DeVasto v. Faherty, 80-1598

• Decision Date: 03 June 1981
• Docket Number: No. 80-1598,80-1598
• Citation: 658 F.2d 859
• Parties: 9 Fed. R. Evid. Serv. 55 Alice DeVASTO, Plaintiff-Appellant, v. Robert FAHERTY, Patrick Rose and David Johnstone, Defendants-Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 859

658 F.2d 859

9 Fed. R. Evid. Serv. 55

Alice DeVASTO, Plaintiff-Appellant, v. Robert FAHERTY, Patrick Rose and David Johnstone,

Defendants-Appellees.

No. 80-1598.

United States Court of Appeals, First Circuit.

Heard June 3, 1981.

Decided Sept. 11, 1981.

Jeffrey Kobrick, Cambridge, Mass., with whom John Reinstein, Boston, Mass., was on brief, for plaintiff-appellant.

Steven P. Perlmutter, Asst. Corp. Counsel, Boston, Mass., with whom John Giuliani, Jr., Charlestown, Mass., was on brief, for defendants-appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, MAZZONE, ^* District Judge.

BOWNES, Circuit Judge.

This is an appeal by plaintiff Alice DeVasto from a jury verdict in favor of defendants in a § 1983 civil rights action. Plaintiff sought damages from two officers of the Boston Penal Department, Patrick Rose and David Johnstone, and a sergeant in the Boston Police Department, Robert Faherty, for an alleged illegal forcible entry and search of her home and for an unlawful assault on her by defendant Faherty. In addition to the usual appeal from the judgment and denial of her motion for a new trial, plaintiff also appeals the refusal of the district court, 479 F.Supp. 1069, to allow her to amend her complaint by adding the City of Boston as a defendant and the denial of her motion for a judgment of default against defendant Johnstone, who did not appear at the trial, and her motion for judgment n. o. v. or a new trial as to Johnstone.

The standard of review is clear: "In reviewing a motion for judgment n. o. v., it is improper to weigh credibility or resolve conflicting testimony. The motion is properly granted only when, as a matter of law, no conclusion but one can be drawn." Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 990 (1st Cir. 1978) and cases cited therein. "A motion for a new trial is addressed to the sound discretion of the trial court and will be reversed only for abuse of that discretion." Id.

The events leading up to the incident that precipitated this law suit were stipulated. Plaintiff's son, Arthur DeVasto, escaped from the Deer Island House of Correction on June 24, 1976. On the evening of June 29, 1976, the defendants and two uniformed Boston policemen ¹ came to plaintiff's home at 15 Bonair Street in West Roxbury looking for him. Defendants had no search warrant. Relying on an arrest warrant they had for DeVasto, they entered and searched plaintiff's home over her strenuous objections. Arthur DeVasto was not found.

Our review of the evidence is made in the light most favorable to defendants.

Joseph Scolponetti, a neighbor of plaintiff, was her first witness. He testified that he was an eyewitness to the incident giving rise to the law suit. According to Scolponetti, five men approached plaintiff's house. After watching the two men in police uniforms walk to the rear of the house, Scolponetti "focused all (his) attention to the front door and listened to the conversation at the front door." His testimony can be capsulated as follows: Sergeant Faherty either knocked on the door or rang the doorbell and, when plaintiff answered, told her, in a "very gentlemanly manner," that he was searching for an escaped convict and would like to search her home. Plaintiff asked if he had a search warrant; he repeated that "we would like to search your home." Plaintiff said, "You are not coming into my home unless you have a warrant." Faherty then "reached across his body and opened the front door, made one lunge into the house, grabbed Mrs. DeVasto by the upper arm and threw her out on her front lawn." The officers then entered the house, and Scolponetti picked plaintiff off the lawn. On cross-examination some question was raised as to Scolponetti's ability to hear and see from where he was standing the events to which he had testified. Photographs were subsequently introduced by defendants that could cast doubt on Scolponetti's ability to see plaintiff's front door from his location.

Plaintiff testified as follows: Her son had not been living with her prior to his committal to Deer Island. He had separated from his wife, had no permanent address and "just drifted." About 8:00 P.M. on the evening of June 29 a man came to her door. He introduced himself as Officer Johnstone, a state policeman, and explained that he was looking for Arthur DeVasto. Plaintiff responded that Arthur was her son. Johnstone then asked if she knew he had escaped. She replied that she had received a phone call from her daughter-in-law telling her that she had heard that Arthur had escaped. When Johnstone questioned her about the possible whereabouts of her son, she told him that she had no idea where he was and didn't know who his friends were. Johnstone advised her that her son was in a lot of trouble, that he could be hurt, and that she could be in trouble if she harbored him. She said that she wanted to cooperate, that she didn't want anything to happen to her son, and that she would call the State Police Barracks in Boston if she learned anything of her son's whereabouts. Johnstone did not ask to search her house.

After this conversation, plaintiff locked the screen door, but not the main door. She changed into a nightgown and waited for a visit from a girl friend. About twenty minutes later there was a knock on the door. At the door were five men: three uniformed policemen, Johnstone and another man in plain clothes. A man who she later learned was Faherty said they were looking for an escaped convict, Arthur DeVasto, and were going to search the house. She asked Faherty if he had a warrant. He replied, "We don't need one." She then said, "I know my rights." Whereupon, Faherty "pulled open the screen door and came into the house, grabbed a hold of me, picked me up and threw me out onto the front lawn."

The testimony of the two defendants present at the trial differed significantly from that of plaintiff. Defendant Rose was the first witness for the defense. He testified that he was a corrections officer at the Suffolk County House of Correction and that he and Johnstone were assigned to an inmate apprehension team; Johnstone was his superior. DeVasto's personal information form gave his mother's address as his home address and listed his mother as the person to notify in case of an emergency. After DeVasto's escape, Rose and Johnstone checked all of DeVasto's known hangouts in Roslindale. They contacted DeVasto's former wife who told them that he had called her, blamed her for all of his troubles and told her "that he was coming down to get her." DeVasto's ex-wife also told Rose and Johnstone that DeVasto would not seek help from his father, but would probably turn to his mother. (DeVasto's father and mother were divorced). Based on this conversation, Rose believed that DeVasto would use his mother's car to go to the Cape, where his ex-wife lived.

During the late afternoon of Tuesday (June 29), Rose and Johnstone began a surveillance of plaintiff's house from an unmarked police car. As Johnstone was looking at a picture window on the left-hand side of the house he exclaimed, "Isn't that him?" ² Rose, who saw a figure in the window but couldn't identify it, said, "I don't know." Johnstone then said, "Let's go." Rose went around to the back of the house while Johnstone went to the front door. When Johnstone returned, he told Rose that the plaintiff had said she didn't know that Arthur had escaped. Johnstone called District 5 of the Boston Police Department for assistance. A short time later, Sergeant Faherty arrived on the scene. A few minutes later another cruiser arrived with two uniformed policemen. The two officers in uniform went to the rear of the house; Rose, Johnstone and Faherty proceeded to the front door. Mrs. DeVasto answered Sergeant Faherty's knock on the door. He informed her that they had an arrest warrant for Arthur DeVasto. She asked if they had a search warrant; Faherty replied that they didn't need one. An argument then ensued between plaintiff and Faherty as to whether a search warrant was necessary. Both of them had raised their voices until they were yelling at each other. Faherty opened the screen door and "Mrs. DeVasto came at him. The next thing I know, Mrs. DeVasto was on me, and she was hitting me and everything." Rose grabbed her by the arms. When she stopped struggling he released her arms and she slumped to the ground. Rose then went into the house. During his search of the bedroom, he saw a Deer Island jacket and dungarees on the bed and a lock pick on the dresser.

We conclude our recapitulation with the testimony of Sergeant Faherty. Faherty graduated from Northeastern University with an associate's degree and a bachelor's degree in law enforcement. At the time of trial, he was working towards a degree in public administration at Suffolk University.

On June 29, 1976, Faherty received a phone call from a Deer Island corrections officer who told him that he was watching the house of an escapee at 15 Bonair Road in West Roxbury. After verifying that there was an arrest warrant out for Arthur DeVasto, Faherty drove to Bonair Road in an unmarked cruiser. He asked the two corrections officers on the scene if they had reasonable cause to believe that DeVasto was in the house. Johnstone said "Yes" and then related the conversation he had with plaintiff. Johnstone also told Faherty that he had seen DeVasto in the picture window and that he considered DeVasto to be armed and dangerous. Faherty then called for a marked police cruiser. After the two uniformed police officers arrived, Faherty gave them the information he had received from Johnstone. As Faherty, Johnstone and Rose approached the front door, Johnstone said that if plaintiff was told by Faherty that he and Rose were correction officers, they probably would be allowed into the house peacefully.

Faherty knocked on the front door and plaintiff appeared. He told her that the two men with him were...