                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2004-KA-00383-SCT

JAMES T. ROCHE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                             01/23/2004
TRIAL JUDGE:                                  HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED:                    PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       JOHN A. HOWELL
ATTORNEYS FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL BY:
                                              JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                            CLAIBORNE (BUDDY) McDONALD
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  AFFIRMED - 04/14/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE WALLER, P.J., GRAVES AND RANDOLPH, JJ.

        WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.     A Pearl River County Circuit Court jury convicted James T. Roche of commercial

burglary.   The trial court subsequently sentenced Roche, per Mississippi’s habitual offender

statute, Miss. Code Ann. § 99-19-81 (Rev. 2000), to seven years in prison without eligibility

for parole. Roche now appeals the conviction which we affirm.

                                              FACTS

¶2.     In the early morning hours of November 12, 2002, Officer Raymond Rickoll, an off-

duty police officer, sat on his front porch smoking a cigarette when he noticed a two-toned,
gold or champagne-colored Lexus pass by his home in Picayune two or three times.           Officer

Rickoll said he was intentionally keeping an eye on the Sunflower grocery store, about 100

yards away, because his training officer had advised him that drug activity had been going on

near the store at night.

¶3.     At 1:57 a.m., he saw a black male get out of the Lexus, carry a black jacket in his hand,

and approach the Sunflower.1      Officer Rickoll then heard banging sounds coming from the

store but was unable to discern the source of the noise. He called the police, describing the

driver as a 195-pound black male, five feet, nine inches tall, wearing a black hat and black pants,

and carrying a black jacket in his hands.     The man subsequently drove away before Officer

Rickoll could reach him.

¶4.     Shortly thereafter, Officer Charles Esque, Jr. arrived at the Sunflower after hearing

Officer Rickoll’s message over the radio. After the store’s owner arrived and opened the door,

he and Officer Rickoll investigated the scene and discovered the window had been broken and

two black cash till drawers were missing as well as the change that had been left inside them. 2

A third till drawer had been emptied of its change and left in the Sunflower parking lot. The




        1
          Rickoll testified the lights in the parking lot enabled him to observe the man. We note
that although the record includes photos of the different views from Rickoll’s property (some
of which preclude the possibility Rickoll could have seen the Sunflower at all), the photos
were apparently taken on or next to the street. This diminishes the helpfulness of the photos
since Rickoll testified he was sitting on his porch when he witnessed the burglary and also
specifically testified the photos did not represent an accurate depiction of his view from the
porch.
        2
          The owner, Nam Nguyen, testified that prior to the robbery it was his practice to count
the bills and leave the change in the drawers.

                                                2
officers discovered nothing else missing and later found the other two drawers discarded on

different streets in Picayune.

¶5.        Officer Chad Dorn said that after receiving a call from dispatch conveying Officer

Rickoll’s description of the perpetrator, he noticed a “gold or brownish,” two-toned Lexus

traveling through east Picayune.     He followed the vehicle until it stopped at the local Texaco

station.    James T. Roche, the driver, got out of the vehicle and started walking toward Officer

Dorn. The passenger, Joseph Parkman, exited the vehicle and entered the store. After Roche

asked what was going on, Officer Dorn informed him he was driving a vehicle believed to be

involved in a local burglary.    At that point, Officer Dorn placed Roche in investigative custody.

¶6.        At 3:20 a.m., Officer Rickoll received a call from the police department summoning

him to the Texaco station. When he arrived, he recognized the Lexus as being the one he had

seen about an hour and a half earlier. The driver of the car, Roche, who is a black male, was

wearing a black hat and dark clothing. Officer Rickoll also noticed a black jacket in the back

seat of the car.    Although he could not identify Roche’s face, he testified that Roche was the

same height and build of the man he saw in the Sunflower parking lot.          Slightly contrary to

Officer Rickoll’s initial description of the perpetrator was Roche’s testimony that he is five

feet, eleven inches tall (as opposed to five feet, nine inches tall) and weighs 220 pounds (rather

than 195 pounds).

¶7.        Officer Esque looked through the window of the vehicle and saw two paper bags. On

one of the bags someone had written “Nickles - $7.00" and on the other bag someone had




                                                  3
written “Dimes - “$8.00.”3        Roche later stated he had hand-written the totals on the bags.

Officer Esque also saw a black jacket in the back seat.

¶8.       The officers searched the vehicle and, in addition to the bagged change, found $11.50

in quarters, $0.20 in nickels, and $0.03 in pennies in the console. After examining the jacket

in the back seat, Officer Esque said he noticed it was glittering with tiny pieces of glass.4 The

officers also found a car jack in the trunk.            Finally, the officers confiscated three rolls of

pennies Parkman used to pay for a pack of cigarettes.5

¶9.       At trial, Roche testified he and Joseph Parkman had been watching movies together,

listening to music, and drinking alcohol that night.         Both men testified that around midnight,

Roche left the house and said he was going back to his house to rob his piggy bank.6 He stated

he drove home, took a jug full of change, emptied it, counted it all out, placed the nickels and

dimes in separate bags, and returned by 12:30 a.m. 7            He testified that he and Parkman left

sometime later to purchase cigarettes and liquor, and were confronted by police after stopping

at the Texaco. Furthermore, on the stand, Roche contemporaneously estimated he “had about

$10 or $11 worth of quarters” in the console, but stated that the large amount of quarters in

his console was the result of dropping extra change in there over time.



          3
           Officer Esque counted $7.00 in nickels in the first bag and $9.10 in dimes in the
second.
          4
           The State did not submit into evidence the pieces of glass described by Officer Esque.
          5
       Although Nam Nguyen testified he believed some of the stolen change was loose and
some wrapped, he was not completely certain.
          6
           His house is six to seven blocks away.
          7
           Parkman could not remember how long Roche was gone.

                                                    4
                                             ANALYSIS

¶10.    On appeal, Roche raises five grounds of error: (1) the trial court erred in overruling

Roche’s objection to Officer Rickoll’s identification of him as the perpetrator; (2) the trial

court erred in failing to suppress evidence collected during the search of Roche’s vehicle; (3)

the trial court erred in refusing to strike the entire jury panel and declare a mistrial; (4) the

verdict was against the overwhelming weight of the evidence; and (5) the evidence was

insufficient to sustain the verdict.

        A. Identification

¶11.    Roche contends he was impermissibly identified by Officer Rickoll in a “show-up”

procedure at the Texaco and argues the trial court’s failure to sustain his objection to the

identification violated his constitutional right to due process.   The standard of review for trial

court decisions      regarding pretrial identification is “whether or not substantial credible

evidence supports the trial court's findings that, considering the totality of the circumstances,

in-court identification testimony was not impermissibly tainted.” Ellis v. State, 667 So. 2d

599, 605 (Miss. 1995) (citing Magee v. State, 542 So. 2d 228, 231 (Miss. 1989); Nicholson

v. State, 523 So. 2d 68, 71 (Miss. 1988); Ray v. State, 503 So. 2d 222, 224 (Miss. 1986)). We

will only disturb the order of the trial court “where there is an absence of substantial credible

evidence supporting it." Id. (citing Ray, 503 So. 2d at 224).

¶12.    We have previously held that “pretrial identifications which are suggestive, without

necessity for conducting them in such manner, are proscribed.”        York v. State, 413 So. 2d

1372, 1383 (Miss. 1982). The United States Supreme Court has also stated, “[t]he practice

of showing suspects singly to persons for the purpose of identification, and not as part of a

                                                   5
lineup, has been widely condemned.” Foster v. California, 394 U.S. 440, 443, 89 S.Ct. 1127,

22 L.Ed.2d 402 (1969) (quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 11

L.Ed.2d 1199 (1967)).

¶13.       There is support for Roche’s argument that it was impermissibly suggestive for the

officers to use a show up procedure to assist in his identification. When Officer Rickoll, the

only witness to the crime, arrived at the Texaco the police were questioning only one man,

Roche.         Roche wore the same type clothing Rickoll had seen the burglar wearing and stood

next to a Lexus which was similar in color to the one Rickoll reported seeing the burglar

driving.       Inside the car was evidence which ostensibly linked the driver to the crime. Rickoll

then identified Roche as the individual he saw breaking into the Sunflower. To quote Foster,

“The suggestive elements in this identification procedure made it all but inevitable that

[Rickoll] would identify [Roche] whether or not he was in fact ‘the man.’ In effect, the police

. . . said to the witness, ‘This is the man.’” Foster, 394 U.S. at 443. The show up identification

in question conspicuously singled Roche out and was impermissibly suggestive.

¶14.       However, the presence of an impermissibly suggestive identification is not the end of

our inquiry.        Such identification is admissible if, considering the totality of the circumstances

surrounding the identification procedure, the identification did not give rise to a very

substantial likelihood of misidentification. York, 413 So. 2d at 1383 (quoting Neil v. Biggers,

409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)).8               Reliability is the linchpin of

the inquiry. Gray v. State, 728 So. 2d 36, 68 (Miss. 1998) (citing Manson v. Brathwaite, 432


           8
        This standard applies to both in-court and out-of-court identifications.       York, 413 So.
2d at 1383.

                                                     6
U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Nathan v. State, 552 So. 2d 99, 104

(Miss. 1989)).      Under Biggers, the factors to be considered in evaluating reliability of the

identification under the totality of the circumstances include

        the opportunity of the witness to view the criminal at the time of the crime, the
        witness’ degree of attention, the accuracy of the witness’ prior description of
        the criminal, the level of certainty demonstrated by the witness at the
        confrontation, and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199-200; see, e.g., Gray v. State, 728 So. 2d 68-69 (finding show-up

procedure impermissibly suggestive but declaring identification reliable and admissible        after

reviewing circumstances under Biggers factors).             We therefore review, under the Biggers

factors, the reliability of Officer Rickoll’s identification of Roche and weigh it against the

corrupting effect of the suggestive identification.

        1. Opportunity to view the accused

¶15.    Rickoll viewed the burglar from approximately 100 yards away at a very early hour of

the morning.     Though he testified the lighting in the parking lot enabled him to view the man,

his opportunity to see the perpetrator’s face was limited by his distance from the perpetrator

and the darkness of the hour.

        2. Degree of attention.

¶16.    As a result of being warned by his training officer, Rickoll was already vigilant about

criminal activity going on in his neighborhood during late hours.       This indicates the degree of

attention to which he paid the event was heightened under the circumstances.

        3. Accuracy of prior description




                                                      7
¶17.    Rickoll described the burglar as a 195-pound black male, five feet, nine inches tall,

wearing a black hat and black pants, carrying a black jacket in his hands, and driving a two-

toned, gold or champagne-colored Lexus. Roche is a black male; he was wearing a black hat

and black pants when Officer Dorn stopped him; he had a black jacket in the back seat of his

vehicle; and he was driving a Lexus within the range of color Rickoll described. And though

Roche testified he is, in fact, 220 pounds and five feet, eleven inches tall, the slight disparities

in weight and height are, by no means, so inconsistent as to render Rickoll’s prior description

inaccurate.

        4. Witness's level of certainty at confrontation

¶18.    Upon seeing Roche at the gas station, Rickoll identified Roche as having the same

height and build of the man he saw outside the Sunflower. He also was certain the clothing was

the same clothing he described to the police when he reported the burglary. Even so, we note

that Rickoll’s certainty was necessarily limited by the fact that he had not seen the burglar’s

face.

        5. Length of time between the crime and the confrontation

¶19.    Rickoll identified Roche approximately an hour and a half after witnessing the burglary.

¶20.    As noted above, the “show up” procedure used by the Picayune Police Department was

impermissibly suggestive, but we do not turn a blind eye to the reliability demonstrated by

Rickoll’s identification of Roche. Though Rickoll’s opportunity to view the accused may have

been slightly limited, any concerns about the reliability of his identification are wholly

alleviated by the degree of attention to which he paid the event, the level of certainty upon

viewing Roche, the length of time between the crime and the confrontation, and, in particular,


                                                  8
the accuracy of his description despite the darkness of the hour and the fact that he was 100

yards away. As we stated in York,

        It can thus be observed that an accused who seeks to exclude identification
        testimony based upon an alleged due process violation faces a very heavy
        burden. Even though the pretrial identification is impermissibly suggestive, he
        must still show the conduct gave rise to a very substantial likelihood of . . .
        misidentification.

413 So. 2d at 1384.        Roche has not met his very heavy burden of showing the conduct gave

rise to a very substantial likelihood of misidentification, and this issue is without merit.

        B. Legality of Search

¶21.    Upon placing Roche in investigative custody, the officers searched the Lexus and

recovered a car jack from the trunk, two bags of change, an abundance of loose change, and a

black jacket. Roche argues the trial court erred in failing to suppress evidence collected during

the search of his vehicle.       In determining whether evidence should have been suppressed, we

will not disturb a trial court’s findings of fact on appeal unless the trial judge applied an

incorrect legal standard, committed manifest error, or made a decision contrary to the

overwhelming weight of the evidence. Taylor v. State, 733 So. 2d 251, 255 (Miss. 1999).

¶22.    “The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a

cardinal principle that ‘searches conducted outside the judicial process, without prior approval

by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to

a few specifically established and well-delineated exceptions.’” United States v. Ross, 456

U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (quoting Katz v. United States, 389

U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). There is an exception to the warrant

requirement in the context of vehicle searches. Maryland v. Dyson, 527 U.S. 465, 466, 119

                                                       9
S.Ct. 2013, 144 L.Ed.2d 442 (1999).             When probable cause justifies the search of vehicle

which police have lawfully stopped, “it justifies the search of every part of the vehicle and its

contents that may conceal the object of the search.” Ross, 456 U.S. at 825. The United States

Supreme Court has also stated,

           We made this clear in United States v. Ross, [456 U.S. at 809], when we said
           that in cases where there was probable cause to search a vehicle ‘a search is not
           unreasonable if based on facts that would justify the issuance of a warrant, even
           though a warrant has not been actually obtained.’ In a case with virtually
           identical facts to this one (even down to the bag of cocaine in the trunk of the
           car), Pennsylvania v. Labron, 518 U.S. 938, 116 S.Ct. 2485, 135 L.Ed.2d 1031
           (1996) (per curiam), we repeated that the automobile exception does not have
           a separate exigency requirement: ‘If a car is readily mobile and probable cause
           exists to believe it contains contraband, the Fourth Amendment . . . permits
           police to search the vehicle without more.’ Id. at 940.

Dyson, 527 U.S. at 467 (alterations omitted).

¶23.       The   search of Roche’s vehicle         falls squarely     within    the   Fourth Amendment’s

automobile exception.      The facts at hand justified issuance of a warrant to search Roche’s

vehicle.     The car was readily mobile, and probable cause existed to believe it contained

contraband; therefore, the Fourth Amendment permitted the officers to search the vehicle

without a warrant.       Every item the officers discovered came about as the result of a legal

search. The trial court did not err, and we find this issue is without merit.

           C. Striking of Jury Panel

¶24.       During voir dire, Roche’s attorney asked the jury panel if Roche’s prior convictions

would have an influence on whether they perceived him to be less believable. Several of the

jury members responded in the affirmative.          The attorney then requested the trial court strike

everyone who said they would find Roche less believable as a result of his prior convictions.


                                                     10
Rather than strike them, the trial judge questioned the jurors as to whether they could follow

the applicable law even if the convictions Roche’s attorney mentioned were raised during the

trial. Since no juror responded that he or she could not follow the law, the judge denied the

motion.

¶25.      Roche argues on appeal that the trial court erred in refusing to strike the entire jury

panel and declare a mistrial. Without citing any case law, he generally argues the trial court’s

decision irreparably prejudiced his defense and deprived him of due process under the federal

and state Constitutions.       Roche states, “While the trial court has no control over the

understanding of the jurors as to the basic rights in a criminal trial, it is unlikely that jurors who

believe a person should testify would be convinced by jury instructions that the presumption

of innocence attends the defendant throughout the trial.”       He also argues “such an attitude or

lack of understanding on the part of the jury has a chilling effect on the [d]efendant’s right to

be heard under Section 26 of the Mississippi Constitution.”

¶26.      Roche is procedurally barred from raising this issue for two reasons. First, he did not

request a mistrial. We have held

          It is now well settled that when anything transpires during the trial that would
          tend to prejudice the rights of defendant, he cannot wait and take his chances
          with the jury on a favorable verdict and then obtain a reversal of the cause in this
          Court because of such error, but he must ask the trial court for a mistrial upon
          the happening of such occurrence when the same is of such nature as would
          entitle him to a mistrial.

Box v. State, 610 So. 2d 1148, 1154 (Miss. 1992) (emphasis omitted). We apply this rule in

all cases unless a fundamental right is involved.         Id.   Though Roche cursorily names two

federal constitutional amendments as well as two sections of the Mississippi Constitution, he



                                                  11
makes no specific arguments, reinforced with authority, which demonstrate a violation of any

fundamental right.    This issue is therefore procedurally barred for the additional reason of his

failure to cite to supporting authority. See Dycus v. State, 875 So. 2d 140, 169 (Miss. 2004)

(“[F]ailure to cite any authority may be treated as a procedural bar, relieving us of any

obligation to consider the assignment.”), vacated and remanded on other grounds, 125 S.

Ct. 1589 (March 7, 2005) (for further consideration in light of Roper v. Simmons, 543 U.S.

___, 125 S.Ct. 1183 (2005)).

        D. Weight and Sufficiency of the Evidence9

        1. Sufficiency of the Evidence

¶27.    In the recent case of Bush v. State, __ So. 2d ___, 2005 WL 312039, *4-*5 (Miss.

2005), we discussed the standard which applies in a challenge to a verdict based on the

sufficiency of the evidence:

        In Carr v. State, 208 So. 2d 886, 889 (Miss. 1968), we stated that in
        considering whether the evidence is sufficient to sustain a conviction in the face
        of a motion for directed verdict or for judgment notwithstanding the verdict, the
        critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that
        accused committed the act charged, and that he did so under such circumstances
        that every element of the offense existed; and where the evidence fails to meet
        this test it is insufficient to support a conviction.’ However, this inquiry does
        not require a court to
                 'ask itself whether it believes that the evidence at the trial
                 established guilt beyond a reasonable doubt.' Instead, the relevant
                 question is whether, after viewing the evidence in the light most
                 favorable to the prosecution, any rational trier of fact could have
                 found the essential elements of the crime beyond a reasonable
                 doubt.


        9
        Roche’s brief overlaps his arguments regarding the standards of weight and sufficiency
of the evidence. We address them separately to provide a clear analysis of these two distinct
issues.

                                                12
        Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)
        (citations omitted)(emphasis in original).    Should the facts and inferences
        considered in a challenge to the sufficiency of the evidence ‘point in favor of
        the defendant on any element of the offense with sufficient force that
        reasonable men could not have found beyond a reasonable doubt that the
        defendant was guilty,’ the proper remedy is for the appellate court to reverse and
        render[, i.e. reverse and discharge]. Edwards v. Stat e, 469 So. 2d 68, 70 (Miss.
        1985)(citing May v. Stat e, 460 So. 2d 778, 781 (Miss. 1984); see also Dycus
        v. State, 875 So. 2d 140, 164 (Miss. 2004). However, if a review of the
        evidence reveals that it is of such quality and weight that, ‘having in mind the
        beyond a reasonable doubt burden of proof standard, reasonable fair-minded
        men in the exercise of impartial judgment might reach different conclusions on
        every element of the offense,’ the evidence will be deemed to have been
        sufficient.

¶28.    In order to prove Roche committed the crime of commercial burglary, the State was

required to prove he (1) broke and entered; (2) in the day or night; (3) any shop; (4) with intent

to steal. Miss. Code Ann. § 97-17-33 (Rev. 2000). Considering the evidence in the light most

favorable to the State, we find there was sufficient evidence with which to convict      Roche of

commercial burglary.

¶29.    In the early morning hours, Officer Rickoll saw a black man with the same build as

Roche, who, like Roche, was driving a Lexus, wearing a black outfit (including a black cap), and

carrying a black jacket. The man (1) broke and entered; (2) at night; (3) the Sunflower store;

and (4) stole change from the register tills.        Shortly after the Sunflower break-in, officers

stopped Roche and discovered $0.03 in pennies, $7.20 in nickels, $9.10 in dimes, and $11.50

in quarters. In light of these facts, which we view in the light most favorable to the State, we

find that any rational juror could have found beyond a reasonable doubt that all of the elements

had been met by the State in proving Roche committed the crime of commercial burglary. This

issue is without merit.



                                                13
       2. Weight of the Evidence

¶30.   In Bush v. State, we also discussed the standard which applies in a challenge to a verdict

based on the weight of the evidence.

       When reviewing a denial of a motion for a new trial based on an objection to the
       weight of the evidence, we will only disturb a verdict when it is so contrary to
       the overwhelming weight of the evidence that to allow it to stand would sanction
       an unconscionable injustice. We have stated that on a motion for new trial, the
       court sits as a thirteenth juror. The motion, however, is addressed to the
       discretion of the court, which should be exercised with caution, and the power
       to grant a new trial should be invoked only in exceptional cases in which the
       evidence preponderates heavily against the verdict.

       However, the evidence should be weighed in the light most favorable to the
       verdict. A reversal on the grounds that the verdict was against the overwhelming
       weight of the evidence, unlike a reversal based on insufficient evidence, does
       not mean that acquittal was the only proper verdict. Rather, as the ‘thirteenth
       juror,’ the court simply disagrees with the jury's resolution of the conflicting
       testimony. This difference of opinion does not signify acquittal any more than
       a disagreement among the jurors themselves. Instead, the proper remedy is to
       grant a new trial.

__ So. 2d at ___, 2005 WL 312039 at *4-*5 (footnotes, citations, & internal quotations

omitted).

¶31.   Sitting as a limited “thirteenth juror” in this case, we cannot view the evidence in the

light most favorable to the verdict and find an unconscionable injustice will result from the

jury’s determination of Roche’s guilt.        The numerous consistencies between Rickoll’s

description of the perpetrator and Roche gave the jury more than enough evidence with which

to convict. This is particularly true in light of the early hour of the morning which the burglar

broke into the store and Roche’s appearance just an hour and a half later carrying a variety of

demarcated change.      Furthermore, we cannot fault the jury for refusing to believe Roche’s

tenuous explanation for the presence of the change in his vehicle.     Roche testified that in a


                                              14
mere thirty minutes he drove home, emptied his change jug, only counted out nickels and

dimes, placed them in separate paper bags, and returned to Parkman’s house.            He further

explained the $11.50 in quarters came from occasionally dropping change in his console,

despite the fact that there were only twenty-three cents in other change there.     The evidence

by no means heavily preponderates against the verdict, and we affirm the trial court’s decision

to deny the Motion for New Trial.

                                        CONCLUSION

¶32.   After a complete review of the trial record in the underlying case, we find the trial court

properly admitted the evidence of Roche’s identification as well as the evidence collected

during the search of his car; the evidence was sufficient to convict; the verdict was not against

the weight of the evidence; and Roche is procedurally barred from arguing the trial court erred

in refusing to strike the entire jury panel.   Accordingly, we affirm the Pearl River County

Circuit Court’s judgment.

¶33. CONVICTION OF COMMERCIAL BURGLARY AND SENTENCE OF SEVEN
(7) YEARS, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED.

      SMITH, C.J., COBB, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH,
JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. DIAZ, J., NOT
PARTICIPATING.




                                               15
