State v Travis, (02-873) 09/02/2003

Appeal by defendant from judgment entered 11 June 2001 by Judge Thomas D. Haigwood in Halifax County Superior Court. Heard in the Court of Appeals 27 March 2003.

Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan P. Babb, for the State.

Beaver, Holt, Sternlicht, Glazier, Carlin, Britton & Courie, P.A., by Richard B. Glazier, for defendant appellant.

    McCULLOUGH, Judge.

    On 12 April 1999, defendant was indicted on charges of robbery with a dangerous weapon, attempted first-degree murder, first- degree murder, and assault by pointing a gun. On 19 March 2001, defendant Douglas Travis was further indicted on charges of first- degree burglary and attempted breaking or entering. All charges stemmed from the events of 15 March 1999.
    Defendant was tried at the 7 May 2001 Special Criminal Session of the Halifax County Superior Court before the Honorable Thomas D. Haigwood. The evidence at trial tended to show that on 15 March 1999, defendant and one other person entered the Handy MartConvenience Store in Scotland Neck, located in Halifax County, North Carolina. The clerk, Lajuane Baker, triggered the alarm button as soon as the pair entered the store, as he saw defendant's gun and apparently believed the store was about to be robbed. The clerk testified that defendant inquired as to whether or not the store was open. Upon being told the store was open, defendant, who was dressed in camouflage, white gloves and a toboggan, placed a dark colored bandana over his face. The other person with defendant was similarly dressed.
    As the men robbed the store, defendant kept his gun, a pistol, pointed at the clerk. The clerk described the pistol as a two- toned, dark and silver semiautomatic. The two men left the store after getting the money. After the men left, the clerk saw a gray Nissan speed past the store heading toward Rich Square, North Carolina.
    The clerk was later presented with a weapon seized by the State from defendant and asked to compare it to what he remembered seeing on 15 March 1999. He stated that it was very similar to the gun defendant used during the robbery. On cross-examination, the clerk admitted that in a prior report he had stated that the gun the robber held was a blue steel automatic.
    Responding to the alarm at the convenience store, Sergeant Ty Metzler was heading toward the store on the same road that the gray Nissan was traveling away from the store. The Sergeant noted the vehicle as they passed one another and got a good look at the driver, whom he identified as defendant in court.     Another witness, Stacey Kilpatrick, happened to be driving on the same stretch of road as defendant when two police cars caught up with him. She made eye contact with defendant as he exited his car and put his hands up. She noted that he was wearing a camouflage jacket and a dark hat and pants. She then left the scene, only to return to the same place several minutes later to see defendant's vehicle leaving the scene at a high rate of speed.
    Officer Cedric Robinson and Sergeant Tonya Gillikin of the Enfield Police Department were on duty in separate vehicles the night of the robbery. After being alerted to the vehicle defendant was driving, Robinson, who had been on the job only a short while, saw a vehicle matching its description and began pursuit. Robinson ran the plates and it came back with defendant as the owner. Gillikin joined the pursuit after Robinson contacted her over the radio. Eventually, the Nissan pulled over. Both occupants, black males, exited the Nissan upon command. As Robinson provided cover, Gillikin began giving commands to the two occupants to turn off their car and put their hands in the air and approach the officers. As Robinson approached and reached for defendant's hand to handcuff him, defendant snatched his hand away. A struggle ensued between the officers and defendant. Gillikin came around to the side of the car where the two were struggling. Robinson testified that at one point in the struggle, defendant lifted the officers off of him to such an extent as to free up his hands. Robinson testified that he stated that, “He's reaching, he's reaching in his jacket.” Gillikin informed defendant that if he did not show his hands, shewould be forced to shoot. Robinson then heard a shot fired approximately “a second” later. Robinson saw the muzzle flash and could determine that defendant had shot at him. He then pushed defendant away from him so as to draw his own weapon. Defendant still had a gun in his hand and was now pointing it at Gillikin. As Gillikin turned toward defendant, defendant shot in her direction. Gillikin was hit in the head by the gunshot. Upon seeing this, Robinson then began firing at defendant who was running back toward the Nissan. He missed. Defendant made it back to the Nissan and sped away. Robinson then called for help for Gillikin.
    Robinson was cross-examined on the events that took place leading up to the shooting of Gillikin. His memory of the details of the event was attacked, as he had difficulty getting the facts consistent in his reports to superiors, other officers, and investigators. Robinson either denied making other accounts or left it to the shock of the event. Further, Robinson denied making a statement to the effect of, “Oh shit, I shot her” after defendant had left the scene.
    Sergeant Gillikin died as a result of her gunshot wound to the left temple sustained at the scene. Officer Robinson was carrying a .40-caliber Beretta pistol that night. Forensic testimony was to the effect that Gillikin had been shot with a 9-millimeter handgun. Investigators also found traces of Gillikin's blood on defendant's clothing.     Charles Rives testified that at 3:40 a.m. on 15 March 1999, defendant knocked on his door and asked to use the phone. When Mr. Rives returned with the phone and unlocked the door, an armed defendant barged his way into the house. However, Mrs. Rives turned defendant away with a gun of her own, threatening to “blow him away if he didn't leave.” Both identified defendant in court as the intruder.
    After being apprehended and given his Miranda rights, defendant stated that, “I did not break any laws last night, and I have nothing to be sorry for about last night.”
    Defendant's ex-wife also testified for the State. She identified a letter written by defendant. This letter had been sent to Deborah and Joe Rook, potential witnesses, and it encouraged them to lie for him at trial. The substance of this letter was that defendant was trying to create an alibi for the night in question. The letter also tried to get the Rooks to call the police department from a pay phone and to ask them about the “black cop” (Robinson) who shot the “officer lady” (Gillikin). Defendant apparently wanted them to change their story of what they witnessed outside their window on the night in question.
    Defendant presented evidence in his defense. Eugene Hammiel had stopped in the area to visit relatives on 15 March 1999. His relatives live near the scene at which officers Robinson and Gillikin had stopped defendant. He testified that the suspect was cooperating with the officers. Having a background in security, he believed that the scenario was not playing out properly becauseeveryone was on the dark side of the street as opposed to the lighted area.
    According to Hammiel's testimony, as defendant obeyed commands and was lying on the ground, the officers jumped onto defendant and began beating him about the head. Defendant screamed for help, and the next thing he heard was a gunshot. Defendant then jumped away from the officers and ran to his car. At that point, Robinson opened fire at defendant. Robinson then went into shock upon seeing that Gillikin had been hit. Hammiel never saw defendant with a gun in his hand. According to him, all the shots fired came from one gun.
    In addition, Hammiel stated that after the incident he began drinking again and that the State of North Carolina should have offered him therapy.
    William Wright testified that he only heard shots from one gun that night. Edna Wright, his wife, testified as to what she saw that night. She heard a call for someone to help, and then a shot was fired, and the female officer fell over. According to her, Robinson shot Gillikin while shooting at defendant running toward his car. She was positive that the male officer, Robinson, fired the first shot as he was running after defendant. After shooting, the male officer was hysterical and called for back-up. She did not tell the police this earlier because she was scared.
    Blondell Travis, defendant's mother, testified that the aforementioned letter was not written by her son.     The State presented rebuttal witnesses. Lance Whitaker was in the Halifax County Jail at the same time as defendant. He testified that defendant had admitted to him that he and his nephew had robbed a convenience store. In addition, they were stopped by the police. A female officer had a gun to his head, according to defendant. But then defendant stated that he pulled a gun out of his coat and “shot the lady cop in the head” and started “shooting at the other cop” and left the scene. It was revealed on cross- examination that Mr. Whitaker received a $1,000 bond on his then- current drug charges the day following his statement. More about Mr. Whitaker will be discussed later in the opinion.
    Several officers and law enforcement personnel also testified in rebuttal. SBI Agent Donny Varnell testified that he took Mr. Hammiel's statement. He stated that Hammiel told him he did not know for sure whether defendant or the officer called for help. In addition, Hammiel told him that he heard four shots before the defendant suspect ran to the Nissan.
    Lt. Bill Wheeler testified that he also interviewed Mr. Hammiel. According to Wheeler, the vantage point from which Hammiel claimed he witnessed the police beating defendant was situated so that one could only see the top of a patrol car. Any action on the ground would not present itself from there. Wheeler also interviewed Edna Wright. She was asked if she saw anything and she replied, “No, I was dead asleep,” and slammed the door in his face.     Other officers testified that defendant did not have a mark on him when he was arrested.
    The jury convicted defendant of first-degree burglary, attempted felonious breaking or entering, first-degree murder under the felony murder rule, robbery with a firearm, assault by pointing a gun and attempted first-degree murder on 4 and 6 June 2001. Defendant was sentenced to life imprisonment for the first-degree murder conviction, a minimum of 196 months and a maximum of 245 months for the attempted first-degree murder conviction, a minimum of 80 months to 105 months on the consolidated judgment including the attempted breaking or entering, first-degree burglary, and assault by pointing a gun convictions. The trial court arrested judgment on the robbery with a dangerous weapon conviction. Defendant appeals.
    Defendant makes several assignments of error and presents the following questions on appeal: Whether the trial court committed (I) reversible error in denying defendant's motion to dismiss the charge of first-degree murder and attempted first-degree murder made at the close of the State's evidence and at the close of trial as the evidence was insufficient to convince a rational trier of fact of defendant's guilt of both charges beyond a reasonable doubt; (II) plain error in refusing to allow the jury to review specific portions of the testimony at trial as they requested to do in a note to the court in deliberations, thereby depriving defendant of his federal and state constitutional rights to a fair trial and due process of law as well as defendant's rights underN.C. Gen. Stat. § 15A-1233; (III) plain error in improperly instructing the jury with regard to evidence of flight of defendant as that instruction was not supported by the evidence and was incorrect as a matter of law; and (IV) reversible error in failing to sustain defendant's objection to the testimony of Lance Whitaker who stated that he “was scared being around a murderer,” and failing to grant defendant's motion to strike this irrelevant and prejudicial testimony.

    Defendant first contends that the trial court erred by denying his motions to dismiss the charges of first-degree murder and attempted first-degree murder, as the evidence was insufficient to sustain a conviction.
    When ruling on a defendant's motion to dismiss, the trial court must consider the evidence in the light most favorable to the State. State v. Davis, 325 N.C. 693, 696-97, 386 S.E.2d 187, 189 (1989). The State is entitled to all inferences to be drawn from the evidence presented. Id. “'If there is substantial evidence -- whether direct, circumstantial or both -- to support a finding that the offense charged has been committed and that the defendant committed it, the case for the jury is made and nonsuit is denied.'” Id. (quoting State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 582 (1975)). “'Substantial evidence' simply means 'that the evidence must be existing and real, not just seeming or imaginary.'” State v. Sexton, 336 N.C. 321, 361, 444 S.E.2d 879, 902, cert. denied, 513 U.S. 1006, 130 L. Ed. 2d 429 (1994) (quotingState v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980)). Evidence favorable to the State is to be considered as a whole, and the test of sufficiency to withstand the motion to dismiss is the same whether the evidence is direct, circumstantial or both. State v. Earnhardt, 307 N.C. 62, 67-68, 296 S.E.2d 649, 652-53 (1982).
    Defendant first argues that the attempted murder of Robinson charge should be dismissed, as the only evidence that would support this charge is Robinson's own testimony. This testimony is that during the struggle with defendant, Robinson heard a shot and saw the muzzle flash from the weapon defendant was holding and it was coming right toward him. Defendant belabors the fact that Robinson's testimony was contradictory. Further, defendant argues that this evidence is too speculative on the fact that the shot was fired at him, as there is no evidence that defendant fired any shot at Robinson with any intent as opposed to an accidental discharge. Other witnesses, Hammiel and Mrs. Wright, provide testimony that they never saw defendant with a gun, but heard him calling for help as he was being beaten by officers and seeing and hearing shots fired, from only one gun, as defendant fled the scene.
    Defendant further argues that the first-degree murder of Gillikin charge should be dismissed for much of the same reason: Robinson is the only one who testified that defendant killed her. All other “independent” witnesses never saw defendant with a gun, much less shoot Gillikin. To the contrary, these same witnesses seemed to believe that Robinson himself shot and killed Gillikin as he tried to apprehend defendant.     As the State points out, there was substantial evidence of defendant's guilt presented at trial so as to permit a reasonable inference that defendant was guilty of the crimes charged. Id. at 67, 296 S.E.2d at 652. Forensics showed that defendant had the victim's blood on his clothes and that the victim's wound was consistent with that of a 9-millimeter bullet. While the officers carried 10-millimeter pistols, defendant was in possession of a 9-millimeter pistol when apprehended. In addition, defendant had robbed a convenience store shortly before his encounter with the police, and fled the scene of the encounter after allegedly shooting the officer. Lastly, evidence was presented to the effect that defendant had admitted to killing the officer to a fellow prisoner, and he had written at least one letter in an attempt to falsify an alibi and generate false statements by witnesses.
    The evidence, when looked at in the light most favorable to the State, is sufficient. Defendant used the tools available to him to attempt to discredit eyewitness testimony, and the jury could have chosen to believe that the police were beating defendant and that Gillikin was shot when Robinson tried to shoot defendant. As they are the ultimate trier of fact, this case was properly left to them.
    Defendant lastly contends that the trial court erred in instructing the jury on the felony murder count as neither underlying felony, the attempted murder or the robbery with a dangerous weapon of the convenience store, were proper for application of the rule. The trial court instructed the jury thatit could find defendant guilty of first-degree murder by means of premeditation, deliberation and malice or felony murder. The jury could choose between the underlying felonies of attempted murder and robbery with a firearm. On the verdict sheet, they chose felony murder only, but chose both of the felonies to support it. For purposes of this argument, defendant assumed that insufficient evidence existed to support the attempted murder charge. While we have upheld defendant's conviction of the attempted murder of Robinson, the trial court based the actual felony murder judgment on robbery with a dangerous weapon, as it sentenced defendant for attempted murder and arrested judgment for the robbery. See State v. Silhan, 302 N.C. 223, 261-62, 275 S.E.2d 450, 477 (1981), overruled in part on other grounds, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997). Therefore, we address the matter of whether the robbery with a dangerous weapon conviction was a proper basis for the felony murder rule.
    Defendant argues that the two acts, the commission of the felony of robbery with a dangerous weapon and the killing of Gillikin, were not part of a continuous transaction, and thus the killing of Gillikin did not occur during the perpetration of the robbery. See State v. Jaynes, 342 N.C. 249, 464 S.E.2d 448 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). According to defendant, the robbery was completed at the convenience store and the events on the roadside with the officer were a totally different scenario. See State v. Terry, 337 N.C. 615, 447 S.E.2d 720 (1994); State v. Cook, 334 N.C. 564, 433 S.E.2d 730 (1993).        In State v. Fields, 315 N.C. 191, 197, 337 S.E.2d 518, 522 (1985), we stated:

            A killing is committed in the perpetration or attempted perpetration for the purposes of the felony murder rule where there is no break in the chain of events leading from the initial felony to the act causing death, so that the homicide is part of a series of incidents which form one continuous transaction.

            The law does not require that the homicide be committed to escape or to complete the underlying felony in order to apply the felony-murder principle. We have said that “escape is ordinarily within the res gestae of the felony and that a killing committed during escape or flight is ordinarily within the felony-murder rule.” This does not mean that the killing must be committed to effect an escape from the underlying felony. Furthermore, under . . . Fields there need not be a “causal relationship” between the underlying felony and the homicide, only an “interrelationship.” Finally, as a result of the 1977 Amendment to N.C.G.S. § 14-17, the requirement that the underlying felony must create “a substantial, foreseeable risk to human life” is no longer applicable.

Terry, 337 N.C. at 621-22, 447 S.E.2d at 723-24.
    The evidence shows that the murder was interrelated with the robbery. Here, the clerk had hit the alarm before defendant even got in the door. Officers heading to the scene passed by the fleeing suspect's vehicle; shortly thereafter two officers caught up with them on the road before they had stopped, hidden, or split up. Defendant then shot his way out of the encounter with authorities, presumably in an effort not to get caught or be put in jail.    As the trial court properly denied defendant's motions to dismiss, this assignment of error is overruled.

    Defendant next contends that the trial court committed plain error by refusing to allow the jury to review specific portions of the trial testimony as it requested while in deliberations.
    During its deliberation, the jury sent a note to the trial court requesting to see certain items of evidence and asking to hear portions of Edna Wright's and Robinson's testimony. Defendant's focus is upon the testimony requested. The trial court discussed the matter with the attorneys out of the presence of the jury:
            Now as their last request that can we hear or read portions of the official transcripts? They set out some examples. I'm going to simply tell the jury that in the exercise of my discretion I'm not going to have the court reporter read back what's been said or prepare transcripts for their perusal.

We note that defendant never objected to the trial court's actions in this respect. The trial court brought the jury into the courtroom, and after dealing with the other requests, instructed the jury as to the transcript:
            Now, with regard to your final request on your written communication regarding, can we hear or read portions of the official transcripts. Let me just say to you that in the exercise of my discretion I'm going to respectfully decline to do that. It's your duty, ladies and gentlemen of the jury, to remember all of the evidence.

(Emphasis added.)     Defendant points out that the testimony requested is at the heart of the matter before the jury. Defendant argues that the trial court patently determined, without exercising any discretion, that he would not grant the jury's request. In doing so, the trial court effectively ignored the request and did not comply with the requirements of N.C. Gen. Stat. § 15A-1233(a) (2001). This statute states:
        If the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence. In his discretion the judge may also have the jury review other evidence relating to the same factual issue so as not to give undue prominence to the evidence requested.

Id. (Emphasis added.)
    “Whether to allow a jury's request that previously admitted testimony be read to it lies solely within the discretion of the trial court.” State v. Weddington, 329 N.C. 202, 207, 404 S.E.2d 671, 675 (1991). N.C. Gen. Stat. § 15A-1233(a) imposes two duties on the trial court when it receives a request from the jury to review testimony: the jurors must be present in the courtroom, and the court must exercise its discretion in determining whether to permit the requested evidence to be read to or examined by the jury. Id.
        When a motion addressed to the discretion of the trial court is denied upon the ground that the trial court has no power to grant themotion in its discretion, the ruling is reviewable. “In addition, there is error when the trial court refuses to exercise its discretion in the erroneous belief that it has no discretion `as to the question presented.”

State v. Johnson, 346 N.C. 119, 124, 484 S.E.2d 372, 375-76 (1997).
    We hold that the trial court did not err in its handling of the jury's request. The trial court clearly states that it was denying the request in its discretion. See State v. Lawrence, 352 N.C. 1, 27-28, 530 S.E.2d 807, 824 (2000), cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). The trial court did not deny this request on the belief that it did not have the authority to allow the request, nor on the fact that a transcript did not exist at the time. See State v. Barrow, 350 N.C. 640, 648, 517 S.E.2d 374, 378- 79 (1999); State v. Ashe, 314 N.C. 28, 35, 331 S.E.2d 652, 656-57 (1985). Further, “[w]hen the trial court states for the record that, in its discretion, it is allowing or denying a jury's request to review testimony, it is presumed that the trial court did so in accordance with N.C.G.S. § 15A-1233(a).” Weddington, 329 N.C. at 208, 404 S.E.2d at 675.
    Lastly, defendant argues that the instruction to the jury, “to remember all the evidence,” was inadequate. This is in light of case law stating, “the trial court must instruct the jury that it must remember and consider the rest of the evidence.” Id. at 208, 404 S.E.2d at 675 (citations omitted). We hold that the trial court properly instructed the jury.
    This assignment of error is overruled.

    Defendant's next argument is that the trial court committed plain error by giving the instruction on flight to the jury as it was not supported by adequate evidence.
    We note that, while he acknowledged that an objection was not made below, defendant has improperly invoked the plain error rule. See State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001) (“Defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule. By simply relying on the use of the words 'plain error' as the extent of his argument in support of plain error, defendant effectively failed to argue plain error and has thereby waived appellate review.”). While this is grounds for dismissal of defendant's assignment of error, out of an abundance of caution, we review his argument.
    The trial court gave the following instruction:
            The State contends that the defendant fled. Evidence of flight may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to an admission or show a consciousness of guilt. However, proof of this circumstance is not sufficient in itself to establish the defendant's guilt. Further, this circumstance has no bearing on the question of whether the defendant acted with premeditation and deliberation. Therefore, it must not be considered by you as evidence of premeditation or deliberation.

See 1 N.C.P.I.--Crim. 104.36 (1994).    Defendant does not contend that he did not flee from the scene where Gillikin was shot and killed. He argues, however, that the reason for his flight did not warrant the instruction. According to defendant, Robinson was shooting at him and he fled the scene for fear of his life, and not because of consciousness of guilt.
    However, the trial court was correct in giving the instruction on flight.
            We have held that “[e]vidence of a defendant's flight following the commission of a crime may properly be considered by a jury as evidence of guilt or consciousness of guilt.” A trial court may properly instruct on flight where there is “'some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged.'” However, “[m]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.”

State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d 596, 625-26 (2001) (citations omitted).
    The evidence presented in this case, when considered in a light most favorable to the State, was sufficient to warrant the trial court's instruction on flight. Defendant was stopped by the police and was about to be handcuffed and taken into custody. When the opportunity arose, defendant wrestled away from an officer, shot once at him and again at another officer, killing the latter. Defendant then ran toward his car. At this point, the surviving officer on the scene opened fire. The fact that he was under fire at this point does not destroy the inference. Again looking at theevidence in the light most favorable to the State, Robinson was shooting at defendant to stop his flight/escape. Regardless of defendant's version of the facts, evidence of record supports the above version.
    Therefore, the trial court committed no error, much less plain error, in giving the instruction.

    Defendant's final assignment of error is that the trial court erred by failing to sustain defendant's objection and grant his motion to strike certain testimony by Lance Whitaker.
    During rebuttal, the State called Lance Whitaker to the stand. Whitaker was in the same jail as defendant in March of 1999. On direct, Mr. Whitaker was asked why he had given his statement about defendant to a detective. He responded, “Well, first of all I scared being around a murderer[.]” Defendant objected and moved to strike the testimony but was overruled by the trial court. Defendant now asks for a new trial.
    Defendant argues that his objection should have been sustained and the testimony stricken as it was irrelevant and had no logical tendency to prove any fact in the case being simply a gratuitous utterance meant to prejudice the jury. See N.C. Gen. Stat. § 8C-1, Rule 401 (2001). Further, the evidence should have been excluded under Rule 403, as the probative value of this evidence is substantially outweighed by the danger of unfair prejudice to defendant. N.C. Gen. Stat. § 8C-1, Rule 403 (2001).    The statement by Whitaker was given in response to a question posed to him that sought to tell the jury why he gave a statement to a detective. This statement was a detailed account of what defendant had told him of the events of 15 March 1999 during their time together in jail. According to the State, this exchange adds credibility to Whitaker's testimony. See State v. Coffey, 345 N.C. 389, 403-04, 480 S.E.2d 664, 672-73 (1997). This is significant as it is a reason for the statement independent of the inference raised by defendant later on cross-examination, that Whitaker had received favorable treatment as a result of the statement by way of a reduced bond. Thus, the statement is relevant for the purpose of establishing Whitaker's motivation. As such, we see no abuse of discretion by the trial court in denying defendant's objection and motion to strike.
    Even if it was error for the trial court to deny defendant's objection and motion to strike, any such error would be harmless. Whitaker had just detailed the events which had been told to him by defendant. These details included his murdering a police officer. There is no reasonable possibility that had the objection and motion to strike been sustained, a different result would have been reached.
    This assignment of error is overruled.
    No prejudicial error.
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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