Theodore Bruce MATTHEWS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
No. 11476.
District of Columbia Court of Appeals.
Argued March 9, 1978. Decided May 31, 1978.
387 A.2d 731
However, no objections were made to these references. Indeed, defense counsel made no objection to the testimony indicating that appellant was already in custody for another offense.2 If no objection is made to the admission of evidence, this court will not reverse unless it finds “plain error” which has been defined to require a probability of a miscarriage of justice. Lloyd v. United States, D.C.App., 333 A.2d 387, 391 (1975); Adams v. United States, D.C.App., 302 A.2d 232, 234 (1973). We are not able to conclude that a few references to “photographs” scattered through the record3 and a single ambiguous allusion to the appellant being in “custody” could have so affected appellant‘s substantial rights as to cause a probable miscarriage of justice in light of the evidence produced by the government in this case. The eyewitness to the robbery knew the appellant, knew his name, and recognized his voice. The second witness who testified that appellant was the assailant also knew him by name. The crime occurred in close proximity to appellant‘s home, which was also the area to which the assailant fled following the robbery.
In the face of strong and persuasive evidence of guilt, we conclude that the testimonial references to “photographs” and “custody” did not rise to the level of “plain error.” See United States v. Scott, 494 F.2d 298, 301 (7th Cir. 1974) (introduction into evidence and use by the jury, without objection, of a police photograph was harmless beyond a reasonable doubt due to overwhelming evidence of guilt); Tapia v. Rodriguez, 446 F.2d 410, 414 (10th Cir. 1971) (repeated testimonial references to mug shots without objection did not constitute plain error); United States v. Schwartz, 398 F.2d 464, 470 (7th Cir. 1968), cert. denied, 393 U.S. 1062 (1969) (F.B.I. agent‘s single reference to police numbers on the defendant‘s photographs would not justify granting a mistrial); see also Shuman v. United States, D.C.App., 243 A.2d 900 (1968) (witness’ reference to detective showing appellant‘s photo to him not reversible error even though identity not in issue; prejudice not significant and cautionary instruction given); United States v. Robinson, 406 F.2d 64 (7th Cir.), cert. denied, 395 U.S. 926 (1969) (prosecutor‘s opening statement‘s reference to mug shots did not require reversal when followed by a cautionary instruction).
Affirmed.
HARRIS, J., concurs in the result.
plainant had already testified and had been cross-examined with respect to her failure to make identification.
That the government arguably was under a duty to provide defense counsel with the information concerning complainant‘s failure to select appellant‘s photo from the array shown her prior to trial, United States v. Agurs, 427 U.S. 97 (1976), does not justify the prosecutor spreading such information before the jury in this manner during trial when its probative value was virtually nil.
David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel, and Margaret L. Hines, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.
Before NEWMAN, Chief Judge, and KERN and GALLAGHER, Associate Judges.
NEWMAN, Chief Judge:
Appellant, an inmate of Lorton Reformatory, sued the District of Columbia for damages based on alleged negligence in inmate supervision and general prison security which rendered appellant vulnerable to knife attack by unidentified fellow inmates. The jury returned a verdict for appellant and awarded $15,000 in damages. The trial court subsequently granted appellee‘s motion for judgment n. o. v., and this appeal followed. Appellant contends on appeal that the trial court erred in finding: (1) that appellant failed to establish a sufficient factual basis for a jury to find negligence, and (2) that appellant failed to prove that the incident complained of would not have occurred “but for” appellee‘s negligence. We conclude that appellant failed to establish any negligence on appellee‘s part (and thus need not reach the proximate causation issue). We affirm.
The facts are undisputed. Appellant was housed at Lorton in one of six dormitories located on the “north walk.” The assault upon him occurred at about 8:25 p. m. on September 3, 1973. At the time of the incident, a movie, attended by most of the inmates, was being shown in the gymnasium. Appellant, who had remained behind in his dormitory to study, testified that he was standing by his bed when he was suddenly grabbed from behind by several unidentified inmates. He struggled and called out for assistance for several minutes be
Prior to the infliction of appellant‘s injuries, Lorton officials had calculated and determined that at least 51 guards were necessary to provide adequate security during the relevant watch. This level of manpower, denominated the “critical minimum” number of guards required, corresponded to the 51 specific position points established as guard posts. A post in front of each of the six dormitories on the north walk was included in this group of key security vantage points. The only way for a guard to see inside a dormitory was to stand at the front door of the dormitory which contains a floor-to-ceiling window. As a regular practice, guards were reassigned from one of these 51 posts to other assignments, which were not included in the critical minimum, as required by prisoner population movement and manpower needs.
At the time of the attack on appellant, the north walk in front of the six dormitories was being patrolled by two unarmed guards. One guard, noting “a commotion,” looked in and signalled with a flashlight to the second guard, who was at the other end of the walk. They apparently awaited reinforcements and did not enter the dormitory until after the assailants had left it. They were unable to identify the attackers because of poor visibility resultant from darkness and dim lights. Inmates were free to come and go to participate in various activities until 10:30 p. m., but it was against regulations for inmates from one dormitory to enter another.
There was no direct evidence, by expert testimony or otherwise, that the practice of reassigning guards from the respective “critical minimum” posts, at such times as the bulk of the inmate population was concentrated in one location, was contrary to sound correctional practices or that the basic design of the security plan itself was flawed.
I
Before reaching the question of appellee‘s negligence, we must discuss a threshold question raised by appellee. Appellee urges upon us the resolution of an issue of first impression in this jurisdiction—what standard of care shall be required of the District of Columbia in the performance of its duties as custodian of the city‘s prisoners. Appellee informs us that this issue is a recurring one in this jurisdiction and urges us to resolve it in this case.
Appellee contends that the inherent nature of the prison environment evokes the need for a special standard of care—one referred to as “the prior notice rule.” This rule requires that authorities, alerted by some antecedent danger signal, usually stemming from the known violent or dangerous nature of the assailant or known threats to the victim, fail to take adequate precautionary measures despite such notice in order to be held liable for negligence. Although the government cites us to cases discussing this rule, e. g., Parker v. State, 282 So.2d 483 (La.), cert. denied, 414 U.S. 1093 (1973); Harris v. State, 61 N.J. 585, 297 A.2d 561 (1972); City of Lexington v. Greenhow, 451 S.W.2d 424 (Ky. 1970); see also Annot., 41 A.L.R.3d 1021 (1972), a close and careful reading of those authorities indicates that while making reference to the prior notice rule, the holding in each of those cases is consistent with the application of ordinary negligence standards. For example, in Parker v. State, supra, a case involving a stabbing, the record indicates regular and frequent searches for weapons and specific counselling by the correctional authorities of the two inmates involved concerning their homosexual relationship. The court rejected plaintiff‘s contention that there was a statutorily created absolute liability and rather analyzed his contentions on a negligence rationale. Further, in Harris v. State, supra, an action against correctional officials individually (the state had not waived sovereign immunity), the court held that there was no showing that ordinary negligence on the part of prison officials had permitted the bludgeoning of the victim by a fellow inmate. 297 A.2d at 565.
This court, in determining what duty of care is owed by a common-carrier to its passenger, has had occasion to evaluate the continuing validity of special standards of care. In D.C. Transit System, Inc. v. Carney, D.C.App., 254 A.2d 402 (1969), we expressly rejected the doctrine of differential duties of care dependent upon the characterization of the relationship between the parties. As we said in that case: “there are no categories of care, i. e., the care required is always reasonable care.” Id. at 403.
The generally recognized common law duty owed to prisoners by penal authorities is one of reasonable care in their protection and safekeeping. Gaither v. District of Columbia, D.C.App., 333 A.2d 57 (1975) (and cases cited therein at 60). See Restatement (Second) of Torts § 320 (1965). Similarly,
II
We turn now to the facts of this case.
Appellant contends that the trial court erred in overruling the jury‘s finding of negligence against the District of Columbia. He argues that several factors form a sufficient factual basis from which the jury could make a finding of negligence. First, he alleges that the presence of a guard on duty at the dormitory front door, in a position from which he could see and hear activities within the dormitory and prevent entry by unauthorized inmates, would have had a deterrent effect in this case. Second, appellant claims that the dimmed lights facilitated the surreptitious commission of violent acts. Finally, appellant maintains that the rule prohibiting entry by an inmate into a dormitory not his own demonstrates that prison officials had notice of the need to exercise care to prevent such entries. Appellant urges us to presume that correctional officers must be able to see and hear inmates in order to exercise due care in their safekeeping. We note, however, that there was no expert testimony on the adequacy of the Lorton security arrangements nor other showing that it was unreasonable to allow flexibility in placement of correctional officers in accordance with inmate population movements.
Appellant further contends that the jury is fully capable of discerning any deviation from a proper standard of care in a given set of circumstances as it did in Gaither v. District of Columbia, supra. Gaither, however, presents a situation that is clearly distinguishable from that in the present case. There the negligence arose from
In reviewing the trial court‘s grant of judgment n. o. v., we must balance the evidence that weighs against the trial court‘s determination and in favor of the jury‘s. Baker v. D.C. Transit System, D.C.App., 248 A.2d 829 (1969). We conclude, as did the trial court, that appellant having failed to establish the breach of any duty owed him, there was no evidence upon which reasonable men might differ as to negligence.
Affirmed.
KERN, Associate Judge, concurring in part and dissenting in part:
While I concur fully with Part I of the majority‘s opinion in rejecting the District‘s attempt to have us adopt the so-called “prior notice” rule, I am unable to agree with its affirmance in Part II of the trial court‘s entry of a judgment in favor of the District notwithstanding the jury‘s verdict in favor of appellant in his suit to recover for personal injury concededly suffered as the result of a stabbing by fellow inmates at Lorton.
As I understand the evidence presented to the jury and summarized in the District‘s brief, Lorton had established, at the time appellant was knifed, a so-called “critical minimum” of 51 correctional officers at 51 specific posts about the facility for the purpose of maintaining security and order for the period of time each day from 3:30 p. m. to midnight. The Acting Watch officer on the night in question assigned the 51 officers who reported for duty to these 51 stations, six of which were immediately adjacent to each of the six dormitories housing some 40 inmates apiece on the so-called north walk. These six stations were the only points outside each of the six dormitories from which the activities inside could possibly be observed.
That particular night, each of the officers commenced the watch at each of the 51 stations provided for by Lorton‘s plan and to which each had been assigned by the officer in charge. Thereafter during the watch, various officers left their stations under orders to carry out other assignments—in the dining area, the relief of tower guards, driving buses to and from the facility and assisting at the visitors area and at the auditorium for the evening movie. Four of the officers left their “critical minimum” posts outside four of the dormitories; appellant was stabbed by other inmates while studying in one of those four dormitories left unattended by the departure of the officers from their posts.
There was other evidence, as the District details in its brief, that regular weekly searches of Lorton dormitories “often” produced one or two “shanks,” and, since 1969, the FBI has investigated each month about three weapons assaults occurring in the facility.
The majority points out (Op. at 734), in affirming the judgment notwithstanding the requirements of inmate population movements.
The District of course presented evidence in its defense at trial that this movement of the officers during the 3:30 to midnight watch to perform other duties, viz., guard relief, bus driving, and supervision of other areas not among the critical minimum, such as the visitor‘s area and the movie theater, was essential to maintaining security. The jury then had to weigh and consider all the evidence in determining whether due care was exercised by Lorton under all the circumstances. Since reasonable men could reasonably disagree over whether the Watch Officer‘s movement of his officers from the 51 critical minimum security points on this particular night was the exercise of due care under all the circumstances and since we on appeal must view the facts in a light most favorable to appellant, I would conclude the jury properly took the case and allow its verdict to stand.2
Accordingly, I respectfully dissent from Part II of the court‘s opinion.