Dan T. Bryant (at trial) and L. Scott Grissom (at trial and on appeal), McMinnville, Tennessee, for the Appellant, Joseph A. Hale.
Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Lacy Wilber, Assistant Attorney General; Lisa Zavagiannis, District Attorney General; Tom P. Thompson, Jr., and Thomas H. Swink, District Attorneys General Pro Tem, for the Appellee, State of Tennessee.
ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L. SMITH, JJ., joined.
Robert Hastings testified that he owned the NAPA Auto Parts store and that he knew the victim, John Scott, from the store, where Hastings allowed Scott to purchase parts on credit. On May 18, 2004, Scott sent one of his employees to NAPA, where Hastings mentioned that Scott owed Hastings money. Later, Scott called the store asking that Hastings come and see him at Scott’s place of business. Hastings thought that this meeting was to arrange Scott’s payment of the money he owed to the store. When Hastings arrived, Scott motioned for Hastings to follow him into his office. There, Scott hit him with his fist. Hastings said that he did not hit Scott back but tried to stop Scott from hurting him. Hastings testified that Scott hit him two or three times, and, after Hastings was finally able to get loose from him and get into the car to leave, Scott told him that he would kill him. Hastings, who suffered minor cuts and bruises from the incident, left and went immediately to the courthouse and swore out a warrant against Scott. Hastings went back to his auto parts store and told his two sons what had happened. He also told his sons that he had sworn out a warrant against Scott and to stay away from Scott. His sons were upset, in part because Robert Hastings was sixty-three at the time of this incident and Scott was forty-two. On cross-examination, Robert Hastings agreed that he did not know how long his sons were upset by what had transpired.
Matt Hastings testified he worked at the NAPA Auto Parts store owned by his father, Robert Hastings, and he and his father were friends with the Defendant. He also knew Scott, who had done a lot of business at the store. In May 2004, Hastings learned about Scott hitting his father, which upset him, but his father told him not to retaliate. Later, during the afternoon after he learned of this incident, Matt Hastings went to the Shell gas station, where he told the Defendant what had happened between Scott and Robert Hastings. The Defendant seemed upset by Scott’s behavior and did not like the idea of a younger man hitting an older man. The Defendant and Matt Hastings went to the Defendant’s house, and the Defendant went inside for ten minutes while Hastings waited in the car. The Defendant returned to the truck carrying a revolver, which did not alarm Hastings because the Defendant often carried a gun. The two men then went to the house of Jason Smith, who was the Defendant’s friend and a NAPA employee. While at Smith’s house, the Defendant mentioned going to Scott’s house, but Hastings told him not to worry about it because his father had taken care of the problem using legal channels. The three men left and went to the house of another friend, Jimmy Bouldin, but he was not home. They stopped and talked with some of Hastings’ friends at Bouldin’s house, and Hastings stayed with his friends while the Defendant and Smith left. Hastings next saw the Defendant and Smith later that evening when they returned to Bouldin’s house reporting that the Defendant had been shot and asking him to call 911 to come to the Piney Fire Hall.
Jason Smith testified that he worked at the NAPA store and that he knew Scott was a customer there. Smith testified that he and the Defendant had been friends because they were both mechanics and would help each other in that regard. On the day of this shooting, Smith was working on a lawnmower at his house when the Defendant and Matt Hastings arrived at the house. The two asked Smith to take the Defendant to Jimmy Boles’s house, which was not an unusual request because Smith would often drive for anyone who had been drinking. The three men left Smith’s house in the Defendant’s pick-up truck and went to the Parkway South Side Market (“Market”) where the Defendant bought some beer. They then took Hastings to Jerry Bouldin’s house where he planned to help Bouldin erect a fence. After dropping off Hastings, the Defendant and Smith went to Jimmy Bouldin’s house, which was two houses away. Jimmy Bouldin was not home, so they rode around waiting for him. When they went back to his house, he still had not arrived, so Smith was going to take the Defendant home. The Defendant asked to stop to buy more beer first, and the two men returned to the Market.
Smith testified that, when the two men returned to the Market, he did not know that Scott was at the Market. He said he was unaware that the Defendant was angry with Scott, but he had heard the Defendant say that he was upset about a “young man whooping an old man.” Smith waited in the truck, with his head lying on the steering wheel, while the Defendant went into the Market. The Defendant returned with beer in a box, collected some trash, and walked toward a trash receptacle. Smith then saw the Defendant with a beer bottle and saw a beer bottle hit the driver’s side window of a black Blazer and heard glass break. Smith saw the Defendant reach inside the Blazer to the point where the Defendant’s upper shoulder was in the Blazer while his head and the rest of his body was outside the Blazer. Smith then heard a gunshot, and the Defendant fell to the ground. Smith opened the driver’s side door of the Defendant’s truck and tried to go to the Defendant, but Scott, who was in the Blazer, pointed the gun in Smith’s vicinity.
Smith testified that he got back in the pick-up truck and tried to start the engine. The Defendant had gotten up and was coming back towards the vehicle holding his stomach. Smith said that he never saw the Defendant with a gun, and he did not hear the Defendant shoot. He said that, as he was driving the truck away from the scene, the Defendant had his back toward him with his arms out the truck’s window. He reiterated that he never heard any more shots, saying his ears were ringing from the first shots fired by Scott. The first time Smith saw the Defendant with a gun was when they stopped the truck at the Piney Hall Fire Department, where the Defendant, saying he had “messed up” and had “made a mistake,” stuck the barrel of his gun into his mouth. Smith said he grabbed the gun and pulled it back. Smith went to where Matt Hastings was and asked him to call 911 because the Defendant had been shot. He went back to the fire department and waited for the ambulance and police.
On cross-examination, Smith testified that the Defendant cannot grasp objects with his right hand because his right hand was injured in a sawmill accident. Smith said he never saw the Defendant throw a beer bottle at the passenger window of Scott’s truck. He said, rather, he saw the Defendant swinging his right arm inside Scott’s vehicle. Smith was unsure whether the Defendant backed away from Scott’s Blazer before he was shot or if the shot itself pushed the Defendant backward. Smith said he had known the Defendant for thirteen or fourteen years, and the Defendant was a peaceful man with no reputation for violence. This incident, he said, was out of character for the Defendant. On redirect examination, Smith acknowledged the Defendant said on the day of the shooting that he wanted to “whip” Scott. On recross-examination, Smith clarified that the Defendant had not used Scott’s name when he mentioned wanting to “whip” someone.
Randall Mealer testified he had done some mechanic work for Scott in the past and had helped him at his house. Mealer saw Scott on May 18, 2004, when Scott stopped him while the two were driving. Scott told Mealer about an incident that upset Scott earlier in the day, and the two talked for roughly thirty minutes. At the end of this conversation, Scott said that he was going to get some gas and then go see his girlfriend. Mealer followed Scott, who was traveling south, toward the Market. Around Sullivan Sawmill, he noticed a gray Chevrolet pick-up truck that had been traveling north make a U-turn and start following Scott. Mealer then saw Scott’s Blazer and the pick-up truck both pull into the Market. Mealer testified that he was later informed what had happened at the Market, and he returned to the gas station about forty-five minutes after he had last seen Scott and the pick-up truck. There, he saw emergency personnel working on Scott, and the pick-up truck was gone.
Richard Dale Cope testified that, at the time of this shooting, he did not know the Defendant and had only met Scott one time. Cope said he was at the Mar-ket on May 18, 2004, at around 6:30 p.m. getting gas. Just as he was about to get gas, Scott pulled into the Market to get gas from the other side of the same pump. While the two pumped gas into their vehicles, they had a conversation during which Scott expressed concern about the passenger of a truck that had pulled into the Market after them. The truck, which carried two passengers, pulled in and made a U-turn. Scott asked Cope to go into the store with him, and Cope agreed. As Cope and Scott went into the Market, the passenger from the truck was leaving the Market. Inside Cope and Scott paid for their gas and then returned to their vehicles.
Cope testified that, when he got to the rear of his truck he saw the Defendant exit the gray truck and run toward Scott. Scott ran and jumped into his Blazer and slammed the door shut. The Defendant, who had a beer bottle in his right hand, grabbed Scott and went to hit him. Cope heard a gun fire, heard the Defendant say “he shot me in the gut,” and saw the Defendant fall onto the ground, where he lay for ten or fifteen seconds. Scott, who remained in his Blazer, looked at Cope and said, “I had to, Rick. I had to.” Cope said the Defendant got up off the road quickly and staggered towards his truck. The Defendant picked up a gun from his truck, and, when Scott saw the Defendant with the gun, he started shooting and shot at the Defendant approximately five times. Cope testified that Smith, the driver of the vehicle, turned around and started shooting while the Defendant sat in the front seat of the truck. The Defendant’s truck then began to leave. Cope went to Scott who said, “[T]hey got me. They got me good, Rick.” Scott then shot three times straight through his blazer’s windshield toward the pick-up truck as it pulled out of the Market.
Cope said he ran inside the Market and asked someone to call 911 because Scott had been shot. Cope returned to Scott and, along with others present, tried to stop the bleeding until emergency personnel arrived. Cope agreed that, after Scott shot the Defendant the first time, there was a pause in the shooting until Scott saw that the Defendant had a gun.
Winton Humble, the owner of the Market, testified that the day of the shooting he worked four hours in the morning and five hours in the evening and that he knew Scott as a customer. Humble did not know the Defendant personally, but he was familiar with the Defendant’s family. Humble recalled the day of the shooting, saying that he was assisting a man rewiring and relocating the ATM machine at the Market when he heard a “crash” or a “pop.” Humble said he did not pay very much attention to the noise, but “[a] little while later” he heard another of the same noise. Humble did not recognize the sound as gunfire, but he looked outside and saw a large, shirtless man backing away from Scott’s vehicle. Humble lost sight of the large man when a post blocked his view. Less than two minutes later, Humble heard three shots from the left of Scott’s vehicle, and he described the shots as louder than the sound he heard before. Humble looked out the window again and saw that Scott, who was in his Blazer, had a pistol in his hand. Humble instructed those inside the Market to get down onto the floor, and he went behind the counter. When he was sure the shooting had stopped, Humble went to Scott’s vehicle. Scott was unable to talk and had obviously been shot. Humble took the gun from Scott’s hand and laid it on the dashboard of the car.
Humble testified that he then attempted to render first aid to Scott, who never responded to his questions. A paramedic was on the scene within two or three minutes of the shooting. It took longer for the ambulance to arrive because the ambulance first attended to the Defendant, who had also been shot and was a short distance away. On cross-examination, Humble clarified that, after he heard the second, louder set of shots, he saw Scott firing his pistol from his vehicle. On redirect examination, Humble testified it appeared that Scott was firing out his front window.
Keith Humble, Winton Humble’s son, testified he was present at his father’s store at the time of this incident. He was napping in the dining area of the Market and woke up when he heard a “pop.” He looked out the front door and saw a blue Chevrolet pick-up truck come to a stop. The passenger door opened and then shooting started. Humble testified that the truck’s passenger was the one shooting. Humble recalled that Barney Evans, a deputy sheriff arrived and that he told the sheriff that the truck involved left traveling south.
Tosha Bouldin, Winton Humble’s daughter, stated she knew Scott as a customer at the Market, but she did not know the Defendant. On May 18, 2004, Bouldin was working the cash register at the Market when the Defendant, who was driving a GMC or Chevrolet truck, came into the store and purchased a six-pack of beer. Fifteen to thirty minutes later, Scott entered the store. Bouldin recalled that Scott was usually friendly and in a good mood, but, on this occasion, he acted “strange[ly]” and only said “hello.” After Scott purchased cigarettes and gas, he talked to Ricky Cope. While Scott and Cope talked, the Defendant returned to the store to purchase a drink and left. Scott and Cope subsequently left together.
Bouldin testified that, after the men left, she sat at a table in the Market with two other women. While seated, she heard three or four “pops.” She stood up to look out of the window, but her father told her to “hit the floor,” so she got behind the counter and called 911. Bouldin did not recall hearing any more gunshots after the first three or four. Bouldin recalled that, shortly after the shooting, multiple people were at Scott’s car trying to render first aid. She saw the Defendant quickly leave and turn left out of the Market. On cross-examination, Bouldin testified that she waited on both Scott and the Defendant and that neither one of them appeared to be drunk. Further, she could not tell whether either had been drinking at all.
Joey Grissom, a first responder of the local fire department, testified that he responded to the shooting in this case. Grissom said that his mother-in-law, who was at the Market at the time of the shooting, called him asking that he come immediately. When he arrived, three to five minutes later, he attended to Scott, who was not breathing. Grissom retrieved his bag, tape, and oxygen tank to assist Scott’s breathing. Grissom described Scott as cold and clammy and said Scott appeared to have lost a significant amount of blood. Grissom said that Scott’s veins were “flat,” and he could not start an IV. When the ambulance arrived, medics started an IV in Scott’s sternum, and they administered fluids until the helicopter arrived.
Jason Rowland, an officer with the Warren County Sheriff’s office and formerly an investigator with the District Attorney’s Office, testified 2 that, during the day of May 18, 2004, the Van Buren County Sheriff’s Department called him and informed him that Robert Hastings had filed a complaint against the victim in this case, John Scott. According to Officer Rowland, the Sheriff’s Department did not want to investigate the complaint because Scott was a county commissioner. Officer Rowland went to Van Buren County with Tennessee Bureau of Investigations (“TBI”) Special Agent Wicks, where they interviewed Hastings. Following that meeting, Officer Rowland and Agent Wicks spoke with Scott and asked him to come to the Sheriff’s Department, where they obtained a statement from him and signed a warrant against him for assault. He was arrested and made bond.
Later that evening, District Attorney Potter notified Officer Rowland of the shooting, and Officer Rowland picked up District Attorney Potter before heading to the crime scene, where they arrived after dark, around 8:00 p.m. Officers from the Van Buren County Sheriff’s Office had already roped off the area of the Market where the shooting occurred. Also, by this time, both the Defendant and the victim had been air-lifted to Erlanger Hospital with bullet wounds. Officers at the scene gave Officer Rowland a Smith & Wesson 9 millimeter semi-automatic gun, which they had found at the scene and which contained no shells or cartridges. He sent this gun to the TBI for testing. In the area of the gun, Officer Rowland found four spent 9 millimeter shells, some of which were on the ground and some of which were in Scott’s Blazer.
Officer Rowland identified multiple pictures of the crime scene, one of which showed Scott’s Blazer parked near the Market. One picture depicted the neck of a broken beer bottle found near the Blazer. The pictures showed three bullet holes in the driver’s side door and a blood pool under the Blazer’s step-up. The Blazer’s windshield also had three bullet holes, which the officer later determined were created when bullets traveled from inside the vehicle through the windshield. The back window of the driver’s side also contained a bullet hole. The officer showed pictures of where Scott sat during the shooting, in the Blazer’s driver’s seat, and the seat appeared bloody. Officer Rowland testified that a black nylon holster was attached to the inside of the driver’s side door of the Blazer. When Officer Rowland examined Scott’s Blazer further the following day, he discovered that only two of the three bullet holes went completely through the door of the truck. There were a total of four shots to the Blazer, the fourth of which went through the window.
The Defendant’s Chevrolet truck was located some distance from the Market, near Piney Fire Hall. Officers roped off this area also with crime scene tape, and gave Officer Rowland a loaded .44 magnum Smith & Wesson revolver found by the Defendant’s truck. Officer Rowland retrieved the two live rounds and the remaining casings from the revolver, all of which he sent to the TBI for testing. The bullets from the revolver were twice the size of the bullets from the 9 millimeter. Officer Rowland later learned that the revolver belonged to the Defendant and that the Defendant had a valid permit to carry a handgun. The officer identified a log sheet of the inventory of the truck, which showed officers found on the front seat of the truck a box containing twenty-three .44 mag-num shells. Officer Rowland testified that he examined the truck for bullet holes on multiple occasions but did not find any. Photographing the truck, the officer noticed a twelve-pack of Budweiser on the floorboard, with one extra Budweiser bottle lying on the floorboard.
[The Defendant.] Interview of May 19, 2004. On May 19, 2004, I went to Erhlanger Hospital and talked to [the Defendant] about the shooting he was involved in. After the reading of his rights by Special Agent Wicks, [the Defendant] said that he had met John on 111 and him and Jason turned around on John and went back to the Parkway Store. [The Defendant] said he was going to throw away the bottle and he was going to hit John if he could. He said that John shot him and that he went and got his gun and shot him back. He said that he thought he shot him (2) times.
Officer Rowland noted Scott’s truck contained four bullet holes, and there were two live rounds in the Defendant’s revolver, which held a total of six rounds. The officer testified that doctors retrieved multiple bullets from Scott’s body, and he identified a picture of the bullets that were recovered. Officer Rowland testified he had known the Defendant for a long time and had never known him to be in trouble before this incident. Officer Rowland agreed that the Defendant’s right hand was “mangled,” and the Defendant showed his hand to the jury.
Dr. Thomas Deering, who performed Scott’s autopsy, testified that Scott suffered three gunshot wounds to his leg, which broke both of his femur bones. Dr. Deering said that Scott underwent surgery for his injuries, where pins were placed in his body to try to help repair these fractures. Scott suffered multiple strokes and a brain herniation as well as a small fracture to his voice box. Dr. Deering recovered two projectiles from Scott’s body. Dr. Deering opined that Scott died as a result of complications from multiple gunshot wounds to his legs. On cross-examination, Dr. Deering agreed that the injuries to Scott’s voice box could have occurred while emergency personnel attempted to administer oxygen. He also stated that he could not say whether the three gunshot wounds were created by three separate bullets or by only two bullets, one of which broke into fragments creating multiple wounds.
Randall Nelson, with the TBI crime laboratory, testified that he examined the broken window of Scott’s Blazer. He determined that the broken window had two impact points, one near the center of the window and the other near the bottom edge of the window. He was able to determine neither what type of force caused the impacts, nor the direction of the force at impact. He said it seemed consistent, though, with something traveling at a high rate of speed, such as something fired from a gun. Agent Nelson testified that the glass was tempered, making it very strong. As such, it was unlikely that a beer bottle would break the window.
Shelley Betts, a TBI firearms technician, testified about the report of the findings in this case. She said that the report indicated that the lower bullet hole in the driver’s side of Scott’s Blazer was created by a bullet traveling from inside to outside the car. The report said that the path of the bullet that created the upper hole could not be determined. The report indicated that a bullet retrieved from a metal bar of the Blazer was fired from the Defendant’s .44 magnum revolver. The report said agents were able to match copper jackets found at the scene to Scott’s 9 millimeter gun, and a projectile taken from the Defendant’s body matched Scott’s gun.
On appeal, the Defendant contends: (1) the evidence is insufficient to sustain his conviction because he was justified in using deadly force and because he committed the killing in a state of passion produced by adequate provocation; and (2) the trial court erred when it instructed the jury, precluding it from considering voluntary manslaughter.
On appeal, the Defendant contends that the evidence is insufficient to sustain his conviction for second degree murder because the evidence clearly proved that the victim fired at the Defendant before the Defendant retrieved his weapon and returned fire. The Defendant concedes that the trial court properly instructed the jury on self-defense but contends that the evidence does not support the jury’s rejection of this defense. The State counters that the Defendant instigated this confrontation, and, after being shot, he got up, walked to his car, retrieved his gun, and opened fire on Scott’s truck. This, the State says, was not done in self-defense because Scott had stopped shooting at the Defendant, and the Defendant chose to continue the fight and escalate the situation to murder.
When an accused challenges the sufficiency of the evidence, this Court’s standard of review is whether, after considering the evidence in the light most favorable to the State, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see Tenn. R. App. P. 13(e), State v. Goodwin, 143 S.W.3d 771, 775 (Tenn. 2004) (citing State v. Reid, 91 S.W.3d 247, 276 (Tenn. 2002)). This rule applies to findings of guilt based upon direct evidence, circumstantial evidence, or a combination of both direct and circumstantial evidence. State v. Pendergrass, 13 S.W.3d 389, 392-93 (Tenn. Crim. App. 1999). A conviction may be based entirely on circumstantial evidence where the facts are “so clearly interwoven and connected that the finger of guilt is pointed unerringly at the Defendant and the Defendant alone.” State v. Smith, 868 S.W.2d 561, 569 (Tenn. 1993). The jury decides the weight to be given to circumstantial evidence, and “[t]he inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury.” State v. Rice, 184 S.W.3d 646, 662 (Tenn. 2006) (citations omitted).
This well-settled rule rests on a sound foundation. The trial judge and the jury see the witnesses face to face, hear their testimony and observe their demeanor on the stand. Thus the trial judge and jury are the primary instrumentality of justice to determine the weight and credibility to be given to the testi-mony of witnesses. In the trial forum alone is there human atmosphere and the totality of the evidence cannot be reproduced with a written record in this Court.
Bolin v. State, 219 Tenn. 4, 405 S.W.2d 768, 771 (Tenn. 1996) (citing Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (Tenn. 1963)). This Court must afford the State of Tennessee the strongest legitimate view of the evidence contained in the record, as well as all reasonable inferences which may be drawn from the evidence. Goodwin, 143 S.W.3d at 775 (citing State v. Smith, 24 S.W.3d 274, 279 (Tenn. 2000)). Because a verdict of guilt against a defendant removes the presumption of innocence and raises a presumption of guilt, the convicted criminal defendant bears the burden of showing that the evidence was legally insufficient to sustain a guilty verdict. State v. Carruthers, 35 S.W.3d 516, 557-58 (Tenn. 2000).
The Defendant was convicted of second degree murder, which is the knowing killing of another. T.C.A. § 39-13-210(a) (2006). A person acts knowingly with respect to the result of his conduct when he is aware that his conduct is rea-sonably certain to cause that result. T.C.A. § 39-13-210(a)(2) (2006).
Viewing the evidence in the light most favorable to the State, we conclude that it is sufficient to support the Defendant’s conviction for second degree murder. Considering the evidence in the light most favorable to the State, the evidence proves that the Defendant heard about the conflict between Scott and Hastings and then went to his house to retrieve his gun. He contemplated going to Scott’s house, but decided instead to go to the Market to purchase beer. At the Market, the Defendant saw Scott getting gas and initiated a confrontation with Scott by throwing a beer bottle at Scott’s car and then trying to hit Scott. Scott then shot the Defendant in the stomach. The Defendant fell to the ground where he lay for ten to fifteen seconds. The Defendant got up, and Scott made no attempt to shoot the Defendant at that point. The Defendant went back to his truck and got his gun. The Defendant and Scott shot at each other several times. The Defendant hit Scott twice in the legs. After leaving the Market, the Defendant acknowledged to Smith that he made a “big mistake.” This evidence is sufficient to sustain the Defendant’s conviction because it proved that the Defendant was aware that his conduct was reasonably certain to cause Scott’s death.
(a) A person is justified in threatening or using force against another per-son when and to the degree the person reasonably believes the force is immed-ately necessary to protect against the other’s use or attempted use of unlawful force. The person must have a reasonable belief that there is an imminent danger of death or serious bodily injury. The danger creating the belief of im-minent death or serious bodily injury must be real, or honestly believed to be real at the time, and must be founded upon reasonable grounds. There is no duty to retreat before a person threatens or uses force.
When a defendant relies upon a theory of self-defense, the State bears the burden of proving that the defendant did not act in self-defense. State v. Sims, 45 S.W.3d 1, 10 (Tenn. 2001). Further, it is well-settled that whether an individual acted in self-defense is a factual determination to be made by the jury as the sole trier of fact. State v. Ivy, 868 S.W.2d 724, 727 (Tenn. Crim. App. 1993). It is within a jury’s prerogative to reject a claim of self-defense. State v. Goode, 956 S.W.2d 521, 527 (Tenn. Crim. App. 1997).
In this case, the jury clearly rejected the Defendant’s claim of self defense. The jury could have based this rejection on the fact the force was not immediately necessary to protect the Defendant from Scott’s use of force. By all accounts, Scott had ceased firing at the Defendant after the Defendant fell to the ground. The Defendant lay on the ground for several seconds, got up, and walked to his truck. Scott [*28] did not fire at the Defendant while the Defendant retreated to his truck. We will not disturb the jury’s factual finding that the Defendant did not have a reasonable belief that his force was immediately necessary to protect himself from Scott’s use of force. The Defendant is not entitled to relief on this issue.
The Defendant next contends that the trial court erred when it instructed the jury on its consideration of second degree murder instead of voluntary man-slaughter because the jury instructions told the jury to stop deliberating after finding that the elements of second degree murder existed. The State counters that the trial court instructed the jury with proper sequential jury instructions, which have repeatedly been upheld by the Tennessee Supreme Court.
[T]he distinction between voluntary manslaughter and second degree murder is that voluntary manslaughter requires that the killing result from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.
There is only one (1) Count. That is second degree murder. Then, there are the lesser included offenses that I just went through. You will begin at the top where the charge is second degree murder. If you have a reasonable doubt as to the defendant’s guilt of second degree murder as charged in the indictment, then your verdict would be not guilty as to that offense. Then, you would then proceed to determine whether the defendant is guilty or not guilty of the lesser included offense of voluntary manslaughter. . . . If however, you found the defendant guilty of second degree murder, you will stop. If you found [the Defendant] not guilty of second degree murder, but guilty of voluntary manslaughter, you would stop. What I am saying is that you start at the top, and if you find not guilty as to one and you had reasonable doubt as to one, you go to the next one. You keep going on down. If you find him guilty on the top or the next or the next, then you would stop at that point, if you find the defendant guilty of one of those offenses.
Our Supreme Court recently held that sequential jury instructions satisfy a defendant’s Tennessee Constitutional right to a trial by jury, which includes the right to have jury instructions on charged and lesser included offenses. See Tenn. Const., art. I, section 6; State v. Davis, 266 S.W.3d 896, 905 (Tenn. 2008); see also State v. Damien Clark, No. W2007-00651- CCA-R3-CD, 2009 Tenn. Crim. App. LEXIS 224, 2009 WL 890886, at *13 (Tenn. Crim. App., at Jackson, June 3, 2008), no Tenn. R. App. P. 11 application filed. The record reveals that the jury received sequential jury instructions. Also, the trial court’s instruction regarding second degree murder noted the distinction between voluntary manslaughter and second degree murder relative to voluntary manslaughter requiring a killing resulting “from a state of passion produced by adequate provocation sufficient to lead a reasonable person to act in an irrational manner.” We conclude that the instructions as given, requiring sequential assessment of the offenses, did not preclude the jury from considering voluntary manslaughter and did not violate the Defendant’s rights to due process and to trial by jury. They were sufficient for the jury to properly consider second degree murder in rela-tion to the requirements for voluntary manslaughter. The Defendant is not entitled to relief on this issue.
In accordance with the foregoing reasoning and authorities, we affirm the judgment of the trial court.
1 For clarity, we summarize this testimony in the chronological order rather than in the order it was presented at trial.
2 For the sake of clarity, Officer Rowland’s testimony, from both his direct and cross-examinations, is presented in chronological order.


text:
Electronic System Technologies, Inc. et al.
Domain name - Domain name dispute resolution policy - U.S. Trademark - Identical - Confusingly similar - No rights or legitimate interest - Bad faith registration - Bad faith use - Diversion of Internet users.
Complainant was registrant of the United States trademark SUNFEST for the operation of its music, art and waterfront festival. Complainant uses its SUNFEST trademark to promote its annual festival and has devoted a substantial amount of time and resources to promote and advertise it. Respondent registered the domain names, sunfest.com and sunfest.net.
It is clear that the domain names SUNFEST.COM and SUNFEST.NET are identical or confusingly similar to the trademark SUNFEST in which Complainant has rights. It is also clear that Respondents have not proven that they have rights to or a legitimate interest in the domain names. Respondents registered the domain names with actual knowledge of the existence of the rights of Complainant and with constructive knowledge of its registered trademark. Respondents did not use the domain name in connection with a bona fide offering of goods or services and have not been commonly known by the domain name. Furthermore, the Respondents were not making a legitimate noncommercial or fair use of the domain name.
The domain names were registered and used in bad faith. Respondents have misleadingly attracted consumers, creating the impression that the domain names are related to the complainant. Respondents have then offered their commercial services to the customers so attracted. By using the domain names, Respondents have intentionally attempted to attract, for commercial gain, Internet users to their web site, by creating a likelihood of confusion with the complainants mark as to the source, sponsorship, affiliation, or endorsement of a product or services on their web site.
CSA International v. Shannon, ICANN Case No. D2000-0071 (WIPO March 24, 2000).
Easy Jet Airline Co. v. Steggles, ICANN Case No. D2000-0024 (WIPO March 17, 2000).
Home Interiors & Gifts, Inc., v. Home Interiors, ICANN Case No. D2000-0010 (WIPO March 7, 2000).
Complainant is SunFest of Palm Beach County, Inc., a Florida non-profit corporation, with offices at 525 Clematis Street, West Palm Beach, Florida 33401 USA.
Respondents are Electronic System Technologies, Inc. and Sunfest.net (collectively referred to as "Respondents") with mailing addresses of P.O. Box 1625 Lake Worth, Florida 33460-1625 USA. Respondents each list their administrative contact as John Becker of John C. Becker, Inc., a Florida corporation, with a principal place of business at 3540 Forest Hill Boulevard, #209, West Palm Beach, Florida 33406 USA, and a mailing address of P.O. Box 1666, Lake Worth Florida 33460 USA.
The domain names at issue are "sunfest.com" and "sunfest.net" (the "Domain Names"). The registrar is Network Solutions, Inc. (the "Registrar"), 505 Huntmar Park Drive, Herndon, Virginia 20170 USA.
The WIPO Arbitration and Mediation Center (the "Center") received the Complaint of Complainant in hardcopy on June 19, 2000.
On June 22, 2000, the Center sent a Request for Verification to Network Solutions, Inc. requesting verification of registration data. On July 3, 2000, Network Solutions, Inc. confirmed, inter alia, that it is the registrar of the Domain Names and that the Domain Names are registered in the Respondents names.
On July 4, 2000, the Center verified that the Complaint satisfies the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
On July 4, 2000, the Center sent a Notification of Complaint and Commencement of Administrative Proceeding to the Respondent together with copies of the Complaint, with a copy to the Complainant. This notification was sent by the methods required under paragraph 2(a) of the Rules.
Between June 22 and September 5, 2000, the Center exchanged messages with the Complainant and Respondents regarding the case.
On July 14, 2000, the Center received a hardcopy of a Response from Respondent. On August 14, 2000 the Center acknowledged receipt of the Response.
After the Center received a completed and signed Statement of Acceptance and Declaration of Impartiality and Independence from Richard W. Page, Esq. (the "Sole Panelist"), the Center notified the parties of the appointment of a sole-arbitrator panel.
Complainant operates the SUNFEST® music, art and waterfront festival. The SUNFEST® festival has been held annually for the last eighteen years during the first week of May in Palm Beach County, Florida. In 2000, SUNFEST® drew over 325,000 attendees from throughout the United States, making it one of Palm Beach Countys largest tourism attractions. Complainants SUNFEST® festival was named (i) one of the top 100 festivals in the country by the American Bus Association in 2000; (ii) the "Top Event in Florida" by members of the International Festivals and Events Association in 1999; and (iii) the "Music Event of the Year" by Event Business News in 1998. In addition, Complainants SUNFEST® festival has been honored for ten consecutive years as one of the top twenty events in the Southeastern United States by the Southeast Tourism Society. Nationally and internationally-known performers, such as Crosby, Stills and Nash, Ray Charles, Bonnie Raitt, Hootie & the Blowfish, Lenny Kravitz, Jackson Browne, Patti Labelle, Hall & Oates and Al Jarreau have performed at Complainants SUNFEST® festival. Complainants SUNFEST® festival also attracts large corporate sponsors, such as Bank of America, BellSouth, Budget Rent-A-Car, Coca-Cola, Florida Crystals, Ericcson and U.S. Airways. In 2000, Complainants SUNFEST® festival generated over $3.3 million in revenue.
Complainant owns U.S. federal registrations for the SUNFEST mark (Reg. No. 1,847,930) and SUNFEST and DESIGN mark (Reg. No. 1,850,091). In addition, Complainant owns a Florida State registration for the SUNFEST and DESIGN mark (Reg. No. T16369).
Complainant has been using the mark SUNFEST® to promote its annual festival since May 6, 1983. Complainant registered the Internet domain name "sunfest.org" on June 22, 1996, and has operated a website to promote its SUNFEST® festival at this domain name since that date.
Complainant has invested a substantial amount of time and resources to promote and advertise its SUNFEST® festival and the www.sunfest.org" website. For example, Complainant spent approximately $175,000 on marketing and research for the 2000 SUNFEST® festival. In 2000, Complainants SUNFEST® festival generated nearly $3 million in advertising value, promotional value and editorial coverage in local and national media outlets. Over the last five years, television station WPBT has produced yearly one-hour television specials about the SUNFEST® festival, which have been telecast in over 100 markets throughout the United States. Complainant also markets merchandise bearing the SUNFEST® mark, such as shirts, hats, compact discs and commemorative prints. Sales of such merchandise generated over $230,000 in revenues in 2000. Since the "www.sunfest.org" website was launched, Complainant has devoted approximately $12 million to advertise and promote the SUNFEST® festival, and Complainants "www.sunfest.org" website has been fully integrated into Complainants marketing strategy.
Traffic to Complainants website has continued to increase since the websites launch. In 2000, the website generated over 500,000 page views between January and mid-May.
As a result of the foregoing, Complainant has developed valuable goodwill in the SUNFEST® mark, and consumers associate the mark exclusively with Complainants SUNFEST® festival and its "www.sunfest.org" website.
On October 30, 1998, without Complainants knowledge or consent, Respondent Electronic System Technologies, Inc registered the "sunfest.com" domain name. On March 1, 2000, after Complainant became aware of Respondents registration of the "sunfest.com" domain name and had notified Respondent of its objections to Respondents use and registration of the "sunfest.com" domain name, Respondents (without Complainants knowledge or consent) registered the "sunfest.net" domain name. Respondents are not licensees of Complainant nor are they authorized to use Complainants SUNFEST® mark. On March 27, 1999, Respondents registered the fictitious name "SunFest" with the State of Floridas Division of Corporations to allow Respondents to conduct business under that name. On March 16, 2000, Respondents notified Complainant that Respondents would cancel this registration. Respondents canceled registration of the fictitious name "SunFest" on April 10, 2000. On March 2, 2000, John C. Becker, Jr., filed to incorporate a company with the State of Floridas Division of Corporations under the name Solutions Using Networks For Electronic System Technologies.
Respondents business is located in Lake Worth, Florida, nine miles from West Palm Beach, Florida, the location of Complainants SUNFEST® festival.
On February 1, 2000, shortly before Complainant first contacted Respondent, the home page of Respondents website at "www.sunfest.com"claimed that the site was "The Official Site of SUNFEST Interactive Media." Complainant alleges that Respondents have never offered any services under the SUNFEST INTERACTIVE MEDIA mark. The home page contained links to other websites associated with Respondents, including: (1) web hosting services at JCBnet.com and (2) LakeWorthCity.com. The home page of the site also contained references to Respondents other businesses, such as "BECKER SYSTEMS - Business PCs," "ProFax - Professional Faxing" and "BCF Computer Forms." The home page also contained links to activities advertised on Respondents www.lakeworthcity.com" website, including a "Street Painting Festival" and the "Maryanne Webber Gallery."
In February, 2000, Complainant contacted Respondents by phone and conveyed Complainants objections to Respondents registration of the "sunfest.com" domain name and use of the SUNFEST® mark. Respondents proposed inserting a link on the "www.sunfest.com" website that would direct visitors to Complainants "www.sunfest.org" website. Complainant rejected this proposal.
On or about March 1, 2000, Complainant contacted Respondents again to express Complainants objection to Respondents filing to operate in Florida under the "SunFest" name. Complainant offered to pay Respondents costs to develop a new name and website. Respondent refused this offer.
On March 2, 2000, the day after the second telephone conversation between Complainant and Respondents concerning Respondents use and registration of the "sunfest.com" domain name, John C. Becker, Jr., filed for incorporation with the State of Floridas Division of Corporations under the name Solutions Using Networks For Electronic System Technologies. This corporate name corresponds to the acronym S.U.N.F.E.S.T. Respondents began to use the S.U.N.F.E.S.T. acronym on the "www.sunfest.com" website.
On March 8, 2000, Complainant again contacted Respondents. During this discussion, Respondents offered to sell the "sunfest.com" domain name to Complainant but the parties could not agree on a price. Later that day, Respondents sent Complainant an email asserting that, despite their discussions about sale of the "sunfest.com" domain name, the domain name was not for sale.
On the same day, Respondents posted a page on their website criticizing Complainants concerns about the Respondents use and registration of the "sunfest.com" domain name. Respondents subsequently removed this page from the website.
Respondents are currently using the "sunfest.com" domain name to display links to business ventures of Respondents, as well as to list information about various "Sunfest" festivals. Respondents do not currently operate an active website at "www.sunfest.net". On the "www.sunfest.com" website, Respondents state their intention to have a website to link visitors to festivals around the U.S. and North America.
Respondents assert that John C. Becker, Inc. was established as a Florida corporation in 1988 and offered computer support services such as custom database design work, installation and training of computer systems, local and wide area networks, hardware, software, computer forms, website hosting and design, and Internet access services. Respondents further assert that they put a website into use in November 1988.
John C. Becker, Inc. created Sunfest Interactive Media as one of its divisions and service marks to handle its website services and to offer its full line of services. Respondents contend that Solutions Using Networks for Electronic System Technologies, Inc. was created as a successor entity to Sunfest Interactive Media pursuant to the mutual agreement of the parties.
For three years (since 1997), Sunfest Interactive Media has sponsored, done website design and provided website hosting for street painting festivals in Palm Beach County, Florida. Respondents registered "sunfest.com" on October 30, 1998 and "sunfest.net" on March 1, 2000.
Complainant contends that it has registered trademarks in SUNFEST®. Complainant further contends that the Domain Names are identical with and confusingly similar to the SUNFEST® trademarks pursuant to the Policy paragraph 4(a)(i).
Respondents do not contest Complainants assertion that it has registered trademarks SUNFEST® or that the Domain Names are identical with the registered trademarks.
Respondents contend they have rights or legitimate interests in the Domain Names.
Respondents deny that their registration and use of the Domain Names are in bad faith.
Respondents contend that Complainant is engaged in reverse domain name hijacking.
The second-level domain name of each of the Domain Names, "sunfest", is identical to Complainants SUNFEST® mark. Therefore, the Panel finds that the Domain Names are identical with to the SUNFEST® trademarks owned by Complainant pursuant to the Policy paragraph 4(a)(i).
Complainant contends that Respondents have no rights or legitimate interest in the Domain Names pursuant to the Policy paragraph 4(a)(ii). Complainant asserts that Respondents have never been authorized by Complainant to use the SUNFEST® trademarks in any way. Respondents assert that the creation of Solutions Using Networks for Electronic System Technologies, Inc. was by mutual agreement between the parties. However, the Panel finds that the evidence of such mutual agreement is lacking and that Respondents have never been authorized by Complainant to use the Domain Names for any of Respondents divisions or purported service marks.
For purposes of the Policy, Section 4(c)(i), Respondents assert that John C. Becker, Inc. has provided Internet and computer related services, including a website, since 1988. The evidence indicates that the Domain Names were registered after Respondents undertook the sponsorship and rendition of website services for street fairs in Palm Beach County, Florida. The Domain Names were registered in October 1998 and March 2000 after Respondents had begun to represent another street fair or festival. The Panel finds that Respondents registered the Domain Names with actual knowledge of the existence of the rights of Complainant and with constructive knowledge of its registered trademarks. The offering of information regarding street fairs together with computer services is not a bona fide offering of goods and services.
In addition, Respondents links from the "www.sunfest.com" website to other businesses owned by Respondents are not serious preparations to use the "sunfest.com" domain name in a bona fide offering of goods and services. See Easy Jet Airline Co. v. Steggles, Case No. D2000-0024 (WIPO March 17, 2000) (links from the disputed domain name to another website unrelated to the purported bona fide business do not establish any serious preparations to use the domain name in a bona fide offering of goods and services). Therefore, Respondents have not met their burden under the Policy, Section 4(c)(i).
The only attempts by Respondents to establish business entities with names similar to the Domain Names occurred after the this dispute arose. Therefore, Respondents have not met their burden under the Policy, Section 4(c)(ii).
The Panel finds that, given the timing and circumstances surrounding the registration of the Domain Names, Respondents are attempting to misleadingly divert customers to their website. The services offered by Respondents on their website include computer services intended for commercial gain. Therefore, Respondents have not met their burden under the Policy, Section 4(c)(iii).
The Panel concludes that Respondents have not proven that they have rights to or a legitimate interest in the Domain Names under the Policy paragraph 4(a)(iii).
The discussions regarding sale of the Domain Names are not sufficient to conclude that Respondents primary purpose was selling, renting or transferring the Domain Names to Complainant. Therefore, Complainant has failed to demonstrate bad faith under the Policy, Section 4(b)(i).
to that of the name, Internet address and trademarks of the Complainant must inevitably and misleadingly divert consumers to that address." Coupled with the commercial gain sought by Respondents for its businesses, the requisite bad faith under Policy has been shown. Id. See also Easy Jet Airline Co. v. Steggles, supra; Home Interiors & Gifts, Inc., v. Home Interiors, Case No. D2000-0010 (WIPO March 7, 2000) (bad faith found where, inter alia, Respondent used website for links to businesses of others). Therefore, the elements of paragraph 4(b)(iv) have been met.
The Panel finds that the Domain Names were registered and used in bad faith pursuant to the Policy paragraph 4(a)(iii).

matches: v. v. v. v. v. v.


The Occupational Safety and Health Act of 1970 assigns distinct regulatory tasks to two independent administrative actors: petitioner Secretary of Labor is charged with setting and enforcing workplace health and safety standards, and respondent Occupational Safety and Health Review Commission is responsible for carrying out adjudicatory functions. The Act also requires a court of appeals reviewing a Commission order to treat as "conclusive" Commission findings of fact that are "supported by substantial evidence." In this case, having found that respondent CF & I Steel Corporation had equipped some of its employees with loose-fitting respirators that exposed them to impermissible coke oven emission levels, the Secretary issued a citation to CF & I and assessed a monetary penalty against it for violating a regulation promulgated by the Secretary requiring an employer to institute a respiratory protection program. The Commission vacated the citation, ruling that the facts did not establish a violation of that regulation, which was the sole asserted basis for liability, since the regulation expressly requires only that an employer train employees in the proper use of respirators, whereas another regulation expressly states the employer's obligation to assure a proper fit. The Court of Appeals affirmed, holding that where, as here, the relevant regulations are ambiguous, a reviewing court must defer to the Commission's reasonable interpretation rather than the Secretary's interpretation, since Congress intended to delegate to the Commission the normal complement of adjudicative powers possessed by traditional administrative agencies, including the power to "declare' the law." Concluding that the Commission's interpretation was a reasonable one, the court did not assess the reasonableness of the Secretary's competing view.
Held: A reviewing court should defer to the Secretary when the Secretary and the Commission furnish reasonable but conflicting interpretations of an ambiguous regulation promulgated by the Secretary under the Act. Pp. 499 U. S. 150-159.
Secretary, as the promulgator of standards, is in a better position than the Commission to reconstruct the purpose of particular regulations. Moreover, since the Secretary, as enforcer, comes into contact with a much greater number of regulatory problems than does the Commission, the Secretary is more likely to develop the expertise relevant to assessing the effect of a particular regulatory interpretation. Furthermore, dividing the power to make and enforce standards from the power to make law by interpreting them would make two administrative actors ultimately responsible for implementing the Act's policy objectives, an outcome inconsistent with Congress' intent in combining legislative and enforcement powers in the Secretary. It must also be concluded that Congress did not intend to endow the Commission with the normal adjudicative powers possessed by a traditional, unitary agency. Such an agency permissibly uses adjudication to engage in lawmaking and policymaking only because it also has been delegated the power to make law and policy through rulemaking, and necessarily interprets regulations that it has promulgated. The more plausible inference is that the Commission was meant to have the type of nonpolicymaking adjudicatory powers typically exercised by a court in the agency-review context, such that the Commission is authorized to review the Secretary's interpretations only for consistency with the regulatory language and for reasonableness, and possesses no more power than is necessary to make authoritative findings of fact and to apply the Secretary's standards to those facts in making a decision. Although the Commission was established in response to concerns that combining rulemaking, enforcement, and adjudicatory power in the Secretary would leave employers unprotected from prosecutorial bias, such concerns are dispelled by the vesting of authoritative factfinding and review powers in a body wholly independent of the administrative enforcer; regulated parties are protected from biased interpretations when the Commission and ultimately the court of appeals review the Secretary's interpretation for reasonableness. Nor is such an interpretation, when furnished in the course of an administrative adjudication, a mere "litigating position" undeserving of judicial deference under this Court's precedents. Since such an interpretation is agency action, not a post hoc rationalization of it, and assumes a form expressly provided for by Congress when embodied in a citation, the Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of health and safety standards. Pp. 499 U. S. 150-157.
lawmaking power. Moreover, the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties, the quality of the Secretary's elaboration of pertinent policy considerations, and other factors relevant to the reasonableness of the Secretary's exercise of delegated lawmaking powers. Since the Court of Appeals did not address the reasonableness of the Secretary's interpretation, it, rather than this Court, must do so in the first instance on remand. Pp. 499 U. S. 157-159.
891 F.2d 1495 (CA10 1989), reversed and remanded.
concluded that it should defer to the Commission's interpretation under such circumstances. We reverse.
The Occupational Safety and Health Act of 1970 (OSH Act or Act) establishes a comprehensive regulatory scheme designed "to assure so far as possible . . . safe and healthful working conditions" for "every working man and woman in the Nation." 29 U.S.C. § 651(b). See generally Atlas Roofing Co. v. Occupational Safety and Health Review Comm'n, 430 U. S. 442, 430 U. S. 444-445 (1977). To achieve this objective, the Act assigns distinct regulatory tasks to two independent administrative actors: the Secretary of Labor (Secretary); and the Occupational Safety and Health Review Commission (Commission), a three-member board appointed by the President with the advice and consent of the Senate. 29 U.S.C. §§ 651(b)(3), 661.
wishes to contest a citation, the Commission must afford the employer an evidentiary hearing and "thereafter issue an order, based on findings of fact, affirming, modifying, or vacating the Secretary's citation or proposed penalty." § 659(c). Initial decisions are made by an administrative law judge (ALJ), whose ruling becomes the order of the Commission unless the Commission grants discretionary review. § 661(j). Both the employer and the Secretary have the right to seek review of an adverse Commission order in the court of appeals, which must treat as "conclusive" Commission findings of fact that are "supported by substantial evidence." § 660(a) (b).
This case arises from the Secretary's effort to enforce compliance with OSH Act standards relating to coke oven emissions. Promulgated pursuant to the Secretary's rulemaking powers, these standards establish maximum permissible emissions levels and require the use of employee respirators in certain circumstances. See 29 CFR § 1910.1029 (1990). An investigation by one of the Secretary's compliance officers revealed that respondent CF & I Steel Corporation (CF & I) had equipped 28 of its employees with respirators that failed an "atmospheric test" designed to determine whether a respirator provides a sufficiently tight fit to protect its wearer from carcinogenic emissions. As a result of being equipped with these loose-fitting respirators, some employees were exposed to coke oven emissions exceeding the regulatory limit. Based on these findings, the compliance officer issued a citation to CF & I and assessed it a $10,000 penalty for violating 29 CFR § 1910.1029(g)(3) (1990), which requires an employer to "institute a respiratory protection program in accordance with [29 CFR] § 1910.134." CF & I contested the citation.
§ 1910.1029(g)(3) expressly requires only that an employer train employees in the proper use of respirators; [Footnote 2] the obligation to assure proper fit of an individual employee's respirator, the Commission noted, was expressly stated in another regulation, namely, § 1910.1029(g)(4)(i). [Footnote 3] See 12 OSHC at 2077-2078. Reasoning, inter alia, that the Secretary's interpretation of § 1910.1029(g)(3) would render § 1910.1029(g)(4) superfluous, the Commission concluded that the facts alleged in the citation and found by the ALJ did not establish a violation of § 1910.1029(g)(3). See 12 OSHC at 2078-2079. Because § 1910.1029(g)(3) was the only asserted basis for liability, the Commission vacated the citation. See id. at 2079.
was entitled to deference under such circumstances, reasoning that Congress had intended to delegate to the Commission "the normal complement of adjudicative powers possessed by traditional administrative agencies" and that "[s]uch an adjudicative function necessarily encompasses the power to declare' the law." Id. at 1498. Although the court determined that it would "certainly [be] possible to reach an alternate interpretation of the ambiguous regulatory language," the court nonetheless concluded that the Commission's interpretation was a reasonable one. Id. at 1500. The court therefore deferred to the Commission's interpretation without assessing the reasonableness of the Secretary's competing view. See ibid.
The Secretary thereafter petitioned this Court for a writ of certiorari. We granted the petition in order to resolve a conflict among the Circuits on the question whether a reviewing court should defer to the Secretary or to the Commission when these actors furnish reasonable but conflicting interpretations of an ambiguous regulation under the OSH Act. [Footnote 4] 497 U.S. 1002 (1990).
To put this question in perspective, it is necessary to take account of the unusual regulatory structure established by the Act. Under most regulatory schemes, rulemaking, enforcement, and adjudicative powers are combined in a single administrative authority. See, e.g., 15 U.S.C. § 41 et seq. (Federal Trade Commission); 15 U.S.C. §§ 77s-77u (Securities and Exchange Commission); 47 U.S.C. § 151 et seq. (Federal Communications Commission). Under the OSH Act, however, Congress separated enforcement and rulemaking powers from adjudicative powers, assigning these respective functions to two independent administrative authorities. The purpose of this "split enforcement" structure was to achieve a greater separation of functions than exists within the traditional "unitary" agency, which under the Administrative Procedure Act (APA) generally must divide enforcement and adjudication between separate personnel, see 5 U.S.C. § 554(d). See generally Johnson, The Split-Enforcement Model: Some Conclusions from the OSHA and MSHA Experiences, 39 Admin.L.Rev. 315, 317-319 (1987).
This is not the first time that we have been called upon to resolve an OSH Act "jurisdictional" dispute between the Secretary and the Commission. See Cuyahoga Valley R. Co. v. United Transp. Union, 474 U.S. at 474 U. S. 3. At issue in Cuyahoga Valley was whether the Commission could conduct an administrative adjudication notwithstanding the Secretary's motion to vacate the citation. We held that the Commission had no such power. We noted "that enforcement of the Act is the sole responsibility of the Secretary," and concluded that "[a] necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer." Id. at 474 U. S. 6-7. The Commission's role as "neutral arbiter," we explained, "plainly does not extend to overturning the Secretary's decision not to issue or to withdraw a citation." Id. at 474 U. S. 7.
of a particular regulatory interpretation. Because historical familiarity and policymaking expertise account in the first instance for the presumption that Congress delegates interpretive lawmaking power to the agency, rather than to the reviewing court, see, e.g., Mullins Coal Co. v. Director, OWCP, 484 U. S. 135, 484 U. S. 159 (1987); Ford Motor Credit Co. v. Milhollin, supra, 444 U.S. at 444 U. S. 566; INS v. Stanisic, 395 U. S. 62, 395 U. S. 72 (1969), we presume here that Congress intended to invest interpretive power in the administrative actor in the best position to develop these attributes.
the Act's policy objectives, we conclude that Congress did not expect the Commission to possess authoritative interpretive powers.
For the same reason, we reject the Court of Appeals' inference that Congress intended "to endow the Commission with the normal complement of adjudicative powers possessed by traditional administrative agencies." 891 F.2d at 1498 (emphasis added). Within traditional agencies -- that is, agencies possessing a unitary structure -- adjudication operates as an appropriate mechanism not only for factfinding, but also for the exercise of delegated lawmaking powers, including lawmaking by interpretation. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 416 U. S. 292-294 (1974); SEC v. Chenery Corp., 332 U. S. 194, 332 U. S. 201-203 (1947). But in these cases, we concluded that agency adjudication is a generally permissible mode of law- and policymaking only because the unitary agencies in question also had been delegated the power to make law and policy through rulemaking. See Bell Aerospace, supra, 416 U.S. at 416 U. S. 292-294; Chenery Corp., supra, 332 U.S. at 332 U. S. 202-203. See generally Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921 (1965). Insofar as Congress did not invest the Commission with the power to make law or policy by other means, we cannot infer that Congress expected the Commission to use its adjudicatory power to play a policymaking role. Moreover, when a traditional, unitary agency uses adjudication to engage in lawmaking by regulatory interpretation, it necessarily interprets regulations that it has promulgated. This, too, cannot be said of the Commission's power to adjudicate.
with the regulatory language and for reasonableness. In addition, of course, Congress expressly charged the Commission with making authoritative findings of fact and with applying the Secretary's standards to those facts in making a decision. See 29 U.S.C. § 660(a) (Commission's factual findings "shall be conclusive" so long as "supported by substantial evidence"). The Commission need be viewed as possessing no more power than this in order to perform its statutory role as "neutral arbiter." See Cuyahoga Valley, 474 U.S. at 474 U. S. 7.
CF & I draws a different conclusion from the history and structure of the Act. Congress, CF & I notes, established the Commission in response to concerns that combining rulemaking, enforcement, and adjudicatory power in the Secretary would leave employers unprotected from regulatory bias. Construing the Act to separate enforcement and interpretive powers is consistent with this purpose, CF & I argues, because it protects regulated employers from biased prosecutorial interpretations of the Secretary's regulations. Indeed, interpretations furnished in the course of administrative penalty actions, according to CF & I, are mere "litigating positions," undeserving of judicial deference under our precedents. See, e.g., Bowen v. Georgetown University Hospital, 488 U. S. 204, 488 U. S. 212 (1988).
begs the question just how much Congress intended to depart from the unitary model. Sponsors of the Commission purported to be responding to the traditional objection that an agency head's participation in or supervision of agency investigations results in biased review of the decisions of the hearing officer, notwithstanding internal separations within the agency. See ibid. See generally 3 K. Davis, Administrative Law Treatise § 18.8, pp. 369-370 (2nd ed. 1980). Vesting authoritative factfinding and ALJ review powers in the Commission, an administrative body wholly independent of the administrative enforcer, dispels this concern.
We harbor no doubt that Congress also intended to protect regulated parties from biased interpretations of the Secretary's regulations. But this objective is achieved when the Commission, and ultimately the court of appeals, review the Secretary's interpretation to assure that it is consistent with the regulatory language and is otherwise reasonable. Giving the Commission the power to substitute its reasonable interpretations for the Secretary's might slightly increase regulated parties' protection from overzealous interpretations. But it would also clearly frustrate Congress' intent to make a single administrative actor "accountable for the overall implementation" of the Act's policy objectives by combining legislative and enforcement powers in the Secretary. S.Rep. No. 91-1282, p. 8, U.S.Code Cong. & Admin.News 1970, p. 5185, reprinted in Legislative History 148.
constitute an exercise of the agency's delegated lawmaking powers. The Secretary's interpretation of OSH Act regulations in an administrative adjudication, however, is agency action, not a post hoc rationalization of it. Moreover, when embodied in a citation, the Secretary's interpretation assumes a form expressly provided for by Congress. See 29 U.S.C. § 658. Under these circumstances, the Secretary's litigating position before the Commission is as much an exercise of delegated lawmaking powers as is the Secretary's promulgation of a workplace health and safety standard.
In addition, the Secretary regularly employs less formal means of interpreting regulations prior to issuing a citation. These include the promulgation of interpretive rules, see, e.g., Marshall v. W and W Steel Co., 604 F.2d 1322, 1325-1326 (CA10 1979); cf. Whirlpool Corp. v. Marshall, 445 U. S. 1, 445 U. S. 11 (1980), and the publication of agency enforcement guidelines, see United States Department of Labor, OSHA Field Operations Manual (3d ed. 1989). See generally S. Bokat & H. Thompson, Occupational Safety and Health Law 658-660 (1988). Although not entitled to the same deference as norms that derive from the exercise of the Secretary's delegated lawmaking powers, these informal interpretations are still entitled to some weight on judicial review. See Batterton v. Francis, 432 U. S. 416, 432 U. S. 425-426, and n. 9 (1977); Skidmore v. Swift & Co., 323 U. S. 134, 323 U. S. 140 (1944); Whirlpool, supra, 445 U.S. at 445 U. S. 11. A reviewing court may certainly consult them to determine whether the Secretary has consistently applied the interpretation embodied in the citation, a factor bearing on the reasonableness of the Secretary's position. See Ehlert v. United States, 402 U.S. at 402 U. S. 105.
did not intend to sever the power authoritatively to interpret OSH Act regulations from the Secretary's power to promulgate and enforce them. Subject only to constitutional limits, Congress is free, of course, to divide these powers as it chooses, and we take no position on the division of enforcement and interpretive powers within other regulatory schemes that conform to the split-enforcement structure. Nor should anything we say today be understood to bear on whether particular divisions of enforcement and adjudicative power within a unitary agency comport with § 554(d) of the APA.
In addition, although we hold that a reviewing court may not prefer the reasonable interpretations of the Commission to the reasonable interpretations of the Secretary, we emphasize that the reviewing court should defer to the Secretary only if the Secretary's interpretation is reasonable. The Secretary's interpretation of an ambiguous regulation is subject to the same standard of substantive review as any other exercise of delegated lawmaking power. See 6 U.S.C. § 706(2)(A); Batterton v. Francis, supra, 432 U.S. at 432 U. S. 426. As we have indicated, the Secretary's interpretation is not undeserving of deference merely because the Secretary advances it for the first time in an administrative adjudication. But as the Secretary's counsel conceded in oral argument, Tr. of Oral Arg. 18-19, 20-21, the decision to use a citation as the initial means for announcing a particular interpretation may bear on the adequacy of notice to regulated parties, see Bell Aerospace, 416 U.S. at 416 U. S. 295; Bowen v. Georgetown University Hospital, 488 U.S. at 488 U. S. 220 (SCALIA, J., concurring), the quality of the Secretary's elaboration of pertinent policy considerations, see Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins Co., 463 U. S. 29, 463 U. S. 43 (1983), and other factors relevant to the reasonableness of the Secretary's exercise of delegated lawmaking powers.
CF & I urges us to hold that the Secretary unreasonably interpreted 29 CFR § 1910.1029(g)(3) in this case. However, because the Court of Appeals deferred to the Commission's interpretation, it had no occasion to address the reasonableness of the Secretary's interpretation. Rather than consider this issue for the first time ourselves, we leave the issue for resolution on remand.
The Secretary has delegated certain statutory responsibilities to the Assistant Secretary for Occupational Safety and Health, who heads the Occupational Safety and Health Administration. See Secretary of Labor's Order No. 12-71, 36 Fed.Reg. 8754 (1971); Order No. 8-76, 41 Fed. Reg. 25059 (1976); Order No. 9-83, 48 Fed.Reg. 35736 (1983).
"For safe use of any respirator, it is essential that the user be properly instructed in its selection, use, and maintenance. Both supervisors and workers shall be so instructed by competent persons. Training shall provide the men an opportunity to handle the respirator, have it fitted properly, test its face-piece-to-face seal, wear it in normal air for a long familiarity period, and, finally, to wear it in a test atmosphere."
29 CFR § 1910.134(e)(5) (199O).
"Respirator usage. (i) The employer shall assure that the respirator issued to the employee exhibits minimum facepiece leakage and that the respirator is fined properly."
29 CFR § 1910.1029(g)(4) (1990). According to the Commission, the compliance officer who issued the citation "acknowledged that [§ 1910.1029(g)(4)(i)] applied," and "that he might have cited the wrong standard." CF & I, 12 OSHC 2067, 2078 (1986).
Compare Brock v. Williams Enterprises of Georgia, Inc., 832 F.2d 567, 569-570 (CA11 1987) (deference to Secretary); United Steelworkers of America v. Schuylkill Metals Corp., 828 F.2d 314, 319 (CA5 1987) (same); and Donovan v. A. Amorello & Sons, Inc., 761 F.2d 61, 6s-66 (CA1 1985) (same) with Brock v. Cardinal Industries, Inc., 828 F.2d 373, 376, n. 4 (CA6 1987) (deference to Commission); Brock v. Bechtel Power Corp., 803 F.2d 999, 1000-1001 (CA9 1986) (same); and Marshall v. Western Electric, Inc., 565 F.2d 240, 244 (CA2 1977) (same).
The parties do not challenge the Court of Appeals' conclusion that the regulations at issue in this case are ambiguous. We assume that this conclusion is correct for purposes of our analysis.


Introducing excess medical bills into evidence at trial is one of the most overlooked and ignored technical skills in litigating Pennsylvania automobile cases. However, since parties cannot provide juries with dollar figures for pain and suffering recoveries, the introduction of excess medical bills becomes critical in giving juries a frame of reference or starting point from which they can calculate pain and suffering damages.
Most practitioners simply produce a PIP payout log and exhaustion letter to defense counsel and come to an agreement with defense counsel that the excess unpaid medical bills are admissible under the ACT VI payment scheduled at between sixty and seventy percent of the full bill. However, Pennsylvania case law permits plaintiffs to introduce full, non-reduced excess medical bills into evidence at trial.
The right of the Plaintiff to recover excess and/or outstanding medical bills is further governed by 75 Pa.C.S.A. §1797 (ACT VI), which sets forth the proper reimbursable amounts permitted for medical treatment arising out of a motor vehicle accident at 110% of what Medicare would pay a provider for the same service. This is generally the method by which most practitioners come to an agreement regarding the recoverable medical bills at trial. However, at least one Superior Court case can be cited for the proposition that when there is no objection to the admissibility of medical bills in a jury trial, the full amount of medical bills, not the “Act VI number”, may be introduced.
The case of Pittsburgh Neurosurgery Associates, Inc. v. Danner, 733 A.2d 1279 (Pa.Super. 1999) arose when the appellee was injured in an automobile accident and sought treatment at appellant’s facility. After appellee’s first-party benefits were exhausted, Pittsburgh Neurosurgery filed suit to recover fair market value ($16,579.00) of its unpaid bill. Danner filed a motion for summary judgment seeking a reduction, arguing that the cost containment provisions of §1797 applied to those medical charges and that it was only entitled to $5,523.25. Pittsburgh Neurosurgery filed a cross-motion for summary judgment arguing §1797 was inapplicable because Danner had already exhausted his first party benefits. The trial court granted Danner’s motion, entering judgment in favor of Pittsburgh Neurosurgery in the reduced amount of $5,523.
On appeal, Pittsburgh Neurosurgery argued that the trial court's interpretation of §1797 was inconsistent with the legislature's goal of containing insurance costs; because if an injured party can place into evidence medical bills “not paid or payable” by health insurance, then the injured party is entitled to place the full amount of unpaid medical bill before the jury and if he wins on liability, he can avoid full repayment of the same because cost containment provisions apply. This scenario, it argued, would result in the injured party receiving a windfall resulting from his full recovery of unpaid medical bills and a corresponding limited obligation of repayment to the provider if §1797(a) is applicable.
The Superior Court agreed that the cost containment provisions shouldn’t put a party in a better position than he or she was in had the accident not occurred, and by allowing a party to introduce the full amount of the provider's medical bills absent the cost containment provisions and yet allow the medical provider to recover a cost contained amount would permit a windfall recovery. However, the Court held that in the context of an automobile accident jury trial, an injured party may introduce unpaid medical bills into evidence and the amount introduced may not be subject to cost containment; but then any jury award could be molded by the trial court to reflect cost containment, thus avoiding the problem of double recoveries. Thus, the court reasoned, by limiting the amount of damages an injured party can receive after a jury verdict in his or her favor, the verdict will be lower and insurance costs will be reduced, in accordance with the legislature's objective in drafting §1797.
Therefore, although the MVFRL limits a Plaintiff’s right to recover excess medical bills, Pennsylvania case law permits Plaintiffs to introduce at trial, full, non-reduced amount of excess medical bills incurred from a motor vehicle accident.


text:
CHICAGO & N. W. RY. CO. v. ALVIN R. DURHAM CO.
By an interstate shipment made under the uniform order bill of lading the Chicago & Northwestern Railway received in 1921 at its yards in Ironwood, Mich., a box car containing apples consigned to the shipper's order 'notify F. M. Larson.' The car was placed on the 'team track,' which is one of the public delivery tracks used for unloading freight received in carload shipments and is not connected in any manner with a railway freight warehouse. The next morning at 8:20 o'clock Larson surrendered the bill of lading duly indorsed, paid the freight charges, gave to the railway his receipt for the apples, and commenced unloading the car. On the same day the Alvin R. Durham Company used out a writ of garnishment against the railway, which was served at 9:45 a. m. At that time about one- quarter of the apples had already been taken from the car by Larson. In spite of the service of the writ of garnishment, the railway did not prevent the further unloading. This was not completed until four days later. Meanwhile the car was locked every night by Larson. During this period of un- [271 U.S. 251, 255] loading, the car was shifted several times by the railway for its own convenience in the use of the team tracks.
The trial court directed a verdict for the garnishee, on the ground that the railway did not have the custody, control, or possession of the shipment. The Supreme Court of Michigan reversed that judgment (Durham Co. v. Chicago & N. W. R. Co., 224 Mich. 477, 194 N. W. 1014), and held the carrier liable on the ground that, 'under the interpretation of section 5 of the uniform bill of lading, as appears pears in Michigan Cent. R. Co. v . (Mark) Owen (& Co.), 256 U.S. 427 , 41 S. Ct. 554 (65 L. Ed. 1032), ... the railway did have the custody, control, and possession of the interstate shipment.' Id., 229 Mich. 468, 201 N. W. 503. See, also, Chicago & N. W. R. Co. v. Durham Co., 265 U.S. 580 , 44 S. Ct. 455. This court granted a writ of certiorari. Id., 268 U.S. 684 , 45 S. Ct. 635. The sole question for decision is whether the railway is liable as garnishee.
The facts in the two cases are similar, but the legal questions presented for decision are wholly different. In the Mark Owen Case it was sought to enforce under the federal law an alleged liability in contract of an interstate carrier to the consignee. Whether the railroad was liable depended upon the construction to be given the contract for an interstate shipment contained in the uniform bill of lading. Compare Southern Railway Co. v. Prescott, 240 U.S. 632 , 36 S. Ct. 469. The question was whether, in the absence of negligence, the railroad was liable to the consignee for grapes stolen from the car while on the team track after the unloading had begun, but before the expiration of 48 hours after giving notice of arrival. 1 The [271 U.S. 251, 256] railroad contended that, under section 5 of the bill of lading, there was no liability, because the surrender of the car to the consignee, followed by breaking the seals and commencement of unloading, constituted a delivery, and that, in any event, its responsibility for the unloaded part of the contents had become that of warehouseman. This court held that, since the theft occurred within the 48-hour period, there had not been, under the contract of the parties as expressed in section 5 of the bill of lading, such a delivery as would terminate the carrier's liability as insurer or reduce the liability to that of the warehouseman's exercise of reasonable care.
In the case at bar it is sought to hold the railroad liable as garnishee to a stranger. It is not sought to enforce a liability arising under a federal law. As the order bill of lading had been surrendered, the Uniform Bill of Lading Act presented no obstacle to garnishment. Act of August 29, 1916, c. 415, 23, 39 Stat. 538, 543 (Comp. St. 8604l). But that act obviously confers no right to garnishment. Nor is there anything in the bill of lading which conceivably could be construed as either conferring or denying the right of garnishment. The plaintiff does not seek to enforce, as a derivative right, a claim of the consignee against the carrier under the bill of lading. It seeks to reach tangible property confessedly belonging to the principal defendant and to which the carrier confessedly makes no claim either of title or possession. Section 5 of the bill of lading clearly does not authorize a carrier, who had surrendered to the consignee control of the shipment upon surrender of the bill of lading, payment of charges and signing of the usual receipt, any right to recapture control of the unloaded part of the shipment in the event that garnishee proceedings are commenced within 48 hours after such surrender.
Whether under the law of Michigan the railway was liable as garnishee, we have no occasion to inquire. There is nothing in the uniform bill of lading which would prevent the state court from holding that, although the freight car was in the carrier's possession, it was not liable as garnishee of the contents, because the apples were in the consignee's possession although not unloaded. A person breaking open and taking the contents of a chest in his custody has been held guilty of larceny. Union Trust Co. v. Wilson, 198 U.S. 530, 537 , 25 S. Ct. 766. The state court, however, reversed the judgment of the trial court because it assumed that the liability of the garnishee was fixed by the federal law, and that, under the rule declared in the Mark Owen Case, the railroad was liable. As this was error, the judgment must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Ebert v. Poston, 266 U.S. 548 , 45 S. Ct. 188. Compare Industrial Commission v. Nordenholt Corp., 259 U.S. 263 , 42 S. Ct. 473, 25 A. L. R. 1013; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 , 44 S. Ct. 274.
[ Footnote 2 ] Madden v. Union Pacific R. R. Co., 89 Kan. 282, 131 P. 552, Ann. Cas. 1914D, 78; Wood v. Edgar, 13 Mo. 451; Gleason v. South Milwaukee Bank, 89 Wis. 534, 62 N. W. 519. Compare Hooper v. Day, 19 Me. 56, 36 Am. Dec. 734; Balkham v. Lowe, 20 Me. 369.
[ Footnote 3 ] Nesbitt v. Ware, 30 Ala. 68; Cunningham v. Baker, 104 Ala. 160, 16 So. 68, 53 Am. St. Rep. 27; Holcomb v. Winchester, 52 Conn. 447, 52 Am. Rep. 609; Clark v. Brewer, 6 Gray (Mass.) 320; Martz v. Detroit Fire Ins. Co., 28 Mich. 201; Thorp v. Preston, 42 Mich. 511, 4 N. W. 227; Weil v. Tyler, 38 Mo. 545; Selheimer v. Elder, 98 Pa. 154.
[ Footnote 4 ] Davis v. Millen, 111 Ga. 451, 36 S. E. 803; Shivers v. Wilson, 5 Har. & J. (Md.) 130, 9 Am. Dec. 497. Compare Disconto Gesellschaft v. Umbreit, 208 U.S. 570 , 28 S. Ct. 337.
[ Footnote 5 ] Edmondson v. De Kalb County, 51 Ala. 103; Danley v. State Bank, 15 Ark. 16; Lovejoy v. Albee, 33 Me. 414, 54 Am. Dec. 630.
[ Footnote 6 ] Buchanan v. Alexander, 4 How. 20; Fischer v. Daudistal (C. C.) 9 F. 145; Pringle v. Guild (C. C.) 118 F. 655; Moscow Hardware Co. v. Colson (C. C.) 158 F. 199; Allen-West Commission Co. v. Grumbles (C. C.) 161 F. 461; In re Argonaut Shoe Co., 187 F. 784, 109 C. C. A. 632; Glass v. Woodman, 223 F. 621, 139 C. C. A. 167; Forbes v. Thompson, 2 Penn. (Del.) 530, 47 A. 1015; Columbia Brick Co. v. District of Columbia, 1 App. D. C. 351; Millison v. Fisk, 43 Ill. 112; Bivens v. Harper, 59 Ill. 21; Wallace v. Lawyer, 54 Ind. 501, 23 Am. Rep. 661; Allen v. Wright, 134 Mass. 347; Id., 136 Mass. 193; School District v. Gage, 39 Mich. 484, 33 Am. Rep. 421; White v. Ledyard, 48 Mich. 264, 12 N. W. 216; Hudson v. Saginaw Circuit Judge, 114 Mich. 116, 72 N. W. 162, 47 L. R. A. 345, 68 Am. St. Rep. 465; McDougal v. Hennepin County, 4 Minn. 184 (Gil. 130); Clarksdale Compress Co. v. Caldwell County, 80 Miss. 343, 31 So. 790; Ross v. Allen, 10 N. H. 96; Burnham v. City of Fond du Lac. 15 Wis. 193, 82 Am. Dec. 668. Compare Dunkley v. City of Marquette, 157 Mich. 339, 122 N. W. 126, 17 Ann. Cas. 523.
[ Footnote 7 ] Compare Smith v. Gilbert, 71 Conn. 149, 41 A. 284, 71 Am. St. Rep. 163; Stowe v. Phinney, 78 Me. 244, 3 A. 914, 57 Am. Rep. 796; Massachusetts National Bank v. Bullock, 120 Mass. 88; Rozelle v. Rhodes, 116 Pa. 129, 9 A. 160, 2 Am. St. Rep. 591.
[ Footnote 8 ] Stevenot v. Eastern Ry. Co., 61 Minn. 104, 63 N. W. 256, 28 L. R. A. 600; Bates v. Chicago, Milwaukee & St. P. Ry. Co., 60 Wis. 296, 19 N. W. 72, 50 Am. Rep. 369. Compare Adams v. Scott, 104 Mass. 164; Rosenbush v. Bernheimer, 211 Mass. 146, 97 N. E. 984, Ann. Cas. 1913A, 1317; Clifford v. Brockton Transp. Co., 214 Mass. 466, 101 N. E. 1092, Ann. Cas. 1914B, 909; Landa v. Holck & Co., 129 Mo. 663, 31 S. W. 900, 50 Am. St. Rep. 459.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


Your client makes a loan and, in return, receives a mortgage note, which reflects the real property upon which the mortgage securing the note will be recorded. Shortly after the loan is made, the borrower fails to repay the amount due. Although the mortgage that was intended to secure the note was never prepared or recorded, you bring an action to enforce the note, with the filing of a verified complaint containing various alternative causes of action, to collect the amount due.
The defendant-borrower fails to appear in the action within the time to respond. You move for a default judgment, relying upon the verified complaint. Default judgment easily granted, correct? Not so simple, as shown in graphic detail by a new, well-reasoned decision by the Nassau Supreme Court Justice Leonard Austin of the Commercial Part.
In Bales v. Pfeifer (NYLJ, April 26), the plaintiff alleged that he lent $300,000 to defendant and, in return, defendant signed a mortgage note reciting certain real property upon which a mortgage was to be filed to secure payment of the amount due. Although the note contained a certain rate of interest, for some unknown reason the plaintiff alleged in his verified complaint that the sum of $340,000 was to be repaid on the $300,000 loan within just 45 days of the date the note was signed.
In the verified complaint, the first three causes of action attempted to allege claims for fraud, seeking the principal and alleged interest due under the note, respectively, while the fourth cause of action sought recovery of the principal and interest under the note itself. Although four separate defendants were named in the action, only one defendant had been served with process, so the motion for a default judgment was directed against this sole defendant.
On any application for judgment by default, the applicant shall file proof of service of the summons and the complaint, or a summons and notice served pursuant to subdivision (b) of rule 305 or subdivision (a) of rule 316, and proof by affidavit made by the party of the facts constituting the claim, the default and the amount due. Where a verified complaint has been served it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or his attorney.
In moving for a default judgment pursuant to CPLR 3215(f), plaintiff offered proof that the sole defendant that was served failed to appear within the time required. Plaintiff also offered the verified complaint as proof of the facts upon which the action was based.
Justice Austin not only denied the motion for a default judgment, but dismissed the entire action against all defendants sua sponte. His decision provides instructive guidance on both proper procedure for obtaining a default judgment as well as the importance of properly pleading all the essential elements of an alleged cause of action in a verified complaint.
As Justice Austin noted, in addition to proving that the summons and complaint were served, and that the defendant failed to respond thereto within the time required, a plaintiff seeking a default judgment must submit proof of the facts underlying the action, by affidavit, or through a verified complaint.
While it is true that by defaulting a defendant is deemed to admit all of the factual allegations of the complaint, this alone is not sufficient for a finding of liability in favor of the plaintiff on the causes of action alleged. In addition to this implied admission, courts must require plaintiffs to ‘present some proof of liability so that the reviewing court can determine that the ‘prima facie validity’ of the uncontested cause of action has been established . . . because the granting of a default judgment does not become a ‘mandatory ministerial duty’ upon a defendant’s default.’ Gagen v. Kipany Productions Ltd., 289 A.D.2d 844, 735 N.Y.S.2d 225, 227-28 (3d Dept. 2001).
Although the plaintiff in Bales did, in fact, submit a verified complaint setting forth the factual basis of the various causes of action to recover on the note, that was actually the start of the plaintiff’s problems.
Justice Austin reviewed the proof submitted, and carefully analyzed the allegations of the verified complaint to determine whether a prima facie case had been established, even though the defendant did fail to appear and would be deemed to have admitted all of the allegations of the complaint.
In doing so, Justice Austin observed that while the note contained a specific interest rate, the amount plaintiff claimed to be due for both the principal and interest rendered the effective interest rate criminally usurious. Relying upon General Obligations Law §5-501(6), Penal Law §190.40 and corresponding case law, Justice Austin then noted that ‘[l]oans which are criminally usurious are void ab initio preventing the lender from recovering either the principal or the interest.’ From there, matters only got worse for the plaintiff.
Because the interest sought was criminally usurious, Justice Austin refused to enforce the fourth cause of action seeking payment under the note. Then, turning to the first three causes of action, which attempted to allege claims of fraud in different permutations, Justice Austin made several significant observations.
First, to the extent those causes of action sought to recover under the note, the court found they were an improper attempt to circumvent the criminal usury laws.
Next, Justice Austin noted that the fraud claims failed to allege causes of action on their face because, among other things, they were not pleaded in sufficient detail, the plaintiff committed several careless errors of its own in failing to detect the alleged fraud, and the plaintiff failed to satisfy his legal duty to ascertain truthful information available by public record or through the exercise of due diligence, which would have uncovered the alleged misrepresentations.
Indeed, Justice Austin noted that the plaintiff himself admitted that ‘he failed to exercise due diligence in this transaction.’ Thus, Justice Austin concluded that the complaint failed to allege any cause of action for fraud.
In the end, not only did the plaintiff fail to obtain a default judgment, but, because of the fatal defects in the pleading and proof, Justice Austin proceeded to dismiss the entire case against all defendants sua sponte.
Several lessons can be gleaned from this well-reasoned and thorough decision.
First, careful thought should be given to the precise elements of each and every cause of action attempted to be alleged in a complaint, even in those situations where the facts and law seem to be straightforward. In this case, seeking to enforce a simple note transaction without addressing the applicability and impact of the usury laws was fatal. The complaint in fact contradicted itself by seeking to enforce a note, yet claiming interest that was unenforceable.
Second, adding gratuitous allegations of ‘fraud’ in an apparent attempt to ‘spice up’ a straightforward commercial transaction can backfire if the facts are not pleaded with sufficient detail and do not satisfy all the required elements of fraud. Here, plaintiff alleged that he was defrauded by defendant, yet admitted that he did not even carefully read the note at issue.
Third, adequate proof must be considered and submitted with a motion for a default because a party cannot simply rely upon defendant’s ‘admission’ of the facts as a result of the failure to appear. If the verified complaint is relied upon as proof of the facts, both the factual allegations as well as the elements of the causes of action attempted to be alleged must be submitted.
Finally, this decision also gives food for thought to a defendant who is seeking to challenge a judgment already entered upon a default. That is, where the motion court has not properly scrutinized the level of proof submitted by plaintiff on the motion for default, there is a fertile ground for vacating the default, even apart from the standard requirements of establishing a meritorious defense and excusable default. For example, in addition to the various grounds set forth in CPLR 5015(a) for vacating a default, ‘a court may vacate its own judgment for sufficient reason and in the interests of substantial justice,’ Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727 (2003), which would include reassessing the level of proof submitted by plaintiff.
Similarly, an appellate court has authority to reverse a decision granting a default judgment based upon the plaintiff’s failure to offer adequate proof of a prima facie cause of action. See, e.g., Joosten v. Gale, 129 A.D.2d 531, 514 N.Y.S.2d 729 (1st Dep’t 1987).