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SJC-12302

COMMONWEALTH vs. PETER J. DUART.

Dukes. May 4, 2017. - August 17, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, &

Cypher, JJ.

Judge. Practice, Criminal, New trial, Disqualification of 

judge, Assistance of counsel.

Indictments found and returned in the Superior Court 

Department on April 5, 2010.

A motion for a new trial, filed on February 18, 2015, was 

heard by Charles J. Hely, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Afton M. Templin for the defendant.

Elizabeth A. Sweeney, Assistant District Attorney, for the

Commonwealth.

HINES, J. Following a jury-waived trial in the Superior 

Court, the defendant, Peter Duart, was convicted of rape,

subsequent offense, G. L. c. 265, § 22 (b); and indecent assault 

and battery on a person age fourteen or older, as a lesser 
2

included offense of assault and battery on a person with an 

intellectual disability.

1 The judge sentenced the defendant to 

from ten years to ten years and one day in State prison on the 

rape and subsequent offender convictions, and to a probation

term of three years on the indecent assault and battery 

conviction.

In a motion for a new trial pursuant to Mass. R. Crim. P. 

30 (b), as appearing in 435 Mass. 1501 (2001), the defendant 

challenged the convictions on the grounds that (1) his jury 

waiver was neither knowing nor intelligent because the trial 

judge did not disclose that his son was employed as an assistant 

district attorney in the office of the district attorney for the 

Cape and Islands district, which prosecuted the indictments; and 

(2) defense counsel was constitutionally ineffective in failing 

to disclose the judge's relationship to the prosecutor's office 

in counsel's advice on the strategic choice to waive the right 

 

1 The indictment charged indecent assault and battery on a 

"mentally retarded" person, subsequent offense, in violation of 

G. L. c. 265, § 13F. On November 2, 2010, the Legislature 

amended G. L. c. 265, § 13F, substituting the terms "mentally 

retarded person" with "person with an intellectual disability" 

and "be mentally retarded" with "have an intellectual 

disability," in order to eradicate the term "mentally retarded" 

from the General Laws. See Commonwealth v. St. Louis, 473 Mass. 

350, 351 (2015), citing St. 2010, c. 239, §§ 71-72. Although 

the amended version was not in effect when the defendant was 

indicted, we nevertheless use the terms "person with an 

intellectual disability" and "have an intellectual disability" 

here.
3

to a trial by jury. A different judge held an evidentiary 

hearing and denied the motion in a written decision. The 

defendant filed a timely appeal, and we transferred the case to 

this court on our own motion.

We conclude that the trial judge's failure to inform the 

defendant of his familial relationship with a member of the 

prosecuting attorney's office during the jury-waiver colloquy

was not error, and thus the denial of the defendant's motion for 

a new trial on this ground was not an abuse of discretion. As 

to the defendant's claim of ineffective assistance of counsel, 

we conclude that although defense counsel's failure to inform 

the defendant of the trial judge's familial relationship with a 

member of the prosecuting attorney's office constituted behavior 

"falling measurably below that which might be expected from an 

ordinary fallible lawyer," Commonwealth v. Saferian, 366 Mass. 

89, 96 (1974), counsel's failure to do so was not prejudicial. 

Therefore, we affirm the denial of the defendant's motion for a 

new trial.

Background. We summarize the relevant facts on the motion 

for a new trial as found by the motion judge, supplemented as 

necessary with uncontested facts from the motion hearing. See 

Commonwealth v. Stephens, 451 Mass. 370, 372 (2008). In April, 

2010, the defendant was indicted by a Dukes County grand jury on 

charges of indecent assault and battery on a person with an 
4

intellectual disability, subsequent offense, G. L. c. 265, 

§ 13F; and rape, subsequent offense, G. L. c. 265, § 22 (b). 

The alleged offenses occurred at the victim's apartment in the 

early morning hours of January 30, 2010.

Prior to trial, the defendant filed a motion for a change 

of venue, which the Commonwealth joined, predicated on the 

concern that the defendant could not receive a fair trial from a

Dukes County jury. Specifically, the defendant contended there 

would be a "serious risk" that some of the jurors would have 

knowledge of the defendant's previous conviction, which had 

garnered substantial news media attention and notoriety on 

Martha's Vineyard, where the new indictments were set to be 

tried. The judge denied the motion without prejudice, noting 

that he would be willing to reconsider the order if seating a 

jury became "impractical."

In light of the denial of the defendant's motion for a 

change of venue, defense counsel discussed with the defendant 

the possibility of waiving his right to a trial by jury. 

Following consultation with his attorney, and at the defendant's 

request, the judge held a jury-waiver colloquy with the 

defendant on October 4, 2010. During the colloquy, the 

defendant indicated that he had had sufficient time to consider 

the waiver, and signed and filed a written waiver of trial by 

jury. The judge accepted the waiver, concluding that it was 
5

made intelligently and with knowledge of its consequences. The 

jury-waived trial commenced before the judge on October 5, 2010,

and concluded on October 6, 2010.

At the conclusion of the trial, the judge found the 

defendant guilty of rape and guilty of the subsequent offender 

portion of the indictment. With respect to the charge of 

indecent assault and battery on a person with an intellectual 

disability, subsequent offense, the judge found the defendant 

guilty of the lesser included offense of indecent assault and 

battery. The defendant appealed from his convictions, which 

were affirmed by the Appeals Court in an unpublished memorandum 

and order pursuant to its rule 1:28, with the exception of a 

remand to the Superior Court requiring the trial judge to issue

a more definitive order regarding sex offender treatment. See 

Commonwealth v. Duart, 82 Mass. App. Ct. 1121 (2012). 

Thereafter, the defendant filed a motion for a new trial, which 

is the subject of this appeal.

Before the trial judge ruled on the motion for a new trial, 

the defendant filed, on August 12, 2013, a motion for recusal 

and, on September 26, 2013, a motion for leave to file a 

substitute motion for a new trial, arguing that he had just 

learned that the trial judge's son was an assistant district 

attorney in the Cape and Islands district. The trial judge 

granted the motion for leave to file a substitute motion for a 
6

new trial and, after a hearing, also granted the motion for 

recusal, concluding that although he harbored no bias against 

the defendant and remained convinced that the defendant received 

a fair trial, he would recuse himself from consideration of the 

defendant's motion to "assure that any appearance of partiality 

is avoided." Consequently, another Superior Court judge (motion 

judge) was assigned to hear the defendant's motion for a new 

trial.

At the hearing on the defendant's motion for a new trial

before the motion judge, the trial judge's son, defense counsel

for the defendant, and the defendant testified. In a written 

order, the motion judge found that defense counsel had "great 

faith and confidence" that the trial judge would be fair and 

impartial in a jury-waived trial for the defendant, and conveyed 

these sentiments to the defendant during their conversations 

regarding the possibility of a jury waiver. The motion judge 

also found that defense counsel was aware that the trial judge's 

son was an assistant district attorney in the Cape and Islands 

district,

2 which prosecuted cases in Barnstable, Dukes, and 

Nantucket Counties. Despite the trial judge's son's employment 

as an assistant district attorney, defense counsel remained 

 

2 The trial judge's son resigned from the office of the 

district attorney for the Cape and Islands district in July, 

2011, to enter private practice.
7

confident that the trial judge would be fair and impartial in a 

jury-waived trial. The defendant denied having knowledge of the 

trial judge's son's employment prior to waiving his right to a 

trial by jury, but the motion judge concluded that there was 

insufficient evidence to determine whether the defendant in fact

knew of the trial judge's son's employment at the time of his 

jury waiver.

During his employment in the Cape and Islands district, the 

trial judge's son had no involvement with the defendant's case. 

His case assignments were limited to the District Court in 

Barnstable and Nantucket Counties, with the addition of some 

appeals. Because of the trial judge's assignment in Dukes 

County, his son made a point to refrain from working on any

Superior Court criminal cases prosecuted in Dukes County.

3 

Moreover, the trial judge's son did not have any supervisory 

role in the office during his employment.

Ultimately, the motion judge denied the defendant's motion 

for a new trial, concluding that the "defendant's jury waiver 

and trial did not present an issue of whether the [trial] 

judge's impartiality might reasonably be questioned." For this 

 

3 During the time period of the defendant's trial, the 

Superior Court in Dukes County commonly held only two one-month, 

one-judge trial sessions per year. Similar to other judges, the 

trial judge on occasion was assigned to a one-month Dukes County 

trial session.
8

reason, the trial judge was not under any obligation to disclose 

to the defendant that his son was employed as an assistant 

district attorney in the same district. The motion judge also 

rejected the defendant's claim of ineffective assistance of 

counsel, concluding that because the trial judge's son's

employment as an assistant district attorney was limited to 

counties where his father was not assigned, the issue did not 

present a reasonable, objective basis for questioning the trial 

judge's impartiality. Thus, defense counsel's failure to raise 

the issue with the defendant did not fall outside "the range of 

reasonable, competent representation." The motion judge 

determined that defense counsel's performance was not 

inadequate, but nonetheless went on to consider and summarily 

reject the claim of prejudice, concluding that the defendant 

failed to show that counsel's advice deprived him of a 

substantial ground of defense.

Discussion. 1. Standard of review. A judge may grant a 

motion for a new trial pursuant to Mass. R. Crim. P. 30 (b) "if 

it appears that justice may not have been done." Commonwealth

v. Moore, 408 Mass. 117, 125 (1990). Such motion "is addressed 

to the sound discretion of the judge" Id. Therefore, we review 

the denial of a motion for a new trial for "a significant error 

of law or other abuse of discretion." Commonwealth v. Forte, 

469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397 
9

Mass. 303, 307 (1986). In particular, we "accept[] the motion 

judge's findings of fact, made after an evidentiary hearing, if 

they are supported by the record, . . . and defer[] to the 

judge's assessments of credibility" (citation omitted). 

Commonwealth v. Cadet, 473 Mass. 173, 179 (2015). The 

discretion afforded to the motion judge, however, is not 

"boundless and absolute." Commonwealth v. Kolenovic, 471 Mass. 

664, 672 (2015), quoting Commonwealth v. Genius, 402 Mass. 711, 

714 (1988). "Under the abuse of discretion standard, the issue 

is whether the judge's decision resulted from 'a clear error of 

judgment in weighing the factors relevant to the decision . . . 

such that the decision falls outside the range of reasonable 

alternatives.'" Kolenovic, supra, quoting L.L. v. Commonwealth, 

470 Mass. 169, 185 n.27 (2014).

2. Judicial disclosure. The motion judge concluded that 

the judge's son's employment with the Cape and Islands district, 

without more, did not provide a basis upon which the judge's 

impartiality reasonably could be questioned and, thus, did not 

require disclosure to the defendant in advance of his jury 

waiver. Under the relevant canons of the Code of Judicial 

Conduct and commentary then in effect, we agree.

Among the vital rights provided by art. 29 of the 

Massachusetts Declaration of Rights is the "the right of every 

citizen to be tried by judges as free, impartial and independent 
10

as the lot of humanity will admit." A defendant's right to an 

impartial judge is affirmed in the Code of Judicial Conduct, 

S.J.C. Rule 3:09, Canon 3 (E) (1), as appearing in 440 Mass. 

1301 (2003), which provides that "[a] judge shall disqualify 

himself or herself in a proceeding in which the judge's 

impartiality might reasonably be questioned." Conversely, where 

such impartiality may not be reasonably questioned, the 

Commentary to Canon 3 (E) (1) makes clear that "a judge may, but 

is not required, to disclose on the record information that the 

judge believes the parties or their lawyers might consider 

relevant to the question of disqualification."4 See Commonwealth

v. Leventhal, 364 Mass. 718, 725 (1974) ("[J]udge was under no 

obligation to make any disclosure to counsel unless he thought 

his impartiality might reasonably be questioned"). The motion 

judge correctly assessed that the trial judge was under no 

obligation to disclose the relationship with his son because it 

 

4 We note that while the trial judge's lack of disclosure 

was appropriate under S.J.C. Rule 3:09, Canon 3 (E) (1), as 

appearing in 440 Mass. 1301 (2003), which was in effect at the 

time, amendments to the rules were adopted on October 8, 2015, 

and became effective on January 1, 2016. Among the amendments, 

the 2016 rules recommend broader judicial disclosure. In 

particular, the Commentary to S.J.C. Rule 3:09, Canon 2.11 (A), 

formerly S.J.C. Rule 3:09, Canon 3 (E) (1), recommends that a 

judge "disclose on the record information that the judge 

believes the parties or their lawyers might reasonably consider 

relevant to a possible motion for disqualification, even if the 

judge believes there is no basis for disqualification." We do 

not address whether, in these circumstances, a judge would have 

an obligation of disclosure under the 2016 rules.
11

did not reasonably call into question his impartiality or 

otherwise require disqualification or recusal in the defendant's 

trial.

We consistently have held that "[i]n general, the question 

of disqualification is left to the judge's discretion." 

Commonwealth v. Gogan, 389 Mass. 255, 259 (1983), and cases 

cited. Thus, we may disturb a judge's decision on recusal only 

if there is an abuse of discretion. See Haddad v. Gonzalez, 410 

Mass. 855, 862 (1991). Here, the trial judge's son had no 

involvement in the defendant's case, and in fact did not handle 

any criminal cases prosecuted in the Superior Court in Dukes 

County, where his father was assigned. Rather, his caseload was 

limited to criminal cases in Barnstable and Nantucket Counties, 

and some appellate cases. Moreover, the trial judge's son did 

not serve in a supervisory capacity at the district attorney's 

office such that his oversight responsibilities may have 

extended to cases prosecuted in Dukes County. On these facts, 

we discern no basis to hold that the judge abused his discretion 

in failing to disclose his relationship to an attorney in the 

district attorney's office.

Likewise, the circumstances here do not fit within one of 

the enumerated instances requiring recusal under S.J.C. Rule 

3:09, Canon 3 (E) (1). Although not binding on this court, we 

find persuasive Opinion No. 2001-16 (Nov. 16, 2001) of the 
12

Committee on Judicial Ethics (committee) -- on which the trial 

judge relied in his order on the defendant's motion for judicial 

recusal -- addressing an issue nearly identical to the issue 

presented here. The committee explained that the "mere fact" 

that the judge's son was employed in the district attorney's 

office did not require recusal from criminal cases in which 

other attorneys from that district attorney's office appeared. 

Id. See Commentary to S.J.C. Rule 3:09, Canon 3 (E) (1) ("A 

judge is not necessarily disqualified if a lawyer in a 

proceeding is affiliated with a legal organization with which 

the spouse or a relative of the judge is affiliated).

Our conclusion today is also consistent with numerous other 

jurisdictions deciding this issue. See, e.g., Adair v. State, 

474 Mich. 1027, 1029-1030 (2006) (concluding recusal policy 

"that no judge can hear any case in which a party is represented 

by a law firm or a prosecutor's office in which a relative of 

that judge is employed, even if that relative has no personal 

involvement in the case and stands to gain nothing materially by 

its outcome . . . constitutes an unfair and unwise policy"). 

See also State v. Logan, 236 Kan. 79, 87-89 (1984); State v. 

Fero, 105 N.M. 339, 342-343 (1987); State v. Harrell, 199 Wis.

2d 654, 659-660 (1996), and cases cited.
13

Accordingly, the motion judge's denial of the motion for a 

new trial on this ground did not constitute an abuse of 

discretion.

3. Ineffective assistance of counsel. The defendant next 

argues that the trial judge erred in denying his motion for a 

new trial on the ground of ineffective assistance of counsel. 

The motion was predicated on defense counsel's failure to 

disclose to the defendant the trial judge's familial 

relationship with an assistant district attorney in the Cape and 

Islands district, prior to the jury-trial waiver colloquy.

Where the defendant seeks a new trial on the basis of 

ineffective assistance of counsel, he must demonstrate that 

"there has been serious incompetency, inefficiency, or 

inattention of counsel -- behavior of counsel falling measurably 

below that which might be expected from an ordinary fallible 

lawyer -- and, if that is found, then, typically, whether it has 

likely deprived the defendant of an otherwise available, 

substantial ground of defence." Saferian, 366 Mass. at 96.

a. Representation fell measurably below that which might 

be expected from an ordinary fallible lawyer. A defendant's 

right to a trial by jury "is preserved as a basic and 

fundamental right in our judicial system." Commonwealth v. 

Osborne, 445 Mass. 776, 780 (2006), citing art. 12 of the 

Massachusetts Declaration of Rights. Ultimately, the "decision 
14

regarding waiver of the jury" must be made by the defendant, not 

his or her counsel, Osborne, supra at 781, and must be the 

"exercise of a free and intelligent choice." Adams v. United 

States ex rel. McCann, 317 U.S. 269, 275 (1942). See Ciummei v. 

Commonwealth, 378 Mass. 504, 507 (1979) ("a conviction cannot 

stand which follows upon a jury waiver that is not freely and 

knowingly given"). To protect this fundamental right, our cases 

have emphasized the importance of the jury-trial waiver 

colloquy, wherein the judge must not only "advise the defendant 

of his constitutional right to a jury trial," but also "satisfy 

himself that any waiver by the defendant is made voluntarily and 

intelligently." Id. at 509. Whether a defendant has conferred 

with his counsel about the waiver is one of the considerations 

relevant to the judge's determination. Id. This suggests that 

communication with defense counsel is critical to the defendant 

understanding the nature of the right that he is giving up and 

to his "mak[ing] an over-all estimate as to where he will fare 

better, before a judge or before a jury." Commonwealth v. 

Dietrich, 381 Mass. 458, 461-462 (1980), quoting H. Kalven & H. 

Zeisel, The American Jury 28 (1966). "[A]n intelligent waiver 

does not require that the accused have the skill or knowledge of 

a lawyer"; rather, "the defendant, being competent, must simply 

have indicated a comprehension of the nature of the choice." 
15

Ciummei, 378 Mass. at 510, quoting Maynard v. Meachum, 545 F.2d 

273, 279 (1st Cir. 1976).

To ensure that the defendant understands the nature of the 

choice, counsel must communicate information within his or her 

knowledge that is relevant to, or bears on the defendant's

choice to waive the right to a jury trial. More specifically, 

to the extent that counsel possesses information germane to the 

question of judicial disqualification, regardless of whether a 

genuine basis for disqualification exists, it is incumbent on 

counsel to convey that information so as to allow the defendant 

to raise and discuss any concerns that he or she might have. To 

be clear, our holding does not create an obligation for counsel 

to investigate the presiding judge, as it would unduly encumber 

defense counsel and encourage unwarranted suspicion of the 

judiciary. But where defense counsel already has information 

about the trial judge that reasonably could bear on a right as 

fundamental as the right to a jury trial, defense counsel has an 

obligation to disclose the information to his or her client.

Unlike the trial judge, who, under the canons of the Code 

of Judicial Conduct then in effect, was under no obligation to 

disclose his familial relationship with a member of the office 

of the district attorney for the Cape and Islands district, 

Rules 1.2 and 1.4 of the Massachusetts Rules of Professional 

Conduct require that an attorney fully advise and assist the
16

client in making decisions that ultimately must be made by the 

client himself or herself, including the decision to waive a 

jury trial. See Mass. R. Prof. C. 1.2, as appearing in 471 

Mass. 1313 (2015); Mass. R. Prof. C. 1.4, as appearing in 471 

Mass. 1319 (2015). Moreover, "[i]n determining the level of 

performance required of an ordinary fallible lawyer, we look to 

the 'professional standards of the legal community.'" 

Commonwealth v. Lavrinenko, 473 Mass. 42, 51 (2015), quoting 

Commonwealth v. Clarke, 460 Mass. 30, 45 (2011). Thus, it is 

notable that the Committee for Public Counsel Services 

performance standards governing the representation of indigent 

individuals in criminal cases mandates that "[t]he attorney 

shall explain to the client those decisions that ultimately must 

be made by the client and the advantages and disadvantages 

inherent in those choices." Committee for Public Counsel 

Services, Assigned Counsel Manual, c. 4, at § I(C)(6) (Oct. 

2011).

5 See Commonwealth v. Myers, 82 Mass. App. Ct. 172, 181

n.12 (2012), citing Standard 4-5.2 of the ABA Standards for 

Criminal Justice: Control and Direction of the Case (3d ed. 

1993) (noting that "decisions which are to be made by the 

 

5 https://www.publiccounsel.net/private_counsel_manual

/CURRENT_MANUAL_2012/MANUALChap4CriminalStandards.pdf

[https://perma.cc/9MBW-E7FB].
17

accused after full consultation with counsel" include whether to 

waive trial by jury [emphasis added]).

Here, defense counsel knew of the trial judge's son's 

employment in the office of the district attorney for the Cape 

and Islands district. The defendant denied that he was aware 

that the trial judge's son was employed as an assistant district 

attorney in that office. The motion judge found the evidence 

insufficient to determine whether the defendant knew of the 

judge's son's employment at the time of the jury waiver. Even 

though defense counsel's knowledge of the trial judge's son's

employment as an assistant district attorney did not affect

counsel's own confidence that the trial judge would be a fair 

and impartial fact finder, the decision whether the defendant's

"interests [were] safer in the keeping of the judge than of the 

jury," Adams, 317 U.S. at 278, was for the defendant, and the 

defendant alone, to make based on his informed and competent 

judgment. Accordingly, we conclude that defense counsel's 

failure to inform the defendant of the trial judge's son's

employment as an assistant district attorney in the office of 

the district attorney for the Cape and Islands district 

constituted "behavior of counsel falling measurably below that 

which might be expected from an ordinary fallible lawyer." 

Saferian, 366 Mass. at 96.
18

b. Prejudice. We next determine whether defense counsel's

performance inadequacy caused the defendant to suffer prejudice. 

See Saferian, 366 Mass. at 96. To make this determination, we 

draw on our cases addressing claims of ineffective assistance in 

the context of immigration consequences of a guilty plea. To 

satisfy the "prejudice" requirement in cases such as this, "the 

defendant has the burden of establishing that 'there is a 

reasonable probability that, but for counsel's errors,'" he 

would not have waived his right to being tried by a jury. See 

Lavrinenko, 473 Mass. at 55, quoting Clarke, 460 Mass. at 47. 

"At a minimum, this means that the defendant must aver that to 

be the case." Lavrinenko, supra, quoting Clarke, supra. The

defendant also "bears the substantial burden" of "convinc[ing]

the court" that a decision to exercise his right to a jury trial 

"would have been rational under the circumstances." Lavrinenko, 

supra at 55-56, quoting Clarke, supra. Finally, based on the 

motion judge's evaluation of the facts, including the 

credibility of the defendant and other witness, "[t]he judge 

must determine . . . whether there is a reasonable probability 

that a reasonable person in the circumstances of the defendant 

would have chosen [a jury trial] had he or she received 

constitutionally effective advice from his or her criminal 

defense attorney." Lavrinenko, supra at 55.
19

Here, the defendant averred in an affidavit accompanying 

the motion for a new trial that had he known of the relationship 

between the trial judge and an assistant district attorney in 

the prosecuting district attorney's office, he would not have

opted for a jury-waived trial and, instead, "would have made 

different strategic decisions." During his testimony at the 

hearing on the motion for a new trial, the defendant reiterated 

this point.

Weighing against the defendant's assertion that he would 

have chosen a jury trial had he been effectively advised,

however, is the defendant's concern prior to trial that he would 

not receive a fair trial from a Dukes County jury. This concern 

was concrete enough to cause the defendant to file a motion for 

a change of venue, which the Commonwealth joined, and was well 

founded considering that the defendant's previous 2004 rape 

conviction on Martha's Vineyard had a level of notoriety and 

that the defendant -- an elected member of the planning board 

and the finance and advisory committee of Martha's Vineyard, a 

former football coach, and former manager of the largest grocery 

store on the island -- was well known on the island. 

Additionally, the 2004 rape conviction was for the same charge 

of indecent assault and battery on a person with an intellectual 

disability and in the same county, and the defendant was a 

registered sex offender in the town of Tisbury at the time of 
20

his arrest for this offense. Furthermore, determining whether a 

potential juror knew about and would be biased by the 

defendant's 2004 rape conviction might have been difficult to 

determine during voir dire of the potential jurors. As the 

motion judge correctly pointed out, voir dire of the jury would 

not necessarily prompt the juror's memories of the defendant's 

2004 rape case. Given these facts, we are not convinced that

there is a "reasonable probability" that "a reasonable person in 

the circumstances of the defendant would have chosen [a jury 

trial] had he . . . received constitutionally effective advice" 

from his counsel. Lavrinenko, 473 Mass. at 55. Accordingly, we 

conclude that the defendant did not suffer prejudice from 

defense counsel's inadequate performance.

Conclusion. For the foregoing reasons, the order denying 

the defendant's motion for a new trial is affirmed.

So ordered.