v. Oliver , 2020 COA 150 ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
October 29, 2020
2020COA150
No. 17CA1127, People v. Oliver — Constitutional Law — Fourth
Amendment — Searches and Seizures — Investigatory Stops
A division of the court of appeals concludes that, when
detaining an individual fleeing from the scene of a shooting, the
officer’s handcuffing of the individual and placing him in the back
of the patrol car were appropriate measures taken for officer safety
and thus did not convert the contact from a valid investigatory
detention into an arrest. However, the division further concludes,
for the first time, that the continued use of such restraints after the
officer safety concerns were dispelled was improper, and the stop
became an arrest that was not supported by probable cause.
Because the evidence obtained after the arrest should have been
suppressed, and the failure to do so was not harmless beyond a
reasonable doubt, the division reverses the defendant’s convictions
for first degree murder and first degree assault. However, the
division rejects the defendant’s contention that there was
insufficient evidence of intent and deliberation and thus remands
for a new trial on the original charges.
COLORADO COURT OF APPEALS 2020COA150
Court of Appeals No. 17CA1127
City and County of Denver District Court No. 15CR5059
Honorable Kandace C. Gerdes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jesse L. Oliver,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE TOW
Navarro and Lipinsky, JJ., concur
Announced October 29, 2020
Philip J. Weiser, Attorney General, Katharine Gillespie, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jesse L. Oliver, appeals his judgment of conviction
entered on jury verdicts finding him guilty of first degree murder
and first degree assault. We conclude that the investigatory stop of
Oliver became an arrest when officers failed to remove his
handcuffs after officer safety concerns were dispelled and the
officers ascertained Oliver’s identity. Because the officers did not
have probable cause at that time, the arrest was unconstitutional.
Further, because we cannot conclude beyond a reasonable doubt
that there is no reasonable possibility that evidence obtained as a
result of this unlawful arrest contributed to the verdicts, we reverse
the judgment and remand the case for a new trial. We also direct
the trial court to determine whether one witness’s in-court
identification was sufficiently supported by the witness’s
independent recollection or, instead, whether it was tainted by the
show-up proceeding that itself was a fruit of the unlawful arrest.
I. Background
¶2 According to the evidence presented at trial, when A.Q. — one
of the victims in this case — and four others arrived at an
apartment complex, they encountered three men they did not
recognize. One of the men, later identified by members of A.Q.’s
1
group as Oliver, asked “what’s bracking,” a question that came
across as aggressive.1
¶3 Soon after, B.B., a resident at the complex, went out to his car
in the parking lot. As he left his car and began walking back
towards his apartment, the man witnesses identified as Oliver
walked up to B.B. and fired approximately six bullets at him. Two
of the bullets struck B.B., killing him, while another bullet hit A.Q.
as she stood on the apartment stairs, paralyzing her. A nearby
police officer saw Oliver running from the area and apprehended
him.
¶4 A jury convicted Oliver of first degree murder and first degree
assault. He was sentenced to life plus a consecutive thirty-two
years in the custody of the Department of Corrections.
II. Sufficiency of the Evidence
¶5 Oliver first contends that there was insufficient evidence of
intent and deliberation to support his conviction for first degree
murder. He also asserts that there was insufficient evidence that
he had the intent to commit first degree assault. We disagree.
1The prosecution offered no evidence at trial regarding the meaning
of “bracking.”
2
A. Standard of Review
¶6 When evaluating a claim of insufficient evidence, we review the
record de novo to determine whether the relevant evidence, both
direct and circumstantial, when viewed as a whole and in the light
most favorable to the prosecution, is “sufficient both in quantity
and quality” to support the conviction beyond a reasonable doubt.
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We give the
prosecution the benefit of every reasonable inference that may be
drawn from the evidence. People v. Perez, 2016 CO 12, ¶ 32. A
conviction will not be set aside merely “because a different
conclusion might be drawn from the evidence.” People v.
Tumbarello, 623 P.2d 46, 49 (Colo. 1981).
B. Additional Facts
¶7 The jury heard testimony that Oliver and two other men
appeared angry and aggressive several minutes before the shooting.
A witness testified that, as she watched B.B. walking away from his
car and back to his apartment, she saw Oliver walk “up to [B.B.]’s
car.” “He walked up to the driver’s side in the back,” while B.B.
stood alone by “the top of his car on the driver’s side.” When B.B.
turned around towards Oliver, Oliver “started shooting him.”
3
Standing six feet away, he fired approximately six shots at B.B. and
then ran away. Other than firing the gun, Oliver did not move as he
shot at B.B. Prior to the shooting, Oliver and B.B. did not speak to
one another or interact in any way.
C. First Degree Murder
¶8 Section 18-3-102(1)(a), C.R.S. 2019, provides, “[a] person
commits the crime of murder in the first degree if . . . [a]fter
deliberation and with the intent to cause the death of a person
other than himself, he causes the death of that person or of another
person.” “A person acts ‘intentionally’ or ‘with intent’ when his
conscious objective is to cause the specific result proscribed by the
statute defining the offense.” § 18-1-501(5), C.R.S. 2019.
¶9 As to intent, a juror could reasonably infer from the evidence
that Oliver’s conscious objective was to cause B.B.’s death when he
fired multiple shots at him at close range. See People v. Madson,
638 P.2d 18, 26 (Colo. 1981) (“The circumstances surrounding the
victim’s death permit the reasonable inference that the defendant
fired a pistol at close range into her skull in a manner clearly
intended to cause death.”). Therefore, the evidence was sufficient to
support the element of intent.
4
¶ 10 Further, “[t]he term ‘after deliberation’ means not only
intentionally but also that the decision to commit the act has been
made after the exercise of reflection and judgment concerning the
act. An act committed after deliberation is never one which has
been committed in a hasty or impulsive manner.” § 18-3-101(3),
C.R.S. 2019. Deliberation requires that the decision to kill be made
after “the exercise of reflection and judgment,” but “the length of
time required for deliberation need not be long.” People v.
Bartowsheski, 661 P.2d 235, 242 (Colo. 1983).
¶ 11 Here, the witnesses testified that Oliver had been acting
angrily and aggressively, had remained in or near the parking lot for
as much as twenty minutes, approached B.B. as B.B. walked from
his car toward the apartment building, and, once B.B. turned to
face him, shot him multiple times. Providing the prosecution with
the benefit of every reasonable inference that might be drawn from
this evidence, a fact finder could conclude that Oliver acted after
reflection and judgment, rather than with haste and impulsiveness.
Thus, the evidence was sufficient to show he acted after
deliberation.
5
¶ 12 Oliver argues that the People failed to establish either intent or
deliberation because there was no evidence that he possessed
animosity towards B.B. or otherwise had a motive to kill him. But
Oliver’s argument is unavailing. While often relevant, proof of
motive is not necessary to prove the commission of a crime. Wooley
v. People, 148 Colo. 392, 400-01, 367 P.2d 903, 907 (1961). The
People did not need to prove why Oliver intentionally and
deliberately killed B.B., only that he did so. Even without evidence
of Oliver’s motive, for the reasons we discussed above, a reasonable
juror could look to the circumstances surrounding B.B.’s death and
infer that Oliver acted with intent and after deliberation.
¶ 13 The evidence was therefore sufficient to support a finding of
guilt beyond a reasonable doubt.
D. First Degree Assault
¶ 14 Oliver also argues that the evidence was insufficient to
establish that he acted with intent when he injured A.Q. because, in
his view, there is no evidence that he consciously sought to cause
her serious bodily injury. Again, we disagree.
¶ 15 Under section 18-3-202(1)(a), C.R.S. 2019, a person commits
first degree assault if “[w]ith intent to cause serious bodily injury to
6
another person, he causes serious bodily injury to any person by
means of a deadly weapon.” A jury may find that a defendant
intended to cause injury to one person but actually caused injury to
another. People v. Whittiker, 181 P.3d 264, 278 (Colo. App. 2006);
cf. People v. Jackson, 2020 CO 75, ¶ 21 (holding that, because the
language of the first degree murder statute references killing the
intended victim or another person, the statute “deems the identity
of the person harmed immaterial to the issue of intent”). Here, as
discussed above, there was sufficient evidence that Oliver intended
to cause B.B. serious bodily injury and, in attempting to do so,
caused A.Q. serious bodily injury. Thus, the evidence presented
was sufficient to support Oliver’s conviction of first degree assault.
III. Investigatory Stop and Arrest
¶ 16 Oliver next contends that Officer Joseph Guagliardo was not
justified in stopping him and, even if any initial stop was justified,
the stop eventually became an arrest unsupported by probable
cause. Therefore, he argues, evidence obtained as a result of the
stop should have been suppressed. We conclude that the initial
stop was proper, but we agree that the stop transformed into an
arrest unsupported by probable cause.
7
A. Additional Facts
¶ 17 Officer Guagliardo was parked in his patrol car near the
apartment complex when he heard gunshots. Moments after
hearing the shots, he observed a man, later identified as Oliver,
running from the complex parking lot. He pursued Oliver in his
patrol vehicle. When he attempted to contact Oliver, Oliver
proceeded to run faster. During this pursuit, Officer Guagliardo
heard screams coming from the complex.
¶ 18 Eventually, Oliver stopped in a yard. Officer Guagliardo
stepped out of his vehicle, held Oliver at gunpoint, instructed him
to lie on his stomach, and waited until at least one cover officer
arrived. Once cover arrived, Officer Guagliardo handcuffed Oliver,
performed a pat-down search, and, finding no weapons, placed him
in the back of his patrol car. This process took about two minutes.
At this point, Officer Guagliardo asked Oliver for his name and date
of birth, which Oliver provided.
¶ 19 Over thirty minutes later, gunshot residue (GSR) swabs of
Oliver’s hands were collected to be tested later at a crime
laboratory. And approximately two hours after Officer Guagliardo
apprehended Oliver, a witness, D.T., was brought to their location,
8
where he positively identified Oliver. During these two hours and
during the show-up identification, Oliver remained handcuffed. The
record indicates that, after stopping in the yard, Oliver was
cooperative with police.
¶ 20 Oliver’s identifying information was used to compile two photo
arrays, which were shown to witnesses who identified Oliver from
the arrays. Additionally, after Oliver was taken to the police
station, officers conducted a second GSR test, which ultimately
revealed the presence of gunshot residue on Oliver’s shirt. Oliver
filed a motion to suppress any evidence obtained as the result of the
stop, which the trial court denied. The photo arrays, GSR results,2
and testimony regarding D.T.’s show-up identification were all
presented as evidence at trial. On appeal, Oliver argues that these
pieces of evidence should have been suppressed.
B. Standard of Review
¶ 21 A trial court’s order regarding a motion to suppress involves “a
mixed question of law and fact.” People v. Threlkel, 2019 CO 18,
¶ 15 (quoting People v. Gothard, 185 P.3d 180, 183 (Colo. 2008)).
2 The GSR test of Oliver’s hands was negative. Only the positive
test of the shirt is at issue in this case.
9
We defer to the trial court’s findings of fact that are supported by
competent evidence in the record, but review conclusions of law de
novo. People v. Allen, 2019 CO 88, ¶ 13.
C. Governing Law and Analysis
¶ 22 Police-citizen interactions are classified as one of three types:
consensual contacts, investigatory stops, or arrests. People v.
Archuleta, 980 P.2d 509, 512 (Colo. 1999). Neither party argues
that the encounter between Oliver and officers was consensual.
Therefore, we must evaluate whether the contact constituted an
investigatory stop or an arrest.
¶ 23 An arrest requires probable cause that the person has
committed, is committing, or is about to commit a crime. People v.
Pigford, 17 P.3d 172, 175 (Colo. App. 2000). An investigatory stop
is constitutionally valid if three criteria are met: “(1) the officer must
have a reasonable suspicion that criminal activity has occurred, is
taking place, or is about to take place; (2) the purpose of the
intrusion must be reasonable; and (3) the scope and character of
the intrusion must be reasonably related to its purpose.” People v.
Padgett, 932 P.2d 810, 814-15 (Colo. 1997) (quoting People v.
Sutherland, 886 P.2d 681, 686 (Colo. 1994)).
10
1. Reasonable Suspicion
¶ 24 Reasonable suspicion means that an officer has an articulable
and specific basis in fact for suspecting that the individual is
committing, has committed, or is about to commit a crime. Id. An
officer is entitled to draw reasonable inferences from a person’s
conduct. Threlkel, ¶ 20.
¶ 25 Here, Officer Guagliardo heard multiple shots coming from an
apartment complex and seconds later saw Oliver, and only Oliver,
fleeing the area. When instructed to stop, Oliver ran faster. Officer
Guagliardo heard screams coming from the complex. Based on the
specific and articulable facts, in conjunction with the inferences
drawn from the circumstances, it was reasonable for Officer
Guagliardo to infer that a crime had been committed and that
Oliver may have been involved.
2. Purpose of the Stop
¶ 26 Moreover, given what Officer Guagliardo had observed, it was
reasonable for him to briefly stop Oliver to determine if Oliver had
been involved in the criminal activity. See People v. Contreras, 780
P.2d 552, 555 (Colo. 1989).
11
3. Reasonableness of the Scope and Character of the Intrusion
¶ 27 In assessing whether the scope and character of the intrusion
are reasonably related to its purpose, we may look to the use of
force applied by officers. People v. King, 16 P.3d 807, 814 (Colo.
2001). The use of force or restraint, such as handcuffs, “increase[s]
the degree of intrusion on an individual’s privacy and liberty and
‘heighten[s] our concern as to whether the action taken exceeds
what is reasonably necessary.’” Id. (quoting People v. Smith, 13
P.3d 300, 305 (Colo. 2000)).
¶ 28 Nevertheless, the use of force does not automatically convert
an investigatory detention into an arrest. Police officers may use
reasonable measures to ensure their safety during an investigatory
stop, but only if the use of such force is a reasonable precaution for
the protection and safety of the officers. People v. Wambolt, 2018
COA 88, ¶ 84; see also King, 16 P.3d at 814. “If the People fail to
prove that the use of force was necessary for officer safety, the
encounter must be characterized as an arrest and, thus, must be
supported by probable cause.” Wambolt, ¶ 84; see also King, 16
P.3d at 817.
12
¶ 29 A division of this court has held that officers’ decision to place
suspects in handcuffs after determining they were not armed and
were cooperative constituted an arrest because “no specific facts
supported a reasonable belief that a threat to officer safety required
the use of handcuffs and weapons.” Wambolt, ¶ 87.
¶ 30 But, unlike the officers in Wambolt, Officer Guagliardo was
justified in his initial use of force. He had heard gunshots, had
seen Oliver running from the area of the shots, and knew Oliver had
attempted to evade him. Thus, drawing his weapon until cover
arrived was a reasonable measure to ensure his safety. Further,
placing Oliver in handcuffs before performing the pat-down search
was reasonable due to the distinct possibility that Oliver might be
armed. It was also reasonable to leave Oliver in handcuffs while
obtaining his identification until he could ascertain whether Oliver
presented a danger due to having outstanding warrants. See United
States v. Shareef, 100 F.3d 1491, 1507-08 (10th Cir. 1996) (holding
that it was reasonable to hold unarmed suspects in handcuffs until
confirming whether one was a wanted felon); see also People v.
Smith, 926 P.2d 186, 189 (Colo. App. 1996) (holding that
13
ascertaining a detainee’s identification is a valid purpose of an
investigatory detention).
¶ 31 Thus, despite the use of force and handcuffs, the initial
contact did not exceed the scope of its purpose. This contact,
therefore, was a proper investigatory detention.
¶ 32 However, once the officers had ensured that Oliver was
unarmed and had ascertained his identification, they did not
remove Oliver’s handcuffs. Instead, they left the handcuffs on for
the entirety of the stop — approximately two hours.
¶ 33 While our supreme court has held that the use of handcuffs in
an investigatory stop is justified only if necessary for officer safety,
Smith, 13 P.3d at 305, Colorado case law does not specifically
address whether the continued use of handcuffs is justified after an
initial threat to officer safety has dissipated. Several other
jurisdictions have concluded that failing to remove handcuffs under
similar circumstances is unreasonable and therefore elevates an
investigatory detention to an arrest. See, e.g., Shareef, 100 F.3d at
1507-08 (holding that, once confirmation was received that he was
not a wanted felon, “the continued use of handcuffs constituted an
unlawful arrest”); United States v. Polanco, No. 10 CR 627 RPP,
14
2011 WL 240140, at *8 (S.D.N.Y. Jan. 19, 2011) (unpublished
opinion) (finding that, “the moment in which [the officer] did not
remove [the defendant] from handcuffs after finding no weapons on
his body, the stop was converted into a de facto arrest because the
maximal intrusion of handcuffing, a hallmark of formal arrest, was
no longer justified by ‘legitimate safety concerns’”). Cf. United
States v. Salas-Garcia, 698 F.3d 1242, 1252 (10th Cir. 2012)
(finding that the fact that officers released the defendant from
handcuffs as soon as they learned he was not a safety risk because
he was unarmed and cooperating prevented the detention from
becoming an unlawful arrest); United States v. Gil, 204 F.3d 1347,
1351 (11th Cir. 2000) (finding it appropriate to leave a defendant
handcuffed because no female officer was available to search the
defendant, and thus officers on scene were unable to determine if
she was armed); Reynolds v. State, 592 So. 2d 1082, 1085 (Fla.
1992) (noting that “[a]bsent other threatening circumstances, once
the pat-down reveals the absence of weapons the handcuffs should
be removed”); State v. Munson, 594 N.W.2d 128, 137 (Minn. 1999)
(concluding that officers acted reasonably when they handcuffed
the occupants and frisked them for weapons, and then removed the
15
handcuffs once it was determined that the occupants were not
armed).
¶ 34 We find the above authorities persuasive and equally
applicable to the circumstances present here. Thus, we hold that
where initially reasonable concerns regarding officer safety have
been dispelled and the individual being detained has been
identified, the continued use of handcuffs transforms an otherwise
proper investigatory detention into an arrest.
¶ 35 Oliver’s pat-down by officers revealed no weapons, he was
outnumbered by police, his identification had been ascertained
revealing no flight risk or safety concerns, and he was cooperating.
Because officer safety concerns had been dispelled and no other
threatening conditions existed, there was no basis for leaving the
handcuffs on, and they should have been removed. Oliver’s
detention thus became an arrest.
¶ 36 The People concede that the earliest point at which probable
cause existed was at 12:40 a.m. — approximately eighty-five
minutes after the stop — once D.T. had provided a statement to the
officers describing the man (fitting Oliver’s description) he had seen
at the scene carrying a gun. This was long after the detention had
16
developed into an arrest. Unsupported by probable cause, Oliver’s
arrest was unconstitutional.3
4. The Court Erred in Part by Denying the Motion to Suppress
¶ 37 Because the investigatory stop became an unlawful arrest
when officers failed to remove Oliver’s handcuffs after officer safety
concerns had been dispelled and in the absence of other
threatening conditions, we must next evaluate whether the trial
court should have granted Oliver’s motion to suppress the evidence
obtained as a result of that stop and arrest. See People v. Davis,
903 P.2d 1, 4 (Colo. 1995) (“[E]vidence obtained as a result of an
unlawful arrest must be suppressed.”).
¶ 38 Oliver argues that the evidence of the (1) photo array
identifications; (2) show-up identification; and (3) GSR was obtained
as a result of the unlawful detention and, thus, should have been
suppressed. We disagree that the photo arrays are “fruits of the
poisonous tree,” see Wong Sun v. United States, 371 U.S. 471, 488
3 Nor does the fact that officers later developed probable cause cure
the violation. Were that the rule, officers would be encouraged to
detain someone as long as they could — even unconstitutionally —
in the hope of ultimately developing probable cause to make the
arrest they have already made.
17
(1963), but agree that the other evidence should have been
suppressed.
¶ 39 First, the photo arrays were compiled using Oliver’s identifying
information, which, as noted above, was obtained during a proper
investigatory stop. Thus, neither the identifying information nor the
lineups were derivative of an unlawful seizure. The trial court,
therefore, did not err by declining to suppress the arrays and
evidence that witnesses had identified Oliver in the arrays.
¶ 40 But the showup occurred approximately two hours after the
incident, while Oliver remained in handcuffs. This was long after
the officer’s continued use of restraint exceeded the scope of the
investigatory stop. Therefore, because the showup took place after
Oliver had been improperly arrested, it should have been
suppressed.
¶ 41 Similarly, the GSR test on Oliver’s shirt was not performed
until after Oliver’s detention had become an arrest. Thus, for the
same reason, the GSR results were derivative of the illegal detention
and should have been suppressed.
18
¶ 42 In sum, the trial court erred in part by denying Oliver’s motion
to suppress evidence of the show-up identification and the GSR
results obtained as the result of an unlawful arrest.
5. The Error Requires Reversal
¶ 43 Having concluded that the trial court erred, we must
determine whether the error requires reversal. As this issue
implicates Oliver’s constitutional rights, we review it for
constitutional harmless error. Hagos v. People, 2012 CO 63, ¶ 11.
Under this standard, the People must demonstrate beyond a
reasonable doubt there is no reasonable possibility that the error
may have contributed to the verdict. Id. They have not done so.
¶ 44 While much of the People’s properly admitted evidence could
be characterized as strong, it was far from overwhelming. The
People’s case significantly relied on contradictory and inconsistent
eyewitness testimony. The improperly admitted GSR found on
Oliver’s shirt was one of the few pieces of scientific evidence
presented at trial. As the prosecutor stated in closing arguments,
the “GSR positive result means [Oliver] fired a gun, handled a gun,
. . . or was in the area that a gun was fired.” In other words, the
prosecution placed specific emphasis on the GSR.
19
¶ 45 Given the relative importance of the improperly admitted GSR
evidence, we cannot say that the verdict “was surely unattributable
to the error.” Bernal v. People, 44 P.3d 184, 201 (Colo. 2002)
(citation omitted). Thus, we are unable to “declare a belief that [this
error] was harmless beyond a reasonable doubt.” Hagos, ¶ 11
(quoting Chapman v. California, 386 U.S. 18, 24 (1967)). Reversal is
therefore required.4
IV. The Show-up Identification and Subsequent In-Court
Identification
¶ 46 Oliver also asserts that the trial court erred by denying his
motion to suppress the show-up identification by D.T. As stated
previously, the show-up identification was derivative of the unlawful
arrest and is therefore inadmissible. However, as Oliver
acknowledges, even where an out-of-court identification was itself
subject to suppression as the fruit of an improper detention, a
subsequent in-court identification may nevertheless be admissible if
the witness had a “sufficient independent recollection of the [crime]
4We note that, because none of the improperly admitted evidence
had any bearing on whether Oliver acted with intent or after
deliberation, our reversal on this point does not affect our analysis
of Oliver’s first claim, i.e., his challenge to the sufficiency of the
evidence.
20
to identify the defendant at trial.” People v. Suttles, 685 P.2d 183,
187 (Colo. 1984).
¶ 47 Although D.T. testified at the motions hearing, the court
limited its findings regarding his testimony to whether the showup
was impermissibly suggestive, concluding that it was not. Given
that we have concluded that admitting evidence of the showup was
impermissible, as it flowed from an unconstitutional arrest, we need
not address whether it was also unduly suggestive. Rather, the
issue turns to whether D.T.’s ability to identify Oliver would be
independent of the improper arrest and subsequent showup.
¶ 48 We cannot make this determination on the record before us.
On remand, the trial court must determine, with additional
testimony if needed, “whether the [witness has] an ‘independent
recollection . . . uninfluenced by the [tainted] pretrial
identifications.’” Id. at 189 (quoting States v. Crews, 445 U.S. 463,
473 (1980)). If so, the court should allow D.T. the opportunity to
make an in-court identification of the defendant. Id.¶ 49 We therefore remand to the trial court for further proceedings.
21
V. Batson Violation
¶ 50 Because we reverse on the grounds stated above and remand
for a new trial, we do not address whether a Batson violation
occurred during voir dire.
VI. Conclusion
¶ 51 The judgment is reversed, and the case remanded for further
proceedings consistent with this opinion.
JUDGE NAVARRO and JUDGE LIPINSKY concur.
22