IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-KA-01674-SCT
MARY McQUARTERS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/05/2009 TRIAL JUDGE: HON. FORREST A. JOHNSON, JR. COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS BY: ERIN ELIZABETH PRIDGEN LESLIE S. LEE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: RONNIE LEE HARPER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/30/2010 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WALLER, C.J., RANDOLPH AND CHANDLER, JJ.
RANDOLPH, JUSTICE, FOR THE COURT:
¶1. Mary McQuarters called 911 after discovering her boyfriend, Pete Jackson, dead in
their bedroom with a deep cut on his wrist, a gash on the top of his head, and a small cut on
his left eyebrow. When police arrived on the scene, and in a subsequent police statement
later that evening, McQuarters in no way implicated herself in the incident. She suggested
that one of Jackson’s close friends may have been responsible. Only in subsequent police
statements did McQuarters disclose that she and Jackson had engaged in a violent domestic
dispute the night before she discovered his body, and that in self-defense she had cut his forearm and thrown multiple glass objects at him. The coroner and forensic pathologist both
concluded that Jackson died from blood loss resulting from a stab wound to his forearm.
¶2. McQuarters was indicted for the murder of Jackson. At trial, the Circuit Court of
Adams County, Mississippi, granted McQuarters a directed verdict of acquittal on the murder
charge, but allowed the case to proceed on the lesser offense of manslaughter. A jury found
McQuarters guilty of manslaughter. The circuit court sentenced her to twenty years in the
custody of the Mississippi Department of Corrections (MDOC), with fifteen years to serve
and the remaining five years suspended, to be served on formal, reporting, post-release
supervision. Following the denial of her “Motion for a New Trial,” McQuarters filed a
“Notice of Appeal.” On appeal, McQuarters contends that the circuit court should have
applied the Weathersby 1 rule and granted her a directed verdict of acquittal on the
manslaughter charge.
FACTS
¶3. McQuarters and Jackson lived together, on and off, for fourteen years. On September
28, 2007, the couple had just resumed living together. McQuarters testified 2 that Jackson had
arrived home with dinner that evening at around 9:00 or 9:30 p.m. Before they began eating,
Jackson’s friend, Kevin Buchanan, arrived and “asked [Jackson] did he want to go to work
the next morning with him and another friend[,] . . . Clarence Brown . . . .” After Buchanan
1 See Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933). 2 The testimony and attending direct quotes referenced in ¶¶ 3-8 infra, are from McQuarters’s trial testimony.
2 had left, McQuarters and Jackson began arguing because “in the past, [Brown] had always
caused a lot of problems [because] he was a drug dealer and [was] always taking all of
[Jackson’s] money.” Jackson then “got angry, and . . . asked me to stay out of his business,”
at which point she told him that he could move back out “if you’re not going to change your
lifestyle and respect some of my opinions . . . .”
¶4. At that point, Jackson “took a big glass coffee table and pushed it . . . on top of my
foot[,]” shattering the glass. After removing her foot from her shoe, McQuarters attempted
to leave through the front door, but Jackson “took the big floor mount television and pushed
it over to prevent me from leaving . . . .” McQuarters then began running down the hall, but
slipped and fell, and Jackson:
grabbed me and started choking me around my neck, and I was asking him to please let me go, but he wouldn’t and I started getting dizzy, gasping for breath. So I reached over and . . . grabbed a piece of glass . . . with my left hand and stuck . . . him with it,[3 ] but he still didn’t remove his hand.
(Emphasis added.) Jackson released McQuarters’s neck only when she bit his hand. She
then continued to attempt to run down the hall, but Jackson grabbed her leg, stating, “I will
kill you, low down black b****, if you don’t stay out of my business.”4 After McQuarters
3 McQuarters testified that “I was just trying to save my own life because [Jackson] was real different that night. He was not his usual self – [it] was not our usual fight.” 4 Brandy Bernard, the tenant of the duplex adjoining McQuarters’s home, told police officers that she heard “loud noises,” “fussing,” and “the walls kind of bumping” at approximately 9:17 p.m. Bernard testified that the noise continued for “maybe twenty, thirty minutes.” During that time, Bernard stated that the “[o]nly thing I heard was [Jackson], I heard him say, ‘B****, I’ll kill you,’ or something like that.” According to Detective Jerry Ford of the Natchez Police Department, Bernard told him that “she heard [Jackson] cursing
3 began kicking Jackson, he released her and fell against the wall, then “next thing I knew we
were both standing in the kitchen . . . and he . . . showed me his arm and he said, ‘Look, what
you did.’” At that time, Jackson was not bleeding profusely, “[j]ust dripping[,]” and when
McQuarters asked if he needed medical attention he replied that “it will be all right.”
¶5. According to McQuarters, “normally when we fight one of us leaves. . . . So
[Jackson] asked me . . . can I just go ahead on and catch some fresh air and cool off and come
back later.” She agreed, and as she was changing clothes, her nephew, Patrick Conner,
arrived.5 McQuarters “told [Conner] that I did something bad. That . . . [Jackson] and I got
into a big fight, and I think I cut him on the arm.” 6 Before leaving, McQuarters informed
Jackson that Conner’s friend, Dietrich Johnson Singleton, was taking her into town and that
Conner was going to stay at home with him.7 Upon leaving, Jackson “was sitting on the
couch . . . with the wash cloth . . . on his hands[,]” and “said he would be okay . . . .”
saying, ‘You mother****er.’ [Bernard] stated she heard furniture turning over and tumbling as though someone was in a struggle.” Bernard testified further that she had heard a second altercation at McQuarters’s home around 11:47 p.m. 5 Conner had been living at McQuarters’s home for approximately one month. 6 In Conner’s first police statement, he made no mention of McQuarters discussing her altercation with Jackson. In his second police statement, according to Detective Ford, Conner provided that McQuarters “told him she did something real bad. Then she stated she cut [Jackson’s] wrist and hit him in the head.” 7 By contrast, according to Detective Ford, Conner’s statements to police provided that McQuarters “told him don’t help [Jackson], and she left.” According to those statements, when Conner asked Jackson if he needed help, Jackson told him that he would be all right and asked him to leave. Conner then went to spend the night at another aunt’s home.
4 ¶6. Singleton dropped McQuarters off at a local restaurant, Taste of Chicago, at 10:40
p.m. McQuarters then stayed up all night talking with friends and drinking beer. At
approximately 5:00 a.m. on September 29, 2007, McQuarters called Conner “[t]o ask him
how [Jackson] was and to come pick me up. [Conner] said he had to get up and go to work.
He didn’t have time to pick me up.” That afternoon, McQuarters arrived at the Lunch Box
restaurant and arranged to receive a ride home from employee Cathy Allen. Allen testified
that, following her shift, she drove McQuarters home and “we didn’t discuss anything, but
[McQuarters] was very upset, and she would not tell me what was wrong with her . . . . She
was crying.” 8 According to Allen, she dropped McQuarters off around 4:15 or 4:20 p.m.
¶7. Upon arriving home, McQuarters “went straight to the sink and washed [some] fish,
and [Conner] came in behind me, and he was telling me that he was sorry about something.
So I told him I will talk to him . . . after I cooked.” But several minutes later, McQuarters
started to “wonder what he’s sorry about. So I went back outside to ask him where was
[Jackson], and [Conner] told me he was in the house.” Shortly thereafter, McQuarters
discovered Jackson on his knees at the foot of their bed, unresponsive. According to
Conner’s third police statement, McQuarters then came outside and stated that “somebody
killed” Jackson.
¶8. When police arrived on the scene, Bernard testified that McQuarters “stepped into my
apartment . . . and she just said that someone had killed [Jackson].” When Bernard “asked
8 McQuarters denied being upset and crying.
5 what had happened,” she testified that McQuarters “was like . . . she didn’t do anything to
him. They . . . have got in a fight and . . . she only cut him on the wrist or something . . . .”
McQuarters admitted that when she spoke with police officers on the scene, she did not
mention her prior altercation with Jackson. According to Officer Danny Barber of the
Natchez Police Department, McQuarters:
told me that she had just gotten in, and she went in the house and observed blood all over the house, and she walked through the house, and that’s when she found [Jackson] in the bedroom, and he appeared to be deceased. That someone had possibly hit him in the head . . . .
Officer Barber added that McQuarters in no way had implicated herself in the incident.
Detective Ford testified that “from what I had been told, [McQuarters] said someone had
broke in her apartment and killed her boyfriend.” McQuarters further acknowledged that she
had indicated to the police officers that Jackson’s close friend, Edward Palmer, needed to be
considered as a suspect. According to Detective Ford, when he “asked [McQuarters] if she
knew [who] may have done that, . . . she said that the only person she could recall is maybe
[Palmer] because of [Jackson] and [Palmer] having some type of argument over some money
or something of that nature.”
¶9. Multiple witnesses testified that a subsequent investigation of McQuarters’s home
revealed general disarray, with large amounts of blood in the kitchen,9 hallway, and living
9 Officer Barber testified that there were “huge puddles [of blood] on the kitchen floor, and there was one big towel on the floor that was completely soaked in blood.”
6 room, in addition to the hallway walls.10 The pool of blood in the living room contained
broken glass, and there was also a broken glass coffee table; a broken lamp; three liquor
bottles, one of which was covered in blood; a broken ceramic angel lying on the floor; an
overturned television; and a broken remote control. When Officer Barber located Jackson,
he was slumped over the foot of the bed with a deep cut on his wrist, a gash of approximately
two inches on the top of his head,11 a small cut on his left eyebrow, and “no pulse, . . . his
body was cold.”
¶10. Both Lee and Dr. Steven Hayne, tendered and accepted as an expert in the field of
forensic pathology, testified that Jackson had died from blood loss resulting from a stab
wound to the left forearm, and ruled the death a homicide. According to Dr. Hayne, the
wound “extend[ed] to a depth of approximately six inches, and the stabbing instrument went
through major blood vessels including the left radial artery . . . .” Dr. Hayne’s autopsy of
Jackson also revealed “a concentration of ethyl alcohol . . . of 0.060 percent,” and “a trace
amount of cocaine.”
10 Adams County coroner James Lee described it as “a horrifying scene . . . .” 11 Both Officer Barber and Detective Ford testified that Jackson’s head appeared extremely clean, as if someone had wiped the blood off. Lee added that, “a person who had as much blood in the hallway that I have seen, this guy should have been covered with blood all over somewhere, but apparently he had been cleaned or something.”
7 ¶11. McQuarters’s first police statement, given at 10:00 p.m. on September 29, 2007,
provided that Jackson had arrived home with food at 10:30 p.m. on September 28, 2007.12
McQuarters stated that she did not eat “[b]ecause I wanted to go up to Taste of Chicago.” 13
After getting a ride from Singleton, McQuarters “stayed up town all ni[ght] Friday up until
. . . later Saturday evening.” Upon receiving a ride home from Allen, McQuarters entered
through the kitchen door and “started frying fish without even looking around.” Soon
thereafter, she began “feeling funny” and went outside to ask Conner if he had seen Jackson.
According to McQuarters:
[b]ecause he said to me that he was on the sofa [a]sleep when I talked with [Conner] from Taste of Chicago around 5:00 [a.m.,] I went in [and] . . . saw all of the blood on the kitchen floor. . . . Then I entered the bed[room] [and] found [Jackson] on his knees with a big gash on the back of his head.[14 ]
McQuarters then called 911. At trial, McQuarters admitted that, in her first police statement,
she had not mentioned her altercation with Jackson, that Jackson had been choking her, or
that she had cut Jackson on the forearm.
¶12. McQuarters was arrested on September 30, 2007. Her second police statement, given
at 1:00 p.m. that day, provided that on September 28, 2007:
my fiancé [Jackson] and I got into a fight about money someone owed him. [Jackson] began to kick me on the leg and then hit me on the head with his fist. [Jackson] grabbed the glass coffee table and turn[ed] it over, breaking the
12 At trial, McQuarters acknowledged that Jackson actually “came home around 9:00 or 9:30 . . . .” 13 At trial, McQuarters admitted that this statement was untrue. 14 At trial, McQuarters testified that this final quoted sentence was untrue.
8 glass. I picked up a piece of the glass with my left hand and cut [Jackson] on the arm. As I tried to go out . . . [Jackson] knocked the t.v. down and prevented me from leaving. . . . [Jackson] grabbed me by the leg and I started kicking asking him to let me go. After he turned me . . . loose[15 ] I went by the black stand, and grabbed everything that was breakable and I started throwing [it] at [Jackson]. I threw a Hypnotic [liquor] bottle and a ceramic angel . . . . [Jackson] was bleeding and I asked him if he wanted to go to the hospital and he said no because it’s not that bad. I met [Conner] at the door. I told him that I had done something bad. . . . [Conner] . . . asked [Jackson] to go to the hospital, but [Jackson] told him [“]no[”] that he’ll be ok.
Thereafter, McQuarters got a ride from Singleton, “partied . . . until the next day[,]” returned
home, and “started frying fish.” At that point, she “thought it was strange to not hear
[Jackson’s] voice. So I went outside to talk to [Conner] but he was on the phone, so I went
back inside . . . , that’s when I noticed all of the blood over the floor.” After discovering
Jackson in the bedroom, she called 911.
¶13. McQuarters’s third police statement, given on October 4, 2007, provided that after the
altercation with Jackson, her clothing had been blood-stained, so she had placed her pants
and shoes “in the gym sack in [Conner’s] room[,]” and put her socks, shirt, and two towels
in the washing machine. After changing clothes, McQuarters called Conner and “told him
that I had did something . . . that I had cut [Jackson] on his arm but [Jackson] said that it
wasn’t that bad when I ask him if he wanted to go to the hospital.” The statement concluded
that when she had left for Taste of Chicago, Jackson “was sitting on the sofa with a towel on
his arm.” This third police statement did not mention Jackson choking McQuarters.
15 In her second police statement, McQuarters admittedly made no mention of Jackson choking her.
9 ¶14. On October 2, 2008, McQuarters was indicted, along with Conner, under Mississippi
Code Section 97-3-19 for “acting in concert, each with the other, [to] wilfully, unlawfully,
feloniously and with malice aforethought, kill and murder [Jackson] . . . .”
¶15. McQuarters’s jury trial commenced on August 4, 2009. After the State rested,
McQuarters moved for a directed verdict of acquittal. The circuit court found that
McQuarters was entitled to a directed verdict, stating:
[t]he State has chosen to proceed under an indictment with the language charging [McQuarters] with what’s referred to as deliberate design murder. Malice aforethought murder. That is the language of the indictment very clearly. . . . It would appear to the [c]ourt that [depraved heart murder] would have been the proper charge . . . . The State has presented ample evidence which would give a prima facie case of a depraved heart murder. The problem is that [McQuarters] has not been put on notice of that.
(Emphasis added.) But the circuit court added that:
under Section 99-19-5,[16 ] clearly [McQuarters is] on notice as to manslaughter which is clearly a lesser included offense, and manslaughter is essentially the killing of a human being without malice in the heat of passion but in a cruel or unusual manner, . . . without authority of law and not in necessary self defense. Very clearly, the State has presented ample evidence in that regard.
(Emphasis added.) Thus, the case proceeded on the lesser offense of manslaughter. After
the State rested finally, McQuarters renewed her motion for directed verdict, which the
circuit court denied. The jury found McQuarters guilty of manslaughter, and the circuit court
16 “For purposes of this section, manslaughter shall be considered a lesser included offense of murder . . . .” Miss. Code Ann. § 99-19-5(2) (Rev. 2007). See also Miss. Code Ann. § 97-3-19(3) (Rev. 2006) (“[a]n indictment for murder . . . shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including . . . manslaughter.”).
10 sentenced her to twenty years in the custody of the MDOC, with fifteen years to serve and
the remaining five years suspended, to be served on formal, reporting, post-release
supervision. Following the denial of her “Motion for a New Trial,” McQuarters filed a
“Notice of Appeal.”
ISSUE
¶16. This Court will consider:
Whether the circuit court committed reversible error when it declined to apply the Weathersby rule and, therefore, grant McQuarters a directed verdict of acquittal on the manslaughter charge.
ANALYSIS
¶17. McQuarters contends that she “was the only eyewitness to the homicide[,] . . . testified
that she injured [Jackson] in self-defense[,]” and that such testimony was not “substantially
contradicted in material particulars” by her prior police statements. According to
McQuarters, her police statements, “taken individually, only describe a particular point in
time during the entire two-day span of Friday evening to Saturday evening. Each statement
included more detail than the previous. Taken as a whole, the statements tell the entire
sequence of events . . . .” As such, McQuarters argues that “[g]iven the uncontradicted
statements and evidence of material facts presented at trial, the trial court erred in not
apply[ing] Weathersby and in finding there was sufficient evidence to instruct the jury to
consider manslaughter.”
11 ¶18. The State responds that McQuarters “is asking this Court to ignore all evidence, save
for her account of the events in question and overturn the reasonable jury’s verdict of guilty.”
According to the State:
[t]o do this, th[is] Court would necessarily have to set aside her conflicting statements to police, her own testimony that portions of her statements were untrue, the physical evidence of the crime scene, the fact that she attempted to direct suspicion at another person for the crime, and well-settled case law that says that when there is conflicting evidence, the Weathersby rule does not apply.
Furthermore, the State poses the following question, “[e]ven if, for the sake of argument, all
other evidence and testimony were to be ignored, which of [McQuarters’s] versions is the
one that should be accepted?”
¶19. This Court has stated that, “Weathersby . . . is nothing more than a particularized
version of our general standards according to which courts must decide whether in a criminal
prosecution the accused is entitled to a judgment of acquittal as a matter of law.” Johnson
v. State, 987 So. 2d 420, 425 (Miss. 2008) (quoting Jackson v. State, 551 So. 2d 132, 136
(Miss. 1989)). “When considering a motion for directed verdict, all evidence introduced by
the State must be accepted as true, together with all reasonable inferences therefrom. If there
is sufficient evidence to support a guilty verdict, the motion for directed verdict must be
overruled.” Green v. State, 631 So. 2d 167, 175 (Miss. 1994) (internal citations omitted).
¶20. “[W]e have long held that ‘the jury has no right to disregard arbitrarily evidence that
is uncontradicted and not unreasonable or improbable on its face.’ . . . Weathersby is but an
elaboration of this view.” Heidel v. State, 587 So. 2d 835, 839 (Miss. 1991) (quoting
12 Fortenberry v. State, 216 Miss. 243, 251, 62 So. 2d 325, 327 (1953); McLeod v. State, 140
Miss. 897, 901, 105 So. 757 (1925)). Weathersby provides that:
the established rule in this state [is] that where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
Weathersby, 147 So. at 482. See also Blanks v. State, 547 So. 2d 29, 33 (Miss. 1989)
(“[w]here the defendant is the only eyewitness to a slaying, his version must be reasonable
and credible before he is entitled to an acquittal under the [Weathersby] rule.”) (emphasis
added).
¶21. But “[i]t is a rare case that meets all of the requirements of the [Weathersby] rule.”
Sartain v. State, 311 So. 2d 343, 345 (Miss. 1975) (quoting Murphy v. State, 232 Miss. 424,
430, 99 So. 2d 595, 598 (1958)). See also Fairley v. State, 871 So. 2d 1282, 1284 (Miss.
2003) (quoting Buchanan v. State, 567 So. 2d 194, 196 (Miss. 1990)) (“[d]efendants have
often cited and argued application of the Weathersby [r]ule, but seldom have they prevailed.
Usually, a factual issue is presented which requires submission of the case to the jury.”).
Under Weathersby, differences in mere detail, not “controlling substance[,]” are permissible.
Weathersby, 147 So. at 482. But this Court has stated further that the Weathersby rule is
inapplicable “where the defendant’s conduct and statements following the killing are
inconsistent with his version of the events as recounted at trial.” Green, 631 So. 2d at 174
(citing Blanks, 547 So. 2d at 34) (emphasis added). See also Fairley, 871 So. 2d at 1284
(“[w]here conflicting stories are given about a homicide by the accused, the Weathersby
13 [r]ule does not apply . . . .”); Blanks, 547 So. 2d at 33 (citations omitted) (application of the
Weathersby rule is precluded “where the accused, following the slaying, gives conflicting
versions of how the killing took place, or initially denies the act.”).
¶22. This Court finds salient factual similarities between the case sub judice and Sartain.
In Sartain:
[t]he appellant[-wife], within a short while, related three versions of what had transpired: (1) that a man who tried to sell [the victim-husband] some whisky came in, an argument ensued and the man supposedly stabbed [the victim- husband] on the front steps; (2) that a woman down the street who had been trying to go with [the victim-husband] stabbed him; and (3) that a man dressed in black came into the room, jumped on the bed, started fighting with [the victim-husband], and as they wrestled from the bedroom to the front door, the man stabbed him.
Sartain, 311 So. 2d at 344. Following her arrest based upon these conflicting versions, the
appellant-wife was indicted and convicted for the murder of her husband. See id. at 343-44.
On appeal, the appellant-wife argued that her written statement given to police following her
arrest provided “ample proof that the killing was justified in that she was acting in necessary
self-defense; that it was done while she was repelling the [victim-husband’s] attempt to
commit a felony upon her; and, that under the Weathersby rule she was entitled to a directed
verdict of acquittal.” Id. at 344. This Court rejected that argument, concluding that:
[u]nder these circumstances, and considering the fact that appellant[-wife] did not complain to the investigating officers of having been choked and beaten and that the [victim-husband] was attempting to commit an unnatural act upon her as alleged in her statement, we are of the opinion that the trial court was correct in not granting her the benefit of the Weathersby rule . . . .
Id. at 345.
14 ¶23. This Court finds no error by the circuit judge in deeming the Weathersby rule
inapplicable under the circumstances, as McQuarters’s “conduct and statements following
the killing” were undeniably “inconsistent with [her] version of the events as recounted at
trial.” Green, 631 So. 2d at 174. Most notably, at both the crime scene and in her first police
statement, McQuarters made no mention of her altercation with Jackson or of cutting him on
the forearm. Instead, McQuarters told police officers that someone possibly had hit Jackson
on the head and suggested that Palmer should be considered a suspect. The circuit judge
aptly stated at sentencing that “every action you took looked like it was to cover something
up.” Moreover, the aforementioned evidence, along with other evidence presented, calls into
question the reasonableness and credibility of the version McQuarters recounted at trial. See
Blanks, 547 So. 2d at 33. Such other evidence included the following: McQuarters never
alleged that Jackson had choked her until trial;17 her purported concern for Jackson following
the altercation was disputed by Conner’s police statements; she initially had failed to notice
the abundant quantities of blood in her home, despite multiple witnesses testifying that the
scene was alarming; and she had acknowledged that portions of her police statements were
untrue. Considering all of the aforementioned evidence collectively, this Court concludes
that the circuit court did not err in denying McQuarters’s motion for directed verdict on the
manslaughter charge. As such, it was “a jury issue as to whether to believe or not believe the
defendant’s testimony of how the slaying occurred, and to either convict or acquit.” Id. at
17 Additionally, photographs taken of McQuarters on October 1, 2007, reveal that while McQuarters did have some bruises on her body, no choke marks were visible.
15 33-34 (citations omitted). See also Burrell v. State, 613 So. 2d 1186, 1192 (quoting Byrd
v. State, 522 So. 2d 756, 760 (Miss. 1988)) (“[t]he jury is the sole judge of the weight and
credibility of the evidence.”).
CONCLUSION
¶24. Based upon the aforementioned analysis, this Court affirms McQuarters’s conviction
and the attending sentence imposed by the Circuit Court of Adams County.
¶25. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH FIFTEEN (15) YEARS TO SERVE AND FIVE (5) YEARS ON FORM AL REPORTING POST-RELEASE SUPERVISION, W ITH CONDITIONS, AFFIRMED.
WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.