         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  September 9, 2008 Session

            ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-29609 John P. Colton, Jr., Judge




                  No. W2007-01546-CCA-R3-CO - Filed September 30, 2009



The petitioner, Erskine Leroy Johnson, filed a petition for a writ of error coram nobis in the Shelby
County Criminal Court, claiming that newly discovered evidence entitled him to a new trial. After
an evidentiary hearing, the coram nobis court dismissed the petition on the basis that the petitioner
was at fault for timely failing to discover the evidence. The petitioner appeals, maintaining that the
newly discovered evidence entitles him to a new trial. He also argues that the coram nobis court
applied the incorrect standard in denying his petition for coram nobis relief, that the court did not
address all of the evidence in denying his petition, and that a review of all the evidence shows he
should receive a new trial. The State argues that the coram nobis court should have dismissed the
petition because it was untimely filed and that, in any event, the court properly denied the petition.
Based upon our review, we conclude that due process required tolling the statute of limitations in
this case and agree with the petitioner that the coram nobis court denied the petition based upon the
incorrect standard. Therefore, the court’s denial of the petition is reversed, and the case is remanded
to the coram nobis court for reconsideration of the petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed, and
                                 the Case is Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J.,
joined. JOHN EVERETT WILLIAMS, J., filed a dissenting opinion.

Gerald D. Skahan, Memphis, Tennessee, and Jonathan Blackman, David E. Brodsky, Carmine D.
Boccuzzi, David H. Herrington, Elizabeth Vicens, and Boaz A. Weinstein, New York, New York,
for the appellant, Erskine Leroy Johnson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Dennis Johnson and Tom Hoover, Assistant
District Attorneys General, for the appellee, State of Tennessee.
                                             OPINION

                                      I. Factual Background

        The record reflects that in 1985, a jury convicted the petitioner of first degree felony murder
and sentenced him to death. On direct appeal, our supreme court summarized the facts underlying
the petitioner’s conviction as follows:

               Between 8:30 and 9:00 a.m. on 2 October 1983 Joe Belenchia, owner
               of a Food Rite grocery in Memphis, was killed in the course of an
               attempted robbery. An eyewitness to the holdup[, Tommy Perkins,]
               made an in-court identification of the defendant as the person who
               killed Mr. Belenchia. He had also made a pretrial identification of
               defendant from a photo display. He further identified, Jerome
               Moreland, a friend of defendant’s, who was also involved. The
               witness was not 100% sure of his identification at trial and only
               “pretty sure” of his pretrial identification. . . . This witness had also
               seen a Burgundy-colored station wagon in the store parking lot with
               two people in the front and two in the back. One of the passengers in
               the rear seat was a female. This vehicle was subsequently linked to
               the crime. Earlier in the morning of the robbery a young boy saw a
               man switching license plates from a car parked in the street to a
               maroon station wagon. Three people were in the station wagon and
               the man switching the license plate was observed talking to a woman
               in a white car. The number on the license plate was the same as the
               number on the vehicle used in the robbery. A palm print taken from
               this vehicle was subsequently identified as defendant’s. Defendant
               was wearing an orange or rust colored suede or leather jacket which
               was identified by at least two witnesses to the robbery. Another
               witness in the grocery store at the time of the robbery testified that a
               woman, accompanied by a man, attempted to get into the store office.
               She was carrying a brown paper bag in her hand. She was prevented
               from doing so by the security guard who in turn was restrained by the
               man, who put a gun to his head. At that time the witness heard the
               sound of three shots coming from the front of the store. During the
               police investigation the maroon station wagon was traced to the St.
               Louis Airport. Defendant’s cousin, Elizabeth Starks, testified that
               defendant and another man named Jerome came to her home the night
               before the homicide. They were traveling in a maroon station wagon.
               The next morning defendant, Jerome and another man came to her
               residence. Her boyfriend, Dennis Williams went with the three men
               to the store for cake mix about 7:00 a.m. When Mr. Williams
               returned he was pale and acted exhausted and upset. Subsequently


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                defendant, Jerome and a third man returned to her house. A woman
                in a white car also came there. As previously noted, the witness
                Beverly Batts testified that several months later defendant told her he
                and two friends had stolen a car from the St. Louis Airport and he had
                committed a robbery and murder in Memphis.

State v. Johnson, 762 S.W.2d 110, 115-16 (Tenn. 1988). The court affirmed the petitioner’s
conviction and death sentence. Id. at 120.

         Subsequently, the petitioner filed a petition for post-conviction relief, claiming, in pertinent
part, that the State withheld exculpatory evidence at trial. The post-conviction court denied relief,
and the petitioner appealed to this court, claiming that the evidence “would have shown that another
‘group’ committed these offenses; this could have strengthened his alibi defense; and it could have
been used to impeach Beverly Batts, who testified for the State that Defendant had confessed to the
murder.” Erskine Leroy Johnson v. State, No. 02C01-9707-CR-00292, 1999 Tenn. Crim. App.
LEXIS 828, at *7 (Jackson, Aug. 12, 1999). This court agreed with the petitioner that the State
withheld exculpatory evidence. Id. at *14. As this court explained, “The State possessed
information regarding Michael Brown, Charles Keller, Eric Brown, and their possible connection
to the shooting and to the getaway vehicle.” Id. at **12-13. However, this court determined that the
petitioner was not entitled to post-conviction relief, stating,

                The circumstantial proof linking Defendant to this shooting is strong.
                In addition to Mr. Perkins’s identification of Defendant as the
                shooter, Defendant’s palm print was found on the getaway car.
                Moreover, despite Defendant’s claim that he was in St. Louis at the
                time of the shooting, his cousin, Elizabeth Starks, identified him as
                being in Memphis on the day of the shooting and identified him as
                being in the getaway car. She further testified that she and a friend
                had been in that car prior to the robbery. Her testimony was
                corroborated by the presence of their fingerprints in the car.
                Furthermore, Beverly Batts testified that Defendant confessed to a
                “cold-blooded” shooting in Memphis.

                        ....

                The identification by Perkins, the corroborated testimony of Starks,
                Defendant’s admission to Batts and Defendant’s palm print on the
                getaway car have not been overcome. . . . [T]he failure to reveal the
                Browns’ and Keller’s connection to the car [does not] undermine
                confidence in the verdict.

Id. at **15-17. Although this court affirmed the petitioner’s conviction, it remanded the case for a



                                                  -3-
new capital sentencing hearing. Id. at *70. Our supreme court affirmed this court’s ruling.1 Johnson
v. State, 38 S.W.3d 52, 63 (Tenn. 2001). On remand, the State did not seek the death penalty, and
the trial court sentenced the petitioner to life.

        On April 22, 2005, the petitioner filed a petition for writ of error coram nobis, claiming that
he was entitled to a new trial based upon newly discovered evidence. Specifically, he argued that
Dennis Williams recanted his testimony about the petitioner committing the robbery; that the
petitioner recently learned during his investigation for his resentencing hearing that Elizabeth Starks
was a very close friend of Betty Jo Ford, a member of the “Brown Gang,” and, therefore, had a
motive to testify against him in order to protect Ford; and that the State encouraged Tommy Perkins
to identify him at trial as the shooter even if Perkins did not recognize him. The petitioner argued
that “[r]eweighing the newly-discovered evidence of innocence along with the suppressed
exculpatory evidence that was presented in the post-conviction hearing will overwhelmingly
demonstrate the likelihood that the jury might have reached a different result if they had heard all
of the facts.”

        The petitioner attached several affidavits to his petition. In the first affidavit, signed by Joe
Roy Robinson, Robinson stated that he knew Elizabeth Starks and Betty Jo Ford from 1982 to 1983,
that the two women “hung out together,” and that he thought they “were some kind of kin to one
another.” In the second affidavit, signed by Dennis Williams, Williams stated that the petitioner was
not one of the individuals who visited Starks’ home on the weekend of October 1, 1983, and that he
only identified the petitioner because he believed the police wanted his statement to “align” with
Starks’ statement. In the third affidavit, signed by Darvi Cunningham, Cunningham claimed that
she met Ford through Starks in 1982 and that Starks and Ford were “very close.” In the fourth
affidavit, signed by Tommy Lee Perkins, Perkins stated that prior to identifying the petitioner at trial,
one of the prosecutors told him the petitioner had changed his appearance. According to the
affidavit, Perkins thought the prosecutor was “encouraging me to make an identification even if the
[petitioner] looked different,” and Perkins alleged in the affidavit that he “was not sure” the
petitioner was the shooter when he identified the petitioner at trial.

        At the hearing on the petition, Richard Walker testified for the petitioner that he knew
Elizabeth Starks “from the neighborhood growing up as a little boy.” Walker stated that he and
Starks sang in separate gospel groups, that Starks’ family sang in a group called the “Brown
Singers,” and that he would see her when their groups sang at churches or in music programs. When
Walker was in high school, Starks introduced him to Betty Jo Ford. Walker described Starks’ and
Ford’s relationship as “pretty tight” and “pretty much like partners.” Walker and Ford began dating,
and Ford became pregnant with Walker’s child. After the baby was born, Walker lost contact with
Ford. However, he occasionally would “run into” Starks, and Starks would tell him about Ford. He
said he last ran into Starks about one and one-half years prior to the coram nobis hearing.



        1
         The only issue the supreme court addressed on appeal was whether the petitioner was entitled to a new
sentencing hearing.

                                                       -4-
        On cross-examination, Walker acknowledged that he first met Ford in 1978 or 1979 and that
he had not seen her in person since 1980. He also acknowledged that he had not seen Ford and
Starks together since that time and did not know anything about their relationship.

        Joe Roy Robinson testified that he was twenty-seven or twenty-eight years old in 1982 and
“hung out” at the same nightclub, the Executive Lounge, as Elizabeth Starks and Betty Jo Ford. He
stated that he saw Starks at the club about every weekend and that Starks and Ford usually came to
the club together. He said that the women were “real close” and that he thought they were related.
He also said that Starks and Ford worked as prostitutes for his brothers and that Starks, Ford, Darvi
Cunnigham, and a woman named Andrea “started hanging out together.” On cross-examination,
Robinson testified that he saw Starks and Ford together for four or five years. He acknowledged that
he did not know what kind of relationship they had but said they were “pretty close.”

       Melvin Hoyle testified that he was a truck driver and managed the Executive Lounge from
1977 to 1984. Elizabeth Starks came to the club on weekends, and she introduced him to Betty Jo
Ford. Starks and Ford “seemed close,” and Holye thought they were cousins. On cross-examination,
Hoyle acknowledged that he never asked the women if they were related.

        Regarding Dennis Williams’ affidavit, the coram nobis court stated that it was not
“reasonably satisfied” Williams’ 1984 identification of the petitioner was false. Furthermore, the
court stated that the “mere fact that Mr. Williams now claims, over twenty-three years later, that he
was intimidated and coerced does not suffice to warrant a new trial.” The court concluded that even
assuming Williams’ affidavit was true, the court was not reasonably satisfied that the jury “would
have reached a different verdict had they been aware of it” because the State’s case against the
petitioner was strong.

         Regarding Tommy Perkins’ affidavit, the coram nobis court noted that Perkins testified at
trial he was not one hundred percent sure about the shooter’s identification. The court also noted
that Perkins testified on cross-examination that he was told prior to identifying the petitioner that the
suspect had been caught and that he was shown several photographs of the same person. Finally,
the court noted that Perkins never claimed in his affidavit that his identification of the petitioner was
false or coerced. Thus, the court concluded that the jury knew facts which could have called into
question Perkins’ identification, that the information contained in Perkins’ affidavit “merely presents
impeachment evidence which builds upon that which the Petitioner adduced at trial from his cross-
examination of Perkins,” and that the court was “not reasonably satisfied that the presentation of this
additional evidence would have caused the jury to reach a different verdict.”

        As to Joe Roy Robinson’s and Darvi Cunningham’s affidavits, the coram nobis court stated
that their information would have impeached the testimony of Elizabeth Starks, whom the court
described as a “key witness for the State,” because Starks’ relationship with Ford would have given
Starks a motive to lie for Ford. The court also concluded that Robinson’s and Cunningham’s
information would have provided another link between the Brown gang and the Belenchia homicide
“because if Starks were a member of the Brown gang, who were being investigated for the crime,


                                                  -5-
and she falsely implicated an unrelated party, then this would tend to implicate the Browns as trying
to divert investigative attention from their group.” However, the court concluded that the petitioner
was at fault for not discovering the information earlier. The court asserted that the police reports
contained information linking Starks to the Brown gang, and that the petitioner gained access to the
“wrongly withheld” reports in 1989. The court concluded that although the evidence in the reports
did not directly connect Starks with Ford, “the [indirect] connection was not sufficiently attenuated
to justify a fifteen year delay in the presentation of this evidence because a cursory investigation of
the individuals listed in the police reports could have easily led Petitioner to the testimony currently
presented.” The court further concluded that regarding all the evidence presented at the hearing, the
petitioner failed to show that, “if presented, [it] would have resulted in a different verdict.”

                                             II. Analysis

         The petitioner contends that the coram nobis court erred by concluding he was not without
fault for failing to discover the relationship between Starks and Ford earlier because even the
Memphis police did not discover the connection between the women. Moreover, he argues that the
court applied the incorrect standard in denying his petition for writ of error coram nobis, that the
court disregarded the significance of the evidence presented by Dennis Williams and Tommy
Perkins, that the court did not address all of the evidence in denying his petition, and that a review
of all the evidence in this case shows he should receive a new trial. The State argues that the coram
nobis court should have dismissed the petition because it was filed outside the one-year statute of
limitations and that due process did not require tolling the statute of limitations because the
petitioner could have and should have discovered the “new” information previously. The State also
argues that, in any event, the coram nobis court properly denied the petition. We conclude that due
process required tolling the statute of limitations in this case and agree with the petitioner that the
coram nobis court denied the petition using the wrong standard.

       Tennessee Code Annotated section 40-26-105(b) provides for relief by writ of error coram
nobis as follows:

               The relief obtainable by this proceeding shall be confined to errors
               dehors the record and to matters that were not or could not have been
               litigated on the trial of the case, on a motion for a new trial, on appeal
               in the nature of a writ of error, on writ of error, or in a habeas corpus
               proceeding. Upon a showing by the defendant that the defendant was
               without fault in failing to present certain evidence at the proper time,
               a writ of error coram nobis will lie for subsequently or newly
               discovered evidence relating to matters which were litigated at the
               trial if the judge determines that such evidence may have resulted in
               a different judgment, had it been presented at the trial. The issue
               shall be tried by the court without the intervention of a jury, and if the
               decision be in favor of the petitioner, the judgment complained of
               shall be set aside and the defendant shall be granted a new trial in that


                                                  -6-
                cause.

As our supreme court explained, in order to determine whether a petitioner is entitled to coram nobis
relief,

                the trial judge must first consider the newly discovered evidence and
                be “reasonably well satisfied” with its veracity. If the defendant is
                “without fault” in the sense that the exercise of reasonable diligence
                would not have led to a timely discovery of the new information, the
                trial judge must then consider both the evidence at trial and that
                offered at the coram nobis proceeding in order to determine whether
                the new evidence may have led to a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). It is well-established that the writ of error
coram nobis “is an extraordinary procedural remedy . . . [that] fills only a slight gap into which few
cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). Generally, a decision whether to
grant a writ of error coram nobis rests within the sound discretion of the trial court. State v. Hart,
911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

         A petition for a writ of error coram nobis must be filed within one year of the judgment
becoming final in the trial court. Tenn. Code Ann. § 27-7-103. “A judgment becomes final in the
trial court thirty days after its entry if no post-trial motions are filed. If a post-trial motion is timely
filed, the judgment becomes final upon entry of an order disposing of the post-trial motion.” Mixon,
983 S.W.2d at 670. Thus, for determining when the statute of limitations begins to run for a writ of
error coram nobis, the judgment often becomes final when the trial court denies a defendant’s motion
for new trial. See, e.g., id. As noted by our supreme court, “a timely petition for writ of error coram
nobis will almost always be filed while [a direct] appeal is pending.” Id. at 671.

        Regarding the State’s claim that the petition was time-barred, we note that the State properly
preserved this issue by arguing at the coram nobis hearing that the coram nobis court should dismiss
the petition because the petitioner filed it well-outside the one-year statute of limitations. See Harris
v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (stating that “the State bears the burden of raising the
bar of the statute of limitations as an affirmative defense”). The coram nobis court did not address
the State’s argument, and the State maintains on appeal that the petition was untimely. The
petitioner responds that the petition was timely filed on April 22, 2005, because the judgment of
conviction did not become final until he was resentenced to life in prison on November 15, 2004.

        Neither the State nor the petitioner has cited to any cases on point, and we have found none
in Tennessee that specifically address this issue. That said, if we were to agree with the petitioner
that the judgment did not become final until December 15, 2004, thirty days after the petitioner was
resentenced, then it would suggest the judgment remained unfinalized in the trial court for
approximately twenty years. Obviously, that is not the case. Furthermore, to conclude that the
judgment did not become final until after resentencing would be “inconsistent with the longstanding


                                                    -7-
rule that persons seeking relief under the writ must exercise due diligence in presenting the claim”
and “would unnecessarily compromise society’s interest in finality” to criminal judgments. Id. at
670, 671.

        In State v. Workman, 41 S.W.3d 100, 103 (Tenn. 2001), a capital case, our supreme court
determined that due process may require tolling an applicable statute of limitations. In part, the
Workman court relied on the due process considerations discussed in Burford v. State, 845 S.W.2d
204 (Tenn. 1992). In Burford, our supreme court recognized that “before a state may terminate a
claim for failure to comply with procedural requirements such as statutes of limitations, due process
requires that potential litigants be provided an opportunity for the presentation of claims at a
meaningful time and in a meaningful manner” and that “under the circumstances of a particular case,
application of the statute may not afford a reasonable opportunity to have the claimed issue heard
and decided.” 845 S.W.2d at 208. As the Workman court explained,

                to determine whether due process requires tolling in this case, we
                must consider the governmental interests involved and the private
                interests affected by the official action. In this case, as in Burford, the
                governmental interest in asserting the statute of limitations is the
                prevention of stale and groundless claims. The private interest
                involved here is the petitioner’s opportunity to have a hearing on the
                grounds of newly discovered evidence which may have resulted in a
                different verdict if heard by the jury at trial.

The court concluded that Workman’s interest in obtaining a hearing on his claims outweighed the
governmental interest in the statute of limitations and, therefore, that due process precluded
dismissing his claims based upon the statute of limitations. In Freshwater v. State, 160 S.W.3d 548
(Tenn. Crim. App. 2004), this court applied the doctrine set forth in Workman to non-capital cases.

         Turning to the instant case, the petitioner is facing life in prison. This court has stated that
a life sentence “is a sufficiently significant period of time to warrant a due process analysis despite
the lapse of the statute of limitations.”                  Ricky Jerome Harris v. State, No.
E2005-00566-CCA-R3-PC, 2007 Tenn. Crim. App. LEXIS 901, at **18-19 (Knoxville, Dec. 3,
2007), perm. to appeal granted, (Tenn. 2008); see also State v. Ratliff, 71 S.W.3d 291, 297 (Tenn.
Crim. App. 2001) (stating that “a sentence of twenty-four years, without eligibility for release, is a
sufficiently significant period of time to warrant similar treatment for purposes of due process
analysis”). The petitioner has raised serious questions as to whether he was present in Tennessee
at the time of the Belenchia murder, and he alleges that he did not learn of Starks’ and Ford’s
relationship until he interviewed Darvi Cunningham in June 2004 for his resentencing hearing.
Although the coram nobis court concluded that information connecting Starks and Ford was in police
reports that became available to the petitioner in 1989, the court also noted that the information was
improperly withheld from the petitioner prior to trial. “[T]he State’s finality interest is seriously
compromised when the prosecution has suppressed evidence in violation of its constitutional duty
and is directly responsible for causing the delay in finality.” Harris v. State, 102 S.W.3d 587, 602


                                                   -8-
(Tenn. 2003) (Anderson, J. dissenting) (citing Sample v. State, 82 S.W.3d 267, 276 (Tenn. 2002)).
Therefore, we conclude that due process required tolling the statute of limitations in this case.

        Turning to the coram nobis court’s denial of the petition, we note that the court’s order only
addressed the four affidavits attached to the petition. Although three witnesses testified at the
hearing about Starks’ and Ford’s relationship, the court apparently did not consider their testimony.
As this court has stated, if the affidavits attached to the petition are sufficient and justify an
evidentiary hearing, the trial court should not determine the merits of the petition on the strength of
the affidavits alone.” Id. (citing Hicks v. State, 571 S.W.2d 849, 852 (Tenn. Crim. App. 1978)).
Nevertheless, the analysis in the coram nobis court’s order demonstrates to us that it was reasonably
well satisfied with the veracity of the evidence regarding Starks’ and Ford’s friendship. Therefore,
we will next consider whether the coram nobis court properly determined that the petitioner was not
without fault in timely discovering the evidence.

         The coram nobis court noted that although the State withheld the exculpatory police reports
prior to trial, the petitioner gained access to the reports in 1989. Furthermore, as the court explained,

                the reports state that Miles McKinney provided a positive
                identification of the maroon station wagon as a vehicle that he had
                seen parked in front of Darvi Cunningham’s home on two different
                occasions. . . . McKinney’s statements led police to Andrea Jean
                Dennis who stated that Ms. Cunningham and Eric Brown were
                connected to certain vehicles which were stolen from the St. Louis
                airport. . . . Dennis also identified her boyfriend as Joe Roy
                Robinson, who had brothers named Deon, a.k.a. “Hard Times,” and
                Cornelius. . . . She then went on to establish a connection between
                these individuals and Darvi Cunningham, Betty Jo Ford, and Michael
                Brown. . . . Petitioner produced Joe Robinson at the hearing for this
                petition and Mr. Robinson essentially testified to the exact facts
                which were contained within the aforementioned police reports. Thus,
                Petitioner has been privy to information since 1989 which, if
                investigated, could have provided them with the information which
                he produced at the March 2007 hearing. The proper time to have
                presented this information would have been at the post-conviction
                proceedings, which were held well after Petitioner had access to this
                material.

(Footnotes omitted.) The court also explained that additional police reports

                provided Petitioner with information establishing that Starks was
                potentially cousins with one of the female visitors to her house the
                night before the murder; that Shirley was one of those female visitors;
                that Starks and Shirley sang together in a gospel group and that Betty


                                                  -9-
               Jo Ford had the tendency to use aliases.

The court concluded that “[a]lthough this evidence did not directly connect Starks and Ford, the
connection was not sufficiently attenuated to justify a fifteen year delay in the presentation of the
evidence.” We agree that the evidence did not directly connect the two women. In fact, in our view,
the evidence, at best, only suggested the two women knew each other. Additionally, nothing in the
reports indicated the women were good friends. Therefore, we disagree with the coram nobis court’s
conclusion that the petitioner did not exercise due diligence in obtaining the new evidence.

         The coram nobis court held that Starks’ and Ford’ relationship could have impeached Starks’
testimony by providing Starks with a motive to “point the investigation towards another suspect.”
However, the court concluded that the petitioner failed to show the new evidence would have
resulted in a different verdict. This was an incorrect standard to use in denying coram nobis relief.
As Vasques clarified, the correct standard is whether the evidence may have, not would have, led
to a different result. 221 S.W.3d at 527. We further note that “whether the testimony qualifies as
impeachment evidence may be relevant in the determination but is not controlling. Impeachment
evidence might be particularly compelling under the circumstances of a particular case.” Vasques,
221 S.W.3d at 528. As the coram nobis court noted in its order, Elizabeth Starks was a very
important witness for the State. Therefore, in light of the foregoing, we conclude that the case
should be remanded to the coram nobis court for reconsideration of the petition based upon the
correct standard.

                                         III. Conclusion

        The coram nobis court’s denial of the petition is reversed, and the case is remanded to the
court for further proceedings consistent with this opinion.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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