Opinion
No. 2510
05-03-2021
BRADFORD THOMPSON v. STATE OF MARYLAND
Circuit Court for Baltimore City
Case No.: 118270020
UNREPORTED
Graeff, Gould, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ. Opinion by Gould, J. *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Appellant, Bradford Thompson, was indicted in the Circuit Court for Baltimore City and charged with possession of fentanyl and possession of fentanyl with intent to distribute. Following a jury trial, Mr. Thompson was convicted of possession of fentanyl with intent to distribute. He was sentenced to fourteen years' incarceration, consecutive to any sentence he was then serving.
Mr. Thompson timely appealed and presents the following questions:
1. Did the motions court commit reversible error when it found that Mr. Thompson's statement to police was voluntary?
2. Did the trial court commit reversible error when it permitted three expert witnesses, who were not disclosed in discovery, to testify?
Although Mr. Thompson's questions refer to three expert witnesses, his argument refers to four expert witnesses. We will consider his question as to all four expert witnesses.
For the following reasons, we shall affirm.
BACKGROUND
The underlying facts of this case are not in dispute. As Detective Leon Riley of the Baltimore City Police Department testified, on August 28, 2018, at approximately 3:00 p.m., he was on patrol in his vehicle with other officers when he saw a group of three or four people sitting on a stoop in the 2500 block of West Fairmount Avenue in Baltimore City. Because the area had a no-trespass sign and was known as a "high drug area," and an "open air drug market," Deputy Riley stopped his vehicle and asked the individuals if they lived there. Noticing that Mr. Thompson had a "large bulge in his pocket," Detective Riley asked him what he had in his pocket. Mr. Thompson stood up and replied that "I got three bags of weed." When the detective asked him if he would show them to him, Mr. Thompson "took off running."
Detective Riley followed Mr. Thompson in his vehicle and apprehended him after a brief foot chase. During the chase, Detective Riley noticed that Mr. Thompson was "holding his side." After Mr. Thompson was apprehended, the police officers retraced the route of the pursuit and "located a plastic bag of suspected heroin gelcaps." Relevant to this appeal, three other police officers, Detective Bryant Salmon, Detective Scott Armstrong, and Detective Mark Tallmadge were involved in the pursuit and ultimate recovery of the narcotics.
As discussed below, these three officers and Deputy Riley were accepted as experts at trial over Mr. Thompson's objection.
On September 4, 2018, just seven days after these events, two police officers interviewed Mr. Thompson in a police interview room over the course of six hours. The interview was video-recorded.
Twelve hours before the interview, Mr. Thompson had been shot by an unknown assailant. He was treated at a hospital and had been prescribed morphine and Percocet. Nevertheless, at the interview, Mr. Thompson signed a form acknowledging that he received and understood his Miranda rights, and thereafter gave the following incriminating statement to the police, all captured on video: "Yeah, I got locked up last week. I had four percs on me. I pop percs. . . . I had four 30s on me. Man, and they just pulled up on me. So he's asking what's in my pocket. I straight said[,] '[t]hree bags of weed.'"
See Miranda v. Arizona, 384 U.S. 436 (1966).
The following exchange occurred between Mr. Thompson and one of the police officers during the interview:
MR. THOMPSON: I understand. If you agree to answer questions, you may stop at any time and request an attorney, and no further questions will be asked of you.
OFFICER []: Do you understand that?
MR. THOMPSON: Yeah, like I can stop you all. I can stop talking.
OFFICER []: Yeah.
MR. THOMPSON: I mean, I'm not going to lie to you. I'm going to tell you all—I mean, what I know. I can't force something I don't know.
OFFICER []: Right. I understand that, man. It's just[,] know that you can stop whenever you want.
Mr. Thompson moved to suppress his statement to the police made during this interview. The court denied his motion. A video of a portion of the interview was admitted into evidence and played for the jury.
Additional facts will be included as necessary.
DISCUSSION
I.
ADMISSIBILITY OF MR. THOMPSON'S CONFESSION
A.
THE MOTION TO SUPPRESS
On the first day of trial, prior to voir dire of the prospective jurors, Mr. Thompson moved to suppress his September 4, 2018 video-recorded statement. Mr. Thompson argued in the circuit court that his statement was not voluntary because he had been shot earlier that same day, he was in a "a lot of pain" and had taken morphine and Percocet prior to interview, and had been detained for approximately six hours.
According to defense counsel, during the interview, Mr. Thompson was "clearly, physically in a lot of pain and requested medication at several points throughout the interview." Defense counsel further argued:
No witnesses were called at the suppression hearing; the hearing proceeded based only on proffers of counsel. There is no dispute as to these proffers. See Commercial Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 643 (1997) (internal quotations omitted) ("As officers of the court, lawyers occupy a position of trust and our legal system relies in significant measure on that trust. . . . if counsel makes a representation, . . . counsel's word is counsel's bond unless there is something to the contrary that the opponent can bring in").
So Your Honor, in this situation[,] given the fact that Mr. Thompson had just been shot. That he was under a hospital care and discharged at the request of the Baltimore City Police Department, the fact that he was prescribed pain killers for being shot just 12 hours [prior], and that he received no medical attention for the six hours which he was in the interview room, and I think even more telling is that at the end of the interview, there is a time period where Mr. Thompson is sitting in the interview room alone. The officers left. He's banging on the door. He's clearly in pain. He's requesting that he'd be taken to the hospital multiple times. No officer comes. I think it's a period
of maybe about 30 to 40 minutes where he's sitting there. He used the crutches that he has to bank [sic] on the door to request that he, he goes to see a medic because at that point he believed that the gunshot wound on his back had started to bleed, again or it was opened up.In response to a question from the court, defense counsel acknowledged that Mr. Thompson had been informed of his rights under Miranda.
The State argued that the issues of waiver and voluntariness had already been litigated and resolved against Mr. Thompson in a different case before a different judge, and that Mr. Thompson was offering nothing new.
The record does not include any additional detail about this prior hearing, other than the State's proffer that it occurred on June 5, 2019 before the Honorable Wanda Keyes Heard, Associate Judge of the Baltimore City Circuit Court. On appeal, the State avers that "[t]he interrogation focused primarily on the shooting incident, which was the subject of a separate criminal case."
Although the State conceded that Mr. Thompson's statement was obtained as a result of custodial interrogation, it argued that Mr. Thompson validly waived his Miranda rights, as evidenced by the waiver form. Turning to the voluntariness of Mr. Thompson's statement, the State continued:
See Thomas v. State, 429 Md. 246, 259 (2012) (under Miranda and its progeny, "an individual in custody must be informed of certain rights prior to being interrogated so that he or she is not compelled into incriminating himself or herself in violation of the Fifth Amendment").
The State also identified the audio copy of Mr. Thompson's statement, redacted down from the full six hours. The exhibits from the motions hearing were admitted for purposes of the motion and are included with the record on appeal.
[A]s far as voluntariness goes, the fact that Mr. Thompson was in pain, Your Honor, is not dispositive of this issue. Simply because somebody is in pain does not render a statement made by them to the police to be not voluntary. We're talking about whether or not they have the ability to comprehend what's going on and understand full consequences. Whether or not it's a
good decision on their part to actually talk to the police is not what we're looking at. What we're looking at is, do they have the ability to comprehend what's happening, give appropriate responses, and you know, fully engage in a conversation, understand what's happening and not be overborne by the pain. Your Honor, in this case that is not, that is not the case.
In reply, defense counsel stated:
And as stated before, during the Miranda warnings, Mr. Thompson noted several times that as he was reading, he had to stop. He couldn't turn properly to sign the form. That he was in pain. And Your Honor, you know, he commented over and over, again how much pain he was in. How it hurt. That he was shot and Your Honor, I'm just quoting directly from the video. Your know, this shit hurt, bad as shit. I almost died. I got shot. You know, I got shot and I almost died. The officer asked him at 53 minutes if he was sober. He was like, well I'm on pain medication and they had a conversation that said he had just took the pain medication before they asked him to discharge him. So Your Honor, and this goes on throughout the conversation. Mr. Thompson at 54 minutes says that he was shot in the left leg and that he was shot in the back. Again, at 56 minutes and 13 seconds he says, again, I could have died last night. Um, the officer mentions at 57 minutes that I see that you're in a lot of pain. I can't understand what you're going through, but I'm going to, you know, we're going to try to get you out of here as soon as possible. Mr. Thompson replies that I need to get my prescription filled. And so this is all in the middle of the Miranda warnings. At 59 minutes and 42 seconds, the officer asked if you're having trouble breathing and Mr. Thompson response was, of course. I got shot[.] [T]his, again Your Honor, quoting directly from the video. This shit hurts. Of course, I can't breathe.
The court denied the motion to suppress, finding as follows:
On the second day of trial, Mr. Thompson renewed the motion on the grounds that he unequivocally asked for an attorney during the interview. The court denied that motion, and that ground is not raised on appeal. Mr. Thompson then moved to exclude that portion of the interview where he confessed to having 350 to 400 pills on his person as a prior bad act. The court denied that motion, and that is also not challenged on appeal.
The Defendant was of age. This isn't the first time. He's been through this process before. He comprehended that he didn't have to give a statement at all. He could go directly back to the hospital. He decided to give a statement. Because he was in pain doesn't make the statement invalid. Because he was under the influence of pain medication did not mean that he did not
understand what he was saying. In the totality of the circumstances, this Court finds that the statement was freely and voluntarily given.
B.
ANALYSIS
On appeal, Mr. Thompson reiterates his argument that due to his injuries and the painkillers he took, his statement to the police was not voluntary, and on that basis contends that the court erred in denying his motion to suppress. The State argues that the court had a sufficient evidentiary basis to conclude that Mr. Thompson's statement was voluntary under the circumstances.
When reviewing the denial of a motion to suppress, we look solely to the evidence adduced at the suppression hearing and view it in the light most favorable to the prevailing party on the motion. Gonzalez v. State, 429 Md. 632, 647 (2012). However, we make our own independent constitutional appraisal, "reviewing the relevant law and applying it to the facts and circumstances of this case." Moore v. State, 422 Md. 516, 528 (2011).
In Maryland, it is well-settled that "only voluntary confessions are admissible as evidence against a criminal defendant." Lee v. State, 418 Md. 136, 158 (2011). "Under Maryland's common law, a confession is presumptively inadmissible unless it is shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary." Hof v. State, 337 Md. 581, 595 (1995) (cleaned up).
In assessing the voluntariness of a statement, we examine "the totality of the circumstances affecting the interrogation and the confession." Hill v. State, 418 Md. 62, 75 (2011). "A non-exhaustive list of factors to consider in that analysis includes the length of interrogation, the manner in which it was conducted, the number of police officers present throughout the interrogation, and the age, education, and experience of the suspect." Id. (citing Williams v. State, 375 Md. 404, 429 (2003)). These factors, however, do not share equal weight in our analysis. Williams, 375 Md. at 429. Some factors, such as promises, threats or physical mistreatment, may be "decisive," indicating that the confession was coercive as a matter of law. Id. at 429-30. In such cases, "the State has a very heavy burden, indeed, of proving that they did not induce the confession." Id. at 429. Whereas other factors, "such as the length of interrogation, team or sequential questioning, the age, education, experience, or physical or mental attributes of the defendant . . . may become decisive, only in the context of a particular case — based on the actual extent of their coercive effect." Id. at 429-30.
The Court of Appeals addressed a similar claim that a confession was involuntary due to pain in Gorge v. State, 386 Md. 600 (2005). There, after strangling his grandfather while attempting to obtain money to buy drugs, Mr. Gorge attempted to commit suicide by cutting his wrists and throat and stabbing himself several times. Id. at 604-05. While recuperating from his injuries, police detectives spoke to Mr. Gorge and obtained a confession. Id. at 605-07. On appeal, Mr. Gorge challenged the voluntariness of that confession, arguing that he was "in severe pain, subject to various unknown medications, and emotionally distraught at the time he was interviewed by the officers[.]" Id. at 620. The Court of Appeals disagreed and found:
Based upon our review of the record of the suppression hearing in the instant case and consideration of the totality of the circumstances, we do not think the trial court erred by finding Mr. Gorge's statement voluntary. Although the interrogation took place in Mr. Gorge's hospital room, while he was recovering from serious injuries, the detective's uncontroverted testimony
regarding his discussion with Mr. Gorge supports a finding of voluntariness. Mr. Gorge's answers to Detective Wilhelm were lucid and accurate. Mr. Gorge signed a written statement, indicating that he understood what he was signing and that he gave his statement voluntarily. Moreover, Mr. Gorge did not testify at the suppression hearing and state anything to the contrary. In this case, there was no direct evidence of involuntariness and we cannot say that the trial court erred by finding that the State met its burden of proving the statement was freely and voluntarily given.Id. at 621-22; see also Diallo v. State, 186 Md. App. 22, 85 (2009) (holding that a statement was made voluntarily where there was no indication that appellant was "emotionally distraught or cognitively impaired[,]" and finding that it was relevant that the appellant had just been released from the hospital where he was treated with morphine and other pain medication but not dispositive), aff'd in part, vacated in part, 413 Md. 678 (2010); McDuffie v. State, 12 Md. App. 264, 272 (1971) ("Nor would the fact that the appellant had been in the hospital and may have still been in some pain vitiate an otherwise voluntary statement."), abrogated on other grounds by Lightfoot v. State, 278 Md. 231 (1976).
We arrive at a similar conclusion here. Under the totality of the circumstances, we are not persuaded that Mr. Thompson's statement was involuntary, notwithstanding his gunshot wound, medication, and the six-hour duration of the interview. There is no question that Mr. Thompson read the Miranda form out loud and discussed his rights with the detectives. One officer specifically emphasized to Mr. Thompson that he could stop the questioning at any time. Mr. Thompson verbally confirmed to the detectives that he understood his rights. The record supports the trial court's conclusion that Mr. Thompson's pain did not impact his understanding of his rights.
We therefore find no error in the trial court's denial of Mr. Thompson's motion to suppress his statement.
As for his age, education, and experience, there were no related proffers or evidence, other than Mr. Thompson's depiction on the video-recorded statement, and the court's finding that Mr. Thompson was "of age," that "[t]his isn't the first time" and that "[h]e's been through this process before." Further, there were no proffers and there was no evidence that Mr. Thompson was ever threatened, induced, or coerced to make his statement.
II.
ADEQUACY OF EXPERT DISCLOSURES
Mr. Thompson asserts the trial court erred in permitting four police officers to testify as experts in the identification, sale, use, and distribution of controlled dangerous substances. The four police officers were Detective Leon Riley, Detective Bryant Salmon, Detective Scott Armstrong, and Detective Mark Tallmadge. In that order, each of these detectives were permitted to opine as experts that the narcotics recovered by the police were for street distribution.
When the State offered Detective Riley as an expert, Mr. Thompson objected and offered the following grounds at a bench conference:
[DEFENSE COUNSEL]: So Your Honor, we'll object to this witness being offered as an expert. The State has not provided any information to the defense letting defense know that they would, in fact, call Detective Riley as an expert. Additionally, the requirements of the Maryland Rules have not been followed in terms of what is required to what's turned over for an expert witness. If I could just have a brief indulgence.
[PROSECUTOR]: May I step back?
THE COURT: Sure
(Pause in proceedings).
[PROSECUTOR]: Your Honor, the State's omnibus, which was filed on December 14, 2018. Let's see, section eight, the State gives notice to the Defendant that it plans to call police officers (inaudible - 2:07:35 p.m.) And the police officers will be called as witnesses to testify in the identification, packaging, distribution of controlled dangerous substances, but specifically for this detective.
THE COURT: That was disclosed to the Defendant.
[PROSECUTOR]: This was disclosed in December of 2018.
[DEFENSE COUNSEL]: Your Honor, simply the State in their omnibus motion just state[s] that any witness that they may call may be called as an expert. However, the rules specifically requires that the State turns over the expert's name, their address, the subject matter of their consultation, any findings or opinions that they're going to offer as expert opinions in trial as well as a summary for the grounds of each of their opinions. Brief indulgence.
(Pause in proceedings).
[DEFENSE COUNSEL]: Your Honor, included in that, the defense should have the opportunity to expect any in court statements or you know, including any results or examinations or whatever other expert opinion that the State intends to introduce. So while the State notified that anybody they [called as a witness they] could call as an expert, they did not comply with the rule and give me the required notice of specifically what expert testimony this officer would offer, any reports or findings that he would have so that the defense could know specifically what the area of expertise would be. Simply saying that any witness they call can be an expert does not comply with the Maryland Rules or Hutchins v. State[, 339 Md. 466 (1995)], Your Honor.
[PROSECUTOR]: Your Honor, there's no reports generated specifically in the use of a drug case. The State just quoted that police officer -
THE COURT: So you're not planning on using any reports of an expert matter.
[PROSECUTOR] This is simply for -
THE COURT: His testimony, okay. I'm going to -
[DEFENSE COUNSEL]: Your Honor, we would still object because if that's the case then this is lay witness testimony and to offer him as an expert without any basis of that is, it would be prejudicial. And again, the State did not comply with the Rules required when offering an expert witness.
THE COURT: I'm going to deny your request, counsel.
Mr. Thompson made similar discovery-related objections when the State offered the testimony of Detectives Salmon, Armstrong, and Tallmadge as expert witnesses. Further, Mr. Thompson argued that their testimony was cumulative and irrelevant under the circumstances. The court overruled these objections.
Mr. Thompson argues that the expert testimony of the four detectives should have been excluded because the State's notice under the discovery rules was inadequate. The State counters that these witnesses were identified as experts and that the court properly exercised its discretion in permitting them to testify as such.
We note that Mr. Thompson has not challenged the experts' qualifications to offer expert testimony. We also note that, unlike in the trial court, he is not arguing that their testimony was: (1) lay opinion instead of expert opinion; (2) cumulative; and/or (3) irrelevant. We also disagree with the State's suggestion that Mr. Thompson sought the ultimate sanction of exclusion of these witnesses' testimony. Rather, Mr. Thompson objected to the witnesses testifying as experts, not to their testimony per se.
The issue presented is one of pretrial discovery. Generally, when the trial court determines that a discovery violation has occurred, the remedy is "within the sound discretion of the trial judge." Williams v. State, 364 Md. 160, 178 (2001), abrogated on other grounds by State v. Jones, 466 Md. 142 (2019). Where the court does not make a specific finding that there was a discovery violation, the appellate courts review the issue without deference "to determine whether a discovery violation occurred." Id. at 169; see also Kazadi v. State, 467 Md. 1, 49 (2020) ("An appellate court reviews without deference a trial court's conclusion as to whether a discovery violation occurred.").
This issue is governed by Maryland Rule 4-263(d)(8), which provides that the following be provided to the defense:
As to each expert consulted by the State's Attorney in connection with the action:
(A) the expert's name and address, the subject matter of the consultation, the substance of the expert's findings and opinions, and a summary of the grounds for each opinion;
(B) the opportunity to inspect and copy all written reports or statements made in connection with the action by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison; and
(C) the substance of any oral report and conclusion by the expert[.]
The purpose of this rule "is to allow the defense to prepare for expert testimony." Cole v. State, 378 Md. 42, 58 (2003) (citing former Md. Rule 4-263(b)(4)). "Defense counsel cannot prepare to evaluate or challenge a State expert's qualifications or testimony without an understanding of what tests the expert performed and how the expert performed them." Id. As we have explained, the rule "is based on the recognition that the prosecutor is not always able to determine what is exculpatory or what is material to the defense. It avoids trial by ambush. If an agent of the State has consulted an expert, the defendant is entitled to disclosure of that expert's conclusion." Hutchins v. State, 101 Md. App. 640, 649 (1994) (internal footnote omitted), rev'd on other grounds, 339 Md. 466 (1995); see also Green v. State, 456 Md. 97, 132-33 (2017) (citation omitted) ("[T]he major objectives are to assist defendants in preparing their defense and to protect them from unfair surprise."); cf. Md. Rule 4-263(n) (providing suggested sanctions for discovery violations).
Here, the record reveals that, on December 14, 2018, the State filed its Initial Disclosures, Notices and Motions (the "Notice"). The Notice provided, in part, as follows:
3. State's Witnesses Pursuant to Rule 4-263(d)(3)
The witnesses for the State are those listed in the charging documents, any report(s) attached thereto, and/or anyone mentioned in any document(s) attached to the State's disclosures. Additional witnesses, if any, are listed below. . .
The Notice included the following footnote, immediately after the preceding paragraph:
As discussed infra, any disclosed witness affiliated with law enforcement - e.g., police officers, firearms examiners, latent-print examiners, chemists, etc. - may be called as expert witnesses in their respective fields.
In addition, the Notice included the following, in pertinent part:
8. Reports and/or Statements of Experts Pursuant to Rule 4-263(d)(8).
All requisite information, including the name and address of the expert, the subject matter of the consultation, the substance of the expert's findings and opinions, a summary of the grounds for each opinion, and the substance of any oral report or conclusion by the expert, for any expert consulted by the State in connection with this case is noted below and/or provided pursuant to Rule 4-263(k)(2). The State also hereby provides Defendant or
Defendant's counsel the opportunity to inspect and copy all written reports or statements made in connection with the case by the expert, including the results of any physical or mental examination, scientific test, experiment, or comparison.
(Emphasis added).Law enforcement experts. The State gives notice to Defendant of its intent to call all of the police officers, firearms examiners, latent-print examiners, and chemists (if a demand for the chemist is timely made) disclosed as witnesses in this case to testify as experts in their respective fields. Any police officers called as witnesses will testify as experts in the identification, packaging, and distribution of controlled dangerous substances; . . .
Maryland Rule 4-263(k)(2) provides:
In the absence of an agreement, the party generating the discovery material shall (A) serve on the other party copies of all written discovery material, together with a list of discovery materials in other forms and a statement of the time and place when these materials may be inspected, copied, and photographed, and (B) promptly file with the court a notice that (i) reasonably identifies the information provided and (ii) states the date and manner of service. On request, the party generating the discovery material shall make the original available for inspection and copying by the other party.
Further, as indicated in the index of documents provided to the defense, the State also provided the Statement of Probable Cause in pre-trial discovery. This statement, which was written by Detective Riley, identifies "P/O Zeno, P/O Tallmadge, P/O Armstrong, P/O Salmon, SGT Ivery and I (P/O Riley)." In addition, the State's written Request for Voir Dire, as well as the actual voir dire of the prospective jurors, identified these officers as Detectives Leon Riley, Mark Tallmadge, Bryant Salmon, and Scott Armstrong."
A document from the State's Attorney asking the district court to summon these officers is included in the record and further details these officers' names, work addresses, and phone numbers.
Consistent with Maryland Rule 4-263(d)(8)(A), the State disclosed the name and address of each of these experts, as well as the "subject matter of the consultation," in that the pretrial discovery indicated that they would be testifying as experts in the field of the identification, packaging, and distribution of controlled dangerous substances. Although the State did not specifically identify "the substance of the expert's findings and opinions, and a summary of the grounds for each opinion," the Notice indicates that the State provided such information in its open file discovery. Based on this record, we are unable to conclude that a discovery violation occurred.
There were no reports under (B) or (C) according to the State's undisputed proffer.
Even if we were, we are not persuaded that Mr. Thompson suffered actual prejudice. As noted, Mr. Thompson did not challenge the witnesses' qualifications and does not maintain that their testimony was improperly admitted as lay opinion or was cumulative and/or irrelevant. Instead, Mr. Thompson's argument concerns the allegedly inadequate notice provided in the State's omnibus filing. Although we agree that the Notice was rather general, this was not a complicated case. It concerned the issue of whether Mr. Thompson constructively possessed the narcotics that were found along his path of flight. Under these circumstances, we note that defense counsel thoroughly cross-examined these witnesses at trial. Their testimony, both as to the facts and their opinions, was also specifically challenged during defense counsel's closing argument. And finally, the jury was instructed how to consider witness testimony, expert, or otherwise.
We conclude that, under these circumstances, any omission in the notice of these four witnesses as experts was harmless beyond a reasonable doubt. See Dionas v. State, 436 Md. 97, 108 (2013) (quoting Dorsey v. State, 276 Md. 638, 659 (2013) (observing that an error is harmless when a reviewing court is "satisfied that there is no reasonable possibility that the evidence complained of — whether erroneously admitted or excluded — may have contributed to the rendition of the guilty verdict"); see also Williams, 364 Md. at 179 (finding that the trial court's failure to exercise discretion requires the appellate court to consider whether a discovery violation amounts to harmless error).
JUDGMENT AFFIRMED. COSTS TO BE PAID BY APPELLANT.