Tony A. Makoka v. State

FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE
August 15, 1997
APRIL 1997 SESSION
Cecil W. Crowson
Appellate Court Clerk
TONY A. MAKOKA, )
)
Appellant, ) C.C.A. No. 01C01-9603-CC-00124
)
vs. ) Rutherford County
)
STATE OF TENNESSEE, ) Honorable J.S. Daniel, Judge
)
Appellee. ) (Post-Conviction)
)

FOR THE APPELLANT: FOR THE APPELLEE:

RUSS EAGLE (Appeal) JOHN KNOX WALKUP
Attorney at Law Attorney General & Reporter
401 W. Main St.
Murfreesboro, TN 37130 DARYL J. BRAND
Assistant Attorney General
JACK G. HEFFINGTON (Hearing) Criminal Justice Division
Attorney at Law 450 James Robertson Parkway
520 S. Church St. Nashville, TN 37243-0493
Murfreesboro, TN 37130
WILLIAM C. WHITESELL, JR.
District Attorney General
Rutherford Co. Judicial Bldg.
Murfreesboro, TN 37130

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT
JUDGE
 OPINION

The petitioner, Tony A. Makoka, appeals the Rutherford County Circuit

Court's denial of post-conviction relief. The petitioner was convicted by a jury of his

peers of attempted first degree murder of his paramour, Jane Rhodes, and

attempted second degree murder of her friend, Dwight Cooper, following a car

chase and shooting incident which ended on the steps of the Murfreesboro Police

Department. The petitioner is serving concurrent 20 year and 10 year sentences

for these convictions. State v. Makoka, 885 S.W.2d 366 (Tenn. Crim. App. 1994).

In this appeal, the petitioner raises four issues pertaining to ineffective assistance

of counsel -- (1) failure to move for suppression of evidence obtained pursuant to

a warrantless search, (2) failure to adequately investigate, (3) failure to object to the

prosecution's characterizations of the petitioner's wife as untruthful, and (4) that

counsel prevented the petitioner from testifying in support of his defense. In

addition, the petitioner contends the trial court should have disqualified the district

attorney's office from representing the state in post-conviction proceedings because

one of the police officers who testified for the state at trial is now a member of the

district attorney's office and was called to testify for the defense at the post-

conviction hearing. On review, we affirm.

The petitioner, married and a father, was involved in an extramarital

relationship with one of the victims, Jane Rhodes. This relationship, tempestuous

at times, apparently ended in late 1991, although the petitioner and Ms. Rhodes

attempted to maintain a platonic friendship. In December 1991, the petitioner and

Ms. Rhodes attended a Christmas party together and exchanged gifts. However,

they quarreled on at least two occasions prior to January 3, 1992. On that date, the

petitioner shot Ms. Rhodes and Dwight Cooper, and as a result he faced trial for two

counts of attempted first degree murder. The petitioner was represented at trial by

attorney Richard McGee of Nashville. He was convicted of the attempted first

2
degree murder of Rhodes and attempted second degree murder of Cooper. That

judgment was affirmed by this court, and the sentence was modified. The

petitioner's appellate counsel in this court was Karen Hornsby of Murfreesboro.1

The supreme court denied the petitioner's pro se request for permission to appeal.

The petitioner has now brought a petition for post-conviction relief, which was

denied by the court below. The matter is before us for appellate review.

I

The Sixth Amendment of the United States Constitution and Article I,

§ 9 of the Tennessee Constitution both require that a defendant in a criminal case

receive effective assistance of counsel. Baxter v. Rose, 523 S.W.2d 930 (Tenn.

1975). When a defendant claims ineffective assistance of counsel, the standard

applied by the courts of Tennessee is "whether the advice given or the service

rendered by the attorney is within the range of competence demanded by attorneys

in criminal cases." Summerlin v. State, 607 S.W.2d 495, 496 (Tenn. Crim. App.

1980).

In Strickland v. Washington, the United States Supreme Court defined

the Sixth Amendment right to effective assistance of counsel. 466 U.S. 668, 104

S. Ct. 2052 (1984). First, the appellant must show that counsel's performance fell

below an objective standard of reasonableness under prevailing professional norms

and must demonstrate that counsel made errors so serious that he was not

functioning as "counsel" guaranteed by the Constitution. Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064. Second, the petitioner must show that counsel's

performance prejudiced him and that errors were so serious as to deprive the

defendant of a fair trial, calling into question the reliability of the outcome.

1
The petitioner has made no allegation of ineffectiveness with respect to
the services provided by Hornsby.

3
Strickland, 466 U.S. at 687, 104 S. Ct. at 2064.

The petitioner's burden of proof in all cases filed after May 10, 1995

is by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f) (Supp. 1996).

The court must indulge a strong presumption that counsel's conduct falls within the

range of reasonable professional assistance and must evaluate counsel's

performance from counsel's perspective at the time of the alleged error and in light

of the totality of the evidence. Strickland, 466 U.S. at 690, 695, 104 S. Ct. at 2066,

2069. The petitioner must demonstrate that there is a reasonable probability that

but for counsel's deficient performance, the result of the proceeding would have

been different. Strickland, 466 U.S. at 695, 104 S. Ct. at 2069. A trial court's

findings of fact following a post-conviction hearing have the weight of a jury verdict.

Bratton v. State, 477 S.W.2d 754, 756 (Tenn. Crim. App.1971). On appeal, those

findings are conclusive unless the evidence preponderates against the judgment.

Butler v. State, 789 S.W.2d 898, 900 (Tenn. 1990).

A

In his first argument, the petitioner contends his trial counsel was

ineffective because he failed to move for suppression or otherwise object to

introduction of evidence obtained pursuant to a warrantless search. This allegation

pertains to a search of the petitioner's truck which took place shortly after the

shootings outside the Murfreesboro Police Department. In the petition and at the

hearing below, this issue was not raised as an ineffective assistance claim. The pro

se petition raises the introduction of the evidence as "judicial misconduct."2 Counsel

in the proceedings below did not amend the petition to include error of trial counsel

2
It is clear from the context, however, the petitioner's allegation is one of
erroneous admission of the evidence by the trial court.

4
in failing to pursue suppression of the evidence obtained in the search.3 The post-

conviction court found "no reasonable basis to claim . . . the defendant was

convicted as a result of some constitutional right that he would have had as regards

to evidence within the vehicle." The court went on to find the search was justified

as a search incident to arrest. Because this issue was not raised below, it is not a

proper ground for relief in this court. Tenn. R. App. P. 36(a); Alonzo Williams v.

State, No. 1100, slip op. at 2 (Tenn. Crim. App., Knoxville, Mar. 4, 1987) (in post-

conviction proceedings, "the rule is that questions not raised by the pleadings and

then litigated in the trial court are not reviewable on appeal") (citation omitted),

perm. app. denied (Tenn. 1987). Thus, this issue is without merit.

Even though the petitioner failed to preserve this issue for our review

by first presenting it to the trial court, we would nevertheless decline to grant the

requested relief if the issue was properly before us.

3
Counsel at the post-conviction hearing made the following statement on
the record:

The petition, your Honor, being all-inclusive, covers several areas.
One is that it covers the ineffective assistance of counsel issue. It
covers the search and seizure issue of the physical evidence. It
also covers the sentencing of the Court. It also covers it.
...
Your Honor, there is the issue that he covered in his petition as to
his statements given to Detective Peel. His position is that those
statements were taken under some type of trickery or coercion or
certainly without his understanding that they would be used against
him in a court of law. The petition also covers certain things that he
calls inappropriate conduct of the trial judge, your Honor. It also
covers the inappropriate or prosecutorial misconduct of the District
Attorney. And that's basically the things that he's covered in the
petition, and we would like, your Honor, to cover as many of those
issues as the Court would allow. (emphasis added)

Additionally, post-conviction counsel's summation at the hearing treats the
search and seizure issue as a free-standing deprivation of constitutional rights,
separate from the constitutional claim of ineffective assistance of counsel. It is
apparent from counsel's statements that the search and seizure issue was raised
as a separate allegation and not as part of the ineffective assistance of trial
counsel claim.

5
 The record reflects that within moments of the shootings, the appellant

was detained in handcuffs, first in a police cruiser and then in the basement of the

police station, until a detective arrived to question him. According to both the

detective and the petitioner, the petitioner was not formally advised he was under

arrest until after he was questioned, although he clearly was not free to leave. At

some time during these events, in all likelihood before the petitioner was formally

placed under arrest, the passenger compartment of his truck was searched. This

search yielded ammunition matching that used in the shootings and a receipt for

ammunition dated approximately two weeks prior to the shootings. The petitioner

contends this search was improper either (1) because it was not a search incident

to arrest, or alternatively, (2) even if it was a search incident to arrest, no exigent

circumstances existed. On the other hand, the state argues the search was proper

(1) as an inventory search, or (2) as a search incident to arrest. In our view, the

record supports a finding that the warrantless search was justified, although not on

either ground advanced by the state.

The Fourth Amendment to the United States Constitution and Article

I, section 7 of the Tennessee Constitution guarantee individuals the right to be free

of unreasonable governmental searches and seizures. A warrantless search is per

se an unreasonable search, unless one of the well-defined exceptions to the

warrant requirement applies. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct.

507, 514 (1967); State v. Tyler, 598 S.W.2d 798, 801 (Tenn. Crim. App. 1980).

In this case, the petitioner's vehicle was parked in a public place, a

public street immediately in front of the Murfreesboro police station, within the area

in which the shooting had just taken place. Two individuals were present at the

scene with obvious gunshot wounds, and at least one police officer saw the

petitioner standing in the area either holding a gun or near a gun that was on the

6
ground.4 A less than full box of ammunition could be seen on the seat of the

petitioner's truck. As our supreme court has recently recognized, a warrantless

search of a vehicle in a public place, in the aftermath of a crime and when there is

probable cause to believe the vehicle contains items that are subject to seizure5, is

entitled to a conclusive presumption of exigency, permitting the warrantless search,

even absent actual likelihood of risk of delay in obtaining a warrant. State v.

Leveye, 796 S.W.2d 948 (Tenn. 1990) (adopting the rule of California v. Carney,

471 U.S. 386, 105 S. Ct. 2066 (1985)). In this case, probable cause clearly existed

because the crime was committed in the immediate area and the box of ammunition

was in plain view, and the Leveye/Carney exception applies to authorize a

warrantless search under the vehicle-search exception to the warrant requirement.

See Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280 (1925).6 Accordingly, there is no

basis for an ineffective assistance claim premised upon counsel's failure to

challenge this warrantless search. If this issue were properly before us, we would

find it without merit.

B

The petitioner's next claim is that his attorney failed to conduct an

adequate investigation. First, he complains of trial counsel's alleged failure to

investigate victim Cooper's criminal history and possible gun ownership. Had such

evidence been uncovered, it presumably could have (1) been used for impeachment

4
The evidence is conflicting on this point. Which version is correct is
immaterial to our determination.
5
The Leveye holding is not limited to contraband; it extends to other types
of evidence that may otherwise be obtained by search warrant, as well. State v.
Ronald Edward Parrish, No. 01C01-9309-CC-00292, slip op. at 4 (Tenn. Crim.
App., Nashville, Nov. 16, 1995), perm. app. denied (Tenn. 1996).
6
Because Leveye supports the warrantless search of the petitioner's truck,
we express no opinion regarding the applicability of the search incident to arrest
and inventory search exceptions to the warrant requirement.

7
purposes, and/or (2) would have supported the petitioner's claim Cooper shot at him

during the car chase.7 Second, the petitioner takes issue with trial counsel's alleged

failure to investigate and bring to the court's attention his claim he told a police

officer he did not want to make a statement shortly before he was interrogated by

a detective.

At the hearing, trial counsel testified he investigated Cooper by talking

with people who knew him, obtaining a "rap" sheet, attempting to talk with him

personally8 and examining him at the preliminary hearing. The petitioner did not

directly contradict his former attorney's testimony; he merely alleged counsel never

advised him of the results of the investigation. Moreover, the petitioner failed to

present any evidence at his post-conviction hearing regarding Cooper which would

have supported his defense, had his attorney discovered it and presented it at trial.

The post-conviction court found, "Mr. McGee performed a very thorough and

effective investigation in this cause and was very effective in representing [the

petitioner]." We cannot say the evidence preponderates against this finding. Not

only has the petitioner failed to establish his attorney's ineffective assistance, he

has failed to demonstrate any prejudice therefrom. See Strickland, 466 U.S. at

687, 104 S. Ct. at 2064.

The petitioner also complains his attorney failed to investigate and

bring to the court's attention an invocation of Fifth Amendment privilege the

petitioner allegedly made when he was detained outside the police station and

7
No physical evidence supported this theory at trial. The victims denied
Cooper was armed. No gun was ever recovered from the area where the
petitioner alleged he saw Cooper throw the gun. The petitioner claimed he
sustained property damage to his truck as a result of the alleged shot, but one of
the police officers testified the dent in question could not have been caused by a
recently fired bullet because the dent was rusty.
8
According to trial counsel, Cooper refused to talk to him.

8
placed in a police cruiser. The petitioner does not deny he later waived his rights

and gave a statement after he was inside the police station. At the hearing, the

petitioner alleged he had signed a written statement invoking his rights while in the

police cruiser and that he had asked his trial attorney to look into this matter. Trial

counsel was not asked by either party whether he had investigated the existence

of such a written or oral statement, although he testified he was given "the total

open file" by the state months prior to trial. Detective Eddie Peel, who interrogated

the petitioner inside the police station, testified he did not recall seeing a document

signed by the petitioner stating he did not want to give a statement and he had

never heard of the existence of any statement by the petitioner asserting Fifth

Amendment privilege prior to the post-conviction hearing. The evidence does not

preponderate against the finding of the trial court that counsel conducted a thorough

investigation. The petitioner has brought forward no evidence that his counsel did

not investigate the alleged invocation of privilege, at least in the "open file" provided

by the state. Further, the petitioner has failed to demonstrate that the suppression

of his subsequent statement would have resulted in a different outcome.9 The

evidence against the petitioner was overwhelming. Both victims testified in great

detail about the petitioner's actions. Police officers and a police department

employee provided further corroboration of the petitioner's guilt. The physical

evidence points to the petitioner. The petitioner's statement was essentially

cumulative of the overwhelming evidence of his guilt.10 Accordingly, neither prong

of the Strickland test has been satisfied. This issue lacks merit.

9
It is not necessary for us to determine at this stage whether the
subsequent statement should have been suppressed if the facts are as the
petitioner alleges. We express no opinion in that regard.
10
If anything, the petitioner's statement that was part of the state's
evidence lends support to the self-defense theory he alleges should have been
more vigorously pursued. Had counsel successfully challenged the admission of
the statement, the petitioner would likely be before us complaining counsel
should have allowed the statement into evidence because it supported a self-
defense theory.

9
 C

The petitioner's next appellate argument is with his trial counsel's

failure to object to the prosecutor's alleged characterizations of the petitioner's wife

as a liar. This issue was not raised below as one of ineffective assistance of

counsel. Rather, the pro se petition raised it as an issue of "judicial misconduct" of

the prosecutor. The petitioner's counsel made no comment on the record in the

court below indicating a desire that this issue be considered as one of

ineffectiveness of counsel. The post-conviction court treated the issue as one of

prosecutorial misconduct and found "no basis for a finding that [the district attorney]

engaged in any act of prosecutorial misconduct" and that the prosecutor's

"representation, statements and argument appear and are found to be well within

the grounds of propriety in the prosecution of this case and in the arguing of facts

and issued raised by the proof to the jury." Because the petitioner did not raise this

issue as one of ineffective assistance in the court below, that court did not have the

opportunity to make findings of fact and rule on it accordingly. As a court of

appellate review, we are precluded from contravening the province of the trier of

fact. Tenn. R. App. P. 36(a) (party who caused error or failed to take action to

prevent error is not entitled to appellate relief); Alonzo Williams, slip op. at 2. Thus,

this issue is not properly before us.

Notwithstanding the petitioner's failure to properly present this issue

in the court below, we would find it without merit if it was properly before us. The

trial record reveals that one of the petitioner's strongest witnesses was his wife,

Wendy Makoka, and she was subject to vigorous cross-examination by the district

attorney. That questioning includes the following by the prosecutor:

Q. Now, I don't mean to be ugly, but you don't have trouble
remembering the answers to Mr. McGee's questions. Why
don't you remember the answer to that one?

A. It all depends with, you know, what type of question.

10
 Q. Yes, ma'am.

A. Or how it's asked.

Q. Isn't it true it all depends on whether it helps your husband or
hurts him?

A. No, that's not true.

Immediately thereafter, on redirect examination, defense counsel questioned Mrs.

Makoka.

Q. Would you lie under oath, Ms. Makoka? That's just what he's
accused you of doing, ma'am.

District Attorney: Your Honor, I haven't accused her of that.

Defense Counsel: That's exactly what that question was designed to
do.

Q. Would you lie under oath?

A. I'm not here to lie. I'm not lying. I'm not here to lie. I wouldn't
be here if I was going to tell you all lies.

During closing argument, the district attorney said, "And, ladies and gentlemen,

contrary to what Mr. McGee says, I am not calling Wendy Makoka a liar, but I do not

understand her testimony -- maybe you do . . . ." Later, he said, "If I have

insinuated she's a liar, I apologize to her, but I do not and am not ashamed to tell

you that I believe the proof shows she is a biased witness. And if you show me a

wife that's not biased in favor of her husband, then I'll show you a wife that's not

worth having." Defense counsel later addressed the issue in his summation,

acknowledging, "[Y]esterday . . . I got angry when I felt Wendy Makoka was being

called a liar." He went on to argue the veracity of Mrs. Makoka's testimony and why

the jury should accept it as reliable.

The issue the petitioner presents is whether counsel was ineffective

for failing to object to these statements. Whether there was prosecutorial

misconduct is determinative of whether a valid objection could be interposed. The

supreme court has said a prosecutor is within the proper bounds where his

11
argument is based upon inferences supported by the evidence of record, State v.

Brown, 836 S.W.2d 530, 552 (Tenn. 1992), including argument pertaining to the

veracity of a witness's testimony. State v. Beasley, 536 S.W.2d 328, 330 (Tenn.

1976). Although an attorney may not express his personal opinion of a witness's

credibility, he may argue based upon his analysis of the evidence and the

conclusion supported by the evidence. Tenn. Sup. Ct. R. 8 (Code of Prof'l

Responsibility), DR 7-106(C)(4); Lackey v. State, 578 S.W.2d 101, 107 (Tenn. Crim.

App. 1978). The trial court found there was no prosecutorial misconduct, and we

cannot say the evidence preponderates against this finding.11 Absent prosecutorial

misconduct, which would have formed the basis for a proper objection, there can

be no ineffective assistance of counsel. The petitioner would not be entitled to relief

on this issue if it was properly before us.

D

In his final argument relating to ineffective assistance of counsel, the

petitioner contends his trial counsel prevented him from testifying in his own

defense. The petitioner does not contend counsel refused to let him testify; rather,

he says counsel convinced him not to take the stand and only gave him the option

of testifying less than 24 hours before trial, at which time it was too late for him to

prepare his testimony. Trial counsel testified he discussed this issue with the

petitioner at great length. Counsel was concerned the petitioner might fail to

connect with the jury, which would destroy the positive impact of Mrs. Makoka's

testimony, as well as that of the petitioner's treating psychiatrist. Counsel

considered the testimony of Mrs. Makoka and the psychiatrist to be particularly

strong for the petitioner's case. According to counsel, the ultimate decision whether

11
As an aside, we note that trial counsel effectively dealt with any arguably
objectionable expression of personal opinion by addressing it on redirect
examination of Mrs. Makoka and in his closing argument.

12
to testify was petitioner's. The post-conviction court found, "[D]efendant was clearly

made aware of his decision to testify or not to testify and made a wise decision in

not testifying." Although neither party discussed it in the briefs to this court, the

record of trial memorializes that the petitioner was examined outside the presence

of the jury regarding this issue. He acknowledged consulting his attorney and

expressed satisfaction with his election not to testify. The evidence does not

preponderate against the determination of the post-conviction court that the

petitioner made an informed decision not to testify. Counsel was not ineffective in

this regard.

II

In his final issue, the petitioner contends the post-conviction court

should have disqualified the Rutherford County District Attorney General's office

from representing the state in this post-conviction proceeding. A current member

of the district attorney's office, Jack Robinson, was formerly a police officer with the

Murfreesboro Police Department. In the latter capacity, Robinson had some contact

with the case.

Immediately following the offenses, Robinson responded to the scene

outside the police station and collected the petitioner's revolver and some

ammunition shells from the ground near where the victim Rhodes was lying. The

petitioner called Robinson to testify about these facts at the post-conviction hearing.

Robinson was also questioned about the search of the petitioner's truck, but he was

unable to relay any facts to the trial court which are pertinent to resolution of issue

IA above.12 Robinson was not cross-examined by the state at the post-conviction

hearing. Prior to the post-conviction hearing, the court ruled against the petitioner's

12
Robinson's testimony was, at best, marginally relevant to the matters
before the post-conviction court.

13
motion for disqualification of the district attorney's office, reasoning

Well, I think that the way this is written, DR 5-102 envisions a lawyer
acting as a witness in their [sic] own cause. And in this particular
case, the lawyer is not being presented as a witness in their [sic]
cause. You may be calling them but not by [sic] the State.

The petitioner cites Disciplinary Rules 5-101 and 5-102(A) in support

of his argument. Those rules provide in pertinent part

A lawyer shall not accept employment in contemplated or pending
litigation if the lawyer knows or it is obvious that the lawyer or a lawyer
in the lawyer's firm ought to be called as a witness, except that the
lawyer may undertake the employment and the lawyer or a lawyer in
the lawyer's firm may testify:

(1) If the testimony will relate solely to an uncontested matter.

(2) If the testimony will relate solely to a matter of formality and there
is no reason to believe that substantial evidence will be offered in
opposition to the testimony.

[other exceptions omitted].
...

If, after undertaking employment in contemplated or pending litigation,
a lawyer learns or it is obvious that the lawyer or a lawyer in the
lawyer's firm ought to be called as a witness on behalf of the client,
the lawyer shall withdraw from the conduct of the trial and the firm, if
any, shall not continue representation in the trial, except that the
lawyer may continue the representation and the lawyer or a lawyer in
the lawyer's firm may testify in the circumstances enumerated
[above].

If, after undertaking employment in contemplated or pending litigation,
a lawyer learns or it is obvious that the lawyer or a lawyer in the
lawyer's firm may be called as a witness other than on behalf of the
client, the lawyer may continue the representation until it is apparent
that the testimony is or may be prejudicial to the client.

Tenn. Sup. Ct. R. 8 (Code of Prof'l Responsibility), DR 5-101 and 5-102. The

purpose of the rules on attorney and law firm disqualification is not to protect a

litigant from opposing counsel, but to protect the attorney's own client. Coakley v.

Daniels, 840 S.W.2d 367, 371 (Tenn. Crim. App. 1992). An attorney who is called

to the witness stand by his client's adversary has no obligation to withdraw from

representation until his testimony is or may be prejudicial to his client. State v.

14
Browning, 666 S.W.2d 80 (Tenn. Crim. App. 1983); see generally State v. Baker,

931 S.W.2d 232 (Tenn. Crim. App. 1996), perm. app. denied (Tenn. 1996). The

trial court's determination with respect to disqualification of an attorney based upon

undisputed facts and conduct not taking place in court is a matter within the trial

court’s sound discretion, and it is not to be disturbed on appeal absent an abuse of

discretion.13 State v. Baker, 931 S.W.2d 232, 238 (Tenn. Crim. App. 1996), perm.

app. denied (Tenn. 1996),

In this case, Robinson, a state's witness at the trial, was called to

testify by the petitioner at the post-conviction hearing. His testimony was consistent

with that which he had given previously, and it was in no way prejudicial to the

district attorney general's client, the State of Tennessee. It was within the trial

court’s discretion to rule that the district attorney's office should not be disqualified

from representing the state in the petitioner's case.

In summary, we find all of the petitioner's issues inappropriate for

appellate relief. The judgment of the trial court is affirmed.

_______________________________
CURWOOD WITT, JUDGE

CONCUR:

_______________________________
GARY R. WADE, JUDGE

13
But see In Re Ellis, 822 S.W.2d 602, 605-06 (Tenn. App. 1991). In Ellis,
a civil case, the court applied a standard of review found in Rule 13(d), Tenn. R.
App. P., de novo review with a presumption of correctness. In the case now
before us, the trial court’s ruling on the disqualification issue would be approved
even under the less deferential scope of Rule 13(d).

15
_______________________________
DAVID H. WELLES, JUDGE

16