*1 injured party. and that Guiffre is an third necessary states that it is not for Guiffre party, Guiffre asserts as a third to terminate the lease to take advantage of Authority’s negligence right established the compensation. its to Consequently, damages. the amount of It then claims the district err court did not in allowing indemnity Guiffre, that since clause was breach- landlord, bring an action for ed, it, indemnitee, as an is entitled in- the temporary taking of the leasehold. attorney’s including demnification fees for judgment The of the district court is establishing Authority’s negligence. affirmed. roles, For this authority. shift of no cites rightly rejected district Guiffre’s strained construction of an ordi-
nary indemnity clause. Guiffre cannot call party
itself a third for the of purpose es-
tablishing Authority’s liability negli- for
gence of and take the role indemnitee purpose recovering
for the an award of attorney’s fees. America, Appellee, UNITED STATES of
V MARTIN, Appellant. James Michael Authority, cross-appeal, con- tends that the district court erred allow- No. 82-5159. ing temporary Guiffre to recover for the United Appeals, States Court of taking property leased the tennis Fourth Circuit. argues that, property club. It because period under lease the entire Argued May 1984. taking, only right the lessee has the Aug. Decided 1984. bring an action. is, general rule as the Authori states, ty cannot lessor recover for temporary taking property that ends expires.
before the leasehold Guiffre and club, however, provided tennis public
lease that if there is a condemnation taking, “whether or not the term of this terminate,
lease shall cease and the entire LESSOR, property
award shall be the hereby assigns LESSEE LESSOR right,
all title interest and to assigns
such award.” This clause right to taking
Guiffre the recover
of the leasehold. Authority argues
assignment clause is ineffective because apply an inverse condemnation
does alternative, par
and, in' neither because sought at
ty to terminate the lease the time clause, however, taking. is not condemnations;
limited to formal it refers “any taking its terms to or condemna Moreover, public
tion” for use. the clause *2 Kuhn, Jr., Beaufort, (Joel D.
H. Fred S.C. Moss, Dore, P.A., Bailey, Bailey & Beau- fort, S.C., brief), appellant. on Skrivseth, Justice, Dept, Karen Wash- McMaster, Dargan ington, (Henry D.C. Columbia, S.C., brief), Atty., appellee. WINTER, Judge, Circuit
Before Chief BUTZNER, CHAPMAN, Judge Circuit Judge. Senior Circuit PER CURIAM: Following jury trial the hashish, conspiracy import convicted of conspiracy import hashish with intent to distribute, importation pos- of hashish and session of hashish with intent to distribute. (a) claims that the trial court erred He now (b) charge”, giving “an unbalanced Allen registra- admitting into evidence a boat found in an automobile at tion card QQ1 site, (c) proposed failing grant off-load chael Martin was in the T-Craft and was drug agent a mistrial when a enforcement arrested. he
testified that had found a ski mask during boat, search the T-Craft which II trial, during search was conducted Following days three and a half of trial (d) in failing instruct the to disre- *3 the jury case went p.m. at 1:25 At gard certain remarks of the assistant Unit- p.m. 3:15 jury asked to have certain attorney allegedly placed States ed a testimony by reporter court and upon prove burden the defendant his an additional instruction as to innocence. constructive and actual possession. The Finding excep- no merit in of these given and at p.m. 4:07 jury tions, we affirm. requesting came back additional instruc-
tions some and additional testimony to be read. There delay was a in getting I reporter to read the testimony, be- At 2:30 about a.m. on November 1981 reporters cause two court had been in used Rorc, sailing ship, Anonymous of en- the trial due to a in family death of one tered the River in North Edisto Charleston of the reporters. crossing County completing after a from pounds Lebanon. It was loaded with 9600 At prior some time p.m. to 9:35 hashish had three supper of and crew members had and at that time the court and plus captain. Shortly entering a after the jury waiting were for the arrival of the ship North Edisto River was met reporter a first court in order to read the fishing requested T-Craft of 20 white boat about feet testimony. While waiting, the length. judge There was one individual inquired as the quality of the meal fishing wearing boat and he a explained ski delay. cause sailing mask. This individual boarded the court then stated: helm, ship and took the while the crew He’ll here in a just minute and after began loading the small boat with bales of you testimony you hear that want to patrol hashish. At this time a customs hear, you we’ll let deliberate a while spotted ship the sailing boat cut longer and see happens tonight. I lights observing Anonymous of Rorc going am you not to lock inup there and and the T-Craft. The customs boat backed forget you. you about But I want to tell away distance, reported a short its find something said, you it. As I prepared radio and to board. At this time got give up haven’t a firm conviction throwing began the crew bales hashish just go crowd, however, with if wearing over side the individual you’ve got a firm conviction about the ski jumped mask into the T-Craft and way other, case one that doesn’t headed the North River. Edisto you mean shouldn’t listen to reason and think with the others and reason with the sailing ship Coast Guard boarded the you who, see if those others and captain and arrested the and the three crew said, you minority in the are on the members. From a chart found aboard the ship Jury, listen to the views of majority; was determined that the off-load site you majority and if are on the was West Bank Plantation. on the Officers were Jury, they you listen to the of the mi- sent this site where seized nority. get yourselves And Plymouth temporary reg- automobile. The don’t position you your where turn istration card the Evinrude motor of back and want, say you through. was found the vehicle. do what I’m T-Craft daybreak you the T-Craft was found You and reason and About listen grounded Mi- can at a Bohicket Creek. James arrive verdict after hear his ery juror, nothing wrong simply the decision of
testimony. There is
but
Occasionally
majority of
agreeing.
we have a
the twelve. United States v.
not
(4th Cir.1961).
Rogers,
arrive at a
Jury who doesn't
verdict.
Jury.
You’re not the first
language
supplemental
of the
judge
that a case was
then stated
simply
any juror.
coercive of
not
explained
tried best the first time
It
majority
minority
treats the
and the
trial when each
problems of a second
attor-
equally and advises each to listen to the
transcript
ney
copy
first trial
has
Although
views of the
other.
is not the
correcting
purpose
and uses it for the
charge approved in United States v. Saw
every
in the
little difference
(4th Cir.1970),
yers,
303
appellant questions
arrested. The
formation
the au-
came as a result
question
of a
thenticity of the document.
Federal Rule
defense counsel and that it was
901(a)
of Evidence
states:
responsive
question. However,
to the
court instructed
disregard
all
requirement
of authentication or
testimony
finding
the ski mask. Be
as a
precedent
identification
condition
mistrial,
granting
fore
the court should
admissibility
is satisfied
evidence suf-
always consider whether the giving of a
support
finding
ficient to
that the mat-
curative instruction or some alternative
question
proponent
ter
is what
less drastic than a
appropriate.
mistrial is
claims.
1081,
Young,
(4th
Harris v.
question
really
not one of authentici-
Cir.1979),
cert.
denied
ty,
registration
speaks
because the
card
(1980).
S.Ct.
IV objected to, sufficient not and a mis required. trial was not Appellant contends that the court should have declared a mistrial after DEA agent Stein testified on cross-examination V that a ski mask had been found on the There appellant’s is no merit to the T-Craft a search that was conducted on prosecutor’s closing contention that the ar night between the first and second gument a shift of the created burden of days day trial. before Stein testi proof Appellant’s to the defendant. de fied, Jefferson, customs officer who arrest essentially fense at trial was that he awas T-Craft, ed Martin on the twice answered recently pur commercial fisherman who question defense counsel’s that ski mask no fishing partner, chased a new boat with a was found on following this boat. The and that he was in the area in which he morning testified, when Stein he did not crabbing was arrested because he was any mention on direct examination items rather than because he was involved in the that were seized from the T-Craft. How A offense. defense witness testified that a ever, on cross-examination defense counsel crabbing operation commercial would need unnecessary question Stein as to pots 50 to 100 crab while another testified a ski mask was found on Martin’s whether operation that such an would need 20 to surprise agent boat. To stated his that pots. only 3000 crab appel evidence a ski mask had been found the T-Craft produced lant that indicated he owned night.” “late questions last Additional pots crab a defense witness was who testi asked on were cross about the location of appellant purchased fied that had four or why previously the ski mask and not was pots five from him. The comments of crab found. On redirect examination of this wit prosecutor the effect of “Where are questions
ness no were asked about ski pots?” response only crab were discovery. Following mask or its evidence, closing to this but luncheon recess moved for a mis argument of defense men counsel which trial because of the statements made crabbing operation. tioned a agent discovery Stein of the ski pointed mask. The court out that this in- AFFIRMED. WINTER, Judge, persuaded
HARRISON L.
own
they
Chief
that
are erro-
dissenting:
held,
neously
jurors
and that
should “not
give up a firm
just
go along
conviction
agree
I
the majority
While
aspects
with the crowd.” In these
there is no other merit in
I
appeal,
balanced,
expression,
charge
was
but in
think that the district court committed re-
mind,
my
destroyed
this
balance
gave
gra-
versible error
when
a
quoted language
significance
about the
tuitous,
charge having
unbalanced
a
Allen
a
trial.
first
When the
was told that a
effect.
I
coercive
would reverse on
always
case is
best the
tried
time that
first
point
require
tried
defendant
to be
tried,
lawyers
it is
and witnesses do a
majority’s contrary
anew. From the
con-
trial,
job in
better
is
it more
first
clusion,
respectfully
I
dissent.
likely
jurors
will
the true facts
It is the law of
giving
this circuit
trial,
I
admonition not to
charge
of a coercive
is
error. United
give up
seriously
a firm conviction was
Smith,
(4 Cir.1965).*
States v.
jurors
told,
effect,
undercut. The
were
necessary
It
us in performing
is not
known,
if the truth
ever to
appellate review to examine the
record
they
verdict,
agree
must
aon
whatever
objected
see if defendant
and,
their individual convictions. A
new
saved
issue
otherwise
review.
mind,
my
impermissible reason
reach a
Rather,
may proceed directly
con
to a
advanced,
verdict was thus
destroying the
charge given
sideration whether the
approved
charge.
balance of the
Allen
See
coercive.
(4
Rogers,
United States v.
likely that know true facts of happened____you really never good picture
as case as do the it’s time tried. course, expression,
Of in the overall told, in somewhat informal
fashion, jurors duty have to consult another, jurors,
with one whether majority minority, or in the should lis-
ten and consider the oppos-
ing group willing give their treating
*The
court-appointed lawyer,
rationale of
a coercive
counsel
in-
plain
expressed
error was
in Smith as follows:
privately
apparently
stant case was
retained.
decided,
when omissions of
counsel
be made
But
Smith
trial
can
since
when
has
deprivation
of a
recognized
right
basis
claimed
of constitu-
been
Sixth
Amendment
rights
subsequent
proceed-
tional
collateral
applies equally
to effective
of counsel
assistance
ings,
think this
court should note as
Sullivan,
Cuyler
to retained counsel. See
clearly
error a
so
which is
coercive.
335, 344-45,
1716-17,
100 S.Ct.
course,