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May 17, 1982

Trina GARNETT, by Walter Garnett, her father and natural guardian, and in her own right, Plaintiff,
Nile KEPNER, individually and in his official capacity as agent of State Correctional Institution at Muncy, et al., Defendants

The opinion of the court was delivered by: RAMBO


Plaintiff, an inmate at the State Correctional Institution at Muncy, Pennsylvania (SCIM), had sexual relations with an employee of the prison and became pregnant. Initially she sued a number of present and former state employees under the Civil Rights Act, 42 U.S.C. § 1983. All but two of the defendants prevailed on pretrial motions to dismiss or for summary judgment. The two who remained to defend at trial were Nile Kepner, a former employee at Muncy who was in charge of the work detail to which plaintiff was assigned, and Gerald Lightcap, Superintendent of SCIM at the time the acts of sexual intercourse occurred.

 Defendant Kepner admitted that he participated in two acts of sexual intercourse with the plaintiff. The dispute between them centered on whether the acts were the result of coercion, as plaintiff claimed, or were consensual.

 The court ordered separate consideration of the issues of defendant Kepner's liability, defendant Lightcap's liability and damages. The jury found that Kepner had violated plaintiff's constitutional rights. It awarded compensatory and punitive damages against him. Defendant Lightcap was exonerated of any liability to plaintiff.

 Nile Kepner has moved for judgment notwithstanding the verdict, or, in the alternative, for a new trial. Plaintiff seeks a new trial against Gerald Lightcap.

 Defendant Kepner's Post Trial Motion

 Defendant Kepner argues that the court erred in the following respects:

A. Denying defendant's motion for a directed verdict;
B. Refusing to allow evidence of plaintiff's criminal convictions;
C. Failing to instruct the jury, at the end of the first stage of the trial, as requested by defendant Lightcap's points for charge numbered 7, 10 and 11. *fn1"

 He further contends that the jury's award of damages was excessive.

 A defendant is entitled to a directed verdict or to a grant of judgment notwithstanding the verdict only if, as a matter of law, the plaintiff has failed to present a case for the jury. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir. 1970). Neither would be appropriate in this instance. Plaintiff testified in her case that she was forced into having sexual intercourse with Nile Kepner by repeated threats that he would take disciplinary action against her. Although she had, under oath, told a conflicting version of the events at a prior judicial proceeding, it was the province of the jury, not the court, to determine which of plaintiff's statements, or that of defendant, it believed. Based on plaintiff's testimony there was a case presented for the jury to consider.

 The court does not find the jury's award of damages excessive. The jury awarded $ 42,000.00 in compensatory damages and $ 20,000.00 in punitive damages against defendant Kepner. A court may set aside a verdict if it is the result of passion, bias or prejudice or if it is grossly excessive. 6A Moore Federal Practice P 59.05(3). Plaintiff testified to discomfort and humiliation at the time of the acts of intercourse. She also claimed that she has nightmares and is sexually ambivalent in her feelings toward men since her experiences with defendant Kepner. There was evidence that she named Kepner as the father of the child which she bore. Plaintiff was in her late teens at the time of the acts in question. She stated that she was a virgin. In light of these facts, an award totalling $ 62,000.00 is not disproportionate.

 At trial the court refused to permit the defendants to cross-examine plaintiff regarding the crimes for which she was incarcerated. Plaintiff had been convicted of two counts of murder in the second degree, burglary, arson, recklessly endangering another person, and risking and causing a catastrophe. The court believed that there was a danger of prejudice to the plaintiff from the admission of evidence of these crimes which was not outweighed by the probative value of the evidence. The jury knew that plaintiff was convicted of a crime and was serving time for the conviction. There was substantial impeachment in the record. Plaintiff's crimes were essentially ones of passion and violence which have low probative value on the issue of credibility. Gordon v. United States, 127 U.S. App. D.C. 343, 383 F.2d 936, 940 (D.C.Cir.1967). Balancing these factors, the court excluded the evidence.

 Post-trial briefing on this issue has convinced the court that it was error to consider the prejudice to a plaintiff resulting from the admission of evidence of prior crimes. The pertinent part of Federal Rule of Evidence 609 provides:

(a) For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, ... (Emphasis supplied.)

 Debate over F.R.Ev. 609, and particularly paragraph "a", was heated and extensive in both houses of Congress. *fn2" The House and Senate passed differing versions of the rule. The present rule is a compromise which emerged from the Conference Committee. The Committee issued a joint statement giving the following explanation:

With regard to the discretionary standard established by Paragraph (1) of Rule 609(a), the Conference determined that the prejudicial effect to be weighed against the probative value of the conviction is specifically the prejudicial effect to the defendant. The danger of prejudice to a witness other than the defendant (such as injury to the witness's reputation in his community) was considered and rejected by the Conference as an element to be weighed in determining admissibility. It was the judgment of the Conference that the danger of prejudice to a nondefendant witness is outweighed by the need for the trier of fact to have as much relevant evidence on the issue of credibility as possible. Such evidence should only be excluded where it presents a danger of improperly influencing the outcome of the trial by persuading the trier of fact to convict the defendant on the basis of his prior record. (Emphasis in original.) Conference Report. H.Rept.No. 93-1597, reprinted at Congressional Record, H 11930-11931 (daily ed. Dec. 14, 1974), U.S.Code Cong. & Admin.News 1974, p. 7051, 7103.

 Plaintiff, in attempting to discredit the legislative history cited by defendant Kepner, has quoted in her brief from a report of the Senate Judiciary Committee. However, that report applies to a proposed ...

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