P. v. >Windsor>

 

 

 

 

 

 

 

 

 

 

Filed 9/4/13  P. v. Windsor CA3

 

 

 

 

 

NOT TO BE PUBLISHED

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   ROCKY WINDSOR,                           Defendant and Appellant.

C068690   (Super. Ct. No. 09F01376)

            Defendant
Rocky Windsor was convicted by jury of eight counts of committing a forcible
lewd or lascivious act on a minor under the age of 14 years.  With respect to each count, the jury also
found defendant engaged in substantial sexual conduct with the victim.  The trial court sentenced defendant to serve
an aggregate determinate term of 64 years in href="http://www.mcmillanlaw.com/">state prison and imposed other
orders. 

            On appeal,
defendant contends his trial counsel rendered constitutionally deficient
assistance by failing to properly admit into evidence several out-of-court
statements made by the victim that were purportedly inconsistent with her
testimony at trial.  Assuming, without
deciding, counsel’s performance fell below an objective standard of
reasonableness, we conclude there is no reasonable
probability the result of the proceeding would have been different had these
statements been admitted into evidence.  Accordingly,
we affirm the judgment. 

FACTS

            J.R., the
victim in this case, was born to her teenaged mother and father in September
1995.  The parents’ relationship ended
shortly before her birth.  Initially,
J.R. lived with her mother and grandmother. 
In July 1997, mother gave birth to a second daughter, A.M. 

            Defendant
and mother began a relationship sometime in 1999.  In March 2001, mother gave birth to a third
daughter, M.W.  Mother’s fourth daughter,
Z.W., was born in June 2002.  Defendant
fathered these children. 

            In 2003,
defendant and mother, as well as A.M., M.W., and Z.W., moved into an apartment
in Rancho Cordova. 
Shortly before the move, J.R. moved in with her father, but stayed with
her mother on certain weekends.  In June
2003, mother gave birth to a son, G.W., who was also fathered by
defendant. 

>Incidents
at the >Rancho Cordova>
Apartment (Counts 1 & 2)>

            Defendant’s
abuse of J.R. began at the Rancho Cordova
apartment.  She was seven years old and
in the first grade.  The first incident
she remembered occurred in her mother’s bedroom.  Defendant removed J.R.’s clothes and rubbed
his penis against her vaginal area as they lay on the floor.  J.R. asked him to stop and tried to push him
off of her, to no avail.  Eventually,
defendant ejaculated on either her href="http://www.sandiegohealthdirectory.com/">stomach or back and told her
to take a shower.  Mother was not home at
the time.  The second incident was nearly
identical to the first, except that it occurred in another room while mother
was in her bedroom.  J.R. again told
defendant to stop and unsuccessfully tried to push him off of her.  Defendant again ejaculated on either her
stomach or back and immediately told her to take a shower.  In all, defendant rubbed his penis on J.R.’s
vaginal area on “[m]ore than five” separate occasions at the Rancho
Cordova apartment. 
Defendant threatened to burn her if she told anyone what he was doing to
her.  He also threatened to hurt her
mother and siblings. 

>Incidents
at the Folsom Apartment (Counts 3
through 6)

            Defendant
and mother broke off their relationship in November 2003, prompting defendant
to move out of the Rancho Cordova apartment.  A short time later, mother moved A.M., M.W.,
Z.W., and G.W. into an apartment in Folsom. 
J.R. asked her father if she could also move in with mother.  He agreed as long as she kept her grades up,
which she did during the second grade. 

            Toward the
end of 2004, defendant and mother resumed their relationship.  Defendant moved into the Folsom apartment and
resumed his abuse of J.R., who was now in the third grade.  Defendant rubbed his penis on her vaginal
area on “[m]ore than five” separate occasions at this apartment as well.  At some point, J.R. ceased telling defendant
to stop.  As she explained:  “I realized it wasn’t doing any good, so I
just let it happen.”  On one occasion, in
the living room, after defendant rubbed his penis against J.R.’s vaginal area
while bending her over the armrest of the couch, he “tried to penetrate [her]
anally.”  When she cried out in pain,
defendant stopped and said:  “[T]hat’s
okay.  I’ll be in there some day.”  A few weeks later, defendant again bent J.R.
over the armrest of the couch.  This
time, using lotion as a lubricant, he penetrated her anus with his penis.  J.R. tried to get away, but defendant held
onto her back with his hands and used his body weight to press her into the
couch.  After moving his body “back and
forth,” defendant withdrew his penis and ejaculated on the floor. 

            Defendant
lived in the Folsom apartment for about two months, at which point he and
mother again broke off their relationship. 
Defendant moved out in December 2004. 
J.R.’s grades declined dramatically during the third grade, prompting
her father to insist that she move back in with him for the start of the fourth
grade.  Mother agreed.  After moving in with her father, J.R. stayed
with her mother about two weekends a month. 


>Incidents
at the Citrus Heights Apartments (Counts
7 & 8)

            In March
2006, defendant moved into an apartment in Citrus Heights.  Mother moved A.M., M.W., Z.W., and G.W. into
an apartment “about 150 yards down the road” from defendant’s apartment in July
2006.  J.R.’s visitation schedule
remained unchanged.  While mother and
defendant did not resume a dating relationship, defendant would periodically
watch mother’s children, including J.R., at both his apartment and mother’s
apartment.  During these visits,
defendant resumed his abuse of J.R., rubbing his penis on her vaginal area “[a]bout
five times.”  On one occasion, defendant
penetrated her vagina with his penis. 
J.R. also testified defendant licked her vaginal area “almost every
time” he molested her, but did not remember at which apartment the oral
copulation began.  The abuse ended when
defendant moved to Rocklin in October 2006. 


>J.R.’s
Statements Regarding the Abuse

            J.R.
reported defendant’s conduct to her father when she was 13 years old, about two
years after the abuse stopped.  She did
not report the abuse earlier because she was “scared” and “didn’t know what
would happen” if she told anyone. 
However, after learning about human reproduction in her seventh grade
science class, she decided she “didn’t want to hold it in anymore.”  Her initial account of the abuse omitted many
of the details she later revealed to the District Attorney’s investigator and
testified to at trial.  For instance, she
did not tell her father about the oral copulation.  Nor did she reveal that defendant’s penis
penetrated her vagina and anus.  J.R. omitted
these details because she was “embarrassed” and thought her father would think
less of her if he knew the extent of the abuse. 
She also “wasn’t sure” whether her father would be angry with her for
allowing it to happen. 

            J.R.’s
father immediately reported the abuse to law enforcement.  That day, an officer interviewed J.R., who
provided a similarly minimized account of the abuse.  As she explained, she was “embarrassed” and
“afraid of what [her] dad might think of [her].”  At some point, J.R. was interviewed by a
counselor at the Multi-Disciplinary Interview Center (MDIC), also known as the
Special Assault Forensic Evaluation (SAFE) Center.  Again, J.R. was not “entirely truthful” about
the extent of the abuse she suffered at the hands of defendant.  She was “embarrassed” because she knew a
detective was watching the interview from behind a one-way mirror.  She was also afraid she would get in trouble
if she told the interviewer something different than she had told her father
and the officer who conducted the first interview. 

            Over time,
J.R. became more comfortable talking to her father about the abuse and revealed
that defendant’s conduct included penetration. 
J.R.’s father again contacted law enforcement and brought J.R. to the
District Attorney’s office for an interview. 
During this interview, J.R. stated that “she had not disclosed
everything that had happened to her in the SAFE interview or to prior
detectives.”  She revealed that defendant
“us[ed] his tongue” and “put his fingers inside of her vagina,” and “this
occurred every time that these incidents occurred.”  J.R. stated defendant had “put his penis
inside of her vagina” and he did the same to her “back side.”  She “clarified that while living in Rancho
Cordova [defendant] attempted to insert his penis into her anus, but stopped
when she said it hurt,” and he then stated: 
“[T]hat’s okay.  I’ll be in there
some day.”  Defendant successfully
penetrated her anus “a few weeks later,” as previously described.  J.R. also revealed the incident in which
defendant “insert[ed] his penis into her vagina while she was at an apartment
in Citrus Heights.” 

            J.R. stated
that “most of the incidents would occur when her mother worked at night” and
“remembered being about eight or nine years old while living at the Rancho
Cordova address.”  She further revealed
defendant “would masturbate himself” after rubbing his penis on her vagina “and
then ejaculate on her back or stomach on almost every incident.”  J.R. explained that “the first year or two
she would ask [defendant] to stop, but that she stopped making such a request
because she knew it would not do any good.” 
When asked why she did not disclose these details during the SAFE
interview, J.R. responded that “she was going to tell everything at the SAFE
interview, but became nervous when she was told that the detective was
watching, that there was a microphone, and she could hear the camera zooming in
and out.  [J.R.] said all of these things
made her extremely nervous and she did not want people to think she was
weird.” 

>Defense
Case

            Defendant
testified at trial and denied the allegations of abuse.  According to the defense theory, J.R.
fabricated the abuse because she was angry at defendant for leaving her mother
to care for his children while he moved to Rocklin with another woman in
October 2006.  The jury found defendant
guilty on all counts. 

DISCUSSION

            Defendant
contends his trial counsel rendered constitutionally deficient assistance by
failing to properly admit into evidence eight out-of-court statements made by
J.R. that were purportedly inconsistent with her testimony at trial.  Finding no prejudice, we need not decide
whether counsel’s performance fell below an objective standard of
reasonableness. 

>A.

>The Out-of-court Statements>

            >1.         During
defense counsel’s cross-examination of J.R., counsel asked which of her
siblings lived at the Rancho Cordova apartment. 
After she testified M.W. and Z.W. lived there from the start, and G.W.
was born after the move to the Rancho Cordova apartment, counsel asked whether
A.M. also lived at the apartment.  J.R.
answered:  “I don’t remember how custody
was then.  I don’t recall.”  Counsel then announced he would be reading
from the MDIC interview.  The prosecutor
objected and asked:  “Does it refresh
recollection?  For what purpose is he
reading it?”  Defense counsel then
withdrew the intended question and asked J.R. whether she remembered telling
the MDIC interviewer that A.M. lived at the apartment.  J.R. answered:  “I don’t recall.”  Counsel then read from the interview, in
which J.R. stated:  “[A.M.] was there,
[M.W.], [Z.W.].  And I don’t remember if
[G.W.] was already born yet.”  J.R. testified
she did not remember making that statement. 


            >2.         Later
in the cross-examination, defense counsel asked J.R. whether she remembered the
MDIC interviewer asking her “what would happen to kids if they told a
lie.”  J.R. answered:  “No, I don’t.”  Counsel again announced he would be reading
from the interview.  The prosecutor again
objected:  “It’s improper impeachment.  It’s not refreshing her recollection.  It’s hearsay.”  The objection was overruled.  Defense counsel then read a portion of the
interview in which the interviewer asked: 
“[W]hat could happen to kids if they tell a lie?”  J.R. answered:  “Could [sic]
get in trouble some way, couldn’t you?” and elaborated:  “Probably grounded, first of all,” and
“[t]hey wouldn’t be trusted.”  J.R.
testified she did not remember making that statement. 

            >3.         Defense
counsel then asked J.R. whether she remembered telling the MDIC interviewer she
had “no clue” as to the address of the Rancho Cordova apartment or what grade
she was in when she lived in Rancho Cordova. 
J.R. answered:  “No, I do not.”  Counsel then read a portion of the interview
in which J.R. answered “no clue” to these questions. 

            >4.         Immediately
thereafter, defense counsel asked:  “Now,
you testified this morning that you believe you were seven years old when
something first happened to you; correct?” 
J.R. answered:  “Yes.”  Counsel asked:  “Could you have been older than that, like
eight or nine?”  J.R. answered:  “No.” 
Counsel then asked whether she remembered telling the police officer she
spoke to that she might have been eight or nine.  J.R. answered:  “No, I do not.”  Counsel then read a portion of J.R.’s
interview with police in which she said the abuse began when she was “[e]ight
or nine, maybe seven.”  After a brief
bench conference, counsel again asked the question and J.R. answered that she
did not remember making the statement. 

            >5.         Defense
counsel then asked J.R. whether she remembered telling the officer her mother
was either at work or in the shower when the incidents of abuse occurred.  J.R. answered:  “No, I do not.”  Counsel then read a portion of the police
interview, in which J.R. stated:  “[S]he
was working.  And he’d even do it to me
when she was in the shower, but she never knew. 
He’d always stop before she’d get home or she’d get out or
something.”  Counsel asked J.R. whether
she remembered saying the same thing to the MDIC interviewer.  She answered: 
“No.”  Counsel then read a portion
of the MDIC interview, in which J.R. stated: 
“But he’d always make sure that my mom wasn’t home or she was, like, in
the shower or something when we lived in Rancho, uh-huh.” 

            >6.         Later
in the cross-examination, defense counsel asked J.R. whether she told either
the officer or the MDIC interviewer that defendant had threatened to burn
her.  J.R. said she did not
remember.  Counsel then asked whether it
was true that, prior to her testimony at trial, she never told anyone defendant
had threatened to burn her.  J.R.
answered:  “No.” 

            >7.         Defense
counsel also asked J.R.:  “You told the
officer that [defendant] never changed what he did.  He always did the same thing.  Do you remember telling him that?”  J.R. answered:  “No.” 
Counsel then read a portion of the police interview, in which she
stated:  “And then it kept going on.  He never changed what he did, he always did
the same thing.  He never tried to make
me touch anything and he -- he’d never go inside of me.”  A short time later, counsel asked J.R.
whether she remembered telling the officer the same thing happened in Folsom
that happened in Rancho Cordova.  J.R.
answered:  “No, I do not.”  At this point, the prosecutor stated:  “I’ll stipulate that’s what she told the
officer.”  Defense counsel
responded:  “What was his
objection?”  The prosecutor replied:  “No objection.  I’m willing to stipulate she told [the
officer] that the same thing happened in Folsom that happened in Rancho.”  Defense counsel responded:  “I prefer to read it from the transcript if
[the prosecutor] doesn’t have a problem with that.”  The trial court then commented:  “Well, the problem is it’s not proper
impeachment.”  Defense counsel then
said:  “I must be missing
something.” 

            >8.         Finally,
defense counsel asked J.R. whether she told the officer defendant did not stay
in touch with her mother even though he had three children with her.  J.R. answered:  “I do not recall.”  Counsel then read a portion of the police
interview, in which J.R. stated:  “And
after that he -- his roommate was pregnant, and so he ran off with her because
she threatened to have him pay money if he didn’t stay with her, take care of
the baby and all that goodness.”  After
J.R. testified she did not remember saying that to the officer, defense counsel
read more of the interview:  “And he just
really didn’t stay in touch with my mom at all when he had three kids with
her.”  Counsel asked J.R. whether she
remembered saying that to the officer. 
J.R. answered:  “No, I do
not.” 

>B.

>Analysis

            Defendant asserts that, rather than
read portions of the respective interviews to J.R. and ask whether she made the
statements attributed to her, his trial counsel should have had J.R. review the
statements to seek to refresh her memory. 
Defendant argues:  “Had she
reviewed those actual pretrial statements, there is a substantial likelihood
she would have admitted making those contradictory statements, which could have
gone a long way towards undermining her general credibility.  Had she, conversely, denied having made those
statements, counsel then could have called [the officer] and/or [the MDIC
interviewer] as rebuttal witnesses to testify to [J.R.’s] prior inconsistent
statements.” 

            A criminal defendant has the right
to the assistance of counsel under both the Sixth Amendment to the href="http://www.adrservices.org/neutrals/frederick-mandabach.php">United
States Constitution and article I, section 15, of the California
Constitution.  (People v. Ledesma (1987) 43 Cal.3d 171, 215.)  This right “entitles the defendant not to
some bare assistance but rather to effective assistance.  [Citations.] 
Specifically, it entitles him [or her] to ‘the reasonably competent
assistance of an attorney acting as his [or her] diligent conscientious
advocate.’  [Citations.]”  (Ibid.,
quoting United States v. DeCoster (D.C.Cir. 1973) 487 F.2d 1197,
1202.)  “‘In order to demonstrate
ineffective assistance of counsel, a defendant must first show counsel’s
performance was “deficient” because his [or her] “representation fell below an
objective standard of reasonableness . . . under prevailing professional
norms.”  [Citations.] 
Second, he [or she] must also show prejudice flowing from counsel’s
performance or lack thereof.  [Citation.]  Prejudice is shown when there is a
“reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.  A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”’”  (In re Harris (1993) 5 Cal.4th 813,
832-833; accord, Strickland v.
Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) 

            The burden of proving a claim of
ineffective assistance of counsel is squarely upon the defendant.  (People v. Camden (1976) 16 Cal.3d
808, 816.)  In
determining whether counsel’s performance was deficient, we must exercise
“deferential scrutiny”
(People v. Ledesma, supra,
43 Cal.3d at p. 216) and refrain from engaging in
“the perilous process of second-guessing” counsel’s rational tactical
decisions.  (People v. Miller
(1972) 7 Cal.3d 562, 573.)  Where, as
here, the record does not contain an explanation for the challenged aspect of
representation, the judgment must be affirmed on appeal unless counsel was
asked for an explanation and failed to provide one or there simply could be no
satisfactory explanation.  (People v.
Pope (1979) 23 Cal.3d 412, 425, overruled on another ground as stated in >People v. Ortiz (2012) 208 Cal.App.4th
1354, 1372.)  Thus, we may reverse “‘only
if the record on appeal affirmatively discloses that counsel had no rational
tactical purpose for his [or her] act or omission.’  [Citation.]” 
(People v. Zapien (1993) 4 Cal.4th 929, 980.) 

            As a preliminary matter, we note
that defense counsel certainly could have allowed J.R. to read the transcripts
of her prior interviews to seek to refresh her memory.  (See People
v. Wojahn (1959) 169 Cal.App.2d 135, 141-142; 3 Witkin, Cal. Evidence (5th
ed. 2012) Presentation at Trial, § 191, pp. 289-290.)  But it is speculation to assert J.R. likely
would have admitted making the statements had she reviewed them at the witness
stand rather than listen to counsel’s recitation of them.  With respect to each statement, J.R.
testified she did not remember making the statement.  There is no reason to believe this answer
would have changed had she reviewed the statements herself.  For the same reason, contrary to defendant’s
argument on appeal, there is no reason to believe counsel would have been able
to lay a proper foundation for admitting these statements under Evidence Code
section 1237, which requires that the witness “testif[y] that the statement he
[or she] made was a true statement.” 
(Evid. Code, § 1237, subd. (a)(3).)href="#_ftn1" name="_ftnref1" title="">[1] 

            It appears as though counsel’s main
objective in his cross-examination of J.R. was not to refresh her memory, but
to lay a foundation for the admission of these statements under section 1235 as
prior inconsistent statements.  “A
witness’s prior statement that is inconsistent with his or her testimony is
admissible so long as the witness is given the opportunity to explain or deny
the statement.”  (People v. Ledesma (2006) 39 Cal.4th 641, 710; §§ 770, 1235.)  Here, defense counsel read the purportedly
inconsistent statements to J.R. and gave her an opportunity to explain or deny
them.  (See People v. Strickland (1974) 11 Cal.3d 946, 954 [witness properly
given an opportunity to explain or deny prior statements where the prosecutor
made reference to the witness’s prior statements and the witness denied making
the statements].) 

            However, having laid a foundation
for the admission of the statements in question, counsel did not attempt to
call rebuttal witnesses to testify concerning these statements.  One possible explanation for this omission is
that counsel concluded J.R.’s “I don’t remember” testimony was not sufficiently
inconsistent with her prior statements to qualify for admission under section
1235.  “‘Normally, the testimony of a
witness that he or she does not remember an event is not inconsistent with that
witness’s prior statement describing the event. 
[Citation.]  However,
. . . [w]hen a witness’s claim of lack of memory amounts to
deliberate evasion, inconsistency is implied. 
[Citation.]  As long as there is a
reasonable basis in the record for concluding that the witness’s “I don’t
remember” statements are evasive and untruthful, admission of his or her prior
statements is proper.  [Citation.]’”  (People
v. Ledesma, supra, 39 Cal.4th at
p. 711, quoting People v. Johnson
(1992) 3 Cal.4th 1183, 1219.)  We need
not decide whether there is a reasonable basis in the record for such a finding
because, assuming defense counsel could have admitted J.R.’s prior statements
into evidence, and further assuming his failure to do so fell below an
objective standard of reasonableness, we conclude there is no conceivable
prejudice. 

            J.R. candidly admitted during direct
examination that she was not forthcoming with her father, the police, or the
MDIC interviewer concerning the extent of defendant’s abuse.  She gave plausible reasons for minimizing the
abuse, i.e., embarrassment, uncertainty as to what her father would think of
her if he knew the extent of the abuse, and fear that she would get into
trouble if she told the police and MDIC interviewer something different than
she told her father.  The jury believed
her testimony.  We conclude there is no
reasonable probability the jury would have disbelieved her had they known about
the minor inconsistencies contained in the statements at issue in this
appeal.  For instance, it is largely
immaterial whether A.M. lived at the Rancho Cordova apartment or simply visited
the apartment.  Indeed, J.R.’s trial
testimony that she did not remember A.M.’s custody arrangement at that time is
arguably consistent with her prior statement that “[A.M.] was there” because
she could have been there visiting.  Even
less material is the fact J.R. told the MDIC interviewer children can get into
trouble if they tell a lie, and she had “no clue” as to the address of the
Rancho Cordova apartment or what grade she was in when her mother lived in
Rancho Cordova. 

            Defendant makes much of the fact
J.R. testified that she was seven years old when he first started to rub his
penis on her vaginal area, while she told the police she was “[e]ight or nine,
maybe seven.”  This statement is not
inconsistent because it includes the possibility she was seven.  Moreover, J.R.’s testimony that she was seven
is corroborated by defendant’s testimony that they moved to Rancho Cordova in
“[e]arly to mid 2003” and J.R.’s testimony the abuse started before the
birth of G.W., which happened in June 2003. 
J.R. turned eight in September 2003. 
More importantly, for purposes of whether defendant committed a forcible
lewd or lascivious act on a minor under the age of 14, it is immaterial whether
J.R. was seven or eight. 

            Defendant also argues:  “[J.R.] testified that [he] molested her
during the evenings, while her mother was at work.  This created a believable scenario in which
the molestations occurred during her mother’s absence.  [J.R.], however, apparently told the police
officer and the MDIC interviewer that [defendant] sometimes molested her while
her mother was in the shower.  This
information, unfortunately, could not have been considered by the jury.  Had the jury received evidence that [J.R.]
reported the molestations occurred while her mother was home -- certainly a
less plausible scenario -- the jury reasonably might have doubted the veracity
of [J.R.’s] allegations.”  The flaw in
this reasoning is that it omits the fact J.R. testified that the second
incident of abuse at the Rancho Cordova apartment happened while her mother was
in her bedroom.  Thus, the jury heard
J.R. testify that her mother was home during at least one of the incidents and
did not find this to be implausible. 

            Nor are we persuaded the remaining
inconsistencies would reasonably have led to a different outcome.  While J.R. did not tell police or the MDIC
interviewer defendant threatened to burn her, and further stated in her police
interview defendant “always did the same thing” and “never [went] inside of
[her],” she admitted she did not tell the whole truth during these
interviews.  Finally, J.R. testified she
neither saw nor spoke to defendant after he moved out of the Citrus Heights
apartment.  And in response to defense
counsel’s question, “Isn’t it true in 2006 [defendant] took off with the gal he
got pregnant, that was the last you saw of him,” J.R. answered:  “I don’t know the exact year.”  Based on these responses, and defendant’s
testimony, defense counsel was able to argue in his closing argument that J.R.
fabricated the abuse because she was angry at defendant for leaving her mother
to care for his children while he moved to Rocklin with another woman.  In finding defendant guilty on all counts,
the jury did not believe defendant’s testimony and credited J.R.’s testimony.

            Based on this record, we conclude
there is no reasonable
probability the result of the proceeding would have been different had J.R.’s
out-of-court statements been admitted into evidence. 

DISPOSITION

            The
judgment is affirmed. 

 

 

 

                                                                                           HOCH               , J.

 

 

 

We concur:

 

 

 

              RAYE               , P. J.

 

 

 

          MURRAY             , J.