Flood v. State ( 2021 )


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  • In the Supreme Court of Georgia
    Decided: June 21, 2021
    S21A0025. FLOOD v. THE STATE.
    LAGRUA, Justice.
    Appellant Annette Collins Flood was convicted of felony
    murder and a knife offense in connection with the stabbing death of
    Bobby Burns, her longtime boyfriend. Appellant contends that the
    evidence was insufficient to support her conviction for felony
    murder.    She also raises three separate enumerations of error
    regarding the jury instructions provided at her trial and contends
    that these instructional errors combined to prejudice her. Finally,
    Appellant contends that the State improperly placed her character
    at issue during closing argument. Appellant seeks a new trial, but
    for the reasons stated below, we affirm. 1
    1The crimes occurred on April 21, 2016. On July 27, 2017, a Chatham
    County grand jury indicted Appellant for malice murder, felony murder,
    1. (a)   Construed in the light most favorable to the jury’s
    verdicts, the evidence presented at trial showed that Appellant and
    Burns had been seeing each other on and off for about 18 years. At
    the time of the crimes, the two had been living together for a little
    over a year in a boarding house where the tenants rented individual
    bedrooms and had shared access to the bathroom and common
    areas. Burns and Appellant shared a bedroom on the second level
    of the boarding house that contained a mini-refrigerator and other
    kitchen items, including utensils and kitchen knives.
    Appellant had a history of being controlling in the relationship
    and had physically struck Burns on more than one occasion. In the
    months before the crimes, Burns and Appellant had been getting
    aggravated assault, and possession of a knife during the commission of a
    felony. At a trial in July 2018, the jury found Appellant guilty of all charges
    except malice murder. The trial court then sentenced Appellant to life
    imprisonment for felony murder and five consecutive years for the knife
    possession charge. The aggravated assault charge merged for sentencing
    purposes. Appellant filed a motion for new trial on August 16, 2018, which she
    amended on May 30, 2019, and August 13, 2019. Following a hearing on
    August 13, 2019, the trial court denied the amended motion for new trial on
    June 9, 2020. Appellant filed a timely notice of appeal on June 18, 2020, and
    the case was docketed to this Court’s term beginning in December 2020 and
    submitted for a decision on the briefs.
    2
    into loud verbal arguments in their bedroom that were overheard by
    other tenants. On January 26, 2016, three months prior to Burns’s
    stabbing, Burns allegedly prevented Appellant from leaving the
    bedroom by blocking the door. Appellant called the police, who
    concluded that the incident was a mere verbal altercation. In her
    statement to police after the January incident, Appellant stated that
    Burns had never put his hands on her. Other witnesses testified
    that the two often fought about Burns’s drug and alcohol use and
    Appellant’s infidelity.   According to Appellant, animosity in the
    relationship had escalated to the point that Appellant wanted to
    leave Burns.
    On the day of the stabbing, Appellant was with her infant
    grandchild, playing cards at the boarding house with another
    tenant, Terry Moore. Burns returned from work around 5:00 p.m.,
    and he, Appellant, and Appellant’s grandchild went to their
    bedroom. Burns left the bedroom shortly thereafter. At some point,
    Appellant went to bed.
    Around 2:00 or 3:00 a.m., Burns returned to the house. He was
    3
    drunk. Burns asked if Appellant was upset with him. According to
    Appellant, before she had a chance to respond, Burns pushed her
    head back, pushed her a second time, and came toward her with a
    raised hand, at which point Appellant reached behind her, grabbed
    a boning knife off the table, and stabbed Burns. Appellant then left
    the bedroom with her grandchild but did not call 911 or request help.
    According to Moore, she often overheard Appellant and Burns
    arguing, and on the night of the stabbing, Moore awoke to a loud
    argument between the couple, which eventually quieted down until
    3:00 or 4:00 a.m. when Appellant came to speak with her. Appellant
    told Moore that she was leaving the house with her grandchild.
    Appellant made no mention of Burns or anything about their
    altercation. Moore went back to sleep, went to work the next day,
    and upon returning home, encountered Appellant’s daughter (and
    the mother of Appellant’s grandchild), Khadijah Flood (hereinafter
    “Khadijah”), near Appellant’s bedroom, hysterical and crying.
    Appellant returned the grandchild to Khadijah early in the
    morning after leaving the boarding house.        Later in the day,
    4
    Khadijah called Appellant about retrieving a stroller and some
    diapers left at the boarding house. When Khadijah arrived at the
    boarding house around 4:00 p.m., a tenant let her in, and she
    proceeded to Appellant’s bedroom. Khadijah knocked, but there was
    no answer. She opened the unlocked door and saw Burns’s body on
    the bed. Khadijah ran outside and called her mother. Appellant
    sounded normal on the phone until Khadijah told her about Burns,
    at which point Appellant became hysterical.
    Burns’s autopsy revealed a three-inch stab wound in the upper
    left chest and shoulder area. The medical examiner testified that
    Burns would have bled profusely from this stab wound.           The
    examiner also found alcohol and cocaine in Burns’s system and
    determined that the chest wound was the cause of Burns’s death.
    Appellant testified at trial. Her testimony largely centered
    around her claim of self-defense.
    (b) Appellant contends that the evidence was insufficient to
    support her conviction for felony murder and instead supports a
    verdict of not guilty based on a theory of self-defense and that the
    5
    evidence is wholly consistent with her testimony that she lacked
    intent to kill or commit violent injury to Burns but was merely
    acting in self-defense. Appellant asserts that she grabbed an object
    to defend herself from Burns’s attack and then left the room not
    knowing that he was seriously injured. Appellant further asserts
    that the State did not produce evidence contradicting this claim. At
    most, Appellant argues, the evidence supported a finding of
    voluntary manslaughter. 2 See OCGA § 16-5-2 (a).
    When evaluating the sufficiency of evidence as a matter of
    constitutional due process, “the relevant question is whether, after
    viewing the evidence in the light most favorable to the prosecution,
    any rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt.” Jackson v. Virginia, 
    443 U. S. 304
    , 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (emphasis
    omitted). Reconciling inconsistencies in testimony and determining
    witness credibility are left to the province of the jury. See Williams
    2 We note that the jury was instructed on voluntary manslaughter, but
    we do not address if the evidence required that instruction.
    6
    v. State, 
    302 Ga. 474
    , 478 (I) (807 SE2d 350) (2017). Here, the record
    is replete with evidence that would authorize a jury to find
    Appellant guilty of felony murder. Appellant and Burns were in a
    turbulent relationship for approximately 18 years, during which
    they argued about substance abuse and infidelity.         Burns was
    described as quiet, laid-back, and rarely violent toward Appellant,
    except for Appellant’s account of one incident in January of 2016.
    Appellant was described as the aggressor in the relationship and as
    being controlling of Burns. Furthermore, Appellant admitted to
    stabbing Burns with a boning knife, and when detectives
    interviewed Appellant two days after the incident, she had no marks
    or injuries consistent with defending herself in a fight. She stated
    that she did not see much blood after stabbing Burns, but the
    medical examiner’s testimony was that Burns would have been
    bleeding profusely from the type of stab wound that Appellant
    inflicted. In addition, after the stabbing, Appellant neither called
    911 nor sought any assistance; she only told another tenant that she
    was leaving the house, without mentioning she had stabbed Burns.
    7
    Finally, during Appellant’s phone call with her daughter, she made
    no mention of the previous night’s stabbing.
    Moreover, questions as to the existence of a justification
    defense are for a jury to decide, and given the evidence discussed
    above, the jury was free to decide whether Appellant acted in self-
    defense, and whether the alleged self-defense was warranted. See
    Dent v. State, 
    303 Ga. 110
    , 113 (1) (810 SE2d 527) (2018) (“It is a
    jury question as to whether [a showing of self-defense] has been
    made, and therefore, whether a defendant’s claim of self-defense
    should be accepted.”). In light of the evidence presented at trial, we
    conclude that the jury was authorized to reject Appellant’s self-
    defense claim and find her guilty of felony murder. See Robinson v.
    State, 
    283 Ga. 229
    , 230 (1) (657 SE2d 822) (2008) (“[T]he jury was
    free to reject the claim that [the appellant] stabbed the victim in self
    defense” and find the appellant guilty of felony murder.)
    (punctuation omitted)). Accordingly, this contention lacks merit.
    2. Appellant raises three separate arguments regarding the
    jury instructions provided at trial: first, that the sequence of the jury
    8
    charges was improper; second, that the trial court incorrectly
    instructed the jury when the jury sought clarification of the jury
    charges; and third, that the trial court failed to give pattern charges
    on the legal relationship between a felony and felony murder.
    Appellant also contends that the cumulative prejudice from these
    errors requires a new trial.
    Appellant failed to make a timely objection to each alleged
    instructional error; therefore, our review of the jury charges is
    limited to a plain error analysis. See Solomon v. State, 
    293 Ga. 605
    ,
    606-607 (2) (748 SE2d 865) (2013) (citing OCGA § 17-8-58 (b)). To
    establish plain error:
    First, there must be an error or defect — some sort of
    deviation from a legal rule — that has not been
    intentionally    relinquished      or    abandoned,      i.e.,
    affirmatively waived, by the appellant. Second, the legal
    error must be clear or obvious, rather than subject to
    reasonable dispute. Third, the error must have affected
    the appellant’s substantial rights, which in the ordinary
    case means he must demonstrate that it affected the
    outcome of the trial court proceedings. Fourth and finally,
    if the above three prongs are satisfied, the appellate court
    has the discretion to remedy the error — discretion which
    ought to be exercised only if the error seriously affects the
    fairness, integrity, or public reputation of judicial
    9
    proceedings.
    Leeks v. State, 
    303 Ga. 104
    , 108 (3) (810 SE2d 536) (2018) (citation
    and punctuation omitted). We need not analyze the other elements
    of the plain error test if the appellant fails to establish any one of
    them. See State v. Herrera-Bustamante, 
    304 Ga. 259
    , 264 (2) (b) (818
    SE2d 552) (2018).
    (a) First, Appellant alleges that the trial court incorrectly
    instructed jurors regarding the order in which they should consider
    the murder and voluntary manslaughter offenses in violation of
    Edge v. State, 
    261 Ga. 865
    , 867 (2) (414 SE2d 463) (1992), which
    holds that, where the evidence would authorize a charge on
    voluntary manslaughter, a sequential charge is improper if it
    requires the jury to consider voluntary manslaughter only if it has
    considered and found the defendant not guilty of malice murder and
    felony murder. “The jury should be admonished that if it finds
    provocation and passion with respect to the act which caused the
    killing, it could not find felony murder, but would be authorized to
    find voluntary manslaughter.” 
    Id.
     at 867 n.3.
    10
    During the jury instructions, the trial court defined malice
    murder, felony murder, and aggravated assault. Thereafter, the
    trial court gave the following instruction:
    After considering all the evidence, before you would be
    authorized to return a verdict of guilty of malice or felony
    murder, you must first determine whether mitigating
    circumstances, if any, would cause the offense to be
    reduced to voluntary manslaughter.
    The court then went on to instruct the jury on the definition of
    voluntary manslaughter and provocation.
    After about ten minutes of deliberations, the jury sent a note
    to the trial judge that read, “The jury requests a copy of a description
    of the charges.” The jury returned to the courtroom, and the jurors
    clarified that one member requested “the definition of the law of the
    charges.” In response, the trial court orally reinstructed the jury in
    open court on the definitions of malice murder, felony murder,
    aggravated assault, and the knife possession charge. The court then
    orally gave the mitigating-circumstances instruction quoted above,
    followed by the voluntary manslaughter instruction.
    The trial court asked if the oral recharge was helpful, and the
    11
    foreperson requested that the court send a written copy of the
    definitions of the charged crimes for the jurors to view. The court
    asked if there were any objections to providing these written
    charges, and defense counsel requested that the court send the
    entire set of jury instructions with the jury. The jury then returned
    to deliberations with a paper copy of the complete jury instructions,
    including the definitions of the crimes with which Appellant was
    charged and the mitigating-circumstances instruction.
    Appellant argues that the trial court’s instructions created
    ambiguity about the order in which the jury should have considered
    the various homicide charges. Citing Ortiz v. State, 
    291 Ga. 3
    , 5 (2)
    (727 SE2d 103) (2012), Appellant argues that the trial court should
    have first instructed the jury as to the elements of malice murder,
    felony murder, aggravated assault, and voluntary manslaughter,
    and then instructed the jury to determine whether mitigating
    circumstances would reduce the crime to voluntary manslaughter.
    Appellant contends that the mitigating-circumstances instruction
    was given prior to the charge on the elements of voluntary
    12
    manslaughter, misleading the jury into thinking that it must first
    acquit the Appellant of either form of murder before it could consider
    voluntary manslaughter.
    However, the trial court instructed the jury to consider
    mitigation first, and the jury verdict form listed the homicide
    charges in the proper order. With respect to the homicide counts,
    the prepared verdict form read as follows:
    JURY VERDICT
    COUNTS ONE, TWO AND THREE: HOMICIDE
    (Select one Verdict Only)
    ___ We the jury find the Defendant NOT GUILTY
    or
    ___ We the jury find the Defendant GUILTY of the
    lesser included offense of Voluntary Manslaughter
    or
    ___ We the jury find the Defendant GUILTY of Malice
    Murder
    or
    ___ We the jury find the Defendant GUILTY of Felony
    13
    Murder
    At the end of the jury’s deliberations, the foreperson checked only
    the fourth and final option, indicating that the jury found Appellant
    guilty of felony murder.
    We conclude that the verdict form – together with the jury
    charge and recharge – allowed for the jury’s proper consideration of
    the murder charges. “A preprinted verdict form is treated as part of
    the jury instructions which are read and considered as a whole in
    determining whether there is [instructional] error.” Rowland v.
    State, 
    306 Ga. 59
    , 68 (6) (829 SE2d 81) (2019) (citations and
    punctuation omitted). There is no exact formula that trial courts
    must follow, “so long as the charge as a whole ensures that the jury
    will consider whether evidence of provocation and passion might
    authorize a verdict of voluntary manslaughter.” Elvie v. State, 
    289 Ga. 779
    , 781 (2) (716 SE2d 170) (2011) (citation and punctuation
    omitted). Taken together, the jury instructions did not violate our
    holding in Edge because the jury was properly admonished to
    consider mitigating evidence in both oral and written instructions.
    14
    These instructions were not erroneous. Because there is no error,
    much less plain error, this claim fails.
    (b) Next, Appellant argues that the trial court gave an
    inadequate explanation when the jury asked about the different
    forms of homicide. We see no error. During deliberations, the jury
    sent a note to the trial court stating: “We have one juror who believes
    the defendant is guilty of malice murder. The other eleven jurors
    are willing to settle on a lesser charge of felony murder or
    involuntary [sic] manslaughter.” (Emphasis in original.) The trial
    court addressed this concern through the following colloquy in open
    court:
    COURT: I want to emphasize to you, as you know, once
    again, whatever your decision is, it has to be unanimous.
    If there is to be a decision, all twelve of you must freely
    and voluntarily agree to it. But felony murder and malice
    murder are both murder. Felony murder is not a lesser
    offense than malice murder. As you’ll recall, they were
    written on the board and they were written at the same
    level.[3] They are murder. The lesser-included offense is
    voluntary manslaughter as that has been defined to you.
    Does that help any?
    3 The court seems to be referring to statements made during closing
    argument, where an attorney used a board to demonstrate the relationship
    between the crimes.
    15
    FOREPERSON: Yes, sir.
    Appellant did not object to the trial court’s statement.
    Appellant now argues that this instruction was unclear and
    incorrect because the court failed to explain which offenses the jury
    should consider and how they should be considered, and failed to
    distinguish between the required intent for malice and felony
    murder. We disagree.
    “A trial court has a duty to recharge the jury on issues for
    which the jury requests a recharge.” Barnes v. State, 
    305 Ga. 18
    , 23
    (3) (823 SE2d 302) (2019) (quoting Sharpe v. State, 
    288 Ga. 565
    , 569
    (6) (707 SE2d 338) (2011)). Here, the jury’s note indicated confusion
    about the relationship between malice murder, felony murder, and
    manslaughter. This confusion was evident by the fact that the jury’s
    note indicated that it was considering involuntary manslaughter,
    which was not one of the indicted charges, and that the jury called
    felony murder a “lesser charge” than malice murder. In response,
    the trial court clarified that felony murder and malice murder were
    both forms of murder, and that felony murder is not a lesser offense
    16
    than malice murder.      The court further stated that voluntary
    manslaughter is a lesser-included offense.       This was a correct
    statement of law. Furthermore, the foreperson indicated that the
    trial court’s recharge assisted the jury in its understanding. Defense
    counsel raised no objection to this course of action.      Given the
    demonstrated confusion by the jury, the trial court’s response was
    not an abuse of discretion. See Dozier v. State, 
    306 Ga. 29
    , 32 (3)
    (829 SE2d 131) (2019) (no abuse of discretion where the trial court
    discerned that the jury was confused about a legal theory, the trial
    court correctly recharged the jury, and there was nothing indicating
    that the jury had an erroneous impression of the law after the
    recharge).
    “As a general matter . . . , where [a request for a recharge has
    not] been made, the need, breadth, and formation of additional jury
    instructions are left to the sound discretion of the trial court.”
    Barnes, 305 Ga. at 23 (3). The trial court correctly noted that the
    jury was giving the court “information on how [it stood] with regard
    to certain charges,” and the court offered guidance that was a correct
    17
    statement of the law in response. Therefore, we conclude that the
    trial court did not abuse its discretion in instructing the jury. We
    therefore discern no plain error, and this enumeration fails.
    (c) Next, Appellant argues that the trial court failed to give a
    jury instruction requested by both the State and Appellant. We
    identify no plain error.
    Both parties made written requests to the court to include
    Georgia Suggested Pattern Jury Instructions – Criminal 2.10.30,
    which is the pattern jury instruction outlining the relationship
    between a felony murder and the underlying felony. 4 During its
    4   The pertinent portion of this instruction states:
    The homicide must have been done in carrying out the [felony] and
    not collateral to it. It is not enough that the homicide occurred
    soon or presently after the felony was attempted or committed.
    (There must be such a legal relationship between the homicide and
    the felony so as to cause you to find that the homicide occurred
    before the felony was at an end or before any attempt to avoid
    conviction or arrest for the felony.) The felony must have a legal
    relationship to the homicide, be at least concurrent with it in part,
    and be a part of it in an actual and material sense. A homicide is
    committed in the carrying out of a felony when it is committed by
    the accused while engaged in the performance of any act required
    for the full execution of the felony.
    18
    initial oral charge to the jury, the trial court gave only the definition
    of felony murder as laid out in Georgia Suggested Pattern Jury
    Instructions – Criminal 2.10.20, Felony Murder; Defined. 5 It did not
    give Pattern Jury Instruction 2.10.30 orally in either the initial oral
    charge or the oral recharge, but later, upon request by the jury, sent
    a written copy of this instruction with the jury into deliberations,
    along with all of the other jury instructions in the case.
    Appellant contends that both 2.10.20 and 2.10.30 must be
    provided to illustrate the relationship between the death and the
    underlying felony. See Ware v. State, 
    305 Ga. 457
    , 458-459 (2) (826
    SE2d 56) (2019). Further, Appellant argues that the omitted jury
    instruction harmed her because “the jury cannot be presumed to
    have utilized the written charge to correct the erroneous oral charge
    given directly by the judge, with the written charge given as a
    supplement.” Instead, Appellant argues, “the jury should have been
    5 This instruction states: “[a] person (also) commits the crime of murder
    when, in the commission of a felony, that person causes the death of another
    human being (with or without malice). Under the laws of Georgia (name
    offense) is a felony and is defined as follows . . . .”
    19
    given the full definition of felony murder to ensure there was no
    confusion on the issue of its applicability to the facts in the case at
    bar.”
    Pretermitting any error in the omission of the underlying
    felony instruction in the oral charges, we conclude that the omission
    of the jury instruction was harmless. Here, the instruction that was
    omitted from the oral charge – but provided to the jury in written
    form – was about the relationship between Burns’s death and the
    predicate felony. Given that the predicate felony was aggravated
    assault by stabbing, and the stabbing indisputably caused Burns’s
    death, it is difficult to see how including the underlying felony
    instruction during the oral charges would have likely caused a
    different outcome in Appellant’s trial. Therefore, Appellant has
    failed to meet her burden of proving plain error, and this
    enumeration fails.
    (d) Appellant argues that these three alleged errors
    cumulatively prejudiced her and that she is entitled to a new trial.
    “To establish cumulative error[, Appellant] must show that (1) at
    20
    least two errors were committed in the course of the trial; [and] (2)
    considered together along with the entire record, the multiple errors
    so infected the jury’s deliberation that they denied [Appellant] a
    fundamentally fair trial.” State v. Lane, 
    308 Ga. 10
    , 21 (4) (838 SE2d
    808) (2020).   However, when reviewing a claim of cumulative
    prejudice, “we evaluate only the effects of matters determined to be
    error rather than the cumulative effect of non-errors.” Scott v. State,
    
    309 Ga. 764
    , 771 (3) (d) (848 SE2d 448) (2020). Even assuming –
    without deciding – that Lane applies to instructional errors,
    Appellant has failed to show more than one error with respect to the
    jury charges that would provide this Court with a basis for
    evaluating cumulative effect. This argument fails.
    3. Finally, Appellant asserts that the trial court improperly
    admitted character evidence when the prosecutor stated during
    closing arguments that Appellant used drugs, thereby putting
    Appellant’s character at issue. For the reasons explained below, we
    conclude that the trial court committed no error, and even if the trial
    court had committed error by allowing the State to raise the
    21
    inference that Appellant was a drug user, any such error was
    harmless.
    During closing argument, the following discussion occurred in
    front of the jury:
    PROSECUTOR: The Defense, during the course of the
    evidence yesterday and during closing today, has tried to
    create a narrative for you that’s just not true. What they
    want you to believe is that this woman is a woman who
    has been battered and beaten for years and that she
    finally just had to defend herself or snapped that that’s
    what was going on here. That Bobby Burns was a horrible
    mean man who was abusive to her. And the evidence
    just—it doesn’t support that. It just doesn’t.
    The truth is both of these people drank. Both of them
    used drugs.
    DEFENSE: Judge, there’s no evidence of that.
    COURT: Sustained. Jury, disregard.
    PROSECUTOR: Your Honor, may I respond?
    COURT: You can respond.
    PROSECUTOR: The—the defendant, in her own
    statement to the police officer said that she drank, too.
    And there has been evidence from her and her daughter
    about her own drug use.
    COURT: You are correct, in a past tense.
    PROSECUTOR: Actually, her daughter, in her interview
    with the detective, said she was concerned about her
    mother’s own current drug use.
    DEFENSE: Judge, that did not come out before the jury.
    PROSECUTOR: And I impeached her with that.
    COURT: I agree. Move on.
    PROSECUTOR: May I talk about the drinking that she
    22
    admitted that in her interview?
    COURT: To the extent that she admitted it, yes.
    PROSECUTOR: Thank you. You heard her, in her
    interview, talk about the fact that she drank, too. So this
    is not Bobby as some horrible drinking, drug-using,
    abusive person. Substance abuse was something that
    went on with both of them.
    OCGA § 17-8-75 provides:
    Where counsel in the hearing of the jury makes
    statements of prejudicial matters which are not in
    evidence, it is the duty of the court to interpose and
    prevent the same. On objection made, the court shall also
    rebuke the counsel and by all needful and proper
    instructions to the jury endeavor to remove the improper
    impression from their minds; or, in his discretion, he may
    order a mistrial if the prosecuting attorney is the offender.
    Prosecutors generally have wide latitude in remarks made during
    closing statements, and the trial court determines these boundaries.
    See Scott v. State, 
    290 Ga. 883
    , 885 (2) (725 SE2d 305) (2012). And
    within these boundaries, a prosecutor may argue reasonable
    inferences from the evidence, including any that address the
    credibility of witnesses. See 
    id.
     During Khadijah’s testimony earlier
    in the trial, the prosecutor asked, “Did you know your mother used
    drugs?” Khadijah responded, “When I was a child, yes.” Thus,
    23
    Appellant’s past drug use had already been brought up as evidence.
    Furthermore, as soon as the prosecutor said in her closing
    argument that Appellant used drugs, defense counsel objected. The
    trial court immediately intervened and instructed the jury to
    disregard the prosecutor’s statement, and the defendant raised no
    further objection to any implication that Appellant used drugs.
    Moreover, any error in instructing the jury to disregard the
    comment was harmless, given that evidence of Appellant’s past drug
    use was elicited without objection at trial and considering the
    substantial evidence of Appellant’s guilt.         Accordingly, this
    enumeration of error fails.
    Judgment affirmed. All the Justices concur.
    24