Opinion
No. 06-1652.
Filed January 15, 2008.
New Hanover County Nos. 05 CRS 53291, 04 CRS 64856, 05 CRS 14256.
Appeal by defendants from judgments entered 25 April 2006 by Judge W. Russell Duke, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 20 September 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Alexander McC. Peters, for the State. Crumpler Freedman Parker Witt, by Vincent F. Rabil, for defendant Jacobs. Stubbs, Cole, Breedlove, Prentis Biggs, PLLC, by C. Scott Holmes, for defendant Criego.
Fanta Falanda Jacobs and Ovarias Verdad Criego (defendants) appeal from judgments entered 25 April 2006 consistent with guilty verdicts convicting Jacobs of felony possession of a firearm and second degree murder and Criego of second degree murder. For the reasons stated herein, as to Jacobs' appeal we find no error in part; dismiss in part; and dismiss in part without prejudice. We find no error as to Criego's appeal.
At trial, the State offered evidence tending to show that on 18 September 2004, defendant Jacobs, her girlfriend, Maria Bonsignore, defendant Criego, and others were drinking together at a house in Wilmington. Karena Spivey, also present, heard defendant Jacobs mention having a gun. At some point in the late afternoon or early evening, Bonsignore and Spivey went to the local convenience store where they saw David Tyrone Bunting. Bunting engaged Bonsignore in conversation, but nothing more transpired between them.
Upon returning to the house and intending to make defendant Jacobs angry, Bonsignore lied and said Bunting had grabbed her arm and shirt. Co-defendant Criego overheard Bonsignore, went outside and angrily began kicking garbage cans. Criego said Bunting's conduct had disrespected Jacobs and "it wasn't going down like that." Criego retrieved Jacobs who became "worked up" based on hearing Bonsignore's story. When Jacobs asked where Bunting was, Bonsignore replied she had last seen Bunting at the store. Jacobs and Criego said Bunting "was going to get f***ed up for disrespecting" and left to look for Bunting. Spivey picked up defendants and told them she would take them to where Bunting lived. Defendants saw Bunting and told Spivey to stop and they got out of the car. Defendants approached Bunting and began yelling expletives at him. Jacobs punched Bunting. Defendants and Bunting began fighting. Jacobs pulled a gun, fired it and then dropped it. Criego picked up the gun and shot Bunting. Defendants then jumped a fence and ran. Criego carried Jacobs' gun away from the scene of the shooting and gave it to another individual, who later delivered the gun to police. Bunting died as a result of shots fired from Jacobs' gun.
Jacobs offered no evidence at trial. Criego offered evidence that he did not know Jacobs would attack Bunting and that shooting Bunting was done in self-defense. Jacobs was convicted of second-degree murder and possession of a firearm by a felon and sentenced to 237 to 294 months imprisonment for second degree murder and nineteen to twenty-three months imprisonment for possession of a firearm by a felon. Criego was convicted of second degree murder and sentenced to 220 months to 273 months imprisonment. Defendants appeal.
On appeal, defendant Jacobs asserts: (I) the trial court erred by not intervening ex mero motu during the State's closing argument; (II) defense counsel rendered ineffective assistance of counsel; (III) the trial court erred by denying defendant's motion to dismiss; and (IV) the trial court erred in instructing the jury on acting in concert or aiding and abetting.
Defendant Criego appeals, asserting the trial court erred by: (I) failing to instruct the jury for each defendant separately; (II) allowing Jacobs' girlfriend to testify to a statement Jacobs made to her; (III) denying him the right to a speedy trial; (IV) failing to instruct the jury on self defense regarding Criego in the court's final mandate to the jury; and (V) failing to intervene ex mero motu during the prosecutor's closing argument.
Jacobs' Appeal I
Jacobs argues the prosecutor improperly commented on her failure to testify and attempted to shift the burden of proof to defendants. Because no objection was made to the prosecutor's comment, Jacobs argues the trial court should have intervened ex mero motu to strike the comment and instruct the jury regarding both the burden of proof and defendant's right not to testify.
The proper "standard of review is whether the prosecutor's arguments were so grossly improper that the trial court erred in failing to intervene ex mero motu." State v. Barden, 356 N.C. 316, 358, 572 S.E.2d 108, 135 (2002), cert. denied, 538 U.S. 1040, 155 L. Ed. 2d 1074 (2003). Our Supreme Court has consistently held:
counsel must be allowed wide latitude in the argument of hotly contested cases. He may argue to the jury the facts in evidence and all reasonable inferences to be drawn therefrom together with the relevant law so as to present his side of the case. Whether counsel abuses this privilege is a matter ordinarily left to the sound discretion of the trial judge, and we will not review the exercise of this discretion unless there be such gross impropriety in the argument as would be likely to influence the verdict of the jury.
State v. Covington, 290 N.C. 313, 327-28, 226 S.E.2d 629, 640 (1976) (citations omitted).
"A criminal defendant cannot be compelled to testify, and any reference by the State regarding his failure to do so violates an accused's constitutional right to remain silent." State v. Randolph, 312 N.C. 198, 205, 321 S.E.2d 864, 869 (1984). However, a prosecutor does not violate this prohibition unless "the language used [was] manifestly intended to be, or was . . . of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." State v. Miller, 357 N.C. 583, 589, 588 S.E.2d 857, 862 (2003), cert. denied, 542 U.S. 941, 159 L. Ed. 2d 819 (2004) (citation and quotation omitted).
In the instant case, the prosecutor stated:
Aiding and abetting, incidently, means you are counseling, encouraging, hiring someone to help you. It means that one person can do some of the acts of the offense and the other person completes the acts and you are both responsible for the overall thing. . . . And because these facts can get so confused and it's so hard to figure out and sort out who did what, the law says, you know what, we're not going to hold the State to the burden of proving who fired which bullet or which order they came, they are both responsible for everything that happened here. And that has a ring of common sense to it, doesn't it? If you can't figure out who did what exactly, who should that fall upon? The two defendants that joined in a plan, a common purpose to effectuate this fight or should it fall upon the State where it is mission impossible to figure out the details of everything that happened? Remember, we can't tell you that. There is doubt all over the place about who fired which bullet or which order the fatal bullet struck the victim's body. But is there any doubt that they both acted together? One brought the gun, one took the gun away, they both used it during the incident. No doubt at all. And if you don't take my word for that, take Ovarias Criego's. Even he acknowledges that fact.
The prosecutor argued that, under the theory of acting in concert, the State's burden of proof did not extend to proving who fired which shots, but only extended to showing that one of the two co-defendants fired the shots and that they were acting in concert with one another. Based on the evidence, the prosecutor argued the guilt should fall upon both co-defendants equally because they were acting in concert. Unlike the State's closing argument in cases such as State v. Reid, 334 N.C. 551, 554, 434 S.E.2d 193, 196 (1993) (where the prosecutor specifically said "[t]he defendant hasn't taken the stand in this case. He has that right. You're not to hold that against him.") and State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975) (where the prosecutor stated that the defendant's criminal record could not be shown to the jury unless the defendant took the witness stand), where such statements were held to violate the prohibition against commenting on failure of the defendant to testify, the prosecutor's comments in the instant case were not improper. Therefore, defendant has failed to show that "the prosecutor's arguments were so grossly improper that the trial court erred in failing to intervene ex mero motu." Barden, 356 N.C. at 358, 572 S.E.2d at 135. This assignment of error is overruled.
II
Jacobs argues she received ineffective assistance of counsel because she contends defense counsel conceded she was guilty of possession of a firearm by a felon. She states the record does not disclose that she consented to this concession, and that absent her consent, she was denied her right to a trial by jury on that charge. Concession of a client's guilt absent a consent by defendant to do so constitutes ineffective assistance of counsel per se. State v. Harbison, 315 N.C. 175, 337 S.E.2d 504 (1985), cert. denied, 476 U.S. 1123, 90 L. Ed. 2d 672 (1986). We first determine whether a concession was made by counsel and, if so, whether the record discloses the defendant's consent or lack thereof. If it is determined that consent was given for any concession, we review for ineffective assistance of counsel. Id. To support a claim for ineffective assistance of counsel, defendant must show that counsel's performance was so deficient that he was not functioning as the constitutionally-guaranteed "counsel" and that the deficient performance prejudiced the defense. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation and internal quotation marks omitted).
During his closing argument, defense counsel stated:
Lastly, the State is going to get up here and they're going to stand for the proposition that's going to go back to foreseeability. It's going to go back to aiding and abetting and it's going to go back to accomplice liability. And I'm just talking about Fanta Jacobs here. Focus your minds on Fanta Jacobs. Don't bring a gun to a fist fight. You're going to hear it and if you don't hear it, I'll be shocked. And you know what, to some degree, it's hard to argue with that. No. 2, you have to actually don't look at it from just a simple statement, don't bring a gun to a fist fight, look at it from this particular case, all the things that happened. No. 1, is it foreseeable that they would have even found him? Is it foreseeable that they would have gotten into a fist fight? Is it foreseeable that the gun would have got knocked out? Is it foreseeable that you pick the gun up and try to shoot to break it up? Is it foreseeable that Shorty [aka Criego] would pick it up? Is it foreseeable that he did and would shoot it? All those seven things. Assign probability to each one of those. . . . But the most important thing about this, ladies and gentlemen of the jury, is if you want to, punish Fanta Jacobs for bringing a gun to a fist fight. Clearly under the law and the facts as you heard it, she is not guilty of any responsibility for the homicide. But you have the option, ladies and gentlemen of the jury, to punish her for being in possession of that firearm. The State has entered into evidence her prior conviction, folks, of cocaine. You've seen it, everybody, all the evidence in this case is she's the one that pulled the gun out, shot trying to break the fight up. If you want to punish her for it, you can. Possession of a firearm by a felon is a felony. . . . If you want to punish her for bringing a gun to a fist fight, you can. Don't punish her for a homicide that she really, when it all boils down to it, didn't foresee happening, didn't want to happen, and really the only action that she really did was shoot a gun trying to break it up.
These comments, taken in context, challenge the State's position that Jacobs would not have brought a gun to meet Bunting unless she intended to kill him. In effect, defense counsel was asking the jury, if it found that defendant brought a gun to the scene where Bunting was killed, not to consider that evidence of premeditation, but to treat it as mere possession of a firearm. In this way, these statements differ markedly from those in the case cited by defendant. In Harbison, defense counsel actually said: "I have my opinion as to what happened on that April night, and I don't feel that William should be found innocent. I think he should do some time to think about what he has done. I think you should find him guilty of manslaughter and not first degree." Harbison, 315 N.C. at 177-78, 337 S.E.2d at 506. In the instant case, we note defendant does not challenge the portion of defense counsel's opening statement, which is consistent with defense counsel's closing statement. Jacobs admitted at the outset of the trial in her opening statement that the evidence would show she had a gun. Because Jacobs, through counsel, had already stated to the jury the evidence would show she possessed a gun, defendant's statement to the trial court that she was satisfied with the way her counsel conducted the trial through the evidentiary phase would seem to indicate Jacobs' consent to her counsel's argument. "Neither Harbison nor any subsequent case specifies a particular procedure that the trial court must invariably follow when confronted with a defendant's concession." State v. Berry, 356 N.C. 490, 514, 573 S.E.2d 132, 148 (2002). However, a concession was made by defense counsel. Therefore, we dismiss defendant's appeal on this assignment of error without prejudice to file a motion for appropriate relief to determine whether defendant consented to defense counsel's concession of guilt.
III
Jacobs argues the trial court committed plain error by failing to dismiss the charge of second degree murder at the close of the State's case for insufficiency of the evidence. We disagree.
Our Supreme Court "has applied the plain error analysis only to instructions to the jury and evidentiary matters." State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999). The standard of review for plain error is whether an error is "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000) (quotation omitted). "By simply relying on the use of the words `plain error' as the extent of his argument in support of "plain error" a defendant effectively fails to make an argument for plain error and thereby waives appellate review." State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). "[W]here defendant includes plain error as an alternative in some of his assignments of error but does not specifically argue or give support in his brief as to why plain error is appropriate, we will not address this aspect of his assignment of error." State v. Williams, 355 N.C. 501, 528, 565 S.E.2d 609, 625 (2002), cert. denied, 537 U.S. 1125, 154 L. Ed. 2d 808 (2003).
Of the nine assignments of error on which Jacobs relies for this argument, five (assignments 10, 12, 19, 20 and 37) specifically assert plain error. All of the assignments of error specifically asserting plain error challenge either the trial court's failure to dismiss the charge of second degree murder or the manner in which it instructed the jury as to that charge. However, when defendant actually moved to dismiss, he moved to dismiss the charge of first degree murder, arguing that there was no evidence of premeditation or deliberation. An appellate court will not consider a different theory on appeal from the one presented to the trial court. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988); State v. Smarr, 146 N.C. App. 44, 56, 551 S.E.2d 881, 888 (2001), disc. rev. denied, 355 N.C. 291, 561 S.E.2d 500 (2002). "Defendant may not swap horses after trial in order to obtain a thoroughbred upon appeal." Benson, 323 N.C. at 322, 372 S.E.2d at 519. This assignment of error is dismissed.
We note that in Issue IV, infra, we address the trial court's instructions on acting in concert and aiding and abetting because the issue was properly preserved for appellate review.
IV
Jacobs argues the trial court erred by instructing the jury on acting in concert or aiding and abetting and argues the evidence did not support any theory that she aided and abetted Criego or that there was a common purpose to commit murder. We disagree.
Jury instructions are to be read as a whole and in context, and a defendant is not entitled to any relief if such a reading shows that the trial court fairly advised the jury of each element of each offense charged. State v. Smith, 311 N.C. 287, 316 S.E.2d 73 (1984). An examination of the charge in this case shows that the trial court fulfilled this requirement. There was ample evidence from which the jury could determine that Jacobs and Criego had a common purpose in assaulting Bunting with a deadly weapon. Likewise, there was ample evidence from which it could be determined that Jacobs and Criego aided and abetted one another in the commission of the offense charged. "An aider or abettor is a person who is actually or constructively present at the scene of the crime and who aids, advises, counsels, instigates or encourages another to commit the offense." State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981). These assignments of error are overruled.
Criego's Appeal I
Criego argues the trial court committed plain error by failing to instruct the jury for each defendant separately. Criego asserts the instructions might have been interpreted by the jury to require them to convict defendant if they found either defendant guilty of murder and to deny Criego the defense of self-defense if the jury found either defendant did not act in self-defense. We disagree.
An assignment of error must "state plainly, concisely, and without argument" the particular error and legal basis upon which error is assigned. N.C. R. App. P. 10(c)(1). To assert "plain error" in an assignment of error, the party must identify the specific jury instruction questioned, by "specifically and distinctly contend[ing it] amount[s] to plain error." N.C. R. App. P. 10(c)(4). A constitutional error not asserted at trial is waived on appeal. Benson, 323 N.C. at 322, 372 S.E.2d at 519.
A jury instruction "must be construed as a whole in the same connected way in which it was given. When thus considered, if it fairly and correctly presents the law, it will afford no ground for reversing the judgment, even if an isolated expression should be found technically inaccurate." State v. Francis, 341 N.C. 156, 162, 459 S.E.2d 269, 272 (1995) (internal quotation marks omitted). There is no error if, when the instruction is viewed in its entirety and context, it is not readily "susceptible to the construction that the jury should convict all if it finds one guilty" or should deny one defendant the right of self-defense if the other was not entitled to it. State v. Tomblin, 276 N.C. 273, 276, 171 S.E.2d 901, 903 (1970); see also State v. Ruffin, 90 N.C. App. 712, 370 S.E.2d 279 (1988).
Here, Criego was convicted of second degree murder. He was charged, and the trial court instructed consistent with the North Carolina Pattern Jury Instructions, that he could be found guilty as a principal, or on the theory of aiding and abetting or acting in concert. Under the latter two theories, Criego could be found guilty even if the jury determined that Jacobs killed Bunting. The trial court correctly instructed that under the theory of acting in concert, Criego could be held responsible for the acts of Jacobs in committing the crime if they were acting together with a common purpose to commit the crime. Francis, 341 N.C. at 160-61, 459 S.E.2d at 272. Under that theory, it is not necessary that Criego commit any act to be guilty if he is present and there is a common scheme to commit the crime. Ruffin, 90 N.C. App. at 717, 370 S.E.2d at 281. Likewise, the evidence supported the theory that Criego acted as an aider and abetter if the jury found Criego knowingly advised, instigated, encouraged, procured, or aided Jacobs and that Criego's actions or statements caused or contributed to the commission of the crime by Jacobs. Francis, 341 N.C. at 161, 459 S.E.2d at 272. Criego argues that even if the jury found him not guilty as a principal and not guilty under either acting in concert or as an aider and abettor, the instructions still may have led the jury to believe they could find him guilty. This argument is without merit. There is nothing in the record to support defendant's argument. The jury instructions as given did not cause confusion. The instructions closely followed the pattern jury instructions and the trial court tailored its instructions to reflect the different gender of each defendant. Further, the evidence supporting each of the theories of guilt applicable to Criego (and evidence contrary to a claim of self-defense) as to second degree murder was overwhelming. Criego did not deny that he and Jacobs initiated the confrontation or that Criego fired shots at the victim as the victim approached. Criego did not claim the victim had a weapon as he approached. Taken as a whole, the instructions fairly and correctly presented the law. Francis, 341 N.C. 156, 459 S.E.2d 269; Tomblin, 276 N.C. 273, 171 S.E.2d 901; Ruffin, 90 N.C. App. 712, 370 S.E.2d 279. This assignment of error is overruled.
II
Criego argues it was error for the trial court to allow Maria Bonsignore to testify concerning a statement Jacobs made to her. Specifically, Criego argues his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution and similar provisions of the North Carolina Constitution were violated because Jacobs' statement, as testified to by Bonsignore, was not "sanitized" or redacted to remove all references to Criego. However, Criego did not raise this issue with the trial court and has raised this constitutional issue for the first time in this Court. It is well-established that constitutional questions not raised and passed upon at trial will not be considered on appeal. Benson, 323 N.C. at 322, 372 S.E.2d at 519; see also State v. Anthony, 354 N.C. 372, 389, 555 S.E.2d 557, 571 (2001), cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002).
To preserve a question for appellate review, a party must have presented the trial court with a timely request, objection or motion, stating the specific grounds for the ruling sought if the specific grounds are not apparent. N.C. R. App. P. 10(b)(1); State v. Eason, 328 N.C. 409, 420, 402 S.E.2d 809, 814 (1991). Criego failed to do so. While he did object to both the joinder of his trial with that of Jacobs, as well as to a portion of Bonsignore's testimony, neither objection was based on constitutional grounds, and his objection to Bonsignore's testimony was not specific. When the trial court was considering the State's motion to consolidate the trials, Criego argued against the motion, stating:
Your Honor, for the record, I would object to the joinder of the defendants . . . and I will just briefly state the basis. I did indicate to this earlier this morning when we had a bench conference and I'll just restate it for the record, Your Honor. The objection that I am interposing rather to the joinder of these two defendants for trial is that based on the discovery that's been provided to me by the State in the form of transcripts of interviews and written statements of the Co-Defendant, Fanta Jacobs, it appears if the testimony were developed at trial consistent with some of those statements, that her version — essentially her version as it appears in some of the discovery of what happened that evening is antagonistic, essentially, to the position and the facts as they are for Mr. Criego and as they'll be presented through his testimony through our evidence and will be elicited through cross-examination. Obviously, as the Court knows, antagonistic defenses between two co-defendants is a reason not to allow joinder and, in fact, to sever cases for trial and try each of these defendants individually. I will say just to repeat what was mentioned at the bench conference previously, that I do have an indication from Ms. Jacobs' attorney, Mr, Shotwell, that the issue that I am raising, namely, the antagonistic defenses, may not be an issue at trial as the evidence is presented and if and at such time as Ms. Jacobs testifies that may not be a problem. However, based on the situation as I am looking at it now, I'm going to object for the record for joinder.
While the record shows Criego did raise the possibility of antagonistic defenses, he did not raise a question about the potential use of a statement from Jacobs or the need to redact any portion of such a statement, nor did Criego assert that joinder would violate his constitutional right to confrontation. This assignment of error is dismissed.
III
Criego contends he was denied his right to a speedy trial. Criego, who was indicted 27 November 2004, filed his first Motion for a Speedy Trial less than two months later, on 12 January 2005. Criego's first attempt to calendar this motion was in April 2006, nearly fifteen months after his initial motion for a speedy trial. Criego filed a second motion on 17 April 2006 seeking to have the charges against him dismissed based on violation of his right to a speedy trial. Defendant must show actual, substantial prejudice resulting from the denial of a speedy trial to obtain a dismissal based on a speedy trial violation. See State v. Goldman, 311 N.C. 338, 346, 317 S.E.2d 361, 366 (1984) (holding "in the absence of a showing of actual prejudice, ? our courts should consider dismissal in cases of serious crimes with extreme caution"). In order to show prejudice resulting from a delay, "[t]he defendant must show that the resulting lost evidence or testimony was significant and would have been beneficial to his defense." State v. Marlow, 310 N.C. 507, 521-22, 313 S.E.2d 532, 541 (1984). Here, Criego has not shown deliberate delay by the prosecutor, nor has he shown prejudice due to delay:
The last thing I will say, Judge, is that I believe that this Defendant has suffered prejudice by this pretrial delay in that has [sic] been excessive. Some of the case law, Your Honor, talks about — I can't point to a witness that I don't have because of the delay and I can't point to, nor can I prove, that the State intentionally delayed this case in order to get advantage.
Criego has not made the requisite showing of deliberate delay nor actual, substantial prejudice. This assignment of error is overruled.
IV
Criego argues the trial court committed plain error by failing to instruct the jury on self-defense regarding Criego in the court's final mandate to the jury. We disagree.
An error in the trial court's jury instructions must be "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). In reviewing jury instructions for such error, "[t]he test for plain error is whether absent the omission the jury probably would have returned a different verdict. . . . [and] the instructions must be considered in their entirety." State v. Stevenson, 327 N.C. 259, 265, 393 S.E.2d 527, 530 (1990) (citations omitted).
On appeal, Criego argues the trial court erred because it did not include an instruction on self-defense in its final mandate to the jury. The record discloses the trial court properly and fully instructed the jury on self-defense in the final mandate for the substantive charges of first degree murder, second degree murder and manslaughter. Criego's argument is applicable only to the final mandate on the theory of aiding and abetting. Criego cites State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974), for the proposition that the trial judge must include "not guilty by reason of self-defense as a possible verdict in his final mandate to the jury." We agree with this reading of Dooley, which clearly applies to substantive offenses. However, we are not convinced Dooley requires the trial court to instruct on self-defense in a final mandate as to the theory of aiding and abetting. Nevertheless, in the instant case, there can be no plain error as the theory of aiding and abetting was applicable only to Jacobs and not Criego. This assignment of error is overruled.
V
Criego argues the trial court failed to intervene ex mero motu alleging the prosecutor improperly suggested the burden of proof was on Criego. For the reasons stated in Jacob's Issue I, supra, this assignment of error is overruled.
Jacobs' appeal: No error in part; Dismissed in part; and Dismissed in part without prejudice. Criego's appeal:
No error.
Judges STEELMAN and GEER concur.
Report per Rule 30(e).