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[ "195 P.3d 65", "345 Or. 318" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n195 P.3d 65 (2008)\n345 Or. 318\nSTATE\nv.\nMcCROREY.\nNo. (S056324).\nSupreme Court of Oregon.\nOctober 3, 2008.\nPetition for review denied.\n", "ocr": false, "opinion_id": 2636155 } ]

[ "475 F.2d 1397" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/475/475.F2d.1397.72-1958.html", "author_id": null, "opinion_text": "475 F.2d 1397\n U. S.v.McCrae\n 72-1958\n UNITED STATES COURT OF APPEALS Third Circuit\n 3/21/73\n E.D.Pa., 344 F.Supp. 942\n AFFIRMED\n ", "ocr": false, "opinion_id": 309846 } ]

[ "357 F. App'x 565" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\08/08-41224.0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n December 14, 2009\n No. 08-41224\n Summary Calendar Charles R. Fulbruge III\n Clerk\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee\n\nv.\n\nMICHAEL CHARLES MURRAY,\n\n Defendant-Appellant\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas, Beaumont Division\n USDC No. 1:07-CR-232\n\n\nBefore JOLLY, WIENER, and ELROD, Circuit Judges.\nPER CURIAM:*\n The Federal Public Defender appointed to represent Michael Charles\nMurray has moved for leave to withdraw and has filed a brief in accordance with\nAnders v. California, 386 U.S. 738 (1967). Murray has filed a response. We note\nthat after Murray filed his notice of appeal, the district court sua sponte\namended its judgment pursuant to Fed. R. Crim. P. 35(b), reducing Murray’s\nsentence from 262 months of imprisonment to 174. The district court, however,\nlacked jurisdiction to grant Rule 35(b) relief once Murray’s notice of appeal had\n\n *\n Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not\nbe published and is not precedent except under the limited circumstances set forth in 5th Cir.\nR. 47.5.4.\n\f No. 08-41224\n\nbeen filed. See United States v. Hayes, 589 F.2d 811, 827 n. 8 (5th Cir.1979).\nThe district court’s AMENDED JUDGMENT is thus VOIDED, and the original\njudgment remains in effect for purposes of this appeal.\n The record is insufficiently developed to allow consideration at this time\nof Murray’s claim(s) of ineffective assistance of counsel; such claim(s) generally\n“cannot be resolved on direct appeal when [they have] not been raised before the\ndistrict court since no opportunity existed to develop the record on the merits of\nthe allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006)\n(internal quotation marks and citation omitted). Our independent review of the\nrecord, counsel’s brief, and Murray’s response discloses no nonfrivolous issue for\nappeal. Accordingly, the motion for leave to withdraw is GRANTED, counsel is\nexcused from further responsibilities herein, and the APPEAL IS DISMISSED.\nSee 5th Cir. R. 42.2.\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 69914 } ]

[ "2014 Ohio 2137", "140 Ohio St. 3d 2" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": 9, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2014/2014-ohio-2137.pdf", "author_id": null, "opinion_text": "[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as\nDisciplinary Counsel v. Jacobs, Slip Opinion No. 2014-Ohio-2137.]\n\n\n\n\n NOTICE\n This slip opinion is subject to formal revision before it is published in\n an advance sheet of the Ohio Official Reports. Readers are requested\n to promptly notify the Reporter of Decisions, Supreme Court of Ohio,\n 65 South Front Street, Columbus, Ohio 43215, of any typographical or\n other formal errors in the opinion, in order that corrections may be\n made before the opinion is published.\n\n\n SLIP OPINION NO. 2014-OHIO-2137\n DISCIPLINARY COUNSEL v. JACOBS.\n [Until this opinion appears in the Ohio Official Reports advance sheets,\n it may be cited as Disciplinary Counsel v. Jacobs,\n Slip Opinion No. 2014-Ohio-2137.]\nAttorneys—Misconduct—Felony conviction for filing false tax return—Two-year\n suspension with credit for time served under interim felony suspension.\n (No. 2013-1230—Submitted October 9, 2013—Decided May 27, 2014.)\n ON CERTIFIED REPORT by the Board of Commissioners on Grievances and\n Discipline of the Supreme Court, No. 12-074.\n ____________________\n Per Curiam.\n {¶ 1} Respondent, Leslie William Jacobs of Gates Mills, Ohio, Attorney\nRegistration No. 0020387, was admitted to the practice of law in Ohio in 1968.\nOn April 3, 2012, we suspended his license to practice law on an interim basis\nfollowing his January 17, 2012 felony conviction for filing a false tax return. In\nre Jacobs, 131 Ohio St.3d 1495, 2012-Ohio-1485, 964 N.E.2d 436.\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 2} On October 8, 2012, relator, disciplinary counsel, filed a complaint\ncharging Jacobs with violations of the Code of Professional Responsibility and\nthe Rules of Professional Conduct arising from the conduct that led to his felony\nconviction.1 The parties submitted stipulations of fact and misconduct and a\nrecommendation that Jacobs be suspended from the practice of law for two years\nwith credit for time served under the interim suspension.\n {¶ 3} A panel of the Board of Commissioners on Grievances and\nDiscipline conducted a hearing and adopted the parties’ stipulations of fact and\nmisconduct and agreed with the recommended sanction. The board adopted the\npanel’s report in its entirety, and no objections have been filed.\n {¶ 4} We adopt the board’s findings of fact and misconduct and\nconclude that a two-year suspension from the practice of law with credit for time\nserved under the interim suspension is the appropriate sanction in this case.\n Misconduct\n {¶ 5} For the tax years 2004 through 2007, Jacobs, a senior partner with\na large law firm, prepared federal income tax returns for himself and his wife\nwithout the assistance of a professional tax preparer. During 2004 and through\n2007, he incurred substantial business expenses for which he received\nreimbursement from his firm, including travel expenses on client matters, costs of\nattending meetings and events for bar associations and other professional and\ncivic organizations, seminar costs, and business entertainment expenses. Under\nhis firm’s procedures, he submitted detailed expense-reimbursement vouchers,\nsupported by receipts, for items that he personally paid for, usually by charges to\nhis personal credit card. The firm then issued reimbursement checks payable to\nJacobs that he deposited into his personal bank account.\n\n1\n Relator charged Jacobs with misconduct under the applicable Disciplinary Rules for acts\noccurring before February 1, 2007, the effective date of the Rules of Professional Conduct, which\nsuperseded the Disciplinary Rules of the Code of Professional Responsibility.\n\n\n\n\n 2\n\f January Term, 2014\n\n\n\n\n {¶ 6} Each year, Jacobs received an IRS Schedule K-1 from the law\nfirm, which reported his ordinary business income from the firm and other items.\nOn each of his income tax returns for 2004 through 2007, Jacobs included a\nSchedule E on which he reported his partnership income. On that form he also\nlisted the amount of ordinary business income from his Schedule K-1 and\nsubtracted an amount that he claimed as deductions for business expenses,\nresulting in a net amount of partnership income that he then reported on his tax\nreturn. Each year in that period, Jacobs knew that the amount that he claimed as\nbusiness-expense deductions was inflated, which resulted in understating his\nincome, which in turn falsely reduced his tax obligation.\n {¶ 7} He falsely inflated his business-expense deductions in a number of\nways. For the years 2004 through 2006, he inflated his deductions by reporting\nbusiness expenses for which he had received reimbursement from the law firm\nand thus had no net out-of-pocket expense. He deducted such reimbursed\nexpenses both for travel on client matters, for which the firm sought\nreimbursement from the clients, and for nonclient expenses borne by the law firm.\n {¶ 8} Jacobs also claimed deductions for nondeductible dues for personal\nmemberships at private clubs and charges for personal meals and other personal\nuses of the clubs. He deducted meal and entertainment expenses at 100 percent of\nthe cost, even though he knew that those expenses, even when properly deducted,\nwere deductible at only 50 percent of the cost.\n {¶ 9} Jacobs leased one or two automobiles per year that he used to\ncommute to his office and to drive for both business and personal purposes. He\nimproperly deducted all those vehicle expenses even though he made personal\nand nondeductible use of the cars and also received reimbursement from his firm\nfor the business miles he traveled.\n {¶ 10} Jacobs testified that he engaged in this misconduct because of his\nfrustrations with the federal government for falsely advising that his father died in\n\n\n\n 3\n\f SUPREME COURT OF OHIO\n\n\n\n\na plane crash in World War II and concealing the fact that he had been executed\nin a Japanese prisoner-of-war camp. He also was angry at the IRS for its alleged\nharassment of his mother—up to her death—about her failure to timely withdraw\nfunds from her retirement account.\n {¶ 11} In February 2008, an IRS revenue agent notified Jacobs and his\nwife that their 2005 income tax return was under audit. Jacobs met with the agent\nand an IRS supervisor later that month, provided the requested records, and was\ninterviewed. Later in 2008, the revenue agent expanded the audit to include 2004.\nIn July 2008, Jacobs met with the agent and a supervisor and provided the\nrequested 2004 records and was interviewed about his 2005 taxes. Following that\nmeeting, Jacobs faxed a written statement to the agent, discussing some of the\nissues addressed in that meeting. In July 2009, the IRS advised Jacobs that he\nwas under a criminal investigation for his 2004 through 2007 income taxes, and a\nspecial agent and revenue agent interviewed him.\n {¶ 12} During the two audit meetings, in the faxed letter, and during the\ncriminal-investigation interview, Jacobs made false statements regarding the\nitems for which he claimed inflated deductions. On November 2, 2011, Jacobs\npled guilty to a federal information charging him with one count of making and\nsubscribing false tax returns in violation of 26 U.S.C. 7206(1) for the years 2004\nthrough 2007. In the false returns for those four years, Jacobs understated his\ntaxable income by $256,380 and overstated his expenses by $253,256, resulting in\nunpaid taxes of $75,385. He paid this shortfall in full on January 17, 2012, the\nday he was sentenced.\n {¶ 13} Jacobs was sentenced to serve 12 months and one day of\nincarceration and one year of supervised release, including four months minus one\nday of home confinement, and to pay a fine and special assessment totaling\n$10,100. He paid the special assessment of $100 on the day he was sentenced and\nthe $10,000 fine on February 19, 2012. Jacobs completed his term of\n\n\n\n\n 4\n\f January Term, 2014\n\n\n\n\nimprisonment, less good-time credit, on January 17, 2013, his term of home\nconfinement on May 16, 2013, and his supervised release on January 17, 2014.\n {¶ 14} The parties stipulated, and the panel and board found, that Jacobs’s\nconduct violated DR 1-102(A)(3) (prohibiting a lawyer from engaging in illegal\nconduct involving moral turpitude) and Prof.Cond.R. 8.4(b) (prohibiting a lawyer\nfrom committing an illegal act that reflects adversely on the lawyer’s honesty or\ntrustworthiness); DR 1-102(A)(4) and Prof.Cond.R. 8.4(c) (both prohibiting a\nlawyer from engaging in conduct involving dishonesty, fraud, deceit, or\nmisrepresentation); and DR 1-102(A)(6) and Prof.Cond.R. 8.4(h) (both\nprohibiting a lawyer from engaging in conduct that adversely reflects on the\nlawyer’s fitness to practice law).\n Sanction\n {¶ 15} When imposing sanctions for attorney misconduct, we consider\nrelevant factors, including the ethical duties that the lawyer violated and the\nsanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio\nSt.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final\ndetermination, we also weigh evidence of the aggravating and mitigating factors\nlisted in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio\nSt.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21.\n {¶ 16} The parties stipulated that four of the mitigating factors set forth in\nBCGD Proc.Reg. 10(B)(2) are present, namely, (a) the absence of a prior\ndisciplinary record, (d) a cooperative attitude toward the proceedings, (e) good\ncharacter and reputation, and (f) imposition of other sanctions and penalties.\nThey also stipulated that Jacobs’s misconduct was personal, that it was not\ncommitted in his capacity as a lawyer, and that it caused no harm to his clients.\n {¶ 17} The panel and board also concluded that Jacobs had made a good-\nfaith effort to provide restitution, BCGD Proc.Reg. 10(B)(2)(c), and that he had\nacknowledged the wrongful nature of his conduct. The panel and board found\n\n\n\n 5\n\f SUPREME COURT OF OHIO\n\n\n\n\ntwo aggravating factors: a dishonest or selfish motive and a pattern of\nmisconduct. BCGD Proc.Reg. 10(B)(1)(b) and (c).\n {¶ 18} The parties cited several cases to support their recommendation of\na two-year suspension retroactive to the date of Jacobs’s suspension on April 3,\n2012. The panel and board found Disciplinary Counsel v. Pace, 103 Ohio St.3d\n445, 2004-Ohio-5465, 816 N.E.2d 1046, most persuasive.\n {¶ 19} In Pace, the attorney was convicted of failing to disclose on his tax\nreturn that he had an interest in or authority over a financial account in a foreign\ncountry. Pace was sentenced to a two-month term at a federal minimum-security\nfacility and one year of supervised release. Based upon his felony conviction,\npursuant to Gov.Bar R. V(5)(A), we suspended Pace’s license to practice law for\nan interim period. In his subsequent disciplinary action, the board found in\nmitigation that Pace had practiced law for more than 35 years, had no prior\ndisciplinary record, and cooperated completely in the disciplinary process. The\nboard did not find any aggravating factors. We held that he violated DR 1-\n102(A)(4) and (6), and we imposed a two-year suspension with credit for time\nserved under his interim suspension.\n {¶ 20} Another similar case is Disciplinary Counsel v. Blaszak, 104 Ohio\nSt.3d 330, 2004-Ohio-6593, 819 N.E.2d 689, in which the attorney had offered to\nsell truthful testimony in a pending case in return for $500,000 and $5,000 a\nmonth for his continuing legal services. The government charged him with\nselling testimony after he accepted a $50,000 down payment. Upon his federal\nfelony conviction, the court sentenced him to three years of supervised probation,\nfined him $5,000, and ordered him to complete 500 hours of community service.\nWe imposed an interim felony suspension pursuant to Gov.Bar R. V(5)(A)(3) and\nsubsequently found that his conduct violated DR 1-102(A)(4), (5) (prohibiting\nconduct prejudicial to the administration of justice), and (6).\n\n\n\n\n 6\n\f January Term, 2014\n\n\n\n\n {¶ 21} We imposed a lesser sanction than disbarment or indefinite\nsuspension, noting the “overwhelming evidence of mitigation that respondent has\npresented here.” Id. at ¶ 24. We acknowledged the significant number of\nreference letters that the attorney presented and emphasized “the extensive\ngratitude and appreciation these authors express[ed] for respondent’s professional\nassistance in their lives and his achievements in the courts and community.” Id.\nBased on “[t]hese testimonials, together with respondent’s contrition, completion\nof his sentence, cooperation, the over two years his license has already been\nsuspended, and his heretofore exemplary record of professional and community\nservice,” we determined that a two-year suspension from the practice of law, with\ncredit for time served under the interim suspension, to be the appropriate sanction.\n {¶ 22} In this case, we agree with the findings of the panel and the board.\nJacob lacks a prior disciplinary record, cooperated in the proceedings, paid all\ntaxes, acknowledged the wrongful nature of his conduct, and suffered the\nimposition of other sanctions and penalties, including a federal prison sentence,\nhome confinement, supervised probation, and a $10,000 fine. See BCGD\nProc.Reg. 10(B)(2)(a), (c), and (d).\n {¶ 23} Further, throughout his legal career, Jacobs has demonstrated his\ngood character and reputation in both the legal community and the community at\nlarge through a significant number of character letters that speak to his\nprofessionalism and his contributions to the bar and to community organizations.\nSee BCGD Proc.Reg. 10(B)(2)(e). He has served the legal community in\ncapacities as the former president of the Ohio State Bar Association and as an\nofficer and committee chairman of the American Bar Association, and it is\napparent that he could further contribute if allowed to return to the practice of\nlaw.\n {¶ 24} Disciplinary Counsel v. Smith, 128 Ohio St.3d 390, 2011-Ohio-\n957, 944 N.E.2d 1166, is distinguishable on its facts. There, Smith concealed\n\n\n\n 7\n\f SUPREME COURT OF OHIO\n\n\n\n\napproximately $250,000 in annual income from the IRS for several years, failing\nto report $1,411,265 in income to the IRS. And in response to an audit, he\nallowed his representative to present fraudulent documentation of expenses Smith\nhad not incurred and to falsely state that Smith had no source of income other\nthan that reported on his tax returns. A federal court convicted Smith of one\ncount of conspiring to defraud the IRS, four counts of making false tax returns,\nand one count of corruptly endeavoring to obstruct and impede the ensuing IRS\ninvestigation, and it sentenced him to one year and one day in federal prison and a\ntwo-year period of supervised release. The court ordered restitution of $395,154\nto the IRS; however, as of the panel hearing, Smith had only paid $2,000 in\nrestitution. Based on our holding that Smith’s conduct violated DR 1-102(A)(3),\n(4), (5), and (6), we indefinitely suspended him from the practice of law in Ohio,\nallowing him credit for time served under his interim suspension.\n {¶ 25} In contrast to Smith, Jacobs has been convicted of one count of\nmaking false tax returns and did not seek to obstruct the IRS investigation. And\nunlike Smith, who still owed the IRS $393,154 in restitution as of the time of the\npanel hearing, Jacobs had paid the $75,385 owed in delinquent taxes before\nsentencing. Based on Jacob’s conduct, a sanction is warranted in accord with our\ndecisions in Pace and Blaszak.\n {¶ 26} Accordingly, we accept the recommendation of the Board of\nCommissioners on Grievances and Discipline and in this case suspend Jacobs\nfrom the practice of law in Ohio for two years with credit for the time served\nunder the interim suspension that began on April 3, 2012. Costs are taxed to\nJacobs.\n Judgment accordingly.\n O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,\nFRENCH, and O’NEILL, JJ., concur.\n ____________________\n\n\n\n\n 8\n\f January Term, 2014\n\n\n\n\n Scott J. Drexel, Disciplinary Counsel, and Donald M. Scheetz, Assistant\nDisciplinary Counsel, for relator.\n Schwartz, Downey & Co., L.P.A., Niki Z. Schwartz, and Brian P.\nDowney, for respondent.\n _________________________\n\n\n\n\n 9\n\f", "ocr": false, "opinion_id": 2690075 } ]

[ "73 U.S. 15", "18 L. Ed. 818", "6 Wall. 15", "1867 U.S. LEXIS 933" ]

[ { "author_str": "Grier", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1283, "opinion_text": "\n73 U.S. 15 (____)\n6 Wall. 15\nHAIGHT\nv.\nRAILROAD COMPANY.\nSupreme Court of United States.\n\n*17 Mr. Knox, for the plaintiff in error; Messrs. Lowrie and McKnight, contra.\nMr. Justice GRIER delivered the opinion of the court.\nThe facts in this case are properly stated and the law correctly decided by the learned judge of the Circuit Court.\n*18 The provision in the condition of defeasance of the mortgage, has reference only to covenants between mortgagor and mortgagee, and is usual in every mortgage; being put there in order to secure the mortgagee, who may not be in possession, from demand for taxes incurred while the mortgagor was in possession. It can have no possible application to the income tax of bondholders. The 122d section of the revenue act of 1864, was enacted for greater facility of collection of the tax. These corporators often contract to pay for the bondholder all such taxes; but when they have not so contracted, they are authorized to deduct or withhold the amount of the tax. In all assessments of income tax the citizen is credited with the amount thus detained; so that there is no double taxation.\nJUDGMENT AFFIRMED.\n", "ocr": false, "opinion_id": 87882 } ]

[ "802 F.2d 448" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/802/802.F2d.448.86-3159.html", "author_id": null, "opinion_text": "802 F.2d 448\n Sydnorv.Pfadt\n 86-3159\n United States Court of Appeals,Third Circuit.\n 9/8/86\n \n 1\n W.D.Pa.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 477108 } ]

[ "195 P.3d 88" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n195 P.3d 88 (2008)\nSTATE\nv.\nKENYON.\nNo. 81374-4.\nSupreme Court of Washington, Department II.\nSeptember 4, 2008.\nDisposition of petition for review. Granted.\n", "ocr": false, "opinion_id": 2636241 } ]

[ "767 F.2d 928" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/767/767.F2d.928.84-2189.84-2131.html", "author_id": null, "opinion_text": "767 F.2d 928\n Alvern Bushv.Chamber of Comm., K.C.\n 84-2131, 84-2189\n United States Court of Appeals,Eighth Circuit.\n 4/30/85\n \n 1\n W.D.Mo.\n \n \n 2\n AFFIRMED **\n \n \n 3\n ---------------\n \n \n \n ** See Local Rule 12.\n \n \n ", "ocr": false, "opinion_id": 455519 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 12, "download_url": "http://www.courts.ca.gov/opinions/nonpub/A134466.PDF", "author_id": null, "opinion_text": "Filed 11/19/13 P. v. Despois CA1/1\n NOT TO BE PUBLISHED IN OFFICIAL REPORTS\nCalifornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for\npublication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication\nor ordered published for purposes of rule 8.1115.\n\n\n IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA\n\n FIRST APPELLATE DISTRICT\n\n DIVISION ONE\n\n\nTHE PEOPLE,\n Plaintiff and Respondent,\n A134466\nv.\nJEREMY R. DESPOIS, (Solano County\n Super. Ct. No. FCR273646)\n Defendant and Appellant.\n\n Defendant Jeremy R. Despois appeals from his conviction of two counts of\ncommitting a lewd act on a child. He maintains the trial court erred in excluding the\ntestimony of a psychiatrist who would testify as an expert witness regarding questioning\ntechniques and suggestibility of a child witness, and that it was error to deny his motion\nfor new trial on the basis his counsel was ineffective. We conclude there was no error,\nand affirm.\n PROCEDURAL AND FACTUAL BACKGROUND\n Defendant lived with K.J. and her children from 2008 through 2010. The couple\nbegan living together in approximately May 2008. The oldest child, M., was born in July\n2004 and the youngest, in September 2009. Defendant was not the father of the three\nolder children.\n In mid-2008, M., who was then four years old, asked her mother why “white stuff\ncomes out of Jeremy’s peepee.” When her mother asked M. to repeat what she said, M.\nresponded “ ‘Never mind, mommy’ ” and walked away. K.J. thought “I don’t know;\nshe’s a child. Maybe she’s just saying things.”\n\n\n 1\n\f In the latter part of 2009, K.J. was feeding their newborn daughter and defendant\nsaid he would “go lay [the other children] down.” He was in the children’s bedroom for\nwhat seemed to K.J. an unusually long time. She had a “weird feeling” so she went to the\nchildren’s room and opened the door. When she did so, she hit defendant with the door.\nHe had been partially blocking the opening of the door, and was crouched down and\n“acting just a little funny.” She noticed he was wearing “just his boxers and his shirt,”\nbut he had been wearing blue basketball shorts when he entered the room. M., who was\nthen five years old, was lying in the bed drinking water. Water was spilling out of her\nmouth and she “looked a little red and upset” and “wouldn’t talk.”\n A couple of weeks later, K.J. was putting her sons down for a nap in the bedroom.\nWhen she returned to the living room, she saw M. laying “over [defendant’s] lap” and\nopening his pajama pants at the fly area. Once defendant noticed her, M. “jumped back\nin the fetal position and [defendant’s] eyes were open wide [¶] . . . [¶] –like he was\nshocked.” M. “didn’t talk [and] . . . seemed scared.” K.J. asked “What was going on?”\nDefendant responded “ ‘What the “F” do you think is going on?’ ” K.J. reached inside\nhis pants to see if he had an erection, which he did not. She and defendant argued about\nwhat had happened.\n “[P]robably later that day” K.J. “asked [M.] why she was laying in [defendant’s]\nlap.” M. did not respond, but “turn[ed] her head away and smil[ed].” K.J. had noticed\nthat when M. lied, she “usually will turn her head away and smile. She wouldn’t tell me\nanything.” K.J. did not “know if it was just me or if it was what it was looking like.”\n A few days later, in January 2010, K.J. tried to talk to M. again. She said she had\n“noticed something,” and asked M. if defendant “ever made her do anything.” She used a\n“[c]alm, patient” tone of voice, and did not mention a penis, oral copulation, or any\nspecifics. M., who was then five and a half years old, would not answer at first, but then\nasked if she was “ ‘going to get in trouble?’ ” K.J. responded “Baby, you are not going to\nget in trouble. Mommy is here. Mommy is going to protect you, and mommy will make\nanything stop if you just tell me.” M. then told her mother defendant had done something\n\n\n\n 2\n\fsexually inappropriate to her.1 On cross-examination, K.G testified M. told her defendant\ndigitally penetrated her vagina, and forced her to perform oral sex on him “six, seven,\nmaybe a thousand times.” K.J. told M. “what she is doing [i]s a good thing, and then I\nwill make it stop, and it won’t ever happen again.” K.J. wasn’t sure what to do at that\nmoment, because defendant was still there and she loved him.\n Two days later, K.J. went to the police station. A police officer came to her\napartment and asked if they had any pornography, and she gave him permission to search.\nPolice conducted two interviews of M., neither of which were admitted in evidence.\n A few weeks later, K.J. was talking to M. about going to see a therapist and\nexplaining what a therapist was. M. stated “out of the blue” that defendant “ ‘didn’t put\nhis peepee in my peepee or my butt, but he said when I get older, that we can do that\nwhenever we want.’ ”\n M. was six and a half years old and in the first grade at the time of her testimony\nin February 2011. She could not identify defendant in the courtroom, but testified\n“Jeremy” had a tattoo of a sun on his right arm. Police Officer Erwin Ramirez testified\nhe had contacted defendant a year earlier, in February 2010. At the time, defendant was\nnot as thin as he was at the time of trial, and he had a tattoo of a sun and a joker on his\nright arm.\n M. testified she told her mother defendant “stuck his private in my mouth.” He\ndid it when they were on the couch and in the bed in their apartment. M. first saw\ndefendant’s “private” when she went to get a drink of water and he “stuck it out of his\npants.” When asked if she ever touched his private, M. testified “Only with my mouth.”\nThe prosecutor asked why she touched his private with her mouth, and M. responded “he\ndid that.” The prosecutor asked “[h]ow did he do that?” and M. explained “Um, he kept\npushing my head back.” She “kept trying to . . . close [her] mouth, but he was too\nstrong.” “[W]hite stuff” came out of his private. M. “didn’t like” the taste.\n\n\n 1\n Pursuant to an in limine agreement, the prosecutor only elicited whether\ndefendant had done something sexually inappropriate to M.\n\n\n 3\n\f M. told her mother “the day after he last stopped.” Her mother wanted M. to tell\nher. She did not tell her mother earlier because she “was too scared, [she] . . . will get\nsent to [her] room.”\n M. also testified she watched movies with defendant. They watched Farmland,\nToy Story Two, and movies with people who had no clothes on. M. “kept moving\naround” when they were watching the movies with naked people, but defendant “just\nwanted [her] to watch. He kept pulling [her] on the couch.” M. did not want to watch the\nmovie because “[i]t was too disgusting.” They watched movies with naked people\n“[l]ots.”\n Defendant testified he was in a relationship with K.J. for over a year and a half.\nHe loved M. and viewed her as his daughter. Part of being her father involved\n“teach[ing] her how to be a young lady” because M. “would sit with her knees up kind of\ninappropriately or go to the bathroom with the door open, or with the boys being around,\nor her butt crack would hang out.” He would tell her to “pull up [her] pants” and “sit\nwith [her] legs closed.”\n Defendant explained M. walked in on him and K.J. when they were having sex on\nthree occasions. One time, M. saw him ejaculate on K.J.’s stomach. Another time, he\nwas “performing oral sex on [K.J.] when [M.] barged in.” The third time, M. walked in\non them when K.J. was performing oral sex on defendant. K.J. testified M. never walked\nin on her and defendant when they were engaged in sexual activity.\n Defendant testified he did not digitally penetrate M.’s vagina, she did not perform\noral sex on him, and he never watched pornography with her. He testified K.J. was lying\nabout seeing him in only his boxer shorts in the children’s bedroom.\n DISCUSSION\nExclusion of Expert Testimony\n Defendant maintains the trial court erred in excluding the testimony of his\nproposed expert witness, Dr. Lee Coleman, on false memory syndrome and child\nsuggestiveness, denying him a fair trial.\n\n\n\n 4\n\f Expert testimony is admissible if it is related to a subject sufficiently beyond\ncommon experience that it would assist the trier of fact. (People v. Brown (2004)\n33 Cal.4th 892, 900; Evid. Code, § 801, subd. (a).) On the other hand, “[e]xpert opinion\nis not admissible if it consists of inferences and conclusions which can be drawn as easily\nand intelligently by the trier of facts as by the witness.” (People v. Torres (1995)\n33 Cal.App.4th 37, 45.) We review the trial court’s decision on the admissibility of\nexpert opinion testimony for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th\n238, 266.)\n Defendant concedes there is no published California case addressing “the\nadmissibility of expert testimony regarding the suggestibility of child witnesses and the\nforensic interviewing of children.” California has a “judicial policy disfavoring attempts\nto impeach witnesses by means of psychiatric testimony. [Citations.] California courts\nhave viewed such examinations with disfavor because ‘ “[a] psychiatrist’s testimony on\nthe credibility of a witness may involve many dangers: the psychiatrist’s testimony may\nnot be relevant; the techniques used and theories advanced may not be generally\naccepted; the psychiatrist may not be in any better position to evaluate credibility than the\njuror; difficulties may arise in communication between the psychiatrist and the jury; too\nmuch reliance may be placed upon the testimony of the psychiatrist; partisan psychiatrists\nmay cloud rather than clarify the issues; the testimony may be distracting, time-\nconsuming and costly.” ’ [Citation.]” (People v. Alcala (1992) 4 Cal.4th 742, 781–782.)\nIn general, jurors are “considered to be equipped to judge witness credibility without the\nneed for expert testimony.” (People v. Wells (2004) 118 Cal.App.4th 179, 189.)\n Other jurisdictions have taken differing approaches to this type of expert\ntestimony. Some jurisdictions have admitted the expert testimony, reasoning “such\ntestimony involves an area of expertise beyond the ken of the average layman and,\ntherefore, that the defendant in a child molestation case is entitled to introduce expert\ntestimony for the limited purpose of providing the jury with information about proper\ntechniques for interviewing children and whether the interviewing techniques actually\nutilized were proper.” (Barlow v. State (1998) 270 Ga. 54, 54 [507 S.E.2d 416, 417].)\n\n\n 5\n\fOthers have excluded it because “the subject matter was within the jurors’ common\nknowledge and experience.” (People v. Johnston (N.Y.A.D. 2000) 273 A.D.2d 514, 518;\nState v. Ellis (Me. 1996) 669 A.2d 752, 753–754 [“Defendant was entitled to explore the\ninterviewing techniques that were used and to argue to the jury that they may have\ninfluenced the children’s testimony. Defendant was not entitled to have his argument\nbuttressed by the presentation of common knowledge in the form of an expert scientific\nopinion.”].)\n In this case, the prosecutor moved in limine to admit evidence of police interviews\nof M. under Evidence Code section 1237, and to exclude the testimony of Dr. Coleman,\ndefendant’s proposed expert witness. In a January 31, 2010 police interview, M. said she\ntalked to her mother about defendant, but she did not remember. M. said she did not\nwant to talk “[b]ecause I’m just shy and I’m scared to talk.” She then began crying and\nsaying she wanted her mother. A different police officer interviewed M. again the next\nday. M. told her defendant made her suck his private parts. When defendant did that, M.\nsaid “[t]he nasty stuff comes out. I don’t ever want to taste it again.”\n The defense submitted an offer of proof regarding Dr. Coleman’s proposed\ntestimony, stating he would “testify that the manner in which a child is interviewed and\ncounseled can affect whether a memory is true. [¶] . . . Specifically, he will testify that\nthe manner in which a child is questioned can cause them to lose the ability to distinguish\nbetween what they know to be a memory and what events have actually taken place. He\nis prepared to testify that the manner in which all the parties (the parent of the\ncomplaining witness, law enforcement, and clinical interviewers) can affect a child and\npotentially cause false memories. [¶] . . . [¶] . . . Dr. Coleman is prepared to testify that\nthe manner in which the MDIC [Multi-Disciplinary Interview Center] interview was\nconducted was substandard for various reasons [¶] . . . [and] is prepared to testify that a\nfalse memory can inadvertently be planted in a child’s head in a single conversation, even\nwithout an[] intent to do so; specifically, the mother’s concerns about possible abuse\nprior to the last incident. Moreover, the mother’s tone and form of questions can affect\nthe ability of the alleged victim to properly recall history.”\n\n\n 6\n\f Prior to trial, the court stated “Here are my thoughts concerning Dr. Coleman: I\nbelieve that should the [police interview] become relevant and come in, . . . then his\ntestimony would be relevant, and I would allow it, because as I read the affidavits[2]\nsubmitted by defense, and my understanding of his expertise, much of it dealt with how\nquestions were asked of minors; so if that becomes an issue, which, in the [police\ninterview] I would allow him to testify. [¶] If the alleged victim testifies and . . . the\n[police interview] and/or the questioning does not become an issue, then I don’t see how\nit would become relevant.” The court indicated it would “revisit this” after M. testified.\n After the prosecution rested without introducing evidence of the police interviews\nof M., the defense sought to have Dr. Coleman testify “to childhood development,\nmemory suggestibility, and potential impact of questioning techniques on the child’s\nmemory in general; testify to the somewhat fluid nature of a minor’s perception of history\nand the effect that suggestive questioning, et cetera, can have on a minor; specifically,\nthat a false memory can be planted in the matter of a single conversation, even in the\nabsence of an intent on the part of the planter. [¶] The second part that I think is relevant\nis that he has reviewed the various interviews in this case, including the original officer’s\ninterview, the MDIC, the interview that I did conduct myself and the investigator, as well\nas police reports. He would testify that the manner in which the questioning took place in\nthis case are of the nature which could lead to a false memory implant being planted.”\n The court stated “the Court’s initial ruling on this discussion was one of whether\n. . . if we got to the MDIC and if there [were] questions concerning the methodology of\nthe questioning, I would give a tentative ruling of leaning towards allowing Dr. Coleman\nto testify. [¶] And [defense counsel] is correct in that the testimony, the mere fact that an\nMDIC was not introduced into evidence is not a per se bar to the testimony of\nDr. Coleman as an expert. [¶] Again, these are . . . relevant, and then does it pass the 352\ntest? . . . [¶] When I review the testimony and the evidence before the Court, that is, the\ntestimony of the mother . . . concerning her observations of what was occurring in her\n\n 2\n The defense submitted an offer of proof in the form of a memorandum regarding\nDr. Coleman’s testimony, not his affidavit or C.V.\n\n 7\n\fopinion with her daughter, and her pressing and questioning of what happened to her\ndaughter, I note in the testimony that . . . [the questions were] all sort of what happened,\nand there was very little leading. [¶] There were very little questions that would lead to\nany sort of creating of a false memory. [¶] In other words, . . . there wasn’t the type of\nquestions of . . . ‘isn’t it true Jeremy did X, Y, Z to you?’ With the child parroting back,\n‘Yes, he did X, Y, Z to me.” [¶] They were very much open-ended questions, and\nalthough there was a refusal often to answer the questions, I didn’t sense that any of the\nissues that Dr. Coleman would testify would be very relevant. I think they would be\nrelevant. [¶] However, when I balance that under 352 of undue . . . delay, unnecessary\nconfusion . . . in light of the state of the evidence, I am going to deny your request to call\nDr. Coleman . . . .”3\n The court found Dr. Coleman’s testimony relevant, but not “very relevant,” given\nthe lack of evidence of any suggestive questioning. The court properly weighed the\nlimited relevance of Dr. Coleman’s proposed testimony against the undue delay and\nconfusion his proposed testimony would cause. There was no abuse of discretion in\nexcluding the proposed expert testimony under Evidence Code section 352.\n Neither did exclusion of the proposed testimony deprive defendant of his\nconstitutional right to due process or to present a defense. “ ‘ “As a general matter, the\nordinary rules of evidence do not impermissibly infringe on the accused’s right to present\na defense.” ’ ” (People v. Gurule (2002) 28 Cal.4th 557, 620.) Defendant had the\nopportunity to have Dr. Coleman testify if he chose to introduce M.’s police interviews,\nwhich he ultimately did not. He also had the opportunity to cross-examine M. and her\nmother about the claimed suggestive questioning and M.’s memory issues, and to argue\nhis theory of “implanted” false memory to the jury. Accordingly, he was not denied his\nright to present a defense.\n 3\n Defense counsel then sought to introduce the videotape of an initial police\ninterview of M., in which she stated she did not remember and would not answer\nquestions, as a prior inconsistent statement of the victim. The court allowed it, but the\nfollowing morning, defense counsel indicated “after giving the matter considerable\nthought, I’m not going to be introducing [the interview videotape] at this time.”\n\n\n 8\n\fDenial of Motion for New Trial\n Defendant also contends the court erred in denying his motion for new trial on the\nbasis his counsel was ineffective. He asserts counsel failed to have his family and friends\ntestify as character witnesses, promised in opening argument he would present the\ntestimony of Dr. Coleman regarding suggestive questioning techniques, but then failed to\nmake an adequate argument for the admission of Dr. Coleman’s testimony, and failed to\ninvestigate and introduce favorable psychological evidence under People v. Stoll (1989)\n49 Cal.3d 1136 (Stoll).4\n In order to demonstrate ineffective assistance of counsel, “ ‘a defendant must\nshow that counsel’s performance was inadequate when measured against the standard of\na reasonably competent attorney, and that counsel’s performance prejudiced defendant’s\ncase in such a manner that his representation “so undermined the proper functioning of\nthe adversarial process that the trial cannot be relied on as having produced a just result.”\n(Strickland v. Washington (1984) 466 U.S. 668, 686. . . .)’ ” (People v. Brodit (1998)\n61 Cal.App.4th 1312, 1333.) “ ‘In determining whether counsel’s performance was\ndeficient, a court must in general exercise deferential scrutiny [citation]’. . . . ‘Although\ndeference is not abdication . . . courts should not second-guess reasonable, if difficult,\ntactical decisions in the harsh light of hindsight.’ ” (Id. at p. 1335, quoting People v.\nScott (1997) 15 Cal.4th 1188, 1212.)\n\n\n\n 4\n In Stoll, the court held “[e]xpert opinion that defendants show no obvious\npsychological or sexual problems is circumstantial evidence which bears upon whether\nthey committed sexual acts upon children, and is admissible ‘character’ evidence on their\nbehalf.” (Stoll, supra, 49 Cal.3d at p. 1161.) Defendant notes the Penal Code\nsection 288.1 psychological evaluation by Dr. Nakagawa, for which he refused to answer\nany questions about the charges, demonstrated his response to questioning was different\nfrom others subject to section 288.1 assessments in that he gave “well-elaborated and\noften spontaneous responses regarding psychosexual matters.” Given that defendant\nrefused to discuss the charges, however, Dr. Nakagawa concluded “With respect to the\ndefendant being predisposed to commission of a sexual offense no opinion can be offered\neven though the data obtained in the present assessment indicated no notable indication\nof sexual preoccupation or aberration.”\n\n\n 9\n\f “Defendant’s burden is difficult to carry on direct appeal. We reverse on the\nground of inadequate assistance on appeal only if the record affirmatively discloses no\nrational tactical purpose for counsel’s act or omission.” (People v. Montoya (2007)\n149 Cal.App.4th 1139, 1148.) “ ‘In some cases, . . . the record on appeal sheds no light\non why counsel acted or failed to act in the manner challenged. In such circumstances,\nunless counsel was asked for an explanation and failed to provide one, or unless there\nsimply could be no satisfactory explanation, these cases are affirmed on appeal.\n[Citation.]’ ” (People v. Avena (1996) 13 Cal.4th 394, 418–419, italics omitted.) “ ‘A\nreviewing court will not second-guess trial counsel’s reasonable tactical decisions.’\n[Citation.]” (People v. Riel (2000) 22 Cal.4th 1153, 1185.) When defense counsel’s\nreasons are not readily apparent from the record, we will not assume he or she was\nineffective unless the challenged conduct could have had no conceivable tactical purpose.\n(People v. Dickey (2005) 35 Cal.4th 884, 926–927.)\n Even where deficient performance appears, the conviction must be upheld unless\nthe defendant demonstrates prejudice, i.e., that, “ ‘ “ ‘but for counsel’s unprofessional\nerrors, the result of the proceeding would have been different. A reasonable probability\nis a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (People v.\nAnderson (2001) 25 Cal.4th 543, 569.)\n Defendant claims the court “found trial counsel had been deficient.” In denying\nthe motion for new trial, the trial court5 stated, “I am not sure I would say this is the worst\ncase I have ever seen from a defense perspective in terms of trial. But it wasn’t real\ncompetent.” The court, however, held it was the “second level that is a very difficult task\nfor a defense counsel to reach. And I don’t think that IAC rises to that level where I can\nsay it would be a different result.”\n Even if defendant’s counsel was ineffective in some respects, we likewise\nconclude there was not a reasonable probability that but for trial counsel’s claimed\ndeficiencies, the result would have been more favorable to defendant.\n 5\n The Honorable Gregory Caskey was appointed by the Chief Justice to hear the\nnew trial motion after the trial judge disqualified himself.\n\n\n 10\n\f The evidence showed M. made two spontaneous statements to her mother\nimplicating defendant. In the first one, in mid-2008, M. asked K.J. why “white stuff\ncomes out of Jeremy’s peepee.” M. made this statement before either her mother or\npolice had asked her any questions about sexual abuse. M. also told her mother “out of\nthe blue” that defendant “ ‘didn’t put his peepee in my peepee or my butt, but he said\nwhen I get older, that we can do that whenever we want.’ ”\n Additionally, M. testified in a manner consistent with a young child inexperienced\nin sexual matters prior to her contact with defendant. She told her mother defendant\n“stuck his private in my mouth.” She did not tell her mother before because she was\nafraid she would be sent to her room. M. explained defendant put his penis in her mouth\nwhen they were on the couch and in the bed in their apartment. When asked if she ever\ntouched his private, M. testified “Only with my mouth.” The prosecutor asked why she\ntouched his private with her mouth, and M. responded “he did that.” The prosecutor\nasked “[h]ow did he do that?” and M. explained “Um, he kept pushing my head back.”\nShe “kept trying to . . . close [her] mouth, but he was too strong.” “[W]hite stuff” came\nout of his private. M. “didn’t like” the taste. Though defendant attempted to establish\nM.’s prior knowledge of sexual acts by testifying M. walked in on him and her mother\nwhen they were engaged in giving and receiving oral sex and when he was ejaculating on\nher stomach, M.’s mother testified M. never walked in on them during sexual activity.\n Furthermore, M.’s mother testified not only about M.’s fresh complaint of abuse to\nher and M.’s spontaneous declarations, but also about her own observations. She\nobserved defendant coming out of the children’s bedroom wearing only his boxers when\nhe had worn basketball shorts going in, and M. sitting up in bed with a red face and not\nspeaking. She also observed M. lying over defendant on the sofa and opening the fly of\nhis pants. Defendant became angry when she asked what was going on.\n Defendant denied the conduct to which M. and her mother testified. Much of his\nown testimony, however, undermined his credibility. For instance, he testified the five-\nyear-old behaved sexually inappropriately, and that he had to teach her the correct way to\nbehave as a “young lady.”\n\n\n 11\n\f Defendant maintains the prejudice to him is evidenced by the fact the judge\nhearing his new trial motion “found his claims of innocence ‘not unreasonable.’ ” This\nmisrepresents the record. The trial court, at sentencing, stated the defense attorney’s\n“position is not unreasonable.” The defense attorney’s position was that the court should\nimpose probation rather than a prison term, based on the defendant’s lack of prior\nconvictions, character evidence presented by his family at sentencing, and unlikelihood\nof further contact with M. given that she had moved out of state. In denying probation,\nthe court explained: “I’ve had much more serious, long continuous sexual abuse [cases],\nhorrible things, this is not that bad. . . . But it’s more than just a touching, more than a\nfondling. When you force a four year old to, uh, orally copulate and you ejaculate, that’s\njust very disturbing.”\n Given the evidence before the jury, it is not reasonably probable the result would\nhave been more favorable to defendant had his attorney introduced character evidence\nsubmitted by his family and friends, Dr. Coleman’s proposed testimony about potentially\nsuggestive questioning, or a Stoll assessment indicating defendant’s personality profile\nwas not consistent with that of a child molester.\n DISPOSITION\n The judgment is affirmed.\n\n\n\n _________________________\n Banke, J.\n\n\nWe concur:\n\n\n_________________________\nMargulies, Acting P. J.\n\n\n_________________________\nDondero, J.\n\n\n\n 12\n\f", "ocr": false, "opinion_id": 2643040 } ]

[ "548 U.S. 939" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n548 U.S. 939 (2006)\nGONZALES, ATTORNEY GENERAL\nv.\nPLANNED PARENTHOOD FEDERATION OF AMERICA, INC., ET AL.\nNo. 05-1382.\nSupreme Court of United States.\nSeptember 1, 2006.\nMotion of Alan Ernest to allow counsel, or guardian ad litem, to represent children unborn and born alive denied.\n", "ocr": false, "opinion_id": 1490507 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 16, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\12/12-60905-CV0.pdf", "author_id": null, "opinion_text": " Case: 12-60905 Document: 00512446675 Page: 1 Date Filed: 11/19/2013\n\n\n\n\n REVISED NOVEMBER 19, 2013\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n United States Court of Appeals\n Fifth Circuit\n\n FILED\n No. 12-60905 October 29, 2013\n\n Lyle W. Cayce\n Clerk\nANTHONY GIBSON,\n\n Plaintiff-Appellee Cross-Appellant\nv.\n\nJEFFREY KILPATRICK, in His Individual Capacity,\n\n Defendant-Appellant Cross-Appellee\n\n\n\n Appeal from the United States District Court\n for the Northern District of Mississippi\n\n\nBefore STEWART, Chief Judge, KING, and PRADO, Circuit Judges.\nKING, Circuit Judge:\n While serving as the Chief of Police in Drew, Mississippi, Anthony Gibson\nreported Mayor Jeffrey Kilpatrick to outside law enforcement agencies for\nmisuse of the city gasoline card. Months later, Kilpatrick began issuing written\nreprimands to Gibson for a panoply of alleged deficiencies. Gibson subsequently\nfiled a lawsuit alleging unconstitutional retaliation as well as state tort law\nclaims. Kilpatrick moved for summary judgment, raising the defense of qualified\nimmunity and arguing that the state tort law claims were barred because Gibson\nfailed to comply with state notice requirements. The district court denied the\n\f Case: 12-60905 Document: 00512446675 Page: 2 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nmotion with respect to qualified immunity, but granted it with respect to the\nstate tort claims. Kilpatrick now brings this interlocutory appeal of the district\ncourt’s order denying qualified immunity, and Gibson cross-appeals the district\ncourt’s dismissal of one of his tort claims. Kilpatrick moves to dismiss the cross-\nappeal for lack of jurisdiction. We hold that Kilpatrick is entitled to qualified\nimmunity and reverse the district court’s order to the extent that it denied\nqualified immunity. Additionally, because we lack jurisdiction to hear Gibson’s\ncross-appeal, we grant Kilpatrick’s motion to dismiss the cross-appeal.\n I. Factual and Procedural Background\n In 2006, Anthony Gibson applied to be Chief of Police in Drew, Mississippi.\nMayor Jeffrey Kilpatrick opposed Gibson’s application and supported another\ncandidate. The city’s Board of Aldermen (“Board”) rejected Kilpatrick’s\nrecommendation and hired Gibson in August 2006. As Chief of Police, Gibson\nreported directly to Kilpatrick and the Board.\n Sometime within the first four months of Gibson’s employment, a\nsubordinate at the police department informed Gibson that Kilpatrick was\nmisusing the city gasoline card to fuel his vehicle for personal trips. Gibson\nconfidentially reported his suspicions to the Federal Bureau of Investigation\n(“FBI”), Drug Enforcement Agency (“DEA”),1 Mississippi Office of the State\nAuditor (“OSA”), and Mississippi Attorney General’s Office. His reports to the\nFBI and DEA were through contacts with whom he had worked in an official\ncapacity on prior occasions. The OSA initiated an investigation, and Gibson\nworked with Investigator Karen Swain to assist in the OSA’s efforts. Because\nKilpatrick had to come to the police department to obtain the gasoline card,\nGibson was able to monitor Kilpatrick’s activities. Gibson instructed two police\n\n\n 1\n Gibson heard rumors that Kilpatrick might be involved in illicit drugs; however, this\nallegation was never investigated or substantiated. It did prompt his decision to contact at\nleast the DEA.\n\n 2\n\f Case: 12-60905 Document: 00512446675 Page: 3 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\ndispatchers to make log entries every time Kilpatrick asked to use the card, and\nhe ordered a police officer to observe Kilpatrick following receipt of the card.\nGibson and Swain also directed the city clerk to monitor receipts from Drew’s\ngasoline provider to compare them with the information recorded in the log. In\nSeptember 2008, the investigation concluded, finding that Kilpatrick had\nmisused the city gasoline card, and the OSA ordered Kilpatrick to repay\napproximately $3,000 to the City of Drew for his unauthorized use of the card.\n Approximately nine months after the conclusion of the investigation,\nKilpatrick began entering written reprimands into Gibson’s personnel file. The\nfirst reprimand came on June 8, 2009, and the reprimands continued for over\ntwo years.2 In addition to the reprimands, Kilpatrick recommended Gibson’s\ntermination to the Board on several occasions, including for insubordination,\nlack of visibility in the community, and failure to work an adequate number of\nhours.\n On December 1, 2010, Gibson brought this action in federal court against\nKilpatrick in his individual capacity, alleging violations of his First Amendment\nright to free expression under 42 U.S.C. § 1983, and malicious interference with\nemployment and intentional infliction of emotional distress under Mississippi\nlaw. Less than a year later, on October 5, 2011, the Board voted to terminate\nGibson’s employment. Gibson subsequently amended his complaint to add the\nCity of Drew as a defendant, alleging that the city violated his First Amendment\nrights in retaliation for his filing suit against Kilpatrick.\n\n\n\n 2\n The record contains nine different reprimands of Gibson from Kilpatrick over this\nperiod for, inter alia, Gibson’s tardiness to a meeting because he was driving to the emergency\nroom for medical care; assisting a neighboring police department with a domestic violence\nstand-off without first obtaining prior approval from the Board; holding a staff meeting that\ncaused the city to incur overtime payments; and allowing citizens to play basketball in the new\ncommunity center after the Board had approved the center’s use for a luncheon for city\nemployees.\n\n 3\n\f Case: 12-60905 Document: 00512446675 Page: 4 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\n Kilpatrick and the City of Drew jointly moved for summary judgment on\nGibson’s First Amendment and state law claims.3 Kilpatrick asserted that he\nwas entitled to qualified immunity as to the First Amendment claim because\nGibson’s speech was not constitutionally protected nor were Kilpatrick’s actions\nobjectively unreasonable. As for the state law claims, Kilpatrick and the City of\nDrew argued that Gibson failed to file a notice of claim in compliance with the\nMississippi Tort Claims Act (“MTCA”), so the claims were barred. See Miss.\nCode Ann. § 11-46-11 (2013). The court “reserved judgment” as to whether\nKilpatrick had violated Gibson’s constitutional rights and whether Kilpatrick\nwas entitled to qualified immunity; however, it entered judgment in the\ndefendants’ favor with respect to the state law tort claims. Kilpatrick moved for\nreconsideration of his qualified immunity defense, and the court held that\nKilpatrick was not entitled to qualified immunity because Gibson’s speech was\nprotected under the First Amendment and the right was clearly established.\n Kilpatrick timely appealed the district court’s summary judgment and\nreconsideration orders. Gibson timely cross-appealed the district court’s\ndismissal of his state law tort claim for malicious interference with employment.\nKilpatrick moved to dismiss the cross-appeal for lack of jurisdiction, and the\ncourt ordered that motion to be carried with the case.\n II. Qualified Immunity\nA. Standard of Review\n Typically, a party may not immediately appeal a district court’s decision\nto deny summary judgment, but the denial of a motion for summary judgment\nbased on qualified immunity is a collateral order capable of immediate review.\nBrown v. Strain, 663 F.3d 245, 248 (5th Cir. 2011). This court has jurisdiction\n\n\n 3\n The district court denied summary judgment as to both Kilpatrick and the City of\nDrew. Since the City of Drew is not party to this appeal, we do not address the municipal\nliability claim.\n\n 4\n\f Case: 12-60905 Document: 00512446675 Page: 5 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nover such an order only “to the extent that the district court’s order turns on an\nissue of law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010). We may\nnot review a district court’s decision to deny qualified immunity based on\nevidentiary sufficiency on an interlocutory appeal, because such a determination\nis not considered a “final decision.” Johnson v. Jones, 515 U.S. 304, 313 (1995);\nGobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). This court “consider[s]\nonly whether the district court erred in assessing the legal significance of the\nconduct that the district court deemed sufficiently supported for purposes of\nsummary judgment.” Kinney v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004) (en\nbanc). “Where factual disputes exist in an interlocutory appeal asserting\nqualified immunity, we accept the plaintiffs’ version of the facts as true.” Id. “In\nreviewing the district court’s conclusions concerning the legal consequences—the\nmateriality—of the facts, our review is of course de novo.” Id. at 349.\nB. Discussion\n To rebut a defendant’s qualified immunity defense, the plaintiff must\nshow: “(1) that the official violated a statutory or constitutional right, and (2)\nthat the right was ‘clearly established’ at the time of the challenged conduct.”\nAshcroft v. Al-Kidd, 131 S. Ct. 2074, 2080 (2011) (citation omitted). A court may\nconsider either prong of the qualified immunity analysis first. Pearson v.\nCallahan, 555 U.S. 223, 236 (2009). We begin by addressing the first prong—\nwhether Kilpatrick’s reprimands violated Gibson’s First Amendment right to\nfree expression.\n The Supreme Court has long held that government employees are not\nstripped of their right to freedom of expression by virtue of their employment.\nConnick v. Myers, 461 U.S. 138, 142 (1983); Pickering v. Bd. of Educ., 391 U.S.\n563, 568 (1968). This right is not absolute, though, and we utilize a four-pronged\ntest to determine whether the speech of a public employee is entitled to\nconstitutional protection. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.\n\n 5\n\f Case: 12-60905 Document: 00512446675 Page: 6 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\n2011). A plaintiff must establish that: (1) he suffered an adverse employment\ndecision; (2) his speech involved a matter of public concern; (3) his interest in\nspeaking outweighed the governmental defendant’s interest in promoting\nefficiency; and (4) the protected speech motivated the defendant’s conduct. Id.\n(citations omitted). In 2006, the Supreme Court added what we have\ncharacterized as a “threshold layer” to the second prong of the retaliation test.\nSee Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (describing Garcetti v.\nCeballos, 547 U.S. 410 (2006)). Under this prong, “when public employees make\nstatements pursuant to their official duties, the employees are not speaking as\ncitizens for First Amendment purposes, and the Constitution does not insulate\ntheir communications from employer discipline.” Garcetti, 547 U.S. at 421.\nWhile the court must consider factual circumstances to determine whether\nspeech is official, the determination is still a question of law. Charles v. Grief,\n522 F.3d 508, 513 n.17 (5th Cir. 2008). Functionally, this threshold layer has\ntransformed our test, inserting an additional prong at which we consider\nwhether the speech was pursuant to the employee’s duties or as a citizen.\n In this case, our analysis begins and ends at this new prong.4 Because\n\n\n\n 4\n Kilpatrick also argues that a reprimand is not an adverse employment action under\nthe first prong. We assume without deciding that a reprimand is an adverse employment\naction for the purposes of a § 1983 claim. While the Supreme Court has clarified that, under\nTitle VII, a plaintiff must prove that a reasonable employee would have found the alleged\nadverse employment action “materially adverse,” Burlington N. & Santa Fe Ry. Co. v. White,\n548 U.S. 53, 68 (2006), this court has not yet decided whether the Burlington standard for\nadverse employment actions also applies to First Amendment retaliation cases, see DePree v.\nSaunders, 588 F.3d 282, 288 (5th Cir. 2009) (explaining that this circuit has not “formally\napplied Burlington to First Amendment retaliation claims”). As for the third prong, Kilpatrick\ndid not challenge that in the district court, but the district court conducted a balancing of the\nparties’ interests and concluded that they favored Gibson. Kilpatrick does not raise this prong\nin his appeal. Regarding the fourth prong, Kilpatrick asserts that there are insufficient facts\nin the record to show that the speech motivated his conduct. We lack jurisdiction to consider\nKilpatrick’s arguments regarding the fourth prong, since issues regarding the sufficiency of\nevidence are factual issues that may not be considered in an interlocutory appeal. See Gobert,\n463 F.3d at 344.\n\n 6\n\f Case: 12-60905 Document: 00512446675 Page: 7 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nGibson’s report to law enforcement agencies was official speech, we must\nreverse.\n We turn first to the source of this new prong—Garcetti. In Garcetti, a\ndeputy district attorney reviewed an affidavit supporting a search warrant and\nconcluded that the affidavit contained misrepresentations. See 547 U.S. at\n413–14, 421. The attorney reported his concerns to his supervisors and provided\none with a memorandum. Id. at 414. The supervisors held a meeting on the\nmatter, but they decided to proceed with the prosecution despite the attorney’s\nconcerns. Id. The defense moved to challenge the warrant and called the\nattorney to testify at the hearing regarding his observations. Id. at 414–15. The\nattorney complied, allegedly prompting retaliation from his supervisors. Id.\n The Supreme Court concluded that the First Amendment did not shield\nthe attorney’s speech from discipline. The Court began its analysis by clarifying\nwhich facts were not dispositive. The fact that the attorney “expressed his views\ninside his office, rather than publicly,” did not render his speech unprotected,\nsince “[m]any citizens do much of their talking inside their respective\nworkplaces.” Id. at 420. Likewise, the fact that the “memo concerned the\nsubject matter of [the attorney’s] employment . . . is nondispositive. The First\nAmendment protects some expressions related to the speaker’s job.” Id. at 421\n(citations omitted). Ultimately, “the controlling factor . . . [was] that his\nexpressions were made pursuant to his duties as calendar deputy.” Id. As a\ncalendar deputy, it was his duty to advise his supervisors about how to proceed\nwith prosecutions, and the investigation of charges and preparation of\nmemoranda were part of his “daily professional activities.”5 Id. at 421–22.\n While Garcetti clearly added an additional inquiry into our freedom of\n\n\n 5\n The Supreme Court was not required to review findings of fact as to the scope of the\nattorney’s professional duties since it was undisputed that the attorney produced the\nmemorandum pursuant to his duties as a prosecutor. Garcetti, 547 U.S. at 421.\n\n 7\n\f Case: 12-60905 Document: 00512446675 Page: 8 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nexpression analysis, the Court “did not explicate what it means to speak\npursuant to one’s official duties, although we do know that a formal job\ndescription is not dispositive . . . [,] nor is speaking on the subject matter of one’s\nemployment.” Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir.\n2007) (per curiam) (internal citations and quotation marks omitted) (hereinafter\n“Williams”). The Supreme Court acknowledged that Garcetti did not “articulate\na comprehensive framework for defining the scope of an employee’s duties in\ncases where there is room for serious debate,” thus signaling that lower courts\nmust flesh out the distinction between official and citizen speech. 547 U.S. at\n424. We have since undertaken this task.\n In Williams, we considered whether a memorandum sent by a school\nathletic director to a school principal about the misuse of athletic funds was\nofficial speech. 480 F.3d at 689–94. It was undisputed that the director was not\nrequired to write memoranda as part of his regular job duties, but we\nnonetheless held that his speech was made pursuant to his official duties. Id.\nat 693. We reasoned that “[a]ctivities undertaken in the course of performing\none’s job are activities pursuant to official duties.” Id. The memorandum\nconcerned matters immediately within his purview as the athletic director—the\nuse of funds for the school athletic teams and the related accounting procedures.\nThus, the speech was made as part of his official duties. Id. at 694.\n A year later, in Davis, we held that an information systems auditor spoke\npursuant to her official duties and as a citizen when she sent a complaint letter\nto her supervisors and to the Chancellor of the University of Texas. 518 F.3d at\n307–16. Davis worked for the university, and she conducted an audit of\nuniversity computers and discovered pornography. Id. at 307–08. Davis\napproached various administrators to address the issue, but she considered their\nresponse to be inadequate. Id. at 308–09. She sent a complaint letter to her\nimmediate supervisors and to the Chancellor, in which she noted that she had\n\n 8\n\f Case: 12-60905 Document: 00512446675 Page: 9 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nalso filed complaints with the FBI regarding possible child pornography and the\nEEOC about workplace discrimination. Id. at 309, 314. Since Davis’s\ncomplaints to the FBI and EEOC were clearly made outside of the chain of\ncommand, and since her duties as an auditor did not require that she\ncommunicate with law enforcement, we held that the complaints constituted\ncitizen speech. Id. at 316.\n Deciding whether the speech in the letter was made pursuant to Davis’s\nofficial duties required more careful deliberation since the letter discussed\nmultiple topics and had multiple recipients. Id. at 314. We considered\nadditional factors, including the relationship between the speech and the\nemployee’s job, whether the speech was made within the employee’s chain of\ncommand, and whether the speech stemmed from special knowledge the\nemployee gained as a result of the employee’s position. Id. A portion of Davis’s\nletter discussed the “inadequate response to her investigation of employees\naccessing pornography,” which we held amounted to official speech since it\ninvolved work that she had performed as part of her duties. Id. at 315–16.\nHowever, the remainder of the letter addressed university-wide discrimination,\nfavoritism, and the compensation of executives, which constituted citizen speech\nsince it did not concern Davis’s duties as an auditor. Id. at 316.\n In addition to our own precedent, Kilpatrick urges us to adopt the\nreasoning of the Ninth Circuit in Huppert v. City of Pittsburg, 574 F.3d 696 (9th\nCir. 2009), and apply it to Gibson’s speech. Huppert relied on a 1939 California\nappellate court decision to conclude, as a matter of law, that a police officer acted\npursuant to his official duties in cooperating with the FBI and testifying before\na grand jury. Id. at 706–10 (relying on Christal v. Police Comm’n of City and\nCnty. of S.F., 92 P.2d 416 (Cal. Dist. Ct. App. 1939)). Kilpatrick advocates for\nthis analysis and argues that we may rely on Mississippi’s statutory definition\n\n\n\n 9\n\f Case: 12-60905 Document: 00512446675 Page: 10 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nof a law enforcement officer to define Gibson’s official duties as the Chief of\nPolice.6\n In a recent en banc decision, the Ninth Circuit overruled Huppert “to the\nextent that it improperly relied on a generic job description and failed to conduct\nthe ‘practical,’ fact-specific inquiry required by Garcetti.” Dahlia v. Rodriguez,\n— F.3d —, 2013 WL 4437594, at *7 (9th Cir. Aug. 21, 2013) (en banc). Garcetti\nclearly warned against the use of a written job description to define an\nemployee’s duties, explaining that\n Formal job descriptions often bear little resemblance to the duties\n an employee actually is expected to perform, and the listing of a\n given task in an employee’s written job description is neither\n necessary nor sufficient to demonstrate that conducting the task is\n within the scope of the employee’s professional duties for First\n Amendment purposes.\nGarcetti, 547 U.S. at 424–25. The Court was concerned that the use of a written\njob description might lead to “employers . . . [restricting] employees’ rights by\ncreating excessively broad job descriptions.” Id. at 424. In Dahlia, the Ninth\nCircuit held that Huppert’s reliance on “a broad court-created job description\napplicable to every member of a profession” was equally as problematic as\nrelying on an employer-created job description. 2013 WL 4437594, at *7.\n Yet, Huppert’s analysis raises a pertinent question—to what extent should\na court consider statutory duties of a police officer in identifying the scope of his\nor her official duties? Garcetti was concerned with courts limiting their analysis\nto the written description of an occupation, divorced from the actual function of\nthe employee. We have since interpreted Garcetti’s language as proscribing our\nexclusive reliance on an employer’s written description of duties when\n\n 6\n Mississippi law defines a law enforcement officer, which Gibson undoubtedly was, as\n“any person . . . whose primary responsibility is the prevention and detection of crime, the\napprehension of criminals[,] and the enforcement of the criminal and traffic laws of this state\nand/or the ordinances of any political subdivision thereof.” Miss. Code Ann. § 45-6-3(c).\n\n\n 10\n\f Case: 12-60905 Document: 00512446675 Page: 11 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nevaluating the merits of a First Amendment retaliation claim. See Williams v.\nRiley, 275 F. App’x 385, 389 (5th Cir. 2008) (unpublished) (per curiam)\n(hereinafter “Riley”). In Riley, jailers at a sheriff’s office reported their\nsupervisor’s abuse of an inmate. Id. at 387. The only facts in the record\nconcerning the jailers’ duty to report incidents of force came from a policy\nmanual; outside of the manual, the job duties of the jailers were “scarcely\nmentioned.” Id. at 389. We could have “presumed that an employee’s official job\nduties at a reasonable sheriff’s department would include reporting crimes\nperpetrated at work by department members,” but the record did not actually\ninclude such facts, so we remanded the case for further proceedings. Id. at\n389–90.\n Riley does not completely preclude the use of written job descriptions in\na First Amendment inquiry. In Davis, we expressly considered a university\nmemorandum that outlined the reporting procedures to be used by auditors in\norder to understand Davis’s duty to report as well as the chain of command. 518\nF.3d at 316. Unlike Riley, the record contained additional facts concerning the\nduties of auditors, so our analysis was not limited to the policy memorandum.\nThe memorandum was important to our determination that some of the speech\nin Davis’s letter to the Chancellor was official, thus showing that there is a\nproper place for the use of written descriptions of duties in a First Amendment\nretaliation analysis. Id.\n We decline to rely exclusively on a statutory description of a generic law\nenforcement officer to determine the scope of a specific police officer’s official\nduties. However, we do not exclude written descriptions of duties or statutory\ndefinitions from our analysis. In order to heed Garcetti’s admonition against\nsolely relying on the written description of an individual’s occupation, we will\nconsider Mississippi’s statutory language, viewing it as one factor among many.\nThis is consistent with our holding in Davis.\n\n 11\n\f Case: 12-60905 Document: 00512446675 Page: 12 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\n Turning now to the present matter, the district court concluded that\nGibson had shown that Kilpatrick violated his First Amendment rights, and in\nso doing, explained that under Davis, Gibson’s reports constituted citizen speech.\nThe court supported this legal conclusion with the following facts: (1) Gibson\nreported his suspicions to agencies outside of his chain of command; (2) there\nwas no evidence to show that Gibson’s duties included making reports to the FBI\nor DEA; and (3) there was a lack of evidence regarding the context in which\nGibson reported his suspicions other than that the reports were confidential.7\nThese facts make this case superficially resemble this court’s decision in Davis.\n However, Gibson’s speech is complicated by additional factors not fully\ndiscussed by the district court. Although Gibson’s precise job description is not\ncontained in the record, we can consider surrounding facts to determine whether\nhis speech is related to any conceivable job duties. See Charles, 522 F.3d at 514.\nThe circumstances surrounding the incident, from how Gibson learned of the\nmisuse of the gasoline card to his involvement in the investigation, speak\nvolumes about his actual duties as the Chief of Police. First, Kilpatrick’s use of\nthe city gasoline card was brought to Gibson’s attention through a subordinate.\nThe fact that the complaint came to him in a professional capacity and through\nthe chain of command reveals that managing and responding to allegations of\nthe misuse of civic funds was likely within the scope of his employment. See\nDavis, 518 F.3d at 313 (citing Williams, 480 F.3d at 694) (considering whether\nthe speech reflects a “special knowledge” gained by virtue of one’s employment);\nsee also Briscoe v. Jefferson Cnty., 500 F. App’x 274, 278 (5th Cir. 2012)\n(unpublished) (per curiam) (holding that the appellant’s use of her “special\n\n\n 7\n The district court also held that, in the absence of evidence regarding Gibson’s duties,\nhe was “more likely involved [in] responding to complaints from private citizens than making\nthem himself.” However, this is speculation, and not based on facts in the record. We may not\nbase our decisions on presumptions, regardless of how logical they may be. See Riley, 275 F.\nApp’x at 389.\n\n 12\n\f Case: 12-60905 Document: 00512446675 Page: 13 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nknowledge” of a record-keeping policy in order to substantiate a complaint is a\nfactor indicating that her speech was official).\n Second, Gibson’s decision to report to agencies outside of his chain of\ncommand does not necessarily show that he spoke as a citizen. Given his\nposition, there was arguably no one else to whom Gibson could confidentially\nreport the information. Gibson was the “chief law enforcement officer,” see Miss.\nCode Ann. § 21-21-1, and according to the district court’s findings of fact, the\nonly entities to which he could have reported within the chain of command were\nKilpatrick and the Board. Reporting to Kilpatrick—the suspected\nperpetrator—clearly was undesirable, while reporting to the Board might have\nrequired public disclosure of Gibson’s suspicions, perhaps endangering the\nsubsequent investigation. Indeed, it appears that once Board members learned\nof the investigation, one of them informed Kilpatrick. The state agencies Gibson\ncontacted may well have been the most appropriate entities to receive the\ninformation, a fact other courts have found instructive. See Patterson v. City of\nEarlington, 650 F. Supp. 2d 674, 680 (W.D. Ky. 2009) (holding that a police\nchief’s report of a mayor’s alleged election law violations to state police is not\nprotected because state police were the most appropriate authority to carry out\nthe investigation); Mantle v. City of Country Club Hills, No. 4:07-CV-55 (CEJ),\n2008 WL 3853432, at *4 (E.D. Mo. Aug. 15, 2008) (holding that a police chief’s\nreport of a mayor’s criminal conduct to a municipal court judge is not protected\nbecause the police chief had no departmental supervisor and the judge was the\nmost appropriate authority to whom he could report).8\n\n 8\n Kilpatrick argues that Gibson’s decision to contact individuals at the FBI and DEA\nwith whom he had previously worked indicates that he went through professional channels\nto make the report. However, this is unpersuasive. Gibson could have contacted these\nindividuals because he had a personal relationship with them by virtue of the fact that they\nmet while working together, which would indicate that the speech was private. It is also\npossible that these were the only people that Gibson could contact due to a limited regional\npresence of these federal agencies. We simply do not know. Since there is little evidence as\n\n 13\n\f Case: 12-60905 Document: 00512446675 Page: 14 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\n Third, it appears that Gibson was able to monitor Kilpatrick’s use of the\ngasoline card only because Kilpatrick was required to come to the police\ndepartment to collect it. Gibson fully took advantage of the authority afforded\nto him as Chief of Police, and he instructed his police officers to participate in\nthe investigation by monitoring Kilpatrick’s activities; he even sent a copy of the\nofficial police logs to the OSA. Although Gibson does not allege that his\nparticipation in the investigation is protected, we consider his involvement\nbecause it reflects his actual authority and ability to investigate and detect\ncrime. It supports our conclusion that Gibson was acting as a law enforcement\nofficer doing his job, not as a private citizen fulfilling his civic duty.\n Finally, Mississippi law reinforces what the facts surrounding the\ninvestigation show—that his “primary responsibility [was] the prevention and\ndetection of crime . . . [and] the apprehension of criminals.” See Miss. Code Ann.\n§ 45-6-3(c). Gibson, as Chief of Police, was the City of Drew’s “chief law\nenforcement officer” and had “control and supervision of all police officers\nemployed by” the city. Id. § 21-21-1. While we are not exclusively relying on the\nstatute’s definition to understand the duties of the Chief of Police, the statute\nweighs in favor of finding Gibson’s speech as part of his professional\nresponsibilities.\n Gibson’s argument that reporting illegal activity is the duty of all citizens,\nand therefore must constitute protected citizen speech, does not alter our\nconclusion. See Garcetti, 547 U.S. at 419 (“So long as employees are speaking as\ncitizens about matters of public concern, they must face only those speech\nrestrictions that are necessary for their employers to operate efficiently and\neffectively.”). Other courts have rightly rejected similar arguments. In\nparticular, the D.C. Circuit in Bowie v. Maddox stated that:\n\n\nto how Gibson knew these individuals and why he contacted them, we cannot say that this fact\nweighs in favor of either official or citizen speech.\n\n 14\n\f Case: 12-60905 Document: 00512446675 Page: 15 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\n The critical question under Garcetti is not whether the speech at\n issue has a civilian analogue, but whether it was performed\n “pursuant to . . . official duties.” A test that allows a First\n Amendment retaliation claim to proceed whenever the government\n employee can identify a civilian analogue for his speech is about as\n useful as a mosquito net made of chicken wire: [a]ll official speech,\n viewed at a sufficient level of abstraction, has a civilian analogue.\n653 F.3d 45, 48 (D.C. Cir. 2011) (citations omitted). Gibson’s argument\nfunctionally reads an unsupported exception into Garcetti’s holding that “when\npublic employees make statements pursuant to their official duties, the\nemployees are not speaking as citizens for First Amendment purposes, and the\nConstitution does not insulate their communications from employer discipline.”\n547 U.S. at 421. He would reverse this language, and instead of looking to\nwhether statements were made as part of an employee’s official duties, he would\nask only whether the speech could be classified as citizen speech and, if so, end\nthe inquiry. This is not Garcetti’s holding. See Bowie, 653 F.3d at 48.\n Gibson acted as the Chief of Police when he contacted various federal and\nstate law enforcement agencies to report misuse of the city gasoline card.\nBecause we conclude that Gibson acted pursuant to his official job duties in\nmaking the reports, we need not consider the remaining prongs of the First\nAmendment retaliation test, since he cannot show that Kilpatrick violated his\nFirst Amendment rights. In the absence of such a showing, Gibson cannot\novercome Kilpatrick’s qualified immunity defense. Thus, the district court erred\nin denying Kilpatrick’s motion for summary judgment premised on qualified\nimmunity, and we reverse.\n III. Motion to Dismiss\n The district court dismissed Gibson’s tort claims without prejudice for\nfailure to comply with the MTCA notice requirement. Gibson cross-appeals,\narguing that the district court erred in dismissing his malicious interference\nwith employment claim, but he does not appeal the dismissal with respect to his\n\n 15\n\f Case: 12-60905 Document: 00512446675 Page: 16 Date Filed: 11/19/2013\n\n\n\n No. 12-60905\n\nother tort claims. Kilpatrick moved to dismiss this appeal for want of\njurisdiction. We agree. See Finch v. Fort Bend Indep. Sch. Dist., 333 F.3d 555,\n565 (5th Cir. 2003) (declining to exercise pendent appellate jurisdiction over a\nstate law tort claim in an interlocutory appeal of the district court’s order\ndenying qualified immunity). Accordingly, we grant Kilpatrick’s motion to\ndismiss Gibson’s cross-appeal for lack of jurisdiction.\n IV. Conclusion\n For the foregoing reasons, we REVERSE the district court’s order denying\nKilpatrick’s motion for summary judgment based on qualified immunity and\nGRANT the motion to dismiss Gibson’s cross-appeal for lack of jurisdiction.\nFinally, we REMAND the case to the district court for further proceedings\nconsistent with this opinion. Gibson shall bear the costs of this appeal.\n\n\n\n\n 16\n\f", "ocr": false, "opinion_id": 2643133 } ]

[ "547 P.2d 574", "89 N.M. 91" ]

[ { "author_str": "Wood", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n547 P.2d 574 (1976)\n89 N.M. 91\nSTATE of New Mexico, Plaintiff-Appellee,\nv.\nRichard F. ARAGON, Jr., Defendant-Appellant.\nNo. 2175.\nCourt of Appeals of New Mexico.\nFebruary 3, 1976.\nCertiorari Denied March 9, 1976.\n*576 Clyde E. Sullivan, Jr., Albuquerque, N.M., for defendant-appellant.\nToney Anaya, Atty. Gen., F. Scott MacGillivray, Asst. Atty. Gen., Santa Fe, N.M., for plaintiff-appellee.\n\nOPINION\nWOOD, Chief Judge.\nConvicted of trafficking in heroin, defendant appeals. Section 54-11-20, N.M.S.A. 1953 (Repl.Vol. 8, pt. 2, Supp. 1975). There was substantial evidence to support the conviction. Because we remand for a new trial, we discuss four of the issues: (1) sufficiency of search warrant description; (2) scope of the search; (3) double jeopardy, and (4) coercive conduct by the trial court.\n\nSufficiency of the Search Warrant\nPolice officers searched defendant's premises pursuant to a search warrant. Defendant moved to suppress certain evidence on the basis that the warrant did not sufficiently describe the premises to be searched. At the evidentiary hearing it was shown that the warrant contained two errors. The color of the residence was wrong; the street number of the residence was wrong. Because of these errors defendant claims the trial court erred in refusing to hold the warrant invalid and in failing to suppress the evidence.\nState v. Sero, 82 N.M. 17, 474 P.2d 503 (Ct.App. 1970) states that \"a description is sufficient if the officer can, with reasonable effort, ascertain and identify the place intended to be searched... . The description, however, must be such that the officer is enabled to locate the place to be searched with certainty... . The description `* * * should identify the premises in such manner as to leave the officer no doubt and no discretion as to the premises to be searched. * * *'\"\nApart from the two errors, the warrant described the residence as having a green pitched roof, located on the west side of Perry Road, facing east and the fourth residence north of Blake Road on the west side of Perry Road. \"Located directly behind this residence is a chicken coupe [sic] type structure constructed of unpainted wood and chicken wire which contains numerous pigeons.\" The warrant states the residence was the only one in the immediate area which has a chicken coop containing pigeons behind it and that the chicken coop structure was plainly visible from Perry Road.\nThe requirements of Sero, supra, were met.\n\nScope of the Search\nThe warrant authorized a search of defendant and the residence. \"Also to be *577 searched is the curtilage area around the above described residence\". Generally speaking, \"curtilage\" is the enclosed space of grounds and buildings immediately surrounding a dwelling house. Black's Law Dictionary (4th Ed., 1951).\nThe curtilage in this case was fenced. The heroin was not found within the curtilage. The heroin was found in a tin can which was bent closed, lying on top of some weeds, \"right up against the fence,\" but on the outside of the fence. The heroin was physically located on property upon which there was an unoccupied house described as abandoned.\nDefendant contends the heroin should have been suppressed because \"during the execution of the warrant the search was extended beyond the scope of the permissible boundaries as deliniated [sic] by the language of the warrant\". Defendant contends that seizure of heroin found beyond the curtilage was unlawful.\nThe area outside the fence was not part of the curtilage in this case. See Hunsucker v. State, 475 P.2d 618 (Okl.Cr. 1970). Thus, we agree with defendant that the heroin was found and seized outside the curtilage, and that the warrant did not authorize a search outside the curtilage. This, however, does not make seizure of the heroin unlawful.\nDuring the course of a lawful search within the curtilage, an officer saw the tin can outside the fence. The can was viewed from a place the officer had a right to be under the warrant. See State v. Miller, 80 N.M. 227, 453 P.2d 590 (Ct. App. 1969). The can was not discovered as a result of an illegal search.\nThe constitutional prohibition is directed to unreasonable searches and seizures so that people may be secure in their \"persons, houses, papers and effects\". U.S.Const., Amend. IV; Compare N.M.Const., Art. II, § 10. The constitutional provision does not apply to items viewed in an open field. Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1924); People v. Reed, 210 Cal. App. 2d 80, 26 Cal. Rptr. 428 (1962). Even if the location of the heroin could not be considered an \"open\" field because of the weeds, nevertheless the heroin was on unoccupied property. Defendant had no reasonable expectation of privacy as to this location. The constitutional prohibition does not apply. Patler v. Slayton, 503 F.2d 472 (4th Cir.1974); United States v. Brown, 473 F.2d 952 (5th Cir.1973); Casey v. State, 87 Nev. 413, 488 P.2d 546 (1971).\nEven if the constitutional prohibition should apply, under the circumstances of this case, it was not unreasonable to seize the tin can found up against, but outside, the fence and to open the can to examine its contents. Surveillance by officers prior to issuance of the search warrant gave the officers probable cause to believe that heroin was hidden outside the residence. There is evidence that there was a path within the curtilage to the fenced area where the heroin was found.\n\nDouble Jeopardy\nDefendant was convicted at a second trial; his first trial ended in a mistrial. Defendant contends his second trial subjected him to double jeopardy because there was no \"manifest necessity\" for the mistrial.\nDuring the first trial the State sought to introduce an oral statement which defendant made shortly after the heroin was found. Defendant objected on the ground there was no showing that defendant had been advised of his rights prior to making the statement. This objection was framed as a \"constitutional ground\". The trial court conducted an evidentiary hearing outside the hearing of the jury and suppressed defendant's statement. After suppressing the statement, the trial court granted the State's motion for a mistrial.\nThe mistrial order states:\n\"This Court finds that a mistrial is necessitated by the failure of Defendant to properly and timely file motion to suppress oral statements prior to commencement *578 of trial, and raising of such motion for the first time during trial (contrary to local court rule) constituted prejudice to the State, and created a manifest necessity for mistrial upon the State's motion for same.\"\nIn seeking a mistrial, the State contended the defense had deliberately failed to timely move to suppress the oral statement prior to trial in order to cut off the State's right to appeal an adverse ruling. Defendant points out that the record does not show the State attempted to take an appeal (see § 21-10-2.1(B)(2), N.M.S.A. 1953 (Repl.Vol. 4, Supp. 1975)), and therefore there was no manifest necessity for the mistrial.\nIn addition, defendant asserts there is no showing that the State complied with defendant's request for discovery and, therefore, the State, rather than defendant, is at fault for the late motion. Because of this asserted fault by the State, defendant argues that there could be no manifest necessity for a mistrial.\nThe record shows that defendant did request discovery pursuant to Rule of Criminal Procedure 27. The record does not show that any procedures were held in connection with the asserted failure of the State to make discovery. See Rule of Criminal Procedure 27(d). Nor, during the hearing leading to the mistrial order, was any mention made of the asserted failure of the State to comply with any discovery rule. The \"discovery\" contention is spurious; it will not be considered further.\nThe record supports defendant's claim that the State did not attempt to appeal the ruling excluding defendant's oral statement. Compare, United States v. Moon, 491 F.2d 1047 (5th Cir.1974). We decline to hold there was a manifest necessity for the mistrial based on a right to appeal when no appeal was attempted. This, however, does not dispose of the double jeopardy claim.\nIn determining whether a mistrial should be declared, the trial court must consider whether the ends of public justice would be defeated by carrying the first trial to a final verdict. This consideration for the ends of public justice is a concept separate from manifest necessity. State v. De Baca, 88 N.M. 454, 541 P.2d 634 (Ct. App. 1975).\nState v. Helker, 88 N.M. 650, 545 P.2d 1028 (Ct.App.) decided December 2, 1975, held that the trial court could properly refuse to hear a motion to suppress that was untimely under Rule of Criminal Procedure 18(c). Helker, supra, had not been decided when defendant moved to suppress during the trial. The trial court felt it was required, constitutionally, to conduct an evidentiary hearing even though the motion was untimely. Yet, in so proceeding, the trial court ruled that the State was prejudiced by the untimeliness of the motion. The State was in fact prejudiced, because as Helker, supra, points out, the purpose of the rule providing for a timely motion to suppress is to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.\nUnited States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971) points out that in considering whether a mistrial was proper \"unquestionably an important factor to be considered is the need to hold litigants on both sides to standards of responsible professional conduct in the clash of an adversary criminal process.\"\nThe failure of defendant to file a timely motion to suppress resulted in prejudice to the State. In such circumstances, it would be contrary to the ends of public justice to carry the first trial to a final verdict. The trial court did not abuse its discretion in declaring a mistrial; there was no double jeopardy. United States v. Jorn, supra; State v. De Baca, supra.\n\nCoercive Conduct by the Trial Court\nThe jury retired to consider its verdict at 3:10 p.m. At 6:30 p.m. the jury was returned to the courtroom. The trial court inquired how they stood numerically. The foreman answered: \"Seven, four, one.\" *579 The trial court sent the jury to dinner with instructions to resume deliberations upon completing the meal. At midnight the court decided to give an additional instruction over defendant's objection. The jury was returned to the courtroom and asked how it stood numerically. The answer: \"Eleven to one.\" The additional instruction, among other things stated:\n\"... and if the larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one that makes no impression on the minds of so many men, equally honest, equally intelligent, with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.\"\nThe trial court told the jury to pay \"very close attention\" to the instruction and stated that the instruction was written \"so that you may have it with you, and use it in your further deliberations.\" Thereafter, sometime after midnight the jury resumed its deliberations. At 12:25 a.m. the jury returned a guilty verdict.\nThe additional instruction, known as the shotgun, was criticized by this Court in State v. Minns, 80 N.M. 269, 454 P.2d 355 (Ct.App. 1969). However, the Supreme Court continued its approval of the shotgun in State v. Cranford, 83 N.M. 294, 491 P.2d 511 (1971), cert. denied 409 U.S. 854, 93 S. Ct. 190, 34 L. Ed. 2d 98 (1972). Accordingly, we do not consider the additional instruction, standing alone, to be error. We consider the instruction in relation to the court's inquiry as to the numerical division of the jurors.\nIn State v. Nelson, 63 N.M. 428, 321 P.2d 202 (1958) defendant was convicted of murder in the first degree. During selection of the jury, each juror answered that in a proper case he would not be opposed to capital punishment. The jury deliberated at length before returning a guilty verdict. During their deliberations the jury was returned to the courtroom. The trial court inquired as to how the jurors stood numerically and was informed that the division was eleven to one. The trial court reminded the jurors of their answers on voir dire concerning capital punishment and then gave the shotgun instruction. Nelson, supra, states: \"... the instruction became a lecture to the one juror as to his duty to consider the attitude of the eleven as to first degree murder... . The instruction could have had no influence whatever on the eleven jurors.\"\nNelson, supra, holds that repeated reminders of the trial court to the jury of statements made by them on voir dire was coercive and reversible error. However, the opinion also states: \"... any one of these statements made by the court, which could have affected one juror only, was error.\"\nPirch v. Firestone Tire & Rubber Co., 80 N.M. 323, 455 P.2d 189 (Ct.App. 1969) used the same decisional method as Nelson, supra. In Pirch the trial court (1) inquired as to how the jurors were numerically divided, (2) gave an additional instruction without cautioning jurors not to surrender their honest convictions in order to arrive at a verdict, and (3) imposed a time limit on further deliberations with the threat of a mistrial if a verdict was not reached within that time limit. Reversal was on the basis that the cumulative effect of the trial court's actions resulted in coercion.\nThe jury had been deliberating from 3:10 p.m. until midnight, with a break for dinner. The trial court inquired and was informed that the numerical division was eleven to one. It then gave the shotgun instruction over defendant's objection. This instruction was a lecture to one juror. State v. Nelson, supra. Within twenty-five minutes of this lecture, a guilty verdict was returned. On the authority of Nelson, supra, and Pirch, supra, we hold that the inquiry as to numerical division followed by the shotgun instruction *580 was coercive conduct requiring reversal.\nAlthough our decision in this case is based on a combination of circumstances, we point out that the United States Supreme Court has held that inquiry as to the numerical division of a jury is error in itself.\nIn 1905, Burton v. United States, 196 U.S. 283, 25 S. Ct. 243, 49 L. Ed. 482, condemned the practice of inquiring as to the numerical division of jurors. The opinion states that such a practice ought not to grow up because it was not material for the court to know the numerical division. \"... [W]e do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge.\"\nThere was disagreement as to whether noncompliance with the comment in Burton, supra, amounted to reversible error. This disagreement was resolved in 1926 in Brasfield v. United States, 272 U.S. 448, 47 S. Ct. 135, 71 L. Ed. 345. The trial court inquired as to numerical division and was informed that the jurors stood nine to three. Brasfield, states:\n\"We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal.\"\n* * * * * *\n\"The failure of petitioners' counsel to particularize an exception to the court's inquiry does not preclude this court from correcting the error... . This is especially the case where the error, as here, affects the proper relations of the court to the jury, and cannot be effectively remedied by modification of the judge's charge after the harm has been done.\"\nCompare, Amos v. United States, 496 F.2d 1269 (8th Cir.1974).\nBecause the error goes to a \"fair and impartial\" trial, the error violates due process. Accordingly, Brasfield v. United States, supra, applies to New Mexico courts.\nAlthough Brasfield, supra, was decided fifty years ago, it appears that it has been little noted by either courts or counsel in New Mexico. See State v. Romero, 86 N.M. 674, 526 P.2d 816 (Ct.App. 1974). Accordingly, we give prospective application to the rule that inquiry into the numerical division of jurors is reversible error. State v. Jones, 44 N.M. 623, 107 P.2d 324 (1940); see State ex rel. Apodaca v. Fiorina, 83 N.M. 663, 495 P.2d 1379 (1972), cert. denied 416 U.S. 935, 94 S. Ct. 1932, 40 L. Ed. 2d 285 (1974). The rule will be applied in all cases where an inquiry into the numerical division occurs after the date of this decision. Compare Vallo v. State Board of Health and Social Services, 84 N.M. 220, 501 P.2d 664 (Ct.App. 1972). Inquiries into numerical division occurring prior to the date of this decision will be reviewed under the approach taken in State v. Nelson, supra, and Pirch v. Firestone Tire & Rubber Co., supra.\nOral argument is unnecessary. Because of coercive conduct by the trial court, the judgment and sentence are reversed. The case is remanded for a new trial.\nIT IS SO ORDERED.\nHENDLEY and SUTIN, JJ., concur.\n", "ocr": false, "opinion_id": 1219650 } ]

[ "545 F. App'x 709" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://cdn.ca9.uscourts.gov/datastore/memoranda/2013/11/25/11-73283.pdf", "author_id": null, "opinion_text": " FILED\n NOT FOR PUBLICATION NOV 25 2013\n\n MOLLY C. DWYER, CLERK\n UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS\n\n\n\n FOR THE NINTH CIRCUIT\n\n\nJINXIANG ZHANG, No. 11-73283\n\n Petitioner, Agency No. A088-291-234\n\n v.\n MEMORANDUM*\nERIC H. HOLDER, Jr., Attorney General,\n\n Respondent.\n\n\n On Petition for Review of an Order of the\n Board of Immigration Appeals\n\n Submitted November 19, 2013**\n\nBefore: CANBY, TROTT, and THOMAS, Circuit Judges.\n\n Jinxiang Zhang, a native and citizen of China, petitions pro se for review of\n\nthe Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an\n\nimmigration judge’s decision denying his application for asylum, withholding of\n\nremoval, and relief under the Convention Against Torture (“CAT”). Our\n\n\n *\n This disposition is not appropriate for publication and is not precedent\nexcept as provided by 9th Cir. R. 36-3.\n **\n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\fjurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence\n\nthe agency’s factual findings, applying the standards governing adverse credibility\n\ndeterminations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,\n\n1039-40 (9th Cir. 2010). We deny in part and dismiss in part the petition for\n\nreview.\n\n The record does not compel the conclusion that Zhang established changed\n\nor extraordinary circumstances to excuse the delay in filing his asylum application.\n\nSee 8 C.F.R. § 1208.4(a)(4), (a)(5). Accordingly, Zhang’s asylum claim fails.\n\n Substantial evidence supports the BIA’s adverse credibility finding based on\n\nZhang’s omission of a 1984 beating and detention from the written statement he\n\nsubmitted in support of his asylum claim, see Zamonov v. Holder, 649 F.3d 969,\n\n974 (9th Cir. 2011), inconsistencies between his testimony and documentary\n\nevidence regarding his wife’s employment, and the implausibility of his fear of\n\nsterilization if he returned to China, see Shrestha, 590 F.3d at 1048 (totality of the\n\ncircumstances supported adverse credibility determination). In the absence of\n\ncredible testimony, Zhang’s withholding of removal claim fails. See Farah v.\n\nAshcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). In light of this credibility\n\ndetermination, we do not address Zhang’s contentions regarding the merits of his\n\nclaim.\n\n\n 2 11-73283\n\f Finally, we lack jurisdiction to consider Zhang’s CAT claim because he did\n\nnot exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-\n\n78 (9th Cir. 2004).\n\n PETITION FOR REVIEW DENIED in part, DISMISSED in part.\n\n\n\n\n 3 11-73283\n\f", "ocr": false, "opinion_id": 2643946 } ]

[ "267 F. Supp. 2d 679" ]

[ { "author_str": "Heyburn", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1442, "opinion_text": "\n267 F.Supp.2d 679 (2003)\nWanda JOHNSON, Plaintiff,\nv.\nGALEN HEALTH INSTITUTES, INC. d/b/a The Health Institute of Louisville, Defendant.\nNo. CIV.A.3:02CV-243-H.\nUnited States District Court, W.D. Kentucky.\nJune 16, 2003.\n*680 Elizabeth Nugent Monohan, Kathryn A. Quesenberry, Woodward, Hobson & Fulton, Louisville, KY, for defendant.\nSean Ragland, Bolus & Ragland, Louisville, KY, for plaintiff.\n\n\n*681 MEMORANDUM OPINION\nHEYBURN, Chief Judge.\nPlaintiff Wanda Johnson alleges that Defendant Galen Health Institutes, Inc. d/b/a the Health Institute of Louisville (\"HIL\") violated Title IX of the federal Civil Rights Act of 1972, which prohibits gender discrimination in federally funded educational institutions.[1] First, under § 901, she asserts that HIL discriminated against her by exhibiting deliberate indifference to known sex discrimination.[2] Second, Johnson asserts that her expulsion amounts to retaliation also prohibited by § 901. Defendant HIL moved for summary judgment, arguing that all of Johnson's theories fail. This case requires the Court to consider several novel legal questions in light of the Supreme Court's recent opinions in Gebser v. Logo Vista Indep. School Dist, 524 U.S. 274, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), and Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), delineating the tests for sexual discrimination under Title IX and implied private rights of action, respectively.\nAfter carefully considering all issues, the Court holds that Johnson has not adequately pled the hostile environment aspect of her sexual discrimination claim under Title IX and that, furthermore, the quid pro quo element of her claim also fails because she has not shown that HIL had notice of the activity. On the other hand, the Court concludes that the Department of Education has reasonably construed § 901 of Title IX to forbid retaliation to the extent that this prohibition is premised on opposition to intentional discrimination. This prohibition is therefore enforceable via the existing implied private right of action under that section. The Court need not analyze whether a separate implied private right of action exists and Plaintiffs claim for retaliation may proceed.[3]\n\nI.\nThe facts in this case, although somewhat disputed at critical points, are relatively straightforward. Plaintiff Wanda *682 Johnson is a 44 year-old woman and a former student at the Health Institute of Louisville (\"HIL\"). During October 2000, she enrolled in HIL to complete the academic requirements to become a licensed practical nurse. By the summer of 2001, when Johnson began her third quarter, she took a month-long class with Nurse Instructor Donte Wheat. The course included a weekly three-hour classroom lecture and one day of clinical work at Kosair Children's Hospital (\"Kosair\").\nDuring this month, Johnson claims Wheat made several comments and physically touched her in ways that made her exceedingly uncomfortable and unable to focus on her education. The specifics of her claim are important. First, Johnson says that on the days she worked at Kosair, Wheat required the students to sit with him in the cafeteria. She says that each day, she sat down first and he would come sit next to her. Allegedly, he would press his leg up against the side of hers under the crowded table. This happened on at least four occasions. She says, she moved her leg away and he would try and scoot over to touch her again. Similarly, she alleges that once while they were on an elevator, Wheat pressed the front of his body against her back. Second, Johnson claims that several of Wheat's comments in class were entirely inappropriate. She says he \"almost all the time\" referred to breasts as \"boobies\" and \"cha-chas,\" the buttocks as the \"ass,\" and at least once called the penis \"dick.\" Johnson says this was offensive and degrading to her. These remarks occurred during the twicea-week lectures. Third, she alleges that on one occasion, Johnson was demonstrating electrocution therapy and asked the class where the human body would most strongly feel the shock. Students responded that it would be felt by the hands, the feet, and other extremities. Wheat apparently told them they were all wrong and said the correct answer was \"the dick\" and said that the thought of that put him in pain.\nFurthermore, Johnson alleges that on the last day of her' clinical at Kosair, Wheat sexually propositioned her. She says that she made a mistake while assessing a patient's blood pressure and that this incited Wheat's alleged bad temper. He apparently exclaimed, \"What makes you think you have the luxury of making mistakes?\" He then reached for her arm, put one hand on her elbow and another on her shoulder. She claims she turned away from him and he reached across with one arm to turn her back. She responded, \"I'm not interested.\" He replied \"That's the wrong answer to give on the last day of clinical.\" It is undisputed that he failed her. At her subsequent evaluation meeting, Wheat told her she failed because she gave the wrong answer to \"one question.\" When she asked which one, he responded, \"You know what question it is.\" Additionally, it also appears that Wheat initially gave Johnson a satisfactory evaluation but then later changed it after this event. Wheat vehemently disputes Johnson's interpretation of this incident and contends he never sexually propositioned her.\nShortly after these events, for reasons not entirely clear, Wheat left HIL. Johnson contends Wheat left because he was frustrated by the horrible evaluations students gave him. Wheat has not provided a response. In any event, HIL says that Johnson allegedly began circulating rumors that Wheat left because she filed a complaint against him with the Kentucky Commission on Human Rights (\"KCHR\"). Johnson says the KCHR told Johnson not to discuss her complaint and that she did not circulate rumors. Somehow, though, it appears that it was common knowledge among Johnson's classmates that Johnson *683 had taken some form of action against Wheat.\nWhen HIL President Michael Hendricks learned about these rumors, he called Johnson to his office for a meeting. At that meeting Johnson told Wheat that she had filed charges against Wheat with the Kentucky Commission for Human Rights (\"KCHR\"), but refused to tell him what Wheat had allegedly done. Hendricks said KCHR had not contacted him and that he was concerned she was instead spreading rumors because Wheat failed her. Hendricks asked Johnson to bring him proof that she complained to KCHR or she would be subject to dismissal for dishonesty under HIL's Code of Conduct. Because she allegedly never provided such documentation, HIL held a Code of Conduct hearing and expelled Johnson for dishonesty.\nJohnson's account is quite different. She claims that after Wheat failed her, she first called the police and said she was being sexually harassed. Johnson says she did not place the phone call because she received a failing grade, but because she knew she had to take another class with Wheat as a result of the failure and she wanted him to stop his derogatory behavior. The police put her in touch with the Rape and Crisis Information Center. She says the Center instructed her she was entitled to counseling, although she did not pursue it. The Center also told her she could contact the KCHR.\nAfter receiving this advice, Johnson claims that she did in fact report Wheat to the KCHR before her initial meeting with Wheat and completed an official questionnaire detailing the events as they unfolded. She also voiced her concern, in the form of a phone call to the state's Board of Nursing. It is unclear what came of this action. The KCHR however, did respond to Johnson's complaint, ultimately determining that it lacked jurisdiction over schools. Officials at KCHR told her they would forward her complaint to the state's department of education.\nPlaintiff says that when Hendricks called her in to discuss the rumor he was defensive and said Mr. Wheat was not violent, that Wheat would go after her financially, and that she had \"better be sure\" she was telling the truth in making her allegations. She further told Hendricks that KCHR told her not to discuss the details of her complaint with anyone and that she could not discuss it with him. In response, she says Hendricks requested proof that she had filed a complaint with KCHR and said he would expel her if it turned out she was lying. She says she tried to get this information immediately, but that the KCHR did not typically provide additional information on complaints, and was reluctant to do so in this case. As a result, she says, it took several weeks for her to get any proof.\nIn response to this request, some time before the Code of Conduct Board met, Johnson says she provided Hendricks with a letter from the Commission indicating that she attempted to file a charge against Wheat. This letter informed Hendricks that the Commission took the position that it did not have jurisdiction over the matter and thus could not have accepted a harassment charge against Wheat from Plaintiff. This letter did not say, however, as Hendricks subsequently told Johnson he really wanted, that Johnson filed the claim on a specific date before the initial August 21 meeting where Johnson told Hendricks she had filed charges. It is unclear whether Hendricks initially told Johnson if this letter was sufficient; she claims he gave her the impression that it was enough. Hendricks later told her, however, that the letter made no mention of sexual harassment and did not confirm she filed the *684 complaint prior to their meeting. It is unclear whether the Code of Conduct Board took this into consideration when it expelled her.[4]\n\nII.\nIn a series of decisions over the last 25 years, the Supreme Court has outlined the contours of Title IX liability. Beginning with its 1979 decision in Cannon v. University of Chicago, 441 U.S. 677, 704, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Court established that Title IX is enforceable through an implied private cause of action. In Franklin v. Gwinnett County Public Schools, 503 U.S. 60,112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), the Court delineated the available remedies, holding that monetary damages are available for Title IX violations by a school district, but only in so far as the plaintiff proves intentional discrimination. Most recently, in Gebser, 524 U.S. 274, 118 S.Ct. 1989, the Court set forth the legal standards for institutional liability where a student alleges sexual harassment by a teacher. Rejecting assertions that an institution could be held vicariously liable for an employee's actions, the Court held that Title IX liability attaches only when a school official \"who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination\" and fails to correct such behavior in a manner that amounts to deliberate indifference. Id. at 290, 118 S.Ct. 1989 (emphasis added).\nThus, to proceed on a Title IX claim against an educational institution a plaintiff must establish a prima facie case by showing that: (1) she was subjected to quid pro quo sexual harassment or a sexually hostile environment; (2) she provided actual notice of the situation to an \"appropriate person,\" who was, at a minimum, an official of the educational entity with authority to take corrective action and to end discrimination; and (3.) the institution's response to the harassment amounted to \"deliberate indifference.\" Klemencic v. Ohio State Univ., 263 F.3d 504 (6th Cir. 2001); see Morse v. Regents of the Univ. of Colorado, 154 F.3d 1124, 1127-28 (10th Cir.1998) (citing Gebser, 524 U.S. at 289-90, 118 S.Ct. 1989). The Court addresses each of the Gebser elements separately.\n\nA.\nJohnson alleges that Wheat's actions amounted to both a quid pro quo sexual proposition and subjected her to a sexually hostile environment. HIL vigorously disputes both of these claims.\n\n1.\nTo succeed on a quid pro quo claim, a plaintiff must allege that \"a tangible employment [or educational] action resulted from a refusal to submit to a supervisor's sexual demands.\" Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Wills v. Brown Univ., 184 F.3d 20, 25 (1st Cir.1999) (defining quid pro quo harassment as occurring \"when some benefit or adverse action, such as change in salary at work or a grade in school is made to depend on providing sexual favors to someone in authority...\"). Courts considering quid pro quo claims have applied the same standard to Title IX and Title VII cases. See Crandell v. *685 New York College of Osteopathic Medicine, 87 F.Supp.2d 304, 318 n. 145 (S.D.N.Y.2000); Liu v. Striuli 36 F.Supp.2d 452, 465 (D.R.I.1999).\nJohnson's allegations sufficiently allege such a showing. She claims that on her last day of class, Wheat touched her at which point she told him that she was not interested. Despite previously giving her favorable reviews, Johnson alleges Wheat decided to fail her based on this encounter. Wheat counters that this conversation had nothing to do with his sexual interest in her and instead was entirely about her interest in the class and the lack of effort Johnson put forth. This is an entirely reasonable argument. However, it is also a matter of interpretation. Viewing the facts in a light most favorable to Johnson, a reasonable jury might also conclude that Wheat did fail her because she refused his alleged advances. Therefore, Johnson has sufficiently alleged quid pro quo harassment.\n\n2.\nHIL also contends Johnson's allegations are insufficient to constitute hostile environment harassment. Here the question is much closer. To establish a prima facie case for hostile environment under Title IX, Johnson must produce evidence that her educational experience was \"permeated with discriminatory intimidation, ridicule and insult that [was] sufficiently severe or pervasive to alter the conditions\" of her education and create a sexually hostile environment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); see also Faragher v. City of Boca Raton, 524 U.S. 775, 787-89, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (discussing the standard applied in Title VII cases and noting that the behavior must unreasonably interfere with an employee's work performance).[5] To be actionable, the offensive behavior must be based on sex, rather than personal animus or other reasons. Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 66 (1st Cir.2002). The conduct complained of is judged both objectively and subjectively; it must be sufficiently severe or pervasive to create an environment that a reasonable person would find hostile. Black v. Zaring, 104 F.3d 822 (6th Cir. 1997).\nFrom the record, it is clear that plaintiff viewed her environment as hostile and abusive. The remaining question is whether a reasonable person in plaintiffs circumstances would find the educational environment so severe, pervasive, and objectively offensive as to undermine plaintiffs educational experience and deny her equal access to an institution's resources and opportunities. See Davis v. Monroe County Bd. of Educ, 526 U.S. 629, 650, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). In determining whether a plaintiff has established that an environment is hostile or abusive, a court must look specifically at (1) the conduct's severity; (2) the frequency of the abusive conduct; (3) whether it is physically threatening or humiliating rather than merely offensive; and (4) whether it unreasonably interferes with the plaintiffs performance. See Harris, 510 U.S. at 23, 114 S.Ct. 367. In applying these factors, the Supreme Court has stated that sporadic use of abusive language, gender related jokes, or occasional episodes of *686 harassment do not amount to discriminatory changes in the terms and conditions of employment. 524 U.S. at 788, 118 S.Ct. 2275.\nJohnson's argument in this case is premised on four facts. First, Johnson says Wheat inappropriately touched her by sitting too close together on at least five occasions, including at lunch and on the elevator. Second, she says he often referred to sexual body parts with perverse slang. Third, she alleges that he talked openly in class about his genitalia. Fourth, Johnson claims on the last day of her clinical, he put his hands on her arms and shoulders before allegedly propositioning her. The Court has looked at a myriad of other cases addressing this same issue. The specific conduct here seems quite a bit less severe than other instances of sexually hostile educational claims. See, e.g., Doe v. New Philadelphia Public Schools Bd. Of Educ, 996 F.Supp. 741 (N.D.Ohio 1998) (grade school teacher had sexual relationship with student that resulted in the teacher's pregnancy); Massey v. Akron City Board of Education, 82 F.Supp.2d 735 (N.D.Ohio 2000) (teacher/counselor fondled young boys, commented on their physique, phoned students at home, and engaged in sexual relations with at least one high school student); Hayut v. State University of New York, 127 F.Supp.2d 333 (N.D.N.Y.2000) (summary judgment denied where teacher repeatedly referred to student in class as \"Monica Lewinsky\" and asked her how \"Bill\" was doing); Flores v. Saulpaugh, 115 F.Supp.2d 319 (N.D.N.Y.2000) (summary judgment denied when teacher put his arm around student, looked at her in a sexual manner, commented on her appearance, and stated that she should find a more mature boyfriend).\nRather, the harassment complained of here is more akin to those instances where courts granted summary judgment. See, e.g., Gallant v. Board of Trustees of California State University, 997 F.Supp. 1231 (N.D.Cal.1998) (professor's graphic comments about his sexual desire for another man and a greeting kiss on student's cheek does not rise to the level of severe or pervasive sexual harassment); Klemencic v. Ohio State University, 10 F.Supp.2d 911 (S.D.Ohio 1998) (coach did not create a sexually hostile environment by asking the student to go out with him and sending her a sexually suggestive magazine article because the acts were not severe or pervasive).[6] In sum, the absence of severe conduct directed at Johnson seems to set this case apart even from those that other courts have found insufficient.\nNevertheless, one might consider this a close question. It is always difficult to analyze conduct with which one thoroughly abhors in the light of statutory and judicial commands. However, analyzing several of the other Davis factors strongly support dismissing the claim here. Wheat's conduct was not \"pervasive\" in the sense that there was severe harassment on a regular basis. Nor can the comments Wheat made in class, although arguably entirely offensive, be classified as sufficiently humiliating and frequent to pass muster. Those comments are precisely the kind which the Supreme Court has said do not *687 constitute discrimination. Last, it appears Johnson never stopped going to class. Title IX requires that the harassment clearly interfere with her education. In this case, although it is true Johnson and Wheat had a less than amicable relationship, it does not appear, based on the standard the law requires this court to apply, that his tendency to allegedly create a \"sexually hostile environment\" interfered with her education. The Court therefore concludes that Johnson has not sufficiently alleged that a hostile environment existed under Title IX. That part of her claim is dismissed.\n\nB.\nAs to the second requirement, the Supreme Court has held that, to establish a basis for institutional liability and recover damages, a Title IX litigant must demonstrate that \"an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the federal funding recipient's behalf must have had actual knowledge of the facts underlying the Title IX claim. Gebser, 524 U.S. at 290, 118 S.Ct. 1989.[7] Neither constructive notice nor apparent authority will suffice.\nThe Court has not found any Sixth Circuit case interpreting the contours of the Gebser notice requirement. This case raises two important questions which Gebser left open. First, must the institution receive notice that Plaintiff herself was subjected to a sexually hostile environment or is notice from other individuals in this same environment sufficient? Lower courts have split on this question. It appears that all district courts addressing this issue have adopted the latter position, holding that \"the institution must have possessed enough knowledge of the harassment that it reasonably could have responded with remedial measures to address the kind of harassment upon which plaintiffs legal claim is based.\" Folkes v. New York College of Osteopathic Med., 214 F.Supp.2d 273 (E.D.N.Y.2002); see also Hart v. Paint Valley Local Sch. Dist, 2002 WL 31951264, *6-7, 2002 U.S. Dist. LEIS 25720, *22 (S.D.Ohio 2002); Frederick v. Simpson College, 149 F.Supp.2d 826 (S.D.Iowa 2001); Crandell v. New York College of Osteopathic Med., 87 F.Supp.2d 304 (S.D.N.Y.2000); Gordon v. Ottumwa Comm. Sch. Dist, 115 F.Supp.2d 1077, 1082 (S.D.Iowa 2000); Massey v. Akron City Bd. of Educ, 82 F.Supp.2d 735, 744 (N.D.Ohio 2000); Doe v. School Admin. Dist. No. 19, 66 F.Supp.2d 57, 63 (D.Me. 1999). On the other hand, the Fourth Circuit has interpreted Gebser's requirement of \"actual knowledge of discrimination in the recipient's programs\" to require \"a showing that school district officials possessed actual knowledge of the discriminatory conduct in question.\" Baynard v. Malone, 268 F.3d 228, 237-38 (4th Cir. 2001). The Fourth Circuit concluded that, while a principal should have been aware of the potential for abuse based on reports from other students, the institution could not be held liable because there was no evidence indicating that the principal was actually aware that the student-plaintiff was being abused.\nTo decide which notice requirement governs, the Court returns to Gebser, where the Supreme Court concluded that, consistent with Congress's authority under the spending clause, institutional liability must be premised on \"actual knowledge of discrimination in the recipient's programs.\" 524 U.S. at 290, 118 S.Ct. 1989. In this *688 Court's view, the Gebser notice standard does not require that the offending instructor actually commit previous acts of harassment against the plaintiff-student and that the plaintiff-student complain before the institution may be held liable for the instructor's subsequent repeated misconduct under Title IX. Actual knowledge of intentional discrimination and actual knowledge of the actual plaintiffs experiences are two different things; requiring the latter imposes a substantially higher test than the former. Consistent with the majority of other courts, the Court thus finds that the actual notice standard is met when an appropriate official has actual knowledge of a substantial risk of abuse to students based on prior complaints by other students.[8]\nHere, though it is true Johnson herself never complained specifically about these instances, Hendricks was allegedly aware of four facts.[9] First, several students in their evaluations gave Wheat negative remarks and described him as \"intimidating.\" Second, Johnson claims that Ronetta Potts, a Nurse Educator employed by Kosair, where Wheat taught the clinical, complained vociferously to Hendricks. At one point, Potts apparently faxed Hendricks a letter stating Wheat was inappropriate with patients and families; made inappropriate comments, such as questioning the morality of a patient for being a single unwed mother; and asked offensive questions and was condescending towards her. Third, Johnson claims that another student complained to Hendricks about Wheat's behavior and went so far as to compare Wheat to her abusive husband. Fourth, Johnson says that she went to Hendricks before her final clinical at Kosair and complained that Wheat was generally inappropriate in class. She further says she was afraid to tell him the details because she knew Hendricks and Wheat were friends and that Wheat was already acting threatening towards her. Johnson says she did not tell Hendricks about the touching.[10]\nAt this stage the Court cannot say for sure whether these comments and *689 Attitudes were directed at women (and therefore are covered by Title IX) or were instead indicative of an across-the-board tough instructor. Indeed, the Court need not determine whether Hendricks had knowledge of conduct which might constitute discrimination against female students generally. That being said, with regard to the remaining quid pro quo claim, it appears Hendricks received absolutely no previous complaints of sexual advances or threats by Wheat against female students. This fact is critical to the remaining quid pro quo part of Johnson's sexual discrimination claim.\nOne could say, however, that the Gebser actual notice prong does not require such specificity: the relationship between the type of discrimination complained of, and the type of notice the school official receives need not perfectly correspond. The Court has found no other federal court opinion discussing this second issue left open by Gebser. The Court concludes, however, that the Gebser opinion requires a more stringent correlation. As the Supreme Court explained in Gebser, Congress enacted Title IX, pursuant to its spending clause power, \"to avoid the use of federal resources to support discriminatory practices\" and \"to provide individual citizens effective protection against those practices.\" 524 U.S at 286, 118 S.Ct. 1989 (citing Cannon, 441 U.S. at 704, 99 S.Ct. 1946). In this respect, Title IX conditions \"an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.\" Id. at 286, 118 S.Ct. 1989. Based on this underlying principle, the Court concluded that a recipient of federal funds could not be held liable for failing to prohibit sex discrimination, if it lacked notice that such discrimination took place and therefore lacked \"an opportunity to take action to end the harassment or to limit further harassment.\" Id. at 289, 118 S.Ct. 1989.\nApplying this contractual theory to this case, notice of a tendency to create a sexually offensive environment and notice of a tendency to sexually proposition a student are very different. HIL had knowledge of facts which may possibly have been sufficient notice of a sexually offensive atmosphere. However, under the Supreme Court's Title IX analysis, an institution's opportunity to respond and remedy a situation depends on its actual notice of the alleged discrimination; the scope of that notice, then, must also be a consideration in determining the institution's liability. HIL had no notice of the quid quo pro proposition. The Court, therefore, declines to find that the minimal notice HIL possessed is sufficient to create liability for Johnson's quid pro quo claim. As such, Johnson's quid pro quo claim must also be dismissed.\n\nIII.\nThe Court next considers whether Title IX provides Johnson a cause of action and a private remedy against HIL for its allegedly retaliatory actions.[11] This question *690 requires the Court to explore whether the Supreme Court's jurisprudence creating a private right of action for intentionally discriminatory acts also permits claims premised on retaliation. This is an issue of first impression in the Sixth Circuit; other circuits have split on this question.[12] The Court therefore proceeds reviewing the relevant statutory and regulation provisions and then analyzing the effect of the Supreme Court's opinion in Sandoval on the availability of a cause of action for retaliation under Title IX.\n\nA.\nWhen Congress enacted Title IX in 1972, it had two principal objectives in mind: \"To avoid the use of federal resources to support discriminatory practices\" and \"to provide individual citizens effective protection against those practices.\" Cannon, 441 U.S. at 704, 99 S.Ct. 1946. Towards those ends, Title IX contains two distinct parts. First, § 901 provides that \"no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, *691 or be subjected to discrimination under any education program or activity receiving Federal financial assistance ....\" 20 U.S.C. § 1681(a).[13] Section 901, then, can be said to create the right.\nSecond, in section § 902, Congress created an elaborate administrative enforcement scheme for Title IX. Pursuant to § 902, any federal department or agency that \"is empowered to extend Federal financial assistance to any education program or activity\" is \"authorized and directed to effectuate the provisions of § 901. To do so, agencies are required to \"issue rules, regulations, or orders of general applicability,\" which do not \"become effective unless and until approved by the President.\" [14] In this way, Section 902 provides *692 administrative agencies with powers to add greater specificity to the § 901 right.\nUnder this § 902 authority, the Department of Education promulgated a regulation, 34 C.F.R., Part 100, which provides:\n(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part.\n34 C.F.R. § 100.7(e) (emphasis added).[15]\nImportantly, the Department of Education's Title IX regulations, which establish rights under \"this part\" for purposes of 34 C.F.R. § 100.7(e), forbid both intentional discrimination and practices that have a disparate impact, but are not intentionally discriminatory. 34 C.F.R. § 100.3. The regulations further require \"affirmative action to overcome the effects of prior discrimination,\" 34 C.F.R. § 100.3(b)(6)(I), and permit affirmative action \"even in the absence of such prior discrimination,\" 34 C.F.R. § 100.3(b)(6)(ii). Based on this scheme, Johnson alleges Congress has permitted her to sue HIL, for retaliatory actions taken in violation of Title IX.\n\nB.\nThe Court begins its analysis by considering the Supreme Court's recent opinion in Sandoval 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517. In chat case, the Court clarified and articulated the approach courts must now follow in determining whether to imply a private right of action from a statute and, in so doing, analyzed a regulation promulgated under Title VI.[16] The Supreme Court's analysis of the relationship between §§ 601 and 602 of Title VI in Sandoval largely informs this Court's analysis of §§ 901 and 902 of Title IX. Cannon, 441 U.S. at 694-99, 99 S.Ct. 1946 (noting that Title IX \"was patterned after Title VI\" therefore finding based on the statutory language of Title VI should logically extend to Title IX as well).\nIn Sandoval, the Supreme Court considered whether a private individual could bring an action for violations of regulations forbidding disparate impact practices. The Court began by stating three principles which framed its analysis. First, private individuals may sue to enforce §§ 601 and 901 to obtain both injunctive relief and monetary damages. See Sandoval 532 *693 U.S. at 279-80, 121 S.Ct. 1511 (citing Cannon, 441 U.S. at 694-99, 99 S.Ct. 1946 (holding that a private right of action exists to enforce Title IX)); Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 72, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (holding that both monetary and equitable remedies are available under a Title IX action). Second, \" § 601 prohibits only intentional discrimination.\" Sandoval, 532 U.S. at 280-82, 121 S.Ct. 1511. Third, some \"regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601.\" Id. at 281, 121 S.Ct. 1511.\nThe Court then turned to classify the regulation at issue: a Department of Justice regulation promulgated pursuant to § 602 of Title VI that forbade recipients of federal funding from \"utilizing criteria or methods of administration which have the effect of subjecting individual to discrimination because of their race, color, or national origin.\" 29 C.F.R. § 42.104(b)(2)(1999). Recognizing that Title VI itself only reached acts of intentional discrimination, the plaintiff in Sandoval did not allege a violation of Title VI per se. Instead, the plaintiff claimed the Alabama Department of Public Safety's policy of administering all tests for drivers' licenses in English had a uniquely discriminating effect on minorities. This disparate impact, the plaintiff argued, violated the Justice Department's regulation. In effect, the plaintiff wanted the Court to find that, implicit in the grant of § 602 authority to federal agencies to enact regulations was a private right to sue under § 602 for violations of those regulations. The Court refused to imply such a private right of action into § 602's language.\nTo reach this conclusion, the Court distinguished between two types of regulations an agency might enact under its § 602 authority. On one side were those regulations that applied § 601's ban on intentional discrimination. Sandoval, 532 U.S. at 284, 121 S.Ct. 1511. In those cases, the Court explained:\nWe do not doubt that regulations applying § 601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, see NationsBank of N.C., N.A v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), and it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well.\nId.\nConsequently, the Court reasoned, a regulation tied to effectuating § 601's ban on intentional discrimination simply further policed the type of discrimination that § 601 already prohibited. Therefore, in such cases, to allege a violation of a regulation enacted under § 602's authority, was not to sue under an independent cause of action for a violation of a particular regulation or even § 602, but rather was to sue for a violation of a right created by § 601. The regulation (enacted under § 602's authority), the Court reasoned, simply further explained what that § 601 right entailed. In these cases, the Court concluded that it was unnecessary to consider whether an implied private right of action existed because the plaintiff was *694 simply exercising his already existing right to sue under § 601.\nIn the second category were those regulations enacted under § 602 authority that went farther and \"[forbade] conduct that § 601 permits.\" Sandoval, 532 U.S. at 285, 121 S.Ct. 1511. In other words, the Court distinguished those regulations— like the one in Sandoval involving a disparate impact rule—where the plaintiff alleged a violation of a regulation which prohibited discrimination without regard to intent. In those instances, the Court stated that the plaintiffs claim for a violation of the regulation was not covered by the § 601 ban on intentional discrimination; instead, the Court characterized the plaintiffs claim as a separate cause of action seeking relief under § 602. Because the plaintiffs claim in Sandoval was premised on a regulation that involved a disparate impact rule, as opposed to a claim of intentional discrimination, the Court placed it in this second category. Thus, the question presented in Sandoval, and the one the Court primarily addressed, was whether § 602 conferred a separate private right of action.[17] The Supreme Court held that § 602 conferred no such private right of action. Id.[18]\n\nC.\nBased on the Sandoval framework, this Court must make two related determinations. First, the Court must analyze whether a claim based on the Department of Education's anti-retaliation regulation effectuates § 901's anti-discrimination mandate. Second, applying Chevron, the Court must find the regulation is valid and commands deference. See Sandoval, 532 U.S. at 284, 121 S.Ct. 1511 (noting that regulations applying § 601's ban on intentional discrimination, if valid and reasonable under Chevron, authoritatively construe the statute itself and are covered by the § 601 right of action). If the regulation passes both of these tests, Johnson's claim premised on § 100.7(e), is encompassed by the well-established private right of action under Title IX for intentional discrimination.\n\n1.\nAs to the first question, HIL argues that this Court should adopt the Eleventh Circuit's reasoning in Jackson v. Birmingham *695 Board of Educ, 309 F.3d 1333, 1344-48 (11th Cir.2002), where a court considering the same question presented here held that \"[n]othing in the text [of § 901] indicates any congressional concern with retaliation that might be visited on those who complain of Title IX violations. Indeed, the statute makes no mention of retaliation at all.\" Id. at 1344. Drawing from Sandoval's instruction that courts should not imply private rights of actions where Congress does not explicitly designate them, the Eleventh Circuit reasoned that § 901's anti-discrimination mandate did not encompass claims for retaliation. Id. at 1345-46. See also Atkinson v. Lafayette College, 2002 WL 123449, 2002 U.S. Dist. LEXIS 1432 (E.D.Pa.2002) (relying on Sandoval to find that the court lacked the power to imply a private right of action for retaliation under Title IX); Litman v. George Mason University, 156 F.Supp.2d 579 (E.D.Va.2001) (same).\nThis Court respectfully disagrees and adopts the position more recently set forth by the Fourth Circuit in Peters v. Jenney, 327 F.3d 307 (4th Cir.2003) (addressing the same issue in the Title VI context). See also Frazier, 276 F.3d at 67 (establishing the standard a student must meet to prevail on a Title IX retaliation claim, but not discussing the effect of Sandoval on the court's analysis); Burwell v. Pekin Comm. High Sch. Dist. 303, 213 F.Supp.2d 917, 934-25 (C.D.Ill.2002) (recognizing claim for retaliation under Title IX). In Peters, the Fourth Circuit reasoned that the text of Sandoval and Title IX did not require the court to analyze § 601's text to determine whether Congress, as evidenced wholly by statutory intent, explicitly created an implied private right of action. 327 F.3d at 316-17. This was because Peters, like this Court, first analyzed whether § 100.7(e) \"applied § 601's ban on intentional discrimination...\" Id. Drawing on the Peters approach, this Court, for several reasons, concludes that the anti-retaliation provision cuts to the core of § 901's ban on intentional discrimination and is covered by that section's existing cause of action.\nFirst, as a doctrinal matter, a regulation that specifically prohibits retaliation for intentional discrimination does not prohibit any more action than § 901 already prohibits. That is, if the Sandoval Court refused to allow the claim in that case to proceed because it concluded the DOJ regulation forbade conduct that § 601 permitted, then the test here is whether § 100.7(e) prohibits conduct otherwise allowed by § 901. 532 U.S. at 285, 121 S.Ct. 1511 (concluding that it \"is clear now that the disparate-impact regulations do not simply apply § 601—since they indeed forbid conduct that § 601 permits—and therefore clear that the private right of action to enforce § 601 does not include a private right to enforce these regulations\"). The Court concludes, based on this test, that in so long as § 100.7(e) is used to challenge acts of intentional discrimination—and therefore only prohibits conduct already prohibited by § 901—the regulation is properly within the existing implied private right of action to enforce § 901 and does not attempt to forbid conduct § 901 otherwise permits. In as much as an intent to discriminate exists when someone is intentionally treated differently because of her gender, that intent clearly carries over to a context where someone intentionally chooses to expel a student based on actions she took in defense of her rights as a member of a particular gender. The purpose in both cases is the same: to punish someone for reasons that, but for intentional discrimination against their gender, would not exist.\nSecond, the Supreme Court has implicitly recognized that the right to be free from retaliation is implicit in the right to be free from intentional discrimination. To begin, *696 in Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), the Supreme Court considered whether 42 U.S.C. § 1982's broad prohibition on discrimination on property transactions also allowed a claim for retaliation. Nothing in the text of § 1982 mentioned retaliation. The plaintiff alleged his neighborhood association retaliated against him because he attempted to lease his property to a black man. The plaintiff brought suit under § 1982,[19] which the board challenged, claiming the plaintiffs expulsion was not covered by § 1982's anti-discrimination provision. Rejecting this assertion, the Supreme Court held that \"if that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property.\" As several federal courts have noted, Sullivan can thus be construed to stand for the proposition that a prohibition on discrimination should be judicially construed to include an implicit prohibition on retaliation against those who oppose the prohibited discrimination. Peters, 327 F.3d at 317; Johnson v. Univ. of Cincinnati 215 F.3d 561, 576 (6th Cir.2000); Fair Employment Council v. BMC Mktg. Corp., 28 F.3d 1268, 1280 (D.C.Cir.1994).\nFour years after Sullivan, the Court used the same logic and similarly recognized that, while 42 U.S.C. § 1983 nowhere expressly bars retaliation,[20] retaliation must be actionable in order to effectuate those rights. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The Court held that even though a state employee has no right to employment, the state could not simply fire him for criticizing his employer. Id. at 597, 92 S.Ct. 2694. \"This would allow the government to produce a result which [it] could not command directly.\" Id. (citing Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)). See also Crawford-El v. Britten, 523 U.S. 574, 588 n. 10, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (explaining that; \"retaliation offends the Constitution [because] it threatens to inhibit exercise of the protected right\" and \"is thus akin to an unconstitutional condition demanded for the receipt of a government-provided benefit\"). Importantly, both Sullivan and Perry involved antidiscrimination statutes written at the same level of generality as Title IX.\nRelying on the Supreme Court's statement of this principle; in these two contexts, numerous federal courts of appeals, including the Sixth Circuit, have similarly held that 42 U.S.C. § 1981, which broadly prohibits discrimination in contracting, also provides a cause of action for retaliation. See, e.g., Foley v. Univ. of Houston Sys., 324 F.3d 310, 315 (5th Cir.2003); Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 258 (4th Cir.2001); Johnson, 2 F.3d at 576; Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998); Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1266-67 (10th Cir.1989); Fiedler v. Marumsco Christian Sch., 631 F.2d 1144, 1149 n. 7 (1980). Each of these opinions reached this conclusion, despite the fact § 1981—like §§ 1982 and 1983— says nothing about retaliation and \"only proscribes purposeful discrimination.\" *697 Peters, 327 F.3d at 318 (citing Murrell, 262 F.3d at 257).[21]\nLast, this Court notes that, on several prior occasions, the Supreme Court has stated that Congress intended to prohibit a wide range of discriminatory actions when it enacted Title IX. In North Haven Board of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982), the Court stated, \"[t]here is no doubt that if we are to give [Title IX] the scope that its origins dictate, we must accord it a sweep as broad as its language.\" Id. at 521, 102 S.Ct. 1912 (citing United States v. Price, 383 U.S. 787, 801, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966)). The Court thus concluded that Title IX authorized the Department of Health, Education and Welfare to enact a regulation prohibiting gender discrimination in employment by federal fund recipients, even though employment itself was not mentioned in § 901. See also Franklin, 503 U.S. at 76, 112 S.Ct. 1028 (interpreting Title IX broadly to find that Title IX reaches student-on-student sexual harassment). Likewise, the Supreme Court has held that all available remedies are available to effectuate Title IX's guarantees. Franklin, 503 U.S. at 69, 112 S.Ct. 1028 (\"the existence of a statutory right implies the existence of all necessary and appropriate remedies\"). In this case, to find that Johnson had a right to be free from intentional discrimination but receives no protection when she faces retaliation for asserting that right contradicts these decisions. In such a circumstance, it only makes practical sense that under Title IX one has the right to sue a defendant who prevents one from asserting her Title IX rights.\n\n2.\nFinding that § 100.7(e) falls squarely within § 901's ban on intentional discrimination, the Court must last determine whether § 100.7(e) is valid under Chevron and therefore commands this Court's deference.\nUnder the Chevron standard, a court inquires \"first whether the intent of Congress is clear as to the precise question at issue ... If so, that is the end of the matter.\" NationsBank of N.C., N.A v. Variable Annuity Life Ins. Co., 513 U.S. 251, 257, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995). If, however:\nthe statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. If the administrator's reading fills a gap or defines a term in a way that is reasonable in light of the legislature's revealed design, we give the administrator's judgment controlling weight.\nId. (internal quotation marks and citations omitted).\nIn this case, the Department of Education is the agency historically \"charged with responsibility for administering Title IX.\" Cannon, 441 U.S. at 706-08, 99 S.Ct. 1946. Pursuant to this authority, the Department of Education promulgated § 100.7(e). Here, because Congress clearly did not explicitly authorize the Department of Education to enact a regulation prohibiting retaliation, Congress's intent is not clear. The question therefore is whether the Department of Education could reasonably construe § 901 to authorize § 100.7(e).\n*698 This Court concludes, in light of the principles and the long line of authority previously discussed, that the Department of Education can certainly be said to have acted reasonably in construing § 901 to forbid retaliation premised upon opposition to practices § 901 makes unlawful. Peters, 327 F.3d at 318. It \"is neither inconsistent with the text of [§ 901] nor an unreasonable construction of that section for an agency to construe it to cover those who are purposefully injured for opposing the intentional discrimination Congress made unlawful via [§ 901].\" Id. Accordingly, the Court finds that the Department of Education acted reasonably in enacting § 100.7(e) and its regulation is entitled to deference and must be given controlling weight under Chevron.\nThe Court will enter an order consistent with this Memorandum Opinion.\nNOTES\n[1] Plaintiff has also filed a motion to amend her complaint, adding a claim that HIL violated Title IX by retaliating against her. Under Fed.R.Civ.P. 15(a), leave to amend \"shall be freely given when justice so requires.\" The Court does not necessarily see the need for this amendment since the retaliation claim also falls under § 901 of Title IX and Plaintiff sufficiently pled facts in her initial complaint to put Defendant on notice of the retaliation claim. Furthermore, Defendant adequately addressed this retaliation argument in its motion for summary judgment. Defendant is not unduly prejudiced by Plaintiff's failure to separately state her retaliation claim. Therefore, the Court sustains Plaintiff's motion to amend her complaint to the extent this will help clear up the record.\n[2] Plaintiff actually alleges two separate theories of the underlying discrimination: sexual harassment and quid pro quo discrimination.\n[3] Summary judgment is appropriate where \"there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.\" Fed.R.Civ.P. 56(c); See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). \"At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter.\" Wiley v. U.S., 20 F.3d 222, 227 (6th Cir. 1994). The Court's role is limited to determining if the evidence submitted viewed in a light most favorable to the non-moving party presents a sufficient disagreement about the material facts so that submission to trier of fact is necessary, or whether the evidence is so one-sided that a party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986). A dispute is genuine when \"the evidence is such that a reasonable jury could return a verdict for the non-moving party.\" Id. at 251-52, 106 S.Ct. 2505.\n[4] Johnson also says she worked very hard to get what Hendricks wanted, but suggests the KCHR was not quick to respond to her requests and ultimately generated a form letter stating the status of her complaint. When she again asked for a letter noting the proper date of her initial filing, Johnson says KCHR officials told her she was lucky to get anything since the KCHR typically did not provide any information on an individual request basis.\n[5] Although there is no direct link between hostile environment claims under Title VII of the Civil Rights Act of 1964 and Title IX, courts rely on Title VII law to analyze Title IX hostile environment claims. See, e.g., Franklin, 503 U.S. at 73-76, 112 S.Ct. 1028 (stating that the same rule should apply when a teacher sexually harasses a student as applies when a supervisor sexually harasses a subordinate under Title VII).\n[6] The Supreme Court has noted, \"whether gender-oriented conduct rises to the level of actionable harassment thus depends on a constellation of surrounding circumstances, expectations, and relationships, including, the ages of the harasser and the victim and the number of individuals involved.\" Davis, 526 U.S. at 629, 119 S.Ct. 1661. The Court notes that, while not determinative, the fact that Johnson was an older student in this case— thus making the age disparity between Wheat and herself quite different from that in the traditional teacher-student setting—is relevant to the Court's determination.\n[7] No one in this case disputes that Hendricks, as HIL's President, was an official with the power to institute corrective measures.\n[8] The Court further notes that this holding is consistent with the overriding purpose of Gebser: to limit institutional liability to cases where the institution, as a recipient of federal funds, has actual knowledge of discrimination and fails to respond. In such cases, the Supreme Court reasoned, liability was proper because the institution was violating its duty not to discriminate as part of its implicit contract with the federal government. Gebser, 524 U.S. at 286, 118 S.Ct. 1989. Consequently then, as soon as an educational institution can be said to be on notice that discrimination is occurring, a decision not to remedy the situation amounts to a violation of this contract, whether or not the notice stems from the plaintiff-student or from every other student in the classroom, except the plaintiff-student.\n[9] One additional problem with the notice requirement in this case is that, even if HIL had notice of all of these events, it is not clear that this notice preceded Johnson's alleged harassment.\n[10] At her deposition, Johnson testified that another student, Michele Slaughter told her that she complained to Hendricks after Wheat made the comment in class about the pain electrocution caused. According to Johnson, Slaughter claims she went to Wheat and said she hoped her complaining would not affect her grades. He allegedly told her, \"Well, I'll plead amnesia this time, but don't let it happen again.\" The Court recognizes at this stage that this is clearly hearsay and has not considered it for the truth of the matter asserted. However the Court notes it, because it suggests Johnson was on notice that Wheat was tougher on students who complained and that this general knowledge might have deterred her from complaining further to Hendricks. This could be damaging evidence at trial, if admissible. Of course at trial, the Court presumes, Slaughter herself would testify about her own encounters with Wheat and Hendricks.\n[11] As a preliminary matter the Court makes two determinations. First, courts are in agreement that there is no requirement that a plaintiff must prevail on any underlying claim of intentional discrimination in order to prevail on a claim of retaliation. Peters v. Jenney, 327 F.3d 307, 320-21 (4th Cir.2003) (discussing standard to apply in Title VI retaliation case where there no underlying claim remains); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311-12 (11th Cir.2002) (discussing the standard to apply when there is no successful underlying claim in Title VII, ADA, and ADEA cases); Herron v. Harrison, 203 F.3d 410, 415 (6th Cir.2000) (noting in the prison inmate context, that the standard for judging whether a retaliation claim should proceed when the underlying claim is dismissed is whether that underlying claim was reasonable and not frivolous); Borgo v. Goldin, 204 F.3d 251 (D.C.Cir.2000) (analyzing Title VII retaliation case where underlying claims had been abandoned); Vadie v. Mississippi State Univ., 218 F.3d 365, 374 n. 24 (5th Cir.2000). The standard in all of these cases was whether the plaintiff had a good faith, reasonable basis for believing the underlying claim existed. In this case, based on the nature of Wheat's comments in class as well as the fact that she apparently reasonably thought he failed her for not giving into his advances, the Court finds there was a subjective and objective basis for finding that she reasonably thought she was being harassed in violation of Title IX.\n\nSecond, this Court finds that Johnson has stated the prima facie elements for a retaliation claim. In Morris v. Oldham County Fiscal Court, 201 F.3d 784 (6th Cir.2000), the Sixth Circuit delineated the standard required to prove a claim for retaliation. Under that test, a plaintiff must prove that: (1) he engaged in protected activity; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Id. at 792. In this case, Plaintiff has established a prima facie case based on these elements. She engaged in a protected activity when she lodged a complaint with KCHR. Arguably, HIL took adverse action in expelling her when it learned of her actions. Although good arguments can certainly be made that HIL's actions were not pre-textual and were not based on the fact that she complained to KCHR, but instead stemmed from the fact it thought she lied to the Code of Conduct Board, these are credibility questions for a jury to assess.\n[12] The Court characterizes this as a circuit split because the Sandoval decision arose different views as to how to consider retaliation claims promulgated under Title VI and Title IX. Since Sandoval, the two circuit courts addressing this point have adopted their different positions under different statutes. That is, the Fourth Circuit in Peters v. Jenney, 327 F.3d 307, held that a Plaintiff can sue for retaliation under Title VI (the statute analyzed in Sandoval). In contrast, the Eleventh Circuit has held that the same claim does not lie under Title IX. Jackson v. Birmingham Board ofEduc, 309 F.3d 1333 (11th Cir.2002). Because Title VI and Title IX are to be read and interpreted consistent!}', the Court finds no reason to consider these opinions as doing anything other than adopting conflicting holdings on the same question.\n\nMoreover, the Eleventh Circuit's opinion in Jackson is also in direct conflict with Frazier, 276 F.3d at 67 (setting the standard a student must meet to prevail on a Title IX retaliation claim), although Frazier made no mention of Sandoval, as well as numerous circuit court decisions announced prior to Sandoval which uniformly found or implied that Title IX gives private plaintiffs a cause of action to redress retaliation. See, e.g., Lowrey v. Texas A&M University System, 117 F.3d 242 (5th Cir. 1997); Brine v. Univ. of Iowa, 90 F.3d 271, 272-73 (8th Cir. 1996); Murray v. N.Y. Univ. Coll. of Dentistry, 57 F.3d 243, 251 (2nd Cir. 1995); Preston v. Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 206 (4th Cir. 1994).\n[13] In relevant part, § 901, 86 Stat. 373, as amended, as set forth in 20 U.S.C. § 1681, provides:\n\n(a) Prohibition against discrimination; exceptions\nNo person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . ..\n(b) Preferential or disparate treatment because of imbalance in participation or receipt of Federal benefits; statistical evidence of imbalance\nNothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area: Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex.\n(c) \"Educational institution\" defined\nFor purposes of this chapter an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department. 20 U.S.C. § 1681(a).\n[14] Section 902, 86 Stat. 374, as set forth in 20 U.S.C. § 1682, titled \"Federal administrative enforcement; report to Congressional committees,\" provides in relevant part:\n\nEach Federal department and agency which is empowered to extend Federal financial assistance to any education program or activity ... is authorized and directed to effectuate the provisions of section 1681 of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability ... No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement . . ., or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report. 20 U.S.C. § 1682(b).\n[15] 34 C.F.R. § 100.7(e) was originally promulgated by the Department of Justice to enforce Title VI of the Civil Rights Act of 1964 (\"Title VI\"), 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq. The Department of Education has incorporated by reference § 100.7(e) and other regulations enforcing Title VI to enforce Title IX. See 34 C.F.R. § 106.71; see also Jackson, 309 F.3d at 1338 n. 4 (11th Cir.2002).\n[16] 532 U.S. at 286, 121 S.Ct. 1511 (noting that Sandoval is the culmination of the Court's gradual shift from the four factor analysis stated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975)—which looked at (1) whether plaintiff was a member of a protected class; (2) legislative intent; (3) the underlying purpose of the legislative scheme; and (4) whether the cause of action was traditionally delegated to state law—to a framework that looks only at the second factor, statutory intent); see also Thompson v. Thompson, 484 U.S. 174, 189, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988) (Scalia, J. concurring) (noting that the Court has \"converted one of [the] four factors (congressional intent) into the determinative factor, with the other three merely indicative of its presence or absence.\").\n[17] The Court stated:\n\nIt is clear now that the disparate-impact regulations do not simply apply § 601— since they indeed forbid conduct that § 601 permits—and therefore clear that the private right of action to enforce § 601 does not include a private right to enforce these regulations. See Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 173, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (a \"private plaintiff may not bring a [suit based on a regulation] against a defendant for acts not prohibited by the text of [the statute]\"). That right must come, if at all, from the independent force of § 602. As stated earlier, we assume for purposes of this decision that § 602 confers the authority to promulgate disparate-impact regulations; the question remains whether it confers a private right of action to enforce them. If not, we must conclude that a failure to comply with regulations promulgated under § 602 that is not also a failure to comply with § 601 is not actionable.\nSandoval, 532 U.S. at 285, 121 S.Ct. 1511.\n[18] To answer this question, the Court examined § 902's text for \"rights-creating language\" that would exhibit Congress's intent to confer a private right of action for violations of all regulations promulgated thereunder. Id. at 291, 121 S.Ct. 1511. Applying its revised statutory intent test, the Court concluded that the language of § 902 exhibited no such intent: \"Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602.\" Id. at293, 121 S.Ct. 1511.\n[19] Section 1982 provides that \"[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.\"\n[20] Section 1983 provides a cause of action for individuals who have been deprived, \"under color\" of law, of any of die \"rights, privileges, or immunities secured by the Constitution and laws.\"\n[21] Section 1981 provides, in relevant part, that \"[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.\"\n\n", "ocr": false, "opinion_id": 2574272 } ]

[ "267 F.2d 263" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/267/267.F2d.263.5519_1.html", "author_id": null, "opinion_text": "267 F.2d 263\n INTERNATIONAL BASIC ECONOMY CORPORATION, Defendant, Appellant,v.Luis BLANCO LUGO, Plaintiff, Appellee.\n No. 5519.\n United States Court of Appeals First Circuit.\n May 21, 1959.\n \n Jose L. Novas, Hartzell, Fernandez & Novas, San Juan, P.R., and Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., for appellant.\n Francisco Ponsa Feliu and Felix Ochoteco, Jr., San Juan, P.R., for appellee.\n Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit judges.\n PER CURIAM.\n \n \n 1\n This case is now before us upon a motion by appellant having to do with the record on appeal to be certified by the Clerk of the Supreme Court of Puerto Rico.\n \n \n 2\n On August 31, 1956, Luis Blanco Lugo filed in the Superior Court of Puerto Rico, San Juan Part, a complaint alleging that the plaintiff, at the instance and on behalf of the defendants, had laid out certain sums of money in the purchase of various credits against Balet & Rodriguez, Inc., and that the defendants had refused to reimburse the plaintiff for the sums so advanced. On September 3, 1958, the Superior Court entered judgment for the plaintiff in this proceeding.\n \n \n 3\n Not every final judgment by the Superior Court is appealable as a matter of right to the Supreme Court of Puerto Rico. Law No. 115, enacted by the legislature of Puerto Rico on June 26, 1958, amended the Judiciary Act of Puerto Rico so as to provide in part as follows (tit. 4, 37, L.P.R.A.):\n \n \n 4\n '(a) Except as provided in clause (d) of this section, final judgments rendered by the Superior Court in civil cases involving or deciding a substantial constitutional question under the Constitution of the United States or the Constitution of Puerto Rico, and final judgments in criminal cases originated in the Superior Court, shall be appealable to the Supreme Court. * * *\n \n \n 5\n '(b) Any other final judgment of the Superior Court may, on request question of the party aggrieved, be reviewable by the Supreme Court, by way of certiorari issued at the discretion of the court. * * *\n \n \n 6\n '(c) The Supreme Court of Puerto Rico may, in the exercise of its discretion, issue a writ of certification to bring forthwith before it and to hear and resolve any case pending on appeal or review pending before the Superior Court, if it deems that the public importance thereof justifies a deviation from the regular procedure and a direct adjudication by the Supreme Court. * * *\n \n \n 7\n '(d) Judgments rendered by the Superior Court in appeals coming from the District Court and in proceedings for review, based on the record of the proceedings had at the administrative level, or by way of trial de novo, of the rulings, orders or resolutions of administrative organizations, may be reviewed by the Supreme Court by way of certiorari to be issued at its discretion, and not otherwise.'\n \n \n 8\n We have no reason to doubt the competence of the legislature thus to regulate review in the Supreme Court of Puerto Rbico of judgments of the lower Puerto Rico of judgments of the lower the Act of June 26, 1958, may have had an unintended effect upon review by the Court of Appeals for the First Circuit and by the Supreme Court of the United States of cases decided by the Superior Court of Puerto Rico. If such effect has been accomplished, it can only be by virtue of inadequate draftsmanship by the Congress in 28 U.S.C. 1293 and 1294, under which the Court of Appeals for the First Circuit is vested only with jurisdiction to review final decisions of the Supreme Court of Puerto Rico. This jurisdictional language is to be contrasted with that of 28 U.S.C. 1257, under which the Supreme Court of the United States is given jurisdiction to review, by appeal or by certiorari, final judgments or decrees 'rendered by the highest court of a State in which a decision could be had'. Compare also 28 U.S.C. 1252, under which any party may appeal to the Supreme Court of the United States from an interlocutory or final judgment of any court of record in Puerto Rico holding an Act of Congress unconstitutional in any civil action.\n \n \n 9\n When the Superior Court on September 3, 1958, entered its judgment against the defendants in this case, a review in the Supreme Court of Puerto Rico was sought by the discretionary route. On October 2, 1958, the corporate codefendant filed in the Supreme Court of Puerto Rico a petition for review of the judgment of the Superior Court. Attached to the petition for review were (1) a copy of the amended complaint; (2) a copy of the answer thereto, and (3) the findings of fact and conclusions of law of the Superior Court judge. Luis Blanco Lugo, as the winning party below, filed an opposition to this petition for review, and attached thereto a transcript of his own direct testimony in the Superior Court and the deposition of an officer of the corporate defendant. On November 10, 1958, the Supreme Court of Puerto Rico entered a simple order denying the petition for review ('no ha lugar'). A motion for reconsideration, filed with some exhibits on November 20, 1958, was denied by the Supreme Court on December 5, 1958. On December 9, 1958, a notice of appeal to this court from the judgment of the Supreme Court was filed.\n \n \n 10\n The pending motion by appellant seeks to have added to the material hereinbefore enumerated, as part of the record on appeal, some documents and papers which were never before the Supreme Court of Puerto Rico. The motion is that this court enter an order 'directing the Clerk of the Supreme Court of Puerto Rico to cause to be prepared a transcript of the proceedings in this case both before the Superior Court of Puerto Rico, San Juan Section, and before the Supreme Court of Puerto Rico, and to have such record translated and filed with this Court.'\n \n \n 11\n We think that this motion must be denied. Assuming for the moment, but not deciding, that 28 U.S.C. 1293 and 1294 give us appellate jurisdiction to review decisions of the highest court in Puerto Rico in which a review could be had, the fact of the matter is that appellant has not sought to appeal from the judgment of the Superior Court of Puerto Rico. The only notice of appeal filed by appellant in this case, that of December 9, 1958, purports to take an appeal from the final decision of the Supreme Court of Puerto Rico dated November 10, 1958, denying the discretionary petition for review. There is no doubt that this judicial action by the Supreme Court of Puerto Rico is a 'final decision', appealable to this court. See Jimenez v. Jones, 1 Cir., 1952, 195 F.2d 159, certiorari denied, Jimenez-Melendez v. Jones, 1952,344 U.S. 840, 73 S. Ct. 52, 97 L. Ed. 654. But since the review sought in the Supreme Court of Puerto Rico was available only in its discretion, that court's action in denying the petition could be set aside by us only upon a finding of an abuse of discretion, and of course, in passing upon whether there was such abuse of discretion, we can only look to the record of the case as it was presented to the Supreme Court of Puerto Rico.\n \n \n 12\n An order will be entered denying appellant's motion looking to enlargement of the record on appeal.\n \n ", "ocr": false, "opinion_id": 248183 } ]

[ "324 A.2d 78", "129 N.J. Super. 462" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n129 N.J. Super. 462 (1974)\n324 A.2d 78\nLAKEWOOD TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, A MUNICIPAL BODY, PLAINTIFF-RESPONDENT,\nv.\nSOUTH LAKEWOOD WATER COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT. SOUTH LAKEWOOD WATER COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,\nv.\nLAKEWOOD TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, A MUNICIPAL BODY IN THE COUNTY OF OCEAN, DEFENDANT-RESPONDENT. SOUTH LAKEWOOD WATER COMPANY, A NEW JERSEY CORPORATION, PLAINTIFF-APPELLANT,\nv.\nLAKEWOOD TOWNSHIP MUNICIPAL UTILITIES AUTHORITY, A MUNICIPAL BODY, AND THE TOWNSHIP OF LAKEWOOD, IN THE COUNTY OF OCEAN, STATE OF NEW JERSEY, A MUNICIPAL BODY, DEFENDANTS-RESPONDENTS.\nSuperior Court of New Jersey, Appellate Division.\nArgued June 10, 1974.\nDecided July 17, 1974.\n*464 Before Judges COLLESTER, LYNCH and MICHELS.\nMr. Frank R. Ciesla argued for appellant (Messrs. Giordano, Halleran & McOmber, attorneys).\nMr. James J. Jeck argued for respondent Township of Lakewood.\nMr. Alan J. Pogarsky argued for respondent Lakewood Township Municipal Utilities Authority.\nThe opinion of the court was delivered by LYNCH, J.A.D.\nIn these consolidated cases South Lakewood Water Company (water company), appeals from various orders entered in the Law Division, arising out of the exercise by the Lakewood Township Municipal Utilities Authority (Authority) of an option granted to the Township of Lakewood (township)[1] under a 1962 township ordinance *465 to purchase the physical assets of the water company. Separate suits were instituted respectively by the Authority (Docket No. L-2085-73PW — hereafter \"case 2085\"), and by the water company (Docket No. L-1829-73PW — hereafter \"case 1829\"). Said suits were consolidated and appear here as Docket No. A-1231-72. A third suit (Docket No. L-11181-73PW — hereafter \"case 11181\") was instituted by the water company against both the Authority and the township. It is here as Docket No. A-1386-73. All appeals have been consolidated.\nIn case 2085 the Authority filed a complaint against the water company alleging that, having been organized by the township pursuant to N.J.S.A. 40:14B-1 et seq., it lawfully exercised an option to purchase the water company's a sets as referred to in the 1962 ordinance; that the water company rejected its offer of $1,690,000; that the Authority had appointed Howard T. Rosen (Rosen) as its \"arbitrator\"[2] pursuant to the ordinance; that the water company had appointed John Fellows as its \"arbitrator,\" and prayed that (a) a third arbitrator be designated and (b) for a declaration that the ordinance, properly construed, established the valuation procedure to be that of \"arbitration,\" as distinguished from \"appraisement.\" The water company's motion to dismiss the complaint in case 2085 was denied by the trial judge.\nIn case 1829, the water company filed a complaint against the Authority, asserting that, while the Authority had purported to exercise the option, it was the township which had the option and not the Authority. The complaint further asserted that the appointment of Rosen by the Authority was invalid. The water company sought a judgment declaring that the exercise of the option by the Authority was invalid.\n*466 By way of a second count in case 1829, the water company alleged that, assuming that the Authority did have the right to appoint an \"appraiser,\" the obligation was to appoint a \"qualified\" appraiser, and Rosen was not qualified. The water company thereupon sought a declaration that the Authority be directed to appoint a qualified appraiser. The Authority's motion to dismiss the complaint in 1829 was granted by the trial judge.\nIn case 11181, the water company filed a complaint against both the Authority and the township wherein it alleged that since, by order of October 15, 1973, the trial judge had ruled that (a) the Authority had the right to exercise the option, and (b) the right to select Rosen as an \"arbitrator,\" it followed that the water company had an obligation to two independent bodies, namely, both the Authority and the township. Since that was so, the water company sought a declaration that: (a) both the Authority and the township would be bound by the decision of a board of \"appraisers\"; (b) on transfer to the Authority of its assets, the water company would be entitled to be paid by both the Authority and the township; (c) participation by the water company in the arbitration proceedings would satisfy the company's \"arbitration\" obligations, and (d) both the Authority and the township would be bound by the decision of the board of arbitrators and would be bound to pay the award of the \"majority\" of the board of appraisers.\nThe various allegations and contentions made in these three suits generated the issues which were decided by the trial court and here can be reduced on this appeal to: (1) whether the Authority had the right to exercise the option to purchase the company's assets; (2) whether the 1962 ordinance, properly construed, provided that the valuation process shall be by \"arbitration\" proceedings or \"appraisement,\" and whether the appointment of Rosen was valid, and (3) whether both the township and the Authority would be bound to pay for the company's assets and, if so, whether a declaration to that effect should be made at this time.\n*467 Said issues were disposed of by the trial court by orders dated October 15, 1973, December 5, 1973 and January 16, 1974 (in cases 2085 and 1829), and February 8, 1974 (in case 11181).\nIn its appeal the water company contends that the trial court erred in (1) holding that the Authority had the right to exercise the option; (2) designating the valuation proceedings as \"arbitration\" rather than \"appraisement,\" and in holding that the appointment of Rosen was valid, and (3) refusing \"at this time,\" as the trial court said, to determine whether both the township and the Authority would be liable to the water company for payment of its assets.\n\nI.\n\nThe right of the Authority to exercise the option.\nOn November 27, 1962 Lakewood passed an ordinance granting the water company a franchise to supply water for the township. Section 8 of the ordinance provided:\nThe Township of Lakewood shall have an unlimited continuing option to purchase all of the assets of the South Lakewood Water Company or its successors and assigns. It is understood that this option is irrevocable. The option to purchase shall include all of the assets of the South Lakewood Water Company, including land, plants (whether softening, aeration, aeration treatment or otherwise), wells, pumping stations, collecting reservoirs, basins, plant equipment, pumping equipment, general equipment, transmission mains and accessories, service pipes, meters, fire hydrants, and any other tangible assets together with any and all franchises, water diversion rights and any other rights which may be the property of the South Lakewood Water Company. The option shall not include any equipment or assets required solely for the operation of a water company outside of the Township of Lakewood. The purchase price shall be the value of the physical assets of the corporation. No allowance of any kind shall be made for the goodwill or friendship of the said corporation or for any intangible asset or assets of the corporation in [sic] the event that the parties cannot agree on the purchase price in accordance with the above formula then and in the [sic] event the purchase price, pursuant to the above mentioned formular [sic] shall be determined by a board of three disinterested, competent appraisers, one to be appointed by the Township of Lakewood, one to be appointed by the South Lakewood Water Company or its successors *468 or assigns, and the third to be appointed by two arbitrators so appointed. The decisions of a majority of the Board of Appraisers shall be binding upon the parties. The selection of the Board of Appraisers shall be made within ten days after written notice shall be served upon the South Lakewood Water Company that the Township Committee of the Township of Lakewood desires to exercise said option.\nThe option to purchase the assets of the South Lakewood Water Company shall be binding upon the South Lakewood Water Company, the successors and assigns. It is further understood and agreed that in the event that the South Lakewood Company should desire to sell its water company the Township of Lakewood shall have the first option to purchase same upon the same terms and conditions as the South Lakewood Water Company is willing to sell to a third party. In the event that the Township of Lakewood does not exercise said option, it is understood and agreed that the continuing option to purchase as herein provided shall still remain in full force and effect and shall be binding upon all of the successors of the South Lakewood Water Company. [Emphasis supplied]\nOn appeal the water company argues that it is totally unreasonable to rule, as the trial court did, that the Authority had the right to exercise the option and at the same time refuse to determine \"at this time\" that the township would still be liable for the purchase price of the company's assets. It is contended that the company should be entitled to rely on the credit of the township rather than that of the Authority alone, and that the effect of the trial court's ruling is to permit the township to avoid its obligations under the 1962 ordinance.\nThe township created the Authority for the purposes set forth in N.J.S.A. 40:14B-1 et seq. While it did not expressly assign to the Authority the option to purchase, N.J.S.A. 40:14B-20(5) provides that a municipal authority may:\n[i]n the name of the municipal authority but for the local unit or units and subject to the limitations of this act, * * * acquire by purchase, gift, condemnation or otherwise, or lease as lessee, real property and easements therein, necessary or useful and convenient for the purposes of the municipal authority, and subject to mortgages, deeds of trusts or other liens, or otherwise, and * * * hold and * * * use the same, and * * * dispose of property so acquired no longer *469 necessary for the purposes of the municipal authority; * * *. [Emphasis supplied]\nThe Authority is the alter ego of the municipality in providing water and sewer service. Darrah v. Eversham Tp., 111 N.J. Super. 62, 65 (App. Div. 1970). It is an agency and instrumentality of the municipality creating it. Jordan v. Zidel, 40 N.J. 244, 248 (1963). See also Camden County v. Pennsauken Sewerage Auth., 15 N.J. 456 (1954). Therefore, even though there was no express formal assignment by the township to the Authority of the right to exercise the option, the right passed to the Authority by virtue of the cited statute. The trial court's action to the same effect is therefore affirmed.\n\nII\n\n\nShould there be a declaration \"at this time\" as to whether (a) the township and (b) the Authority is liable to pay for the assets of the Water Company?\n\n\n(a)\n\nAs to the township\nAs to the township, appellant contends that the trial court's refusal to declare \"at this time\" that the township will be liable for the purchase of the company's assets, in effect, relieves the township of its obligations pursuant to the ordinance. We disagree. As we have noted, all that the trial court did was to refuse to rule on that issue \"at this time.\" The court's reasoning was that when the time comes to pay for the assets of the water company, the Authority may be able to satisfy that obligation. In that event, since the company will have been paid, the issue as to the township's liability would be academic. If, on the other hand, the Authority was unable to satisfy the obligation, the issue as to the township's liability could then be determined. *470 We agree with the trial court's view and affirm its action in that respect.\n\n(b)\n\nAs to the Authority\nThe unqualified exercise of an option creates a binding, bilateral executory contract of sale. West Caldwell v. Caldwell, 26 N.J. 9, 26 (1958).\nIn Castle Creek Water Co. v. Aspen, 146 F. 8 (10 Cir.1906), it was held that once a municipality had notified a water company that it intended to exercise its option to purchase its assets, a binding contract was in effect and the municipality could not then refuse to go through with the arbitration provided for in the contract. See also Camden Sewer Co. v. Mayor, etc., of Salisbury, 166 Md. 436, 171 A. 75 (Ct. App. 1934); Rockport Water Co. v. Inhabitants of the Town of Rockport, 161 Mass. 279, 37 N.E. 168 (Sup. Jud. Ct. 1894).\nSince we have held that the Authority had the right to exercise the option, it is clearly liable to pay for the purchase of the water company's assets. We see no reason for withholding adjudication to that effect. The trial court erred in refusing to determine \"at this time\" the liability of the Authority. In that respect, the trial court's action is reversed.\n\nIII\n\nWere the valuation proceedings \"arbitration\" or \"appraisement\"? Was the appointment of Rosen valid?\nThe Authority in its suit (case 2085) requested a decision from the Law Division that the proceedings contemplated were \"arbitration\" rather than \"appraisement.\" On the other hand, the water company, in the second count of its case 1829, sought a declaration in effect that the valuation *471 proceedings were \"appraisement.\" The trial judge held that the proceedings were \"arbitration\" and ultimately Messrs. Rosen, Conway and Weisenfeld constituted the board of arbitration to determine the value of the water company's property.\nThe distinction between \"arbitration\" and \"appraisement\" is significant. It is pointed out in 5 Am. Jur., Arbitration and Award, § 3 at 520, 521:\nAn agreement for arbitration ordinarily encompasses the disposition of the entire controversy between the parties upon which award a judgment may be entered, whereas an agreement for appraisal extends merely to the resolution of the specific issues of actual cash value and the amount of loss, all other issues being reserved for determination in a plenary action before the court. Furthermore, appraisers are generally expected to act on their own skill and knowledge; they may reach individual conclusions and are required to meet only for the purpose of ironing out differences in the conclusions reached; and they are not obliged to give the rival claimants any formal notice or to hear evidence, but may proceed by ex parte investigation so long as the parties are given opportunity to make statements and explanations with regard to matters in issue. Arbitrators, on the other hand, must meet together at all hearings, they act quasi-judicially and may receive the evidence or views of a party to the dispute only in the presence, or on notice to, the other side, and may adjudge the matters to be decided only on what is presented to them in the course of an adversary proceeding.\nWhether the procedures required are those of an arbitration or of an appraisal is to be found from the intent of the disputants or from the character of the questions and issues to be answered, or both. However, where the agreement so contemplates, the results of an appraisal may be just as binding as the award of arbitrators.\nIn Sanitary Farm Dairies v. Gammel, 195 F.2d 106, 113 (8 Cir.1952), it was held that where parties to a contract, before a dispute and in order to avoid one, provide for a method of ascertaining the value of something related to their dealings, the provision is one for an appraisement and not for arbitration. In that case a stockholder brought suit against a corporation for specific performance of a contract to repurchase common stock. The contract gave the stockholder an option, without limitation in time, to resell the corporation stock at a set value. The agreement provided *472 that in the event of the inability of the parties to agree upon earnings an audit should be made by an independent auditor and that his determination on earnings would be controlling. The stockholder exercised the option but was unwilling to accept the determination of earnings made by the accountants employed by the company, and the parties then selected Ernst & Ernst to make an audit for the purposes of the contract. The issue, of course, was the nature of the proceedings, the court concluding that under the circumstances of that case an appraisal was involved and under Minnesota law the appraisal is conclusive upon the parties.\nA somewhat similar result was reached in Pintard v. Irwin, 20 N.J.L. 497, 509 (Sup. Ct. 1845), wherein Justice Carpenter, in delivering one of the opinions in the case, noted that under the agreement there involved an appraisal of value was intended by the parties. The court there distinguished between appraisement and arbitration, pointing out that the submission did not have the final ending of the controversy as its immediate object. It was but the reference of a collateral fact — the submission of a particular question, forming only a link in the plaintiff's case. The appraisement substituted the judgment of the referee in the place of evidence, leaving the controversy open, and while it may be that the report was necessary as a part of plaintiff's case, a recovery could not be had on the appraisement alone. The court also pointed out that while the appraisement had several of the characteristics of an arbitration, it still fell short of the principal feature, which is the ending of the controversy. The court noted that an appraisement could be likened to the purchase of an article under an agreement to pay what another party says it is worth. In Pintard the parties had entered into a lease of the premises with the understanding that if the premises were sold, plaintiff, who had planted and cultivated the land, should be remunerated, not by the repayment of his expenses but by the payment of one-half of the appraised value. The parties *473 then submitted the controversy to appraisers whose evaluation was binding upon the parties as an \"appraisement.\"\nOur more modern cases point out that since a submission to arbitration is essentially a contractual matter, the parties are bound to the extent of their contract. The courts also hold that arbitration is favored by our courts and that arbitration should be compelled in proper situations. In Keppler v. Terhune, 88 N.J. Super. 455 (App. Div. 1965), the contract involved was a lease with an option to the lessee to purchase the land at any time for the fair market value. The lease further provided that if the parties could not agree as to the fair market value, then the land would be appraised by a competent real estate expert and if the appraisal would not be satisfactory to both parties, each party would then choose \"an Arbitrator,\" and submit the matter to arbitration. In Keppler the owner argued that the determination of the fair market value of land was not an issue arbitrable under the statute. The court disagreed and held that it did constitute an arbitrable issue under the provisions of our arbitration statute, N.J.S.A. 2A:24-1 et seq. But the issue was whether arbitration was preferable to litigation — not whether it should rather be \"appraisement\" which would, if binding, avoid litigation.\nIn Omaha v. Omaha Water Co., 218 U.S. 180, 30 S.Ct. 615, 54 L.Ed. 991 (1910), the issue was whether a contract between a municipality and a water company for the purchase and sale of a water works system which provided that the property was to pass \"at an appraised valuation which shall be ascertained by the estimate of three engineers,\" contemplated an appraisal or an arbitration. The court held that it was an \"appraisal.\" It said:\nAn arbitration implies a difference, a dispute, and involves ordinarily a hearing and all thereby implied. The right to notice of hearings, to produce evidence and cross-examine that produced, is implied when the matter to be decided is one of dispute and difference. But when, as here, the parties had agreed that one should sell and the other buy a specific thing, and the price should be a valuation fixed by persons agreed upon, it cannot be said that there was any *474 dispute or difference. Such an arrangement precludes or prevents difference, and is not intended to settle any which has arisen. This seems to be the distinction between an arbitration and an appraisement, though the first term is often used when the other is more appropriate.\nIt is true that there is some ambiguity in the language of the 1962 ordinance here involved with respect to whether \"arbitration\" or \"appraisement\" was contemplated. It speaks of \"appraisers,\" \"two arbitrators,\" and twice refers to \"Board of Appraisers.\" In Annotation, \"Arbitration to Fix Price or Damages,\" 157 A.L.R. 1286 (1945), the general rule of construction of contracts for the proposed purchase or sale of property is said to be: if all differences between the parties have been resolved and all matters adjusted except the price to be paid, the selection of a third person or persons to determine the price, in the absence of indications to the contrary, is held to contemplate a reliance on the individual judgment of such person or persons, particularly if they are selected because of their special knowledge of the subject matter, and so creates duties ministerial in nature as distinguished from judicial, and indicates an act of \"appraisal\" rather than \"arbitration.\"\nWe conclude that the ordinance here, directing the selection of \"competent\" appraisers is to be construed as an act of \"appraisement\" rather than \"arbitration.\" The order of the trial court directing that the Authority has the right to select one \"arbitrator\" of its choice, holding that Rosen is a \"qualified arbitrator to serve in the arbitration proceedings herein\" and that he and Fellows be directed to select a third \"arbitrator\" to complete the makeup of the \"Board of Arbitrators,\" is reversed.\n\nCONCLUSION\nIt is ordered:\n(1) The Authority had the right to exercise the option under the 1962 ordinance and the Law Division's order *475 of October 15, 1973 to that effect and dismissing count I in case 1829 is affirmed.\n(2) The order of October 15, 1973, insofar as it provided that Rosen is a \"qualified arbitrator\" and dismissing count II in case 1829, is reversed. We make no ruling as to Rosen's qualification in the event that he is hereafter appointed as an \"appraiser.\"\n(3) The orders of October 15, 1973 and January 16, 1974, insofar as they hold that the valuation proceedings contemplated by the 1962 ordinance were to be \"arbitration\" proceedings, and directing that three arbitrators be appointed and that they proceed to evaluate the water company's assets, are reversed, and it is ordered that three qualified appraisers be appointed to conduct an \"appraisement\" of the assets pursuant to the ordinance. Accordingly, the said orders, insofar as they deny the motion of the water company to dismiss the complaint in Case 2085, are reversed and the complaint therein is dismissed.\n(4) The order of the Law Division in case 11181, entered on February 8, 1974, in refusing \"at this time\" to declare that the township would be liable for the purchase price of the water company's assets is affirmed.\n(5) The action[3] of the Law Division in refusing to determine \"at this time\" that the Authority would be liable for the purchase price of the assets is reversed and it is adjudged that it would be so liable pursuant to the terms of the 1962 Ordinance.\n(6) Cases 1829 and 11181 are remanded to the Law Division for proceedings in accordance with the views expressed herein.\nWe do not retain jurisdiction.\nNOTES\n[1] The distinction between Township and Authority creates an issue in this case.\n[2] As will be seen, whether an \"arbitrator\" or \"appraiser\" was to be appointed is another pivotal issue.\n[3] It appears that no formal order to this effect was entered, but the court's oral determination evinces this intent.\n\n", "ocr": false, "opinion_id": 1438039 } ]

[ "2014 Ohio 1414", "138 Ohio St. 3d 1274" ]

[ { "author_str": "O'Connor", "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2014/2014-ohio-1414.pdf", "author_id": null, "opinion_text": "[Cite as In re Disqualification of Knece, 138 Ohio St. 3d 1274, 2014-Ohio-1414.]\n\n\n\n\n IN RE DISQUALIFICATION OF KNECE.\n ROTHWELL v. ROTHWELL.\n [Cite as In re Disqualification of Knece, 138 Ohio St. 3d 1274,\n 2014-Ohio-1414.]\nJudges—Affidavit of disqualification—R.C. 2701.03(D)(3)—Judge may undertake\n ministerial acts during the pendency of an affidavit of disqualification—\n Disqualification denied.\n (No. 14-AP-005—Decided March 5, 2014.)\n ON AFFIDAVIT OF DISQUALIFICATION in Pickaway County Court of Common\n Pleas Case No. 2009-DV-0335.\n ____________________\n O’CONNOR, C.J.\n {¶ 1} Kinsley F. Nyce, counsel for defendant Mark Rothwell, filed an\naffidavit of disqualification on January 27, 2014, against Judge P. Randall Knece\nof the Court of Common Pleas of Pickaway County. Nyce’s affidavit was denied\nby entry dated February 4, 2014, because the record failed to indicate what, if\nanything, remained pending before Judge Knece in the underlying case. See In re\nDisqualification of Hayes, 135 Ohio St. 3d 1221, 2012-Ohio-6306, 985 N.E.2d\n501, ¶ 6 (“[t]he Chief Justice cannot rule on an affidavit of disqualification\nwhen * * * nothing is pending before the trial court”).\n {¶ 2} On February 11, 2014, Nyce filed two supplemental affidavits of\ndisqualification, averring that since the filing of his initial affidavit, he had filed a\nmotion in the trial court under Civ.R. 59 and 60. Nyce also set forth additional\nbias allegations against Judge Knece.\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 3} Judge Knece has responded in writing to the allegations in Nyce’s\ninitial and supplemental affidavits, denying any bias or prejudice against Nyce or\nhis client.\n {¶ 4} For the reasons explained below, no basis has been established to\norder the disqualification of Judge Knece.\n Nyce’s First Supplemental Affidavit\n {¶ 5} As noted above, Nyce filed his initial affidavit of disqualification\non January 27, 2014. The next scheduled hearing in the underlying case was set\nfor that same day on plaintiff’s motion to disburse the supersedeas bond posted by\ndefendant.1 After filing his affidavit, Nyce appeared for the scheduled hearing\nand presented a copy of the affidavit to Judge Knece. Judge Knece moved\nforward with the hearing and entered an order directing the clerk of courts to\ndisburse the supersedeas bond proceeds to plaintiff. Nyce argues that the filing of\nhis initial affidavit should have barred Judge Knece from proceeding with the\nJanuary 27 hearing and disbursing the bond proceeds. Nyce further states that at\nthe hearing, Judge Knece “functioned in a manner not appropriate to neutral\njudicial temperament,” engaged in a “unilateral argument” with Nyce about the\naffidavit of disqualification, “had significant words demonstrating animosity,”\nand was “aggressive, demeaning and unresponsive” to Nyce’s arguments.\n {¶ 6} Under R.C. 2701.03(D)(1), if the clerk of this court accepts an\naffidavit of disqualification for filing, “the affidavit deprives the judge against\nwhom the affidavit was filed of any authority to preside in the proceeding until\nthe chief justice of the supreme court * * * rules on the affidavit.” See also State\n\n1. Under R.C. 2701.03(B), an affidavit of disqualification must be filed “not less than seven\ncalendar days before the day on which the next hearing in the proceeding is scheduled.” However,\nthis statutory deadline may be set aside “when compliance with the provision is impossible,” such\nas when the alleged bias or prejudice occurs fewer than seven days before the hearing date or the\ncase is scheduled or assigned to a judge within seven days of the next hearing. In re\nDisqualification of Leskovyansky, 88 Ohio St. 3d 1210, 723 N.E.2d 1099 (1999). Here, Nyce\nsufficiently demonstrated that he had received notice of the hearing on January 25, 2014, which\nwas less than seven days before the hearing. Therefore, his affidavit was considered timely filed.\n\n\n\n\n 2\n\f January Term, 2014\n\n\n\n\nv. Myers, 97 Ohio St. 3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 57 (the filing of\nan affidavit “automatically divests the judge of jurisdiction to proceed until the\nmatter is resolved”). However, there are statutory exceptions to this prohibition\nagainst proceeding after the filing of an affidavit of disqualification. See R.C.\n2701.03(D)(2) and (3). Most relevant here, R.C. 2701.03(D)(3) authorizes a\njudge against whom an affidavit is filed to decide matters that do not “affect a\nsubstantive right of any of the parties.” Courts have interpreted this exception as\nallowing a judge to undertake ministerial acts during the pendency of the\naffidavit. See, e.g., State ex rel. Stern v. Mascio, 81 Ohio St. 3d 297, 299, 691\nN.E.2d 253 (1998); State ex rel. Kreps v. Christiansen, 88 Ohio St. 3d 313, 317,\n725 N.E.2d 663 (2000) (interpreting analogous provision in R.C. 2701.031);\nColumbus Checkcashers, Inc. v. Guttermaster, Inc., 10th Dist. Franklin No.\n13AP-106, 2013-Ohio-5543, ¶ 18, 28.\n {¶ 7} Judge Knece appears to invoke this exception, arguing that his\norder disbursing the supersedeas bond was “ministerial in nature” and in\ncompliance with the appellate court’s directive to carry its judgment into\nexecution. Nyce disagrees, claiming that the issue of bond disbursement was not\nyet ripe for consideration.\n {¶ 8} If there is any question whether a judge’s ruling during the\npendency of an affidavit could affect a party’s substantive rights, the more\nprudent course of action would be to refrain from making such a ruling until the\naffidavit is resolved. However, it is beyond the scope of this proceeding to\ndetermine whether Judge Knece had statutory authority to issue the January 27\norder. The issue in disqualification proceedings is “limited to determining\nwhether a judge in a pending case has a bias, prejudice, or other disqualifying\ninterest that mandates the judge’s disqualification from that case.” In re\nDisqualification of Griffin, 101 Ohio St. 3d 1219, 2003-Ohio-7356, 803 N.E.2d\n820, ¶ 9. Compare Stern at 299-300 (issuing writ of prohibition voiding a judge’s\n\n\n\n 3\n\f SUPREME COURT OF OHIO\n\n\n\n\norders on substantive matters relating to a contempt conviction issued during the\npendency of an affidavit of disqualification) and Kreps at 317 (denying a request\nfor writs of prohibition and mandamus against a judge who had made a\n“ministerial” order directing a party to pay a previously ordered judgment during\nthe pendency of an affidavit).\n {¶ 9} Although a judge’s ruling during the pendency of an affidavit\ncould be evidence of bias, see, e.g., In re Disqualification of Celebrezze, 74 Ohio\nSt.3d 1242, 657 N.E.2d 1348 (1992), Judge Knece’s legal determination here that\nthe issue before the court on January 27 was “ministerial”—and therefore not\nprohibited by the filing of Nyce’s affidavit—does not, by itself, indicate bias or\nprejudice against Nyce. It is well settled that a party’s “dissatisfaction or\ndisagreement with a judge’s rulings, even if those rulings may be erroneous, does\nnot constitute bias or prejudice and is not grounds for the judge’s\ndisqualification.” In re Disqualification of Floyd, 101 Ohio St. 3d 1217, 2003-\nOhio-7351, 803 N.E.2d 818, ¶ 4.\n {¶ 10} However, a judge could be disqualified if his or her adverse rulings\nwere accompanied by words or conduct that call into question the manner in\nwhich the proceedings are being conducted. In addition, attorneys have a right to\nfile an affidavit of disqualification challenging a court’s perceived partiality\n“ ‘without the court misconstruing such a challenge as an assault on the integrity\nof the court.’ ” Disciplinary Counsel v. Shimko, 134 Ohio St. 3d 544, 2012-Ohio-\n5694, 983 N.E.2d 1300, ¶ 32, quoting United States v. Brown, 72 F.3d 25, 29 (5th\nCir.1995). Here, Nyce claims that after he presented his affidavit to Judge Knece\nat the January 27 hearing, the judge “had significant words demonstrating\nanimosity” and engaged in a “unilateral argument.”\n {¶ 11} Nyce, however, has failed to substantiate these allegations with\nspecific examples or a transcript of the hearing. In affidavit-of-disqualification\nproceedings, the burden falls on the affiant to submit “specific” allegations of\n\n\n\n\n 4\n\f January Term, 2014\n\n\n\n\nbias. R.C. 2701.03(B)(1). And the affiant is generally “required to submit\nevidence beyond the affidavit of disqualification supporting the allegations\ncontained therein.” In re Disqualification of Baronzzi, 135 Ohio St. 3d 1212,\n2012-Ohio-6341, 985 N.E.2d 494, ¶ 6. Instead of submitting the transcript\nhimself, Nyce requests this court to obtain the January 27 transcript for him. But\nit is not the chief justice’s duty in deciding an affidavit of disqualification to\nfurther investigate an affiant’s claims or obtain evidence on the affiant’s behalf.\nNyce had the burden of proof, and based on the record here, his vague and\nunsubstantiated allegations regarding Judge Knece’s alleged animosity are\ninsufficient for a finding of bias or prejudice. See In re Disqualification of\nWalker, 36 Ohio St. 3d 606, 522 N.E.2d 460 (1988) (“vague, unsubstantiated\nallegations of the affidavit are insufficient on their face for a finding of bias or\nprejudice”).\n Nyce’s Second Supplemental Affidavit\n {¶ 12} On January 28, 2014, the day after Nyce filed his affidavit, Judge\nKnece initiated a teleconference with counsel in the underlying case. Nyce claims\nthat during the conference, the judge stated that he had reviewed the docket in the\nunderlying matter and discovered that plaintiff had a motion for contempt that had\nnot yet been ruled on by the court. Judge Knece then allegedly stated that he\nwould not make any rulings in the case pending resolution of Nyce’s initial\naffidavit but that plaintiff’s counsel should “revisit” the contempt motion. Nyce\nclaims that the judge’s conduct indicated “intentional intimidation” and was\n“contrary to the required elements of judicial fairness and neutrality.”\n {¶ 13} In response, Judge Knece explains that Nyce had claimed in his\ninitial affidavit that the court had not timely ruled upon two of Nyce’s motions.\nAccording to Judge Knece, he therefore reviewed the case docket and determined\nthat Nyce’s referenced motions were moot. The judge asserts that in reviewing\nthe docket, he also determined that plaintiff had filed a contempt motion in May\n\n\n\n 5\n\f SUPREME COURT OF OHIO\n\n\n\n\n2012, which remained pending. Judge Knece states that he then scheduled the\nteleconference for the sole purpose of “establishing procedural parameters to\nbring pending matters to a close, not for the purpose of intimidation.”\n {¶ 14} In affidavit-of-disqualification proceedings, “[a] judge is presumed\nto follow the law and not to be biased, and the appearance of bias or prejudice\nmust be compelling to overcome these presumptions.” In re Disqualification of\nGeorge, 100 Ohio St. 3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Given\nJudge’s Knece’s explanation for initiating the teleconference and referring to\nplaintiff’s pending contempt motion, those presumptions have not been overcome\nin this case. Accordingly, Nyce has failed to establish that the judge’s conduct\nwas a product of bias against Nyce or his client.\n Conclusion\n {¶ 15} For the reasons explained above, Nyce’s supplemental affidavits\nare denied. The case may proceed before Judge Knece.\n _________________________\n\n\n\n\n 6\n\f", "ocr": false, "opinion_id": 2690174 } ]

[ "366 S.W.3d 87" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7702, "opinion_text": "\n366 S.W.3d 87 (2012)\nDwayne WINGO, Appellant/Movant,\nv.\nSTATE of Missouri, Respondent.\nNo. ED 97032.\nMissouri Court of Appeals, Eastern District, Division Three.\nMay 9, 2012.\n*88 Scott Thompson, St. Louis, MO, for Appellant.\nChris Koster, Attorney General, Timothy A. Blackwell, Assistant Attorney General, Jefferson City, MO, for Respondent.\nBefore ROBERT G. DOWD, JR., P.J., MARY K. HOFF, J. and SHERRI B. SULLIVAN, J.\n\nORDER\nPER CURIAM.\nDwayne Wingo appeals from the motion court's findings of fact, conclusions of law, and order (judgment) denying his Rule 29.15 Amended Motion to Vacate, Set Aside, or Correct the Judgment or Sentence. We affirm.\nWe have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An extended opinion would have no jurisprudential or precedential value. We have, however, provided a memorandum opinion for the use of the parties setting forth the reasons for our decision. We affirm the trial court's judgment pursuant to Rule 84.16(b).\n", "ocr": false, "opinion_id": 2541432 } ]

[ "88 L. Ed. 2d 662", "106 S. Ct. 662", "474 U.S. 327", "1986 U.S. LEXIS 43" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n474 U.S. 327 (1986)\nDANIELS\nv.\nWILLIAMS\nNo. 84-5872.\nSupreme Court of United States.\nArgued November 6, 1985\nDecided January 21, 1986\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT\n*328 Stephen Allan Saltzburg argued the cause and filed briefs for petitioner.\nJames Walter Hopper argued the cause and filed a brief for respondent.\nJUSTICE REHNQUIST delivered the opinion of the Court.\nIn Parratt v. Taylor, 451 U. S. 527 (1981), a state prisoner sued under 42 U. S. C. § 1983, claiming that prison officials had negligently deprived him of his property without due process of law. After deciding that § 1983 contains no independent state-of-mind requirement, we concluded that although petitioner had been \"deprived\" of property within the meaning of the Due Process Clause of the Fourteenth Amendment, the State's postdeprivation tort remedy provided the process that was due. Petitioner's claim in this case, which also rests on an alleged Fourteenth Amendment \"deprivation\" caused by the negligent conduct of a prison official, leads us to reconsider our statement in Parratt that \"the alleged loss, even though negligently caused, amounted to a deprivation.\" Id., at 536-537. We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.\nIn this § 1983 action, petitioner seeks to recover damages for back and ankle injuries allegedly sustained when he fell on a prison stairway. He claims that, while an inmate at the city jail in Richmond, Virginia, he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail. Respondent's negligence, the argument runs, \"deprived\" petitioner of his \"liberty\" interest in freedom from bodily injury, see Ingraham v. Wright, 430 U. S. 651, 673 (1977); because respondent maintains that he is entitled to the defense of sovereign immunity in a state tort suit, petitioner is without an \"adequate\" state remedy, cf. Hudson v. Palmer, 468 U. S. 517, 534-536 (1984). Accordingly, the deprivation of liberty was without \"due process of law.\"\n*329 The District Court granted respondent's motion for summary judgment. A panel of the Court of Appeals for the Fourth Circuit affirmed, concluding that even if respondent could make out an immunity defense in state court, petitioner would not be deprived of a meaningful opportunity to present his case. 720 F. 2d 792 (1983). On rehearing, the en banc Court of Appeals affirmed the judgment of the District Court, but under reasoning different from that of the panel. 748 F. 2d 229 (1984). First, a 5-4 majority ruled that negligent infliction of bodily injury, unlike the negligent loss of property in Parratt, does not constitute a deprivation of any interest protected by the Due Process Clause. The majority therefore believed that the postdeprivation process mandated by Parratt for property losses was not required. Second, the en banc court unanimously decided that even if a prisoner is entitled to some remedy for personal injuries attributable to the negligence of state officials, Parratt would bar petitioner's claim if the State provided an adequate postdeprivation remedy. Finally, a 6-3 majority concluded that petitioner had an adequate remedy in state court, even though respondent asserted that he would rely on sovereign immunity as a defense in a state suit. The majority apparently believed that respondent's sovereign immunity defense would fail under Virginia law.\nBecause of the inconsistent approaches taken by lower courts in determining when tortious conduct by state officials rises to the level of a constitutional tort, see Jackson v. Joliet, 465 U. S. 1049, 1050 (1984) (WHITE, J., dissenting from denial of certiorari) (collecting cases), and the apparent lack of adequate guidance from this Court, we granted certiorari. 469 U. S. 1207 (1985). We now affirm.\nIn Parratt v. Taylor, we granted certiorari, as we had twice before, \"to decide whether mere negligence will support a claim for relief under § 1983.\" 451 U. S., at 532. After examining the language, legislative history, and prior interpretations of the statute, we concluded that § 1983, unlike *330 like its criminal counterpart, 18 U. S. C. § 242, contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. Id., at 534-535. We adhere to that conclusion. But in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause); Estelle v. Gamble, 429 U. S. 97, 105 (1976) (\"deliberate indifference\" to prisoner's serious illness or injury sufficient to constitute cruel and unusual punishment under the Eighth Amendment).\nIn Parratt, before concluding that Nebraska's tort remedy provided all the process that was due, we said that the loss of the prisoner's hobby kit, \"even though negligently caused, amounted to a deprivation [under the Due Process Clause].\" 451 U. S., at 536-537. JUSTICE POWELL, concurring in the result, criticized the majority for \"pass[ing] over\" this important question of the state of mind required to constitute a \"deprivation\" of property. Id., at 547. He argued that negligent acts by state officials, though causing loss of property, are not actionable under the Due Process Clause. To JUSTICE POWELL, mere negligence could not \"wor[k] a deprivation in the constitutional sense.\" Id., at 548 (emphasis in original). Not only does the word \"deprive\" in the Due Process Clause connote more than a negligent act, but we should not \"open the federal courts to lawsuits where there has been no affirmative abuse of power.\" Id., at 548-549; see also id., at 545 (Stewart, J., concurring) (\"To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort the meaning and intent of the Constitution\"). Upon reflection, we agree and overrule Parratt to the extent that it states that mere lack of due care by a state *331 official may \"deprive\" an individual of life, liberty, or property under the Fourteenth Amendment.\nThe Due Process Clause of the Fourteenth Amendment provides: \"[N]or shall any State deprive any person of life, liberty, or property, without due process of law.\" Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E. g., Davidson v. New Orleans, 96 U. S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U. S. 165 (1952) (stomach pumping); Bell v. Burson, 402 U. S. 535 (1971) (suspension of driver's license); Ingraham v. Wright, 430 U. S. 651 (1977) (paddling student); Hudson v. Palmer, 468 U. S. 517 (1984) (intentional destruction of inmate's property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368 (1911), was \" `intended to secure the individual from the arbitrary exercise of the powers of government,' \" Hurtado v. California, 110 U. S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)). See also Wolff v. McDonnell, 418 U. S. 539, 558 (1974) (\"The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U. S. 114, 123 (1889)\"); Parratt, supra, at 549 (POWELL, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to \"deprive any person of life, liberty, or property,\" the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them, e. g., Rochin, supra, it serves to prevent governmental power from being \"used for purposes of oppression,\" Murray's Lessee *332 v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth Amendment).\nWe think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate's property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.\nThe Fourteenth Amendment is a part of a Constitution generally designed to allocate governing authority among the Branches of the Federal Government and between that Government and the States, and to secure certain individual rights against both State and Federal Government. When dealing with a claim that such a document creates a right in prisoners to sue a government official because he negligently created an unsafe condition in the prison, we bear in mind Chief Justice Marshall's admonition that \"we must never forget, that it is a constitution we are expounding,\" McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that \" `would make of the Fourteenth Amendment a font of tort law to be super-imposed upon whatever systems may already be administered by the States,' \" Paul v. Davis, 424 U. S. 693, 701 (1976), quoted in Parratt v. Taylor, 451 U. S., at 544.\nThe only tie between the facts of this case and anything governmental in nature is the fact that respondent was a sheriff's deputy at the Richmond city jail and petitioner was an inmate confined in that jail. But while the Due Process Clause of the Fourteenth Amendment obviously speaks to some facets of this relationship, see, e. g., Wolff v. McDonnell, *333 supra, we do not believe its protections are triggered by lack of due care by prison officials. \"Medical malpractice does not become a constitutional violation merely because the victim is a prisoner,\" Estelle v. Gamble, 429 U. S. 97, 106 (1976), and \"false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.\" Baker v. McCollan, 443 U. S. 137, 146 (1979). Where a government official's act causing injury to life, liberty, or property is merely negligent, \"no procedure for compensation is constitutionally required.\" Parratt, supra, at 548 (POWELL, J., concurring in result) (emphasis added).[1]\nThat injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectible legal interests. The enactment of tort claim statutes, for example, reflects the view that injuries caused by such negligence should generally be redressed.[2] It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns.\nIn support of his claim that negligent conduct can give rise to a due process \"deprivation,\" petitioner makes several arguments, none of which we find persuasive. He states, for example, that \"it is almost certain that some negligence claims are within § 1983,\" and cites as an example the failure of a State to comply with the procedural requirements of Wolff v. McDonnell, supra, before depriving an inmate of good-time credit. We think the relevant action of the prison *334 officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause. But we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment.\nPetitioner also suggests that artful litigants, undeterred by a requirement that they plead more than mere negligence, will often be able to allege sufficient facts to support a claim of intentional deprivation. In the instant case, for example, petitioner notes that he could have alleged that the pillow was left on the stairs with the intention of harming him. This invitation to \"artful\" pleading, petitioner contends, would engender sticky (and needless) disputes over what is fairly pleaded. What's more, requiring complainants to allege something more than negligence would raise serious questions about what \"more\" than negligence — intent, recklessness, or \"gross negligence\" — is required,[3] and indeed about what these elusive terms mean. See Reply Brief for Petitioner 9 (\"what terms like willful, wanton, reckless or gross negligence mean\" has \"left the finest scholars puzzled\"). But even if accurate, petitioner's observations do not carry the day. In the first place, many branches of the law abound in nice distinctions that may be troublesome but have been thought nonetheless necessary:\n\"I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized.\" *335 LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 U. S. 340, 354 (1914) (Holmes, J., partially concurring).\nMore important, the difference between one end of the spectrum — negligence — and the other — intent — is abundantly clear. See O. Holmes, The Common Law 3 (1923). In any event, we decline to trivialize the Due Process Clause in an effort to simplify constitutional litigation.\nFinally, citing South v. Maryland, 18 How. 396 (1856), petitioner argues that respondent's conduct, even if merely negligent, breached a sheriff's \"special duty of care\" for those in his custody. Reply Brief for Petitioner 14. The Due Process Clause, petitioner notes, \"was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the crown.\" Ingraham v. Wright, 430 U. S., at 672-673. And South v. Maryland suggests that one such protection was the right to recover against a sheriff for breach of his ministerial duty to provide for the safety of prisoners in his custody. 18 How., at 402-403. Due process demands that the State protect those whom it incarcerates by exercising reasonable care to assure their safety and by compensating them for negligently inflicted injury.\nWe disagree. We read South v. Maryland, supra, an action brought under federal diversity jurisdiction on a Maryland sheriff's bond, as stating no more than what this Court thought to be the principles of common law and Maryland law applicable to that case; it is not cast at all in terms of constitutional law, and indeed could not have been, since at the time it was rendered there was no due process clause applicable to the States. Petitioner's citation to Ingraham v. Wright does not support the notion that all common-law duties owed by government actors were somehow constitutionalized by the Fourteenth Amendment. Jailers may owe a special duty of care to those in their custody under state tort law, see Restatement (Second) of Torts § 314A(4) (1965), but for the reasons previously stated we reject the contention that the *336 Due Process Clause of the Fourteenth Amendment embraces such a tort law concept. Petitioner alleges that he was injured by the negligence of respondent, a custodial official at the city jail. Whatever other provisions of state law or general jurisprudence he may rightly invoke, the Fourteenth Amendment to the United States Constitution does not afford him a remedy.\nAffirmed.\nJUSTICE MARSHALL concurs in the result.\nJUSTICE BLACKMUN, concurring in the judgment.\nI concur in the judgment. See my opinion in dissent in Davidson v. Cannon, post, p. 349.\nJUSTICE STEVENS, concurring in the judgments.[*]\nTwo prisoners raise similar claims in these two cases. Both seek to recover for personal injuries suffered, in part, from what they allege was negligence by state officials. Both characterize their injuries as \"deprivations of liberty\" and both invoke 42 U. S. C. § 1983 as a basis for their claims.\nPrisoner Roy Daniels was injured when he slipped on a newspaper and pillows left on a stairway in the Virginia jail where he is incarcerated; he alleges state negligence in the presence of the objects on the stairs. Prisoner Robert Davidson suffered injury when he was attacked by another inmate in the New Jersey prison where he is incarcerated; he alleges (and proved at trial) state negligence in the failure of prison authorities to prevent the assault after he had written a note expressing apprehension about the inmate who ultimately assaulted him. I agree with the majority that petitioners cannot prevail under § 1983. I do not agree, however, that it is necessary either to redefine the meaning of \"deprive\" in the Fourteenth Amendment,[1] or to repudiate *337 the reasoning of Parratt v. Taylor, 451 U. S. 527 (1981), to support this conclusion.\nWe should begin by identifying the precise constitutional claims that petitioners have advanced. It is not enough to note that they rely on the Due Process Clause of the Fourteenth Amendment, for that Clause is the source of three different kinds of constitutional protection. First, it incorporates specific protections defined in the Bill of Rights. Thus, the State, as well as the Federal Government, must comply with the commands in the First[2] and Eighth[3] Amendments; so too, the State must respect the guarantees in the Fourth,[4] Fifth,[5] and Sixth[6] Amendments. Second, it contains a substantive component, sometimes referred to as \"substantive due process,\" which bars certain arbitrary government actions \"regardless of the fairness of the procedures used to implement them.\" Ante, at 331.[7] Third, it is a guarantee of fair procedure, sometimes referred to as \"procedural due process\": the State may not execute, imprison, or fine a defendant without giving him a fair trial,[8] nor may it take property without providing appropriate procedural safeguards.[9]\nThe type of Fourteenth Amendment interest that is implicated has important effects on the nature of the constitutional claim and the availability of § 1983 relief. If the claim is in *338 the first category (a violation of one of the specific constitutional guarantees of the Bill of Rights), a plaintiff may invoke § 1983 regardless of the availability of a state remedy.[10] As explained in Monroe v. Pape, 365 U. S. 167 (1961), this conclusion derives from the fact that the statute — the Ku Klux Act of 1871 — was intended to provide a federal remedy for the violation of a federal constitutional right. Thus, when the Fourth Amendment is violated, as in Pape, the provision of an independent federal remedy under § 1983 is necessary to satisfy the purpose of the statute.\nSimilarly, if the claim is in the second category (a violation of the substantive component of the Due Process Clause), a plaintiff may also invoke § 1983 regardless of the availability of a state remedy.[11] For, in that category, no less than with the provisions of the Bill of Rights, if the Federal Constitution prohibits a State from taking certain actions \"regardless of the fairness of the procedures used to implement them,\" the constitutional violation is complete as soon as the prohibited action is taken; the independent federal remedy is then authorized by the language and legislative history of § 1983.\nA claim in the third category — a procedural due process claim — is fundamentally different. In such a case, the deprivation may be entirely legitimate — a State may have every right to discharge a teacher or punish a student — but the State may nevertheless violate the Constitution by failing to provide appropriate procedural safeguards. The constitutional duty to provide fair procedures gives the citizen the opportunity to try to prevent the deprivation from happening, but the deprivation itself does not necessarily reflect any *339 \"abuse\" of state power. Similarly, a deprivation may be the consequence of a mistake or a negligent act, and the State may violate the Constitution by failing to provide an appropriate procedural response. In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation of property or liberty without due process of law — without adequate procedures.\nThus, even though the State may have every right to deprive a person of his property or his liberty, the individual may nevertheless be able to allege a valid § 1983 due process claim, perhaps because a predeprivation hearing must be held,[12] or because the state procedure itself is fundamentally flawed.[13] So too, even though a deprivation may be unauthorized, a procedural due process claim may be raised if it challenges the State's procedures for preventing or redressing the deprivation. However, a complaint does not state a valid procedural due process objection — and a valid § 1983 claim — if it does not include a challenge to the fundamental fairness of the State's procedures. In consequence, when a predeprivation hearing is clearly not feasible,[14] when the regime of state tort law provides a constitutionally unobjectionable system of recovery for the deprivation of property or liberty, and when there is no other challenge to the State's procedures, a valid § 1983 claim is not stated. For, unlike cases in the other two categories — those in which the alleged *340 deprivation violates a substantive federal right — if a procedural due process claim lacks a colorable objection to the validity of the State's procedures, no constitutional violation has been alleged.[15]\nPetitioners' claims are not of the first kind. Neither Daniels nor Davidson argues in this Court that the prison authorities' actions violated specific constitutional guarantees incorporated by the Fourteenth Amendment. Neither now claims, for instance, that his rights under the Eighth Amendment were violated. Similarly, I do not believe petitioners have raised a colorable violation of \"substantive due process.\"[16] Rather, their claims are of the third kind: Daniels and Davidson attack the validity of the procedures that Virginia and New Jersey, respectively, provide for prisoners who seek redress for physical injury caused by the negligence of corrections officers.\nI would not reject these claims, as the Court does, by attempting to fashion a new definition of the term \"deprivation\" *341 and excluding negligence from its scope. No serious question has been raised about the presence of \"state action\" in the allegations of negligence,[17] and the interest in freedom from bodily harm surely qualifies as an interest in \"liberty.\" Thus, the only question is whether negligence by state actors can result in a deprivation. \"Deprivation,\" it seems to me, identifies, not the actor's state of mind, but the victim's infringement or loss. The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally; so too, the harm resulting to a prisoner from an attack is the same whether his request for protection is ignored negligently, recklessly, or deliberately. In each instance, the prisoner is losing — being \"deprived\" of — an aspect of liberty as the result, in part, of a form of state action.\nThus, I would characterize each loss as a \"deprivation\" of liberty. Because the cases raise only procedural due process claims, however, it is also necessary to examine the nature of petitioners' challenges to the state procedures. To prevail, petitioners must demonstrate that the state procedures for redressing injuries of this kind are constitutionally inadequate. Petitioners must show that they contain a defect so serious that we can characterize the procedures as fundamentally unfair, a defect so basic that we are forced to conclude that the deprivation occurred without due process.\nDaniels' claim is essentially the same as the claim we rejected in Parratt. The Court of Appeals for the Fourth Circuit determined that Daniels had a remedy for the claimed negligence under Virginia law. Although Daniels vigorously argues that sovereign immunity would have defeated his claim, the Fourth Circuit found to the contrary, and it is our settled practice to defer to the Courts of Appeals on questions *342 of state law.[18] It is true that Parratt involved an injury to \"property\" and that Daniels' case involves an injury to \"liberty,\" but, in both cases, the plaintiff claimed nothing more than a \"procedural due process\" violation. In both cases, a predeprivation hearing was definitionally impossible.[19] And, in both cases, the plaintiff had state remedies that permitted recovery if state negligence was established. Thus, a straightforward application of Parratt defeats Daniels' claim.\nDavidson's claim raises a question not specifically addressed in Parratt. According to the Third Circuit, no state remedy was available because a New Jersey statute prohibits prisoner recovery from state employees for injuries inflicted by other prisoners. Thus, Davidson puts the question whether a state policy of noncompensability for certain types of harm, in which state action may play a role, renders a state procedure constitutionally defective. In my judgment, a state policy that defeats recovery does not, in itself, carry that consequence. Those aspects of a State's tort regime that defeat recovery are not constitutionally invalid, so long as there is no fundamental unfairness in their operation. Thus, defenses such as contributory negligence or statutes of limitations may defeat recovery in particular cases without raising any question about the constitutionality of a State's procedures for disposing of tort litigation. Similarly, in my judgment, the mere fact that a State elects to provide some of its agents with a sovereign immunity defense in certain cases does not justify the conclusion that its remedial system is constitutionally inadequate. There is no reason to believe that the Due Process Clause of the Fourteenth Amendment *343 and the legislation enacted pursuant to § 5 of that Amendment should be construed to suggest that the doctrine of sovereign immunity renders a state procedure fundamentally unfair.[20] Davidson's challenge has been only to the fact of sovereign immunity; he has not challenged the difference in treatment of a prisoner assaulted by a prisoner and a nonprisoner assaulted by a prisoner, and I express no comment on the fairness of that differentiation.\nThus, although I believe that the harms alleged by Daniels and proved by Davidson qualify as deprivations of liberty, I am not persuaded that either has raised a violation of the Due Process Clause of the Fourteenth Amendment. I therefore concur in the judgments.\nNOTES\n[1] Accordingly, we need not decide whether, as petitioner contends, the possibility of a sovereign immunity defense in a Virginia tort suit would render that remedy \"inadequate\" under Parratt and Hudson v. Palmer, 468 U. S. 517 (1984).\n[2] See, e. g., the Virginia Tort Claims Act, Va. Code § 8.01-195.1 et seq. (1984), which applies only to actions accruing on or after July 1, 1982, and hence is inapplicable to this case.\n[3] Despite his claim about what he might have pleaded, petitioner concedes that respondent was at most negligent. Accordingly, this case affords us no occasion to consider whether something less than intentional conduct, such as recklessness or \"gross negligence,\" is enough to trigger the protections of the Due Process Clause.\n[*] [This opinion applies also to Davidson v. Cannon et al., No. 84-6470, post, p. 344.]\n[1] \"[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .\" U. S. Const., Amdt. 14.\n[2] See, e. g., Douglas v. Jeannette, 319 U. S. 157 (1943).\n[3] See, e. g., Robinson v. California, 370 U. S. 660 (1962).\n[4] See, e. g., Mapp v. Ohio, 367 U. S. 643 (1961).\n[5] See, e. g., Malloy v. Hogan, 378 U. S. 1 (1964) (right to protection from compelled self-incrimination applies to States); Benton v. Maryland, 395 U. S. 784 (1969) (right to protection from double jeopardy applies to States).\n[6] See, e. g., Duncan v. Louisiana, 391 U. S. 145 (1968) (right to jury trial applies to States).\n[7] See also Moore v. East Cleveland, 431 U. S. 494 (1977); Youngberg v. Romeo, 457 U. S. 307 (1982).\n[8] See, e. g., Groppi v. Leslie, 404 U. S. 496 (1972); In re Oliver, 333 U. S. 257 (1948).\n[9] See, e. g., Fuentes v. Shevin, 407 U. S. 67 (1972).\n[10] See, e. g., Monroe v. Pape, 365 U. S. 167 (1961) (§ 1983 action for Fourth Amendment violation); Smith v. Wade, 461 U. S. 30 (1983) (§ 1983 action for Eighth Amendment violation). See generally McNeese v. Board of Education, 373 U. S. 668, 672 (1963) (§ 1983 is \"supplementary to any remedy any State might have\").\n[11] Cf. Parratt v. Taylor, 451 U. S. 527, 545 (1981) (BLACKMUN, J., concurring); Roe v. Wade, 410 U. S. 113 (1973).\n[12] See, e. g., Loudermill v. Cleveland Board of Education, 470 U. S. 532 (1985); Carey v. Piphus, 435 U. S. 247 (1978); Goss v. Lopez, 419 U. S. 565 (1975). Cf. Groppi, supra.\n[13] Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 436 (1982) (postdeprivation state remedy is inadequate when challenge is to \"the state system itself\"); Baker v. McCollan, 443 U. S. 137, 156 (1979) (STEVENS, J., dissenting).\n[14] See Hudson v. Palmer, 468 U. S. 517, 533 (1984) (\"[W]hen deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply `impracticable' since the state cannot know when such deprivations will occur\"); Parratt v. Taylor, supra.\n[15] See id., at 543-544.\n[16] Davidson explicitly disavows a substantive due process claim. See Brief for Petitioner in No. 84-6470, p. 7 (\"[P]etitioner frames his claim here purely in terms of procedural due process\"). At oral argument, counsel for Daniels did suggest that he was pursuing a substantive due process claim. Tr. of Oral Arg. in No. 84-5872, p. 22. However, the Court of Appeals viewed Daniels' claim as a procedural due process argument, see 748 F. 2d 229, 230, n. 1 (CA4 1984) (\"There is no claim of any substantive due process violation\"), and Daniels did not dispute this characterization in his petition for certiorari or in his brief on the merits.\n\nIn any event, to the extent that petitioners' arguments about the special obligations of prison officials may be read as a substantive due process claim, I agree with the Court, ante, at 335-336, that the sheriff's \"special duty of care\" recognized in South v. Maryland, 18 How. 396 (1856), does not have its source in the Federal Constitution. In these circumstances, it seems to me, the substantive constitutional duties of prison officials to prisoners are defined by the Eighth Amendment, not by substantive due process. Cf. United States ex rel. Miller v. Twomey, 479 F. 2d 701, 719-721 (CA7 1973) (analyzing prison officials' responsibilities to prevent inmate assaults under the Eighth Amendment), cert. denied sub nom. Gutierrez v. Department of Public Safety of Illinois, 414 U. S. 1146 (1974).\n[17] Respondents in Davidson do raise a state-action objection in one sentence, Brief for Respondents in No. 84-6470, p. 13, n., but that bare reference is inadequate to mount a challenge to the undisturbed District Court finding of state action.\n[18] See Haring v. Prosise, 462 U. S. 306, 314, n. 8 (1983); Leroy v. Great Western United Corp., 443 U. S. 173, 181, n. 11 (1979); Bishop v. Wood, 426 U. S. 341, 345-347 (1976); Propper v. Clark, 337 U. S. 472, 486-487 (1949).\n[19] It borders on the absurd to suggest that a State must provide a hearing to determine whether or not a corrections officer should engage in negligent conduct.\n[20] In Martinez v. California, 444 U. S. 277 (1980), we held that California's immunity statute did not violate the Due Process Clause simply because it operated to defeat a tort claim arising under state law. The fact that an immunity statute does not give rise to a procedural due process claim does not, of course, mean that a State's doctrine of sovereign immunity can protect conduct that violates a federal constitutional guarantee; obviously it cannot, see Martinez, supra, at 284, n. 8, quoting Hampton v. Chicago, 484 F. 2d 602, 607 (CA7 1973), cert. denied, 415 U. S. 917 (1974).\n\n", "ocr": false, "opinion_id": 111555 }, { "author_str": "Rehnquist", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJustice Rehnquist\ndelivered the opinion of the Court.\nIn Parrott v. Taylor, 451 U. S. 527 (1981), a state prisoner sued under 42 U. S. C. § 1983, claiming that prison officials had negligently deprived him of his property without due process of law. After deciding that § 1983 contains no independent state-of-mind requirement, we concluded that although petitioner had been “deprived” of property within the meaning of the Due Process Clause of the Fourteenth Amendment, the State’s postdeprivation tort remedy provided the process that was due. Petitioner’s claim in this case, which also rests on an alleged Fourteenth Amendment “deprivation” caused by the negligent conduct of a prison official, leads us to reconsider our statement in Parrott that “the alleged loss, even though negligently caused, amounted to a deprivation.” Id., at 536-537. We conclude that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.\nIn this § 1983 action, petitioner seeks to recover damages for back and ankle injuries allegedly sustained when he fell on a prison stairway. He claims that, while an inmate at the city jail in Richmond, Virginia, he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail. Respondent’s negligence, the argument runs, “deprived” petitioner of his “liberty” interest in freedom from bodily injury, see Ingraham v. Wright, 430 U. S. 651, 673 (1977); because respondent maintains that he is entitled to the defense of sovereign immunity in a state tort suit, petitioner is without an “adequate” state remedy, cf. Hudson v. Palmer, 468 U. S. 517, 534-536 (1984). Accordingly, the deprivation of liberty was without “due process of law.”\n*329The District Court granted respondent’s motion for summary judgment. A panel of the Court of Appeals for the Fourth Circuit affirmed, concluding that even if respondent could make out an immunity defense in state court, petitioner would not be deprived of a meaningful opportunity to present his case. 720 F. 2d 792 (1983). On rehearing, the en banc Court of Appeals affirmed the judgment of the District Court, but under reasoning different from that of the panel. 748 F. 2d 229 (1984). First, a 5-4 majority ruled that negligent infliction of bodily injury, unlike the negligent loss of property in Parratt, does not constitute a deprivation of any interest protected by the Due Process Clause. The majority therefore believed that the postdeprivation process mandated by Parratt for property losses was not required. Second, the en banc court unanimously decided that even if a prisoner is entitled to some remedy for personal injuries attributable to the negligence of state officials, Parratt would bar petitioner’s claim if the State provided an adequate postdeprivation remedy. Finally, a 6-3 majority concluded that petitioner had an adequate remedy in state court, even though respondent asserted that he would rely on sovereign immunity as a defense in a state suit. The majority apparently believed that respondent’s sovereign immunity defense would fail under Virginia law.\nBecause of the inconsistent approaches taken by lower courts in determining when tortious conduct by state officials rises to the level of a constitutional tort, see Jackson v. Joliet, 465 U. S. 1049, 1050 (1984) (White, J., dissenting from denial of certiorari) (collecting cases), and the apparent lack of adequate guidance from this Court, we granted certiorari. 469 U. S. 1207 (1985). We now affirm.\nIn Parratt v. Taylor, we granted certiorari, as we had twice before, “to decide whether mere negligence will support a claim for relief under §1983.” 451 U. S., at 532. After examining the language, legislative history, and prior interpretations of the statute, we concluded that § 1983, un*330like its criminal counterpart, 18 U. S. C. §242, contains no state-of-mind requirement independent of that necessary to state a violation of the underlying constitutional right. Id., at 534-535. .We adhere to that conclusion. But in any given § 1983 suit, the plaintiff must still prove a violation of the underlying constitutional right; and depending on the right, merely negligent conduct may not be enough to state a claim. See, e. g., Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U. S. 252 (1977) (invidious discriminatory purpose required for claim of racial discrimination under the Equal Protection Clause); Estelle v. Gamble, 429 U. S. 97, 105 (1976) (“deliberate indifference” to prisoner’s serious illness or injury sufficient to constitute cruel and unusual punishment under the Eighth Amendment).\nIn Parratt, before concluding that Nebraska’s tort remedy provided all the process that was due, we said that the loss of the prisoner’s hobby kit, “even though negligently caused, amounted to a deprivation [under the Due Process Clause].” 451 U. S., at 536-537. Justice Powell, concurring in the result, criticized the majority for “pass[ing] over” this important question of the state of mind required to constitute a “deprivation” of property. Id., at 547. He argued that negligent acts by state officials, though causing loss of property, are not actionable under the Due Process Clause. To Justice Powell, mere negligence could not “wor[k] a deprivation in the constitutional sense.” Id., at 548 (emphasis in original). Not only does the word “deprive” in the Due Process Clause connote more than a negligent act, but we should not “open the federal courts to lawsuits where there has been no affirmative abuse of power.” Id., at 548-549; see also id., at 545 (Stewart, J., concurring) (“To hold that this kind of loss is a deprivation of property within the meaning of the Fourteenth Amendment seems not only to trivialize, but grossly to distort the meaning and intent of the Constitution”). Upon reflection, we agree and overrule Parratt to the extent that it states that mere lack of due care by a state *331official may “deprive” an individual of life, liberty, or property under the Fourteenth Amendment.\nThe Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” Historically, this guarantee of due process has been applied to deliberate decisions of government officials to deprive a person of life, liberty, or property. E. g., Davidson v. New Orleans, 96 U. S. 97 (1878) (assessment of real estate); Rochin v. California, 342 U. S. 165 (1952) (stomach pumping); Bell v. Burson, 402 U. S. 535 (1971) (suspension of driver’s license); Ingraham v. Wright, 430 U. S. 651 (1977) (paddling student); Hudson v. Palmer, 468 U. S. 517 (1984) (intentional destruction of inmate’s property). No decision of this Court before Parratt supported the view that negligent conduct by a state official, even though causing injury, constitutes a deprivation under the Due Process Clause. This history reflects the traditional and common-sense notion that the Due Process Clause, like its forebear in the Magna Carta, see Corwin, The Doctrine of Due Process of Law Before the Civil War, 24 Harv. L. Rev. 366, 368 (1911), was “‘intended to secure the individual from the arbitrary exercise of the powers of government,’” Hurtado v. California, 110 U. S. 516, 527 (1884) (quoting Bank of Columbia v. Okely, 4 Wheat. 235, 244 (1819)). See also Wolff v. McDonnell, 418 U. S. 539, 558 (1974) (“The touchstone of due process is protection of the individual against arbitrary action of government, Dent v. West Virginia, 129 U. S. 114, 123 (1889)”); Parratt, supra, at 549 (Powell, J., concurring in result). By requiring the government to follow appropriate procedures when its agents decide to “deprive any person of life, liberty, or property,” the Due Process Clause promotes fairness in such decisions. And by barring certain government actions regardless of the fairness of the procedures used to implement them, e. g., Rochin, supra, it serves to prevent governmental power from being “used for purposes of oppression,” Murray’s Les*332see v. Hoboken Land & Improvement Co., 18 How. 272, 277 (1856) (discussing Due Process Clause of Fifth Amendment).\nWe think that the actions of prison custodians in leaving a pillow on the prison stairs, or mislaying an inmate’s property, are quite remote from the concerns just discussed. Far from an abuse of power, lack of due care suggests no more than a failure to measure up to the conduct of a reasonable person. To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of law.\nThe Fourteenth Amendment is a part of a Constitution generally designed to allocate governing authority among the Branches of the Federal Government and between that Government and the States, and to secure certain individual rights against both State and Federal Government. When dealing with a claim that such a document creates a right in prisoners to sue a government official because he negligently created an unsafe condition in the prison, we bear in mind Chief Justice Marshall’s admonition that “we must never forget, that it is a constitution we are expounding,” McCulloch v. Maryland, 4 Wheat. 316, 407 (1819) (emphasis in original). Our Constitution deals with the large concerns of the governors and the governed, but it does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society. We have previously rejected reasoning that “‘would make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the States,’” Paul v. Davis, 424 U. S. 693, 701 (1976), quoted in Parratt v. Taylor, 451 U. S., at 544.\nThe only tie between the facts of this case and anything governmental in nature is the fact that respondent was a sheriff’s deputy at the Richmond city jail and petitioner was an inmate confined in that jail. But while the Due Process Clause of the Fourteenth Amendment obviously speaks to some facets of this relationship, see, e. g., Wolff v. McDon*333nell, swpra, we do not believe its protections are triggered by lack of due care by prison officials. “Medical malpractice does not become a constitutional violation merely because the victim is a prisoner,” Estelle v. Gamble, 429 U. S. 97, 106 (1976), and “false imprisonment does not become a violation of the Fourteenth Amendment merely because the defendant is a state official.” Baker v. McCollan, 443 U. S. 137, 146 (1979). Where a government official’s act causing injury to life, liberty, or property is merely negligent, “no procedure for compensation is constitutionally required.” Parratt, swpra, at 548 (Powell, J., concurring in result) (emphasis added).1\nThat injuries inflicted by governmental negligence are not addressed by the United States Constitution is not to say that they may not raise significant legal concerns and lead to the creation of protectible legal interests. The enactment of tort claim statutes, for example, reflects the view that injuries caused by such negligence should generally be redressed.2 It is no reflection on either the breadth of the United States Constitution or the importance of traditional tort law to say that they do not address the same concerns.\nIn support of his claim that negligent conduct can give rise to a due process “deprivation,” petitioner makes several arguments, none of which we find persuasive. He states, for example, that “it is almost certain that some negligence claims are within § 1983,” and cites as an example the failure of a State to comply with the procedural requirements of Wolff v. McDonnell, supra, before depriving an inmate of good-time credit. We think the relevant action of the prison *334officials in that situation is their deliberate decision to deprive the inmate of good-time credit, not their hypothetically negligent failure to accord him the procedural protections of the Due Process Clause. But we need not rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care in order to hold, as we do, that such conduct does not implicate the Due Process Clause of the Fourteenth Amendment.\nPetitioner also suggests that artful litigants, undeterred by a requirement that they plead more than mere negligence, will often be able to allege sufficient facts to support a claim of intentional deprivation. In the instant case, for example, petitioner notes that he could have alleged that the pillow was left on the stairs with the intention of harming him. This invitation to “artful” pleading, petitioner contends, would engender sticky (and needless) disputes over what is fairly pleaded. What’s more, requiring complainants to allege something more than negligence would raise serious questions about what “more” than negligence — intent, recklessness, or “gross negligence” — is required,3 and indeed about what these elusive terms mean. See Reply Brief for Petitioner 9 (“what terms like willful, wanton, reckless or gross negligence mean” has “left the finest scholars puzzled”). But even if accurate, petitioner’s observations do not carry the day. In the first place, many branches of the law abound in nice distinctions that may be troublesome but have been thought nonetheless necessary:\n“I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized.” *335LeRoy Fibre Co. v. Chicago, M. & St. P. R. Co., 232 U. S. 340, 354 (1914) (Holmes, J., partially concurring).\nMore important, the difference between one end of the spectrum — negligence—and the other — intent—is abundantly clear. See 0. Holmes, The Common Law 3 (1923). In any event, we decline to trivialize the Due Process Clause in an effort to simplify constitutional litigation.\nFinally, citing South v. Maryland, 18 How. 396 (1856), petitioner argues that respondent’s conduct, even if merely negligent, breached a sheriff’s “special duty of care” for those in his custody. Reply Brief for Petitioner 14. The Due Process Clause, petitioner notes, “was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the crown.” Ingraham v. Wright, 430 U. S., at 672-673. And South v. Maryland suggests that one such protection was the right to recover against a sheriff for breach of his ministerial duty to provide for the safety of prisoners in his custody. 18 How., at 402-403. Due process demands that the State protect those whom it incarcerates by exercising reasonable care to assure their safety and by compensating them for negligently inflicted injury.\nWe disagree. We read South v. Maryland, supra, an action brought under federal diversity jurisdiction on a Maryland sheriff’s bond, as stating no more than what this Court thought to be the principles of common law and Maryland law applicable to that case; it is not cast at all in terms of constitutional law, and indeed could not have been, since at the time it was rendered there was no due process clause applicable to the States. Petitioner’s citation to Ingraham v. Wright does not support the notion that all common-law duties owed by government actors were somehow constitutionalized by the Fourteenth Amendment. Jailers may owe a special duty of care to those in their custody under state tort law, see Restatement (Second) of Torts § 314A(4) (1965), but for the reasons previously stated we reject the contention that the *336Due Process Clause of the Fourteenth Amendment embraces such a tort law concept. Petitioner alleges that he was injured by the negligence of respondent, a custodial official at the city jail. Whatever other provisions of state law or general jurisprudence he may rightly invoke, the Fourteenth Amendment to the United States Constitution does not afford him a remedy.\n\nAffirmed.\n\nJustice Marshall concurs in the result.\nJustice Blackmun, concurring in the judgment.\nI concur in the judgment. See my opinion in dissent in Davidson v. Cannon, post, p. 349.\n\n Accordingly, we need not decide whether, as petitioner contends, the possibility of a sovereign immunity defense in a Virginia tort suit would render that remedy “inadequate” under Parratt and Hudson v. Palmer, 468 U. S. 517 (1984).\n\n\n See, e. g., the Virginia Tort Claims Act, Va. Code §8.01-195.1 et seq. (1984), which applies only to actions accruing on or after July 1, 1982, and hence is inapplicable to this case.\n\n\n Despite Ms claim about what he might have pleaded, petitioner concedes that respondent was at most negligent. Accordingly, this case affords us no occasion to consider whether something less than intentional conduct, such as recklessness or “gross negligence,” is enough to trigger the protections of the Due Process Clause.\n\n", "ocr": false, "opinion_id": 9430259 }, { "author_str": "Stevens", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJustice Stevens,\nconcurring in the judgments.*\nTwo prisoners raise similar claims in these two cases. Both seek to recover for personal injuries suffered, in part, from what they allege was negligence by state officials. Both characterize their injuries as “deprivations of liberty” and both invoke 42 U. S. C. § 1983 as a basis for their claims.\nPrisoner Roy Daniels was injured when he slipped on a newspaper and pillows left on a stairway in the Virginia jail where he is incarcerated; he alleges state negligence in the presence of the objects on the stairs. Prisoner Robert Davidson suffered injury when he was attacked by another inmate in the New Jersey prison where he is incarcerated; he alleges (and proved at trial) state negligence in the failure of prison authorities to prevent the assault after he had written a note expressing apprehension about the inmate who ultimately assaulted him. I agree with the majority that petitioners cannot prevail under § 1983. I do not agree, however, that it is necessary either to redefine the meaning of “deprive” in the Fourteenth Amendment,1 or to repudiate *337the reasoning of Parratt v. Taylor, 451 U. S. 527 (1981), to support this conclusion.\nWe should begin by identifying the precise constitutional claims that petitioners have advanced. It is not enough to note that they rely on the Due Process Clause of the Fourteenth Amendment, for that Clause is the source of three different kinds of constitutional protection. First, it incorporates specific protections defined in the Bill of Rights. Thus, the State, as well as the Federal Government, must comply with the commands in the First2 and Eighth3 Amendments; so too, the State must respect the guarantees in the Fourth,4 Fifth,5 and Sixth6 Amendments. Second, it contains a substantive component, sometimes referred to as “substantive due process,” which bars certain arbitrary government actions “regardless of the fairness of the procedures used to implement them.” Ante, at 331.7 Third, it is a guarantee of fair procedure, sometimes referred to as “procedural due process”: the State may not execute, imprison, or fine a defendant without giving him a fair trial,8 nor may it take property without providing appropriate procedural safeguards.9\nThe type of Fourteenth Amendment interest that is implicated has important effects on the nature of the constitutional claim and the availability of § 1983 relief. If the claim is in *338the first category (a violation of one of the specific constitutional guarantees of the Bill of Rights), a plaintiff may invoke § 1983 regardless of the availability of a state remedy.10 As explained in Monroe v. Pape, 365 U. S. 167 (1961), this conclusion derives from the fact that the statute — the Ku Klux Act of 1871 — was intended to provide a federal remedy for the violation of a federal constitutional right. Thus, when the Fourth Amendment is violated, as in Pape, the provision of an independent federal remedy under § 1983 is necessary to satisfy the purpose of the statute.\nSimilarly, if the claim is in the second category (a violation of the substantive component of the Due Process Clause), a plaintiff may also invoke § 1983 regardless of the availability of a state remedy.11 For, in that category, no less than with the provisions of the Bill of Rights, if the Federal Constitution prohibits a State from taking certain actions “regardless of the fairness of the procedures used to implement them,” the constitutional violation is complete as soon as the prohibited action is taken; the independent federal remedy is then authorized by the language and legislative history of § 1983.\nA claim in the third category — a procedural due process claim — is fundamentally different. In such a case, the deprivation may be entirely legitimate — a State may have every right to discharge a teacher or punish a student — but the State may nevertheless violate the Constitution by failing to provide appropriate procedural safeguards. The constitutional duty to provide fair procedures gives the citizen the opportunity to try to prevent the deprivation from happening, but the deprivation itself does not necessarily reflect any *339“abuse” of state power. Similarly, a deprivation may be the consequence of a mistake or a negligent act, and the State may violate the Constitution by failing to provide an appropriate procedural response. In a procedural due process claim, it is not the deprivation of property or liberty that is unconstitutional; it is the deprivation of property or liberty without due process of ¿aw — without adequate procedures.\nThus, even though the State may have every right to deprive a person of his property or his liberty, the individual may nevertheless be able to allege a valid § 1983 due process claim, perhaps because a predeprivation hearing must be held,12 or because the state procedure itself is fundamentally flawed.13 So too, even though a deprivation may be unauthorized, a procedural due process claim may be raised if it challenges the State’s procedures for preventing or redressing the deprivation. However, a complaint does not state a valid procedural due process objection — and a valid §1983 claim — if it does not include a challenge to the fundamental fairness of the State’s procedures. In consequence, when a predeprivation hearing is clearly not feasible,14 when the regime of state tort law provides a constitutionally unobjectionable system of recovery for the deprivation of property or liberty, and when there is no other challenge to the State’s procedures, a valid § 1983 claim is not stated. For, unlike cases in the other two categories —those in which the alleged *340deprivation violates a substantive federal right — if a procedural due process claim lacks a colorable objection to the validity of the State’s procedures, no constitutional violation has been alleged.15\nPetitioners’ claims are not of the first kind. Neither Daniels nor Davidson argues in this Court that the prison authorities’ actions violated specific constitutional guarantees incorporated by the Fourteenth Amendment. Neither now claims, for instance, that his rights under the Eighth Amendment were violated. Similarly, I do not believe petitioners have raised a colorable violation of “substantive due process.”16 Rather, their claims are of the third kind: Daniels and Davidson attack the validity of the procedures that Virginia and New Jersey, respectively, provide for prisoners who seek redress for physical injury caused by the negligence of corrections officers.\nI would not reject these claims, as the Court does, by attempting to fashion a new definition of the term “depriva*341tion” and excluding negligence from its scope. No serious question has been raised about the presence of “state action” in the allegations of negligence,17 and the interest in freedom from bodily harm surely qualifies as an interest in “liberty.” Thus, the only question is whether negligence by state actors can result in a deprivation. “Deprivation,” it seems to me, identifies, not the actor’s state of mind, but the victim’s infringement or loss. The harm to a prisoner is the same whether a pillow is left on a stair negligently, recklessly, or intentionally; so too, the harm resulting to a prisoner from an attack is the same whether his request for protection is ignored negligently, recklessly, or deliberately. In each instance, the prisoner is losing-being “deprived” of — an aspect of liberty as the result, in part, of a form of state action.\nThus, I would characterize each loss as a “deprivation” of liberty. Because the cases raise only procedural due process claims, however, it is also necessary to examine the nature of petitioners’ challenges to the state procedures. To prevail, petitioners must demonstrate that the state procedures for redressing injuries of this kind are constitutionally inadequate. Petitioners must show that they contain a defect so serious that we can characterize the procedures as fundamentally unfair, a defect so basic that we are forced to conclude that the deprivation occurred without due process.\nDaniels’ claim is essentially the same as the claim we rejected in Parratt. The Court of Appeals for the Fourth Circuit determined that Daniels had a remedy for the claimed negligence under Virginia law. Although Daniels vigorously argues that sovereign immunity would have defeated his claim, the Fourth Circuit found to the contrary, and it is our settled practice to defer to the Courts of Appeals on ques*342tions of state law.18 It is true that Parratt involved an injury to “property” and that Daniels’ case involves an injury to “liberty,” but, in both cases, the plaintiff claimed nothing more than a “procedural due process” violation. In both cases, a predeprivation hearing was definitionally impossible.19 And, in both cases, the plaintiff had state remedies that permitted recovery if state negligence was established. Thus, a straightforward application of Parratt defeats Daniels’ claim.\nDavidson’s claim raises a question not specifically addressed in Parratt. According to the Third Circuit, no state remedy was available because a New Jersey statute prohibits prisoner recovery from state employees for injuries inflicted by other prisoners. Thus, Davidson puts the question whether a state policy of noncompensability for certain types of harm, in which state action may play a role, renders a state procedure constitutionally defective. In my judgment, a state policy that defeats recovery does not, in itself, carry that consequence. Those aspects of a State’s tort regime that defeat recovery are not constitutionally invalid, so long as there is no fundamental unfairness in their operation. Thus, defenses such as contributory negligence or statutes of limitations may defeat recovery in particular cases without raising any question about the constitutionality of a State’s procedures for disposing of tort litigation. Similarly, in my judgment, the mere fact that a State elects to provide some of its agents with a sovereign immunity defense in certain cases does not justify the conclusion that its remedial system is constitutionally inadequate. There is no reason to believe that the Due Process Clause of the Fourteenth Amendment *343and the legislation enacted pursuant to §5 of that Amendment should be construed to suggest that the doctrine of sovereign immunity renders a state procedure fundamentally unfair.20 Davidson’s challenge has been only to the fact of sovereign immunity; he has not challenged the difference in treatment of a prisoner assaulted by a prisoner and a non-prisoner assaulted by a prisoner, and I express no comment on the fairness of that differentiation.\nThus, although I believe that the harms alleged by Daniels and proved by Davidson qualify as deprivations of liberty, I am not persuaded that either has raised a violation of the Due Process Clause of the Fourteenth Amendment. I therefore concur in the judgments.\n\n[This opinion applies also to Davidson v. Cannon et al., No. 84-6470, post, p. 344.]\n\n\n “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .” U. S. Const., Amdt. 14.\n\n\n See, e. g., Douglas v. Jeannette, 319 U. S. 157 (1943).\n\n\n See, e. g, Robinson v. California, 370 U. S. 660 (1962).\n\n\n See, 0. g., Mapp v. Ohio, 367 U. S. 643 (1961).\n\n\n See, e. g., Malloy v. Hogan, 378 U. S. 1 (1964) (right to protection from compelled self-incrimination applies to States); Benton v. Maryland, 395 U. S. 784 (1969) (right to protection from double jeopardy applies to States).\n\n\n See, e. g., Duncan v. Louisiana, 391 U. S. 145 (1968) (right to jury trial applies to States).\n\n\n See also Moore v. East Cleveland, 431 U. S. 494 (1977); Youngberg v. Romeo, 457 U. S. 307 (1982).\n\n\n See, e. g., Groppi v. Leslie, 404 U. S. 496 (1972); In re Oliver, 333 U. S. 257 (1948).\n\n\n See, e. g., Fuentes v. Shevin, 407 U. S. 67 (1972).\n\n\n See, e. g., Monroe v. Pape, 365 U. S. 167 (1961) (§1983 action for Fourth Amendment violation); Smith v. Wade, 461 U. S. 30 (1983) (§ 1983 action for Eighth Amendment violation). See generally McNeese v. Board of Education, 373 U. S. 668, 672 (1963) (§ 1983 is “supplementary to any remedy any State might have”).\n\n\n Cf. Parratt v. Taylor, 451 U. S. 527, 545 (1981) (Blackmun, J., concurring); Roe v. Wade, 410 U. S. 113 (1973).\n\n\n See, e. g., Loudermill v. Cleveland Board of Education, 470 U. S. 532 (1985); Carey v. Piphus, 435 U. S. 247 (1978); Goss v. Lopez, 419 U. S. 565 (1975). Cf. Groppi, supra.\n\n\n Cf. Logan v. Zimmerman Brush Co., 455 U. S. 422, 436 (1982) (postdeprivation state remedy is inadequate when challenge is to “the state system itself”); Baker v. McCollan, 443 U. S. 137, 156 (1979) (Stevens, J., dissenting).\n\n\n See Hudson v. Palmer, 468 U. S. 517, 533 (1984) (“[W]hen deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations will occur”); Parratt v. Taylor, supra.\n\n\n See id, at 543-544.\n\n\n Davidson explicitly disavows a substantive due process claim. See Brief for Petitioner in No. 84-6470, p. 7 (“[P]etitioner frames his claim here purely in terms of procedural due process”). At oral argument, counsel for Daniels did suggest that he was pursuing a substantive due process claim. Tr. of Oral Arg. in No. 84-5872, p. 22. However, the Court of Appeals viewed Daniels’ claim as a procedural due process argument, see 748 F. 2d 229, 230, n. 1 (CA4 1984) (“There is no claim of any substantive due process violation”), and Daniels did not dispute this characterization in his petition for certiorari or in his brief on the merits.\nIn any event, to the extent that petitioners’ arguments about the special obligations of prison officials may be read as a substantive due process claim, I agree with the Court, ante, at 335-336, that the sheriff’s “special duty of care” recognized in South v. Maryland, 18 How. 396 (1856), does not have its source in the Federal Constitution. In these circumstances, it seems to me, the substantive constitutional duties of prison officials to prisoners are defined by the Eighth Amendment, not by substantive due process. Cf. United States ex rel. Miller v. Twomey, 479 F. 2d 701, 719-721 (CA7 1973) (analyzing prison officials’ responsibilities to prevent inmate assaults under the Eighth Amendment), cert, denied sub nom. Gutierrez v. Department of Public Safety of Illinois, 414 U. S. 1146 (1974).\n\n\n Respondents in Davidson do raise a state-action objection in one sentence, Brief for Respondents in No. 84-6470, p. 13, n., but that bare reference is inadequate to mount a challenge to the undisturbed District Court finding of state action.\n\n\n See Haring v. Prosise, 462 U. S. 306, 314, n. 8 (1983); Leroy v. Great Western United Corp., 443 U. S. 173, 181, n. 11 (1979); Bishop v. Wood, 426 U. S. 341, 345-347 (1976); Propper v. Clark, 337 U. S. 472, 486-487 (1949).\n\n\n It borders on the absurd to suggest that a State must provide a hearing to determine whether or not a corrections officer should engage in negligent conduct.\n\n\n In Martinez v. California, 444 U. S. 277 (1980), we held that California’s immunity statute did not violate the Due Process Clause simply because it operated to defeat a tort claim arising under state law. The fact that an immunity statute does not give rise to a procedural due process claim does not, of course, mean that a State’s doctrine of sovereign immunity can protect conduct that violates a federal constitutional guarantee; obviously it cannot, see Martinez, supra, at 284, n. 8, quoting Hampton v. Chicago, 484 F. 2d 602, 607 (CA7 1973), cert. denied, 415 U. S. 917 (1974).\n\n", "ocr": false, "opinion_id": 9430260 } ]

[ "2011 Ohio 3206" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 16, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/5/2011/2011-ohio-3206.pdf", "author_id": null, "opinion_text": "[Cite as State v. Smith, 2011-Ohio-3206.]\n\n\n COURT OF APPEALS\n STARK COUNTY, OHIO\n FIFTH APPELLATE DISTRICT\n\n JUDGES:\nSTATE OF OHIO : Hon. W. Scott Gwin, P.J.\n : Hon. John W. Wise, J.\n Plaintiff-Appellee : Hon. Patricia A. Delaney, J.\n :\n-vs- :\n : Case No. 2010-CA-00335\nCORY J. SMITH :\n :\n Defendant-Appellant : OPINION\n\n\n\n\nCHARACTER OF PROCEEDING: Criminal appeal from the Massillon\n Municipal Court, Case No. 2007CRB104\n\nJUDGMENT: Affirmed\n\n\n\nDATE OF JUDGMENT ENTRY: June 27, 2011\n\n\n\n\nAPPEARANCES:\n\n\nFor Plaintiff-Appellee For Defendant-Appellant\n\nPERICLES G. STERGIOS RUSSELL BUZZELLI\nLAW DIRECTOR Box 84\nBY: LAURA DARROW Wadsworth, OH 44282\nOne Duncan Plaza\nMassillon, OH 44646\n\f[Cite as State v. Smith, 2011-Ohio-3206.]\n\n\nGwin, P.J.\n\n {¶1} Appellant Corey J. Smith appeals the November 10, 2010 decision from\n\nthe Massillon Municipal Court which denied his post-sentence motion to withdraw his no\n\ncontest plea. The appellee is the State of Ohio.\n\n STATEMENT OF THE FACTS AND CASE1\n\n {¶2} On January 26, 2007 appellant was arrested on a warrant issued January\n\n12, 2007 charging him with one count of Assault in violation of R.C. 2903.13.\n\n {¶3} Appellant appeared in the Massillon Municipal Court, entered a plea of\n\nNot Guilty to the charge at his arraignment and his case was set for a pre-trial\n\nconference. On March 6, 2007 he changed his plea to No Contest, was found Guilty\n\nand was sentenced by the trial court. A Notice of Appeal of his conviction was not filed\n\nat that time. On September 26, 2007 retained Counsel for appellant filed a motion for\n\ntermination of probation, which was granted by the trial court.\n\n {¶4} On September 3, 2010 appellant filed a motion to withdraw his plea after\n\nsentencing, pursuant to Criminal Rule 32.1, with a memorandum in support and\n\nrequested a hearing on his motion. The trial court did hold a hearing on the motion on\n\nOctober 20, 2010 and subsequently denied his motion on November 10, 2010.\n\n {¶5} It is from the trial court’s November 10, 2010 denial of appellant’s motion\n\nto withdraw his plea that appellant has timely appealed raising as his sole assignment of\n\nerror:\n\n {¶6} “I. WHETHER OR NOT THE TRIAL COURT, ABUSED ITS DISCRETION\n\nWHEN IT DENIED DEFENDANT'S MOTION TO WITHDRAW HIS PLEA, GIVEN THE\n\n 1\n The Court Reporter’s affidavit filed with the Court provides no recording, by any means of the\nappellant’s arraignment, pretrial, plea hearing, or sentencing which took place in 2007 is available.\n\fStark County, Case No. 2010-CA-00335 3\n\n\nSEVERAL MANIFEST INJUSTICES VISITED UPON APPELLANT IN THE TRIAL\n\nCOURT BELOW. “\n\n I.\n\n {¶7} In his sole assignment of error appellant maintains that the trial court erred\n\nin refusing to allow appellant to withdraw his no contest plea. Specifically, appellant\n\ncontends that he was denied his constitutional and statutory rights when he originally\n\nentered his plea in 2007. In particular he maintains that he was not afforded his\n\nconstitutional right to counsel. He further urges that he was not properly advised of the\n\neffect of his plea as provided in Criminal Rule 11.\n\n {¶8} A. Waiver.\n\n {¶9} In the case at bar, appellant was arraigned on January 26, 2007. At that\n\ntime a pre-trial conference was set for February 13, 2007. On February 13, 2007, the\n\ncourt continued the pre-trial conference at the appellant’s request to March 6, 2007. The\n\ncourt’s entry advised the appellant to contact the Public Defender’s Office on that day if\n\nhe needed an attorney. Appellant changed his plea on March 6, 2007. Appellant neither\n\nappealed the trial court’s finding of guilt upon the acceptance of his no contest plea, nor\n\ndid appellant file a motion to withdraw his plea. Rather, on September 27, 2007\n\nappellant, through retained counsel, filed a motion for termination of probation, which\n\nwas granted.\n\n {¶10} In appellant’s motion to withdraw his plea filed in the trial court September\n\n3, 2010, appellant argued, “this post-sentence request is premised upon the potential\n\nrelief that the Defendant cannot avail himself of as ORC section 2953.36 is currently\n\nwritten. Specifically, that statute allows for expungement of misdemeanor assaults of\n\fStark County, Case No. 2010-CA-00335 4\n\n\nthe first degree, but prevents the expungement of the same offense if a prior offense\n\nhas been committed…” (Defendant’s Motion to Withdraw Plea, filed September 3, 2010\n\nat 3).\n\n {¶11} Appellant’s motion did not allege that he was denied his right to appointed\n\ncounsel, or that he did not waive his right to appointment of counsel.2 Appellant’s\n\nmotion further failed to allege that the trial court did not implement the mandatory rigors\n\nof Criminal Rule 19 or that the trial court failed to conduct a proper Crim. R. 11 colloquy\n\nbefore accepting his plea.\n\n {¶12} “The general rule is that ‘an appellate court will not consider any error\n\nwhich counsel for a party complaining of the trial court's judgment could have called but\n\ndid not call to the trial court's attention at a time when such error could have been\n\navoided or corrected by the trial court.’ State v. Childs ( 1968), 14 Ohio St. 2d 56 [ 43\n\nO.O. 2d 119], 236 N.E. 2d 545, paragraph three of the syllabus; State v. Glaros (1960),\n\n170 Ohio St. 471 [11 O.O.2d 215], 166 N.E.2d 379, paragraph one of the syllabus;\n\nState v. Lancaster (1971), 25 Ohio St.2d 83 [54 O.O.2d 222], 267 N.E.2d 291,\n\nparagraph one of the syllabus; State v. Williams (1977), 51 Ohio St.2d 112, 117 [5\n\nO.O.3d 98], 364 N.E.2d 1364. Likewise, ‘[c]onstitutional rights may be lost as finally as\n\nany others by a failure to assert them at the proper time.’ State v. Childs, supra, 14 Ohio\n\nSt. 2d at 62 [43 O.O. 2d 119], 236 N.E. 2d 545, citing State v. Davis (1964), 1 Ohio\n\nSt.2d 28 [30 O.O.2d 16], 203 N.E.2d 357; State, ex rel. Specht, v. Bd. of Edn. (1981),\n\n66 Ohio St.2d 178, 182 [20 O.O.3d 191], 420 N.E.2d 1004, citing Clarington v. Althar\n\n(1930), 122 Ohio St. 608, 174 N.E. 251, and Toledo v. Gfell (1958), 107 Ohio App. 93,\n\n 2\n The failure to appoint counsel may in some instances rise to the level of structural error. See\nState v. Wamsley, 117 Ohio St.3d 388, 391-392, 884 N.E.2d 45, 48-49, 2008-Ohio-1195 at ¶ 16.\nAccordingly, we will address this portion of appellant’s claim infra.\n\fStark County, Case No. 2010-CA-00335 5\n\n95 [7 O.O.2d 437], 156 N.E.2d 752. [Footnote omitted.] See also, State v. Chandler,\n\n157 Ohio App.3d 72, 813 N.E.2d 65, 2004-Ohio-3436 at ¶ 72; State v. Hughett,\n\nDelaware App. No. 04 CAA 06051, 2004-Ohio-6207 at ¶58.\n\n {¶13} As the United States Supreme Court recently observed in Puckett v.\n\nUnited States (2009), 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266, “If an error is not\n\nproperly preserved, appellate-court authority to remedy the error (by reversing the\n\njudgment, for example, or ordering a new trial) is strictly circumscribed. There is good\n\nreason for this; ‘anyone familiar with the work of courts understands that errors are a\n\nconstant in the trial process, that most do not much matter, and that a reflexive\n\ninclination by appellate courts to reverse because of unpreserved error would be fatal.’”\n\n(Citation omitted).\n\n {¶14} “[A]n appellate court may, in its discretion, correct an error not raised at\n\ntrial only where the appellant demonstrates that (1) there is an error; (2) the error is\n\nclear or obvious, rather than subject to reasonable dispute; (3) the error affected the\n\nappellant’s substantial rights, which in the ordinary case means it affected the outcome\n\nof the district court proceedings; and (4) the error seriously affect[s] the fairness,\n\nintegrity or public reputation of judicial proceedings.” United States v. Marcus (May 24,\n\n2010), 560 U.S. __, 130 S.Ct. 2159, 2010 WL 2025203 at 4. (Internal quotation marks\n\nand citations omitted).\n\n {¶15} The defendant bears the burden of demonstrating that a plain error\n\naffected his substantial rights. United States v. Olano (1993), 507 U.S. at 725,734, 113\n\nS.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 118, 120 802 N.E.2d 643, 646. Even\n\nif the defendant satisfies this burden, an appellate court has discretion to disregard the\n\fStark County, Case No. 2010-CA-00335 6\n\nerror. State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759 N.E.2d 1240; State v. Long\n\n(1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus; Perry,\n\nsupra, at 118, 802 N.E.2d at 646.\n\n {¶16} The Supreme Court has repeatedly admonished that this exception to the\n\ngeneral rule is to be invoked reluctantly. \"Notice of plain error under Crim. R. 52(B) is to\n\nbe taken with the utmost caution, under exceptional circumstances and only to prevent\n\na manifest miscarriage of justice.\" Id. at paragraph three of the syllabus. See, also,\n\nState v. Thompson (1987), 33 Ohio St.3d 1, 10, 528 N.E.2d 542; State v. Williford\n\n(1990), 49 Ohio St.3d 247, 253, 551 N.E.2d 1279 (Resnick, J., dissenting). Appellant\n\nhas not raised the issue of plain error in his assignment of error.\n\n {¶17} In the case at bar, the only issue raised in his written motion and at the\n\nhearing on appellant’s motion to withdraw the plea that he had entered three years\n\npreviously was whether or not appellant was denied a right to have counsel appointed.\n\nAccordingly, because appellant did not raise the other claims he now asserts on appeal\n\nin his motion, the state was not placed on notice that it would be required to present\n\nevidence on any other issue at the hearing. Appellant has therefore waived those issues\n\non appeal. See, State v. Peagler, 76 Ohio St.3d 496, 499, 668 N.E.2d 489, 493, 1996-\n\nOhio-73.\n\n {¶18} B. Standard of Review – Withdrawal of No Contest Plea.\n\n {¶19} Crim. R. 32.1 governs the withdrawal of a guilty or no contest plea and\n\nstates: \"[a] motion to withdraw a plea of guilty or no contest may be made only before\n\nsentence is imposed; but to correct manifest injustice the court after sentence may set\n\naside the judgment of conviction and permit the defendant to withdraw his or her plea.\"\n\fStark County, Case No. 2010-CA-00335 7\n\n\nIn the case at bar, because appellant's request was made post-sentence, the standard\n\nby which the motion was to be considered was \"to correct manifest injustice.\"\n\n {¶20} The accused has the burden of showing a manifest injustice warranting\n\nthe withdrawal of a guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d\n\n1324, paragraph one of the syllabus). In Smith, supra, the Ohio Supreme Court, citing\n\nUnited States v. Semel (C.A.4, 1965), 347 F.2d 228, addressed the concept of\n\n“manifest injustice,” stating that “[t]his term [manifest injustice] has been variously\n\ndefined, but it is clear that under such standard, a post-sentence withdrawal motion is\n\nallowable only in extraordinary cases.” Id. at 264.\n\n {¶21} Furthermore, “[b]efore sentencing, the inconvenience to court and\n\nprosecution resulting from a change of plea is ordinarily slight as compared with the\n\npublic interest in protecting the right of the accused to trial by jury. But if a plea of guilty\n\ncould be retracted with ease after sentence, the accused might be encouraged to plead\n\nguilty to test the weight of potential punishment, and withdraw the plea if the sentence\n\nwere unexpectedly severe. * * *” State v. Peterseim (1980), 68 Ohio App.2d 211, 213,\n\n428 N.E.2d 863, quoting Kadwell v. United States (C.A.9, 1963), 315 F.2d 667.\n\n {¶22} Importantly, “an undue delay between the occurrence of the alleged cause\n\nfor withdrawal of a guilty plea and the filing of a motion under Crim.R. 32.1 is a factor\n\nadversely affecting the credibility of the movant and militating against the granting of the\n\nmotion.” State v. Bush, 96 Ohio St.3d 235, 773 N.E.2d 522 2002-Ohio-3393 at ¶14.\n\n(Quoting State v. Smith (1977), 49 Ohio St.2d 261, 3 O.O.3d 402, 361 N.E.2d 1324,\n\nparagraph three of the syllabus); See also State v. Copeland-Jackson, Ashland App.No.\n\n02COA018, 2003-Ohio-1043 ([t]he length of passage of time between the entry of a\n\fStark County, Case No. 2010-CA-00335 8\n\n\nplea and a defendant's filing of a Crim.R. 32.1 motion is a valid factor in determining\n\nwhether a “manifest injustice” has occurred.\n\n {¶23} A reviewing court will not disturb a trial court's decision whether to grant a\n\nmotion to withdraw a plea absent an abuse of discretion. State v. Xie (1992), 62 Ohio\n\nSt.3d 521, 584 N.E.2d 715. In order to find an abuse of discretion, we must determine\n\nthat the trial court's decision was unreasonable, arbitrary or unconscionable and not\n\nmerely an error of law or judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217,\n\n450 N.E.2d 1140.\n\n {¶24} C. Effect of Plea of No Contest.\n\n {¶25} Appellant contends that he may have thought the trial court could find him\n\nnot guilty upon his plea of no contest. (T. at 16).\n\n {¶26} The Rules of Criminal Procedure provide that a plea of no contest is not\n\nan admission of the defendant's guilt; instead, it is an admission of the truth of the facts\n\nalleged in the indictment. Further, in State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d\n\n422, 424, 662 N.E.2d 370, the Court held that \"[t]he procedure specified in Crim.R.\n\n11(C) does not envision an affirmative-defense hearing or mini-trial.\" Thus, the Mascio\n\ncourt concluded, \"[a]lthough the trial court retains discretion to consider a defendant's\n\ncontention that the admitted facts do not constitute the charged offense, the defendant\n\nwho pleads no contest waives the right to present additional affirmative factual\n\nallegations to prove that he is not guilty of the charged offense.\" Id.\n\n {¶27} The Ohio Supreme Court has further held that “[w]here an indictment,\n\ninformation, or complaint contains sufficient allegations to state a felony offense and the\n\ndefendant pleads no contest, the court must find the defendant guilty of the charged\n\fStark County, Case No. 2010-CA-00335 9\n\noffense. State v. Bird ( 1998), 81 Ohio St. 3d 582, 584, 692 N.E. 2d 1013. (Citing State\n\nex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 425, 662 N.E.2d 370, 373).\n\n {¶28} In the case at bar, the state only had to allege sufficient facts to charge the\n\nviolations contained in the complaint. See Mascio, 75 Ohio St.3d at 425, 662 N.E.2d at\n\n373; State v. Bird, 81 Ohio St. 3d at 584, 692 N.E. 2d at 1015. In State v. Bird, supra,\n\nthe appellant argued that the indictment was insufficient to charge him with the offense\n\nof felonious assault with a deadly weapon because it failed to establish the existence of\n\nessential elements of the crime, i.e., that saliva is a deadly weapon, and that appellant\n\nknowingly caused or attempted to cause the officer physical harm. The charge stemmed\n\nfrom an incident where appellant, who is infected with the human immunodeficiency\n\nvirus (“HIV”), spat in a police officer's face.\n\n {¶29} The appellant in Bird, like the appellant in the case at bar, entered a plea\n\nof no contest to the charge. The Ohio Supreme Court found that by pleading no contest\n\nto the indictment, the appellant was foreclosed from challenging the factual merits of the\n\nunderlying charge. The Court noted, “[i]t is unnecessary to decide whether the human\n\nimmunodeficiency virus may be communicated through saliva and whether saliva may\n\nbe considered a deadly weapon. By pleading no contest, appellant admitted the truth of\n\nthe allegations in the indictment.” 81 Ohio St.3d 585, 692 N.E.2d at 1016.\n\n {¶30} In the case at bar appellant was charged with assault contrary to Massillon\n\nCity Ordinance 537.03(A). (Complaint, filed January 12, 2007). Specifically, the\n\nComplaint alleged that appellant\n\n {¶31} “(A) did knowingly cause or attempt to cause physical harm to Larry Fisk,\n\nJr. or Larry Fisk Jr.’s unborn.\n\fStark County, Case No. 2010-CA-00335 10\n\n\n {¶32} “* * *\n\n {¶33} “To-Wit: The defendant did cause or attempt to cause physical harm to\n\nLarry Fisk, Jr., by kicking the victim in the chest knocking him into a car then to the\n\nground. The defendant then kicked the victim while he was laying on the ground.”\n\n(Complaint, filed January 12, 2007).\n\n {¶34} The indictment language mirrors the statutory language. Thus, it is\n\nsufficient to charge the offenses. Crim.R. 7(B). State v. Bird, supra 81 Ohio St.3d at\n\n585, 692 N.E.2d at 1016. The complaint contained all the necessary elements and\n\ncontained sufficient allegations to state the aforementioned misdemeanor assault\n\noffense.\n\n {¶35} Being an admission of the truth of the facts on which the charges against\n\nhim are based, a no contest plea forecloses a defendant's right to challenge the truth of\n\nthose facts in a subsequent appeal from his resulting conviction and sentence. State v.\n\nBird supra; State v. Evans, Montgomery App. No. 21669, 2007-Ohio-6587 at ¶ 10. By\n\npleading no contest and foregoing a trial appellant lost his opportunity to raise at trial\n\nthat he did not knowingly cause or attempt to cause physical harm to Larry Fisk, Jr.\n\n {¶36} In the case at bar, appellant signed a negotiated plea agreement in the\n\nform of the “State Sentencing Recommendation/Order” prior to entering his plea.\n\nFurther, we note that appellant did retain counsel less than seven months after the trial\n\ncourt found him guilty. Appellant offers no explanation for waiting nearly three years to\n\nchallenge his conviction on the ground that he believe he could be found not guilty on\n\nhis plea of no contest.\n\fStark County, Case No. 2010-CA-00335 11\n\n\n {¶37} We find nothing in the record to suggest that any failure of the trial court to\n\ninform appellant about the effect of his no contest plea prejudiced him.\n\n {¶38} Accordingly, appellant has failed to establish a manifest injustice\n\nwarranting the withdrawal of his guilty plea. State v. Smith (1977), 49 Ohio St.2d 261,\n\n361 N.E.2d 1324.\n\n {¶39} D. Right to Appointed Counsel.\n\n {¶40} Appellant concedes that he was advised of his right to counsel in 2007. (T.\n\nat 6-7). Appellant further concedes that he did in fact meet with a representative from\n\nthe Stark County Public Defender’s Office before his pre-trial conference. (Id.) Appellant\n\nhas not argued that the trial court was required to advise him prior to accepting his plea\n\nof any collateral consequences that may flow as a result of being found guilty, such as a\n\ndenial of employment in certain fields, or appellant’s inability to expunge his conviction.\n\n(T. at 3-4; 18-19; 20; 21-22)3. There is nothing in the record to indicate when appellant\n\ndecided to pursue a nursing degree. The college transcripts admitted as Defendant’s\n\nExhibit A at the hearing on appellant’s motion to withdraw his plea indicate that he\n\nreturned to school in 2009. Accordingly the issue before us is not whether the trial court\n\nadvised appellant of his right to counsel, but rather, whether appellant was denied a\n\nright to have counsel appointed to represent him.\n\n {¶41} In the landmark decision of Gideon v. Wainwright (1963), 372 U.S. 335, 83\n\nS.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court held an indigent defendant\n\n 3\n The trial court is not required to inform a defendant of every possible collateral consequence of\npleading no contest to a charge. Cf. State v. Wilkinson, Montgomery App. No. 20365, 2005-Ohio-314, ¶ 9.\nCrim.R. 11(B)(2) does not impose a duty on the court to inform a criminal defendant of the effect of a no\ncontest plea beyond the notification requirements specifically enumerated in the rule. State v. Garr, Butler\nCA2009-01-014, 2009-Ohio-6241 at ¶26; State v. Goddard, Wyandot App. No. 16-06-05, 2007-Ohio-1229\nat ¶13; The accused is not generally required to be informed of those “collateral consequences” which\nresult from his conviction, such as the right to vote, loss of passport, business license, and driver's\nlicense. Katz, Giannelli, Criminal Law, Section 43.11.\n\fStark County, Case No. 2010-CA-00335 12\n\n\nwas entitled to court appointed counsel. Subsequently, the High Court narrowed this\n\nRight, holding “the Sixth and Fourteenth Amendments to the United States Constitution\n\nrequire only that no indigent criminal defendant be sentenced to a term of imprisonment\n\nunless the state has afforded him the right to assistance of appointed counsel in his\n\ndefense.” Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed. 2d 383. Accord,\n\nNichols v. United States (1994), 511 U.S. 738, 743 114 S.Ct. 1921, 1926; State v.\n\nBrandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501, 503. (“This is not to say that\n\ncounsel is required in all instances. Indeed, in Scott, supra, the court essentially held\n\nthat unconcealed misdemeanor convictions are constitutionally valid if the offender is\n\nnot actually incarcerated.”).\n\n {¶42} In Scott, the court stated that “actual imprisonment is a penalty different in\n\nkind from fines or the mere threat of imprisonment * * * and warrants adoption of actual\n\nimprisonment as the line defining the constitutional right to appointment of counsel. * * *\n\n440 U.S. at 373-374, 99 S.Ct. 1161-1162. In Nichols, supra the court recognized that\n\nthere is a distinction concerning the right to have counsel appointed noting, “In felony\n\ncases, in contrast to misdemeanor charges, the Constitution requires that an indigent\n\ndefendant be offered appointed counsel unless that right is intelligently and competently\n\nwaived. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” 511\n\nU.S. at 743, n. 9. Ohio likewise has recognized such a distinction.\n\n {¶43} Crim.R. 2(C) defines “serious offense” as “any felony, and any\n\nmisdemeanor for which the penalty prescribed by law includes confinement for more\n\nthan six months,” while Crim.R. 2(D) defines “petty offense” as “a misdemeanor other\n\fStark County, Case No. 2010-CA-00335 13\n\n\nthan a serious offense.” In the case at bar, the charge against appellant was a “petty”\n\noffense.\n\n {¶44} The scope of the application of the right to counsel is recognized in\n\nCrim.R. 44, which sets forth the basic procedure for the assignment of counsel in Ohio\n\ncriminal cases.\n\n {¶45} Crim.R. 44 states:\n\n {¶46} “(B) Counsel in petty offenses\n\n {¶47} “Where a defendant charged with a petty offense is unable to obtain\n\ncounsel, the court may assign counsel to represent him. When a defendant charged\n\nwith a petty offense is unable to obtain counsel, no sentence of confinement may be\n\nimposed upon him, unless after being fully advised by the court, he knowingly,\n\nintelligently, and voluntarily waives assignment of counsel.” (Emphasis added)\n\n {¶48} The word “shall” is usually interpreted to make the provision in which it is\n\ncontained mandatory. Dorrian v. Scioto Conservancy District (1971), 27 Ohio St. 2d\n\n102, 107, 271 N.E. 2d 834. In contrast, the use of the word “may” is generally construed\n\nto make the provision in which it is contained optional, permissive, or discretionary. Id.\n\nThe words “shall” and “may” when used in statutes are not automatically\n\ninterchangeable or synonymous. Id. To give the “may” as used in a statute a meaning\n\ndifferent from that given in its ordinary usage, it must clearly appear that the Legislature\n\nintended that it be so construed from a review of the statute itself. Id. at 107– 108, 271\n\nN.E. 2d 834. In re: McClanahan, Tuscarawas App. No.2004AP010004, 2004–Ohio–\n\n4113 at ¶ 17.\n\fStark County, Case No. 2010-CA-00335 14\n\n\n {¶49} Pursuant to that rule, the trial court has discretion whether to appoint\n\ncounsel where a defendant is charged with a petty offense. However, the trial court\n\ncould impose a term of imprisonment for a petty offense under only two circumstances:\n\n(1) appellant was actually represented by counsel during his change of plea; or (2) he\n\ndecided to represent himself and properly waived his right to counsel.\n\n {¶50} Our review of the trial court record indicates that the “State’s Sentencing\n\nRecommendation/Order” adopted by the magistrate upon appellant’s plea of no contest\n\ncontained no term of actual imprisonment. The court in fact did not sentence appellant\n\nto any term of actual imprisonment. This entry was signed by appellant, the prosecuting\n\nattorney and the magistrate on March 6, 2007.\n\n {¶51} Thus, no cognizable violation of the Sixth Amendment right to appointed\n\ncounsel occurred in the case at bar because, as the Supreme Court of Ohio has held,\n\n“uncounseled misdemeanor convictions are constitutionally valid if the offender is not\n\nactually incarcerated. State v. Brandon (1989), 45 Ohio St.3d 85, 86, 543 N.E.2d 501.\n\n(Citing Scott v. Illinois (1979), 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383).\n\n {¶52} Appellant’s argument that counsel would have advised him that an assault\n\nconviction could affect his future employment is purely speculative. “Neither a trial court\n\nnor a defendant's attorney need inform the defendant of every possible effect of\n\npleading guilty to a charge. Crim.R. 32.1 provides that ‘to correct manifest injustice the\n\ncourt after sentence may set aside the judgment of conviction and permit the defendant\n\nto withdraw his or her plea.’ It is undisputed that neither the trial court nor Wilkinson's\n\nattorney was aware that Wilkinson was seeking a nursing license. It is not a manifest\n\ninjustice for a trial court or a defendant's attorney to fail to inform a defendant of every\n\fStark County, Case No. 2010-CA-00335 15\n\npossible collateral consequence of pleading guilty to a charge.” State v. Wilkinson,\n\nMontgomery App. No. 20365, 2005-Ohio-314, ¶ 9. Crim.R. 19 which governs the\n\nauthority of magistrates in criminal proceedings follows the same line of demarcation.\n\nSee, Crim R, 19(C)(1)(c)(ii).\n\n {¶53} We find appellant has failed to establish a manifest injustice warranting\n\nthe withdrawal of his guilty plea. State v. Smith (1977), 49 Ohio St.2d 261, 361 N.E.2d\n\n1324.\n\n {¶54} Appellant’s sole assignment of error is overruled in its entirety.\n\n {¶55} For the foregoing reasons, the judgment of the Massillon Municipal Court,\n\nStark County, Ohio, is affirmed.\n\nBy Gwin, P.J.,\n\nWise, J., and\n\nDelaney, J., concur\n\n\n\n\n _________________________________\n HON. W. SCOTT GWIN\n\n _________________________________\n HON. JOHN W. WISE\n\n _________________________________\n HON. PATRICIA A. DELANEY\n\n\n\n\nWSG:clw 0614\n\f[Cite as State v. Smith, 2011-Ohio-3206.]\n\n\n IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO\n\n FIFTH APPELLATE DISTRICT\n\n\nSTATE OF OHIO :\n :\n Plaintiff-Appellee :\n :\n :\n-vs- : JUDGMENT ENTRY\n :\nCORY J. SMITH :\n :\n :\n Defendant-Appellant : CASE NO. 2010-CA-00335\n\n\n\n\n For the reasons stated in our accompanying Memorandum-Opinion, the\n\njudgment of the Massillon Municipal Court, Stark County, Ohio, is affirmed. Costs to\n\nappellant.\n\n\n\n\n _________________________________\n HON. W. SCOTT GWIN\n\n _________________________________\n HON. JOHN W. WISE\n\n _________________________________\n HON. PATRICIA A. DELANEY\n\f", "ocr": false, "opinion_id": 2700144 } ]

[ "565 P.2d 479" ]

[ { "author_str": "Raper", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n565 P.2d 479 (1977)\nJuan L. DeHERRERA, as Administrator of the Estate of Joe B. Griego, Deceased, Appellant (Plaintiff below),\nv.\nPatricia HERRERA, Appellee (Defendant below).\nNo. 4711.\nSupreme Court of Wyoming.\nJune 15, 1977.\nRehearing Denied July 20, 1977.\n*480 Juan L. DeHerrera, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellant.\nGlenn Parker, Hirst & Applegate, Cheyenne, signed the brief and appeared in oral argument on behalf of the appellee.\nBefore GUTHRIE, C.J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.\nRAPER, Justice.\nIn this appeal, we must decide whether a cause of action for personal injuries survives under § 1-28, W.S. 1957, where the injured party dies of an illness unconnected with the alleged negligence of a defendant. The district court granted summary judgment, *481 holding that such a cause of action does not survive.[1] We will reverse.\nThe plaintiff-appellant, as administrator of the estate of decedent, filed a complaint against defendant-appellee, charging her with driver negligence, while operating a motor vehicle, causing personal injuries to the deceased, resulting in pain and suffering, medical and hospital expense and lost wages. The decedent died of liver failure unrelated to the purported negligent conduct of the defendant.[2] Wyoming's controlling survival statute, § 1-28, supra, reads:\n\"In addition to the causes of action which survive at common law, causes of action for mesne profits, or for injuries to the person, or for an injury to real or personal estate, or for any deceit or fraud, shall also survive; and the action may be brought notwithstanding the death of the person entitled or liable to the same, provided that in actions for personal injury damages, if the person otherwise entitled thereto, dies, recovering [sic] shall be limited to damages for wrongful death.\" (Emphasis added.)\nAt common law, actions for personal injuries, including wrongful death, did not survive. Mull v. Wienbarg, 1949, 66 Wyo. 410, 212 P.2d 380; Coliseum Motor Co. v. Hester, 1931, 43 Wyo. 298, 3 P.2d 105; Tuttle v. Short, 1930, 42 Wyo. 1, 288 P. 524, 70 A.L.R. 106.\nThis court has construed § 1-28 but did so in a wrongful death case where the plaintiff attempted to recover for pain, suffering, disability and anguish, in addition to the damages allowed by the wrongful death act, §§ 1-1065 and 1-1066, W.S. 1957. Parsons v. Roussalis, Wyo. 1971, 488 P.2d 1050. The court held that in a case of wrongful death, § 1-28[3] was not meant to allow recovery under both the survival statute and the wrongful death act. Particularly excepted from the opinion was the question of the right of the administrator to bring a separate action for medical expenses; that is partly the issue we now have.\nThe statute is ambiguous. Does the proviso clause relate only to wrongful death actions brought under §§ 1-1065 and 1-1066? We have no problem if the tort feasor causing the injuries and death are the same; the question was answered in Parsons. Does the same proviso refer to the case where the tort feasor did not cause a wrongful death? This is the area of ambiguity requiring construction. A statute which is uncertain and susceptible to more than one meaning must be considered ambiguous. Natrona County v. Casper Air Service, Wyo. 1975, 536 P.2d 142. We will not construe a statute if it is unambiguous. Wyoming State Treasurer v. City of Casper, Wyo. 1976, 551 P.2d 687. When a statute is ambiguous, we will resort to statutory construction. Matter of Voss' Adoption, Wyo. 1976, 550 P.2d 481. In Beal, \"Wrongful Death in Wyoming: Two Causes of Action?\", 16 Wyo.Law Journal 171, 175, it is said that the meaning of the proviso clause \"is so obscure as to defy confident construction.\"\nWe are convinced that the statute is capable of a sensible construction. It has been partially construed in Parsons but not with respect to the situation presented here, where there was no wrongful death. It seems unbelievable that the legislature ever intended in one clause to grant survival of a cause of action for personal injuries and in a closing proviso, take it away.\n*482 It would be unreasonable for the legislature in one clause of a statute to bring about survival of a cause of action and in a following clause frustrate it as though never enacted. The legislature will not be presumed to intend futile things. Kuntz v. Kinne, Wyo. 1964, 395 P.2d 286. We must give meaning to the clause \"for injuries to the person.\" We can only construe the proviso to refer to those cases where death results from the injuries complained of. That situation is demonstrated in Parsons. It is not reasonable to relate wrongful death recovery to negligent acts not causing death.\nThe rule against permitting one statutory provision to neutralize another is somewhat illustrated in Hecht v. Carey, 1904, 13 Wyo. 154, 78 P. 705, 110 Am.St. Rep. 981. There, a statutory construction was urged upon the court which would require issuance of letters testamentary to a known nonresident, followed by a provision requiring his removal. The court held such a construction is a glaring absurdity and should not be adopted if avoidable. A rational construction was adopted, allowing the nonresident to come to the state, permit him to submit himself to the jurisdiction of the court and settle the estate. It is contrary to reason to ascribe to a statute a meaning that will nullify its operation, if capable of any other interpretation. Grand Rapids Furniture Co. v. Grand Hotel & Opera House Co., 1902, 11 Wyo. 128, 70 P. 838, reh. den. 72 P. 687. A statute should be construed in such a fashion that one provision will not destroy another. State ex rel. Benham v. Cheever, 1953, 71 Wyo. 303, 257 P.2d 337.\nIt would be helpful to a further and better understanding of our reasoning if we explain the distinguishing features of a wrongful death act as compared to a survival statute. It must be realized that the wrongful death statutes, §§ 1-1065 and 1-1066, are not part of the probate code, though provision is made for the appointment of an administrator. The designation of an administrator as a trustee is only a device to provide a party to file suit and pay over any damages collected to the beneficiaries designated by statute. The amount recovered does not become a part of the decedent's estate and is not liable for debts of the estate or subject to estate administration. Jordan v. Delta Drilling Company, Wyo. 1975, 541 P.2d 39, 42.\nOn the other hand, a survival statute permits recovery by the decedent's personal representative on behalf of the estate; the prime difference between survival and wrongful death statutes is that the survival statute merely continues a cause of action in existence. The injured party's claim after death is an asset of the estate while the wrongful death statute creates a new cause of action for the benefit of designated persons who have suffered the loss of a loved one and provider. Speiser, Recovery for Wrongful Death, 2d (1975), § 14:1, p. 408. As said in Sea-Land Services, Inc. v. Gaudet, 1974, 414 U.S. 573, 94 S. Ct. 806, 39 L. Ed. 2d 9, footnote 2, reh. den. 415 U.S. 986, 94 S. Ct. 1582, 39 L. Ed. 2d 883, survival statutes permit the personal representative of deceased to prosecute any claims for personal injury the deceased would have had but for his death but do not permit recovery for harms suffered by the decedent's family as a result of his death. The modern trend views tort causes of action as fairly a part of the estate of a plaintiff as contract debts, the question being one of why a fortuitous event, such as death, should extinguish a valid action. Prosser, Torts, 4th Ed. (1971), § 126, pp. 898-901.\nThese differences are apparent in the instant case. No new action in persons designated in the wrongful death act was created by the death of decedent. The funds made available by a recovery, if the evidence will support one, belong to the estate, subject to disposition, as any asset, for payment of debts, such as the medical and hospital expenses claimed, costs of administration, and, finally, distribution in the regular course of administration whether by a testate or intestate decedent. The survival statute protects the creditors of the estate; the wrongful death act does not.\n*483 As finally submitted to us, this is not a wrongful death action, so there seems no good reason for treating it as such. The proviso by its language associates with wrongful death actions. The initial part of the amendment relates to the type of action before us and they are as unlike as fish to fowl.\nWyoming's survival statute with its proviso is unique in that it does not allow a complete remedy for wrongful death as in other jurisdictions. For example, see Barragan v. Superior Court of Pima County, 1970, 12 Ariz. App. 402, 470 P.2d 722; Rohlfing v. Moses Akiona, Ltd., 1961, 45 Haw. 440, 369 P.2d 96; (see also Greene v. Texeira, 1973, 54 Haw. 231, 505 P.2d 1169, modifying the rule of Rohlfing on an element of damage); and Moss v. Hirzel Canning Co., 1955, 100 Ohio App. 509, 137 N.E.2d 440. Those jurisdictions and others allow two actions or their joinder to permit both a recovery for the estate and a recovery for the survivors. Parsons v. Roussalis, supra, holds that both are not available in wrongful death actions because of the proviso of § 1-28. By reason of that unique statutory provision, there are no cases we can find, such as the one before us, examining any like statutory provisions.\nHowever, in Prowant v. Kings-X, Inc., 1959, 184 Kan. 413, 337 P.2d 1021, the court held that where a person is injured by another, if he dies from other causes, an action for personal injury survives but if death results from the same injuries, the action may not be maintained by the personal representative for the estate but may be brought under its wrongful death act for the next of kin. Thus, was reached the same result we visualize exists in Wyoming by virtue of § 1-28, as interpreted by Parsons, along with our own holding here. The personal injury survival statute in Kansas had no such proviso as in § 1-28 but the court, by judicial interpretation, construed its wrongful death act to be the exclusive remedy if death ensued as a result of the negligence and the survival statute to apply if there was no death caused by the other. The court did there, by judicial fiat, what the Wyoming legislature has done by statute. The Kansas court later, on rehearing, though, in Prowant v. Kings-X, Inc., 1959, 185 Kan. 602, 347 P.2d 254, reversed itself and concluded that the survival statute means what it says and allows a recovery on behalf of the estate for its losses, separate and apart from the wrongful death act.\nThe argument pressed upon us by the defendant in effect is that there is no survival of causes of action for personal injuries and the only available remedy is the wrongful death act if the administrator can otherwise prove his claim. Under defendant's position, there exists no apparent reason to provide survival for personal injury actions and then confine them to wrongful death actions, which survive by virtue of §§ 1-1065 and 1-1066, without the aid of the survival statute. When the legislature amends a statute, it must be presumed that some change in the existing law was intended; it is not reasonable that the legislature would enact a law to declare what is already the law. Payne v. City of Laramie, Wyo. 1965, 398 P.2d 557; Stolldorf v. Stolldorf, Wyo. 1963, 384 P.2d 969. Defendant's posture would declare the 1947 survival statute amendments useless. All statutes are presumed to be enacted by the legislature with full knowledge of the existing state of the law with reference thereto. Matter of Voss' Adoption, supra.\nOur analysis leads us to the conclusion, and we hold that the proviso does not attach to the words, \"for injuries to the person\" under circumstances other than wrongful death actions where the negligence causes the death.\nReversed and remanded with directions to vacate the summary judgment granted and further proceedings consistent with this opinion.\nNOTES\n[1] Actually, the plaintiff claims there is a second issue: If the cause of action does survive, what damages are recoverable? In the light of the trial court ruling that question was not reached by the presiding judge. We will not decide the question until first examined and determined at the lower court tier, in the face of circumstances existing at the time of trial or other proceedings. Knudson v. Hilzer, Wyo. 1976, 551 P.2d 680, 686.\n[2] The plaintiff in his complaint charged wrongful death and damages to the survivors by way of loss of support, comfort and funeral expenses as a result of the injuries but has apparently abandoned that position.\n[3] Parsons contains a useful history of § 1-28.\n\n", "ocr": false, "opinion_id": 1198711 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\02/02-41021.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n April 16, 2003\n FOR THE FIFTH CIRCUIT\n Charles R. Fulbruge III\n Clerk\n\n No. 02-41021\n Summary Calendar\n\n\n\n\nTODD COWLE,\n Plaintiff-Appellant,\n\n\n versus\n\nDAIN RAUSHCER, INC.,\n\n Defendant-Appellee.\n\n\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n (2:02-CV-40-TJW)\n\n\n\nBefore JONES, STEWART and DENNIS, Circuit Judges.\n\nPER CURIAM:*\n\n For the following reasons, we AFFIRM the district court’s decision refusing to vacate, modify\n\nor correct the arbitration award.\n\n FACTUAL AND PROCEDURAL BACKGROUND\n\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be\npublished and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\f While employed with Dain Rauscher, Inc. (“Dain Rauscher”), Todd W. Cowle (“Cowle”)\n\nexecuted several promissory notes payable to Dain Rauscher. At least two of the notes forgave the\n\ndebt owed incrementally so long as Cowle remained an employee. After Cowle resigned from Dain\n\nRauscher, the company initiated arbitration proceedings through the National Association of\n\nSecurities Dealers (“NASD”) against Cowle to recover monies owed, totaling more than $450,000.\n\nCowle asserted a counterclaim alleging breach o f fiduciary duty and breach of his employment\n\ncontract. Cowle sought $1 million on his breach of fiduciary duty claim, arguing that the research\n\nprovided by Dain Rauscher caused his clients and himself to lose money. Cowle sought $500,000\n\nfor his breach of employment contract claim, arguing that Dain Rauscher failed to provide him a\n\nrespectful workplace due to repeated verbal attacks by his supervisor.\n\n After conducting a hearing, the arbitration panel awarded Dain Rauscher $468,617.25 in\n\ncompensatory damages, $78,389.78 in pre-award interest and $60,000 in attorneys’ fees. The\n\narbitration panel dismissed Cowle’s counterclaim in its entirety. Cowle then filed a Motion to Vacate,\n\nModify or Correct the arbitration award in the Eastern District of Texas. The district court denied\n\nCowle’s motion and granted Dain Rauscher’s Application to Confirm the award. Cowle appeals.\n\n STANDARD OF REVIEW\n\n In reviewing a district court’s decision refusing to vacate an arbitration award, “[w]e accept\n\nfindings of fact that are not clearly erroneous and decide questions of law de novo.” Hughes Training\n\nInc. v. Cook, 254 F.3d 588, 592 (5th Cir. 2001). “Under the Federal Arbitration Act (“FAA”), a\n\ndistrict court may vacate an award only if: (1) the award was procured by corruption, fraud, or undue\n\nmeans; (2) there is evidence of partiality or corruption among the arbitrators; (3) the arbitrators were\n\nguilty of misconduct which prejudiced the rights of one of the parties; or (4) the arbitrators exceeded\n\n\n 2\n\ftheir powers.” Harris v. Parker College of Chiropractic, 286 F.3d 790, 792 (5th Cir. 2002); 9 U.S.C.\n\n§ 10(a). “Manifest disregard for the law” may also serve as an additional ground for vacating an\n\narbitration award. Harris, 286 F.3d at 792.\n\n DISCUSSION\n\n Cowle argues that the district court erred in failing to find that the arbitrators were guilty of\n\nmisconduct and partiality. Cowle contends that the arbitrators’ misconduct and partiality is evident\n\nbecause the arbitrators refused to rule on his motion to disqualify one of Dain Rauscher’s attorneys;\n\nfailed to compel discovery; refused to grant a last-minute continuance; refused to allow one of\n\nCowle’s witnesses to testify via telephone and excluded other pertinent evidence; and, failed to\n\nproperly control the hearing. We find that each of Cowle’s arguments lack merit.\n\n Cowle filed a motion to disqualify Dain Rauscher’s co unsel, arguing that he had divulged\n\nconfidential information to one of the company’s attorneys, Cheryl Jerome Moore, prior to his leaving\n\nthe company. The arbitrators determined that they lacked the authority to rule on Cowle’s motion.\n\nOver a month later, and only eight days before the hearing, Cowle obtained a temporary restraining\n\norder (“TRO”) from the District Court in Dallas County restraining Baker & McKenzie, and Cheryl\n\nJerome Moore, from representing Dain Rauscher. Cowle argues that the arbitrators allowed Dain\n\nRauscher to circumvent the TRO by allowing Baker & McKenzie to “share” its file with Dain\n\nRauscher’s new attorneys. The record reflects, however, that Dain Rauscher’s new counsel hired\n\nanother attorney who reviewed Baker & McKenzie’s case file and removed items subject to the TRO.\n\nThus, Cowle’s misconduct argument is unpersuasive.\n\n As this Court has explained:\n\n\n\n\n 3\n\f The arbitrator is not bound to hear all of the evidence tendered by the parties;\n however, he must give each of the parties to the dispute an adequate opportunity to\n present its evidence and argument. An evidentiary error must be one that is not\n simply an error of law, but which so affects the rights of a party that it may be said\n that he was deprived of a fair hearing.\n\nForsythe Intern, S.A. v. Gibbs Oil Co. of TX, 915 F.2d 1017, 1023 (5th Cir. 1990) (internal citations\n\nand quotation marks omitted). Aside from conclusory assertions, Cowle has failed to demonstrate\n\nhow the arbitrators’ evidentiary rulings rendered the arbitration fundamentally unfair. Given the\n\nvolume of discovery allowed, Cowle’s argument that the arbitrators failed to compel adequate\n\ndiscovery is unpersuasive. Cowle’s argument concerning the arbitrators’ decision not to allow one\n\nof his witnesses to testify via telephone is equally unpersuasive. Given that the witness was local and\n\nCowle provides no explanation as to why the witness was unable to testify in person, we conclude\n\nthat the arbitrators’ were well within their discretion to reject his telephone testimony. We further\n\nfind that the arbitrators’ decision to deny Cowle’s eleventh-hour request for a continuance does not\n\ndemonstrate misconduct or partiality. Cowle was afforded months to prepare for the hearing.\n\nFinally, we reject Cowle’s conclusory assertions that the arbitrators’ failure to control the hearing\n\nevidences their partiality.\n\n CONCLUSION\n\n Arbitrators are not guilty of misconduct or partiality merely because they rule in the other\n\nparty’s favor. For the reasons outlined above, we AFFIRM the judgment of the district court denying\n\nCowle’s motion to vacate, modify or correct the arbit ration award and granting Dain Rauscher’s\n\nmotion to confirm the award.\n\nAFFIRM.\n\n\n\n\n 4\n\f", "ocr": false, "opinion_id": 31048 } ]

[ "2013 Ohio 5355", "137 Ohio St. 3d 1258" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2013/2013-ohio-5355.pdf", "author_id": null, "opinion_text": "[Cite as In re Harter, 137 Ohio St.3d 1258, 2013-Ohio-5355.]\n\n\n\n\n IN RE HARTER.\n [Cite as In re Harter, 137 Ohio St.3d 1258, 2013-Ohio-5355.]\n (No. 2013-1907—Submitted December 5, 2013—Decided December 9, 2013.)\n ON CERTIFICATION OF DEFAULT OF CHILD-SUPPORT ORDER.\n ____________________\n {¶ 1} On December 4, 2013, and pursuant to Gov.Bar R. V(5)(A), the\nsecretary of the Board of Commissioners on Grievances and Discipline of the\nSupreme Court of Ohio submitted to this court a certified copy of a determination\nof default of a child-support order by Brian Wade Harter, an attorney licensed to\npractice law in the state of Ohio.\n {¶ 2} Upon consideration thereof and pursuant to Gov.Bar R.\nV(5)(A)(4), it is ordered and decreed that Brian Wade Harter, Attorney\nRegistration No. 0055500, last known business address in Columbus, Ohio, is\nsuspended from the practice of law for an interim period, effective as of the date\nof this entry.\n {¶ 3} It is further ordered that this matter be, and hereby is, referred to\ndisciplinary counsel for investigation and commencement of disciplinary\nproceedings.\n {¶ 4} It is further ordered that Brian Wade Harter immediately cease and\ndesist from the practice of law in any form and that he hereby is forbidden to\nappear on behalf of another before any court, judge, commission, board,\nadministrative agency, or other public authority.\n {¶ 5} It is further ordered that effective immediately, respondent is\nforbidden to counsel, advise, or prepare legal instruments for others or in any\nmanner perform legal services for others.\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 6} It is further ordered that respondent is divested of each, any, and all\nof the rights, privileges, and prerogatives customarily accorded to a member in\ngood standing of the legal profession of Ohio.\n {¶ 7} It is further ordered that before entering into an employment,\ncontractual, or consulting relationship with any attorney or law firm, respondent\nshall verify that the attorney or law firm has complied with the registration\nrequirements of Gov.Bar R. V(8)(G)(3). If employed pursuant to Gov.Bar R.\nV(8)(G), respondent shall refrain from direct client contact except as provided in\nGov.Bar R. V(8)(G)(1) and from receiving, disbursing, or otherwise handling any\nclient trust funds or property.\n {¶ 8} It is further ordered that respondent shall not be reinstated to the\npractice of law until (1) the Board of Commissioners on Grievances and\nDiscipline files in accordance with Gov.Bar R. V(5)(D)(1)(b) with the Supreme\nCourt a certified copy of a judgment entry reversing the determination of default\nunder a child-support order, or it files in accordance with Gov.Bar R.\nV(5)(D)(1)(c) with the Supreme Court a notice from a court or child-support-\nenforcement agency that respondent is no longer in default under a child-support\norder or is subject to a withholding or deduction notice or a new or modified\nchild-support order to collect current support or any arrearage due under the child-\nsupport order that was in default and is complying with that notice or order, and\n(2) this court orders respondent reinstated to the practice of law.\n {¶ 9} It is further ordered that respondent shall keep the clerk and\ndisciplinary counsel advised of any change of address where respondent may\nreceive communications.\n {¶ 10} It is further ordered, sua sponte, that all documents filed with this\ncourt in this case shall meet the filing requirements set forth in the Rules of\nPractice of the Supreme Court of Ohio, including requirements as to form,\n\n\n\n\n 2\n\f January Term, 2013\n\n\n\n\nnumber, and timeliness of filings. All case documents are subject to Sup.R. 44\nthrough 47, which govern access to court records.\n {¶ 11} It is further ordered, sua sponte, that service shall be deemed made\non respondent by sending this order and all other orders in this case to\nrespondent’s last known address.\n {¶ 12} It is further ordered that the clerk of this court issue certified copies\nof this order as provided for in Gov.Bar R. V(8)(D)(1), that publication be made\nas provided for in Gov.Bar R. V(8)(D)(2), and that respondent bear the costs of\npublication.\n O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,\nFRENCH, and O’NEILL, JJ., concur.\n ________________________\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 2690248 } ]

[ "195 P.3d 65", "345 Or. 318" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n195 P.3d 65 (2008)\n345 Or. 318\nSTATE\nv.\nWARREN.\nNo. (S056378).\nSupreme Court of Oregon.\nOctober 3, 2008.\nPetition for review denied.\n", "ocr": false, "opinion_id": 2636353 } ]

[ "803 F.2d 718" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/803/803.F2d.718.86-5604.html", "author_id": null, "opinion_text": "803 F.2d 718\n 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.ARLO BARGER, Petitioner-Appellantv.BILL R. STORY, WARDEN, ET AL., Respondents-Appellees.\n No. 86-5604.\n United States Court of Appeals, Sixth Circuit.\n Sept. 23, 1986.\n \n 1\n BEFORE: MARTIN, MILBURN and BOGGS, Circuit Judges\n \n ORDER\n \n 2\n The petitioner moves for counsel and the respondents move to dismiss this appeal from the district court's order denying the petition for a writ of habeas corpus. The petitioner was incarcerated at the federal prison in Ashland, Kentucky. His petition alleged that he was entitled to immediate release to a halfway house in Cincinnati, Ohio, but this release was delayed because of budgetary problems created by the Gramm-Rudman-Hollings Act. The district court found that the petitioner had no liberty interest in placement at the halfway house; so the court denied the petition.\n \n \n 3\n Accompanying the respondents' motion to dismiss is an affidavit stating that the petitioner has now been released to the halfway house in Cincinnati, Ohio. Because this release was the only relief requested by the petitioner, the case is now moot. LoCicero v. Day, 518 F.2d 783, 785 (6th Cir. 1975) (per curiam).\n \n \n 4\n The appeal is dismissed as moot.\n \n ", "ocr": false, "opinion_id": 478186 } ]

[ "359 S.W.3d 161" ]

[ { "author_str": "Farmer", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.tsc.state.tn.us/sites/default/files/pamela_champion_v_clc_of_dyersburg_llc_opn.pdf", "author_id": 8270, "opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT JACKSON\n January 26, 2011 Session\n\n PAMELA CHAMPION, ET AL. v. CLC OF DYERSBURG, LLC, ET AL.\n\n Direct Appeal from the Circuit Court for Dyer County\n No. 07-68 Lee Moore, Judge\n\n\n No. W2010-01228-COA-R3-CV - Filed February 22, 2011\n\n\nThe trial court awarded Defendant summary judgment on the basis that Defendant had\nnegated the element of damages in this personal injury action. We reverse and remand for\nfurther proceedings.\n\nTenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and\n Remanded\n\nD AVID R. F ARMER, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,\nW.S., and H OLLY M. K IRBY, J., joined.\n\nLes Jones and Frank B. Thacher, III, Memphis, Tennessee, for the appellant, Pamela\nChampion.\n\nJohn G. Wheeler and L. Bradley Dillard, Tupelo Mississippi, for the appellee, CLC of\nDyersburg, LLC d/b/a Oakwood Community Living Center, Inc.\n\n OPINION\n\n This lawsuit arises from the discovery of maggots in a wound of a hospice care patient\nat the Oakwood Community Living Center, Inc. (“Oakwood”), a facility owned by Defendant\nCLC, LLC (“CLC”). Decedent Christine Johnson (Ms. Johnson) was a resident of Oakwood\nfrom January 2002 through September 28, 2006. In September 2006, she was 80 years of\nage, terminally ill, and had developed decubitus ulcers. She was admitted to hospice care at\nOakwood on September 12, 2006. On September 18, 2006, nurses at Oakwood discovered\nmaggots in an ulcer while changing the bandage on Ms. Johnson’s foot. The ulcer was\nirrigated to remove the maggots, and Ms. Johnson was transferred to a Dyersburg hospital.\nMs. Johnson died that day of causes unrelated to the maggots.\n\f In May 2007, Ms. Johnson’s daughter, Pamela Champion (Ms. Champion), filed a\npersonal injury action individually and on behalf of her mother and other beneficiaries\nagainst Oakwood, CLC, and Community Eldercare, LLC (“Community Eldercare”;\ncollectively, “Defendants”). In her complaint, Ms. Champion asserted 19 allegations of\nnegligence, and sought recovery for mental anguish, physical and mental pain and suffering,\nand medical bills. She also asserted that Defendants’ “consciously indifferent actions with\nregard to the welfare and safety of helpless patients such as Ms. Christine Johnson\nconstitute[d] gross negligence, willful, wanton, reckless, malicious and/or intentional\nmisconduct” and prayed for an award of compensatory and punitive damages.\n\n Defendants filed an answer denying Ms. Champion’s allegations and asserting 24\nspecific defenses. In October 2009, Defendants moved for summary judgment on the\ngrounds that Ms. Champion had failed to offer evidence “to demonstrate that the maggots\ncaused any actual harm, or that Ms. Johnson suffered any conscious pain and suffering or\nwas even aware of the presence of maggots.” Defendants further asserted that Community\nEldercare should be dismissed where it is a management company that does not operate CLC\nor employ any individuals at CLC. Following a hearing on Defendants’ motion on April 5,\n2010, Ms. Champion conceded that Community Eldercare should be dismissed as a party.\nBy order entered April 15, 2010, the trial court dismissed Community Eldercare as a party,\nand awarded summary judgment to Defendants on the basis that Defendants had “negated\nan essential element of the Plaintiff’s claims (i.e., damages).” The trial court determined that\nthe award of summary judgment on the basis of damages mooted Ms. Champion’s claim for\npunitive damages. Ms. Champion filed a timely notice of appeal to this Court.\n\n Issues Presented\n\n Ms. Champion raises the following issues for our review:\n\n (1) Is the loss of flesh an “injury” for which recovery can be had under\n Tennessee law?\n\n (2) Did the trial court err in finding that Defendants, in their motion for\n summary judgment, shifted the burden of production to Plaintiff?\n\n (3) Did the trial court err in finding that Plaintiff put forward no evidence\n of any injury or damages sustained by Christine Johnson?\n\n The issue presented by this appeal, as we perceive it, is whether CLC affirmatively\nnegated the element of injury so as to support an award of summary judgment where it is\nundisputed that maggots were found in a wound on Ms. Johnson’s foot while she was a\n\n -2-\n\fhospice care patient in a facility owned and operated by CLC.\n\n Standard of Review\n\n We review a trial court’s award of summary judgment de novo, with no presumption\nof correctness, reviewing the evidence in the light most favorable to the nonmoving party and\ndrawing all reasonable inferences in that party’s favor. Martin v. Norfolk S. Ry. Co., 271\nS.W.3d 76, 84 (Tenn. 2008) (citations omitted). Summary judgment is appropriate only\nwhere the “pleadings, depositions, answers to interrogatories, and admissions on file,\ntogether with the affidavits . . . show that there is no genuine issue as to any material fact and\nthat the moving party is entitled to a judgment as a matter of law.” Id. at 83 (quoting Tenn.\nR. Civ. P. 56.04). The burden is on the moving party to demonstrate that there are no\ngenuine issues of material fact and that it is entitled to judgment as a matter of law. Id.\n(citations omitted).\n\n After the moving party has made a properly supported motion, the nonmoving party\nmust establish the existence of a genuine issue of material fact. Id. (citations omitted). To\nsatisfy its burden, the nonmoving party may: (1) point to evidence of over-looked or\ndisregarded material factual disputes; (2) rehabilitate evidence discredited by the moving\nparty; (3) produce additional evidence that establishes the existence of a genuine issue for\ntrial; or (4) submit an affidavit asserting the need for additional discovery pursuant to Rule\n56.06 of the Tennessee Rules of Civil Procedure. Id. (citations omitted). The court must\naccept the nonmoving party’s evidence as true, resolving any doubts regarding the existence\nof a genuine issue of material fact in that party’s favor. Id. (citations omitted). A disputed\nfact that must be decided to resolve a substantive claim or defense is material, and it presents\na genuine issue if it reasonably could be resolved in favor of either one party or the other.\nId. (citations omitted). With this standard in mind, we turn to whether the trial court erred\nby awarding summary judgment in this case.\n\n Discussion\n\n As an initial matter, we note that Ms. Champion appears to have abandoned her claim\nfor damages arising from medical expenses. Although this claim does not appear to have\nbeen addressed in the summary judgment proceedings in the trial court, the trial court\nawarded summary judgment on the issue of damages and dismissed all remaining claims.\nMs. Champion has not raised dismissal of her claim for medical expenses as an issue on\nappeal. An issue not raised in an appellant’s statement of the issues may be considered\nwaived. Regions Fin. Corp. v. Marsh USA, Inc., 310 S.W.3d 382, 392 (Tenn. Ct. App.\n2009). We accordingly turn to whether the trial court erred in awarding summary judgment\nto CLC with respect to Ms. Champion’s claim for non-economic damages.\n\n -3-\n\f Although pain and suffering, permanent impairment and/or disfigurement, and loss\nof enjoyment of life are “encompassed within the general rubric of pain and suffering,” each\nof them represents “separate and distinct losses.” Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,\n715 (Tenn. Ct. App. 1999)(citations omitted). Pain and suffering, moreover, is comprised\nof both physical and mental discomfort. “It includes the ‘wide array of mental and emotional\nresponses’ that accompany the pain, characterized as suffering.” Id. (quoting McDougald v.\nGarber, 132 Misc. 2d 457, 504 N.Y.S.2d 383, 385 (N.Y. Sup. Ct.1986)(citing See Charles\nT. McCormick, Damages § 88, at 315 (1935))).\n\n A permanent injury is one from which the injured person will not recover completely,\nand which prevents him from living in comfort or adds inconvenience or loss of physical\ncapacity. Id. A permanent injury may be physical, emotional, or psychological. Id.\nDisfigurement is a type of permanent injury that impairs the injured person’s beauty,\nsymmetry, or appearance. Id.\n\n We begin our discussion of the summary judgment award in this case emphasizing\nthat, in order to prevail on a motion for summary judgment in Tennessee, “[i]t is not enough\nfor the moving party to challenge the nonmoving party to ‘put up or shut up’ or even to cast\ndoubt on a party’s ability to prove an element at trial.” Hannan v. Alltel Publ’g Co., 270\nS.W.3d 1, 8 (Tenn. 2008). Rather,\n\n a moving party who seeks to shift the burden of production to the nonmoving\n party who bears the burden of proof at trial must either: (1) affirmatively\n negate an essential element of the nonmoving party’s claim; or (2) show that\n the nonmoving party cannot prove an essential element of the claim at trial.\n\nId. at 8-9.\n\n Upon review of the record in this case, we observe that, in its motion for summary\njudgment, CLC stated that the testimony proffered by Ms. Champion’s medical expert, Dr.\nAmelia Kiser (Dr. Kiser), “failed, when taken in combination with the deposition testimony\nof hospice nurse Marie Simmons and CLC employee Patricia Brady, to demonstrate that the\nmaggots caused any actual harm, or that Ms. Johnson suffered any conscious pain and\nsuffering or was even aware of the presence of the maggots.” Although “summary judgment\nmay be appropriate for the moving party who relies upon evidence from the nonmoving\nparty,” the moving party may rely on that evidence\n\n only if [it] affirmatively negates an essential element of the nonmoving party’s\n claim or shows that the nonmoving party cannot prove an essential element of\n the claim at trial. The moving party may not, however, merely point to\n\n -4-\n\f omissions in the nonmoving party’s proof and allege that the nonmoving party\n cannot prove the element at trial.\n\nId. at 10. At the summary judgment stage, the burden is not on the nonmoving party to prove\nits claim, but on the moving party to affirmatively negate it. See id. We must agree with Ms.\nChampion that, in its initial motion, CLC offered no proof to affirmatively negate the\nelement of damages for the purposes of summary judgment. It merely asserted that Dr.\nKiser’s testimony did not affirmatively establish that Ms. Johnson suffered pain as a result\nof the maggots present in her wound.\n\n CLC proffered no expert testimony in support of its motion for summary judgment\nuntil it responded to Ms. Champion’s opposition to its motion. On March 1, 2010, CLC filed\na “Rebuttal in Support of Motion for Summary Judgment” to which it attached the affidavit\nof its expert, Dr. Elbert Edwin Hines, III (Dr. Hines). Dr. Hines’ affidavit was notarized on\nFebruary 23, 2010. The portion of Dr. Hines’ affidavit relating to the presence of maggots\nin Ms. Johnson’s wound reads, in totality:\n\n Based on the documentation and records which I have reviewed in this\n cause, as well as my experience, education and training, it is my opinion to a\n reasonable degree of medical probability that Ms. Johnson was never aware of\n the presence of the maggots, and she experienced no pain, discomfort, itching\n or loss of dignity as a result of the maggots being present.\n\n Based on the documentation and records which I have reviewed in this\n cause, as well as my experience, education an training, it is my opinion to a\n reasonable degree of medical probability that the maggots were only present\n on dead or necrotic tissue, and that no evidence exists to demonstrate that the\n maggots were present on live tissue or caused any actual damage or harm to\n Ms. Johnson.\n\nCLC also attached Ms. Johnson’s medication administration record for the month of\nSeptember 2006 to its rebuttal. According to that record, Ms. Johnson received the pain\nmedication Loritab on September 16 and 18, and Tylenol on September 17, 2006.\n\n The parties do not dispute that maggots generally cause itching and discomfort.\nAdditionally, CLC does not assert that the presence of maggots in a wound generally would\ncause some mental or emotional response. Rather, CLC’s argument, as we perceive it, is that\nMs. Johnson suffered no physical or mental injury because she was terminally ill, unable to\ncommunicate verbally, and did not exhibit signs of pain.\n\n\n\n -5-\n\f Upon review of the entirety of the record, we are not convinced that CLC has negated\nthe element of injury under the standard established by Hannan v. Alltel Publishing. First,\nwe note that Dr. Hines’ affidavit does not establish that he is an expert with respect to\nmental, emotional, or psychological health. Second, we note that CLC does not dispute Dr.\nKiser’s testimony that Loritab was administered to Ms. Johnson for pain, and that Ms.\nJohnson “must have shown some symptoms of pain. . . . they gave her pain medication those\ndays.” It is undisputed that Ms. Johnson’s physical condition rendered her incapable of oral\ncommunication. Patricia Brady (Ms. Brady), the L.P.N. who assisted with the changing of\nMs. Johnson’s bandage and discovered the maggots, testified by deposition that, although\nMs. Johnson could not communicate verbally, she could understand oral commands and\nrespond to pain. Ms. Brady testified that Ms. Johnson did not appear to be in physical pain,\nand that she did not watch the irrigation process used to clean the wound. She also testified\nthat she did not recall whether Ms. Johnson’s eyes were open or closed. Maude Marie\nSimmons (Ms. Simmons), a hospice-certified R.N. who also was present during the process\nof irrigating the maggots from the wound on Ms. Johnson’s foot, testified that Ms. Johnson\nwas semi-comatose and was able to respond to tactile stimuli by opening her eyes or\nsometimes by moving her “right upper extremity.” When asked whether she “ha[d] any\nreason to believe that [Ms. Johnson] was aware to the presence of maggots in that wound,”\nMs. Simmons replied that she “honestly [couldn’t] say.” Dr. Kiser’s testimony is similarly\ninexact with respect to whether Ms. Johnson experienced mental or physical discomfort. Dr.\nKiser testified, however, that there was no evidence or physical data to prove that Ms.\nJohnson felt pain as a result of the maggots, but that based on her training, she believed\n“people are aware of things they can’t verbalize.”\n\n We do not believe Dr. Hines’ testimony affirmatively negates the element of injury\nin this case. Although Dr. Hines testified that Ms. Johnson experienced no pain, Dr. Hines\ndid not treat Ms. Johnson, was not personally familiar with her, and did not specify facts on\nwhich he based his conclusion. Assuming that Dr. Hines reviewed the remainder of the\nevidence in the record now before us, there is nothing in that record to affirmatively negate\nthe element of injury. We must agree with Ms. Champion that Dr. Hines’ opinion is\nconclusory and are neither based on nor supported by identified facts as required for\nsummary judgment under Hannan v. Alltel. Additionally, there is no dispute that Ms.\nJohnson was somewhat conscious and capable of experiencing some degree of pain and\nmental, emotional and psychological anguish and distress, notwithstanding her inability to\ncommunicate verbally. There is nothing in this record to demonstrate that Dr. Hines is an\nexpert with respect to those elements of injury. See Weaver v. Pardue, No.\nM2010-00124-COA-R3-CV, 2010 WL 4272687, at *8-9 (Tenn. Ct. App. Oct. 28,\n2010)(stating, that doctor’s affidavit did not demonstrate that he “possessed the requisite\nknowledge and expertise to offer an opinion on whether his alleged conduct caused the\nalleged injury.”).\n\n -6-\n\f Holding\n\n In light of the foregoing, we reverse the award of summary judgment to CLC. This\nmatter is remanded to the trial court for further proceedings. Costs of this appeal are taxed\nto the Appellee, CLC of Dyersburg, LLC.\n\n\n\n\n _________________________________\n DAVID R. FARMER, JUDGE\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 1048291 } ]

[ "151 S.W.3d 66" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7729, "opinion_text": "\n151 S.W.3d 66 (2004)\nSTATE of Missouri, Respondent,\nv.\nJonathan NIXON, Appellant.\nNo. ED 83436.\nMissouri Court of Appeals, Eastern District, Division Four.\nSeptember 28, 2004.\nMotion for Rehearing and/or Transfer Denied November 30, 2004.\nNancy A. McKerrow, Columbia, MO, for appellant.\nJeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Jefferson City, MO, for respondent.\nBefore LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN, J., and MARY K. HOFF, J.\nMotion for Rehearing and/or Transfer to Supreme Court Denied November 30, 2004.\n\nORDER\nPER CURIAM.\nJonathan Nixon appeals the judgment entered pursuant to the jury's verdict convicting him as a prior offender of one count of assault in the first degree, two counts of kidnapping, one count of first degree robbery, two counts of armed criminal action, and one count of burglary in the first degree, for which he was sentenced to consecutive terms of imprisonment totaling 155 years.\nWe have reviewed the briefs of the parties and the record on appeal and find no *67 error of law. An extended opinion would serve no jurisprudential purpose. We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).\n", "ocr": false, "opinion_id": 1577074 } ]

[ "890 S.W.2d 578", "319 Ark. 62" ]

[ { "author_str": "Dudley", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3745, "opinion_text": "\n890 S.W.2d 578 (1994)\n319 Ark. 62\nJerry K. ALLRED and Karen K. Allred, Husband and Wife, Appellants,\nv.\nShannon DEMUTH, Appellee.\nNo. 93-1011.\nSupreme Court of Arkansas.\nDecember 19, 1994.\n*579 Raymond C. Smith, Fayetteville, for appellants.\nCharles E. Hanks, Fayetteville, for appellee.\n*580 DUDLEY, Justice.\nShannon Demuth filed suit against Jerry and Karen Allred for fraudulently concealing structural defects in a home she purchased from them. The jury returned a plaintiff's verdict in the amounts of $50,000 compensatory damages and $24,000 punitive damages. The defendants appeal. We affirm.\nThe defendants first argue that the evidence is insufficient to support the verdict. Our standard of review in determining sufficiency of the evidence is well settled: (1) The evidence is viewed in a light most favorable to appellee; (2) the jury's finding will be upheld if there is any substantial evidence to support it; and (3) substantial evidence is that of sufficient force and character to induce the mind of the factfinder past speculation and conjecture. Derrick v. Mexico Chiquito, Inc., 307 Ark. 217, 819 S.W.2d 4 (1991).\nIn order to prove the tort of fraud, the plaintiff was required to prove (1) a false representation of a material fact; (2) knowledge or belief on the part of the defendants that the representation was false; (3) an intent to induce the plaintiff to act or to refrain from acting in reliance on the misrepresentation; (4) justifiable reliance upon representation on the part of the plaintiff taking action or refraining from it; and (5) resulting damages. MFA Mutual Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). An inference of fraud may be drawn by circumstantial evidence just as with any other fact. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980). While fraud may be established by circumstantial evidence, the circumstances must be so strong and well connected as to clearly show fraud. Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872 (1992).\nPlaintiff offered evidence to show that defendants bought the home before construction was complete; that they were the first occupants of the home; that they were in exclusive possession and control of the home until they sold it to plaintiff in 1986; that defendants did not disclose to plaintiff that the house had any problems; that plaintiff inspected the house and could not see any defects; that in 1988 both new and old cracks were discovered in the interior and exterior of the home, in the foundation, and in the driveway; that the movement of the foundation had been so great that one could have heard the house moving; that the structural defects would have begun showing up within one year of construction; that the cracks had been covered and patched with caulk and painted over in a color that hid them; that the caulking and painting was not a part of the construction; that the caulking and painting could serve only a cosmetic purpose by hiding the cracks; and that it would cost $50,000 to repair the home. From this proof and its reasonable inferences, the jury could have concluded that the cracks occurred when defendants lived in the house; that the cracks were caulked, sealed, and painted in order to conceal them; that defendants concealed the cracks in order to induce someone to purchase the home; and that plaintiff purchased the home and consequently suffered damages. In sum, the proof was sufficient to establish the tort of fraud.\nDefendant Jerry Allred denied knowing of the problems or concealing them, but it was within the jury's province to believe or disbelieve his testimony, and to determine the weight, if any, to accord it. Druckenmiller v. Cluff, 316 Ark. 517, 873 S.W.2d 526 (1994).\nDefendants next contend that the trial court erred in giving an instruction on punitive damages because the plaintiff did not specifically request such damages in her testimony. The contention is without merit. An instruction on punitive damages may be given when the evidence shows that a party likely \"knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.\" Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 116, 732 S.W.2d 465, 467 (1987). A plaintiff is entitled to the instruction when the pleadings ask for punitive damages and evidence is introduced showing deliberate misrepresentation or deceit. City Nat'l Bank v. Goodwin, 301 Ark. 182, 783 S.W.2d 335 (1990).\n*581 The defendants' next point of appeal involves the amount of the verdicts. The jury returned separate verdicts finding Jerry Allred liable for $25,000 compensatory damages and $12,000 punitive damages, and finding Karen Allred liable for $25,000 compensatory damages and $12,000 punitive damages. The trial court entered a judgment against both defendants, jointly and severally, for $50,000 compensatory damages and $24,000 punitive damages. In this point of appeal, the defendants argue that the trial court should have entered only one judgment for $25,000 and $12,000.\nThere was testimony that the damages amounted to $50,000. The jury was instructed to decide each defendant's liability as if it were a separate lawsuit. There were separate verdicts finding each defendant equally liable. In determining that the total damages were $50,000 the trial court correctly followed our case of C & L Trucking, Inc. v. Allen, 285 Ark. 243, 686 S.W.2d 399 (1985). Additionally, a joint tortfeasor is one of \"two or more persons jointly or severally liable in tort for the same injury to person or property....\" Ark.Code Ann. § 16-61-201 (1987) (emphasis added); see also W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). It is undisputed that defendants were being sued jointly and severally for the same fraud and damage. A jury may apportion liability among joint tortfeasors, but this is only for the purpose of contribution and indemnity among the tortfeasors and does not affect the rights of a plaintiff to recover the whole amount from each. Ark.Code Ann. § 16-61-202(4) (1987). The apportioned awards are still to be aggregated. Allen, 285 Ark. at 248, 686 S.W.2d at 402. Finally, the general rule is that joint tortfeasors may be jointly and severally liable for punitive damages. Missouri Pac. R.R. Co. v. Arkansas Sheriff's Boys' Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).\nThe defendants' final point of appeal involves a ruling made during closing argument. Karen Allred did not testify at trial. In closing plaintiff's counsel argued, \"You would think [Karen's] testimony was vital to [defendants'] case, wouldn't you? You think she might have been afraid of committing perjury?\" Defendants' counsel objected, and the trial court overruled the objection. Defendants assign the ruling as error.\nThe failure of a party to testify in a civil case about facts peculiarly within his or her knowledge is a circumstance which may be looked upon with suspicion by a trier of fact. May v. Barg & Co., 276 Ark. 199, 633 S.W.2d 376 (1982). The failure to testify gives rise to the presumption that the testimony would have been against the party's interest. Starnes v. Andre, 243 Ark. 712, 421 S.W.2d 616 (1967). Counsel may argue every plausible inference which could be drawn from the testimony. Abraham v. State, 274 Ark. 506, 625 S.W.2d 518 (1981). A trial court has wide discretion in controlling, supervising, and determining the propriety of counsels' arguments, and an appellate court will not reverse absent a showing of manifest abuse. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994); Wal-mart Stores, Inc. v. Yarbrough, 284 Ark. 345, 681 S.W.2d 359 (1984).\nAffirmed.\n", "ocr": false, "opinion_id": 2395005 } ]

[ "170 F.3d 184" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 1, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\97/97-31241.0.wpd.pdf", "author_id": null, "opinion_text": "170 F.3d 184\n Wilsonv.Mobil Oil Corporation\n NO. 97-31241\n United States Court of Appeals,Fifth Circuit.\n January 28, 1999\n \n 1\n Appeal From: E.D.La.\n \n \n 2\n Affirmed.\n \n ", "ocr": false, "opinion_id": 16791 } ]

[ "935 F.2d 1106" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/935/935.F2d.1106.90-6326.html", "author_id": null, "opinion_text": "935 F.2d 1106\n 19 Fed.R.Serv.3d 1217\n Kenneth E. HALL, Jr., Plaintiff-Appellant,v.Henry BELLMON, Governor; Robert H. Henry, Attorney General;Gary Maynard; Steven Kaiser; Captain E. Smith;Sgt. B. Jones; Buddy Honaker; TwoUnnamed Guards, Defendants-Appellees.\n No. 90-6326.\n United States Court of Appeals,Tenth Circuit.\n June 3, 1991.\n \n Kenneth E. Hall, Jr., pro se.\n Robert H. Henry, Atty. Gen. of Okl., and Karin M. Kriz, Asst. Atty. Gen. of Okl., Oklahoma City, Okl., for defendants-appellees.\n Before LOGAN, MOORE and BALDOCK, Circuit Judges.\n LOGAN, Circuit Judge.\n \n \n 1\n Pro se plaintiff Kenneth E. Hall, Jr. appeals the district court's dismissal of his claim that the policies and procedures of the Lexington Assessment and Reception Center (LARC), as well as the actions of LARC employees, violated his First Amendment right to free exercise of religion. He contends that the district court applied the wrong legal standards in dismissing his case, improperly relied on evidence not in the pleadings, and failed to give proper notice and opportunity for discovery.1\n \n \n 2\n * Because all are relevant to our discussion of the issues, we summarize here the procedure and law applicable to the three most common pretrial points at which a district court may dispose of a pro se complaint.\n \n \n 3\n * First, if the plaintiff is proceeding in forma pauperis, a court \"may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.\" 28 U.S.C. Sec. 1915(d). A Sec. 1915(d) dismissal may be sua sponte when \"on the face of the complaint it clearly appears that the action is frivolous or malicious.\" Henriksen v. Bentley, 644 F.2d 852, 854 (10th Cir.1981); see also Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).2 The term \"frivolous\" refers to \"the inarguable legal conclusion\" and \"the fanciful factual allegation.\" Neitzke, 490 U.S. at 325, 109 S.Ct. at 1831. The purpose of Sec. 1915(d) is \"to discourage the filing of, and waste of judicial and private resources upon, baseless lawsuits that paying litigants generally do not initiate....\" Id. at 327, 109 S.Ct. at 1832-33.\n \n \n 4\n In contrast to Fed.R.Civ.P. 12(b)(6), which authorizes dismissal whenever a complaint fails to state a claim on which relief can be granted \"without regard to whether [the claim] is based on an outlandish legal theory or on a close but ultimately unavailing one,\" Sec. 1915(d) authorizes dismissal of \"a claim based on an indisputably meritless legal theory.\" Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. \"[W]henever a plaintiff states an arguable claim for relief, dismissal for frivolousness under Sec. 1915(d) is improper, even if the legal basis underlying the claim ultimately proves incorrect.\" McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991) (emphasis in original) (citing Neitzke, 490 U.S. at 328, 109 S.Ct. at 1833). Examples of claims based on inarguable legal theories include those against which the defendants are undeniably immune from suit and those alleging an infringement of a legal interest that clearly does not exist. Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832-33.\n \n \n 5\n Section 1915(d) also gives the district court \"the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.\" Id. Clearly baseless factual allegations are those that are \"fantastic\" or \"delusional.\" Id. at 327-28, 109 S.Ct. at 1832-33. The concern that pro se litigants have notice and opportunity to avoid dismissal of their legitimate claims by amending and supporting their pleadings militates against equating Sec. 1915(d) and Rule 12(b)(6) standards, id. at 329-30, 109 S.Ct. at 1834; that same concern forbids equating Sec. 1915(d) and Fed.R.Civ.P. 56 summary judgment standards. A plausible factual allegation, even if it lacks evidentiary support, is not \"frivolous\" as contemplated by Sec. 1915(d), even though it may not survive a motion for summary judgment.\n \n \n 6\n When the pro se plaintiff is a prisoner, a court-authorized investigation and report by prison officials (referred to as a Martinez report) is not only proper, but may be necessary to develop a record sufficient to ascertain whether there are any factual or legal bases for the prisoner's claims. Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir.1978); see also Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir.1987). Telephone evidentiary hearings before a judge or magistrate may serve the same purpose as a Martinez report. Gee, 829 F.2d at 1008. Although a court may consider the Martinez report in dismissing a claim pursuant to Sec. 1915(d), id. at 1007, it cannot resolve material disputed factual issues by accepting the report's factual findings when they are in conflict with pleadings or affidavits. Reed v. Dunham, 893 F.2d 285, 287 n. 2 (10th Cir.1990); El'Amin v. Pearce, 750 F.2d 829, 832 (10th Cir.1984); Sampley v. Ruettgers, 704 F.2d 491, 493 n. 3 (10th Cir.1983). A bona fide factual dispute exists even when the plaintiff's factual allegations that are in conflict with the Martinez report are less specific or well-documented than those contained in the report. Because pro se litigants may be unfamiliar with the requirements to sustain a cause of action, they should be provided an opportunity to controvert the facts set out in the Martinez report.\n \n B\n \n 7\n Second, the court may dismiss a complaint for \"failure to state a claim upon which relief can be granted.\" Fed.R.Civ.P. 12(b)(6). The complaint should not be dismissed for failure to state a claim \"unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted); Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988); Grider v. Texas Oil & Gas Corp., 868 F.2d 1147, 1148 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 76, 107 L.Ed.2d 43 (1989). A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Meade, 841 F.2d at 1526; Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). If matters outside the pleadings are considered by the court, the Rule 12(b)(6) motion is treated as a motion for summary judgment and disposed of pursuant to Fed.R.Civ.P. 56. Fed.R.Civ.P. 12(b); Reed, 893 F.2d at 287 n. 2. Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss, giving plaintiff notice and opportunity to amend his complaint, a court may dismiss sua sponte \"when it is 'patently obvious' that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.\" McKinney, at 365 (citations omitted).\n \n \n 8\n A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976); Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989). We believe that this rule means that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.3 At the same time, we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant.\n \n \n 9\n The broad reading of the plaintiff's complaint does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based. Not every fact must be described in specific detail, Conley, 355 U.S. at 47, 78 S.Ct. at 102-03, and the plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend his complaint, Reynoldson v. Shillinger, 907 F.2d 124, 126-27 (10th Cir.1990). Nevertheless, conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990); Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); Clulow v. Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983), overruled on other grounds sub nom, Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), aff'd, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Wise v. Bravo, 666 F.2d 1328, 1333 (10th Cir.1981); Lorraine v. United States, 444 F.2d 1, 2 (10th Cir.1971). This is so because a pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted. Moreover, in analyzing the sufficiency of the plaintiff's complaint, the court need accept as true only the plaintiff's well-pleaded factual contentions, not his conclusory allegations. Dunn, 880 F.2d at 1190 (quoting Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.1984)).\n \n C\n \n 10\n Third, the court may grant summary judgment \"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\" Fed.R.Civ.P. 56(c). A motion for summary judgment that is supported by affidavits or other materials provided under oath gives the adverse party notice that summary judgment is possible; the adverse party must respond with affidavits or other evidence to show a genuine issue of material fact. Jaxon v. Circle K Corp., 773 F.2d 1138, 1139 (10th Cir.1985). A motion to dismiss pursuant to Rule 12(b)(6) is treated as a motion for summary judgment when premised on materials outside the pleadings, and the opposing party is afforded the same notice and opportunity to respond as provided in Rule 56.4 Fed.R.Civ.P. 12(b); Reed, 893 F.2d at 287 n. 2. \"The provisions of Rule 56(c) for notice to the opposing party and an opportunity for him to serve opposing affidavits are mandatory. Noncompliance therewith deprives the court of authority to grant summary judgment.\" Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th Cir.1977) (citation omitted). Furthermore, \" '[d]istrict courts must take care to insure that pro se litigants are provided with proper notice regarding the complex procedural issues involved in summary judgment proceedings.' \" Jaxon, 773 F.2d at 1140 (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984)); see also Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir.1975) (pro se plaintiff should \"be advised of his right to file counter-affidavits or other responsive material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against him\").\n \n \n 11\n Material factual disputes cannot be resolved at summary judgment based on conflicting affidavits.5 See, e.g., Sampley, 704 F.2d at 496. To come within the protection of this rule, however, the nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient. See Fed.R.Civ.P. 56(e); Palucki v. Sears, Roebuck & Co., 879 F.2d 1568, 1572 (7th Cir.1989). Likewise, only material factual disputes preclude summary judgment; factual disputes about immaterial items are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Affidavits or other evidence offered by a nonmovant must create a genuine issue for trial; viewing the evidence in the light most favorable to the nonmovant, it is not enough that the evidence be \"merely colorable\" or anything short of \"significantly probative.\" Id. at 249-50, 106 S.Ct. at 2510-11. This is because when \"the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is 'no genuine issue for trial.' \" Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592-93, 20 L.Ed.2d 569 (1968)).\n \n \n 12\n A Martinez report is treated like an affidavit, and the court is not authorized to accept the factual findings of the prison investigation when the plaintiff has presented conflicting evidence. See Sampley, 704 F.2d at 493 n. 3. The plaintiff's complaint may also be treated as an affidavit if it alleges facts based on the plaintiff's personal knowledge and has been sworn under penalty of perjury. Jaxon, 773 F.2d at 1139 n. 1 (citing, inter alia, Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980)) (\"In certain circumstances a verified pleading may itself be treated as an affidavit in support of a motion for summary judgment, but only if it satisfies the standards for affidavits set out in Rule 56(e).\").\n \n II\n \n 13\n In the instant case, plaintiff, a state prisoner, alleges three separate violations of his First Amendment right to free exercise of religion while an inmate at LARC, in that LARC officials (1) confiscated his medicine bag and talisman, which are used in the practice of his Native American religion; (2) improperly destroyed the medicine bag and talisman; and (3) cut his hair, without giving him an opportunity to apply for an exemption, in violation of his religious beliefs.\n \n \n 14\n In a thorough memorandum opinion, the district court considered and dismissed each of plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff contends that the district court improperly dismissed his complaint as frivolous under Sec. 1915(d). Although the court did say that it had \"also reviewed the complaint under 28 U.S.C. Sec. 1915(d),\" R. tab 52 at 2-3 (emphasis added), it never characterized plaintiff's claims as frivolous. The only plausible reading of the district court's opinion is that the court dismissed plaintiff's case for failure to state a claim on which relief can be granted.\n \n \n 15\n * Plaintiff argues that his claim regarding confiscation of his religious items should not have been dismissed because the court considered and referred to the Martinez report.6 As noted above, when the court does not exclude materials outside the pleadings, a Rule 12(b)(6) motion is treated as one for summary judgment and the plaintiff must be given notice and the opportunity to respond with affidavits or similar evidence. Fed.R.Civ.P. 12(b); Reed, 893 F.2d at 287 n. 2. Here, plaintiff was not provided with the notice and opportunity to respond required by Fed.R.Civ.P. 56.\n \n \n 16\n We hold, however, that in particular circumstances the Martinez report may be considered part of the pleadings for purposes of Fed.R.Civ.P. 12(b). A written document that is attached to the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal. Fed.R.Civ.P. 10(c); Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir.1990); Morton v. Becker, 793 F.2d 185, 187 (8th Cir.1986); Sullivan v. United States, 788 F.2d 813, 815 n. 3 (1st Cir.1986); Quiller v. Barclays Am./Credit, Inc., 727 F.2d 1067, 1069 (11th Cir.1984), cert. denied, 476 U.S. 1124, 106 S.Ct. 1992, 90 L.Ed.2d 673 (1986); Amfac Mortgage Corp. v. Arizona Mall of Tempe, 583 F.2d 426, 429-30 (9th Cir.1978). One circuit court, however, has held that affidavits, in contrast to other written documents attached to the complaint, may not be considered in dismissing under Fed.R.Civ.P. 12(b)(6). Rose v. Bartle, 871 F.2d 331, 339-40 n. 3 (3d Cir.1989); contra Schnell v. City of Chicago, 407 F.2d 1084, 1085 (7th Cir.1969) (holding that affidavits attached to the complaint are part thereof). The Martinez report is often treated like an affidavit. See, e.g., Sampley, 704 F.2d at 493 n. 3. Further, here the Martinez report was attached not to plaintiff's complaint, but to defendants' brief in support of their motion to dismiss. See Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir.1985) (holding Rule 12(b)(6) consideration of documents attached to defendants' motion to dismiss improper).\n \n \n 17\n Nevertheless, we have authorized the district courts to require a Martinez report to develop a basis for determining whether a prisoner plaintiff has a possibly meritorious claim. The purpose of the Martinez report is to identify and clarify the issues plaintiff raises in his complaint. Martinez, 570 F.2d at 319; Gee, 829 F.2d at 1007. It also aids the court in its broad reading of the pro se litigant's pleadings under Haines, 404 U.S. at 520-21, 92 S.Ct. at 595-96, by supplementing a plaintiff's often inadequate description of the practices that he contends are unconstitutional. See Gee, 829 F.2d at 1007. When the plaintiff challenges a prison's policies or established procedures and the Martinez report's description of the policies or procedures remains undisputed after plaintiff has an opportunity to respond, we should, and will, treat the portion of the Martinez report describing the policies or procedures like a written document that has been attached to plaintiff's complaint. Thus, the court appropriately considered the Martinez report.\n \n \n 18\n In the instant case, plaintiff essentially is challenging a policy of the LARC not to allow prisoners to have sharp items that can be used as weapons or items that can be worn around the neck, which can be used to choke inmates or guards or to commit suicide. Plaintiff's talisman is a sharp bear tooth necklace, and his medicine bag has a thong which could be used for wearing around the neck. The court referred only to those portions of the Martinez report that describe the challenged policy and the reasons for it; the court does not use the report to resolve factual issues or to find that there are no disputed facts. Plaintiff had the opportunity to respond to the Martinez report, R. tab 37, and he did respond, R. tabs 40 & 47. He does not challenge the Martinez report's description of the policy or its reasons; instead he disputes the reasonableness of the policy in light of his constitutional right to free exercise of his religion, a legal question appropriately resolved in a 12(b)(6) ruling.\n \n \n 19\n Although plaintiff retains his fundamental right to practice his religion in prison, prison regulations may constitutionally impinge on plaintiff's right if \"the regulation is 'reasonably related to legitimate penological interests.' \" Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 1037, 108 L.Ed.2d 178 (1990) (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)); see also O'Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2405-05, 96 L.Ed.2d 282 (1987); Dunn, 880 F.2d at 1197. Turner set forth four factors that the court is to consider in reviewing a challenged prison regulation.\n \n \n 20\n \"First, there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it.... A second factor ... is whether there are alternative means of exercising the right that remain open to prison inmates.... A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.... Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.\"\n \n \n 21\n Turner, 482 U.S. at 89-90, 107 S.Ct. at 2262 (citations omitted).\n \n \n 22\n The district court found that the LARC regulations which prohibit any inmate from possessing sharp objects or items that can be worn around the neck, including religious items, were, on their face, reasonably related to the legitimate penological interest in protecting the safety of other inmates and prison personnel and preventing suicide attempts. The court also noted that the regulations guarantee inmates other avenues for the practice of their respective religions, including Native American beliefs. We are convinced that the district court correctly applied the proper standards and that plaintiff cannot state a claim for relief on the facts alleged.\n \n B\n \n 23\n Plaintiff also challenges the dismissal of his claim for the destruction of his religious items. The district court found that plaintiff must allege intentional destruction of his property to sustain a Sec. 1983 action and that plaintiff's conclusory allegations of intent are insufficient. We agree. A valid claim for loss of prisoner's property in violation of the Due Process Clause of the Fourteenth Amendment must include allegations of deliberate conduct by state actors. See Daniels v. Williams, 474 U.S. 327, 333-34, 106 S.Ct. 662, 666-67, 88 L.Ed.2d 662 (1986); Archuleta v. McShan, 897 F.2d 495, 497-99 (10th Cir.1990). Although plaintiff need not allege every element of his action in specific detail, Conley, 355 U.S. at 47, 78 S.Ct. at 102-03, he cannot rely on conclusory allegations, Dunn, 880 F.2d at 1197; Sooner Products, 708 F.2d at 512; Clulow, 700 F.2d at 1303; Wise, 666 F.2d at 1333; Lorraine, 444 F.2d at 2. Plaintiff's mere words \"with malous [sic] and forthougth [sic]\" are insufficient without any facts to support the conclusion. Plaintiff has not even presented his theory as to why defendants would intentionally destroy his property.\n \n C\n \n 24\n Finally, we consider the dismissal of plaintiff's claim regarding the cutting of his hair in violation of his religious beliefs. LARC policy requires that the hair of all new inmates be cut. The justifications advanced to support the requirement, that we believe have merit, are that it prevents inmates from hiding weapons in long hair and from easily changing their appearance should they escape, and it facilitates good hygiene. The court found the policy, as set forth in the Martinez report, reasonably related to a legitimate penological interest. The nature of the policy is undisputed, and plaintiff had the opportunity to respond. Thus, the district court properly considered this portion of the Martinez report as if it were part of plaintiff's complaint.\n \n \n 25\n The district court also appears to have accepted the Martinez report's assertions that LARC's status as an intake facility, in which inmates stay only ten days on average, makes an exemption process for religious beliefs unfeasible. The lack of alternatives to a regulation that otherwise violates a prisoner's constitutional rights is relevant to determining the validity of the regulation. Turner, 482 U.S. at 90, 107 S.Ct. at 2262. Whether the existence of alternatives to the regulation renders the regulation unreasonable is a legal question appropriately resolved on a Rule 12(b)(6) motion.\n \n \n 26\n Plaintiff disputes defendants' assertion that there is no reasonable opportunity for religious exemptions to the haircut requirement. He states that he was an inmate at LARC for thirty-one days, which was the norm at the time his hair was cut--in contrast to the Martinez report's ten days. R. tab 47 at 2. Thus, if the time difference is important to a determination whether an exemption process for religious beliefs is feasible, the district court, by accepting the ten-day average stay assertion in the Martinez report, has improperly resolved a factual dispute more properly the subject of a summary judgment proceeding or a trial.\n \n \n 27\n We do not believe, however, that the ten-day, thirty-one-day difference is legally significant. LARC is still a temporary detention facility, receiving and processing for redeployment to other facilities many inmates incarcerated for different crimes. That some or even many are kept for a month does not require, we hold, establishment of a haircut exemption procedure. Thus, the district court permissibly rejected this claim under a 12(b)(6) ruling.\n \n \n 28\n AFFIRMED.\n \n \n \n 1\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.8. The cause is therefore ordered submitted without oral argument\n \n \n 2\n The court may dismiss pursuant to Sec. 1915(d), even if defendants have sought dismissal on Rule 12(b)(6). Taylor v. Wallace, 931 F.2d 698, 700 (10th Cir.1991)\n \n \n 3\n The Haines rule applies to all proceedings involving a pro se litigant, including Sec. 1915(d) and summary judgment proceedings. See, e.g., Reed, 893 F.2d at 286 (liberally construing pleadings dismissed under Sec. 1915(d)); Overton v. United States, 925 F.2d 1282 (10th Cir.1990) (liberally construing pro se pleadings in review of summary judgment). In addition, pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings. See, e.g., Reynoldson v. Shillinger, 907 F.2d 124, 126 (10th Cir.1990); Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985)\n \n \n 4\n We will treat a dismissal as proper under Rule 12(b) even when the district court does not exclude materials outside the pleadings if the court does not refer to or rely on the outside materials in its order and if, as a matter of law, the complaint is insufficient. Childers v. Independent School Dist. No. 1 of Bryan County, 676 F.2d 1338, 1340 (10th Cir.1982); Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th Cir.1977)\n \n \n 5\n A movant is not always required to come forward with affidavits or other evidence to obtain summary judgment; once the movant points out an absence of proof on an essential element of the nonmovant's case, the burden shifts to the nonmovant to provide evidence to the contrary. See Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)\n \n \n 6\n The court requested LARC officials to investigate plaintiff's claims and prepare a Martinez report. The court found the original report, which was filed with defendants' brief in support of their motion to dismiss, R. tab 35, to be deficient in certain respects and ordered defendants to prepare a supplemental report, R. tab 41 at 3 and 4. The supplemental report was filed with defendants' supplemental brief in support of their motion to dismiss. R. tabs 44, 45. The court referred to both reports in its Memorandum Opinion of September 28, 1990. R. tab 52. The term \"Martinez report\" is used here to mean both reports taken together\n \n \n ", "ocr": false, "opinion_id": 562712 } ]

[ "331 N.W.2d 585", "111 Wis. 2d 392" ]

[ { "author_str": "Beilfuss", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 6047, "opinion_text": "\n111 Wis. 2d 392 (1983)\n331 N.W.2d 585\nPeter GIESE and Sue Giese, individually and as parents of Missy Giese, Plaintiffs and Cross-Appellants,\nMissy GIESE, a minor, by her guardian ad litem, Arnold J. Wightman, Plaintiff-Appellant and Cross-Respondent-Petitioner,\nv.\nMONTGOMERY WARD, INC., a foreign corporation, Defendant and Cross-Respondent,\nMichael SHANAHAN, a minor, Bernard Shanahan, individually, and d/b/a Shanahan's Tavern, and Dorothy Shanahan, individually, and d/b/a Shanahan's Tavern, Defendants-Respondents and Cross-Appellants and Cross-Respondents and Cross-Petitioners.\nNo. 81-763.\nSupreme Court of Wisconsin.\nArgued March 2, 1983.\nDecided March 29, 1983.\n*395 For the cross-respondent-petitioner there were briefs by Joe Thrasher, Katherine Mahan Stewart and Cameron, Shervey, Thrasher, Doyle & Pelish, Ltd., Rice Lake, and Fritschler, Pellino, Schrank & Rosen, Madison, and oral argument by Joe Thrasher.\n*396 For the cross-respondents and cross-petitioners there was a brief by Clyde C. Cross and Cross, Mercer and Maffei, Baraboo, and oral argument by Clyde C. Cross.\nFor the plaintiffs and cross-appellants there was a brief and oral argument by Michael Nowakowski, Madison.\nFor the defendant and cross-respondent there was a brief and oral argument by Frank M. Coyne, Madison.\nReversing and remanding 107 Wis. 2d 745, 322 N.W.2d 699 (Ct.App.).\nBEILFUSS, C. J.\nThis is a review of an unpublished decision of the court of appeals which affirmed in part the judgment of the trial court in a personal injury action.\nThis action arises out of an accident involving a riding lawn mower. Bernard and Dorothy Shanahan own Shanahan's Tavern near Loganville, Wisconsin. The tavern is located next to the Shanahans' home. On August 7, 1977, Peter and Sue Giese and their daughter, Missy Giese, arrived at the tavern in the early evening. Peter planned to spend the evening at the tavern tending bar while Sue intended to have one drink and then return with Missy to their home in Prairie du Sac. Dorothy and Bernard Shanahan were in the tavern when the Gieses arrived. Missy, then age six, entered the tavern with her parents but shortly thereafter left the tavern without them. There is substantial dispute regarding who accepted responsibility for Missy's supervision when she left the tavern. Her parents testified that Dorothy Shanahan offered to fix supper for Missy and that Dorothy left the tavern with or about the same time as Missy. Dorothy testified that she left the tavern shortly after the Gieses' arrival to go to the house to shower prior to going out for the evening. She testified that she did not offer to fix supper for Missy, but rather asked Sue Giese to keep an eye on the children.\n*397 Prior to the Gieses' arrival, Bernard Shanahan directed his son, Michael Shanahan, then age fourteen, to mow the lawn in front of the house. Bernard Shanahan owned a seven-horsepower Montgomery Ward riding lawn mower manufactured in 1973 or 1974. Michael had operated this lawn mower several times prior to the day of the accident. When the Gieses arrived Michael had not yet started to mow the lawn but was filling the mower's gas tank. Peter and Sue Giese testified that they did not see Michael before they entered the tavern and did not know he was mowing the lawn until they were informed of the accident. After they entered the tavern Michael began mowing the lawn in front of the house.\nAs stated earlier, Missy left the tavern and was playing in the yard in front of the house with the two other Shanahan children, Anna Marie and Kevin. The three children began racing toward the tavern, with Missy out in front, when Kevin saw Michael operating the lawn mower in front of them. Michael had been operating the mower in reverse, with the blade engaged, for a distance of 200 feet. He was looking backwards over his right shoulder while operating the mower in this fashion. Just prior to the accident, after negotiating a turn, he looked forward to check his position. Kevin saw Missy running toward Michael and the lawn mower and yelled \"Missy\" because he \"saw danger.\" This caused Missy to turn and look over her shoulder at Kevin and caused Michael to turn back in the direction he was mowing. Michael then saw Missy within one foot of him. Missy collided with the left rear of the lawn mower and fell. The mower continued moving backward, riding partially over Missy. Michael attempted to lift the mower off Missy and Kevin ran to the mower and disengaged the blade.\nMissy suffered serious injury as a result of the accident, including amputation of her right hand at mid-palm, multiple lacerations to and a fracture of the right *398 forearm, and severe lacerations to her right thigh requiring two skin grafts resulting in permanent scarring. On May 9, 1978, Missy and her parents brought this action against Montgomery Ward, Inc., alleging strict liability and negligence, and against Michael and his parents alleging negligence. All the defendants cross-complained against each other, and counter-claimed against Missy's parents for contribution.\nTrial to a jury was commenced on September 10, 1979, Judge Howard Latton, presiding. Missy presented evidence that the mower was defective and unreasonably dangerous and negligently designed in that the lawn mower could be operated in reverse with the blade engaged, thus being susceptible to \"back over\" accidents because of the operator's lack of vision and control. She also presented evidence that the mower should have had a guard over the blade underneath the mower, or a \"bumper\" that stops the blade on contact. Montgomery Ward offered evidence that the guard and bumper were not feasible design alternatives. It also presented evidence that the design was safe because it gave the operator the choice of whether he or she wished to engage the blade while moving backwards, that customers want to be able to mow backwards, and that the law mower met or exceeded applicable standards at the time of manufacture and up to the time of trial. Additional facts will be set forth in the opinion.\nThe trial court submitted a 17-question special verdict to the jury. The jury answered the strict liability question in the negative, but found that Montgomery Ward was causally negligent in the design or manufacture of the lawn mower. Bernard and Dorothy Shanahan were absolved of negligence as to Bernard's control over Michael, and Dorothy's responsibility for the safety of Missy. The jury found Peter and Sue Giese causally negligent with respect to their daughter's safety. The trial *399 court directed a verdict that Michael acted as Bernard Shanahan's agent and the jury found that he was also acting as Dorothy's agent. These findings by the jury were unanimous.\nIn answering the comparison negligence question the jury allocated 52 percent to Montgomery Ward, 10 percent to Michael Shanahan, and 38 percent to Peter and Sue Giese. No negligence was allocated to Missy and her name did not appear in the comparison because she was under seven at the time of the accident.[1] Two jurors, Luprue and Gollmer, dissented to this apportionment. The jury awarded Missy $165,000 with jurors Gollmer and Goodman dissenting. Juror Goodman also dissented from the amount of damages awarded to Missy's parents for future medical expenses and loss of society and companionship.[2]\nThe trial court found the verdict defective and ordered a new trial. The court found the damages awarded to be reasonable and limited the second trial to liability issues only. The court also stated that it would not resubmit the issues of the negligence of Dorothy Shanahan or agency. A second trial was held in September of 1980. The jury again answered the strict liability question in favor of Montgomery Ward. The jury found that Montgomery Ward was negligent \"in the design or warnings relating to the lawn mower in question,\" but found such negligence not to be causal. The jury again found Michael Shanahan and Peter and Sue Giese causally negligent and absolved Dorothy and Bernard Shanahan of *400 negligence. Thirty-five percent of the negligence was allocated to Michael Shanahan and 65 percent to Peter and Sue Giese. The trial court entered judgment on the verdict in favor of Missy and against Michael, Dorothy and Bernard Shanahan,[3] with the Shanahans having contribution rights against Peter and Sue Giese.[4]\nThe court of appeals affirmed the order granting a second trial and affirmed the judgment with the modification that there was no liability on the part of Dorothy Shanahan because the master-servant relationship did not exist between Dorothy and Michael.[5] Missy petitioned this court for review of this decision claiming that it was error to order a second trial and that even if the second trial was appropriate the lower courts erred in failing to find that Montgomery Ward's negligence was a cause of her injuries as a matter of law. Bernard Shanahan cross-petitioned, also contending that the second trial was inappropriate, and further asserted that the lower courts erred in holding him vicariously liable for his son's negligence. We granted these petitions.\nThe first issue on review is whether the trial court, after the first trial, correctly ordered a new trial. Sec. 805.15, Stats. 1977-78, allows a trial court to order a new trial on the following grounds: (1) errors in the trial; (2) verdict is contrary to law or the weight of evidence; (3) damages are excessive or inadequate; (4) newly discovered evidence; or (5) in the interest of justice. In resolving this issue we must therefore examine *401 the trial court's grounds for ordering a new trial. If any one ground is sufficient then the order must be affirmed.\nOur examination of the trial court's memorandum decision and order leads us to the conclusion that the primary reason the trial court ordered a new trial was because it determined that the jury's verdict was contrary to law because it did not meet the five-sixths requirement. Art. I, sec. 5 of the Wisconsin Constitution provides for the right to a jury trial in all cases at law \"[p]rovided, however, that the legislature may, from time to time, by statute provide that a valid verdict, in civil cases, may be based on the votes of a specified number of the jury, not less than five sixths thereof.\" Pursuant to this provision of the constitution the legislature enacted sec. 805.09(2), Stats., which provides:\n\"(2) VERDICT. A verdict agreed to by five-sixths of the jurors shall be the verdict of the jury. If more than one question must be answered to arrive at a verdict on the same claim, the same five-sixths of the jurors must agree on all the questions.\"\n[1]\nIt is well established in Wisconsin law that this statute requires not that five-sixths of the jury agree on all questions in the verdict, but rather that this number must agree on all questions necessary to support a judgment on a particular claim. Scipior v. Shea, 252 Wis. 185, 190, 31 N.W.2d 199 (1948). Thus a verdict must be reviewed on a claim-by-claim basis rather than as a whole. Krueger v. Winters, 37 Wis. 2d 204, 212, 155 N.W.2d 1 (1967); United States F. & G. Co. v. Milwaukee & S. T. Corp., 18 Wis. 2d 1, 117 N.W.2d 708 (1962); Augustin v. Milwaukee E. R. & T. Co., 259 Wis. 625, 49 N.W.2d 730 (1951). Dissents important to one claim may be immaterial to another when the verdict is reviewed in this fashion. Scipior, 252 Wis. at 190.\n*402 The lower courts, however, failed to apply this claim-by-claim analysis. Instead they looked at the verdict as a whole in concluding that it violated the five-sixths rule. In analyzing the validity of the verdict in light of the dissents, the trial court stated only:\n\"All parties agree that a problem exists because the same ten jurors have not agreed on all of the questions in the verdict. . . .\n\"As to dissenting jurors, the problem arises because on the comparative negligence question there were two dissenting jurors and on the damage question for Missy Giese there were a different two jurors. In other words we have ten jurors on all negligence questions, and we have ten jurors on all damage questions.\"\nThe court of appeals affirmed the trial court, holding that the trial court properly ordered a new trial because ten jurors did not agree \"on damages as well as liability.\" Both lower courts failed to analyze the verdict on a claim-by-claim basis and therefore we must do so.\nThe first claims that we examine are Missy's negligence claims against Montgomery Ward and Michael and Bernard Shanahan. These claims can be analyzed together because they all require that the same ten jurors agree on the same questions in the verdict: negligence, cause and damages.[6] The jury unanimously agreed that Montgomery Ward and Michael Shanahan were causally negligent and ten jurors agreed on the amount of Missy's damages. The percentage of negligence attributed to Montgomery Ward and Michael Shanahan did not affect her right to recover from these two joint tortfeasors. Therefore Missy clearly had ten jurors agreeing on all questions necessary for judgment.\n*403 Montgomery Ward contends, and the lower court apparently believed, that the jury's allocation of negligence was necessary to Missy's claims against the defendants. One of the jurors who dissented to Missy's damages also dissented to the allocation of negligence, along with a third juror. If the allocation of negligence was necessary in order for Missy to obtain a judgment against the defendants, then Missy would not have a valid five-sixths verdict because only nine jurors agreed on causal negligence, damages and apportionment.\n[2]\nHowever, the allocation of negligence was irrelevant to Missy's claims against the defendants because she could not be negligent as a matter of law. Missy, a child under seven at the time of the accident, was not and could not be included in the comparison question.[7] The inclusion of the comparative negligence question in the verdict was not necessary to support a judgment as to Missy's claims. The defendants' liability to Missy was not dependent on the allocation of negligence because there was no issue of contributory negligence on the part of Missy. The apportionment of negligence question was included in the verdict for the purpose of determining the comparative contribution rights of the defendants[8] as established in Bielski v. Schulze, 16 Wis. 2d 1, 6, 114 N.W.2d 105 (1962). The comparison did not \"apply to or change the plaintiff's right to recover against any defendant tort-feasor the total amount of his damage to which he is entitled.\" Id. Therefore the dissents to the comparison question were immaterial to Missy's claims. We hold that Missy's verdict as to Montgomery Ward and Bernard and Michael Shanahan was valid under the five-sixths rule.\n*404 [3, 4]\nThis holding also requires the conclusion that the verdict met the five-sixths requirement as to the contribution claims of the defendants. A claim for contribution is separate from and independent of the underlying claim, Johnson v. Heintz, 73 Wis. 2d 286, 295, 243 N.W.2d 815 (1976), and thus the verdict must be separately examined as to these claims. We must therefore determine what questions were essential to enter judgment on the contribution claim. In order to have a claim for contribution the following elements must be present:\n\"`1. Both parties must be joint negligent wrongdoers; 2. they must have common liability because of such negligence to the same person; 3. one such party must have borne an unequal proportion of the common burden.'\" Johnson v. Heintz, 73 Wis. 2d at 295.\nThe first two elements were met by the valid verdict on Missy's claim. This verdict established the defendants as joint tort-feasors who were liable to Missy for her total damages irrespective of the allocation of negligence in the verdict. The requisite common liability for Missy's damages was established by Missy's verdict and the defendants were jointly and severally liable for the entire amount. Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 178, 290 N.W.2d 276 (1980). Thus the only question necessary for the contribution claims was the allocation of negligence question. The jury's answers to this question established the contribution rights and obligations of the defendants and Peter and Sue Giese based on the proportion of negligence attributed to each. The dissents to the damage question are thus immaterial to the contribution claims because of Missy's right to a full recovery. The issues of causal negligence and the amount of damages were tried in the same lawsuit as the contribution claims for procedural convenience and judicial economy, Johnson v. Heintz, 73 Wis. 2d at 295.\n*405 [5]\nMontgomery Ward cannot complain about dissents to a question that could have been answered by a different jury in a separate action. Ten jurors agreed on the allocation of comparative contribution and therefore the verdict was also valid under the five-sixths rule as to the contribution claims of the defendants.\n[6]\nThe final claim in the verdict that must be examined is the parents' claim for future medical expenses and loss of Missy's society and companionship due to Missy's injuries. Such a claim is derivative in the sense that it depends on whether Missy's injuries are compensable, White v. Lunder, 66 Wis. 2d 563, 574, 225 N.W.2d 442 (1975), but must be proved separately from the underlying claim in that distinct damages must be shown and the parents' negligence in causing the child's injuries may reduce or bar recovery under our comparative negligence statute.[9]\n[7]\nThus, there must be agreement by at least ten jurors as to both the allocation of negligence and the amount of the parents' damages. As stated earlier, two jurors dissented to the comparison of negligence. A third juror dissented from the award of damages to the parents. Therefore, because only nine jurors agreed as to causal negligence, comparison and damages, the verdict is defective as to the parents' claim. However, the parents in their motion after verdict before the trial court, and in oral argument before this court, agreed to waive their right to collect these damages if judgment was entered on the first verdict. Such a waiver is clearly permissible, Krueger v. Winters, 37 Wis. 2d at 204.[10] Therefore, because *406 the verdict was valid under the five-sixths rule, the plaintiffs have a constitutional right to entry of judgment on this verdict unless the trial court order granting a new trial was supported by another ground independent of the five-sixths rule.\nMontgomery Ward contends that the trial court also ordered a new trial on the separate ground that a second trial was required in the interest of justice. The court of appeals agreed, finding that the trial court ordered a new trial in the interest of justice because the evidence did not support the jury's allocation of negligence and the \"strong likelihood\" that the jury was trying to control the outcome rather than making factual determination based on the evidence. We believe that Montgomery Ward and the court of appeals have misread the trial court's memorandum decision and order.\nFollowing the trial court's discussion of the dissents to the verdict, the court stated:\n\"Even without the problem of dissenting jurors, the Court would have to find as a matter of law that the negligence of Michael, the operator of the riding mower, exceeded the negligence of Missy Giese's parents and also exceeded the negligence of Montgomery Ward. A new trial to determine the amount of negligence attributed to each negligent party is within the contemplation of all or at least most of the parties, and within the motions of some. While the apportionment of negligence is within the province of the jury, and the suggestions of counsel are in no way binding upon the jury and can be considered only to the extent that they are helpful, it is worth noting that counsel for Missy Giese suggested no negligence on the part of the parents, while counsel for the Shanahans suggested 20%. In other words, no one so far as the Court can recall, contended that the Gieses should be held to a degree of negligence at the level the jury found.\n\"If the Court were making determination for a new trial solely in the interest of justice, the Court would proceed to set forth in greater detail the reasons for its *407 order. Such reasons are readily recitable even though the respects of negligence differ for the various parties. The only rationale for the 38% figure selected by the jury is their disagreement with the attempt of Mrs. Giese to establish that Missy was to have supper at the Shanahan residence. Even if the jury accepted the Shanahan version rather than that of Mrs. Giese, which is very likely, and even if they challenged Mrs. Giese's credibility because of this, there would be no basis under the undisputed evidence in this case for allocating an amount of negligence to the parents which in any way was comparable to that of the operator of the riding mower.\" (Emphasis supplied.)\nThe order granting a new trial stated in pertinent part:\n\"(1) That Motion (4) of defendant Montgomery Ward, Inc. to set aside the verdict and grant a new trial on the grounds that the verdict is contrary to law or to the weight of evidence is granted insofar as the same relates to the issues of negligence between the parties and a new trial is granted as to all parties on all issues of negligence.\" (Emphasis supplied.)\n[8]\nThe decision and order when read together clearly indicate that the trial court specifically chose not to order a new trial in the interest of justice. Rather they demonstrate that the trial court considered the interest of justice ground but rejected it on the belief that there were other sufficient grounds on which to grant a new trial — the verdict was contrary to law or the weight of the evidence. When a trial court orders a new trial in the interest of justice, as opposed to the other statutory grounds, it is required to state in detail its reasons for doing so. Krolikowski v. Chicago & N.W. Trans. Co., 89 Wis. 2d 573, 579-80, 278 N.W.2d 865 (1979); Leatherman v. Garza, 39 Wis. 2d 378, 385-86, 159 N.W.2d 18 (1968). The trial court specifically stated it would not do so.\n*408 [9]\nThus, we conclude that the second ground the trial court relied on in ordering a new trial was that the verdict was against the weight of the evidence based on its determination that Michael Shanahan's negligence exceeded the negligence of Missy's parents and Montgomery Ward as a matter of law. The court of appeals, believing that the trial court granted a new trial in the interest of justice, applied the standard of review that the trial court's order for a new trial will be sustained absent a clear abuse of discretion. While this is clearly the correct standard to be applied when a trial court orders a new trial in the interest of justice, Krolikowski, 89 Wis. 2d at 580, the trial court did not order a new trial on this ground. Rather the standard of review that we must apply when the trial court finds that the jury's findings were incorrect as a matter of law is that the verdict must be approved if there is any credible evidence which supports it:\n\"The proper test to be applied in determining whether a jury's answer should be changed is `whether there was any credible evidence which supported the jury's answer.' Home Savings Bank v. Gertenbach (1955), 270 Wis. 386, 392, 71 N.W.2d 347, 72 N.W.2d 697; Wintersberger v. Pioneer Iron & Metal Co. (1959), 6 Wis. 2d 69, 94 N.W.2d 136.\n\"`There is credible evidence which, when reasonably viewed, fairly admits an inference supporting the jury's findings. That being true, neither the trial court nor this court has authority to change the jury's findings. Auster v. Zaspel, 270 Wis. 368, 71 N.W. (2d) 417.' Paul v. Hodd (1955), 271 Wis. 278, 280, 73 N.W.2d 412.\n\"`A trial court is not justified in setting aside a verdict either in whole or in part and directing the judgment if there is credible evidence to support the findings. The crucial question is whether the evidentiary facts are practically without dispute, whether these facts reasonably support the jury's conclusion of ultimate fact drawn *409 therefrom. DeKeyser v. Milwaukee Automobile Ins. Co. (1941), 236 Wis. 419, 424, 295 N.W. 755.\n\"`. . .'\n\"While this court has said that it gives great weight to a trial court's decision that a verdict must be changed as a matter of law, Rogers v. Brown (1910), 143 Wis. 472, 128 N.W. 64; Kansas v. Chicago, M. & St. P. Ry. (1923), 180 Wis. 49, 192 N.W. 383, the action of the trial court will be set aside on appeal if there is credible evidence which supports the verdict. Delvaux v. Kewaunee, G.B. & W. Ry. (1918), 167 Wis. 586, 167 N.W. 438.\" Leatherman v. Garza, 39 Wis. 2d at 386-87.\n[10]\nThe trial court found that the apportionment of negligence was unsupported by the evidence. We begin our review of the evidence with the well-established principle that \"[a]pportionment of negligence is a matter peculiarly within the province of the jury.\" DeGroff v. Schmude, 71 Wis. 2d 554, 562, 238 N.W.2d 730 (1976). Further, the trial court and this court can not reject the apportionment merely because we disagree or would have reached a different conclusion. Id. at 563.\nA careful review of the evidence presented at the first trial leads us to the conclusion that there was credible evidence to support the jury's allocation of negligence. The jury allocated 52 percent to Montgomery Ward, 38 percent to Missy's parents, and 10 percent to Michael. It was the small proportion allocated to the operator of the lawn mower that caused the trial court to conclude that the allocation was unsupported by the evidence. While we are also surprised at the low proportion assigned to Michael, based on the record we cannot say, viewing the evidence in the light most favorable to the verdict, that the jury was wrong as a matter of law.\nThe evidence shows that Michael was operating the mower as it was designed to be operated: in reverse with the blade engaged. Michael was looking in the direction he was mowing at all times, except for the moment before *410 the collision occurred when he turned forward to check his position. He testified that he was unaware of Missy's presence until a split-second before the accident. The jury may have concluded, based on the evidence, that in the exercise of reasonable care he should not have known of her presence because Missy was only in the yard a short time before the collision. Thus the jury may have concluded that Michael's negligent conduct was slight when compared with the conduct of Missy's parents who were responsible for Missy's safety, and Montgomery Ward, which manufactured the lawn mower.\nThe evidence as to the parents was conflicting as to whether they had responsibility for Missy's safety and whether they knew the lawn mower was being operated nearby. Assuming the jury discredited the parents' testimony in favor of Dorothy Shanahan, the jury could have concluded that Sue Giese had agreed to \"keep an eye on the children,\" including Missy, and that nevertheless she allowed Missy to leave the tavern unattended. Michael testified that he saw the Gieses arrive while he was filling the gas tank of the lawn mower, and Bernard Shanahan testified that the noise from the mower was audible in the tavern. Thus the jury may have reasonably concluded that the Gieses allowed Missy to leave the tavern when they knew that a lawn mower was being operated nearby.\nThere was also substantial evidence presented that Montgomery Ward negligently designed the lawn mower. Two experts testified that the mower's design was dangerous because it allowed, and even encouraged, the rider to operate the mower in reverse with the blade engaged. They testified that this method of operation lessened the rider's visibility and ability to operate the controls thus making the mower susceptible to the type of accident involved here. Evidence was introduced demonstrating that the manufacturer knew of the danger inherent in *411 allowing the mower to be operated in reverse based on engineering publications warning of the frequency of \"back over\" accidents and the manufacturer's knowledge of three similar accidents involving the same type of lawn mower. Evidence was further presented that a design prohibiting the blade from engaging while in reverse was functional, technologically feasible and inexpensive. Montgomery Ward's defense to this evidence was essentially that most lawn mowers cut grass while in reverse, that consumers wanted lawn mowers to operate in this fashion, and that its design was safe because it gave the operator the choice of whether he or she wished to engage the blade while in reverse. Montgomery Ward also presented evidence that the mower met or exceeded all applicable standards, but the plaintiffs rebutted this with evidence that these standards did not relate to the design defect at issue here.\n[11]\nBased on all the evidence presented at trial, there was credible evidence supporting the jury's allocation of substantial amounts of negligence to the manufacturer and Missy's parents. As to Montgomery Ward, the jury could properly conclude that the manufacturer, which had knowledge of the danger of \"back over\" accidents caused by reverse operation of the lawn mower, was more negligent than the fourteen-year-old operator who was using the lawn mower as it was designed to be operated. As to the parents, the jury could properly conclude that Peter and Sue Giese, who were responsible for Missy's safety, knew of the presence of the lawn mower and yet left her unattended, were more negligent than the operator of the lawn mower who was unaware that Missy was nearby. While we would have come to a different conclusion as to the proper allocation, there is credible evidence to support the jury's findings and therefore we can not say the findings must be rejected *412 as a matter of law. It was therefore error for the trial court to order a new trial on the ground that the jury's findings were not supported by the credible evidence as a matter of law.\nMontgomery Ward contends that the trial court also ordered a new trial based on several questions the jury asked during its deliberations. These questions inquired into whether Missy's award would be reduced by attorneys' fees and whether the percentage of negligence allocated to Missy's parents would affect her recovery. The trial court correctly told the jury that it should not be concerned with the answers to these questions. The trial court, in its decision, noted that it \"considered\" these questions in ordering a new trial believing that \". . . there is a strong likelihood that in the apportionment of negligence the jury was disregarding some of the instructions and attempting to control the outcome. . . .\" The court of appeals felt that this was one of the trial court's reasons for ordering a new trial in the interest of justice. We disagree.\n[12]\nAs we stated earlier, the trial court's memorandum decision and order clearly indicate that the court did not order a new trial in the interest of justice but rather because the verdict was contrary to law and the evidence. We view the trial court's reference to these questions as support for its holding that the apportionment was improper as a matter of law. We have held that this holding was error because there was credible evidence to support the verdict and therefore the questions asked by the jury do not provide an adequate ground for ordering a new trial.\nThe final ground on which the trial court based its order granting a new trial was that error occurred in the trial. In motions after verdict, Montgomery Ward asked to be dismissed from the law suit, contending that *413 the court erred in submitting both strict liability and negligence to the jury, and that it can not be found negligent for designing and manufacturing a product the jury found not to be defective. The trial court refused to dismiss Montgomery Ward from the action but held that it was error to submit both theories, stating:\n\"It seems to be generally conceded that the burden in establishing a strict liability case is less than the burden in establishing negligence. If this is the case, it seems inconsistent to submit the negligence questions after the strict liability questions in the verdict. The Wisconsin Supreme Court has indicated that there are some cases where the trial court should not submit both strict liability and negligence. I am inclined to conclude that this is one of those cases, and that the double submission was very probably confusing to the jury.\"\nThe court therefore concluded that a new trial should be ordered so that the negligence issues could be redetermined.\n[13]\nThe court of appeals rejected this as a valid ground for ordering a new trial, stating that \"[a] product may create a risk of foreseeable harm, and therefore have been negligently designed, without being unreasonably dangerous for purposes of strict liability.\" We agree.\nThis court has on several occasions specifically rejected the contention that a jury's finding of causal negligence but no strict liability in tort, as adopted in Dippel v. Sciano, 37 Wis. 2d 443, 155 N.W.2d 55 (1967), is inconsistent. Fischer v. Cleveland Punch & Shear Works Co., 91 Wis. 2d 85, 98-99, 280 N.W.2d 280 (1979); Howes v. Deere & Co., 71 Wis. 2d 268, 273, 238 N.W.2d 76 (1976); Greiten v. La Dow, 70 Wis. 2d 589, 603-04, 235 N.W.2d 677 (1975).\nDual submission of these theories is appropriate when evidence is presented to the trier of fact as to both *414 theories. Howes, 71 Wis. 2d at 273. The jury's answers to the strict liability questions are completely independent of and irrelevant to its answer to the negligence questions. The record contains evidence that the lawn mower was in a defective condition unreasonably dangerous to users and bystanders, and that Montgomery Ward was negligent in manufacturing and designing the product. Therefore the submission of the two theories was not error and the jurors' negative answers to strict liability in tort questions did not render its affirmative answers to the negligence questions invalid.\nBecause we conclude that the trial court had insufficient grounds to overturn the jury's verdict in the first trial, we hold that the order granting a new trial must be reversed. We therefore do not reach the issue raised by the parties regarding the second trial. The only issue remaining on review as to the first trial and verdict is whether the trial court was correct in holding Bernard Shanahan vicariously liable for his son's negligence.\nThe trial court directed a verdict in the first trial concluding, as a matter of law, that Michael was acting as the \"agent\" of Bernard Shanahan and thus Bernard was vicariously liable for Michael's negligence.[11] The court of appeals affirmed, finding that Michael was Bernard's servant. Bernard Shanahan contends that the issue of whether a master-servant relationship existed between him and his son was not raised by the pleadings and that as a matter of law such relationship did not exist.\nThe issue of the existence of a master-servant relationship was clearly not raised in the first trial. Rather, the plaintiffs, Montgomery Ward and the trial court *415 proceeded solely on the basis that Michael was Bernard's \"agent.\" As was thoroughly discussed by this court in Arsand v. City of Franklin, 83 Wis. 2d 40, 264 N.W.2d 579 (1978), the distinction between being an \"agent\" and a \"servant\" is crucial to the determination of whether a principal is vicariously liable. An agent may or may not be a servant and, except under certain obligations, the principal is not vicariously liable for the negligent physical conduct of an agent who is not a servant. Id. at 48. However, \"[u]nder the doctrine of respondeat superior, a master can be held liable for the physical harm caused to third persons by the torts of his servant.\" Id. at 45. Thus in order for Bernard to be liable for Michael's negligence the master-servant relationship must exist. Although not raised in the trial court, the issue was addressed by the court of appeals and raised by the parties before this court and we will consider the issue on review in the exercise of our discretion.[12]\nA \"servant,\" as defined by this court, is \"one employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control.\" Arsand, 83 Wis. 2d at 45-46, quoting Heims v. Hanke, 5 Wis. 2d 465, 468, 93 N.W.2d 455 (1958). The facts pertinent to the issue of whether Michael was Bernard's servant are undisputed. At the time of the accident Michael was operating the lawn mower that was owned by Bernard and he was performing this task at his father's express direction. The accident occurred while Michael was mowing the lawn in front of the house, which was located next to the tavern. The tavern *416 and the home were jointly owned by Bernard and Dorothy Shanahan.\nBernard Shanahan argues that his son's actions in mowing the lawn pursuant to his direction were not for his benefit and that this court should hold that a minor child who is performing a domestic chore can not be the parent's servant. The court of appeals correctly and succinctly rejected this argument, stating:\n\"The domestic relationship does not preclude a finding of liability, however. If a master-servant relationship exists, it is immaterial that the act was performed by a child rather than a stranger. Zeidler, 191 Wis. at 383, 211 N.W. at 142.\n\"To act as master, the parent must obtain some benefit or advantage from an activity undertaken by the child at the request or expressed desire of the parent. Burant, 234 Wis. at 388, 291 N.W. at 391. It is irrelevant that the benefit to the parent results from the child's performing a domestic chore. Compare Heims v. Hanke, 5 Wis. 2d 465, 83 N.W.2d 455 (1958) (trial court could conclude uncle was liable as master for negligence of his unpaid minor nephew who was helping wash the uncle's automobile). Although cases have said that to impose liability upon the parent, the child must be acting in the parent's `business,' Papke v. Haerle, 189 Wis. 156, 158, 207 N.W. 261, 262 (1926); Hopkins v. Droppers, 184 Wis. 400, 404, 198 N.W. 738, 739 (1924), the business need not be an undertaking for profit but embraces `any benefit which may inure' to the parent. Zeidler, 191 Wis. at 383, 211 N.W. at 142. The definition of master adopted by Arsand, supra, imposes no requirement that the servant be engaged in a money-making business for the master.\"\n[14]\nUnder the undisputed facts and the law as correctly stated by the court of appeals, Michael was acting as Bernard's servant at the time of the accident. This finding does not rest on the domestic relationship between *417 Bernard and Michael, or the fact that the activity can be labeled a \"domestic chore.\" The finding of a master-servant relationship rests on the fact that Bernard directed Michael to perform the task, he had the right to control Michael's performance of the task and, Bernard, as owner of the home and tavern, benefited from its performance. We therefore affirm the finding of the trial court and the court of appeals that Bernard Shanahan was vicariously liable for his son's negligence in operating the lawn mower thereby causing injury to Missy.\nWe conclude that the judgment entered on the second verdict should be reversed and direct that judgment be entered on the first verdict in favor of Missy and against Montgomery Ward and Michael and Bernard Shanahan. Judgment should also be entered, based on the first verdict, in favor of Peter and Sue Giese on their claim for past medical expenses against Montgomery Ward. Such judgment shall include interest to Missy Giese on the damage award in the first verdict from the date of that verdict as directed by the court of appeals. The judgment should also be entered fixing the amount of contribution between the various contribution claimants.\nBy the Court. — The decision of the court of appeals is reversed with directions to enter judgment not inconsistent with this opinion.\nNOTES\n[1] Sec. 891.44, Stats. 1977-78, provides:\n\n\"891.44 Presumption of lack of contributory negligence for infant minor. It shall be conclusively presumed that an infant minor who has not reached the age of 7 shall be incapable of being guilty of contributory negligence or of any negligence whatsoever.\"\n[2] The trial court directed a verdict on the amount of past medical expenses.\n[3] The trial court entered judgment against Dorothy and Bernard Shanahan based on the findings in the first trial that Michael acted as his parents' agent.\n[4] The trial court subsequently ordered judgment in favor of Missy against her parents whom she had not sued. The court of appeals reversed the judgment to this extent.\n[5] The court also modified the judgment to allow Missy Giese interest on the damages established in the first trial from the date of that verdict.\n[6] Bernard Shanahan is included in this grouping because his liability is based on the validity of Missy's claim against Michael. The additional element needed to support Missy's claim against Bernard Shanahan is vicarious liability which was found to exist as a matter of law by the court.\n[7] See note 1, supra.\n[8] As will be discussed infra, the question was also necessary to determine the liability of the defendants to Peter and Sue Giese.\n[9] Sec. 895.045, Stats.\n[10] This waiver does not affect their right to collect past medical expense because the amount of past medical expense was determined by the trial court as a matter of law.\n[11] The jury found that Michael was also the \"agent\" of Dorothy Shanahan. The court of appeals reversed the judgment entered on this basis against Dorothy, finding that the master-servant relation did not exist between Dorothy and Bernard. This issue has not been raised in this review.\n[12] We have chosen to exercise this discretion because, although the terms \"agent\" and \"servant\" are distinct concepts in law with different legal consequences, they are often incorrectly used synonymously and interchangeably. Arsand, 83 Wis. 2d at 55-57.\n\n", "ocr": false, "opinion_id": 1614076 } ]

[ "887 F.2d 242" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/887/887.F2d.242.87-1719.87-1716.html", "author_id": null, "opinion_text": "887 F.2d 242\n 9 U.C.C. Rep. Serv. 2d (West) 1238\n BILL'S COAL COMPANY, INC., a corporation; William D. Patch;Savanna Lee Patch; Lloyd F. Burkdoll; Anna Faye Burkdoll;John E. Burkdoll; Virginia L. Burkdoll, and all thegeneral partners of and d/b/a Cherokee Coal Company, ageneral partnership, Plaintiff-Appellants/Cross-Appellees,v.BOARD OF PUBLIC UTILITIES OF SPRINGFIELD, MISSOURI d/b/aCity Utilities, and City of Springfield, Missouri,Defendants-Appellees/Cross-Appellants.\n Nos. 87-1716, 87-1719.\n United States Court of Appeals,Tenth Circuit.\n Oct. 6, 1989.\n \n George P. Coughlin (Paul Scott Kelly, Jr., with him on the briefs), of Gage & Tucker, Kansas City, Mo., for plaintiffs-appellants/cross-appellees.\n Mark E. Gardner of Hall, Ansley, Carmichael & Gardner, Springfield, Mo. (Randell D. Wallace of Hall, Ansley, Carmichael & Gardner, Springfield, Mo., Stan P. Doyle of Doyle & Harris, Tulsa, Okl., and Turner White, III, Springfield, Mo., with him on the briefs), for defendants-appellees/cross-appellants.\n Before McKAY, LOGAN, and TACHA, Circuit Judges.\n McKAY, Circuit Judge.\n \n \n 1\n This diversity case involves a contract dispute between the Board of Public Utilities of Springfield, Missouri d/b/a City Utilities and the City of Springfield, Missouri (collectively the \"purchaser\"), and Bill's Coal Company, Inc. and Cherokee Coal Co. (collectively the \"sellers\"). The long, tortured, procedural history of this case is recounted in our prior opinion, Bill's Coal Co. v. Board of Public Utilities of Springfield, 682 F.2d 883, 883-85 (10th Cir.1982), cert. denied, 459 U.S. 1171, 103 S. Ct. 816, 74 L. Ed. 2d 1014 (1983). A brief reprise of pertinent facts provides the setting for this appeal.\n \n \n 2\n In 1970, Bill's Coal agreed to supply purchaser with its coal requirements on a cost-plus basis through 1980 and possibly beyond. The coal contract was assigned to Cherokee Coal in 1976, although Bill's Coal continued to operate the mines. In 1978 spot coal prices began to drop and the relationship between the parties deteriorated. After the parties were unable to resolve a dispute involving the administration of the contract's cost-plus features, purchaser filed suit against sellers, seeking a declaration as to the propriety of their disallowance of certain cost and expense items.\n \n \n 3\n Ultimately, purchaser questioned the legality of the coal contract, withheld payments to sellers, and stopped taking deliveries of coal. However, sellers obtained a preliminary injunction requiring purchaser to perform the contract. Before a hearing on purchaser's motion to dissolve the injunction, the parties settled. The settlement was in the form of a final amendment to the contract, executed in 1979 (hereinafter the \"1979 amendment\"). The 1979 amendment shortened the contract from 1989 to 1985. In addition, the 1979 amendment created a termination clause in the contract. If any noncontract company was able to meet the contract specifications and submit a bid fifteen to twenty-five percent under sellers' price, purchaser could end the contract before 1985. Pursuant to this clause, purchaser attempted to terminate the contract in 1980, 1981, and 1982.\n \n \n 4\n In March of 1980 purchaser sought a declaratory judgment of nonliability in the federal district court of Missouri with respect to its 1980 termination. Sellers filed suit in the federal district court of Oklahoma claiming purchaser breached and repudiated the contract in 1980 through wrongful termination. Sellers were granted a preliminary injunction by the Oklahoma court, requiring purchaser to perform the contract pending litigation. After the Oklahoma court issued the preliminary injunction, it transferred sellers' action to the Missouri court (where purchaser's action was pending). In December of 1980, the Missouri court transferred both cases back to Oklahoma where they were consolidated for all purposes (the \"1980 case\"). The parties submitted the 1980 case to the Oklahoma court, without a jury, in three phases. Phase I involved the interpretation of the 1979 Amendment to the coal contract. Phase II involved breach and liability issues. Phase III involved damages.\n \n \n 5\n In Phase II purchaser sought a declaration that it had properly terminated the contract by contracting with a qualified bidder in each of the years 1980, 1981, and 1982. Purchaser also sought to cancel the contract because of sellers' breach, repudiation, and \"bad faith.\" The district court, in its Phase II ruling, held that sellers had breached and anticipatorily repudiated the contract. Based on that conclusion, injunctive relief in the 1980 case was dissolved. Sellers filed an immediate appeal to this court from the dissolution ruling. This court stayed the district court's order dissolving injunctive relief pending the appeal. Bill's Coal Co., 682 F.2d 883. We found the district court erred in its conclusions of law in its Phase II opinion and ordered the injunction reinstated. Id. at 886. The case was remanded to determine sellers' damages. We expressed no view on the trial court's other rulings in Phase I or II.\n \n \n 6\n On remand, the district court applied Missouri law to defeat an award of attorney's fees, applied Uniform Commercial Code (UCC) Sec. 2-708(1) to measure damages by the difference between the contract price and the market price at the time and place of tender, and denied interest charges and other expenses to sellers under UCC Sec. 2-710. The court also denied reimbursement for purchaser's BTU adjustments and for the mistake in overpayment of depreciation credit.\n \n \n 7\n Sellers now appeal the district court's refusal to apply the lost profit damage measure of section 2-708(2), the district court's application of Missouri law to defeat an award of attorney's fees, and the court's denial of interest charges and other expenses under UCC Sec. 2-710. Sellers also appeal the district court's denial of reimbursement for purchaser's BTU adjustments and for the mistaken overpayment of depreciation credit. Purchaser cross-appeals, claiming error in the district court's determination of the market price for coal on sellers' spot purchases. They also claim error in the court's failure to find that sellers breached and repudiated the contract through bad faith performance and enforcement and through shipments of noncompliance coal. Finally, purchaser appeals the district court's grant of summary judgment against them on their antitrust claim. We deal with each of these issues in turn.\n \n I. Standard of Review\n \n 8\n Sellers and purchaser challenge the trial court's findings of fact and of law. We do not disturb the district court's findings of fact unless they are \"clearly erroneous.\" Fed.R.Civ.P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948); Amoco Production Co. v. Western Slope Gas Co., 754 F.2d 303, 309 (10th Cir.1985). A finding of fact will not be reversed as clearly erroneous unless \"it is without factual support in record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm conviction that a mistake has been made.\" LeMaire v. United States, 826 F.2d 949, 953 (10th Cir.1987). The district court need not be \"correct\" in its finding, but its conclusion must be \"permissible\" in light of the evidence. Volis v. Puritan Life Ins. Co., 548 F.2d 895, 901 (10th Cir.1977).\n \n \n 9\n We review issues of law, decided by the district court, de novo. In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir.1988). The standard of review on appeal is the same as that which would be applied by the trial court in making its initial ruling. United States v. Ortiz, 804 F.2d 1161, 1164 (10th Cir.1986). An appellate court is not constrained by a trial court's conclusions of law. State Distrib., Inc. v. Glenmore Distilleries, 738 F.2d 405, 412 (10th Cir.1984).\n \n II. Lost Profit Damage Measure\n \n 10\n The district court determined that UCC Sec. 2-708(1)1 applied in determining the proper measure of damages. The damages provided in section 2-708(1) are the difference between the market price and the contract price of the goods. UCC Sec. 2-708(2) provides for damages up to the amount of the lost profits from the contract which has been breached. Sellers fall into section 2-708(2) only if they can demonstrate that they would receive inadequate damages under section 2-708(1). Section 2-708(2) is basically designed for specific categories of sellers, such as lost volume sellers, component sellers, and jobber sellers. See J. White and R. Summers, Uniform Commercial Code, 3d ed. (1988) at 356-65, for a full exposition on sellers that come under section 2-708(2). Sellers here argued that they were entitled to receive section 2-708(2) damages. Sellers have the burden of proving that they are lost volume sellers and thus fall under section 2-708(2). Snyder v. Herbert Greenbaum & Associates, Inc., 38 Md.App. 144, 380 A.2d 618 (1977); National Controls, Inc. v. Commodore Business Machines, Inc., 163 Cal. App. 3d 688, 209 Cal. Rptr. 636 (1st Dist.App.1985); and Lake Erie Boat Sales, Inc. v. Johnson, 11 Ohio App. 3d 55, 463 N.E.2d 70 (1983). A lost volume seller is one who has the capacity to perform the contract which was breached as well as other potential contracts, due to their unlimited resources or production capacity. Although sellers seek to portray the analysis of lost volume seller as a question of law subject to de novo review (sellers characterize their appeal as being limited to \"questions of law\"), it is a decision dictated by the underlying facts and thus ultimately a question of fact reviewed under the clearly erroneous standard.2 Even where there is a mixed question of law and fact that involves primarily a factual inquiry, the \"clearly erroneous\" standard is appropriate. Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir.1986).\n \n \n 11\n Evidence presented at trial indicated that sellers did not have the production capacity to perform purchaser's contract as well as to sell to other potential purchasers. During the years following 1980, sellers often fell behind in shipping to purchaser the amount of coal required under the contract. In fact, one of the two principal mines on which sellers relied for shipments to purchaser was out of production for several months during this period. In order to meet purchaser's needs, sellers found it necessary to purchase coal from other suppliers. In addition, sellers claimed in the district court that they had lost sales to other customers because it was necessary to ship coal to purchaser from the Porter and Chetopa mines. This contention is in direct conflict with sellers' position that it had the capacity to perform the contract in dispute and also to sell to third parties. Mr. Hirlinger, sellers' president, admitted that sellers were able to make the sale of 11,609 tons of coal to another customer only because purchaser ceased accepting coal from sellers. Based on this evidence, the trial court found that the sellers did not have the ability to perform the contract in dispute and sell to potential third parties at the same time. Based on our review of the evidence, the district court was not clearly erroneous in its finding that sellers were not lost volume sellers, and thus section 2-708(1) was the proper measure of damages.\n \n III. Attorney's Fees\n \n 12\n Sellers contend that the Oklahoma district court, sitting in diversity, erroneously applied Missouri law on the issue of attorney's fees. They argue that the trial court should have applied Oklahoma's attorney fee statute because attorney's fees are purely procedural and the law of the forum (Oklahoma) governs.3 However, the law in this circuit governing attorney's fees is clear. In Matter of King Resources Co., 651 F.2d 1349, 1353 (10th Cir.1981), we held that \"[t]hus in diversity cases generally, and certainly in this circuit, attorney fees are determined by state law and are substantive for diversity purposes.\" The substantive law of this case is Missouri law.4 Therefore, the trial court properly applied Missouri law in determining whether attorney's fees were proper. We affirm the trial court's denial of attorney fees under Missouri law.\n \n IV. Interest and Other Expenses\n \n 13\n Sellers argue they were entitled to recover interest expenses under UCC Sec. 2-710.5 They argue that the district court erred in interpreting \"Missouri law\" by holding that these charges did not qualify as incidental damages under section 2-710. The district court held that in this case the expenses claimed by sellers were not properly recoverable under section 2-710. We agree. Incidental damages include commercially reasonable expenses incurred in stopping delivery in the transportation, care, and custody of goods after the buyer's breach. The purpose of section 2-710 is to reimburse the seller for expenses reasonably incurred as a result of the buyer's breach. Here, the sellers' interest expenses were incurred as the result of preparing for this litigation. The trial court did not err in finding litigation costs and accounting fees not recoverable under section 2-710. Such expenses are not incidental damages under section 2-710.\n \n \n 14\n The sellers alternatively argue that they are entitled to the recovery of prejudgment interest under Oklahoma law. However, Missouri law governs the issue of remedies, and the Supreme Court of Missouri has held that the prevailing party may recover pre-judgment interest only in certain circumstances. Denton Constr. Co. v. Missouri State Highway Comm'n, 454 S.W.2d 44 (Mo.1970). Before prejudgment interest can be awarded, the claim must be liquidated or readily ascertainable by reference to recognized standards. The sellers' claim here has not been liquidated. In addition, the claim is not readily ascertainable. The sellers provided the trial court with several different calculations of damages. Purchaser contested all of sellers' calculations and provided alternative measures. Neither party had agreed to a specific dollar value of damages. Thus, the claim is not readily ascertainable by reference to a recognized standard. Therefore, we hold that the district court properly determined that sellers were not entitled to interest.\n \n V. BTU Adjustments\n \n 15\n Sellers argue that BTU adjustments should not have been allowed purchaser, based on sellers' test results which demonstrated that purchaser was not entitled to the adjustments. The parties here agreed that there would be an adjustment for all shipments of coal which fell below 11,000 BTU. The parties then entered into a course of performance with respect to the BTU adjustments which allowed the purchaser to make adjustments based on its own test results. The district court refused to second-guess that course of performance. Sellers had the burden of persuading the district court that they were entitled to a refund. Given the course of performance, we cannot find the district court clearly erroneous in refusing to grant sellers reimbursement for purchaser's BTU adjustments.\n \n VI. Purchaser's Cross-Appeal\n \n 16\n Purchaser, in its cross-appeal, claims error in the district court's failure to find that the sellers breached and repudiated the contract through bad faith performance. Purchaser also claims that the district court erred in failing to find breach and repudiation by the sellers through their shipments of allegedly noncompliance coal. We do not find these factual conclusions of the district court to be clearly erroneous.\n \n \n 17\n During the liability phase (Phase II) of this litigation, purchaser presented two theories to the trial court on the sellers' liability. The first theory was that the sellers had breached and anticipatorily repudiated the coal contract in 1979, by asserting an overly literal contract interpretation that it knew did not reflect the parties' intent. This was purchaser's \"bad-faith\" breach theory. The other theory advanced by purchaser was that sellers had breached and repudiated the coal contract by shipping deficient coal.\n \n \n 18\n This court has already held that an assumed bad-faith assertion \"of a particular interpretation of a termination clause is neither a failure to perform contract obligations (breach) nor an indication that those obligations will not be performed in the future (repudiation).\" Bill's Coal, 682 F.2d at 886. The sellers did not interfere with the performance of either party under the coal contract, and purchaser gained no right to cancel or otherwise refuse performance of the coal contract. Id. at 885. This holding disposes of purchaser's first breach theory.\n \n \n 19\n Purchaser now argues that this court left open the possibility that, after remand, purchaser could present evidence which would show that additional sellers' conduct amounted to a breach. Purchaser now argues that sellers breached the coal contract based on the \"totality of the circumstances.\" Purchaser's basic argument is that sellers shipped nonconforming coal to purchaser on various occasions and that these shipments constituted a \"substantial impairment\" of the contract which resulted in either a general breach, a breach of warranty or a repudiation of the coal contract.\n \n \n 20\n The case law indicates that the question of \"substantial impairment\" under the Code presents a question of fact. Cherwell-Ralli, Inc. v. Rytman Grain Co., Inc., 180 Conn. 714, 433 A.2d 984, 986 (1980); Holiday Mfg. Co. v. B.A.S.F. Systems, Inc., 380 F. Supp. 1096, 1102 (D.Neb.1974); Stinnes Interoil, Inc. v. Apex Oil Co., 604 F. Supp. 978, 981 (S.D.N.Y.1985). Purchaser frames the coal quality issue in terms of whether some of the sellers' shipments of nonconforming coal constituted a repudiation of the whole contract under UCC Sec. 2-610. However, because the coal contract is an installment contract, the question of breach or repudiation falls within the confines of section 2-612.6 Moreover, the Official Comments to section 2-610 emphasize that issues of nonconformity to contract specifications are handled in the Code section dealing with installment contracts. UCC Sec. 2-610, Official Comment 1. The issue, as properly stated under section 2-612(3), is whether a \"non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract\" so as to constitute a breach of the whole contract. The Official Comments to section 2-612(3) expressly state that this subsection \"is designed to further the continuance of the contract\" and that \"[w]hether the non-conformity in any given installment justifies cancellation as to the future depends, not on whether such non-conformity indicates an intent or likelihood that the future deliveries will also be defective, but whether the non-conformity substantially impairs the value of the whole contract.\" UCC Sec. 2-612, Official Comment 6. In Phase II, the district court found that \"[s]ellers tried to meet the contract specifications on every load of coal shipped to Purchaser and never knowingly shipped deficient coal.\" It further found that sellers' occasional failure to meet the contract specifications \"did not rise to the level of substantially impairing the value of the contract.\" The district court then concluded that sellers had not breached or repudiated the coal contract, nor had sellers breached any warranties that might be applicable to the contract.\n \n \n 21\n Purchaser has failed to show that the district court was clearly erroneous in finding that there was no substantial impairment of the value of the coal contract. Purchaser presented no new evidence to the district court after remand that would necessitate a finding of breach on the part of sellers. Accordingly, the district court's ruling on the coal quality issues must be affirmed. See, e.g., Automated Controls, Inc. v. MIC Enterprises, Inc., 599 F.2d 288, 289 (8th Cir.1979).\n \n VII. Antitrust Claim\n \n 22\n Sellers filed a motion for summary judgment with respect to purchaser's antitrust claim. The district court correctly held that the principle of res judicata barred purchaser's attempt to try the claim now because \"based on the stipulation of the parties ... the Missouri Court was to determine all the mutual liabilities of the parties and all issues which arose or could have been brought prior to the date of the order.\" District Court Order, at 6.\n \n \n 23\n Purchaser could have raised its antitrust claim at the time the district court reviewed the enforceability and validity of the 1979 amendment. An examination of the antitrust claim shows that purchaser attacks the twenty-five percent termination clause as being unduly restrictive of competition among coal suppliers. The purpose of the clause and the mutual benefit of long-term coal contracts were referenced and discussed by the district court in its opinion. Nothing that occurred subsequent to the rendition of that judgment changed the fact that purchaser was required to secure a price twenty-five percent lower than sellers' price in order to take sellers out of the coal contract. Purchaser had a full opportunity to litigate its antitrust claim in the earlier case. Therefore, we affirm the district court's grant of summary judgment in favor of sellers.\n \n VIII. Overpayment of Depreciation Credit\n \n 24\n Purchaser, in its brief, states that it does not dispute sellers' claim for the overpayment of depreciation credit. The sellers' requested adjustment of $4,592.00 was apparently overlooked by the district court. We therefore remand with directions for the district court to adjust its judgment by $4,592.00 and enter an appropriate order for payment of the depreciation credit.\n \n \n 25\n AFFIRMED as to all but the overpayment of the depreciation credit. REMANDED to make the necessary adjustment.\n \n \n \n 1\n U.C.C. Sec. 2-708(1). Seller's Damages for Non-acceptance or Repudiation\n (1) Subject to subsection (2) and to the provisions of this Article with respect to proof of market price (Section 2-723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this Article (Section 2-710), but less expenses saved in consequence of the buyer's breach.\n (2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this Article (Section 2-710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale.\n \n \n 2\n The district court's finding was based to a large extent on the credibility of sellers' witnesses. A reversal would require this court to \"second guess\" the district court's evaluation of the credibility of those witnesses and the weight to be given to their testimony\n \n \n 3\n Sellers rely on Toland v. Technicolor, Inc., 467 F.2d 1045 (10th Cir.1972), for the proposition that Oklahoma law applies. In Toland, a diversity case, we applied the Oklahoma attorney fee statute; however, we did so in light of the fact that the alleged oral contract involved in the case was negotiated by telephone by parties in both Oklahoma and California. Thus, Oklahoma had the same number of contacts to the alleged contract as California. In addition, we concluded that no contract in fact existed. Thus, the law of the forum governed the award of attorney's fees\n \n \n 4\n The parties agreed that Missouri law governed substantive issues\n \n \n 5\n U.C.C. Sec. 2-710. Seller's Incidental Damages\n Incidental damages to an aggrieved seller include any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer's breach, in connection with return or resale of the goods or otherwise resulting from the breach.\n \n \n 6\n U.C.C. Sec. 2-612. \"Installment Contract\"; Breach\n (1) An \"installment contract\" is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even though the contract contains a clause \"each delivery is a separate contract\" or its equivalent.\n (2) The buyer may reject any installment which is non-conforming if the non-conformity substantially impairs the value of that installment and cannot be cured or if the non-conformity is a defect in the required documents; but if the non-conformity does not fall within subsection (3) and the seller gives adequate assurance of its cure the buyer must accept that installment.\n (3) Whenever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole. But the aggrieved party reinstates the contract if he accepts a non-conforming installment without seasonably notifying of cancellation or if he brings an action with respect only to past installments or demands performance as to future installments.\n \n \n ", "ocr": false, "opinion_id": 530345 } ]

[ "2014 Ohio 1474" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/7/2014/2014-ohio-1474.pdf", "author_id": 8145, "opinion_text": "[Cite as State v. Dixon, 2014-Ohio-1474.]\n\n STATE OF OHIO, MAHONING COUNTY\n\n IN THE COURT OF APPEALS\n\n SEVENTH DISTRICT\n\n\nSTATE OF OHIO, )\n ) CASE NO. 13 MA 87\n PLAINTIFF-APPELLEE, )\n )\nVS. ) OPINION\n )\nTHOMAS DIXON, JR., )\n )\n DEFENDANT-APPELLANT. )\n\n\nCHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas\n Court, Case No. 13CR53.\n\n\nJUDGMENT: Affirmed.\n\n\nAPPEARANCES:\nFor Plaintiff-Appellee: Attorney Paul Gains\n Prosecuting Attorney\n Attorney Ralph Rivera\n Assistant Prosecuting Attorney\n 21 West Boardman Street, 6th Floor\n Youngstown, Ohio 44503\n\nFor Defendant-Appellant: Attorney Ronald Yarwood\n 42 North Phelps Street\n Youngstown, Ohio 44503\n\n\nJUDGES:\nHon. Joseph J. Vukovich\nHon. Gene Donofrio\nHon. Cheryl L. Waite\n\n\n Dated: March 31, 2014\n\f[Cite as State v. Dixon, 2014-Ohio-1474.]\nVUKOVICH, J.\n\n\n {¶1} Defendant-appellant Thomas Dixon, Jr. appeals from his conviction and\nsentence entered in the Mahoning County Common Pleas Court for aggravated\nrobbery. Appointed counsel filed a no merit brief and requested leave to withdraw. A\nreview of the case file and brief reveals that there are no appealable issues.\nAccordingly, appointed counsel's motion to withdraw is granted and the conviction\nand sentence are hereby affirmed in all respects.\n Statement of the Case\n {¶2} On January 31, 2013, Dixon was indicted for aggravated robbery in\nviolation of R.C. 2911.01(A)(1)(C), a first-degree felony. Dixon initially pled not guilty\nto the offense, but later, in conjunction with a plea agreement with the state, withdrew\nthat plea and entered a guilty plea to the indicted offense. As part of the plea\nagreement, the state agreed to recommend community control with alcohol abuse\ncounseling. After a plea colloquy, the trial court accepted the guilty plea and the\nmatter was set for sentencing. 03/22/13 Plea Tr. 10.\n {¶3} At the sentencing hearing, the state recommended community control\nwith alcohol abuse counseling and provided reason for such recommendation.\n05/10/13 Sentencing Tr. 2-5. Counsel for Dixon then provided his own reasoning for\nwhy the trial court should follow the recommended sentence. 05/10/13 Sentencing\nTr. 7-10.\n {¶4} After considering the arguments, the trial court did not follow the\nrecommendation. Rather, it imposed a four-year sentence for the conviction.\n05/10/13 Sentencing Tr. 13; 05/14/13 J.E.\n {¶5} Dixon timely appealed. After reviewing the record, appointed counsel\nfiled a no merit brief asking to withdraw because there are allegedly no appealable\nissues.\n Analysis\n {¶6} When appellate counsel seeks to withdraw and discloses that there are\nno meritorious arguments for appeal, the filing is known as a no merit brief or an\nAnders brief. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967). In this\n\f -2-\n\ndistrict, it has also been called a Toney brief. State v. Toney, 23 Ohio App. 2d 203,\n262 N.E.2d 419 (7th Dist.1970).\n {¶7} In Toney, this court set forth the procedure to be used when counsel of\nrecord determines that an indigent's appeal is frivolous:\n 3. Where court-appointed counsel, with long and extensive\n experience in criminal practice, concludes that the indigent's appeal is\n frivolous and that there is no assignment of error which could be\n arguably supported on appeal, he should so advise the appointing court\n by brief and request that he be permitted to withdraw as counsel of\n record.\n 4. Court-appointed counsel's conclusions and motion to withdraw\n as counsel of record should be transmitted forthwith to the indigent, and\n the indigent should be granted time to raise any points that he chooses,\n pro se.\n 5. It is the duty of the Court of Appeals to fully examine the\n proceedings in the trial court, the brief of appointed counsel, the\n arguments pro se of the indigent, and then determine whether or not\n the appeal is wholly frivolous.\n ***\n 7. Where the Court of Appeals determines that an indigent's\n appeal is wholly frivolous, the motion of court-appointed counsel to\n withdraw as counsel of record should be allowed, and the judgment of\n the trial court should be affirmed.\nId. at syllabus.\n {¶8} The no merit brief was filed by counsel on September 23, 2013. On\nOctober 9, 2013, this court informed Dixon of counsel's no merit brief and granted\nhim 30 days to file his own written brief. Dixon did not file a brief. Thus, our analysis\nwill proceed with an independent examination of the record to determine if the appeal\nis frivolous. Our review will address whether the plea was entered knowingly,\nintelligently and voluntarily and whether the sentence complies with the law.\n\f -3-\n\n 1. Plea\n {¶9} Crim.R. 11(C) provides that a trial court must make certain advisements\nprior to accepting a defendant's guilty plea to ensure that the plea is entered into\nknowingly, intelligently and voluntarily. These advisements are typically divided into\nconstitutional rights and nonconstitutional rights. The constitutional rights are: 1) a\njury trial; 2) confrontation of witnesses against him; 3) the compulsory process for\nobtaining witnesses in his favor; 4) that the state must prove the defendant's guilt\nbeyond a reasonable doubt at trial, and 5) that the defendant cannot be compelled to\ntestify against himself. Crim.R. 11(C)(2)(c); State v. Veney, 120 Ohio St. 3d 176,\n2008–Ohio–5200, 897 N.E.2d 621, ¶ 19–21. The trial court must strictly comply with\nthese requirements; if it fails to strictly comply, the defendant's plea is invalid. Veney\nat ¶ 31; State v. Ballard, 66 Ohio St. 2d 473, 477, 423 N.E.2d 115 (1981).\n {¶10} The nonconstitutional rights that the defendant must be informed of are:\n1) the nature of the charges; 2) the maximum penalty involved, which includes, if\napplicable, an advisement on postrelease control; 3) if applicable, that the defendant\nis not eligible for probation or the imposition of community control sanctions, and 4)\nthat after entering a guilty plea or a no contest plea, the court may proceed directly to\njudgment and sentencing. Crim.R. 11(C)(2)(a)(b); Veney at ¶ 10–13; State v.\nSarkozy, 117 Ohio St. 3d 86, 2008–Ohio–509, 423 N.E.2d 1224, ¶ 19–26,\n(postrelease control is a nonconstitutional advisement). For the nonconstitutional\nrights, the trial court must substantially comply with Crim.R. 11's mandates. State v.\nNero, 56 Ohio St. 3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance\nmeans that under the totality of the circumstances the defendant subjectively\nunderstands the implications of his plea and the rights he is waiving.” Veney at ¶ 15,\nquoting Nero at 108. Furthermore, a defendant who challenges his guilty plea on the\nbasis that the advisement for the nonconstitutional rights did not substantially comply\nwith Crim.R. 11(C)(2)(a)(b) must also show a prejudicial effect, meaning the plea\nwould not have been otherwise entered. Veney at ¶ 15, citing Nero at 108.\n {¶11} The trial court's advisement on the constitutional rights strictly complied\nwith Crim.R. 11(C)(2)(c). Dixon was informed and indicated that he understood that\n\f -4-\n\nby pleading guilty he was waiving his right to a jury trial, his right to confront\nwitnesses against him, his right to subpoena witnesses in his favor and his right to\nhave the state prove beyond a reasonable doubt every element of the indicted\noffenses. 03/22/13 Plea Tr. 4-5. He was also informed and stated he understood\nthat if he went to trial he could not be compelled to testify against himself. 03/22/13\nPlea Tr. 5.\n {¶12} Likewise, this trial court’s advisement as to the nonconstitutional rights\nsubstantially complied with Crim.R. 11(C). Dixon was advised that he was charged\nwith aggravated robbery and was informed of the elements of that charge. 03/22/13\nPlea Tr. 3-4. He was informed of the maximum penalty involved for the offense; a\nfirst-degree felony carries a maximum prison term of 11 years, a maximum fine of\n$20,000.00 and a mandatory five-year term of postrelease control following\ncompletion of the sentence. 03/22/13 Plea Tr. 6–8. See also R.C. 2929.14(A)(1)\n(maximum term for a first-degree felony); R.C. 2929.18(A)(3)(a) (maximum fine for a\nfirst-degree felony); R.C. 2967.28(B)(1) (postrelease control). The trial court further\nadvised Dixon that upon accepting the guilty plea it could proceed immediately to\nsentencing. 03/22/13 Plea Tr. 6.\n {¶13} Therefore, since the trial court made all the required advisements there\nare no errors in the Crim.R. 11(C) colloquy and thus, there are no appealable issues\nconcerning the plea. The record confirms that the plea was intelligently, voluntarily,\nand knowingly entered.\n 2. Sentencing\n {¶14} We review felony sentences using both the clearly and convincingly\ncontrary to law and abuse of discretion standards of review. State v. Hill, 7th Dist.\nNo. 13MA1, 2014-Ohio-____, ¶ __; State v. Gratz, 7th Dist. No. 08MA101, 2009–\nOhio–695, ¶ 8. We first determine whether the sentencing court complied with all\napplicable rules and statutes in imposing the sentence to determine whether the\nsentence is clearly and convincingly contrary to law. Gratz at ¶ 8, citing State v.\nKalish, 120 Ohio St .3d 23, 2008–Ohio–4912, 896 N.E.2d 124, ¶ 13–14. Then, if it is\nnot clearly and convincingly contrary to law, we must determine whether the\n\f -5-\n\nsentencing court abused its discretion in applying the factors in R.C. 2929.11, R.C.\n2929.12 and any other applicable statute. Gratz at ¶ 8, citing Kalish at ¶ 17.\n {¶15} Dixon pled guilty to aggravated robbery, a first-degree felony. The\ncourt sentenced him to a four-year sentence. 05/10/13 Sentencing Tr. 13. He was\nalso informed that following his release from prison he would be subject to an\nadditional five-year term of postrelease control. 05/10/13 Sentencing Tr. 14-15. This\nsentence is within the sentencing range of 3, 4, 5, 6, 7, 8, 9, 10 and 11 years that is\npermitted by R.C. 2929.14(A)(1) for a first-degree felony. Likewise, the postrelease\ncontrol advisement is correct; R.C. 2967.28(B)(1) indicates that he is subject to a\nfive-year term of postrelease control.\n {¶16} At the sentencing hearing and in the judgment entry, the trial court\nindicated that it considered all applicable statutes when determining the appropriate\nsentence. In the Judgment Entry it stated:\n The Court has reviewed ORC §§2929.11, 2929.13 and 2929.14\n as it applies to Defendant.\n The Court considered the record, presentence investigation\n report, oral statements and the principles and purposes of sentencing\n under Ohio Revised Code § 2929.11, and has balanced the\n seriousness and recidivism factors under Ohio Revised Code §\n 2929.12. The Court finds that Defendant is not amenable to a\n community control sanction.\n05/14/13 J.E.\n {¶17} Likewise, statements made during the sentencing hearing also indicate\nthat the trial court considered R.C. 2929.11, 2929.12, and 2929.13 when imposing\nthe four-year sentence. 05/10/13 Sentencing Tr. 11-13.\n {¶18} Thus, the record discloses that the trial court did consider and comply\nwith all applicable statutes in issuing the sentence. The sentence is not clearly and\nconvincingly contrary to law.\n {¶19} Our analysis next turns to whether the trial court erred in determining\nthat a four-year sentence was appropriate. At this point it is noted that the state\n\f -6-\n\nrecommended community control and provided reasons for such recommendation.\nSome of the reasons were that the victim was not hurt, the victim does not think he\nshould spend any more time in jail, the victim does not perceive Dixon as a threat,\nDixon was drunk at the time of crime, and Dixon does not have a violent or extensive\ncriminal record. 05/10/13 Sentencing Tr. 2-5. Dixon’s attorney, likewise, argued for a\ncommunity control sanction. He indicated that Dixon has been attending drug and\nalcohol counseling, just obtained a job, and that Dixon moved so that he could live in\na sober environment. 05/10/13 Sentencing Tr. 7-10. When Dixon spoke he\nindicated that he was sorry and that he wished he could take it back. 05/10/13\nSentencing Tr. 11.\n {¶20} Despite both parties’ arguments and requests for community control\nsanctions, the trial court did not follow the recommendation. Instead, it ordered a\nfour-year sentence. The act of not following the state’s recommendation and\nordering a stiffer penalty does not, in and of itself, render the sentence clearly and\nconvincingly contrary to law or show that the trial court abused its discretion. Trial\ncourts generally are not a party to the plea negotiations and the contract itself. State\nv. Vari, 7th Dist. No. 07MA142, 2010–Ohio–1300, ¶ 24. Thus, “the court is free to\nimpose a sentence greater than that forming the inducement for the defendant to\nplead guilty so long as the court forewarns the defendant of the applicable penalties,\nincluding the possibility of imposing a greater sentence than that recommended by\nthe prosecutor.” Id., citing State v. Martinez, 7th Dist. No. 03MA196, 2004–Ohio-\n6806, ¶ 8. That said, we have explained that once the trial court enters into the plea\nagreement by making a promise, it becomes a party to the agreement and is bound\nby the agreement. Vari at ¶ 24.\n {¶21} Here, Dixon was advised of the maximum penalty involved and was\nadvised multiple times that the trial court was not required to follow the\nrecommendation. 03/22/13 Plea Tr. 6–7 (sentencing up to the court and maximum\npenalty); 05/10/13 Sentencing Tr. 6-7 (“sentencing is always up to the court”).\nFurthermore, the record does not indicate that the trial court was a party to the plea\n\f -7-\n\nagreement. Thus, there is nothing in the record to suggest that the trial court was\nbound, for any reason, by the recommendation.\n {¶22} The record also indicates that the trial court’s decision to deviate from\nthe recommendation and order a four-year sentence was not an abuse of discretion\nor contrary to law. The trial court considered and weighed all factors when it was\ndetermining the appropriate sentence. The court considered the fact that the crime is\na first-degree felony and that the victim was wheelchair bound and taking oxygen.\n05/10/13 Sentencing Tr. 11-12. It also took into account that Dixon had previously\nbeen in and out of drug programs, including substance abuse training in a veteran’s\ncenter. 05/10/13 Sentencing Tr. 12. The trial court also contemplated the facts as\nthey were set forth in the police report.\n {¶23} That report indicated that this incident occurred over a $10 loan that\nDixon had made to the victim, who allegedly was his ex-girlfriend. He threatened her\nwith a box cutter and said something to the effect of “Bitch, give me the\nmotherfucking money.” When she told him she could not and reached for her phone,\nhe allegedly said, “I don’t care who you call; I’ll kill your motherfucking ass.” 05/10/13\nSentencing Tr. 12; police report attached to PSI. When the police went to his\napartment and asked him about the incident, the box cutter was found on his person.\nHe told the police that he was “having kinky sex” with the victim and “somehow the\nknife was involved.” Dixon claimed that the victim owed him even more money for\nsexual favors. He further advised the officers that he was just angry because he had\nrecently been laid off from work and that he knew the victim had spent his money on\n“crack.” Police report attached to PSI.\n {¶24} In light of all the above, including the recommended sentence, the trial\ncourt concluded:\n So taking everything into consideration, and the risk factor\n involved which has been determined to be moderate [by the PSI], and\n also the chances of recidivism, this court understands in some respects\n how a recommendation was made without knowing the factual\n circumstances. But taking what did transpire into account, it is going to\n\f -8-\n\n be the order of the court in following the principles and purposes of\n sentencing, it’s going to be the order of the court, and to protect the\n public, I might add, that the defendant is going to be sentenced to a\n four-year stay in the Lorain Correctional Facility.\n05/10/13 Sentencing Tr. 13.\n {¶25} This reasoning taken in conjunction with the record indicates that the\ntrial court did not abuse its discretion or order a sentence that was clearly and\nconvincingly contrary to law.\n {¶26} Consequently, for all the above reasons there are no appealable\nsentencing issues.\n Conclusion\n {¶27} For the foregoing reasons, the judgment of the trial court is hereby\naffirmed. Likewise, counsel's motion to withdraw is granted.\n\n\n\nDonofrio, J., concurs.\nWaite, J., concurs.\n\f", "ocr": false, "opinion_id": 2700533 } ]

[ "2014 Ohio 880" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 13, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/7/2014/2014-ohio-880.pdf", "author_id": 8145, "opinion_text": "[Cite as Patel v. Village of Bellaire, 2014-Ohio-880.]\n\n STATE OF OHIO, BELMONT COUNTY\n\n IN THE COURT OF APPEALS\n\n SEVENTH DISTRICT\n\n\nARVIND PATEL, et al., )\n ) CASE NO. 13 BE 9\n PLAINTIFFS-APPELLANTS, )\n )\nVS. ) OPINION\n )\nVILLAGE OF BELLAIRE, )\n )\n DEFENDANT-APPELLEE. )\n\n\n\n\nCHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas Court,\n Case No. 08CV412.\n\n\nJUDGMENT: Affirmed.\n\n\nAPPEARANCES:\nFor Plaintiffs-Appellants: Arvind Patel, Pro se\n 16 Renaissance Way\n Wheeling, West Virginia 26003\n\n\nFor Defendant-Appellee: Attorney Mel Lute, Jr.\n 400 South Main Street\n North Canton, Ohio 44720\n\n\nJUDGES:\nHon. Joseph J. Vukovich\nHon. Gene Donofrio\nHon. Cheryl L. Waite\n\n\n Dated: March 6, 2014\n\f[Cite as Patel v. Village of Bellaire, 2014-Ohio-880.]\nVUKOVICH, J.\n\n\n {¶1} Plaintiff-appellant Arvind Patel appeals the decision of the Belmont\nCounty Common Pleas Court which denied his post-judgment motion for Civ.R. 11\nsanctions filed against Attorney Mel Lute, Jr. Appellant alleged that counsel used\nfalse affidavits to support defendant-appellee Village of Bellaire’s motion for summary\njudgment, which was then granted by the trial court and affirmed on appeal to this\ncourt. Appellant is essentially attempting to relitigate a claim which he generally\nasserted in his response to the Village’s request for summary judgment but which he\nfailed to specifically support with summary judgment evidence. Regardless, the trial\ncourt did not abuse its discretion in finding, after listening to the affiants testify at the\nsanctions hearing, that the affidavits were not fraudulent and/or that the Village’s\nattorney did not willfully attach fraudulent affidavits to the motion. In accordance, the\njudgment of the trial court is affirmed.\n STATEMENT OF THE CASE\n {¶2} On September 7, 2009, Village of Bellaire Law Director Michael\nShaheen filed a request for temporary and permanent injunctive relief against Arvind\nPatel and Anu & Amu, Inc. in the Belmont County Common Pleas Court resulting in\nCase No. 06CV371. The Village asked the court to order the closure of Patel’s motel\ndoing business as the 7-Inn Motel. Attached to the request was the affidavit of Fire\nCaptain Dennis VanKirk who stated that he undertook an inspection on behalf of the\nVillage which had received various complaints concerning the property. He stated\nthat he found at least 100 dangerous fire code violations, noting that he saw exposed\nwiring, deplorable conditions, flammable material, and lack of adequate fire\nextinguishers. He expressed concern that a fire would occur unless the motel was\nclosed for repair. He also stated that during the investigation, Patel voiced that he\nwould not comply with repair requests. A temporary restraining order was issued.\n {¶3} Patel apparently began making some repairs. Less than two weeks\nafter the temporary order was issued, the State Fire Marshal’s Office conducted an\ninspection, found 183 violations, and issued a citation. Based upon subsequent\n\f -2-\n\ntestimony of a State Fire Marshal, a preliminary injunction was then granted in\n06CV371.\n {¶4} Administratively, Patel requested a hearing before the Board of Building\nAppeals, after which the State Fire Marshal’s citation was upheld, with no further\nappeal taken. By this time, Patel’s operator’s license had expired, and the motel was\nno longer in operation. Thus, in mid-2007, the Village dismissed its pending request\nfor a permanent injunction.\n {¶5} In mid-2008, Patel filed a pro se complaint against the Village of\nBellaire in the Belmont County Common Pleas Court alleging a conspiracy to close\nthe motel by filing and perpetuating a malicious and wrongful suit with false testimony\nand a false affidavit, negligence in filing a meritless suit and causing the motel to\nclose, and tortious interference with economic advantage by causing the motel to\nclose.\n {¶6} The Village filed a motion for summary judgment. The Village attached\nthe fire captain’s prior affidavit and his more recent affidavit wherein he added that\nthe State Fire Marshall inspected the property, found 183 violations, and provided a\ncitation issued to Patel under R.C. 3737.42. He characterized this occurrence by\nstating that the State Fire Marshall “took over” to determine the fate of the plaintiff’s\nbusiness. The Village also attached the affidavit of former Law Director Shaheen,\nwherein he stated that he filed a request for temporary and permanent relief based\nupon information supplied to him in order to ensure Patel would cease operation of\nthe property pending complete repair in compliance with fire code and/or the outcome\nof an enforcement proceeding under Chapter 3737.\n {¶7} The Village raised various arguments besides the one that it was proper\nto seek closure of the motel. For instance, the Village pointed out that Patel had\nalready argued that the fire captain’s affidavit was false in 06CV371. The Village\nstated that there was no allegation of an unlawful act as required for a civil\nconspiracy claim. The Village also asserted immunity in the government functions\nperformed here.\n\f -3-\n\n {¶8} Patel responded by urging that the ruling in 06CV371 was not final and\nonly related to a temporary order. As to the issue of the Village’s immunity, Patel\nconfusingly stated that the fire captain and law director acted outside the course of\ntheir employment. Patel also urged that the issue of whether the Village used false\ntestimony and false affidavits was a jury question.\n {¶9} The Village replied to the latter contention by pointing out that Patel set\nforth mere general accusations of falsity and provided no summary judgment\nevidence in support of his contention that there remained a genuine issue for trial.\nBefore the trial court could rule, Patel retained counsel for the first time in this suit.\nInstructions were issued for counsel to review the file to determine if he concurred\nwith appellant’s pro se filings, but counsel later withdrew. In July 2010, the Village\nfiled a supplement to their motion for summary judgment in order to place it back\nbefore the court’s consideration. The Village’s supplement added Patel’s deposition\nand noted that he only generally set forth his belief that the affidavits were based on\nlies and that the motive was to close his motel rather than an actual threat of fire.\n {¶10} On July 21, 2010, the trial court granted summary judgment to the\nVillage. Patel appealed that judgment and raised a total of seven assignments of\nerror. See Patel v. Village of Bellaire, 7th Dist. No. 10BE27, 2012-Ohio-4348. Patel\nmade various arguments in that appeal regarding his belief that the trial court relied\non affidavits that were false, fraudulent, and manufactured. Id. at ¶ 25, 47.\n {¶11} This court initially set forth the law on political subdivision immunity. Id.\nat ¶ 27-29. We ruled that Patel did not raise any exception to immunity. Id. at ¶ 30.\nWe pointed out that he claimed that the fire captain or law director acted outside of\nthe scope of their duties, but this would only further the Village’s case of immunity,\nnoting that he did not file suit against the fire captain and the law director. Id. at ¶ 30,\n39. We also concluded that Patel failed to provide evidence that the affidavits of the\nfire captain and the law director were false or that there remained a genuine issue as\nto his claims. Id. at ¶ 34, 39, 49. We affirmed the grant of summary judgment.\n {¶12} While that appeal was pending, Patel filed a motion for sanctions under\nCiv.R. 11 against Attorney Lute who defended the Village in this lawsuit. Patel\n\f -4-\n\nclaimed that Attorney Lute willfully attached to the summary judgment motion three\nfalse affidavits (the two affidavits of the fire captain and the affidavit of the law\ndirector). Appellant also contested counsel’s statements in the summary judgment\nmotion recapping the affidavits. Appellant then explained why he disagreed with the\ncontent and/or wording of certain portions of the affidavits.\n {¶13} The trial court waited to rule on the motion until the appellate process of\nthe underlying suit was complete. See Patel v. Judge Crawford, 7th Dist. No.\n12BE28, 2013-Ohio-2284, ¶ 5, 15. The trial court conducted a hearing on the motion\non April 9, 2013. At the hearing, Patel questioned the fire captain and the law\ndirector on certain portions of their affidavits. For instance, appellant tried to\nestablish that a statement in the law director’s affidavit that a permanent injunction\nwas requested was false because no permanent injunction was issued or because\nno hearing ended up being held on a permanent injunction due to the voluntary\ndismissal. As another example, appellant tried to demonstrate that the fire captain’s\naffidavit falsely stated that the State Fire Marshal’s office “took over” to determine the\nfate of the business; appellant based this argument on a letter he received from that\noffice stating that they were not part of the pending injunction lawsuit but were\nproceeding administratively on his license. Both witnesses testified that when they\nfiled the affidavits at issue, they believed that what they said was true.\n {¶14} The trial court concluded that there was no evidence that there was\nanything false in any of the affidavits. And, the trial court stated that even if there\nwere false statements, there is no evidence that the affiants knew those statements\nwere false. Regardless, the trial court found that there was absolutely no evidence\nthat Attorney Lute had any knowledge of falsities in the affidavits. The court opined\nthat this was the most frivolous motion and hearing that the court had encountered in\nits more than 30 years as a judge. The court’s decision denying the motion for\nsanctions was journalized on April 24, 2013. Patel filed a timely notice of appeal and\nfiled a pro se brief on his own behalf (not on behalf of the corporation).\n\f -5-\n\n ASSIGNMENTS OF ERROR\n {¶15} Patel sets forth the following seven assignments of error:\n {¶16} “The trial court made an egregious error in failing to recognize the\n[former law director’s] false and fabricated affidavit and testimony at the hearing of\nApril 9, 2013.”\n {¶17} “The trial court made an egregious error in failing to recognize the [fire\ncaptain’s] false and fabricated affidavit and testimony at the hearing of April 9, 2013.”\n {¶18} “Trial court abused its discretionary power by directly coaching the\nwitness stating that you can file a false and fabricated affidavit and come into court\nand testify that you believe it was true at the time of the filing of the affidavit.”\n {¶19} “The trial judge abused his discretionary power and changed the\ndefinition of rule 11 ‘motion for sanction’ to favor Appellee.”\n {¶20} “The trial judge abused his discretionary power, by not allowing the\ndefendant Attorney Lute on the stand for cross examination.”\n {¶21} “The trial judge abused his discretionary power and falsely stated that\nthis is the first and only hearing on the Motion [for] sanctions today.”\n {¶22} “The trial court abused his discretionary power, and held the hearing\nwithout important witness[es], whom Mr. Patel subpoenaed.”\n {¶23} Before proceeding, we admonish appellant that gratuitous cursing in an\nappellate brief is inappropriate. See Appellant’s Brief at 21 (where appellant states\nthat the trial judge “did not give a shit”).\n GENERAL LAW\n {¶24} Pursuant to Civ.R. 11, every pleading, motion, or other document of a\nparty represented by an attorney shall be signed by at least one attorney of record.\nThe signature of an attorney constitutes a certificate by the attorney: that he has\nread the document; that to the best of his knowledge, information, and belief there is\ngood ground to support it; and that it is not interposed for delay. Civ.R. 11. If a\ndocument is signed with intent to defeat the purpose of this rule, it may be stricken as\nsham and false and the action may proceed as though the document had not been\nserved. Id. For a willful violation of this rule, an attorney may be subjected to\n\f -6-\n\nappropriate action, including an award to the opposing party of expenses and\nreasonable attorney fees incurred in bringing a motion under this rule. Id.\n {¶25} Appellee points out that the rule does not apply to affidavits of a non-\nparty used to support a motion. See Staff Note to 1994 Amendment to Civ.R. 11.\nAppellant responds by contending that where counsel cites parts of those affidavits in\nhis motion, the rule would apply to those statements regardless of counsel’s\nsubjective belief. That is, appellant urges the test employed in a Civ.R. 11 evaluation\nis not subjective and is employed without considering actual bad faith.\n {¶26} However, the Ohio Supreme Court has stated that “Civ.R. 11 employs a\nsubjective bad-faith standard to invoke sanctions by requiring that any violation must\nbe willful.” State ex rel. Dreamer v. Mason, 115 Ohio St.3d 190, 2007-Ohio-4789,\n874 N.E.2d 510, ¶ 19. The standard requires more than bad judgment or negligence\nand requires dishonest purpose or actual intent to mislead for instance. State ex rel.\nBardwell v. Cuyahoga Cty. Bd. of Commrs, 127 Ohio St.3d 202, 937 N.E.2d 1274,\n2010-Ohio-5073, ¶ 8.\n {¶27} A reviewing court does not reverse a decision on a motion for sanctions\nunless the trial court has abused its discretion. Id. at ¶ 9, citing Dreamer, 115 Ohio\nSt.3d 190 at ¶ 18. As long as some competent, credible evidence exists to support\nthe judgment, no abuse of discretion occurs. Id.\n ANALYSIS\n {¶28} Many of appellant’s complaints regarding the affidavits can be classified\nas caviling (the raising of trivial and frivolous objections), misinterpretation, or outright\nmistake on appellant’s part. Most notably, appellant complains that the law director’s\naffidavit stated that he previously requested a permanent injunction, but appellant\ninsists that this is not true. However, the original filing was a request for both\ntemporary and permanent relief. Although only a temporary and preliminary\ninjunction had been issued by the time the complaint was voluntarily dismissed, there\nwas still an initial request for a permanent injunction.\n {¶29} Appellant’s next complaint regarding the law director dealt with his\nstatement at a hearing in the injunction case. As to how this relates to the affidavit,\n\f -7-\n\nappellant seems to focus on the law director’s statement in his affidavit that he filed\nfor an injunction subject to complete repair of the property. Appellant believes the\nstatement is false because he alleges that he did make the repairs of the items in the\ninitial complaint but his motel stayed closed. However, the law director was merely\nparaphrasing the complaint for an injunction; he was not swearing that repairs never\nbegan or that they were not completed at a later date. And, the excerpt from a prior\nhearing utilized by appellant here does not support his position as the law director\nmentioned only that appellant was “making progress” and stated that several\nviolations still exist. In any event, appellant is essentially making a legal argument as\nto whether the code violations found by the state could be used to further extend the\ninjunction where he allegedly fixed the violations found by the village. This was a\nmatter for the summary judgment stage of the proceedings, rather than the Civ.R. 11\nstage.\n {¶30} Appellant also alleges here that the law director falsely claimed that\nChapter 3737 was followed. This is apparently based upon appellant’s contention\nthat the fire captain did not strictly follow the law, and that the law director should\nhave known that. First, the law director’s three-sentence affidavit was used in this\nlawsuit merely to show what he did in the prior lawsuit. He did not specifically claim\nthat the fire captain complied with every aspect of Chapter 3737. He merely outlined\nthat he filed for temporary and permanent relief to assure appellant would cease\noperation subject to the complete repair in compliance with fire codes and/or the\noutcome of enforcement proceedings under Chapter 3737. And, nothing in that\naffidavit could be attributable to bad faith of the current attorney provided by the\ninsurance company to represent the Village of Bellaire in this action instituted by\nappellant.\n {¶31} As to the affidavit of the fire captain that was written at the time of the\nsummary judgment motion, appellant complains that he stated that the State Fire\nMarshal’s office “took over” after finding 183 violations. The trial court found that the\nfire captain believed the state was taking over (for him) and the affidavit was not\nfraudulently made. Appellant points to a letter written to him on behalf of the State\n\f -8-\n\nFire Marshal’s Office, noting that it was not a party to the action for injunctive relief as\nthey were pursuing actions against the hotel’s license administratively which “at this\ntime do not involve the courts.” Appellant’s complaint seems to be merely an\ninterpretation argument or an argument of what impressions were made on the fire\ncaptain by the involvement of the state. So they did not take over the civil case; they\ndid, however, essentially take over the investigatory and compliance aspects of the\nmatter. In fact, testimony of one of those state agents was presented to support\nextending the temporary restraining order into a preliminary injunction. And, as\naforementioned, any argument that the state’s citation was a malicious reason to\nextend the injunction is a legal argument. Arguments such as this were resolved at\nthe summary judgment stage of this action due to appellant’s inadequate response.\n {¶32} Appellant also complains that the fire captain’s affidavit stated the he\nissued a citation to appellant in writing, describing with particularity the nature of the\nviolation and the portion of the fire code violated. Appellant complains that the\ncitation was more like a letter and that each violation does not have a specific code\nsection after it. However, it was in writing, with a list of particular violations, and\ngeneral code sections were provided in the introduction to the list of violations. Once\nagain, any argument that the fire captain’s citation was statutorily insufficient to justify\nan injunction is a legal argument that was already resolved, at the least by the time\nthat summary judgment was entered in this action. And, defense counsel does not\nmake a groundless argument by defending the sufficiency of a fire captain’s citation\nin an action for malicious prosecution against his client, the Village of Bellaire.\n {¶33} Appellant even takes issue with a statement in the fire captain’s original\naffidavit, filed in support of the Village’s prior action for a restraining order, where he\nstates, “During our investigation, Mr. Patel made it clear that he absolutely will not\ncomply with our requests to repair the subject property. Furthermore, he openly\ndisputed our authority to order him to do so.” There is no rational reason to connect\nany liability for this statement (made by a fire captain the day after an inspection in\nSeptember 2006) to a defense counsel who, two years later, merely attached the\naffidavit (which had already been accepted by a court in granting both temporary and\n\f -9-\n\npreliminary relief) to a motion for summary judgment. In any event, there is no\nevidentiary indication that the fire captain’s impressions of appellant’s conduct and\nstatements were false. Additionally, appellant had the chance to contest these\nstatements, and summary judgment has since been entered against him.\n {¶34} The trial court had the discretion to believe the affiants who testified that\nthe affidavits were true and/or they believed their affidavits were true when they wrote\nthem. The court did not “coach” the witnesses but followed up Patel’s questioning\nwith one final question as to whether they believed at the time of signing that the\naffidavits were true. Other statements by the court were attempts to align appellant’s\npresentation to the proper focus rather than to permit him to retry his original\ncomplaint. Furthermore, appellant’s particular arguments were either unconvincing\nor constituted erroneous analysis, misinterpretation, quibbling over semantics, or\ncaviling.\n {¶35} “Civ.R. 11 employs a subjective bad-faith standard to invoke sanctions\nby requiring that any violation must be willful.” Dreamer, 115 Ohio St.3d 190 at ¶ 19.\nThe standard requires more than bad judgment or negligence but suggests a\ndishonest purpose or actual intent to mislead. Bardwell, 127 Ohio St.3d 202 at ¶ 8.\n {¶36} Thus, contrary to appellant’s argument, the trial court was not wrong by\nnoting that even if it were to assume for sake of argument that a person’s affidavit\nturns out to contain some false statements does not automatically mean that the\nattorney representing the village (hired by the insurance company) must be\nsanctioned. As Attorney Lute points out, Civ.R. 56 speaks of affidavits being made\non the personal knowledge of the affiant. Appellant cites nothing requiring the\nattorney to be absolutely liable for the client’s (or a non-party’s) statements in the\naffidavit just because he points to the affidavit in his motion for summary judgment.\n {¶37} Putting aside the conclusion that a rational trier of fact could find a lack\nof evidence that the affidavits were factually false, Attorney Lute was not part of the\nlawsuit by the Village against appellant, and there was no evidence that Attorney\nLute had knowledge of a “conspiracy” or fraudulent statements by affiants. Appellant\nstates that the court should have let him cross-examine Attorney Lute; however, he\n\f -10-\n\ndid not mention questioning Attorney Lute until he was in the middle of making final\narguments and the court was responding to those arguments (thus alerting him as to\nhis evidentiary failure). As the trial court pointed out, appellant had already answered\nthat he had no more witnesses to call.\n {¶38} Appellant also takes issue with the court’s statement that this was the\nfirst and only hearing on his motion. He states that a hearing on his motion was\nconducted back when he first filed the motion two years before. However, he failed\nto provide a complete or official transcript of that hearing (as we pointed out to him in\nruling on the prior mandamus action he filed). As we stated then, the incomplete and\nunofficial pages he did submit showed only that the trial court stated that it would\neither dismiss the motion or stay it pending the appellate decision. There was no\nindication that an evidentiary hearing was held then. We have before us only a full\nand official transcript of the evidentiary hearing that occurred on April 9, 2013.\n {¶39} Contrary to another assertion by appellant, there is nothing wrong with\nthe court having the questioner show the document to the witness instead of to the\ncourt. As appellant points out, the motion for sanctions had been filed with the court,\nand it had attachments to it. However, an unsworn document attached to a motion\nneed not be accepted as evidence. Even appellant’s own “affidavit” was not\nnotarized. In any event, we have the filed motion and its attachments and such\ndocuments do not change the analysis of the situation here.\n {¶40} As to his final contention, appellant waited until a few days before the\nscheduled hearing to issue subpoenas. The local fire captain received his subpoena\nthe day prior to the hearing, and the law director and a judge did not receive their\nsubpoenas until the morning of the hearing. From the returns, it can be seen that the\nnon-local state employees could not be served in time for the hearing. Appellant did\nnot seek a continuance to secure these witnesses; nor did he show how their\ntestimony could relate to Attorney Lute’s knowledge. (The only reason he sought a\ncontinuance was his attempted appeal to the United States Supreme Court.)\n {¶41} Lastly, appellant was essentially attempting to relitigate the issues\narising from his complaint and the summary judgment stage; a stage which ended in\n\f -11-\n\na final order, a final order that was upheld on appeal. Appellant is taking issue with\nstatements in affidavits attached to a summary judgment motion in a motion for\nsanctions against counsel when those issues were generally and vaguely sketched\nbut were not particularized in the response to summary judgment. He is finally\nspecifying what he should have specified in his response to summary judgment. He\nsaid that affidavits were false then, but he presented no summary judgment evidence\nin support of this bare assertion. The trial court accepted the affidavits in ruling on\nsummary judgment. This court reviewed appellant’s argument that the affidavits\nwere false. We concluded that he had presented no evidence below that this was\nthe case as was his burden. We affirmed the entry of summary judgment.\n {¶42} To allow a motion for sanctions to be utilized in such a manner would\nallow a party who loses due to their own lack of proper response to attempt to\nrelitigate the veracity of the movant’s summary judgment evidence. Notably, this is\nnot a case where a party who lost at summary judgment discovered new information\nshowing not only that the affidavits were false but also that counsel knew about the\nfalsity.\n {¶43} And, as to the fire captain’s first affidavit, this document was filed in\ncourt by the Village to support the restraining order years prior to this action. It was\ncontested by appellant at that time. Most importantly, appellant’s suit here was\nbased on his allegation that said affidavit was false. Counsel, who was uninvolved in\nthe prior suit, attached to the summary judgment motion the very affidavit that\nappellant’s complaint says is false. Counsel was hired to defend against this claim.\nIt is not willful bad faith to attach the document upon which the opponent’s suit is\nbased. Had appellant shown there was a genuine issue as to whether the affidavit\nwas material and false at the proper stage, counsel still could have proceeded to\ndefend his client at trial.\n {¶44} As explained in his appeal of the grant of summary judgment, appellant\nfailed to support his claim in responding to summary judgment. By filing a motion for\nsanctions on this same affidavit, appellant is improperly duplicating the claim he\nmade in the complaint which he failed to protect in the summary judge stage of\n\f -12-\n\nproceedings. And, he is essentially attempting to alter the law of the case on this\naffidavit. Judgment has already been entered against appellant on his complaint that\nthe affidavit was false.\n {¶45} Regardless, as explained supra, a reasonable court could find the\nclaims of falsity outlined on appeal were not supported by the evidence, and Attorney\nLute’s bad faith was not discernible and could be found lacking by a reasonable trial\ncourt. For the foregoing reasons, the judgment of the trial court is hereby affirmed.\n\n\n\nDonofrio, J., concurs.\nWaite, J., concurs.\n\f", "ocr": false, "opinion_id": 2700567 } ]

[ "687 N.W.2d 292" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n687 N.W.2d 292 (2004)\nPeople\nv.\nBraxton.\nNo. 124351.\nSupreme Court of Michigan.\nJune 10, 2004.\nSC: 124351, COA: 232830.\nBy order of January 29, 2004, this Court ordered the Wayne County Prosecuting Attorney to answer defendant's application for leave to appeal. That answer having now been submitted, the application for leave to appeal the July 8, 2003 judgment of the Court of Appeals is again considered, and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REMAND this case *293 to the Court of Appeals for consideration of whether there is a reasonable likelihood that the jury applied the reasonable doubt instructions in a manner that lowered the government's burden of proof, and, if so, the appropriate standard of review. See Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994). In all other respects, leave to appeal is DENIED.\nWe do not retain jurisdiction.\n", "ocr": false, "opinion_id": 2028734 } ]

[ "278 F.2d 194" ]

[ { "author_str": "Jertberg", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/278/278.F2d.194.16236_1.html", "author_id": null, "opinion_text": "278 F.2d 194\n Washib ULLAH, Appellant,v.Richard C. HOY, Acting District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.\n No. 16236.\n United States Court of Appeals Ninth Circuit.\n May 3, 1960.\n \n Marshall Ross, Los Angeles, Cal., for appellant.\n Laughlin E. Waters, U. S. Atty., Richard A. Lavine, James R. Dooley, Asst. U. S. Attys., Los Angeles, Cal., for appellee.\n Before STEPHENS and JERTBERG, Circuit Judges, and KILKENNY, District Judge.\n JERTBERG, Circuit Judge.\n \n \n 1\n This is an appeal from a judgment of the district court denying relief sought by appellant in a declaratory action instituted by him seeking to review an order of deportation outstanding against him.\n \n \n 2\n The district court had jurisdiction of the action under the provisions of Sec. 10 of the Act of June 11, 1946 (Administrative Procedure Act), 60 Stat. 243, Title 5 U.S.C.A. § 1009. This court has jurisdiction under the provisions of Title 28 U.S.C.A. §§ 1291 and 1294.\n \n \n 3\n The complaint, in substance, alleged that on or about September, 1957, there was served upon plaintiff an order of deportation directing that he be deported from the United States and that plaintiff has applied to the defendant for the privilege of voluntary departure, in lieu of deportation and that such application has been denied. In the prayer of the complaint plaintiff prayed that the court review the records of his deportation proceedings and enter judgment that plaintiff is not deportable, or in the alternative that the defendant be directed to re-open the deportation hearing to permit filing of another application for voluntary departure, on the ground, among other things, that plaintiff is not statutorily ineligible for voluntary departure.\n \n \n 4\n The defendant filed answer and among other denials denied that plaintiff had applied for the privilege of voluntary departure in lieu of deportation and denied that such application had been denied.\n \n \n 5\n Following the filing of the answer the district court entered the following order:\n \n \n 6\n \"It is ordered that this action be placed on the calendar of May 5, 1958, at ten A.M. for pre-trial conference and setting without regard to Local Rule 9 [West's Ann.Code].\"\n \n \n 7\n The clerk of the court then dispatched a letter directed to the then attorney for appellant and to the attorney for defendant notifying them that the action had been placed on the calendar \"for pretrial conference and setting. Counsel will please attend.\" In the letter it was stated that \"the court does not intend to invoke the provisions of Local Rule 9 relative to the scheduling of the procedural steps by the parties\" and that the court desired the attendance of counsel without regard to the status of the case under Rule 9.\n \n \n 8\n The transcript of the pre-trial proceedings is meagre and somewhat confusing. The pre-trial conference was attended by counsel for the plaintiff and counsel for the defendant. The plaintiff was not present.\n \n \n 9\n The conference was opened with the following statement by the Court:\n \n \n 10\n \"Gentlemen, is there anything more to this case than to submit it on the transcript?\"\n \n \n 11\n Then followed lengthy colloquy between the Court and counsel for the plaintiff, in which counsel for the plaintiff expressed his great reluctance to submit the case on the transcript and repeatedly stated that he questioned that the transcript accurately reflected the record of the proceedings before the Immigration officials and the Board of Immigration Appeals. Following further colloquy between Court and counsel, the Court stated:\n \n \n 12\n \"What you are asking for, as I understand it, is for the Immigration Department to give him another opportunity for voluntary departure?\"\n \n To which counsel replied:\n \n 13\n \"That is correct, your Honor.\"\n \n The Court then stated:\n \n 14\n \"I think that is a matter to be taken up with the Immigration Department and not with this court.\n \n \n 15\n The Immigration Department and not this court should pass upon that matter. It is within their discretion and it is not a matter for this court.\" * * *\n \n \n 16\n Counsel for the plaintiff again questioned the accuracy of the transcript and following a further statement by the Court said:\n \n \n 17\n \"Very well, your Honor, all I can do is submit it.\"\n \n \n 18\n Thereupon the transcript was marked as an exhibit. At this point the clerk of the court inquired:\n \n \n 19\n \"Then this proceeding today is to be considered as a trial?\"\n \n \n 20\n To which the Court replied: \"Hearing on the matter.\" Thereupon the Court stated: \"And it is ordered that petition for review is dismissed.\"\n \n \n 21\n Thereafter findings of fact, conclusions of law and judgment in favor of the defendant were entered.\n \n \n 22\n On this appeal appellant urges that the district court erred in ordering that the pre-trial conference be the trial of the action, and erred in rendering a final judgment against the plaintiff at the time of pre-trial, without notice of trial and the holding of a trial pursuant to statute. On this point appellant argues that the district court cannot summarily, under the Federal Rules of Civil Procedure and Local Court Rules, convert a pre-trial conference into a trial and render a valid final judgment at the time and place noticed and set only for pre-trial conference. In view of our intended disposition of this case, we deem it unnecessary to reach an answer to such contention.\n \n \n 23\n We have previously noted that in his complaint plaintiff alleged that he had made application for voluntary departure and that such application had been denied. Such allegations were denied in defendant's answer. Thus there apparently was created a genuine issue as to material fact. This issue was not disposed of by affidavit, deposition, testimony or admission of the plaintiff. The issue was not mentioned in the findings of fact made by the trial court. No opportunity was afforded to dispose of this issue by proceedings for a summary judgment under the provisions of Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Discretionary acts of an administrative agency may be reviewed on motions for summary judgment. Miyaki v. Robinson, 7 Cir., 257 F.2d 806, certiorari denied 358 U.S. 894, 79 S. Ct. 155, 3 L. Ed. 2d 120; Aletiou v. Rogers, 103 U.S.App.D.C. 79, 254 F.2d 782. In our view such issue cannot be disposed of by summary dismissal of plaintiff's complaint, whether such summary dismissal occurs at a pre-trial conference or at a regularly noticed trial in the absence of affidavit, deposition, testimony or admission of the plaintiff. See Bowdidge et al. v. Lehman, 6 Cir., 1958, 252 F.2d 366. If the issue is not genuine, Rule 56 affords a summary and expeditious manner of disposing of such issue.\n \n \n 24\n We recognize that the granting or withholding of an application for voluntary departure rests in the sound discretion of the attorney general, United States ex rel. Hintopoulos v. Shaughnessy, 1957, 353 U.S. 72, 77, 77 S. Ct. 618, 1 L. Ed. 2d 652. The action of the Attorney General is subject to court review to determine whether there has been a clear abuse of discretion or a clear failure to exercise discretion. McGrath v. Kristensen, 1950, 340 U.S. 162, 71 S. Ct. 224, 95 L. Ed. 173; United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371.\n \n \n 25\n In the absence of affidavit, deposition, testimony or admission of plaintiff, we are unable to determine the genuineness of the issue raised by the pleadings.\n \n \n 26\n The judgment is reversed and the cause is remanded to the district court for further appropriate proceedings consistent with the views herein expressed.\n \n ", "ocr": false, "opinion_id": 250910 } ]

[ "986 A.2d 1249" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n986 A.2d 1249 (2009)\nCOM.\nv.\nBROOKS.\nNo. 1830 MDA 2008.\nSuperior Court of Pennsylvania.\nSeptember 9, 2009.\nDismissed.\n", "ocr": false, "opinion_id": 1887565 } ]

[ "195 P.3d 957" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n195 P.3d 957 (2008)\nSTATE\nv.\nJONES.\nNo. 81236-5.\nSupreme Court of Washington, Department I.\nOctober 1, 2008.\nDisposition of petition for review. Granted.\n", "ocr": false, "opinion_id": 2636417 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://caseinfo.nvsupremecourt.us/document/view.do?csNameID=31015&csIID=31015&deLinkID=439504&sireDocumentNumber=13-31027", "author_id": null, "opinion_text": "\f court on July 12, 2012, as witnessed by another inmate, but the petition\n was inexplicably never received by the court. Even assuming the truth of\n appellant's assertion, a filing date of July 12, 2012, would still have meant\n the petition was untimely as it was due on June 21, 2012, 366 days after\n the date of entry of the judgment of conviction. 3 The fact that appellant\n allegedly received incorrect advice from an inmate law clerk regarding the\n one-year deadline does not constitute an impediment external to the\n defense for purposes of demonstrating good cause. See Hathaway v. State,\n 119 Nev. 248, 252, 71 P.3d 503, 506 (2003); Phelps v. Director, Prisons, 104\n Nev. 656, 660, 764 P.2d 1303, 1306 (1988).\n Likewise, appellant's claim that his former trial counsel was\n ineffective for failing to advise him of post-conviction remedies did not\n constitute good cause. Former trial counsel did not have a constitutional\n duty to inform appellant about the availability of post-conviction remedies.\n See Hathaway, 119 Nev. at 252, 71 P.3d at 506 (recognizing that good\n cause must be a legal excuse); see also Miranda v. Castro, 292 F.3d 1063,\n 1066-68 (9th Cir. 2002) (holding that equitable tolling was not warranted\n where a petitioner relied on incorrect advice of former counsel because\n petitioner had no right to the assistance of counsel regarding post-\n conviction relief); Pena v. U.S., 534 F.3d 92, 95-96 (2d Cir. 2008) (holding\n that the right to the effective assistance of counsel in a first-tier appeal\n\n\n 3 Theperiod for filing a timely petition was 366 days due to the leap\n year in 2012. See Gonzales v. State, 118 Nev. 590, 593 n.7, 53 P.3d 901,\n 903 n.7 (2002).\n\n\n\n\nSUPREME COURT\n OF\n NEVADA\n 2\n(0) 1947A\n\f does not encompass a requirement that an attorney inform his client of the\n possibility of certiorari review or that the attorney assist the client in\n preparing such a petition); Moore v. Cockrell, 313 F.3d 880, 882 (5th Cir.\n 2002) (holding that the right to counsel ends when the decision by the\n appellate court is entered). Accordingly, we\n ORDER the judgment of the district court AFFIRMED.\n\n\n\n\n J.\n Hardesty\n\n\n\n\n cc: Hon. Michelle Leavitt, District Judge\n Terrance Michael Barksdale\n Attorney General/Carson City\n Clark County District Attorney\n Eighth District Court Clerk\n\n\n\n\nSUPREME COURT\n OF\n NEVADA\n 3\n(0) 1947A\n\f", "ocr": false, "opinion_id": 1085822 } ]

[ "650 P.2d 311", "32 Cal. 3d 307", "185 Cal. Rptr. 436" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3791, "opinion_text": "\n32 Cal. 3d 307 (1982)\n650 P.2d 311\n185 Cal. Rptr. 436\nTHE PEOPLE, Plaintiff and Respondent,\nv.\nDOROTHY SUZANNE WICKERSHAM, Defendant and Appellant.\nDocket No. Crim. 22406.\nSupreme Court of California.\nSeptember 2, 1982.\n*312 COUNSEL\nDennis P. Riordan, James Larson and Larson & Weinberg for Defendant and Appellant.\nGeorge Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, William D. Stein and Edward P. O'Brien, Assistant Attorneys General, Herbert F. Wilkinson, W. Eric Collins and Dane R. Gillette, Deputy Attorneys General, for Plaintiff and Respondent.\nOPINION\nBIRD, C.J.\nThis case raises several questions concerning a trial court's duty to give instructions sua sponte in criminal cases. What standard should the trial court apply in determining whether to give instructions on necessarily included offenses? Did the evidence in the present case require instructions on voluntary manslaughter and second degree murder? Should the doctrine of \"invited error\" be invoked where the defense counsel has not articulated a deliberate tactical objection to required instructions?\n\nI.\nAppellant was convicted of first degree murder in the shooting death of her husband, Curt, who died on September 8, 1979. (Pen. Code, *313 §§ 187, 189.)[1] The jury also found that appellant had used a firearm within the meaning of section 12022.5.[2]\nShortly after 1:30 p.m. on September 8th, appellant telephoned the Marin County Communications Center to request emergency relief because of \"a terrible accident.\" She then called her priest, Monsignor Keane, and asked him to come to the house. The Novato Police Department was contacted and informed that an accident had occurred at her home.\nPolice Sergeant Gary Barner was the first officer to arrive at the scene. He found a group of about 20 to 30 people standing in the street in front of appellant's home. Appellant, \"who appeared... to be hysterical,\" approached him. \"She was yelling hysterically.... [S]he said that her husband was in the house and had been shot.\" In response to the officer's question, appellant stated that she had done the shooting. She also told him that her husband was in the bedroom and the gun was at a neighbor's house.\nOfficer Michael Funk arrived and stayed with appellant while Sergeant Barner began to search the house. As he started up the stairs to the second floor, he saw appellant's husband's body near the wrought iron railing on the landing above. Barner determined that Curt was dead.\nTwo paramedics arrived soon after Officer Funk. Robert Weber, one of the paramedics, testified that the body was lying face down and the head and arms were protruding through the railing. When the body was turned over and the shirt collar removed, Weber noticed a bullet hole above the right breast.\nOfficer Lance McHenry arrived at the same time as the paramedics. McHenry had met appellant two months earlier when she sought police protection because of alleged threats made by Curt.\nOfficer McHenry testified that on September 8th, appellant \"ran up to me in a hysterical-type condition\" and made several statements. Some of the comments were unintelligible because of her condition. She did state that her husband had been depressed, that the shooting was an *314 accident, and that things had been going well for them. She asked several times how her husband was. At one point she told McHenry, \"He went crazy, you know. I've told you before. He pulled the hammer back. We were in the bedroom. He was so depressed. He had been with the kids all day.\" At that point, appellant became hysterical again.\nMcHenry asked if anyone knew the location of the gun. Appellant pointed to a neighbor's house and said, \"It's in there.\" She walked over to the neighbor's garage, pointed toward the back, and said, \"I put it up there away from the kids.\" McHenry could see the gun on top of a hot-water heater.\nUpon returning to the street in front of her house, appellant stated, \"He was depressed. He went crazy and started towards me. His hand went into his pocket. And I know he carries a gun there. And then he pulled the hammer back.\" She became hysterical again and then stated, \"It was an accident. I didn't have any malice.\"\nAppellant asked McHenry if he thought she needed an attorney. He stated that she could call one if she wished. Sergeant Barner, returning from the house, advised McHenry that it would be best to take appellant to the police station. McHenry asked appellant if she wanted to go to the station with him. She agreed.\nOn the way to the station, appellant again asked if she needed an attorney. McHenry told her that she could call one. She then asked if she could stop by a church to pray. McHenry allowed her to do so.\nOnce at the station, appellant was brought into the employee lounge. When she asked to use the bathroom, McHenry told her that a female clerk would accompany her and that she could not wash her hands because a test would be performed on them. Appellant stated, \"You know I fired the gun. I told you.\" Appellant also stated, \"I didn't mean to hurt him.\" Again, appellant asked if she needed an attorney and was told that she could call one. Instead, she called to find out if her children were all right.\nJanice Arnheiter, a friend of appellant, was then brought in to see her. Appellant told Arnheiter, \"He was depressed. The gun was on the shelf and he went crazy when he saw it. He reached for it and I grabbed it. He pulled the hammer back and it went off. I was holding the gun. My finger was, you know, where it went off.\"\n*315 Appellant was then taken to an interview room by Officer McHenry and Lynne Wald, senior clerk at the police station. She was advised of her Miranda[3] rights. Appellant stated that she had kept the gun in the closet because it was the easiest place to get to if someone broke in. At one point, she stated that she did know how to use the gun, but later she stated that Curt had taught her how to shoot another weapon many years before. When informed that Curt had died, appellant asked to use the phone to break a tennis date for the following day.\nBack at the house, the officers searched the premises for additional bullets, but did not find any. At the top of the stairs, near the bedroom, the officers found a blue shirt wadded up in the corner against the wall.\nIn a closet in the bedroom, two boxes were found, one for a revolver and one for ammunition. The boxes were barely visible behind hats and shoe boxes. Five bullets were missing from the box of ammunition.\nErvin Jindrich, the county coroner, performed the autopsy. The cause of death was determined to be a gunshot wound. Jindrich stated that the bullet entered the right chest at a point approximately five inches to the right of the midline of the body. The bullet traversed the right thoracic cavity, the space in which the lung is confined, on a generally horizontal plane. The bullet went slightly from right to left within the body. Jindrich was unable to determine the distance of the gun from the body because no powder residue was found on the skin. He further stated that Curt could have been bent over at the time of the shooting.\nWilliam Corazza, a criminalist with the California Department of Justice, examined the blue shirt and the weapon recovered from the neighbor's garage. The shirt contained bullet holes and smoke and powder residues, consistent with a bullet passing through the shirt at close range. According to the criminalist's best calculations, \"the shirt was somewhat bunched above the weapon. It was not wrapped tightly around it....\"\nRegarding the weapon, Corazza noted that the cylinder has a five-bullet capacity. Two circles of smoke residue around the opening of the chambers in the cylinder indicated that the weapon had been fired two times since its last cleaning. Corazza explained that the weapon could *316 operate in both single and double action. In double action, it is necessary only to pull the trigger to fire the weapon. In single action, the hammer must be pulled back first, then the trigger pulled. The weapon was operable and could not accidently discharge by jarring.\nCorazza stated that it would be possible to push the hammer back while facing the gun. With the gun operating in single action, only five pounds of pressure on the trigger was required to fire the weapon once the hammer was pulled back. Corazza also testified that the weapon contained two expended rounds and three live rounds, one of which was at the top of the cylinder underneath the hammer. In order to reach this configuration, it was his opinion that the weapon must have been fired twice; then, either the weapon was cocked and the hammer let down gently or it was partially cocked and the cylinder was rotated manually.\nThe prosecution claimed that the shooting was premeditated and deliberate murder. It alleged that appellant killed her husband because of jealousy and for financial gain.\nAppellant and her husband lived in Novato and had five children. Curt worked as an investigator for the United States Customs Service. His work caused him to be away from the home quite often. Appellant had asked him to change jobs so that he could spend more time at home. When this did not happen, appellant asked Curt to move out of the house. He did so on February 12, 1979, and moved in with Frank Orrantia, another customs investigator.\nAppellant filed a petition for dissolution of marriage on February 21, 1979. Soon thereafter, she contacted Attorney Richard Barry and asked him to draw up a marital settlement agreement to which she and Curt had agreed. Under the agreement, appellant received the house and its furnishings, one of their two cars, and the proceeds from the sale of the other car to pay certain debts. Curt was to receive the entire interest in federal Civil Service retirement benefits. In addition, the children would be named beneficiaries of his government life insurance policy. Curt would be obligated to pay $325 a month spousal support and $875 per month child support.\nBarry told appellant that, in the event of her husband's death, her spousal support would cease. He also told her that she was giving up all claim to Curt's retirement benefits and that these benefits might be worth more than her property under the agreement. Some time before *317 the end of August, Barry's office received a message from appellant not to file the final judgment because she was going to have surgery and wanted the medical expenses covered by Curt's employment benefits. No final judgment was entered.\nAppellant also spoke with Barry about obtaining a restraining order against her husband. She told Barry that she was afraid of her husband and he was very volatile. Although he had never hurt her, she said that he always seemed to be just on the verge of striking her. She also stated that she was afraid he would take the children and disappear with them. Appellant further stated that Curt sometimes wore a gun at the house.\nMarguerite Banks, a United States Customs personnel staffing specialist, testified that Curt had a $43,000 life insurance policy with a double indemnity clause for accidental death. As a matter of course, the beneficiaries of the policy were appellant and the children. As of September 8, 1979, the policy would pay a monthly annuity to appellant of $685 and yearly benefits of $864 for each child. On October 8, 1979, one month after the shooting, claim forms were filed on appellant's behalf under the policy. An attorney presented the forms along with a letter explaining that the claim was for the children's benefits. The attorney enclosed a copy of the marital settlement agreement.\nAfter Curt moved out of the Novato home, he began dating Mary Ann Steinbeck. Sometime around May, they began living together. According to Steinbeck, Curt was relieved when the divorce proceedings started. He was expecting to get a promotion and a new job in Washington, D.C. and Steinbeck testified that she was planning to move with him. She denied she ever saw him wear a gun and stated that on September 8, he was wearing tight pants and was not carrying a gun.\nSeveral witnesses testified that appellant made frantic efforts to meet Steinbeck. Richard Warner, a customs criminal investigator, testified that appellant questioned him about Steinbeck's background and where she worked. He further stated that Curt seemed happy and was looking forward to his transfer to Washington.\nMarie Mouchka, a friend of appellant, testified that appellant was trying desperately to find Steinbeck. Appellant called Mouchka many times to report on the progress of her search. Once appellant stated that *318 she was going to go to Fresno because she had heard that Steinbeck worked there. On different occasions, appellant had the operator interrupt Mouchka's phone conversations with emergency messages. When appellant got on the line, she would relay some information about the divorce proceedings or her finances.\nFrank Orrantia, a colleague of Curt, also reported numerous conversations with appellant. He testified that appellant told him several times that Curt appeared depressed and that she was afraid he might commit suicide. She also asked him about Steinbeck. On May 14, Orrantia's phone conversation with his ex-wife was interrupted by the operator who stated that appellant wanted to talk to him because of an emergency. Appellant told Orrantia that Curt had threatened her and that she had called the police. Orrantia spoke with Curt and then called appellant. He told her that he did not think Curt had threatened her. At that point, appellant appeared to get upset with him and said that Curt had made threats in the past.\nOn July 10th, appellant called the Novato Police Department to request an officer. Officer McHenry responded. Appellant told him that Curt had been threatening her since the separation and that he had called her several times drunk or enraged. She stated that on one occasion Curt had taken a gun out of his pocket and exposed it in a threatening manner. Since Curt was coming over later that day, she wanted an officer present. McHenry advised her to keep the doors locked and said that if Curt came, she could call the police department and an officer would be sent to her home. Appellant also asked the officer if she should purchase a gun. He advised her not to, especially if she did not know how to use one.\nOn Mother's Day, appellant called Ms. Mouchka, who worked as a nurse at the Suicide Prevention Center. According to Mouchka, appellant said that Curt had ruined the day by coming late for dinner. He was still at the house and appellant wanted to know how many Valiums it would take to harm someone. Mouchka laughingly said, \"My God, Suzanna, you're going to kill him.\" Appellant replied, \"No. I just want to give him enough for him to tell me the truth who that woman is.\" When appellant said that she was crushing the Valiums in wine, Mouchka told her that was a lethal combination. Appellant responded, \"Oh, don't be overly dramatic.\" Appellant called back later to say that Curt had refused the wine because it tasted bitter.\n*319 Mouchka also reported a conversation with appellant which she thought took place in August. To Mouchka's comment that appellant had to face the fact that the divorce was going forward, appellant replied that Curt wanted to pick up the final divorce papers but he was not going to. Appellant stated that she was not going to be divorced.\nJoe Stavish, a carpenter, was hired to do some work on appellant's house in May. He stated that he became sexually involved with her a few weeks after he was hired. The relationship lasted for several weeks. Stavish testified that he had about six conversations with appellant about killing her husband. He stated that she offered him $5,000 to kill Curt. Appellant suggested various means of accomplishing the task, including shooting him in an underground garage while he was at work in Hawaii. Appellant allegedly stated that she would get more money if Curt were killed while on duty. Stavish rejected her offer and demanded $10,000, which she said was too much. He also pointed out to her better ways of killing Curt than she had suggested. Stavish finally got tired of hearing her talk about the subject and told her to stop the conversations. Appellant replied that she would kill Curt herself. Stavish advised her to stand close to Curt and fire the weapon quickly.\nStavish also reported that appellant told him about the Valium incident. She said that she had put Valium in Curt's wine either to try to kill him or to put him to sleep. He could not recall which of these motives she had expressed.\nAccording to Stavish's trial testimony, he came by appellant's home on September 2d, to see if she had finished a particular project. She told him that Curt was such a miserable person that she would be doing him a favor to put him out of his misery. Stavish conceded that he had not mentioned this statement at the preliminary hearing.\nStavish testified that he had talked to appellant about his plans for killing his father when he was younger. From the age of 14 to 17, Stavish seriously contemplated killing his father by various means. Stavish also stated that during about half of his conversations with appellant he was under the influence of marijuana or liquor. He stated that he participated in the conversations to allow appellant to let off steam. He thought that she was fantasizing. As for her demeanor, \"[s]he'd get really upset and then she'd freeze and get like in a catatonic state where she'd be like motionless, but obviously very, very upset.... She *320 couldn't talk. And she'd get really upset. Her voice would just choke off completely.\"\nPaulette Baccioco met appellant in 1978 at Dominican College. Appellant complained to Baccioco about her financial problems after her separation from Curt. According to Baccioco, appellant refused to get a job and stated to Baccioco that if she killed her husband, her financial problems would be solved. From March through June, appellant discussed killing Curt \"frequently.\" Appellant mentioned that she would receive a little less than $100,000 from the insurance coverage if Curt died.\nBaccioco also testified about a telephone call from appellant in which she stated that she was trying to give Curt the wine with Valium. She asked Baccioco how she could get Curt to drink it. Baccioco refused to help.\nFinally, appellant told Baccioco that Stavish would not help her kill Curt. According to the witness, appellant stated, \"You are so bright, you can help me figure out a way to kill my husband.\" On cross-examination, Baccioco admitted that she had forgotten about these conversations until reminded after Curt's death by a friend to whom she had repeated the discussions.\nPat Libby testified that the day before the shooting appellant said Curt was coming over to the house the next day. According to Libby, appellant told her \"that if she got through tomorrow, everything would be okay.\" After Curt died, appellant told Libby that Curt's death was probably for the best because he had stopped seeing the children while he was alive.\nRae Ellen Mercer, a marriage counselor, saw the Wickershams singly and together on several occasions from March to June. Appellant told Mercer that she did not want a divorce and wanted Curt to come back. She also told Mercer about an incident in which she found a gun in Curt's car. She stated that she did not know what she meant to do when she had the gun in her hand. According to Mercer, appellant was emotional, occasionally hysterical.\nAnna Satenstein performed a \"spiritual reading\" for appellant on April 21st. Appellant returned on April 30th when Curt was meeting *321 with Mercer and asked Satenstein to tell her what was occurring at that meeting. Satenstein refused.\nAppellant testified in her own defense. She said that Curt occasionally carried a gun in his waistband if he was called out at night. Although Curt had never hit her, she thought he had the potential to do so, based on violent acts he had performed as a police officer during the Watts riots and as a soldier in Korea. Appellant denied trying to locate Steinbeck. She further stated that she knew she had waived all rights to Curt's insurance and retirement benefits. She stated that she had not asked her attorney to delay the dissolution proceedings. She denied making the various threatening statements related by Stavish, Baccioco, and Mouchka and the postmortem statement related by Libby. Regarding Stavish, she said that he had first brought up the subject of killing Curt by offering to do it for $10,000. Appellant rejected the suggestion immediately. She also stated that Stavish had stolen lumber from her.\nAppellant claimed that she had put only five milligrams of Valium in Curt's wine and did so simply to calm him down when he was upset. Concerning the incident involving the gun in the glove compartment, appellant testified that she had opened the glove compartment to take out some maps and a first-aid kit. The gun was on top of those items and had to be removed in order to retrieve them. When Curt, who was approaching the driver's side of the car, saw the gun, he became scared and acted \"erratic.\" According to appellant, Curt attempted to \"struggle with that gun.\" Appellant told him that he should not have a gun in the car with the children present.\nAppellant testified about another incident in which her car twice ran into Curt's, once from the rear and once from the front. She ascribed the incident to inattention, although she admitted being frustrated and upset that day because she had told him to collect his things and leave for good. This was the last time she saw him before September 8th.\nOn July 5, 1979, appellant purchased the weapon which was involved in the shooting. She testified that she bought the gun to protect her home and that there had always been a gun in the house for protection.\nConcerning the day of the shooting, appellant stated that Curt came to the house about 10:30 a.m. They were on friendly terms, and Curt made some minor house repairs before taking the children to lunch. Appellant began gathering Curt's things for him. When Curt came back, *322 they began to pack some of his shirts which were in a closet in which the gun was kept. When appellant began removing Curt's shirts from the closet, he saw the gun and asked, \"What's that gun?\" with a \"slight bit of alarm in his voice.\" Appellant answered, \"It's mine.\" With her back to Curt, appellant \"sensed he was moving towards me.\" Afraid that he would take the gun, she scooped the weapon up with five or six shirts. When she turned back, Curt reached to get the gun. There was a short scuffle and the gun went off. After the shot, Curt reached behind him. Thinking that he had a gun, appellant left the room and took her son, who was standing in the doorway. She did not return to the room, but placed the gun in the neighbor's garage and made the emergency phone calls. Appellant denied intending to fire the weapon or to kill her husband.\nJanice Arnheiter, who had hired Stavish to do carpentry work, testified that he was not believable. In addition, he told her that he had discussed his testimony with Baccioco.\nVarious witnesses testified concerning appellant's reputation for honesty and nonviolence. These witnesses included a San Francisco police captain, her priest, and her psychiatrist.\nBefore final argument to the jury, the court discussed the instructions with both counsel. The discussion was as follows:\n\"THE COURT: [CALJIC No. 5.00] was requested concerning excusable homicide, lawful act. I believe the District Attorney asked for that.\n\"You have no objection to that, I assume?\n\"[Defense Counsel]: No, I do not.\n\"THE COURT: And, last, the Defendant did request the lesser-included instructions, particularly 17.10, the introductory, and the involuntary manslaughter instructions, 8.45, 8.46, and 3.32.\n\"Is that what your request is?\n\"[Defense Counsel]: Yes, your Honor.\n\"THE COURT: I'll also give the jury the instruction concerning the use of a firearm.\n*323 \"[Defense Counsel]: The Defendant does object to that on the ground that it's, with respect to first-degree murder, it's immaterial. A finding is ineffective.\n\"And, secondly, with respect to the crime of involuntary manslaughter, by its very definition, the crime would exclude use of a gun in the sense of using a gun instead of accidentally firing it.\n\"THE COURT: Okay. I'll give 17.19, the use instruction, nevertheless, together with a verdict form for the jury in the event they find the Defendant guilty of either murder or involuntary manslaughter.\n\"I'll give them the verdict form for the use of the firearm over the Defendant's objection.\"\nThe court thereupon instructed the jury on excusable homicide (CALJIC No. 5.00), the definitions of murder (CALJIC No. 8.10 (1979 rev.)) and malice aforethought (CALJIC No. 8.11 (1979 rev.)), first degree premeditated and deliberate murder (CALJIC No. 8.20 (1979 rev.)), and involuntary manslaughter as a necessarily included offense (CALJIC Nos. 17.10, 8.45 (1979 rev.), 8.46, 3.32, 8.74 (1976 rev.), and 8.72).\n\nII.\nAppellant contends that the trial court erred in not instructing sua sponte on second degree murder and voluntary manslaughter.\nThe trial court functions both as a neutral arbiter between two contesting parties and as the jury's guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. (1) \"`It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' (People v. St. Martin (1970) 1 Cal. 3d 524, 531 [83 Cal. Rptr. 166, 463 P.2d 390].) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal. 3d 444 [82 Cal. Rptr. 618, 462 P.2d 370]), but not when *324 there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal. 3d 469, 479 [96 Cal. Rptr. 441, 487 P.2d 1009]; People v. Osuna (1969) 70 Cal. 2d 759, 767 [76 Cal. Rptr. 462, 452 P.2d 678].)\" (People v. Sedeno (1974) 10 Cal. 3d 703, 715-716 [112 Cal. Rptr. 1, 518 P.2d 913].)\nThe fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts — not limited by the strategy, ignorance, or mistakes of the parties. The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories. \"Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. (People v. St. Martin, supra, 1 Cal. 3d 524, 533.)\" (Sedeno, supra, 10 Cal.3d at p. 716.) Furthermore, where counsel is not aware of alternative verdicts or incorrectly believes them to be irrelevant to the case, the trial court's action will avoid an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits. These policies reflect concern both for the rights of persons accused of crimes and for the overall administration of justice.\nIn Sedeno, supra, 10 Cal.3d at page 716, this court stated that the trial court was obligated to instruct on necessarily included offenses and to give requested instructions \"whenever there is `any evidence deserving of any consideration whatsoever....'\" (Citing People v. Carmen (1951) 36 Cal. 2d 768, 773 [228 P.2d 281].) In People v. Flannel (1979) 25 Cal. 3d 668, 684-685, footnote 12 [160 Cal. Rptr. 84, 603 P.2d 1], the lead opinion disapproved the suggestion that \"jury instructions must be given whenever any evidence is presented, no matter how weak\" in the context of requested instructions on diminished capacity. (Italics in original.) The lead opinion stated that the court need only give the instruction if the accused proffers evidence sufficient to \"deserve consideration by the jury, i.e., `evidence from which a jury composed of reasonable men could have concluded'\" that the particular facts underlying the instruction did exist. (At p. 684, quoting from People v. Carr (1972) 8 Cal. 3d 287, 294 [104 Cal. Rptr. 705, 502 P.2d 513].)\nThis does not require — or permit — the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to *325 exist. Thus, in Flannel, the mere fact that the accused had \"consumed relatively small amounts of alcohol over a long period of time\" (25 Cal.3d at p. 685) did not warrant giving an instruction on diminished capacity.\nFlannel did not directly discuss the standard to be utilized in determining when the court has a duty to instruct sua sponte on necessarily included offenses. However, logic would seem to require that the same standard should generally apply.[4] (2) The trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses. (See People v. Ramos (1982) 30 Cal. 3d 553, 582 [180 Cal. Rptr. 266, 639 P.2d 908].) This rule ensures that the jury's attention is properly focused on the relevant legal theories.\nIn Sedeno, this court distinguished voluntary manslaughter due to heat of passion from other necessarily included offenses for purposes of the duty to instruct sua sponte. (3) Normally, an intentional killing is at least second degree murder, but such a killing is voluntary manslaughter if \"shown to have been committed in a heat of passion upon sufficient provocation.... [¶] However, unless it appears from the prosecution's case that the killing was committed in the heat of passion and upon sufficient provocation the burden is on the defendant to raise a reasonable doubt in the minds of the jurors that malice was present. [Citation.]\" (10 Cal.3d at p. 719.) Therefore, \"[b]efore a court must instruct sua sponte on voluntary manslaughter in the heat of passion as a lesser offense included within murder there must be either some evidence that heat of passion was present at the time of the killing or some reason for the court to know that the defendant is relying on that theory of manslaughter as a defense.\" (Ibid.)\nThis standard is compatible with that promulgated in Flannel. (4) The trial court need not instruct sua sponte on voluntary manslaughter due to heat of passion unless there is evidence sufficient to \"deserve consideration by the jury, i.e., `evidence from which a jury composed of reasonable men could have concluded'\" that the accused acted intentionally but without malice. (Flannel, supra, 25 Cal.3d at p. 684.) Once there is sufficient evidence to warrant this conclusion, the trial court is obligated to instruct on the theory.\n*326 Regarding defenses, Sedeno held that \"the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case. Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon.\" (Sedeno, supra, 10 Cal.3d at p. 716.)\nHaving delineated the applicable standards, this court must next decide whether the evidence at trial required sua sponte instructions on second degree murder and voluntary manslaughter. These crimes, of course, are offenses necessarily included within first degree murder.\n(5a) Appellant advances two possible theories of voluntary manslaughter — heat of passion and unreasonable self-defense. (6) In People v. Berry (1976) 18 Cal. 3d 509, 515 [134 Cal. Rptr. 415, 556 P.2d 777], this court quoted People v. Valentine (1946) 28 Cal. 2d 121, 139 [169 P.2d 1] regarding the appropriate instructions to be given the jury upon a claim of voluntary manslaughter due to heat of passion: \"`The jury is ... to be admonished and advised by the court that this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.... For the fundamental of the inquiry is whether or not the defendant's reason was, at the time of his act, so disturbed or obscured by some passion — not necessarily fear and never, of course, the passion for revenge — to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.'\"\n(7) To satisfy the objective or \"reasonable person\" element of this form of voluntary manslaughter, the accused's heat of passion must be due to \"sufficient provocation.\" (Sedeno, supra, 10 Cal.3d at p. 719.) However, as this court stated in Berry, \"there is no specific type of provocation required by section 192[[5]] and ... verbal provocation may be sufficient.\" (18 Cal.3d at p. 515.)\n*327 The subjective element requires that the actor be under the actual influence of a strong passion at the time of the homicide. \"In People v. Borchers (1958) 50 Cal. 2d 321, 329 [325 P.2d 97] in the course of explaining the phrase `heat of passion' used in the statute defining manslaughter we pointed out that `passion' need not mean `rage' or `anger' but may be any `[v]iolent, intense, high-wrought or enthusiastic emotion' and concluded there `that defendant was aroused to a heat of \"passion\" by a series of events over a considerable period of time....' (50 Cal.2d at p. 328, 329.)\" (Berry, supra, 18 Cal.3d at p. 515.) However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter — \"the assailant must act under the smart of that sudden quarrel or heat of passion.\" (CALJIC No. 8.42 (1979 rev.).)\n(5b) In the present case, there is certainly substantial evidence of intense emotion. Two police officers who observed appellant shortly after the shooting described her as \"hysterical.\" Many of her statements at that time were unintelligible. In addition, several witnesses testified that appellant was very distraught over Curt's involvement with Mary Ann Steinbeck.\nHowever, there is virtually no evidence of provocation, even under a view of the evidence most favorable to appellant. Appellant testified that she and Curt were in the bedroom for approximately 10 minutes before the fatal incident. They were getting his things together, going through old photographs, and reminiscing. She described him as \"very nostalgic.\" The last thing he asked her was, \"Do you think there's any hope we'd ever get back together?\" She answered, \"No.\"\nThe only possible source of provocation was the victim's grabbing of the gun. Appellant testified that she struggled with Curt for possession of the gun and implied that she was afraid he would use the gun if he obtained possession. Given the background of reported threats by the victim, the jury could have found that a reasonable person in appellant's position, faced with an attack of this nature, would have been overcome by fear and acted to repel the attacker.\nThis theory of voluntary manslaughter, however, would meet all the requirements of reasonable self-defense. The Legislature has deemed such self-defense to be justifiable homicide rather than voluntary manslaughter. (§ 197.) Hence, a trial court should not instruct on heat-of-passion *328 voluntary manslaughter where the same facts would give rise to a finding of reasonable self-defense.[6] (See Flannel, supra, 25 Cal.3d at p. 678; People v. Mitchell (1939) 14 Cal. 2d 237, 241-242 [93 P.2d 121]; People v. Manzo (1937) 9 Cal. 2d 594, 598-599 [72 P.2d 119].)\nWhether or not the evidence warranted an instruction on heat of passion, the alternative theory of unreasonable self-defense was certainly raised by the facts. (8) \"An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.\" (People v. Flannel, supra, 25 Cal.3d at p. 674, italics omitted.) (5c) Based on appellant's testimony, the jury could have found that (1) she picked up the gun only after her husband had noticed it and because she divined that he was coming over to take it; (2) he grabbed for the gun and attempted to take it from her; (3) she recalled at that moment a previous incident in which he had fought her for possession of a gun. Other evidence established that appellant had reported threats on her life made by her husband. Furthermore, certain of appellant's statements following the shooting lend support to this theory.[7] Given these facts, the jury could have found that appellant honestly believed that her life was in danger and had acted in accordance with that belief.\nThis scenario is consistent with appellant's testimony except for the cause of the gun being fired. The \"unreasonable self-defense\" type of voluntary manslaughter is premised on an intentional killing, whereas appellant testified that the gun went off by accident in the midst of the struggle. This, however, does not preclude a jury determination that in fact appellant pulled the trigger out of fear. The jury was entitled to reject that portion of appellant's testimony which sought to explain the shooting as an accident and still find that appellant had not acted with malice. (See People v. Shavers (1969) 269 Cal. App. 2d 886, 889 [75 Cal. Rptr. 334].)\nHence, the evidence was sufficient to justify a finding of unreasonable self-defense and the trial court would have erred had it denied a request for instructions on this theory. (See People v. Dewberry (1959) *329 51 Cal. 2d 548, 557 [334 P.2d 852].) However, unreasonable self-defense comes within Sedeno's category of \"defenses\" for purposes of the obligation to instruct sua sponte. As noted above, the trial court need only instruct on a particular defense \"if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.\" (Sedeno, supra, 10 Cal.3d at p. 716.)\nIn the present case, appellant testified that the shooting was an accident and that she did not intend to kill her husband. It is clear from the record that appellant was not relying on unreasonable self-defense and that this theory was inconsistent with her proffered defense. Thus, the trial court was under no obligation to instruct on unreasonable self-defense in the absence of a specific request by counsel. (See Sedeno, supra, 10 Cal.3d at pp. 717-718.)\n(9a) Appellant further argues that instructions on second degree murder should have been given. (10) \"[T]he existence of provocation which is not `adequate' to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.\" (People v. Valentine, supra, 28 Cal.2d at p. 132; see also CALJIC No. 8.73 (1979) rev.).) Thus, where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory. The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.\n(9b) In the present case, there was such evidence. The jury could have found that appellant did not form the intent to kill her husband until after he had mentioned the gun, come toward her, and tried to grab it from her. Even if the jury found that there was not sufficient provocation to warrant a lethal response and that appellant was not truly in fear for her life, the jury could have concluded that these activities affected her decision to kill Curt and that she had not premeditated or deliberated.\n*330 Indeed, an instruction on second degree murder would have been required even in the absence of appellant's testimony regarding Curt's behavior. Although the evidence was sufficient to justify a finding of deliberation and premeditation, such a finding was not compelled. The jury could have found that appellant did not premeditate but rather acted upon a \"sudden and unconsidered impulse[].\" (People v. Fields (1950) 99 Cal. App. 2d 10, 13 [221 P.2d 190].) Hence, even if the jury rejected her testimony, that rejection did not require a conviction for first degree murder. Unlike certain felony-murder situations (see § 189), this is not a case in which appellant was either guilty of first degree murder or innocent of any charge.\nThus, the trial court erred in not instructing sua sponte on second degree murder. There was sufficient evidence to warrant jury consideration of this alternative verdict.\n(11a) Respondent contends that any error in this regard was invited by defense counsel. It is argued that, even if the trial court was required by the evidence to give instructions on necessarily included offenses, reversal is not required because \"defense counsel, intentionally, and for tactical purposes, chose to limit the lesser included offenses to involuntary manslaughter.\"\nThe doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. (12) (See fn. 8.) However, because the trial court is charged with instructing the jury correctly,[8] it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.\nThe seminal case concerning invited error is People v. Graham (1969) 71 Cal. 2d 303 [78 Cal. Rptr. 217, 455 P.2d 153]. There, this court found error in the trial court's failure to instruct on voluntary and involuntary manslaughter due to diminished capacity.[9]\n*331 The Attorney General argued in that case that any error in the homicide instructions was invited by counsel. As the Graham opinion relates, \"The trial court formulated many instructions `on the record.' At one point the court inquired whether a combination of its proposed homicide instructions satisfied the attorneys. The court said, `As I understand, everyone agrees that there is no evidence from which involuntary manslaughter could be found; the only type of manslaughter that could be found here would be voluntary.' The court read its proposed voluntary manslaughter instruction. It then stated, `That combination of instructions would probably instruct the jury as to the law that's....' All three defense counsel interrupted the judge and stated, `That's agreeable.'\" (Id., at p. 317.)\nThis court noted that the question posed was whether \"the trial court's affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel.\" (Id., at pp. 317-318.) In People v. Phillips (1966) 64 Cal. 2d 574 [51 Cal. Rptr. 225, 414 P.2d 353], the court had found such \"invited error\" where defense counsel strongly opposed certain instructions for specific tactical reasons. (Id., at pp. 580-581, fn. 4.) According to Graham, the rule derived from Phillips is \"that the court's responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.\" (Graham, supra, 71 Cal.2d at p. 318.)\nSuch a rule, Graham stated, was required by statutes concerning the scope of appellate review of instructions. Former sections 1259 and 1469 both provided that \"`an appellate court may review an instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.'\"[10] (Graham, supra, 71 Cal.2d at p. 319.)\n(13) This rule is necessary to ensure that an accused's right to complete instructions is fully protected. \"As the court forcefully stated in *332 People v. Keelin (1955) 136 Cal. App. 2d 860, 874 [289 P.2d 520, 56 A.L.R. 2d 355], `Nevertheless, error is nonetheless error and is no less operative on deliberations of the jury because the erroneous instruction may have been requested by counsel for the defense. After all, it is the life and liberty of the defendant in a case such as this that is at hazard in the trial and there is a continuing duty upon the part of the trial court to see to it that the jury are properly instructed upon all matters pertinent to their decision of the cause.' Accordingly, if defense counsel suggests or accedes to the erroneous instruction because of neglect or mistake we do not find `invited error'; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court's obligation to instruct in the cause.\" (Id., at p. 319.)\nThe Graham court found no invited error regarding the omitted manslaughter instructions. Counsel never expressed a tactical objection to an instruction on involuntary manslaughter. Rather, the record indicated a strategy of offering the jury as many different verdicts as possible. (Id., at p. 320.) Counsel's acceptance of an instruction on voluntary manslaughter which did not refer explicitly to diminished capacity \"could not have been\" invited. (Id., at p. 321.) In any event, the trial court went on to instruct on the statutory definition of voluntary manslaughter, thus implicitly removing consideration of the defense of diminished capacity from the jury. (Id., at pp. 321-322.)\nIn People v. Mosher (1969) 1 Cal. 3d 379 [82 Cal. Rptr. 379, 461 P.2d 659], a trial court again failed to give certain required instructions on voluntary manslaughter and involuntary manslaughter due to diminished capacity. This court found there was no invited error, since \"[d]efense counsel did not express a deliberate tactical purpose in suggesting, resisting, or acceding to the erroneous instruction. [Citation.]\" (Id., at p. 393.)\nEven where counsel has suggested an erroneous instruction, the doctrine of invited error is not invoked unless counsel articulated a tactical basis for the choice. (See People v. Watts (1976) 59 Cal. App. 3d 80, 85-86, fn. 2 [79 Cal. Rptr. 409]; People v. Williams (1971) 22 Cal. App. 3d 34, 58 [99 Cal. Rptr. 103] [\"Obviously, defense counsel's request and agreement were not tactical ploys, the engagement in which would invoke the doctrine of invited error.\"]; People v. Aikin (1971) 19 Cal. App. 3d 685, 702 [97 Cal. Rptr. 251].) Those cases in which invited *333 error has been found are reported in Graham, supra, 71 Cal.2d at page 318 and include just such explicit statements.\n(11b) Under the Graham rule, counsel must express a deliberate tactical purpose in objecting to a particular instruction before the failure to give that instruction will be deemed invited error. It is clear that no such objection occurred in this case. The trial court which has the duty to instruct on applicable necessarily included offenses, never asked counsel for an opinion on second degree murder.[11] The court simply noted that appellant had requested instructions on involuntary manslaughter and asked, \"Is that what your request is?\" Defense counsel answered, \"Yes, your Honor.\"\nNeedless to say, the absence of a request is not equivalent to an express tactical objection. If counsel's failure to request a particular instruction were deemed sufficient to satisfy the invited error rule, the pivotal role and duty of the trial court would be rendered meaningless. Furthermore, defendants would suffer greatly from the mistakes and ignorance of their counsel, even though the trial court could have acted to prevent injustice. Applying the Graham rule to the present case, it is clear that counsel did not make an express tactical objection to the required instructions.\nRespondent, however, argues that as long as the reviewing court can infer from the record as a whole that defense counsel made a deliberate tactical decision not to request instructions on necessarily included offenses, the trial court's error should be deemed invited. Respondent refers to a statement in People v. Tidwell (1970) 3 Cal. 3d 82, 87 [89 Cal. Rptr. 58, 473 P.2d 762], that \"[i]n the absence of anything in the *334 record disclosing that counsel had `a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction,' we must assume that counsel merely failed to request the additional instructions because of neglect or mistake, which would be insufficient to nullify the trial court's obligation to properly instruct the jury on all the issues presented in that case.\" (Italics added.)\nIt is clear that this passage simply states a conclusion about the facts of Tidwell and does not constitute a modification of the Graham standard. If the test for invited error is whether \"anything in the record\" suggests a deliberate tactical purpose in failing to request a particular instruction, then invited error would be found wherever the accused had a tactical reason not to seek a necessarily included instruction. Since there is always a tactical reason not to want a necessarily included offense as an alternative — namely, to force the jury to an all-or-nothing choice — all situations would fit under that rule. In effect, the rule would require the exact opposite of Graham, i.e., an express statement that counsel is not opposed to necessarily included offense instructions for tactical reasons. Clearly, such a statement is not necessary in order to trigger the trial court's sua sponte duty.\nFurthermore, reviewing each record to determine why counsel was silent would not only be extremely difficult, but would call for delphic powers. How can a reviewing court decide if counsel's action or lack of it is founded on strategy, ignorance, mistake, or trust?\nThe present case graphically reveals the inherent difficulty of such an undertaking. Counsel may have believed that it was in his client's interest to give the jury three choices — first degree murder, involuntary manslaughter, or a not guilty verdict. Alternatively, counsel may not have been aware of the possible theory for a second degree murder conviction. Finally, counsel may have believed that the trial court would give the correct instructions and either failed to notice the omission or accepted the court's action as a decision that instructions on second degree murder were not required by the evidence. From the record before this court, it is impossible to tell which of these scenarios is correct.\nEven if this court were able to conclude that counsel had remained silent because of a tactical decision, invited error would not be found. Since the trial court's duty to instruct fully on the relevant legal theories is not dependent upon counsel, error in omitting required instructions cannot be waived by a party simply by the failure of its counsel to *335 demand the instructions. The issue centers on whether counsel deliberately caused the court to fail to fully instruct, not whether counsel subjectively desired a certain result. The error, in other words, must be \"invited.\"\n\"Our courts are not gambling halls but forums for the discovery of truth.\" (People v. St. Martin (1970) 1 Cal. 3d 524, 533 [83 Cal. Rptr. 166, 463 P.2d 390].) It is the obligation of trial counsel to assist the court in presenting all relevant instructions to the jury. At the same time, it is the trial court which bears the ultimate responsibility for properly instructing the jury. Since there was no express tactical objection made by counsel in the present case, the trial court's error in failing to instruct on second degree murder cannot be found to have been \"invited.\"\n(14) The failure to instruct on all necessarily included offenses deprives a defendant of the \"constitutional right to have the jury determine every material issue presented by the evidence.\" (People v. Modesto (1963) 59 Cal. 2d 722, 730 [31 Cal. Rptr. 225, 382 P.2d 33]; see also People v. Mosher, supra, 1 Cal.3d at p. 391.) \"[S]uch error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.\" (Sedeno, supra, 10 Cal.3d at p. 720, citing Modesto, supra, 59 Cal.2d at p. 730.) However, this court held in Sedeno that \"in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury's consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.\" (Sedeno, supra, 10 Cal.3d at p. 721.)\nIn Sedeno, the trial court erred in failing to give an instruction sua sponte on involuntary manslaughter due to diminished capacity. (10 Cal.3d at p. 720.) Such an instruction would have required the jury to specifically determine whether the accused had acted without an intent to kill and malice. The error was harmless as to the question of the intent to kill because the jury had received instructions on second degree murder without an intent to kill and had specifically and necessarily rejected *336 that theory by returning a verdict of first degree murder. (Id., at p. 721.) However, the error was not harmless, as to the question of malice, since instructions on felony murder had removed this issue from the jury's consideration. Thus, the jury did not necessarily reject a theory that the accused lacked malice. (Ibid.)\n(9c) In the present case, no instruction presented the jury with a theory of intentional homicide which was not premeditated and deliberate. Once the jury found that the killing was intentional, it had no choice but to return a verdict of first degree murder. Hence, \"the factual question posed by the omitted instruction\" — whether appellant had acted with malice and intent, but without premeditation and deliberation — was not \"necessarily resolved adversely to the defendant under other, properly given instructions.\" (Sedeno, supra, 10 Cal.3d at p. 721.) Since the jury was not required to decide specifically whether appellant had committed an intentional but nonpremeditated, nondeliberate murder, the trial court's error in failing to instruct on second degree murder cannot be deemed to be harmless. The judgment must be reversed.[12]\n\nIII.\nThe trial court erred by failing to instruct sua sponte on second degree murder. Given the evidence in this case, the jury could have found that appellant did not premeditate and deliberate. The error was not invited inasmuch as trial counsel did not make an express tactical objection to the required instructions. Nor was the error harmless within the meaning of Sedeno, because no other instruction presented the jury with a theory of intentional and malicious homicide lacking premeditation and deliberation.\nThe judgment is reversed.\nMosk, J., Newman, J., Kaus, J., Broussard, J., and Reynoso, J., concurred.\nRICHARDSON, J.\nI concur in the judgment, under the compulsion of People v. Graham (1969) 71 Cal. 2d 303 [78 Cal. Rptr. 217, 455 P.2d 153]. But for Graham and its progeny, we might well conclude that defense *337 counsel's failure to request instructions on second degree murder was a deliberate, tactical decision, constituting invited error which would cure the trial court's omission to give those instructions sua sponte. The record appears to support a finding that the defense counsel deliberately narrowed the jury's choice of verdicts to first degree murder, involuntary manslaughter, and excusable homicide.\nYet Graham requires that the record reveal that counsel actually \"expresse[d] a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction....\" (P. 319, italics added.) As the majority correctly states, defense counsel herein expressed to the trial court no tactical purpose in foregoing instructions on second degree murder. Accordingly, under Graham, no basis exists for finding invited error.\nIn my view, the Graham rule should be reconsidered and possibly discarded in favor of a rule which would permit a finding of invited error based upon reasonable inferences drawn from the record. (See People v. Tidwell (1970) 3 Cal. 3d 82, 87 [89 Cal. Rptr. 58, 473 P.2d 762].) Lacking majority support for reconsideration of Graham, however, I concur in the judgment under its compulsion.\nRespondent's petition for a rehearing was denied October 21, 1982. Richardson, J., was of the opinion that the petition should be granted.\nNOTES\n[1] Unless otherwise indicated, all statutory references hereafter are to the Penal Code.\n[2] The trial court struck the use finding.\n[3] Miranda v. Arizona (1966) 384 U.S. 436 [16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974].\n[4] Indeed, People v. Cantrell (1973) 8 Cal. 3d 672, 685 [105 Cal. Rptr. 792, 504 P.2d 1256], one of the cases disapproved by Flannel, concerned sua sponte duties. (Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12.)\n[5] Section 192 defines manslaughter.\n[6] Appellant does not contend that the trial court was under an obligation to instruct sua sponte on reasonable self-defense.\n[7] \"He went crazy and started towards me. His hand went into his pocket. And I know he carries a gun there.\" \"The gun was on the shelf and he went crazy when he saw it. He reached for it and I grabbed it.\"\n[8] \"The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]\" (People v. Sedeno, supra, 10 Cal.3d at p. 716.)\n[9] The trial court instructed the jury that diminished capacity could negate malice and that it could return a verdict of voluntary manslaughter, but it did not connect diminished capacity to the lesser included offense. (Id., at pp. 314-315.) The court gave no instructions on involuntary manslaughter due to unconsciousness from intoxication.\n[10] Section 1259 currently states, in relevant part, \"The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.\" Section 1469 states, in relevant part, \"The [appellate] court may also review any instruction given, refused or modified, even though no objection was made thereto in the trial court if the substantial rights of the defendant were affected thereby.\"\n[11] \"We deem it appropriate to emphasize that the duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests. If it appears to the court, however, that there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory. Such inquiry will afford assurance that the theory has not been inadvertently overlooked by counsel. (Cf. People v. Hood, supra, 1 Cal.3d at p. 449; People v. Wade (1959) 53 Cal. 2d 322, 334 [1 Cal. Rptr. 683, 348 P.2d 116].)\n\n\"When the charged offense is one that is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant under the rule obliging the court to instruct on lesser included offenses discussed supra.\" (Sedeno, supra, 10 Cal.3d at p. 717, fn. 7.)\n[12] Because the judgment must be reversed, the court does not consider the other issues raised by appellant.\n\n", "ocr": false, "opinion_id": 1357400 }, { "author_str": "Bird", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion\nBIRD, C. J.\nThis case raises several questions concerning a trial court’s duty to give instructions sua sponte in criminal cases. What standard should the trial court apply in determining whether to give instructions on necessarily included offenses? Did the evidence in the present case require instructions on voluntary manslaughter and second degree murder? Should the doctrine of “invited error” be invoked where the defense counsel has not articulated a deliberate tactical objection to required instructions?\nI.\nAppellant was convicted of first degree murder in the shooting death of her husband, Curt, who died on September 8, 1979. (Pen. Code, *313§§ 187, 189.)1 The jury also found that appellant had used a firearm within the meaning of section 12022.5.2\nShortly after 1:30 p.m. on September 8th, appellant telephoned the Marin County Communications Center to request emergency relief because of “a terrible accident.” She then called her priest, Monsignor Keane, and asked him to come to the house. The Novato Police Department was contacted and informed that an accident had occurred at her home.\nPolice Sergeant Gary Earner was the first officer to arrive at the scene. He found a group of about 20 to 30 people standing in the street in front of appellant’s home. Appellant, “who appeared ... to be hysterical,” approached him. “She was yelling hysterically .... [S]he said that her husband was in the house and had been shot.” In response to the officer’s question, appellant stated that she had done the shooting. She also told him that her husband was in the bedroom and the gun was at a neighbor’s house.\nOfficer Michael Funk arrived and stayed with appellant while Sergeant Earner began to search the house. As he started up the stairs to the second floor, he saw appellant’s husband’s body near the wrought iron railing on the landing above. Earner determined that Curt was dead.\nTwo paramedics arrived soon after Officer Funk. Robert Weber, one of the paramedics, testified that the body was lying face down and the head and arms were protruding through the railing. When the body was turned over and the shirt collar removed, Weber noticed a bullet hole above the right breast.\nOfficer Lance McHenry arrived at the same time as the paramedics. McHenry had met appellant two months earlier when she sought police protection because of alleged threats made by Curt.\nOfficer McHenry testified that on September 8th, appellant “ran up to me in a hysterical-type condition” and made several statements. Some of the comments were unintelligible because of her condition. She did state that her husband had been depressed, that the shooting was an *314accident, and that things had been going well for them. She asked several times how her husband was. At one point she told McHenry, “He went crazy, you know. I’ve told you before. He pulled the hammer back. We were in the bedroom. He was so depressed. He had been with the kids all day.” At that point, appellant became hysterical again.\nMcHenry asked if anyone knew the location of the gun. Appellant pointed to a neighbor’s house and said, “It’s in there.” She walked over to the neighbor’s garage, pointed toward the back, and said, “I put it up there away from the kids.” McHenry could see the gun on top of a hot-water heater.\nUpon returning to the street in front of her house, appellant stated, “He was depressed. He went crazy and started towards me. His hand went into his pocket. And I know he carries a gun there. And then he pulled the hammer back.” She became hysterical again and then stated, “It was an accident. I didn’t have any malice.”\nAppellant asked McHenry if he thought she needed an attorney. He stated that she could call one if she wished. Sergeant Barner, returning from the house, advised McHenry that it would be best to take appellant to the police station. McHenry asked appellant if she wanted to go to the station with him. She agreed.\nOn the way to the station, appellant again asked if she needed an attorney. McHenry told her that she could call one. She then asked if she could stop by a church to pray. McHenry allowed her to do so.\nOnce at the station, appellant was brought into the employee lounge. When she asked to use the bathroom, McHenry told her that a female clerk would accompany her and that she could not wash her hands because a test would be performed on them. Appellant stated, “You know I fired the gun. I told you.” Appellant also stated, “I didn’t mean to hurt him.” Again, appellant asked if she needed an attorney and was told that she could call one. Instead, she called to find out if her children were all right.\nJanice Arnheiter, a friend of appellant, was then brought in to see her. Appellant told Arnheiter, “He was depressed. The gun was on the shelf and he went crazy when he saw it. He reached for it and I grabbed it. He pulled the hammer back and it went off. I was holding the gun. My finger was, you know, where it went off.”\n*315Appellant was then taken to an interview room by Officer McHenry and Lynne Wald, senior clerk at the police station. She was advised of her Miranda3 rights. Appellant stated that she had kept the gun in the closet because it was the easiest place to get to if someone broke in. At one point, she stated that she did know how to use the gun, but later she stated that Curt had taught her how to shoot another weapon many years before. When informed that Curt had died, appellant asked to use the phone to break a tennis date for the following day.\nBack at the house, the officers searched the premises for additional bullets, but did not find any. At the top of the stairs, near the bedroom, the officers found a blue shirt wadded up in the corner against the wall.\nIn a closet in the bedroom, two boxes were found, one for a revolver and one for ammunition. The boxes were barely visible behind hats and shoe boxes. Five bullets were missing from the box of ammunition.\nErvin Jindrich, the county coroner, performed the autopsy. The cause of death was determined to be a gunshot wound. Jindrich stated that the bullet entered the right chest at a point approximately five inches to the right of the midline of the body. The bullet traversed the right thoracic cavity, the space in which the lung is confined, on a generally horizontal plane. The bullet went slightly from right to left within the body. Jindrich was unable to determine the distance of the gun from the body because no powder residue was found on the skin. He further stated that Curt could have been bent over at the time of the shooting.\nWilliam Corazza, a criminalist with the California Department of Justice, examined the blue shirt and the weapon recovered from the neighbor’s garage. The shirt contained bullet holes and smoke and powder residues, consistent with a bullet passing through the shirt at close range. According to the criminalist’s best calculations, “the shirt was somewhat bunched above the weapon. It was not wrapped tightly around it . ... ”\nRegarding the weapon, Corazza noted that the cylinder has a five-bullet capacity. Two circles of smoke residue around the opening of the chambers in the cylinder indicated that the weapon had been fired two times since its last cleaning. Corazza explained that the weapon could *316operate in both single and double action. In double action, it is necessary only to pull the trigger to fire the weapon. In single action, the hammer must be pulled back first, then the trigger pulled. The weapon was operable and could not accidently discharge by jarring.\nCorazza stated that it would be possible to push the hammer back while facing the gun. With the gun operating in single action, only five pounds of pressure on the trigger was required to fire the weapon once the hammer was pulled back. Corazza also testified that the weapon contained two expended rounds and three live rounds, one of which was at the top of the cylinder underneath the hammer. In order to reach this configuration, it was his opinion that the weapon must have been fired twice; then, either the weapon was cocked and the hammer let down gently or it was partially cocked and the cylinder was rotated manually.\nThe prosecution claimed that the shooting was premeditated and deliberate murder. It alleged that appellant killed her husband because *of jealousy and for financial gain.\nAppellant and her husband lived in Novato and had five children. Curt worked as an investigator for the United States Customs Service. His work caused him to be away from the home quite often. Appellant had asked him to change jobs so that he could spend more time at home. When this did not happen, appellant asked Curt to move out of the house. He did so on February 12, 1979, and moved in with Frank Orrantia, another customs investigator.\nAppellant filed a petition for dissolution of marriage on February 21, 1979. Soon thereafter, she contacted Attorney Richard Barry and asked him to draw up a marital settlement agreement to which she and Curt had agreed. Under the agreement, appellant received the house and its furnishings, one of their two cars, and the proceeds from the sale of the other car to pay certain debts. Curt was to receive the entire interest in federal Civil Service retirement benefits. In addition, the children would be named beneficiaries of his government life insurance policy. Curt would be obligated to pay $325 a month spousal support and $875 per month child support.\nBarry told appellant that, in the event of her husband’s death, her spousal support would cease. He also told her that she was giving up all claim to Curt’s retirement benefits and that these benefits might be worth more than her property under the agreement. Some time before *317the end of August, Barry’s office received a message from appellant not to file the final judgment because she was going to have surgery and wanted the medical expenses covered by Curt’s employment benefits. No final judgment was entered.\nAppellant also spoke with Barry about obtaining a restraining order against her husband. She told Barry that she was afraid of her husband and he was very volatile. Although he had never hurt her, she said that he always seemed to be just on the verge of striking her. She also stated that she was afraid he would take the children and disappear with them. Appellant further stated that Curt sometimes wore a gun at the house.\nMarguerite Banks, a United States Customs personnel staffing specialist, testified that Curt had a $43,000 life insurance policy with a double indemnity clause for accidental death. As a matter of course, the beneficiaries of the policy were appellant and the children. As of September 8, 1979, the policy would pay a monthly annuity to appellant of $685 and yearly benefits of $864 for each child. On October 8, 1979, one month after the shooting, claim forms were filed on appellant’s behalf under the policy. An attorney presented the forms along with a letter explaining that the claim was for the children’s benefits. The attorney enclosed a copy of the marital settlement agreement.\nAfter Curt moved out of the Novato home, he began dating Mary Ann Steinbeck. Sometime around May, they began living together. According to Steinbeck, Curt was relieved when the divorce proceedings started. He was expecting to get a promotion and a new job in Washington, D.C. and Steinbeck testified that she was planning to move with him. She denied she ever saw him wear a gun and stated that on September 8, he was wearing tight pants and was not carrying a gun.\nSeveral witnesses testified that appellant made frantic efforts to meet Steinbeck. Richard Warner, a customs criminal investigator, testified that appellant questioned him about Steinbeck’s background and where she worked. He further stated that Curt seemed happy and was looking forward to his transfer to Washington.\nMarie Mouchka, a friend of appellant, testified that appellant was trying desperately to find Steinbeck. Appellant called Mouchka many times to report on the progress of her search. Once appellant stated that *318she was going to go to Fresno because she had heard that Steinbeck worked there. On different occasions, appellant had the operator interrupt Mouchka’s phone conversations with emergency messages. When appellant got on the line, she would relay some information about the divorce proceedings or her finances.\nFrank Orrantia, a colleague of Curt, also reported numerous conversations with appellant. He testified that appellant told him several times that Curt appeared depressed and that she was afraid he might commit suicide. She also asked him about Steinbeck. On May 14, Orrantia’s phone conversation with his ex-wife was interrupted by the operator who stated that appellant wanted to talk to him because of an emergency. Appellant told Orrantia that Curt had threatened her and that she had called the police. Orrantia spoke with Curt and then called appellant. He told her that he did not think Curt had threatened her. At that point, appellant appeared to get upset with him and said that Curt had made threats in the past.\nOn July 10th, appellant called the Novato Police Department to request an officer. Officer McHenry responded. Appellant told him that Curt had been threatening her since the separation and that he had called her several times drunk or enraged. She stated that on one occasion Curt had taken a gun out of his pocket and exposed it in a threatening manner. Since Curt was coming over later that day, she wanted an officer present. McHenry advised her to keep the doors locked and said that if Curt came, she could call the police department and an officer would be sent to her home. Appellant also asked the officer if she should purchase a gun. He advised her not to, especially if she did not know how to use one.\nOn Mother’s Day, appellant called Ms. Mouchka, who worked as a nurse at the Suicide Prevention Center. According to Mouchka, appellant said that Curt had ruined the day by coming late for dinner. He was still at the house and appellant wanted to know how many Valiums it would take to harm someone. Mouchka laughingly said, “My God, Suzanna, you’re going to kill him.” Appellant replied, “No. I just want to give him enough for him to tell me the truth who that woman is.” When appellant said that she was crushing the Valiums in wine, Mouchka told her that was a lethal combination. Appellant responded, “Oh, don’t be overly dramatic.” Appellant called back later to say that Curt had refused the wine because it tasted bitter.\n*319Mouchka also reported a conversation with appellant which she thought took place in August. To Mouchka’s comment that appellant had to face the fact that the divorce was going forward, appellant replied that Curt wanted to pick up the final divorce papers but he was not going to. Appellant stated that she was not going to be divorced.\nJoe Stavish, a carpenter, was hired to do some work on appellant’s house in May. He stated that he became sexually involved with her a few weeks after he was hired. The relationship lasted for several weeks. Stavish testified that he had about six conversations with appellant about killing her husband. He stated that she offered him $5,000 to kill Curt. Appellant suggested various means of accomplishing the task, including shooting him in an underground garage while he was at work in Hawaii. Appellant allegedly stated that she would get more money if Curt were killed while on duty. Stavish rejected her offer and demanded $10,000, which she said was too much. He also pointed out to her better ways of killing Curt than she had suggested. Stavish finally got tired of hearing her talk about the subject and told her to stop the conversations. Appellant replied that she would kill Curt herself. Stavish advised her to stand close to Curt and fire the weapon quickly.\nStavish also reported that appellant told him about the Valium incident. She said that she had put Valium in Curt’s wine either to try to kill him or to put him to sleep. He could not recall which of these motives she had expressed.\nAccording to Stavish’s trial testimony, he came by appellant’s home on September 2d, to see if she had finished a particular project. She told him that Curt was such a miserable person that she would be doing him a favor to put him out of his misery. Stavish conceded that he had not mentioned this statement at the preliminary hearing.\nStavish testified that he had talked to appellant about his plans for killing his father when he was younger. From the age of 14 to 17, Stavish seriously contemplated killing his father by various means. Stavish also stated that during about half of his conversations with appellant he was under the influence of marijuana or liquor. He stated that he participated in the conversations to allow appellant to let off steam. He thought that she was fantasizing. As for her demeanor, “[sjhe’d get really upset and then she’d freeze and get like in a catatonic state where she’d be like motionless, but obviously very, very upset .... She *320couldn’t talk. And she’d get really upset. Her voice would just choke off completely.”\nPaulette Baccioco met appellant in 1978 at Dominican College. Appellant complained to Baccioco about her financial problems after her separation from Curt. According to Baccioco, appellant refused to get a job and stated to Baccioco that if she killed her husband, her financial problems would be solved. From March through June, appellant discussed killing Curt “frequently.” Appellant mentioned that she would receive a little less than $100,000 from the insurance coverage if Curt died.\nBaccioco also testified about a telephone call from appellant in which she stated that she was trying to give Curt the wine with Valium. She asked Baccioco how she could get Curt to drink it. Baccioco refused to help.\nFinally, appellant told Baccioco that Stavish would not help her kill Curt. According to the witness, appellant stated, “You are so bright, you can help me figure out a way to kill my husband.” On cross-examination, Baccioco admitted that she had forgotten about these conversations until reminded after Curt’s death by a friend to whom she had repeated the discussions.\nPat Libby testified that the day before the shooting appellant said Curt was coming over to the house the next day. According to Libby, appellant told her “that if she got through tomorrow, everything would be okay.” After Curt died, appellant told Libby that Curt’s death was probably for the best because he had stopped seeing the children while he was alive.\nRae Ellen Mercer, a marriage counselor, saw the Wickershams singly and together on several occasions from March to June. Appellant told Mercer that she did not want a divorce and wanted Curt to come back. She also told Mercer about an incident in which she found a gun in Curt’s car. She stated that she did not know what she meant to do when she had the gun in her hand. According to Mercer, appellant was emotional, occasionally hysterical.\nAnna Satenstein performed a “spiritual reading” for appellant on April 21st. Appellant returned on April 30th when Curt was meeting *321with Mercer and asked Satenstein to tell her what was occurring at that meeting. Satenstein refused.\nAppellant testified in her own defense. She said that Curt occasionally carried a gun in his waistband if he was called out at night. Although Curt had never hit her, she thought he had the potential to do so, based on violent acts he had performed as a police officer during the Watts riots and as a soldier in Korea. Appellant denied trying to locate Steinbeck. She further stated that she knew she had waived all rights to Curt’s insurance and retirement benefits. She stated that she had not asked her attorney to delay the dissolution proceedings. She denied making the various threatening statements related by Stavish, Baccioco, and Mouchka and the postmortem statement related by Libby. Regarding Stavish, she said that he had first brought up the subject of killing Curt by offering to do it for $10,000. Appellant rejected the suggestion immediately. She also stated that Stavish had stolen lumber from her.\nAppellant claimed that she had put only five milligrams of Valium in Curt’s wine and did so simply to calm him down when he was upset. Concerning the incident involving the gun in the glove compartment, appellant testified that she had opened the glove compartment to take out some maps, and a first-aid kit. The gun was on top of those items and had to be removed in order to retrieve them. When Curt, who was approaching the driver’s side of the car, saw the gun, he became scared and acted “erratic.” According to appellant, Curt attempted to “struggle with that gun.” Appellant told him that he should not have a gun in the car with the children present.\nAppellant testified about another incident in which her car twice ran into Curt’s, once from the rear and once from the front. She ascribed the incident to inattention, although she admitted being frustrated and upset that day because she had told him to collect his things and leave for good. This was the last time she saw him before September 8th.\nOn July 5, 1979, appellant purchased the weapon which was involved in the shooting. She testified that she bought the gun to protect her home and that there had always been a gun in the house for protection.\nConcerning the day of the shooting, appellant stated that Curt came to the house about 10:30 a.m. They were on friendly terms, and Curt made some minor house repairs before taking the children to lunch. Appellant began gathering Curt’s things for him. When Curt came back, *322they began to pack some of his shirts which were in a closet in which the gun was kept. When appellant began removing Curt’s shirts from the closet, he saw the gun and asked, “What’s that gun?” with a “slight bit of alarm in his voice.” Appellant answered, “It’s mine.” With her back to Curt, appellant “sensed he was moving towards me.” Afraid that he would take the gun, she scooped the weapon up with five or six shirts. When she turned back, Curt reached to get the gun. There was a short scuffle and the gun went off. After the shot, Curt reached behind him. Thinking that he had a gun, appellant left the room and took her son, who was standing in the doorway. She did not return to the room, but placed the gun in the neighbor’s garage and made the emergency phone calls. Appellant denied intending to fire the weapon or to kill her husband.\nJanice Arnheiter, who had hired Stavish to do carpentry work, testified that he was not believable. In addition, he told her that he had discussed his testimony with Baccioco.\nVarious witnesses testified concerning appellant’s reputation for honesty and nonviolence. These witnesses included a San Francisco police captain, her priest, and her psychiatrist.\nBefore final argument to the jury, the court discussed the instructions with both counsel. The discussion was as follows:\n“The Court: [CALJIC No. 5.00] was requested concerning excusable homicide, lawful act. I believe the District Attorney asked for that.\n“You have no objection to that, I assume?\n“[Defense Counsel]: No, I do not.\n“The Court: And, last, the Defendant did request the lesser-included instructions, particularly 17.10, the introductory, and the involuntary manslaughter instructions, 8.45, 8.46, and 3.32.\n“Is that what your request is?\n“[Defense Counsel]: Yes, your Honor.\n“The Court: I’ll also give the jury the instruction concerning the use of a firearm.\n*323“[Defense Counsel]: The Defendant does object to that on the ground that it’s, with respect to first-degree murder, it’s immaterial. A finding is ineffective.\n“And, secondly, with respect to the crime of involuntary manslaughter, by its very definition, the crime would exclude use of a gun in the sense of using a gun instead of accidentally firing it.\n“The Court: Okay. I’ll give 17.19, the use instruction, nevertheless, together with a verdict form for the jury in the event they find the Defendant guilty of either murder or involuntary manslaughter.\n“I’ll give them the verdict form for the use of the firearm over the Defendant’s objection.”\nThe court thereupon instructed the jury on excusable homicide (CALJIC No. 5.00), the definitions of murder (CALJIC No. 8.10 (1979 rev.)) and malice aforethought (CALJIC No. 8.11.(1979 rev.)), first degree premeditated and deliberate murder (CALJIC No. 8.20 (1979 rev.)), and involuntary manslaughter as a necessarily included offense (CALJIC Nos. 17.10, 8.45 (1979 rev.), 8.46, 3.32, 8.74 (1976 rev.), and 8.72).\nII.\nAppellant contends that the trial court erred in not instructing sua sponte on second degree murder and voluntary manslaughter.\nThe trial court functions both as a neutral arbiter between two contesting parties and as the jury’s guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. “‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ (People v. St. Martin (1970) 1 Cal.3d 524, 531 [83 Cal.Rptr. 166, 463 P.2d 390].) That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present (see, e.g., People v. Hood (1969) 1 Cal.3d 444 [82 Cal.Rptr. 618, 462 P.2d 370]), but not when *324there is no evidence that the offense was less than that charged. (People v. Noah (1971) 5 Cal.3d 469, 479 [96 Cal.Rptr. 441, 487 P.2d 1009]; People v. Osuna (1969) 70 Cal.2d 759, 767 [76 Cal.Rptr. 462, 452 P.2d 678].)” (People v. Sedeno (1974) 10 Cal.3d 703, 715-716 [112 Cal.Rptr. 1, 518 P.2d 913].)\nThe fulfillment of this obligation ensures that the jury will consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties. The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories. “Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. (People v. St. Martin, supra, 1 Cal.3d 524, 533.)” (Sedeno, supra, 10 Cal.3d at p. 716.) Furthermore, where counsel is not aware of alternative verdicts or incorrectly believes them to be irrelevant to the case, the trial court’s action will avoid an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits. These policies reflect concern both for the rights of persons accused of crimes and for the overall administration of justice.\nIn Sedeno, supra, 10 Cal.3d at page 716, this court stated that the trial court was obligated to instruct on necessarily included offenses and to give requested instructions “whenever there is ‘any evidence deserving of any consideration whatsoever ....’” (Citing People v. Carmen (1951) 36 Cal.2d 768, 773 [228 P.2d 281].) In People v. Flannel (1979) 25 Cal.3d 668, 684-685, footnote 12 [160 Cal.Rptr. 84, 603 P.2d 1 ], the lead opinion disapproved the suggestion that “jury instructions must be given whenever any evidence is presented, no matter how weak” in the context of requested instructions on diminished capacity. (Italics in original.) The lead opinion stated that the court need only give the instruction if the accused proffers evidence sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded’” that the particular facts underlying the instruction did exist. (At p. 684, quoting from People v. Carr (1972) 8 Cal.3d 287, 294 [104 Cal.Rptr. 705, 502 P.2d 513].)\nThis does not require—or permit—the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to *325exist. Thus, in Flannel, the mere fact that the accused had “consumed relatively small amounts of alcohol over a long period of time” This does not require—or permit—the trial court to determine the credibility of witnesses. It simply frees the court from any obligation to present theories to the jury which the jury could not reasonably find to exist. Thus, in Flannel, the mere fact that the accused had “consumed relatively small amounts of alcohol over a long period of time” (2)5 Cal. 3d at p. 685) did not warrant giving an instruction on diminished capacity.\nFlannel did not directly discuss the standard to be utilized in determining when the court has a duty to instruct sua sponte on necessarily included offenses. However, logic would seem to require that the same standard should generally apply.4\n The trial court is not obligated to instruct sua sponte on necessarily included offenses unless the evidence would justify a conviction of such offenses. (See People v. Ramos (1982) 30 Cal.3d 553, 582 [180 Cal.Rptr. 266, 639 P.2d 908].) This rule ensures that the jury’s attention is properly focused on the relevant legal theories.\nIn Sedeño, this court distinguished voluntary manslaughter due to heat of passion from other necessarily included offenses for purposes of the duty to instruct sua sponte. Normally, an intentional killing is at least second degree murder, but such a killing is voluntary manslaughter if “shown to have been committed in a heat of passion upon sufficient provocation .... [H] However, unless it appears from the prosecution’s case that the killing was committed in the heat of passion and upon sufficient provocation the burden is on the defendant to raise a reasonable doubt in the minds of the jurors that malice was present. [Citation.]” (10 Cal.3d at p. 719.) Therefore, “[bjefore a court must instruct sua sponte on voluntary manslaughter in the heat of passion as a lesser offense included within murder there must be either some evidence that heat of passion was present at the time of the killing or some reason for the court to know that the defendant is relying on that theory of manslaughter as a defense.” (Ibid.)\nThis standard is compatible with that promulgated in Flannel. (4) The trial court need not instruct sua sponte on voluntary manslaughter due to heat of passion unless there is evidence sufficient to “deserve consideration by the jury, i.e., ‘evidence from which a jury composed of reasonable men could have concluded’” that the accused acted intentionally but without malice. (Flannel, supra, 25 Cal. 3d at p. 684.) Once there is sufficient evidence to warrant this conclusion, the trial court is obligated to instruct on the theory.\n*326Regarding defenses, Sedeño held that “the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon.” (Sedeno, supra, 10 Cal.3d at p. 716.)\nHaving delineated the applicable standards, this court must next decide whether the evidence at trial required sua sponte instructions on second degree murder and voluntary manslaughter. These crimes, of course, are offenses necessarily included within first degree murder.\nAppellant advances two possible theories of voluntary manslaughter—heat of passion and unreasonable self-defense. In People v. Berry (1976) 18 Cal.3d 509, 515 [134 Cal.Rptr. 415, 556 P.2d 777], this court quoted People v. Valentine (1946) 28 Cal.2d 121, 139 [169 P.2d 1] regarding the appropriate instructions to be given the jury upon a claim of voluntary manslaughter due to heat of passion: “‘The jury is ... to be admonished and advised by the court that this heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, and that, consequently, no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man.. .. For the fundamental of the inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed or obscured by some passion—not necessarily fear and never, of course, the passion for revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.’”\nTo satisfy the objective or “reasonable person” element of this form of voluntary manslaughter, the accused’s heat of passion must be due to “sufficient provocation.” (Sedeno, supra, 10 Cal.3d at p. 719.) However, as this court stated in Berry, “there is no specific type of provocation required by section 192[5] and ... verbal provocation may be sufficient.” (18 Cal.3d at p. 515.)\n*327The subjective element requires that the actor be under the actual influence of a strong passion at the time of the homicide. “In People v. Borchers (1958) 50 Cal.2d 321, 329 [325 P.2d 97] in the course of explaining the phrase ‘heat of passion’ used in the statute defining manslaughter we pointed out that ‘passion’ need not mean ‘rage’ or ‘anger’ but may be any ‘[vjiolent, intense, high-wrought or enthusiastic emotion’ and concluded there ‘that defendant was aroused to a heat of “passion” by a series of events over a considerable period of time .... ’ (50 Cal.2d at p. 328, 329.)” (Berry, supra, 18 Cal.3d at p. 515.) However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter—“the assailant must act under the smart of that sudden quarrel or heat of passion.” (CALJIC No. 8.42 (1979 rev.).)\nIn the present case, there is certainly substantial evidence of intense emotion. Two police officers who observed appellant shortly after the shooting described her as “hysterical.” Many of her statements at that time were unintelligible. In addition, several witnesses testified that appellant was very distraught over Curt’s involvement with Mary Ann Steinbeck.\nHowever, there is virtually no evidence of provocation, even under a view of the evidence most favorable to appellant. Appellant testified that she and Curt were in the bedroom for approximately 10 minutes before the fatal incident. They were getting his things together, going through old photographs, and reminiscing. She described him as “very nostalgic.” The last thing he asked her was, “Do you think there’s any hope we’d ever get back together?” She answered, “No.”\nThe only possible source of provocation was the victim’s grabbing of the gun. Appellant testified that she struggled with Curt for possession of the gun and implied that she was afraid he would use the gun if he obtained possession. Given the background of reported threats by the victim, the jury could have found that a reasonable person in appellant’s position, faced with an attack of this nature, would have been overcome by fear and acted to repel the attacker.\nThis theory of voluntary manslaughter, however, would meet all the requirements of reasonable self-defense. The Legislature has deemed such self-defense to be justifiable homicide rather than voluntary manslaughter. (§ 197.) Hence, a trial court should not instruct on heat-of-*328passion voluntary manslaughter where the same facts would give rise to a finding of reasonable self-defense.6 (See Flannel, supra, 25 Cal.3d at p. 678; People v. Mitchell (1939) 14 Cal.2d 237, 241-242 [93 P.2d 121]; People v. Manzo (1937) 9 Cal.2d 594, 598-599 [72 P.2d 119].)\nWhether or not the evidence warranted an instruction on heat of passion, the alternative theory of unreasonable self-defense was certainly raised by the facts. “An honest but unreasonable belief that it is necessary to defend oneself from imminent peril to life or great bodily injury negates malice aforethought, the mental element necessary for murder, so that the chargeable offense is reduced to manslaughter.” (People v. Flannel, supra, 25 Cal.3d at p. 674, italics omitted.) Based on appellant’s testimony, the jury could have found that (1) she picked up the gun only after her husband had noticed it and because she divined that he was coming over to take it; (2) he grabbed for the gun and attempted to take it from her; (3) she recalled at that moment a previous incident in which he had fought her for possession of a gun. Other evidence established that appellant had reported threats on her life made by her husband. Furthermore, certain of appellant’s statements following the shooting lend support to this theory.7 Given these facts, the jury could have found that appellant honestly believed that her life was in danger and had acted in accordance with that belief.\nThis scenario is consistent with appellant’s testimony except for the cause of the gun being fired. The “unreasonable self-defense” type of voluntary manslaughter is premised on an intentional killing, whereas appellant testified that the gun went off by accident in the midst of the struggle. This, however, does not preclude a jury determination that in fact appellant pulled the trigger out of fear. The jury was entitled to reject that portion of appellant’s testimony which sought to explain the shooting as an accident and still find that appellant had not acted with malice. (See People v. Shavers (1969) 269 Cal.App.2d 886, 889 [75 Cal.Rptr. 334].)\nHence, the evidence was sufficient to justify a finding of unreasonable self-defense and the trial court would have erred had it denied a request for instructions on this theory. (See People v. Dewberry (1959) *32951 Cal.2d 548, 557 [334 P.2d 852].) However, unreasonable self-defense comes within Sedeno’s category of “defenses” for purposes of the obligation to instruct sua sponte. As noted above, the trial court need only instruct on a particular defense “if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.” (Sedeno, supra, 10 Cal.3d at p. 716.)\nIn the present case, appellant testified that the shooting was an accident and that she did not intend to kill her husband. It is clear from the record that appellant was not relying on unreasonable self-defense and that this theory was inconsistent with her proffered defense. Thus, the trial court was under no obligation to instruct on unreasonable self-defense in the absence of a specific request by counsel. (See Sedeno, supra, 10 Cal.3d at pp. 717-718.)\nAppellant further argues that instructions on second degree murder should have been given. “[T]he existence of provocation which is not ‘adequate’ to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.” (People v. Valentine, supra, 28 Cal.2d at p. 132; see also CALJIC No. 8.73 (1979) rev.).) Thus, where the evidence of provocation would justify a jury determination that the accused had formed the intent to kill as a direct response to the provocation and had acted immediately, the trial court is required to give instructions on second degree murder under this theory. The fact that heated words were exchanged or a physical struggle took place between the victim and the accused before the fatality may be sufficient to raise a reasonable doubt in the minds of the jurors regarding whether the accused planned the killing in advance.\nIn the present case, there was such evidence. The jury could have found that appellant did not form the intent to kill her husband until after he had mentioned the gun, come toward her, and tried to grab it from her. Even if the jury found that there was not sufficient provocation to warrant a lethal response and that appellant was not truly in fear for her life, the jury could have concluded that these activities affected her decision to kill Curt and that she had not premeditated or deliberated.\n*330Indeed, an instruction on second degree murder would have been required even in the absence of appellant’s testimony regarding Curt’s behavior. Although the evidence was sufficient to justify a finding of deliberation and premeditation, such a finding was not compelled. The jury could have found that appellant did not premeditate but rather acted upon a “sudden and unconsidered impulse[].” (People v. Fields (1950) 99 Cal.App.2d 10, 13 [221 P.2d 190].) Hence, even if the jury rejected her testimony, that rejection did not require a conviction for first degree murder. Unlike certain felony-murder situations (see § 189), this is not a case in which appellant was either guilty of first degree murder or innocent of any charge.\nThus, the trial court erred in not instructing sua sponte on second degree murder. There was sufficient evidence to warrant jury consideration of this alternative verdict.\nRespondent contends that any error in this regard was invited by defense counsel. It is argued that, even if the trial court was required by the evidence to give instructions on necessarily included offenses, reversal is not required because “defense counsel, intentionally, and for tactical purposes, chose to limit the lesser included offenses to involuntary manslaughter.”\nThe doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal. However, because the trial court is charged with instructing the jury correctly,8 it must be clear from the record that defense counsel made an express objection to the relevant instructions. In addition, because important rights of the accused are at stake, it also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.\nThe seminal case concerning invited error is People v. Graham (1969) 71 Cal.2d 303 [78 Cal.Rptr. 217, 455 P.2d 153], There, this court found error in the trial court’s failure to instruct on voluntary and involuntary manslaughter due to diminished capacity.9\n*331The Attorney General argued in that case that any error in the homicide instructions was invited by counsel. As the Graham opinion relates, “The trial court formulated many instructions ‘on the record.’ At one point the court inquired whether a combination of its proposed homicide instructions satisfied the attorneys. The court said, ‘As I understand, everyone agrees that there is no evidence from which involuntary manslaughter could be found; the only type of manslaughter that could be found here would be voluntary.’ The court read its proposed voluntary manslaughter instruction. It then stated, ‘That combination of instructions would probably instruct the jury as to the law that’s... . ’ All three defense counsel interrupted the judge and stated, ‘That’s agreeable.’” (Id., at p. 317.)\nThis court noted that the question posed was whether “the trial court’s affirmative duty to instruct the jury on its own motion on the general principles of law relevant to the issues of the case can be nullified by waiver of defense counsel.” (Id., at pp. 317-318.) In People v. Phillips (1966) 64 Cal.2d 574 [51 Cal.Rptr. 225, 414 P.2d 353], the court had found such “invited error” where defense counsel strongly opposed certain instructions for specific tactical reasons. (Id., at pp. 580-581, fn. 4.) According to Graham, the rule derived from Phillips is “that the court’s responsibility could be negated only in that special situation in which the defense counsel deliberately and expressly, as a matter of trial tactics, objected to the rendition of an instruction.” (Graham, supra, 71 Cal.2d at p. 318.)\nSuch a rule, Graham stated, was required by statutes concerning the scope of appellate review of instructions. Former sections 1259 and 1469 both provided that “‘an appellate court may review an instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.’”10 (Graham, supra, 71 Cal.2d at p. 319.)\nThis rule is necessary to ensure that an accused’s right to complete instructions is fully protected. “As the court forcefully stated in *332People v. Keelin (1955) 136 Cal.App.2d 860, 874 [289 P.2d 520, 56 A.L.R.2d 355], ‘Nevertheless, error is nonetheless error and is no less operative on deliberations of the jury because the erroneous instruction may have been requested by counsel for the defense. After all, it is the life and liberty of the defendant in a case such as this that is at hazard in the trial and there is a continuing duty upon the part of the trial court to see to it that the jury are properly instructed upon all matters pertinent to their decision of the cause.’ Accordingly, if defense counsel suggests or accedes to the erroneous instruction because of neglect or mistake we do not find ‘invited error’; only if counsel expresses a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction, do we deem it to nullify the trial court’s obligation to instruct in the cause.” (Id., at p. 319.)\nThe Graham court found no invited error regarding the omitted manslaughter instructions. Counsel never expressed a tactical objection to an instruction on involuntary manslaughter. Rather, the record indicated a strategy of offering the jury as many different verdicts as possible. (Id., at p. 320.) Counsel’s acceptance of an instruction on voluntary manslaughter which did not refer explicitly to diminished capacity “could not have been” invited. (Id., at p. 321.) In any event, the trial court went on to instruct on the statutory definition of voluntary manslaughter, thus implicitly removing consideration of the defense of diminished capacity from the jury. (Id., at pp. 321-322.)\nIn People v. Mosher (1969) 1 Cal.3d 379 [82 Cal.Rptr. 379, 461 P.2d 659], a trial court again failed to give certain required instructions on voluntary manslaughter and involuntary manslaughter due to diminished capacity. This court found there was no invited error, since “[d]efense counsel did not express a deliberate tactical purpose in suggesting, resisting, or acceding to the erroneous instruction. [Citation.]” (Id., at p. 393.)\nEven where counsel has suggested an erroneous instruction, the doctrine of invited error is not invoked unless counsel articulated a tactical basis for the choice. (See People v. Watts (1976) 59 Cal.App.3d 80, 85-86, fn. 2 [79 Cal.Rptr. 409]; People v. Williams (1971) 22 Cal.App.3d 34, 58 [99 Cal.Rptr. 103] [“Obviously, defense counsel’s request and agreement were not tactical ploys, the engagement in which would invoke the doctrine of invited error.”]; People v. Aikin (1971) 19 Cal.App.3d 685, 702 [97 Cal.Rptr. 251].) Those cases in which invited *333error has been found are reported in Graham, supra, 71 Cal.2d at page 318 and include just such explicit statements.\nUnder the Graham rule, counsel must express a deliberate tactical purpose in objecting to a particular instruction before the failure to give that instruction will be deemed invited error. It is clear that no such objection occurred in this case. The trial court which has the duty to instruct on applicable necessarily included offenses, never asked counsel for an opinion on second degree murder.11 The court simply noted that appellant had requested instructions on involuntary manslaughter and asked, “Is that what your request is?” Defense counsel answered, “Yes, your Honor.”\nNeedless to say, the absence of a request is not equivalent to an express tactical objection. If counsel’s failure to request a particular instruction were deemed sufficient to satisfy the invited error rule, the pivotal role and duty of the trial court would be rendered meaningless. Furthermore, defendants would suffer greatly from the mistakes and ignorance of their counsel, even though the trial court could have acted to prevent injustice. Applying the Graham rule to the present case, it is clear that counsel did not make an express tactical objection to the required instructions.\nRespondent, however, argues that as long as the reviewing court can infer from the record as a whole that defense counsel made a deliberate tactical decision not to request instructions on necessarily included offenses, the trial court’s error should be deemed invited. Respondent refers to a statement in People v. Tidwell (1970) 3 Cal.3d 82, 87 [89 Cal.Rptr. 58, 473 P.2d 762], that “[i]n the absence of anything in the *334record disclosing that counsel had ‘a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction,’ we must assume that counsel merely failed to request the additional instructions because of neglect or mistake, which would be insufficient to nullify the trial court’s obligation to properly instruct the jury on all the issues presented in that case.” (Italics added.)\nIt is clear that this passage simply states a conclusion about the facts of Tidwell and does not constitute a modification of the Graham standard. If the test for invited error is whether “anything in the record” suggests a deliberate tactical purpose in failing to request a particular instruction, then invited error would be found wherever the accused had a tactical reason riot to seek a necessarily included instruction. Since there is always a tactical reason not to want a necessarily included offense as an alternative—namely, to force the jury to an all-or-nothing choice—all situations would fit under that rule. In effect, the rule would require the exact opposite of Graham, i.e., an express statement that counsel is not opposed to necessarily included offense instructions for tactical reasons. Clearly, such a statement is not necessary in order to trigger the trial court’s sua sponte duty.\nFurthermore, reviewing each record to determine why counsel was silent would not only be extremely difficult, but would call for delphic powers. How can a reviewing court decide if counsel’s action or lack of it is founded on strategy, ignorance, mistake, or trust?\nThe present case graphically reveals the inherent difficulty of such an undertaking. Counsel may have believed that it was in his client’s interest to give the jury three choices—first degree murder, involuntary manslaughter, or a not guilty verdict. Alternatively, counsel may not have been aware of the possible theory for a second degree murder conviction. Finally, counsel may have believed that the trial court would give the correct instructions and either failed to notice the omission or accepted the court’s action as a decision that instructions on second degree murder were not required by the evidence. From the record before this court, it is impossible to tell which of these scenarios is correct.\nEven if this court were able to conclude that counsel had remained silent because of a tactical decision, invited error would not be found. Since the trial court’s duty to instruct fully on the relevant legal theories is not dependent upon counsel, error in omitting required instructions cannot be waived by a party simply by the failure of its counsel to *335demand the instructions. The issue centers on whether counsel deliberately caused the court to fail to fully instruct, not whether counsel subjectively desired a certain result. The error, in other words, must be “invited.”\n“Our courts are not gambling halls but forums for the discovery of truth.” (People v. St. Martin (1970) 1 Cal.3d 524, 533 [83 Cal.Rptr. 166, 463 P.2d 390].) It is the obligation of trial counsel to assist the court in presenting all relevant instructions to the jury. At the same time, it is the trial court which bears the ultimate responsibility for properly instructing the jury. Since there was no express tactical objection made by counsel in the present case, the trial court’s error in failing to instruct on second degree murder cannot be found to have been “invited.”\nThe failure to instruct on all necessarily included offenses deprives a defendant of the “constitutional right to have th.e jury determine every material issue presented by the evidence.” (People v. Modesto (1963) 59 Cal.2d 722, 730 [31 Cal.Rptr. 225, 382 P.2d 33]; see also People v. Mosher, supra, 1 Cal.3d at p. 391.) “[S]uch error cannot be cured by weighing the evidence and finding it not reasonably probable that a correctly instructed jury would have convicted the defendant of the lesser included offense.” (Sedeno, supra, 10 Cal.3d at p. 720, citing Modesto, supra, 59 Cal.2d at p. 730.) However, this court held in Sedeño that “in some circumstances it is possible to determine that although an instruction on a lesser included offense was erroneously omitted, the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions. In such cases the issue should not be deemed to have been removed from the jury’s consideration since it has been resolved in another context, and there can be no prejudice to the defendant since the evidence that would support a finding that only the lesser offense was committed has been rejected by the jury.” (Sedeno, supra, 10 Cal.3d at p. 721.)\nIn Sedeño, the trial court erred in failing to give an instruction sua sponte on involuntary manslaughter due to diminished capacity. (10 Cal.3d at p. 720.) Such an instruction would have required the jury to specifically determine whether the accused had acted without an intent to kill and malice. The error was harmless as to the question of the intent to kill because the jury had received instructions on second degree murder without an intent to kill and had specifically and necessarily re*336jected that theory by returning a verdict of first degree murder. (Id., at p. 721.) However, the error was not harmless, as to the question of malice, since instructions on felony murder had removed this issue from the jury’s consideration. Thus, the jury did not necessarily reject a theory that the accused lacked malice. (Ibid.)\nIn the present case, no instruction presented the jury with a theory of intentional homicide which was not premeditated and deliberate. Once the jury found that the killing was intentional, it had no choice but to return a verdict of first degree murder. Hence, “the factual question posed by the omitted instruction”—whether appellant had acted with malice and intent, but without premeditation and deliberation—was not “necessarily resolved adversely to the defendant under other, properly given instructions.” (Sedeno, supra, 10 Cal.3d at p. 721.) Since the jury was not required to decide specifically whether appellant had committed an intentional but nonpremeditated, nondeliberate murder, the trial court’s error in failing to instruct on second degree murder cannot be deemed to be harmless. The judgment must be reversed.12\nIII.\nThe trial court erred by failing to instruct sua sponte on second degree murder. Given the evidence in this case, the jury could have found that appellant did not premeditate and deliberate. The error was not invited inasmuch as trial counsel did not make an express tactical objection to the required instructions. Nor was the error harmless within the meaning of Sedeño, because no other instruction presented the jury with a theory of intentional and malicious homicide lacking premeditation and deliberation.\nThe judgment is reversed.\nMosk, J., Newman, J., Kaus, J., Broussard, J., and Reynoso, J., concurred.\n\n Unless otherwise indicated, all statutory references hereafter are to the Penal Code.\n\n\n The trial court struck the use finding.\n\n\n Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974].\n\n\n Indeed, People v. Cantrell (1973) 8 Cal.3d 672, 685 [105 Cal.Rptr. 792, 504 P.2d 1256], one of the cases disapproved by Flannel, concerned sua sponte duties. (Flannel, supra, 25 Cal.3d at pp. 684-685, fn. 12.)\n\n\n Section 192 defines manslaughter.\n\n\n Appellant does not contend that the trial court was under an obligation to instruct sua sponte on reasonable self-defense.\n\n\n “He went crazy and started towards me. His hand went into his pocket. And I know he carries a gun there.” “The gun was on the shelf and he went crazy when he saw it. He reached for it and I grabbed it.”\n\n\n “The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to its being given. [Citations.]” (People v. Sedeno, supra, 10 Cal.3d at p. 716.)\n\n\n The trial court instructed the jury that diminished capacity could negate malice and that it could return a verdict of voluntary manslaughter, but it did not connect dimin*331ished capacity to the lesser included offense. (Id., at pp. 314-315.) The court gave no instructions on involuntary manslaughter due to unconsciousness from intoxication.\n\n\n Section 1259 currently states, in relevant part, “The appellate court may also review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby.” Section 1469 states, in relevant part, “The [appellate] court may also review any instruction given, refused or modified, even though no objection was made thereto in the trial court if the substantial rights of the defendant were affected thereby.”\n\n\n “We deem it appropriate to emphasize that the duty of counsel to a criminal defendant includes careful preparation of and request for all instructions which in his judgment are necessary to explain all of the legal theories upon which his defense rests. If it appears to the court, however, that there is substantial evidence that would support a defense inconsistent with that advanced by a defendant, the court should ascertain from the defendant whether he wishes instructions on the alternative theory. Such inquiry will afford assurance that the theory has not been inadvertently overlooked by counsel. (Cf. People v. Hood, supra, 1 Cal.3d at p. 449; People v. Wade (1959) 53 Cal.2d 322, 334 [1 Cal.Rptr. 683, 348 P.2d 116].)\n“When the charged offense is one thát is divided into degrees or encompasses lesser offenses, and there is evidence from which the jury could conclude that the lesser offense had been committed, the court must instruct on the alternate theory even if it is inconsistent with the defense elected by the defendant under the rule obliging the court to instruct on lesser included offenses discussed supra.” (Sedeno, supra, 10 Cal.3d at p. 717, fn. 7.)\n\n\n Because the judgment must be reversed, the court does not consider the other issues raised by appellant.\n\n", "ocr": false, "opinion_id": 9598887 }, { "author_str": "Richardson", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nRICHARDSON, J.\nI concur in the judgment, under the compulsion of People v. Graham (1969) 71 Cal.2d 303 [78 Cal.Rptr. 217, 455 P.2d 153]. But for Graham and its progeny, we might well conclude that de*337fense counsel’s failure to request instructions on second degree murder was a deliberate, tactical decision, constituting invited error which would cure the trial court’s omission to give those instructions sua sponte. The record appears to support a finding that the defense counsel deliberately narrowed the jury’s choice of verdicts to first degree murder, involuntary manslaughter, and excusable homicide.\nYet Graham requires that the record reveal that counsel actually \"expresse[d] a deliberate tactical purpose in suggesting, resisting, or acceding to an instruction .... ” (P. 319, italics added.) As the majority correctly states, defense counsel herein expressed to the trial court no tactical purpose in foregoing instructions on second degree murder. Accordingly, under Graham, no basis exists for finding invited error.\nIn my view, the Graham rule should be reconsidered and possibly discarded in favor of a rule which would permit a finding of invited error based upon reasonable inferences drawn from the record. (See People v. Tidwell (1970) 3 Cal.3d 82, 87 [89 Cal.Rptr. 58, 473 P.2d 762].) Lacking majority support for reconsideration of Graham, however, I concur in the judgment under its compulsion.\nRespondent’s petition for a rehearing was denied October 21, 1982. Richardson, J., was of the opinion that the petition should be granted.\n", "ocr": false, "opinion_id": 9598889 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/007208.U.pdf", "author_id": null, "opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 00-7208\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n versus\n\n\nMICHAEL QUINCY BROWN,\n\n Defendant - Appellant.\n\n\n\nAppeal from the United States District Court for the District of\nMaryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-\n97-344-DKC, CA-99-3017-DKC)\n\n\nSubmitted: November 9, 2000 Decided: December 6, 2000\n\n\nBefore WILKINS, MOTZ, and TRAXLER, Circuit Judges.\n\n\nDismissed by unpublished per curiam opinion.\n\n\nMichael Quincy Brown, Appellant Pro Se. Lynne Ann Battaglia, United\nStates Attorney, Baltimore, Maryland; Barbara Suzanne Skalla, As-\nsistant United States Attorney, Greenbelt, Maryland, for Appellee.\n\n\nUnpublished opinions are not binding precedent in this circuit.\nSee Local Rule 36(c).\n\fPER CURIAM:\n\n Michael Quincy Brown seeks to appeal the district court’s\n\norder denying his motion filed under 28 U.S.C.A. § 2255 (West Supp.\n\n2000). However, the sole issues Brown raised in his informal brief\n\nrelate to the validity of his plea, and the district court’s denial\n\nof his ineffective assistance of counsel claim as it relates to his\n\ncareer offender status. Accordingly, we have limited our review to\n\nthose issues. See Local Rule 34(b). We have reviewed the record\n\nand the district court's opinion relating to the issues Brown\n\nspecified in his informal brief, and find no reversible error.\n\nAccordingly, we affirm on the reasoning of the district court, as\n\nto those issues, and we deny a certificate of appealability and\n\ndismiss the appeal on the reasoning of the district court. See\n\nUnited States v. Brown, Nos. CR-97-344-DKC; CA-99-3017-DKC (D. Md.\n\nJune 16, 2000). To the extent Brown seeks to raise issues not\n\nfirst presented to the district court for review, we decline to\n\nreview those issues. We dispense with oral argument because the\n\nfacts and legal contentions are adequately presented in the mate-\n\nrials before the court and argument would not aid the decisional\n\nprocess.\n\n\n\n\n DISMISSED\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 1003089 } ]

[ "401 So. 2d 878" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n401 So.2d 878 (1981)\nThomas Jefferson HINES, Appellant,\nv.\nThe STATE of Florida, Appellee.\nNo. 78-1432.\nDistrict Court of Appeal of Florida, Third District.\nJuly 21, 1981.\nBennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.\nJim Smith, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.\nBefore BARKDULL, HENDRY and DANIEL S. PEARSON, JJ.\nPER CURIAM.\nDefendant, Hines, was charged by information in Count I with possession of a controlled substance and, in Count II, with sale or delivery of a controlled substance. He pleaded not guilty. After jury trial, the defendant was found guilty on both counts. He now appeals and claims, among other things, error in that the trial court violated the single transaction rule by sentencing him on both counts.\nWe affirm the judgment and sentence for sale and the judgment for possession. However, we vacate the sentence for possession.\nThe State concedes that the record at trial reflects that Hines' convictions and sentences arise from the possession and sale of the very same item of narcotics. The effect of the concession is that the offense of possession is a category four lesser-included offense of sale. Anderson v. State, 392 So.2d 328 (Fla. 3d DCA 1981).\n*879 While agreeing that Hines' conviction for possession should be affirmed, we do so only because Hines waived any claim of double jeopardy by failing to raise, in the trial court, the issue of his convictions for the included and greater offense. Anderson v. State, supra; Chapman v. State, 389 So.2d 1065 (Fla. 5th DCA 1980). See: Keefer v. State, 397 So.2d 1181 (Fla. 3d DCA 1981). That waiver, however, does not affect the sentencing error [Anderson v. State, supra; Williams v. State, 377 So.2d 755 (Fla. 1st DCA 1979)] which, because of the State's concession that Hines was concurrently sentenced for both the greater offense of sale and the included offense of possession, is patent. For the reasons expressed in Gonzalez v. State, 392 So.2d 334 (Fla. 3d DCA 1981), we find it improper to burden the trial court with a Rule 3.850 proceeding, the result of which inevitably must be to vacate the sentence imposed for possession.\nTherefore, we vacate the sentence on the possession conviction and affirm in all other respects.\nAffirmed as amended.\n", "ocr": false, "opinion_id": 1702923 } ]

[ "2013 IL App (3d) 120178" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.state.il.us/court/Opinions/AppellateCourt/2013/3rdDistrict/3120178.pdf", "author_id": null, "opinion_text": " 2013 IL App (3d) 120178\n\n Opinion filed September 30, 2013\n\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n THIRD DISTRICT\n\n A.D., 2013\n\nTHE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court\nILLINOIS, ) of the 21st Judicial Circuit,\n ) Kankakee County, Illinois,\n Plaintiff-Appellee, )\n ) Appeal No. 3-12-0178\n v. ) Circuit No. 10-CF-235\n )\nDARNELL M. FONDER, ) Honorable\n ) Kathy Bradshaw-Elliott,\n Defendant-Appellant. ) Judge, Presiding.\n\n\n JUSTICE HOLDRIDGE delivered the judgment of the court with opinion.\n Presiding Justice Wright and Justice O'Brien concurred in the judgment and opinion.\n\n\n OPINION\n\n¶1 After a jury trial, the defendant, Darnell M. Fonder, was convicted of resisting a peace\n\nofficer (720 ILCS 5/31-1(a-7) (West 2010)) and criminal trespass to real property (720 ILCS\n\n5/21-3(a)(3) (West 2010)). The trial court sentenced the defendant to three years of\n\nimprisonment. On appeal, the defendant argues that the trial court erred when it did not instruct\n\nthe jury that it must find that the defendant's conduct was the proximate cause of an injury to a\n\npeace officer to sustain a felony charge of resisting arrest. We reverse and remand the cause.\n\n¶2 FACTS\n\f¶3 The defendant was charged by indictment with aggravated battery (720 ILCS 5/12-\n\n4(b)(18) (West 2010)), resisting a peace officer (720 ILCS 5/31-1(a-7) (West 2010)), and\n\ncriminal trespass to real property (720 ILCS 5/21-3(a)(3) (West 2010)). On December 6, 2011,\n\nthe case proceeded to a jury trial.\n\n¶4 At trial, Officer Michael Shreffler testified that at approximately 2:30 p.m. on May 7,\n\n2010, he responded to a call at the residence of Crystal Davis. At the scene, Shreffler threatened\n\nto arrest the defendant if he returned to Davis' residence.\n\n¶5 At approximately 8:30 p.m. on the same date, Shreffler responded to another call at the\n\nDavis residence. Davis told Shreffler that the defendant had returned. Shreffler observed the\n\ndefendant walk toward him from behind the building. As Shreffler approached the defendant,\n\nOfficer Joseph Martinez arrived at the scene. Shreffler noticed that Martinez was uninjured.\n\nThereafter, Shreffler approached the defendant. He announced that the defendant was under\n\narrest, instructed the defendant to place his hands behind his back, and attempted to grab the\n\ndefendant's arm. The defendant said \"[I] ain't getting arrested for this bullshit\" and pulled his\n\narm away. The defendant then fought with Shreffler and Martinez as they attempted to restrain\n\nhim. The officers gained control of the defendant only after Martinez dry-stunned him twice\n\nwith his taser.\n\n¶6 Martinez testified that when he arrived at the scene, he saw Shreffler speaking with\n\nDavis. Shreffler then went to the side of the building and spoke with the defendant. Martinez\n\nfirst approached Davis and then went to Shreffler's location, where he saw Shreffler advise the\n\ndefendant that he was under arrest. The defendant tugged his right arm away as Shreffler\n\nattempted to place him in handcuffs. Shreffler instructed the defendant not to resist. Martinez\n\n\n 2\n\fattempted to grab the defendant's left arm, but the defendant swung his arm up, scratching\n\nMartinez's nose and forehead. The defendant continued to fight with the officers until Martinez\n\ndry-stunned the defendant twice. Shreffler transported the defendant from the scene, and\n\nMartinez completed the paperwork for the offense and took Davis' statement.\n\n¶7 During the struggle, Martinez received small abrasions to his nose and forehead.\n\nMartinez identified a photograph that was taken after the incident that depicted the injuries, and\n\nthe photograph was admitted into evidence. However, the photograph did not display the full\n\nextent of the injuries because Martinez had cleaned the \"blood dripping on [his] face\" in Davis'\n\nbathroom. Martinez was uninjured before the altercation.\n\n¶8 Davis testified that she had known the defendant for approximately five years. On the\n\nevening of May 7, 2010, she spoke with Martinez for approximately two minutes and then he\n\nwent around the side of the building to look for the defendant. Davis followed Martinez around\n\nthe side of the building and saw Martinez and Shreffler ask the defendant for identification.\n\nWhen the defendant said that he did not have identification, the officers instructed the defendant\n\nto come with them and grabbed his arm. The defendant responded that it hurt, and the officers\n\nthrew the defendant on the ground, jumped on him, and sprayed him with mace. The defendant\n\ntold the officers to stop and proclaimed that he \"didn't do nothing.\" Davis also asked the officers\n\nto stop.\n\n¶9 After the defendant was placed in the police car, Martinez went to Davis' apartment and\n\nasked her to sign some paperwork. At that time, Davis did not notice any injuries to Martinez's\n\nface, and Martinez did not use her bathroom.\n\n¶ 10 On cross-examination, Davis stated that the defendant was the father of her daughter. On\n\n\n 3\n\fthe date of the incident, she and the defendant were separated, and she called the police after the\n\ndefendant came to her residence in the afternoon. The police responded in the evening of May 7,\n\n2010, when they saw the defendant standing in front of the apartment building where Davis\n\nlived. Davis denied calling the police a second time. At trial, Davis stated that she and the\n\ndefendant had reconciled their relationship.\n\n¶ 11 At the jury instruction conference, the State tendered two jury instructions on resisting\n\narrest. Defense counsel did not object to the instructions or offer his own instructions, and the\n\ncase proceeded to closing arguments.\n\n¶ 12 Prior to deliberations, the trial court instructed the jury on the resisting arrest charge using\n\nIllinois Pattern Jury Instructions, Criminal, Nos. 22.13 and 22.14 (4th ed. 2000) (hereinafter, IPI\n\nCriminal 4th Nos. 22.13 and 22.14).\n\n¶ 13 During deliberations, the jury requested to see the photograph of Martinez's injuries.\n\nHowever, before the photograph was sent to the jury, it reached a verdict. The jury found the\n\ndefendant not guilty of aggravated battery and guilty of resisting a peace officer and criminal\n\ntrespass to real property.\n\n¶ 14 On January 3, 2012, the defendant filed a motion for acquittal. The defendant contended\n\nthat he should not have been convicted of felony-level resisting arrest. The defendant argued that\n\nthe jury instructions for resisting arrest did not contain the proposition that the defendant was the\n\nproximate cause of an injury to a peace officer. As a result, the jury instruction only supported a\n\nconviction for a misdemeanor conviction for resisting arrest. The trial court found that it was\n\nforeseeable that an officer might be injured when the defendant resisted arrest and denied the\n\nmotion. Thereafter, the trial court sentenced the defendant to three years of imprisonment. The\n\n\n 4\n\fdefendant appeals.\n\n¶ 15 ANALYSIS\n\n¶ 16 On appeal, the defendant argues that the trial court erred when it failed to instruct the jury\n\non a necessary element of the charge for felony resisting arrest. According to the defendant, the\n\ncourt should have instructed the jury, in addition to the three propositions listed in IPI Criminal\n\n4th No. 22.14, that the State must prove beyond a reasonable doubt that the defendant's violation\n\nwas the proximate cause of an injury to Martinez. See 720 ILCS 5/31-1(a-7) (West 2010). The\n\ndefendant admits that he did not object to the tendered jury instructions, but argues that the\n\nwaiver rule should not apply because the court's failure to instruct the jury on an element of the\n\noffense is a grave and fundamental error. See Ill. S. Ct. R. 451(c) (eff. July 1, 2006). The State\n\nconcedes that the trial court erred, but argues that reversal is not warranted because the evidence\n\nwas not closely balanced and it was obvious from the evidence that the defendant proximately\n\ncaused injury to Martinez.\n\n¶ 17 Generally, \"[n]o party may raise on appeal the failure to give an instruction unless the\n\nparty shall have tendered it.\" Ill. S. Ct. R. 366(b)(2)(i) (eff. Feb. 1, 1994). However, Illinois\n\nSupreme Court Rule 451(c) (eff. July 1, 2006) provides that substantial defects in jury\n\ninstructions are not waived by a defendant's failure to make timely objections if the interests of\n\njustice require. \"The purpose of Rule 451(c) is to permit correction of grave errors and errors in\n\ncases so factually close that fundamental fairness requires that the jury be properly instructed.\"\n\nPeople v. Sargent, 239 Ill. 2d 166, 189 (2010). Rule 451(c) is coextensive with the plain error\n\nrule. See Ill. S. Ct. R. 615(a); People v. McNeal, 405 Ill. App. 3d 647 (2010). Before conducting\n\nthe plain error analysis, we must determine whether there was error. See People v. Wilson, 404\n\n\n 5\n\fIll. App. 3d 244 (2010).\n\n¶ 18 A. Error\n\n¶ 19 \"The purpose of jury instructions is to provide the jury with the correct legal principles\n\napplicable to the evidence, so that the jury may reach a correct conclusion according to the law\n\nand the evidence.\" People v. Bannister, 232 Ill. 2d 52, 81 (2008). Generally, the decision to give\n\na certain instruction rests in the sound discretion of the trial court. People v. Lovejoy, 235 Ill. 2d\n\n97 (2009). However, \"when the issue is whether the applicable law was correctly conveyed by\n\nthe instructions to the jury, the appropriate standard of review on appeal is de novo.\" People v.\n\nMax, 2012 IL App (3d) 110385, ¶ 52.\n\n¶ 20 In the instant case, the defendant was charged with felony resisting arrest under section\n\n31-1(a-7) of the Criminal Code of 1961 (Code). 720 ILCS 5/31-1(a-7) (West 2010). To secure a\n\nconviction under section 31-1(a-7) of the Code, the State was required to prove beyond a\n\nreasonable doubt that the defendant knowingly resisted or obstructed a peace officer in the\n\nperformance of an authorized act within his capacity and the defendant's \"violation was the\n\nproximate cause of an injury to a peace officer.\" 720 ILCS 5/31-1(a), (a-7) (West 2010).\n\n¶ 21 In a jury trial, the court must instruct the jurors, using the IPI Criminal Instructions, when\n\napplicable. Ill. S. Ct. R. 451(a) (eff. July 1, 2006). Two IPI Criminal instructions are pertinent to\n\nthe offense of resisting a peace officer. IPI Criminal 4th No. 22.13 states:\n\n \"A person commits the offense of resisting or obstructing a [ (peace officer) *** ]\n\n when he knowingly resists or obstructs the performance of any authorized act within the\n\n official capacity of one known to him to be a [ (peace officer) *** ].\" IPI Criminal 4th\n\n No. 22.13.\n\n\n 6\n\fAnalogously, IPI Criminal 4th No. 22.14 lists the elements for a misdemeanor charge of resisting\n\na peace officer as follows:\n\n \"To sustain the charge of resisting or obstructing a [ (peace officer) *** ], the\n\n State must prove the following propositions:\n\n First Proposition: That _____ was a [ (peace officer) *** ]; and\n\n Second Proposition: That the defendant knew _____ was a [ (peace officer) *** ];\n\n and\n\n Third Proposition: That the defendant knowingly resisted or obstructed the\n\n performance by ____ of an authorized act within his official capacity.\n\n If you find from your consideration of all the evidence that each one of these\n\n propositions has been proved beyond a reasonable doubt, you should find the defendant\n\n guilty.\n\n If you find from your consideration of all the evidence that any one of these\n\n propositions has not been proved beyond a reasonable doubt, you should find the\n\n defendant not guilty.\" IPI Criminal 4th No. 22.14.\n\nThe committee notes to these instructions are silent on the changes necessary for a felony\n\ncharge.1\n\n¶ 22 In the present case, the trial court instructed the jury on the resisting arrest charge using\n\n\n 1\n We note that Illinois Pattern Jury Instructions, Criminal, No. 4.24 (4th ed. Supp. 2011)\n\n(hereinafter, IPI Criminal 4th No. 4.24 (Supp. 2011)) defines \"proximate cause.\" The committee\n\nnote to IPI Criminal 4th No. 4.24 cites to the \"proximate cause\" language in section 31-1(a-7) of\n\nthe Code, but does not provide a cross-reference to IPI Criminal 4th Nos. 22.13 or 22.14.\n\n 7\n\fthe unmodified versions of IPI Criminal 4th Nos. 22.13 and 22.14. Consequently, the trial court\n\nfailed to instruct the jury on an essential element of the offense: that the defendant's violation was\n\nthe proximate cause of injury to a peace officer. The court's omission of the proximate cause\n\nelement was error.\n\n¶ 23 B. Plain Error\n\n¶ 24 Having found error, we must next determine whether it is reversible error, i.e., whether\n\neither prong of the plain error test has been satisfied such that we may overlook the defendant's\n\nprocedural default. We may overlook the defendant's procedural default if: (1) the evidence is so\n\nclosely balanced that the error alone threatened to tip the scales of justice against the defendant,\n\nregardless of the seriousness of the error; or (2) the error is so serious that it affected the fairness\n\nof the defendant's trial and challenged the integrity of the judicial process, regardless of the\n\ncloseness of the evidence. People v. Piatkowski, 225 Ill. 2d 551 (2007). \"The defendant bears\n\nthe burden of persuasion under both prongs of the plain-error analysis.\" People v. Wilmington,\n\n2013 IL 112938, ¶ 43.\n\n¶ 25 In this case, the defendant has satisfied his burden of proving that the trial court's error\n\nwas reversible plain error under the second prong of the analysis. The second prong of the plain\n\nerror doctrine permits review and reversal of otherwise unpreserved errors that erode the integrity\n\nof the judicial process and undermine the fairness of a defendant's trial. Sargent, 239 Ill. 2d 166.\n\nFundamental fairness requires trial courts to see \"to it that certain basic instructions, essential to a\n\nfair determination of the case by the jury, are given.\" People v. Ogunsola, 87 Ill. 2d 216, 222\n\n(1981). The failure to inform the jury of the elements of the crime charged is so grave and\n\nfundamental that the waiver rule should not apply. See People v. Hari, 218 Ill. 2d 275 (2006);\n\n\n 8\n\fOgunsola, 87 Ill. 2d 216; People v. Hale, 2012 IL App (4th) 100949.\n\n¶ 26 A conviction under section 31-1(a-7) of the Code required the jury to find, inter alia, that\n\nthe defendant's violation was the proximate cause of an injury to Martinez. 720 ILCS 5/31-1(a),\n\n(a-7) (West 2010). The trial court failed to instruct the jury on that element. The element had to\n\nbe proved beyond a reasonable doubt because it elevated the sentencing range. People v.\n\nCervantes, 408 Ill. App. 3d 906 (2011). The defendant is entitled to a jury determination of\n\nevery element of the crime with which he is charged beyond a reasonable doubt. See Apprendi v.\n\nNew Jersey, 530 U.S. 466 (2000). The trial court's omission removed from the jury's\n\nconsideration an element essential to the determination of the defendant's guilt or innocence. See\n\nOgunsola, 87 Ill. 2d 216. Furthermore, the defendant's acquittal of the aggravated battery charge,\n\nwhich required proof of bodily harm, suggests that the jury did not find that Martinez was\n\ninjured. See 720 ILCS 5/12-4(b)(18) (West 2010). As a result, we remand the cause for a new\n\ntrial before a properly instructed jury.\n\n¶ 27 CONCLUSION\n\n¶ 28 For the foregoing reasons, the judgment of the circuit court of Kankakee County is\n\nreversed, and the cause is remanded for further proceedings.\n\n¶ 29 Reversed and remanded.\n\n\n\n\n 9\n\f", "ocr": false, "opinion_id": 1043513 } ]

[ "2013 IL App (4th) 120372" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.state.il.us/court/Opinions/AppellateCourt/2013/4thDistrict/4120372.pdf", "author_id": null, "opinion_text": " ILLINOIS OFFICIAL REPORTS\n Appellate Court\n\n\n\n\n People v. Woods, 2013 IL App (4th) 120372\n\n\n\n\nAppellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.\nCaption JOHNATHAN NORMEL WOODS, Defendant-Appellant.\n\n\n\nDistrict & No. Fourth District\n Docket No. 4-12-0372\n\n\nFiled August 28, 2013\n\n\nHeld The trial court properly denied defendant’s motion to suppress the\n(Note: This syllabus cocaine discovered in defendant’s pocket following a “consensual\nconstitutes no part of encounter” when an officer questioned defendant and his companion,\nthe opinion of the court who were sitting in a parked car in a public housing project, since the\nbut has been prepared officer could verify defendant’s right to be on the project’s grounds, he\nby the Reporter of did nothing to convey to defendant that he had been seized, and even\nDecisions for the though the officer had grounds for a Terry patdown, he asked for and\nconvenience of the received defendant’s consent to pat him down before he found the\nreader.)\n cocaine.\n\n\nDecision Under Appeal from the Circuit Court of McLean County, No. 11-CF-403; the\nReview Hon. Robert L. Freitag, Judge, presiding.\n\n\n\nJudgment Affirmed.\n\fCounsel on Michael J. Pelletier, Karen Munoz, and Kelly M. Weston, all of State\nAppeal Appellate Defender’s Office, of Springfield, for appellant.\n\n Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,\n Robert J. Biderman, and Luke McNeill, all of State’s Attorneys Appellate\n Prosecutor’s Office, of counsel), for the People.\n\n\nPanel PRESIDING JUSTICE STEIGMANN delivered the judgment of the\n court, with opinion.\n Justices Appleton and Turner concurred in the judgment and opinion.\n\n\n\n OPINION\n\n¶1 In May 2011, the State charged defendant, Johnathan Normel Woods, with unlawful\n possession of a controlled substance (less than 15 grams of a substance containing cocaine)\n (720 ILCS 570/402(c) (West 2010)). Shortly thereafter, defendant filed a motion to suppress,\n arguing that the police violated his fourth-amendment right to be free from unreasonable\n searches and seizures. Following a July 2011 hearing, the trial court denied defendant’s\n motion to suppress.\n¶2 In November 2011, following a stipulated bench trial, the trial court convicted defendant\n of unlawful possession of a controlled substance (less than 15 grams of a substance\n containing cocaine) (720 ILCS 570/402(c) (West 2010)). In February 2012, the court\n sentenced defendant to five years in prison.\n¶3 Defendant appeals, arguing that the trial court erred by denying his motion to suppress.\n We disagree and affirm.\n\n¶4 I. BACKGROUND\n¶5 In May 2011, the State charged defendant with unlawful possession of a controlled\n substance (less than 15 grams of a substance containing cocaine) (720 ILCS 570/402(c)\n (West 2010)). Shortly thereafter, defendant filed a motion to suppress, arguing that the police\n violated his fourth-amendment right to be free from unreasonable searches and seizures. In\n July 2011, the trial court conducted a hearing on defendant’s motion, at which the parties\n presented the following evidence.\n\n¶6 A. The Evidence Presented at the July 2011 Hearing\n on Defendant’s Motion To Suppress\n¶7 In May 2011, defendant and his girlfriend, Qyanna Jackson, were sitting in a parked\n vehicle in front of Jackson’s apartment, which was in the Sunnyside Housing Complex. (The\n\n -2-\n\f Sunnyside Housing Complex is part of the Bloomington Housing Authority.) Officer Elias\n Mendiola, who was on routine patrol, stopped his squad car in an adjacent parking spot and\n approached the vehicle. Mendiola found defendant sitting in the driver’s seat and Jackson\n sitting in the passenger seat of the vehicle. Mendiola began questioning the couple from the\n driver’s window to make sure they were allowed to be on the housing complex grounds. (A\n second officer arrived shortly thereafter to speak specifically with Jackson from the\n passenger window.)\n¶8 Mendiola asked to see defendant’s identification to verify that he was permitted to be in\n the housing complex. Defendant responded that he did not have identification and told\n Mendiola that his name was “John Jones.” Jackson provided her housing identification,\n verifying that she lived at the Sunnyside Housing Complex. Jackson explained to Mendiola\n that defendant was her guest.\n¶9 Mendiola testified that he submitted the names provided by the couple to dispatch.\n Dispatch responded that those names came back “clear.” Although skeptical of the name\n defendant provided, Mendiola did not pursue it further because defendant appeared nervous.\n While he was speaking to defendant, Mendiola told defendant to keep his hands visible and\n then “called him out on why he was nervous.” Defendant responded, “no reason,” but\n Mendiola was concerned because of the neighborhood’s history of violence. At one point,\n defendant made a “quick movement with his right hand towards his right front pocket.”\n Mendiola said that he reiterated that he wanted defendant to keep his hands visible and that\n if he made a quick movement like that again, he would “produce a weapon” because he\n would “assume [he was] going for a weapon.” Mendiola then asked defendant for consent\n to pat him down. Defendant consented and exited the vehicle so that Mendiola could do so.\n¶ 10 Mendiola escorted defendant to the rear of Jackson’s vehicle, where he initiated the pat\n down. When Mendiola “got to the waistband area,” defendant started looking down and\n appeared nervous again; defendant was “trembling.” Mendiola then asked defendant for\n consent to search his right front pocket, and defendant consented. That search revealed two\n rocks of cocaine inside some cellophane. Mendiola thereafter arrested defendant. After being\n read his rights at the police station, defendant confirmed that he consented to the pat-down\n search.\n¶ 11 Although the general account of the events outlined by Mendiola was consistent with that\n of defendant and Jackson, their testimony differed from Mendiola’s account in some\n significant ways. According to them, defendant never reached for his pocket while he was\n in the vehicle–indeed, he was “playing on his phone” and “lit a cigarette.” Both defendant\n and Jackson also (1) insisted that defendant was not nervous and (2) testified that Mendiola\n threatened to shoot defendant if he did not stop moving. Defendant testified that he never\n consented to being searched because Mendiola never asked for consent; instead, Mendiola\n asked him to exit the vehicle and move to the rear of the vehicle where Mendiola patted him\n down. Jackson testified that the officers told her that she “could get out of the car” and told\n her to sit “over by [her] residence.”\n\n\n\n\n -3-\n\f¶ 12 B. The Trial Court’s Findings Following the\n Hearing on Defendant’s Motion To Suppress\n¶ 13 On this evidence, the trial court denied defendant’s motion to suppress, finding as\n follows:\n “Well, the Court would first note that it finds Officer Mendiola to be a credible\n witness and believes his version of events. The question i[n] considering his testimony\n [is] whether he acted within the law. This is a different situation than had he just\n encountered the defendant on the street somewhere. This is a public housing situation\n where the officers have a legal right to check with people who are on the property ***\n to determine whether they have a right to be there since it can be a violation in and of\n itself just to be present on the property [i]f you do not have a proper ID or are not the\n guest of someone who does. So clearly the officer in approaching the car initially to\n check on the folks who were in the car is appropriate and proper.\n The sequence of events after that, this is an experienced police officer, he’s in\n uniform, he is in, even though it’s the morning time, he is in a known high crime area\n where there are many problems with shootings, gangs, drugs *** and he has worked for\n many, many years, and his testimony is that the responses he got initially from the\n defendant were very suspicious. Now, we don’t really get to prove up that they were\n accurate observations by the fact that they turned out to be true later on. However,\n whether they turned out to be true or not is not really the issue.\n The issue is what was he confronted with at that point? Did he have some reason\n based on the behavior of the defendant, the manner in which he gave his name and so\n forth, and the manner in which he was acting to continue the interview for a period of\n time, and also to make the request for a pat-down search[?] The defendant was not only\n acting nervous, but he was also making further movements with his hand that cause the\n officer to have a problem.\n I don’t agree with [defense counsel’s] analysis that once the officer learned that\n [Jackson] lived there, and there was no real testimony from the officer that he was shown\n an ID or had a valid proof of that other than that she said something to that affect, but\n still he mentioned, as is the case, that there’s checking to be done to see if a person is on\n the banned list. If the person is banned from the housing area, it doesn’t make any\n difference if they were a guest, then they would be subject to being arrested for trespass,\n or at least being asked to leave the premises. He had not had time to do that, so he was\n making a further check.\n He would have been justified at that point to make a pat-down of the defendant for\n weapons without consent, but he asked for and received consent while he was still\n appropriately investigating the issue, and the defendant voluntarily stepped out of the car,\n was patted down, and during the course of the pat-down he received permission to check\n inside the pocket. Ordinarily, if the pat-down itself did not produce something that might\n possibly be a weapon, there might be an issue here. But he received further permission\n to check in the pocket and discovered the cocaine here.\n The later issues with the false name and clearing that up are really kind of irrelevant\n\n -4-\n\f other than the fact that the defendant’s initial nervousness, which was to such an extent\n that the officer had concerns enough to continue his investigation and want a pat-down.\n Civil libertarians would say harassment. Many a police officer is no longer with us by\n ignoring the kind of signs that this officer got that day and didn’t take adequate\n precautions and learned too late that a person may have been armed or dangerous to an\n extent that it was not immediately apparent. The Court will deny the motion to suppress\n for the reasons stated.”\n\n¶ 14 C. Defendant’s November 2011 Stipulated\n Bench Trial and Subsequent Sentence\n¶ 15 Following a November 2011 stipulated bench trial, the trial court convicted defendant\n of unlawful possession of a controlled substance (less than 15 grams of a substance\n containing cocaine) (720 ILCS 570/402(c) (West 2010)). In February 2012, the court\n sentenced defendant to five years in prison.\n\n¶ 16 II. ANALYSIS\n¶ 17 Defendant appeals, arguing that the trial court erred by denying his motion to suppress.\n Specifically, defendant contends that Mendiola violated his fourth amendment right to be\n free from unreasonable searches and seizures when Mendiola exceeded the scope of the\n initial stop. Alternatively, defendant asserts that even if Mendiola did not exceed the scope\n of the initial stop, defendant’s consent to search was involuntary. We disagree on both points,\n turning first to the fourth amendment and our standard of review.\n\n¶ 18 A. The Fourth Amendment and the Standard of Review\n¶ 19 The fourth amendment to the United States Constitution protects the “right of the people\n to be secure in their persons, houses, papers, and effects, against unreasonable searches and\n seizures.” U.S. Const., amend. IV; accord Ill. Const. 1970, art. I, § 6. Accordingly, the\n guarantees of the fourth amendment attach where a “search” or “seizure” takes place. “ ‘A\n “search” occurs when an expectation of privacy that society is prepared to consider\n reasonable is infringed.’ ” People v. Bartelt, 241 Ill. 2d 217, 226 (2011) (quoting United\n States v. Jacobsen, 466 U.S. 109, 113 (1984)). However, a “seizure” occurs when “ ‘the\n police conduct would have communicated to a reasonable person that the person was not free\n to decline the officers’ requests or otherwise terminate the encounter.’ ” Bartelt, 241 Ill. 2d\n at 226 (quoting Florida v. Bostick, 501 U.S. 429, 439 (1991)).\n¶ 20 When reviewing a trial court’s ruling on a motion to suppress evidence, a reviewing court\n utilizes a two-part test, under which the court’s factual findings may be rejected only if they\n are against the manifest weight of the evidence. People v. Harris, 228 Ill. 2d 222, 230 (2008).\n However, when reviewing those established facts in relation to the issues presented, a\n reviewing court may draw its own conclusions in deciding what relief, if any, should be\n granted. Id. Accordingly, a reviewing court reviews de novo the court’s ultimate ruling as to\n whether suppression is warranted. Id.\n\n\n -5-\n\f¶ 21 B. Defendant’s Claim That Mendiola\n Unconstitutionally Seized Him\n¶ 22 Defendant contends that Mendiola violated his fourth amendment right to be free from\n unreasonable searches and seizures by exceeding the scope of the initial stop. We disagree.\n¶ 23 Initially, we note that defendant’s characterization of his interaction with Mendiola as a\n “stop” is inaccurate insofar as that characterization implies that defendant was seized when\n Mendiola approached defendant. (The State inexplicably accepts the defendant’s\n characterization of the encounter as a “stop” in its brief, describing the encounter as a “stop\n [that] was not impermissibly prolonged.”) Contrary to the parties’ characterization, no stop\n occurred in this case. When Mendiola parked his vehicle next to defendant and Jackson,\n walked up to Jackson’s vehicle (where defendant was in the driver’s seat), and began asking\n defendant questions, Mendiola and defendant were engaged in a classic “consensual\n encounter.”\n¶ 24 It is “well settled” that not every encounter between police and private citizens results in\n a seizure. People v. Luedemann, 222 Ill. 2d 530, 544 (2006). Police-citizen encounters are\n divided into the following three “tiers”: (1) arrests, which must be supported by probable\n cause; (2) brief investigative detentions, or “Terry stops,” which must be supported by\n reasonable, articulable suspicion of criminal activity (Terry v. Ohio, 392 U.S. 1 (1968)); and\n (3) encounters that involve no coercion or detention and thus do not implicate fourth-\n amendment interests. Luedemann, 222 Ill. 2d at 544-48 (adding that the so-called\n “community caretaking” doctrine is analytically distinct from consensual encounters because\n it is invoked to validate a search or seizure only after the determination of whether a search\n or seizure had taken place).\n¶ 25 Having outlined the three tiers of police-citizen encounters, we turn to the encounter\n between defendant and Mendiola in this case.\n¶ 26 In this context, an individual is “seized” for purposes of the fourth amendment when an\n officer “by means of physical force or show of authority, has in some way restrained the\n liberty of a citizen.” (Internal quotation marks omitted.) Luedemann, 222 Ill. 2d at 550. The\n appropriate inquiry here is whether a reasonable, innocent person would feel free to decline\n the officer’s requests or otherwise terminate the encounter. Id. (explaining that this is the\n appropriate test for a person seated in a parked car who is approached by a police officer).\n Citing Professor Wayne LaFave (4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 419-21\n (4th ed. 2004)), the supreme court explained why a consensual encounter is not a seizure, as\n follows:\n “[T]he police may approach and question a person seated in a parked vehicle without that\n encounter being labeled a seizure. As Professor LaFave has noted, ‘if an officer merely\n walks up to a person standing or sitting in a public place (or, indeed, who is seated in a\n vehicle located in a public place) and puts a question to him, this alone does not\n constitute a seizure.’ 4 W. LaFave, Search & Seizure § 9.4(a), at 419-21 (4th ed. 2004).\n The ‘seated in a vehicle’ clause of the above passage is supported by a lengthy list of\n citations to the many state and federal decisions that have recognized this rule. See 4 W.\n\n -6-\n\f LaFave, Search & Seizure § 9.4(a), at 419-20, 420 n.49 (collecting cases). In Murray, this\n court held that the mere approaching and questioning of a person seated in a parked\n vehicle does not constitute a seizure and listed many decisions from other jurisdictions\n that had reached the same conclusion. [People v.] Murray, 137 Ill. 2d [382], 391-93\n [(1990)]. Thus, any analysis of such a situation must begin with the recognition that the\n police may approach a person seated in a parked vehicle and ask questions of that person\n without that encounter being labeled a seizure. The encounter becomes a seizure only if\n the officer, through physical force or a show of authority, restrains the liberty of the\n vehicle’s occupant. See Bostick, 501 U.S. at 434 ***.” Luedemann, 222 Ill. 2d at 552-53.\n¶ 27 The encounter in this case was a textbook consensual encounter. Mendiola parked\n adjacent to Jackson’s vehicle without illuminating the lights on his squad car and approached\n defendant only to inquire as to whether defendant was permitted to be on the grounds of the\n housing complex. In so doing, Mendiola demonstrated no physical force or show of authority\n that would have in any way made a reasonable, innocent person feel like he was not free to\n decline the officer’s request or otherwise terminate the encounter. Accordingly, we conclude\n that the encounter between defendant and Mendiola was a consensual encounter; thus, the\n fourth amendment simply does not apply. See People v. Green, 301 Ill. App. 3d 767, 771\n (1998) (concluding that because nothing about the encounter between the defendant and the\n police was coercive or somehow involved the use of physical force or a show of authority,\n the fourth amendment did not apply).\n¶ 28 Moreover, assuming arguendo that the encounter progressed to a “tier two” encounter\n when Mendiola indicated to defendant that if he made another “quick” movement, he would\n “produce a weapon” (see United States v. Mendenhall, 446 U.S. 544, 559 (1980) (indicating\n that the use of language or tone of voice indicating compliance with the officer’s request\n might be compelled is one of many factors to be considered when determining whether a\n seizure has occurred)), the version of events as found by the trial court demonstrates that by\n that time, any potential seizure of defendant was supported by the requisite reasonable,\n articulable suspicion of criminal activity. During their conversation, defendant (1) provided\n a false name, (2) was in a high-crime area, (3) appeared to Mendiola to be very nervous, and\n (4) made a “quick” movement toward his pocket that Mendiola considered potentially\n threatening. Under the totality of the circumstances, we conclude that any potential seizure\n subsequent to the consensual encounter was constitutional as a brief investigatory detention,\n or “Terry stop.”\n\n¶ 29 C. Defendant’s Alternative Claim That His\n Consent To Search Was Involuntary\n¶ 30 Alternatively, defendant contends that even if Mendiola did not exceed the scope of the\n initial encounter, his consent to search was involuntary. Specifically, defendant asserts that\n his consent to be searched was involuntary because Mendiola’s behavior “conveyed the\n message that compliance with any subsequent request was required.” We disagree.\n¶ 31 Contrary to defendant’s contentions, Mendiola’s actions in this case did not convey to\n defendant that he had no choice but to allow him to search. Indeed, the evidence presented\n\n -7-\n\f at the hearing on the motion to suppress demonstrated the contrary. Although, as previously\n explained, Mendiola had the requisite reasonable, articulable suspicion to conduct a Terry\n pat-down, Mendiola nonetheless asked defendant, while defendant was still sitting in\n Jackson’s vehicle, for consent to pat him down. Defendant voluntarily exited the vehicle and\n agreed to the pat-down, during which Mendiola asked defendant for consent to reach inside\n of defendant’s right front pocket. Defendant again consented. Mendiola never drew his\n weapon, threatened defendant, or used any other technique that would indicate to a\n reasonable person that compliance with his requests was mandatory. Defendant’s claim that\n he was somehow forced to consent because of Mendiola’s actions–which were standard\n policing techniques–is entirely unpersuasive.\n\n¶ 32 III. CONCLUSION\n¶ 33 Because we reject defendant’s contentions that (1) Mendiola violated his fourth\n amendment right to be free from unreasonable searches and seizures when Mendiola\n exceeded the scope of the initial encounter and (2) his consent to be searched was\n involuntary, we conclude that the trial court properly denied defendant’s motion to suppress.\n¶ 34 For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, we\n grant the State its $50 statutory assessment as costs of this appeal.\n\n¶ 35 Affirmed.\n\n\n\n\n -8-\n\f", "ocr": false, "opinion_id": 1043501 } ]

[ "601 F.2d 579" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/601/601.F2d.579.78-8459.html", "author_id": null, "opinion_text": "601 F.2d 579\n Brownv.U. S. Court of Appeals for Ninth Circuit\n No. 78-8459\n United States Court of Appeals, Fourth Circuit\n 7/6/79\n \n 1\n E.D.Va.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 367484 } ]

[ "2013 IL App (2d) 130083" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 14, "download_url": "http://www.state.il.us/court/Opinions/AppellateCourt/2013/2ndDistrict/2130083.pdf", "author_id": null, "opinion_text": " 2013 IL App (2d) 130083\n No. 2-13-0083\n Opinion filed September 24, 2013\n______________________________________________________________________________\n\n IN THE\n\n APPELLATE COURT OF ILLINOIS\n\n SECOND DISTRICT\n______________________________________________________________________________\n\nTHE PEOPLE OF THE STATE ) Appeal from the Circuit Court\nOF ILLINOIS, ) of Du Page County.\n )\n Plaintiff-Appellee, )\n )\nv. ) No. 09-CF-1941\n )\nBRIDGETTE L. BUCKNER, ) Honorable\n ) John J. Kinsella,\n Defendant-Appellant. ) Judge, Presiding.\n______________________________________________________________________________\n\n JUSTICE JORGENSEN delivered the judgment of the court, with opinion.\n Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.\n\n OPINION\n\n¶1 Defendant, Bridgette L. Buckner, pleaded guilty to two counts of insurance fraud (720 ILCS\n\n5/46-1(a) (West 2008)) and one count of wire fraud (720 ILCS 5/17-24(a)(1)(A) (West 2008)). The\n\ncircuit court of Du Page County sentenced her to eight years’ imprisonment. On appeal, she\n\ncontends that two of her convictions should have been merged under the one-act, one-crime doctrine\n\nand that the trial court abused its discretion in giving her consecutive sentences under section 5-8-\n\n4(b) of the Unified Code of Corrections (730 ILCS 5/5-8-4(b) (West 2008)). Because defendant\n\nforfeited any challenge to her convictions under the one-act, one-crime rule when she failed to file\n\f2013 IL App (2d) 130083\n\n\na motion to withdraw her guilty plea, and because the trial court did not abuse its discretion in\n\nimposing consecutive sentences pursuant to section 5-8-4(b), we affirm.\n\n¶2 I. BACKGROUND\n\n¶3 Defendant was indicted on two counts of insurance fraud (720 ILCS 5/46-1(a) (West 2008)),\n\ntwo counts of wire fraud (720 ILCS 5/17-24(a)(1)(A), (B)(i) (West 2008)), and two counts of mail\n\nfraud (720 ILCS 5/17-24(b)(1) (West 2008)) related to her submission of two fraudulent life\n\ninsurance claims through her previous employer. Pursuant to an agreement with the State, defendant\n\npleaded guilty to count I (insurance fraud), count II (insurance fraud), and count IV (wire fraud), and\n\nthe remaining counts were nol-prossed.\n\n¶4 At the guilty plea proceeding, defendant’s attorney characterized the guilty plea as a “blind\n\nplea.” However, the State moved to nol-pros the remaining counts “based upon [defendant’s] plea.”\n\nFurther, the trial court, in admonishing defendant, referred several times to the plea “agreement.”\n\nThe trial court also advised defendant that the remaining charges would be dismissed “pursuant to\n\n[her] plea.” The trial court added that there was “no agreement as to what the sentence [would] be.”\n\nAfter being admonished, defendant “accept[ed] the agreement.”\n\n¶5 Defendant failed to personally appear on the original date for sentencing, and the matter was\n\ncontinued. On the next sentencing date, the trial court found that defendant, who was absent again,\n\nhad willfully failed to appear. The trial court conducted the sentencing in defendant’s absence,\n\nalthough her attorney was present.\n\n¶6 The following facts are taken from the sentencing hearing. Defendant began working for\n\nHallmark Insurance Corporation (Hallmark) in March 2008. As part of her employment, she\n\nenrolled in a life insurance plan for her husband in the amount of $15,000 and for each of her three\n\n\n\n -2-\n\f2013 IL App (2d) 130083\n\n\nchildren in the amount of $10,000. In April 2008, defendant submitted a claim for life insurance,\n\nsupported by a death certificate for the purported death of one of her children. The claim was\n\napproved, and she received a check for $10,000. She was also paid for five days of bereavement\n\nleave based on the death of her child.\n\n¶7 In September 2008, on the day before she was scheduled to return to work after an injury-\n\nrelated absence, she called into work and stated that her husband, who was an FBI agent, had been\n\nkilled in the line of duty. She thereafter made a claim for the $15,000 death benefit under the life\n\ninsurance policy at Hallmark. In doing so, she included her husband’s death certificate.\n\n¶8 After defendant claimed the life insurance based on her husband’s asserted death, Hallmark\n\ncontacted the security department at its parent company. The security department initiated an\n\ninvestigation into both of defendant’s life insurance claims. The investigation revealed that\n\ndefendant had submitted a fraudulent death certificate in support of each of those claims. The death\n\ncertificates had been signed by a medical representative who had not been with the health department\n\nfor many years and by a funeral director who had not been associated with the particular funeral\n\nhome for seven or eight years. The death certificates appeared as though they had been “whited out\n\nand retyped.”\n\n¶9 The investigators interviewed defendant at the end of September 2008. Initially, defendant\n\ndenied submitting false claims for life insurance benefits as to both her child and her husband. It was\n\nonly after the two investigators stated that they were retired FBI agents, and would know if her\n\nhusband had been killed in the line of duty, that defendant confessed that both life insurance claims\n\nwere false. Although defendant offered to pay back the $10,000, she admitted she did not have that\n\namount of money.\n\n\n\n -3-\n\f2013 IL App (2d) 130083\n\n\n¶ 10 Further evidence showed that employees at Hallmark had been very sympathetic about\n\ndefendant’s child’s death and had collected money and given it to defendant. Defendant had also\n\nsubmitted her own short-term disability claim based on her husband’s death. It was also learned that\n\ndefendant had forged the college diploma that she included with her employment application at\n\nHallmark.\n\n¶ 11 Defendant had previously submitted life insurance claims on her husband and children when\n\nshe worked for an employer known as HSBC. She was paid over $60,000 on those claims in 2007.\n\nIn that situation, she used altered documents that were similar to, and contained the “same misspelled\n\nwords” as, those that she had submitted in this case.\n\n¶ 12 One of Hallmark’s investigators discovered that, after leaving her employment at Hallmark,\n\ndefendant went to work for a company named LifeWatch. While at the new company, defendant\n\nclaimed that one of her children, whom she had sought life insurance benefits on twice before, had\n\ndied. Although defendant did not have any life insurance on that child, she did receive an outpouring\n\nof sympathy and some flowers. One of the investigators opined that, based on her experience, the\n\nfalse insurance claims at the three employers showed that defendant was “out to commit fraud with\n\neach employer that she went to work for.”\n\n¶ 13 A postal inspector assigned to investigate mail fraud was advised by a bank investigator in\n\n2009 that defendant was suspected of fraudulently obtaining a credit card in someone else’s name.\n\nThe investigation revealed that defendant had created three fraudulent bank accounts from which she\n\nobtained several thousand dollars.\n\n¶ 14 In 2010, as part of that mail fraud investigation, the Streamwood police department stopped\n\ndefendant as she was driving. During the traffic stop, defendant presented a driver’s license in her\n\n\n\n -4-\n\f2013 IL App (2d) 130083\n\n\nmother’s name. After persisting that she was her mother, defendant eventually admitted her true\n\nidentity at the police station.\n\n¶ 15 The police inventoried defendant’s vehicle and discovered a credit card in someone else’s\n\nname, a wallet containing a driver’s license of someone other than defendant, and numerous slips\n\nof paper and envelopes containing the personal information, such as addresses, social security\n\nnumbers, and birth dates, of approximately 40 people who had worked with defendant at LifeWatch.\n\nIt was later determined that defendant had defrauded about 16 of those people for over $34,000.\n\n¶ 16 An investigator from the Du Page County State’s Attorney’s Office, in attempting to locate\n\ndefendant after she had failed to appear at her sentencing, discovered that the address she had\n\nprovided as part of her presentence report was for her mother’s residence at a senior living facility.\n\nThere was no evidence that defendant had ever lived at that address, and, according to the terms of\n\nthe lease, she would not have been allowed to live there.\n\n¶ 17 After hearing arguments, the trial court imposed sentence, noting that the “facts [were]\n\nparticularly egregious in terms of the audacity of [defendant’s] conduct.” The trial court observed\n\nthat defendant committed a similar fraud while employed at HSBC and that she was involved in\n\nongoing fraudulent behavior when she was arrested in this case. The trial court was concerned that\n\ndefendant had perpetrated a fraud on the court by providing a false address as part of the preparation\n\nof the presentence report, which the court found “particularly aggravating, and also suggestive of her\n\ncharacter and consistent with her being engaged in ongoing and continuing fraud.” The trial court\n\nwas also troubled by “the sickening karma of suggesting the death of your own child as a means of\n\nobtaining money by fraud,” noting that she “apparently did it more than once.” The trial court\n\ncharacterized all of that as “very aggravating.”\n\n\n\n -5-\n\f2013 IL App (2d) 130083\n\n\n¶ 18 The trial court also stated that the series of fraud engaged in by defendant was “quite\n\nastonishing” and that defendant’s recent behavior was “not evidence to any great potential for\n\nrehabilitation.” The trial court further commented that her perpetration of a fraud on the court was\n\n“probably the highest or most significant sign of an inability to be rehabilitated.”\n\n¶ 19 In considering the mitigation evidence, the trial court noted that defendant caused no bodily\n\ninjury, that she had no arrest record, and that she had spent most of her life with no contact with the\n\ncriminal justice system. The trial court pointed out that defendant’s criminal conduct, based on the\n\nevidence before it, did not commence until the “last several years.”\n\n¶ 20 The trial court imposed a sentence in absentia of five years’ imprisonment on count I, a\n\nconsecutive sentence of five years in prison on count II, and a concurrent prison sentence of four\n\nyears on count IV. Defendant was subsequently located and taken into custody.\n\n¶ 21 Defendant thereafter filed a motion to reconsider the sentence, which the trial court denied.\n\nIn doing so, the trial court stated that it had imposed consecutive sentences pursuant to section 5-8-4.\n\nThe trial court explained that the consecutive sentences were necessary to protect the public from\n\ndefendant’s further criminal conduct and that it believed that it had “made the record” in that regard.\n\nThe trial court added that “in this instance, [it had] already alluded to both the offense the defendant\n\ncommitted and the nature of the offense as well” and “[t]he defendant’s fraudulent behavior both\n\nbefore the commission of these offenses and subsequent.” The trial court emphasized that it\n\nconsidered the fact that defendant attempted to evade sentencing and punishment as one of the “more\n\nsignificant considerations.” Lastly, the trial court stated that the fact that defendant intended the\n\nconsequences of her conduct was “particularly egregious.” Defendant appealed the denial of her\n\nmotion to reconsider the sentence.\n\n\n\n -6-\n\f2013 IL App (2d) 130083\n\n\n¶ 22 On appeal, this court remanded the case because trial counsel had failed to file a proper\n\ncertificate under Illinois Supreme Court Rule 604(d) (eff. July 1, 2006). See People v. Buckner,\n\n2012 IL App (2d) 111023-U, ¶ 3. On remand, defendant filed a second motion to reconsider the\n\nsentence. Before this court issued its mandate, the trial court denied the second motion to reconsider\n\nthe sentence, and defendant appealed again.\n\n¶ 23 In that appeal, this court vacated the trial court’s order denying defendant’s second motion\n\nto reconsider the sentence, because the order was entered before we issued our mandate. We\n\nsummarily remanded the case. See People v. Buckner, No. 2-12-0486 (Dec. 4, 2012) (minute order).\n\nOn remand, defendant filed her third motion to reconsider the sentence. In that motion, defendant\n\nargued, among other things, that count I was a Class 3 felony as opposed to a Class 2 felony, that the\n\nconvictions on count II and count IV should be merged under the one-act, one-crime doctrine, and\n\nthat consecutive sentences were improper.\n\n¶ 24 At the hearing on defendant’s third motion to reconsider the sentence, the State conceded that\n\ncount I was a Class 3 felony. As for the one-act, one-crime contention, the trial court recalled that\n\nthe sentence “was basically a five plus five and the four would have merged with the five.” The trial\n\ncourt added that it “[did not] dispute [defendant’s] position on that” and that “it [did not] believe [it]\n\nimposed any additional time for that offense.”\n\n¶ 25 On the issue of consecutive sentencing, the trial court stated that the evidence “reflected a\n\nperiod of time in which the defendant engaged not only in this fraudulent behavior but in other\n\nbehavior that was fraudulent or intended to result in fraudulent acquisition of money or property of\n\nother folks.” The trial court further explained that it had found in aggravation that defendant had\n\nattempted to avoid the sentence and the consequences of her guilty plea by her absence from the\n\n\n\n -7-\n\f2013 IL App (2d) 130083\n\n\nsentencing proceedings. The trial court recalled “a significant amount of aggravation that justified\n\nthe sentence that [it] imposed at the time.”\n\n¶ 26 The trial court recognized the mitigating evidence that was put forth at sentencing “in terms\n\nof the defendant’s family background, religious affiliations and beliefs” and accepted “her\n\nrepresentation of redemption and hopes to come to grips with the fraudulent behavior.” However,\n\nthe trial court emphasized that defendant’s “fraudulent behavior was pretty outrageous and audacious\n\nin terms of the nature of what she did, which [did] not speak well for her.”\n\n¶ 27 Following its comments, the trial court stated that the sentence “with regards to Counts 2 and\n\n4 will stand.” It reduced the sentence on count I from five years’ imprisonment to three years in\n\nprison. It further stated that the sentences on counts I and II would be consecutive and that the\n\nsentence on count IV would be concurrent. Defendant filed this timely appeal.\n\n¶ 28 II. ANALYSIS\n\n¶ 29 Defendant first contends that the conviction on count IV should have been merged with the\n\nconviction on count II under the one-act, one-crime rule. The State disagrees, contending in part\n\nthat, although the issue was forfeited, it may be considered on appeal under the plain-error doctrine.\n\nWe hold, however, that the issue was forfeited and that the plain-error doctrine does not apply. See\n\nPeople v. Rogers, 364 Ill. App. 3d 229 (2006).\n\n¶ 30 In Rogers, we held that, where a defendant entered into a plea agreement that called for him\n\nto plead guilty to certain charges and the State to drop the remaining charges, and there was no\n\nagreement as to the sentence to be imposed, the defendant forfeited our consideration of his\n\ncontention of a violation of the one-act, one-crime rule by failing to file a motion to withdraw his\n\nguilty plea in the trial court. Rogers, 364 Ill. App. 3d at 246. We so held because, absent a motion\n\n\n\n -8-\n\f2013 IL App (2d) 130083\n\n\nto withdraw the guilty plea, the guilty plea remained uncontested, along with the defendant’s\n\nvoluntary relinquishment of rights, such as any claim of a violation of the one-act, one-crime rule.\n\nRogers, 364 Ill. App. 3d at 246 (citing People v. Townsell, 209 Ill. 2d 543, 547 (2004)).\n\n¶ 31 Applying Rogers to the present case, we conclude that defendant has forfeited our review of\n\nthe one-act, one-crime issue. The record of the guilty plea proceeding shows that, despite defense\n\ncounsel’s characterization of a “blind plea,” defendant agreed to plead guilty to counts I, II, and IV\n\nin exchange for the State’s agreement to nol-pros counts III, V, and VI. See Rogers, 364 Ill. App.\n\n3d at 241 (citing People v. Lumzy, 191 Ill. 2d 182, 185 (2000)) (blind pleas are those entered into\n\nwith no inducement from the State). Further, there was no agreement as to what the sentence would\n\nbe. Although defendant raised the one-act, one-crime issue in her motion to reconsider the sentence,\n\nshe sought to vacate one of her convictions without moving to withdraw her guilty plea. This is\n\nnearly identical to the scenario in Rogers. Therefore, as in Rogers, we hold that defendant has\n\nforfeited our review of her one-act, one-crime contention.\n\n¶ 32 Further, there can be no plain-error review in this particular context. In Rogers, we\n\ndistinguished People v. Moshier, 312 Ill. App. 3d 879 (2000), a case that applied plain-error analysis\n\nto a one-act, one-crime issue where the defendant filed a motion to reconsider his sentence but did\n\nnot file a motion to withdraw his guilty plea. Rogers, 364 Ill. App. 3d at 240. In doing so, we\n\nemphasized that the defendant in Moshier, unlike the defendant in Rogers, pleaded guilty to all of\n\nthe charges and did not have a plea agreement that obligated the State to forgo prosecuting some of\n\nthe charges in exchange for the defendant’s guilty plea to the remaining charges. Rogers, 364 Ill.\n\nApp. 3d at 244. Thus, we did not engage in any plain-error review in Rogers.\n\n\n\n\n -9-\n\f2013 IL App (2d) 130083\n\n\n¶ 33 Had we done so in Rogers, and had we granted the defendant’s request to vacate one of his\n\nconvictions without his having moved to withdraw his guilty plea, we would have created an\n\nanomaly. The defendant would have received the full benefit of his bargain under the plea\n\nagreement, while later avoiding his own obligation by unilaterally reducing the convictions to which\n\nhe had agreed. We stand by our decision in Rogers and do not apply plain-error analysis to the one-\n\nact, one-crime issue in this case in light of the plea agreement and the absence of any motion to\n\nwithdraw the plea.\n\n¶ 34 We next address the issue of whether the trial court abused its discretion in imposing\n\nconsecutive sentences on the convictions on counts I and II.1 Defendant contends that it was an\n\nabuse of discretion to impose consecutive sentences to protect the public when she had no criminal\n\nhistory, she never had the opportunity to demonstrate her rehabilitative potential, she accepted\n\nresponsibility for her conduct, and she neither caused nor threatened physical harm to anyone.\n\n¶ 35 In cases where consecutive sentences are not mandatory, such sentences should be imposed\n\nsparingly. People v. King, 384 Ill. App. 3d 601, 613 (2008). Section 5-8-4(b) of the Unified Code\n\nof Corrections provides that, other than where consecutive sentences are mandated, a concurrent\n\nsentence must be imposed, unless, considering the nature and circumstances of the offense and the\n\n\n\n 1\n In addressing this issue, we note that, although a defendant who seeks to challenge a\n\nsentence imposed pursuant to a plea agreement must move to withdraw the guilty plea, a defendant\n\nwho enters a plea agreement that calls for the dismissal of certain charges, but that is silent as to the\n\nsentence, may file a motion to reconsider the sentence without filing a motion to withdraw his guilty\n\nplea. Rogers, 364 Ill. App. 3d at 244 (citing Lumzy, 191 Ill. 2d at 187). Thus, we may consider\n\ndefendant’s challenge to the propriety of the consecutive sentences.\n\n -10-\n\f2013 IL App (2d) 130083\n\n\nhistory and character of the defendant, consecutive sentences “are required to protect the public from\n\nfurther criminal conduct by the defendant.” 730 ILCS 5/5-8-4(b) (West 2008). If the trial court\n\nimposes consecutive sentences to protect the public, it “shall set forth in the record” the basis for\n\nsuch sentences. 730 ILCS 5/5-8-4(b) (West 2008).\n\n¶ 36 Because the trial court is in the best position to consider a defendant’s credibility, demeanor,\n\ngeneral moral character, mentality, social environment, and habits, the trial court’s imposition of\n\nconsecutive sentences will not be reversed on appeal absent an abuse of discretion. King, 384 Ill.\n\nApp. 3d at 613. The record must show that the trial court concluded that consecutive terms were\n\nnecessary to protect the public. People v. Sanders, 356 Ill. App. 3d 998, 1006 (2005). If the record\n\ndoes not reflect that the trial court took mitigating factors into account, including a defendant’s\n\npotential for rehabilitation, and the record does not support the trial court’s determination that\n\nconsecutive sentences were necessary to protect the public, an abuse of discretion has occurred.\n\nPeople v. O’Neal, 125 Ill. 2d 291, 298-301 (1988).\n\n¶ 37 We initially consider defendant’s point that the trial court “did not even explain why it\n\nimposed consecutive sentences until the hearing on the motion to reconsider the sentence.” Our\n\nreview of the original sentencing hearing reflects that, although the trial court did not expressly\n\nexplain in so many words its reasons for imposing the consecutive sentences, it did discuss the\n\nvarious aspects of defendant’s conduct, history, and character, both aggravating and mitigating,\n\nrelevant to its decision to impose consecutive sentences for the purpose of protecting the public.\n\nThis was sufficient to satisfy section 5-8-4(b) and to allow proper review of the trial court’s decision.\n\nSee People v. Allen, 268 Ill. App. 3d 947, 950 (1994) (trial court need not recite language of section\n\n\n\n\n -11-\n\f2013 IL App (2d) 130083\n\n\n5-8-4(b) provided the record shows it believed consecutive sentences were necessary to protect the\n\npublic).\n\n¶ 38 We next consider whether the record supports the trial court’s determination that consecutive\n\nsentences were necessary to protect the public. We agree with the trial court that defendant’s\n\nfraudulent conduct was ongoing, extensive, and not likely to have ended had she not been arrested\n\nand incarcerated. As the trial court emphasized several times, defendant persisted in her fraudulent\n\nbehavior with the court when she provided false information in the preparation of her presentence\n\nreport, when she absented herself from the proceedings, and when she attempted to evade custody.2\n\nWe further agree with the trial court’s characterization of defendant’s conduct as “particularly\n\negregious in terms of [its] audacity,” considering how she repeatedly proclaimed that members of\n\nher immediate family had died and then willingly accepted, not only insurance proceeds, but\n\noutpourings of sympathy and financial support from her coworkers. Defendant’s conduct can fairly\n\nbe described as despicable and strongly indicative of her likelihood to continue her criminal\n\nactivities.\n\n¶ 39 Further, the trial court properly addressed defendant’s potential for rehabilitation. It stated\n\nthat defendant’s behavior was “not evidence to any great potential for rehabilitation” and that her\n\nperpetration of a fraud upon the court was “the highest or most significant sign of an inability to be\n\nrehabilitated.” We consider such characterizations of defendant’s questionable rehabilitative\n\npotential as accurate and entirely supported by the record.\n\n\n\n\n 2\n This evasion belies defendant’s assertion that she willingly accepted responsibility for her\n\nconduct.\n\n -12-\n\f2013 IL App (2d) 130083\n\n\n¶ 40 We are also not persuaded by defendant’s assertion that she could not be subjected to\n\nconsecutive sentences when, due to her lack of criminal history, she had had no prior opportunity\n\nto demonstrate her rehabilitative potential. There is simply no authority prohibiting consecutive\n\nsentences when a defendant has not had prior exposure to any rehabilitative opportunities. Such an\n\nargument is devoid of merit.\n\n¶ 41 Defendant also argues that consecutive sentences were improper because her crime caused\n\nno physical harm to anyone. She cites no authority, and we are aware of none, that would preclude\n\nconsecutive sentences where the harm to the victims was purely financial. Rather, at least two courts\n\nhave affirmed such sentences in the context of financial harm only. See People v. McManus, 197\n\nIll. App. 3d 1085, 1100-01 (1990) (consecutive sentences imposed for fraud); People v. Shaw, 133\n\nIll. App. 3d 391, 405 (1985) (consecutive sentences proper for defendant who was involved in\n\nnumerous incidents of fraud and was public nuisance and danger to society). Further, section 5-8-\n\n4(b) refers to protecting the public from “criminal conduct” and is not limited to conduct that results\n\nonly in physical harm. 730 ILCS 5/5-8-4(b) (West 2008). We cannot read into the statute a\n\nlimitation not expressed. See Board of Education of Waukegan Community Unit School District No.\n\n60 v. Orbach, 2013 IL App (2d) 120504, ¶ 17. There was plenty of evidence in this case that\n\ndefendant was extremely dangerous to the public in a financial sense and that she would have\n\npersisted in her ongoing crime spree had she not been removed from the opportunity to do so.\n\n¶ 42 That leaves defendant’s contention that the trial court did not properly consider her lack of\n\nprior criminal history and the fact that she did not begin her criminal conduct until her late forties.\n\nThe trial court, however, expressly recognized that, in terms of mitigation, defendant had caused no\n\nbodily injury, had no prior criminal record, had spent most of her life outside the criminal justice\n\n\n\n -13-\n\f2013 IL App (2d) 130083\n\n\nsystem, and had not commenced her criminal conduct until the “last several years.” We cannot say\n\nthat the trial court did not give such mitigation evidence its full due. However, the mitigation\n\nevidence was not sufficient to overcome the significant aggravating evidence that defendant would\n\nlikely have continued to commit fraud on an unsuspecting public if she were not incarcerated for a\n\nlonger period of time.\n\n¶ 43 Finally, defendant relies on several cases that overturned consecutive sentences involving\n\nwhat she asserts to be “far more serious crimes than those at issue here.” See People v. O’Neal, 125\n\nIll. 2d 291 (1988); People v. Rucker, 260 Ill. App. 3d 659 (1994); People v. Gray, 121 Ill. App. 3d\n\n867 (1984). Those cases are distinguishable from this case, however, as they involved circumstances\n\nand mitigating evidence different from those present here. Indeed, defendant is here engaging in a\n\ncomparative sentencing argument, which is not permissible. See People v. Fern, 189 Ill. 2d 48, 54-\n\n55 (1999).\n\n¶ 44 Although we recognize that consecutive sentences are significant and that they should be\n\nimposed only sparingly, our review of the record demonstrates that such sentences were entirely\n\nappropriate in this case. Because the trial court did not abuse its discretion, we affirm the imposition\n\nof the consecutive sentences as to count I and count II.\n\n¶ 45 III. CONCLUSION\n\n¶ 46 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.\n\n¶ 47 Affirmed.\n\n\n\n\n -14-\n\f", "ocr": false, "opinion_id": 1043552 } ]

[ "193 Vt. 429", "2013 VT 22" ]

[ { "author_str": "Skoglund", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://info.libraries.vermont.gov/supct/current/op2011-205.html", "author_id": null, "opinion_text": "2013 VT 22\r\n\r\n\r\n\r\nState v. Casey (2011-205)\r\n\r\n \r\n\r\n2013 VT 22\r\n\r\n \r\n\r\n[Filed 15-Mar-2013]\r\n\r\n \r\n\r\nNOTICE:  This opinion is\r\nsubject to motions for reargument under V.R.A.P. 40 as well as formal revision\r\nbefore publication in the Vermont Reports.  Readers are requested to notify\r\nthe Reporter of Decisions, Vermont Supreme Court, 109\r\nState Street, Montpelier, Vermont 05609-0801 of any errors in order that\r\ncorrections may be made before this opinion goes to press.\r\n\r\n \r\n\r\n \r\n\r\n\r\n 2013 VT 22\r\n \r\n  \r\n\r\n\r\n No. 2011-205\r\n \r\n  \r\n\r\n\r\n State of Vermont\r\n \r\n \r\n Supreme Court\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n On Appeal from\r\n \r\n \r\n      v.\r\n \r\n \r\n Superior Court, Chittenden\r\n Unit,\r\n \r\n \r\n  \r\n \r\n \r\n Criminal Division\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n Shane Casey\r\n \r\n \r\n October Term, 2012\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n Michael\r\n S. Kupersmith, J.\r\n \r\n \r\n  \r\n \r\n William H. Sorrell, Attorney General, and David Tartter,\r\nAssistant Attorney General, for\r\n\r\n  Plaintiff-Appellee.\r\n\r\n \r\n\r\nWilliam A. Nelson, Middlebury, for Defendant-Appellant.\r\n\r\n \r\n\r\n \r\n\r\nPRESENT:  Reiber, C.J., Dooley, Skoglund,\r\nBurgess and Robinson, JJ.\r\n\r\n \r\n\r\n \r\n\r\n¶ 1.            \r\nSKOGLUND, J.  Defendant appeals his conviction of two counts\r\nof aggravated sexual assault, alleging that the trial court erred in (1)\r\ndenying defendant’s motion to sever a joint trial; (2) refusing to grant a new\r\ntrial after codefendant pled no contest midtrial; and (3) admitting the\r\nvictim’s diary as evidence of her sexual abuse.  We affirm.\r\n\r\n¶ 2.            \r\nThis case has a long and winding history.  The State prosecuted\r\ndefendant and codefendant, Stacey Parnitzke, with\r\nwhom defendant was romantically involved, for multiple counts of aggravated\r\nsexual assault.  The charged incidents occurred between 2005 and 2006.\r\n There have been three jury trials, presided over by two judges.\r\n Separate counsel represented defendant and Parnitzke,\r\nbut the court joined their cases for discovery, pretrial motions, and all three\r\ntrials.   \r\n\r\n¶ 3.            \r\nThe first trial in June 2009 resulted in a hung jury.  The second\r\ntrial in April 2010 led to convictions against both defendants, but due to the\r\nimproper admission of evidence, the trial court vacated the convictions and\r\ngranted a new trial.  The third trial commenced on January 31, 2011. After\r\nthree days of trial, on February 2, 2011, Parnitzke\r\npleaded no contest to a reduced charge of sexual assault on a minor, which ended\r\nher participation in the case.  The third trial drew to a close on\r\nFebruary 9, 2011.  Defendant was convicted of two counts of aggravated\r\nsexual assault.  Defendant filed a timely motion for a new trial, which\r\nwas denied.  This appeal followed.\r\n\r\n¶ 4.            \r\n Defendant first claims that he requested severance before the\r\nthird trial and asserts that the court impermissibly denied his motion to\r\nsever, arguing that there was a “reasonable likelihood of prejudice” that could\r\nnot be eliminated.  Defendant and Parntizke\r\nwere charged in separate informations.  Before\r\nthe first trial, the State moved to join the cases pursuant to Vermont Rules of\r\nCriminal Procedure 8(b)(3)(A), 8(b)(3)(B), and 13(a), contending defendants\r\nwere charged with offenses that were “closely connected” and part of a “common\r\nscheme or plan.”  Both defendant and Partnitzke\r\nobjected to the State’s motion for joinder.  Nonetheless,\r\nthe court granted the State’s motion under Rule 13(a), which authorizes the\r\ncourt to join cases for trial even though they were filed separately.  \r\n\r\n¶ 5.            \r\nRule 13(a) gives the court broad discretion to order joint trials where\r\ncases could be joined for pleading under Rule 8.  See Reporter’s Notes, V.R.Cr.P. 13(a).  Rule 8 authorizes the joinder of defendants when “it is alleged that the several\r\noffenses charged were (A) part of a common scheme or plan; or (B) were so\r\nclosely connected in respect to time, place, and occasion that it would be\r\ndifficult to separate proof of one charge from proof of others.”  V.R.Cr.P. 8(b)(3)(A)–(B). \r\nThe trial court reasoned that because there were allegations of simultaneous\r\nsexual assault, whereby both defendants were allegedly abusing the victim at\r\nthe same time, such acts would constitute a common plan or scheme under Rule\r\n8(b)(3)(A).  Similarly, the court found that because the charged\r\noffenses all occurred between the same time frame and in the same place, the\r\nallegations were “closely connected” under Rule 8(b)(3)(B).  Further, the\r\ncourt concluded that there was “no reasonable likelihood that [the]\r\ndefendant[s] would be prejudiced by a joint trial,” finding that the evidence\r\ninvolved was not so complicated that the jury would have difficulty\r\nunderstanding the allegations made as to each defendant.  See V.R.Cr.P. 14(b)(2)(D)–(E).  Specifically\r\naddressing severance with respect to defendant, the court stated:\r\n\r\n \r\nThe State has given notice of its intent to introduce other uncharged acts\r\nunder V.R.E. 404(b) against each defendant. Defendant-Casey argues that the\r\njury will be required to distinguish between acts involving other men and\r\nDefendant-Parnitzke and those acts involving these\r\ntwo defendants. Defendant-Casey also argues that the jury will be required to\r\n“examine frank and shocking allegations of sexual abuse of a child . . . and\r\nto examine equally shocking allegations of incest” against Defendant-Parnitzke. Distinguishing the sexual acts between\r\nparticipants and the type of sexual act is not so complicated that a jury could\r\nnot distinguish the evidence and apply the law intelligently. The jury will be\r\nrequired to examine shocking allegations of sexual abuse and incest. This is\r\nnot a ground for severance. The “shock value” does not prevent a jury from\r\napplying the law intelligently. \r\n\r\n \r\n\r\n¶ 6.            \r\nFurthermore, the court explained that the uncharged acts, complained of\r\nby defendant, had a “limited purpose,” and the jury would be instructed that\r\nthey could not be used substantively against either defendant or Parnitzke.  The court also observed that defendant and\r\nParnitzke’s underlying relationship would remain\r\npertinent to both cases and be disclosed at trial, regardless of whether their\r\ncases were severed.  Before the jury draw of the first trial,\r\ndefendant twice renewed his objections to joinder,\r\nbut the court reaffirmed its denial.  As noted, the first trial\r\nended in a hung jury. \r\n\r\n¶ 7.            \r\nBefore the second trial, the State moved for joinder.\r\n Parnitzke filed a renewed motion to sever.\r\n Defendant did not move to sever and expressly declined to join Parnitzke’s motion for severance but indicated he may want\r\nto renew such motion at a later time.  The court granted joinder, citing reasons articulated in its earlier decision\r\nto join the cases.  The second trial resulted in convictions of both\r\ndefendants; however, as noted above, a new trial was granted due to the\r\nadmission of improper evidence. \r\n\r\n¶ 8.            \r\nOn the first day of jury draw for the third trial, counsel for Parnitzke renewed the request for a separate trial,\r\nacknowledging that her request had been consistently rejected but wanting to\r\npreserve the issue despite the court’s ruling that it would be a joint trial. \r\n\r\nAgain,\r\nmy client wishes an individual trial, not a joint trial.  We’ve asked for\r\nthat repeatedly.  The Court we understand has denied that, and we’re going\r\nforward as a joint trial.  But don’t want to not preserve the issue and\r\nbring it up before this trial. \r\n\r\n \r\n\r\nDefendant’s counsel then chimed\r\nin, “The same here, Judge, on that issue.”  The court continued to\r\ndeny the motion to sever, and the trial resulted in convictions of two counts\r\nof aggravated sexual assault against defendant. \r\n\r\n¶ 9.            \r\nFollowing his trial, defendant filed a motion for a new trial based on,\r\namong other things, the court’s decision not to sever trials.  The court\r\nreasoned that defendant did not adequately petition the court for severance,\r\nstating that:\r\n\r\n  Defense\r\ncounsel’s comment, in the absence of a motion to that effect, is inadequate to\r\npreserve the issue. [Defendant’s] position on severance was made known to the\r\nCourt on August 25, 2009, and after that date, he never filed a written motion\r\nto sever defendants. A motion to sever defendants must be made by a proper\r\npre-trial motion or it is waived.  \r\n\r\n \r\n\r\n¶ 10.         Rule\r\n14 provides that “the court shall grant severance of the moving defendant\r\nunless the court finds that there is no reasonable likelihood that that\r\ndefendant would be prejudiced by a joint trial.”  V.R.Cr.P.\r\n14(b)(2)(D).  In order to adequately move for\r\nseverance, defendant must file a motion before trial, and if overruled,\r\ndefendant must renew the motion on the same grounds, before or at the close of\r\nall evidence.  “Severance is waived if the motion is not made at the\r\nappropriate time.”  See V.R.Cr.P. 14(b)(4).  The onus is on defendant to specify to the court\r\nthe reasons he opposes joinder and to show why there\r\nis a reasonable likelihood that he would be prejudiced by a joint trial. \r\nSee V.R.Cr.P. 14.  Here, because defendant\r\npreviously considered and rejected severance of defendants before the second\r\ntrial, the court could reasonably assume that a joint trial was part of his\r\nstrategy. \r\n\r\n¶ 11.           Defendant’s\r\nvague attempt to preserve the issue for review fails.  Counsel's statement\r\nwas cryptic and scant, and sought no action from the\r\ncourt as required by the rule.  See State v. Venman,\r\n151 Vt. 561, 567, 564 A.2d 574, 578-79 (1989) (In severance-of-offenses cases,\r\n“the burden is placed upon the defendant” to request\r\nand “renew the motion” for severance, which permits “the defendant to\r\nreevaluate” whether to proceed with a consolidated trial.  “Therefore,\r\nfailure to renew the motion constitutes a waiver of any right to\r\nseverance.”).  Merely stating, “[S]ame here,\r\nJudge” does not constitute a motion to sever. \r\n\r\n¶ 12.         Further,\r\nconsidering defendant’s shifting position—requesting to sever in the first\r\ntrial and not objecting to joinder in the second—it\r\nis unclear what the “same here” references.  Such a nebulous request does\r\nnot preserve the issue for review.[1]\r\n Without a proper motion, the court should not have been expected to\r\ndivine a change in defendant's position.  Defendant failed to clearly request severance or note the\r\nprejudice to him and, therefore, waived his right.  See V.R.Cr.P. 14(b)(4).  As a\r\nresult, we do not reach the merits of whether the trial court improperly joined\r\nthe cases.\r\n\r\n¶\r\n13.        \r\nDefendant next contends that the trial court erred in denying his motion\r\nfor mistrial after codefendant’s sudden absence from trial.  On the third\r\nday of trial, during the lunch recess, Parnitzke\r\nreached an agreement with the State and pleaded no contest to a lesser charge.\r\n When the jury returned, the judge advised them that some issues had\r\narisen and trial would not resume for two days.  In the interim, defendant\r\nmoved for a mistrial and a new trial arguing: (1) the jury would consider\r\nirrelevant and highly prejudicial information about Parnitzke\r\nthat would not have been admitted had defendant been tried alone; (2) Parnitzke’s change of plea resulted in a major shift in\r\ndefense strategy; (3) the jurors would draw impermissible conclusions from Parnitzke’s absence; and (4) cautionary instructions alone\r\nwould not protect defendant’s fair trial rights.  \r\n\r\n¶\r\n14.        \r\nThe court denied the motion, concluding Parnitzke’s\r\nremoval from the trial did not warrant the extreme response of a mistrial.\r\n When the jury returned, two days later, Parnitzke\r\nwas absent.  The judge explained that the cases had been “separated.”  Without\r\ngoing into details, the judge stated that there are “several legal reasons why\r\nthis could have occurred” and the jury was “not to speculate about these\r\npossible reasons.”  \r\n\r\n¶\r\n15.        \r\n Denial of a mistrial under circumstances such as those presented\r\nhere is reviewed for abuse of discretion only.  See United States v.\r\nMerida, 765 F.2d 1205, 1220-21 (5th Cir. 1985).  And, “[g]iven the trial judge’s closeness to the scene,” denials of\r\nmistrials after a codefendant pleads mid-trial are reversed “only under\r\nextremely compelling circumstances.” United States v.\r\nButterworth, 511 F.3d 71, 76 (1st Cir. 2007) (quotation omitted). \r\nThis Court uses the same standards.  State v. Messier, 2005 VT 98,\r\n¶ 15, 178 Vt. 412, 885 A.2d 1193 (“The disposition of a motion for mistrial is\r\ndiscretionary, and, as such, a claim of error can be supported only where the\r\ntrial court’s discretion was either totally withheld, or exercised on clearly\r\nuntenable or unreasonable grounds.”).  “The exercise of that discretion\r\nalways must be informed by the circumstances of the particular case.”  United States v. Sepulveda, 15 F.3d 1161, 1184 (1st\r\nCir. 1993).  Based on the trial judge’s superior vantage point, we\r\nwill not interfere with the disposition of such a motion unless the complaining\r\nparty can demonstrate a manifest abuse of that discretion.  See United\r\nStates v. Pierro, 32 F.3d 611, 617 (1st Cir.\r\n1994), overruled on other grounds by United States v. Booker, 543 U.S.\r\n220 (2005). \r\n\r\n¶\r\n16.        \r\nThe “standard method” for handling a mid-trial plea change in a\r\nmulti-defendant criminal prosecution “is to (a) refrain from telling the jury\r\nof the change of plea, and (b) instruct the jury that the absent defendant has\r\nbeen withdrawn from the case for legally sufficient reasons and that the jury (i) should not speculate on why the absent defendant is no longer in the case and\r\n(ii) should focus single-mindedly on whether the government has established,\r\nbeyond a reasonable doubt, the guilt of the defendant or defendants remaining\r\nin the case, bearing in mind that in order to achieve a conviction of a\r\ndefendant the government must carry its burden of proof individually as to that\r\ndefendant.”  See United States v. Rodriguez, 205 F. Supp. 2d 411,\r\n412-13 (E.D. Pa. 2002).  “Declaring a mistrial is a last resort, only to\r\nbe implemented if the taint is ineradicable”; that is, where curative\r\ninstructions cannot realistically mend the harm done by the mid-trial plea.\r\n Sepulveda, 15 F.3d at 1184; see Pierro,\r\n32 F.3d at 617.\r\n\r\n¶\r\n17.        \r\nThe majority of the cases cited by defendant have arisen in the\r\nparticular context of conspiracy, where “[a] guilty plea entered by a\r\ncodefendant can be especially prejudicial.”  United\r\nStates v. Peterman, 841 F.2d 1474, 1480 (10th Cir. 1988) (quotation\r\nomitted).  No conspiracy was charged in the case at\r\nhand.  Here, the overlap of offenses charged against each defendant is not\r\nsuch that any inkling of Parnitzke’s guilt would\r\nautomatically lead a jury to conclude defendant’s guilt, as it is well settled\r\nthat “the guilty plea of one defendant cannot serve as substantive evidence\r\nagainst another defendant.”  Rodriguez, 205 F. Supp. 2d at 414; see\r\nUnited States v. Baez, 703 F.2d 453, 455-56 (10th Cir. 1983)\r\n(trial court’s reference to codefendants’ guilty plea for conspiracy to\r\ndistribute PCP was plain error).  This rule protects defendants from a jury’s temptation “to conclude that\r\nif one defendant is guilty\r\nof committing an offense, the other defendant is guilty as well.”  Peterman,\r\n841 F.2d at 1480 (challenging admission of co-conspirators prior convictions);\r\nsee United States v. Miranda, 593 F.2d 590, 594 (5th Cir. 1979)\r\n(“[A] defendant is entitled\r\nto have the question of his guilt determined upon the evidence against him, not\r\non whether a codefendant or government witness has been convicted of the same\r\ncharge.”); Babb v. United States, 218 F.2d 538, 542 (5th Cir. 1955).\r\n “A guilty plea entered by a codefendant can be especially prejudicial if\r\nthe plea is made in connection with a conspiracy to which the remaining\r\ndefendants are charged.”  Peterman, 841 F.2d at 1480 (quoting United\r\nStates v. DeLucca, 630 F.2d 294, 298 (5th\r\nCir. 1980)).  “Due to the extreme and unfair prejudice suffered by\r\ndefendants in [coconspirator] situations, courts and prosecutors generally are\r\nforbidden from mentioning that a codefendant has either pled guilty or been\r\nconvicted.”  United States v. Griffin, 778 F.2d 707, 710\r\n(11th Cir. 1985) (finding that trial court abused its discretion in allowing\r\nco-conspirators’ adjudication of guilt to be admitted into evidence).  \r\n\r\n¶ 18.         Defendant\r\nasserts that some or all of the jurors must have speculated, regardless of the\r\ninstructions to the contrary, that Parnitzke pleaded\r\nguilty after the victim’s devastating testimony that her mother had allowed\r\nmany men to assault her while they were living in England, and that guilt of\r\nthe absent Parnitzke directly inculpated defendant.\r\n It is fair to say that a significant portion of the victim’s testimony\r\ndetailed accounts of Parnitzke’s long history of\r\nabuse of her daughter, leaving defendant just another man Parnitzke\r\npermitted to assault her child.  Defendant analogizes his case to Rodriguez,\r\na capital murder case where three defendants were tried together for\r\nmurders.  205 F. Supp. 2d 411.  The two\r\naccused of actually carrying out the murders entered into a plea agreement\r\nafter six weeks of trial, leaving only the defendant, who stood accused of\r\nhiring the first two to commit the crimes.  The judge in Rodriguez\r\ngranted defendant’s motion for a mistrial, positing that at least some members\r\nof the jury, over the course of the several weeks the trial was expected to\r\nlast, would at some point surmise that “changes of plea constituted not merely\r\na possible, but perhaps the most probable, explanation for the departure from\r\nthe case” of the two other defendants.  Id. at\r\n413.  Also, the prosecution’s presentation of the murder charges\r\nagainst the two pleading defendants was keyed into the theory that the\r\ndefendant orchestrated the murders and hired the two defendants.  In other\r\nwords, the guilt of the two absent defendants was directly linked to the guilt\r\nof the defendant Rodriguez.  Id. \r\n\r\n¶\r\n19.        \r\nWe find the facts of the present case distinguishable.  The two cases\r\nhere were joined based on a common plan or scheme and because the offenses\r\ncharged were closely connected in time, place and occasion; yet, the behaviors\r\nconstituting the charges against each were distinct, as was the evidence\r\npresented.[2]\r\n Moreover, unlike the situation presented in Rodriguez, the\r\npotential for a prejudicial inference in this case was not wholly obvious.\r\n The court appropriately instructed the jury not to speculate as to why\r\nthe case against Parnitzke had been separated from defendant’s.  The court further told the jury not to\r\ndraw any conclusions from Parnitzke’s absence.\r\n The court’s explanation falls directly in line with established\r\nprocedures.  See Butterworth, 511 F.3d at 76;\r\nSepulveda, 15 F.3d at 1184-85.  While defendant suggests that more\r\nevidence of abuse came in as a result of being tried jointly with Parnitzke, he fails to appreciate that the evidence to\r\nwhich he refers was offered solely against Parnitzke. \r\nHe fails to support his claim that he was prejudiced by Parnitzke’s\r\nmid-trial absence or to show how the jury could have wrongly inferred his guilt\r\nfrom codefendant’s absence.  We affirm the lower court’s decision to deny\r\nthe mistrial.\r\n\r\n¶\r\n20.        \r\nAs a final matter, defendant asserts that evidence of the victim’s diary\r\nwas improperly admitted at trial.  Discretionary rulings regarding the\r\nadmissibility of evidence are reviewed under an abuse-of-discretion standard.\r\n State v. Voorheis, 2004 VT 10, ¶ 20, 176\r\nVt. 265, 844 A.2d 794.  Prior to trial, defense\r\ncounsel sought to exclude from evidence notations in the victim’s diary which\r\nshe claimed represented a record of the abuse, arguing that such evidence would\r\nconstitute hearsay. The court ruled that the State would not be permitted to present\r\nthe substance of the diary entries but agreed that the victim could testify to\r\nthe fact that she kept the diary and wrote notes corresponding to the timing of\r\nthe sexual abuse. \r\n\r\n¶\r\n21.        \r\nAt trial, in response to the State’s inquiry as to whether she ever\r\ninformed anyone of, or documented the alleged abuse, the victim stated, “I\r\ndidn’t like write it, but I used like little symbols or drawings . . . in\r\na diary” in order to protect the information from others.  The\r\ndefense then, on cross-examination, introduced the actual diary, apparently to\r\nhighlight the fact that there were no verbal descriptions of abuse or tally\r\nmarks, as the victim suggested during earlier interviews.  The\r\ncourt noted that, in its closing, the defense argued persuasively that the\r\nvictim’s contradictory accounts undermined the value of the markings and the\r\nvictim’s credibility.  Defendant now argues that diary symbols are hearsay\r\nand were impermissibly admitted under Vermont Rule of Evidence 801(d)(1)(B), as prior consistent statements.  However, the\r\ncourt had ruled that the victim could testify only that she kept a diary, but\r\nnot as to the substance of the diary.  The court reasoned that if there\r\nwas impeachment on cross-examination suggesting the victim’s allegations were\r\nrecently fabricated, the State could then offer evidence of what was recorded\r\nin the diary as a prior consistent statement.  Because it was the defense\r\nthat offered the diary, which the court noted was not strong evidence and was\r\nin fact a double-edged sword, and that used the diary to impeach the victim’s\r\ncredibility as well as to show the victim’s bias towards defendant, we find no\r\nabuse in admitting the evidence. [3]\r\n\r\n\r\nAffirmed.\r\n\r\n \r\n\r\n\r\n  \r\n \r\n \r\n  \r\n \r\n \r\n FOR THE COURT:\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n Associate\r\n Justice\r\n \r\n  \r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n[1]\r\n We are not advocating form over substance.  See generally, Venman, 151 Vt. at 565, 564 A.2d at 577 (defendant\r\npreserved request to sever even though he referred to it as\r\nsequestration).  But where, as here, defendant provides no express request\r\nto sever or reason why the court should sever trials, we cannot craft one. \r\n\r\n\r\n\r\n\r\n\r\n[2]\r\n The victim did describe one instance where Partnizke\r\nwas performing oral sex on the victim while the victim performed oral sex on\r\ndefendant.  Though allegedly simultaneous, defendant’s culpability did not\r\nrequire a corresponding reliance on Partnizke’s guilt\r\nand vice versa.  The victim’s credibility as to one could be assessed\r\ndifferently as to the other.  \r\n\r\n\r\n\r\n\r\n\r\n[3] \r\nThe State asserts that the defense failed to preserve the matter on appeal\r\nbased on its failure to object to the court’s ruling that the victim could\r\ntestify to the mere fact of the existence of the diary, without going to its\r\nsubstance, but rather just responded, “Great” to the entire discussion.\r\n Because we find that defendant’s claim of error fails, we decline to\r\naddress the State’s preservation issue.\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n", "ocr": false, "opinion_id": 1043639 } ]

[ "192 Vt. 85", "2012 VT 59" ]

[ { "author_str": "Dooley", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://info.libraries.vermont.gov/supct/current/op2011-235.html", "author_id": null, "opinion_text": "2012 VT 59\r\n\r\n\r\n\r\nMueller v. Mueller and Joseph F.\r\nMueller Trust (2011-235)\r\n\r\n \r\n\r\n2012 VT 59\r\n\r\n \r\n\r\n[Filed 27-Jul-2012]\r\n\r\n \r\n\r\nNOTICE:  This opinion is\r\nsubject to motions for reargument under V.R.A.P. 40 as well as formal revision\r\nbefore publication in the Vermont Reports.  Readers are requested to\r\nnotify the Reporter of Decisions by email at: [email protected] or by\r\nmail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont\r\n05609-0801, of any errors in order that corrections may be made before this\r\nopinion goes to press.\r\n\r\n \r\n\r\n \r\n\r\n\r\n 2012 VT 59\r\n \r\n  \r\n\r\n\r\n No. 2011-235\r\n \r\n  \r\n\r\n\r\n Evelyn O. Mueller\r\n \r\n \r\n Supreme Court\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n On Appeal from\r\n \r\n \r\n      v.\r\n \r\n \r\n Superior Court, Lamoille Unit,\r\n \r\n \r\n  \r\n \r\n \r\n Civil Division\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n Juliann H. Mueller,\r\n Individually, and as Executrix and Beneficiary of the Estate of Joseph F.\r\n Mueller, and/or Trustee and Beneficiary of the Joseph F. Mueller Revocable\r\n Trust, et al.\r\n \r\n \r\n December Term, 2011\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n Dennis\r\n R. Pearson, J.\r\n \r\n \r\n  \r\n \r\n Allen C. B. Horsley of Barr & Associates, P.C., Stowe,\r\nfor Plaintiff-Appellant.\r\n\r\n \r\n\r\nJesse D. Bugbee of Kissane Associates, St. Albans, and Brad\r\nA. Compston of Konowitz &\r\n\r\n  Greenberg, P.C., Wellesley Hills, Massachusetts, for\r\nDefendant-Appellee.\r\n\r\n \r\n\r\n \r\n\r\nPRESENT:  Reiber, C.J., Dooley, Skoglund, Burgess and\r\nRobinson, JJ.\r\n\r\n \r\n\r\n \r\n\r\n¶ 1.            \r\nDOOLEY, J.   This case derives from a separation\r\nagreement made thirty-seven years ago between a now-deceased husband and\r\nplaintiff, his first wife.  Plaintiff contends that her ex-husband\r\npromised to devise to her certain assets upon his death, and she brings various\r\nclaims for equitable relief against defendant, her ex-husband’s second wife,\r\nwho survived him.  The superior court concluded that plaintiff’s claims\r\nwere barred by the statute of limitations.  On appeal, plaintiff argues\r\nthat this conclusion was erroneous because, under the governing Massachusetts\r\nlaw, claims based on a contract to make a will do not accrue until the\r\npromisor’s death.  Although we accept plaintiff’s legal premise, we do not\r\naccept that it governs this case.  Accordingly, we affirm.  \r\n\r\n¶ 2.            \r\nPlaintiff Evelyn Mueller is the first wife of the late Joseph\r\nMueller.  The couple was married for thirty-one years, and they had nine\r\nchildren.  During their marriage, Joseph was an employee, and at some\r\npoint the president, of a Massachusetts company called Adolph Bauer, Inc.\r\n(ABI).  The couple was divorced on September 22, 1975.  In July 1976,\r\nJoseph married defendant Juliann Mueller.  \r\n\r\n¶ 3.            \r\nEvelyn and Joseph’s divorce order from the Massachusetts Probate Court\r\nwas based on—and incorporated—the terms of a separation agreement entered into\r\non August 8, 1975.  The current dispute arises out of Article II of the\r\nseparation agreement, entitled “Support of Wife and Children.”  The\r\nrelevant portions of this article read:\r\n\r\n  As long as\r\nthe Wife shall remain unmarried, the Husband shall pay to her during her\r\nlifetime as alimony for her support and the support and education of their\r\nchildren, the sum of Four Hundred dollars ($400) per week plus an additional\r\namount sufficient to pay Federal and State income\r\ntaxes . . . .\r\n\r\n \r\n\r\n  If at any\r\ntime while Husband is alive, he sells any or all of his stock in Adolph Bauer,\r\nInc., its successors or assigns or any corporation from the partial or complete\r\nsale, distribution or liquidation of said assets, Husband agrees that he will\r\ninclude in his will and/or any trust a provision devising all his rights, title\r\nand interest in such assets, i.e., Adolph Bauer, Inc., to Evelyn Mueller and,\r\nif Wife does not survive Husband, then in equal shares to his surviving\r\nchildren . . . .\r\n\r\n \r\n\r\n¶ 4.            \r\nIn addition, the separation agreement included, among other things, a\r\nconveyance of the marital home, and a division of personal property.  The\r\nagreement also stated, “This agreement is executed in the Commonwealth of\r\nMassachusetts and shall be construed to take effect under and in accordance\r\nwith the laws of said Commonwealth.”  \r\n\r\n¶ 5.            \r\nIn 1983, plaintiff filed a contempt claim in the Massachusetts Probate\r\nCourt, alleging that Joseph was in violation of the divorce order—in\r\nparticular, Article II of the separation agreement—by failing to set up a trust\r\nto receive and administer the proceeds of any sale of his ABI stock.  Because\r\nJoseph was still employed at ABI and he had not sold his ABI stock, the\r\ncomplaint was dismissed without prejudice as premature.  \r\n\r\n¶ 6.            \r\nNot long after this suit, however, Joseph did begin the retirement\r\nprocess.  On January 30, 1985, Joseph entered into a stock redemption\r\nagreement with ABI, in accordance with which he agreed to sell his stock back\r\nto the company for a price of $700,128.  ABI paid him $50,000 up front\r\nwith the balance payable in monthly installments of $10,214.49 over eight years\r\n(ninety-six months at eleven percent interest).  ABI made these monthly\r\npayments until it paid off the balance a few months early, in late 1992. \r\nWhen Joseph retired in 1985, he also cashed in a realty trust that he held in\r\nconnection with property owned by ABI for an estimated payout of\r\n$193,000.  Additionally, he rolled over his retirement accounts, then\r\nworth $218,394.  \r\n\r\n¶ 7.            \r\nSometime in 1984, as Joseph and defendant began the transition into\r\nretirement, defendant purchased land in Stowe, Vermont.  They built a new\r\nhome there, which was completed in 1986.  Title to the land and house\r\nremained solely in defendant’s name.  The cost of these acquisitions was\r\nroughly $350,000, part of which was financed by a mortgage and part of which\r\nmay have come from proceeds of the ABI stock buyback.  The superior court\r\nfound that Joseph used at least part of the stock sale proceeds for living\r\nexpenses at some point or another.\r\n\r\n¶ 8.            \r\nAfter Joseph stopped receiving income from the ABI note in late 1992, he\r\nbegan to claim “financial difficulties” and repeatedly requested that plaintiff\r\nagree to a reduction in alimony.  In January 1993, Joseph wrote to\r\nplaintiff seeking a 29% reduction.  In seeking this modification, Joseph\r\nexplained, \r\n\r\n  As of\r\nJanuary 1993, the Bauer payments to me came to an end.  My income has been\r\nreduced by 58% and I will not have sufficient funds to continue the payments to\r\nyou at the current level. \r\n\r\n. . . .\r\n\r\n  . . . [W]ith-in a\r\nyear of my retirement, the capital gain tax increased by 13%.  This\r\ninflated the taxes on the Bauer payments substantially.  \r\n\r\n¶ 9.            \r\nIn a follow-up letter, Joseph further explained, “[t]he pre-payment by\r\nBauer is ballooning my taxes.”  The superior court concluded that this\r\nexchange would at least have put plaintiff on “inquiry notice” that Joseph may\r\nhave sold his ABI stock.  \r\n\r\n¶ 10.        \r\nPlaintiff never agreed to a reduction, and Joseph continued to pay\r\nalimony as agreed.  In 2003 and 2004, plaintiff and Joseph again\r\nexchanged letters concerning the monthly payments.  During this exchange,\r\nplaintiff twice described her understanding of the separation agreement. \r\nIn May 2003, plaintiff stated, “[A]ll money from A. Bauer, Inc., was\r\nagreed to come to me . . . . You should have put it in a\r\ntrust, immediately, and you could have lived comfortably off the\r\ninterest.”  In April 2004, plaintiff again explained, \r\n\r\n  According to the terms of the\r\nSeparation Agreement, the principal of your equity interest in Adolph Bauer was\r\nto be either held in trust or outlined in your will for one sole purpose\r\nonly: to assure the continuation of your obligation to me, and in the event of\r\nmy death to be split among the remaining of our children.  The principal\r\nwas to be used for no other purpose.\r\n\r\nAlthough he replied in writing\r\nseveral times, there is no evidence that Joseph ever commented on plaintiff’s\r\ndescription of the applicable provisions in the separation agreement.  \r\n\r\n¶ 11.        \r\nJoseph died in December 2007.  Under his 2003 will, Joseph left\r\ncertain personal articles to defendant,[1]\r\na bequest of $1000 to each of eight of his children with plaintiff, and the\r\nremainder to a revocable trust created at the same time the will was\r\nsigned.  The will did not mention ABI stock or the proceeds from the sale\r\nof ABI stock and left nothing to plaintiff. Joseph never put any ABI stock sale\r\nproceeds in trust to hold for plaintiff.  The will was never probated\r\nbecause defendant represented that there were no assets of the estate. \r\nThere were, however, joint accounts with defendant and accounts in which\r\ndefendant was the named beneficiary so the funds went directly to defendant\r\nwithout going through probate.  Defendant put all these funds into the\r\nJuliann Mueller revocable trust, which had been created at the time of the\r\nsigning of Joseph’s will in 2003 but contained no assets except for ownership\r\nof the Stowe home and land.  Following Joseph’s death, the revocable trust\r\nhad net assets, excluding the real property, of $392,742.  The home and\r\nland are estimated to have a value of $550,000, subject to $112,000 in\r\noutstanding loans.  \r\n\r\n¶ 12.        \r\nPlaintiff brought suit against defendant personally, as trustee and\r\nbeneficiary of the Juliann Mueller revocable trust, as trustee and beneficiary\r\nof the Joseph Mueller revocable trust, and as executrix of Joseph’s estate.[2]  In essence the complaint alleged\r\nthat defendant had assets from the sale of the ABI stock and is unjustly enriched\r\nby them and that plaintiff is entitled to restitution for “any property which\r\nshould have been property of Evelyn, but which has been retained by\r\nJuliann.”  The complaint therefore sought various equitable remedies,\r\nincluding declaratory relief, imposition of a constructive trust, and equitable\r\naccounting.  \r\n\r\n¶ 13.        \r\nAfter holding a trial, the superior court entered judgment for defendant\r\non two primary grounds and an alternate ground.  First, the superior court\r\nconcluded that the complaint was barred by the statute of limitations. \r\nThe court reasoned that plaintiff should have known by 1993 that something had\r\nhappened regarding the ABI stock that implicated her rights under the\r\nseparation agreement.  Because the claims asserted were for equitable\r\nrelief under Vermont law, the court applied the Vermont statute of\r\nlimitations.  Applying Vermont law, the court held that a cause of action\r\nhad accrued at that time, and that the suit was required to be commenced within\r\nsix years therefrom under 12 V.S.A. § 511.  \r\n\r\n¶ 14.        \r\nSecond, the superior court stated that, even if the statute of\r\nlimitations did not control, it would reach the same result under the equitable\r\ndoctrine of laches.  The court determined that plaintiff had “no cogent,\r\nor persuasive explanation for the delay of 15 years before seeking legal relief\r\nin court.”  This delay, the court reasoned, caused defendant substantial\r\nprejudice in that it was now virtually impossible to determine the intentions\r\nof the parties in 1975 or to unravel the financial transactions in order to\r\ntrace the proceeds of the ABI stock sale.  \r\n\r\n¶ 15.        \r\nA central part of the superior court’s reasoning on these primary\r\ngrounds is that the operative language of the separation agreement “is\r\nhopelessly ambiguous, and wholly ineffectual in staking out the respective\r\nrights of Evelyn and Joseph with respect to the inevitable buyback of his ABI\r\nstock.”  In reaching its statute of limitations decision, the court relied\r\nupon extrinsic evidence of the meaning of the language, derived from\r\nplaintiff.  The court held that plaintiff consistently took the position\r\nthat Joseph had been required by the separation agreement to sequester the\r\nfunds from the sale of the stock so the principal remained available to devise\r\nto plaintiff or her children in his will.  Relying upon that\r\ninterpretation, the court held that plaintiff was required to bring her action\r\nwhen she knew or should have known that Joseph was dissipating the asset.\r\n\r\n¶ 16.        \r\nAs an alternative ground for its decision, the court held that plaintiff\r\nfailed to trace the proceeds to money held by defendant such that she could\r\nrecover against defendant on a claim for unjust enrichment.  The court\r\nheld that the complicated nature of the finances of Joseph and defendant “conspire\r\nto prevent the court from having any credible basis to unravel the asset skein\r\nleft to Juliann.”  The court held “it is nearly impossible on this record\r\nto determine, and Defendant is prejudiced by not being able to disprove,\r\nwhether all, or any part of the current equity value in [Juliann’s Stowe\r\nproperty] . . . is in fact traceable, or attributable to the 1985 ABI\r\nstock sale.”  It went on to conclude that “[t]he same essential defect\r\nplagues the claim for constructive trust against Defendant’s sole remaining\r\ninvestment/money market account.”  It concluded “it would be an exercise\r\nin total speculation” to conclude that defendant was unjustly enriched at\r\nplaintiff’s expense.  Thus, the court stated that “[e]ven if the court\r\nwere to reach the merits, it does not appear on this record, given the totality\r\nof the circumstances, that Evelyn would prevail on her claims of unjust\r\nenrichment, and for constructive trust, against Juliann.”  \r\n\r\n¶ 17.        \r\nPlaintiff appeals, challenging both the statute of limitations and\r\nlaches rulings and the conclusion that the proceeds of the ABI stock sales\r\ncould not be traced to defendant such that she was unjustly enriched. \r\nWith respect to the former, plaintiff argues that the court made its ruling\r\nbased on a theory of anticipatory repudiation, but Massachusetts law, which\r\ngoverns under the contractual law selection clause in the separation agreement,\r\ndoes not recognize this theory.  Thus, plaintiff argues that under\r\nMassachusetts law her cause of action did not accrue until Joseph died and she\r\nbrought the action within the Vermont limitation date based upon that accrual\r\nevent.  With respect to the alternative ruling, plaintiff argues that the\r\nevidence was sufficient to show that defendant was unjustly enriched in purchasing\r\nthe Stowe property and with respect to the funds placed in the Juliann Mueller\r\nrevocable trust.\r\n\r\n¶ 18.        \r\nA substantial part of the arguments of the parties relates to whether\r\nMassachusetts law governs the major issues in this appeal under the terms of\r\nthe separation agreement.  We address this issue first and conclude that\r\nthe appeal does not turn on which state’s law applies.  The separation\r\nagreement provides that it “shall be construed to take effect under and in\r\naccordance with the laws of [Massachusetts].”  For purposes of this\r\nappeal, we will assume that under the agreement Massachusetts law governs\r\ncontract construction and when plaintiff’s action accrues.  See Stamp\r\nTech, Inc. ex rel. Blair v. Lydall/Thermal Acoustical, Inc., 2009 VT 91,\r\n¶ 23, 186 Vt. 369, 987 A.2d 292 (“[I]t is well-settled that it would be\r\ncontrary to the justified expectations of the parties for a court to interpret\r\ntheir agreement by the laws of any jurisdiction other than that specified in\r\nthe contract.” (citing Restatement\r\n(Second) of Conflict of Laws § 187 cmt. c (1971))).  Plaintiff agrees that\r\nthe limitation of action period is controlled by Vermont law and does not\r\ncontest that the elements of unjust enrichment are supplied by Vermont law.\r\n\r\n¶ 19.        \r\nUpon review of Massachusetts law, we conclude that plaintiff is correct\r\nin her assertion that a breach of contract action based upon a contract to make\r\na will does not accrue until the death of the promisor.  See Sliski v.\r\nKrol, 279 N.E.2d 924, 926-27 (Mass. 1972); Shopneck v. Rosenbloom,\r\n93 N.E.2d 227, 229 (Mass. 1950); Tower v. Jenney, 181 N.E. 123, 124\r\n(Mass. 1932); Raine v. Shea, 156 N.E. 541, 541 (Mass. 1927). \r\nAlthough at times the parties implied that this was a peculiarity of\r\nMassachusetts law, it seems to be the general view.  See, e.g., Lipe v.\r\nCitizens’ Bank & Trust Co., 178 S.E. 665, 666 (N.C. 1935) (“[T]he cause\r\nof action accrues at the time of default, which may arise from abandonment or\r\nanticipatory breach, but which usually results from failure to make testamentary\r\nprovision as promised.” (citations omitted)); H. Wood, Annotation, Remedies\r\nDuring Promisor’s Lifetime on Contract to Convey or Will Property at Death in\r\nConsideration of Support or Services, 7 A.L.R. 2d 1166, § 2 (1949, Supp.\r\n2012); J. King, Lifetime Remedies for Breach of a Contract to Make a Will,\r\n50 S.C. L. Rev. 965, 972 (1999) (“Most courts are reluctant to recognize a\r\ncause of action during the promisor’s lifetime because the promisor has not\r\nbreached the contract until death and because the promisor cannot be compelled\r\nto make a will.”).  Although this Court has recognized agreements to make\r\na devise, see Porter v. Everts’ Estate, 81 Vt. 517, 71 A. 722 (1909), we\r\nhave not addressed this question,[3]\r\nbut we see no reason why our law would differ from that of Massachusetts. \r\n\r\n\r\n¶ 20.        \r\nWe come to the same conclusion about the relationship between\r\nMassachusetts and Vermont law with respect to contract construction. \r\nUnder Vermont law, in a dispute over the interpretation of contract language,\r\nthe first task of the court is to determine whether the language is ambiguous,\r\nwhich is a question of law.  See Isbrandtsen v. N. Branch Corp.,\r\n150 Vt. 575, 579, 556 A.2d 81, 84 (1988).  If the contract language is\r\nambiguous, its interpretation is a question of fact to be determined on all the\r\nevidence, including extrinsic evidence, to determine the intent of the\r\ncontracting parties.  See Dep’t of Corr. v. Matrix Health Sys.,\r\n2008 VT 32, ¶ 12, 183 Vt. 348, 950 A.2d 1201.  Massachusetts law is\r\ngenerally the same.[4] \r\nSee Bank v. Thermo Elemental, Inc., 888 N.E.2d 897, 907 (Mass. 2008).\r\n\r\n¶ 21.        \r\nDetermining the source of the law is relevant to our decision only to\r\nthe extent that the law in question controls part or all of our\r\nreasoning.  Although plaintiff argues to the contrary, it is clear that\r\nthe trial court did not find determinative the Massachusetts law on when a\r\ncontractual right to a devise accrues because the court found that the contract\r\nwas more than a contract to devise and its language was ambiguous.  Thus,\r\nit applied the Vermont and Massachusetts law on contract construction, as set\r\nout above, but not the law on when a right to a devise accrues.  In\r\ndetermining the validity of the trial court decision, we must first determine\r\nwhether the ambiguity ruling was correct.  As we stated above, this ruling\r\nis one of law, and therefore our review is de novo.  See O’Connell-Starkey\r\nv. Starkey, 2007 VT 128, ¶ 8, 183 Vt. 10, 944 A.2d 897.\r\n\r\n¶ 22.        \r\n“Ambiguity exists where the disputed language will allow more than one\r\nreasonable interpretation.”  Id.  There are a number of ways\r\nin which the separation agreement language on which plaintiff relies is\r\nambiguous.  Read literally, the provision states that if Joseph sells his\r\nshares, he is then required to give his interest in those assets to\r\nplaintiff.  But having sold his interest in the assets, he would have\r\nnothing to give.  Literally, the provision is a promise to give\r\nnothing.  A second way in which the literal reading of the provision\r\nappears implausible is that, on its own terms, the provision applies only if\r\nhusband sells his ABI shares while he is alive.  As long as husband did\r\nnot sell the shares, he would never be required to give plaintiff any of the\r\nassets.  Neither of these features of a literal reading makes much\r\nsense.  Adding a further oddity is the fact that the provision is included\r\nas a paragraph tucked within a section entitled “Support of Wife and Children,”\r\nnot within any of the sections discussing the allocation of property.  We\r\naffirm the trial court’s conclusion that the language is ambiguous.\r\n\r\n¶ 23.        \r\nHaving found the language ambiguous, the trial court turned to a factual\r\ninquiry into the meaning of the language.  The evidence was sparse. \r\nBoth plaintiff and defendant testified, but the testimony provided no\r\nsignificant evidence on the meaning of the agreement.[5]  The main evidence was\r\ncorrespondence between plaintiff and Joseph, in which she demanded compliance\r\nwith her understanding of the agreement, and plaintiff’s unsuccessful attempt\r\nin 1983 to enforce the agreement with respect to the ABI stock in the\r\nMassachusetts Probate Court.\r\n\r\n¶ 24.        \r\nRather than resolving the contract construction issue as a matter of\r\nfact, the court reasoned that under plaintiff’s position as to Joseph’s\r\nobligation under the agreement her cause of action accrued when the agreement\r\nwas made between ABI and Joseph for him to sell the stock.  The court held\r\nthat “it is ultimately unnecessary . . . to declare what the\r\nprovision appears to mean, or try to divine what the parties really intended in\r\n1975” because plaintiff’s claim would fail even “if, as she apparently\r\nthought and still contends, any such sale required Joseph to immediately put\r\nall the proceeds into an irrevocable trust (under which he could not touch any\r\nof the principal) to guarantee her alimony payments, and then pay the principal\r\nall to her (or to their children if she died before him).”  Thus, the\r\ncourt’s logic was that since plaintiff alleged that Joseph’s breach of the\r\nagreement was the failure to establish the trust, and not the failure to put\r\nthe devise of the proceeds in the will, she was not relying on a theory of anticipatory\r\nrepudiation and the cause of action would accrue when Joseph failed to\r\nestablish the trust.\r\n\r\n¶ 25.        \r\nAs discussed in more detail below, this is fundamentally an unjust\r\nenrichment action.  While plaintiff’s complaint alleges that the two\r\npersonal revocable trusts, one for Juliann and one for Joseph, held money that\r\nshould have gone to plaintiff, and that a constructive trust should be imposed,\r\nthere is no allegation that Joseph should have established an irrevocable trust\r\nfor the ABI stock sale proceeds at the time he began to receive them. \r\nSome of the evidence supported the court’s view that plaintiff had sought an\r\nirrevocable trust.  In the 1983 enforcement action in the Massachusetts\r\nProbate Court, the complaint alleged that Joseph “[h]as failed to set up [a]\r\ntrust in accordance with the last paragraph appearing on page 3 of [the]\r\nSeparation Agreement.”  Plaintiff’s affidavit in this case described the\r\ncontempt action by stating, “my counsel filed a complaint for contempt claiming\r\nthat Joseph had failed to establish a trust pursuant to Article II of the\r\n[Separation] Agreement.”  In a letter in 2003, plaintiff wrote, “You\r\nshould have put it in a trust, immediately, and you could have lived\r\ncomfortably off the interest.”  Other evidence was more equivocal. \r\nFor example, plaintiff’s letter of April 2004 to Joseph stated that the\r\nproceeds should “be either held in trust or outlined in your will.” \r\nPlaintiff testified that the ABI stock was to come to her “not just when he\r\nsold it but if he died.”  Plaintiff’s position in this Court, consistent\r\nwith her position below, was that the Agreement required that the proceeds of\r\nthe ABI stock were to be devised to her, or her children, on Joseph’s death\r\nirrespective of whether he sequestered them as they came to him.  \r\n\r\n¶ 26.        \r\nWe acknowledge that the court could have found that the separation\r\nagreement contained a requirement to sequester the ABI stock sale proceeds\r\nalthough it was not explicit on this point.  But the court made no such\r\nfinding.  We do not believe it could substitute for such a finding a\r\ndisputed assertion of plaintiff’s position, attributing to plaintiff a waiver\r\nof any alternative position.  We therefore cannot affirm the court’s\r\nstatute of limitations holding.\r\n\r\n¶ 27.        \r\nThis brings us to the court’s alternative holding—that plaintiff’s\r\naction fails because she did not trace the proceeds of the stock sale into the\r\nfunds held by defendant on which she seeks to impose a constructive\r\ntrust.  As we noted above, this is not a breach of contract action against\r\nJoseph or his estate; nor is it a contempt action based on the divorce\r\norder.  At its core, plaintiffs’ allegation is that defendant was unjustly\r\nenriched by the receipt of some or all of the proceeds of the stock sale. \r\nPlaintiff identifies two ways in which defendant was unjustly enriched—in the\r\npurchase of the land for and construction of the house in Stowe, and in the\r\nfunds that came to her outside probate on Joseph’s death.  As a remedy,\r\nshe seeks a constructive trust for her benefit on the house and land, and on\r\nthe Juliann Mueller revocable trust.  \r\n\r\n¶ 28.        \r\nUnder the doctrine of unjust enrichment, “a party who receives a benefit\r\nmust return [it] . . . if retention would be inequitable.”  Gallipo\r\nv. City of Rutland, 2005 VT 83, ¶ 41, 178 Vt. 244, 882 A.2d 1177. \r\nUnjust enrichment is present if, “ ‘in light of the totality of the\r\ncircumstances, equity and good conscience demand’ that the benefitted party\r\nreturn that which was given.”  Id. (quoting Brookside Memorials,\r\nInc. v. Barre City, 167 Vt. 558, 560, 702 A.2d 47, 50 (1997) (mem.)). \r\nWhether there is unjust enrichment present “ ‘may not be determined from a\r\nlimited inquiry confined to an isolated transaction.  It must be a\r\nrealistic determination based on a broad view of the human setting\r\ninvolved.’ ”  Legault v. Legault, 142 Vt. 525, 531, 459 A.2d\r\n980, 984 (1983) (quoting McGrath v. Hilding, 363 N.E.2d 328, 331 (N.Y.\r\n1977)).\r\n\r\n¶ 29.        \r\nThe common remedy for unjust enrichment is imposition of a constructive\r\ntrust, where the person with the legal title “cannot enjoy the beneficial\r\ninterest without violating the rules of honesty and fair dealing.”[6]  McGann v. Capital Sav. Bank\r\n& Trust Co., 117 Vt. 179, 189, 89 A.2d 123, 130 (1952). \r\nImposition of a constructive trust is a common remedy in a case where property\r\nor funds have been diverted to a third person in violation of the terms of a\r\ncontract to make a specific devise.  See Goldstein v. Hoffman, 29\r\nCal. Rptr. 334, 340 (Ct. App. 1963); Allen v. Mayo, 279 N.W.2d 617, 620\r\n(Neb. 1979).  Plaintiff sought a constructive trust here.\r\n\r\n¶ 30.        \r\nPlaintiff’s theory with respect to defendant’s house is that defendant\r\nwas able to construct it and pay off the mortgage only through the use of\r\nproceeds of the ABI stock sale.[7] \r\nTherefore, plaintiff argues, defendant should be able to keep the house and\r\nland only if she pays back to plaintiff the stock sale proceeds that were\r\ndiverted to the house.  Plaintiff argues that defendant was enriched by\r\nthe stock sale proceeds and that enrichment became unjust when Joseph failed to\r\ndevise the stock sale proceeds to plaintiff.\r\n\r\n¶ 31.        \r\nThe difficulty with plaintiff’s position with respect to the house is\r\nthat plaintiff had the burden of tracing the stock sale proceeds into the house\r\nto enable their return.  Defendant’s testimony was that none of the\r\nproceeds went into the purchase of the land or the construction of the house\r\nalthough an undetermined amount may have gone into payments on the\r\nmortgage.  Plaintiff was unable to refute this testimony or show how much\r\nwent into the mortgage payments.  The trial court found: “Thus it is\r\nnearly impossible on this record to determine, and Defendant is prejudiced by\r\nnot being able to disprove, whether all, or any part of the current equity\r\nvalue in the [Stowe property] is in fact traceable, or attributable to the 1985\r\nABI stock sale.”  Based on our review of the record, we would substitute\r\n“impossible” for “nearly impossible.”\r\n\r\n¶ 32.        \r\nPlaintiff’s argument presumes that if she can trace any proceeds to the\r\nhome, she is entitled to a constructive trust for its entire value.  We\r\nconclude that she had the burden to trace not only the fact that stock sale\r\nproceeds went into the value of the house but also the amount of those\r\nproceeds.  With such a showing the appropriate remedy might be a lien to\r\nthe extent of the value reflecting the proceeds.  As the trial court\r\nfound, plaintiff could not produce a record that made tracing possible. \r\nSee Sheldon v. Sheldon, 987 P.2d 1229, 1235-36 (Or. Ct. App. 1999)\r\n(explaining the potential appropriateness of a lien but refusing to grant it\r\nwhere plaintiff failed to trace the source of funds).  Accordingly, the\r\ntrial court properly declined a remedy with respect to the house and land.\r\n\r\n¶ 33.        \r\nThe claim that the court should have imposed a constructive trust in\r\nplaintiff’s favor over the content of the Juliann Mueller revocable trust\r\npresents a closer question.  We would concur with plaintiff that if Joseph\r\nhad devised property or money directly to Juliann, plaintiff would potentially\r\nbe entitled to a constructive trust on the property or funds.  There is no\r\nquestion that in such circumstances, assuming plaintiff’s interpretation of the\r\nagreement, Juliann’s enrichment would be unjust.  See Brooks v.\r\nYarbrough, 37 F.2d 527, 532 (10th Cir. 1930) (collecting cases); Musselman\r\nv. Mitchell, 611 P.2d 675, 681 (Or. Ct. App. 1980).   \r\nBeyond that, if Joseph made a gift of property or money to Juliann right before\r\nhis death, leaving his estate unfunded or with inadequate funds to fulfill his\r\ncontractual commitment, plaintiff would be entitled to a constructive trust\r\nover the property or money transferred up to the value of the contractual\r\ncommitment.  See Murphy v. Glenn, 964 P.2d 581, 586-87 (Colo. App.\r\n1998); In re Estate of Hodgson, No. 55741-6-I, 2006 WL 1135035, at *9\r\n(Wash. Ct. App. May 1, 2006).  See generally 1 W. Bowe & D. Parker,\r\nPage on the Law of Wills § 10.231 (rev. ed. 2003).  Again, Juliann’s\r\nenrichment would be unjust.  \r\n\r\n¶ 34.        \r\nPlaintiff argues that the latter hypothetical is what occurred here,\r\nwith the factual variation that the funds came to Juliann outside the probate\r\nestate through the vehicle of a joint account.  In an affidavit submitted\r\nby Juliann, and made an exhibit in the trial, she stated that after Joseph’s\r\ndeath, she transferred a brokerage account that had previously been a joint\r\naccount into the Juliann Mueller revocable trust.  She stated that there\r\nwere no other assets in the trust except her Stowe home.  Thus, plaintiff\r\nin her post-trial memorandum argued that Juliann had transferred the $397,000\r\ninto the revocable trust from the joint account and a constructive trust should\r\nbe imposed on the whole value of the revocable trust.\r\n\r\n¶ 35.        \r\nDefendant accepts that the money came from a joint account, but there is\r\nno evidence of the source of the money to that\r\naccount.  For all that appears, it may have come at least in part from\r\ndefendant’s earnings from her part-time work or from her social security\r\nbenefits.  She is not enriched by retaining those funds, and the retention\r\nis not unjust.  We agree that the evidence shows that it is highly likely\r\nthat some of those funds came from Joseph.  But we do not believe that\r\nlikelihood is sufficient for plaintiff to meet her burden of proof.  She\r\nhad to show the source of the funds so that the court could allocate between\r\namounts that should answer to plaintiff’s claim and those that should\r\nnot.  As it properly did, the trial court had to conclude that plaintiff\r\nfailed to meet her burden.  We affirm that conclusion.  \r\n\r\nAffirmed.\r\n\r\n\r\n \r\n\r\n \r\n\r\n\r\n  \r\n \r\n \r\n  \r\n \r\n \r\n FOR THE COURT:\r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n  \r\n \r\n \r\n Associate\r\n Justice\r\n \r\n  \r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n[1] \r\nIf defendant predeceased him, these items were left to the child of Joseph and\r\ndefendant or to the living issue of the child if he predeceased Joseph.\r\n\r\n \r\n\r\n\r\n\r\n\r\n\r\n[2] \r\nThe estate was joined in response to defendant’s motion to dismiss and the\r\nruling of the superior court of December 18, 2008 that the estate is a\r\nnecessary party.  The amended complaint does not actually assert any\r\nclaims against the estate, and this case does not directly involve any breach\r\nof contract claim against Joseph’s estate.  There are no funds in the\r\nJoseph Mueller revocable trust so the naming of that entity is superfluous.\r\n\r\n\r\n\r\n\r\n\r\n[3] \r\nWe do not read Pike v. Pike, 69 Vt. 535, 38 A. 265 (1897), as addressing\r\nthis issue.\r\n\r\n \r\n\r\n\r\n\r\n\r\n\r\n[4] \r\nIf there is a significant difference, it lies in our willingness to allow\r\n“evidence as to the circumstances under which the conveyance was made” in\r\ndetermining whether the language is ambiguous.  See Isbrandtsen,\r\n150 Vt. at 580, 556 A.2d at 85.  There was no such evidence in this case.\r\n\r\n \r\n\r\n\r\n\r\n\r\n\r\n[5] \r\nPlaintiff was ninety-one years old at the time of the trial and could provide\r\nlittle evidence on the intent of the parties in entering into the separation agreement\r\nand the meaning of the agreement.\r\n\r\n \r\n\r\nDefendant provided her understanding of Joseph’s\r\nposition that his obligation was fully discharged by the payment of the alimony\r\nunder the agreement, but she had no involvement in the drafting of the\r\nagreement and left the financial affairs to her husband until he became unable\r\nto manage those affairs.  Defendant’s understanding was based in part on a\r\nstatement that Joseph put in his 1990 will, which was superseded by the will in\r\neffect when he died.  The statement in the earlier will was:  “In\r\nlight of the fact that I have sold all of my interest in Adolph Bauer, Inc.,\r\npursuant to Article II of the separation agreement dated August 8, 1975, and in\r\nlight of the fact that I no longer have any ‘rights, title and interest in such\r\nassets, i.e., Adolph Bauer, Inc.,’ all responsibilities that I had, pursuant to\r\nArticle II of the separation agreement dated August 8, 1975 as amended, between\r\nmyself and Evelyn O. Mueller have ceased.”  \r\n\r\n \r\n\r\n\r\n\r\n\r\n\r\n[6] \r\nWe noted in Gregoire v. Gregoire the trend to require proof of\r\nentitlement to a constructive trust by clear and convincing evidence. \r\n2009 VT 87, ¶ 13, 186 Vt. 322, 987 A.2d 909.  We did not decide whether to\r\nfollow that practice in Gregoire.  Similarly, we see no need to\r\ndecide the question here.\r\n\r\n \r\n\r\n\r\n\r\n\r\n\r\n[7] \r\nWe analyze this argument, as the trial court did, assuming its validity but\r\nholding that plaintiff failed to supply the requisite proof.  We note,\r\nhowever, that this argument is arguably inconsistent with plaintiff’s position\r\nthat Joseph had no responsibility to sequester the proceeds of the ABI stock\r\nsales and his only responsibility arose with respect to his will.  Under\r\nthis theory, the use of stock sales proceeds to construct the house appears to\r\nbe irrelevant. \r\n\r\n\r\n\r\n\r\n\r\n\r\n\r\n", "ocr": false, "opinion_id": 1043700 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 16, "download_url": "http://www.tsc.state.tn.us/sites/default/files/rowdenbrentopn.pdf", "author_id": 8296, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT NASHVILLE\n Assigned on Briefs April 17, 2013\n\n STATE OF TENNESSEE v. BRENT ROWDEN\n\n Direct Appeal from the Circuit Court for Wayne County\n No. 15069 Robert Jones, Judge\n\n\n No. M2012-01683-CCA-R3-CD - Filed September 5, 2013\n\n\nA Wayne County Jury convicted Defendant, Brent Rowden, of second-degree murder\n(County One), tampering with evidence (Count Two), and attempted initiation of a process\nto manufacture methamphetamine (Count Three). He received concurrent sentences of\nthirty-seven years as a Range II multiple offender for second-degree murder, thirteen years\nas a persistent offender for tampering with evidence, and thirteen years as a persistent\noffender for attempted initiation of a process to manufacture methamphetamine. The trial\ncourt ordered Defendant’s effective thirty-seven-year sentence to be served consecutively to\nan eight-year sentence in Lawrence County. On appeal, Defendant argues that the trial court\nerred in denying the motion to suppress his statements to police. After a thorough review,\nwe affirm the judgment of the trial court. However, the matter is remanded to the trial court\nfor entry of a corrected judgment in Count One to reflect Defendant’s offender status as\nMultiple rather than Career.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed\n Remanded for Entry of a Corrected Judgment in Count One\n\nT HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD\nW ITT, Jr. and R OBERT W. W EDEMEYER, JJ., joined.\n\nEric C. Davis, Dothan, Alabama, for the appellant, Brent Rowden.\n\nRobert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney\nGeneral; Mike Bottoms, District Attorney General; and J. Douglas Dicus, Assistant District\nAttorney General, for the appellee, State of Tennessee.\n\f OPINION\n\nI. Background\n\n Although Defendant does not challenge the sufficiency of the convicting evidence on\nappeal, we will briefly review the evidence supporting Defendant’s convictions. On April 24,\n2011, the body of Scott Sobey, the victim, was found floating in the Tennessee River, north\nof the Pickwick Dam, in Hardin County. Law enforcement officers recovered the victim’s\nbody, and it was sent to Memphis for an autopsy. It was determined that the cause of death\nwas gunshot wounds and sharp-force injuries (cuts), and the manner of death was homicide.\nThe victim had two gunshot wounds to the head and one to the chest. A bullet was recovered\nfrom the victim’s brain. The victim also had three stab wounds.\n\n It was eventually determined that the victim was missing from a halfway house in\nMemphis and had last been seen leaving there with Defendant, who was from Lawrence\nCounty. Chief Deputy Mike Fielder of the Hardin County Sheriff’s Office received\ninformation that a vehicle connected with the victim’s death was at Grimes Recycling in\nLawrence County. Micheal Polk, an employee of Grimes Recycling, testified that the\ncompany had purchased the vehicle from Defendant on April 25, 2011, for $206. Mr. Polk\ntestified that he obtained the title for the vehicle from Defendant, and he obtained a copy of\nDefendant’s driver’s license as part of the transaction. Chief Deputy Fielder then notified the\nLawrence County Sheriff’s Office that Defendant was a person of interest in the case.\nDefendant was taken into custody on April 27, 2011, at an apartment on Nixon Avenue in\nLawrence County. He was interviewed by Captain Adam Brewer, Lieutenant Nathan Neese,\nand Sergeant Bud Smith of the Lawrence County Sheriff’s Office. Defendant waived his\nMiranda rights and gave a statement indicating that he shot the victim on April 11, 2011,\nbecause the victim was trying to burn him and his car with a “shake bottle” that the victim\nwas using to make methamphetamine. Defendant told officers that he shot the victim “two\nor three times in his chest and possibly three times in the head.” He also admitted that he had\ncut the victim’s throat. Defendant told officers that he loaded the victim’s body into\nDefendant’s car, drove to Pickwick Boat Landing, and dumped the victim into the water.\nDefendant said that he threw the gun and knife “into the swirls at the river.” He also said that\nhe burned his clothing on the side of the road, cut the carpet from the back of his car, and\ncleaned up the blood inside the car. In the next few days, he sold his car to Grimes Recycling\non U.S. Highway 64 in Lawrence County. It was eventually determined that the offenses\noccurred in Wayne County.\n\n Upon learning that the offenses occurred in Wayne County, Chief Deputy Fielder\ncontacted the Wayne County Sheriff’s office, and the information was turned over to\nDetective Kenneth Martin. Detective Martin took custody of Defendant the following day,\n\n -2-\n\fApril 28, 2011. Defendant led Detective Martin to the area of Caperton Hollow Road in\nWayne County where the offenses occurred. Defendant was then taken to the Wayne County\nSheriff’s Office where he again waived his Miranda Rights and gave a statement at 3:05p.m.\nDefendant admitted to shooting the victim and cutting his throat with a butcher knife because\nthe victim threw a bottle he was using to make methamphetamine at Defendant and\nthreatened to burn Defendant’s car. He reiterated to Detective Martin that he loaded the\nvictim’s body in his car, stopped to put gas in the car, and drove to the boat ramp at Pickwick\nDam and dumped the victim’s body in the river. Defendant told Detective Martin that he\nchanged clothes twice, but could not remember where he put them, and he cut the carpet\nfrom the back of the car and tossed it into a creek. He also cleaned blood from the ceiling\nlight of the car and then sold it to Grimes Recycling. Defendant told Detective Martin that\nhe purchased the gun, which was a .380 Glock, on April 11, 2011.\n\n Defendant gave a second statement to Detective Martin the following day, April 29,\n2011, at 10:10a.m. He told Detective Martin that after the murder, he threw the gun in the\nbushes at the house on Caperton Road. Defendant admitted that he had stolen the gun from\nhis cousin’s residence when no one was home. He again said that he did not recall what\nhappened to his clothes, and he thought that he threw the knife into the river. Detective\nMartin later recovered the gun from the bushes at the residence on Caperton Road. Chief\nDeputy Fielder turned Defendant’s car over to Detective Martin on May 6, 2011.\n\n Agent Bradley Everette of the Tennessee Bureau of Investigation (TBI), an expert in\nDNA identification, testified that he searched Defendant’s vehicle looking for any DNA\nprofiles inside the car. He found human blood stains in the hatchback area of the car that\nwere later determined to be from the victim.\n\n Suppression Hearing\n\n Captain Adam Brewer of the Lawrence County Sheriff’s Department testified that he\nand Sergeant Bud Smith interviewed Defendant on April 27, 2011, regarding the\ndisappearance and death of the victim, Scott Sobey, who was from Lawrence County.\nCaptain Brewer had previously been contacted by the Hardin County Sheriff’s Department,\nwho said that they had found the victim’s body. Captain Brewer learned that Defendant was\none of the last people to have seen the victim alive. He found Defendant on April 27, 2011,\nat the Nixon Apartments and arrested him pursuant to a violation of probation warrant.\n\n Captain Brewer testified that the interview took place at the Lawrence County\nSheriff’s Office in the interview room. He “Mirandized” Defendant and initially indicated\nthat they were looking into the victim’s case as that of a missing person and asked if\nDefendant could help find the victim. Captain Brewer testified that Defendant agreed to talk\n\n -3-\n\fand signed a waiver of his Miranda rights at 7:22 p.m. on April 27, 2011. Defendant began\nanswering questions concerning his knowledge of the victim’s disappearance. Captain\nBrewer testified that Defendant “was kind of scattered with answering his questions at first,\nso we kind of let him get his thoughts together.”\n\n Captain Brewer testified that Lieutenant Nathan Neese also attended the interview\nwhich lasted “nearly three hours, off and on, with the three of use being in there.” When\nasked if Defendant’s statement was reduced to writing, Captain Brewer testified:\n\n No. When we got to the point where we began talking about that we had\n found Mr. Sobey and that it became not a missing person’s case anymore, we\n actually knew where he was at and that he was dead, he began talking to us,\n and at that point decided he needed to talk to an attorney before we were able\n to write anything down.\n\nCaptain Brewer testified that the interview was immediately terminated, and no further\nquestions were asked of Defendant. He said, “[Defendant] actually tried to make more\nstatements as he left, and we advised him that he had invoked his right and that he needed\nan attorney present before we could talk anymore.”\n\n Later that evening, Captain Brewer was contacted by corrections officer Blaine Bates\nwho indicated that Defendant wanted to speak with investigators again. Officer Bates\nbrought Defendant to the interview room a second time, and Captain Brewer, Lieutenant\nNeese, and Sergeant Smith were again present. Captain Brewer testified:\n\n We advised him again that he had invoked his right and asked him if he\n wanted to withdraw that and still talk to us. He said he did. We read Miranda\n to him again, explained to him, you know, that if he wanted to continue to\n invoke his right to an attorney, that that was fine.\n\n He wanted to - - he made the statement that, “The medical examiner said that\n he was shot more than once, is it going to be - - will that hurt my self-defense\n claim?”\n\n We continued to say, “We can’t talk to you about that till you understand your\n rights and you let us know that you don’t want to talk to an attorney.”\n\n So at that point he was read his rights again. He did sign a statement saying\n he did not want an attorney, he wanted to talk to us about it, and that’s when\n we continued with the interview.\n\n -4-\n\fThe second waiver of rights form was signed at 11:11p.m. on April 27, 2011. Captain\nBrewer testified that there was also a handwritten note that Defendant signed indicating that\nhe wished to recant his previously invoked right to an attorney and talk to the officers.\n\n Captain Brewer testified that Defendant then gave a written statement that contained\nthe following, as written out by Lieutenant Neese:\n\n On Friday, April 9, 2011, I went to Memphis to pick up Scott Sobey at a\n halfway house. We brought Scott to Eric Short’s house in Iron City. Scott and\n Eric were cellees in prison, and that’s where we all met. Me and Scott used\n dope together over the weekend.\n\n Scott started talking about being a hitman and how he has killed little girls, it\n was hard to hear them scream. Scott kept talking about how many people he\n had killed.\n\n On Monday, April 11, 2011, I went back to Eric Short’s to pick up Scott and\n drive him back to Memphis. Before I went and picked him up, I stopped and\n got a piece (a .380 handgun) because I was afraid of what Scott was going to\n do to me. I picked Scott up, and we went out to a house trailer where there are\n some junk cars. It’s off a road past Turner Willims’ old store on Holly Creek\n in Wayne County.\n\n Me and Scott were cooking dope, and Scott started trying to hit me and burn\n me and my car with the shake bottle. I was at the car kind of behind it, and I\n took out the .380 and shot Scott in the chest. I realized he was still alive, so\n I shot him in the head. I think I shot him two or three times in his chest and\n probably three times in the head. I could see he was still breathing and still\n alive, so I got a butcher knife that I had in my car and cut Scott’s throat.\n\n It took me a little bit, but I was able to get his body, Scott’s body, loaded into\n the car. I then drove to Pickwick Boat Landing, where I backed up to the boat\n ramp. I knew I was close to the water because I could hear the muffler\n bubbling in the water. I opened the hatch, rolled his body into the water.\n\n I left there and threw the gun and knife into the [swirls] at the river. I stopped\n on the side of the road and burned my clothes. I cut the carpet out of the back\n of my car and cleaned up the blood out of the back of my car.\n\n\n\n\n -5-\n\f I then went to my cousin’s house on Depot Street in Collinwood and slept. In\n the next few days, I sold my car to Grimes Recycling on U.S. Highway 64 in\n Lawrence County.\n\n Captain Brewer testified that he asked Defendant if there was anything that he wanted\nto add or take away from the statement. Defendant replied: “I just want to clarify that I\ndropped Scott off at the house trailer with the junk cars, and I left to get some batteries before\ncooking dope. That’s when I stopped and got the piece (.380 handgun).” Captain Brewer\ntestified that Defendant signed and dated the statement. Based upon Defendant’s statement,\nit was ascertained that the victim’s murder occurred in Wayne County and Detective Kenneth\nMartin of the Wayne County Sheriff’s Department was contacted about taking over the\ninvestigation.\n\n On cross-examination, Captain Brewer testified that Defendant was at Amy Gatlin’s\napartment when he was picked up for the probation violation warrant. He said:\n\n We received information that he could be possibly staying there from a contact\n of his mother’s. We were able to do surveillance on the apartment complex\n from the Walgreens parking lot and CVS parking lot from up the street. We\n had observed a subject come out in the yard matching his description several\n times looking around. Myself and Lieutenant Neese at that point came down\n Nixon Avenue, and I observed Brent Rowden standing in the front yard with\n a baseball bat.\n\nCaptain Brewer testified that Defendant was arrested in the front yard of the apartment\ncomplex and carried back up to the porch of Ms. Gatlin’s apartment. Captain Brewer walked\ninside the apartment and observed “some marijuana paraphernalia or maybe a Coke can\nwhere they had been smoking drugs off the top of it.” There was also some burnt foil.\nCaptain Brewer testified that his investigation revealed that Defendant was a user of\nmethamphetamine. A search of Ms. Gatlin’s apartment did not reveal the presence of\nmethamphetamine.\n\n Captain Brewer testified that in his experience, a person on methamphetamine may\nbe overly paranoid. He admitted that Defendant’s behavior prior to his arrest was indicative\nof someone who was paranoid. He further admitted that when Defendant was taken into\ncustody, he “exhibited signs of a meth user: paranoid, somewhat irritable.” Captain Brewer\ntestified that when they approached Defendant, he raised the baseball bat, and he said that\n“he thought he was looking at Detective Mills down the street.” Captain Brewer explained\nthat Detective Mills was a drug agent with the Lawrence County Sheriff’s Department.\n\n\n\n -6-\n\fWhen asked if he felt that Defendant had been actively using methamphetamine at the time,\nCaptain Brewer testified:\n\n From my experience dealing with methamphetamine addicts - - and I was\n assigned to narcotics for over five years - - once somebody is using that drug\n and they become a user, it’s hard to tell if they’re actually under the influence\n or - - it just has a permanent effect on their behavior and the way they act, so\n it’s hard for me to determine whether or not they’ve actually smoked any. I\n can just kind of determine they are a user.\n\nCaptain Brewer felt that Defendant would have exhibited the same paranoia whether he\nwaited two weeks or a month to interview Defendant. He said, “Once they get that - - exhibit\nthat type of behavior, in my experience they typically stick with that, so I felt like it was as\ngood a time as any to go ahead and talk to him.”\n\n On redirect examination, Captain Brewer testified that there was never any concern\nthat Defendant did not understand his rights or that he was intoxicated to the point that he did\nnot understand what he was saying. He acknowledged that Defendant gave specific details\nin his statement, and Defendant invoked his right to an attorney at one point. Captain Brewer\ntestified that if he had seen signs of intoxication to the point of impairing Defendant, he\nwould have stopped the interview.\n\n Detective Kenneth Martin of the Wayne County Sheriff’s Department testified that\nhe traveled to Lawrence County on April 28, 2011, to pick up Defendant and transport him\nto Wayne County. He and Detective Cameron McDonald interviewed Defendant in the\ninvestigator’s office. Detective Martin read Defendant his Miranda rights, and Defendant\nsigned a waiver. The interview with Defendant resulted in a typed statement which\nDefendant acknowledged and signed. Detective Martin testified that Defendant read the\nstatement before signing it, and the statement was read to him. The statement contained the\nfollowing:\n\n I picked up Scott Sobey at a halfway house in Memphis on Friday, April 8,\n 2011, and took him to Eric Short’s house in Iron City. On Monday, April 11,\n 2011, I picked up Scott Sobey at Eric Short’s house in Iron City, and we went\n to Ricky McCrary’s house on Caperton Hollow Road.\n\n I left and went to the Dollar Store in Collinwood to get lithium batteries.\n When I returned from the Dollar Store, Scott Sobey was in the process of\n making meth. When I walked up to Scott Sobey, he was in the shed behind the\n house, and he threw the bottle at me. I went up the bank, and Scott went in\n\n -7-\n\f front of the car and said he was going to burn the car, and that is when I shot\n Scott in the chest or stomach.\n\n I walked back down the bank, and he was still alive, and I shot Scott Sobey in\n the head. I shot him about five times, and he was still alive and he was\n breathing shallow, and that is when I cut his throat with a butcher knife.\n\n I stood around for a while, and then I loaded Scott in the hatchback. I like to\n have never got him loaded in the hatchback, [. . .]\n\n I then drove to Little Cincy’s [sic ] and got gas and went to Pickwick, where\n the motel and boat ramp is located, and I put Scott in the river. I’m not going\n to say what I did with the knife and gun. I just got read [sic] of them, [. . . ]\n\n I changed clothes twice because I had got wet, and don’t remember what I did\n with the clothes.\n\n Defendant told Detective Martin that the gun was a .380 Glock, and he sold the car\nat “Grimes Scrapyard.” He claimed that he purchased the gun on April 11, 2011, when he\nwent to buy the lithium batteries. Defendant told Detective Martin that no one was with him\nwhen the murder took place at Mr. McCrary’s house. After he disposed of the victim’s body,\nDefendant said that he cut the carpet from the back of his car and cleaned blood from the\nceiling near the light. He said, “I was trying to cover it up and get rid of it, anything.”\nDefendant told Detective Martin that he threw the carpet in a creek. When asked why he\nthought Defendant was going to kill him, Defendant said that the victim told him “he was a\nhitman and enforcer and he had killed 36 people.”\n\n Detective Martin conducted a second interview with Defendant the following day on\nApril 29, 2011, to clarify some issues. Defendant again waived his Miranda rights and\nagreed to talk. During the second interview, Defendant said that he threw the gun in some\nbushes at Mr. McCrary’s house. He admitted that he had stolen the gun from his cousin,\nCharles Pulley. He said that he took the gun from Mr. Pulley’s house when no one else was\nat the home. Defendant did not know what happened to his clothes but said that he threw the\nknife into the river. Defendant was later taken back to Mr. McCrary’s house, and the gun\nwas recovered from the property.\n\n On cross-examination, Detective Martin testified that he “Mirandized” Defendant\nwhen he got into the car before leaving Lawrenceburg. They proceeded to Mr. McCrary’s\nresidence on Caperton Hollow Road near the Lawrence-Wayne County line. Defendant then\nshowed Detective Martin and others where he shot the victim. At that time, Defendant did\n\n -8-\n\fnot mention anything about the gun being in the bushes. Detective Martin testified that\nDefendant was not behaving unusually when he picked Defendant up in Lawrence County.\nHe did not notice Defendant being agitated or paranoid. Detective Martin did not observe\nanything that indicated that Defendant could not intelligently waive his rights and give a\nstatement. Defendant did not have any difficulty answering questions.\n\n Defendant testified that at the time of his arrest on April 27, 2011, he was under the\ninfluence of illegal drugs. He said:\n\n When they arrested me, I mean, I was so high, you know what I mean, that, I\n mean, I was just zonked. I was just real high, was shooting it into my arm, you\n know, and you get higher that way than you do when you smoke it.\n\n They said they didn’t have no evidence, no drugs up there. They come and\n asked me to search the apartment, and they found the bottom of a can that had\n residue on it because I told them it was in there. And they said if that’s all that\n was in there, they wasn’t worried about it. I said they could go up there, and\n they went up there and got it.\n\n All I’m saying is I was shooting it, and there’s a lot of difference when you\n shoot drugs than when you smoke it.\n\n Defendant testified that he had been using methamphetamine on and off for\napproximately seven years, and he was addicted to it. He said that he would lose track of\ntime whenever he had been awake for so long. Defendant testified that at the time of the\nvictim’s murder, he had been awake for three to four days, and the victim had been awake\nfor fourteen days. Defendant did not know how many days that he had been awake at the\ntime of his arrest. He said that he had shot methamphetamine into his veins approximately\none hour before police arrived. He did not believe that he was in a condition to make\nintelligent and rational choices at the time.\n\n Defendant testified that he was under the influence of methamphetamine when he\ngave both statements at the Lawrence County Sheriff’s Department. He acknowledged\nsigning the waiver of rights form. However, he claimed that he was expecting his lawyer to\nbe there when he went back for the second interview. Defendant claimed that he decided to\ngive a statement because the investigators had pizza and a Dr. Pepper for him, and he was\n“starving.”\n\n On cross-examination, Defendant testified that he had been using drugs throughout\nthe night before his arrest. He acknowledged that he could remember the officers coming\n\n -9-\n\fto arrest him, and he remembered them talking to him about drugs in the apartment. He\nadmitted that he understood what they were talking about. Defendant said, “They wasn’t\nasking me about nothing but the probation violation.”\n\n Defendant testified that after he arrived at the Lawrence County Jail and went into the\ninterview room, he remembered a piece of paper, but thought that his attorney was coming.\nHe agreed that the statement read by Captain Brewer during the suppression hearing was\n“very close to what happened.” Defendant admitted that he remembered what happened\nwhen the victim died, and he accurately told Captain Brewer what happened that night.\nDefendant testified that he somewhat understood his Miranda rights, and he acknowledged\nthat he had been arrested many times in the past, although not for murder, and had been\nadvised of his rights. However, he said, “Not that kind of pressure, though. It was\ndifferent.”\n\n Defendant testified that he remembered that after he asked for his attorney, the\ninterview stopped, and he was taken back to his cell. He admitted tapping on the glass and\ntelling Officer Bates that he wanted to speak with investigators again. Defendant agreed that\nhe was again advised of his Miranda rights, which he waived, and he gave a statement\nbecause he was “starving,” and the officers had pizza and a Dr. Pepper. He claimed that the\n“paper” and the pizza were “all a package.” Defendant ultimately testified that he knew what\nhe was saying to Captain Brewer, and he understood his Miranda rights because he invoked\nhis right to an attorney.\n\n Defendant testified that he voluntarily went to the scene with Detective Martin, and\nhe told Detective Martin his version of events. However, he claimed that Detective Martin\n“got it all mixed up.” Defendant agreed that Detective Martin advised him of his Miranda\nrights, and he signed a waiver. He spoke with Detective Martin a second time the following\nday.\n\nII. Analysis\n\nA. Denial of Motion to Suppress\n\n From a review of Defendant’s brief, he appears to contend that the trial court erred\nin failing to grant his motion to suppress the statement he gave to the Lawrenceburg officers\non April 27, 2011. He contends that his statement to investigators was not “knowingly or\nintelligently” given because he was under the influence of drugs at the time. Defendant\nfurther complains that his statement was not audio or video recorded and that investigators\nfailed to determine how well he could read or what grade he completed in school.\n\n\n\n -10-\n\f “[A] trial court’s findings of fact in a suppression hearing will be upheld unless the\nevidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We\nreview a trial court’s applications of law to the facts de novo, however. See State v. Walton,\n41 S.W.3d 75, 81 (Tenn. 2001). The party prevailing at the suppression hearing is further\n“entitled to the strongest legitimate view of the evidence adduced at the suppression hearing\nas well as all reasonable and legitimate inferences that may be drawn from that evidence.”\nOdom, 928 S.W.2d at 23.\n\n The Fifth Amendment to the United States Constitution, as applied to the states\nthrough the Fourteenth Amendment, provides that “[n]o person . . . shall be compelled in any\ncriminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.\n1602, 16 L. Ed. 2d 694 (1966), the United States Supreme Court concluded that in the context\nof “custodial interrogation” certain procedural safeguards are necessary to safeguard this\nprivilege against compulsory self-incrimination. Id. at 444, 86 S. Ct. 1602. More\nspecifically, the Court held that “the prosecution may not use statements, whether\nexculpatory or inculpatory, stemming from custodial interrogation of the defendant unless\nit demonstrates the use of procedural safeguards effective to secure the privilege against self-\nincrimination.” Id. Those safeguards include the now familiar Miranda warnings—namely,\nthat the suspect be informed “that he has the right to remain silent, that anything he says can\nbe used against him in a court of law, that he has the right to the presence of an attorney, and\nthat if he cannot afford an attorney one will be appointed for him prior to any questioning if\nhe so desires.” Id. at 479, 86 S. Ct. 1602. If the police fail to provide these warnings, any\nstatement obtained as a result of custodial interrogation will not be admissible at trial during\nthe prosecution’s case-in-chief, even if the statement is otherwise voluntary. The Miranda\nCourt was concerned that the “interrogation environment” created by interrogation and\ncustody would “subjugate the individual to the will of his examiner” so as to undermine the\nprivilege against compulsory self-incrimination. Id. at 457-58, 86 S. Ct. 1602. In Dickerson\nv. United States, the United States Supreme Court reaffirmed that “Miranda and its progeny\n. . . govern the admissibility of statements made during custodial interrogation in both state\nand federal courts.” 530 U.S. 428, 432, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000); see also\nState v. Walton, 41 S.W .3d 75, 82 (Tenn. 2001). Consequently, if the defendant’s statement\nresulted from custodial interrogation, the statement must be excluded from evidence if the\npolice failed to provide the defendant Miranda warnings. Oregon v. Elstad, 470 U.S. 298,\n307, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); Walton, 41 S.W.3d at 86.\n\n Miranda defined “custodial interrogation” as “questioning initiated by law\nenforcement officers after a person has been taken into custody or otherwise deprived of his\nfreedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S. Ct. 1602.\nThereafter, the United States Supreme Court has explained that “interrogation” refers not\nonly to express questioning but also to any words, actions, or practices that the police should\n\n -11-\n\fknow are reasonably likely to elicit incriminating information from a suspect. Rhode Island\nv. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980); see also Walton, 41\nS.W.3d at 85.\n\n The Tennessee Supreme Court has held that “[a] valid waiver of Miranda rights\nremains valid unless the circumstances change so seriously that the suspect’s answers to\ninterrogation are no longer voluntary or unless the suspect is no longer making a knowing\nand intelligent waiver of his rights.” State v. Rogers, 188 S.W.3d 593, 606 (Tenn.\n2006)(citing Wyrick v. Fields, 459 U.S. 42, 47, 103 S. Ct. 394, 74 L. Ed. 2d 214 (1982)).\nFurthermore, “[c]ourts must examine the totality of the circumstances to determine whether\nrenewed warnings are required.” Id.\n\n The factors to be considered when assessing the totality of the circumstances\n include: 1) the amount of time that has passed since the waiver; 2) any change\n in the identity of the interrogator, the location of the interview, or the subject\n matter of the questioning; 3) any official reminder of the prior advisement; 4)\n the suspect’s sophistication or past experience with law enforcement; and 5)\n any indicia that the suspect subjectively understands and waives his rights.\n Because of the infinite variety of circumstances a case may present, the list of\n factors is by no means exhaustive. The weight to be accorded different factors\n will vary depending on the particular facts of the case.\n\nRogers, 188 S.W.3d at 606 (internal citations omitted).\n\n Concerning this issue, the trial court made the following findings:\n\n Most of the time where similar issues arise, the warnings are given, the request\n for the attorney is made, and maybe the defendant is in custody for a longer\n period of time than we have in today’s case, and there’s a second interview at\n the defendant’s request without new warnings.\n\n But it looks to me like in this case, the government had crossed T’s and dotted\n I’s every time they had a chance to do so and have complied with the letter and\n the spirit of Miranda v. Arizona and its [progeny].\n\n Specifically, the preponderance of the evidence today establishes that\n [Defendant] may have shown the signs of being a methamphetamine user. I’m\n not sure that he even testified about the substance he was using. He said he\n was shooting drugs, but I don’t think he testified about what drugs.\n\n\n\n -12-\n\fBut all the questions were asked and answered with regard to or by the officers\nabout methamphetamine, which I understand generally to be an upper to make\nsomeone more alert, and certainly not a suppressant.\n\nThe risk, it seems to me, would be that when a person is coming off of several\ndays on methamphetamine, without any rest, that he may be particularly\nvulnerable to fatigue and other issues that might have some effect upon his\nunderstanding or his voluntary waiving of his rights.\n\nI’m not necessarily accrediting what [Defendant] said about [sic] he had just\nshot some drug and the effect it may have had on him, but there was nothing\nto indicate from the overall testimony, that he was impaired, as a typical drunk\nmight be impaired.\n\nInstead, if anything, he was alert, hungry, and understood not only his rights,\nbut actually understood them enough to exercise them and to decline to talk\nfurther during that first interview without actually having an attorney present.\n\nThe officers were cautious in making it clear to him as he went back with the\ncorrection officer toward his cell that they couldn’t talk to him once he made\nthat request.\n\nAnd then he made a very express waiver of the right to have an attorney\npresent before the second interview took place and the multi-page statement\nthat largely amounts to the confession.\n\nThere may be some definite issues raised in that it may not be a pure\nconfession, but it’s at least an admission against interests that the Court finds\ntoday is admissible.\n\nWith regard to the statement obtained by Investigator Martin with the Wayne\nCounty Sheriff’s Department, [Defendant] had the benefit of additional\nMiranda warnings about his rights to remain silent and have a lawyer before\nhe answered any questions, and that first warning to him by Mr. Martin on\nApril 29 at approximately 10:00 a.m. was a good 15 or so hours after the 7:00\np.m. warning the night before, certainly more than 15 hours after his arrest - -\n-actually, no, that’s the 29 th .\n\n* * *\n\n\n\n -13-\n\f I’m looking at two different ones. The 28 th one was at 3:05 p.m. and about 20\n hours after his arrest. And then the last statement from the fourth interview\n was on April 29 at 10:00 a.m. about 39 hours after the arrest.\n\n And the responses of [Defendant] to the warnings, his waiver of his rights, and\n the statements given seem to be consistent with the earlier statements given to\n the Lawrence County officers on the night of April 27.\n\n Therefore, the State has carried its burden of showing that [Defendant] was\n advised of his rights, understood those rights, and voluntarily waived those\n rights, with extra care being taken by the officers after his first request for an\n attorney to make sure that he was expressly waiving those.\n\n I think the appellate judges that would be reviewing this record would\n understand that between 7:30 and 11:00 p.m., that the officers themselves\n cannot appoint or obtain a lawyer for the accused, that essentially, the accused\n just quits talking any until he’s taken before a magistrate or a judge, at which\n time an attorney may be appointed if he’s indigent and qualifies for an\n appointed counsel.\n\n In any event, the questioning must stop and the officers must not do anything\n to interrogate by questions, gestures, or other means, once he’s indicated that\n interest in having an attorney.\n\n The officers did nothing wrong in not having an attorney present, and the\n defendant, as I say, expressly waived his rights and reinitiated the interview\n process.\n\n And he still seems to be clear here today he thought he was serving society by\n ridding it of a bad person, and I assume he’s not had any drugs since on or\n before April 27 of 2011 because he appears to have been in custody\n continuously since that time.\n\n We agree with the trial court. Evidence presented at the suppression hearing\nestablished that although Defendant may have been a methamphetamine user at the time of\nhis statement, his statement to police was freely and voluntarily made. When Captain Brewer\nwas asked if he felt that Defendant had been actively using methamphetamine at the time of\nhis statement, Captain Brewer testified:\n\n\n\n\n -14-\n\f From my experience dealing with methamphetamine addicts - - and I was\n assigned to narcotics for over five years - - once somebody is using that drug\n and they become a user, it’s hard to tell if they’re actually under the influence\n or - - it just has a permanent effect on their behavior and the way they act, so\n it’s hard for me to determine whether or not they’ve actually smoked any. I\n can just kind of determine they are a user.\n\nCaptain Brewer felt that Defendant would have exhibited the same signs of a\nmethamphetamine use, such as paranoia and irritability, whether he waited two weeks or a\nmonth to interview Defendant. He said, “Once they get that - - exhibit that type of behavior,\nin my experience they typically stick with that, so I felt like it was as good a time as any to\ngo ahead and talk to him.”\n\n Captain Brewer testified that there was never any concern that Defendant did not\nunderstand his rights or that he was intoxicated to the point that he did not understand what\nhe was saying. He acknowledged that Defendant gave specific details in his statement, and\nDefendant invoked his right to an attorney at one point. Captain Brewer testified that if he\nhad seen signs of intoxication to the point of impairing Defendant, he would have stopped\nthe interview. We also note that at one point, Captain Brewer asked Defendant if there was\nanything that he wanted to add or take away from his statement. Defendant replied: “I just\nwant to clarify that I dropped Scott off at the house trailer with the junk cars, and I left to get\nsome batteries before cooking dope. That’s when I stopped and got the piece (.380\nhandgun).”\n\n Defendant’s own testimony at the suppression hearing demonstrates that his statement\nwas freely and voluntarily given. He remembered officers coming to arrest him, and he\nunderstood what they were talking about. Defendant agreed that the statement given to\nCaptain Brewer on April 27, 2011, was “very close to what happened.” He admitted that he\nremembered what happened when the victim died, and he accurately told Captain Brewer\nwhat happened that night. Defendant testified that he had been arrested many times in the\npast and had been advised of his rights. He admitted at the suppression hearing that he\nsomewhat understood his Miranda rights. Defendant ultimately testified that he knew what\nhe was saying to Captain Brewer, and he understood his Miranda rights because he invoked\nhis right to an attorney.\n\n Defendant also briefly mentions that his statement was not audio or video recorded\nand that investigators failed to determine how well he could read or what grade he completed\nin school. However, Defendant has waived these issues for failing to raise them in his\nmotion to suppress or present any evidence at the suppression hearing concerning the issues.\nTenn. R. Crim. P. 12(b)(3); Tenn. R. Crim. P. 12(f); and Tenn. R. App. P. 36(a). Even if not\n\n -15-\n\fwaived, these issues are without merit. The Tennessee Supreme Court has ruled that “neither\nthe state nor the federal constitution requires electronic recording of interrogations.” State\nv. Godsey, 60 S.W.3d 759, 771 (Tenn. 2001). Moreover, Defendant does not attempt to\nargue in his brief how his ability to read or the last grade he completed in school affected the\nadmissibility of his statement.\n\n Based on our review of the totality of the circumstances surrounding the giving of\nDefendant’s statement, we conclude that the evidence does not preponderate against the trial\ncourt’s finding that admission of Defendant’s statement did not violate Fifth Amendment\nprinciples. The trial court properly denied Defendant’s motion to suppress, and Defendant\nis not entitled to relief on this issue.\n\nB. Sentencing Error\n\n Although not raised by either party, the judgment form in Count One, reflecting\nDefendant’s conviction for second-degree murder, a Class A felony, incorrectly indicates that\nDefendant is a Career offender. However, the transcript of the sentencing hearing reflects\nthat Defendant was actually sentenced as a Range II Multiple offender for that offense.\nWhen there is a conflict between the transcript and the judgment form, the transcript controls.\nSee, e.g. State v. Moore, 814 S.W.2d 381, 383 (Tenn. Crim. App. 1991); State v. Jimmy Lee\nCullop, Jr., No. E2000-00095-CCA-R3-CD, 2001 WL 378543, at *6)(Tenn. Crim. App.,\nApril 17, 2001); and State v. Donald Edward Lynch, No. E2008-01435-CCA-R3-CD, 2009\nWL 2588904, at *8 (Tenn. Crim. App. Aug. 24, 2009). The evidence presented at the\nsentencing hearing reflected that Defendant had three prior convictions for Class C felonies,\nand all parties agreed that Defendant was a Multiple offender. See Tenn. Code Ann. § 40-35-\n106(a)(1). Therefore, we remand to the trial court for correction of the judgment in Count\nOne in accordance with this opinion.\n\n For the foregoing reasons, the judgment of the trial court is affirmed. However, the\nmatter is remanded to the trial court for entry of a corrected judgment in Count One to reflect\nDefendant’s offender status as Multiple rather than Career.\n\n\n ___________________________________\n THOMAS T. WOODALL, JUDGE\n\n\n\n\n -16-\n\f", "ocr": false, "opinion_id": 1044198 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.tsc.state.tn.us/sites/default/files/mccrayglennlydellcon_1.pdf", "author_id": 8296, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT NASHVILLE\n June 19, 2012 Session\n\n STATE OF TENNESSEE v. GLENN LYDELL McCRAY\n\n Appeal from the Criminal Court for Davidson County\n No. 2010-C-2362 Monte Watkins, Judge\n\n\n\n\n No. M2011-02411-CCA-R3-CD - Filed May 2, 2013\n\n\nT HOMAS T. W OODALL, J., concurring in part and dissenting in part.\n\n I respectfully dissent from the majority opinion insofar as it concludes that aggravated\nassault involves some form of confinement in this case. In State v. White, 362 S.W.3d 559,\n578 (Tenn. 2012), the supreme court held,\n\n Under the standard we adopt today, trial courts have the obligation\n to provide clear guidance to the jury with regard to the statutory language.\n Specifically, trial courts must ensure that juries return kidnapping\n convictions only in those instances in which the victim’s removal or\n confinement exceeds that which is necessary to accomplish the\n accompanying felony.\n\nId. (emphasis added).\n\n In order for the White jury instructions to be applicable, the accompanying felony (in\nthis case aggravated assault) must necessarily involve some removal or confinement of the\nvictim during the commission the accompanying felony. White used the examples of robbery\nand rape as “accompanying” felonies, without suggesting that the jury instructions were\n“inapplicable to other felonies,” as noted in the majority opinion. After a careful review of\nthe elements of aggravated assault as charged in this case, I fail to see that some removal or\nconfinement of the victim, such as is implicit in robbery and rape, exists in aggravated\nassault. In other words, and in stating the obvious, the element of sexual penetration in a\nrape necessitates some confinement. See Tenn. Code Ann. § 39-13-502. Likewise, the time\nthat it takes to commit the theft of property from the victim, by violence or putting the victim\nin fear, to accomplish robbery also necessitates some period, however brief it may be, of\nconfinement. See Tenn. Code Ann. § 39-13-401.\n\f Both counts of aggravated assault were based on the provisions of Tennessee Code\nAnnotated section 39-13-101(a)(2) and 39-13-102(a)(1)(B), thus making the elements of the\noffense:\n\n 1. Defendant intentionally or knowingly caused the victim to reasonably\n fear imminent bodily injury: and\n\n 2. Defendant used or displayed a deadly weapon (in one count a rifle and\n in the other a knife).\n\n All confinement or removal which occurred in this case occurred solely as the result\nof the commission of especially aggravated kidnapping. I most respectfully conclude that\nthe manner and circumstances of the commission of the aggravated assaults cannot dictate\nthat the White jury instructions should have been given to the jury. For these reasons, I\ndissent from the majority opinion’s conclusion that it was error by the trial court to fail to so\ninstruct the jury. In all other aspects, I concur with the majority opinion.\n\n ___________________________________\n THOMAS T. WOODALL, JUDGE\n\n\n\n\n -2-\n\f", "ocr": false, "opinion_id": 1044761 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.tsc.state.tn.us/sites/default/files/norwoodmopn_0.pdf", "author_id": 8290, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT JACKSON\n Assigned on Briefs January 8, 2013\n\n MARCUS NORWOOD v. STATE OF TENNESSEE\n\n Appeal from the Criminal Court for Shelby County\n No. 09-06261 James Beasley, Jr., Judge\n\n\n\n No. W2012-00754-CCA-R3-PC – Filed March 13, 2013\n\n\nPetitioner, Marcus Norwood, entered an Alford plea to second degree murder in Shelby\nCounty in October of 2010, with an agreed sentence of twenty-five years. Subsequently,\nPetitioner filed a petition for post-conviction relief in which he alleged that he received\nineffective assistance of counsel which adversely affected his decision to enter a guilty plea.\nThe post-conviction court denied relief. Petitioner appealed. After a review of the evidence,\nwe conclude that Petitioner has failed to establish that counsel’s performance was deficient\nor that the voluntariness of the guilty plea was affected by the actions of counsel.\nAccordingly, the judgment of the post-conviction court is affirmed.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.\n\nJ ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and\nD. K ELLY T HOMAS, J R., JJ., joined.\n\nLance R. Chism, Memphis, Tennessee, for the appellant, Marcus Norwood.\n\nRobert E. Cooper, Jr., Attorney General and Reporter, Rachel E. Willis, Assistant Attorney\nGeneral; Amy P. Weirich, District Attorney General, and Stacy McEndree, Assistant District\nAttorney General, for the appellee, State of Tennessee.\n\n OPINION\n\n Factual Background\n\n Petitioner was indicted by the Shelby County Grand Jury in September of 2009 for\nfirst degree murder. In October of 2010, Petitioner entered an Alford plea to the murder of\nEarnest Jackson in exchange for a second degree murder conviction and a twenty-five year\nsentence.\n\f On June 9, 2011, Petitioner filed a pro se petition for post-conviction relief. In the\npetition, he alleged that he received ineffective assistance of counsel. Specifically, Petitioner\ncomplained that trial counsel failed to: (1) see if there was evidence against Petitioner prior\nto the indictment; and (2) investigate Petitioner’s criminal history prior to his guilty plea\nlisting him as a violent offender. After counsel was appointed, an amended petition was\nfiled, listing the following grounds for relief: (1) ineffective assistance of counsel due to\ncounsel’s failure to investigate the case, communicate with Petitioner, and prepare for trial;\nand (2) Petitioner’s guilty plea was involuntary.\n\n The trial court held a hearing on the petition. At the hearing, the transcript of the\nguilty plea hearing was admitted as an exhibit. The transcript listed the factual basis for\nPetitioner’s plea as follows:\n\n [O]n [December] 16th of 2008, officers of the Memphis Police Department\n were called to the University Cabana Apartments here in Shelby County.\n When they arrived, they found [the victim] in that apartment building in\n Apartment Number 5. He had suffered five stab injuries, which resulted in his\n death and a shell casing on the scene indic[a]ted that he had had a weapon\n fired at him. Within the hour, officers were contacted by [Petitioner’s] friends\n and family members stating that he wished to turn himself in. He did turn\n himself in.\n\n He gave a statement to the police indicating that he had gone to the\n apartment complex, an argument had ensued between him and the victim, . .\n . . [Petitioner’s] version of events was that there was a struggle at which point\n the victim, . . . , was stabbed. For the record, [the victim] suffered five stab\n injuries and [Petitioner] had no injuries at the time the police took his\n statement one hour after [the victim’s] death.\n\n Trial counsel explained, at the guilty plea hearing, that Petitioner felt it was in his\n“best interest at his age” to enter the guilty plea. The trial court questioned Petitioner\nthoroughly prior to the entry of the plea. The plea was accepted by the trial court.\n\n At the post-conviction hearing, trial counsel testified that at the time he represented\nPetitioner he had more than ten years of experience as an assistant public defender. He was\nappointed to represent Petitioner, requested discovery, and provided Petitioner with a copy\nof the documents. Trial counsel assessed the case and surmised that one of the largest\nobstacles would be overcoming Petitioner’s confession. Trial counsel anticipated going to\ntrial on the first degree murder charge but Petitioner asked trial counsel to explore a plea\n\n -2-\n\fagreement. The prosecutor agreed to a guilty plea to second degree murder with a twenty-\nfive year sentence.\n\n When trial counsel first informed Petitioner about the plea offer, Petitioner was\n“reluctant” because he thought that twenty-five years was too long and he should get “around\nten years” for the crime. Trial counsel explained to Petitioner that if they got a trial date set\nin the case “there was no more possibility of a deal.” Trial counsel opined that Petitioner was\n“in denial” about the severity of the charge and did not think it was even remotely possible\nfor Petitioner to get a deal that would lead to a mere ten years in jail when someone died as\na result of Petitioner’s actions. Trial counsel “thought the deal was good.” Petitioner gave\ntrial counsel permission to discuss the deal with his family; Petitioner’s mother encouraged\nhim to take the plea agreement.\n\n As part of the trial process and negotiations of the plea agreement, trial counsel met\nwith Petitioner several times. These included at least five visits at the jail and about six times\nin court. Petitioner explained the facts to trial counsel, claiming that he went to talk to his\nex-girlfriend and was confronted by the victim. When they got into an argument, the victim\ngrabbed a knife. Petitioner claimed that he got the knife away and stabbed the victim. When\nthe victim came toward Petitioner, Petitioner took out his gun and shot the floor.\n\n Trial counsel thought the possibility of getting convicted of a lesser included offense\nat trial was slim and that the self-defense theory advanced by Petitioner was weak. Trial\ncounsel was also concerned about potential testimony by Petitioner’s ex-girlfriend about their\nhistory of domestic violence. Trial counsel admitted that he stopped interviewing witnesses\nin preparation for trial when plea negotiations became imminent.\n\n Petitioner testified about his dissatisfaction with trial counsel’s representation. He\nthought that the proper strategy was one of self-defense but admitted that it would be difficult\nunder the circumstances. The day prior to the guilty plea, Petitioner sent trial counsel a letter\nin which he claimed that twenty-five years was “more time” than he “deserve[s]” for the\ncrime but that he would accept the plea agreement because it was in his best interest.” He\nasked trial counsel “to sign under the Alford plea.” Petitioner felt that trial counsel did not\nput any effort into his case and claimed that he pleaded guilty because he did not have a\nchoice. Petitioner thought that he should have gotten “manslaughter at the worst.”\n\n Petitioner claimed that trial counsel met with him three times at the jail and twice in\ncourt prior to the plea. Further, he claimed that trial counsel never talked about lesser\nincluded offenses or the possibility of a plea. Petitioner also stated that he received discovery\nbut that trial counsel did not review the packet with him. Petitioner claimed that the only\nadvice trial counsel gave him was to take the plea deal. Petitioner denied that it was his idea\n\n -3-\n\fto seek a plea deal. Petitioner thought that twenty-five years was “too much time” and that\nhe even asked trial counsel to remove himself from his case.\n\n On the day of the plea agreement, trial counsel met with Petitioner and reviewed the\nplea. Petitioner was described as somewhat hostile, and stated that his attorney did not “give\na damn” about him. Petitioner claimed he “didn’t have [anybody] to really try to help me for\na defense, so [he] just gave in and signed.”\n\n Arcaya Love, Petitioner’s ex-girlfriend, testified at the hearing. She did not recall\nbeing interviewed by police or by trial counsel. She could not recall a lot of the details\nsurrounding the incident because she had since been involved in an auto accident in which\nshe sustained a serious head injury. Ms. Love was able to recall various incidents of\ndomestic violence, one in particular during which Petitioner attacked her when he learned\nshe was pregnant with the victim’s child. Petitioner attacked her in an attempt to cause her\nto miscarry. Petitioner was trying to reconcile with Ms. Love at the time that the victim was\nkilled. Ms. Love testified that Petitioner had changed and that she was not afraid of him.\nShe admitted that he was the father of her children.\n\n At the conclusion of the proof, the post-conviction court accredited the testimony of\ntrial counsel and found that Petitioner failed to prove the allegations of ineffective assistance\nof counsel and/or an involuntary guilty plea by clear and convincing evidence. Specifically,\nthe post-conviction court stated that there was “nothing to indicate . . . that [trial counsel]\ndidn’t thoroughly confer with [Petitioner] and discuss[ ] these issues with him, advise[ ] him\nof what the potential of what was going to happen. . . .” The post-conviction court was:\n\n not convinced, based upon everything . . . that [trial counsel] had failed to do\n his job, to adequately advise and investigate this case, to adequately tell\n [Petitioner] what his potential punishment would be, should he be convicted.\n What the likelihood of conviction [w]as. What the likelihood of acquittal was.\n What the likelihood of a reduced charge was.\n\n ....\n\n But, it is what it is and in this case it was a second degree murder, which is a\n very serious violent offense and I find that [Petitioner] freely and voluntarily\n entered his guilty plea with full knowledge of what to anticipate what could\n happen to him if he went to trial, the rights he was willing to give up.\n\n I don’t find that he was coerced in any way to enter this guilty plea. I\n don’t find that [trial counsel’s] efforts on his behalf were deficient in any way.\n\n -4-\n\f I don’t find that [Petitioner] was inadequately represented by [trial counsel].\n I find that just the opposite is true. [Trial counsel] was able to secure for him\n an offer much less than life in prison and I think [Petitioner] accepted that\n reality for what it was, as much as he didn’t like it and as much as he still\n doesn’t like it.\n\n But, I think that he understood what he was doing when he took it and\n I don’t find anything in there that indicates that he had anything other than just\n regrets that he had to do that much time.\n\n So I find that [the trial court], thoroughly, interviewed [Petitioner] and\n thoroughly went over all of his rights, including discussions on lesser included\n offenses, everything that [Petitioner] was entitled to. And I find that\n [Petitioner] freely and voluntarily entered that plea, based upon that being his\n desire, his wish and not based upon any deficiencies by [trial counsel], or any\n lack of representation by [trial counsel] . . . .\n\n Petitioner filed a timely notice of appeal of the denial of post-conviction relief.\n\n Analysis\n\n Post-conviction Standard of Review\n\n The post-conviction court’s findings of fact are conclusive on appeal unless the\nevidence preponderates otherwise. See State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999).\nDuring our review of the issues raised, we will afford those findings of fact the weight of a\njury verdict, and this Court is bound by the post-conviction court’s findings unless the\nevidence in the record preponderates against those findings. See Henley v. State, 960 S.W.2d\n572, 578 (Tenn. 1997); Alley v. State, 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This\nCourt may not re-weigh or re-evaluate the evidence, nor substitute its inferences for those\ndrawn by the post-conviction court. See State v. Honeycutt, 54 S.W.3d 762, 766 (Tenn.\n2001). However, the post-conviction court’s conclusions of law are reviewed under a purely\nde novo standard with no presumption of correctness. See Fields v. State, 40 S.W.3d 450,\n458 (Tenn. 2001).\n\n When a petitioner seeks post-conviction relief on the basis of ineffective assistance\nof counsel, the petitioner bears the burden of showing by clear and convincing evidence that\n(a) the services rendered by trial counsel were deficient and (b) that the deficient\nperformance was prejudicial. See Powers v. State, 942 S.W.2d 551, 558 (Tenn. Crim. App.\n1996); see also T.C.A. § 40-30-110(f). In order to demonstrate deficient performance, the\n\n -5-\n\fpetitioner must show that the services rendered or the advice given was below “the range of\ncompetence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936\n(Tenn. 1975). “Because a petitioner must establish both prongs of the test to prevail on a\nclaim of ineffective assistance of counsel, failure to prove either deficient performance or\nresulting prejudice provides a sufficient basis to deny relief on the claim.” Henley, 960\nS.W.2d at 580.\n\n As noted above, this Court will afford the post-conviction court’s factual findings a\npresumption of correctness, rendering them conclusive on appeal unless the record\npreponderates against the court’s findings. See id. at 578. However, our supreme court has\n“determined that issues of deficient performance by counsel and possible prejudice to the\ndefense are mixed questions of law and fact . . . ; thus, [appellate] review of [these issues]\nis de novo” with no presumption of correctness. Burns, 6 S.W.3d at 461.\n\n Furthermore, on claims of ineffective assistance of counsel, Petitioner is not entitled\nto the benefit of hindsight. See Adkins v. State, 911 S.W.2d 334, 347 (Tenn. Crim. App.\n1994). This Court may not second-guess a reasonably-based trial strategy, and we cannot\ngrant relief based on a sound, but unsuccessful, tactical decision made during the course of\nthe proceedings. See id. However, such deference to the tactical decisions of counsel applies\nonly if counsel makes those decisions after adequate preparation for the case. See Cooper\nv. State, 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).\n\n Once a guilty plea has been entered, effectiveness of counsel is relevant only to the\nextent that it affects the voluntariness of the plea. In this respect, such claims of ineffective\nassistance necessarily implicate the principle that guilty pleas be voluntarily and intelligently\nmade. See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (citing North Carolina v. Alford, 400\nU.S. 25, 31 (1970)). As stated above, in order to successfully challenge the effectiveness of\ncounsel, Petitioner must demonstrate that counsel’s representation fell below the range of\ncompetence demanded of attorneys in criminal cases. See Baxter, 523 S.W.2d at 936. Under\nStrickland v. Washington, Petitioner must establish: (1) deficient representation; and (2)\nprejudice resulting from the deficiency. 466 U.S. 668, 694 (1984). However, in the context\nof a guilty plea, to satisfy the second prong of Strickland, Petitioner must show that “there\nis a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty\nand would have insisted on going to trial.” Hill, 474 U.S. at 59; see also Walton v. State, 966\nS.W.2d 54, 55 (Tenn. Crim. App. 1997).\n\n When analyzing a guilty plea, we look to the federal standard announced in Boykin\nv. Alabama, 395 U.S. 238 (1969), and the State standard set out in State v. Mackey, 553\nS.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542 (Tenn. 1999). In Boykin,\nthe United States Supreme Court held that there must be an affirmative showing in the trial\n\n -6-\n\fcourt that a guilty plea was voluntarily and knowingly given before it can be accepted. 395\nU.S. at 242. Similarly, our Tennessee Supreme Court in Mackey required an affirmative\nshowing of a voluntary and knowing guilty plea, namely, that the defendant has been made\naware of the significant consequences of such a plea. Pettus, 986 S.W.2d at 542. The\nstandard is the same for a “best interest” or Alford plea, that is, “whether the plea represents\na voluntary and intelligent choice among the alternative courses of action open to the\ndefendant.” Alford, 400 U.S. at 31.\n\n A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,\ninducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial\ncourt must determine if the guilty plea is “knowing” by questioning the defendant to make\nsure he fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;\nBlankenship, 858 S.W.2d at 904.\n\n Petitioner has failed to show that but for trial counsel’s alleged deficiencies, he would\nhave refused to plead guilty and insisted on going to trial. Petitioner testified that he felt he\nhad no choice but to take the offer because trial counsel did not “give a damn” about his case.\nHowever, the transcript of the guilty plea hearing reflects that the trial court discussed the\nramifications of the guilty plea with Petitioner. Petitioner was thoroughly questioned by the\ntrial court to ascertain whether he understood the effects of the plea.\n\n The plea hearing also indicates that Petitioner knew what he was doing, understood\nthe plea, and agreed that it was what he wanted to do to resolve the case. Petitioner has\nfailed to show by clear and convincing evidence that he received ineffective assistance of\ncounsel or that his guilty plea was involuntary. Moreover, Petitioner has failed to prove he\ndid not understand the consequences of his plea. Trial counsel testified that Petitioner was\nthe one who wanted to seek a plea deal and that he reviewed the deal with Petitioner prior\nto its entry. The post-conviction court accredited the testimony of trial counsel. “[Q]uestions\nof credibility of the witnesses, the weight and value of the evidence, and resolution of\nconflicts in the evidence are matters entrusted to the trial judge as the trier of fact,” and the\npost-conviction court’s credibility determinations are conclusive on appeal unless the\nevidence preponderates against them. State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). We\nfind no evidence to preponderate against the findings of the post-conviction court. Further,\nPetitioner has failed to show that there is a reasonable probability that the proceedings would\nhave concluded differently had counsel performed as Petitioner now claims he should have.\nVaughn v. State, 202 S.W.3d 106, 120 (Tenn. 2006) (citing Strickland, 466 U.S. at 687). The\nevidence does not preponderate against the determination of the post-conviction court.\n\n\n\n\n -7-\n\f Conclusion\n\nFor the foregoing reasons, the judgment of the post-conviction court is affirmed.\n\n\n ___________________________________\n JERRY L. SMITH, JUDGE\n\n\n\n\n -8-\n\f", "ocr": false, "opinion_id": 1044911 } ]

[ "210 F. Supp. 2d 1106" ]

[ { "author_str": "Chen", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 596, "opinion_text": "\n210 F. Supp. 2d 1106 (2002)\nPRECISION PAY PHONES, Plaintiff,\nv.\nQWEST COMMUNICATIONS CORPORATION, Defendant.\nNos. C-02-0213 EMC, C-02-0215 EMC.\nUnited States District Court, N.D. California.\nMay 31, 2002.\n*1107 *1108 Joseph Lisha, San Francisco, CA, for plaintiff.\n*1109 Richard W. Davis, Shigeru Watanabe, Kelley Drye & Warren, LLP, Los Angeles, CA, Theodore G. Spanos, Wilfredo Hernandez, Jr., Morgan Lewis & Bockius LLP, Los Angeles, CA, for defendant.\n\nORDER GRANTING PLAINTIFF'S MOTIONS TO REMAND\nCHEN, United States Magistrate Judge.\n\nI. INTRODUCTION\nThe Court, having reviewed the briefs, supporting documentation and record in this case, as well as having heard the argument of counsel, hereby grants the plaintiff's motions to remand these actions to state court pursuant to 28 U.S.C. § 1447.\n\nII. BACKGROUND\nPlaintiff Precision Pay Phones (\"Plaintiff\") owns payphones and is a \"payphone service provider\" (\"PSP\"). PSPs generally receive compensation for use of their telephones in two ways. First, they collect coins directly deposited into their payphones. Illinois Public Telecommunications Ass'n v. F.C.C., 117 F.3d 555, 558-59 (D.C.Cir.1997). Second, they are compensated through contracts with particular \"interexchange carriers\" (\"IXC\"s) which provide long distance telephone communications services for e.g., collect calls or calls billed to a calling card or third party.[1]Id.\nHowever, as to payphones calls utilizing access codes (800 numbers or 10XXX numbers that the caller uses to reach a desired long-distance carrier) and subscriber 800 numbers from which an IXC (with whom the PSP does not have a contract) derives revenues, independent PSPs receive no compensation from such calls. See id. at 559. IXCs utilize a \"dial-around\" system permitting the payphone user to make such calls without depositing coins or using the PSP's contracted IXC. Id. \"Dial-around\" calls bypass the normal (or default) local and long distance services provided to the payphones. Upon receipt of a call from a payphone using a toll-free prefix, the call is routed through a LEC which accesses a database of all toll-free prefixed numbers, identifies the particular IXC and routes the call accordingly.\nDefendant Qwest Communications Corporation (\"Defendant\") is an IXC. No express contact or agreement exists between Plaintiff and Defendant. Thus, no contractual provision was made between the parties regarding compensation for these \"dial-around\" calls made from Plaintiff's payphones. There is no dispute, however, that Defendant obtains a financial benefit from these calls originating from Plaintiff's payphones.\nPreviously, PSPs could block callers' attempts to dial around a contracted IXC, but in 1990, Congress passed legislation prohibiting PSPs from blocking such calls. Id., citing, 47 U.S.C. § 226(c)(1)(B). To promote competition among PSPs and to ensure that PSPs would get paid for use of their payphones for \"dial-around\" calls to non-contracted IXCs, Congress enacted Section 276 of the Telecommunications Act of 1996. Section 276 provided for establishment by the Federal Communications Commission (FCC) of \"a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call using their payphone.\" 47 U.S.C. § 276(b)(1)(A).\n*1110 Pursuant to that charge, the FCC established rules requiring that IXCs compensate PSPs for use of the payphones. Title 47 of Code of Federal Regulations, § 64.1300(a) provides that the \"first facilities-based interexchange carrier to which a completed coinless access code or subscriber toll-free payphone call is delivered by the local exchange carrier shall compensate the payphone service provider for the call at a rate agreed upon by the parties by contract.\" Additionally, \"[i]n absence of an agreement as required by paragraph (a) of this section, the carrier is obligated to compensate the payphone service provider at a per-call rate of $0.24.\" 47 C.F.R. § 64.1300(c).\nPlaintiff filed two separate, but similar, small-claims complaints against Defendant which differ only with regard to the time period and amounts claimed due. These complaints were filed in the Small Claims Division of the Superior Court of California in San Francisco County. Plaintiff seeks to recover compensation for Defendant's \"dial-around\" calls originating from Plaintiff's payphones. Plaintiff's complaints consist of the following claim: \"Defendant owes me the sum of ($1,828.14 and $2,055.63, respectively), not including court costs, because: Underpayment of ... Dial Around Compensation.\" Small Claims Compl. No. 793996 ¶ 1; Small Claims Compl. No. 793998 ¶ 1.\nOn January 11, 2002, Defendant removed these actions to federal court on the basis of federal question jurisdiction pursuant to 28 U.S.C. §§ 1331, 1337, and 1441(b). On February 5, 2002, Plaintiff filed a motion to remand each case back to state court and the Court held argument on these motions on April 24, 2002.\n\nIII. ANALYSIS\nAn action may be removed from state court if it is one over which the federal district courts has \"original jurisdiction.\" 28 U.S.C. § 1441(a). Defendant asserts there is federal question jurisdiction over Plaintiff's claims under 28 U.S.C. § 1331 which confers jurisdiction over civil actions \"arising under\" federal law.\nPursuant to 28 U.S.C. § 1447(c), the Court must remand a removed action where \"[i]f at any time before final judgment it appears that [the Court] lacks subject matter jurisdiction over the case.\" \"Because of the Congressional purpose to restrict the jurisdiction of the federal courts on removal, the statute is strictly construed, and federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.\" Duncan v. Stuetzle, 76 F.3d 1480, 1485 (9th Cir.1996) (internal quotations omitted).\nBecause Defendant opposes remanding these actions, it has the burden of establishing that removal was proper in the first place. Roskind v. Morgan Stanley Dean Witter & Company, 165 F. Supp. 2d 1059, 1063 (N.D.Cal.2001), citing, Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir.1988). The issue here is whether Defendant has met this burden by demonstrating the Court's original jurisdiction over Plaintiff's claims.\n\nIV. WELL-PLEADED COMPLAINT RULE\nThe determination of the existence of original jurisdiction of the district court (here based solely on federal question jurisdiction) is governed in the first instance by the \"well-pleaded complaint\" rule. \"[A] case `arises under' federal law within the meaning of the general federal question statute only if the federal question appears on the face of [the] plaintiff's well-pleaded complaint; if not, original jurisdiction is lacking even if the defense is based on federal law.\" Hunter v. United *1111 Van Lines, 746 F.2d 635, 639 (9th Cir. 1984), cert. denied, 474 U.S. 863, 106 S. Ct. 180, 88 L. Ed. 2d 150 (1985). Under the well-pleaded complaint rule, the Court must look only to the face of the plaintiff's complaint to determine whether the plaintiff has presented a federal question. See Franchise Tax Board of State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 9-10, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983) (\"Franchise Tax Board\"). The plaintiff is the master of his case and may ignore federal claims and assert only state claims, and thus defeat removal. Duncan, 76 F.3d at 1485. Federal question jurisdiction may not be sustained on a theory that the plaintiff has not advanced. See Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809 n. 9, 106 S. Ct. 3229, 92 L. Ed. 2d 650 (1986); see also Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S. Ct. 724, 58 L. Ed. 1218 (1914) (noting that a well-pleaded complaint for the purposes of conferring \"arising under\" jurisdiction is one where the court considers only what necessarily appears in the plaintiff's statement or claim, unaided by anything alleged in anticipation or avoidance or defenses which it is thought the defendant may interpose). Moreover, a case may not be removed to federal court solely on the basis of a federal defense. See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 96 L. Ed. 2d 318 (1987).\nThus, the general rule in situations where removal is based on federal question jurisdiction is that, unless a federal claim appears on the face of a well-pleaded complaint, removal is improper. Redwood Theatres v. Festival Enterprises, Inc., 908 F.2d 477, 479 (9th Cir.1990); see Taylor v. Sun Reporter Publ'g Co., No. C98-2044 VRW, 1999 WL 782393, *1 (N.D.Cal. Sept.29, 1999) (remanding a case to state court where a small claims court complaint did not allege on its face any federal cause of action or any other reference to federal law).\nHere, Plaintiff's small claims complaints simply contain boilerplate language typical of small claims actions. Plaintiff asserts, inter alia, that \"Defendant owes me the sum of ($1,828.14 and $2,055.63, respectively), not including court costs, because: Underpayment of ... Dial Around Compensation.\" Small Claims Compl. No. 793996 ¶ 1; Small Claims Compl. No. 793998 ¶ 1. The complaints further assert that Plaintiff requested payment and Defendant refused to pay. Small Claims Compl. No. 793996 ¶ 3; Small Claims Compl. No. 793998 ¶ 3. Plaintiff does not indicate the precise legal basis for this claim, but Plaintiff is not required to do so because of the \"non-technical\" nature of the small claims court complaint form. Cal.Civ.Proc.Code § 116.320(b) (West 2002). The simple pleading requirements, not requiring any additional argument or articulation of legal theory for compensation, is consistent with the small claims court organic statute. Cal.Civ.Proc.Code § 116.120(b) (West 2002) (\"[i]n order to resolve minor civil disputes expeditiously, inexpensively, and fairly, it is essential to provide a judicial forum accessible to all parties directly involved in resolving these disputes\").\nThere is nothing on the face of these complaints that asserts a federal claim. In support of its motion for remand, Plaintiff contends that its claims are common counts for quantum meruit or assumpsit. The general pleading of Plaintiff's small claims complaints is consistent with a common count pleading practice. Moreover, the California case law supports Plaintiff's equitable claims for quantum meruit.\nUnder California law, quantum meruit is \"an equitable remedy implied by the law under which a plaintiff who has rendered services benefitting the defendant may recover the reasonable value of those *1112 services when necessary to prevent unjust enrichment of the defendant.\" In re De Laurentiis Entertainment Group, Inc., 963 F.2d 1269, 1272 (9th Cir.), cert. denied, Carolco Television, Inc. v. National Broadcasting Co., Inc., 506 U.S. 918, 113 S. Ct. 330, 121 L. Ed. 2d 249 (1992), citing, B. Witkin, Summary of California Law: Contracts § 91 (1987) and 55 Cal. Jur.3d Restitution 360-61 (1980); see Hahn v. Oregon Physicians' Serv., 786 F.2d 1353, 1355 (9th Cir.1985) (applying Oregon law noting that \"[t]he purpose of quantum meruit is to prevent unjust enrichment at the expense of another\"); Arrison v. Information Resources, Inc., No. C95-3554 THE, 1999 WL 551232, *6 (N.D.Cal. July 16, 1999) (\"[t]he underlying idea behind quantum meruit is the law's distaste for unjust enrichment\"). Where a party has received a benefit which the party may not justly retain and the parties have no actual express contract covering compensation, for reasons of justice the law will imply a contract to pay for services rendered. See Iverson, Yoakum, Papiano & Hatch v. Berwald, 76 Cal. App. 4th 990, 996, 90 Cal. Rptr. 2d 665 (1999); Maglica v. Maglica, 66 Cal. App. 4th 442, 449, 78 Cal. Rptr. 2d 101 (1998).\nTo establish a claim for quantum meruit, the plaintiff must prove that: [1] the plaintiff rendered services to the defendant's benefit; and [2] the defendant would be unjustly enriched if the plaintiff was not compensated. Arrison, 1999 WL 551232, at *6, citing, De Laurentiis, 963 F.2d at 1272. The claim applies especially where the defendant acquires the benefit with knowledge of the circumstances establishing unjust enrichment. First Nationwide Savings v. Perry, 11 Cal. App. 4th 1657, 1663-64, 15 Cal. Rptr. 2d 173 (1992). The plaintiff and a defendant need not be in contractual privity with each other; the plaintiff may recover on a quantum meruit theory from any other party even though no express or implied contractual relationship exists. See De Laurentiis, 963 F.2d at 1273, citing, Kossian v. American National Ins. Co., 254 Cal. App. 2d 647, 649-50, 62 Cal. Rptr. 225 (1967) (allowing recovery under quantum meruit where no implied contact existed and the plaintiff did not expect compensation from the current defendant, but a third-party). A defendant's expectation to compensate for a received benefit is not necessary, but compensation must be \"expected\" by a plaintiff \"only in the sense that the services rendered must not have been intended to be gratuitous.\" Id. at 1272-73.\nThe criteria for quantum meruit are facially satisfied here. To the extent \"dial-around\" calls are made through Defendant's network from Plaintiff's payphones, Defendant obtains the benefit of Plaintiff's services without paying for them. While Defendant has the option of blocking calls from Plaintiff's payphones over Defendant's network, Defendant has chosen to receive \"dial-around\" calls from Plaintiff's payphones. Thus, it has acquired benefits conferred by Plaintiff with full knowledge of the circumstances. Plaintiff's income depends on compensation from its payphones. The services rendered to Defendant were not intended to be gratuitous, as evidenced by the invoices Plaintiff has sent to Defendant. Plaintiff's Mot. for Remand, p. 6, ln. 3-4. Defendant would be unjustly enriched if it paid Plaintiff nothing out of the compensation it received for dial-around calls which were made possible by the use of Plaintiff's payphones.\nThe small claims here asserts a facially valid claim for quantum meruit.\n\nV. ARTFUL PLEADING AND SUBSTANTIAL FEDERAL QUESTION DOCTRINES\nThere are limited circumstances in which the Court can delve beyond the face of the state court complaint and find federal question jurisdiction. Under *1113 the \"artful pleading\" doctrine, the court under some circumstances may recharacterize a plaintiff's state law claim as a federal claim. Hunter, 746 F.2d at 640. However, the doctrine is to be invoked \"only in exceptional circumstances,\" Salveson v. Western States Bankcard Association, 731 F.2d 1423, 1427 (9th Cir.1984), and such recharacterization is proper where federal law: (1) completely preempts state law and (2) confers a federal remedy. ARCO Environmental Remediation, LLC v. Dept. of Health and Environmental Quality of Montana, 213 F.3d 1108, 1114 (9th Cir.2000); Utley v. Varian Associates, Inc., 811 F.2d 1279, 1287 (9th Cir.), cert. denied, 484 U.S. 824, 108 S. Ct. 89, 98 L. Ed. 2d 50 (1987); Hunter, 746 F.2d at 642-44.\nMoreover, a claim which facially appears to be based on state law may be deemed to \"arise under\" federal law where \"some substantial, disputed question of federal law is a necessary element of one of the well pleaded state claims....\" Franchise Tax Board, 463 U.S. at 13, 103 S. Ct. 2841; Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir.1996); ARCO Environmental, 213 F.3d at 1116;[2]Utley, 811 F.2d at 1283.\nThe existence vel non of a private right of action informs the applicability of both exceptions to the well-pleaded complaint rule. In the context of complete pre-emption, the Ninth Circuit has held that \"the artful pleading doctrine applies only when federal law not only displaces state law but also confers a federal remedy.\" Hunter, 746 F.2d at 642. If there is no federal cause of action, \"recharacterization of the plaintiff's state law claim as a federal claim is doctrinally impossible.\" Utley, 811 F.2d at 1287. Under the substantial federal question doctrine, the absence of a federal right of action implies the federal element is \"insufficiently `substantial' to confer federal-question jurisdiction.\" Merrell Dow, 478 U.S. at 814, 106 S. Ct. 3229, cited in, Rains, 80 F.3d at 347 n. 10. The rationale in Merrell Dow is that \"to permit removal based on a federal statute not conferring a private right of action would disregard the will of Congress to preclude a private remedy in federal court for the statute's violation.\" Utley, 811 F.2d at 1283.\n\nA. Private Right of Action\n\nThus, as a threshold matter the Court must address whether there is a private right of action to compel the payment of dial-around compensation provided by 47 C.F.R. § 64.1300(a) and authorized by 47 U.S.C. § 276(b)(1)(A). Lower courts are split on this question.[3]\n*1114 While the issue is debatable, the Court concludes that PSPs may bring a private right of action against IXCs to collect dial-around compensation. The starting point is authorizing statute which mandates compensation to PSPs, 47 U.S.C. § 276(b)(1). As noted above, the statute explicitly directs the FCC to prescribe regulations to establish a per call compensation plan \"to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call using their payphone.\" 47 U.S.C. § 276(b)(1)(A). The statute was intended to address, inter alia, the difficulty PSPs had in recovering compensation from IXCs for dial-around calls. Illinois Public Telecommunications, 117 F.3d at 558-59.\nWhile § 276 does not address enforcement through a private right of action, § 207 of the same chapter does. Section 207 provides:\n\"Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission ... or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States ...\"\nMoreover, § 206 provides:\nIn case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter, together with a reasonable counsel or attorney's fee, to be fixed by the court in every case of recovery, which attorney's fee shall be taxed and collected as part of the costs in the case.\nThus, §§ 206 and 207 permit suits in federal court to enforce rights under § 276.\nDefendant argues that the private right of action conferred by §§ 206 and 207 applies only to enforcement of the Telecommunications Act itself and not the regulations promulgated thereunder. While some district courts have so concluded,[4] the Supreme Court's recent decision in Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001) compels a contrary result. In Alexander, the Court addressed the question whether there was a private right of action to enforce regulations promulgated under § 602 of Title VI of the Civil Rights Act of 1964. Section 601 of Title VI prohibits recipients of federal funds from engaging in racial or national origin discrimination. Section 601 has been interpreted to prohibit only intentional discrimination. Section 601 has also been interpreted to provide a private right of action. Section 602 of Title VI authorizes federal agencies to promulgate regulations to effectuate § 601. The regulations at issue in Alexander, promulgated under § 602, prohibit recipients of federal funds from engaging facially neutral practices which have a disparate impact, thus going beyond the substantive provisions of § 601 which reaches only intentional discrimination. The Court held that the disparate impact regulations under § 602 could not be enforced by a private right of *1115 action. Alexander, 532 U.S. at 282, 121 S. Ct. 1511. While the Alexander Court refused to imply a private right to enforce the disparate impact regulations, its analysis compels a contrary result here for several reasons.\nFirst, in contrast to the disparate impact regulations of § 602, the Court held that the private right of action to enforce § 601's prohibition on intentional discrimination did apply equally to regulations applying § 601's ban on intentional discrimination. Id. at 284, 121 S. Ct. 1511. Because those regulations did not substantively expand § 601 but simply interpreted and implemented it, the Court stated \"it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute.\" Id. The same is true with 47 U.S.C. § 276(b)(1)(A) and 47 C.F.R. § 64.1300(a). The Telecommunications Act mandates that PSPs be \"fairly compensated\" and directs the FCC to establish the per call compensation plan. Title 47 C.F.R. § 64.1300(a) implements the Congressional mandate embodied in the statute through powers expressly delegated to the FCC.[5] As with the § 601 regulation in Alexander, these FCC regulations contrast with the § 602 disparate impact which did not simply fill in interstices left by the statute, but created a substantive standard which differed from the statute. Like the § 601 intentional discrimination regulations, \"it is meaningless to talk about a separate cause of action to enforce\" the FCC regulation at 47 C.F.R. § 64.1300 apart its authorizing statute, 47 U.S.C. § 276(b)(1)(A). A suit to enforce the right of PSPs under § 276(b)(1)(A) to be \"fairly compensated\" would be meaningless without the FCC regulation which specifies the precise level of that compensation. Accordingly, Alexander, the right of action conferred under §§ 206 and 207 applies not only to the Telecommunications Act, but to implementing the FCC regulations as well.\nSecond, even if the FCC regulation were deemed a separate and independent regulation for which a separate private right of action must be found, the analytical framework of Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), suggests it would be appropriate to find such a right here. The touchstone to this determination is the text of the statute and Congress' intent. Alexander, 532 U.S. at 288, 121 S. Ct. 1511. In contrast to § 602 of Title VI which contained no \"rights-creating language\" and did not focus on the individuals protected—focusing instead solely on the agencies that did the regulating — § 276(b)(1) mandates that PSPs be \"fairly compensated\" under a per-call compensation plan to be devised by the FCC. It creates a right to fair compensation and focuses specifically on the individuals to be protected — \"all payphone service providers.\" Moreover, whereas § 602 of Title VI specified only agency enforcement and contained \"elaborate restrictions\" thereon which suggested that Congress intended to provide only one method of enforcement (administrative) to the preclusion of others (private suits), §§ 206 and 207 expressly provide for enforcement through private suits filed in federal court as well as through administrative petitions filed with the FCC. Thus, there is nothing from the structure or purpose of the statute which would indicate a legislative intent to preclude a private right of action.\nFor these reasons, the Court concludes that PSPs may bring a federal suit to enforce their compensation rights for dial-around calls against IXCs.[6]\n\n\n*1116 B. Complete Preemption\n\nNotwithstanding the Court finding of a private right of action, the \"artful pleading\" doctrine requires an additional element that is missing here — \"complete preemption\" by federal law. As noted above, federal defenses to a state claim does not create \"arising under\" jurisdiction under § 1331. Caterpillar, 482 U.S. at 392, 107 S. Ct. 2425. That applies to traditional preemption defenses. Toumajian v. Frailey, 135 F.3d 648, 655 (9th Cir.1998). Federal jurisdiction is created only where there is \"complete preemption\" — \"the rare instances where Congress has chosen to regulate the entire field.\" ARCO Environmental, 213 F.3d at 1114. In those contexts, \"the preemptive force of a statute is so `extraordinary' that it `converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.'\" Caterpillar, 482 U.S. at 393, 107 S. Ct. 2425, quoting Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987). The Court has found such complete preemption in the context of § 301 of the Labor Relations Management Act (LMRA), codified at 29 U.S.C. § 185, and certain portions of the Employee Retirement Income Security Act (ERISA), codified at 29 U.S.C. § 1332(a). See Avco Corp. v. Aero Lodge No. 735, International Assn' of Machinists and Aerospace Workers, 390 U.S. 557, 560, 88 S. Ct. 1235, 20 L. Ed. 2d 126 (1968) (LMRA); Metropolitan Life, 481 U.S. at 63-64, 107 S. Ct. 1542 (ERISA). There is no \"complete preemption\" where the federal law only preempts state law inconsistent with it. Rains, 80 F.3d at 345 (determining that Title VII only preempts inconsistent state law and does not completely preempt state law).\nWhile \"[t]here does not appear to be any Ninth Circuit authority finding that the [Telecommunications Act] either does or does not `completely preempt' state law claims ... the weight of authority, as well as more consistent reasoning, supports a finding that it does not.\" Braco v. MCI Worldcom Communications, Inc., 138 F. Supp. 2d 1260, 1269 (C.D.Cal.2001); see Heichman v. American Tel. & Tel. Co., 943 F. Supp. 1212, 1222 (C.D.Cal.1995) (finding that the Telecommunications Act did not transform the plaintiff's state law causes of action into a federal cause of action); Boyle v. MTV Networks, 766 F. Supp. 809, 816 (N.D.Cal.1991) (finding that neither the Telecommunications Act's statutory language nor its legislative history supports the proposition that Congress intended complete preemption); see Quayle v. MCI Worldcom., Inc., No. C00-3694 SC, 2001 WL 1329594, **2-3 (N.D.Cal. Oct.22, 2001).\nThe Court concludes, the Telecommunications Act does not have the necessary preemptive force to warrant complete preemption. The crucial provision is 47 U.S.C. § 276(c) which provides, \"[t]o the extent that any State requirements are inconsistent with the Commission's regulations, the Commission's regulations on such matters shall preempt such State requirements.\" As with Title VII, preemption is limited to inconsistent state law.[7] Thus, Rains, supra, is dispositive — there is no \"complete preemption.\" That conclusion *1117 is bolstered by the fact that 47 U.S.C. § 414 contains a savings clause which provides that \"[n]othing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.\" Clearly, § 414 is intended to preserve state law to the extent feasible. Thus, while the § 276(b)(1)(A) of the Telecommunications Act may be enforced by a suit in federal court, there is nothing to suggest Congress intended this mode of enforcement to be to the exclusion of claims in state courts. As demonstrated by the limited scope of the preemption provision of § 276(c) and the savings clause of § 414, state court enforcement was not of such \"central concern to the federal statute,\" Franchise Tax Board, 463 U.S. at 25-26, 103 S. Ct. 2841, so as to evince Congress' intent to completely displace state court jurisdiction over suits to collect dial-around compensation.\nAccordingly, the \"artful pleading\" doctrine requiring \"complete preemption\" does not apply.\n\nC. Substantial Federal Question\n\nEven where state law creates the plaintiff's cause of action, the case may be deemed to \"arise under\" federal law \"if the right to relief under\" state law \"requires resolution of a substantial question of federal law in dispute between the parties.\" Franchise Tax Board, 463 U.S. at 13, 103 S. Ct. 2841; see ARCO Environmental, 213 F.3d at 1116; Rains, 80 F.3d at 345. The existence of a requisite \"substantial federal question\" has proven elusive to a bright line determination due in part to the fact that \"the phrase `arising under' masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.\" Franchise Tax Board, 463 U.S. at 8, 103 S. Ct. 2841.\nExamination of a substantial federal question has arisen in a variety of contexts in which state and federal law are intermingled. See, e.g., Merrell Dow, supra (violation of Federal Food, Drug and Cosmetic Act alleged to constitute rebuttable presumption of negligence); Franchise Tax Board, supra (state sought to levy against money held in retirement trust fund regulated by ERISA); Moore v. Chesapeake & O. Ry. Co., 291 U.S. 205, 54 S. Ct. 402, 78 L. Ed. 755 (1934) (state law limited defenses of contributory negligence and assumption of risk where employer violated FELA); Rains, supra (Title VII asserted as public policy in claim for wrongful termination in violation of public policy); Hunter, supra (state law bad faith claim required colorable contract claim based on federal law). As these cases illustrate, the fact that a case may turn in part upon the resolution of some issue of federal law or that federal law constitutes an ingredient of the state law claim for relief does not automatically convert a state claim into one \"arising under\" federal law for purposes of federal question jurisdiction. Rather, the court must examine the centrality of the federal law to the claim and consider policy factors. \"What is needed is something of that commonsense accommodation of judgment to kaleidoscopic situations which characterizes the *1118 law in its treatment of causation ... a selective process which picks the substantial causes our of the web and lays the other ones aside.\" Franchise Tax Board, 463 U.S. at 20, 103 S. Ct. 2841, quoting, Gully v. First National Bank, 299 U.S. 109, 117-18, 57 S. Ct. 96, 81 L. Ed. 70 (1936).\nThe evaluation of the importance of the federal issue to the state claim has been stated variously. As discussed in Hunter, supra, courts have stated that the federal element in a claim must be \"direct and essential as opposed to attenuated,\" \"basic as opposed to collateral,\" \"necessary as opposed to merely possible,\" \"pivotal,\" \"substantial as opposed to merely incidental\" or \"paramount as opposed to collateral.\" Hunter, 746 F.2d at 646 (internal quotations omitted). The fact that the state claim \"hinges on\" federal law is not, in and of itself, sufficient. Id. at 645-46. In Hunter, the court held that the fact that the federal element determined as a preliminary matter whether the state law duty of good faith applied was insufficient. Id. at 646. Just as the creation property rights through federal land patents, trademarks and copyrights has been held not to transform state law actions to enforce contract and property rights into federal claims, the federal element in Hunter (contract claim based on federal law) was deemed to be involved only \"incidentally;\" the bad faith count \"fundamentally asserts [state] claims.\" Id. at 647 (quotations omitted). Similarly, in Moore, supra, and Merrell Dow, supra, \"the violation of the federal standard as an element of state tort recovery did not fundamentally change the state tort nature of the action.\" Merrell Dow, 478 U.S. at 814 n. 12, 106 S. Ct. 3229, citing, Moore, 291 U.S. at 216-17, 54 S. Ct. 402.\nIn the case at bar, the state claim for quantum meruit exists independent of the right of action under 47 U.S.C. § 276(b)(1)(A). The only involvement of federal law is the FCC regulation (47 C.F.R. § 64.1300(c)) which sets the default per call compensation level in the absence of a contractual agreement between the PSP and the IXC. The establishment of a default per call rate touches the state claim \"at a single point,\" Moore, 291 U.S. at 216, 54 S. Ct. 402, and does not \"fundamentally change\" the nature of the state law equitable claim asserted by Plaintiff herein. Had the FCC regulation not set a default rate, Plaintiff would be free to prove under state law the value of the service provided to, and which benefitted, Defendant.\nFinally, considerations of policy and common sense further counsel against finding federal jurisdiction over Plaintiff's small claims counts. \"[D]eterminations about federal jurisdiction require sensitive judgments about congressional intent, judicial power, and the federal system.\" Merrell Dow, 478 U.S. at 810, 106 S. Ct. 3229. The analysis must be informed by \"the demands of reason and coherence, and the dictates of sound judicial policy.\" Id. The cases at bar were initiated by a small independent PSP as a pro se small claims suit to collect $1,828.14 and $2,055.63. The effect of the removal petition filed by Defendant (apparently not an isolated tactic among IXCs as indicated by the number of other similar cases which have addressed removal jurisdiction) is to haul the small claims plaintiff into federal court, turning a simple collection suit into a federal case which is far more costly and complicated to litigate.[8] Nothing in the *1119 letter of the Telecommunications Act, FCC regulations at issue, or legislative history indicates that the federal law designed to help independent PSPs recover fair compensation is to be construed in such a manner as to deprive them of their choice of the most efficient and appropriate forum. Indeed, permitting removal to federal court over the objections of independent PSPs as Plaintiff in the instant cases would, if anything, contravene the legislative purpose of § 276(b)(1)(A).\nMoreover, this case does not require the \"resolution of a substantial, disputed federal question.\" ARCO Environmental, 213 F.3d at 1114. The federal ingredient involved here — the setting of the per call dial-around rate in the absence of a contract — requires no interpretation of federal law.[9] Hence, there is no compelling need for a federal forum to e.g. facilitate national uniformity in the interpretation or application of federal law. Cf. Textile Workers v. Lincoln Mills, 353 U.S. 448, 457, 77 S. Ct. 912, 1 L. Ed. 2d 972 (1957) (determining that uniform federal law and policy should be applied under the LMRA). Nor is there any reason to expect that federal courts possess greater expertise than state courts in applying the dial-around rate set by FCC regulation.\nIn short, the Court \"cannot identify any compelling reasons of federal judicial policy for embracing a case of this kind as a federal question case.... [The California Superior Courts] are fully competent\" to apply the applicable federal law here. Merrell Dow, 478 U.S. at 814, 106 S. Ct. 3229, quoting, Kravitz v. Homeowners Warranty Corp., 542 F. Supp. 317, 319 (E.D.Pa.1982).\n\nVI. CONCLUSION\nFor the foregoing reasons, Plaintiff's claims in the cases at bar do not give rise to federal jurisdiction of this Court. Accordingly, the Court GRANTS Plaintiff's motions to remand. The above-captioned cases are hereby remanded to the Superior Court for San Francisco, Small Claims Division.\nHowever, on May 30, 2002, Defendant filed a Motion for Transfer, under 28 U.S.C. § 1407, before the Judicial Panel on Multidistrict Litigation. As such, this Order is hereby stayed pending the Judicial Panel on Multidistrict Litigation's ruling on the motion.\nIT IS SO ORDERED.\nNOTES\n[1] Competing against independent PSPs like Plaintiff are local exchange carriers (\"LEC\"s) which have local networks able to receive subsidies for common line charges that LECs assess IXCs for originating and terminating long-distance calls. Illinois Public Telecommunications, 117 F.3d at 559.\n[2] In ARCO Environmental, supra, the Ninth Circuit also stated as an additional basis for federal jurisdiction in cases \"where the claim is necessarily federal in character.\" ARCO Environmental, 213 F.3d at 1114, citing, Brennan v. Southwest Airlines Co., 134 F.3d 1405, 1409 (9th Cir.), amended by, 140 F.3d 849 (9th Cir.1998). Brennan involved application of the artful pleading doctrine where \"the defendant has a federal preemption defense to a state claim and federal law provides a remedy.\" Brennan, 134 F.3d at 1409 (citation omitted). It thus appears indistinguishable from the \"complete preemption\" doctrine.\n[3] Both parties have submitted as exhibits a number of unpublished district court decisions on this issue. Although these decisions lack precedential effect, the Court recognizes that trial courts are widely split on this issue. Compare Wolfe v. Global Crossing Telecomm., Inc., CV 01-0881, 882, 883 TJH; CV 01-03454 TJH (C.D.Cal. July 25, 2001) (private rights of action); Wolfe v. Qwest Communications Corp., CV 01-05554, 05555, 05556, 05557(TJH) (C.D. Cal Dec. 17, 2001) (accord); PBS Telecom, Inc. v. Qwest Communications Corp., No. CV01-7285 RMT (C.D.Cal. Jan. 16, 2002) (accord); and Bay Dist. Service, Inc. v. Qwest Communications Corp., No. C01-20940 RMW (N.D.Cal. Jan. 29, 2002) (accord), with Precision Pay Phones v. Global Crossing Telecomm., Inc., No. C01-02901 WHA, 2001 WL 1456766, *1 (N.D.Cal. Nov.6, 2001) (no private right of action) and Precision Pay Phones v. Qwest Communications Corp., C02-00201 SBA (N.D.Cal. May 16, 2002) (accord).\n[4] See, e.g., Precision Pay Phones v. Global Crossing Telecomm., Inc., 2001 WL 1456766, at *1; Precision Pay Phones v. Qwest Communications Corp., C02-00201 SBA (N.D.Cal. May 16, 2002) (unpublished court order); cf. Conboy v. AT & T Corp., 84 F. Supp. 2d 492, 500 (S.D.N.Y.2000).\n[5] Regulations promulgated pursuant to an express delegation of authority by the legislature have traditionally warranted the highest level of judicial deference. See 1 Richard J. Pierce, Jr., Administrative Law Treatise, § 6.4, at 329-31 (4th ed.2002).\n[6] The analysis applicable under Alexander, supra, does not necessarily imply that all FCC regulations promulgated under the Telecommunications Act are enforceable by private suits. Alexander requires an examination into the nature of the relationship between the regulation in question and the authorizing statute. Alexander, 532 U.S. at 284, 121 S. Ct. 1511. If there is a meaningful distinction such that the right to enforce the regulation warrants separate analysis from enforcement of the statute, then a court must apply the Cort v. Ash, supra, analysis to the regulation. Because each regulation must be examined separately, this Court's conclusion is not necessarily inconsistent with Conboy, supra, which involved different FCC regulations.\n[7] This language is parallel to the narrower branch of traditional preemption recognized by the courts — \"conflict preemption\" — where \"compliance with both federal and state regulations is a physical impossibility,\" Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963), or where state law \"stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.\" Hines v. Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941). This narrow branch of preemption contrasts with \"field preemption\" where Congress intends federal law to \"occupy the field\" to the general exclusion of state law. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372, 120 S. Ct. 2288, 147 L. Ed. 2d 352 (2000); see English v. General Electric Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d 65 (1990).\n[8] The facts of this case illustrate how removal can represent a costly trap for the unwary. Defendant objected to the appearance of Joe Lisha before the Court pro se, because his business, Precision Pay Phones, was a partnership which cannot appear before the Court without counsel. See Civil L.R. 3-9(b) (stating that corporations, unincorporated associations, partnerships, etc., \"may appear only through a member of the bar of the Court\"). Lisha was then compelled to represent he would restructure Precision Pay Phones into a sole proprietorship. Defendant accepted Lisha's representation as did the Court. Only with acceptance of that business change was Lisha permitted to proceed pro se. See National Independent Theatre Exhibitors, Inc. v. Buena Vista Distribution Co., 748 F.2d 602, 609-10 (11th Cir.1984) (noting that pursuant to 28 U.S.C. § 1654, a sole proprietor could appear in federal court pro se).\n[9] Certainly, there is no basis for presuming that every collection suit in state court in which the price or rate is affected by some federal regulation gives rise to a federal question.\n\n", "ocr": false, "opinion_id": 2579657 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.tsc.state.tn.us/sites/default/files/tolleyericopn.pdf", "author_id": 8286, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT JACKSON\n Assigned on Briefs May 1, 2012\n\n ERIC TOLLEY v. STATE OF TENNESSEE\n\n Appeal from the Criminal Court for Shelby County\n Nos. 04-05432-35 Paula Skahan, Judge\n\n\n No. W2011-01816-CCA-MR3-PC - Filed October 25, 2012\n\n\nPro se Petitioner, Eric Tolley, appeals the summary dismissal of his petition for post-\nconviction relief seeking analysis of certain evidence under the Post-Conviction DNA\nAnalysis Act of 2001 (“The Act”).1 The Petitioner originally entered guilty pleas to three\ncounts of aggravated sexual battery and two counts of rape of child for which he received an\neffective sentence of twenty-one years and six months in the Department of Correction. In\nthis appeal, the Petitioner contends the post-conviction court erred in denying his petition\nwithout an evidentiary hearing. Upon review, we affirm the judgment of the post-conviction\ncourt.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed\n\nC AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.\nW EDEMEYER and D. K ELLY T HOMAS, J R., JJ., joined.\n\nEric Tolley, Whiteville, Tennessee, Pro Se.\n\nRobert E. Cooper, Jr., Attorney General and Reporter; Sophia J. Lee, Senior Counsel; Amy\nP. Weirich, District Attorney General; and Glen C. Baity, Assistant District Attorney\nGeneral, for the Appellee, State of Tennessee.\n\n OPINION\n\n\n\n\n 1\n “DNA analysis” is defined as “the process through which deoxyribonucleic acid (DNA) in a human\nbiological specimen is analyzed and compared with DNA from another biological specimen for identification\npurposes.” T.C.A. § 40-30-402.\n\f In 2004, the Petitioner entered guilty pleas to three counts of aggravated sexual battery\nand two counts of rape of child. He received concurrent terms of eight years for each\naggravated sexual battery conviction and concurrent terms of thirteen and one-half years for\neach rape of child conviction, with the aggravated sexual battery and chid rape sentences to\nbe served consecutively for an effective sentence of twenty-one years and six months at one\nhundred percent in the Department of Correction. The Petitioner previously appealed the\nsummary dismissal of a petition for writ of habeas corpus, which this court affirmed in Eric\nJason Tolley v. State, No. W2007-01642-CCA-R3-HC, 2008 WL 2901610 (Tenn. Crim.\nApp., at Jackson, July 21, 2008), perm. app. denied, (Tenn. Dec. 1, 2008).\n\n On January 21, 2011, the Petitioner filed a pro se petition for post-conviction relief\ngenerally asserting that he is entitled to DNA analysis pursuant to Tennessee Code Annotated\nSection 40-30-303 (2003). Other than stating the statutory grounds for relief pursuant to\nsection 40-30-303 and requesting the trial court to conduct a “de novo review” and “to\nappoint counsel,” the petition does not provide any specific details in support of relief.\n\n The State filed a response and requested that trial court deny the petition because it\nfailed to “meet any of the requirements set forth in T.C.A. §40-30-[304].” The State further\nasserted that there was “no physical evidence to test” because the Petitioner’s convictions\nwere based on “fondling [the victims’] genitalia” and “perform[ing] oral sex on these\nvictims.” The State detailed the facts supporting the Petitioner’s convictions in their\nresponse and further contended the following:\n\n [T]he victim’s were examined at the city of Memphis Sexual Assault Resource\n Center. There was no evidence kit collected, no underwear or other type\n clothing was submitted to TBI for testing. The victims were examined for\n evidence of physical injury but no lab tests were performed to check for\n sexually transmitted diseases. All this information is contained in the report\n from the Sexual Assault Resource Center and provided as discovery to\n Petitioner’s defense counsel.\n\n Notwithstanding the lack of physical evidence to be analyzed for DNA, the State\ninsisted “there was a strong likelihood that the Petitioner would have still been prosecuted\nand probably convicted” based on the following evidence the State had against the Petitioner:\n\n [T]he statements of the victims, an audio-taped conversation Petitioner had\n with the mother of the victims where he admitted performing oral sex on the\n six (6) year old victim, a statement from the witness James Vinson II who told\n police he overheard the confession Petitioner made to the victim’s mother and\n a notebook with the words “Eric Tolley’s Journal” written on the outside. The\n\n -2-\n\f journal contained an entry date of 12/12/03 when the defendant wrote that a\n doctor diagnosed him with Herpes. This entry corroborates the six (6) year old\n victim’s allegation that the Petitioner made him rub the Petitioner’s penis and\n that it had “little red dots, circles on it”.\n\n The trial court issued a written order emphasizing the lack of any physical evidence\nto test for DNA analysis and dismissed the petition on May 23, 2011. The instant appeal\nfollowed. 2\n ANALYSIS\n\n The Petitioner asserts that the post-conviction court erred in dismissing his petition\nfor DNA analysis without holding an evidentiary hearing. The State responds that the post-\nconviction court properly dismissed the petition because it failed to meet the requirements\nof the Act.\n\n The Post-Conviction DNA Analysis Act states that a petitioner convicted of specific\noffenses, including aggravated sexual battery and rape of a child, “may at any time, file a\npetition requesting the forensic DNA analysis of any evidence that is in the possession or\ncontrol of the prosecution, law enforcement, laboratory, or court, and that is related to the\ninvestigation or prosecution that resulted in the judgment of conviction and that may contain\nbiological evidence.” T.C.A. § 40-30-303 (2003). Because the Act allows for a request of\nDNA analysis “at any time,” this language overrides any general statute of limitation,\nregardless of whether a request for DNA testing was made at trial. Griffin v. State, 182\nS.W.3d 795, 799 (Tenn. 2006) (citing T.C.A. § 40-30-303). Under the mandatory provision\nof this Act, the trial court shall order DNA analysis after providing notice and an opportunity\nfor the State to respond, if the following criteria are met:\n\n (1) A reasonable probability exists that the petitioner would not have been\n prosecuted or convicted if exculpatory results had been obtained through DNA\n analysis;\n\n (2) The evidence is still in existence and in such a condition that DNA analysis\n may be conducted;\n\n\n\n\n 2\n The Petitioner filed an untimely appeal on June 28, 2011. Because he filed his notice late, the trial\ncourt denied his motion for designation of records for appeal. This Court subsequently granted the\nPetitioner’s pro se motion to waive his untimely notice of appeal.\n\n\n -3-\n\f (3) The evidence was never previously subjected to DNA analysis or was not\n subjected to the analysis that is now requested which could resolve an issue not\n resolved by previous analysis; and\n\n (4) The application for analysis is made for the purpose of demonstrating\n innocence and not to unreasonably delay the execution of sentence or\n administration of justice.\n\nT.C.A. § 40-30-304 (2003).\n\n Under the discretionary provision of the Act, the trial court may order DNA analysis\nafter providing notice and an opportunity for the State to respond, if the following criteria\nare met:\n\n\n (1) A reasonable probability exists that analysis of the evidence will produce\n DNA results which would have rendered the petitioner’s verdict or sentence\n more favorable if the results had been available at the proceeding leading to\n the judgment of conviction;\n\n (2) The evidence is still in existence and in such a condition that DNA analysis\n may be conducted;\n\n (3) The evidence was never previously subjected to DNA analysis, or was not\n subjected to the analysis that is now requested which could resolve an issue not\n resolved by previous analysis; and\n\n (4) The application for analysis is made for the purpose of demonstrating\n innocence and not to unreasonably delay the execution of sentence or\n administration of justice.\n\nT. C. A. § 40-30-305 (2003). “Under either the mandatory or discretionary provision, all four\nelements must be met before DNA analysis will be ordered by the court.” Powers v. State,\n343 S.W.3d 36, 48 (Tenn. 2011). In other words, the trial court is under no obligation to\nconduct a hearing or to order DNA analysis of evidence unless it finds that each of the four\nstatutory requirements have been satisfied. William D. Buford v. State, No. M2002-02180-\nCCA-R3-PC, 2003 WL 1937110 (Tenn. Crim. App. Apr. 24, 2003).\n\n\n\n\n -4-\n\f We conclude that the post-conviction court properly dismissed the petition seeking\nDNA analysis. Both statutory subsections of the Act require the Petitioner to show that\n“[t]he evidence is still in existence and in such a condition that DNA analysis may be\nconducted.” T.C.A. §§ 40-30-304,-305. In this case, although the Petitioner states generally\nthat he has met the requirements of the DNA Act, he fails to identify any evidence that could\npotentially contain DNA. In other words, he fails to inform the court what evidence he seeks\nto have analyzed for the presence or absence of DNA. The State counters that no such\nevidence exists. Specifically, the State provided that “[t]here was no evidence collected, no\nunderwear or other evidence was submitted to the TBI for testing. The victims were\nexamined for evidence of physical injury but no lab tests were performed to check for\nsexually transmitted diseases.” The Petitioner’s convictions were based on genital fondling\nand performing oral sex on the victims. The post-conviction court found, and we agree, that\nno evidence existed on which to conduct DNA analysis. This court has previously held that\n“[i]n order to satisfy a petitioner’s request for DNA testing based on the Post-Conviction\nDNA Analysis Act, there must be evidence in existence which is amenable to DNA testing.”\nSee William Hackworth v. State, No. M2003-02148-CCA-R3-PC, 2004 WL 1686610, at *3\n(Tenn. Crim. App. July 28, 2004)(citing Ricky Flamingo Brown, Sr. v. State, No.\nM2002-02427-CCA-R3-PC, 2003 WL 21362197, (Tenn. Crim. App. June 13, 2003), perm.\napp. denied (Tenn. 2003)). The record is devoid of allusions to physical evidence which\ncould be tested. On this ground alone, the Petitioner has failed to meet his burden, and we\nconclude that the record supports the post-conviction court’s summary dismissal of the\npetition. See Ashad R.A. Muhammad Ali, a/k/a Louis Webb v. State, No. M2005-01137-\nCCA-R3-PC, 2006 WL 1626652, at *3 (Tenn. Crim. App. June 2, 2006) (affirming the post-\nconviction court’s dismissal of the petition for DNA testing because the evidence could not\nbe found); Waldo Wiggins, Jr. v. State, No. W2004-02397-CCA-R3-CO, 2005 WL 3059437,\nat *9 (Tenn. Crim. App. Nov. 10, 2005), perm. app. denied, (Tenn. Mar. 20, 2006) (affirming\nthe post-conviction court’s denial of DNA testing where the sample from the gun was\nconsumed during Tennessee Bureau of Investigation testing).\n\n\n Based on our review of the record, we additionally conclude that the Petitioner has\nfailed to show that a reasonable probability exists that he would not have been prosecuted\nor convicted if exculpatory results had been obtained through DNA analysis and that analysis\nof the evidence would produce DNA results which would have rendered the Petitioner’s\nverdict or sentence more favorable if the results had been available at the proceeding leading\nto the judgment of conviction. T.C.A. § 40-30-304(1),-305(1). The Petitioner failed to\ninclude any support for the statutory elements under either section of the Act in his petition\nfor post-conviction relief. Accordingly, we affirm the judgment of the post-conviction court.\n\n\n CONCLUSION\n\n -5-\n\fFinding no error, we affirm the judgment of the Criminal Court of Shelby County.\n\n\n ______________________________\n CAMILLE R. McMULLEN, JUDGE\n\n\n\n\n -6-\n\f", "ocr": false, "opinion_id": 1045765 } ]