Opinion
No. 34339-8-II.
August 21, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 99-1-00397-9, Serjio Armijo, J., entered January 20, 2006.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Houghton, C.J., and Van Deren, J.
Covell Thomas appeals a jury determination that he committed first degree premeditated murder with aggravating circumstances and that the murder was committed to conceal the commission of burglary or to protect or conceal the identity of any person committing burglary. This is the second appeal of this case. In 2000, a jury found Thomas guilty of premeditated first degree murder and that the crime was aggravated by concealment. It also found that there were insufficient mitigating factors to merit leniency. Accordingly, the trial court sentenced him to death. Our Supreme Court affirmed Thomas's murder conviction but reversed the sentence and remanded "for a new trial on the aggravating circumstances or for resentencing in accordance with this opinion." State v. Thomas, 150 Wn.2d 821, 831, 83 P.3d 970 (2004).
On remand, a jury again found the murder was aggravated by concealment and furtherance of burglary and the trial court sentenced him to life in prison without the possibility of parole. On appeal, Thomas argues that (1) the trial court had no authority to empanel a jury; (2) double jeopardy barred rehearing on the aggravating circumstances; (3) the trial court erred when it ruled on the admissibility of evidence; (4) the jury instructions were faulty; (5) the prosecutor's closing arguments constituted misconduct by arguing from facts not in evidence; and (6) cumulative errors denied Thomas a fair trial. We affirm.
FACTS
Thomas planned an elaborate scheme to steal approximately $5,500 from his employer, Richard Geist. Thomas solicited help with the theft and mentioned that he "might have to kill the dude." Thomas, 150 Wn.2d at 832. After several people refused, Thomas recruited Edward Rembert to help commit the crime. Thomas lured Geist from his home on the pretext of helping him find a girl friend. Thomas or Rembert then brutally killed Geist inside a van, dumped his body on the side of the road, burned the van, and burgled his home. The next day, Thomas proposed marriage to his girl friend. When Thomas threatened to kill his then-wife and their child, she revealed his secret. Thomas, 150 Wn.2d at 831-37.
The State charged Thomas with residential burglary and first degree murder with aggravating circumstances, alleging that Thomas murdered Geist in order to conceal the burglary. The State also averred that there were not sufficient mitigating facts to merit leniency and filed a notice of intent to seek the death penalty. At trial, the jury found Thomas guilty of premeditated first degree murder and that the murder was intended to conceal the burglary. It also found there were not sufficient mitigating factors to merit leniency. Based on these verdicts, the trial court sentenced Thomas to death. Thomas, 150 Wn.2d at 830.
Our Supreme Court reviewed the case and held that the jury instructions on accomplice liability were deficient and that Thomas's special verdict form erroneously allowed the jury to find Thomas liable for the concealment aggravating circumstance even if it found that Thomas was an accomplice, not the principal, to the premeditated murder. See Clerk's Papers (CP) at 246 (asking "Did the defendant or an accomplice commit the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime?" (emphasis added)). A jury may not impose the death penalty for aggravated murder if the defendant was merely an accomplice; he must be a "major participant" in the underlying crime. State v. Roberts, 142 Wn.2d 471, 505, 14 P.3d 713 (2000) (citing Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987)).
The court affirmed Thomas's convictions for burglary and first degree premeditated murder, holding that the faulty jury instructions could not have affected the jury's verdict on those charges and that the instructions, therefore, were harmless beyond a reasonable doubt. The court reasoned that the overwhelming uncontroverted evidence revealed that Thomas was so entrenched in planning and executing the crimes that, even if he did not personally shoot Geist, as a matter of law he was a principal in Geist's premeditated murder. Thomas, 150 Wn.2d at 840-50.
But the court reversed Thomas's death sentence because a reviewing court cannot find the imposition of the death penalty a harmless error. Thomas, 150 Wn.2d at 847. The Supreme Court then remanded "for either a new trial on the aggravating factors or resentencing in accordance with this opinion." Thomas, 150 Wn.2d at 876.
The Thomas court cited no authority for the proposition that the Sixth Amendment precludes application of the harmless error doctrine to deficient death penalty instructions. If the court was relying on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), we question the holding's continued validity in light of Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006), in which the United States Supreme Court held that Apprendi errors may be harmless.
On remand, the State did not seek the death penalty. But in accord with the Supreme Court order on remand, it elected to hold a new trial on the aggravating circumstances. The trial court empanelled a jury and instructed it that Thomas had been convicted of the crime of murder in the first degree, but that the jurors may not consider this finding as proof of the questions during rehearing. The jury again found the murder was committed with aggravating circumstances that murder was committed to conceal the commission of burglary and to protect or conceal the identity of any person committing burglary. The trial court accordingly sentenced Thomas to life without parole.
ANALYSIS
Authority to Empanel Jury
Thomas argues that the trial court had no authority to empanel the jury in order to determine the presence of aggravating circumstances because chapter 10.95 RCW does not contain a mechanism to empanel a jury on remand and courts may not infer such a procedure. Under the law of the case doctrine, it is improper for us to revisit this issue because our Supreme Court ruled on it in Thomas's earlier appeal. Thomas, 150 Wn.2d at 848.
Here, the aggravated murder statute, former RCW 10.95.020 (1995), tasks the jury with decision-making power over aggravating factors. The legislature gave the court the duty and the authority to empanel a jury to determine whether Geist's murder was aggravated by any statutory factors. Washington courts have recognized that juries, not judges, are to determine the existence of aggravating circumstances. See, e.g., State v. Hoffman, 116 Wn.2d 51, 86, 804 P.2d 577 (1991). The aggravated murder statute sets out a bifurcated procedure in which the jury first determines whether the defendant committed premeditated first degree murder, then decides whether the State proved the existence of aggravating factors beyond a reasonable doubt. State v. Irizarry, 111 Wn.2d 591, 593-94, 763 P.2d 432 (1988); State v. Kincaid, 103 Wn.2d 304, 310, 692 P.2d 823 (1985).
Thomas relies on State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), overruled in part by Recuenco, 126 S. Ct. 2546, but that case addresses the authority the legislature granted the trial court in the Sentencing Reform Act (SRA), chapter 9.94A RCW. Its analysis does not apply to trials for premeditated murder with aggravating circumstances under RCW 9A.32.020(1) and former RCW 10.95.020. Under those statutes, juries have always been required to find beyond a reasonable doubt that the murder was premeditated and that one or more of the aggravating factors set out in former RCW 10.95.020 exist. See Kincaid, 103 Wn.2d at 310, 312. In Hughes, our Supreme Court held that, in the face of statutory language that requires a judge to find aggravating circumstances by a preponderance of the evidence, a court may not create the right to empanel a jury to find such facts beyond a reasonable doubt on remand. 154 Wn.2d at 149-50. But unless a defendant waived his right to a jury trial, chapter 10.95 RCW does not allow a judge to determine the presence of aggravating circumstances, and in cases of jury trial waiver, the judge must make such findings beyond a reasonable doubt. Because Hughes addresses SRA procedures, not the aggravated murder statute, the case does not control our decision here.
Instead, the Supreme Court's ruling in Thomas's first appeal, Thomas, 150 Wn.2d 821, controls our decision here. "[Q]uestions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if there is no substantial change in the evidence at a second determination of the cause." Folsom v. Spokane County, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988) (emphasis added) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965); Greene v. Rothschild, 68 Wn.2d 1, 7, 402 P.2d 356, 414 P.2d 1013 (1965)). This law of the case doctrine prevents piecemeal appeals. RAP 2.5(c). Thomas could have argued to the Supreme Court that rehearing on the aggravating factor was an impermissible remedy. He did not. The Supreme Court authorized the trial court, on remand, to sentence Thomas for premeditated murder or empanel a jury to determine the existence of aggravating factors. Thomas, 150 Wn.2d at 876. The Supreme Court issued its ruling on the remedy in this case and we may not revisit this ruling. Double Jeopardy
Thomas next claims that jeopardy attached at his first trial and barred rehearing on the aggravating factor. But double jeopardy is not implicated because the Supreme Court ordered a rehearing after Thomas's initial appeal and, therefore, Thomas's case was never final.
Double jeopardy does not bar rehearing when a defendant successfully appeals a conviction unless the appellate court reverses due to insufficient evidence. State v. Brown, 127 Wn.2d 749, 756-57, 903 P.2d 459 (1995). On remand, the State established the concealment aggravating circumstance with evidence that Thomas personally intended to murder Geist. Thomas characterizes this rehearing as a ruse for the State's real purpose to retry Thomas for first degree premeditated murder as a principal. He argues that the original jury may have in fact acquitted Thomas for personally intending Geist's murder, instead finding him guilty as an accomplice, yet during rehearing the State sought again to prove Thomas's personal intent to murder Geist. But as to the substantive offense, an accomplice and a principal are equally liable as a matter of law. RCW 9A.08.020. Moreover, Thomas was a principal in Geist's murder:
[I]t was Thomas who: devised the plan to rob; thought about killing Geist beforehand; was friends with the victim and could lure him out on false pretenses; brought his gun with him that evening; was known to the victim and thus, had to eliminate him as a witness; [and] solicited others to help him in his plan.
Thomas, 150 Wn.2d at 846.
Our Supreme Court did not rule that the evidence was insufficient to support the aggravating factor. Thus, double jeopardy does not bar a rehearing on that sentencing factor.
Thomas points to several instances in which the State allegedly presented evidence that was relevant only to the underlying murder conviction and was not relevant to the aggravating circumstance. But hearings on aggravating circumstances have atypical rules of evidence. The rules of evidence do not apply. RCW 10.95.060(3). Further:
if the jury sitting in the special sentencing proceeding has not heard evidence of the aggravated first degree murder of which the defendant stands convicted, both the defense and prosecution may introduce evidence concerning the facts and circumstances of the murder.
RCW 10.95.060(3). This provision applies here because the jury on remand in the special sentencing proceeding was not the same one that convicted Thomas of murder. Accordingly, both parties were free to introduce evidence concerning the underlying crime. This does not amount to a retrial on a charge for which Thomas was already convicted or acquitted because, as the legislature contemplated, a sentencing jury can complete the task before it only if it knows about the underlying crime. The presentation of this evidence did not violate double jeopardy. Batson Challenge
Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
Thomas also argues that the trial court improperly denied his challenge to the State's use of its peremptory challenge in selecting the sentencing jury. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (holding that a juror may not be stricken from the pool on the basis of race). Assuming, without holding, that Thomas made a sufficient showing of impropriety for the trial court to entertain his Batson challenge, the record shows that Juror No. 33 demonstrated a distrust of the legal system and an overt hostility toward the prosecution during voir dire. We agree with the trial judge that, under these circumstances, there was no reason to believe that the State improperly exercised a peremptory challenge to remove Juror No. 33 from service on this case. See State v. Wright, 78 Wn. App. 93, 99, 896 P.2d 713 (holding that a trial court's denial of a Batson challenge is clearly erroneous, and thus reversible, only if the prosecution had no earnest race-neutral explanation for striking the juror) (quoting State v. Sanchez, 72 Wn. App. 821, 825, 867 P.2d 638 (1994)), review denied, 127 Wn.2d 1024 (1995). We affirm on this ground.
Evidentiary Rulings
Thomas challenges the admission of three pieces of evidence: (1) Rembert's girl friend's testimony that Rembert said Thomas killed Geist; (2) the numbers "54" on a pager message that Thomas used to indicate that the message was from him; and (3) portions of Alexandra Toomah's testimony in which she said that she believed Thomas threatened to kill his wife and child.
We review the trial court's admission of evidence for abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996). "A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds." State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019 (1997). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev'd on other grounds, 99 Wn.2d 538 (1983).
But an error in admitting evidence is not grounds for reversal unless it prejudices the defendant. State v. Howard, 127 Wn. App. 862, 871, 113 P.3d 511 (2005) (citing Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983)), review denied, 156 Wn.2d 1014 (2006). In the context of evidentiary violations, error is not prejudicial unless, within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred. State v. Halstien, 122 Wn.2d 109, 127, 857 P.2d 270 (1993). The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole. State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
In his first appeal, Thomas challenged the admissibility of Rembert's girl friend's testimony. Our Supreme Court ruled that evidence of Rembert's statement to his girl friend was admissible as an excited utterance. Thomas, 150 Wn.2d at 853-56; see also, Greene, 68 Wn.2d at 10 (explaining that under the "law of the case" doctrine, the parties, the trial court, and appellate courts are bound by the holdings of the court on a prior appeal). This ruling resolved the issue.
At the rehearing, the trial court ruled that the numbers "54" in a pager message by
Thomas were not assertive conduct and thus were not hearsay. We agree. The witnesses merely testified to what they had seen and where they had seen it. As such, the testimony was not hearsay.
Thomas did not preserve his last evidentiary challenge for our review. Toomah testified that she believed that Thomas threatened to kill his wife and child. Thomas objected that the testimony was hearsay, irrelevant, and that the witness lacked personal knowledge. But on appeal, Thomas claims only that ER 404(b) prohibited admission of the testimony because it is evidence of a prior bad act introduced to prove the person's character. We do not review a challenge to the admissibility of evidence on grounds not raised at trial. And a relevancy objection does not preserve an ER 404(b) challenge. See State v. Kendrick, 47 Wn. App. 620, 634, 736 P.2d 1079, review denied, 108 Wn.2d 1024 (1987) (ruling that a relevancy objection is insufficient to preserve appellate review based on ER 404(b)). We affirm on this ground. Jury Instructions
Thomas also challenges the jury instructions on remand, arguing that the trial court erred because it (1) instructed the jury that Thomas was guilty of first degree premeditated murder and (2) failed to inform the jury that the aggravating factors applied specifically to Thomas instead of his accomplice. Thomas challenged the instructions at the trial court and offered his own, which he claims would have cured the errors.
A. Harmless Error Analysis and the Right to Jury Trial
Thomas first argues that the trial court erred when it stated in Instruction No. 2: "The defendant has been found guilty of premeditated murder in the first degree." 2 CP at 181. Judges are prohibited by article IV, section 16 from instructing a jury that "matters of fact have been established as a matter of law." State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006) (quoting State v. Becker, 132 Wn.2d 54, 64, 935 P.2d 1321 (1997). Yet Thomas does not dispute that our Supreme Court affirmed his conviction for first degree premeditated murder. Instead, he claims that the high court violated his right to a jury trial because it affirmed his conviction under the harmless error doctrine. He reasons that the court engaged in impermissible judicial fact-finding when it assessed the evidence and concluded that Thomas was guilty as a principal because no rational jury could find otherwise.
Again, the law of the case doctrine bars us from considering issues that "might have been determined had they been presented" in an earlier appeal. Folsom, 111 Wn.2d at 263 (quoting Adamson, 66 Wn.2d at 339; Greene, 68 Wn.2d at 7). It appears certain that this argument would fail on the merits. See Levy, 156 Wn.2d 709 (in which a seven-justice majority rejects Justice Sanders's assertion that the majority's harmless error analysis constitutes judicial fact-finding). But regardless of the merits, it is improper for us to substitute our analysis for the Supreme Court's prior decision in this case.
B. Accomplice Liability
Next, Thomas argues that the trial court erred because it failed to specifically inform the jury that the aggravating factors applied to Thomas instead of his accomplice. A trial court errs if it fails to accurately instruct the jury on each element of a charged crime and relieves the State of its burden to prove every essential element of the crime beyond a reasonable doubt. State v. Smith, 131 Wn.2d 258, 263, 930 P.2d 917 (1997). Neither the law nor the facts support Thomas's argument.
Thomas asserts that the aggravating circumstances listed in former RCW 10.95.020 " cannot be established through principles of accomplice liability; aggravating factors must apply personally to the defendant and not just to an accomplice." Br. of Appellant at 24. This is not the law. Thomas cites Roberts, 142 Wn.2d 471, for this rule. But the Roberts court held that imposing the death penalty based purely on accomplice liability would violate the prohibition on cruel and unusual punishment. 142 Wn.2d at 505-06. Here, the State did not seek the death penalty. Neither the Roberts court nor any other has held that former RCW 10.95.020 requires that a defendant personally commit the aggravating circumstances when the State seeks a punishment of life without parole. Thomas misstates the Roberts ruling.
It is black letter law that an accomplice to any crime, including murder, is equally culpable as a principal. RCW 9A.08.020; State v. Silva-Baltazar, 125 Wn.2d 472, 886 P.2d 138 (1994). But the accomplice liability statute, RCW 9A.08.020, is limited to accountability for crimes. Thus, "an accomplice is `equally liable only for the substantive crime — any sentence enhancement must depend on the accused's own misconduct,'" unless the legislature indicates otherwise. Silva-Baltazar, 125 Wn.2d at 481 (quoting State v. McKim, 98 Wn.2d 111, 116, 653 P.2d 1040 (1982)). The aggravating circumstances in former RCW 10.95.020 are sentence enhancements. Thomas, 150 Wn.2d at 848.
The legislature indicated that a defendant may be culpable for acting as an accomplice for some, but not all, of the aggravating factors in former RCW 10.95.020. The legislature intended that an accomplice to murder be subject to chapter 10.95 RCW, indicated by the leniency factor of "[w]hether the defendant was an accomplice to a murder committed by another person where the defendant's participation in the murder was relatively minor." RCW 10.95.070(4). And the legislature phrased the aggravating factors so that some require that the defendant personally engaged in the aggravating acts, while others do not.
Former RCW 10.95.020, the aggravated murder statute, reads in relevant part:
A person is guilty of aggravated first degree murder if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravating circumstances exist:
. . . .
(9) The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime, including, but specifically not limited to, any attempt to avoid prosecution as a persistent offender as defined in RCW 9.94A.030;
(10) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;
(11) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:
(a) Robbery in the first or second degree;
(b) Rape in the first or second degree;
(c) Burglary in the first or second degree or residential burglary;
(d) Kidnapping in the first degree; or
(e) Arson in the first degree.
(Emphasis added.) Aggravating circumstances 9 and 10 require that the defendant committed the act personally, as 9 requires that the defendant committed the murder to conceal and 10 requires that the defendant committed a common scheme or plan and victimized multiple people. In contrast, aggravating circumstance 11 omits the element of a personal act, subjecting any person guilty of premeditated first degree murder, including an accomplice, to a sentence enhancement if that murder was in the course of, in furtherance of, or in immediate flight from a listed crime. Thomas was sentenced under circumstances 9 and 11.
Here, the trial court instructed the jury that it must find that Thomas personally committed the aggravating circumstances. The trial court did this in the simplest way possible, avoiding Thomas's confusing and redundant instructions on accomplice and principal liability. The trial court asked:
(1) Did the defendant commit the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime?
. . . .
(2) Did the defendant commit the murder in the course of, in furtherance of, or in immediate flight from robbery in the first degree?
. . . .
(3) Did the defendant commit the murder in the course of, in furtherance of, or in immediate flight from robbery in the second degree?. . . .
. . . .
(4) Did the defendant commit the murder in the course of, in furtherance of, or in immediate flight from residential burglary?
2 CP at 202 (emphasis added). The jury answered "yes" to each of these questions. 2 CP at 202. There was only one defendant in this proceeding: Thomas. The jury interrogatories asked the straightforward questions of whether Thomas personally committed the murder under the relevant aggravating circumstances. Again, no court has held that the defendant's personal participation is required to prove an aggravating circumstance under former RCW 10.95.020(11). But even if that were the law, the trial court's instructions here required the jury to find that Thomas personally committed the murder in the course of robbery or burglary. We affirm on this ground. Prosecutorial Misconduct
In his statement of additional grounds for review (SAG), Thomas alleges misconduct during closing argument, asserting that the prosecutor argued from information that was not before the jury. Specifically, the prosecutor said, "You'll also remember that Richard Geist was murdered in the front driver's seat and drug out the side of the van. Where he was resting was on the passenger's side of the van." 15 Report of Proceedings (RP) at 1697. Thomas's attorney objected and argued that this information was introduced during the first trial but was not evidence during the rehearing. The State argued that this evidence could be inferred from Raymond Cool's testimony. The trial court overruled the objection.
RAP 10.10.
The prosecutor argued:
What I said was Raymond Cool saw the van pointed in a certain direction. The north side of the road is here where the body is, the passenger's side is here. It's logical that the body is dragged out the passenger's side onto the side of the road. That's what I said. I have never said Edward Rembert said such and such. I'm arguing from the evidence that was presented in this case and the reasonable inferences therefrom.
15 RP at 1703.
To prove prosecutorial misconduct, the defendant bears the burden of proving that the prosecuting attorney's conduct was both improper and prejudicial. State v. Korum, 157 Wn.2d 614, 650, 141 P.3d 13 (2006). To prevail on the prejudice prong, there must be a substantial likelihood the misconduct affected the jury's verdict. Korum, 157 Wn.2d at 650. We view the allegedly improper statements within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions. Generally, it is improper for an attorney to assert facts not in evidence during his closing arguments. See State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995).
Although Cool's testimony does not contain an explicit statement about where the men sat in the van, it is possible to infer from his testimony that Geist sat in the driver's seat. More importantly, Thomas has not demonstrated how this alleged misstatement was significant or how, in light of the other evidence presented to the jury, the statement improperly affected the jury's verdict. The court instructed the jury to consider only the evidence admitted during trial and not to consider as evidence the party's closing arguments. We presume the jury did so. State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003) (the jury is presumed to follow the court's instructions). And where Geist sat or how his body was dumped has no bearing on the verdict in this case. Thomas has not demonstrated that the prosecutor's statement prejudiced him. Cumulative Error
Thomas also argues that cumulative errors deprived him of his right to a fair trial. An accumulation of errors that do not individually require reversal may still require reversal if, in total, the errors deny a defendant a fair trial. Perrett, 86 Wn. App. at 322. But the doctrine of cumulative error does not apply here because we find no error to accumulate. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, C.J., VAN DEREN, J., concur.