                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 98-KA-00412-SCT



SYLVESTER HATHORNE a/k/a SYLVESTER JAMES HATHORNE a/k/a SYLVESTER
HAWTHORNE
v.
STATE OF MISSISSIPPI



DATE OF JUDGMENT:                                  01/28/1998
TRIAL JUDGE:                                       HON. R. I. PRICHARD III
COURT FROM WHICH APPEALED:                         PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            WAYNE HYNUM
ATTORNEY FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL
                                                   BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                                 RICHARD L. DOUGLASS
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       AFFIRMED - 10/21/1999
MOTION FOR REHEARING FILED:                        11/18/99; denied 5/11/2000
MANDATE ISSUED:                                    5/18/2000



      BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.
      WALLER, JUSTICE, FOR THE COURT:

                                      STATEMENT OF THE CASE

¶1. On February 3, 1997, Appellant Sylvester Hawthorne ("Hawthorne"), Dorothy Hawthorne ("Dorothy")
, Dinah Hawthorne ("Dinah"), Calvin Vaughn ("Vaughn"), and Lawrence McLaurin ("McLaurin"), were
indicted and charged with the crime of the armed robbery of the First National Bank of Picayune in Pearl
River County, Mississippi, in violation of Miss. Code Ann. § 97-3-79 (1972). All individuals except
Hawthorne pled guilty. Hawthorne's case proceeded to trial on January 20, 1998, before the Circuit Court
of Pearl River County, Mississippi, the Honorable R. I. Prichard, III, presiding.

¶2. The jury returned a verdict of guilty, and the court sentenced Hawthorne to serve a term of thirty years,
with no eligibility for parole.

¶3. Aggrieved by the denial of his motions for a mistrial and directed verdict and the rejection of his jury
instructions, Hawthorne appeals to this Court. We affirm the conviction imposed by the trial court.
                                     STATEMENT OF THE FACTS

¶4. On or about September 30, 1996, the First National Bank of Picayune, Pearl River County,
Mississippi, was robbed. Several employees of the bank testified that three armed persons entered the bank
and collected money from the teller's windows and vault. None of the bank employees could identify the
robbers, who were wearing masks and gloves, and the bank's surveillance camera was inoperative.

¶5. Walter Smith testified that on September 30, 1996, he was in the bank's parking lot when he noticed a
white Dodge Neon with aluminum foil over the license plate. He then saw three people run out of the bank
and get into the car. According to Smith, he followed the car to the nearby Winn-Dixie grocery store,
stopping at a service station to tell an attendant to call the police. He saw three people get out of the white
Neon, taking their masks off, and then observed two of the males jump into a brown Dodge van already
occupied by the driver who was a black female. Smith testified that he did not know what happened to the
third person he saw get out of the Neon. According to Smith, the attendant then called him over to talk to
the police on the phone. When Smith returned to the Winn-Dixie parking lot, he noticed both vehicles
leaving with the white Neon occupied by only the driver, a heavy set black female. Smith testified that he
thought all of the individuals taking their masks off were men, but that he could not be certain since he was
about one hundred yards away. Smith further testified that he saw a total of three males and two females in
the scenario, none of whom he could positively identify.

¶6. Stephen Watkins testified that he and his wife were driving up to the bank's drive-thru window when
they saw the robbery in progress. They then drove around to the front of the bank and observed the three
involved in the robbery get in a white Neon driven off by a black female. Watkins and his wife, who had
called a police dispatcher from their car, followed the Neon into the nearby Winn-Dixie parking lot, where
they then observed three people getting out of the Neon, two of whom were taking off their masks. The
third person did not take off the mask, and Watkins was not sure if that person was a male or female.
Watkins then saw the two un-masked males get into a brown van parked in the Winn-Dixie parking lot.
Although Watkins had stated in the 911 call that he saw all three individuals get out of the white Neon into
the brown van, he now recalled only two people getting in the van. According to Watkins, he and his wife
followed the brown van until it was stopped by the police.

¶7. Patrol Officer Shelton Farmer testified that he stopped the white Neon and that Dorothy Hawthorne, a
black female, was the only person in the car. Dorothy was placed under arrest and later identified as
Hawthorne's mother. According to Farmer, he searched the car and found rental papers showing Dorothy
had rented the car.

¶8. Ginger McElwain, an employee of Enterprise Rent-A-Car Agency, testified that on September 28,
1996, two days before the robbery, she rented a white Neon to Dorothy and Hawthorne. At trial,
McElwain explained that she had verified Hawthorne's identity by looking at the driver's license information
he presented.

¶9. Officer Ismael Quiroz testified that he stopped the brown van and arrested three people who were in
the van: Dinah, Hawthorne's sister; McLaurin, Hawthorne's roommate; and Vaughn, Hawthorne's cousin.
Quiroz further testified that he did not see Hawthorne anywhere in the area of the arrests that day.

¶10. Officer Larry Cagle testified that he searched the brown van. According to Cagle, he recovered two
black and red masks, two black pants, two weapons (a 12-gauge shotgun and a semiautomatic handgun),
shirts, ammunition, and $2,095.00 in cash. No fingerprints from the weapons were recoverable.

¶11. Alan Hornky, a gun dealer in Pearl River County, testified that he sold Hawthorne a 12-gauge shotgun
on September 27, 1996, approximately one month before the armed robbery. Hornky identified the
shotgun taken by police from the van as the weapon he sold to Hawthorne.

¶12. Dinah testified that when police had pulled her over on September 30, 1996, Vaughn and McLaurin
were also in the van. She explained that they had jumped in the van at the Winn-Dixie parking lot. She
further testified that earlier on the morning of the robbery, she had gone with Hawthorne and Dorothy when
they rented the white Neon.

¶13. On direct examination, Dinah admitted that, in a previous hearing, she had testified that on the morning
of the robbery Vaughn, McLaurin and Hawthorne told her to come with them to pick up the white Neon at
her grandmother's house. Dinah further testified that when she was at the Winn-Dixie parking lot, she saw
Hawthorne standing beside the Neon vehicle and that after she pulled out of that parking lot with Vaughn
and McLaurin, she did not see Hawthorne again. She had seen her mother's blue van in the Winn-Dixie
parking lot that day, and it was parked next to the white Neon and brown van. She also stated that she had
gone to the bank earlier on the day of the robbery in response to "the guys" telling her to go up to the bank
and look around.

¶14. On cross-examination, Dinah stated that she did not think her brother helped rob the bank. She was
further cross-examined about two inconsistent statements she had given to the police. In the first statement
she did not implicate Hawthorne, and in the second she did.

¶15. On direct examination, McLaurin claimed that he, Vaughn and Hawthorne told Dinah to take them to
Henleyfield to pick up a white rental car on the morning of the robbery. Later that day, according to
McLaurin, he, Hawthorne and Vaughn entered into the bank with red and black masks on and robbed it.
McLaurin stated that he had a pistol; Hawthorne had a pistol; and Vaughn had a shotgun. Contrary to other
witnesses' accounts, McLaurin testified that they left the bank in a white Neon driven by Hawthorne and
met Dinah and Dorothy in the Winn-Dixie parking lot. He further testified that Dorothy was waiting in a blue
and white van, Dinah was waiting in a brown van, and he and Vaughn jumped in the brown van with Dinah.
Hawthorne did not get in the brown van with him and Calvin and that he did not see where Hawthorne went
after they left the Winn-Dixie parking lot. McLaurin further testified that Hawthorne had supplied the masks
and guns used in the robbery.

¶16. On cross-examination, McLaurin admitted giving the police three different versions as to how the
armed robbery occurred. In the first version, he did not implicate Hawthorne, but in the second and third
statements he did.

¶17. He further testified on cross-examination that he had already pled guilty to an armed robbery in Lamar
County, but had not yet been sentenced. He admitted that he was afraid that if he did not testify in
accordance with what the State wished, his sentence in Lamar County might be affected.

¶18. Ricky Frierson, a detective with the Picayune City Police Department, testified that he was unable to
find any fingerprints in this case, and that a blue and white Dodge conversion van, registered to Hawthorne's
father, may have also been involved in the armed robbery. Frierson further testified that on September 30,
1997, a warrant was issued for Hawthorne's arrest and his picture was placed in the newspaper and on
television as wanted for armed robbery. According to Frierson, Hawthorne turned himself in to the police
on February 24, 1997.

¶19. After the State rested and Hawthorne's motion for a directed verdict was denied, Hawthorne testified.
He denied having any part in the robbery and testified that he was in Baton Rouge, Louisiana, from the day
of the robbery until February 24, 1997. He admitted that he rented the white Neon, but denied having any
knowledge of its being used in the bank robbery.

                                     STATEMENT OF THE LAW

     I. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR
     NEW TRIAL ON THE FOLLOWING GROUNDS:

     A. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR
     MISTRIAL.

¶20. Hawthorne claims that he should have been granted a mistrial after Dinah, a co-indictee, informed the
jury that she had entered a guilty plea in the same offense.

¶21. At the request of defense counsel, the trial judge instructed the prosecuting attorney to tell his
witnesses not to mention that some of the co-defendants had already pled guilty to the crime for which
Hawthorne was now on trial.

¶22. On re-direct examination, the State inquired about the voluntariness of a prior statement Dinah had
given. Dinah had given more than one statement concerning the crime, and, in her attempt to find out which
statement the State was referring to, the following exchange occurred:

     RE-DIRECT BY THE STATE OF DINAH HAWTHORNE:

     MR. MCDONALD (for the State): All right. Now, when I asked you about the - when I went over
     the questions I went over with you from previous sworn testimony that you gave, there's also another
     item in here and I want to show that to you before I ask you about it.

     MR. HYNUM (for the defense): Now, I would object. This is improper procedure. He can ask the
     question if she didn't answer the way she did previously, he can impeach her with the statement.

     THE COURT: Sustain since I've given her a chance to read the entire statement for herself.

     MR. MCDONALD: I'm just trying to speed things up a little bit.

     MR. MCDONALD: Ms. Hawthorne, at the time you gave that sworn statement were you asked if
     anybody, law enforcement, codefendant, anybody else, anybody mistreated you, abused you,
     coerced you, intimidated you, threatened you, made any promises to you or put any pressure on you?

     DINAH: At which statement?

     MR. MCDONALD: When you gave that sworn statement?

     DINAH: When I appeared in court?
      THE COURT: Right.

      DINAH: Yes, sir.

      MR. MCDONALD: And you answered to that "no, sir"; isn't that correct.

      DINAH: Could you repeat the question again?

      MR. MCDONALD: Weren't you asked since all this came up, has anybody, whether they be law
      enforcement, District Attorney's Office, victim, anybody else, codefendant, has anybody mistreated
      you, abused you, coerced you, intimidated you, threatened you, made any promises to you or put any
      pressure on you. Did you not respond, no, sir, to that question?

      DINAH: On my plea of guilty?

      MR. HYNUM: Move for a mistrial, Your Honor

Hawthorne's motion for a mistrial was overruled by the Court. Curative instructions were not requested.

¶23. As Hawthorne points out, this Court has held that admission of testimony regarding the conviction of a
co-indictee denies a defendant a fair trial and is reversible error. Johns v. State, 592 So. 2d 86, 90 (Miss.
1991); Henderson v. State, 403 So. 2d 139, 141 (Miss. 1981); Griffin v. State, 293 So. 2d 810, 812
(Miss. 1974). In those cases, the jury was made aware that the witnesses had been tried by a jury and
found guilty of the same crime for which the defendant was on trial.

¶24. However, the instant case is factually distinguishable. Dinah pled guilty, as opposed to being found
guilty by a jury. As such, the facts of the case sub judice is more in line with White v. State, 616 So. 2d
304 (Miss. 1993). See also Clemons v. State, 733 So. 2d 266 (Miss. 1999); Henderson v. State, 732
So. 2d 211, 215 (Miss. 1999).

¶25. In White, White and two co-indictees were charged with the crime of burglary of a dwelling. At
White's trial, one of the co-indictees testified that he had already pled guilty to the burglary. In distinguishing
White from previous cases, Justice Banks wrote:

      In four of the cases relied upon, Ivy, Johns, Henderson, and Griffin, the witness had been tried by a
      jury and found guilty of the same crime for which the defendant was being tried. The danger at issue in
      these cases is that one jury would rely upon the judgment of a prior jury in reaching its decision. These
      cases are distinguishable, however, because we are dealing with a plea of guilty in the instant case;
      that is, a prior admission of guilt, which is consistent with the testimony at trial. This is a significant
      distinction because prior statements have evidentiary value different from prior findings of other
      tribunals.

White, 616 So. 2d at 307.

¶26. The White opinion noted opinions from other states and federal courts on the admissibility of evidence
that a witness had previously entered a guilty plea on the same charge and concluded that when a witness
testifies at trial to his involvement in the crime, admitting that he had pled guilty to that crime is evidence of a
prior consistent statement and is admissible under Miss. R. Evid. 801(d)(1). White, 616 So. 2d at 307-09.
¶27. In White, the Court was concerned about preventing a jury from relying upon another jury's judgment
in reaching its decision. Here, there was no chance of such improper reliance because there was never any
introduction of evidence of the findings of another tribunal. Additionally, by inadvertently testifying to an
earlier plea of guilt, Dinah only gave evidence of a prior consistent statement which is admissible under
Miss. R. Evid. 801(d)(1). Accordingly, this assignment of error does not warrant reversal.

      B. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR
      DIRECTED VERDICT.

¶28. The State is required to prove every element of the offense charged beyond a reasonable doubt.
Heidel v. State, 587 So. 2d 835, 843 (Miss. 1991). In determining whether the evidence is sufficient to
support Hawthorne's conviction, we must accept as true all evidence favorable to the State, together with
all reasonable inferences that may be drawn from that evidence. Forbes v. State, 437 So. 2d 59, 60
(Miss. 1983) (citing Bullock v. State, 391 So. 2d 601, 606 (Miss. 1980)). If that evidence is such that a
jury could reasonably conclude that all the essential elements of the crime had been proven beyond a
reasonable doubt, then it is legally sufficient. Id.

¶29. Hawthorne complains that only one witness, McLaurin, testified that Hawthorne had any involvement
in the subject robbery and that McLaurin's testimony was uncorroborated, self-contradicted, substantially
impeached, and, therefore, insufficient to support the jury's verdict of armed robbery.

¶30. This Court's stringent standard of appellate review for challenges to the legal sufficiency of evidence
was articulated in Garrett v. State, 549 So. 2d 1325, 1331 (Miss. 1989) (quoting McFee v. State, 511
So. 2d 130, 133-34 (Miss. 1987)):

      When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence,
      our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the
      evidence-not just that supporting the case for the prosecution-in the light most consistent with the
      verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn
      from the evidence. If the facts and inferences so considered point in favor of the accused with
      sufficient force that reasonable men could not have found beyond a reasonable doubt that he was
      guilty, reversal and discharge are required. On the other hand, if there is in the record substantial
      evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of
      proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have
      reached different conclusions,the verdict of guilty is thus placed beyond our authority to disturb.

(Citations omitted.)

¶31. We further stated in Mason v. State, 429 So. 2d 569, 572 (Miss. 1983) (quoting Young v. State,
425 So. 2d 1022, 1024 (Miss. 1983)):

      Only slight corroboration of an accomplice's testimony is required to sustain a conviction.
      Feranda v. State, 267 So. 2d 305 (Miss. 1972). The testimony of Harrison and Dorman was
      corroborated to some extent by Easterling and Patricia Thrasher. The credibility and
      reasonableness of the testimony of Harrison and Dorman was for the determination of the
      jury. Cochran v. State, 278 So. 2d 451 (Miss. 1973). It is within the province of the jury to accept
      parts of the testimony of any witness, and the jury may give consideration to all inferences flowing
      from the testimony. Grooms v. State, 357 So. 2d 292 (Miss. 1978).

¶32. McLaurin testified that, on the morning of the robbery, he, Vaughn, and Hawthorne picked up a white
Neon, which was later used to escape the scene of the crime. He also testified that he, Vaughn and
Hawthorne entered the bank and robbed it with guns supplied by Hawthorne. Hawthorne is correct in
noting that McLaurin gave three different versions of the bank robbery before trial, with all except the first
version implicating Hawthorne. Hawthorne is also correct in noting that McLaurin's trial testimony as to who
was driving the white Neon when it left the bank conflicts with the other witnesses' accounts. However, we
disagree with Hawthorne that McLaurin's testimony is insufficient to support the verdict. McLaurin's
testimony was corroborated in part by two independent witnesses. First, Ginger McElwain of Enterprise
Rent-A-Car Agency testified that Hawthorne and his mother rented the white Neon used in the robbery.
Secondly, Alan Hornky testified that approximately one month before the robbery, he sold Hawthorne the
12-gauge shotgun which was found in the brown van by the police after the robbery. Additionally, Dinah
testified that earlier on the morning of the robbery she had gone with Hawthorne to pick up a white Neon
and that she saw Hawthorne standing next to the white Neon in the Winn-Dixie parking lot before she
drove off with accomplices Vaughn and McLaurin.

¶33. Giving the prosecution the benefit of all favorable inferences that may reasonably be drawn from the
evidence, there is sufficient evidence in the record from which a jury could find beyond a reasonable doubt
that Hawthorne participated in the subject armed robbery. "[T]he jury is the trier of fact and if their verdict
is supported by the evidence, we will not disturb it." Pace v. State, 473 So. 2d 167, 169 (Miss. 1985).
This issue is without merit.

      C. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S PROPOSED JURY
      INSTRUCTION NUMBER D-5.

¶34. The State submitted and was granted the following instruction on accomplice testimony:

      A person criminally involved with others in a crime is an accomplice. The testimony of an accomplice
      is to be considered and weighed with great care and caution and suspicion. You may give it such
      weight and credit as you deem it is entitled.

¶35. Hawthorne submitted and was denied the following instruction on accomplice testimony:

      The Court instructs the jury that the uncorroborated testimony of an accomplice should be viewed
      with great caution and suspicion and that it must be reasonable and not improbable or self-
      contradictory or substantially impeached.

¶36. The trial court, in refusing to grant Hawthorne's instructions, stated that the State's instruction was
better written and more succinct. Hawthorne argues that the State's instruction did not fully instruct the jury
on the applicable law and that it was crucial for the jury to understand that the uncorroborated testimony of
an accomplice had to be reasonable, not improbable or self-contradictory or substantially impeached.

¶37. In Calhoun v. State, 526 So. 2d 531, 533 (Miss. 1988), we stated "it must . . . be noted that a trial
court is not required to instruct a jury over and over on a point of law even though some variations are used
in different instructions." (Citations omitted.) We further stated "if when all instructions are read together, the
jury is fully and fairly instructed by other instructions the refusal of other similar instructions is not reversible
error." Id.
¶38. Hawthorne mainly relies on two cases for this assignment of error: Hussey v. State, 473 So. 2d 478
(Miss. 1985), and Wheeler v. State, 560 So. 2d 171 (Miss. 1990). Hawthorne's reliance, however, is
misplaced. In Hussey, the trial court failed to give any cautionary instructions on accomplice testimony, and
in Wheeler, the accomplice's testimony was uncorroborated. As discussed above, the accomplice's
testimony here was corroborated. Additionally, in Wheeler, where the words "and suspicion" had been
omitted, the Court explained that the same instructions granted in the instant case would have sufficed.
Wheeler, 560 So. 2d at 174.

¶39. Furthermore, the instruction granted in the case at bar is a model jury instruction. Accordingly, this
Court finds that the trial court did not err in refusing Hawthorne's accomplice instruction.

      II. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S SUPPLEMENTAL
      MOTION FOR NEW TRIAL AND/OR IN NOT HOLDING AN EVIDENTIARY
      HEARING ON THE MOTION.

¶40. While Hawthorne's motion for new trial was pending, his attorney obtained a statement from McLaurin
averring that earlier statements given by him to the police implicating Hawthorne were given against his will
and coerced by the police. Hawthorne filed a supplemental motion for new trial with McLaurin's statement
attached to the motion. Hawthorne's attorney allegedly informed the trial court that McLaurin also stated on
his oath in a subsequent unrelated proceeding that his previous testimony implicating Hawthorne was false.
In denying the supplemental motion, the trial judge noted:

      Of particular note with respect to the instant motion is the fact that [McLaurin] has never recanted the
      testimony he gave in open court during the Defendant's trial in this Pearl River County case. In fact, he
      has not personally submitted any documents or evidence into the record into the record in this case to
      indicate any intention to withdraw either his Pearl River County guilty plea or his testimony in the Pearl
      River County trial of this Defendant. The trial of Sylvester Hawthorne took place in January, 1988.
      [McLaurin's] affidavit -which is not filed on record in either this case or the Lamar County case-deals
      solely with his statements to law enforcement personnel prior to trial and with [McLaurin's] own guilty
      plea. Thus, there is no evidence before the Court indicating that [McLaurin] wishes to recant his
      sworn trial testimony against the Defendant in this case.

      Moreover, the Defendant's assertions that "without . . . [McLaurin's testimony] the defense would
      have clearly been entitled to a directed verdict" is without merit. Even without [McLaurin's] testimony,
      there was sufficient testimony and physical evidence presented to submit this case to the jury.
      Accordingly, the Court finds that the Defendant's Supplemental Motion for New Trial should be
      denied as well.

¶41. Hawthorne argues that the trial court should have held an evidentiary hearing on the supplemental
motion for new trial to determine whether the new evidence was sufficient to order a new trial.

¶42. An evidentiary hearing is not necessary where the allegations in a petition for post-conviction relief are
specific and conclusory. Cole v. State, 666 So. 2d 767, 777 (Miss. 1995) (citing Celestine v.
Blackburn, 750 F.2d 353, 358 (5th Cir. 1984)). A new trial should be granted only when the new
evidence "give[s] rise to grave doubts of [the defendant's] guilt . . . or raise[s] a reasonable probability, that
if presented in a new trial, it would cause a jury to reach a different verdict." Entrekin v. State, 242 Miss.
262, 266, 134 So. 2d 926, 927 (1961); see also Turner v. State, 673 So. 2d 382 (Miss. 1996).

¶43. The trial court erred in finding that the evidence was sufficient to support a conviction without
McLaurin's testimony. McLaurin provided the only first-hand testimony which specifically designated
Hawthorne as a principal collaborator. Therefore, absent McLaurin's testimony, the remaining evidence fails
to support a conviction.

¶44. However, because McLaurin neither recanted the sworn testimony contained in the affidavit nor stated
that his testimony against Hawthorne was false, we find that the trial court did not err in foregoing an
evidentiary hearing and denying Sylvester's supplemental motion for a new trial. McLaurin only alleged that
the statements he gave to police during their investigation were given "against [his] will and [were] a form of
saving [himself] . . . ." Furthermore, the trial court was correct in not relying upon the unsworn statement of
an attorney concerning McLaurin's testimony in an unrelated, subsequent hearing. Therefore, the
supplemental motion for new trial reveals no new evidence which "raises a probability that, if presented in a
new trial, . . . would cause a jury to reach a different verdict." Accordingly, this Court finds that there was
no need to hold an evidentiary hearing and that the court did not err in denying Hawthorne's supplemental
motion for a new trial.

                                              CONCLUSION

¶45. Hawthorne fails to present any assignments of error requiring reversal on appeal. Therefore, the
judgment of the trial court is affirmed.

¶46. CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT
POSSIBILITY OF PAROLE PURSUANT TO MISS. CODE ANN. §§ 47-7-3(1)(d)(ii) and 47-7-
3(1)(g) (Supp. 1997) AFFIRMED.

      PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,
      SMITH, MILLS AND COBB, JJ., CONCUR.
