Opinion
No. 10–P–13.
2013-09-13
COMMONWEALTH v. Timothy E. JONES.
By the Court (TRAINOR, AGNES & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions of two counts of rape aggravated by kidnapping, G.L. c. 265, § 22( a ); kidnapping aggravated by rape, G.L. c. 265, § 26, third par.; assault by means of a dangerous weapon, G.L. c. 265, § 15B( b ); and threats to commit murder, G.L. c. 275, § 2.
The defendant maintains that his trial counsel was ineffective in that he (1) failed to file a motion to suppress, (2) did not investigate DNA evidence, (3) did not file a motion in limine to exclude a knife and roll of packing tape, (4) did not sufficiently impeach Susan Smith
An indictment on charges of assault and battery by means of a dangerous weapon, to wit an electric razor, G.L. c. 265, § 15A, was dismissed following the defendant's motion for a required finding of not guilty. The threats to commit murder conviction was placed on file and is not before us.
at trial, (5) did not object to improper first complaint testimony, (6) impermissibly determined that the defendant would testify, (7) failed to move for lesser included offense instructions, (8) failed to move to dismiss duplicative convictions, and (9) failed to challenge the validity of the kidnapping statute. The defendant also argues that the judge erroneously denied his postconviction motions for a required finding and release from unlawful restraint. We affirm. Ineffective assistance. We review a decision on a motion for a new trial claiming ineffective assistance of counsel for abuse of discretion or errors of law, see Commonwealth v. Alvarez, 433 Mass. 93, 100–101 (2000), under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Commonwealth v. Lavoie, 464 Mass. 83, 89 (2013).
A pseudonym.
1. Suppression. To succeed on his claim of ineffective assistance, “the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Counsel is not ineffective when he or she declines to file a motion to suppress “with a minimal chance of success.” Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983).
a. Validity of warrant. The defendant contends counsel was ineffective in failing to file a motion to suppress because (1) the affidavit in support of the search warrant established an inadequate nexus between the defendant and 205 Mitchell's Way, the location identified as the defendant's residence and the site of the assaults on Smith, and (2) certain items specified in the affidavit were not found at the residence. The affidavit stated that Smith, the defendant's estranged wife, identified 205 Mitchell's Way as the defendant's residence, that she had visited it previously, that it was the place where she was assaulted, and that she had showed the location to the police detective during his preliminary investigation.
With respect to the items sought, the affidavit specified that the defendant used a six to eight inch knife, that Smith was raped repeatedly at the defendant's residence, that he used packing tape to secure her arms and legs, that he forced her to drink brandy, that she vomited and urinated in a bucket, and that she heard an electrical razor and that her pubic hair had been shaved off.
The discrepancy between Detective Guiney's testimony at the hearing on the defendant's motion for a new trial and in his affidavit in support of the warrant is insignificant. Defense counsel could not be ineffective for failing to file a motion to suppress on the basis of a factual inconsistency that did not arise until after trial.
The defendant has not met his burden of showing that a motion to suppress would have been successful, given that the specific facts contained in the affidavit and the reasonable inferences drawn therefrom established probable cause that the defendant resided at that address and that the residence would contain the evidence sought. See Commonwealth v. Tapia, 463 Mass. 721, 726–730 (2013). See also Commonwealth v. Conceicao, 388 Mass. at 264 (counsel not ineffective for failing to file motion to suppress that would be unsuccessful).
The fact that all of the evidence sought was not found at the location described does not undermine the existence of probable cause, or suffice to meet the defendant's burden of demonstrating a likelihood that he would have prevailed on a motion to suppress. See Commonwealth v. Comita, 441 Mass. at 90–91. The defendant also argues that because the affidavit stated that the defendant was the sole occupant of the house when in fact he was renting a room from a resident landlady, counsel should have moved for a hearing under Franks v. Delaware, 438 U.S. 154 (1978). The defendant has not provided evidence to show that he could have made “a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and [that] the allegedly false statement is necessary to the finding of probable cause.” Commonwealth v. Colon, 449 Mass. 207, 223 (2007), quoting from Franks v. Delaware, supra at 155–156.
b. Warrant. The defendant contends that credible evidence suggests that the police officers did not have the warrant in hand during the search, and counsel was ineffective for failing to file a motion to suppress on that basis. The motion judge credited Detective Laber's testimony at the hearing on the motion for new trial that he showed the warrant to the defendant and the defendant's landlady at the time of the search, and Detective Guiney's testimony that he witnessed this. The judge specifically found not credible and without factual support the defendant's claim that the warrant was not presented. We defer to those determinations. See Commonwealth v. Perkins, 450 Mass. 834, 845 (2008).
c. Police agent. The defendant contends that the landlady provided the knife and roll of tape to the police not as a private citizen, but as an agent of the police in response to police pressure during the search and further solicitation by police after the search. The factual basis for this claim is lacking.
The landlady found the knife in a drawer in the kitchen, an area over which she had ownership and control.
Cf. Commonwealth v.. Ploude, 44 Mass.App.Ct. 137, 140–141 (1998) (landlord who had access to entire building had authority to consent to search of tenant area). Moreover, “the exclusionary rule does not exclude evidence obtained by way of purely private conduct.” Commonwealth v. Brandwein, 435 Mass. 623, 632 (2002). The evidence at trial was that the police asked the landlady (on more than one occasion) about a white-handled knife, and that she called the police and turned the knife and tape over to them a few days after the search. “[I]t is no part of the policy underlying the Fourth and Fourteenth Amendments [to the United States Constitution] to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals.” Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971).
The evidence at trial was that the defendant's room was in the basement, that he had no bathroom or running water in the basement, and that he used the upstairs portion of the landlady's home.
There is no indication that this argument was ever made to the motion judge, and he made no findings. An ineffective assistance claim raised for the first time on appeal is the weakest form of claim, and the basis of it must appear indisputably in the record. See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). Here the record does not indisputably establish that the landlady acted as an instrument or agent of the Commonwealth as a matter of law. See ibid. See also Commonwealth v. Mayfield, 398 Mass. 615, 625 (1986) (appellate courts do not find facts or “draw uncompelled inferences from the evidence”). The defendant's remaining arguments on this issue fail to rise to the level of appellate argument, and we therefore do not consider them. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). See Commonwealth v. Vick, 454 Mass. 418, 433 n. 15 (2009).
2. DNA Evidence. The defendant contends that counsel was ineffective for failing to investigate and challenge DNA evidence admitted at trial relating to the packing tape. See Commonwealth v. Greineder, 458 Mass. 207, 248 (2010), vacated on other grounds, Greineder v. Massachusetts, 133 S.Ct. 55 (2012). The defendant refused the delay attendant to such an investigation, urging trial counsel to try the case as quickly as possible. At trial, the defense strategy was that consensual sexual contact occurred, and that both the defendant's and Smith's DNA were on the packing tape because they had packed and unpacked moving boxes using the tape. Had the jury credited the defendant's testimony, he would have been acquitted. For those reasons, the motion judge's finding that trial counsel's strategy was not manifestly unreasonable is fully supported by the record. See Commonwealth v. Bol Choeurn, 446 Mass. 510, 521 (2006) (unsuccessful trial strategy is not “manifestly unreasonable”). Moreover, the defendant has not established prejudice, as he did not introduce any evidence in connection with the motion for new trial suggesting that the laboratory failed to follow proper procedures or that the DNA belonged to someone else.
3. Motion in limine. The defendant maintains that counsel was ineffective for failing to move in limine to exclude the knife and a roll of packing tape contained in a CVS bag, which the landlady also provided to the police. He argues that counsel should have moved to exclude the knife because the knife admitted at trial was larger than the knife Smith previously described to police, and that the roll of packing tape was irrelevant because it was unused.
Assuming, without deciding, that the defendant is correct that the failure to move to exclude the knife was not the result of a reasonable tactical decision,
the motion would not have been successful, and hence no error occurred. Smith testified that the defendant used a knife when he approached her in the parking lot, and that he brought the knife into the room with her at 205 Mitchell's Way. The affidavit shows that Smith told police that the defendant had used a six to eight inch white-handled knife, though she did not specify whether this was the full length of the knife or only the blade length. At trial, Smith testified that the knife admitted at trial (which the defendant describes as a fifteen inch butcher knife, measuring both blade and handle) “resembled” the one he used to abduct her and the one that was in the room with her. As the motion judge found, the knife was relevant and adequately described. Because Smith did not specify whether she was referring to full length or blade length in her initial report to police, the fact that the white-handled knife that was admitted was long is not necessarily inconsistent. Further, assuming there was an inconsistency, that inconsistency went to weight and not admissibility. A motion to exclude or suppress the knife would have been futile, and counsel was not ineffective. Commonwealth v. Conceicao, 388 Mass. at 264.
Defense counsel testified at the hearing on the motion for new trial that he believed that, because the knife and tape were turned over to police together, he could not move to exclude only the knife, and because he believed the unused tape was beneficial to the defendant, he decided not to move to exclude the knife. The judge, however, found that defense counsel made a strategic decision to include such evidence and he had stressed the fact that the knife was in the landlady's kitchen drawer on cross-examination and in closing argument. Leaving aside whether defense counsel may make a reasonable tactical decision on the basis of a possible misunderstanding of law, the motion would have been futile for the reasons stated above.
The packing tape, although unused, was relevant to the Commonwealth's theory that the defendant planned to abduct and confine Smith, and had purchased and/or brought the tape as part of the planned abduction. Given its relevance, any motion to exclude it would have been futile and did not constitute ineffective assistance. See ibid.
Additionally, we conclude, as did the motion judge, that counsel's decision to highlight during cross-examination the fact that the tape was unused, as opposed to moving to exclude it entirely, amounted to a reasonable tactical decision. See Commonwealth v. Greineder, 458 Mass. at 255 (counsel's decision to forego challenge to admissibility of evidence was not manifestly unreasonable where counsel highlighted discrepancy in testimony regarding description of towel).
4. Impeachment of witness. Defense counsel made a concerted effort to impeach Smith by questioning her about inconsistencies in her testimony.
The theme of the cross-examination was the defense of consent, coupled with inconsistencies in her testimony. The cross-examination focused on her previous relationship with the defendant, her failure to call for help when she had the means and opportunity, and the timing of her report to the police. The defendant contends that counsel was ineffective for failing to cross-examine Smith on certain other alleged inconsistencies in her testimony and other previous statements which he claims to be inconsistent.
The cross-examination concerned previous physical abuse, her prior sexual relationship with the defendant, the type of tape used, the feasibility of intercourse while her hands and feet were bound, why she did not call out for help or call 911 with her cellular telephone, whether she could have unbound herself to get to the door, whether she went to the police immediately, whether the first complaint witness had coached her in what to say to police, and whether she had a motive to lie.
The alleged inconsistencies that were not covered in cross-examination include the fact that evidence described by Smith was not found during a search of 205 Mitchell's Way, the gap in time between her call to her friend Kate Brown (a pseudonym) and report to police, the gap in time between report to the Dennis police department and the Barnstable police department, the time it took to travel from the Barnstable police department to the Cape Cod Hospital, whether Smith drove a red truck, why Smith did not use her cellular telephone, and whether she recognized the vehicle in her rear view mirror. The motion judge found that, in several instances, the discrepancies were inconsequential.
We apply a “stringent standard of review to claims of ineffective assistance because of failure to impeach a witness.” Commonwealth v. Jenkins, 458 Mass. 791, 805 (2011). Here defense counsel aggressively questioned many aspects of Smith's testimony central to his defense. That he chose not to cross-examine her on every possible inconsistency was not ineffective. Nor does the defendant explain how a more vigorous cross-examination on the points he now emphasizes, see note 8, supra, would have “accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977). See Commonwealth v. Duran, 435 Mass. 97, 104–105 (2001), quoting from Commonwealth v. Sylvester, 35 Mass.App.Ct. 906, 907 (1993) (failure to “probe every inconsistency which occurs to appellate counsel” is not ineffective assistance).
5. First complaint. The trial judge precluded Smith from testifying on direct examination as to what she told Kate Brown,
the first complaint witness. While Smith was previously barred from testifying to her complaint under the now superseded fresh complaint doctrine, the first complaint doctrine specifically permits both the complainant and the first complaint witness to testify to the complaint. See Commonwealth v. King, 445 Mass. 217, 219 (2005). We review for an abuse of discretion. Commonwealth v. Aviles, 461 Mass. 60, 73 (2011).
A pseudonym.
The trial judge seems to have simply conflated the rules of fresh complaint with first complaint in this regard. The Commonwealth did not object when the trial judge summarily ruled that Smith could not recount her complaint on direct examination. However, even if we treat the exclusion of Smith's testimony regarding her complaint as an abuse of discretion, the defendant was not deprived of an otherwise available ground of defense. Smith testified to the events in question. The judge's ruling had the effect of preventing her from simply repeating it again in the course of describing her complaint to Brown. The defendant made no objection, and elicited no evidence of any prior inconsistent statement in the report made to Brown either at trial or at the motion for new trial.
The defendant points to two aspects of the testimony by Brown that differed from Smith's testimony.
However, a simple discrepancy “between the testimony of the complainant and the first complaint witness” does not run afoul of the first complaint doctrine, or prejudice the defendant. Commonwealth v. Rivera, 83 Mass.App.Ct. 581, 586–587 & n. 5 (2013). First complaint testimony cannot be “sanitized”; inconsistencies are expected and aid the jury in determining whether first complaint testimony supports the complainant's story. Commonwealth v. King, supra at 235. It is for defense counsel to exploit the inconsistencies. See Commonwealth v. Morris, 82 Mass.App.Ct. 427, 439 (2012). Here, the first complaint witness recounted in general form the same series of events to which Smith testified; the variations in testimony amounted to discrepancies. Further, the judge's instructions given both before and after the first complaint witness testified, clearly conveyed that the jury could not use the witness's testimony as a substantive gap-filler in Smith's testimony.
Brown testified that Smith told her that her mouth and eyes were taped shut in the truck and that Smith prayed while the assaults took place. The defendant claims that Brown's testimony went beyond that to which Smith testified, in violation of the limits placed on first complaint testimony. Cf. Commonwealth v. King, supra at 234–235 (barring testimony from fresh complaint witness that effectively “fills in” complainant's account). Smith testified that the defendant taped her mouth and put a sock around her eyes after they reached the house.
6. Testimony by defendant. “The decision whether to testify, ultimately the defendant's decision, is an important strategic decision made by the defendant with the advice of counsel.” Commonwealth v. Waters, 399 Mass. 708, 716 (1987). The defendant argues that counsel, not he, determined that he would testify at trial. The appellate record on this point is thin: the motion judge made no findings, and the defendant has not provided us with anything other than his counsel's testimony. Thus, we cannot determine whether the defendant in fact argued this point in his motion for a new trial. See Commonwealth v. Adamides, 37 Mass.App.Ct. 339, 344–345 (1994). Even if the matter were properly presented to us, defense counsel's testimony at the motion hearing reflects a process of consultation with the defendant and does not compel the conclusion that he alone determined that the defendant would testify.
Trial counsel testified that he believed it was in the defendant's best interest to testify, that he consulted with the defendant, and that he did not force the defendant to testify.
7. Lesser included offense instructions. The defendant contends that counsel was ineffective because he did not move for instructions on rape as a lesser included offense of aggravated rape; kidnapping and assault as lesser included offenses of armed kidnapping with sexual assault; and assault as a lesser included offense of assault by means of a dangerous weapon.
Because the defendant's sole defense was consent, any alternative arguments “would likely have sapped the force of the defense” and would have been “tactically awkward.” Commonwealth v. Donlan, 436 Mass. 329, 333–334 (2002). See Commonwealth v. Roberts, 407 Mass. 731, 737–739 (1990). “The defendant wanted an acquittal, not a conviction of a lesser included crime. The instructions, now requested after the fact, might have undermined his tactical decision to seek an acquittal on the ground of [consent].” Id. at 739.
The appellate record does not disclose whether this claim was advanced in the defendant's motion for a new trial, and the judge did not make findings on whether trial counsel had a strategic reason for declining to request these instructions. See, e.g., Commonwealth v. Barbosa, 463 Mass. 116, 135 (2012). The defendant has not provided us with his motion for a new trial and the hearing on his motion for a new trial does not reveal testimony on the issue. We therefore treat this claim as one raised for the first time on appeal.
Duplicative convictions. The defendant contends that the aggravated kidnapping conviction, predicated on an indictment charging armed kidnapping with sexual assault, subsumed the aggravated rape and assault by means of a dangerous weapon convictions, which were predicated on kidnapping as the aggravating factor. He further contends that the multiple convictions violate double jeopardy because the defendant has been convicted based on a single continuous act, i.e., the kidnapping. See Commonwealth v. Vick, 454 Mass. 418, 431 (2009). The Commonwealth asserts that multiple convictions and sentences are permissible because the defendant committed multiple rapes. We use an elements-based approach to determine if the crimes are cognate offenses, and review the particulars the case to determine whether the basis of the convictions is comprised of single or multiple acts. Ibid.
1. Aggravated kidnapping and aggravated rape. The kidnapping indictment contains an element the aggravated rape indictments do not—the use of a dangerous weapon.
However, the aggravated rape charges do not contain an element that the kidnapping charge does not.
By statute, sexual assault is defined to include both rape and indecent assault and battery. G.L. c. 265, §§ 13H, 22, 26. However, the judge did not define sexual assault and referred only to rape in his instructions. We must therefore confine our analysis to the elements of the two crimes.
The only theory on which the defendant was indicted, the Commonwealth proceeded, and the judge instructed with regard to the aggravated rape was aggravation by kidnapping. Although the verdict slip does not specifically reflect that the rape conviction was aggravated by kidnapping, kidnapping was the only aggravating factor presented to the jury for their deliberation, and the jury therefore necessarily found that kidnapping was the aggravating factor. Contrast Commonwealth v. Dykens, 438 Mass. 827, 840–841 (2003) (no duplication where jury indicated on verdict slip that aggravated rape conviction based not only on kidnapping, but also joint venture and serious bodily injury); Commonwealth v. Wilcox, 72 Mass.App.Ct. 344, 347 (2008) (jury found three separate aggravating factors for rape: serious bodily injury, armed assault and battery, and kidnapping; thus aggravated rape did not subsume kidnapping charge). The aggravated kidnapping and one of the aggravated rape convictions would therefore be duplicative, see Commonwealth v. Letkowski, 83 Mass.App.Ct. 847, 858–859 (2013), unless they are based on discrete acts, or unless the Legislature has authorized cumulative punishments. See Commonwealth v. Vick, supra at 435.
The elements of aggravated kidnapping where rape is the aggravating factor, G.L. c. 265, § 26, third par., are: (1) without lawful authority, (2) the defendant did secretly confine or imprison another person, (3) against that person's will, (4) with intent to secretly confine or imprison that person, (5) while armed with a dangerous weapon, and (6) sexually assaults such person. See Commonwealth v. Rodriguez, 83 Mass.App.Ct. 267, 270 (2013). The elements of aggravated rape where kidnapping is the aggravating factor, G.L. c. 265, § 22( a ), are: (1) the defendant has sexual intercourse with a person, and (2) compels such person to submit by force and against his or her will, or (3) compels such person to submit by threat of bodily injury, and (4) commits the rape during the course of a kidnapping in violation of G.L. c. 265, § 26.
Here the evidence was of four distinct rapes occurring over a twelve-hour period of time. Smith testified that after the defendant abducted her, he told her to disrobe and forced her to perform oral sex. He then placed her on the bed, bound her with tape, and had sexual intercourse with her. He later unbound her, rebound her in a different position, and had sexual intercourse with her. He then went out, returned, and engaged in sexual intercourse a fourth time. Each of these acts, spread out over time, were not closely related in fact, and did not constitute a single crime. See Commonwealth v. Maldonado, 429 Mass. 502, 509 (1999). The single conviction of aggravated kidnapping (aggravated by one of the four rapes) and the two convictions of aggravated rape were therefore not duplicative. See Commonwealth v. Mamay, 407 Mass. 412, 418–419 (1990). Contrast Commonwealth v. Moran, 439 Mass. 482, 489 (2003); Commonwealth v. Suero, 465 Mass. 215, 218–219 (2013); Commonwealth v. Juzba, 46 Mass.App.Ct. 319, 325 (1999); Commonwealth v. Howze, 58 Mass.App.Ct. 147, 152–153 (2003); Commonwealth v. Berrios, 71 Mass.App.Ct. 750, 753–755 (2008).
The judge did not explicitly instruct the jury that they must find separate acts, and the defendant did not object to the failure to so instruct at trial. Likewise, appellate counsel does not argue any defect in the instructions. Given the clear evidence of distinct acts, the defendant's admission that he had sexual relations with Smith, and the prosecutor's summation, which distinguished between the indictments for unnatural and natural sexual intercourse, there was no question whether the evidence established separate and distinct acts, and little risk (much less a substantial risk) that the jury, having rejected the consent defense, convicted the defendant of multiple offenses based on the same conduct. See Commonwealth v. Mamay, supra at 418–419; Commonwealth v. Black, 50 Mass.App.Ct. 477, 479 (2000).
2. Aggravated kidnapping and assault by means of a dangerous weapon. The elements of assault by means of a dangerous weapon, G.L. c. 265, § 15B( b ), are (1) the defendant committed an assault upon another, and (2) committed the assault by means of a dangerous weapon. See Commonwealth v. Anderson, 461 Mass. 616, 633 (2012). By contrast, the elements of aggravated kidnapping, see note 16, supra, require that the defendant be armed. See G.L. c. 265, § 26, third par.; Commonwealth v. Rodriguez, 83 Mass.App.Ct. 267, 270 (2013). When an element of the crime is that the defendant be armed, “[a] defendant need not have used or displayed the dangerous weapon ... it is sufficient that the prosecutor prove that the [defendant] possessed the dangerous weapon.” Commonwealth v. Anderson, supra (conviction of armed robbery not duplicative of assault by means of dangerous weapon). Therefore, aggravated kidnapping has elements that assault by means of a dangerous weapon does not—that is, asportation and confinement, and assault by means of a dangerous weapon has a required element that aggravated kidnapping does not—that is, the actual use of the dangerous weapon. The two crimes are not duplicative. See ibid. See also Commonwealth v. Vick, 454 Mass. at 435.
Sentencing. 1. Mandatory minimum. Relying on Commonwealth v. Hines, 449 Mass. 183, 191–192 & n. 4 (2007), the defendant contends that the absence of the word “mandatory” in the sentencing provisions of G.L. c. 265, § 26, third par., means that trial counsel was ineffective in treating the statute's sentencing provisions as a mandatory minimum twenty-five years.
Although both the Commonwealth and the defendant presented this erroneous characterization of the sentencing provision to the trial judge, there is no evidence that the judge relied upon improper grounds in sentencing the defendant. Contrast Commonwealth v. Henriquez, 56 Mass.App.Ct. 775 (2002). The motion judge determined that counsel was not an effective advocate at sentencing, but that the trial judge was an experienced judge, and that after taking into account the factors relevant to sentencing, including the nature of the offense and the defendant's previous rape conviction, he had imposed the sentence of twenty-five to thirty years. We discern no error.
Because the holding in Commonwealth v. Hines, supra, cavsts into doubt the dicta in Commonwealth v. Wilcox, 72 Mass.App.Ct. at 349, describing the statutory sentence as a minimum mandatory sentence, we analyze the defendant's claim in accordance with Hines.
2. Kidnapping statute. The defendant contends that G.L. c. 265, § 26, third par., is invalid because it fails to contain an upper limit on the sentence, in violation of G.L. c. 279, § 24. “This argument is foreclosed by Commonwealth v. Logan, 367 Mass. 655, 657 (1975), in which the Supreme Judicial Court held that under a statute which sets only a minimum term, ‘the maximum sentence permitted by the Legislature is presumed to be a life term so that the sentence cannot be said to be vague or uncertain.’ “ Commonwealth v. Rodriguez, 83 Mass.App.Ct. at 273 n. 11.
Judgments affirmed.
Order denying motion for new trial affirmed.
Orders denying motions for required finding and relief from unlawful restraint affirmed.