIAF in this matter. Both agencies are shocked and
dismayed that Mary Ellen O’Toole, a representative of both the FBI
and [the] ICIAF, has injected herself into this case in what they view
as an attempt to obstruct justice and undermine the successful
prosecution of Richard Tuite.
(emphasis added). At the hearing, McCrary admitted that he had not spoken to
anyone from the Sheriff’s Office. He also admitted that no
|
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22 B.R. 447 (1982)
In re Maris K. RINEER and Diane M. Rineer, Debtors.
Maris K. RINEER and Diane M. Rineer, Plaintiffs,
v.
BANK OF the NORTH SHORE, Defendant.
Bankruptcy Nos. 82 B 00044, 82 A 1250.
United States Bankruptcy Court, N.D. Illinois, E.D.
August 17, 1982.
E. Paul Rustin, Chicago, Ill., for plaintiffs.
Sherwin Willens, Wilmette, Ill., for defendant.
MEMORANDUM OPINION
FREDERICK J. HERTZ, Bankruptcy Judge.
This cause of action comes to be heard on a motion for summary judgment filed by the debtors, Maris and Diane Rineer (hereinafter referred to as plaintiffs) against the Bank of the North Shore (hereinafter referred to as North Shore) to rescind a security interest held by North Shore in the plaintiffs' home.
In May of 1978, North Shore financed plaintiffs' purchase of a 1978 Dodge motor home under a retail installment contract. Subsequently, the plaintiffs defaulted on the contract. North Shore notified the plaintiffs that the vehicle would be repossessed unless the arrearages were paid in full. Plaintiffs requested that North Shore refrain from repossessing the vehicle, and North Shore agreed, provided that the plaintiffs give North Shore a second mortgage lien on their home at 6922 Chestnut, Hanover Park, Illinois as additional collateral for the obligation existing under the retail installment contract. On June 3, 1980, the plaintiffs executed an addendum to their original contract which gave North Shore a second mortgage on their home. The plaintiffs executed a Trust Deed-second mortgage, which North Shore recorded in Cook County, Illinois on June 6, 1980. In April of 1981, the plaintiffs, who presumably were either unable or unwilling to make their payments under the contract, voluntarily returned the vehicle to North Shore.
In his affidavit, plaintiff Maris Rineer alleges that the transaction in which North Shore obtained a second mortgage on the plaintiffs' home is subject to Regulation Z of the Federal Truth in Lending Act.[1] The *448 plaintiffs further claim that: (1) under Regulation Z, North Shore is required to furnish the plaintiffs with notice of their right to rescind the June, 1980 transaction which resulted in North Shore's acquisition of a second mortgage in the plaintiffs' home, (2) this notice was not given to the plaintiffs, and (3) in October of 1981, the plaintiffs rescinded the transaction through their own Notice of Rescission sent to North Shore. Accordingly, the plaintiffs believe that North Shore's security interest in their home should be set aside.
On December 19, 1981, North Shore sold the motor home for $6,250.00, leaving a deficiency due from the plaintiffs in the amount of $10,757.57. North Shore filed a Proof of Claim for this amount in the plaintiffs' Chapter 13 proceeding. North Shore's position is that summary judgment should be denied because the right of rescission under Regulation Z does not apply to a closed end credit transaction where the security interest in a consumer's principal dwelling is acquired as additional collateral after the close of the consumer transaction and is given for a forebearance against repossession of the original collateral.
Under Federal Rule of Civil Procedure 56(c), summary judgment should be issued only if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of right. Consequently, the issues to be decided by this court are (1) whether there exists a genuine issue of material fact and (2) if not, whether the plaintiffs are entitled to a judgment as a matter of right.
The movant bears the burden of proving that no genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Thus, summary judgment may be denied even where the opposing party offers no evidence, if the movant fails to meet his burden. Garza v. Chicago Health Clubs, Inc., 347 F.Supp. 955, 965 (N.D.Ill.1972). Doubts as to the existence of an issue of fact are resolved in favor of the party opposing the motion. If different inferences and conclusions can reasonably be drawn from the facts offered, summary judgment should be denied. Harvey v. Great Atlantic and Pacific Tea Co., 388 F.2d 123, 124-25 (5th Cir. 1968). See also, In re Chong, 16 B.R. 1, 5 (Bkrtcy.Hawaii 1980).
In the case at bar, the plaintiffs have merely made a naked assertion that Regulation Z applies to North Shore's acquisition of a security interest in their home. The plaintiffs did not file a brief in support of their position or respond to North Shore's arguments concerning Regulation Z's inapplicability to the transaction herein. Moreover, research indicates that there is considerable doubt whether the transaction constitutes a "credit transaction" under Section 226.9 of Regulation Z. Even if it is a "credit transaction," it may qualify as a type of refinancing agreement which is an exception to the Right to Rescind. See 12 C.F.R. § 226.903 (1982).
Since all of these factors indicate that the relationship between the transaction in question and Regulation Z is not clear or certain, reasonable minds can draw different conclusions from the facts offered. Consequently, this court holds that the plaintiffs have not met their burden of proving that no genuine issue of material fact exists. The plaintiffs' motion for summary judgment is denied.
North Shore is to prepare a draft order in accordance with this opinion within 5 days.[*]
NOTES
[1] The Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq. (1976), is popularly known as the "Truth in Lending Act." Its purpose "is to improve consumer credit protection through a more informed use of credit." Dumas v. Home Constr. Co. of Mobile, Inc., 440 F.Supp. 1386, 1388 (S.D.Ala.1977). Regulation Z is a body of regulation promulgated by the Federal Reserve Board under the Act. 12 C.F.R. § 226.1 et seq. (1982).
[*] This decision is entered in compliance with the stay of enforcement until October 4, 1982 of the United States Supreme Court decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., ___ U.S. ___, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982) and the General Order of the United States District Court for the Northern District of Illinois (July 14, 1982).
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434 So.2d 1031 (1983)
Rafael Humberto PALACIOS, Appellant,
v.
STATE of Florida, Appellee.
No. AO-373.
District Court of Appeal of Florida, First District.
July 22, 1983.
Rehearing Denied August 4, 1983.
*1032 Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Andrew Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
ERVIN, Chief Judge.
Appellant, Rafael Humberto Palacios, appeals from a conviction for the offense of trafficking in marijuana, contending, inter alia, that the trial court erred in denying his motion to suppress physical evidence seized subsequent to a non-consensual search not incident to arrest. We agree and reverse.
The record discloses that Palacios was driving a rental truck north on Interstate 75 in Hamilton County at 4:00 a.m. on December 1, 1981, when he failed to stop at an agricultural inspection station. Inspector Davis, a uniformed officer on duty at the time, saw the truck by-pass the station and accordingly pursued it in an official marked car with blue lights flashing. He stopped the truck some 2 1/2 miles north of the station and then informed the driver, Palacios, first that he was required to stop at the station, and second that he needed to inspect the truck's cargo section. Palacios, a recent Cuban immigrant who speaks only Spanish, said, "No English." Davis again attempted to explain that he needed to inspect the rear of the truck and motioned to Palacios to open the rear door. Palacios complied with Davis' gestures by opening the door. At that point, a second man, Ferrer, who had been following the truck in an automobile, told Inspector Davis that he could not open the boxes in the rear of the truck which, he contended, contained ceramic vases. Davis then informed Palacios and Ferrer to return to the station, where Palacios was again directed, by motions, to re-open the cargo section of the truck. By that time Sheriff's Deputy Beck had approached the open door of the truck, smelled marijuana within it, and proceeded to open the boxes inside it, which were found to contain marijuana.
Palacios' motion to suppress alleged that he did not knowingly, freely and voluntarily consent to a search of the truck and that the evidence thus seized was the fruit of an illegal search and seizure. At the hearing on the motion, Palacios testified, through an interpreter, that he believed Inspector Davis had ordered him to open the truck's door; that he did not know he could refuse to obey Davis' order, because in Cuba officers generally have the right to conduct searches without consent, and that, had he known he could lawfully refuse, he would not have opened door to the truck. Ferrer also testified and confirmed the fact that Palacios does not speak or understand English. The trial court denied the motion, finding no coercion because, in its opinion, Inspector Davis was soft spoken, mild mannered and not authoritative. We reverse. Nothing in the record discloses that the state met its burden of proving, by a preponderance of the evidence, that Palacios consented knowingly, freely and voluntarily to the search. See Denehy v. State, 400 So.2d 1216, 1217 (Fla. 1980). In reversing, we adopt the reasoning in our recent decision of Rosell v. State, 433 So.2d 1260, (Fla. 1st DCA 1983), which we find controls the facts in the present case.
In this case, as in Rosell, we do not find that Palacios' action, in opening the rear door of the truck upon request, was anything more than mere submission to the apparent authority of Inspector Davis and, as such, was far short of the knowing, free *1033 and voluntary consent necessary to comply with fourth amendment protections.
REVERSED.
THOMPSON and WIGGINTON, JJ., concur.
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29 Wn. App. 461 (1981)
629 P.2d 912
THE STATE OF WASHINGTON, Respondent,
v.
DONALD R. WEDDEL, Appellant.
No. 4250-II.
The Court of Appeals of Washington, Division Two.
May 29, 1981.
Stephen Whitehouse, for appellant.
Patrick D. Sutherland, Prosecuting Attorney, and Chris Pomeroy, Deputy, for respondent.
REED, C.J.
Defendant Donald R. Weddel appeals his conviction of second degree burglary. We affirm.
On March 18, 1979, Larry and Jacqueline Wassman returned to their home in Lacey and discovered a gray Chevrolet Chevelle in their driveway with a young woman in the front seat. After the Wassmans had a brief conversation with the woman, who indicated that she thought their house was the residence of "the Hansons," a man they later identified as defendant Weddel came out from behind the house. He circled on foot to a vacant lot next to the house and then approached the vehicle, asking if the lot was for sale. After the man and woman left, Mr. Wassman, suspicious because of their inconsistent explanations for being at *463 the house, wrote down the Chevelle's license number, NET 900, and subsequently reported the incident to the police. There was no evidence, however, of any attempted entry to the Wassman residence.
On March 19, Paul and Wendy Johnson, returning from a shopping trip, arrived at their home located approximately seven-tenths of a mile from the Wassman residence. As the Johnsons pulled up to their mailbox across the street from their home, they noticed a gray Chevrolet Chevelle, occupied by two persons, leaving their driveway, some 50 to 75 feet from the mailbox. Dr. Johnson noted the Chevelle's license number, NET 900, and got a brief look at the driver. The Johnsons subsequently discovered that someone had stolen two stereo speakers from their living room after kicking open the front door.
Kelso police arrested defendant on March 20, apparently because he previously had been convicted of burglary and owned a vehicle matching the license number and description the Wassmans and Johnsons furnished. On March 23, while defendant was in custody, Mrs. Wassman positively identified him from a 6-picture photographic array, and on March 26 Mr. Wassman did likewise. Shown the same series of six pictures on March 23, Dr. Johnson tentatively identified defendant's picture as "the only one that looked like the individual I had seen driving the car."
On March 30 the State formally charged defendant with second degree burglary of the Johnson residence. On June 6 an amended information was filed, adding a second count charging attempted second degree burglary of the Wassman residence.[1] Before and during trial, defendant's timely *464 motions pursuant to CrR 4.4 to sever the attempted burglary count were denied.[2] At trial, defendant presented three alibi witnesses who testified they saw him in Longview at approximately the time the Johnson burglary was committed, but he presented no evidence directed to the Wassman attempted burglary count. Defendant did not testify in his own defense. The jury returned a verdict of guilty on the burglary count and not guilty on the attempted burglary count. Defendant appeals from the burglary conviction, assigning error to the trial court's refusal (1) to sever the attempted burglary count; and (2) to suppress Dr. Johnson's photographic identification of defendant conducted while he was in custody.
[1] Addressing first the issue of severance, we are mindful that joinder of counts should never be utilized in such a way as to unduly embarrass or prejudice one charged with a crime, or to deny him a substantial right. State v. Smith, 74 Wn.2d 744, 446 P.2d 571 (1968), vacated on other grounds sub nom. Smith v. Washington, 408 U.S. 934, 33 L.Ed.2d 747, 92 S.Ct. 2852 (1972). The determination of whether prejudice resulting from joinder of counts is sufficient to warrant severance, however, is within the discretion of the trial court. State v. Thompson, 88 Wn.2d 518, 564 P.2d 315 *465 (1977); State v. McDonald, 74 Wn.2d 563, 445 P.2d 635 (1968). The trial court's exercise of this discretion will be overturned on appeal only upon a showing of manifest abuse. State v. Wills, 21 Wn. App. 677, 586 P.2d 543 (1978), review denied, 92 Wn.2d 1006 (1979).
Defendant contends he was prejudiced by joinder of the attempted burglary charge in three ways. First, he argues the jury may have inferred that because he did not deny being at the Wassman residence, he must also have been at the Johnson residence; thus, joinder "confounded and embarrassed" him in his alibi defense to the Johnson burglary charge. Second, he argues the jury may have cumulated evidence of the crimes charged to find him guilty of the Johnson burglary when it might not have so found if the charges had been tried separately. Third, he argues joinder of the charges frustrated his desire to testify concerning the burglary charge but not to testify concerning the attempted burglary charge.
[2, 3] We believe the first two of these arguments clearly are without merit and essentially complain of the same harm that in their deliberations on the burglary count the jurors may have considered evidence introduced to prove the attempted burglary. Where the general requirements for joinder are met and evidence of one crime would be admissible to prove an element of a second crime, joinder of the two crimes usually cannot be prejudicial. State v. Pleasant, 21 Wn. App. 177, 583 P.2d 680 (1978), review denied, 91 Wn.2d 1011, cert. denied, Pleasant v. Washington, 441 U.S. 935, 60 L.Ed.2d 664, 99 S.Ct. 2058 (1979); State v. Kinsey, 7 Wn. App. 773, 502 P.2d 470 (1972), review denied, 82 Wn.2d 1002 (1973); State v. Conley, 3 Wn. App. 579, 476 P.2d 544 (1970). The general requirements for joinder of offenses are satisfied in this case because burglary and attempted burglary obviously are offenses "of the same or similar character." CrR 4.3(a). The remaining question, then, is whether evidence of the attempted burglary would have been admissible in a separate trial of the burglary charge. As a general rule, a *466 defendant must be tried for the offenses charged in the information and evidence of other offenses may not be admitted as proof of guilt of the charged offenses if the evidence is relevant only to prove the defendant's criminal disposition. State v. Goebel, 40 Wn.2d 18, 240 P.2d 251 (1952). The general rule excluding evidence of uncharged offenses is subject to certain exceptions, the most common of which involve "other crimes" evidence offered to show (1) motive, (2) intent, (3) absence of accident or mistake, (4) common scheme or plan, or (5) identity. The foregoing list of exceptions is not exclusive, however, and the true test of admissibility is whether the other crimes evidence is relevant and necessary to prove an essential ingredient of the crime charged. See State v. Lew, 26 Wn.2d 394, 174 P.2d 291 (1946); State v. Kinsey, supra; ER 404(b). We believe that evidence of the attempted burglary was admissible to establish defendant's presence in the near vicinity of the burglary a short time before it occurred. See State v. Cartwright, 76 Wn.2d 259, 456 P.2d 340 (1969); State v. Leroy, 61 Wash. 405, 112 P. 635 (1911); State v. Norris, 27 Wash. 453, 67 P. 983 (1902); State v. Hyde, 22 Wash. 551, 61 P. 719 (1900). Defendant's presence in the Johnson neighborhood 1 day before the burglary clearly was relevant to an important issue in the burglary prosecution because defendant lived in the Longview/Kelso area (more than 70 miles south of Lacey) and relied on alibi witnesses placing him in Longview at the time of the burglary as a defense to that charge. Accordingly, because evidence of the attempted burglary would have been admissible in any event in a separate trial of the burglary count, joinder of the two offenses did not unduly prejudice defendant either by undercutting his alibi defense or by permitting the jury to cumulate evidence of separate crimes.
We also reject defendant's third argument that joinder effectively denied him the right to testify in his own defense by forcing him to choose between testifying about both crimes or not testifying at all. In support of this argument, he relies principally on Cross v. United States, 335 *467 F.2d 987 (D.C. Cir.1964). In Cross, the court vacated convictions of two defendants and remanded for new trials because it concluded that joinder of counts had been prejudicial within the meaning of rule 14 of the Federal Rules of Criminal Procedure, which is substantially similar to CrR 4.4. The court noted that prejudice may develop
when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence.
Cross, 335 F.2d at 989. The defendants in Cross did not specify at trial the counts upon which they wished to remain silent and why, but this apparently was because the trial court insisted that the issue of joinder had
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Illinois Official Reports
Appellate Court
In re Marriage of Kiferbaum, 2014 IL App (1st) 130736
Appellate Court In re MARRIAGE OF JUDITH KIFERBAUM, Petitioner-Appellant,
Caption and HANAN KIFERBAUM, Respondent-Appellee.
District & No. First District, Second Division
Docket No. 1-13-0736
Filed September 30, 2013
Held In proceedings that resulted in the trial court granting respondent’s
(Note: This syllabus petition for an order of protection under the Illinois Domestic
constitutes no part of the Violence Act and then dismissing petitioner’s request for an order of
opinion of the court but protection on the ground that the Act prohibits mutual orders of
has been prepared by the protection, the appellate court reversed the dismissal of petitioner’s
Reporter of Decisions request, since she was seeking a correlative separate order of
for the convenience of protection, not a mutual order of protection, and although correlative
the reader.) separate orders of protection are not favored, they are allowed if
certain requirements are met, and petitioner satisfied those
requirements by filing a separate petition, commencing a separate
action, filing a written petition, providing notice to all parties, and
being prepared to present separate proof supporting her petition.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-D-577; the
Review Hon. Naomi Schuster, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded for further
proceedings.
Counsel on Jan R. Kowalski, of Chicago, for appellant.
Appeal
No brief filed for appellee.
Panel PRESIDING JUSTICE SIMON delivered the judgment of the court,
with opinion.
Justices Neville and Pierce concurred in the judgment and opinion.
OPINION
¶1 On January 23, 2009, petitioner Judith Kiferbaum (Judith) filed the underlying petition for
dissolution of marriage from her husband, respondent Hanan Kiferbaum (Hanan). Judith also
sought, and was granted, a temporary order of protection on January 23, 2009, and a plenary
order of protection on February 4, 2009. With respect to the parties’ abusive behavior toward
each other, the parties’ agreed disposition order of June 8, 2009, also restricted contact
between the parties. On March 17, 2010, judgment for dissolution of marriage was entered
with the issue of maintenance remaining open.
¶2 On June 21, 2012, Judith sought an emergency order of protection against Hanan that was
granted and set for further hearing on July 12, 2012. However, that petition was dismissed on
July 12, 2012. Also on that date, after the petition was dismissed, Hanan filed an emergency
petition for an order of protection against Judith. The trial court found that the petition was not
an emergency and set the matter for further hearing. On July 20, 2012, Judith filed a petition
for an emergency order of protection that was denied for lack of personal knowledge of
Hanan’s alleged conduct. On July 31, 2012, Judith filed the underlying petition for an order of
protection.
¶3 An agreed order restraining and enjoining Judith and Hanan from certain locations was
entered, the petitions were continued to allow discovery, and the court set a November 30,
2012, hearing date on the “cross petitions for order of protection.” The matter was continued to
January 30, 2013, when the trial court granted Hanan’s petition for an order of protection and
set argument for Hanan’s motion to dismiss Judith’s amended petition for an order of
protection on February 5, 2013. On February 5, 2013, the trial court granted Hanan’s motion to
dismiss, finding that the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq.
(West 2010)) does not permit mutual orders of protection.
¶4 Judith argues on appeal that the trial court erred in construing section 215 of the Illinois
Domestic Violence Act (750 ILCS 60/215 (West 2010)) in dismissing Judith’s petition. Judith
also contends that the trial court abused its discretion in granting Hanan’s petition. For the
following reasons, we affirm the judgment of the trial court as to the grant of Hanan’s petition
for a protective order and reverse the dismissal of Judith’s petition for a protective order.
-2-
¶5 I. BACKGROUND
¶6 Judith and Hanan were married on January 17, 1988, and the marriage was registered in
Haifa, Israel. The parties resided in Skokie, Illinois, and had one child under the marriage, born
on June 25, 1988. On January 23, 2009, citing irreconcilable differences, Judith filed the
underlying petition for dissolution of marriage from Hanan. Judith also filed a petition for an
order of protection, a third-party complaint against respondent’s business and banking entities,
an emergency ex parte petition for a temporary restraining order, preliminary injunction, and
other relief, and a petition for interim prospective attorney fees and costs against Hanan.
¶7 Judith presented an affidavit in support of her petition for an order of protection, testifying
to Hanan’s behavior toward Judith at various dates in the prior year that exhibited escalating
and repeated abuse and harassment such that Judith feared for her personal safety. Judith
averred that Hanan repeatedly yelled at her, telling her that she must follow his rules, and that
if she did not comply with his rules and demands he would “screw [her] completely,” humiliate
her to her friends and employers, and leave her penniless. Judith also detailed occurrences
where Hanan demanded that Judith perform oral sex or she would be responsible for “a bad
situation.” Judith testified that for fear of what Hanan might do, she complied with his demand
each time while crying throughout the ordeal. Judith also detailed times where Hanan insulted
her by yelling at her that she was a “whore” and screaming that she was “only good to suck
dick! I give you $4,000 a month for that! I’d be better off to f*** any [other] woman or
anybody! I’ll pay any money because it is better than you!”
¶8 The court entered an emergency order of protection against Hanan and set the matter for a
hearing on February 13, 2009. On January 27, 2009, Hanan filed an emergency motion to
vacate the order of protection and an evidentiary hearing was held on February 4, 2009.
Following testimony by both parties, the trial court noted the stark differences in the testimony
of the two required a credibility determination and, having observed the witnesses and heard
their testimony, found Judith credible. The court concluded that Hanan’s behavior rose to a
level of harassment requiring an order of protection.
¶9 The order of protection was subsequently dismissed ab initio by a June 8, 2009, agreed
disposition order awarding Judith exclusive possession of the marital residence and an
automobile, and also forbidding any harassment or contact between the parties. Despite the
order, the parties continued to have acrimonious relations, including numerous instances of
damage to Judith’s vehicle requiring various repairs and leading to Judith calling the police.
Hanan admitted to one instance of damage to Judith’s vehicle while it was parked at
Nordstrom’s at Old Orchard Mall parking lot, whereby Hanan placed bodily fluids including
vomit, urine and feces on the driver’s seat. The court entered an order requiring Hanan to have
the vehicle cleaned.
¶ 10 On March 17, 2010, judgment for dissolution of marriage was entered with the issue of
maintenance for Judith remaining open. The parties continued to maintain an acrimonious
relationship, including various cross-allegations of property damage and harassing conduct.
On June 21, 2012, Judith filed another emergency petition for an order of protection against
Hanan. Judith claimed that Hanan vandalized her vehicle numerous times, vandalized Judith’s
storage area at her garage, harassed and threatened her via e-mail, and gave an anonymous
complaint to her employer that led to her termination. Judith claimed that she suffered from
severe anxiety and lived in fear of Hanan.
-3-
¶ 11 At the emergency hearing on the petition, Judith testified to these allegations and the court
entered an order prohibiting Hanan from all personal contact with Judith, including by
telephone, e-mail and third parties. In addition, Hanan was prohibited from entering or
remaining at the Nordstrom store where Judith was employed. The temporary order was
effective until July 12, 2012, when a further hearing was set. According to several filings in the
record, Judith’s June 21, 2012, petition was dismissed on July 12, 2012.
¶ 12 On the afternoon of July 12, 2012, after the
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406 F.Supp. 305 (1976)
MOBIL OIL CORPORATION, Plaintiff,
v.
FEDERAL TRADE COMMISSION et al., Defendants.
No. 74 Civ. 311.
United States District Court, S. D. New York.
January 12, 1976.
*306 *307 *308 Donovan, Leisure, Newton & Irvine, New York City, for plaintiff; Andrew J. Kilcarr, Washington, D. C., Charles F. Rice, New York City, Mobil Oil Corp., of counsel.
Thomas J. Cahill, U. S. Atty., S. D. N. Y., New York City, for defendants; Gregory J. Potter, Asst. U. S. Atty., Calvin J. Collier, Gen. Counsel, Gerald Harwood, Asst. Gen. Counsel, Robert E. Duncan, Mary L. Azcuenaga, Attys., F. T. C., of counsel.
LASKER, District Judge.
By letter dated August 22, 1973, Mobil Oil Corporation requested, pursuant to the Freedom of Information Act (FOIA) the opportunity to inspect and copy all communications pertaining to various aspects of petroleum use[1] from January 1, 1970 to August 22, 1973 between the Federal Trade Commission (FTCCommission) and (1) Congress, (2) any federal agency, and (3) any state government or agency. On December 12, 1973, the FTC granted the request in part and denied it in part.
Specifically, the FTC granted access to correspondence between the Commission and Congress, and between the Commission and state governments and agencies, except for the portions of the documents which contained identifying details and names of the persons who communicated with government officials. The FTC also refused to disclose staff opinions or theory, and communications between the Commission and other federal agencies.
Mobil then filed this suit under the FOIA to compel disclosure of all withheld information. Subsequently, on March 6, 1974, the FTC informed Mobil that certain of the communications between the FTC and the states are part of active investigatory files or contained privileged or confidential material, and, as such, were exempt from disclosure.[2]
I.
Deletion of Names and Identifying Details in Communications Between the FTC and Congress and the FTC and State Agencies
The first category of materials in dispute are letters and other documents *309 which constitute communications between the FTC and Congress, and the FTC and state agencies. Although the Commission released these documents to Mobil, it did so only after blacking out virtually all identifying details including the names of the correspondents. Charles A. Tobin, Secretary of the FTC, justified these deletions by stating that:
"The Commission will not release such identifying information because it believes . . . that Citizens have a right to communicate with their government without fear of unwarranted public disclosure." (Letter of December 12, 1975 to Andrew Kilcarr, Ex. E to complaint)
The FTC has adhered to this position, which it defends on the basis of what it terms an "informer's privilege" that it asserts is implicit in Exemptions 3, 4 and 7 of the FOIA, 5 U.S.C. § 552(b)(3), (4) and (7).
At the outset we reject the agency's argument that the purposes of these three specific provisions of the FOIA may be fused to create by implication an exemption not explicitly stated in the statutory language. As recently as April of this year, the Supreme Court in NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 1509, 44 L.Ed.2d 29 (1975) reconfirmed the principal objective of the FOIA which is:
"`to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.' S.Rep.No. 813, 89th Cong., 1st Sess., 3 (1965); Environmental Protection Agency v. Mink [410 U.S. 73], supra,, at 80, 93 S.Ct. [827], at 832 [35 L.Ed.2d 119] (1973)."
According to the language of the FOIA as construed by the Supreme Court, all "identifiable records" must be made available to a member of the public on demand (5 U.S.C. § 552(a)(3)) unless the requested documents fall within one of the Act's nine exemptions. (5 U.S.C. § 552(b)). NLRB v. Sears, Roebuck & Co., supra, 421 U.S. at 136-137, 95 S.Ct. 1504. Although the validity of the theory of an "implicit" exemption advanced by the FTC has not been squarely presented to any court, the general philosophy of the FIOA as stated by the court in NLRB v. Sears, Roebuck & Co., supra, the accepted principle that the specific exemptions are to be construed narrowly,[3] and the language of the Act itself make clear that the FTC's justification for deleting identifying details can be sustained, if at all, only on the independent applicability of any of the Act's exemptions to the deletions in question. Each exemption upon which the FTC relies must therefore be individually analyzed to determine whether, as defendants argue, it warrants the erasures made.
A. Exemption 3
The Commission relies first upon the argument that Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. § 46(f) (FTCA), as well as certain of the FTC's rules and regulations, authorize the deletion of confidential matter and that these statutes and rules bring the material within Exemption 3 of the FOIA which protects matters that are
"specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3)
The Commission bases its authority to withhold identifying details in part on the strength of Rules 2.2(d) and 4.10(b) of the FTC's Rules of Practice. 16 C.F.R. §§ 2.2(d), 4.10(b). Section 2.2(d) states that the Commission's "general . . . policy" is not to divulge names of complainants "except as required by law." Section 4.10(a) recites the exemptions to the FOIA with the FTC's analysis of those exemptions, adding, at § 4.10(b), that the Commission may delete identifying details from material it *310 makes public if necessary "to prevent clearly unwarranted invasions of privacy." Rather than creating additional criteria for withholding information, these regulations restateand in § 4.10(a) actually recitethe exemptions contained in the FOIA itself. Even if this were not so, however, neither regulations nor guidelines promulgated by a federal agency, can override the language and purpose of a statutory enactment. Exemption 3 permits a refusal to disclose material only where another statute authorizes such action.
Thus, the only possible basis for the applicability of Exemption 3 in the circumstances is Section 6(f) of the FTCA (15 U.S.C. § 46(f)) which provides in language the Commission argues to be relevant:
"§ 46 Additional powers of Commission
The Commission shall also have power
(f) Publication of information; reports
To make public from time to time such portions of the information obtained by it hereunder, except trade secrets and names of customers, as it shall deem expedient in the public interest; and to make annual and special reports to the Congress and to submit therewith recommendations for additional legislation; and to provide for the publication of its reports and decisions in such form and manner as may be best adapted for public information and use."
The Commission argues that this language authorizes it to determine whether the release of information in its possession would further the public interest. If, as here, the FTC concludes that disclosure of particular documents would not achieve that goal, the agency contends that Section 6(f) prohibits the release of that material, and that it consequently falls within the ambit of Exemption 3 of the FOIA.
We disagree. Section 6(f) confers upon the FTC the right to disclose and publish, with few limitations, information it possesses. By its terms, the statute authorizes disclosurenot, as the FTC argues, the refusal to disclose. The sole items that the statute does not authorize the FTC to reveal are trade secrets and names of customers. Those limitations in no way make the statute one which explicitly forbids disclosure of all identifying details and all names of correspondence in communications received by the FTC.
The legislative history and judicial construction of Section 6(f) support this interpretation. The Senate debate on the bill which became § 6(f) demonstrates that although the statute embodies guidelines to limit release of certain types of information at the FTC's disposal, the major thrust of the bill was to set forth what material the Commission on its own initiative could make public, not what it could refuse to disclose. In fact, some concern was voiced on the Senate floor that the FTC under this statute would release too much information. See 51 Cong.Rec. 12929 (1914).[4] Similarly, the analysis of § 6(f) by the court in FTC v. Cinderella Career and Finishing Schools, 131 U.S.App.D.C. 331, 404 F.2d 1308 (1968) establishes that the section was aimed at allowing publication and *311 that the limitations on public release set forth in the section were intended to:
"
|
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754 So.2d 1178 (2000)
Reginald Torlentus JOHNSON
v.
STATE of Mississippi.
No. 96-CT-01136-SCT.
Supreme Court of Mississippi.
January 13, 2000.
Thomas M. Fortner, Jackson, Andre' De Gruy, Robert M. Ryan, Jackson, Attorneys for Appellant.
Office of the Attorney General by Glenn Watts, Attorney for Appellee.
EN BANC.
ON WRIT OF CERTIORARI
BANKS, Justice, for the Court:
¶ 1. The question presented in this appeal is whether a trial court, when considering peremptory challenges under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), may decline to make a factual determination, on the record, of the merits of the reasons provided by a party for those challenges. The Court of Appeals found that the trial court's failure to hold such a hearing was not error. We granted certiorari and, pursuant to Hatten v. State, 628 So.2d 294 (Miss.1993), reverse the judgment of the Court of Appeals and remand this case to the Hinds County Circuit Court.
I.
¶ 2. The murder conviction which is the subject of this appeal arose out of an altercation over an allegedly stolen bicycle. Reginald Torlentus Johnson, defendant/appellant, shot and killed William Charleston.[1]
*1179 ¶ 3. At trial, after the State had exercised all six of its peremptory challenges to remove blacks from consideration for jury service, the defense raised the issue that the State was exercising its strikes in a discriminatory fashion to systematically exclude these black venire members solely on the basis of race. The State countered that the facts did not establish a prima facie case of discriminatory intent in its exercise of the permitted peremptory challenges. Rather than decide that threshold issue, the trial court simply directed the State to offer race-neutral reasons for the six strikes. The State proceeded to do so. In summary, those reasons offered were as follows:
(a) Juror One, Panel One refused to look at the prosecutor and was unresponsive.
(b) Juror Six, Panel One's husband was incarcerated in the penitentiary on a drug charge.
(c) Juror Nine, Panel One was struck because of age, being twenty-three years old.
(d) Juror Ten, Panel One made no direct eye contact and had served on a civil jury that returned a verdict against a police officer.
(e) Juror Eleven, Panel One was struck because of age, being twenty-three years old.
(f) Juror One, Panel Two was struck because of age, being twenty-nine years old, and because that juror had been on a jury that returned a defendant's verdict in a criminal prosecution.
¶ 4. The defense was then given the opportunity to be heard on the challenges. Defense counsel provided rebuttal on two of the State's peremptory strikes, Juror One, Panel One and Juror Ten, Panel One. Defense counsel's response was to the effect that the reasoning offered by the State was so unsubstantiated that it was offered to hide the discriminatory purpose for the strikes. The trial court announced, without elaboration, that all six peremptory challenges would be permitted to stand. It is that ruling that Johnson raised as error on direct appeal.[2]
¶ 5. The Court of Appeals found the following: (1) the trial court skipped the first step in the Batson analysis when it failed to find that the State's actions amounted to a prima facie case of discrimination before requiring it to provide race neutral reasons for its strikes; (2) this was irrelevant because it was clear from the record that such a prima facie case had been made; (3) the trial court's finding that the peremptory challenges were race neutral would be upheld; and (4) the trial court's finding that the peremptory challenges were sufficiently race neutral to be upheld as non-discriminatory under Batson, would be upheld. Finally, the Court of Appeals found that the trial court's failure to make on the record findings concerning its acceptance of the peremptory strikes was not error despite this Court's decision in Hatten v. State:
In reviewing the trial court's decision to accept the State's facially race-neutral reasons as being offered in good faith, we do not find the absence of such detailed findings to be reversible error. The trial court's decision on this aspect of a Batson challenge, as we have observed, involves a subjective analysis of the credibility of the prosecuting attorney. It must be based in substantial part on the trial court's observations of the attorney's conduct and demeanor and may also properly involve other largely intangible and even intuitive considerations. Whether those complex considerations could be articulated with any precision is, in itself, doubtful. *1180 Even if they could, it is equally as doubtful that the resulting information would provide any meaningful assistance to this Court in deciding whether the court abused its discretion. We decline to reverse the conviction on this basis.
II.
¶ 6. This Court stated the following in Hatten v. State, 628 So.2d 294, 298 (Miss. 1993):
This Court has not directly addressed the issue of whether a trial judge is required to make an on-the-record factual determination of race neutral reasons cited by the State for striking veniremen from a panel. The Batson Court declined to provide specific guidelines for handling this issue. This Court has articulated the general law in this state which provides that "it is the duty of the trial court to determine whether purposeful discrimination has been shown," by the use of peremptory challenges. Wheeler v. State, 536 So.2d 1347 (Miss. 1988); Lockett v. State, 517 So.2d at 1349.
In considering this issue, we today decide it necessary that trial courts make an on-the-record, factual determination, of the merits of the reasons cited by the State for its use of peremptory challenges against potential jurors. This requirement is to be prospective in nature. Of course, such a requirement is far from revolutionary, as it has always been the wiser approach for trial courts to follow. Such a procedure, we believe, is in line with the "great deference" customarily afforded a trial court's determination of such issues. "Great deference" has been defined in the Batson context as insulating from appellate reversal any trial findings which are not clearly erroneous. Lockett v. State, 517 So.2d at 1349-50. Accord Willie v. State, 585 So.2d 660, 672 (Miss.1991); Benson v. State, 551 So.2d 188, 192 (Miss.1989); Davis v. State, 551 So.2d 165, 171 (Miss.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 797 (1990); Chisolm v. State, 529 So.2d 630, 633 (Miss.1988); Johnson v. State, 529 So.2d 577, 583-84 (Miss.1988). Obviously, where a trial court offers clear factual findings relative to its decision to accept the State's reason[s] for peremptory strikes, the guesswork surrounding the trial court's ruling is eliminated upon appeal of a Batson issue to this Court.
This rule was handed down prospectively. In Bounds v. State, 688 So.2d 1362 (Miss. 1997), the Court found reversible error in part because of the trial court's failure to provide on the record factual determinations for its denial of Bounds's peremptory strikes.
¶ 7. Most recently, in Puckett v. State, 737 So.2d 322, 337 (Miss.1999), this Court found no reversible error on other issues, but remanded for a hearing solely on the Batson question because "the trial judge did not make on-the-record factual determinations and inquiry independently as required by Hatten regarding each peremptory challenge."
¶ 8. We say once again that the rule promulgated in Hatten will be enforced. The judgment of the Court of Appeals is reversed. The case is remanded to the Hinds County Circuit Court for a hearing and findings pursuant to Hatten and Batson.
¶ 9. REVERSED AND REMANDED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., AND McRAE, J., CONCUR. MILLS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SMITH, WALLER AND COBB, JJ.
MILLS, Justice, dissenting:
¶ 10. I respectfully dissent from the majority opinion. I would follow the same reasoning stated in my dissent in Berry v. State, 703 So.2d 269, 296-98 (Miss.1997). This Court is fully capable of balancing the Batson factors in many of the cases before us, including this one, and continued remand *1181 of such cases only wastes limited trial court resources and further delays justice.
¶ 11. Therefore, I respectfully dissent.
SMITH, WALLER AND COBB, JJ., JOIN THIS OPINION.
NOTES
[1] For a further description of the events and prior legal proceedings, see the opinion of the Court of Appeals, Johnson v. State, No. 96-KA-01136 COA (Miss.Ct.App.1998).
[2
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Filed 6/23/16 P. v. Montano CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068098
Plaintiff and Respondent,
v. (Super. Ct. No. SCN335761-3)
EFRAIN MONTANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Richard R.
Monroy, Judge. Affirmed.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Scott Taylor, Alana Butler and Meredith S. White, Deputy Attorneys General, for
Plaintiff and Respondent.
INTRODUCTION
A jury convicted Efrain Montano of two counts of robbery (Pen. Code, § 211).
The jury could not reach verdicts on allegations Montano was vicariously armed with a
firearm (Pen. Code, § 12022, subd. (a)(1)), and the court subsequently granted the
prosecution's motion to dismiss these allegations. However, the court found true an
allegation Montano had a prior prison commitment conviction (Pen. Code, § 667.5, subd.
(b)). The court sentenced Montano to four years in prison.
Montano appeals, contending the court prejudicially erred in instructing the jury
with a bracketed paragraph in the CALCRIM No. 400 aiding and abetting instruction
intended for use only when the prosecution is relying on the natural and probable
consequences doctrine, which the prosecution was not relying on in this case. We
conclude the error was harmless and affirm the judgment.
BACKGROUND
Two women were standing in a parking lot talking when a four-door silver sedan
drove in front of them, stopped for a few seconds, and then drove off. A few minutes
later, the sedan returned and stopped near them again. Montano got out of the sedan's left
rear passenger seat, an accomplice got out of the sedan's front passenger seat, and they
approached the two women. The accomplice pointed a gun at the women, told them not
to scream, and directed them to hand over their purses.1 Montano took one woman's
purse. The accomplice took the other woman's purse. Both women handed over their
1 Police never found the gun. Both women thought it may have been fake.
2
purses because they were afraid for their lives. Montano and the accomplice then got
back into the sedan and left.
The two women got in a car and tried following the sedan, but they were unable to
find it and returned to the parking lot. While they were attempting to follow the sedan,
one of the women reported the robbery to police. She described the sedan to a 911
operator, stating there was a football emblem on its gas tank door. The other woman
spoke with a police officer at the crime scene. She also described the sedan, indicating it
had no license plate, but there was a paper with red, white and black writing in the license
plate area.
A nearby patrol officer heard a radio call about the robbery, which included the
sedan's description. Shortly afterwards, the officer spotted a four-door silver sedan with a
football emblem on the gas tank door and paper license plates with red and white
lettering. The officer stopped the car and had its three occupants, including Montano and
his accomplice, step out of it. At a subsequent curbside lineup, one of the women
identified both Montano and his accomplice. The other women identified only Montano's
accomplice.
A field evidence technician searched the sedan and found one woman's purse and
both women's identification and credit cards. The field evidence technician found one
woman's wallet and the other woman's purse on the side of the road near the location of
the robbery.
3
DISCUSSION
I
A
1
The prosecution's theories of culpability were that Montano aided and abetted the
robbery of one woman and either directly perpetrated or aided and abetted the robbery of
the other woman. These theories required the court to instruct on aiding and abetting.
(People v. St. Martin (1970) 1 Cal.3d 524, 531 [a court has a sua sponte duty to instruct
the jury on the principles of law that are closely and openly connected to the facts of the
case and are necessary for the jury's understanding of the case].)
The CALCRIM No. 400 instruction on the general principles of aiding and
abetting provides: "A person may be guilty of a crime in two ways. One, he or she may
have directly committed the crime. I will call that person the perpetrator. Two, he or she
may have aided and abetted a perpetrator, who directly committed the crime. [¶] A
person is guilty of a crime whether he or she committed it personally or aided and abetted
the perpetrator. [¶] [Under some specific circumstances, if the evidence establishes
aiding and abetting of one crime, a person may also be found guilty of other crimes that
occurred during the commission of the first crime.]" (Italics added.)
The bench notes for the instruction state, "When the prosecution is relying on
aiding and abetting, give this instruction before other instructions on aiding and abetting
to introduce this theory of culpability to the jury. [¶] . . . [¶] If the prosecution is also
4
relying on the natural and probable consequences doctrine, the court should also instruct
with the last bracketed paragraph."2 (Bench Notes to CALCRIM No. 400 (2010 rev.).)
2
Although defense counsel objected to the court's use of the bracketed portion of
the instruction on the ground the prosecution was not relying on the natural and probable
consequences doctrine, the court overruled the objection stating it did not think the
bracketed portion of the instruction addressed the doctrine. Instead, the court thought the
bracketed portion of the instruction was factually applicable because one could argue "if
[Montano] was aiding and abetting one robbery, [he] might have actually committed
another robbery." Consistent with this view, the court recited the entire CALCRIM No.
400 instruction to the jury, including the bracketed paragraph.
2 "The natural and probable consequences route to a finding of criminal liability
operates as follows: ' "A person who knowingly aids and abets criminal conduct is guilty
of not only the intended crime [target offense] but also of any other crime the perpetrator
actually commits [nontarget offense] that is a natural and probable consequence of the
intended crime. The latter question is not whether the aider and abettor actually foresaw
the additional crime, but whether, judged objectively, it was reasonably foreseeable.
[Citation.]" [Citation.] Liability under the natural and probable consequences doctrine
"is measured by whether a reasonable person in the defendant's position would have or
should have known that the charged offense was a reasonably foreseeable consequence of
the act aided and abetted." ' [Citation.] In short, natural and probable consequences
liability for crimes occurs when the accused did not necessarily intend for the ultimate
offense to occur but was at least negligent (from the standard expected of a reasonable
person in the accused's position) about the possibility that committing the proximate
offense would precipitate the ultimate offense that actually occurred." (People v. Rivas
(2013) 214 Cal.App.4th 1410, 1431-1432 (Rivas).)
5
B
However, the court's aiding and abetting instructions did not end with CALCRIM
No. 400. The bench notes to CALCRIM No. 400 further explained, "If the prosecution's
theory is that the defendant intended to aid and abet the crime or crimes charged (target
crimes), give CALCRIM No. 401, Aiding and Abetting: Intended Crimes." (Bench
Notes to CALCRIM No. 400 (2010 rev.).) "If the prosecution's theory is that any of the
crimes charged were committed as a natural and probable consequence of the target
crime, CALCRIM No. 402 or 403 should also be given." (Bench Notes to CALCRIM
No. 400 (2010 rev.).)
Following the bench notes' guidance and based on the prosecution's theory
|
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10 N.Y.3d 952 (2008)
PATRICIA PREDMORE, Respondent,
v.
EJ CONSTRUCTION GROUP, INC., Appellant.
Court of Appeals of the State of New York.
Submitted June 9, 2008.
Decided July 1, 2008.
Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution.
|
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Case: 16-10806 Date Filed: 08/05/2020 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10806
Non-Argument Calendar
________________________
D.C. Docket No. 1:15-cr-20404-BB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW LEE PRYOR,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 5, 2020)
Before WILSON, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Matthew Pryor appeals his total 600-month sentence for assaulting a federal
officer with a deadly weapon in violation of 18 U.S.C. § 111(a) and (b); possessing
Case: 16-10806 Date Filed: 08/05/2020 Page: 2 of 9
and discharging a firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii); carjacking in violation of 18 U.S.C. § 2119(1); brandishing a
firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and
possessing a firearm as a felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). Pryor raises two arguments on appeal. First, he says he should benefit
from Section 403 of the First Step Act of 2018, which changed the sentencing
scheme for a defendant’s second § 924(c) conviction. Second, he requests remand
to the district court for reconsideration of his career offender status in light of
Amendment 798 to the Sentencing Guidelines. After careful review, we affirm
Pryor’s convictions and sentence and deny his request for remand to the district
court.
I.
Pryor pled guilty to all charges against him in October 2015. Before
sentencing, Pryor’s presentence investigation report (“PSR”) determined he was a
“career offender” under the U.S. Sentencing Guidelines. The PSR based Pryor’s
career offender status on three prior “violent” felony convictions: two Florida
convictions for burglary of a dwelling and one Florida conviction for resisting an
officer with violence.
The PSR also found Pryor was subject to two mandatory consecutive
sentences for his two § 924(c) convictions under 18 U.S.C. § 924(c)(1)(A) and (C).
2
Case: 16-10806 Date Filed: 08/05/2020 Page: 3 of 9
The first § 924(c) conviction prescribed a mandatory consecutive sentence of at
least 10 years under § 924(c)(1)(A)(iii), and the second § 924(c) conviction
mandated a 25-year consecutive sentence under § 924(c)(1)(C)(i).
Pryor objected to his career offender designation. He argued that Johnson v.
United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), which invalidated the residual
clause of the Armed Career Criminal Act, also applied to the similar residual
clause in the Sentencing Guidelines’ career offender provision at U.S.S.G.
§ 4B1.2(a)(2). Pryor argued his previous burglary convictions no longer qualified
as crimes of violence under § 4B1.2(a)(2), and thus he could not be adjudicated a
career offender. However, Pryor acknowledged that his claim was foreclosed by
United States v. Matchett, 802 F.3d 1185 (11th Cir. 2015), which held that Johnson
did not invalidate the career offender guideline’s residual clause. See id. at 1195–
96. Citing Matchett, the district court overruled Pryor’s objection to career
offender status.
Pryor was sentenced in January 2016. He received 180-month terms on both
the carjacking and assault charges and a 120-month term for the felon-in-
possession charge, all running concurrently. He also received a mandatory
consecutive term of 120-months for the first § 924(c) charge of carrying a firearm
during a crime of violence, and another mandatory consecutive term of 300-
months for the second § 924(c) charge. Pryor’s total sentence was 600-months
3
Case: 16-10806 Date Filed: 08/05/2020 Page: 4 of 9
incarceration. The government timely appealed this judgment, and Pryor cross-
appealed. The government dismissed its cross-appeal in December 2018.
While Pryor’s appeal was pending, Congress passed the First Step Act of
2018, Pub. L. 115-391. As relevant here, the Act revised the § 924(c) sentencing
scheme. It changed the language of § 924(c)(1)(C) to impose a consecutive
mandatory 25-year sentence for a second § 924(c) conviction only if a prior
§ 924(c) conviction was already finalized. Pub. L. 115-391, § 403. In simple
terms, the Act did away with the 25-year consecutive sentence requirement for
defendants charged with a first and second § 924(c) violation in the same
prosecution. See id.
II.
We review de novo the interpretation of a criminal statute. United States v.
Hernandez, 906 F.3d 1367, 1370 (11th Cir. 2018). Likewise, we review de novo
the district court’s determination of career offender status under the Sentencing
Guidelines. United States v. Whitson, 597 F.3d 1218, 1220 (11th Cir. 2010) (per
curiam).
III.
A.
Pryor argues he should benefit from the First Step Act and be resentenced
without a 25-year mandatory minimum sentence for his second § 924(c) violation.
4
Case: 16-10806 Date Filed: 08/05/2020 Page: 5 of 9
The government responds that the First Step Act does not apply to Pryor because
he was sentenced by the district court almost three years before the Act was passed
and the Act is not retroactive.
At the time Pryor was sentenced in January 2016, 18 U.S.C. § 924(c)(1)(C)
provided for a 25-year mandatory minimum consecutive sentence if a defendant
had “a second or subsequent conviction under [§ 924(c)].” § 924(c)(1)(C) (2012).
This subsection imposed the mandatory minimum on a defendant who was
convicted of two § 924(c) violations in a single prosecution, as Pryor was. See
Deal v. United States, 508 U.S. 129, 132, 113 S. Ct. 1993, 1996 (1993).
In December 2018, Congress enacted the First Step Act, Pub. L. No. 115-
391. Section 403 of the Act is titled “Clarification of Section 924(c) of Title 18,
United States Code.” Section 403 amended 18 U.S.C. § 924(c)(1)(C) to impose
the 25-year minimum sentence only if “a violation of this subsection [§ 924(c)]
occurs after a prior conviction under this subsection has become final.” See
§ 403(a) (emphasis added); 18 U.S.C. § 924(c)(1)(C). Under this new language,
Pryor’s two simultaneous § 924(c) convictions would not warrant a 25-year
mandatory minimum consecutive sentence.
Section 403(b) of the First Step Act explains that the Act applies to “Pending
Cases” for “any offense that was committed before the date of the Act, if a
sentence for the offense has not been imposed as of such date of enactment.” Pub.
5
Case: 16-10806 Date Filed: 08/05/2020 Page: 6 of 9
L. No. 115-391, § 403(b). Pryor’s crime was committed before the Act was passed
in 2018. Pryor acknowledges that he was sentenced nearly three years before the
Act was passed. Nevertheless, he says the First Step Act applies to his sentence.
He primarily reasons that his sentence has not been “finally imposed” within the
meaning of Section 403(b), because his direct appeal is still pending and his
sentence has not yet been
|
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|
495 So.2d 481 (1986)
Zel THOMAS
v.
STATE of Mississippi.
No. 56394.
Supreme Court of Mississippi.
September 24, 1986.
Lee Calvin Buckley, Holly Springs, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and DAN M. LEE and SULLIVAN, JJ.
DAN M. LEE, Justice, for the Court:
STATEMENT OF THE CASE
Zel Thomas appeals his conviction for simple assault on a police officer. Miss. Code Ann. § 93-3-7 (Supp. 1985). Thomas was tried October 25 and 26, 1984 and was *482 sentenced to five years in the custody of the Mississippi Department of Corrections, with two years suspended upon good behavior. His conviction followed an initial trial which ended in a mistrial.
Thomas appeals assigning two errors:
I.
THE TRIAL COURT ERRED IN ALLOWING, OVER OBJECTION, THE TESTIMONY OF THE STATE'S WITNESSES ROBERT E. NETHERCOTT, OFFICERS FLOYD JENKINS AND RAY RICHARDSON AS TO OTHER CRIMES (DISTURBING THE PEACE, ASSAULT), IF ANY OCCURRING AT THE RESIDENCE OF ROBERT E. NETHERCOTT, PRIOR TO THE OFFENSE FOR WHICH THE APPELLANT WAS INDICTED.
II.
THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE LAW.
STATEMENT OF THE FACTS
Zel Thomas had his annual back-to-school party July 1, 1983, on his mother's property in Nesbit, Mississippi. The party was outdoors on a baseball diamond and Thomas had live music with 150 to 200 people present. Robert E. Nethercott was a neighbor. He heard the music early in the evening and it was not objectionable at that time. However, after Nethercott went to bed the music seemed to get louder, preventing him from sleeping. Nethercott called the DeSoto County Sheriff's office to complain at least five times. After one of the calls, Sheriffs' deputies arrived at Nethercott's house with Zel Thomas. Nethercott said the initially cordial meeting rapidly deteriorated and Thomas became abusive, threatened Nethercott and had to be restrained by the deputies, who forced Thomas into the patrol car. Deputy Florida (Floyd) Jenkins stated it looked like Thomas "wanted to jump on [Nethercott]," and Jenkins' partner, Deputy Ray Richardson, grabbed Thomas by the arm and put Thomas in the patrol car to "keep them from fighting there."
Richardson and Jenkins returned Thomas to his mother's house. Thomas told the deputies to wait because he wanted to call the sheriff. Richardson and Jenkins waited at least 45 minutes, and when Thomas did not return, they left. Nethercott continued to hear the loud music, however, and went to a nearby grocery to meet Judge Perryman and several deputies where he swore out a complaint against Thomas for disturbing the peace. Judge Perryman issued a warrant for Thomas' arrest and several deputies went to the party to arrest Thomas. The circumstances surrounding Thomas' arrest created the only factual dispute in the case. The facts taken in the light most favorable to the state are these:
Deputies arrived and Jenkins and another deputy approached Thomas at the band stage and tried to serve the arrest warrant. Thomas didn't want to accept it but the deputies arrested him and placed him in the back seat of Jenkins' car. Thomas had been drinking. Jenkins had smelled alcohol on Thomas when they spoke with him earlier in the evening. Before Jenkins could drive off, someone asked if he could speak with Thomas about some financial arrangements for the party. Thomas had not been handcuffed because he had peaceably gone with police to the car. When Jenkins opened the door to allow Thomas to speak, Thomas jumped from the back seat, striking Jenkins in the head or face, bursting Jenkins' hat and knocking off Jenkins' glasses. Jenkins was not cut nor badly injured but Thomas stayed on top of Jenkins, hitting him and trying to grab Jenkins' gun. Jenkins tried to fend off Thomas by "tapping" him with his flashlight. Jenkins had trouble landing a blow but finally hit Thomas solidly. Thomas required 56 stitches on his forehead and over his eye as a result of the scuffle. Thomas fell to the ground where Deputy Danny Wilson was able to pin Thomas down and handcuff him. Thomas kicked Deputy Wilson in the back during this exchange. Thomas was taken later to the hospital for treatment. Deputy Donnie White transported *483 Thomas from the party and stated that Thomas threatened to kill the officers that "did him wrong." There was no evidence that Thomas had made good on his threat.
All of the state's evidence was corroborated in varying detail by testimony from at least one of the deputies at the party; Richardson, Wilson, Donnie White and former deputy Phillip Austein, although only Austein and Richardson corroborated Jenkins' account of who threw the first punch. In questioning Austein and Richardson about the first blow, defense counsel alluded to their testimony at the first trial being different, but their prior testimony was never presented to the jury.
The trial court noted that the situation could have been much worse had Thomas gained control of Jenkins' gun, and sentenced Thomas to the maximum sentence of five years with two years suspended upon good behavior.
I.
DID THE COURT ERR IN ALLOWING THE STATE TO INTRODUCE EVIDENCE OF OTHER CRIMES?
Thomas argues here that testimony concerning the arrest warrant signed against Thomas, and testimony concerning Thomas' confrontation with Nethercott was improperly admitted evidence of other crimes.
Our standard for addressing similar contentions is well settled and well known. In the oft-cited case of Gray v. State, 351 So.2d 1342 (Miss. 1977), this Court stated
It is well settled in this state that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. There are certain recognized exceptions to the rule. Proof of another crime is admissible where the offense charged and that offered to be proved are so connected as to constitute one transaction, where it is necessary to identify the defendant, where it is material to prove motive and there is an apparent relation or connection between the act proposed to be proved and that charged, where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge. See Smith v. State, 223 So.2d 657 (Miss. 1969), cert. denied, 397 U.S. 1030, 90 S.Ct. 1274, 24 L.Ed.2d 542 (1970); Cummings v. State, 219 So.2d 673 (Miss. 1969), cert. den. 397 U.S. 942, 90 S.Ct. 954, 25 L.Ed.2d 122 (1970).
351 So.2d at 1345. See also, Graves v. State, 492 So.2d 562 (Miss. 1986)); Trunell v. State, 487 So.2d 820 (Miss. 1986); Griffin v. State, 482 So.2d 233 (Miss. 1986); Minor v. State, 482 So.2d 1107 (Miss. 1986).
The state correctly points out that it must be allowed to show that the arrest was legal, for this Court recognizes a limited privilege to resist an unlawful arrest. See Watkins v. State, 350 So.2d 1384 (Miss. 1977). This makes evidence of the underlying arrest warrant something akin to evidence of a series of criminal acts which must be proved to make out the offense. Gray, 351 so.2d at 1345.
There appears to be no question that evidence of the complaint by Nethercott, the issuance of the arrest warrant and the arrest of Thomas, all fall within the exceptions of Watkins and Gray. Only the evidence of Thomas' aggression towards Nethercott requires discussion.
The state cites Gardner v. State, 368 So.2d 245 (Miss. 1979), as controlling on this point. Gardner involved an aggravated assault on a police officer by the defendant who fired at officers as they attempted to serve an arrest warrant. Police obtained the warrant after hearing shots being fired and witnessing the defendant run into his apartment carrying a gun. The warrant was ultimately held invalid and this Court found no error in allowing testimony that the defendant had indeed fired weapons earlier in the evening. The state cites the following language:
Gardner next argues the court erred in admitting testimony that he had been drinking and had discharged both a pistol and a shotgun several hours prior to the time he fired through the door. The *484 general rule is that proof of a crime distinct from that charged in the indictment should not be admitted into evidence against an accused. Cummings v. State, 219 So.2d 673 (Miss. 1969). There are, however, exceptions to this rule as noted in Floyd v. State, 166 Miss. 15, 148 So.2d 226 (1933), and which has been elaborated upon in Horton v. State, 288 So.2d 467 (Miss. 1974), as follows:
... [T]hat proof of such other crime is admissible if it sheds light upon the motive for the commission of the crime charged in the indictment. Tanner v. State, 216 Miss. 150, 61 So.2d 781 (1953). Proof that defendant is guilty of another crime is admissible when that fact (1) tends to show that the deceased officer had a right to arrest the appellant without a
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728 N.E.2d 77 (2000)
312 Ill. App.3d 823
245 Ill.Dec. 346
Clarence KASIN and Paul Kasin, Plaintiffs-Appellants,
v.
OSCO DRUG, INC., Defendant-Appellee.
No. 2-99-0356.
Appellate Court of Illinois, Second District.
April 12, 2000.
Charles A. Cohn, Erwin Cohn, Cohn & Cohn, Chicago, for Clarence Kasin and Paul Kasin.
Eric J. Parker, Ridge, Ridge & Lindsay, Waukegan, for Osco Drug Inc., Corp.
Presiding Justice BOWMAN delivered the opinion of the court:
Plaintiffs, Clarence and Paul Kasin, brought a negligence action in the circuit court of Lake County against defendants, Dr. James A. Gross and Osco Drug, Inc. (Osco). Subsequently, Dr. Gross was dismissed with prejudice. As to Osco, plaintiffs alleged that in dispensing the prescription drug Daypro Osco had negligently advised Clarence Kasin of the side effects of the drug when it failed to advise him "of symptoms to be aware of *78 and possible injury to kidneys and possible renal failure." As a result of taking the drug, Clarence Kasin suffered kidney failure, necessitating a kidney transplant from his brother, Paul Kasin.
Osco filed a motion for summary judgment, arguing that, pursuant to the "learned intermediary doctrine," it owed no duty to warn of side effects of a prescription drug. Additionally, Osco argued that its voluntary undertaking to warn of some side effects of a drug did not create a duty to warn of all side effects. The trial court granted Osco's motion and entered summary judgment in its favor. Plaintiffs filed a timely notice of appeal.
On appeal plaintiffs contend that the trial court erred in granting summary judgment in favor of Osco because (1) Osco's voluntary undertaking to provide an information or warning sheet with the prescription drug Daypro removed it from the protection of the learned intermediary doctrine and (2) by voluntarily undertaking to warn of certain side effects of Daypro, Osco became obligated to warn of all side effects of the drug.
On or about May 23, 1995, Clarence Kasin visited Dr. James Gross for treatment of a swollen right ankle. Kasin had never previously seen Dr. Gross. Prior to his visit to Dr. Gross, Kasin had had no health problems and had received no medical treatment for nearly 25 years except for flu in March 1995. As a result, Kasin had no medical history.
Dr. Gross prescribed Daypro to reduce the swelling in Kasin's ankle. Kasin had the prescription filled at the Osco pharmacy in Round Lake Beach. When he received his medication, he also received and read an information sheet about the medication. That sheet included the following information:
"COMMON USES OF THIS DRUG:
For arthritic conditions, pain, inflammation, fever.
HOW SHOULD I TAKE IT?
Take with food or antacid to reduce stomach upset. Avoid alcohol or aspirin. Follow doctor's instructions. Report other drugs you take/diseases you have.
ARE THERE ANY SIDE EFFECTS?
Very unlikely, but report: Eye/ear problems, change in urine color, bloody stools, difficulty breathing, mental changes."
No discussion occurred between Kasin and the pharmacist regarding the side effects or risks associated with Daypro. At his deposition, Kasin acknowledged that he relied on his doctor rather than on Osco to advise him of any risks associated with taking the drug.
Kasin took Daypro for 10 days. During the first nine days, he experienced no side effects and felt normal. On approximately the tenth day, Kasin noticed that he lacked energy and that his stools were black. Later that day, Kasin collapsed. He was taken to Harvard Community Hospital and then transported to Condell Medical Center, where he was diagnosed with three ulcers and renal failure. At Condell, Kasin learned for the first time that he had been born with only one functioning kidney, which had now failed. Kasin was placed on dialysis and, subsequently, underwent a kidney transplant in December 1995. Kasin's brother, Paul, provided the donated kidney.
On May 27, 1997, plaintiffs filed their negligence action. Subsequently, Osco filed its motion for summary judgment, which the trial court granted. This appeal ensued.
The purpose of summary judgment is not to try an issue of fact but to determine if one exists. Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 31, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992). Summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits presented, show that there is no genuine issue of material fact and the moving party is entitled *79 to judgment as a matter of law. Cramer v. Insurance Exchange Agency, 174 Ill.2d 513, 530, 221 Ill.Dec. 473, 675 N.E.2d 897 (1996). The existence of a duty owed by the defendant to a plaintiff is a question of law that may be determined on a motion for summary judgment. Jacob v. Greve, 251 Ill.App.3d 529, 534, 190 Ill.Dec. 671, 622 N.E.2d 81 (1993). This court's review of the trial court's ruling on a summary judgment is de novo. Country Mutual Insurance Co. v. Hagan, 298 Ill. App.3d 495, 500, 232 Ill.Dec. 433, 698 N.E.2d 271 (1998).
Plaintiffs first contend that Osco's voluntary undertaking to provide an information or a warning sheet with a prescription drug removed it from the protection of the "learned intermediary doctrine." The learned intermediary doctrine provides that manufacturers of prescription drugs have a duty to warn prescribing physicians of a drug's known dangerous propensities and that physicians, in turn, using their medical judgment, have a duty to convey the warnings to their patients. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 517, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). The doctrine precludes the imposition of a duty upon drug manufacturers to warn patients directly. Kirk, 117 Ill.2d at 519, 111 Ill.Dec. 944, 513 N.E.2d 387. The doctrine also has been applied to exempt pharmacies and pharmacists from giving warnings to patients. See Fakhouri v. Taylor, 248 Ill.App.3d 328, 187 Ill.Dec. 927, 618 N.E.2d 518 (1993); Leesley v. West, 165 Ill.App.3d 135, 116 Ill.Dec. 136, 518 N.E.2d 758 (1988).
Plaintiffs concede that absent Osco's voluntary undertaking it would have been shielded from liability by the learned intermediary doctrine but argue that because Osco voluntarily undertook to warn of some side effects of Daypro it was removed from the protection of the doctrine. Conversely, Osco maintains that pursuant to our supreme court's decision in Frye v. Medicare-Glaser Corp., 153 Ill.2d 26, 178 Ill.Dec. 763, 605 N.E.2d 557 (1992), it was protected by the doctrine.
In Frye a pharmacist voluntarily undertook to affix to a prescription drug a label warning that the medicine might cause drowsiness. The plaintiff sued both the pharmacy and the pharmacist under a voluntary undertaking theory of liability. The plaintiff acknowledged that neither the pharmacy nor the pharmacist had the duty to warn of the dangerous side effects of the medication but argued that once they undertook to warn of dangerous side effects they undertook to warn of all potential dangers involved in taking the drug. The supreme court rejected plaintiff's argument and found that the defendants' liability depended upon the extent of their undertaking.
Osco asserts that the court in Frye determined that a pharmacist was still protected by the learned intermediary doctrine even though the pharmacist offered a warning to a consumer of a drug's dangerous propensities. To support this assertion Osco relies on a statement made by the Frye court, in dicta. The statement followed the court's rejection of the plaintiff's argument that the pharmacist's placement of a "drowsy eye" label on the prescription drug container might mislead a consumer into believing that drowsiness was the only side effect of the drug. The court stated:
"In our opinion, consumers should principally look to their prescibing physician to convey the appropriate warnings regarding drugs, and it is the prescribing physician's duty to convey these warnings to patients." Frye, 153 Ill.2d at 34, 178 Ill.Dec. 763, 605 N.E.2d 557.
In so stating, the court made no reference to the learned intermediary doctrine. Given the context in which the statement was made, we are not persuaded that the statement indicated that the court had concluded that a pharmacist is protected by the learned intermediary doctrine even if the pharmacist voluntarily undertakes to warn a consumer of some side effects.
*80 Other portions of the court's opinion actually support an opposite conclusion. In particular, the court's explanation of the voluntary undertaking theory of liability and its citation of section 323 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 323 (1965)), which espouses that theory (see Frye, 153 Ill.2d at 32, 178 Ill.Dec. 763, 605
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DARRYL EUGENE WILLIAMSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:97-cr-00181-NCT-1)
Submitted: June 16, 2011 Decided: June 20, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Darryl Eugene Williamson, Appellant Pro Se. Robert Michael
Hamilton, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Darryl Eugene Williamson appeals the district court’s
judgment denying his 18 U.S.C. § 3582(c) (2006) motion for a
reduction in sentence. We have reviewed the record and find no
reversible error. Accordingly, we deny Williamson’s motion for
appointment of counsel and affirm for the reasons stated by the
district court. United States v. Williamson, No. 1:97-cr-00181-
NCT-1 (M.D.N.C. Feb. 7, 2011). We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
2
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16-3215-cv
Thomas v. N.Y.C. Dep’t of Educ.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the Thurgood Marshall United States Courthouse,
40 Foley Square, in the City of New York, on the 11th day of October, two
thousand seventeen.
PRESENT:
Peter W. Hall,
Christopher F. Droney,
Circuit Judges,
Laura Taylor Swain,*
District Judge.
_____________________________________
Michael P. Thomas,
Plaintiff - Appellant,
v. 16-3215-cv
New York City Department of Education, Richard J.
Condon, Special Commissioner of Investigation for the
* Judge Laura Taylor Swain, of the United States District Court for the Southern District of New
York, sitting by designation.
New York City School District, Gerald P. Conroy, Michael
Salek, Charles Kwan, Stephen Koss, David J. Jimenez,
Defendants - Appellees.
_____________________________________
FOR APPELLANT: MICHAEL P. THOMAS, pro se, New York, New
York.
FOR DEFENDANTS-APPELLEES: JOHN K. CROSSMAN, Zukerman Gore
Brandeis & Crossman, LLP, New York,
New York.
MEGAN E.K. MONTCALM, Assistant
Corporation Counsel (Fay S. Ng, Assistant
Corporation Counsel, on the brief), for
Zachary Carter, Corporation Counsel of the
City of New York, New York, New York.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Furman, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Appellant Michael Thomas, proceeding pro se, sued the New York City
Department of Education (“DOE”), officials from the DOE and the Manhattan Center
for Science of Mathematics (“MCSM”) (the school at which Thomas formerly taught),
and MCSM’s former PTA president, asserting a First Amendment retaliation claim
under 42 U.S.C. § 1983. Thomas appeals from the district court’s dismissal of his
complaint as barred by the applicable three-year statute of limitations, and its
determination that equitable tolling did not apply to toll the statute of limitations.
We assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal.
We review de novo a district court’s decision to grant a motion to dismiss,
including its interpretation and application of a statute of limitations. See City of
Pontiac Gen. Emps.’ Ret. Sys. v. MBIA, Inc., 637 F.3d 169, 173 (2d Cir. 2011)
(citations omitted). Where, as here, the district court has applied the correct legal
standards and based its decision on findings of fact that were supported by the
evidence, we review the denial of equitable tolling for abuse of discretion. Belot v.
Burge, 490 F.3d 201, 206 (2d Cir. 2007). To survive a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, a complaint must plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). A claim will have “facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
At oral argument Thomas conceded that his claim against Mr. Michael Salek
was untimely. Thomas also agreed with Defendants-Appellees that his claims
against David Jimenez and Charles Kwan, with respect to their allegedly false
allegations and request for a psychological evaluation, were untimely. Thomas also
conceded that his Monell claim against the New York City Department of Education
was untimely. We will consider Thomas’s remaining claims on appeal.
3
The district court properly dismissed Thomas’s complaint, and we affirm for
substantially the reasons stated by the district court in its August 31, 2016 decision.
As the district court reasoned, Thomas’s cause of action accrued, at the latest, in
2010, when he had a “complete and present cause of action” for First Amendment
retaliation. See Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015); see also Dorsett
v. Cty. of Nassau, 732 F.3d 157, 160 (2d Cir. 2013) (per curiam) (outlining the
elements for a First Amendment retaliation claim). Equitable tolling did not apply
because “accrual of a cause of action based on specific acts of which a plaintiff was
aware cannot be postponed, nor can a limitations period be tolled, simply be alleging
that the acts were taken pursuant to a conspiracy.” Pearl v. City of Long Beach, 296
F.3d 76, 87 (2d Cir. 2002) (citations omitted).
Because the district court properly dismissed Thomas’s complaint as untimely,
we need not consider whether his claims were meritorious or barred by the doctrine
of res judicata. The judgment of the district court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4
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878 F.2d 1439
U.S.v.Dunlap (William E.)
NO. 88-3196
United States Court of Appeals,Ninth Circuit.
JUL 07, 1989
1
Appeal From: W.D.Wash.
2
AFFIRMED.
|
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|
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 15, 2017
Plaintiff-Appellee,
v No. 331343
St. Clair Circuit Court
ROBERT ALEXANDER WORLEY, LC No. 15-001711-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and GLEICHER and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals his jury convictions of four counts of first-degree criminal sexual
conduct, MCL 750.520b(1)(b). The trial court sentenced defendant to a prison term of 15 to 30
years for each conviction, to be served concurrently. We affirm.
The 43-year-old defendant was convicted of sexually abusing JV, the daughter of his
former live-in girlfriend, in their family home in St. Clair County. Defendant began dating JV’s
mother in 1992, when JV was two years old. Defendant and JV’s mother thereafter had two
children of their own. JV, aged 25 at the time of trial, testified that from ages 11 to 19, defendant
continuously engaged her in sexual acts. JV testified that defendant penetrated her vagina with
his penis and engaged her in oral and anal sex. The sexual assaults began in 2001, when the
family lived in Oklahoma. The four charged offenses occurred in October 2005 through June
2006, when then 15-year-old JV and her family lived in St. Clair County. In June 2006,
defendant and JV’s mother separated, and JV, and her two younger half-siblings, moved with
defendant from St. Clair County.
At age 16, JV became pregnant by defendant, and she gave birth to a son in March 2007.
By this time, defendant, JV, and other members of defendant’s family had moved to Tennessee.
At age 18, JV again became pregnant by defendant, and their second child was born in April
2009. In 2010, JV and her two children returned to Michigan. JV ultimately disclosed the
incidents to a counselor and then made a complaint to the St. Clair police in March 2011.
Defendant was not arrested until 2015. In the interim, defendant and JV had some
communications, and JV allowed defendant to take their children to Tennessee in 2014. The
defense theory at trial was that defendant did not do anything inappropriate and that JV’s
testimony was not credible. At trial, defendant maintained that he first had sex with JV when she
-1-
was 16 years old, which was consensual, and did not engage in any other sexual acts with her
until they began a consensual relationship when she was 18 years old.
I. PREARREST DELAY
Defendant first argues that his right to due process was violated because the four-year
delay between the reporting of the offenses in 2011, and his arrest in 2015, caused substantial
prejudice to his ability to defend himself. He argues that the trial court erred in denying his
motion to dismiss based on this issue.1 “A prearrest delay that causes substantial prejudice to a
defendant’s right to a fair trial and that was used to gain tactical advantage violates the
constitutional right to due process.” People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169
(2014). “Defendant must present evidence of actual and substantial prejudice, not mere
speculation.” Id. To be substantial, the prejudice to the defendant must have meaningfully
impaired his ability to defend against the charges such that the outcome of the proceeding was
likely affected. People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009). Mere
speculation that the delay caused lost memories, witnesses, or evidence does not establish actual
and substantial prejudice. Woolfolk, 304 Mich App at 454. If a defendant establishes actual and
substantial prejudice, the prosecution then bears the burden of establishing that the reason for the
delay was sufficient to justify that prejudice. Patton, 285 Mich App at 237.
Defendant claims that he was prejudiced by the four-year delay because he lost text
messages, cards, and “love letters” from JV that could have undermined her claim that she feared
defendant. Initially, defendant contends that those communications were made between 2010
and 2015. The four-year delay would not have affected his efforts to retrieve any of the later
communications. More significantly, defendant has not demonstrated substantial prejudice. The
unavailability of evidence alone is insufficient to show that defendant suffered actual and
substantial prejudice, Woolfolk, 304 Mich App at 454, and defendant has made no showing that
evidence that JV communicated favorably with him between 2010 and 2015 would have
exonerated him. Indeed, the defense used other means to argue that JV was not fearful of
defendant, including the fact that she chose to live with him over her mother, began a
relationship with him after she turned 18, allowed him to take physical custody of their children,
and gave him and his wife tattoos. The loss of the letters, assuming they existed, is not sufficient
to satisfy the actual and substantial prejudice requirement.
Defendant also claims that he was prejudiced by the delay because of the death of his
sister, Cynthia McElhaney. Defendant indicates that Cynthia, who lived in the same household
as defendant and JV at certain periods, would have “testified regarding the complainant’s
veracity.” Preliminarily, defendant fails to indicate when Cynthia died. Moreover, Cynthia was
1
Whether a prearrest delay violated a defendant’s right to due process is reviewed de novo.
People v Reid (On Remand), 292 Mich App 508, 511; 810 NW2d 391 (2011). We review a trial
court’s ruling regarding a motion to dismiss for an abuse of discretion. People v Lewis, 302
Mich App 338, 341; 839 NW2d 37 (2013). An abuse of discretion occurs when the trial court’s
decision falls outside the range of reasonable and principled outcomes. Id. (quotations and
citation omitted).
-2-
only one of several relatives who lived in the same household. The defense presented several of
the other live-in relatives, including a different sister, an adult nephew, and defendant’s daughter,
who testified about their observations and opinions that JV was not truthful. The record fails to
disclose that Cynthia’s unavailability impaired defendant’s ability to defend against the charges
to an extent that the outcome of the proceeding was likely affected.
Defendant lastly argues that he was prejudiced by the delay because of his own inability
“to remember the names of potential witnesses who knew [JV] during the relevant times at issue
and who could offer testimony regarding the veracity of [JV].” But again, general allegations of
prejudice caused by delay, such as the unspecified loss of memory, are insufficient to show that a
defense was affected. Woolfolk, 304 Mich App at 454. Defendant has failed to show that his
alleged loss of memory resulted in any meaningful impairment of his defense. The trial court did
not abuse its discretion in denying defendant’s motion to dismiss based on the prearrest delay.
II. OTHER ACTS EVIDENCE
Defendant argues that the trial court erred by admitting evidence of other uncharged acts
that occurred when JV was between 11 and 15 years old, contrary to MCL 768.27a and MRE
404(b).2 MCL 768.27a provides that “in a criminal case in which the defendant is accused of
committing a listed offense against a minor, evidence that the defendant committed another listed
offense against a minor is admissible and may be considered for its bearing on any matter to
which it is relevant.” In this narrow context, evidence of a defendant’s propensity to commit a
crime is permitted, so long as it does not violate MRE 403. People v Watkins, 491 Mich 450,
470, 481-483; 818 NW2d 296 (2012); MRE 401.
MRE 403, excludes relevant evidence if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
MRE 403; Watkins, 491 Mich at 481. Unfair prejudice exists where there is “a danger that
marginally probative evidence will be given undue or pre-emptive weight by the jury” or “it
would be inequitable to allow the proponent of the evidence to use it.” People v Mills, 450 Mich
61, 75-76; 537 NW2d 909 (1995), mod 450 Mich 1212 (1995); People v McGuffey, 251 Mich
App 155, 163; 649 NW2d 801 (2002). When applying MRE 403 to evidence in the context of
MCL 768.27a, “courts must weigh the propensity inference in favor of the evidence’s probative
value rather than its prejudicial effect.” Watkins, 491 Mich at 487. Courts should consider the
following factors when deciding whether to exclude other-acts evidence under MRE 403 as
being overly prejudicial:
2
The trial court ruled that the other acts evidence
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371 F.Supp. 437 (1974)
CENTRAL GMC, INC.
v.
E. T. & T. LEASING, INC.
Civ. No. 73-880-K.
United States District Court, D. Maryland.
January 10, 1974.
Charles Cahn, II, Baltimore, Md., for plaintiff.
Martin J. Alperstein, Baltimore, Md., for defendant.
MEMORANDUM AND ORDER
FRANK A. KAUFMAN, District Judge.
On May 11, 1973, plaintiff, a Maryland corporation, instituted suit for breach of contract against defendant, also a Maryland corporation, in the United States District Court for the District of Columbia, seeking damages in the amount of $86,245.56. From February 1, 1971 until July 31, 1973, the United States District Court for the District of Columbia had jurisdictionpursuant to D.C.Code § 11-501 which provides in relevant part:
In addition to its jurisdiction as a United States district court and any other jurisdiction conferred on it by law, the United States District Court for the District of Columbia has jurisdiction of the following:
* * * * * *
(4) Any civil action (other than a matter over which the Superior Court of the District of Columbia has jurisdiction under paragraph (3) or (4) of section 11-921(a) ) begun in the court during the thirty-month period beginning on such effective date wherein the amount in controversy exceeds $50,000.
On July 31, 1973, the District Court for the District of Columbia ordered, inter alia, transfer of this case to the United States District Court for the District of Maryland.
Plaintiff does not allege and there does not exist jurisdiction in this case under 28 U.S.C. § 1331. Plaintiff does allege jurisdiction under 28 U.S.C. § 1332 but such allegation would appear completely erroneous in view of the agreement between the parties that both of them are Maryland corporations. The fact that the principal offices of the *438 parties may be in different states of course does not provide a basis for diversity jurisdiction under Section 1332 when both have been incorporated in the same jurisdiction. C. Wright, Law of Federal Courts § 27 (2d ed. 1970). Nor does any other federal jurisdiction exist in this case in this Court which the Congress has created pursuant to Article III of the Federal Constitution. The jurisdiction conferred by the Congress upon the United States District Court for the District of Columbia does not in any way establish any additional jurisdiction in this Court, and the parties may not do so by virtue of mere change in venue. Section 1404(a) of 28 U.S.C. permits change of venue only to a court in which the suit "might originally have been brought." Since this case could not have been brought in this Court, the District Court for the District of Columbia had no power to transfer this case to this Court under Section 1404(a). Rice v. Disabled American Veterans, 295 F.Supp. 131, 135 (D.D.C., 1968); Russell v. Cunningham, 191 F.Supp. 82 (D.Guam 1961). In Rice, Judge Robinson concluded that "the District Court for the District of Columbia has only local jurisdiction in this case and not federal jurisdiction. Thus, the only federal district court in which the action might have been brought is in the District of Columbia." 295 F.Supp. supra at 132.
* * * The rationale is undoubtedly that since the relevant federal venue statute provides that an action may be transferred only to a district "where it might have been brought," 28 U.S. C. § 1404(a), and since actions brought only under the local jurisdictional statute could not have been brought in any federal district court other than the one in the District of Columbia, there is no federal district court in the country to which this action might be transferred under 28 U.S.C., Section 1404(a).
295 F.Supp. supra at 135. Accordingly, no subject matter jurisdiction exists in this Court.
It may be that this Court, lacking subject matter jurisdiction, may well not have the power to transfer this case back to the United States District Court for the District of Columbia.[1]
Under the circumstances, in order that plaintiff may have opportunity to find a forum for this suit, this Court will not enter an order of dismissal for lack of jurisdiction for 30 days, so that plaintiff may seek, pursuant to Fed.R. Civ.P. 60(b), an order from the District Court for the District of Columbia rescinding, nunc pro tunc, as of July 31, 1973 a date when that Court had jurisdiction over this case [2] its 1404(a) transfer Order of that date. Should that Court so rescind its said Order, such action would mean that this case no longer will be pending in this Court. For that reason, this Court at that time would instruct the Clerk of this Court to close this file in this case in this Court.
It is so ordered, this 10th day of January, 1974.[*]
NOTES
[1] No federal statute would appear specifically to confer authority upon this Court to transfer this case back to that transferor court. Neither 28 U.S.C. § 1406(a) nor 28 U.S.C. § 1406(c) is applicable. 28 U.S.C. § 1447, however, confers remand authority after removal from a state court. While that statute makes no reference to a remand after a transfer under 28 U.S.C. § 1404(a), it is to be noted that the transferor Court itself had only "state-type" jurisdiction in this case.
[2] Cf. Drabik v. Murphy, 246 F.2d 408, 410 (2d Cir. 1957) (Hand, J.).
[*] On January 21, 1974, the United States District Court for the District of Columbia rescinded, nunc pro tunc, as of July 31, 1973, its earlier transfer Order of that latter date. Accordingly, on January 23, 1974, this Court directed its Clerk to close the file in this case.
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446 F.Supp. 733 (1978)
QUICK SHOP MARKETS, INC., Plaintiff,
v.
RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants.
Wanda YOUNG et al., Plaintiffs,
v.
RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants.
Nos. 75-659C(3) and 75-605C(3).
United States District Court, E. D. Missouri, E. D.
March 20, 1978.
*734 Sidney Fortus, Fortus & Anderson, Clayton, Mo., for plaintiff in No. 75-605C(3).
C. A. Kothe, Jerry R. Nichols, Richard L. Barnes, Kothe, Nichols & Wolfe, Inc., Tulsa, Okl., John F. McCartney, Hirsch & McCartney, St. Louis, Mo., for plaintiff in No. 75-659C(3).
Clyde E. Craig and Harry H. Craig, St. Louis, Mo., for defendants Dorsey and Joint Counsel of Teamsters # 13.
John H. Goffstein, Bartley Goffstein, Bollato & Lange, St. Louis, Mo., for defendants Local 655 and Jack Valenti.
Jerome A. Diekemper, Bartley, Goffstein, Bollato & Lange, St. Louis, Mo., for defendants Retail Clerks International Assn., James T. Housewright and Retail Store Employees Union Local # 655.
Harry H. Craig, Wiley, Craig, Armbruster, Wilburn & Mills, St. Louis, Mo., and Robert M. Baptiste, Washington, D. C., for defendants Frank E. Fitzsimmons and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
MEMORANDUM
NANGLE, District Judge.
Plaintiff Quick Shop Markets, Inc. brought this suit pursuant to 29 U.S.C. § 187, seeking damages for an alleged violation of § 8(b)(4) of the Labor Management Relations Act, 29 U.S.C. § 158. Plaintiff Wanda Young and twenty-seven other individuals who are franchisees of plaintiff Quick Shop Markets, Inc. brought similar suit. These causes were consolidated by order of this Court dated March 25, 1976. By agreement of the parties, the trial herein was bifurcated; evidence was adduced only on the issue of liability and the out-of-pocket losses incurred by plaintiff-franchisees. The sole issue before the Court at this time is liability.
This case was tried before the Court without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, the stipulations of the parties and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure:
FINDINGS OF FACT
1) Plaintiff Quick Shop Markets, Inc. is a corporation organized and existing pursuant to the laws of the state of Missouri. It is engaged in the business of selling food and grocery related products to the public. The remaining plaintiffs are all sole proprietorships with their principal place of business in the state of Missouri, engaging in the retail sale of consumer merchandise. These plaintiffs are all franchisees of plaintiff Quick Shop Markets, Inc. [hereinafter "QSM"]. Defendants Retail Clerks International Association and Retail Store Employees Union, Local 655 are unincorporated associations and labor organizations within the meaning of 29 U.S.C. § 152(5).
2) Since November 12, 1971, defendant Retail Store Employees Union Local 655 [hereinafter "Local 655"] has been the collective bargaining representative of QSM, as certified by the National Labor Relations Board, in a single bargaining unit consisting of:
All employees of the Employer [Quick Shop Markets, Inc.] employed at its retail stores located in the Metropolitan St. Louis area of St. Louis City, St. Louis County, Jefferson County, and St. Charles County, Missouri, including warehousemen, but EXCLUDING store managers, assistant store managers, temporary summer employees, office clerical and professional employees, guards and supervisors as defined in the Act.
3) QSM refused Local 655's demand for negotiations following certification and an unfair labor practice charge, alleging an unlawful refusal to bargain, was filed by Local 655 on January 8, 1973 with the National *735 Labor Relations Board. On July 23, 1973, the Board issued a Decision and Order granting summary judgment against QSM, and ordering it to cease its refusal to bargain. Upon QSM's refusal to comply, the Board petitioned the United States Court of Appeals for the Eighth Circuit for an Order of Enforcement. Said order was issued on March 15, 1974 and a petition for a writ of certiorari was denied by the United States Supreme Court on November 25, 1974.
4) Thereafter, representatives of QSM and Local 655 met for the purposes of negotiating the terms of a collective bargaining agreement. Meetings were held on January 27, 1975; February 17, 1975; April 1, 1975; June 12, 1975; June 26, 1975; September 2, 1975; and October 7, 1975. At the first meeting on January 27, 1975, the attorney for QSM announced that some stores in the area had been franchised and that he did not represent the franchised stores. A copy of the franchise agreement and a list of the franchised stores were requested by Local 655. The list of franchised stores was provided at the February 27, 1975 meeting. An unexecuted copy of the Franchise Agreement form was provided at the April 1, 1975 meeting.
5) QSM commenced franchising stores in November, 1972. One store was franchised in 1972. Three were franchised in 1973. Ten stores were franchised in 1974. Thirty stores were franchised in 1975. The evidence failed to establish the franchising commenced as a result of QSM unionization. Although some evidence was presented tending to indicate that QSM commenced franchising as a result of unionization, the Court finds that the credible evidence totally fails to establish the same.
6) The franchise agreements between QSM and plaintiff-franchisees provides that the franchisees are independent contractors of QSM. The franchisees exercise sole control over their employees, including the right to hire, fire, discipline, compensate and schedule work. The franchisees pay the cost of the state unemployment insurance, social security compensation and workmen's compensation insurance. In consideration of the lease, trademark license and services provided by QSM, the franchisees agree to pay QSM 55% of gross profits realized each calendar quarter. QSM charges the franchisees certain fixed costs including cost of plans, specifications, selection of location and supervision of lease arrangement, initial cash register fund and costs of opening inventory. The franchisees paid from $1,000 to $10,000 in cash to QSM for such costs and tendered promissory notes for the remainder. Franchisees were required to obtain all licenses and business permits, and to pay sales and business taxes and all taxes on inventory and personal property. Under the agreement franchisees are not required to purchase from vendors recommended by QSM, to purchase only that merchandise suggested by QSM, or to sell at prices suggested by QSM. In some cases, franchisee stores are in competition with QSM stores.
7) The franchise agreement establishes an "Owners Working Fund", maintained by QSM, for each franchisee. The fund is debited with the unpaid balance of the franchisee's initial costs and expenses subsequently incurred for the purchase of merchandise and operating costs. The fund is credited with cash receipts deposited on a daily basis by the franchisees. A bookkeeping service is furnished by QSM for the franchisees. On a semi-monthly basis, QSM remits to the franchisees a draw on anticipated profits, debiting the "Owners Working Fund."
8) The franchise agreement may be terminated at any time by the franchisee upon 48 hours' notice. QSM may terminate without cause upon 30 days' notice, or upon 48 hours notice if the franchisee's net worth falls below $3,000, the franchisee fails to make required deposits and reports, bankruptcy is filed, or the franchisee abandons the business.
9) At the commencement of each franchise, most of plaintiff-franchisees were requested by QSM not to initially hire more than 50% of the employees formerly employed by QSM. Most of the franchisees were not sure of the reasons for this request: *736 some thought it was because QSM needed these employees elsewhere; some thought it had something to do with a labor dispute or union. Any employees who went to work for the franchisees first terminated their employment with QSM. The franchisees have not hired a majority of the employees in the QSM certified collective bargaining unit, either collectively or cumulatively.
10) After the hiring of the initial complement of employees, each franchisee hired and fired employees without the approval or authorization of QSM. Each received a manual but was free to depart from its terms, provided that such departure did not violate the franchise agreement. QSM supervisors would visit with each franchisee a few times per week, for short periods of time. These supervisors often made suggestions but the franchisees were free to, and did, ignore the suggestions. Most but not all of the franchisees participated in QSM advertisements; they were not, however, required to do so. QSM suggested prices for merchandise but the franchisees were free to, and did, modify these prices. QSM provided a list of suppliers but the franchisees were free to obtain supplies from suppliers not on the list. No franchisee made arrangements with QSM to do
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774 F.2d 1161
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Thomas Barwin, Plaintiff-Appellant,v.Leo LaFlamme, Defendant-Appellee.
No. 85-1109
United States Court of Appeals, Sixth Circuit.
9/27/85
E.D.Mich. 772 F.2d 905
VACATED AND REMANDED
ORDER
BEFORE: MERRITT, MARTIN and CONTIE, Circuit Judges.
1
On August 26, 1985, we entered an order dismissing plaintiff's appeal pursuant to Rule 9(d)(1), Rules of the Sixth Circuit, on the ground that the order appealed from was not final. For the reasons that follow, we vacate our order of August 26, 1985, and remand the case to the district court for proceedings consistent with this opinion.
2
The record reveals that on April 12, 1984, the district court dismissed the case without prejudice due to plaintiff's failure to appear for a scheduling conference. On April 23, plaintiff moved for reinstatement. The district court docket sheet indicates that a hearing on the motion to reinstate was held on June 7, and that the motion was granted that same day. On December 7, plaintiff moved the district court to enter an order of reinstatement, claiming that 'his office inadvertently neglected to present orders for entry.' On January 7, 1985, the district court denied plaintiff's motion.
3
Subsequent to our order of August 26, Judge Gilmore indicated, by letter to the court, that, although he had orally ordered the case reinstated, his order of dismissal of April 12 was final in light of plaintiff's failure to present a timely order of reinstatement.
4
This case admittedly has had a 'very checkered career,' and we perceive that the most prudent course is to remand the case to the district court to clarify the docket entries in this case and the effect of its April order of dismissal and its subsequent granting and denial of reinstatement.
5
Accordingly, it is hereby ordered that our order of August 26, 1985 dismissing this appeal be VACATED, and the case REMANDED to the district court for proceedings consistent with this opinion.
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