Opinion
5-20-0407
09-14-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERAMEY R. BROWN, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Madison County. No. 01-CF-1062 Honorable Ronald R. Slemer, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court. Justices Barberis and Wharton concurred in the judgment.
ORDER
WELCH, JUSTICE
¶ 1 Held: Where the defendant did not satisfy the "cause" prong of the cause-and-prejudice test, the circuit court did not err in denying him leave to file a successive postconviction petition, and since any argument to the contrary would lack merit, the defendant's appointed counsel on appeal is granted leave to withdraw, and the judgment of the circuit court is affirmed.
¶ 2 Defendant, Jeramey R. Brown, appeals the circuit court's order denying his postconviction petition. The defendant's appointed attorney on appeal, the Office of the State Appellate Defender (OSAD), has concluded that this appeal lacks merit. Accordingly, OSAD has filed a motion to withdraw (see Pennsylvania v. Finley, 481 U.S. 551 (1987)) along with a brief in support of the motion. OSAD has provided the defendant with a copy of its Finley motion and brief. This court has provided defendant with the opportunity to file a written response, and he has done so. Having read OSAD's Finley motion and brief as well as defendant's response, and having examined the record on appeal, we conclude that this appeal does indeed lack merit. There is no potential ground for appeal. Accordingly, we grant OSAD leave to withdraw and affirm circuit court's judgment.
¶ 3 BACKGROUND
¶ 4 Following a jury trial in 2003, defendant was found guilty of first degree murder and sentenced to 75 years' imprisonment for the death of Michael Keller. On direct appeal, we reversed and remanded, finding that defendant was denied the effective assistance of counsel at trial. People v. Brown, 358 Ill.App.3d 580 (2005) (Brown I). The lead attorney for the State was Trent M. Marshall of the State's Attorney's Appellate Prosecutor.
¶ 5 Following remand, defendant was again convicted and again sentenced to 75 years' imprisonment. We affirmed after concluding that the evidence against defendant was "overwhelming." People v. Brown, 2012 IL App (5th) 080373-U (Brown II). Justice James Wexstten, who is now deceased, concurred in Brown II. Marshall was one of his law clerks at that time.
¶ 6 Defendant filed a petition for rehearing (PFR), which we denied on April 23, 2012. On April 25, 2012, attorney Steven Becker filed on defendant's behalf a motion seeking to file a new PFR alleging that the first petition had omitted a "critical legal issue." Upon discovering that the PFR had already been denied, defendant sought to vacate the affirmance and have the case reassigned to a different panel. He argued that "our decision in Brown II was void because Marshall was the lead staff attorney in Brown I and, therefore, Justice Wexstten was disqualified from hearing the appeal because Marshall was now his law clerk." People v. Brown, 2018 IL App (5th) 150150-U, ¶ 6 (Brown III).
¶ 7 After we denied defendant's motions and the supreme court denied his petition for a supervisory order, defendant filed a postconviction petition raising the alleged conflict of interest. The petition advanced to the second stage of review, where the State moved to dismiss it on the ground of res judicata. The circuit court granted the motion, finding that both this court and the supreme court had considered the issue.
¶ 8 On appeal, defendant argued that the appearance of a conflict created when Marshall clerked for a concurring justice in Brown II after having prosecuted Brown I required a new direct appeal. We agreed that defendant's petition made a substantial showing of a constitutional violation.
¶ 9 We did not find, however, that defendant was automatically entitled to relief. Rather, we remanded for a third-stage evidentiary hearing to decide whether Marshall actually participated in any way in Brown II. We instructed that, on remand, the circuit court would be
"limited to making findings as to whether an actual conflict occurred. It is possible Trent Marshall took no part in Brown II.
At this stage, we simply do not know whether Marshall was involved in Brown II or not. If Marshall was involved, we need to know the degree of his involvement and whether or not any conflict occurred as a result of his involvement." Brown III, 2018 IL App (5th) 150150-U, ¶¶ 29-30.
¶ 10 We directed that the circuit court's findings be conveyed to this court, which could then decide the appropriate course of action. Id. ¶ 31.
¶ 11 On remand, the trial court initially set the hearing for July 30, 2019. The State moved to continue, stating its belief that Becker intended to represent defendant in the proceedings. However, Becker never filed an appearance and the circuit court appointed Donna Polinske to represent defendant.
¶ 12 Polinske moved to continue, alleging that defendant "would like for [Becker] to represent him, if at all possible." Polinske also stated that defendant told her that he had previously spoken to her husband, Brian Polinske, about representing him. However, Brian said that he had a conflict of interest. Defendant told Donna Polinske the alleged conflict had something to do with Brian's previous work at the state's attorney's office. However, Brian had left that office before 2001, when defendant was charged in this case. The court granted the continuance, telling defendant that Becker could file an appearance on his behalf.
¶ 13 The hearing commenced on June 22, 2020, with Donna Polinske representing defendant. Marshall testified that he began clerking for the Fifth District in 2006 and currently worked for Justice David Overstreet. Before that, he worked for the State's Attorney's Appellate Prosecutor. In that role, he was lead counsel in Brown I.
¶ 14 He worked for Justice Wexstten from 2007 through 2015. During that time, he generally only worked on cases for which Wexstten was the author, although the justice occasionally asked him to comment on other cases, but Brown was not such a case. In fact, Marshall was not aware that defendant had filed a second appeal until defendant filed the PFR.
¶ 15 Marshall said that he first clerked for Justice Hopkins. At that time, the court put in place a procedure to ensure that any case in which Marshall had been involved would not be assigned to Justice Hopkins. Marshall speculated that defendant's case somehow "fell through the cracks." He had never talked to Justice Wexstten about defendant's case and had no reason to believe that Justice Wexstten even realized that Marshall was involved in defendant's first appeal until the PFR was filed. In fact, he had never spoken to anyone in the appellate courthouse about defendant's appeal.
¶ 16 After Marshall's direct examination, the circuit court allowed defendant and Polinske to confer privately. After the conference, Polinske said that defendant wanted to move for the judge to recuse himself. Defendant declined to confer with Polinske again. The judge denied the motion for recusal, finding that he could be fair and impartial, particularly given the limited scope of the hearing.
¶ 17 Defendant then said that he wanted to leave the hearing (which he was attending remotely). During Marshall's cross-examination, defendant switched off the video feed.
¶ 18 Based on the undisputed evidence, the circuit court found that Marshall had neither worked on Brown II nor discussed the case with Justice Wexstten. The court also observed that Marshall could not have done more to avoid the appearance of impropriety, given that he was not even aware Brown II was taking place until it was over.
¶ 19 Defendant filed a motion to reconsider. He alleged that he had not spoken with Donna Polinske until the hearing was called in March 2020. Until then, he believed that Becker represented him. He thought at some point he had contacted Brian Polinske who informed him that he had a conflict of interest. Defendant could not remember the precise nature of the conflict, but "it was possible Brian Polinske represented a State witness against" defendant.
¶ 20 The motion alleged that defendant was concerned because Donna Polinske was not "calling any witnesses." Further, following the March 2020 hearing, two correctional officers informed defendant that the judge presiding over the hearing hated him. They had overheard the judge telling the clerk and both counsel about "defendant's long history in the court and his lawsuits against the county."
¶ 21 The motion further alleged that defendant was brought into the video conference room "out of the blue" for the evidentiary hearing on June 22, 2020. Following Marshall's direct examination, when defendant conferred with counsel, Polinske told him, "You heard Trent Marshall's testimony. I don't think we have a case!" Defendant told her she should have contacted and called as witnesses other law clerks and Justice Wexstten himself. Defendant was angry that Ms. Polinske did not call witnesses, did not object to the denial of recusal, did not object to the hearing being done by video, and did not bring up "the Steven W. Becker issue in open court!"
¶ 22 At some point, Brian Polinske submitted an affidavit averring that he was not employed by the state's attorney's office in 2001; was never involved in defendant's criminal cases; to the best of his knowledge, had never represented any witness in defendant's case; and did not recall having any contact with defendant.
¶ 23 The circuit court denied the motion to reconsider. The court found no evidence that defendant ever hired Becker, who never filed an appearance. The court stated that it was not aware of any conflict created by Brian and Donna Polinske's relationship, quoting Brian Polinske's affidavit. Regarding the motion for recusal, the court noted that while defendant had not provided any details in open court about his allegation of bias, the motion to reconsider "provides elaborate details that did not happen." The order cited a letter in the record from defendant to Judge Hackett on November 1, 2007, in which defendant accused Hackett of making comments that "reflect[ed] on your disdain for the appellate court decision that reversed my conviction." The court noted "defendant's recurring theme in criticizing judges that do not agree with him." Finding the motion "built on conjecture, speculation, and false statements," the court denied it. Defendant appeals.
¶ 24 ANALYSIS
¶ 25 OSAD contends that, given the limited nature of the issue following remand and Marshall's unequivocal testimony that he was not even aware that defendant had filed a second appeal until after it was decided, defendant could raise no issue of even arguable merit in this appeal. We agree.
¶ 26 OSAD first suggests that defendant could not successfully argue that the trial court erred in finding that Marshall took no part in Brown II. The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated at his trial or sentencing. People v. Pitsonbarger, 205 Ill.2d 444, 455 (2002). A postconviction proceeding allows inquiry only into constitutional issues that were not, and could not have been, adjudicated on direct appeal. People v. Pabello, 2019 IL App (2d) 170867, ¶¶ 19-20. The Act establishes a three-stage process for the adjudication of a postconviction petition. Id. If a petition is not summarily dismissed at the first stage, it advances to the second stage, where an indigent petitioner can obtain appointed counsel and the State can move to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2018). If the defendant makes a substantial showing of a constitutional violation, the petition advances to the third stage, where the trial court conducts an evidentiary hearing. Id. § 122-6.
¶ 27 In Brown III, we directed the circuit court to conduct a third-stage evidentiary hearing to decide whether Marshall was involved in Brown II and, if so, whether his involvement created an actual conflict of interest. Brown III, 2018 IL App (5th) 150150-U, ¶¶ 29-31. The circuit court conducted the required hearing. The only witness was Marshall. He testified unequivocally that he did not participate in Brown II. Indeed, he was unaware of it until Becker filed the PFR. Marshall further testified that he did not discuss the case with Justice Wexstten or anyone else connected with the Fifth District and, indeed, he rarely had any involvement in cases in which Justice Wexstten was not the author. In light of this uncontradicted testimony, it would be frivolous to contend that the circuit court's finding that Marshall was not involved in Brown II was erroneous.
¶ 28 The second potential issue OSAD identifies is whether Donna Polinske provided reasonable assistance." 'An indigent defendant is entitled to appointed counsel in postconviction proceedings if the petition is not summarily dismissed as frivolous or patently without merit.'" People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 32 (quoting People v. Lander, 215 Ill.2d 577, 583 (2005)). However, because the right to counsel in such a case is wholly statutory, a defendant is entitled only to the level of assistance mandated by the Act, which has been defined as a" 'reasonable' level of assistance." Id.
¶ 29 Although Illinois Supreme Court Rule 651(c) (eff. July 1, 2017) generally governs postconviction counsels' conduct, courts have held that the rule does not apply at the third stage of postconviction proceedings. People v. Pabello, 2019 IL App (2d) 170867, ¶¶ 27-28 (citing People v. Marshall, 375 Ill.App.3d 670, 681-83 (2007)). Instead, because a third-stage hearing resembles a trial, courts have applied a version of the familiar Strickland test that governs trials and direct appeals. People v. Watson, 2022 IL App (5th) 190427, ¶¶ 47-48 (citing Strickland v. Washington, 466 U.S. 668 (1984); Hotwagner, 2015 IL App (5th) 130525, ¶ 37).
¶ 30 Given the proceeding's limited purpose and Marshall's unequivocal testimony that he did not even know about the second appeal until it was over, it is difficult to see what more Polinske could have done. In his motion to reconsider, defendant suggested that she could have called additional witnesses, including Justice Wexstten himself. However, defendant did not suggest what these witnesses might have testified to, much less include affidavits from any proposed witnesses. See 725 ILCS 5/122-2 (West 2018) ("The petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached."). In any event, decisions about whether to call certain witnesses are matters of trial strategy left to counsel's discretion. Watson, 2022 IL App (5th) 190427, ¶ 50; Hotwagner, 2015 IL App (5th) 130525, ¶ 48. Moreover, postconviction counsel has no obligation to locate witnesses that a defendant does not specifically identify or to conduct an investigation to discover witnesses who might provide evidence to support a postconviction claim. People v. Johnson, 154 Ill.2d 227, 247-48 (1993).
¶ 31 The third potential issue is whether the judge abused his discretion in refusing to recuse himself. "Judges, of course, are presumed impartial, and the burden of overcoming the presumption by showing prejudicial trial conduct or personal bias rests on the party making the charge." In re Marriage of O'Brien, 2011 IL 109039, ¶ 31. The trial judge is in the best position to decide whether he or she is prejudiced against the defendant. People v. Kliner, 185 Ill.2d 81, 169 (1998). The trial judge's decision will not be reversed absent an abuse of discretion. Id.
¶ 32 We note that defendant did not raise the issue of recusal until after Marshall's direct testimony, by which time a decision adverse to defendant seemed likely. And despite being given an opportunity to do so, defendant provided no concrete facts behind his assertion that the judge was biased. He provided somewhat more detail in the motion to reconsider, alleging that he overheard two named corrections officers discussing the judge's negative feelings toward defendant. However, defendant did not provide affidavits from these individuals or indicate that they would even be willing to testify about the matter. In any event, even assuming the truth of defendant's allegations, the judge was in the best position to decide his impartiality (id.) and he stated unequivocally that he could be fair.
¶ 33 The final potential issue is whether the trial court erred by relying on Brian Polinske's affidavit. As OSAD points out, it is unclear how the affidavit came to be in the court file, but the court mentioned it in finding that Donna Polinske did not have a conflict of interest. Rather than belabor the issue, we hold that any error in considering the affidavit was harmless.
¶ 34 Defendant never alleged any specific facts to show that Brian Polinske had a conflict of interest or that any such conflict should be attributed to his wife. Defendant's claim was based on a vague recollection that Brian Polinske had worked for the state's attorney's office at some previous time or may have represented a witness against defendant. See generally People v. Yost, 2021 IL 126187, ¶ 66 (per se conflict of interest exists where defense counsel (1) has a contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; (2) contemporaneously represents a prosecution witness; or (3) was a former prosecutor who was personally involved in the prosecution of the defendant). If an alleged conflict of interest does not fit into one of these per se conflict categories, a defendant may still assert a claim of actual conflict of interest. Id. Defendant did not allege specific facts to show that any of the three categories applied to Brian Polinske who, in any event, never represented him. He certainly alleged no facts to show that any such conflict could be attributed to his wife. Finally, he did not allege any facts to show that Donna Polinske had an actual conflict of interest. Thus, defendant never made an adequate initial showing that either Polinske had a conflict of interest, so that even if the court somehow erred by considering Brian Polinske's affidavit, any error was harmless.
¶ 35 In his response, defendant argues that the issues OSAD identifies do indeed have merit but adds little of substance to the discussion other than his opinion that OSAD's appraisal of the merits is wrong. Thus, what we have already said largely disposes of defendant's contentions, but we will elaborate briefly on certain points.
¶ 36 Defendant takes issue with OSAD's conclusion that no arguably meritorious argument exists that the circuit court's decision finding that Marshall had no part in Brown II and, accordingly, dismissing the petition, was erroneous. Defendant concedes however, that given "Marshall's sole unrebutted testimony, that there was a free clear path to dismissing [defendant's] petition. When this is the only evidence presented and it goes untouched, the court should dismiss the petition." But defendant argues that, regardless of Marshall's testimony, the appearance of impropriety still existed.
¶ 37 We rejected in Brown III the argument that the mere fact that a justice for whom Marshall worked concurred in the judgment in Brown II created an appearance of impropriety sufficient to undermine confidence in the outcome. By ordering a remand, we clearly determined that a new hearing was warranted only if Marshall participated in the prior appeal, and we will not revisit that holding here. See Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8 (law of the case doctrine bars relitigation of an issue previously decided in the same case).
¶ 38 Defendant contends that there is a meritorious argument that Polinske failed to provide reasonable assistance. As noted, Supreme Court Rule 651(c) does not apply at the third stage of postconviction proceedings. Instead, courts have used a modified version of the Strickland test to evaluate attorney performance in such proceedings. To succeed on a claim of ineffective assistance under Strickland, a defendant must establish that (1) trial counsel's performance was objectively unreasonable and (2) the defendant was prejudiced by counsel's deficient performance, in that there is a reasonable probability that, but for the deficiency, the result of the proceedings would have been different. People v. Ramirez, 2018 IL App (1st) 152125, ¶ 15 (citing Strickland, 466 U.S. at 687).
¶ 39 Defendant asserts that Polinske was unprepared and was relatively inexperienced in criminal matters. He apparently bases the latter conclusion on a single online review from a client in a matter completely unrelated to defendant's case. What defendant does not do is identify any mistakes by Polinske that likely affected the proceeding's outcome. As defendant himself concedes, this case was remanded for a single purpose and involved the testimony of a single witness about matters uniquely within his personal knowledge.
¶ 40 Defendant's chief complaints against Polinske appear to be that she did not more vigorously pursue a motion to disqualify the trial judge and did not find witnesses who would contradict Marshall's testimony. As to the former claim, he disputes at some length OSAD's characterization that he refused to present evidence at the hearing when given the chance to do so. He intimates that he communicated the names of his potential witnesses to Polinske privately and, although she orally moved for the judge to recuse himself, she failed to call any witnesses or otherwise support the motion.
¶ 41 An attorney's decision whether to file a motion is as a matter of trial strategy to which we typically defer. People v. Bryant, 128 Ill.2d 448, 458 (1989). And decisions about whether to call certain witnesses are also strategic ones left to counsel's discretion. Watson, 2022 IL App (5th) 190427, ¶ 50; Hotwagner, 2015 IL App (5th) 130525, ¶ 48.
¶ 42 Defendant did spell out his allegations in more detail in the motion to reconsider. The court found that the allegations in the motion "didn't happen." Despite numerous opportunities to do so, defendant has not provided any affidavits or other evidence that would call that conclusion into question.
¶ 43 As to the second contention, that Polinske did not find any witnesses to contradict Marshall, that obligation belonged to defendant. A postconviction petition must be supported by " 'affidavits, records, or other evidence.'" People v. Collins, 202 Ill.2d 59, 65 (2002) (quoting 725 ILCS 5/122-2 (West 2000)). If such documentation is unavailable, the petition must explain why. Id. The failure to either attach the necessary evidence or explain its absence is fatal to a postconviction petition. Id. And, as noted, postconviction counsel has no obligation to locate witnesses that a defendant does not specifically identify or to conduct an investigation to discover witnesses who might provide evidence to support a postconviction claim. Johnson, 154 Ill.2d at 247-48.
¶ 44 Defendant's real complaint about Polinske seems to be that she was not Steven Becker. Defendant insists that he believed up until the morning of the hearing that Becker was going to represent him, but he provides no rational basis for that belief. The constitutional right to appointed counsel does not allow an indigent defendant to pick his appointed counsel. People v. Adams, 195 Ill.App.3d 870, 872 (1990). When Polinske appeared at the March hearing, defendant knew that Becker was not representing him. At that point, he could have discharged Polinske and tried to hire (or rehire) Becker if he wanted, and Polinske obtained a continuance on his behalf for that express purpose. Yet, despite the additional time, Becker never filed an appearance. Thus, we presume that either defendant did not contact him or, if he did, Becker declined the representation. In any event, defendant presents no evidence that Becker was ready, willing, and able to represent him but was prevented from doing so.
¶ 45 Defendant contends that a nonfrivolous argument can be made that the circuit judge erred in denying the motion to recuse himself. As noted, the trial judge is in the best position to decide whether he or she is prejudiced against the defendant. Kliner, 185 Ill.2d at 169. The judge found that he could be fair, and defendant has presented no evidence to the contrary.
¶ 46 Defendant asserts that he has a meritorious argument that the court erred by considering Brian Polinske's affidavit. Defendant's claim is based on his recollection that Brian Polinske had worked for the state's attorney's office at some previous time or may have represented a witness against defendant. The only per se conflicts of interest occur where counsel (1) has a contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution; (2) contemporaneously represents a prosecution witness; or (3) was a former prosecutor who was personally involved in the prosecution of the defendant. Yost, 2021 IL 126187, ¶ 66. Defendant has not alleged any of these things. Therefore, Brian Polinske did not have a conflict of interest, and, in any event, Brian Polinske never represented defendant at any time. Had the court not considered his affidavit, it would have reached the same conclusion, so any arguable error in having done so was harmless.
¶ 47 Defendant raises several additional issues. He argues that the court erred by requiring him to attend the hearing remotely without first obtaining his permission. Defendant's argument is based on a misreading of People v. Stroud, 208 Ill.2d 398 (2004). There, the supreme court held that a defendant's physical presence at a guilty plea hearing is constitutionally required unless he or she consents to having the plea taken by closed-circuit television. Id. at 413. However, the court's ruling was based on the outcome-determinative nature of a guilty plea. Id. at 406 (a guilty plea "supplies both evidence and verdict, ending controversy" (internal quotation marks omitted)). Stroud carefully distinguished People v. Lindsey, 201 Ill.2d 45 (2002). There, the court found no indication that the defendant's physical absence from the courtroom contributed to the unfairness of the proceedings or caused him to be denied any underlying constitutional right. Id. at 58. The court noted that the defendant did not allege any specific reason why his physical presence was necessary. Id.
¶ 48 The present case more closely resembles Lindsey. It did not involve a guilty plea. Defendant's guilt had already been determined. We remanded the matter for a very limited purpose: to take evidence on a question about which defendant would not be expected to have personal knowledge. Defendant does not postulate any reason why his physical presence in the courtroom was required. Indeed, after the petition was filed, the circuit court granted defendant's motion not to personally attend all hearings unless he requested to be present. So far as the record shows, defendant never requested to be physically present for the evidentiary hearing. Thus, the circuit court was not required to secure defendant's waiver before proceeding without defendant's physical presence in the courtroom.
¶ 49 Defendant also attempts to argue additional claims raised in his postconviction petition but not raised in the (initial) appeal. The petition included claims that the State had monitored defendant's telephone conversations in the jail, presented perjured testimony, prevented potential defense witnesses from testifying, and withheld potentially exculpatory evidence. The trial court noted that defendant knew about these issues before his second trial but did not raise them there or in the second appeal. Therefore, they were either forfeited or barred by res judicata. See People v. English, 2013 IL 112890, ¶ 22 (issues in postconviction petition that were raised and decided on direct appeal are barred by res judicata, and issues that could have been raised on direct appeal, but were not, are forfeited). Moreover, they were not supported by any substantial evidence. The court therefore dismissed them and counsel in Brown III did not argue that their dismissal was erroneous. See People v. Easley, 192 Ill.2d 307, 329 (2000) (appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong).
¶ 50 We ordered a remand for an extremely limited purpose: to decide whether Marshall participated in our decision in Brown II. In doing so, we authorized another appeal for the sole purpose of bringing the circuit court's findings before us. Brown III, 2018 IL App (5th) 150150-U, ¶ 31. A reviewing court's mandate vests a circuit court with jurisdiction only to take action that complies with the mandate. In re Marriage of Jones, 2019 IL App (5th) 180388, ¶ 23. Because the circuit court has no authority to act beyond the dictates of the appellate court's mandate, the only proper issue in this appeal is whether the circuit court's order complied with the mandate. Id. We agree with OSAD that it did.
¶ 51 CONCLUSION
¶ 52 For the foregoing reasons, OSAD's Finley motion is granted, and the judgment of the circuit court is affirmed.
¶ 53 Motion granted; judgment affirmed.