Hon. Louis H. Pollak, Senior Judge, United States District *

Court for the Eastern District of Pennsylvania, sitting by

designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2562

 

AMBROSE A. HARRIS,

 Appellant

v.

*MICHELLE R. RICCI, Administrator, New Jersey State

Prison;

ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

*(Substituted 3/31/10 pursuant to Rule 43(c), Fed. R. App. P.)

 

On Appeal from the United States District Court

for the District Court of New Jersey

(D.C. No. 3-05-cv-04858)

District Judge: Honorable Anne E. Thompson

 

Argued April 15, 2010

Before: SLOVITER and HARDIMAN, Circuit Judges,

and POLLAK , District Judge *

(Filed: June 3, 2010)

____

Carl J. Herman

443 Northfield Avenue

2 Floor nd

West Orange, N.J. 07052
2

James K. Smith, Jr. (Argued)

Office of Public Defender

Appellate Section

Newark, N.J. 07101

Attorneys for Appellant

Daniel I. Bornstein (Argued)

Office of Attorney General of New Jersey

Division of Criminal Justice

Trenton, N.J. 08625

Attorney for Appellee

______

OPINION OF THE COURT

______

SLOVITER, Circuit Judge.

Before and during his state court trial for capital murder,

Ambrose Harris was the subject of numerous inflammatory

articles in two local newspapers, the Trentonian and the Trenton

Times. Ultimately, the court presumed prejudicial pretrial

publicity. Harris moved for a change of venue or, in the

alternative, for a jury from another county (a “foreign jury”). 

The trial court adopted the alternative proposal. Harris, who was

convicted and unsuccessful in his state court appeal, filed a

petition for a writ of habeas corpus in the federal district court

claiming that the denial of his motion to transfer venue deprived

him of his constitutional right to a fair trial. Harris appeals the

District Court’s denial of his petition for a writ of habeas corpus.

I.

Background

Harris was indicted in June 1994 for having murdered
 The facts of that heinous murder and its investigation were 1

set out in some detail by the New Jersey Supreme Court. See State

v. Harris, 716 A.2d 458, 463-66 (N.J. 1998). It is not necessary to

recite those facts here in order to resolve the issue before this court.

“The newspaper ran many front-page, invective-filled 2

headlines: ‘Ex-Inmate: Suspect is a Loudmouthed Punk,’ ‘Huggins

Suspect “Would Kill You in a Heartbeat,”’ ‘Profile of a Monster:

The Man Who Killed Kristin Huggins Committed His First Rape

as a Teenager,’ ‘From Boy to Beast,’ ‘Huggins Slayer Terrorizes

Prison,’ ‘He’s Satan in Disguise.’ Other news accounts discussed

[Harris’s] prior criminal record as well as other crimes he was

suspected of committing. An editorialist predicted that death by

lethal injection would rid society of ‘one of the biggest pieces of

human trash ever to blight Trenton streets.’” State v. Harris, 716

A.2d 458, 469-70 (N.J. 1998).

3

Kristin Huggins. Due to the pervasive publicity surrounding the 1

murder and his arrest, Harris moved the trial court to transfer his

case from Mercer County, New Jersey, where the crime was

committed, to a different venue or, in the alternative, for the

impanelment of a foreign jury. More specifically, Harris argued

that “a fair trial [could not] be had in Mercer County” because of

highly prejudicial pre-trial media coverage by two newspapers –

the Trentonian and the Trenton Times – which had a combined

circulation in Mercer County of about 130,000. App at 59.

The trial court agreed with Harris that the “likelihood”

that the “taint” from these sources would “permeat[e] the trial

[could not] be ignored.” App at 60. The trial court took

particular note that the “intensity of [the] newspaper coverage

[was] complicated by the vengeance-seeking crusade of the

Trentonian” which generated a “stream of invective” that was

“constant and prolonged and sensationalized,” App at 60, and

which “pander[ed] to its readers’ worst instincts,” App at 59. 

2

Therefore, although the trial court denied Harris’s motion for a

change of venue, it granted his motion to impanel a foreign jury.

Harris filed an interlocutory appeal to challenge the trial

court’s decision to impanel a jury from Hunterdon County, and
According to the New Jersey Supreme Court: 3

“Dramatically prejudicial headlines were attendant to the

guilt-phase deliberations. The Trentonian headlines read, ‘One

Juror Stalls Verdict,’ and ‘Battling Harris Jury Draws Public Fire.’

4

the State cross-appealed the trial court’s decision to impanel a

foreign jury in the first instance, arguing that it was unnecessary. 

 The Superior Court of New Jersey, Appellate Division, held that

“the trial court did not abuse its discretion in concluding” that

“prejudice [in Mercer County] may be presumed due to pretrial

publicity,” and affirmed the trial court’s decision “that th[e] case

should be tried before a foreign jury.” State v. Harris, 660 A.2d

539, 541-42 (N.J. Super. Ct. App. Div. 1995) (Harris I). 

However, the Appellate Division also held that the trial court

should have considered whether the racial demographics of the

county from which it would draw the new jury pool were

comparable to the racial demographics of the community in

which the crime was committed, and further found that the trial

court had abused its discretion in selecting Hunterdon County as

the source of the jury pool because the racial demographics of

Hunterdon County differed markedly from those of Mercer

County. Id. at 544-45. It then remanded for further proceedings. 

Id. at 545.

On remand, the trial judge decided to impanel jurors from

Burlington County, a county contiguous to Mercer County,

where the racial demographics generally matched those of

Mercer County, and where the combined readership of the

Trentonian and the Trenton Times was only around 22,000,

divided fairly evenly between the two. See State v. Harris, 716

A.2d 458, 471-72 (N.J. 1998) (Harris II). The jury voir dire was

conducted in Burlington County. During jury selection, Harris

moved the trial court to change venue from Mercer County to

Burlington County. In support of this motion, Harris submitted

evidence that, among other things, the Trentonian was sold at

sites near the Mercer courthouse. The trial court denied Harris’s

motion. Instead, each day of trial the jurors were transported by

bus from the Burlington courthouse to the courthouse in Mercer. 

Meanwhile, “the inflammatory publicity continued throughout

the trial[].” State v. Harris, 859 A.2d 364, 429 (N.J. 2004) 3
A feature story quoted a Trenton resident as expressing the opinion

that ‘[m]ost people figure the jury would think, “We’ll have lunch

on the county, and we’ll squirt him-this afternoon.”’ Similar

publicity continued during the penalty phase. A headline such as

‘Ambrose Eyed in ‘67 Slay.’ An editorial recommended death for

Harris. The day after the jury returned its guilt verdict, a front-page

photograph of Harris ran over a caption which read, ‘So why’s this

killer smiling? Because he’s seen juror No. 7 crying, and he thinks

she’ll never go for the death penalty.’” Harris II, 716 A.2d at 472.

5

(Harris IV).

Harris was convicted and the jury recommended that he

be sentenced to death. Harris II, 716 A.2d at 463. The New

Jersey Supreme Court affirmed Harris’s conviction and the

jury’s recommended death sentence. Id. at 498. The New Jersey

Supreme Court held, in part, that “the selection of a jury

composed of out-of-county residents, and [the trial court’s]

general questioning of the jurors during the trial concerning any

exposure to trial publicity sufficiently ensured that defendant’s

trial was free of extraneous influences.” Id. at 463. More

specifically, the Court noted that in the past it had approved the

use of a foreign jury as a “trial management technique[] . . . to

ensure that a defendant’s right to an impartial jury is not

compromised,” id. at 470, and it observed that “a change of

venue has the same benefits and drawbacks as the impanelling of

a foreign jury since both methods utilize jurors from

communities where publicity may be less intense,” id. (quoting

State v. Williams, 459 A.2d 641, 656 n.13 (N.J. 1983)). 

Although the Harris II Court affirmed Harris’s conviction, it

stated that “[w]hen . . . a capital case is accompanied by a stream

of public invective such as surrounded this case, it occasions us

to reconsider our precedent,” id., and held that “[i]n future

capital cases a court should change the venue of a capital trial

when there is a realistic likelihood that presumptively prejudicial

publicity will continue during the conduct of a trial,” id. at 471. 

Later, the New Jersey Supreme Court undertook a separate

“proportionality review” of the recommended death sentence and

concluded that Harris’s sentence was not disproportionate

compared to other cases. State v. Harris, 757 A.2d 221, 307
 The New Jersey Supreme Court found that because of 4

some of the PCR “court’s statements, and the bias, flippancy, and

disdain they portray[ed,]” it would “afford no weight to any of its

findings or conclusions.” Harris IV, 859 A.2d at 378.

6

(N.J. 2000) (Harris III).

Harris next petitioned for post conviction relief, making

“multiple claims of ineffective assistance of counsel and

assorted other challenges to the validity of his conviction and

sentence.” Harris IV, 859 A.2d at 374. His petition was

eventually reviewed de novo and denied by the New Jersey

Supreme Court. Id. at 380, 449. 4

Thereafter, Harris filed a petition for a writ of habeas

corpus in the New Jersey district court. See Harris v. Cathel,

Civ. No. 05-4858 (AET), 2009 WL 539898, at *1 (D.N.J. Mar.

4, 2009) (Harris V). While the resolution of his petition was

pending, New Jersey repealed the death penalty and New Jersey

Governor Jon Corzine commuted Harris’s death sentence to life

imprisonment without the possibility of parole. See id. at *2. 

Harris thereafter abandoned all of his arguments based on the

imposition of the death penalty, and pressed only the following

claims that “flow from the Sixth Amendment’s guarantee of a

fair trial”: (1) in light of the pretrial publicity surrounding the

case, the trial court’s use of a foreign jury deprived him of a fair

trial; (2) the trial court should have taken more extensive

precautions to ensure that the impaneled jurors were not infected

by the mid-trial publicity; (3) the trial court should have held a

hearing to explore allegations of contact between jurors and a

former public defender; (4) the trial court should have allowed

Harris to call a witness who would have testified that Gloria

Dunn, who was Harris’s accomplice in the murder of Kristin

Huggins and who was the state’s primary witness against Harris,

was a violent person; and (5) his counsel was ineffective. Id. at

*2, *7, *9. The District Court rejected all of Harris’s arguments,

denied his petition for a writ of habeas corpus, and denied Harris

a certificate of appealability. Id. at *10. This court granted

Harris’s petition for a certificate of appealability, finding that the

“sole claim presented [on] appeal [was] ‘adequate to deserve
 The District Court had jurisdiction under 28 U.S.C. § 5

2254(a). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and

2253(a).

7

encouragement to proceed further,’” App. at 30 (quoting MillerEl v. Cockrell, 537 U.S. 322, 327 (2003)), and instructed the

parties to brief “the issue of whether the New Jersey Supreme

Court held contrary to, or unreasonably applied, ‘clearly

established Federal law,’ see 28 U.S.C. § 2254(d)(1), in

affirming the trial court’s decision to impanel a foreign jury

rather than transfer the case to a different venue in light of the

pretrial publicity that surrounded the case,” App at 30-31.5

II.

Analysis

Because this case arises from a state court proceeding in

which the merits of Harris’s sole claim on appeal were

adjudicated, the standards established by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) apply. See 28

U.S.C. § 2241-2266. Harris is not entitled to a writ of habeas

corpus unless the state proceedings “(1) resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision that was

based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” Id. §

2254(d)(1)-(2). The certificate of appealability granted in this

case is limited to the “contrary to” prong.

There has been considerable judicial commentary on the

requirements imposed by AEDPA. “A state court decision . . .

fails the ‘contrary to’ prong of AEDPA if the state court reaches

a conclusion opposite to the Supreme Court’s own conclusion on

a question of law or decides the case differently where the

Supreme Court was confronted by a set of materially

indistinguishable facts.” McMullen v. Tennis, 562 F.3d 231, 236

(3d Cir. 2009) (citation omitted). “Similarly, a state court ruling

is considered an ‘unreasonable application’ if the state court
8

unreasonably applies the correct legal rule to the particular facts,

unreasonably extends a legal principle to a new context, or

unreasonably refuses to extend the principle to a new context

where it should apply.” Id. (citations omitted).

The effect of extensive pretrial publicity has also been the

subject of numerous decisions by the courts, including the

Supreme Court. This court has noted the Supreme Court’s

holdings that “‘adverse pretrial publicity can create such a

presumption of prejudice in a community that the jurors’ claims

that they can be impartial should not be believed.’” Flamer v.

Delaware, 68 F.3d 736, 754 (3d Cir. 1995) (en banc) (quoting

Patton v. Yount, 467 U.S. 1025, 1031 (1984)).

The Supreme Court has also held that in some

circumstances mid-trial publicity and courtroom events can

result in a presumption of juror prejudice. See Estes v. Texas,

381 U.S. 532, 542-43 (1965) (jury prejudice assumed in part

because trial was conducted in a circus-like atmosphere created

by television and news media); Sheppard v. Maxwell, 384 U.S.

333, 355 (1966) (juror prejudice presumed in part because

“bedlam reigned at the courthouse during the trial and newsmen

took over practically the entire courtroom, hounding most of the

participants in the trial, especially Sheppard.”). Such a

presumption arises, however, only when the “proceedings . . .

[are] entirely lacking in the solemnity and sobriety to which a

defendant is entitled in a system that subscribes to any notion of

fairness and rejects the verdict of a mob.” Murphy v. Florida,

421 U.S. 794, 799 (1975).

The effect of pretrial publicity was also considered in

Rideau v. Louisiana, 373 U.S. 723 (1963), where “the defendant

had ‘confessed’ under police interrogation to the murder of

which he stood convicted.” Murphy, 421 U.S. at 799 (describing

Rideau). “A 20-minute film of his confession was broadcast

three times by a television station in the community where the

crime and the trial took place.” Id. In reversing the defendant’s

conviction, the Supreme Court in Rideau “did not examine the

voir dire for evidence of actual prejudice because it considered

the trial under review ‘but a hollow formality’ - the real trial had

occurred when tens of thousands of people, in a community of
9

150,000, had seen and heard the defendant admit his guilt before

the cameras.” Id.

From this line of precedents, Harris argues that as a result

of the trial court’s finding uncontested on appeal that prejudicial

pre-trial publicity by Trenton-based newspapers created a

presumption of prejudice in Mercer County jurors, “clearly

established federal law, as set forth by the Supreme Court,

require[d] that the venue of the trial be moved away from the

source of the publicity in order to protect petitioner’s Sixth

Amendment right to a fair trial by an impartial jury[.]” 

Appellant’s Br. at 1. In other words, Harris argues that the

Supreme Court cases hold that the only possible remedy for a

finding of presumptive prejudice in a community due to pretrial

publicity is a change of venue. No Supreme Court decision

directly so states and we decline to view this argument as a

natural extension of existing precedent.

Harris discounts the relevance of the jurors’ affirmations

that they had not been aware of the publicity, either pretrial or

midtrial. He refers to the statements in the Supreme Court’s

decision in Irvin v. Dowd, 366 U.S. 717 (1961), where the Court

stated that there was “[n]o doubt [that] each juror was sincere

when he said that he would be fair and impartial to petitioner,

but psychological impact requiring such a declaration before

one’s fellows is often its father.” Id. at 728. The Court held that

“[w]here so many [jurors] so many times, admitted prejudice,

[their] statement[s] of impartiality can be given little weight . . .

.[because] [a]s one of the jurors put it, ‘You can’t forget what

you hear and see.’” Id. Irvin is inapposite here. In Irvin, eight

of the twelve jurors had formed an opinion that the defendant

was guilty before the trial began; some went “so far as to say that

it would take evidence to overcome their belief” in his guilt. Id.

It is important to recognize what Harris does not argue. 

To our knowledge, Harris has never argued that there was so

much negative pretrial publicity in Burlington County, the

residence of the foreign jurors, that prejudice should be

presumed. Indeed, the trial court held that Burlington County

was not so infected, and the New Jersey Supreme Court

approved that holding. See Harris II, 716 A.2d at 472 (“The
10

principal risk of jury contamination in this case arose in Mercer

[C]ounty and not in the home counties of the jurors.”). 

Significantly, Harris himself had requested that the trial be

transferred to Burlington County.

Nor does Harris argue that the trial court impaneled jurors

who were actually biased as a result of the pretrial publicity. 

Such an argument would in fact be difficult to sustain in light of

the New Jersey Supreme Court’s findings on direct appeal that

the trial court “took firm steps to ensure that none of those

households that received the Trentonian (the newspaper

containing the most inflammatory material) would be on this

jury,” and that “[a]ny juror who regularly read the Trentonian

was effectively subject to elimination for cause in the jury

selection process.” Id.

In fact, Harris does not argue that the impaneled jurors

were actually biased for any reason, whether due to exposure to

publicity before or during the trial or otherwise. In any event,

the New Jersey Supreme Court found on direct appeal that “the

[trial] court ensured that during the course of the trial most jurors

were assembled at the Burlington County Court House and

transported directly to the Mercer County Court House with

attempts to minimize the exposure to the hawking of papers en

route to the court house.” Id. The New Jersey Supreme Court

further noted that “whenever [defense counsel] requested

[during trial that] the court . . . question jurors concerning any

prejudicial headlines and accounts, the court did ask the jurors to

acknowledge by a show of hands if they had seen or read any

news accounts of the trial and that on each of these occasions it

received no response.” Id.

Harris’s argument is exclusively based on the trial court’s

determination that a presumption of prejudice against him arose

as to the inhabitants of Mercer County because of their exposure

to pretrial publicity. From that, Harris argues that any foreign

jurors impaneled in Mercer County should ipso facto be

presumed to be prejudiced. Harris relies on the Supreme Court

decisions to argue that the statements by the foreign jurors

during voir dire that they could be and were unbiased should be

disregarded wholesale as untrustworthy, even when voir dire was
 In Groppi, the Court, citing Rideau, stated: “[o]n at least 6

one occasion this Court has explicitly held that only a change of

venue was constitutionally sufficient to assure the kind of impartial

jury that is guaranteed by the Fourteenth Amendment.” Groppi,

400 U.S. at 510 (discussing Rideau, 373 U.S. at 723).

11

conducted within a community with little prejudicial pretrial

publicity. He discounts the measures taken by the trial judge to

prevent impaneling jurors who were biased and to shield the

foreign jurors from being exposed to prejudicial media coverage

during trial.

We cannot decide this case on the basis of the opinions on

which Harris depends for his argument that once a court has

found that “pretrial publicity in connection with a capital trial

ha[s] . . . tainted the jury pool . . . the defendant [is] entitled as a

matter of federal constitutional law to a change of venue to

another county.” Mu’Min v. Virginia, 500 U.S. 415, 427 (1991)

(citing Irvin, 366 U.S. 717). None of the Supreme Court cases

that Harris relies on addressed, or even mentioned, the use of a

foreign jury to ameliorate the effects of pretrial publicity. Even

in the one opinion that has language that on its face appears to

support Harris’s position, Groppi v. Wisconsin, 400 U.S. 505

(1971), the Court acknowledged that there “are many ways to 6

try to assure the kind of impartial jury that the Fourteenth

Amendment guarantees.” Id. at 509. Neither Groppi nor Rideau

considered whether the impanelment of a foreign jury could

achieve the same end.

The same can be said of the courts of appeals decisions to

which Harris cites. See Gaskin v. Sec’y, Dep’t of Corr., 494

F.3d 997, 1004 (11th Cir. 2007); Goss v. Nelson, 439 F.3d 621,

625 (10th Cir. 2006); Daniels v. Woodford, 428 F.3d 1181, 1210

(9th Cir. 2005); United States v. Higgs, 353 F.3d 281, 307 (4th

Cir. 2003); Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir.

1999); Pruett v. Norris, 153 F.3d 579, 585-86 (8th Cir. 1998).

In any event, we cannot decide this case on the basis of

any of those authorities because, as we noted at the outset, this

case is governed by AEDPA. Harris must show that the New
12

Jersey Supreme Court’s decision upholding the use of foreign

jurors to ameliorate the effects of the pretrial publicity was

contrary to law clearly established by the Supreme Court of the

United States. See 28 U.S.C. § 2254(d)(1). Even Harris

concedes that the Supreme Court has never squarely considered

this issue.

A recent decision of the Supreme Court illustrates its

deferential approach to the state courts’ decisions, even in the

face of what appears to be its doubt about the merits of that

decision. In Renico v. Lett, - - U.S. - - , 2010 WL 1740525, at *5

(May 3, 2010), the Court reviewed the Sixth Circuit’s grant of a

writ of habeas corpus to a defendant who was retried for murder

following the trial judge’s grant of a mistrial after the jury “had

deliberated for at least four hours following a relatively short,

and far from complex, trial . . . .” The Michigan Supreme Court

had concluded there was no violation of the Double Jeopardy

Clause because the trial court exercised its sound discretion. Id.

at *4. The federal district court granted a writ of habeas corpus,

and the Sixth Circuit affirmed, both concluding that the trial

court’s declaration of a mistrial constituted an abuse of

discretion because there was no manifest necessity. Id. at *5

The Supreme Court reversed and its reasoning is

instructive here. It stated that the question “is not whether the

trial judge should have declared a mistrial. It is not even

whether it was an abuse of discretion for her to have done so-the

applicable standard on direct review. The question under

AEDPA is instead whether the determination of the Michigan

Supreme Court that there was no abuse of discretion was ‘an

unreasonable application of . . . clearly established Federal

law,’” and it later explained that the application must be

“objectively unreasonable.” Id. (citations omitted). In reversing

the Court of Appeals, the Court stated in a footnote, “whether

the trial judge was right or wrong is not the pertinent question

under AEDPA.” Id. at *9 n.3. It noted that the Michigan

Supreme Court’s decision, “while not necessarily correct - was

not objectively unreasonable.” Id. at *9.

Applying Lett to this case, our way is clear. Had Harris

requested a change of venue at a federal trial, the federal court
13

likely would have granted it. In fact, even the New Jersey

Supreme Court used the opportunity to opine on the need to

consider a venue change in the future under similar

circumstances. See Harris II, 716 A.2d at 471. But this was not

a federal, but a state, trial. We cannot hold that the New Jersey

courts’ decision to impanel foreign jurors after taking careful

steps to ensure an impartial and unbiased jury was an objectively

unreasonable application of federal law. We therefore will

affirm the District Court’s denial of Harris’s petition for a writ

of habeas corpus.

I append a statement by Judge Pollak, a member of this

panel.
 Dissenting in State v. Harris, 716 A.2d 458, 507 (1998) 7

(“Harris II”), Justice Handler described the pretrial publicity this

way: “A sea of horrendous, sensationalistic, and unremittant

publicity engulfed this prosecution. The Trentonian, a daily tabloid

newspaper, was the primary, almost exclusive, source of this

unabated torrent.”

14

Pollak, District Judge.

I join the court’s fine opinion. What is at issue in this

profoundly unfortunate case is dictated by this court’s grant of a

certificate of appealability instructing counsel to address the

question whether the affirmance by the New Jersey Supreme

Court of “the trial court’s decision to impanel a foreign jury

rather than transfer the case to a different venue in light of the

pretrial publicity” orchestrated by the Trentonian constituted 7

what 28 U.S.C. § 2254(d)(1) terms “an unreasonable application

of[] clearly established Federal law[] as determined by the

Supreme Court of the United States.” Since, as the court notes,

Harris does not “argue that the trial court impaneled jurors who

were actually biased,” what is at issue is whether any decision or

line of decisions of the Supreme Court directs that “transfer to a

different venue” should, as a matter of federal constitutional

requirement, have been taken as a prophylactic measure,

additional to utilizing jurors from another county, to minimize

the danger that the pretrial publicity would generate juror bias.

The court’s opinion convincingly demonstrates that, thus far, no

case decided by the Supreme Court has put in place such a

constitutional mandate governing the procedures of state courts.

The court rightly observes that “[h]ad Harris requested a change

of venue at a federal trial, the federal court likely would have

granted it.” I would only add that if, under circumstances

comparable to those obtaining at Harris’s trial, a federal trial

court were to decline to move the trial to another venue, it is to

be hoped, and indeed expected, that a court of appeals would

conclude that the trial court’s ruling was an abuse of discretion.

But the case before us is a state case, with respect to which we

are required to view the state court’s decision through the

limiting prism of § 2254(d)(1). And therefore, as the court’s

opinion establishes, the District Court’s denial of habeas corpus
15

must be affirmed.