STATE of North Carolina v. Howard Lee ALSTON.
*635 Rufus L. Edmisten, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., Raleigh, for the State.
J. Henry Banks, Henderson, and Willie S. Darby, Oxford, for defendant-appellant.
The principal issue in this case is whether the trial court erred in allowing testimony that one of the victims told Sheriff Dement that he and the defendant had engaged in an argument two days before the shooting. For the reasons stated herein, we find no reversible error.
The evidence presented by the State tended to show that Robert Warren Foster operated a store known as R.W. Foster's Grocery in the Kearney Community in Franklin County. On 9 February 1981, Robert Foster and Jack Franklin Stainback were in Foster's store. They were last seen alive at approximately 8:35 p.m. Sometime between 8:45 and 8:55 p.m. law enforcement officials received a call that two people had been shot at R.W. Foster's Grocery. Upon arriving at the scene, Deputy Astor Bowen and Deputy Leroy Terrell discovered the bodies of Foster and Stainback. An autopsy disclosed that both victims had died from gunshot wounds inflicted from a distance of two to four feet.
The State's principal witness was Mrs. Florence Hicks, who testified as follows: On 9 February 1981 she was looking at a trailer parked directly across Highway 401 from R.W. Foster's Grocery. She had known the defendant for nine or ten years. On that night, she heard some shots and ran outside toward the store. She stopped at the post on the path to the store. She heard noises from a person named Mann coming across the highway. He was calling Faye. He yelled to Faye that the defendant, Howard Alston, had shot Mr. Bobby (referring to Robert Foster) and Jack (referring to Jack Stainback). The defendant was following Mann down the path and the defendant said that he had killed Mr. Bobby and Jack. He said he was getting Bobby out of the way but that he did not want to do anything to Jack. He said that he had to do it to Jack so he would keep his mouth shut. The defendant said that he did not take any money because he did not want any money. He had a gun in his hand at the time of these statements. The defendant told Mrs. Hicks to keep her mouth shut. The defendant also stated that he had made sure that the victims were dead before he left the store.
Sheriff Dement was also a witness for the State. He testified over objection that he spoke to Foster two days before the killing. At that time Foster told Sheriff Dement that he and Alston had had an argument and that he was afraid that he would have serious trouble with the defendant.
The defendant testified in his own behalf and presented witnesses who supported his testimony. The defendant's evidence tended to show that on 9 February 1981 he went to Foster's store at approximately 1:00 p.m. to buy some beer. After he made his purchases, he left the store and went from there to Bernard Hawkins' house. He stayed at Hawkins' house until approximately 4:30 or 5:00 when he went to a pool room. He rode with his sister to his uncle's house which is about one and one-half miles from Foster's store. He arrived at his uncle's *636 house at 7:20 or 7:25 p.m. His uncle, George Macon, was in the house when he arrived. He remained at his uncle's house until his uncle drove him home at approximately 9:00 p.m. The defendant's mother and sister were present when the defendant arrived home. The defendant took a shower and went to bed around 9:30 p.m. and did not wake up until 11:00 p.m. when the telephone rang.
The defense also offered the testimony of Clementine Alston, the daughter of Florence Hicks and the wife of the defendant's third cousin. Clementine Alston testified that she was in the room with the State's witness Florence Hicks between the hours of 8:00 and 9:00 p.m. on 9 February 1981 and did not see her mother go outside the trailer. She also testified that she did not hear any shots and that her mother never told her that she saw the defendant on that night. John Henry Hicks, the husband of Florence Hicks, testified that his wife never told him of having seen Howard Alston on the night of 9 February 1981, nor did she say that the defendant had admitted that he had killed the two victims. The defendant also offered the testimony of other residents of the trailer park who were home on the night of 9 February 1981 but did not hear any shots or yelling.
The defendant first assigns as error the admission of testimony by Sheriff Dement concerning statements made by one of the victims shortly before his death. The sheriff testified over objection that Foster spoke to him about the defendant at approximately 3:00 p.m. on 7 February, 1981, two days before Foster was killed. Foster described to the sheriff trouble he was having because the defendant was selling drugs in the parking lot of Foster's store. He told the sheriff that he had confronted the defendant on that day and told him to stop selling drugs and that he and the defendant had a serious argument at that time. Foster further told the sheriff that he was afraid that he would have serious trouble with the defendant Alston. The trial court admitted this testimony for limited purposes over the objection of the defendant. The State tendered similar testimony by the sheriff concerning a statement made to him by Foster approximately thirty days before Foster's death in which Foster described a previous confrontation with the defendant. The tendered testimony by the sheriff with regard to the statement purportedly made to him by the victim thirty days prior to the killing was excluded by the trial court. For the reasons set forth below, we find no error in the admission of testimony by the sheriff concerning the statement made to him by the victim/declarant, Foster, two days prior to the killing.
The testimony of the sheriff as to the contents of the statement made by Foster two days prior to the killing was introduced to prove the truth of some of the matters asserted in Foster's statement. It was introduced to show that the defendant and the victim, Foster, had a serious argument two days before Foster was killed. The sheriff's testimony in this regard was hearsay evidence and as such was not admissible unless within the parameters of an exception to the hearsay rule. In State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971), we held that hearsay testimony is admissible when two factors are shown to exist: (1) necessity, and (2) a reasonable probability of truthfulness. As in Vestal, the death of the victim/declarant in the present case meets the necessity requirement. Thus, we turn to a consideration of the reasonable probability of truthfulness of the victim's statement which is the second factor to be considered under the authority of Vestal.
In considering the factor of the reasonable probability of truthfulness in Vestal, we held that the victim's statements to his wife concerning the destination of his business trip and his traveling companion were part of the everyday routine and orderly arrangement of one's domestic and business affairs. Because of the nature of these statements by the victim in Vestal, this Court held that the statements presented a sufficient probability of truthfulness to be admissible in evidence. In the present case, the statement by the victim Foster was in the form of a report by a store owner of *637 alleged criminal activity and resulting ill will by the defendant toward the store owner two days before the store owner was shot dead. The statement also indicated that the argument between the defendant and the victim occurred at the same store at which the murders were committed. Such facts standing alone do not, of course, guarantee that the statements made to Sheriff Dement by Foster shortly before his death were true. They do, however, indicate a reasonable probability of truthfulness by the victim/declarant, with the ultimate issue of truthfulness to be determined by the jury.
In Vestal, we recognized that statements made by one spouse to another as to the destination of and traveling companions on a business trip may not always be true. Having recognized the possibility of falsity of such statements, however, this Court found a reasonable probability of truthfulness of such statements. State v. Vestal, 278 N.C. 561, 588, 180 S.E.2d 755, 773 (1971). Similarly, we recognize the possibility of falsity but find a reasonable probability of truthfulness of statements made by a victim/declarant to a law enforcement officer shortly before the victim's death which described ill will between the defendant and the victim and the victim's fear of the defendant. For the foregoing reasons, we have determined that the testimony of Sheriff Dement was within a recognized exception to the hearsay rule.
Having determined that the testimony of Sheriff Dement was not excluded by the hearsay rule, we must turn our attention to the question of whether this testimony was otherwise inadmissible. Evidence which does not violate the hearsay rule will nevertheless be excluded unless it is shown that it is relevant to an issue arising in the case in question. Some courts have indicated that all expressions of fear of the defendant by murder victims are relevant and admissible against the defendant when in human experience they are sufficiently reliable. State v. Gause, 107 Ariz. 491, 489 P.2d 830 (1971), vacated on other grounds, 409 U.S. 815, 93 S. Ct. 192, 34 L. Ed. 2d 71 (1972). Other courts allow the admission of such evidence only if a limiting instruction is given and only after a careful weighing of the probative value and the prejudicial effect of the statements of the victim. United States v. Brown, 490 F.2d 758 (D.C.Cir., 1973) (statements improperly admitted). Evidence of a victim's fear of the defendant is subject to misuse. Therefore, the naked assertion by a victim prior to his death that he fears the defendant should not be admitted into evidence absent some evidence tending to show a factual basis for such alleged fear. While the use of statements of the victim tending to show ill will between the defendant and the victim or fear of the defendant by the victim must be carefully scrutinized before being admitted into evidence, this Court has long allowed evidence of ill will between the defendant and the victim as tending to show premeditation and deliberation, motive and intent. State v. Smith, 290 N.C. 148, 226 S.E.2d 10, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d 301 (1976); State v. Fountain, 282 N.C. 58, 191 S.E.2d 674 (1972); State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. Creech, 229 N.C. 662, 51 S.E.2d 348 (1949); State v. Artis, 227 N.C. 371, 42 S.E.2d 409 (1947). Further, when the details of a prior dispute tend to demonstrate the ill will between the defendant and the victim, the details and the apparent reason for such ill will may be shown. 1 WHARTON'S CRIMINAL EVIDENCE, § 177 (13th ed. 1972). Additionally, evidence of motive for the commission of a crime may be admitted even though motive is not an element of the crime. State v. Ruof, 296 N.C. 623, 252 S.E.2d 720 (1979). The mere fact that such evidence shows that the defendant committed another crime will not be grounds for its exclusion. See State v. Cherry, 298 N.C. 86, 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941, 100 S. Ct. 2165, 64 L. Ed. 2d 796 (1980).
In the present case, Sheriff Dement's testimony concerning the victim's statement shortly prior to his death tended to show ill will between the defendant and the victim and was admissible. Even if *638 Foster was not telling the truth about the facts surrounding the argument he stated he had had with the defendant, the fact that he reported to the sheriff that the defendant was selling drugs on his property might well be viewed as tending to show ill will between Foster and the defendant. The sheriff's testimony was hearsay but within the well-founded exception to the hearsay rule permitting the admission of hearsay when the factors of necessity and reasonable probability of truthfulness are present. The testimony was relevant to show ill will between the victim and the defendant and as tending to show a resulting intent, malice, premeditation and deliberation on the part of the defendant. The trial court carefully weighed the probative value of the testimony against its prejudicial effect and made detailed findings and conclusions in this regard. The trial court then admitted the sheriff's testimony with regard to the statement by the victim/declarant, but only after giving a proper limiting instruction to the jury. The trial court correctly instructed the jury that the jury was to consider the sheriff's testimony concerning the statement of the victim/declarant only to the extent the jury might find that it indicated motive, intent or ill will on the part of the defendant. This limiting instruction was essential, as the use of hearsay testimony concerning a statement by a victim prior to his murder is not unlimited. It should be admitted only to show the ill will between the defendant and the victim and the inferences which properly may be drawn therefrom. The trial court properly instructed the jury in this regard in the present case, and we find no error in the admission of the sheriff's testimony concerning the prior statement of the victim.
The defendant's next assignment of error concerns the use by the State in rebuttal of statements made by the defendant. The defendant claims that it was error to admit these statements into evidence. We find no error.
Prior to trial, the defendant made a discovery motion which resulted in a court order pursuant to G.S. 15A-903(a)(1) and (2) requiring the State to permit the defendant to inspect and copy any relevant written or recorded statements made by the defendant which the State intended to offer into evidence at the trial. During the rebuttal testimony of North Carolina State Bureau of Investigation Agent J.F. Walker, the State attempted to introduce into evidence the written notes made by Agent Walker of a statement that the defendant made to the agent on 27 February 1981. The defendant objected to the introduction of this evidence and the court held a voir dire to determine admissibility. Following direct and cross examination of Agent Walker on voir dire, the court heard arguments on the admissibility of the statement. The defendant based his objection on the grounds that the statement was incomplete because Agent Walker did not report everything the defendant said, that the defendant was not asked to verify the accuracy of the statement at the time Agent Walker made his notes, that the defendant did not sign the statement and that the statement only corroborated and was not inconsistent with the defendant's testimony at trial. The State pointed out that the statement was not made during a custodial interrogation and contended the statement was inconsistent with the defendant's testimony. Specifically, the defendant told Agent Walker that he was at his grandfather's home on the night of 9 February 1981, rather than at his uncle's house, and that the defendant returned to his own home at 8:30 p.m. rather than around 9:00 p.m. as he had testified during trial. Upon the completion of the voir dire testimony and arguments, the trial court made findings and conclusions and admitted testimony concerning the defendant's statement into evidence over the defendant's objection.
(1) Order the party to permit the discovery or inspection, or (2) Grant a continuance or recess, or (3) Prohibit the party from introducing evidence not disclosed, or (4) Enter other appropriate orders.
It is important to note that while the statute sets out possible curative actions, it does not require the court to impose any sanction. Which sanction, if any, is the appropriate response to a party's failure to comply with a discovery order is entirely within the sound discretion of the trial court. The decision of the trial court will not be reversed absent a showing of abuse of that discretion. State v. Stevens, 295 N.C. 21, 37, 243 S.E.2d 771, 781 (1978).
In the case sub judice, the record is devoid of any indication that the court abused its discretion. The defendant objected to the admission of the evidence and the court properly held a voir dire. At no time during the voir dire examination or argument did the defendant request the imposition of a sanction under G.S. 15A-910. In fact, at no time did the defendant inform the court of the alleged failure of the State to comply with the discovery order. The purpose of the discovery procedures, authorized by N.C. General Statutes 15A, Article 48 (1975) is to protect the defendant from unfair surprise. State v. Stevens, 295 N.C. 21, 37, 243 S.E.2d 771, 781 (1978). When the court is not informed of any potential unfair surprise, the defendant cannot properly contend that the trial court's failure to impose a sanction is an abuse of discretion. See State v. Jones, 295 N.C. 345, 245 S.E.2d 711 (1978); State v. Hill, 294 N.C. 320, 240 S.E.2d 794 (1978).
Evidence has been received as corroboration tending to show that at an earlier time the witness, Florence Wright Hicks, made a statement to J.F. Walker consistent with her testimony at this trial; That the witness, Florence Wright Hicks, made a statement to Deputy Sheriff Wesley Denton consistent with her testimony at this trial; and That the witness, Harry Pearce made a statement to J.F. Walker consistent with his testimony at this trial. You must not consider such earlier statements as evidence of the truth of what was said at the earlier time because it or they were not made under oath at this trial. If you believe that such earlier statements were made and that they are consistent with the testimony of the witness at this trial, then you may consider this together with all other facts and circumstances bearing upon the witness's truthfulness in deciding whether you will believe or disbelieve his, her or their testimony at this trial.
The defendant's contention that this instruction was improper is without merit.
The instruction given by the court is identical to the North Carolina Pattern Jury Instructions on corroborative evidence. N.C.P.I.CRIM. § 105.05 (June, 1970). This exact instruction was approved by the Court of Appeals in State v. McNeil, 46 N.C.App. 533, 536-37, 265 S.E.2d 416, 419, cert. denied, 300 N.C. 560, 270 S.E.2d 114 (1980), and similar instructions were approved by this Court in State v. Detter, 298 N.C. 604, 630-31, 260 S.E.2d 567, 586 (1979). The instruction specifically states that the jury should consider the evidence "[i]f you believe such earlier statements were made and that they are consistent with the testimony of the witness at this trial." Therefore, the instruction correctly placed the onus on the jury to determine whether such statements were consistent with prior testimony of the witnesses. In fact, an instruction on corroboration omitting the cautionary *640 language "if you find that this statement does corroborate his/her testimony" has been held to be sufficient. State v. Detter, 298 N.C. 604, 630, 260 S.E.2d 567, 585 (1979); State v. Case, 253 N.C. 130, 136, 116 S.E.2d 429, 433 (1960), cert. denied, 365 U.S. 830, 81 S. Ct. 717, 5 L. Ed. 2d 707 (1961). We find no prejudicial error in this instruction.
At this time, ladies and gentlemen of the jury, the objection is overruled. The evidence which you are about to hear is being admitted for the limited purpose of corroboration. That is to the extent that you find that it corroborates the previous testimony of the witness made under oath at this trial, you will consider it for that purpose and that purpose alone.
Ladies and gentlemen of the jury, the following is being admitted for the limited purpose of corroboration. I have previously instructed you with the use with regard to the word, corroboration. You will at this time recall that instruction.
Ladies and gentlemen of the juryobjection overrulednow, the following evidence is being admitted for the limited purpose of corroboration. That is to the extent that you find that the testimony of this witness corroborates the testimony of a previous witness given under oath at this trial, you will consider it for that purpose and that purpose alone.
Finally, following the end of Agent Walker's corroborative testimony, the court instructed the jury, "Now, ladies and gentlemen of the jury, this ends the point at which the evidence was admitted for the limited purpose of corroboration with respect to the witness, Harry Pearce."
The defendant bases his assignment of error on State v. McMillan, 55 N.C.App. 25, 284 S.E.2d 526 (1981). In that case, the trial court instructed that the testimony should be considered if it corroborates the testimony of "a witness" or "a previous witness." The trial court in McMillan never specified which witness the testimony could corroborate. The Court of Appeals held that these instructions were erroneous, albeit harmless error, because the limiting instruction given did not clearly charge the jury that it was to consider the witness's statement only as corroboration of her earlier testimony. Id. at 30, 284 S.E.2d at 530.
A prior consistent statement by a witness is admissible only to corroborate the trial testimony of the witness who made the statement. State v. Miller, 288 N.C. 582, 596, 220 S.E.2d 326, 336 (1975). While the instructions in the present case were not perfect, they were sufficient to indicate to the jury the witness to whom the corroborative testimony was to relate. The instruction prior to Agent Walker's testimony stated that the testimony should be considered only if the jury found that "it corroborates the previous testimony of the witness." (Emphasis added). Additionally, the court informed the jury that "at a later time during my instructions to you, I will give you more detailed instructions with regard to the word, corroboration, and at that time you will recall the testimony which you are about to hear." The instructions *641 as to Deputy Sheriff Denton's testimony asked the jury to recall the previous corroborative instruction. The instruction as to Agent Walker's rebuttal testimony concerning a prior statement by witness Harry Pearce consistent with Pearce's testimony at trial is the most troublesome. The court stated that the testimony should be considered as corroborative if the jury found that "the testimony of this witness corroborates the testimony of a previous witness ...." (Emphasis added). While this form of the instruction may be ambiguous, the court later clarified its meaning. In its instruction before the testimony, the court stated again that a more detailed instruction and definition of corroboration would be given later. Following the testimony, the court removed all ambiguities as to the purpose for which the evidence was admitted. The court stated that "the evidence was admitted for the limited purpose of corroboration with respect to the witness, Harry Pearce." (Emphasis added). The court could not have been more specific as to which prior witness's testimony this evidence could be considered corroborative.
Further, the trial court in its instructions, specifically discussed in detail the corroborative evidence admitted. The corroborative testimony of each of the witnesses was referred to by both the name of the corroborative witness and the name of the witness who made the prior statement to be corroborated. Viewing the instructions in their entirety, we find no error in the instructions on corroborative evidence.
By his fifth assignment of error, the defendant contends that he is entitled to a new trial based on the court's error in denying a portion of his pretrial discovery motion and the State's failure to provide certain requested information. The defendant's brief on this assignment, when compared to the record, is convoluted at best. The court denied the defendant's request for several items. The specific items and the court's denial of them were not referred to or included in the defendant's assignments of error and therefore any grounds for appeal as to these items are deemed abandoned. Rule 28(a), N.C.Rules of App. Pro.; State v. Fowler, 285 N.C. 90, 203 S.E.2d 803 (1974), death sentence vacated, 428 U.S. 904, 96 S. Ct. 3212, 49 L. Ed. 2d 1212 (1976). From the assignments and exceptions as gleaned from the record, we find no error.
The defendant's pretrial discovery motion requested the court to order the State to make available certain evidence and information. Some of these requests were granted. Several of the paragraphs in the discovery motion and in the assignment of error referred to the identity of the State's prospective witnesses. Specifically, in his pretrial motion the defendant requested a list of all of the State's witnesses, the names of all persons with some knowledge of facts of the case against the defendant and all the statements of all persons interrogated or interviewed during the investigation. There is no common law right to discovery in criminal cases. State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976); State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334, cert. denied, 377 U.S. 978, 84 S. Ct. 1884, 12 L. Ed. 2d 747 (1964). The categories of information discoverable from the State are contained in G.S. 15A-903. While the defendant couched his request in varying forms, the defendant in these several requests was attempting to obtain a list of the State's witnesses and their statements. A defendant is not entitled to a list of the State's witnesses. State v. Moore, 301 N.C. 262, 271 S.E.2d 242 (1980); State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979); State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977); State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); State v. Tatum, 291 N.C. 73, 229 S.E.2d 562 (1976).
Documents and Tangible Objects. Upon motion of the defendant, the court must order the solicitor to permit the defendant to inspect and copy or photograph books, papers, documents, photographs, motion pictures, mechanical or electronic recordings, tangible objects, or *642 copies or portions thereof which are within the possession, custody, or control of the State and which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belonged to the defendant.
Standing alone, this provision would appear to require the State to disclose at least any written statements. This section is, however, restricted by G.S. 15A-904(a), which states: "Except as provided in G.S. 15A-903(a), (b), (c) and (e), this Article does not require the production of ... statements made by witnesses or prospective witnesses of the State to anyone acting on behalf of the State." Therefore, any statements made to law-enforcement officers are expressly excluded from the discoverable evidence. The trial court did not have authority to order the State to disclose either the names of the State's witnesses or their statements.
The defendant in his brief assigned as error the failure of the trial court to grant his discovery motion with regard to the total and complete investigative files of all law-enforcement agencies which took part in the investigation and the names and addresses of all agents of the State involved in the investigation. As to the names of the agents who participated in the investigation, as with the names of the witnesses, there is no statutory authority for the granting of this motion. In regard to the request for the total and complete investigative files, it should be noted that no one paragraph of the Motion for Discovery includes such a request; therefore it would seem that the defendant is admitting that the disclosure of the entire investigative file was the true objective of his discovery motion. Due process does not require the State to make a complete disclosure to the defendant of all of the investigative work on a case. Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972). G.S. 15A-903(d) requires the disclosure to the defendant of all documents and tangible objects "which are material to the preparation of his defense, are intended for use by the State as evidence at the trial, or were obtained from or belonged to the defendant." This section does not alter the general rule that the work product or investigative files of the District Attorney, law-enforcement agencies, and others helping to prepare the case are not open to discovery. See the Official Commentary following G.S. 15A-904.
The defendant claims that the information sought was discoverable under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and that the failure of the State to disclose the information sought violated the defendant's right to due process by hindering his preparation of a defense. It should first be noted that Brady only requires the disclosure, upon request, of evidence favorable to the accused and not a disclosure of all evidence. Moreover, in United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the Supreme Court clarified Brady. The Court held that a general request for all Brady information or all exculpatory information does not create a prosecutorial duty to respond with the production of all information. Id. at 107, 96 S. Ct. at 2399, 49 L. Ed. 2d at 351-52. More significantly, the Court held that the Constitution does not require that the defendant be allowed a broad discovery of all of the prosecution's files. Id. at 109, 96 S. Ct. at 2400, 49 L. Ed. 2d at 353. In determining whether the suppression of certain information was violative of the defendant's right to due process, the focus should not be on the impact of the undisclosed evidence on the defendant's ability to prepare for trial, but rather should be on the effect of the nondisclosure on the outcome of the trial. Id. at 112, 96 S. Ct. at 2401, n. 20, 49 L.Ed.2d at 354-55; State v. Hardy, 293 N.C. 105, 235 S.E.2d 828 (1977). The evidence withheld must also be material. "The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish `materiality' in the constitutional sense." United States v. Agurs, 427 U.S. 97, 109-110, 96 S. Ct. 2392, 2400, 49 L. Ed. 2d 342, 353. The defendant has not *643 shown that any evidence not disclosed was "material" and what effect, if any, the nondisclosure would have had on the outcome at trial. Id. at 104, 96 S. Ct. at 2398, 49 L. Ed. 2d at 350.
The defendant's requests were clearly part of a fishing expedition intended to allow the defendant to search through the State's files and evidence in the hope of discovering any information that might aid in the preparation of a defense. We find no statutory provision or constitutional principle that would require the trial court to order the State to make available to the defendant all of the material that it had gathered in preparation for trial. State v. Davis, 282 N.C. 107, 191 S.E.2d 664 (1972); State v. McDougald, 38 N.C.App. 244, 248 S.E.2d 72 (1978).
The defendant also requested the complete criminal records of all of the State's witnesses. The defendant claims that the State's key witness, Florence Hicks, had been convicted of driving under the influence and that this information had not been revealed to the defendant. The trial court is without authority to grant such a request and the failure of the court to order the disclosure of the State's witnesses' criminal records is not violative of due process. State v. Ford, 297 N.C. 144, 254 S.E.2d 14 (1979). In fact the original draft of G.S. 15A-903 included a provision to require the State to disclose the criminal records of its witnesses, but this language was removed prior to the statute's enactment. See Official Commentary following G.S. 15A-903; State v. Brown, 306 N.C. 151, 293 S.E.2d 569 (1982). It should also be pointed out that the fact that Mrs. Hicks had been convicted of driving under the influence was brought out by the defendant on cross-examination, and the failure of the State to disclose this conviction could not have harmed the defendant.
Additionally, the defendant contends that his pretrial motion for disclosure of all agreements, rewards or benefits promised to any witness for his or her testimony was not complied with by the State. The defendant's claim is based on the testimony elicited from Mrs. Hicks during trial. Mrs. Hicks testified that she worked for the son of one of the victims and that she usually earned $3.50 an hour. She also stated that her last pay check was in the amount of $182.82 for less than one week's work. Although the defendant asked Mrs. Hicks if she worked less than 40 hours, the amount of time that she worked was never established, beyond the fact that she worked less than the full week. It is anything but clear from this evidence that Mrs. Hicks was being rewarded or compensated in any way for her testimony. Beyond this, there is no indication, other than the defendant's assertion on appeal, that the State was in any way involved with or even aware of any variance in Mrs. Hicks' pay for the period in question. Furthermore, this information was elicited on cross-examination and therefore the evidence was before the jury. The defendant's assignment of error is overruled.
The defendant next assigns as error the admission into evidence of a receipt issued by the clerk of court's office indicating a payment of $205.00 towards the cost and/or fine imposed against the defendant in another criminal case. The defendant contends that the State's exhibit was inadmissible and irrelevant and was introduced solely for the purpose of exciting prejudice against the defendant and confusing the jury.
The defendant testified that he was unemployed on the date of the murder, 9 February 1981, and that the only money that he had was the ten dollars a week that his mother gave him. He also testified that the $205.00 payment was made on 12 February 1981 to the clerk's office by his mother on his behalf. The State contends that the testimony of the deputy clerk of court and the receipt that she gave in the amount of $205.00 were properly admissible to impeach the defendant. The problem with the State's argument is that the exhibit and the testimony of the witness do not tend to impeach the defendant. The receipt indicated that it was a receipt of Howard Alston, but does not indicate that Howard *644 Alston actually paid the money. The deputy clerk of court testified that, unless requested to do otherwise, she only writes on the receipt the name of the person for whom the payment is made and that people will often make payments for someone else. She further testified that she did not remember who made the payment for Howard Alston on 12 February 1981. Therefore, the receipt had little probative value and should not have been admitted.
A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
Cf. Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 (1963).
In the present case, the defendant failed to carry his burden of showing any prejudice by the admission of the receipt. The fact of the criminal conviction had already been properly disclosed to the jury. The State's witnesses had testified that no money was taken from the grocery store in which the murders took place and Mrs. Hicks testified that when she saw the defendant he said that, although he killed the victims, he did not take anything because he was not interested in money. At most, the evidence was irrelevant but not prejudicial to the defendant.
The defendant's next assignment of error concerns the trial court's denial of his motion for a bill of particulars. The defendant made two motions. The first motion was included in the record on appeal and was made on 1 June 1981 and was properly denied in the court's pretrial order of 3 July 1981. The first motion requested "all events and circumstances surrounding the alleged homicide of ROBERT W. FOSTER and JACK STAINBACK, JR. and the defendant's alleged participation therein." G.S. 15A-925(b) requires that a motion for a bill of particulars "request and specify items of factual information desired" and G.S. 15A-925(c) specifies that "[n]othing contained in this section authorizes an order for a bill of particulars which requires the State to recite matters of evidence." The defendant's request is quite general and the granting of it would require the State to recite matters of evidence. The granting of a motion for a bill of particulars is within the discretion of the trial court and is not subject to review except for palpable and gross abuse of the court's discretion. State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979). We find that the court did not abuse its discretion.
Following the court's denial of his first motion, the defendant filed another motion for a bill of particulars. The trial transcript includes the arguments of counsel on this motion and the court's order denying specific paragraphs of the motion. However, the defendant's actual motion was not included in the record on appeal.
It is the appellant's duty and responsibility to see that the record is in proper form and complete. Rule 9(b)(3)(v) and (vii), N.C.Rules of App.Pro.; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 *645 (1969), death sentence vacated, 403 U.S. 948, 91 S. Ct. 2283, 29 L. Ed. 2d 859 (1971). From the record before us, we cannot, without engaging in speculation, determine the substance of the specific paragraphs of the motion that were denied by the trial court. The trial court only referred to the motion by the labeled paragraphs and denied each on various legal theories. "An appellate court is not required to, and should not, assume error by the trial judge when none appears on the record before the appellate court." State v. Williams, 274 N.C. 328, 333, 163 S.E.2d 353, 357 (1968).
Since the motion is not before this Court, the defendant's assignment of error amounts to a request that this Court assume or speculate that the trial judge committed prejudicial error in his ruling. See State v. Cockrell, 230 N.C. 110, 52 S.E.2d 7 (1949). While we are not compelled to do so, due to the nature of this case we have reviewed the record with regard to this assignment of error. To the extent that the court's ruling can be gleaned from the arguments of counsel and the court's order, we find no error in the denial of the defendant's second motion for a bill of particulars.
Finally, the defendant assigns as error the trial court's denial of his motion for nonsuit. The test applied in a criminal action to determine the sufficiency of the evidence is the same for a motion for nonsuit, dismissal or directed verdict. State v. Locklear, 304 N.C. 534, 284 S.E.2d 500 (1981). The test is whether substantial evidence of all material elements of the offense charged was presented. In applying this standard, all of the evidence is to be considered in the light most favorable to the State and the State is afforded every reasonable intendment and inference drawn from the evidence. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
The State presented evidence of statements made by the defendant admitting that he killed both victims. According to the State's evidence the defendant killed Foster and then killed Stainback to prevent him from reporting the first killing. This evidence was presented through the State's witness, Florence Hicks. The credibility of the witness and the weight to be given to her testimony are questions for the jury to resolve. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). The evidence presented, taken in the light most favorable to the State, is sufficient to withstand the defendant's motion for nonsuit. The motion was properly denied.


SPO1 LORETO NERPIO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.
This is a Petition for Review on Certiorari2 under Rule 45 assailing the December 3, 2001 Decision3 of the Court of Appeals (CA) and its September 5, 2002 Resolution4 which denied petitioner's Motion for Reconsideration in CA-G.R. CR No. 21493 entitled People of the Philippines v. SPO1 Loreto Nerpio. The CA affirmed the October 20, 1997 Decision5 of the Caloocan City Regional Trial Court (RTC), Branch 122, convicting petitioner of homicide in Criminal Case No. C-46871.
During arraignment on June 29, 1994, petitioner, assisted by his counsel,7 pleaded not guilty to the charge.8 Thereafter, trial ensued.
On October 3, 1993, petitioner SPO1 Loreto Nerpio, a member of SWAT-Intelligence Investigation Division in Sangandaan, Caloocan City, held a children's birthday party for his son at his residence at No. 13 Milagrosa Street, Bagong Barrio, Caloocan City. At about eleven (11) o'clock in the morning to twelve (12) noon, Mario Salazar and Kid Espiritu passed by petitioner's house. Petitioner then invited Salazar and Espiritu to join him and his other guests in their drinking session. Salazar left petitioner's house at around two (2) o'clock in the afternoon.
Thereafter, Nelly Villanueva, who was then waiting for a friend along Pita Street, saw Salazar walking along Tindalo Street. She also saw a man emerge from the same street who called Salazar twice. Salazar looked back, waived his right hand, and approached the man who called his name. When Salazar reached the man, the latter placed his arm over Salazar's shoulder, poked a gun at the right side of Salazar's neck, and fired it. Salazar slumped on a wall at the side of Tindalo Street. Salazar then attempted to escape but four men appeared and mauled him. Upon reaching the corner of Pita and Tindalo Streets, Salazar was shot several times and died.
The autopsy report of Dr. Florante Baltazar revealed that Salazar died of multiple gunshot wounds. He found five (5) gunshot woundsthree (3) on the head area and two (2) on the body. He also discovered one hematoma on the victim's right eye and multiple abrasions on the right side of his body.
During trial, Villanueva identified petitioner as the malefactor. However, petitioner denied the imputation and claimed alibi as defense. He maintained that on the day of the crime, he never left his house until after he heard about a shooting incident involving his cousin and Salazar. When he rushed to the scene of the crime, he saw that Salazar was already dead.
WHEREFORE, judgment is hereby rendered CONVICTING the accused, SPO1 LORETO NERPIO of the crime of Homicide under Art. 249 of the Revised Penal Code, as amended and hereby sentences him to suffer the penalty of TWELVE (12) YEARS as minimum to TWENTY (20) YEARS as maximum, with accessory penalties prescribed by law and to pay the heirs of the victim Mario Salazar the sum of [PhP] 50,000 as indemnity for the death of the said victim and to pay the amount of [PhP] 40,000 as actual and compensatory damages and to pay the costs.
Petitioner appealed to the CA. However, as earlier stated, the CA dismissed the appeal.
Whether or not the Honorable Court of Appeals seriously erred in affirming the conviction of petitioner on the basis of the lone testimony of prosecution witness Nely Villanueva.
Applying the foregoing guidelines in this case, we find no reason to overturn the factual findings of the trial and appellate courts. A careful review of the records and the transcripts shows that the RTC correctly gave credence to Villanueva's testimony.
In the present case, absent any allegation of any justifying and qualifying circumstances, the prosecution had the burden of proving the death of the victim and the responsibility of the person who caused such death. Dr. Baltazar testified to the fact of Salazar's death. However, petitioner contends that the prosecution failed to establish that he was the malefactor. He argues that testimony of the prosecution's lone witness to the crime is not credible.
In the present case, the geographical proximity of petitioner to the scene of the crime at the time of its commission was clearly established by the prosecution. Petitioner claims that at the time of the alleged killing, he was at home hosting a party. However, he also testified that it was only 150 meters away from the crime scene. He even admitted that he went to the crime scene but only after the shooting took place. Apparently, petitioner failed to show, by clear and convincing proof, that it was physically impossible for him to have been at the locus criminis.
Also, denial is a negative, self-serving evidence that cannot prevail over the positive and categorical assertion of a credible witness that accused perpetrated the crime.28 In this case, petitioner has not given strong evidence of his inculpability.
To stress, the positive assertions of the prosecution witness deserve more credence and evidentiary weight than the negative averments of the accused. Certainly, the testimony of a single eyewitness, if positive and credible, is sufficient to support a conviction29 for homicide.
WHEREFORE, the instant petition is DENIED for failure to show that a reversible error had been committed by the appellate court. The December 3, 2001 Decision and September 5, 2002 Resolution of the CA in CA-G.R. CR No. 21493 and the October 20, 1997 Decision of the Caloocan City RTC, Branch 122 in Criminal Case No. C-46871 are AFFIRMED. Costs against petitioner.
1 21 Am Jur 2d, Alibi, - 136, pp. 205-206 (2nd ed., 1965).
3 Id. at 47-63. The Decision was penned by Associate Justice Perlita J. Tria Tirona and concurred in by Associate Justices Ramon A. Barcelona and Bernardo P. Abesamis.
8 Supra note 6, at 15.
10 Supra note 2, at 60.
12 Supra note 2, at 33; original in capital letters.
13 People v. Galido, G.R. NOS. 148689-92, March 30, 2004, 426 SCRA 502, 513; People v. Penaso, G.R. No. 121980, February 23, 2000, 326 SCRA 311, 319.
18 People v. Sancha, G.R. NOS. 131818-19, February 3, 2000, 324 SCRA 646, 654.
19 People v. dela Cruz, G.R. No. 131035, February 28, 2003, 398 SCRA 415, 431; citing People v. Estorco, G.R. No. 111941, April 27, 2000, 331 SCRA 38, 51.
20 Supra note 2, at 50-60.
21 L. Reyes, The Revised Penal Code Book II 431 (13th ed., 1993).
22 People v. Malejana, G.R. No. 145002, January 24, 2006, 479 SCRA 610, 624.
23 People v. Werba, G.R. No. 144599, June 9, 2004, 431 SCRA 481, 495; People v. Malones, G.R. NOS. 124388-90, March 11, 2004, 425 SCRA 318, 339.
24 People v. Agomo-o, G.R. No. 131829, June 23, 2000, 334 SCRA 279, 301.
25 People v. Abendan, G.R. No. 131813, September 29, 2000, 341 SCRA 404, 413; People v. Fabro, G.R. No. 109578, August 27, 1997, 278 SCRA 304, 310.
26 People v. Valdez, G.R. No. 127753, December 11, 2000, 347 SCRA 594, 602.
27 People v. Manzano, G.R. No. 138303, November 26, 2001, 370 SCRA 515, 528.
28 People v. Bulan, G.R. No. 143404, June 8, 2005, 459 SCRA 550, 576; People v. Espinosa, G.R. No. 138742, June 15, 2004, 432 SCRA 86, 100; People v. Layugan, G.R. NOS. 130493-98, April 28, 2004, 428 SCRA 98, 115.
29 People v. Pascual, G.R. No. 127761, April 28, 2000, 331 SCRA 252, 262; People v. Pirame, G.R. No. 121998, March 9, 2000, 327 SCRA 552, 563.


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In recent works, we demonstrated the accuracy and physical relevance of a highly simplified reverse-engineering analytical model for a parallel-aligned liquid crystal on silicon devices (PA-LCoS). Both experimental measurements and computational simulations applying the rigorous split-field finite difference time domain (SF-FDTD) technique led to this conclusion in the low applied voltages range. In this paper, we develop a complete rigorous validation covering the full range of possible applied voltages, including highly non-linear liquid crystal (LC) tilt angle profiles. We demonstrate the applicability of the model for spectral and angular retardation calculations, of interest in spatial light modulation applications. We also show that our analytical model enables the calculation of the retardance for novel PA-LC devices as a function of the LC compound and cell gap, becoming an appealing alternative to the usual numerical approaches for PA-LC devices design.
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Fig. 1 Diagram for the PA-LC cell considered in the model proposed.
Fig. 2 LC director tilt angle profiles across the thickness of the cell and for various voltages.
Fig. 3 Retardance measurements obtained in the SF-FDTD simulated experiment for 18 wavelengths and 61 voltages and the incidence angles: (a) 3°, (b) 25°, (c) 35°, and (d) 45°.
Fig. 4 Retardance simulated measurements for the various incidence angles (in the legend) and for the wavelengths: (a) 633 nm, (b) 532 nm, and (c) 473 nm.
Fig. 5 SF-FDTD experiment (dots) and theoretical fitting with the proposed simplified model (continuous line) for the wavelengths 633, 532 and 473 nm and for incidence at: (a) 3°; (b) 35°.
Fig. 6 Tilt angle as a function of voltage.
Fig. 7 Difference between theoretical and SF-FDTD-experimental retardance normalized by the theoretical value for wavelengths 633, 532 and 473 nm and for incidence at: (a) 3°, and (b) 35°.
Fig. 8 SF-FDTD experiment (dots) and prediction with the proposed simplified model (continuous line) for the wavelengths 633, 532 and 473 nm and for incidence at: (a) 25°; (b) 45°.
Fig. 9 Difference between predicted and SF-FDTD experimental retardance normalized by the predicted value for wavelengths 633, 532 and 473 nm and for incidence at: (a) 25°, and (b) 45°.
Fig. 10 Relation for α max (sine profile), (a) vs. tilt angle of an equivalent homogenous slab and, (b) vs. voltage.
Fig. 11 Comparison between the realistic and the sine tilt profiles for a series of voltages.
Fig. 12 Tilt angle as a function of gray level for the commercial PA-LCoS in .
Fig. 13 From the experimental data for the commercial PA-LCoS in . Relation between (sine profile), (a) vs. tilt angle of an equivalent homogenous slab and, (b) vs. gray level (applied voltage).
Fig. 14 Sine tilt profiles as a function of the gray level.
Fig. 15 Proposed simplified model (continuous line) and SF-FDTD experimental (dots) retardance versus wavelength and for three incidences. (a) Maximum and (b) minimum retardance values.
Fig. 16 Retardance dynamic range. Proposed simplified model (continuous line) and SF-FDTD experimental (dots) retardance versus wavelength and for three incidences.
Fig. 17 With the simplified model, usage of the true OPL to calculate the retardance. Normalized retardance difference in the: (a) Off-state, against the true off-state retardance, and (b) On-state, for an angle of incidence of 45°, against the calculation using the fitted OPL.
Fig. 18 Values for OPD, in (a), and OPL, in (b), for two LC compounds and two temperatures, for a cell gap of 2 µm. Data points in the plots are the sample values use to fit the extended Cauchy relation across the visible.
Fig. 19 Using the proposed simplified model, simulated retardance at 633 nm, at incidence angles: (a) 0°; (b) 45°.
Fig. 20 Using the proposed simplified model, simulated retardance at 473 nm, at incidence angles: (a) 0°; (b) 45°.
Table 1 Values for the parameters used to simulate the performance of the PA-LC cell.
Table 2 Values for the retardance in the off-state.
Table 3 True OPD and OPL parameters calculated from the cell gap and the indices of refraction in Table 1.
Table 4 Fitted OPD and OPL values for different values for nLC, and values for the figures of merit for the off-state χ2 and for the on-state MSE comparison between theoretical and experimental results.
Table 5 OPD and OPL parameters obtained for the commercial PA-LCoS in .
(1) Γ= 2π λ OPL cos θ LC [ 1+( OPD/ OPL ) 1+( OPD/ OPL ) cos 2 ϕ −1 ].
(4) ΔΓ= 2π λ ( OPL/d ) cos θ LC ( 1+( OPD/ OPL ) 1+( OPD/ OPL ) cos 2 ϕ −1 )Δz.
(5) Γ total hom ( θ inc , α hom )= 2π λ ( OPL cos θ LC ( θ inc ) [ 1+( OPD/ OPL ) 1+( OPD/ OPL ) cos 2 ϕ( θ inc , α hom ) + 1+( OPD/ OPL ) 1+( OPD/ OPL ) cos 2 ϕ( − θ inc , α hom ) −2 ] ).
Values for the parameters used to simulate the performance of the PA-LC cell.
Values for the retardance in the off-state.
True OPD and OPL parameters calculated from the cell gap and the indices of refraction in Table 1.
Fitted OPD and OPL values for different values for nLC, and values for the figures of merit for the off-state χ2 and for the on-state MSE comparison between theoretical and experimental results.
OPD and OPL parameters obtained for the commercial PA-LCoS in .

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(F) the spouse of a prisoner of war, as defined by K.S.A. 75-4364, and amendments thereto.
Notwithstanding the foregoing, the term "veteran" shall not apply to any person who retired from the active military with the pay grade of 04 or above unless the person retired due to wounds received in combat or is a disabled veteran.
(2) "Competent" means a good faith determination that the person is likely to successfully meet the performance standards of the position based on what a reasonable person knowledgeable in the operation of the position would conclude from all information available at the time the decision is made. The basis for such determination shall include experience, training, education, licensure, certification and/or other factors determined by the decision making authority as appropriate to determine the applicant's overall qualification and ability to successfully meet the performance standards of the position. The decision making authority shall document such factors prior to the initiation of the selection process.
(3) "Disabled veteran" means a person who has served on active duty in the armed forces, has been separated therefrom under honorable conditions, and has established the present existence of a service-connected disability or is receiving compensation, disability retirement benefits, or pension because of a public statute administered by the department of veterans affairs or a military department.
(b) In grateful recognition of the services, sacrifices and sufferings of veterans who served in the army, navy, air force, coast guard or marine corps of the United States in world war I and world war II, and of persons who have served with the armed forces of the United States during the military, naval and air operations in Korea, Viet Nam, Iraq, Afghanistan or other places under the flags of the United States and the United Nations or under the flag of the United States alone, and have been honorably discharged therefrom, the provisions of this section are enacted.
(c) Veterans shall be preferred for initial employment and first promotion in the state government of Kansas, and in the counties and cities of this state, if competent to perform such services. Any veteran thus preferred shall not be disqualified from holding any position in such service on account of the veteran's age or by reason of any physical or mental disability as long as such age or disability does not render the veteran incompetent to perform the duties of the position applied for. When any veteran shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a veteran of good reputation, and can competently perform the duties of the position applied for by the veteran, consider the veteran for appointment to such position, place, or employment. Within 30 days of filling a position, eligible veterans who have applied and are not hired shall be notified by certified mail or personal service that they are not being hired. Such notice also shall advise the veteran of any administrative appeal available.
(d) The provisions of this act shall not be applicable to any persons classed as conscientious objectors. The provisions of this act shall not be controlling over the provisions of any statute, county resolution or city ordinance relating to retirement, or termination on the basis of age, of employees of the state or any county or city. Whenever under any statute, county resolution or city ordinance retirement, or termination on the basis of age, of any employee is required at a certain age, or is optional with the employer at a certain age, such provisions of such statute, resolution or ordinance shall be controlling and shall not be limited by this section.
(e) All notices of job openings, if any, and all applications for employment, if any, by the state and any city or county in this state shall state that the job is subject to a veteran's preference, how the preference works and how veterans may take advantage of the preference and post a written statement of: (1) The qualifications for such position; (2) any preferred qualifications of such position; (3) performance standards for the position; and (4) the process that will be used for selection. A veteran, or a spouse who qualifies for the veteran's preference, desiring to use a veteran's preference shall provide the hiring authority with a copy of the veteran's DD214 form or the DD214 form of the veteran under which the spouse qualifies for the preference.
(f) Every employment center of the state and any city or county human resources department, if any, shall openly display documents that indicate that veterans are eligible for a preference in their initial employment and any first promotion within the employment of the governmental entity.
(g) Any veteran who alleges that a state agency, city or county has not provided the veterans preference as required by this act, after exhausting any available administrative remedy, may bring an action in the district court.
History: L. 1886, ch. 160, § 1; L. 1901, ch. 186, § 1; L. 1907, ch. 374, § 1; L. 1919, ch. 280, § 1; R.S. 1923, 73-201; L. 1945, ch. 301, § 1; L. 1951, ch. 429, § 1; L. 1970, ch. 306, § 1; L. 2008, ch. 99, § 1; July 1.

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ACP INVESTMENT GROUP, LLC, and NYPPEX HOLDINGS, LLC, Plaintiffs, v. DEXTER B. BLAKE, III, Defendant.
Defendant, Dexter B. Blake, III, brings this action under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., seeking confirmation of an arbitration award against Plaintiffs ACP Investment Group, LLC, and NYPPEX Holdings, LLC (together, "ACP"). ACP opposes Blake's motion and cross-moves to vacate in part the arbitrator's decision. For the reasons that follow, Blake's motion is granted and ACP's cross-motion is denied.
A party challenging an arbitrator's decision faces a mountain range of steep burdens. The FAA permits vacatur of an arbitration award only under four narrow circumstances: "(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made." 9 U.S.C. § 10(a).
The Second Circuit has "'consistently accorded the narrowest of readings' to this provision of law, in order to facilitate the purpose underlying arbitration: to provide parties with efficient dispute resolution, thereby obviating the need for protracted litigation." ReliaStar Life Ins. Co. of N.Y. v. EMC Nat'l Life Co., 564 F.3d 81, 85 (2d Cir. 2009) (internal citation omitted) (quoting Banco de Seguros del Estado v. Mut. Marine Office, Inc., 344 F.3d 255, 262 (2d Cir. 2003)); cf. TD Ameritrade, Inc. v. McLaughlin, Piven, Vogel Sec., Inc., 953 A.2d 726, 732 (Del. Ch. 2008) ("In fact, '[a] court's review of an arbitration award is one of the narrowest standards of judicial review in all of American jurisprudence.'" (alteration in original) (quoting Way Bakery v. Truck Drivers, Local No. 164, 363 F.3d 590, 593 (6th Cir. 2004))).
In considering a challenge to an arbitration award, "'[t]he principal question for the reviewing court is whether the arbitrator's award draws its essence' from the agreement to arbitrate, 'since the arbitrator is not free merely to dispense his own brand of industrial justice.'" ReliaStar, 564 F.3d at 85 (alteration in original) (quoting 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005)). Where the parties have agreed to submit an issue for arbitration, courts will "uphold a challenged award as long as the arbitrator offers 'a barely colorable justification for the outcome reached.'" Id. (quoting Banco de Seguros, 344 F.3d at 260). "In other words, 'as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,' a court's conviction that the arbitrator has 'committed serious error' in resolving the disputed issue 'does not suffice to overturn his decision.'" Id. at 86 (quoting United Paperworkers Int'l Union AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987)).
ACP makes several arguments in favor of vacating the portion of the Arbitrator's award determining how many of Blake's share participations had vested. First, ACP claims that the Arbitrator exceeded her powers because the issue of vesting was not within the scope of the arbitration. Second, ACP claims that the Arbitrator's decision on the vesting issue was rendered in disregard of the terms of the Employment Agreement. Finally, ACP claims that the award should be vacated due to procedural irregularities in the arbitration process. But ACP is fighting an uphill battle on downhill skis.
ACP first argues that the vesting issue was not properly before the Arbitrator because it did not derive its essence from the 2014 Employment Agreement. However, the Second Circuit has made clear that it is only "[w]hen it is clear that the arbitrator 'must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract (and not incorporated in it by reference, either . . .)'" that the determination should be set aside. In re Marine Pollution Serv., Inc., 857 F.2d 91, 94 (2d Cir. 1988) (emphasis in original) (quoting Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 184-85 (7th Cir. 1985) (Posner, J.)).
The arbitration clause in the 2014 Employment Agreement is broadly worded. It provides for jurisdiction over "[a]ny and all disputes . . . arising out of or relating to this Agreement." (Dkt. No. 15, Ex. D at 5.) The Agreement also addresses vesting in several places. It provides that upon resignation Blake shall "forfeit any and all rights in, and entitlement to . . . unvested rights, grants and awards . . . in connection with long term incentives including share participations . . . (in general, as described in the agreements provided to Employee)." (Id. at 4-5.) It also confirms that "[v]esting provisions shall be described either in the award agreement, the Company's long term performance incentive plan or its amended and restated operating agreements." (Id. at 3.) These provisions bring the vesting issue within the scope of the Agreement's arbitration clause.
Based on these considerations, the most natural conclusion is that the vesting question was squarely within the scope of the Arbitrator's authority. But at the very least, it is certainly not clear that the Arbitrator must have derived the award from something neither within nor incorporated into the Employment Agreement (the standard required to disrupt the Arbitrator's decision on this issue). See In re Marine Pollution Serv., Inc., 857 F.2d at 94.
But this brand of second-guessing runs directly counter to "the 'great deference' which must be paid to arbitral panels by federal courts." Wallace, 378 F.3d at 193 (quoting Duferco Int'l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir. 2003)). "To the extent that a federal court may look upon the evidentiary record of an arbitration proceeding at all, it may do so only for the purpose of discerning whether a colorable basis exists for the panel's award so as to assure that the award cannot be said to be the result of the panel's manifest disregard of the law." Id. "[W]hatever the weight of the evidence considered as a whole, '[i]f a ground for the arbitrator's decision can be inferred from the facts of the case, the award should be confirmed.'" Id. (second alteration in original) (quoting Fahnestock & Co., Inc. v. Waltman, 935 F.2d 512, 516 (2d Cir.1991) (internal quotation marks and citation omitted)).
Here, the Arbitrator justified her conclusion regarding the vesting status of Blake's shares based on her interpretation of an "Equity Participation Statement." In her Award, she wrote: "Blake's equity participation as of October 11, 2005 identifies his allocated share participations as being 3,061,680. Of those allocated, those available to sell are listed as 2,092,896. I agree with Claimant's view that the only reasonable construction of the 2005 Statement is that shares available to sell are vested." (Dkt. No. 15, Ex. E at 12.) She arrived at this decision after considering arguments on this issue at the arbitration hearing and weighing the 2014 Employment Agreement and numerous other documents relevant to its interpretation. She subsequently confirmed her conclusion on this question following additional, targeted briefing. The record in this case thus provides more than a colorable basis for the Arbitrator's decision, and ACP has failed to show any "egregious . . . misapplication of legal principles" sufficient to suggest manifest disregard of the governing law. Wallace, 378 F.3d at 190.
While the FAA permits vacatur where an arbitration award was obtained through fraud or undue means, 9 U.S.C. § 10(a)(1), or where the arbitrator's procedural misconduct prejudices a party, id. § 10(a)(3), the burden here is yet another steep slope for ACP to climb. To justify vacatur on the grounds of fraud or undue means, it must be "abundantly clear" that the award was procured through improper means. Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 105 (2d Cir. 2013) (quoting Karppinen v. Karl Kiefer Mach. Co., 187 F.2d 32, 34 (2d Cir. 1951)). As regards procedural irregularities, arbitrators "need not follow all the niceties observed by the federal courts." Id. (quoting Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997)). Rather, "misconduct occurs under this provision only where there is a denial of 'fundamental fairness.'" Id. (quoting Tempo Shain, 120 F.3d at 20).
Under these circumstances, the Court cannot conclude that the Arbitrator's actions were improper or that they denied ACP fundamental fairness. The Court must therefore refrain from retrospectively micromanaging the Arbitrator's capable handling of the issues properly before her.
For the foregoing reasons, Blake's motion to confirm the arbitration award is GRANTED, ACP's cross-motion to vacate in part the arbitration award is DENIED, and the arbitration award is hereby CONFIRMED.
The Clerk of Court is directed to close the motions at Docket Number 12 and Docket Number 20 and to close this case.