Smith v. Tidewater Marine Towing, Inc.

• Decision Date: 01 April 1991
• Docket Number: No. 90-4515,90-4515
• Citation: 927 F.2d 838
• Parties: 32 Fed. R. Evid. Serv. 657 Milton Roy SMITH, Plaintiff-Appellant, v. TIDEWATER MARINE TOWING, INC., et al., Defendants, Tidewater Marine Towing, Inc., and Twenty Grand Marine Service, Inc., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 838

927 F.2d 838

32 Fed. R. Evid. Serv. 657

Milton Roy SMITH, Plaintiff-Appellant, v. TIDEWATER MARINE TOWING, INC., et al., Defendants Tidewater Marine Towing, Inc., and Twenty Grand Marine Service, Inc., Defendants-Appellees.

No. 90-4515

Summary Calendar.

United States Court of Appeals Fifth Circuit.

April 1, 1991.

R. Scott Ramsey, Jr., Morgan City, La., for plaintiff-appellant.

Cliffe E. Laborde, III and Dean A. Cole, Laborde & Neuner, Lafayette, La., for Tidewater and Twenty Grand.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOHNSON, SMITH, and WIENER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Milton Roy Smith appeals from the decision of the jury in his Jones Act, 46 U.S.C.App. Sec. 688, negligence and unseaworthiness suit against Defendant-Appellees Tidewater Marine Towing, Inc. and Twenty Grand Marine Service, Inc. (collectively, Tidewater). After the jury had returned a verdict by interrogatories, the court entered judgment for Tidewater. Smith filed a motion for a new trial and, in the alternative, for a judgment notwithstanding the verdict (j.n.o.v.), which the district court denied. We affirm.

I OPERABLE FACTS

Tidewater hired Smith in December 1986 to work as a deckhand. Smith was injured in two accidents while working for Tidewater. The first accident occurred on May 24, 1987, while Smith was operating a winch on a tugboat, the M/V CHAROLAIS II. Smith claims that because Tidewater never instructed him how to operate that particular winch, he strained and injured his back when the winch suddenly tightened while he was working on it. Smith missed work for approximately two weeks. Upon returning to work, Smith was assigned to another tugboat, the M/V RED FLANDERS. Smith's second injury occurred in an incident involving this vessel.

On June 18, 1987, the RED FLANDERS was repositioning an empty barge. Smith and the mate on the RED FLANDERS had boarded the empty barge in order to secure it to a loaded barge. To do so, one of the men had to board the loaded barge which lay in the water about eight feet below the empty barge. Smith jumped down to the loaded barge, injuring his back on landing. He claims that the mate told him that he would have to jump. The mate testified that he told Smith not to jump. Smith eventually underwent two lumbar laminectomies and discectomies for his injury.

Alleging that he was injured because of Tidewater's negligence and because of the unseaworthiness of the vessels, Smith filed suit in May 1988. After the jury returned On appeal Smith contends that Tidewater introduced evidence of his felony conviction not to impeach his testimony but to prejudice the jury against him; that the trial court erred in not granting him a new trial or a j.n.o.v. when the jury returned inconsistent answers to interrogatories; that the evidence is insufficient to support the jury's verdict absolving Tidewater of liability; and that in answering the interrogatories the jury awarded inadequate damages.

a verdict on interrogatories, the court entered judgment for Tidewater. The court noted that the jury did make out an award and did fill out some interrogatories assessing the amount of Smith's damages. The court declared, however, that answering these interrogatories was unnecessary because the jury had found that Tidewater was not negligent and that the vessels were not unseaworthy. On June 15, 1990, the district court denied Smith's j.n.o.v. and new trial motions. Smith filed notice of appeal on July 2, 1990.

II IMPEACHMENT

Both sides to this dispute agree that Federal Rule of Evidence 609(a)(1) requires a judge to permit impeachment of a civil witness with evidence of prior felony convictions regardless of the unfair prejudice to the witness or the party offering the testimony. See Green v. Bock Laundry Machine Co., 490 U.S. 504, 109 S.Ct.1981, 104 L.Ed.2d 557 (1989). Smith, however, argues that because attempted simple robbery is punishable by only six months' imprisonment, Rule 609(a)(1) does not embrace his conviction. Smith incorrectly states the terms of punishment. The Louisiana Criminal Code indicates that attempted simple robbery is punishable by imprisonment for up to 3 1/2 years. See La.Rev.Stat.Ann. Sec. 14:27 D(3) and 14:65 B. ¹ Smith received a three-year prison sentence which the court suspended, placing him instead on supervised probation for four years. Rule 609(a)(1) clearly applies to Smith's conviction.

Smith also contends that because he received a pardon for his conviction, evidence of that conviction is not admissible under Rule 609(c). Rule 609(c) requires, however, that the conviction "ha[ve] been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted...." Smith received, as he acknowledges, a first-offender pardon. Article 4, Section 5(E)(1) of the Louisiana Constitution of 1974 provides that "a first offender never previously convicted of a felony shall be pardoned automatically upon completion of his sentence, without a recommendation of the Board of Pardons and without action by the governor." The dispute, therefore, concerns whether a first-offender pardon, which the state constitution automatically grants, implies the finding of rehabilitation that Rule 609(c) requires in order to render the conviction inadmissible.

On its face the first-offender provision in the Louisiana Constitution does not require any showing of rehabilitation. See La. Const. art. 4, Sec. 5(E)(1). It merely requires that the first offender have completed his sentence. Id. Smith, nevertheless, argues that a pardon based upon good behavior is a pardon based upon rehabilitation. See United States v. Pagan, 721 F.2d 24, 30 (2d Cir.1983). But Pagan is distinguishable. The second circuit held a finding of rehabilitation or its "equivalent procedure" present when the court twice exercised its discretion, first in placing Pagan on probation and second in granting him an unconditional discharge before his probation expired. Id. at 30. In contrast, no court so exercised discretion for Smith; he had completed his probation before he received his automatic pardon. No finding of rehabilitation or its equivalent procedure is, therefore, implicit in Smith's receiving his automatic pardon. See United States v. Wiggins Smith's automatic pardon simply restored his civil rights. ² The Advisory Committee's Note to Rule 609(c) states that "[a] pardon or its equivalent granted solely for the purpose of restoring civil rights lost by virtue of a conviction has no relevance to an inquiry into character." Fed.R.Evid. 609 advisory committee's note. Consequently, Rule 609(c) does not prohibit the admission of Smith's conviction.

66 F.2d 944 (5th Cir.) (defendant's release from halfway house where placed during probation not shown to be based on finding of rehabilitation within literal requirement of Rule 609(c)), cert. denied, 436 U.S. 950, 98 S.Ct. 2859, 56 L.Ed.2d 793 (1978); Gaudin v. Shell Oil Co., 132 F.R.D. 178 (E.D.La.1990) (state court's setting aside plaintiff's first conviction pursuant to La.Code Crim.Proc.Ann. art. 893 is not equivalent to finding of rehabilitation); see also Wilson v. Attaway, 757 F.2d 1227, 1244 (11th Cir.1985) (Georgia First Offender statute does not involve finding of rehabilitation); United States v. Jones, 647 F.2d 696, 700 (6th Cir.) (pardon restoring civil rights did not prove rehabilitation), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981).

Citing Shows v. M/V Red Eagle, 695 F.2d 114, 119 (5th Cir.1983), Smith also contends that Tidewater introduced evidence of Smith's felony conviction not to impeach his testimony, as Rule 609(a)(1) requires, but to prejudice the jury against him. Unlike the trial court in Shows, Smith's trial court did not permit the extent of the cross-examination to abuse Rule 609. It restricted the inquiry to the fact and date of Smith's conviction and the identity of the offense.

In addition, the record, belying Smith's prejudice claim, indicates why Smith's credibility was in question. It reveals inconsistencies and contradictions between Smith's deposition and trial testimony. For example, despite his conviction, Smith denied at his deposition and on a Tidewater employment application that he had ever been in trouble with the law. He later claimed that because he had been pardoned, he believed that he did not have to include his conviction on the application. Smith had not, however, received his pardon at the time of the application. The record also indicates that Smith inconsistently answered questions on automobile accidents and on his educational level. For these reasons we find no merit to Smith's claim that the purpose of admitting the conviction into evidence was to prejudice the jury against him. His conviction was properly admitted. ³

III SPECIAL INTERROGATORIES

Smith insists that the jury in reaching its special verdict inconsistently answered interrogatories. The trial court consequently erred, he claims, in denying his motion for a new trial or for a j.n.o.v. The district court posed eighteen interrogatories to the jury. The first seven questions concerned liability for the May 24, 1987 incident on the M/V CHAROLAIS II; the next seven concerned liability for the June 18, 1987 incident on the M/V RED FLANDERS. With respect to each incident, these fourteen interrogatories focused on whether Tidewater was negligent, whether its negligence caused Smith's injuries, whether its vessels were unseaworthy, and whether Smith was contributorily negligent. Questions 15 and 16 asked what percentage of Smith's injuries, if any, the The jury responded "no" to the four questions that asked whether Tidewater was negligent with respect to both incidents and whether both vessels were unseaworthy in both incidents. Consequently, as the notes accompanying the...