Voutour v. Vitale

Decision Date09 May 1985
Docket NumberNos. 84-1159,84-1214,s. 84-1159
Citation761 F.2d 812
PartiesJames T. VOUTOUR, Plaintiff, Appellee, v. Harold VITALE, et al., Defendants, Appellants. James T. VOUTOUR, Plaintiff, Appellant, v. Harold VITALE, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Richard L. Neumeier, Boston, Mass., with whom James F. Meehan, Cheri L. Crow and Parker, Coulter, Daley & White, Boston, Mass., were on brief for James T. Voutour.

Alan Garber, Boston, Mass., with whom Philip A. Mason and Mason & Martin, Boston, Mass., were on brief for Harold Vitale.

Gael Mahony, Boston, Mass., with whom Michael S. Greco, Robert G. Dreher and Hill & Barlow, Boston, Mass., were on brief for Town of Saugus and Fred Forni.

Richard M. Magnan, Andover, Mass., with whom George O. Gregson, Saugus, Mass., was on brief for Howard Wheeler.

Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and PEREZ-GIMENEZ, * District Judge.

PER CURIAM.

This appeal is from the judgment entered in a section 1983 civil rights action and pendent state tort claim arising out of the shooting of plaintiff James T. Voutour by a Saugus police officer, defendant Harold Vitale. We start with a capsulated account of the circumstances leading to the shooting.

THE FACTS

Voutour and two companions, Dennis MacDonald and Lawrence Dionne, spent the night of Sunday, February 13, 1977, and early Monday morning driving around in an automobile just acquired that afternoon by Voutour. The car was in poor condition; the tires were bad, the brakes did not operate properly, and one headlight was burned out. The car was neither registered nor insured. Sometime early Monday morning, Voutour drove to the parking lot of Gibbs Ford. When he got there, he noticed a police cruiser. The cruiser was manned by Vitale and a subordinate, defendant Howard Wheeler. Vitale and Wheeler were looking for a vehicle that had been involved in an automobile accident earlier that night.

There are two different versions of what happened at the Ford lot. Wheeler's version is that he noticed the Voutour vehicle and started towards it on foot when it suddenly accelerated, turned around, passed him, proceeded the wrong way for a time on an exit ramp off Route 1 and then drove away. As the car started to accelerate, Wheeler shouted "stop" and noted its license plate number as it went by him. Voutour testified that, because of the condition of his car, he did not want any problems with the police, so when he saw the cruiser he turned around, left the parking lot, went the wrong way for a short distance on the exit ramp, and then proceeded on his way. He was not aware that the police had seen the car and heard no command to stop.

Voutour's intention was to drop MacDonald off near his home. In order to avoid the police, he took an indirect route. Before he got to MacDonald's drop-off corner, Voutour stopped the car temporarily so MacDonald's tape deck could be detached from the dash. He pulled over to the side of the road, kept the engine running and put the gear shift lever in the park position. A short time later, Vitale and Wheeler, who were looking for the Voutour vehicle, passed the parked car, backed up and stopped the cruiser about a car's length behind the Voutour vehicle. After determining that the car was the same one that they had seen at the Gibbs Ford lot, it was decided that Wheeler would question the occupants. The cruiser did not have its flashing blue lights on, nor was the siren used. Wheeler left the cruiser without wearing his police hat. There is a dispute as to whether Wheeler had both a gun and a flashlight in his hands as he approached the car or just a flashlight. When Wheeler Again, there are two versions of what happened next. Voutour says that as soon as he realized Wheeler was a policeman, he started to slow down, opened the door, put his left foot out and was starting to put the car in park when he was shot. Vitale testified that he got out of the cruiser, saw the Voutour vehicle start up with Wheeler being dragged down the road. He yelled for the car to stop, but it did not slow down. He then decided that in order to save the life of his partner, he had to stop the car by shooting the driver. He drew his revolver and fired at the driver's shoulder. There is no dispute that the shot hit Voutour in the neck rendering him a permanent quadriplegic.

got to the door on the passenger's side of the car, Voutour started to accelerate. The car skidded slightly, grazing Wheeler who grabbed the door handle and continued to hang onto it as the car moved forwards.

PROCEDURAL HISTORY

Voutour sued both Vitale and Wheeler under 42 U.S.C. Sec. 1983 and also filed a pendent assault and battery claim against Vitale under Massachusetts law. He brought a section 1983 action against the Town Chief of Police at the time of the shooting, Fred Forni, and against the Town of Saugus. 1 Over a year before the trial, the district court allowed motions for summary judgment filed by Wheeler, Forni, and the Town on all claims against them. The jury returned a verdict which, in effect, found Vitale not liable on the section 1983 count, but liable on the state assault and battery count; it awarded Voutour damages against Vitale in the amount of $1,100,000. Both Voutour and Vitale have appealed.

VITALE JURY VERDICT

The jury found Officer Vitale not liable to Voutour under section 1983 but liable for assault and battery under the law of Massachusetts. Both plaintiff and defendant seek to have this verdict overturned on the ground that written questions submitted by the jury to the district judge after the case had gone to the jury, and the judge's written responses thereto, were not disclosed to counsel until after the verdict.

At the close of the trial, the court put three special questions to the jury. Question # 1, which was to be answered "yes" or "no," was whether defendant Vitale had shot plaintiff under circumstances in which the use of deadly force was so unreasonable as to violate plaintiff's constitutional rights. Question # 2, which was to be answered in a similar way, was whether defendant Vitale had been justified under state law in using deadly force against plaintiff. Question # 3, which had three parts, concerned the amount of damages to be awarded to compensate plaintiff for his injuries, for the violation of his constitutional rights, and for other punitive damages.

During its deliberations, the jury sent the district judge the following note:

Your Honor:

If the answer to question # 1 is--no + the answer to question # 2 is--yes--may--we turn to page two + fill in any dollar amount.

The district court did not notify counsel of this inquiry, but instead sent the following written response:

Members of the Jury:

You must answer question 3 only if the answer to Question 1 is yes and/or the answer to Question 2 is no.

Thereafter, the jury sent another note to the judge which read:

Your Honor:

This may be a funny question, But is there any way question # 2 can be worded different. We feel that officer Vitale had a right to shoot to protect his partner, but Jimmy Vouture (sic) did not know he was endangering an officer's life, so he was also some-what not wrong.

Again, without notifying counsel the judge responded in writing:

Members of the Jury:

I cannot word Question 2 in any other way. It asks you to answer the only question which is legally relevant concerning Mr. Voutour's claim under state law. That question concerns Mr. Vitale's conduct and, particularly, whether he was "justified" in shooting Mr. Voutour, as I had explained that term.

The jury then sent the judge a written note asking:

Your Honor:

I hate bothering you again. But could you please write me a definition of Justification + also write to me briefly the State Law relative to # 2.

Thank you.

At this point, the judge contacted counsel for the first time. She told them that she had received the latter note and read it to them. She also informed them that there had been earlier questions from the jury which she had not disclosed to counsel because some of these were "too suggestive of what the jury was doing." The judge did not show the earlier notes to counsel but promised that she would do so after the jury had rendered its verdict and that she would allow any objections at that time. The jury was then brought in and the judge issued supplementary instructions on the state law claim.

Thereafter, the jury returned a split verdict, finding for the defendant Vitale on the section 1983 claim, but for the plaintiff Voutour on the state assault and battery claim. The court, as it had promised, later revealed all of the earlier questions it had received from the jury and its responses. Vitale filed a motion for judgment n.o.v. or new trial, claiming that he had been prejudiced by the district court's secret instructions. The district court denied the motion.

On appeal Vitale renews his argument claiming that the district court's failure to notify counsel of the content of the jury's earlier requests was prejudicial and deprived him of the opportunity to prevent what he characterizes as a compromise verdict. He is joined by plaintiff who also claims that he was prejudiced by the district court's secret instructions to the jury. Both parties seek a new trial as to all counts. 2

We are guided here by the Supreme Court's holding in Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 39 S.Ct. 435, 63 L.Ed. 853 (1919), that "written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object." Id. at 81, 39 S.Ct. at 436. As the Court pointed out:

It is not correct ... to regard the opportunity of afterwards excepting to the instruction and to the manner of giving it as equivalent to an opportunity to be present during the proceedings....

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