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Bower v. O'Hara

April 17, 1985

ROBERT BOWER
v.
TERRENCE O'HARA, DORIS SPARKS AND SPARKS CARIBBEAN INVESTMENT, INC., DORIS SPARKS, APPELLANT IN NO. 84-3400; TERRENCE O'HARA, APPELLANT IN NO. 84-3402



Appeal from the District Court of the Virgin Islands Division of St. Thomas and St. John.

Seitz, Gibbons and Sloviter, Circuit Judges.

Author: Gibbons

GIBBONS, circuit Judge:

In these appeals the defendants Doris Sparks and Terrence O'Hara appeal from a $900,000 judgment in favor of Robert Bower for injuries Bower received at the hands of O'Hara. The affray which resulted in Bower's injuries took place on December 30, 1979 in Fat City, a tavern, owned by Sparks, in Charlotte Amalie, United States Virgin Islands. Both Bower and O'Hara were patrons. Summary judgment on the issue of liability was entered against O'Hara because he had pleaded guilty to a criminal charge with [which] arose from the same incident providing the basis for Bower's civil action. the case against Sparks was tried to a jury on the theory that she or her employees were negligent in permitting a patron with O'Hara's dangerous propensities to have access to the premises. Sparks contends that she is entitled to a judgment notwithstanding the verdict, or that because of trial errors she is entitled to a new trial. O'Hara contends that the court erred in striking his defense of self-defense and entering a summary judgment on liability. both contend that trial errors tainted the jury's damage determination. We reverse and remand for a new trial.

I. BACKGROUND

A. The Facts

On December 29, 1979 Bower, accompanied by his friend Jeff Halpern, went to Fat City for a drink. While the were there a fight broke out between Halpern and O'Hara, in which a table was broken. The bartender, Al Wheatley, interceded, and "86d" both Halpern and O'Hara; that is, in the vernacular, he permanently barred both of them from Fat City. As both were leaving, O'Hara attacked Halpern from behind and bit him on the neck. Shortly after this incident Ms. Sparks, who had recently become the owner of Fat City, arrived and was informed by Wheatley of what had transpired. Wheatley also informed her that one of the combatants, O'Hara, was the same person who, as he had reported to her several weeks earlier, had choked a patron until the victim began to turn blue. Wheatley told Sparks that, in his opinion, O'Hara was dangerous, and if not kept from the bar, would kill or injure someone some day. the established procedure at Fat City was to place the name of each patron who has been "86d" on a clipboard so as to call the exclusion to the attention of the next bartender. Sparks assumed Wheatley would follow this procedure, but inexplicably he did not. thus Don Lawley, the bartender on duty the next evening, was unaware that O'Hara had been barred from the premises.

On December 30, 1979 Bower, with a man and a woman friend, returned to Fat City for a drink. O'Hara entered while Bower and his friends were there. What took place between them is a matter of dispute. Bower's version, supported by the testimony of his witnesses, is that after O'Hara was served a drink Bower turned to him and asked, "What was the beef between you and Jeff last night?" O'Hara thereupon stabbed him in the stomach. O'Hara's version, as testified to by Henrietta Malse, a waitress, is that Bower and his friends were drunk; that Bower angrily told his friends that he wanted to kill O'Hara; that Bower confronted O'Hara near the door; that O'Hara left Bower after the confrontation and entered the mens room; and that when he emerged, Bower confronted him again. There is no dispute that O'Hara had a knife, and that Bower was stabbed.

On August 12, 1980 Bower filed a civil action charging O'Hara with assault and battery and Sparks with negligence. Thereafter on October 24, 1980 the United States Attorney, on behalf of the Government of the Virgin Islands, filed an amended information charging O'Hara with assault with intent to commit murder in violation of V.I. Code. Ann. tit. 14, § 295(1) (1964), carrying a knife during the commission of a crime of violence of id. § 2251(a)(2)(B) (Supp. 1984), and third-degree assault in violation of id. § 297(4) (Supp. 1984). n.1 [Footnote Omitted] Each of these charges carries a maximum sentence of five years. Facing a possible fifteen year jail term, O'Hara entered into a plea bargain in which the United States Attorney agreed to dismiss the section 295(1) and section 2251(a)(2)(B) charges if O'Hara would plead guilty to the section 297(4) charge. the terms of the plea bargain were placed on the record, and the court, pursuant to Fed. R. Crim. P. 11, caused the United States Attorney to place the factual basis for the plea on the record. The United States Attorney stated that his evidence would show that while Bower and O'Hara were talking at Fat City, O'Hara appeared to pat Bower on the stomach; witnesses saw the flash of a knife in O'Hara's hand, and Bower, suffering from stab wounds in the abdomen, lost consciousness. The court ruled, "that will be a sufficient basis for a plea of guilty to assault third." App. 26. The Court Then accepted the plea.

B. The Partial Summary Judgment

O'Hara's answer to the civil action asserted that he acted in self-defense. Likewise, Sparks' theory of the case was that Bower was the aggressor. On October 29, 1981 Bower moved to strike O'Hara's self-defense claim from his answer and to enter partial summary judgment against him on the issue of liability. Bower argued in support of the motion that by virtue of O'Hara's guilty plea to a violation of section 297(4) which provides that "whoever . . . assaults another and inflicts serious bodily injury upon the person assaulted . . . shall be fined not more than $500 or imprisoned for not more than five years or both", he was collaterally estopped from asserting that he acted in self-defense.

Bower's motion was granted by the district court which relied on United states v. Accardo, 113 F. Supp. 783 (D.N.J.), aff'd per curiam, 208 F.2d 632 (3d Cir. 1953), cert. denied, 347 U.S. 952, 74 S. Ct. 677, 98 L. Ed. 1098 (1954) and Metros v. United States District Court, 441 F.2d 313 (10th Cir. 1970).

C. The Trial

O'Hara's deposition was taken by Bower prior to trial, but since liability had been decided adversely to him by the partial summary judgment, O'Hara did not appear at trial. At the time of trial O'Hara was not within reach of a subpoena. Bower made a motion in limine to prevent Sparks from introducing either live or deposition testimony of O'Hara which contradicted his guilty plea. Such testimony would, according to Bower, result in a "mockery of justice." By then, Bower had the benefit of O'Hara's deposition and knew that O'Hara's testimony as to the events leading up to the affray would conflict with his own. The court did not rule on that motion prior to trial. App. 246. It did rule, however, that neither defendant could offer testimony about O'Hara's psychiatric condition. App. 247.

At trial, following the presentation of his case, Bower, aware that Sparks intended to introduce O'Hara's deposition, raised the matter with the court. This colloquy took place outside the presence of the jury:

MR. KING: [Bower's attorney] There is a problem with the O'Hara deposition, again.

THE COURT: What is the problem?

MR. KING: I had filed a motion in limine with respect to the problem with the admission, I would insist the collateral estoppel effect of the Court's ruling precludes any testimony from Mr. O'Hara that Mr. Bower was the aggressor.

THE COURT: That's true. you see, I tried to make one thing clear in that opinion I wrote. When Mr. Stout requested the collateral estoppel. Mr. O'Hara admitted before I would take his plea of guilty, and I made it clear to him. I will not accept your plea of guilty if you are coming in with this Vietnam syndrome. If you are coming in with self-defense, I will accept your plea of guilty if and only if you are admitting you committed an unlawful assault on this man.

And I told Mr. Stout, take time, have a recess and talk with him. And when they came back when they resumed the Rule 11 proceedings, it was on that basis.

So he is not going to be heard in this Court before me, unless higher authority says so, to talk about any excuse for this unlawful assault, which he admitted under oath.

MR. KEELING: [Sparks' attorney] May I submit, your Honor, I would be calling Mr. Terrence O'Hara --

THE COURT: You just told me he was Mr. Capdeville's witness.

MR. KEELING: I did say that your Honor.

THE COURT: You are going to call him now?

MR. KEELING: I will call Mr. O'Hara, I would like to put him on. He is my witness to present the facts that occurred in my client's restaurant on December 30, 1979.

THE COURT: I don't want this to be a total fraud in this Court, a total fraud in this Court, and I am going to be very careful with what I let the lawyers do.

As a matter of fact, I am very much displeased with some the [of] the courses being taken in this Court on Mr. O'Hara's behalf. Mr. O'Hara was supposed to be going to the penitentiary, but for representations made to me that he had made his peach with this government, and had come to some agreement with this gentleman on the front bench.

And I asked him if he had any objection to probation under those circumstances, and he said no. That is the only thing that saved Mr. O'Hara from the penitentiary.

I am not going to permit anyone before me, to come under oath, after having been warned, and give me one version of it, and then hide in New York, and send a deposition down here.

If he wants to testify for you, bring him. Because the moment he says contrary to this, he is going to jail for contempt of Court and perjury, he would not be allowed to deny anything he admitted under oath to persuade me to accept that guilty plea.

I only say that you are not collaterally estopped, but you are not going to do it through the perjured testimony of Mr. O'Hara, either perjury then or now. It is a fraud on the Court, and I will not permit it.

App. 1000-03.

MR. KEELING: It has the same effect, whether it goes under the name collateral estoppel, or whatever.

THE COURT: No. You are not collaterally estopped to bring any witness to testify that Mr. Bower menaced Mr. O'Hara to the extent that Mr. O'Hara was legally justified or excused in stabbing him in self-defense. You can bring any witness you want to support that story.

You said in the opening statement that Mr. O'Hara -- Mr. Bower threatened Mr. O'Hara, to kill him. If you have any witnesses to testify to that other than Mr. O'Hara, well and good. But Mr. O'Hara is not going to hide in New York and perpetrate this fraud on the Court. I'm sorry.

App. 1004

THE COURT: I will not permit Mr. O'Hara's deposition, that much I will rule on ...


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