IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED FEBRUARY SESS ION, 1997 October 28, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9606-CC-00222 )
Appellee, ) SULLIVAN COUNTY )
)
V. )
) HON. R. JERRY BECK, JUDGE ERNEST LEON POWERS, JR. )
) (ESPECIALLY AGGRAVATED Appe llant. ) ROBB ERY; F ELON Y MU RDER )
FOR THE APPELLANT: FOR THE APPELLEE:
LYNN DOUGHERTY JOHN KNOX WALKUP HUDSON & DOUGHERTY Attorney General & Reporter 131 Eighth Street P.O. Box 189 KENNETH W. RUCKER Bristol, TN 37621 Assistant Attorney General 425 Fifth Avenue North
2nd Floor, Cordell Hull Building Nashville, TN 37243
H. GREELEY WELLS, JR.
District Attorney General
PHYLLIS H. MILLER
Assistant District Attorney General
BARRY P. STAUBUS
Assistant District Attorney General P.O. Box 526
Blountville, TN 37617-0526
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, JUDGE
OPINION
The Defendant, Ernest Leon Powers, Jr., was convicted of felony murder, in the perpetration of robbery, and especially aggravated robbery following a jury trial in the Sullivan County Criminal Court. Defendant was sentenced to life imprisonment on the felony murder conviction, and the trial court sentenced him to twenty (20) years for the conviction of especially aggravated robbery. The sentences were ordered to be served consecutively. In this appeal as of right pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure, Defendant presen ts five issues: (1) The trial court erred by denying his motion to suppress statem ents taken from D efendant by law enforcem ent officers in violatio n of his protection against self-incrimination and his right to counsel; (2) the evidence was insufficient to sustain the convictions of felony murder and especially aggravated robbery; (3) the trial court erred by overruling his objection to the admissibility of a photograph of the victim which the Defendant argues the probative value was far outweighed by the prejudicial effect; (4) the trial co urt erre d in de nying h is motion for new trial b ased u pon an alternate juror falsely s wearin g durin g voir dire; and (5) the trial court erred by ordering the sentences to be served consecu tively. Finding the evidence to be sufficient and no reversible error, we affirm the ju dgme nt of the trial co urt.
I. MOTION TO SUPPRESS STATEMENT
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The Defendan t gave two statements to Detectives Dale Boyd and Rick Hodges of the Sullivan C ounty Sheriff’s Department, one on September 21, 1994 and another on September 22, 1994 . Both s tatem ents w ere tak en wh ile Defendant was in custody. On each occasion, Defendant was a dvised of h is rights according to Miranda v. Arizona, 384 U.S. 43 6 (1966), and the Defendant signed a waiver of those rights on each occasion prior to giving the written and signed statem ents. Recently, in State v. Odom, 928 S.W.2d 18 (Tenn. 1996), the supreme court held as follows:
The party prevailing in the trial court is entitled to the strongest legitimate view of the evidence adduced at the suppression hearing as well as all reasonable and legitimate inferences that may be drawn from that evidence. So long as the greater weight of the evidence supports the trial court’s findings, those findings shall be upheld. In other words, a trial court’s findings of fact in a suppression hearin g will be uphe ld unle ss the evidence prepon derates otherwis e.
Odom, 928 S.W.2d at 23.
Detective Boyd and Detective Hodges testified at the suppression hearing.
Each stated that the Defendant understood everything. He was coherent and understood his rights. The D efenda nt did not re quest a n attorne y. Both officers confirm ed that the re was n o coerc ion of the D efenda nt.
Defendant testified that he reques ted an attorney during the second interview when the officers described all of the evidence they had gathered subsequent to the first interro gation. H e claime d to have asked the officers three different times for an attorney. He also claimed that the officers told him the
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punishment for first de gree m urder was th e dea th pen alty. He claimed that Detective Hodges made promises to him regarding the charges and punishment if he would just “com e clean.”
In its findin gs of fa ct, the tria l court s tated th at it had c onsid ered a ll of the proof, an d the de mean or of the w itnesses , and cam e to the conclusion that the statem ents we re freely, volun tarily, and kn owingly g iven by the Defen dant.
Our review of the record indicates that the evid ence d oes no t prepon derate agains t the finding of the trial cou rt. Therefo re, this issue is without m erit.
II. SUFFICIENCY OF THE EVIDENCE
On the night of September 16, 1994, the victim, J immy L ee Cu llop, Sr., was found d ead on the bed room flo or of his trailer lo cated in Su llivan Coun ty, Tennessee. The v ictim lived alone. He was found by one of his daughters and a friend, Eddie McElyea. The body was in an advanced state of decomposition. On the preceding day, Mr. McElyea had gone by the house to see the victim but noted his vehicle was gone and assumed that the victim was not at home. Howeve r, Mr. McElyea had noticed flies in the bedroom window and through a partially opened curtain, observed the victim’s television in his bedroom was turned o n.
The last time tha t any friend or family mem ber had se en the victim alive was M onday n ight, Sep tembe r 12, 199 4.
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At the time of his death, the victim own ed a van , a Malibu vehicle, a C hevy Blazer truck, and a Buick Electra automobile. It was well known that the victim would not loa n to an yone h is Buic k Elec tra, wh ich wa s yellow in color with a dark vinyl top. He owned two handguns, including a silver-colored .22 caliber nine- shot revolver. A nine-shot .22 caliber pistol with its serial numbers having been ground off was identifie d by fam ily members and friends as either definitely being, or very similar to, the same type of gun owned by the victim at th e time of his death. This pistol was found in the p osse ssion of the D efend ant at th e time of his arrest on Septem ber 21, 1 994.
Testimony of witnesses and photographs introduced into evidence indicated that various items of personal property located on dressers, nightstands, and a filing cab inet in the victim’s hom e were arranged and located on the furniture in a normal fashion and had not been knocked over or otherwise disturbed. The State’s theory was that this indicated that there had been no struggle b etween the victim a nd the D efenda nt prior to the homic ide.
According to witnesses, the Buick Electra automobile was missing from the victim’s home as early as Tuesday, September 13, 1994. One witness, a n acquaintance of the Defendant, stated that a vehicle meeting the description of the Buick Electra was parked at a motel in Nashville, Tennessee where the Defendant was staying following the homicide . Three glasses and two plates which had been used by the victim, his daughter, and her child, on the night of September 12, 1994, were found on the kitc hen counter on the night that the victim’s bo dy was d iscovere d.
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Various witnesses who observed the Defendant on the days following the homicide did not see any cuts, bruises, or abrasions on the Defendant, and he did not me ntion the e xistence o f any su ch inju ries at th e time he ga ve his statem ents to law enforce ment o fficers.
The forensic pathologist who performe d the a utops y testified that the victim had six “sharp force” wounds on the front of his body and one on the back. Death was du e to excess ive blood lo ss into the right side of his chest caused by one of the stab sounds. There were no defensive wounds on the victim ’s body. The patholog ist also testified that a knife which was introduced into evidence and had been taken from th e Def enda nt’s pe rsona l effects followin g a se arch o f his motel room, could have caused the wounds to the victim.
One of the victim’s daugh ters testified that he had between $130.00 and $140.00 cash in his possession on Saturday, September 10, 1997, which he kept in his wa llet. Neith er the v ictim’s wallet nor the m issing Buick Electra autom obile were ever recovered by law enforcement officers. Also, the Defendan t’s compound bow was missing following the discovery of the body, and was never recovere d.
Also recovered during a search of the Defendant’s personal effects was a pair of tennis s hoes. W hen one of the s hoes was c omp ared b y a fore nsic scientist from the T.B.I. Lab with blood stains from a portion of the floor of the victim’s mobile home, this shoe’s tread was found to be consistent with respect to size, sha pe, and design to a foot print in th e blood stains.
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The victim’s driver’s license was found in the bathroom trash can at the victim’s home. A woman from Nashville, Tennessee with whom Defendant had resided in motel rooms for a short period of time prior to the homicide testified that the Defend ant left for a few days and came back, indicating that he had been to Bristol, Tennessee. When he returned, the witness observed Defendant with a gun identified as the one belonging to the victim.
An acquaintance of the Defendant, William Greg Beavers, who had seen a car fitting the description of the Buick Electra at the motel, also testified that following the homicide, he told the Defendant that he had heard what the Defendant had done. Defendant responded that he was sorry for what he had done. The witness testified that he and Defendant both understood the conversation concerned the victim’s death.
After his arrest, the Defendant called Mr. Beavers from the jail and asked him to go to h is mo tel room , recov er a red bag a nd dis pose of ever ything in it. The Defendant stated a knife was in the bag. He also reques ted the w itness to tell anyone who asked, that Mr. Beavers had gone to Bristol and picked up the Defen dant. Mr. Be avers told the Defe ndan t that he would not get involved and subs eque ntly gave a statement to police. Mr. Beavers testified that he did have two prior felony c onvictions for robbe ry and bu rglary, and he had pending charge s in anoth er coun ty from an incident w hich occ urred in Ja nuary 19 95.
In his first statement to police on September 21, 1994, Defendant indicated that he was in Nashville the week of September 12, 1994, until he left on Friday night to go to Bristol, arriving between 4:00 and 5:00 a.m. Saturday morning,
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September 17. He gave a brief su mm ary of h is activitie s while in Bristol over the weekend, none of which incriminated him regarding the homicide of Mr. Cullop. He explained possession of the gun by saying that a friend of his in Bristol named “Jim Cullop” with whom he had worked at Georgia-Pacific, had given him the gun sometime before. He claimed the serial numbers were filed off when the gun was given to him. The Defendant claimed to be a friend and “drinking budd y” with the victim.
In his second statement on the next evening, the Defendant claimed that he was in Sullivan County on September 13, 1994 and went to the victim’s house at approximately 10:00 p.m. to ask the victim to loan him a car. He claimed that the victim invited him inside and offered the Defendant a beer. They talked for appro ximate ly two hou rs. When the Defendant asked the victim why Defendant had been laid off from work, he stated the victim immediately changed his attitude and acted like h e wante d to fight. De fendan t claimed that the victim started pushing him and w hen the D efendant be gan to walk tow ard the front doo r, the victim went into his bedro om a nd retr ieved a .22 ca liber “nic kel pla ted” pis tol. Defendant claimed that he grabbed the gun and began wrestling over it with the victim. After wrestling into the bedroom, Defendant observed a long knife lying on the dresser. Defendant stated that he picked up the kn ife with h is right hand and started “sticking him,” referring to the victim. When the victim fell, the gun dropped from his hand. Defendant picked up the gun, found the sheath for the knife and placed th e knife insid e it. Claiming that the victim’s billfold was lying on the dress er, De fenda nt state d that h e took $110 .00 from the billfo ld and threw it back onto the bed. He admitted to taking the knife, the gun, and $110.00 cash with him wh en he left th e victim’s h ome. D efenda nt stated that he went to his
9
sister’s house and then hitch hiked to the outskirts of Nashville where he walked back to a friend’s ho use.
None of the family members or friends of the victim who were asked, had ever seen a knife in the possession of the victim which resembled the knife found in posse ssion of th e Defe ndant.
There was pro of of blood splatters on the ceiling and furniture in the victim’s bedroom, along with a large quantity of blood upon the bed an d floor. Only one w itness was c alled on behalf of the d efense, a ne ighbor’s daug hter, who testified that sh e obs erved the victim stand ing at h is mailbox at appro ximate ly 9:20 a.m. on the morning of September 13, 1994. She stated the victim was wearing clothing which was not the same type of clothing he was wearing at the time of discove ry of his bod y.
There was also testimony which showed that Defendant was in possession of the knife prior to the h omicide .
When an accused challenges the sufficiency of the convicting evidence, the standard is whe ther, aft er revie wing th e evide nce in the ligh t mos t favora ble to the prosecution, any rational trier of fact could have found the essential eleme nts of the crim e beyon d a reas onable doubt. Jackson v. Virgin ia, 443 U.S. 307, 319 (1979). Questions concerning the credibility of the witnesses, the weight and valu e to be given the evidence, as well as all factual issues raised by the evidence, are resolved by the trier of fact, not this court. State v. Pappas, 754 S.W.2d 620, 623 (T enn. C rim. App .), perm. to appeal denied, id. (Tenn. 198 7).
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Nor may this court reweigh or reevalu ate the ev idence . State v. Cabbage, 571 S.W .2d 832 , 835 (T enn. 19 78).
A jury verdict approved by the trial judge accredits the State’s witnesses and resolves all conflicts in fa vor of the S tate. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973). On appeal, the State is entitled to the stron gest legitim ate view of the evide nce an d all inferen ces there from. Cabbage, 571 S.W.2d at 835. Because a verdict of guilt removes the presumption of innocence and replaces it with a presumption of guilt, the accused has the burden in this court of illustrating why the evidence is insufficient to support the verdict returned by the trier of fact. State v. Tug gle, 639 S.W .2d 913 , 914 (T enn. 1982); Grace, 493 S.W.2d at 476.
At the time of the com miss ion of th is offense, “robbery” was defined as the intentional or know ing theft of p roperty from a person by violence or putting that person in fear. Tenn. Code Ann. § 39-13-401. “Felony murder” was defined as “a reckless killing of anoth er com mitted in th e perpe tration of, or a ttempt to perpetra te any . . . robb ery . . . .” Tenn . Code Ann. § 3 9-13-20 2.
From the proof at trial, the jury cou ld easily find th at the De fendan t left Nashville, armed with a dea dly weap on, being a knife, an d went to the victim ’s mob ile home late at night. There was no physical evidence of a struggle, no defensive wounds upon the body of the victim, and there were various items of personal property m issing from the victim’s h ome. This evidence, in addition to proof of the Defendant’s flight back to Nash ville, along w ith no apparent injuries to the Defe ndant, a nd his co nflicting statements, cou ld easily be found b y a
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rational trier of fact to prove beyond a reasonable doubt the offense of felony murde r in the perp etration of a robbery.
“Esp ecially aggravated robbery” is robbery accomplished with a dea dly weapon where the victim suffers serious bodily injury. Again, there was overwhelming proof of the use of a deadly weapon and obvious proof of serious bodily injury to the victim.
The Defendant’s statement clearly proved that Defendant had killed the victim. The ju ry was entitled to rejec t the D efend ant’s c laims of self d efens e in his statemen t to law enforcem ent officers in light of the physical evidence, and the con flicting statem ents given by the De fendan t. The pro of in this cas e, both direct and circumstantial, is sufficient to show that the killing was in the pursuance of the felony of ro bbery rath er than c ollateral to it. Farm er v. State , 201 Tenn. 107, 296 S.W.2d 879 (1956); State v. Severs , 759 S.W.2d 935, 938 (Tenn. C rim. App. 198 8).
Accord ingly, this issu e is withou t merit.
III. ADMISSIBILITY OF PHOTOGRAPH
Defendant objected at trial to the ad missibility of a photograph which depicted the victim’s bedroom as it appeared when his body was disc overed. In the photograph, the victim’s body is lying face-up on the floor to the left of, and parallel to the head of the bed. The photograph is taken by someone standing at the foot of the bed. The picture also includes the chest of drawers, nightstand,
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and portions of other furniture upon which various items of personal property had been placed and were apparently undisturbed. There is blood depicted on the bed, on the floor, the chest of drawers and on portions of the victim’s body. The upper portion of the victim’s body is somewhat obscured by shadows in the photog raph.
After a hearing out of the presence of the jury, the trial court overruled Defe ndan t’s objection and ruled that the probative value of the picture was not outweig hed by a ny prejud icial effect.
At trial and on appeal, Defendant argues that the prejudicial effect of the photograph far outweighed its probative value.
In State v. Banks, 564 S.W.2d 947 (Tenn. 1978), the supreme court held:
The matters to be taken into consideration include the value of photographs as evidence , that is, their accuracy and clarity, and whether they were taken before the corpse was moved, if the position and location of the body when found is material; the inadequacy of testimonial evidence in relating the facts to the jury;
and the need for the evidence to establish a prima facie case of guilt or to rebut the defend ant’s con tentions. If the inflammato ry nature of the photograph is thus outweighed, it is admissible.
Banks, 564 S.W .2d at 951 .
The photograph not only shows that items of personal property were not disturbed in the victim’s bedroom, but that the bedroom was apparently small as the items of furnitu re wer e close togeth er, ther efore r einforc ing the State’s theory that no struggle had occurred. This proof was relevant to rebut the De fenda nt’s
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self de fense claim s asse rted in h is statem ent to law e nforcem ent officers . The photograph does show some bloating of the body as a result of decomposition, but it is a distant photographic shot which is not particularly gruesome. The trial court noted that the bloated nature of the victim’s body was relevant to establish a time fram e for the de ath.
Following the hearing out of the presence of the jury, the trial court made findings of fact that any prejudicial effect did n ot outweigh the probative value of the photograph. The record reflects that the trial court properly cons idered all factors and there was no error in admission of the photograph into evidence. This issu e is withou t merit.
IV. ALTERNATE JUROR’S RESPONSES DURING VOIR DIRE
Two alternate jurors were initially picked at the b eginn ing of th e trial. One of the alternates had to be dismissed due to health problems. During the jury selection process, the other alternate juror responded to the Assistant District Attorney’s questioning as follows:
[Assistan t District Attorn ey]: Ms .
[alt
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nat
e
jur
or]
,
ha
v e
y o
u
o r
14
a
clo
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be
en
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a r
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oth
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tha
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din
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tic
ket
,
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a
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ng
tic
ket
?
[Alternate Juror]: No .
After the trial had co nclude d, it came to the attention of the Defendant that the alternate juror, at the tim e she answ ered th e abo ve que stion d uring v oir dire, had an adopte d brother who had been convicted of a serious felony in another
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state, and that she was aware of this situation at the time she answered the question .
At the motion for n ew tria l, the alte rnate ju ror’s br other te stified th at his sister had visited with him at his place of incarceration prior to her selection for jury service. He further stated that he had never spoken with his sister concerning the Defendant’s case. Even thoug h he k new th e Def enda nt, he d id not me et him un til after the trial had conclud ed.
The State offered into evidence, and the trial court admitted, without objection from the Defendant, affidavits of the twelve jurors who served, deliberated, and rendered the verdicts. In each of these affidavits, each juror stated that he or she followed the trial court’s admonitions and did not discuss or begin deliberatio ns in the D efenda nt’s trial until after receiving jury instructions from the trial cour t. Furthe rmor e, eac h juror s tated in the affid avit that he or she had no conversations with the alternate juror concerning the merits of the Defe ndan t’s case or any c onversations w ith the alternate juror that wo uld have influence d or affecte d that juror’s deliberatio ns in the D efenda nt’s case .
It was undisputed that the alternate juror was dismissed prior to the beginning of deliberations and took no part in the deliberation s. The a lternate juror was sequestered in the multi-day trial along with the other jurors.
The Defendant argues that the false swearing by the alternate juror raised a presum ption of bia s and p artiality on the part of the alternate, and th at he is
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thus entitled to a new trial. He also argues that the State failed to rebut the presum ption of bias and partiality.
An affidavit of the alternate juror was also admitted into evidence at the hearing on the motio n for ne w trial and in part the affidavit states that the alternate juror did not discuss the merits of the Defendant’s case while seque stered w ith the othe r jurors.
W e agree that a defendant is entitled to a fair and impartial trial under our state cons titution a nd the United States Cons titution, a nd tha t this right includes that a jury be free from a ny reasona ble suspicion o f bias or prejudice. Hyatt v. State, 221 Te nn. 644 , 430 S.W .2d 129 , 130 (19 67).
In State v. Akins, 867 S.W.2d 350 (Tenn. Crim. App. 1993), the defendant was convicted of vehicular homicide by intoxication following a jury trial. During the jury selection process, a potential juror who ultimately served on the jury which reached the verdict failed to disclose information that she had been a probation officer, a DUI p robatio n counselor and had worked in an adolescent alcohol and dru g rehab ilitation progra m. Th is silence w as des pite persis tent, straightforward question ing by bo th coun sel which should h ave cau sed he r to disclose the information. Our court in that case found actual prejudice to the defendant and reversed the conviction and rem ande d the c ase fo r a new trial. In doing so, the court recognized that when a juror wilfully conce als or fails to disclose any information on voir dire which would reflect on the juror’s lack of impartiality, a presu mption of prejudic e arises. Akins, 867 S.W.2d at 355.
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Howeve r, our court also recognized that a presumption of bias in some cases can be dispe lled by the a bsenc e of actua l partiality. Akins, 867 S.W .2d at 357 .
Upon our review of the record, we agree with the trial court’s conclusions that the State was able to overcome any presumption of bias or partiality beyond a reasonable doubt. The overwhelming proof was that the alternate juror did not discuss the Defendant’s case with any of the jurors who reached a decision during the time s he was seque stered with the other jurors. She did not participate in the deliberations, and even if the Defendant was able to conclude conc lusively that the alte rnate ju ror wo uld have been partial or biased in reaching a decision, there is no proof that this affected the jury’s ve rdict in th is case . Wh ile our conclusions might be different if the alternate juror had participated in the deliberations and rendering of the verdict, in the situation before us, we find no reversible error.
This issu e is withou t merit.
V. SENTENCING
The Defendant does not challenge the length of his se ntenc e for es pecia lly aggravated robbery, but does argue that the trial court erred by orderin g this sentence to be served consecutively to the life imprisonment sentence for felony murder. Wh en an a ccused challeng es the len gth, rang e, or the mann er of service of a sentence, this court has a duty to conduct a de novo review of the sentence with a presumption that the determination s made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d). This presumption is "conditioned
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upon the affirmative showing in the record that the trial court considered the sentencing principles and all rele vant facts a nd circum stance s." State v. Ashby, 823 S.W .2d 166, 169 (Tenn. 199 1).
In conducting a de novo review of a sentence, this court must consider: (a)
the eviden ce, if an y, rece ived at th e trial and the sentencing hearing; (b) the presentence report; (c) the princip les of sen tencing a nd argu ments as to sentencing alternatives; (d) the nature and characteristics of the criminal conduct involved; (e) any statutory mitigating or enhancement factors; (f) any statement that the defendant made on his own behalf; and (g) the potential or lack of potential for rehab ilitation or treatm ent. Ten n. Cod e Ann. §§ 40-35-102, -103, and -21 0; see State v. S mith, 735 S.W .2d 859, 863 (Tenn. Crim . App. 1987 ).
If our review reflects that the trial court followed the statutory sentencing procedure, imposed a lawful sentence after having given due consideration and proper weight to the factors and p rincipa ls set out under the sentencing law, and that the trial court's findings of fact are adequately supported by the record, then we may not modify the sentence even if we would have preferred a different result. State v. Fletcher, 805 S.W .2d 785, 789 (Tenn. Crim . App. 1991 ).
The trial court found three factors that support the decision that the Defe ndan t’s twenty year sente nce fo r espe cially aggravated robbery should run cons ecutive ly to his life sentence for first degree felony murder. The three factors are: (1) The D efendant ha s an extensive re cord of criminal activity, Tenn. Code Ann. § 40-35-11 5(b)(2); (2) the D efend ant is a dangerous offender, Tenn. Code
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Ann. § 40-35-115(b)(4); and (3) the Defendant was on pro bation at the time of senten cing, Te nn. Co de Ann . § 40-35 -115(b)( 6).
Proof of the existence of the fac tors necessa ry to justify consecutive sentencing must only be e stablishe d by a pre ponde rance o f the eviden ce. Tenn. Code Ann. § 40-35-115(b). Only o ne factor need b e proven to suppo rt a conse cutive sen tence. T enn. C ode An n. § 40-3 5-115(b ).
W e are ab le to affirm the trial c ourt’s decision ordering consecutive sentencing based upon the uncontradicted proof that Defendant was on probation for a felony conviction at the time he committed the present offenses. Because only one ground is required to justify consecutive sentencing, as long as that ground is proven by a preponderance of the evidence, we are able to affirm the trial c ourt’s order of conse cutive sen tencing. See Tenn . Code Ann. § 40-35-115. We also find tha t from the entire reco rd that consecu tive sentencing is necessary to protect the public against further criminal conduct by the Defen dant, and the consecutive sentencing reasonably relates to the severity of the offenses comm itted in this ca se. See State v. Wilkerson, 905 S.W.2d 933, 939 (T enn. 19 95).
Finding that the eviden ce is su fficient to susta in the conviction and that no reversible error occ urred, we affirm the ju dgme nts of the tria l court.
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THOMAS T. W OODALL, Judge
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CONCUR:
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JOSEPH M. TIPTON, Judge
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JERRY L. SMITH, Judge