Drohan v. Vaughn

• Decision Date: 06 April 1999
• Docket Number: No. 98-1361,98-1361
• Citation: 176 F.3d 17
• Parties: Robert DROHAN, Plaintiff, Appellant, v. Norman VAUGHN, Jr. and Constance Norton, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 17

176 F.3d 17

Robert DROHAN, Plaintiff, Appellant, v. Norman VAUGHN, Jr. and Constance Norton, Defendants, Appellees.

No. 98-1361.

United States Court of Appeals First Circuit.

Heard April 6, 1999.

Decided May 20, 1999.

Sherin B. Lussier, for appellant.

Carol N. Glick, with whom John G. Hines and Hines and Patz, Inc., were on brief, for appellees.

Before TORRUELLA, Chief Judge, BOUDIN and STAHL, Circuit Judges.

STAHL, Circuit Judge.

In this diversity action, plaintiff-appellant Robert Drohan appeals the entry of judgment against him in his negligence suit against defendants-appellees Norman Vaughn, Jr. and Constance Norton. We affirm.

I. Background

On June 28, 1994, Drohan, a detective with the Special Investigations Bureau of the Providence Police Department, assisted in the execution of a search warrant at 10 Marcello Street, a three-story apartment building owned by Norton and maintained by her husband Vaughn. The warrant authorized a search of the first floor apartment, as well as of the persons of Louis E. Luciano and JoAnna Caraballo, two suspected drug dealers who rented the apartment.

According to Drohan, he was approximately the fourth officer to enter the premises through a side door, which led into a narrow hallway. The first floor apartment door was located off the hallway, and to the immediate left, about five feet away, was another door leading to the basement of the building. Drohan testified that the door to the basement was open, though he did not know how or when it had been opened.

The officers did a sweep of the first floor apartment, but did not find the suspects. Drohan testified that he heard a noise coming from the direction of the basement and that he followed two other detectives through the basement door and down the steps in the belief that the suspects might have been hiding down there. The steps, which were unlighted and without a handrail, had cracked treads. Drohan stated that, as he was descending the stairway, one of the steps "let go" and "lurched forward." Drohan fell and injured his leg. There was no one found in the basement.

Vaughn testified that the basement was off limits to tenants. There was no testimony indicating that Vaughn had difficulties keeping tenants out of the basement after he installed the lock on the basement door, which he did shortly after he bought the property. Although he always kept the basement door locked, he stated that he could not swear that the door was locked on that day. Upon inspection after the raid, the lock to the basement door was found broken, with the catch on the floor. There was no other damage to the door.

After a four-day trial, the court instructed the jury concerning, inter alia, what circumstances would constitute lawful authorization for Drohan to be in the basement. The court stated that if Drohan were not lawfully authorized to enter the basement, the jury must return a verdict for defendants, because a landowner's only duty to a trespasser is to refrain from causing him wanton or willful injury, and that there was no evidence that this injury was wanton or willful. In response to a special interrogatory, the jury found that Drohan was a trespasser, and returned a verdict for defendants.

On appeal, Drohan challenges, on several different grounds, the court's jury instructions, special interrogatory form, and refusal to admit certain evidence.

II. Analysis

A. Jury Instructions

Drohan first objects to the jury instructions regarding his authorization to be in the basement stairway. The court gave, in relevant part, the following instructions regarding Drohan's authorization:

[T]he warrant did not authorize the Plaintiff to enter or search any other part of the building [other than the first floor apartment], nor did it authorize the Plaintiff to enter any other part of the building for the purpose of finding the two individuals named in the warrant in order to search them. If in the course of searching the first-floor apartment, the individuals had been discovered then the warrant would have permitted the police officers to search those individuals, but it did not authorize the police to go throughout the entire building in order to find those persons in order to search them.

However, ... notwithstanding the fact that the warrant didn't specifically authorize it, the Plaintiff would have been lawfully authorized to enter the basement stairway, if he had good reason to believe that there were individuals hiding in the basement, whose presence created a risk of harm to him or to others, and that entering the basement was necessary in order to protect against that risk of harm.

In order to establish that, the Plaintiff must point to specific facts justifying such a belief. It isn't enough for counsel to simply argue in the abstract that this kind of thing is commonly done or should be done....

Drohan argues that these instructions were erroneous in the following respects: (1) the warrant authorized Drohan to search for the suspects anywhere on the premises; (2) regardless of the scope of the warrant, Drohan had an absolute right to sweep the basement without reasonable suspicion; (3) even if a sweep of the basement required reasonable suspicion, the court's charge that Drohan had to have a "good reason" set a higher standard than reasonable suspicion; and (4) the court did not use or define the term "protective sweep" in giving this charge.

The first three objections were not raised after the jury was charged and before it retired to deliberate. ¹ Fed.R.Civ.P. 51 states that "[n]o party may assign as error the giving or failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict...." See also Putnam Resources v. Pateman, 958 F.2d 448, 456 (1st Cir.1992) (stating that silence after jury instructions "typically constitutes a waiver of any objections" for purposes of appeal). Because Drohan did not object to the instructions, we review only for plain error. See Moore v. Murphy, 47 F.3d 8, 11 (1st Cir.1995). Thus, we reverse only if there is a "plain" or "obvious" error that "affect[s] substantial rights" and which has resulted in a "miscarriage of justice or has undermined the integrity of the judicial process." Wilson v. Maritime Overseas Corp., 150 F.3d 1, 6-7 (1st Cir.1998). "The plain error standard, high in any event, is near its zenith in the Rule 51 milieu." Toscano v. Chandris, 934 F.2d 383, 385 (1st Cir.1991) (citations omitted). As there has been no showing of a miscarriage of justice or an effect upon the integrity of the judicial process, we conclude that there was no plain error. ²

Drohan did, however, preserve his objection to the court's failure to use or define the term "protective sweep." Even if we assume arguendo that the instructions were erroneous in this respect, we review the alleged error under the "harmless error" rule: an error is not harmless if it "affect[s] the substantial rights of the parties" and is "inconsistent with substantial justice." Scarfo v. Cabletron Sys. Inc., 54 F.3d 931, 939 (1st Cir.1995) (citing Fed.R.Civ.P. 61). This circuit has held that when executing a search warrant, officers can perform a "protective sweep" of an area if there is a reasonable suspicion of risk to the safety of the officers. See United States v. Daoust, 916 F.2d 757, 759 (1st Cir.1990) (analogizing the situation to protective sweeps done in conjunction with arrest warrants). ³ In so holding, we reiterated that in order to conduct a protective sweep, an officer must possess "a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. (quoting Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990)).

While the district court in this case did not use the term "protective sweep," its jury instructions closely tracked the language used in Daoust to describe a protective sweep. ⁴ We see no reason why the failure to use the actual term "protective sweep" would in any way prejudice Drohan or affect the jury's decision making process. Therefore, the alleged error, if any, would be harmless.

B. The Trespasser and Scope of the Warrant Defenses

Claiming that defendants based their trespasser and scope of the warrant defenses upon faulty legal theories, Drohan argues that the court should have precluded defendants from presenting these defenses. Because Drohan did not move for judgment as a matter of law, his arguments amount to a challenge of the court's decision to instruct the jury: Drohan contends that the court should never have presented these issues to the jury in its instructions and special interrogatory form. Drohan did not, however, object to the court's instructions or interrogatory form on these bases. Therefore, again, we review for plain error. ⁵ Drohan has not met his burden of showing that the alleged errors resulted in a miscarriage of justice. Indeed, Drohan has not even demonstrated that there were any clear or obvious errors. ⁶ Accordingly, we find no plain error in the presentation of these defenses to the jury.

C. Special Interrogatory Form

Drohan contends that the special interrogatory form improperly asked the jury to reach a legal conclusion as to Drohan's authorization to enter the basement. Drohan argues that the court should instead have asked the jury to determine the existence of "duty triggering facts" (such as whether the basement door was open), and then decided as a matter of law the ultimate issue of whether Drohan was a trespasser.

The form read, in pertinent part:

Question 1. When the plaintiff entered the stairway leading to the basement was he:

_____ A lawful entrant who was authorized to enter the stairway or

_____ A trespasser who was not authorized to enter the stairway?

If your answer is that he was a trespasser, do not answer any further questions and return a verdict in...