State of New Hampshire v. Alex Ducharme

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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
6th Circuit Court – Hillsborough District Division
No. 2014-025
THE STATE OF NEW HAMPSHIRE
v.
ALEX DUCHARME
Argued: February 19, 2015
Opinion Issued: May 12, 2015
Joseph A. Foster, attorney general (Nicholas Cort, assistant attorney
general, on the brief and orally), for the State.
Law Offices of Robert J. Moses, of Amherst (Robert J. Moses on the brief
and orally), for the defendant.
CONBOY, J. The defendant, Alex Ducharme, appeals his conviction,
following a bench trial, for driving under the influence of intoxicating liquor
(DUI). See RSA 265-A:2 (Supp. 2012) (amended 2012). He argues that the
Circuit Court (Stephen, J.) erred when it: (1) ruled that the police had probable
cause to arrest him for DUI; (2) concluded that a valid arrest for DUI had
occurred and, therefore, that the implied consent statute applied; (3) admitted
evidence obtained after he had invoked his Miranda rights and failed to
consider the “confusion doctrine”; and (4) found the evidence sufficient to
convict him of DUI. We affirm.
The testimony at trial established the following sequence of events. On
March 5, 2011, the bouncer at Rednecks Bar and Grill in Antrim was called
outside at around midnight to deal with an altercation that had originated in
the bar and then “spilled . . . into the parking lot.” The police were called and
an officer from the Antrim Police Department was dispatched to the bar. When
the officer arrived, he first met with the bouncer and then made contact with
one of the people involved in the altercation.
While he was outside, the bouncer saw the defendant drive into the bar’s
parking lot and park. The defendant got out of the vehicle from the driver’s
side and then “got into an altercation with another” man. The bouncer told the
defendant and the other man several times to “back down.” The bouncer
testified that he could smell alcohol on the defendant. When “neither party
would back down,” the bouncer went to the officer for assistance. The officer
approached the men, and then, to separate him from the situation, escorted
the defendant back to his cruiser.
Once they were at the cruiser, the officer noticed that the defendant’s
“eyes were bloodshot and red.” He also noticed “a distinctive odor of alcohol
coming from [the defendant’s] breath,” and that the defendant “was having
trouble with his balance.” While the officer was talking with the defendant,
another fight broke out in the parking lot. The officer handcuffed the
defendant and placed him in the back of the cruiser so that the officer could
“figure out exactly what was going on.” The officer left the defendant in the
cruiser and went to separate the two individuals involved in the latest fight.
When he returned to his cruiser, he arrested the defendant for simple assault,
after which he “detected a distinct odor of alcohol” in the cruiser that had not
been there before he placed the defendant in the cruiser. Before the officer
transported the defendant to the Hillsborough police station, he spoke with the
bouncer, who informed the officer that he had observed the defendant drive
into the parking lot.
At the police station, the officer brought the defendant to the booking
room and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436
(1966). The defendant made clear that he understood his rights and that he
did not wish to speak with the officer or answer questions without a lawyer
present. The officer then read to the defendant the Administrative License
Suspension (ALS) form. See RSA 265-A:4 (Supp. 2012) (amended 2012). The
first line of the ALS form states: “You have been arrested for an offense arising
out of acts alleged to have been committed while you were driving under the
influence of alcohol or drugs.” The officer asked the defendant if he understood
what had been read to him and the defendant said that he did not. The officer
asked the defendant what he did not understand and the defendant simply
repeated that he did not understand.
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The officer then “explained everything to [the defendant] again.” He told
the defendant “that [he] had been called . . . to Rednecks Bar & Grill for a past-
tense assault” and that “[w]hile taking that report [he] had witnessed [the
defendant] assault another male.” He explained that he had “witness
statements stating that [the defendant] drove away from Rednecks and then
drove back, and that’s where we were at . . . that moment.” The officer testified
that the purpose of this explanation was to tell the defendant “why I was
reading the ALS form, why he was under arrest . . . [f]or driving while
intoxicated.”
The officer reread the first line to the defendant and asked him again if
he understood. The defendant stated that he did, after which the officer read
the remainder of the ALS form to the defendant line by line, asking him after
reading each line whether he understood. Several times the defendant
indicated that he did not understand. The officer “explained everything to him”
and the defendant then initialed next to each line indicating that he
understood. The officer testified that the defendant first refused to sign the
ALS form granting consent to the requested testing. The officer explained that
the defendant was “[h]esitating, he wasn’t sure what to do, how to proceed.”
He stated that he told the defendant that it was up to him to make the decision
as to whether to submit to the requested testing and that he gave the
defendant time to think about it. Thereafter, the defendant signed the form
and “agreed to the requested testing.” During this process, the defendant
“stated to [the officer] that he was drunk.”
The officer then administered the horizontal gaze nystagmus (HGN), the
walk-and-turn, the one leg stand, and the Romberg balance field sobriety tests.
He determined that the defendant failed the HGN and the walk-and-turn tests.
The defendant also took a breath test, and the results indicated that he had a
blood alcohol level of 0.17.
At trial, the defendant objected to the admission of the ALS form and the
results of the field sobriety tests and the breath test. He claimed that he had
been arrested only for simple assault and, therefore, that the implied consent
statute did not apply to him because he had not been arrested for an offense
arising out of acts committed while he was driving under the influence of
intoxicating liquor or controlled drugs. The trial court overruled the
defendant’s objection.
Subsequently, the defendant moved for reconsideration, maintaining
that, because the implied consent statute did not apply to him, it was improper
for the officer to use the ALS form and, as a result, the form and any evidence
derived therefrom should be suppressed. Alternatively, the defendant
contended that the officer did not have probable cause to arrest him for DUI.
The State disagreed, arguing that the defendant was effectively arrested for DUI
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when the officer read him the first line of the ALS form, and that probable
cause to do so existed at that time.
The trial court agreed with the State and ruled that the defendant was
arrested for DUI when the officer read him the first line of the ALS form. The
court further found that there was probable cause for the defendant’s arrest
because the officer “had observed indicia of impairment at the scene, including
an odor of alcohol, unsteadiness on feet, and bloodshot eyes. Further, a report
from the bouncer was received that the Defendant drove to the scene . . . .”
Thus, the court concluded that, “[u]nder this totality of the circumstances,
there was sufficient probable cause to allow the officer to make an arrest for”
DUI.
The defendant again moved for reconsideration, reiterating his
arguments that he was improperly arrested for driving under the influence. He
further argued that the officer’s administration of Miranda followed by the
defendant’s invocation of the right to remain silent “required that the officer
clarify and explain to the Defendant the distinction between his right to remain
silent as to an assault case versus the absence of that right for the narrow
purpose of ALS.” According to the defendant, because the officer did not clarify
this distinction, the results of the field sobriety tests and the breath test should
be suppressed under the “confusion doctrine.” The State objected, asserting
that New Hampshire has not adopted the “confusion doctrine,” but that even if
the court were to apply the doctrine, “[t]here is no objective evidence in this
case that [the defendant] was confused about his right to remain silent or to
counsel.” The trial court denied the defendant’s motion and found him guilty
of the DUI charge. This appeal followed.
I. Probable Cause and DUI Arrest
On appeal, the defendant argues that the trial court erred by concluding
that the officer had probable cause to arrest him for DUI. He also contends
that there was no evidence that a valid arrest for DUI occurred, and that
without such an arrest, the implied consent statute did not apply. He
maintains, therefore, that the court should have excluded the ALS form as well
as the results from the field sobriety test and the breath test.
We begin by addressing whether the officer had probable cause to arrest
the defendant for DUI. An officer has probable cause to arrest when he or she
has “knowledge and trustworthy information sufficient to warrant a person of
reasonable caution and prudence in believing that the arrestee has committed
an offense.” State v. Maga, 166 N.H. 279, 286 (2014) (quotation omitted). “In
determining whether the police had probable cause, we review reasonable
probabilities and not the amount of evidence required to sustain a conviction
or to make out a prima facie case.” Id. (quotation omitted). “We are not bound
by mathematical calculations in making this determination,” but instead “must
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approach the issue with a concern for the factual and practical considerations
of everyday life on which reasonable and prudent people, not legal technicians,
act.” Id. at 286-87 (quotations and brackets omitted). In assessing whether an
officer had probable cause, we do not view each item of evidence separately,
but rather as a whole, and from the arresting officer’s point of view at the time
the arrest was made. State v. Vandebogart, 139 N.H. 145, 164 (1994). “We
will not overturn a trial court’s determination of probable cause unless, when
the evidence is viewed in the light most favorable to the State, the decision is
contrary to the manifest weight of the evidence.” Maga, 166 N.H. at 287
(quotation omitted).
The defendant argues that the officer had no knowledge regarding
whether and when the defendant had been driving or how long he had been
back at the bar before the officer made contact with him. However, it was not
necessary for the officer to have actually observed the defendant driving to have
probable cause to arrest him for DUI. See State v. Farah, No. A13-2017, 2014
WL 1875904, at *5 (Minn. Ct. App. May 12, 2014) (finding that trooper had
probable cause to arrest defendant for driving while intoxicated based upon
witness’s identification of him as driver and trooper’s observations of
defendant); McCabe v. Director of Revenue, 7 S.W.3d 12, 13-14 (Mo. Ct. App.
1999) (concluding that officer had probable cause to arrest driver for driving
while intoxicated because witness informed officer that he had seen driver
operating vehicle and officer then smelled alcohol on driver’s breath). Nor was
it necessary for the officer to know the exact time the defendant drove or
precisely how long he had been back at the bar. As explained above, in
assessing whether an officer has probable cause, we are not bound by
“mathematical calculations,” but instead “must approach the issue with a
concern for the factual and practical considerations of everyday life on which
reasonable and prudent people, not legal technicians, act.” Maga, 166 N.H. at
286-87 (quotations and brackets omitted).
We conclude that the officer had sufficient evidence suggesting that the
defendant had committed a DUI offense. When the officer first escorted the
defendant to his cruiser, he observed that the defendant’s “eyes were bloodshot
and red.” He also noticed “a distinctive odor of alcohol coming from [the
defendant’s] breath” and that the defendant “was having trouble with his
balance.” After the officer arrested the defendant for simple assault, he
“detected a distinct odor of alcohol” in the cruiser that had not been there
before he placed the defendant in the cruiser. Before the officer transported
the defendant to the police station, the bouncer told him that he had observed
the defendant drive into the parking lot. The officer responded affirmatively to
the prosecutor’s question as to whether, based upon the bouncer’s statements,
“it was a continuous event, [the defendant] driving back and then [the officer]
making contact.” These facts, taken as a whole, provided the officer with
probable cause to arrest the defendant for DUI before he read the ALS form to
the defendant.
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Nonetheless, the defendant argues that he was never actually arrested
for DUI and, therefore, the implied consent statute did not apply. Relying upon
our interpretation of the implied consent statute in Saviano v. Director, New
Hampshire Division of Motor Vehicles, 151 N.H. 315 (2004), the defendant
contends that, in order for the State to invoke the implied consent statute, a
driver must “be arrested for an offense arising out of acts alleged to have been
committed while the person was driving or in actual physical control of a motor
vehicle while under the influence.” The defendant argues that the trial court
erroneously ruled that, by reading the first line of the ALS form, the officer
arrested him for DUI. The defendant maintains that he was arrested only for
simple assault, and, therefore, the implied consent statute did not apply.
Accordingly, he contends that the court should have excluded the ALS form as
well as the results from the field sobriety test and the breath test.
The trial court found that the defendant was arrested for DUI when the
officer read him the first line of the ALS form stating: “You have been arrested
for an offense arising out of acts alleged to have been committed while you were
driving under the influence of alcohol or drugs.” It is undisputed that when
the officer read the first line of the ALS form to him, the defendant was already
under arrest for simple assault. Thus, the issue is whether the officer’s reading
of the first line of the ALS form effectuated an arrest for DUI as a matter of law.
See State v. Underwood, 661 S.E.2d 529, 531-32 (Ga. 2008) (applying de novo
standard of review to determine whether officer’s reading of implied consent
law to defendant who was under arrest for an offense other than driving under
influence constituted a second arrest for a violation of driving under influence
statute). We review questions of law de novo. In re 1994 Chevrolet Cavalier,
142 N.H. 705, 707 (1998).
As discussed above, the officer had probable cause, at the time he read
the ALS form to the defendant, to arrest him for DUI. RSA 594:1 (2001) defines
an “arrest” as “the taking of a person into custody in order that he may be
forthcoming to answer for the commission of a crime.” Here, the defendant was
in custody by virtue of his arrest for simple assault. We conclude that,
because the officer had probable cause to arrest the defendant for DUI, and
because the defendant was already in custody as a result of his arrest for
simple assault, the officer’s reading of the first line of the ALS form constituted
arrest of the defendant for DUI. See Underwood, 661 S.E.2d at 532, 530-31
(holding that “coincidence of probable cause to arrest” defendant for violating
DUI statute and defendant’s “actual arrest” meant that defendant was arrested
for DUI when officer read statutory warning, even though officer mentioned two
potential charges other than DUI at time of initial arrest and did not tell
defendant that he was under arrest for DUI before reading statutory warning);
see also Appeal of Dungan, 681 P.2d 750, 753 (Okla. 1984) (finding appellant’s
arrest for driving under the influence effected by officer “at the station when in
the course of reading her rights he advised her she had been arrested” and
officer had probable cause to make warrantless arrest); State v. Nelson, No. 04-
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1546-CR, 2004 WL 2984829, at *2 (Wis. Ct. App. Dec. 28, 2004) (concluding
that phrase “‘you have been arrested’” on “Informing the Accused form
specifically advised [defendant] that he was under arrest” and “was sufficient to
meet the arrest requirement” of state’s implied consent law).
Thus, although the better practice would have been for the officer to
clearly inform the defendant that, in addition to his arrest on the assault
charge, he was also being arrested for DUI, we conclude that, under the facts of
this case, when the officer read the defendant the first line of the implied
consent form, he effectively arrested the defendant for DUI. We, therefore, hold
that the trial court did not err in its determination that the implied consent
statute applied in this case.
II. Miranda and “The Confusion Doctrine”
The defendant next argues that the trial court erred by failing to exclude
any evidence obtained after he invoked his Miranda rights. The trial court
ruled that, pursuant to State v. Goding, 128 N.H. 267 (1986), “a reading of the
ALS form and conducting breath, blood, urine or physical tests are not
interrogation for purposes of” Miranda. The court, therefore, concluded that “it
was appropriate for the officer to continue with the ALS and Field Sobriety tests
despite the fact that the Defendant had invoked his right to counsel.”
In Goding, we addressed whether the defendant’s post-arrest, pre-
Miranda admissions, given in response to implied consent law questioning,
should have been suppressed. Goding, 128 N.H. at 273. We held that implied
consent law questioning is not “interrogation,” which must be preceded by
Miranda warnings, and that “voluntary admissions, comments, or explanations
spoken in response to implied consent law questioning are admissible as
evidence in criminal trials.” Id. at 274; see also State v. Lescard, 128 N.H. 495,
496-97 (1986).
The defendant argues that Goding is distinguishable because, in that
case, the defendant was questioned about submitting to breathalyzer and blood
alcohol testing before he had been advised of his Miranda rights, see Goding,
128 N.H. at 269, while in this case, the defendant was questioned about
submitting to testing after he had been advised of, and had invoked, his
Miranda rights. This distinction is immaterial. As we recognized in Goding, in
the context of an arrest for driving under the influence, “a police inquiry of
whether the suspect will take a blood-alcohol test is not an interrogation within
the meaning of Miranda.” Id. at 274 (quotation omitted); see also State v.
Geasley, 619 N.E.2d 1086, 1089-90 (Ohio Ct. App. 1993) (“Police instructions
on a state’s implied consent law do not fall within [the] definition of
‘interrogation.’”); State v. Blouin, 716 A.2d 826, 829-30 (Vt. 1998). This is so
because instructing a suspect about the state’s implied consent law involves a
process that is “highly regulated by State law, and is presented in virtually the
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same words to all suspects.” Goding, 128 N.H. at 274. “It is similar to a police
request to submit to fingerprinting or photography.” Id. (quotation omitted). A
police inquiry about whether a suspect will submit to testing in this context
does not become “interrogation” merely because the inquiry is made after the
suspect has been advised of, and has invoked, his Miranda rights.
Accordingly, the trial court did not err by finding that it was proper for the
officer to continue with the ALS and field sobriety tests despite the fact that the
defendant had invoked his Miranda rights. See Pennsylvania v. Muniz, 496
U.S. 582, 604-05 (1990) (finding no interrogation for Miranda purposes when
officer provided defendant with relevant information about breathalyzer test
and implied consent law and asked defendant whether he understood the
information and wished to submit to test, notwithstanding that defendant
responded by commenting on his state of inebriation).
The defendant maintains, however, that we should adopt the “confusion
doctrine,” and find that the officer induced confusion by failing to explain to
the defendant precisely why he was under arrest and that Miranda rights do
not apply to implied consent procedures. Some “jurisdictions apply the
‘confusion doctrine’ to situations in which a defendant might be misled by the
interplay between Miranda rights and the lack of right to counsel under implied
consent laws.” State v. Reitter, 595 N.W.2d 646, 654 (Wis. 1999); see also
State v. Colosimo, No. 13-1066, 2014 Iowa App. LEXIS 946, at *13 (Iowa Ct.
App. Oct. 1, 2014) (noting that “confusion doctrine” is “recognized in a minority
of states”). “Under the ‘confusion doctrine,’ a defendant’s refusal to submit to a
chemical test will be excused if the defendant believed he or she had the right
to invoke counsel before taking the test.” Reitter, 595 N.W.2d at 654; see also
Kurecka v. State, 67 So. 3d 1052, 1056 (Fla. Dist. Ct. App. 2010) (explaining
that, under “confusion doctrine,” “a licensee’s refusal to submit to a breath test
will be excused if, due to a prior administration of the Miranda warnings, the
licensee believes that he or she had the right to consult with counsel prior to
taking a breath test” (quotation and brackets omitted)). “A defendant’s access
to the ‘confusion doctrine,’ however, is premised on a reading of Miranda rights
and a showing that the defendant actually was ‘confused.’” Reitter, 595
N.W.2d at 654. Thus,
[s]ome jurisdictions have held that when a motorist is
confused by the two warnings concerning assistance of counsel —
one warning (Miranda) according the assistance of counsel, the
other (breath test refusal) not according assistance of counsel —
and then refuses to take the breath test in the mistaken belief that
the refusal is privileged, the motorist should not suffer the
consequences of confusion and not be penalized for the refusal.
State v. Leavitt, 527 A.2d 403, 406 (N.J. 1987) (citing cases); see also Kurecka,
67 So. 3d at 1056-57.
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Here, the defendant did not refuse to submit to either the field sobriety
tests or the breath test. Nor does he allege that he was confused as to his
entitlement to counsel before taking the tests. This is not the situation that the
“confusion doctrine” contemplates. See Kurecka, 67 So. 3d at 1056-57;
Leavitt, 527 A.2d at 406; Reitter, 595 N.W.2d at 654. We, therefore, decline the
defendant’s invitation to adopt the “confusion doctrine.” See Colosimo, 2014
Iowa App. LEXIS 946, at *18-21 (declining to recognize the “confusion doctrine”
and upholding trial court’s ruling that there was “no evidence in the record
that the Defendant specifically was confused” (quotation omitted)); Leavitt, 527
A.2d at 408 (concluding that “confusion doctrine” could not be asserted by
defendant because defendant “was not confused with respect to the exercise of
his rights”). Accordingly, we conclude that the trial court did not err in
allowing the State to admit the ALS form and the ensuing test results.
Nonetheless, although we decline to adopt the “confusion doctrine” under
the circumstances of this case, we note that to avoid potential confusion, it
would be better for officers to simply advise suspects that they do not have the
right to consult with counsel before deciding whether to consent to testing
because the right to consult with an attorney before giving any oral or written
statement does not apply in the ALS context. See Leavitt, 527 A.2d at 407; see
also Reitter, 595 N.W.2d at 655 (“[W]e see no harm in allowing the officer to
state briefly that the right to counsel does not attach to the implied consent
setting.”). Therefore, we encourage the legislature and the New Hampshire
Department of Safety to consider whether to include a provision in the ALS
form advising suspects that there is no right to speak with counsel prior to
deciding whether to submit to the requested ALS tests. See McKenna v. Com.,
Dept. of Transp., 72 A.3d 294, 296 n.2 (Pa. Commw. Ct. 2013), appeal denied,
81 A.3d 79 (Pa. 2013); see also Leavitt, 527 A.2d at 407-08.
III. Sufficiency of the Evidence
Finally, the defendant argues that the trial court erred in finding the
evidence sufficient to convict him of DUI. To prevail in his challenge to the
sufficiency of the evidence, the defendant must demonstrate that no rational
trier of fact, viewing all of the evidence and all reasonable inferences from it in
the light most favorable to the State, could have found guilt beyond a
reasonable doubt. State v. Belleville, 166 N.H. 58, 61 (2014). In reviewing the
evidence, we examine each evidentiary item in the context of all the evidence,
not in isolation. State v. Kelley, 159 N.H. 449, 455 (2009). Circumstantial
evidence may be sufficient to support a finding of guilt beyond a reasonable
doubt. Id. Further, the trier of fact may draw reasonable inferences from facts
proved and also inferences from facts found as a result of other inferences,
provided they can be reasonably drawn therefrom. Id. When the evidence as
to one or more of the elements of the charged offense is solely circumstantial, it
must exclude all reasonable conclusions except guilt. Belleville, 166 N.H. at
62. Because a challenge to the sufficiency of the evidence raises a claim of
9
legal error, our standard of review is de novo. State v. Collyns, 166 N.H. 514,
517 (2014).
To convict the defendant of DUI, the State was required to prove beyond
a reasonable doubt that the defendant drove or attempted to “drive a vehicle
upon any way” while he was “under the influence of intoxicating liquor.” RSA
265-A:2, I. To prove that the defendant was “‘under the influence of
intoxicating liquor,’” the State needed only to prove beyond a reasonable doubt
that the defendant was impaired to any degree. Kelley, 159 N.H. at 452.
The defendant argues that the evidence was insufficient to prove that he
drove a vehicle, in part, because the officer “had no personal knowledge of [his]
driving.” He further contends that, even if the State could prove that he drove
a vehicle, there was insufficient evidence that he was under the influence when
he did so because the officer “had no knowledge of [his] state of sobriety at the
time he was allegedly operating the vehicle” because the officer did not know
“the temporal framework” and did not know whether the defendant had
anything to drink after he returned to the bar.
Viewing the evidence in the light most favorable to the State, we conclude
that a rational trier of fact could have found it sufficient to establish that the
defendant drove a vehicle while under the influence of intoxicating liquor. The
bouncer testified that he observed the defendant drive into the parking lot and
described the sequence of events that occurred thereafter. He stated that he
saw the defendant emerge from the driver’s side of the vehicle and get “into an
altercation with another” man. Because neither the defendant nor the other
man would back down from the altercation, the bouncer went to the officer for
assistance. The bouncer testified that he could smell alcohol on the defendant.
The officer testified as to what happened after he encountered the
defendant. He stated that he approached the men and brought the defendant
back to his cruiser. He testified that he noticed that the defendant’s “eyes were
bloodshot and red.” He also noticed a “distinctive odor of alcohol coming from
[the defendant’s] breath,” and that the defendant “was having trouble with his
balance.” The officer testified that the defendant was “pulling away from” the
officer and, “in doing so he was stumbling a bit,” and the officer had to “hold
onto [the defendant] to keep him from falling.” After the officer arrested the
defendant, he “detected a distinct odor of alcohol” in the cruiser that had not
been there before he placed the defendant in the cruiser. Significantly, at some
point after the officer arrested the defendant for simple assault, but prior to
transporting him to the police station, the bouncer told the officer that he had
observed the defendant drive into the parking lot.
In light of this testimony, the trier of fact could reasonably have inferred
that there was a continuous sequence of events from when the bouncer saw
the defendant drive into the parking lot to when the officer observed signs of
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intoxication. Although the officer did not personally observe the defendant
driving, the circumstances under which he later observed the defendant, along
with the bouncer’s testimony, establish that the trial court could have found,
beyond a reasonable doubt, that the defendant drove while under the influence
of intoxicating liquor. Cf. State v. Hanger, 491 N.W.2d 55, 58 (Neb. 1992)
(concluding circumstantial evidence sufficient to convict defendant of operating
a motor vehicle while his license was suspended even though officer did not
observe defendant driving). Furthermore, at the police station, the defendant
admitted to being drunk, he failed the HGN and walk-and-turn tests, and the
results of the breath test revealed that he had a blood alcohol level of 0.17.
Accordingly, we conclude that the trial court did not err by finding the evidence
sufficient to convict the defendant of DUI.
Affirmed.
DALIANIS, C.J., and HICKS, LYNN, and BASSETT, JJ., concurred.
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