Odell Everett, Jr. Vs. State Of Iowa

IN THE SUPREME COURT OF IOWA
No. 08–1540

Filed October 1, 2010

ODELL EVERETT, JR.,

Appellant,

vs.

STATE OF IOWA,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County,

Richard D. Stochl, Judge.

State seeks further review of a court of appeals’ decision reversing

the district court decision denying the defendant’s postconviction relief

action and granting the defendant a new trial. DECISION OF COURT

OF APPEALS VACATED; DECISION OF DISTRICT COURT AFFIRMED.

Nathan A. Mundy of Bartolomei & Lange, P.L.C., Des Moines, for

appellant.

Thomas J. Miller, Attorney General, Kevin R. Cmelik, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and

Kimberly A. Griffith, Assistant County Attorney, for appellee.
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WIGGINS, Justice.

The State seeks further review of a court of appeals’ decision

reversing the district court’s denial of the defendant’s application for

postconviction relief and ordering a new trial for the defendant. The

State contends the court of appeals erred in finding the defendant’s claim

that failure to obtain his presence when responding to a jury question

required the defendant to receive a new trial. Because we conclude the

defendant’s claim must be brought as a claim of ineffective assistance of

counsel and under such an analysis he failed to establish prejudice, we

vacate the decision of the court of appeals and affirm the trial court’s

denial of the defendant’s postconviction relief claim.

I. Background Facts and Proceedings.

From the evidence presented at trial, a jury could have found the

following facts. On November 11, 2003, a black male wearing a green

bandana over his face and a stocking cap on his head held up a Waterloo

convenience store. The man held a knife to one employee and demanded

the cash register drawer before fleeing on foot. A short time later, a

police officer in the vicinity observed the defendant, Odell Everett, exit a

car after the officer shined a spotlight on the vehicle. A lengthy foot

chase with police ensued. During the chase, an officer was able to grab

one of the defendant’s pants pockets, spilling its contents. The

defendant was apprehended shortly thereafter.

Upon retracing the chase route, police officers recovered cash and

food stamps that had spilled from the defendant’s pocket, a black

stocking cap, and the cash register drawer. A green bandana and a

significant number of coins were recovered from the defendant’s pockets.

In the vehicle exited by the defendant, officers recovered a blue jacket,
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which fit the witnesses’ description of an item of clothing worn by the

robber.

At trial, two store employees identified the defendant as the robber.

One employee testified that at one point during the robbery the

defendant stood behind her with a knife to the right side of her back.

She described the knife as having a blade three to four inches long with a

hook on the end. She also observed the defendant waving the knife

around. A second employee testified she did not actually see the knife

because the defendant had his hands in his pockets when she observed

him. But, she testified, “he was wielding [his hand] like there was a

knife,” giving her the impression he had a weapon.

During deliberations, the jury sent this question to the court: “Is it

first degree robbery if the defendant represents that he has a dangerous

weapon, but does not actually have or show it?” After conferring with

defense counsel and the prosecutor, the court sent the following written

response back to the jury: “Please reread the instructions.” The

defendant was not notified of the question and was not present when the

court and counsel conferred. Everett was subsequently convicted of

first-degree robbery for which he received a twenty-five-year

indeterminate sentence. 1

On direct appeal, the defendant claimed there was insufficient

evidence to support his conviction for first-degree robbery and his trial

counsel was ineffective for failing to offer expert witness testimony on the

subject of eyewitness identification. The court of appeals rejected both

claims and affirmed the defendant’s conviction.

1Everett was also convicted of interference with official acts for which he received
a thirty-day sentence. Everett only appealed his first-degree robbery conviction.
 4

In March 2006 the defendant filed this application for

postconviction relief. In his initial application, the defendant alleged trial

counsel was ineffective for, among other things, “failing to confer with

Everett regarding [a] jury [question].” He subsequently amended his

application “to allege one claim” stated as follows:

Reversible error occurred when the Court, Defense counsel,
and Prosecutor in any combination failed to notify Petitioner
of the jury question, request Petitioner’s presence be had
before the Court or that he waive such presence and failing
to comply with any of the procedures enumerated in Iowa
Rule [of] Criminal Procedure 2.27(1) . . . and 2.19(5)(g) . . .
resulting in prejudice to the Petitioner resulting in violations
of the 14th and 6th Amendment[s] to the United States
[C]onstitution and the [C]onstitution of the State of Iowa
....

At the hearing on the defendant’s application, trial counsel

admitted he did not request the defendant’s presence when asked by the

court if the defendant’s presence was needed. After hearing the jury

question, counsel determined “it was a legal question [and] there was no

advice Mr. Everett could give me on that [that] I would have needed.”

Defense counsel further testified he believed the instructions adequately

described the law and he did not want to risk a change in the instruction

which potentially would not benefit his client. He asserted his actions

constituted deliberate trial strategy. The defendant also testified at the

hearing. He stated that if he had been present and advised of the

question, he would have asked his attorney “to tell the jury to look at the

instructions, not just First Degree Robbery.”

The district court held the defendant had a Sixth Amendment

right, implemented by our rules of criminal procedure, to be present

during the process of responding to the jury’s request for further

instruction. Absent waiver, there is a presumption of prejudice which
 5

would require reversal unless the record affirmatively shows the court’s

instruction had no influence on the jury’s verdict prejudicial to the

defendant. See State v. Snyder, 223 N.W.2d 217, 221–22 (Iowa 1974).

The court held defense counsel did not have the right to waive the

defendant’s presence. The court found, however, the record affirmatively

established the trial court’s instruction had no prejudicial influence on

the jury’s verdict because the evidence against the defendant was

overwhelming. Furthermore, the court concluded the instruction

defining first-degree robbery clearly set forth the law and the answer to

the jury’s question was easily ascertained from those instructions.

Therefore, the defendant’s application for postconviction relief was

denied.

II. Appellate Review.

The defendant appealed. He acknowledged a claim not properly

raised on direct appeal may not be litigated in a postconviction relief

action unless sufficient cause is shown for not previously raising the

claim and actual prejudice resulted from the claim of error. However, the

defendant contended sufficient cause for not raising this claim on direct

appeal was established because he was unaware the jury had posed a

question until he received a copy of the trial transcript, after his direct

appeal was concluded. The State refuted the defendant’s argument that

there was sufficient reason error was not preserved on this claim and

maintained the proper vehicle to have brought the claim is through an

ineffective-assistance-of-counsel claim. The State argued the failure to

raise and frame the issue is significant because of the difference in the

prejudice prongs of the applicable tests.

A divided panel of the court of appeals reversed the district court’s

decision. The majority found Everett’s claim to have been unaware of the
 6

judge-jury communication until after the direct appeal constituted

sufficient reason for not having raised the claim on direct appeal.

Having determined the defendant established sufficient reason for

not raising this issue on direct appeal, the majority considered the merits

of the defendant’s claim. The appellate court concluded the court’s

instruction to reread the jury instructions provided no remedy to the

jury’s confusion regarding a point of law. Therefore, it was likely the

jury’s confusion influenced the verdict. The court of appeals reversed the

district court, holding Everett was entitled to a new trial. Notably, the

court of appeals analyzed the issue using the framework for evaluating a

claim of trial court error rather than using the standards for an

ineffective-assistance-of-counsel claim. We granted further review.

III. Standard of Review.

“The standard of review on appeal from the denial of postconviction

relief is for errors at law.” McLaughlin v. State, 533 N.W.2d 546, 547

(Iowa 1995). However, “[w]hen there is an alleged denial of constitutional

rights, . . . we make our own evaluation of the totality of the

circumstances in a de novo review.” Id.

IV. Relevant Rules of Procedure.

Iowa Rule of Criminal Procedure 2.27(1) provides that “[i]n felony

cases the defendant shall be . . . personally present at every stage of the

trial.” We have held that this rule applies to the giving of additional

instructions by the court and that the defendant’s “absence gives rise to

a presumption of prejudice necessitating reversal unless the record

affirmatively shows the instruction had no influence on the jury’s verdict

prejudicial to the defendant.” Snyder, 223 N.W.2d at 221–22. This right,

however, can be waived, as noted in Iowa Rule of Criminal Procedure

2.19(5)(g) which provides:
 7
After the jury has retired for deliberation, if there be any
disagreement as to any part of the testimony, or if it desires
to be informed on any point of law arising in the cause, it
must require the officer to conduct it into court, and, upon
its being brought in, the information required may be given,
in the discretion of the trial court. . . . Where the court gives
the jury additional instructions, this shall appear of record.
The procedure described shall take place in the presence of
defendant and counsel for the defense and prosecution,
unless such presence is waived.

Thus, “the trial court has discretion whether, and to what extent, a

jury inquiry should be answered; but it has no discretion in deciding

whether defendant and counsel need to be present.” State v. Griffin, 323

N.W.2d 198, 201 (Iowa 1982); accord McLaughlin, 533 N.W.2d at 548.

V. Error Preservation.

A. Argument. The State contends the defendant has failed to

preserve error on this claim because (1) he did not raise it on direct

appeal and (2) he has not raised it as an ineffective-assistance-of-

counsel—either trial or appellate—claim. The defendant, on the other

hand, asserts sufficient cause has been established for his failure to

raise this issue on direct appeal. See Berryhill v. State, 603 N.W.2d 243,

245 (Iowa 1999) (holding factual or legal matters which were excusably

unknown at the time of the trial and appeal may be properly asserted on

postconviction relief). He agrees, however, that he has not raised an

ineffective-assistance-of-counsel claim.

B. Guiding Principles. Before addressing the error preservation

argument, it is helpful to set forth the guiding principles concerning

postconviction relief. We have long held that postconviction relief

proceedings “are not an alternative means for litigating issues that were

or should have been properly presented for review on direct appeal.” Id.;

see also Iowa Code § 822.2(2) (2007) (postconviction relief “is not a

substitute for . . . any remedy, incident to the proceedings in the trial
 8

court, or of direct review of the sentence or conviction”). “Thus, we have

consistently held that any claim not properly raised on direct appeal may

not be litigated in a postconviction relief action unless sufficient reason

or cause is shown for not previously raising the claim, and actual

prejudice resulted from the claim of error.” Berryhill, 603 N.W.2d at 245.

Ineffective-assistance-of-counsel claims are an exception to the

traditional error-preservation rules. State v. Ondayog, 722 N.W.2d 778,

784 (Iowa 2006); see also State v. Lucas, 323 N.W.2d 228, 232 (Iowa

1982) (noting that, because realistically, these claims are not made by

attorneys against their own actions, we have allowed these claims to be

brought in a postconviction relief action). More recently, the Iowa

legislature has provided that an ineffective-assistance-of-counsel claim

“need not be raised on direct appeal from the criminal proceedings in

order to preserve the claim for postconviction relief purposes.” Iowa

Code § 814.7(1) (2007); see also State v. Johnson, 784 N.W.2d 192, 197

(Iowa 2010).

C. Analysis. Normally, objections to the giving of jury

instructions are waived on direct appeal if not raised before counsel’s

closing argument. See State v. Fountain, 786 N.W.2d 260, 262 (Iowa

2010) (citing Iowa R. Civ. P. 1.924); see also Iowa R. Crim. P. 2.19(5)(f)

(“The rules relating to the instruction of juries in civil cases shall apply to

the trial of a criminal case.”); State v. Shanahan, 712 N.W.2d 121, 141

(Iowa 2006) (same). However, “[w]hile the jury is deliberating, the court

may in its discretion further instruct the jury, in the presence of or after

notice to counsel. . . . [A]ny objections thereto shall be made in a motion

for a new trial.” Iowa R. Civ. P. 1.925; see also State v. McKee, 312

N.W.2d 907, 915 (Iowa 1981) (when jury directed question to judge

asking for a definition and the court gave an additional instruction
 9

concerning a vital issue in the case, “defendant was obliged to complain

of the instruction by motion for new trial or satisfactorily explain his

failure to do so”).

The court of appeals did not discuss the defendant’s failure to file a

motion for a new trial. Instead, it concluded that because Everett was

unaware of the jury’s question until after the resolution of his direct

appeal, sufficient reason or cause had been shown for not previously

raising the claim on direct appeal. The court of appeals allowed the

defendant to argue his claim as though he had preserved error. It also

allowed him to assert, absent an affirmative showing in the record that

the instruction had no influence on the jury’s verdict prejudicial to him,

that reversal was warranted.

The State, however, maintains this claim should have been

brought as a claim of ineffective assistance of counsel. It also argues the

court of appeals erred in treating the defendant and his lawyer as

separate entities. Specifically, the State asserts what was known to the

lawyer—that the jury had posed a question—was imputed to the

defendant, and thus, having failed to file a motion for new trial, the

defendant’s only recourse was to raise an ineffective-assistance-of-

counsel claim. The State’s argument has merit.

In State v. Ball, 600 N.W.2d 602, 603 (Iowa 1999), defense counsel

learned, for the first time during the cross-examination of the arresting

officer, his client had requested an attorney prior to his subsequent

making of incriminating statements. Defense counsel moved to suppress

the incriminating statements. The prosecution resisted, contending the

motion was untimely and thus waived, and the defendant had not shown

good cause to grant relief from the waiver. Ball, 600 N.W.2d at 604. We

agreed, imputing knowledge known to the defendant to his counsel and
 10

refusing to treat defense counsel and defendant as two separate entities

for the purpose of establishing good cause for failure to file a timely

motion to suppress. Id. at 605–06.

The same logic applies here. Trial counsel was obviously aware his

client was not present during the presentation and discussion of the jury

question. In fact, counsel chose not to have the defendant present.

Thereafter, no motion for new trial was filed as required by the rules of

procedure. It is undisputed counsel was acting on behalf of his client.2

To the extent the defendant asserts counsel’s actions were improper and

prejudice resulted, such claims must be brought as ineffective-

assistance-of-counsel claims. 3 See State v. Feregrino, 756 N.W.2d 700,

706–07 (Iowa 2008) (reviewing counsel’s waiver of jury trial under

ineffective-assistance-of-counsel standard). We conclude the defendant’s

2Because defense counsel was present and implicitly waived his client’s

presence, we have no occasion to consider this issue under a claim of trial court error.
See State v. Williams, 341 N.W.2d 748, 751–52 (Iowa 1983) (where it was unclear from
the record whether defendant or counsel were advised of jury question, on direct
appeal, court held error not preserved but concluded any error was harmless beyond a
reasonable doubt because the communication was not an instruction on the law and
had no bearing on what evidence the jurors were to consider); State v. McKee, 312
N.W.2d 907, 914–15 (1981) (same).
3In
fact, a close reading of the transcript of the hearing before the district court
in this case confirms that, irrespective of the analysis applied by the district court and
the defendant’s current claim, both the prosecution and the defense believed the
defendant’s claim was one of ineffective assistance of counsel. In argument to the
district court that the defendant had waived the attorney-client privilege, the prosecutor
stated:
When you file a [postconviction relief] and you’re claiming ineffective
assistance of trial counsel because trial counsel didn’t bring you over or
notify you of a jury question, you have effectively waived the attorney-
client privilege.
Likewise, in his direct examination of his client, postconviction-relief counsel
stated:
It’s—what’s being reviewed today is whether or not the trial of your case,
either ineffective assistance of counsel or some error that requires the
Court grant your application for post-conviction relief. Do you
understand that?
 11

claim must be addressed as one of ineffective assistance of counsel

despite his protestations to the contrary.

VI. Ineffective Assistance of Counsel.

A. Guiding Principles. Our analysis of an ineffective-assistance

claim is de novo. To succeed on an ineffective-assistance-of-counsel

claim, a defendant must show: “(1) counsel failed to perform an essential

duty; and (2) prejudice resulted.” State v. Maxwell, 743 N.W.2d 185, 195

(Iowa 2008). “[W]e measure counsel’s performance against the standard

of a reasonably competent practitioner.” Id. (citing Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001)). In determining whether an attorney failed

in performance of an essential duty, we avoid second-guessing

reasonable trial strategy. Fullenwider v. State, 674 N.W.2d 73, 75 (Iowa

2004); see also Kane v. State, 436 N.W.2d 624, 627 (Iowa 1989)

(“Improvident trial strategy, miscalculated tactics, or mistakes in

judgment do not necessarily amount to ineffective assistance of

counsel.”).

“To establish prejudice, a defendant must show the probability of a

different result is ‘sufficient to undermine confidence in the outcome.’ ”

State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008) (quoting Strickland

v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d

674, 698 (1984)). “In determining whether this standard has been met,

we must consider the totality of the evidence, what factual findings

would have been affected by counsel’s errors, and whether the effect was

pervasive or isolated and trivial.” State v. Graves, 668 N.W.2d 860, 882–

83 (Iowa 2003) (citing Strickland, 466 U.S. at 695–96, 104 S. Ct. at 2069,

80 L. Ed. 2d at 698). “Unlike the situation in which error has been

preserved and the court presumes prejudice, in this case it is the
 12

defendant’s burden to demonstrate a reasonable probability of a different

result.” Reynolds, 746 N.W.2d at 845 (citation omitted).

B. Performance of an Essential Duty. As previously noted, Iowa

Rule of Criminal Procedure 2.19(5)(g) provides that “the trial court has

discretion whether, and to what extent, a jury inquiry [on a factual

dispute or any point of law arising in the case] should be answered.”

Griffin, 323 N.W.2d at 201. The court, however, “has no discretion in

deciding whether [the] defendant and counsel need be present.” Id. The

determination of whether to give additional information and the giving of

additional information “shall take place in the presence of defendant and

counsel for the defense and prosecution, unless such presence is

waived.” Iowa R. Crim. P. 2.19(5)(g) (emphasis added); see also State v.

Williams, 341 N.W.2d 748, 751 (Iowa 1983) (“Our recent cases hold that

all communications between court and jury are required to be given in

the presence of the defendant and counsel.”). In this case, counsel

testified that he did not have permission to waive Everett’s presence. The

question, then, is whether counsel’s failure to ensure his client’s

presence or obtain his client’s waiver constituted a failure to perform an

essential duty.

We have not found a case where we have expressly held counsel’s

failure to ensure his client’s presence or obtain his waiver to participate

in the response to a jury question constitutes a failure to perform an

essential duty. In his testimony, trial counsel stated his handling of the

jury question involved trial strategy. Specifically, counsel considered the

jury’s inquiry to be a legal question, his client had previously left all legal

determinations to him, and there was nothing his client was going to say

that would have changed his mind that the best strategy was to allow the

court to instruct the jury to reread the instructions.
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The rationale for the requirement that a defendant be present

under such circumstances has been stated as follows:

The presence of the accused may be, and certainly is,
essential to the ends of justice in the trial of all criminal
offenses when his life or liberty is involved. When
instructions are given by the court, or when the jury,
returning from their room, desire to be further instructed,
the presence of the accused is of the greatest importance, as
he may be able to suggest to the court or his counsel some
information that would throw additional light on his defense.
He should also be present that he may except to the ruling of
the court.

Snyder, 223 N.W.2d at 221 (quoting Meece v. Commonwealth, 78 Ky.

586, 592 (1880)). We have also held a defendant’s right to be present for

the giving of additional instructions under the rules of criminal

procedure is derived from the Sixth Amendment. See McKee, 312

N.W.2d at 914–15.

We conclude counsel had a duty in this instance to ensure his

client’s statutory and constitutional rights were protected. Moreover, we
find in counsel’s testimony, no justification for his failure to do so in this

case. See State v. Bearse, 748 N.W.2d 211, 217 (Iowa 2008) (holding

where defense counsel had a duty to object to a breached plea agreement

and no possible advantage could flow from counsel’s failure to object,

counsel’s failure cannot be attributed to improvident trial strategy or

misguided tactics). Even if the defendant’s presence and input had no

effect on the court’s response to the jury question, his presence would

have, at minimum, provided him with the opportunity to confer with his

counsel and to object to the court’s ruling.

Nevertheless, because we can resolve this issue on the prejudice

prong, we need not determine whether the failure to ensure a defendant’s

presence during consideration of a jury question would always constitute
 14

a breach of an essential duty. See Kirchner v. State, 756 N.W.2d 202,

204 (Iowa 2008) (“ ‘The court need not address both components if the

[applicant] makes an insufficient showing on one of the prongs.’ ”

(quoting Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995))).

However, as implied from our discussion and prior case law, the better

practice is for counsel to always obtain the client’s presence or for the

court to obtain an express waiver of the defendant’s presence.

C. Prejudice. The jury’s question indicated that it was confused

about the elements of first-degree robbery, specifically whether the

defendant had to actually possess a dangerous weapon or whether it is

sufficient that he represented that he did. Under an ineffective-

assistance-of-counsel claim, the defendant must show that had he been

advised of the jury’s question and allowed to participate in the

determination of a response, there was a reasonable probability of a

different outcome. In this case, a different outcome would include a

conviction of an offense less than first-degree robbery. 4 A review of the

record reveals the defendant has not shown a reasonable probability that

the outcome would have been different.

In his own testimony, the defendant asserted that had he been
advised of the jury’s question, he would have asked his attorney “to tell

the jury to look at the instructions, not just First Degree Robbery.” This

is exactly what the trial court did when it instructed the jury to reread

the instructions. Moreover, the instruction on first-degree robbery

provided that in order to find the defendant guilty of first-degree robbery

the jury must find “[t]he defendant was armed with a dangerous

4This requirement places the burden on the defendant to show a reasonable

probability of a different outcome in comparison to the presumption of prejudice
standard applied by the court of appeals, requiring the State to affirmatively show the
district court’s actions did not have a prejudicial influence.
 15

weapon.” 5 (Emphasis added.) The ordinary definition of “armed” is

easily comprehended as meaning equipped with a weapon. See

Webster’s Third New International Dictionary 119 (2002) (defining “armed”

as “furnished with weapons of offense or defense . . . EQUIPPED”).

Merely representing that one had a weapon would not satisfy the “armed”

element of first-degree robbery. Thus, the court’s response to the jury to

reread the instructions, which included a correct statement of the law on

first-degree robbery, was an appropriate response and would not have

resulted in confusion prejudicial to the defendant.

As the State notes, counsel might have suggested that the question

be answered “to be convicted of robbery in [the] first degree the defendant

must actually be armed, that is, possess a weapon.” While this is also a

correct statement of the law, the defendant has failed to establish a

reasonable probability, in light of all of the evidence, that had this

additional instruction been given, the outcome would have been different

because there was undisputed evidence the defendant possessed a

weapon.

5The jury was given the following instruction in regards to first-degree robbery:
The State must prove all the following elements of Robbery in the
First Degree:
1. On or about the 11th day of November, 2003, the
defendant had the specific intent to commit a theft.
2. To carry out his intention or to assist him in escaping
from the scene, with or without the stolen property, the defendant
a. committed an assault . . . , or
b. threatened Rysa Rice or Dawn Carlson, or both of
them, with immediate serious injury, or purposely put Rysa Rice or
Dawn Carlson, or both of them, in fear of immediate serious injury.
3. The defendant was armed with a dangerous weapon.
If the State has proved all of the elements, the defendant is guilty
of Robbery In The First Degree. . . .
 16

Rysa Rice, one of two employees working that night, testified the

defendant approached her in a back room and stuck a knife into her

side. He ordered her to open the cash drawer while waiving the knife in

front of her. Rice was able to provide a description of the knife, stating it

had a three- to four-inch silver blade with a hooked end. The other

employee, Dawn Carlson, testified that when she went to investigate

Rice’s scream, the defendant grabbed her by the hair and pushed her

toward a counter. Although she did not see a weapon, she testified that

Everett had his hands in his pockets and was gesturing like he had a

knife. Carlson’s testimony supports Rice’s testimony that Everett was

armed with a knife. Because there is undisputed evidence the defendant

possessed a weapon, the defendant has not shown that, had he been

advised of and consulted about the jury’s question, a different response

would have been sent to the jury which would have resulted in a

reasonable probability the outcome would have been different.

VII. Conclusion.

The defendant cannot establish his trial counsel provided

ineffective assistance of counsel because he has failed to establish a

reasonable probability exists that had he been advised of the jury’s

question, the outcome of his trial would have been different. We

therefore vacate the decision of the court of appeals and affirm the

decision of the district court denying the defendant’s application for

postconviction relief.

DECISION OF COURT OF APPEALS VACATED; DECISION OF

DISTRICT COURT AFFIRMED.