Summary
concluding that because the defendant was convicted of first-degree kidnapping and sexual assault and the jury verdict sheet did not specify whether the conviction for kidnapping was elevated to the first-degree based on the sexual assault of the victim, the verdict was ambiguous, and the ambiguity had to be resolved in the defendant's favor to avoid a double punishment for the sexual assault
Summary of this case from State v. FacysonOpinion
No. COA03-140
Filed 17 February 2004 This case not for publication
Appeal by defendant from judgments entered 7 May 2003 by Judge Ola M. Lewis in Robeson County Superior Court. Heard in the Court of Appeals 13 November 2003.
Attorney General Roy Cooper, by Assistant Attorney General Daniel Addison, for the State. Paul Pooley, for defendant-appellant.
Robeson County Nos. 01 CRS 16412-15, 16418, 02 CRS 498.
Harris Emanuel Ford ("defendant") appeals from judgments entered in Robeson County Superior Court upon jury verdicts finding him guilty of two counts of first-degree sexual offense, first-degree rape, robbery with a dangerous weapon, first-degree kidnapping, and felony larceny. Defendant was sentenced for the rape and each sex offense conviction to consecutive terms of 384 to 470 months in the North Carolina Department of Correction. Defendant was sentenced for the kidnapping conviction to 117 to 150 months, consecutive to the previous sentences. The armed robberyand felony larceny sentences were consolidated for a term of 113 to 145 months, concurrent with the sentence entered on the kidnapping conviction. We find no error in the trial, but remand for resentencing.
Prior to 27 August 2001, defendant and Lora Ann Bridges (the "victim") lived together for approximately three months; however, defendant had recently left the victim's residence to spend more time with Lakesa Wiggins ("Wiggins"), defendant's baby's mother.
On 27 August 2001 around 12:30 a.m., defendant was dropped off by a man at the victim's house. When the victim responded to defendant's requests for money by explaining that she did not have any, defendant retrieved a roll of duct tape and carried it to the back of the victim's home. Defendant summoned the victim to the bedroom, where she found him standing with a knife and demanding that she get down on her knees. Defendant then used duct tape to tape the victim's mouth and to bind her hands behind her back. Defendant picked up the victim, took her out to her car, and forced her into the trunk of her car.
Defendant started driving, but, due to fumes emanating from a gas can in the trunk and a fear of small spaces, the victim experienced difficulty breathing and began kicking the trunk with her feet and making other noises. Defendant stopped the car, removed the victim's restraints, and allowed the victim to sit in the passenger seat of her car, threatening to kill her if she attempted anything. Defendant proceeded to Lumberton where, after he re-iterated his warning to the victim not to try anything, heleft her locked in the car without keys. Defendant spoke to two girls and arranged the sale of the victim's air conditioning unit, which he had previously removed from her home after he had forced her into the trunk of her car.
Defendant and the victim then returned to the victim's house, where defendant followed the victim with the knife to her bedroom and forced her to engage in sexual intercourse and perform sexual acts on him, causing the victim to vomit. Thereafter, defendant stated he could kill the victim and "nobody would ever know because nobody knows I'm here." Defendant choked the victim until she lost consciousness. When she woke up, defendant insulted the victim and again choked her into unconsciousness. The victim did not regain consciousness until the next day.
When the victim woke the following day, defendant was slapping her, insulting her, and again demanding money. The victim gave him three dollars. Because that was not enough, defendant took her television and put it in the trunk of her car. Defendant took the victim to Lumberton and arranged for the sale of the victim's television.
In Lumberton, the victim began experiencing scleral hemorrhaging, a symptom consistent with her testimony concerning the strangulations inflicted the previous night during the time the victim was with defendant, and the victim began "crying blood." She "begged" defendant to take her to the hospital but defendant refused and continued to drive different places to get more money from other people. After the victim tried to flee from the car, defendant forced her to drive to a trailer park in Fayetteville, where he left her. The victim drove herself to Cape Fear Valley Hospital where she received medical treatment. The treating nurse testified the victim presented with symptoms consistent with strangulation, including hemorrhaged blood vessels in the eyes, a hoarse and raspy voice, and a swollen tongue bleeding around the edges.
Defendant testified on his own behalf and stated that the victim had become angry, threatening, and abusive after drinking and smoking crack cocaine. Defendant further testified the victim initiated a physical altercation and threatened him with a knife. Nonetheless, defendant remained at the victim's house because he had no means of transportation. Defendant testified the victim later calmed down and offered to pawn the television in order to give him money if he would get a job and repay her. Defendant explained the victim's injuries resulted from their physical altercation and a later altercation between the victim and Wiggins.
At the close of the State's evidence and again at the close of all the evidence, defendant moved to dismiss all charges against him. The trial court denied both motions, and the jury convicted defendant on all counts. The trial court consolidated the robbery and larceny charges, entered separate judgments for each remaining count, and imposed aggravated sentences. Defendant appeals.
I. Short-form Indictment
Defendant argues in his first assignment of error that the trial court erred in allowing the short-form indictments forfirst-degree rape and first-degree sexual offense because they failed to allege all the elements of each offense or allege matters in aggravation. Defendant asserts, therefore, his convictions and sentences are not supported by the indictment and violate the Constitutions of the United States and North Carolina. Defendant concedes our Supreme Court has upheld the short-form indictment as constitutional, see State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000). "Our Court has [also] previously addressed this matter as it pertained to N.C. Gen. Stat. § 15-144.1 (2001) for rape and N.C. Gen. Stat. § 15-144.2 (2001) for sexual offense and upheld the short form." State v. O'Hanlan, 153 N.C. App. 546, 551, 570 S.E.2d 751, 755 (2002). As in O'Hanlan, "[w]e find nothing in our previous cases or in defendant's argument that persuades us the short form indictments for rape [and] sexual offense . . . are invalid or unconstitutional." Id. This assignment of error is overruled.
II. Superseded Indictment
In his second assignment of error, defendant asserts the trial court lacked jurisdiction to try and sentence defendant for first-degree kidnapping because the State proceeded at trial with an indictment which had been superseded. North Carolina General Statutes § 15A-646 (2003) provides, in pertinent part, as follows:
If at any time before entry of a plea of guilty to an indictment or information, or commencement of a trial thereof, another indictment or information is filed in the same court charging the defendant with an offense charged or attempted to be charged in the first instrument, the first one is, with respect to the offense, superseded by thesecond and, upon the defendant's arraignment upon the second indictment or information, the count of the first instrument charging the offense must be dismissed. . . .
The record on appeal contains only one indictment for first-degree kidnapping, which incorrectly lists the date of the offense. During the trial, defendant moved to dismiss the indictment based on the incorrect date. The State responded by asserting the date had been corrected in a superseding indictment, which "should have been in the [court] file." When the trial court pointed out no superseding indictment was in the court file, the State deferred to "what the Court record show[ed]." The State went on to candidly admit, "I don't have the Court file so I don't know. It was some time ago back in the beginning." Except for the State's equivocal statements, nothing in the record before this Court or in the trial court's file indicates the existence of a superseding indictment.
Rule 9(a) of the Rules of Appellate Procedure provides that appellate review is limited to the record on appeal. N.C.R. App. P. 9(a) (2004). "It is the [defendant's] responsibility to make sure that the record on appeal is complete and in proper form." Miller v. Miller, 92 N.C. App. 351, 353, 374 S.E.2d 467, 468 (1988). "An appellate court cannot assume or speculate that there was prejudicial error when none appears on the record before it." State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254 (1985). The State's equivocal statements do not constitute evidence of the existence of a superseding indictment, and the appellate record does not otherwise indicate the existence of a superseding indictment. Accordingly, this assignment of error is overruled.
III. Effective Assistance of Counsel
Defendant's third assignment of error asserts the trial court erred in preventing him from conferring with his attorney during a lunch recess during the State's case. The right to assistance of counsel is guaranteed by the Sixth Amendment of the United States Constitution, which is made applicable to the states by the Fourteenth Amendment, and by N.C. Const. art. I §§ 19 and 23. State v. Alderman, 25 N.C. App. 14, 17, 212 S.E.2d 205, 207 (1975). This includes the right of an accused to have a reasonable time to investigate, prepare, and present a defense, see id., which, in turn, includes the right of counsel to confer with witnesses and consult with the accused. State v. Rigsbee, 285 N.C. 708, 712, 208 S.E.2d 656, 659 (1974).
Contrary to defendant's assertion, the transcript of the proceedings before the trial court does not reveal defendant was denied the right to consult with his attorney. At trial, the following exchange took place:
THE COURT: Anything else from the Defendant before we take lunch recess?
[DEFENDANT]: Would it be possible for me to consult with John on one-to-one, please?
THE COURT: No, you cannot do that. That is not permissible.
[DEFENDANT]: I mean just me and my attorney.
THE COURT: No, sir; you cannot.
. . .
[DEFENDANT]: There's just so many things that I feel as though if these people could hear and know.
THE COURT: This is the State's case in chief. . . . [A]ny questions or concerns you have you need to address them with your attorney; okay?
[DEFENDANT]: So, basically, I have to speak through him, bottom line?
THE COURT: Yes, yes.
The record reveals defendant requested to speak to an individual named "John." Defendant was represented in this case by Robert Jacobson. While it is unclear with whom defendant wanted to speak, the conversation between the trial court and defendant indicates defendant wanted to present some testimony or evidence during the State's case in chief. The trial court correctly responded to defendant's request by instructing him to deal with questions and concerns through his attorney. Far from denying defendant the right to consult with his attorney, the trial court encouraged it. This reading is bolstered by defendant's response in which he illustrates his understanding by confirming that he has to "speak through [his attorney], bottom line[.]" Given the appropriate context of the conversation and the surrounding circumstances, it appears that "John" referred to someone other than defendant's attorney, and the trial court correctly directed defendant to consult with his attorney in handling his case. This assignment of error is overruled.
IV. Self-representation
In his fourth assignment of error, defendant asserts the trial court impermissibly denied his right to self-representation in violation of his constitutional rights. A defendant has a constitutional "right to carry out his own defense without an attorney when he voluntarily and intelligently elects to do so." State v. Cole, 293 N.C. 328, 335, 237 S.E.2d 814, 818 (1977). Where a "defendant clearly indicates a desire to have counsel removed and proceed pro se, then the trial judge should makefurther inquiry" pursuant to N.C. Gen. Stat. § 15A-1242 (2003), which "fully satisfies the constitutional requirement that waiver of counsel must be knowing and voluntary." State v. Gerald, 304 N.C. 511, 519, 284 S.E.2d 312, 317 (1981) (emphasis added). Accordingly, the first question that must be addressed is whether defendant clearly indicated a desire to have counsel removed. We do not agree that he did.
After the State presented its case in chief at trial, counsel for defense moved to have all charges dismissed for insufficiency of the evidence. After hearing arguments, defendant spontaneously addressed himself to the trial judge.
[DEFENDANT]: At this time I do not wish to dismiss my counsel, but I wish to act upon my own free will with full knowledge of knowing everything that I have to say in this Court will be taken into consideration and used against me. At the same time I would like to keep my counsel as advisor, but yet, I have something I feel is pertinent to my case that I must present to you now.
. . .
THE COURT: Do you want to at least tell your lawyer what it is first?
[DEFENDANT]: He's just been advised as far as I'm concerned, ma'am.
. . .
THE COURT: Okay. Can I make my ruling first before I —
[DEFENDANT]: Ma'am, if you would allow me to introduce, I have some relevance, some case law here, which is true divine law that I would like to enter which is — I mean, I respect everything Mr. Prosecutor says.
THE COURT: Okay. With regard to the Motion to Dismiss, is the case law you have relevant with regard to the Motion to Dismiss?
After being assured the case law was relevant to the pending motion, the trial judge allowed defendant to present his argumentsconcerning his motion to dismiss and addressed those arguments in denying defendant's motion. Besides the clear statement by defendant that he "d[id] not want to dismiss [his] counsel," the totality of the conversation between defendant and the trial judge indicates that defendant's outburst was prompted merely by a desire to present additional arguments and case law for the trial court's consideration, not by a desire to represent himself. Defense counsel, following the exchange between defendant and the court, stated, "Judge, . . . as I heard it . . . he wanted to act as his own counsel and have me as advisory counsel." While the better practice would have been to make further inquiry under N.C. Gen. Stat. § 15A-1242, see State v. Gerald, 304 N.C. at 518, 284 S.E.2d at 317, defendant's comments did not amount to a clear indication of his desire to have counsel removed and to proceed pro se. Accordingly, this assignment of error is overruled.
V. Session of Court
Defendant, in his next assignment of error, asserts the trial court erred by continuing defendant's trial and imposing judgments based on verdicts reached after the session of court was completed. North Carolina General Statutes § 15-167 (2003) states, in pertinent part, as follows:
Whenever a trial for a felony is in progress on the last Friday of any session of court and it appears to the trial judge that it is unlikely that such trial can be completed before 5:00 P.M. on such Friday, the trial judge . . . may recess court on Friday or Saturday of such week to such time on the succeeding Sunday or Monday as, in his discretion, he deems wise. . . . Whenever a trial judge continues a session pursuant tothis section, he shall cause an order to such effect to be entered in the minutes, which order may be entered at such time as the judge directs, either before or after he has extended the session.
In State v. Harris, 181 N.C. 600, 607, 107 S.E. 466, 469 (1921) our Supreme Court addressed what was necessary for a "court to make a formal order continuing the trial of the cause after the expiration of the term by limitation." Our Supreme Court held "the statute was complied with by the daily entries on the docket: `Pending the trial of the case of S. v. J.T. Harris, the court takes a recess until 9:30 tomorrow,' and the entry next day, `Court convened at 9:30 a.m. pursuant to recess,' etc., in regular form." Id., 181 N.C. at 607, 107 S.E. at 470.
Harris was decided under section 4637 of the Consolidated Statutes of 1919, which reads as follows:
In case the term of a court shall expire while a trial for felony shall be in progress and before a judgment shall be given therein, the judge shall continue the term as long as in his opinion it shall be necessary for the purposes of the case, and he may in his discretion exercise the same power in the trial in any cause in the same circumstances except civil actions begun after Thursday of the last week.
We find the analysis in Harris instructive. In this case, the judge announced in open court at the close of court on Friday, 3 May 2002, "Members of the jury, the Court will now stand in recess until Monday morning at 9:30." The court did, in fact, reconvene on the following Monday at 9:30 a.m. without an objection from defendant. When the court closed that afternoon, the trial judge announced in open court, "We'll come back tomorrow morning at9:30," and recessed the case to reconvene at 9:30 a.m. the following morning. Additionally, we note the Superior Court minutes contain a handwritten notation under the name of the designated court reporter reflecting that the 29 April 2002 session of court continued beyond 3 May 2002 and further proceedings were held on 6 and 7 May 2002. While no formal order appears in the minutes, the notation contained therein and the announcement by the trial judge in open court, without an objection from defendant, satisfied the requirements found in N.C. Gen. Stat. § 15-167. Nonetheless, the better practice is to expressly set forth in the minutes a formal order extending the session of court. This assignment of error is overruled.
VI. Release in Safe Place
Defendant argues in his sixth assignment of error that the trial court erred in denying defendant's motions to dismiss the first-degree kidnapping count because the evidence was insufficient to prove all elements of the crime. "When a defendant moves for dismissal, the trial court is to determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). "Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). "Whether evidence presented constitutes substantial evidence is a question of law for the court." Id. All "evidencemust be considered in the light most favorable to the State, giving the State every reasonable inference which may be drawn therefrom." State v. Jerrett, 309 N.C. 239, 263, 307 S.E.2d 339, 352 (1983).
"[I]n order to properly indict a defendant for first degree kidnapping, it [is] necessary for the State to allege both the essential elements of kidnapping as provided in G.S. § 14-39(a) and at least one of the elements of first degree kidnapping listed in G.S. § 14-39(b)," which includes that the person kidnapped was not released by the defendant in a safe place. State v. Bell, 311 N.C. 131, 137, 316 S.E.2d 611, 614 (1984). "This provision . . . implies some willful action on the part of the defendant to ensure that his victim is released in a safe place." State v. Raynor, 128 N.C. App. 244, 250-51, 495 S.E.2d 176, 180 (1998). Accord State v. Jerrett, 309 N.C. at 262, 307 S.E.2d at 351 (observing this provision of N.C. Gen. Stat. § 14-39(b) "implies a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety"). Defendant's motions to dismiss were predicated solely on a challenge to the evidence indicating a failure to release the victim in a safe place.
Considering the question in the light most favorable to the State, the relevant evidence tended to show that defendant left the victim after directing her to a trailer park in Fayetteville. The victim testified she was not familiar with the trailer park or the general area. Moreover, at the time of her release, blood vessels in the victim's eyes were hemorrhaging as a result of the strangulation, thus impairing her vision and ability to drive to alocation where she could obtain help. In addition, the victim's ability to communicate a need for help was impaired because her tongue was swollen and bleeding and her voice was hoarse and raspy as a result of her previous strangulation. In short, the victim's injured eyes diminished her ability to remove herself from the unfamiliar surroundings where defendant had finally abandoned her, and her injured voice hampered her ability to seek help from others who might be inclined to render aid. As a result, the victim necessarily faced further risk by driving with impaired vision merely to obtain medical help for the injuries inflicted by defendant. We find this evidence more than satisfies the standard needed to present to the jury the question of whether defendant failed to release the victim in a safe place. This assignment of error is overruled.
VII. Jury Instructions on First-Degree Kidnapping
Defendant's seventh assignment of error challenges the trial court's instructions to the jury as plain error. The trial judge stated the jury could find defendant guilty of first-degree kidnapping if it found that the victim "was not released by the defendant in a safe place, or had been sexually assaulted, or had been seriously injured." In so instructing, the trial court set forth the statutory elements elevating kidnapping to first-degree. N.C. Gen. Stat. § 14-39(b) (2003). However, the verdict sheet did not specify upon which statutory element the kidnapping charge was elevated, and the kidnapping charge could not be elevated based ona sexual assault since defendant was separately convicted of the underlying sexual assaults against victim.
Our Supreme Court has held "that the legislature did not intend that defendants be punished for both the first degree kidnapping and the underlying sexual assault." State v. Whittington, 318 N.C. 114, 123, 347 S.E.2d 403, 408 (1986) (citing State v. Freeland, 316 N.C. 13, 21-23, 340 S.E.2d 35, 39-40 (1986)). Here, the verdict sheet was ambiguous because it failed to specify the statutory element upon which the first-degree kidnapping charge was premised. Thus, the jury could have found defendant guilty of first-degree kidnapping for any of the statutory elements found in N.C. Gen. Stat. § 14-39(b), including the fact that defendant sexually assaulted the victim. Where a verdict is ambiguous, this Court must construe the verdict in favor of defendant. Id. This construction requires us to "assume that the jury relied on defendant's commission of the sexual assault in finding him guilty of first-degree kidnapping." Id. Because this would result in double punishment under the holding of Whittington, the case is remanded to the trial court for resentencing.
In resentencing defendant, we note "[i]t has long been the law of this state that a defendant must be convicted, if convicted at all, of the particular offense charged in the warrant or bill of indictment." State v. Faircloth, 297 N.C. 100, 107, 253 S.E.2d 890, 894 (1979). We cannot say defendant was convicted of the particular offense charged in the indictment: first-degree kidnapping based upon failure to release in a safe place. Accordingly, we hold the appropriate method of resentencing is to arrest judgment on the first-degree kidnapping conviction and remand to the trial court with instructions to resentence defendant for second-degree kidnapping. In so doing we need not further address this issue with regards to the judgments entered on the first-degree rape and first-degree sexual offense convictions.
VIII. Alleged Errors in Defendant's Sentencing Hearing
In his final assignment of error, defendant asserts a number of errors were committed during the sentencing hearing and those errors necessitate a new sentencing hearing. Defendant first argues the trial court erred by failing to list separately the aggravating and mitigating factors for each of the offenses charged. State v. Ahearn, 307 N.C. 584, 300 S.E.2d 689 (1983). The record makes clear that a separate judgment was entered on each offense except for the robbery and larceny charges, which were consolidated for judgment. Each of defendant's judgments state "The Court . . . makes Findings of Aggravating and Mitigating Factors set forth on the attached AOC-CR-605." Each judgment is separately supported by findings of aggravating and mitigating factors for each charge pursuant to N.C. Gen. Stat. § 15A-1340.16 (2003). Thus, the court made separate findings applicable to each offense and judgment. Defendant's argument to the contrary is without merit.
Second, defendant argues that the charges of first-degree rape and first-degree sexual offense were impermissibly aggravated by the factor that defendant was armed with a deadly weapon at thetime of the crime. See N.C. Gen. Stat. § 15A-1340.16 ("[e]vidence necessary to prove an element of the offense shall not be used to prove any factor in aggravation . . ."). We agree. North Carolina General Statutes § 14-27.4 (2003) states, in pertinent part, that a "person is guilty of a sexual offense in the first degree if the person engages in a sexual act . . . [w]ith another person by force and against the will of the other person and . . . [e]mploys or displays a dangerous or deadly weapon. . . ." Similarly, North Carolina General Statutes § 14-27.2 (2003) states, in pertinent part, that a "person is guilty of rape in the first degree if the person engages in vaginal intercourse . . . [w]ith another person by force and against the will of the other person, and . . . [e]mploys or displays a dangerous or deadly weapon. . . ." While both statutes contain alternative grounds upon which a person may be guilty of the statutory offenses, the verdict sheets did not specify which theories were relied upon by the jury in finding defendant guilty. Therefore, we must construe the verdict in favor of defendant and assume the jury relied on the use of a deadly weapon in finding defendant guilty of these offenses. State v. Whittington, 318 N.C. at 123, 347 S.E.2d at 408. Accordingly, we remand for resentencing on these charges without the use of the aggravating factor that defendant was armed with a deadly weapon at the time of the crime.
Third, defendant contends that the offense of robbery with a firearm or other dangerous weapon was impermissibly aggravated by the factor that defendant was armed with a deadly weapon at thetime of the crime. See N.C. Gen. Stat. § 15A-1340.16. We agree. North Carolina General Statutes § 14-87 (2003) requires the commission of this crime be accompanied by the possession, use, or threatened use of a firearm or other dangerous weapon. Since the fact that defendant was armed with a deadly weapon was a fact necessary to prove an element of this offense, we remand for resentencing on this charge without the use of the aggravating factor that defendant was armed with a deadly weapon at the time of the crime.
Fourth, defendant contends the trial court erred in aggravating all offenses charged with the factor that they were especially heinous, atrocious or cruel. A trial court may aggravate a sentence if the "offense was especially heinous, atrocious, or cruel." N.C. Gen. Stat. § 15A-1340.16(d)(7) (2003). This factor focuses on "`whether the facts of the case disclose excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present in that offense.'" State v. Choppy, 141 N.C. App. 32, 43, 539 S.E.2d 44, 51 (2000) (quoting State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983)). The "`entire set of circumstances surrounding the offense must be considered in making this decision.'" Id. (quoting State v. Hager, 320 N.C. 77, 88, 357 S.E.2d 615, 621 (1987)).
A number of facts in the instant case support the finding of this aggravating factor. Defendant twice choked the victim into unconsciousness and refused, despite the victim's pleas, to allow her to seek medical intervention when it resulted in hemorrhagingin her eyes affecting her vision. Defendant made multiple threats to the victim's life as well as other taunts (including vulgar remarks concerning his expectations during the sexual assaults) and engaged in actions designed to humiliate and degrade the victim over the hours he held her against her will. Defendant's sexual assault caused the victim to vomit, which defendant responded to by berating the victim and calling her degrading names. Defendant forced the victim to ride in the trunk of her car despite the presence of fumes from a gas can making breathing difficult. In spite of their past relationship, defendant's conduct over the hours during which the victim was held caused pain and humiliation exceeding that to which one is normally subjected, even when kidnapped and sexually assaulted. Accordingly, we find no merit to defendant's argument.
We have carefully considered defendant's remaining arguments and find them to be without merit. We remand for resentencing in accordance with this opinion.
Affirmed in part and remanded in part for resentencing.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).