Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD220618, Margie G. Woods, Judge.
HALLER, J.
A jury found Archie Hurn guilty of grand theft of personal property, unlawful taking of a vehicle, and receiving stolen property. Hurn admitted several alleged enhancements, including a strike prior, one prison prior, and a prior vehicle theft conviction. (Pen. Code, §§ 667, subds. (b)-(i), 667.5, subd. (b), 666.5, subd. (a).) At a contested bench hearing, the court found a second alleged prison prior to be true. The court denied Hurn's motion to dismiss the prior strike, and imposed a sentence of nine years eight months.
Hurn contends the court erred in refusing to instruct the jury on prosecutorial misconduct and in precluding Hurn from arguing prosecutorial misconduct during closing statements. Hurn claims prosecutorial misconduct occurred because a paralegal from the district attorney's office attempted to elicit false testimony from a witness who testified at trial. However, the court found the evidence did not support this claim and there was no prosecutorial misconduct as a matter of law. The court's determination was supported by the record. Accordingly, we conclude the court properly rejected the proposed instruction and restricted argument on the prosecutorial misconduct issue.
We further conclude the court did not abuse its discretion in refusing to strike the prior strike. We affirm the judgment.
FACTUAL SUMMARY
Hurn was tried jointly with codefendant Timothy Goosby. The charged crimes arose from incidents occurring on May 10, 2009. First, at about 4:00 a.m., two men wearing dark hooded sweatshirts and dark pants broke into a gas station mini-mart, where they stole beer and cigarettes. About one hour later, Hurn and Goosby drove in a stolen truck to another gas station where they used the truck to ram into, and then dislodge, an automated teller machine (ATM) which they placed inside the bed of the truck.
A gas station cashier employee, Jonalyn Soriano Reid, who was in a small booth about 12 feet from the ATM, witnessed the incident and called 911. The two men were wearing dark hooded sweatshirts and had handkerchiefs over their faces. A police officer, who happened to be sitting in his vehicle near the gas station, saw the two men lifting the ATM on the back of the stolen truck and leave the gas station. The police officer immediately pursued the truck. After a brief high-speed chase, defendants pulled into a motel parking lot, exited the truck, and attempted to run away. The police officer followed Goosby and arrested him.
Meanwhile, Michael Phillips, a guest at the motel, saw Hurn placing rolled-up clothing underneath Phillips's vehicle. Hurn was wearing a tank top and dark pants, and was bleeding. Hurn said he had been in a car accident and needed to wash up. Hurn was breathing heavily and appeared scared and sweaty. Hurn offered Phillips money to get into Phillips's room, but Phillips refused. Instead, Phillips told Hurn to wait while Phillips got him a towel.
While Phillips was walking back to his room, Phillips saw Hurn hiding more items under a stairway. Phillips then saw several police officers and told them about Hurn. When the officers began approaching Hurn, Hurn walked away. The officers told Hurn to stop, but when Hurn continued to walk away quickly, the officers forced him to the ground.
Officers found dark blue pants and a wire underneath Phillips's car. They also found a black and gray hooded sweatshirt in the bushes. The major DNA found on the pants and predominant DNA found on the sweatshirt belonged to Hurn, indicating Hurn was the strongest contributor of DNA to both items of clothing.
In the bed of the abandoned truck involved in the high-speed chase, officers found the stolen goods from the first mini-mart theft and the ATM from the second incident. Reid (the gas station employee who had been standing in the booth close to the stolen ATM) identified both Hurn and Goosby at a curbside lineup shortly after defendants were arrested. She appeared confident that they were the perpetrators of the crime.
The next day, the investigating detective, Gregory Olson, spoke with Reid by telephone. Reid sounded "very nervous" and said she did not want to testify. But Reid reiterated that the men at the curbside lineup were the perpetrators of the crime. Reid told Olson that the men were wearing bandanas, but when they were trying to lift the ATM, the bandanas came off and she was able to see their faces. When Olson said he was going to put this information in the police report, Reid "said yes." Olson testified about this conversation at trial.
At trial, Reid again identified defendants as the perpetrators, and reconfirmed she had identified these same individuals at the curbside lineup. But she denied she saw the perpetrators' faces during the incident and denied that the handkerchiefs slipped down during the crime. Reid said she could not see the men's faces, but she could see their skin color and what they were wearing. She said her identification was based primarily on the defendants' skin color and their body build.
As discussed in more detail below, during her testimony, Reid mentioned she had a conversation with a paralegal before trial. Defense counsel thereafter questioned Reid about this conversation outside the presence of the jury, and then further cross-examined Reid on this subject before the jury. Based primarily on one statement that Reid made outside the presence of the jury which suggested that before the preliminary hearing a paralegal told her to testify that the bandanas fell down, defense counsel sought a mistrial, requested jury instructions on prosecutorial misconduct, and requested permission to argue prosecutorial misconduct during closing statements. The court denied these motions and requests.
The jury found Hurn guilty of grand theft of personal property, unlawful taking of a vehicle, and receiving stolen property. The jury acquitted Hurn of burglary (pertaining to the items taken from the first gas station mini-mart) and receiving a stolen vehicle.
DISCUSSION
I. Appellate Contentions Relating to Testimony of Witness Reid
Hurn argues the court violated his due process rights by limiting his counsel's closing argument and refusing his proffered jury instructions concerning prosecutorial misconduct. In addressing these issues, we first detail the circumstances underlying the claimed prosecutorial misconduct, and then examine each contention under the applicable legal principles.
A. Relevant Factual Background
The alleged prosecutorial misconduct concerned witness Reid. Reid gave her testimony through a Tagalog interpreter, even though she could speak and understand some English, which sometimes resulted in overlapping responses and collateral dialogue involving the interpreter. Additionally, Reid was a highly reluctant and nervous witness, whose translated statements were frequently inconsistent and/or grammatically confusing.
During direct examination, the prosecutor asked Reid whether the perpetrators' handkerchiefs fell down during the crime. Reid denied this had occurred. The prosecutor then asked whether Reid had told Detective Olson that the handkerchiefs had "slipped below the individuals' chin." Reid responded: "I did not say that. I remember the paralegal asking me if the handkerchief dropped. [¶] But I said I didn't — like what I said, I was asked by the paralegal if there was a time when this handkerchief dropped and I did not say no because I told her that I'm scared to witness."
Outside the presence of the jury, Hurn's counsel expressed concern about Reid's reference to a conversation with a paralegal, noting that he had no discovery reflecting this conversation. The prosecutor responded she was also surprised by the reference to a discussion with a paralegal. The court agreed to permit defense counsel to question Reid outside the presence of the jury.
During this questioning, Reid indicated she had a phone conversation with a paralegal from the district attorney's office before her preliminary hearing testimony. Reid said she told the paralegal that she was "scared to go to the court because I might see the relatives [of the defendants]. I asked if I could wear a mask. And I told them that I don't want to go to the court. Besides, they were already arrested, those who were carrying the ATM machine." Reid said the paralegal "told me to go because I'm the only witness." Reid also said she did not tell the paralegal that the handkerchiefs had dropped.
During follow-up questioning, Hurn's counsel asked: "You told us that when you talked to [the paralegal] on the telephone that you discussed with her what happened on the day that you were at the gas station, right?" Reid responded: "At first I told her that I was scared. But... she told me that you need to go there to testify. And I told her that — why do I need to go there? They were already arrested. And she told me you need to go there to testify that the handkerchief was dropped. And I told... her that there is no need because they were already arrested and they were caught carrying the ATM machine. And one more. I'm the only one — I'm the only witness, so I need to go to the court." (Italics added.) In response to the prosecutor's question, Reid clarified that the paralegal told her to tell the truth in the proceeding.
When defense counsel expressed concern about the issue whether the district attorney's office attempted to improperly influence Reid's testimony, the court directed the prosecutor to determine the identity of the paralegal and the existence of any conversations between this paralegal and Reid.
During the lunch break, a district attorney investigator met with the paralegal assigned to the case during the preliminary hearing proceedings (Tamara Carver), and prepared a report of this meeting. The report indicated that Carver spoke with Reid on the telephone in May 2009 to schedule her preliminary hearing testimony. The report also noted that Carver sent an email to the deputy district attorney before the preliminary hearing, in which Carver told the deputy district attorney that Reid is "uncooperative" and was afraid to testify.
After the report was distributed to court and counsel, Hurn's counsel requested that the court order disclosure of the emails between the paralegal and deputy district attorney concerning witness Reid. After an in camera review of the material, the court declined to order disclosure, concluding most statements were contained in the investigator's report and the remaining statements were protected work product. The court also noted that to the extent defense counsel believed there might have been conversations between Reid and the deputy district attorney or her paralegal, counsel was entitled to fully explore this issue during cross-examination of Reid.
Hurn's counsel then moved for a mistrial based on Reid's statements outside the presence of the jury that the paralegal told her "you need to go there to testify that the handkerchief was dropped." The court denied the mistrial motion, concluding that this issue was "ancillary" to the disputed issues and could be addressed at the conclusion of the trial. The court further noted that "both sides have still the opportunity to call witnesses and subpoena witnesses to present evidence... relevant to the charges against Mr. Goosby and Mr. Hurn. And that may include statements [between Carver and Reid]."
Defense counsel then continued their cross-examinations of Reid before the jury. During this questioning, Reid was asked whether she saw the men's faces while she was looking outside the cashier's booth, and Reid responded: "Like what I said. The faces were covered by the handkerchiefs. That's why I couldn't see them." (Italics added.) Reid also agreed there was "never a time" when a handkerchief "was falling off" their faces, and that she had told "the paralegal" that the handkerchief never dropped.
Hurn's counsel then repeatedly attempted to have Reid repeat her earlier statement made outside the presence of the jury that the paralegal told her to testify that the perpetrators' handkerchiefs fell down during the incident. In confusing and contradictory testimony, Reid sometimes adhered to her earlier testimony that the paralegal had said that the handkerchiefs fell down, but at other times she denied that the paralegal had told her to testify about the handkerchiefs. But Reid made clear that the paralegal did "not tell me what I should say." In response to defense counsel's continued questioning, Reid expressed substantial frustration and sought to clarify her earlier statements: "I told [the paralegal] I don't want to go [to court]. I'm frightened. Then she told me you have to go. Because she said that the handkerchief dropped from their face and I responded I did not see it. Their faces were covered with the handkerchief. That's it."
Later during the trial, paralegal Carver testified she did not recall any conversation with Reid, but her standard practice is not to discuss any facts with the witnesses and to refer witnesses to the prosecutor if they wish to speak about the facts of the case.
After the prosecution rested, Hurn's counsel asked the court to permit him to introduce a transcript of Reid's earlier testimony outside the presence of the jury, stating this transcript shows that "agents of the prosecution have suborned perjury in the case." The court rejected this interpretation of the evidence, noting the facts showed the paralegal responsible for scheduling testimony at the preliminary examination had mentioned the issue of the handkerchiefs falling down based on Reid's earlier statements to the investigating detective, and Reid now denied that this had occurred. Reid testified consistent with her new version of the events at the preliminary hearing and at trial (testimony that was highly beneficial to defendants because it cast substantial doubt on Reid's ability to identify defendants). The court found these circumstances did not show prosecutorial misconduct or warrant the introduction of the transcript.
After defense counsel stated they would not be presenting any additional evidence, Hurn's counsel reasserted his mistrial motion on the basis of prosecutorial misconduct. The court reiterated its conclusion that the evidence did not show prosecutorial misconduct. The court also noted that because Reid absolutely refused to accept the paralegal's version of the events, "the state of the case has not been affected by any kind of conduct that may be perceived taking place by Ms. Carver...."
Hurn's counsel then requested the court give the following instruction: "You have heard evidence that an agent of the prosecution told a witness to say something untrue about an important issue in this case. Such conduct is itself a crime and highly improper. If you find that this conduct occurred you should view all of the prosecution's evidence with great caution. If you find that the prosecution's conduct was extreme and outrageous that fact alone can support acquittal."
The court refused to give the instruction finding it an improper statement of the law as applied to the facts. The court also ruled defense counsel were prohibited from arguing prosecutorial misconduct, including that Reid's identification of the defendants should be viewed with caution based on the phone conversation between the paralegal and Reid. The court emphasized that allowing defense counsel to raise these issues could substantially confuse and mislead the jury into determining the precise nature of the paralegal's telephone conversation, rather than focusing on whether the prosecution met its burden to prove the elements of the charged offenses. The court stated counsel could attack Reid's credibility on any ground supported by the evidence, but could not do so based on allegations that the paralegal committed misconduct during the phone conversation.
B. Court's Ruling Regarding Closing Argument Was Proper
Hurn contends the court violated his constitutional rights by refusing to permit his counsel to assert a prosecutorial misconduct theory during closing arguments.
A criminal defendant has a constitutional right to have counsel present closing argument to the jury. (People v. Benavides (2005) 35 Cal.4th 69, 110; People v. Marshall (1996) 13 Cal.4th 799, 854.) "This right is not unbounded, however; the trial court retains discretion... to ensure that argument does not stray unduly from the mark." (People v. Marshall, supra, 13 Cal.4th at pp. 854-855.) Thus, a trial court may preclude argument with respect to facts not in evidence or with respect to conclusions that cannot be reasonably inferred from the evidence. (See People v. Boyette (2002) 29 Cal.4th 381, 463-464.) The trial court may properly restrict defense counsel from introducing factually unsupported theories during closing argument, particularly where the theories would tend to confuse or mislead the jury. (See People v. Modesto (1967) 66 Cal.2d 695, 707-708; People v. Ponce (1996) 44 Cal.App.4th 1380, 1388.) We apply an abuse of discretion standard in reviewing a court's rulings regarding the scope of closing argument.
Under these principles, we conclude the court did not abuse its discretion. First, the record supports the court's conclusion that the paralegal never told Reid to testify untruthfully or made an attempt to improperly direct her testimony. When the paralegal called the witness to schedule Reid's testimony, the paralegal was aware of Reid's earlier statement to Detective Olson (reflected in the police report) that Reid saw defendants' faces because their handkerchiefs came down while they were lifting the ATM. According to Reid, the paralegal mentioned these prior statements in response to Reid's assertions that she did not want to testify. Reid responded that she would not testify to these facts and it was her current belief that the handkerchiefs never came down.
Hurn argues that although this may be one version of the evidence, he was entitled to argue to the jury a different interpretation — that the paralegal was attempting to suborn perjury, i.e., that the paralegal was telling Reid to lie. However, the issue whether there was prosecutorial misconduct is generally one for the court and not the jury. Moreover, based on the totality of the circumstances, we agree with the trial court's conclusion that Hurn's version was unreasonable and wholly unsupported by the evidence. Although when taken out of context, the one statement Reid made outside the presence of the jury ("she told me you need to go there to testify that the handkerchief was dropped") could be construed as an attempt to direct the substance of the witness's testimony, this conclusion is not reasonable when the statement is viewed in the context of the entire record, including the totality of Reid's statements on direct and cross-examination, the paralegal's testimony, and the investigating officer's testimony and report. Reid confirmed that the paralegal told her to testify truthfully and did not tell her what to say. The only reasonable inference is that the paralegal was repeating the information in the police report, rather than suggesting that Reid should testify in an untruthful manner.
Hurn contends the court erred in restricting him from arguing the jury should view Reid's testimony with caution based on the paralegal's statements during the telephone conversation. However, Hurn does not identify any logical link between the paralegal's statements and Reid's credibility. If Reid had testified consistent with the paralegal's statements about the events (that the handkerchiefs did fall down), the conversation between Reid and the paralegal would be arguably relevant to impeach Reid's credibility, i.e., that Reid's testimony was based on the paralegal's suggestions rather than Reid's true memory of the events. But Reid refused to accept the paralegal's version of the incident, and instead adhered to her new story that the bandanas had not fallen down.
Hurn posits that the paralegal's reference to Reid's earlier statements to the investigator could have improperly "influenced" Reid "to stick" by her initial identification of the defendants. However, Hurn never asserted this ground to the trial court in the proceedings below and there is no evidence to support this speculative assertion.
Finally, Hurn's reliance on People v. Kasim (1997) 56 Cal.App.4th 1360 is misplaced. In Kasim, this court found a prosecutor committed misconduct because he knew or should have known prosecution witnesses testified falsely that they had not received any benefits for their testimony. (Id. at pp. 1384-1387.) We fully agree that it is misconduct for a prosecutor to intentionally elicit inadmissible or false testimony, and a prosecutor has an obligation to correct testimony that the prosecutor knows or should know is false. (Ibid.) But these principles are inapplicable here. There is no evidence that witness Reid committed perjury or that the prosecutor or the paralegal knew or should have known of any false testimony by Reid or any other witness.
The court allowed defense counsel to question Reid and the paralegal at length about their conversation, but these responses did not elicit evidence that the paralegal acted improperly or any other evidence relevant to the elements of the crime or to the credibility of the witnesses. On this record, the court did not err in precluding counsel from arguing prosecutorial misconduct during closing argument.
C. There Was No Instructional Error
Hurn alternatively contends the court erred in refusing to give the following pinpoint instruction: "You have heard evidence that an agent of the prosecution told a witness to say something untrue about an important issue in this case. Such conduct is itself a crime and highly improper. If you find that this conduct occurred you should view all of the prosecution's evidence with great caution. If you find that the prosecution's conduct was extreme and outrageous that fact alone can support acquittal."
A pinpoint instruction relates particular facts to a legal issue in the case. (See People v. Ward (2005) 36 Cal.4th 186, 214.) Pinpoint instructions must be given on request only when there is substantial evidence to support them and they are not argumentative or duplicative. (People v. Stanley (2006) 39 Cal.4th 913, 946; People v. Marshall (1997) 15 Cal.4th 1, 39.)
The court did not err in refusing to instruct on prosecutorial misconduct. As we have explained, the trial court properly found there was no evidence of prosecutorial misconduct in the case. Thus, no instructions on prosecutorial misconduct were justified. Moreover, the instruction was not legally correct because there was no ground for an acquittal based on the paralegal's statements. In support for the proposed instruction, Hurn relies on Rochin v. California (1952) 342 U.S. 165 (Rochin)and Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow). Those cases are inapposite.
In Rochin, three deputy sheriffs entered the defendant's residence without a warrant, and when they saw the defendant grab two capsules from his night stand and put them in his mouth, they jumped on the defendant and attempted to retrieve the capsules. (Rochin, supra, 342 U.S. at p. 166.) When they were unsuccessful, they forcibly took the defendant to the hospital and had his stomach pumped against his will. (Ibid.) The court reversed the conviction, concluding that the capsules, which constituted the "chief evidence against" the defendant, were "obtained by methods that offend the Due Process Clause." (Id. at pp. 166, 174.) The court later explained that it "set aside the conviction [in Rochin ] because [the] conduct 'shocked the conscience' and was so 'brutal' and 'offensive' that it did not comport with traditional ideas of fair play and decency." (Breithaupt v. Abram (1957) 352 U.S. 432, 435.)
In Morrow, the prosecutor directed an investigator to eavesdrop on defendant's conversation with his attorney in the courtroom and the prosecutor "acquire[d] confidential information" from this scheme. (Morrow, supra, 30 Cal.App.4th at p. 1261.)The court found that this conduct was so egregious that it " 'shocks the conscience' " and violated "the heart of the Constitution, due process of law, and basic fairness." (Id. at p. 1263.) The court emphasized that "the misconduct took place within the hallowed confines of the courtroom" and "[o]ur justice system will crumble should those, in whose hands are entrusted its preservation and sanctity, betray its fundamental values and principles." (Id. at p. 1261.)
This case bears no resemblance to Rochin or Morrow. The challenged conduct was a brief conversation between an eyewitness and a paralegal who was scheduling preliminary hearing testimony. As the court found, the paralegal's comments were reasonably based on the investigating officer's report showing the witness said the handkerchiefs fell down during the incident. This conversation is nothing like the act in Rochin which reflected violence against the defendant in a way that resembled "the rack and the screw" method of obtaining evidence. (Rochin, supra, 342 U.S. at p. 172.) This case is also wholly unlike Morrow because there is no evidence the paralegal's statements constituted governmental abuse or in any way prejudiced the defendant or compromised a fundamental right.
II. Motion to Strike Prior Strike Conviction
Hurn contends the court abused its discretion by denying his motion to dismiss his prior strike conviction, a robbery conviction in 1980.
In imposing a sentence under the "Three Strikes" law, the trial court has discretion to strike one or more of the defendant's prior violent or serious felony convictions in the interest of justice. (Pen. Code, § 1385 subd. (a); People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In exercising its discretion, the trial court must consider whether, in light of the nature and circumstances of the present felonies and prior serious or violent felony convictions, and the particulars of the defendant's background, character, and prospects, the defendant is outside the spirit of the Three Strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
A court's refusal to strike a prior strike conviction is reviewed under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) To establish error, the defendant must show the trial court's decision was "so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
Hurn's criminal history includes numerous prior offenses. The prior strike felony offense occurred in 1980 when Hurn and a codefendant committed an armed robbery of a convenience store for a small amount of cash and beer. During that offense, Hurn's codefendant put a knife to a store cashier's back while appellant took beer and cash from the cash register. In the following decade, appellant committed several misdemeanor offenses. In 1997, Hurn committed auto theft and receipt of stolen property and was sentenced to a 16-month state prison term. After being released from custody, Hurn committed burglary, auto theft, and receipt of stolen property in 2004, and was sent to state prison for a four-year term. This offense involved Hurn and others attempting to lift a gas station ATM on the bed of a stolen truck. Upon being released from custody and soon after being discharged from parole, Hurn committed the current offense.
Hurn requested the court to strike his prior strike conviction based on the remoteness of the prior (1980) and the relatively nonviolent nature of the current offense. Hurn argued the prior strike conviction occurred almost 30 years before the current offense and was at the low end of the spectrum of strike convictions. Hurn claimed that in the 1980 offense he was the less culpable of the two defendants because he was not the one who was armed and he was sentenced only to probation and time served. Hurn maintained that the current offense was distinguishable from the prior strike offense because the current offense involved only property damage and did not involve injury or threat to any other persons. Hurn also emphasized his troubled childhood and his drug addiction.
The court denied Hurn's motion to strike. The court agreed that the 1980 offense did not reflect violence or "heinous type of conduct." But the court noted the increasing seriousness of Hurn's crimes and the similarity of the crimes, most of which involved stealing, robbery, and auto theft. The court also discussed that Hurn had returned several times to state prison for parole violations and that in 2004, Hurn's conduct escalated to crimes involving drugs and receiving stolen property.
The court stated the current offense was "not just auto theft. It's also the grand theft, the manner in which the ATM was taken, then destruction, the callousness, the total disregard of any property rights or interest of those who are in the community, the high-speed chase and then the possession of... items [reflecting]... just random conduct of a rampage — destructive rampage and stealing." The court also noted that although Hurn "had a difficult childhood, " he "does not stand differently from many individuals with his background, his experiences" and Hurn has had numerous opportunities to terminate his criminal activities. The court thus found that striking the strike was not appropriate because Hurn needed to face the "reasonable consequence for his choices, his conduct, his crimes."
The court did not abuse it discretion in reaching this conclusion. The court considered Hurn's background, character, prospects and the nature and severity of his current and prior offenses and determined that Hurn fell within the spirit of the Three Strikes law. Hurn's crimes had escalated in severity over nearly 30 years and the current offense showed "sophistication, planning, [and] deliberation." The court properly considered the mitigating factors, including the remoteness of the prior strike and Hurn's substance abuse and childhood issues, but found that these factors did not justify striking the strike.
On appeal, Hurn reiterates essentially the same arguments he presented to the trial court, and contends the trial court abused its discretion in not striking the strike. The record shows no abuse of discretion. Although the prior strike was remote, the court correctly focused on the fact that Hurn has repeatedly engaged in criminal conduct, despite several prison terms, and that Hurn has shown himself unwilling to live a crime-free life. These circumstances support the trial court's conclusion that Hurn is the type of recidivist offender targeted by the Three Strikes law. The Three Strikes law was "devised for the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison sentences... for those who commit a felony' as long as they were previously convicted of at least one strike." (People v. Strong (2001) 87 Cal.App.4th 328, 331-332.) Hurn's continued record of recidivism brings him directly within the spirit of the Three Strikes law. (People v. Gaston (1999) 74 Cal.App.4th 310, 320.)
DISPOSITION
Judgment affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.