# FILED September 21, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON FEBRUA RY 199 8 SESSI ON

STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9708- CC-00297 ) Appe llant, ) ) WEAKLEY COUNTY ) V. ) ) HON . WILL IAM B. AC REE , JR., ) JUDGE DAVID BORNFRIEND, ) ) (CRIMI NALLY NEGL IGENT Appellee. ) HOMICIDE A ND ARSON)

FOR THE APPELLEE: FOR THE APPELLANT: STEVE CONLEY JOHN KNOX WALKUP BRUCE S. CONLEY Attorney General& Reporter Conley, Campbell, Moss & Smith P.O. Box 427 ELIZABE TH T. RY AN Union City, TN 38261 Assis tant At torney Gen eral 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243 THOM AS A. THO MAS Distri ct Attor ney General JAMES T . CA NNON Assistant Distri ct Attor ney General P.O. Box 218 Union City, TN 38261-0218

OPINION FILED:_____________________________ AFFIRMED THOMAS T. WOODALL, J UDGE2 

# OPINION
The Appellant, the State of Tennessee (state), appeals fr om a judgment of the trialcourt suppres sing three stat em ents m ade by D avid Born friend (de fendan t) to law enforce ment o fficers. The state appeals pursuantto Rule 3(c) of the Tennessee Rules o f Appe ll ate Procedure on t he basis that the tri al court’ s order grant ing the motion to suppress had the substantive ef fect of dismissing the i ndictment against the de fendant . In this co urt, the s tate co ntend s “the tria l court e rrone ously suppressed t he three statements given by t he defendant because none of the st ateme nts we re involun tary.” After a th orough review of th e record , the briefs submitted by the parties, and the law governing the i ssue prese nted fo r review , it is the opinio n of this co urt that the ju dgme nt of the trial co urt shou ld be affirm ed.

On May 5, 1997 , the We akley Coun ty Grand Jury re tur ned a two count indict ment charging t he defendantw ith criminally negligent homicide, a Class E felony, and rec kless bu rning, a Class A misdemeanor. The i ndictmentalleges these two offenses

were committed on Januar y 11, 1997.

The facts in the record are rather spar se. The defendant was eighteen (18) years of age and a student at the Univers ity of

Ten ness ee at M artin. H e resid ed in a dormitory located on the universi ty’s campus. During the ear ly morning hour s of January 11, 1997, t he defendant and a female companion were in the de fenda nt’s dormitory ro om. It appea rs the defendan t lit a candle and went to sleep. He was awakened by t he fe male compani on and tol d the re was a fi re i n theroom. He noticed portions of the dormit ory room were on f ire. The defend ant ordered the fema le com panion to exi t the room. He at tempted to ext inguish t he fire but wa s3

unsu cces sful. He t hen l eft his roo m. A pers on res iding in the dormitor y was kill ed as a result

of the fi re.

The defendant sustained b urns to hi s hand s, st omach, thi gh, a nd le gs. He also inhaled a consi derable amount of smoke. Someone carried hi m from the dormitory and took him to t he Columbia Volunteer General Hospital . The defendant arrived in the emergency room at approxi mately 2:45 A. M. The burns sustai ned by the defendant were e xtremely pai nful. The pai n intensi ty scale contained i n the medical records has a r ange of zero to ten. The medical recor ds state t he defendant was suffering the most se ve re pain, a l evel of ten. The defendant was given Demorol for pain an d Phen ergan fo r nause a. B oth o f these medicat ions have a sedative effect. The defendant was rel eased from the hos pital the next day, Janu ary 12, 199 7. A phys ician advis ed the d efenda nt to “take re st for one w eek.”

The defendant made three (3) statements to off ice rs fro m the Universi ty of Tennessee at Marti n Police Depart ment and the Tennessee Fire Marshall’ s Office. The first sta teme nt was given t o Lieutenant

Darrell Simmons, an invest igator employed by the Univer sity of Ten n essee at Marti n Police Depart ment, who was assig ned to investig ate the fire. Lieu tenan t Simm ons w ent to th e Colu mbia Volunteer

General Hospital to determine the status of the indi viduals i njured by the fire. When he visited the defendant, the defendant was unconsc ious. He later returned to inter

view the defendant at7:45 A.M. and discovered the defendant was still unconscious.

Lieutenant Si mmons and Johnny Hayes, who was employed by the State of Tennessee Fire Marshall’ s Office as an arson invest igator, went to the h ospital later4

on the morni ng of Janua ry 11, 1997. The of ficer s attempted to i ntervi ew th e defen dant. Lieutenant Simmons testif ied the defendant “couldtalk okay , but he wasn’t tot

ally cl ear. He would fade in and fadeout.” When asked if the defendant was able to res pond to the quest ions propounded, Lieutenant S immo ns stated “to a degree, he was.” According to Lieutenant Si mmons, the defendant woul d answer a question, rotate hi s head, and close his eyes. When asked another question, the defendantwould rotate his head towards Simmons and Hayes, answer the q uestion, rotate hi s head, and close his eyes. This statement was not recorded.

On the morn ing of January 13, 1997, a subpoena duces tecum for the defen dant’s medical records and blood tests w as obta ined. The subpoena was issued wit hout a docket number si nce no charges had been filed. La ter in the day on Ja nuary 13, 1997, Lieutenant Simmons asked the defendant to come to th e Department of Safety buildi ng on campus bec a use he wanted to talk to hi m about the details of the fire . The d efend ant ap peare d at 2:4 5 P.M . and w as inte rviewe d in the c onferen ce room . The de fendan t’s medic al record s were re leased prior to th e inter view. The interv iew last ed for approx imately one hou r and fif teen minutes and the defendant’s

statement wastape recorded. Dur ing the i ntervi ew, the defendant told Simmons and H ayes tha t he had no reco llection of talkin g to them on J anuary 11, 1997.
The foll owing col loquy al so took pl ace duri ng the i ntervi ew: Defen dant: Am I required to answer these questions? Hayes: You don’t have to answer t hem, David. What we are tryi ng to do,

David, is we are--I am sure that by now you know that this is a very serious matter. I am sure that you know that the guy across the hall --he didn’ t make it t hrough the fi re.5 Defen dant: Yeah--w hich I dee ply regret. Hayes: I understand that, sir. All we are t rying to do is that we are tryi ng to find out what the facts are, David. That’s allwe’re doing. What we are talking to you about in here is confident ial. It’s not going to be in the ne wspa per, on TV, n obod y is goin g to kn ow all this stuff. My files are strict ly confi dential. The people who get m y files are my boss es in Nash ville and the District Attorney. Okay, that’s a ll. I f you were-- just “yeah, we were” because a t some point down t he road, we mayhave to ask you to be more specific but today w e are not going to get into all that, okay? Defen dant: Yeah.

At the conclusion of the interview, the officers reiterated to the de fenda nt “this conversati on, like we said, is c onfide ntial, betwee n us.” Li eutenant Simmons arranged for a thi rd inter view on January

22, 1997. The fol lowing col loquy took place duri ng Simmon’s direct examination: Q. Where did this interview take place? A. In the conferen ce room a t the Departm ent of Safety. Q. How was it arr

anged? A. It was arr

anged by me. Q. Wh at did you do to get M r. Bornfrien d there? A. I asked Mr . Bornf riend could he co me back for a foll ow up interview. Q. Did he agree to do s o? A. Yes, he did.

**** Q. At the conclusi on of the i ntervi ew, what happened to Mr. Bornfriend; was he allowed to leave at tha t point?
A. Yes, he was.6 The record does not

reflect what the defend ant said dur ing the January 22, 1997 inte rview.

The trialcourt suppres sed all t hree statem ents given by the de fendan t. The court found that due to the pai n medication t he defendant was receiving at the hospital when the first statement was gi ven on January 11, the state ment was “not a voluntar

y and willi ng statement. ” In regar ds to the statement given on January 13 at the Public

Safety Buil ding, the t r ial court ruled that

the prior

issuance of t he subpoena duces tecum constit uted the i nitiat ion of formal criminalcharges and resulted in the attac hmen t of the defe ndant’s S ixth Amendment right to counsel. The court suppressed thi s statement si nce the def en dant was int errogated wi thout counsel presen t. The trial court al so supp resse d the s tatem ent on the ba sis tha t it was not voluntary due to the officers’promises of co nfiden tialit y. The trial court suppressed the statement made on Ja nuary 2 2 on th e bas is that th e defe ndan t’s Sixth Amendment right to counsel had attached and the offic ers’ promis e of confiden tiality had ne ver been revoked
.
I. Standard of Review

When an accused is af forded an evidentiary hearing on the m erits of a motion to suppress, t he findi ngs of fact made by the tri al court ar e binding u p on the appellate court unle ss the evi dence contained i n the record preponderates against these findings. Stat e v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996 ). “Questi ons of credibility of the witnesses, the weight and value of t he evidence, andresoluti on of conflicts in the evide nce are matters entruste d to the trial jud ge as the trier of fact.” Id
. Prov ided tha t the gre ater we ight of th e evide nce s uppo rts the tria l court’s7

findings, then thos e findings shall be u pheld b y the app ellate cou rt and the party prevail ing in the tri al court i s entitl ed to the st rongest legitimate vi ew of the evidence and all rea sonab le inferenc es which may be drawn fro m that e vidence
. Id
.
This court must now exami ne each statement given by the defendant and d etermine w heth er t he tr ial cour t er red i n fi ndin g the y were not vol unta ry. To determine voluntarine ss, this cou rt m ust look at the totality of the cir cumstances. Oregon v. Elstad , 470 U.S . 298, 318 , 105 S. C t. 1285, 12 98, 84 L .E d.2d 22 2, 238 (1985); State v . Cr ump , 834 S.W .2d 265, 271 (Tenn.), cert
. denied , 506 U. S. 905, 113 S. Ct. 298, 121 L. Ed.2d 221 (1992). This cour t must al so evalu ate the last t wo statem ents given by the defen dant to determ ine wh ether th e trial co urt erre d in finding they were obtained i n violat ion ofthe defen dant’s S ixth Ame ndme nt right to coun sel.

II. January 1 1 Statement

A confession mus t be free ly, volun tarily an d kno wingly made or it shoul d be suppressed beca use it w as ob tained in violation of the d efend ant’s rights und er the Fifth Amendment to the United States Constit ution and Art icle I , § 9 of t he Tennessee Constitu tion. State v. P ritchett , 62 1 S.W .2d 127, 133 (Tenn. 198 1); State v . Gentry , 881 S. W.2d 1, 5 (Tenn. Cr im. App . 1993) . The Fi fth Am endmen t appliesto the states through t he Fourtee nth Am endm ent. Malloy v. Hogan , 378 U. S. 1, 84 S. C t. 1489, 12 L.Ed.2d 653 (19 64); State v . Cr ump , 834 S.W .2d at 268
.
The test for the vo lunta rines s of confessi ons pursuant to Articl e I, § 9 of the Tennessee Constitution i s broader than the test for voluntariness under t he Fifth8

Ame ndme nt. State v. Steph enson , 878 S.W .2d 530 , 544 (T enn. 19 94); State v. Smith , 834 S.W.2d 915, 9 18-19 (Ten n. 199 2). As o ur sup reme court n oted in Crum p : The signif icant di fference bet ween these two prov isions i s that thet es t of volu ntariness for confessions under Article I, § 9 is broa der a nd mor e protective of indivi dual right s than the test of volun tariness w as und er the Fifth Ame ndme nt. 834 S.W .2d at 268 ; see State v. S mith , 834 S.W.2d at 915.

The defendant asser

ts that at the time he gave his fi rst statement to the police he was so impaired by the medication he was receivi ng in the hosp ital t ha t his statementwas no t th e produ ct of a f ree mind and rati onal int ellect . Before an accused is entitle d to ha ve his statem ent s uppressed on the gr ounds that he was under the infl uence of alcohol and/ or narcoti c drugs, i t must be establ ished that the accu sed’s faculti es were so impaired that the statement coul d not be consider ed the product of a “fr

ee mind and rational intellect.” Vand ergriff v. State , 409 S.W.2d 370, 373 (Tenn . 1966); State v. Robinson , 622 S.W.2d 62, 67 (Tenn. Cr im. App. 1980), cert
. d enied , 454 U .S. 1096 , 102 S. C t. 667, 70 L .Ed.2d 6 36 (198 1); see Bram v. United States , 168 U.S. 532, 18 S. Ct. 183, 42 L.Ed. 568 (1897) . If i t is established thatthe accuse d was c apable of giving a n arrative of p ast even ts and/o r relating his rol e in the commission of the offense, the statement is generall y admissi bl e notwithstanding the fact that t he accused was under the influence of alcohol and/or narcotics when he ma de the sta temen t. State v. Green , 613 S.W.2d 229, 232-33 (Tenn. Crim. App. 19 80); Duke s v. State , 578 S.W.2d 659, 663 (Tenn. Cr im. App. 1978); William s v. State , 491 S.W .2d 862 , 866 (T enn. C rim. App . 1972).9 In the case sub judice , the defendant was under the infl uence of the sedat ives Demorol and Phenergan for pai n and nausea at t he t ime theoff ice rs q uest ion ed hi m. Lieutenant

Simmons admitted that during quest ioning t he defendant“would fade in and out.” Bet

ween question s, the defendant would t urn his head away f rom the officers and c lose h is eyes. The defendant had no recoll ection of this conversation with the offi cers afterwards.

As the record does

not preponderate against t he findi ngs of the tri al court, we agree wit h th e trial court’s determina tion to suppress this statemen t as an involuntary confe ssio n made by the defendant while he was under the inf luence of narcotics. This issu e has n o merit.

III . January 13 Statement

The trialcourt suppres sed the statement given at t he Dep artmen t o f Safety Building on January 13 on t wo bases: (1) t he statement was obtained in vi olation of the de fenda nt’s Sixth Amendment ri ght to counseland (2) the statement was not voluntary because it wasprocured by pr omises of confi dentiality by th e investi gating officers. The sta te argues that the statements shoul d not be suppressed s ince the defen dant’s Sixth Amendment ri ght to counsel had not attac hed because adversar ial proceedingshad not been initiated against the defen dant. The State of Tennessee also asserts t hat the conduct of the officers did not “und ermine the accused’ s free will and c ritically impair his capac ity for self-dete rminatio n” sufficien tly to bring about an involun tary confe ssion.

A.10 A defendant’s

Sixth Amend m ent righ t to cou nsel d oes n ot attac h until adversari al proceedingshave be en initiated
. State v. Mitch ell , 593 S.W.2d 280, 286 (Tenn.), cert. denied , 449 U.S . 845, 101 S. C t. 128, 66 L.Ed .2d 53 (1 980). In Tennessee, the beginni ng of the adver sarial judici al process i s marked by a formal charge such as an arrest w arran t, indictm ent, pre sentm ent or p relimin ary he aring in cases where an arrest warrant w as not first ob tained. State v. Mitche ll , 593 S.W.2d at 286; State v. Butler , 795 S.W .2d 680, 685 (Tenn. Crim . App. 1990 ).

In the present case, Lieutenant Simmons had o bt ained a subpoena duces tecum on January 13 for the defendant ’s medical r ecords and blood tests. Later t hat d ay the defendant gave hi s second statement to the pol ice at t he Department of Safety buildi ng. The defendant’ s medical recor ds were rel eased prior t o the interview.

The defend ant asse rts that th e execut ion of thesubpoena duces tecum constit uted the ini tiati on of the adver sarial pr

ocess and the attachment of the defenda nt’s Si xth Amendment right to counsel. The defendant states issuance of the subpoena by the G enera l Sessions Court Cl erk and the st yle of t he subpoena (State of Tennessee v. Davi d Bornfri end) indicate that t he adversari al process had been initi ated against

the defendant . The trial court suppressed the statement given on January 13 based upon t he determinati on that theadv ersarial process against the defe ndant h ad beg un.

There is no author ity i n Tennessee to support the proposi tion that the issu ance of a subpoena duces tecum constitutes the initiation of the a dve rsaria l process. A subpoena duces tecum bears greater resemblance to a sear ch warrant11

than an indictment, presentment, or arrest warrant. In fact, the adversarial pr ocess was not ini tiated agai nst the defendant untila warrantfor his arrest was i ssued on January 23. Therefore , the defendan t’s Six th Amendment right

to counsel had not attached at the tim e his statem ents were given. The trialcourt err ed in suppressi ng the stateme nts given on Jan uary 13 o n the ba sis that the defend ant’s Sixth Amendment right to counsel had been vi olated.

B.

T he tria l court al so suppressed the def endant’s statement of Januar y 13 on the basis tha t the confe ssion wa s not volun tary due to promises of confi dentiality by the investi gating off icers whi ch had the eff ect of o verco ming the de fenda nt’s will. The State of Tennessee ass erts tha t the defendan t’s wil l was not overborne by promises of confid entialit y because those promises were limited to questi ons r elatin g to whether the defendant and Sarah Branscumb engaged i n s exual activi ty. The state also argues th at even if this court finds the s tatements m ade by the officers were in refer

ence to th e entire i ntervi ew, these statements were not blanket promises of con fidentia lit y but we re me rely gu arante es tha t the info rmatio n wou ld not be revealed to the press.

Du ring the second interview of the defendant , in respon se to the defendan t asking whethe r he was required to a nswer these quest ions, Off icer Hayes responded as follows: Hayes: You do n’t have to a nswer th em, D avid.

*****12 Hayes: I understand that, sir . All we ar e tryi ng to do is that we are t rying to find out what the facts are, David. That’ s all we’ re doing. What we are talki ng to you abo ut in he re is con fidentia l. It’s not going to be i n the news paper, on TV, nob ody is going to know all t hi s stuf f. My files ar e strictly co nfiden tial. The peop le who g et my fil es are my bosses in Nashvi lle and t he District Att orney. Ok ay, t hat’s all. If you were-j ust “yeah, we were” because at some point in ti me down the roa d, we may have to ask you to b e mo re spe cific but tod ay we are not goin g to get into all that, okay? (em phasis add ed).
At the conclusi on of the i ntervi ew, the off icers rei terated to the defendant that“[ t]his
conversa ti on , like we sa id, is confide ntial, between us .” (emphasis added). The tria l court rea soned that, “[t]he clea r mean ing of the w ord con fidential is tha t it i s confid ential, it wil l notbe used in any publ ic proceedi ng such as in this courtro om,” when h e supp ressed the statem ent as invo luntary.

A confession must be “free an d voluntar y; that is, i t must notbe extracted by any sort of t hreats o r violence, nor obtained by any direct or i mplied promises, howeversligh t, nor by t he exertion of an y improper influen ce.” Bram v. United States , 168 U.S. 532, 54 2-43 , 18 S. C t. 183, 186 , 42 L.Ed . 568 (18 97); State v. Kelly , 603 S.W.2d 726, 727 (Tenn. 1980). “The Fifth Amend ment does not con demn all promise-ind uced adm issions and co nfessions; it cond emns o nly those which are compelled by promises of leniency.” Kelly , 603 S.W .2 d at 729 ( quoting Hunter v. Swenson , 372 F. Supp. 287, 300 -01 (D.C.Mo. 1974)). The test for v oluntariness in relati on to police decept ion is whet her based upon the totalit y of thecircumstances, “the cond uct of th e law e nforce men t officers was s uch to unde rmine the ac cuse d’s free will and critically impair hi s capacity for self-determinat ion so as to bring about an involuntar y confessi on.” Crum p , 834 S.W.2d at 271 (ci ting Culomb e v. Connecticut , 367 U. S. 568, 602 , 81 S. Ct. 1860, 1879, 6 L. Ed.2d 1037, 1057-58 (1961); State v. Kelly , 603 S.W .2d at 728).13 The promise of confi dentiality occurr ed during the preliminar y porti on of defen dant’s statem ent to the police
. The trial court impl icitly found that followi ng the promise of confi dentiality, defendant made hi s sta tements in reliance upon t he officers’ promise. This is apparently a case of f irst i mpression on thi s precise i ssue, and other jurisdictions have determined that a promise of confidentiality by a la w enfo rcement officer rend ers an o therwise voluntary s tateme nt involunta ry. St at e v. McDe rmott , 131 N.H . 495, 554 A.2d 13 02 (198 9); State v. Nash , 228 Neb. 69, 421 N.W.2d 41 (1988); Unite d State s v. W olf , 601 F.Su pp. 435, 441 -53 (N.D.Ill. 1984). After hearing the evidence, t he trialcourt determined that defendan t’s statement of January 1 3 w as involuntary bas ed upon th e officers’ promise of confidentiality. Absent evidence pr

eponderating agai nst the fi ndings of the trialcourt, t he findi ngs of fact of the tri al court on a motion to suppr ess are bindi ng. From our review of

the record and the law, we co ncur tha t the officer’s p romise of confide ntiality in the case sub ju dice operated to deprive Defendant of his f ree willand was not, t herefor e , voluntary u nder the totality of the circ umsta nces. This issu e is withou t merit.

IV. Januar

y 22 Stat

ement

The trialcourt als o suppressed a statement given by t he defend ant on January 22 on th e basis that the confessi on was obtained i n violat ion of the defen dant’s Sixth Amendment ri ght to cou nsel. The statement was al so suppressed as an involunt

ary confessi on induced by t he earlier promises of

confidentiality which had not been revoked. The S tate of Te nness ee ass erts that the defend ant’s Sixth Amendment right t o couns el had not at tached and the pr ior confes sion was not illega lly obtained.14 The defendant ret urned to the Safety Buil ding located o n th e Universi ty of Tennessee at Marti n campus on January 22 after the investigator s called t he defendantin for a f

ollow-up i ntervi ew. This interview was not rec orded and th ere is no transcript of this mee ting in the re cord. The re cord indicates that the smoke detector i n the defendant ’s room was discus sed.

As to the fi rst basis

relied upo n by the trial court in su ppress ing the sta temen t, we have already

ruled in this opi nion that the defendant’s statement of January 13 did not violate th e defen dant’s S ixth Amen dment right to co unsel. W e have found thatthe ad versa rial proc ess a gains t the de fenda nt was not initia ted unti l an arrest warrantwas issued o n Janu ary 23. Therefore, hi s Sixth Amendment ri ght to counsel had not attac hed when the January 22statement was gi ven.

In suppressing t he January 22 statement on the ba sis that the earli er promises of confident ialit

y had not been rev

oked and that t he January 2 2 statement was therefore involuntary, th e trialcourt rel ied upon our su prem e cou rt’s decision i n State
v. Smith , 834 S.W.2d 915, 919 (Tenn. 19 92). In Smith , the supreme cour t held that the provisi ons of Arti cle I, Section 9 of the Tennessee Constit ution necessi tate that the extract ion of an i llegal , unwarned confes sion from a defendan t r aises a rebutta ble presumption t hat a subsequent conf ession is taint ed by the ini tial illegality. Howeve r, if the State can e stabli sh that the tain t “is so attenu ated as to justify admission of the subsequent confession, ” then the presumpti on may be overcome. Id ., quoting Oregon v. Elstad , 470 U.S. 298, 335, 105 S.Ct . 1285, 1306-07, 84 L.Ed.2d 222 (19 85). As noted previ ously in t his opini on, the record is rat her sparse concerning the Janu ary 22 sta temen t of defend ant. State v. Odom , 928 S.W.2d 18, 23 (Tenn. 1996), mandates t ha t the findings of fact ma de by the trial court are15

binding upon the ap pellate court unles s the evidence contained in the record preponderatesagainst t hose findi ngs. Unfort unately for the S tat e, the facts contained in the record do n ot preponderate against t he findi ngs of the tria l court in this case. Therefor

e, the tri al court’ s judgment that the Janu ary 22 statem ent sh ould be suppressed must be af firmed.

V. Conclusi on

This court concl udes thatthe de fenda nt’s Sixth Amendment ri ght to counsel did not att

ach unti l an arr

est wa rrantwas issued against him on January 23. Therefore, the trial court erred by u sing as a basis to su ppress the statem ents that defen dant’s Sixth Amendment ri ghts had been violated. However, the t rial cour t was correct in suppressing t he January 11 statement upon f inding t hat the statement was not a product of a free mind and rational intellect and was therefore involuntary. Furthermore, the trial court wa s correct i n its concl usion that the January 13 and January 22 statements shoul d be suppressed because they were involuntary as a result of the State’s promises of confident ialit

y. Accordi ngly, t he judgment of t he trial court is affir med.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:
(Not participating)* JOE B. JONES, Presiding Judge16

___________________________________ JOHN H. PEAY, Judge

*Jud ge Jo e B. J one s died May 1 , 199 8, an d did n ot pa rticipa te in this o pinion . W e ack now ledge his faithf ul service t

o this Court , both as a member of the Court and as its Pr

esiding Judge.