MACMASTER v. the STATE.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
January 10, 2018
In the Court of Appeals of Georgia
A17A2083. MACMASTER v. THE STATE.
BARNES, Presiding Judge.
A Forsyth County jury found Alison MacMaster guilty of driving under the
influence of alcohol with an excessive blood-alcohol concentration (“DUI per se”),
driving under the influence of alcohol to the extent it was less safe for her to drive
(“DUI less safe”), and failure to maintain lane.1 On appeal from the denial of her
motion for new trial, MacMaster challenges the trial court’s denial of her motion in
limine seeking to exclude evidence that she consented to a State-administered breath
test and the results of that test. MacMaster also challenges the trial court’s denial of
her motion in limine seeking to exclude evidence that she refused to take a
preliminary breath test. Additionally, MacMaster argues that the trial court failed to
exercise its discretion and decide whether to grant a new trial on the general grounds.
1
The trial court merged MacMaster’s conviction for DUI less safe into her
conviction for DUI per se for purposes of sentencing.
For the reasons discussed below, we discern no error by the trial court in its rulings
and therefore affirm.
1. MacMaster contends that the trial court erred in denying her motion in
limine in several respects.2
In reviewing a trial court’s ruling on a motion to suppress or motion in limine,
appellate courts construe the record in the light most favorable to the trial court’s
2
MacMaster further argues that the trial court erred in denying her separate
motion challenging the constitutionality of Georgia’s implied consent statutory
framework and associated regulations under the Due Process and Confrontation
Clauses of the United States and Georgia Constitutions. But, appellate courts “will
not rule on a constitutional question unless it clearly appears in the record that the
trial court distinctly ruled on the point,” and the record in the present case contains
no such ruling. (Citation and punctuation omitted.) Marks v. State, 280 Ga. 70, 74 (4)
(623 SE2d 504) (2005). Thus, we do not rule on this matter or transfer it to our
Supreme Court. See McKibben v. State, 340 Ga. App. 89, 92, n. 10 (796 SE2d 478)
(2017); Kendrick v. State, 335 Ga. App. 766, 770, n. 3 (782 SE2d 842) (2016). In any
event, our Supreme Court recently rejected similar claims that the implied consent
statute is unconstitutionally misleading and coercive on its face in violation of due
process. See Olevik v. State, __ Ga. __ (3) (a) (806 SE2d 505, 520-523) (2017). See
also Schmitz v. State, No. S17A1199, 2017 WL 4870960, at *1-2 (Ga. Oct. 30, 2017);
Fazio v. State, __ Ga. __ (2) (806 SE2d 544, 546) (2017). Additionally, our Supreme
Court and this Court have previously rejected Confrontation Clause challenges
relating to State-administered chemical tests. See Rackoff v. State, 281 Ga. 306, 309
(2) (637 SE2d 706) (2006) (introduction of inspection certificate for breath testing
machine did not violate Confrontation Clause); Smith v. State, 338 Ga. App. 635, 639
(4) (791 SE2d 418) (2016) (State not required under Confrontation Clause to name
inspector of breath testing machine as a witness); Phillips v. State, 324 Ga. App. 728,
733 (751 SE2d 526) (2013) (Confrontation Clause does not apply to machines like
a breath testing machine).
2
factual findings and judgment, and “all relevant evidence of record, including
evidence introduced at trial, as well as evidence introduced at the motion to suppress
hearing, may be considered.” (Citation, punctuation, and emphasis omitted.) Pittman
v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007). See Price v. State, 303 Ga.
App. 859, 861 (1) (694 SE2d 712) (2010).
This means that the reviewing court generally must accept the trial
court’s findings as to disputed facts unless they are clearly erroneous,
although the reviewing court may also consider facts that definitively
can be ascertained exclusively by reference to evidence that is
uncontradicted and presents no questions of credibility, such as facts
indisputably discernible from a videotape.
(Citations and punctuation omitted.) State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d
248) (2015). Guided by these principles, we turn to the record in this case.
In the early morning hours of August 12, 2016, a deputy with the Forsyth
County Sheriff’s Office observed a black Chevrolet Tahoe repeatedly fail to maintain
its lane and initiated a traffic stop. The deputy approached and made contact with the
sole occupant and driver, MacMaster, and noted a strong odor of alcohol coming from
her car that got stronger every time she spoke. MacMaster admitted to having
consumed three beers in the last three hours at a local bar and said that another patron
3
had spilled beer on her. MacMaster also claimed that her car was out of alignment
and that she was simply “not the best” driver. The deputy asked to see MacMaster’s
driver’s license, and she handed it to him.
When the deputy walked back to his patrol car to run a check on MacMaster’s
license, a second deputy arrived on the scene. After the first deputy informed the
second deputy of what he had observed on the roadway and during his conversation
with MacMaster, the second deputy took over the investigation. The second deputy
approached MacMaster, who remained seated in her car. As he spoke with
MacMaster, the second deputy noted a strong odor of alcohol coming from her car
and saw that she had bloodshot, watery eyes, a flushed face, and thick speech.
MacMaster again admitted that she had been drinking.
Based on his observations of MacMaster, the second deputy had MacMaster
step out of her car, noticed that she strongly smelled of alcohol, and asked her if she
would be willing to perform a series of voluntary field sobriety tests. MacMaster said
that she would be willing to do so. After instructing MacMaster, the second deputy
had her perform the horizontal gaze nystagmus (“HGN”) test, the walk-and-turn test,
and the one-leg stand test. The second deputy observed six out of six clues of
impairment for the HGN test, six out of eight clues for the walk-and-turn test, and
4
three out of four clues for the one-leg stand test. The second deputy also asked
MacMaster to recite the alphabet from E to U without singing or rhyming the letters,
but MacMaster sang and rhymed some of the letters. Additionally, the second deputy
asked MacMaster if she would take a preliminary breath test on his handheld Alco-
Sensor device (the “Alco-Sensor test”). MacMaster expressed that she was
uncomfortable with the Alco-Sensor test, and the second deputy treated her response
as a refusal.
Based on MacMaster’s manner of driving, the strong odor of alcohol, her
bloodshot, watery eyes, her thick speech, her admission to drinking, and her
performance on the field sobriety tests, the second deputy placed her under arrest for
DUI and failure to maintain lane. After arresting MacMaster, the second deputy read
her Georgia’s implied consent notice for suspects over the age of 21 and asked
whether she would agree to a State-administered test of her breath. When MacMaster
asked if she had a choice, the second deputy explained that it was her choice to say
yes or no. MacMaster then agreed to take the test.
The second deputy transported MacMaster to the Forsyth County Detention
Center for the State-administered breath test. According to the second deputy,
MacMaster never changed her mind during the drive about taking the test. Once at
5
the detention center, MacMaster spoke with another deputy who was certified to
administer the breath test on the Intoxilyzer 9000 (the “certified administrator”).
MacMaster asked the certified administrator if she should take the breath test on the
machine, and the administrator explained to her that she did not have to take it and
that it was voluntary. MacMaster then submitted to a breath test on the Intoxilyzer,
which returned blood-alcohol concentration readings of 0.166 and 0.159. According
to the certified administrator, the Intoxilyzer was functioning properly and in good
working order when MacMaster was tested, no components or parts were missing, the
machine had passed its periodic inspections, and diagnostic tests performed on the
machine that day revealed no problems.
MacMaster was charged by accusation with DUI per se, DUI less safe, and
failure to maintain lane. She filed a motion in limine seeking to exclude, on several
constitutional grounds, the admission of the results of the State-administered breath
test and any evidence of her consent to the State-administered breath test and her
refusal to take the Alco-Sensor test. MacMaster argued that she had not voluntarily
consented to the State-administered breath test and that her alleged consent had been
procured before she had been properly advised of her rights under Miranda v.
Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), and in violation of her
6
constitutional right against self-incrimination. MacMaster further argued that her
refusal to take the Alco-Sensor test was inadmissible because she had a constitutional
right to refuse to consent to a warrantless search without having it introduced against
her at trial.
The trial court conducted a hearing on MacMaster’s motion in limine, where
the two deputies on the scene of the traffic stop and the certified administrator
testified to events as set out above, and the State introduced the dash-cam recordings
from the two deputies’ patrol cars. After hearing all the testimony and reviewing the
dash-cam recordings, the trial court denied MacMaster’s motion in limine.
(a) MacMaster argues that the trial court erred in denying her motion in limine
to exclude the admission of the results of her State-administered breath test because
the warrantless test violated her right to be free of unreasonable searches and seizures
under the United States and Georgia Constitutions. According to MacMaster, the trial
court erred in finding that she freely and voluntarily consented to the warrantless
breath test. We disagree.
The Fourth Amendment of the United States Constitution and
Article I, Section I, Paragraph XIII of the Georgia Constitution both
protect an individual’s right to be free of unreasonable searches and
seizures, and apply with equal force to the compelled withdrawal of
7
blood, breath, and other bodily substances. Because a breath test is a
search within the meaning of the Fourth Amendment, absent a warrant,
the State must show that it falls into one of the specifically established
and well-delineated exceptions to the warrant requirement.
Consent is a valid basis for a warrantless search where it is given
freely and voluntarily, and the State does not argue that any other
exception might apply. Therefore, the only question in regard to the
validity of the search is whether the State met its burden of proving that
[MacMaster] actually consented freely and voluntarily under the totality
of the circumstances [to the State-administered breath test].
Historically, we considered a defendant’s affirmative response to
the reading of the implied consent notice as sufficient to allow a search
of his or her bodily fluids without further inquiry into the validity of the
defendant’s consent. However,[in Williams v. State, 296 Ga. 817, 821-
822 (771 SE2d 373) (2015), our Supreme Court] rejected this per se rule
automatically equating an affirmative response to the implied consent
notice with actual consent to a search within the meaning of the Fourth
Amendment. Instead, courts must now conduct a case-by-case analysis,
considering the totality of the circumstances.
(Citations and punctuation omitted.) Kendrick v. State, 335 Ga. App. 766, 768-769
(782 SE2d 842) (2016). See State v. Young, 339 Ga. App. 306, 310-311 (793 SE2d
186) (2016); Jacobs v. State, 338 Ga. App. 743, 747-748 (2) (791 SE2d 844) (2016).
8
As this Court has further explained,
In conducting a totality of the circumstances analysis, we have
considered a host of factors. A consent to search will normally be held
voluntary if the totality of the circumstances fails to show that the
officers used fear, intimidation, threat of physical punishment, or
lengthy detention to obtain the consent. The defendant’s affirmative
response to the implied consent notice may itself be sufficient evidence
of actual and voluntary consent, absent reason to believe the response
was involuntary. The defendant’s failure to express an objection to the
test or change his or her mind also is evidence of actual consent. There
is, however, no duty to inform suspects of their constitutional right
against unreasonable searches. The use of handcuffs does not negate a
defendant’s ability to give consent. And the mere fact that a defendant
was visibly intoxicated does not render his consent involuntary.
(Citations and punctuation omitted.) Jacobs, 338 Ga. App. at 748-749 (2).
Here, the evidence, including the dash-cam recording from the second deputy’s
patrol car, shows that MacMaster gave an affirmative response to the question posed
by the deputy when he recited the implied consent notice, she never changed her mind
before the testing occurred, and she did not appear to be impaired to the extent that
she was unable to understand what was asked. Furthermore, the evidence “does not
show that the [the deputy] used fear, intimidation, threat of physical punishment, or
lengthy detention to obtain [MacMaster’s] consent to the breath test, and the [deputy]
9
and [MacMaster] conducted themselves calmly” throughout their encounter.
(Punctuation omitted.) Young, 339 Ga. App. at 311, quoting Kendrick, 335 Ga. App.
at 769. Nor is there any evidence that MacMaster’s age or level of education negated
her consent. While MacMaster argues that the language of the implied consent notice
is false and misleading to the point where an individual’s consent to a breath test
cannot be considered voluntary, our Supreme Court has rejected that argument. See
Schmitz, 2017 WL 4870960, at *1-2; Fazio, __ Ga. at __ (2) (806 SE2d at 546);
Olevik, __ Ga. at __ (3) (a) (806 SE2d at 520-523). Accordingly, given the
evidentiary record in this case, we conclude that the trial court committed no error in
finding under the totality of the circumstances that MacMaster freely and voluntarily
consented to the State-administered breath test. See McKibben v. State, 340 Ga. App.
89, 93-94 (796 SE2d 478) (2017); Young, 339 Ga. App. at 311-312; Jacobs, 338 Ga.
App. at 749-750 (2); Kendrick, 335 Ga. App. at 772.
Furthermore, in Birchfield v. North Dakota, __ U. S. __ (V) (C) (3) (136 SCt
2160, 2184-2185, 195 LE2d 560) (2016), the Supreme Court of the United States held
that the Fourth Amendment to the United States Constitution permits warrantless
breath tests as searches incident to arrests for drunk driving. Similarly, Article I,
Section I, Paragraph XIII of the Georgia Constitution allows a warrantless breath test
10
to be administered as a search incident to arrest. See Olevik, __ Ga. at __ (2) (b) (806
SE2d at 512). Consequently, the warrantless test of MacMaster’s breath was
authorized by the search-incident-to-arrest exception to the warrant requirement
under both the United States and Georgia Constitutions, irrespective of whether
MacMaster’s consent was freely and voluntarily obtained for the breath test. See id.
(b) MacMaster argues that the trial court erred in denying her motion in limine
to exclude the admission of her statements consenting to the State-administered
breath test and of the results of that test because the admission of that evidence at trial
violated her constitutional right against self-incrimination under the United States and
Georgia Constitutions. We are unpersuaded.
The scope of the right against self-incrimination protected by the Fifth
Amendment to the United States Constitution “is limited to evidence of a testimonial
or communicative nature.” Olevik, __ Ga. at __ (2) (c) (806 SE2d at 513). See
Schmerber v. California, 384 U.S. 757, 764 (II) (86 SCt 1826, 16 LE2d 908) (1966);
Muhammad v. State, 282 Ga. 247, 250-251 (3) (647 SE2d 560) (2007); Scanlon v.
State, 237 Ga. App. 362, 363-364 (1), (2) (514 SE2d 876) (1999). “[T]o be
testimonial, an accused’s communication must itself, explicitly or implicitly, relate
a factual assertion or disclose information.” Doe v. United States, 487 U.S. 201, 210
11
(II) (A) (108 SCt 2341, 101 LE2d 184) (1988). A defendant’s verbal consent to take
a breath test and the results obtained from such a test are not evidence of a testimonial
or communicative nature and thus do not implicate the right against self-incrimination
under the Fifth Amendment. See Scanlon, 237 Ga. App. at 363-364 (1), (2).
In contrast, a defendant’s right against self-incrimination afforded by Article
I, Section I, Paragraph XVI of the Georgia Constitution (“Paragraph XVI”) protects
against compelled breath tests. See Olevik, __ Ga. at __ (2) (c) (806 SE2d at 513-
520). But, the right against self-incrimination under Paragraph XVI is not violated
where the defendant voluntarily consents to the breath test rather than being
compelled. See id. at __ (2) (c) (iii), (3) (b) (806 SE2d at 517-518, 523-524). And,
whether a defendant is compelled to provide self-incriminating evidence
in violation of Paragraph XVI is determined under the totality of the
circumstances. Determining the voluntariness of (or lack of compulsion
surrounding) a defendant’s incriminating statement or act involves
considerations similar to those employed in determining whether a
defendant voluntarily consented to a search. We have said that the
voluntariness of a consent to search is determined by such factors as the
age of the accused, his education, his intelligence, the length of
detention, whether the accused was advised of his constitutional rights,
the prolonged nature of questioning, the use of physical punishment, and
the psychological impact of all these factors on the accused. In
determining voluntariness, no single factor is controlling.
12
(Citations and punctuation omitted.) Id. at __ (3) (b) (806 SE2d at 523).
Here, as discussed supra in Division 1 (a), the trial court committed no error
in finding under the totality of the circumstances that MacMaster freely and
voluntarily consented to the State-administered breath test. Accordingly, because
MacMaster was not compelled to undergo the State-administered breath test, her right
against self-incrimination under Paragraph XVI was not violated. See Olevik, __ Ga.
at __ (3) (b) (806 SE2d at 523-524).
(c) MacMaster also contends that the trial court should have excluded her
verbal response consenting to the State-administered breath test because her consent
was obtained after she was in police custody but before she had been advised of her
rights under Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
As discussed supra in Division 1 (b), a defendant’s Fifth Amendment right against
self-incrimination is not implicated by a State-administered breath test. See Scanlon,
237 Ga. App. at 363-364 (1), (2). “Thus, the absence of Miranda warnings does not
require suppression of [MacMaster’s] consent to the breath test under federal law.”
Id. at 364 (1). Additionally, we have held in a whole court decision that “an arrestee
is not, under Georgia constitutional or statutory law, entitled to Miranda warnings
before deciding whether to submit to the State’s request for an additional test of
13
breath, blood, or urine.” (Emphasis omitted.) State v. Coe, 243 Ga. App. 232, 234 (2)
(533 SE2d 104) (2000), overruled in part on other grounds by Olevik, __ Ga. at __ (2)
(c) (iv), n. 11 (806 SE2d at 520, n. 11). See Taylor v. State, 337 Ga. App. 486, 494
(4) (a) (iii) (788 SE2d 97) (2016).
Although MacMaster, with the permission of this Court, filed a supplemental
brief to address the Supreme Court’s recent Olevik decision, she did not address in
her brief whether or to what extent that decision might affect our ruling in Coe
regarding the application of Miranda warnings under the Georgia Constitution. In the
absence of any argument from MacMaster that we reconsider or overrule our decision
in Coe as it pertains to Miranda warnings, we decline to address that issue here. See
Mitchell v. State, 301 Ga. 563, 572 (4) (802 SE2d 217) (2017) (declining to
reconsider precedent in absence of argument from appellant that it should be
overruled). See also Olevik, __ Ga. at __(3) (a) (i), n. 13 (806 SE2d at 522, n. 13)
(“To the extent Olevik argues that we should impose a Miranda-style prophylactic
rule to protect suspects’ Paragraph XVI rights (rights the scope of which, as we have
explained, were well-established long before the Supreme Court’s decision in
Miranda), he does not point us to a single decision of this Court or any textual or
14
historical basis supporting such a step. In the absence of a more complete argument,
we decline to address this issue.”).
(d) MacMaster further argues that the trial court erred in denying her motion
in limine to exclude the admission of her refusal to take the Alco-Sensor test.
According to MacMaster, an Alco-Sensor test is a warrantless search of a suspect’s
breath, and she should be able to invoke her Fourth Amendment right to refuse to
consent to such a search without having her refusal used against her at trial.
As previously noted, the administration of a breath test is a search under the
Fourth Amendment. Birchfield, 136 SCt at 2173 (IV); Kendrick, 335 Ga. App. at 768.
In Mackey v. State, 234 Ga. App. 554, 556 (507 SE2d 482) (1998), we held that “an
individual should be able to invoke his Fourth Amendment rights without having his
refusal used against him at trial.” However, Mackey involved a defendant’s refusal
to consent to the warrantless search of a vehicle, and we pointed out that “[a]
defendant’s refusal to consent to a warrantless search of his vehicle or other property
is quite a different issue” from “a defendant’s refusal to submit to a blood or urine test
for determining alcohol or drug content.” Id. at 555-556. As we have emphasized,
“[t]he case law interpreting implied consent laws demonstrates that the judiciary
overwhelmingly sanctions the use of civil penalties and evidentiary consequences
15
against DUI suspects who refuse to comply.” Hynes v. State, 341 Ga. App. 500, 508
(801 SE2d 306) (2017). See Birchfield, 136 SCt at 2185 (VI); Olevik, __ Ga. at __ (3)
(a) (i) (806 SE2d at 521). Hence, we have held that the refusal to take a State-
administered chemical test under Georgia’s implied consent law is admissible at trial.
See Szopinski v. State, 342 Ga. App. 647, 650 (1) (804 SE2d 657) (2017); Brooks v.
State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988). We discern no reason why
the same rule in favor of admission should not apply in the context of a defendant’s
refusal to take an Alco-Sensor preliminary breath test, which we have previously held
is admissible as circumstantial evidence tending to show that the defendant was
impaired. See Korponai v. State, 314 Ga. App. 710, 712 (3) (a) (725 SE2d 832)
(2012); Crusselle v. State, 303 Ga. App. 879, 881 (1) (694 SE2d 707) (2010).
Moreover, MacMaster cannot demonstrate harm resulting from the alleged
erroneous admission. Even error of constitutional magnitude can be held harmless,
if “the State can prove beyond a reasonable doubt that the error did not contribute to
the verdict,” such as when the evidence is cumulative of other properly admitted
evidence or the evidence of the defendant’s guilt is overwhelming. (Citation and
punctuation omitted.) Stovall v. State, 287 Ga. 415, 418 (3) (696 SE2d 633) (2010).
16
“Here, the direct evidence of [MacMaster’s] guilt for the DUI per se charge
was overwhelming. As to that charge, there was no dispute [MacMaster] was driving
[her] vehicle; [MacMaster] admitted [she] had consumed alcohol that evening; and
the breath tests showed [MacMaster’s] BAC was substantially in excess of 0.08
grams.” Jones v. State, 301 Ga. 544, 551 (3) (802 SE2d 234) (2017). Furthermore, the
direct evidence of MacMaster’s guilt of failure to maintain lane is overwhelming, as
reflected by the dash-cam recording from the first deputy’s patrol car clearly showing
her driving infraction. See, e.g., Moore v. State, 242 Ga. App. 249, 251 (1) (a) (529
SE2d 381) (2000) (defendant’s guilt was overwhelming, where evidence included
video recording showing the armed robbery).
Accordingly, even if we were to assume for the sake of argument that the
admission of MacMaster’s refusal to take an Alco-Sensor test was constitutional
error, it was harmless error that did not contribute to MacMaster’s convictions of DUI
per se and failure to maintain lane. See Jones, 301 Ga. at 551 (3). While it is a closer
question whether admission of the refusal would have been harmful with respect to
the jury’s guilty verdict for DUI less safe, that issue is moot in light of the trial court’s
merger of that offense into MacMaster’s DUI per se conviction for purposes of
sentencing. See id.17
2. MacMaster also contends that the trial court erred in denying her motion for
new trial on the general grounds. See OCGA §§ 5-5-20;3 5-5-21.4 In this regard,
MacMaster contends that the trial court failed to exercise its discretion and weigh the
evidence in deciding whether to grant a new trial. See Walker v. State, 292 Ga. 262,
264 (2) (737 SE2d 311) (2013) (OCGA §§ 5-5-20 and 5-5-21 “afford the trial court
broad discretion to sit as a ‘thirteenth juror’ and weigh the evidence on a motion for
new trial alleging these general grounds”) (citation and punctuation omitted). We are
unpersuaded.
Here, the trial court’s order stated:
The above-styled action came before the Court on April 24, 2016 for
hearing of the Defendant’s Motion for New Trial. The Court heard the
arguments of counsel, and after consideration of the arguments, a review
of the record, and a review of the applicable law, this Court HEREBY
DENIES the Defendant’s Motion on all grounds.”
3
OCGA § 5-5-20 provides: “In any case when the verdict of a jury is found
contrary to evidence and the principles of justice and equity, the judge presiding may
grant a new trial before another jury.”
4
OCGA § 5-5-21 provides: “The presiding judge may exercise a sound
discretion in granting or refusing new trials in cases where the verdict may be
decidedly and strongly against the weight of the evidence even though there may
appear to be some slight evidence in favor of the finding.”
18
As our Supreme Court recently stated in a appeal involving a similar summary
order denying a motion for new trial,
Although the order did not explicitly state that the court was exercising
its broad discretion . . . in deciding the motion, it is well established that
this Court must presume that the trial judge knew the rule as to the
necessity of exercising his discretion, and that he did exercise it. We can
not assume, in the absence of positive evidence to the contrary, that the
judge knowingly declined to exercise his discretion. Thus, where a trial
judge ruling on a new trial motion enters an order that, without more,
recites that the new trial is refused or denied, this will be taken to mean
that the judge has in the exercise of his discretion approved the verdict.
(Citations and punctuation omitted.) Butts v. State, 297 Ga. 766, 771-772 (3) (778
SE2d 205) (2015). Consequently, MacMaster’s claim of error is without merit.
Judgment affirmed. McMillian and Mercier, JJ., concur.
19