Baker v. Cestari

• Decision Date: 08 September 1983
• Docket Number: Civ. No. 83-303-D.
• Citation: 569 F. Supp. 842
• Parties: Donald E. BAKER v. Mario CESTARI.
• Court: U.S. District Court — District of New Hampshire

569 F. Supp. 842

Donald E. BAKER v. Mario CESTARI.

Civ. No. 83-303-D.

United States District Court, D. New Hampshire.

September 8, 1983.

Donald E. Baker, pro se.

Robert A. Stein, Concord, N.H., for defendant.

ORDER

DEVINE, Chief Judge.

May one not called as a trial witness be required to respond in money damages to an unsuccessful litigant for failure to preserve evidence favorable to such litigant? That is the question posed at this stage of this lawsuit.¹ For reasons hereinafter detailed, it must be answered in the negative. The salient facts² are as follows.

On July 13, 1979, in Stratham, New Hampshire, plaintiff Donald E. Baker shot and severely wounded his estranged wife, Karen Cestari Baker. Charged with the offense of attempted murder, he raised a defense of insanity, but his conviction after jury trial was affirmed on appeal. State v. Baker, 120 N.H. 773, 424 A.2d 171 (1980).

For some period of time prior to the shooting, Baker had made what he describes as "irrational" telephone calls to his estranged wife. T I, 116, 120, 122.³ At the suggestion of a local police officer, T I, 76, Mrs. Baker had tape recorded some of these telephone conversations. T II, 58-62; T V, 193-95. After she had been shot, she gave these tapes to the defendant herein, her natural father, Mario Cestari. T II, 60-61. Mr. Cestari removed these tapes to his New York residence, played them, and subsequently destroyed them. T II, 60-62.

Though Cestari was present in the course of plaintiff's criminal trial, T V, 194, no attempt was made to call him as a witness⁴ and thus to elicit from him any recollection he might have as to the contents of the tapes.⁵ Accordingly, the right afforded by some statutes which permit the recovery of damages from witnesses who fail or refuse to testify or produce evidence upon request, see N.H. RSA 516:6; 81 Am. Jur.2d, Witnesses § 28.5, pp. 54, 55, has no application to this litigation. While it is the constitutional duty of every citizen to disclose information required in the administration of justice which may benefit third parties, Marceau v. Orange Realty, Inc., 97 N.H. 497, 499, 92 A.2d 656, 657 (1952), the litigant seeking such evidence must, as a condition precedent, make a call upon the witness for the production thereof. 81 Am. Jur.2d, Witnesses, supra.

Plaintiff here urges, however, that, although no summons was served upon defendant, nor was defendant voluntarily called to testify as to the contents of the tape recordings, his destruction of the recordings, standing alone, entitles the plaintiff to substantial damages.⁶ But it is elemental that, for conduct to be legally wrongful, it must contravene some duty which the law attaches to the relation between the parties.⁷ Duncan v. Lumbermens Mutual Casualty Company, 91 N.H. 349, 350, 23 A.2d 325, 326 (1941). Otherwise stated, "when there is no legal duty, there can be no breach of duty, and no finding of negligence". Sousa v. State Sweepstakes Commission, 119 N.H. 283, 285, 401 A.2d 1067, 1068 (1979) (citations omitted).

It follows, therefore, that the general rule in the United States holds that a tort action cannot be maintained for injury stemming from either the withholding or concealment of documentary evidence or the perjury of another or by the procurement of a third person to commit perjury. 1 Speiser, Krause, and Gans, The American Law of Torts § 1:14, p. 44 (1983). And while suppression by the prosecution of material evidence favorable to an accused upon request violates due process, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses — its guarantee is of "compulsory process for obtaining witnesses in his favor". United States v. Valenzuela-Bernal, ___ U.S. ___, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982).

As above noted, this case is akin to those wherein witnesses who have been called to the stand testify falsely. While an accused's right to present his own witnesses to establish a defense "is a fundamental element of due process of law", Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967), it has long been the rule in New Hampshire, McGranahan v. Dahar, 119 N.H. 758, 770, 408 A.2d 121, 129 (1979), and elsewhere, see Annot. 61 A.L.R.3d 1297, that witnesses who testify falsely or do not volunteer to testify are immune from damage actions. This is true whether such claims are grounded upon purported deprivation of constitutional rights, Briscoe v. Lahue, ___ U.S. ___, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), or are claimed to constitute breaches of common law duties. Stevens v. Rowe, 59 N.H. 578 (1880). The rationale of this rule has been stated to be:

Public policy, and the safe administration of justice, require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, except that imposed by the penalty for perjury.

Id. at 579, quoted in McGranahan v. Dahar, supra, 119 N.H. at 770, 408 A.2d at 129. See also Sweet v. Middlesex Mutual Insurance Company, 397 F.Supp. 1101, 1103 (D.N. H.), aff'd without opinion, 527 F.2d 642 (1st Cir.1975).

In short, defendant Cestari, having been neither summoned nor requested to testify with respect to the tape recordings of the telephone conversations between plaintiff and the then Mrs. Baker, owed no legal duty to plaintiff with regard to any items of evidence plaintiff might feel would have been favorable to him in either his criminal or his domestic relations actions.⁸ There being no legal duty owed, the instant action must be and it is herewith dismissed for failure to state a claim upon which relief may be granted. Rule 12(b)(6), Fed. R.Civ.P.⁹

SO ORDERED.

1 On August 25, 1983, the defendant filed in addition to his answer motions seeking respectively dismissal and summary judgment. The date of such filing was beyond that afforded defendant (to August 17, 1983) by the Magistrate's favorable ruling on defendant's motion seeking extension of time. Plaintiff accordingly filed herein on September 6 his motion seeking the entry of default pursuant to Rule 55(a), Fed.R.Civ.P. The general disfavor in which default judgments are held in this Circuit, Affanato v. Merrill Brothers, 547 F.2d 138 (1st Cir.1977), and the discretion afforded the Court to grant additional time for a party to plead or otherwise respond, 10 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 2682, p. 408 (1983), combine to mandate that the plaintiff's motion for entry of default be, and it is herewith, denied.

2 The facts are in large part gleaned from the extensive (5 volumes) transcript of plaintiff's criminal trial held in the Superior Court of Rockingham County, New Hampshire, in late November and early December of 1979. Said transcript has been filed in connection with plaintiff's pending (on motion for reconsideration before Loughlin, J.) habeas corpus petition, 28 U.S.C. § 2254, Civ. No. 82-702-L, Baker v. Perrin. As part of the files of this court, such transcript contains factual material of the type of which federal courts...