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SECOND DIVISION
June 29, 2001

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Defendant Terrence Golden was convicted of first-degree murder and sentenced to a 40-year prison term. He argues on appeal that: (1) his confession should have been suppressedbecause it was not made knowingly and voluntarily; (2) he established a prima facie case ofpurposeful discrimination in the State's two final peremptory challenges; and (3) his sentence isexcessive. We also consider an odd occurrence at the close of the trial. After an earlier findingthat the defendant's statement about his involvement in the murder was voluntary, the trial courtordered defendant's signature on the statement redacted before it went to the jury. We affirm.

Defendant was charged with two counts of first-degree murder for the February 29, 1996,shooting of Ronald Samuel. Defendant filed a motion to suppress, alleging that his statements topolice and the assistant State's Attorney were involuntary. At the hearing on the motion, Chicagopolice officer Robert Schaefer testified that, in the early afternoon of March 3, 1996, he and otherofficers went to defendant's home to investigate the murder. The officers told defendant's motherthat they wanted to talk to defendant about a pending investigation. Defendant was not home, sothe officers asked his mother to call them when he returned.

The officers arrested another suspect, Kevin Wright, a short time later. Wright told theofficers that defendant was across the street at that time. Schaefer approached defendant on footand asked his name. Defendant said his name was Terrence Golden. The officer conducted apat-down search, placed defendant in handcuffs and advised him of his Miranda rights. Defendant said that he understood his rights.

The officers and defendant arrived at the police station at about 3:20 p.m. OfficerSchaefer discovered that defendant was 14 years old. Schaefer called defendant's home about 4or 4:15 p.m. to inform defendant's parents that he was in custody but no one answered thetelephone. Chicago police detective Edward Siwek testified that another detective, John Solecki,eventually spoke to defendant's brother-in-law, Ron Davis, and told him defendant was incustody.

Siwek further testified that he spoke to defendant at about 5 p.m. Solecki was present inthe room and defendant was not handcuffed. Siwek advised defendant of his rights anddefendant said he understood them. Their conversation lasted about 20 minutes.

Siwek testified that he did not speak to defendant's mother at the police station nor was heaware that she was at the station. He said he believed the police report showed that defendant'smother called the station about 6:45 p.m. Defendant never asked to speak to his mother andnever indicated that he did not want to speak to detectives.

Assistant State's Attorney Lawrence O'Reilly testified that he spoke with defendant atabout 6 p.m. on March 3, 1996. Schaefer and youth officer Daniel Grzyb were also present. Grzyb testified that his duty was to make sure defendant was advised of his rights and thatdefendant was not physically or psychologically coerced during questioning. The assistant State'sAttorney advised defendant of his Miranda rights and that he could be tried as an adult. Defendant said he understood his rights and agreed to give a statement. O'Reilly intervieweddefendant again a short time later about how the police had treated him while he was in custody. Defendant said he had been treated "nicely" and that everything was "fine."

O'Reilly further testified that at 8:50 p.m., in the presence of Schaefer, Grzyb and a courtreporter, defendant gave a statement. O'Reilly again advised defendant of his constitutionalrights. Defendant was not handcuffed. He gave a 27-page court-reported statement. Defendantreviewed the statement with O'Reilly, Schaefer and Grzyb, was given the opportunity to makecorrections, and signed the statement. O'Reilly and Grzyb testified that defendant did not ask tosee his mother and never said he did not want to speak to the officers or O'Reilly.

Defendant's mother, Jeanette Golden, testified that at least 10 police officers were in frontof her house when she returned home from the store on March 3, 1996. Detective Solecki toldher he wanted to question defendant about a fight he had been in. Solecki said that one of theboys had been injured. Solecki gave Golden a business card and told her to have defendant callwhen he returned home. Golden testified that all the officers then left the house, but tworemained in a parked car outside the house.

Golden further testified that, between 1:30 and 2 p.m., she went to Bellwood, Illinois,about 30 miles away. In Bellwood, Golden received a telephone call at about 7 p.m. from RonDavis, who told her defendant had been arrested. But Golden also testified that she and herfiancé left Bellwood shortly after 6 p.m. and arrived at the police station between 6 and 7 p.m.

At the station, Golden spoke to Solecki, who told her that someone from the State'sAttorney's office would be out to speak with her. Golden testified that she asked to speak tosomeone three more times before Solecki returned between 9:30 and 10 p.m. Solecki wassurprised that no one had spoken to her yet and told her he would check again. Golden testifiedthat she waited another two hours before the assistant State's Attorney came and told herdefendant had been involved in a murder. Golden asked to see defendant.

An hour later, Golden saw defendant. He was seated in a chair and was not handcuffed. He was crying and his lip was bleeding and had a lump on it. Defendant told Golden that one ofthe officers had hit him in the mouth. Golden testified that she did not speak to the officers aboutdefendant's injury.

Leon Cleveland, Golden's fiancé, testified that he and Golden arrived at the police stationsometime after 6 p.m. He testified that Golden did not see defendant until 2:30 a.m.

Defendant testified that in the early afternoon of March 3, 1996, police officers stoppedhim, asked his name, and then put him and Kevin Wright into a squad car. The officershandcuffed him in the car. They slapped him repeatedly in the back of the head and verballythreatened him on the way to the station. Defendant testified that the squad car stopped suddenlyand he hit his head on the front seat.

Defendant further testified that he was placed in a room by himself at the police station. He was handcuffed to a bench and repeatedly smacked on both sides of the face by OfficerSchaefer and kicked in the shins by another officer. The officers told him what to say in hisstatement. Defendant testified that he was not advised of his constitutional rights when he wasarrested or before either time he spoke to the assistant State's Attorney. Defendant said hispicture was taken at the station and that he signed the back of the photo, which noted the time,date and location. He did not tell the judge at his bond hearing that officers beat him andthreatened him. After his arrest, defendant took courses in constitutional rights at the juveniledetention center.

Assistant Public Defender Amy Thompson testified that she was assigned to representdefendant and visited him in April 1996 to discuss his transfer hearing. Defendant told her thatthe police had hit him while he was in custody and told him what to say in his confession.

The parties stipulated to the testimony of Janine Bostick, a social worker for the State ofIllinois Forensic Clinical Services. Bostick interviewed Jeanette Golden on October 31, 1996. Golden told Bostick that defendant was depressed after the deaths of his father, brother andcousin. Golden enrolled defendant in outpatient therapy at Michael Reese Hospital. Golden alsotold Bostick that, when he was in seventh grade, defendant was in special education classes. Butat the time of his arrest, defendant attended regular ninth-grade classes at South Shore AcademyHigh School.

The parties also stipulated to the testimony of Edward Blumstein, a psychologist forForensic Clinical Services. Blumstein would testify that test results showed defendant had a fullscale IQ of 79. Defendant had evenly developed cognitive functioning, except for his capacity togenerate and formulate abstract concepts. Defendant's ability to use and understand relationshipsbetween abstract ideas is one of his relative strengths.

The results of a reading comprehension test showed that defendant tested in the fifthpercentile in general vocabulary and the second percentile in overall reading comprehension.

The parties further stipulated to the testimony of Dr. Roni Seltzberg, an expert in forensicpsychiatry. Dr. Seltzberg examined defendant and reviewed his records and test results. Dr.Seltzberg concluded that defendant "had the cognitive capacity to understand verbally presentedMiranda Warnings, although it is unclear to me what a fourteen year old can appreciate of thesewarnings." At the time Dr. Seltzberg examined defendant, he was 16 years old and had beenattending constitutional rights classes.

The trial court admitted defendant's court-reported statement and the photograph intoevidence. The court noted that defendant's statement was not a "mere regurgitation of wordsproffered by the interrogator," but was "a conversation where the questioner asks questions andthe responses are independent and thoughtful and relate facts independent of that of thequestioner." The trial court also said that defendant's statement was "reflective on theintelligence of the defendant and his knowledge of the facility with the English language and hisown sophistication."

An agent at the juvenile detention center testified that he examined defendant on March5, 1996. The screening form showed that the agent marked "zero" in the areas of "illness; rashesand bugs; injuries and bites; hospitalization; impairment; mental status; medications."

The trial court found that defendant had not been physically or mentally coerced, and thathe had been advised of and understood his rights. The court ruled that defendant's statement wasmade knowingly and voluntarily. But the court also found that the police were aware of JeanetteGolden's presence at the police station sometime after 7 p.m. The court ruled that the officersshould have brought Golden to see defendant before or during his court-reported statement. Thecourt suppressed evidence of the execution of the written statement, including testimony aboutdefendant's review and signature of the statement. The written statement was copied andsubmitted to the jury at trial with the signatures redacted. Assistant State's Attorney O'Reillytestified to the contents of defendant's oral statement at trial.

At trial, Stephanie Stamps testified that on February 29, 1996, at about 3 p.m., she lookedout of her living room window and saw two males on the sidewalk in front of her house at 7704South Colfax Avenue in Chicago. The two exchanged signs with their hands. Then one personpulled out a gun and began shooting at the other. The second man turned and ran. Stampsdescribed the shooter to the police as an African-American male with a fair complexion, wearinga jacket and skullcap. Stamps saw a lineup on March 3, 1996, but did not identify the shooter.

The evidence at trial also showed that four shell casings were found at the scene of theshooting. The autopsy performed on the victim, Ronald Samuel, showed seven gunshot entrywounds in his back.

Chicago police detective David Jarmusz testified as an expert on street gangs. Hetestified that the Gangster Disciples are rivals of the Blackstones. He also testified that a "shorty"is a new member in a gang, a "soldier" is a recognized member who has earned the respect ofother members, and a "coordinator" oversees both shorties and soldiers. Jarmusz explained that"false flagging" is when a gang member uses a rival gang's hand signals to get rival gangmembers to identify themselves.

The testimony of Detective Siwek, Officer Schaefer and Detective Solecki wassubstantially similar to their testimony at the suppression hearing.

Assistant State's Attorney O'Reilly's testimony about the circumstances surroundingdefendant's confession was also similar to his testimony at the suppression hearing. At trial,O'Reilly further testified to the contents of defendant's confession.

Defendant told O'Reilly that he and Niles Davis were sent home early from school onFebruary 29, 1996, because a funeral for a member of the Blackstones was scheduled. Membersof the Blackstones planned to march around the school, which was in Blackstone territory. Defendant, Davis and many others who attended the school were members of the GangsterDisciples. Defendant was a "shorty" in the gang, and Davis was a "coordinator." Defendantexplained that the coordinator oversees the rookie members.

After leaving school on February 28, defendant and Davis went shopping at 79th Streetand Marquette Avenue in Chicago. A member of the Blackstones shot at them as they came outof a store but hit a man in a telephone booth.

On February 29, 1996, defendant and Davis left school at about 3 p.m. Davis got a .25-caliber automatic gun from his house and gave it to defendant. As they walked toward 79thStreet, they met several other Gangster Disciples. Defendant and Davis explained to the othersthat they were going to shoot a Blackstone in retaliation for the shooting the day before. Theother members agreed to join them and act as "security," looking out for rival gang members andpolice.

Defendant and the others were walking down Colfax when they saw the victim, lateridentified as Ronald Samuel, flash a Blackstone gang hand signal at them. One of defendant'sgroup "false flagged" the Blackstone signal. Defendant approached Samuel and spoke to him. Both defendant and Samuel identified themselves as Blackstones. Samuel turned to walk away. Defendant pulled the gun from his pocket and shot at Samuel four or five times. Defendant gavethe gun to one of the other Gangster Disciples and they all ran away in different directions. Defendant later retrieved the gun and returned it to Davis.

Defendant said that the officers had treated him "nicely" while he was in custody. He hadbeen given food and was allowed to use the restroom. He said his statement was given freely andvoluntarily. O'Reilly testified that he was not aware that defendant's mother was in the policestation.

Jeanette Golden also testified at trial consistent with her testimony at the suppressionhearing.

The jury found defendant guilty of first-degree murder. At the sentencing hearing,several witnesses testified in mitigation that defendant was an intelligent, talented, responsiblerole model who exhibited great potential and maturity during the two years he was in the juveniledetention center and participated as an actor and writer in music theater workshops. Inaggravation, the State presented the victim impact statements of Ronald Samuel's mother and twosisters.

The court noted that the only statutory aggravating factor was that the shooting was gang-related. The court considered defendant's talent, youth, rehabilitative potential and lack ofcriminal background, as well as his history of substance abuse and the severity of the crime. Thetrial court sentenced defendant to a 40-year prison term.

Defendant argues on appeal that his motion to suppress should have been granted becausehis statement was not made intelligently, knowingly and voluntarily. Defendant notes that hewas 14 years old at the time of his arrest, he was "borderline intelligent" and his mother wasprevented from seeing him until after he made his statement. We have been unable to findauthority for the trial court's redaction of defendant's signature as an appropriate cure for theexecution of the statement while defendant's mother was in the station but before he had anopportunity to consult with her. So we will review the issue under the guidelines set down by thesupreme court for admission of a juvenile's confession made before he was allowed to consultwith a parent. In re G.O., 191 Ill. 2d 37, 727 N.E.2d 1003 (2000).

Although we will reverse a trial court's findings of historical fact only if they are againstthe manifest weight of the evidence, we review de novo the ultimate question of whether aconfession was voluntary. G.O., 191 Ill. 2d at 50, 727 N.E.2d at 1010. We consider the totalityof the circumstances to decide whether a confession was voluntary. G.O., 191 Ill. 2d at 54, 727N.E.2d at 1012. "Factors to consider include the [juvenile's] age, intelligence, background,experience, mental capacity, education, and physical condition at the time of questioning; thelegality and duration of the detention; the duration of the questioning; and any physical or mentalabuse by police, including the existence of threats or promises." G.O., 191 Ill. 2d at 54, 727N.E.2d at 1012, citing People v. Gilliam, 172 Ill. 2d 484, 500-01, 670 N.E.2d 606, 614 (1996). Also relevant is the "concerned adult" factor: whether the juvenile, before or during interrogation,had an opportunity to consult with an adult interested in his welfare. This factor is especiallyrelevant "in situations in which the juvenile has demonstrated trouble understanding theinterrogation process, he asks to speak with his parents or another 'concerned adult,' or the policeprevent the juvenile's parents from speaking with him." G.O., 191 Ill. 2d at 55, 727 N.E. 2d at1012-13. No single factor is dispositive, and the failure to confer with a parent before or duringinterrogation does not per se render a juvenile's statement involuntary. G.O., 191 Ill. 2d at 55,727 N.E.2d at 1013; People v. Gilliam, 172 Ill. 2d 484, 500, 670 N.E.2d 606, 614 (1996).

Here, defendant was 14 years old at the time of his arrest. Although defendant testified atthe suppression hearing that he was not advised of his rights and that he was physically andverbally coerced, the police officers and the assistant State's Attorney testified that defendant wasrepeatedly advised of his constitutional rights, both when he was arrested and each time he wasquestioned. Defendant said he understood his rights. It is the function of the trial court todetermine credibility and the weight and inferences to be drawn from the evidence. People v.Steidl, 142 Ill. 2d 204, 226, 568 N.E.2d 837, 845 (1991).

Defendant also relies on the stipulated testimony of the psychiatrists who tested andexamined him to support his argument that he did not have the mental capacity to understandMiranda warnings. It is the trial court's role to decide what weight to give psychiatric experttestimony. People v. Randle, 277 Ill. App. 3d 788, 798, 661 N.E.2d 370, 377 (1995).

Here, the evidence supports the trial court's finding that defendant was advised of hisrights and understood them. The trial judge said, "[Y]ou look at the statement and the context, aperson who is able to understand questions and responds to them in a meaningful way. It's notjust parroting a bunch of statements. Now it's not the person who lacks understanding of what'sgoing on." Defendant was not handcuffed during the interrogation, was given food and drink andwas allowed to use the restroom. Defendant said in his court-reported statement that the policetreated him "nicely." The trial court found that the photograph taken of defendant at the time ofhis statement showed "no sign of any physical abuse."

Defendant did not demonstrate difficulty understanding the interrogation process, nor didhe ask to see or speak to his mother. The record shows that defendant made an oral confessionbefore his mother arrived at the station. Considering the totality of the circumstances,defendant's confession was voluntary.

However, we find no precedent for the trial court's suppression of defendant's signatureon the statement while allowing the statement itself to be admitted in evidence. In fact, thestatement was published to the jury and the redacted version was included in the evidence sent tothe jury room for deliberations. During deliberations, the jury sent the trial judge a note:

"(1) The copy of [defendant's] statement is not signed by anyone. (2) Isthis a copy, or the original statement? (3) Does the defendant and/or the otherwitnesses to the statement need to sign the statement? (4) If the statement needsto be signed, may we, the jury, see the signed statement?"

The trial judge responded: "Consider only the evidence that you have received."

We are faced with a trial court ruling that appears to be inherently contradictory. On theone hand, the trial court expressed concern about the failure of the police to allow defendant tosee his mother before he signed his transcribed statement. On the other hand, the court alsoseemed to be of the view that the oral statement made by defendant before his mother arrived atthe station was voluntary. The trial court's solution was a redaction of defendant's signature fromthe written statement, while at the same time admitting the statement into evidence and allowingit to go to the jury as an exhibit. The result of the trial court ruling was a jury that did not knowwhat to make of the exhibit it had been given.

The trial judge may have been able to resolve the question he created in the jurors' mindsif he had followed the admonition of our supreme court in People v. Childs, 159 Ill. 2d 217, 233-34, 636 N.E.2d 534, 541-42 (1994), that : "(1) a jury is entitled to have its explicit legal questionsanswered; [and] (2) the trial court has an obligation to seek clarification of the source of the jury'sconfusion if the question is unclear, and to then attempt to clarify the matters of law about whichthe jury has manifested confusion." We note that defendant has waived review of this issue bystipulating to the judge's response and failing to object at trial or in his posttrial motion. "Wherea defendant acquiesces in the circuit court's answer to the jury's question, the defendant cannotlater complain that the circuit court abused its discretion." People v. Reid, 136 Ill. 2d 27, 38, 554N.E.2d 174, 179 (1990); see also People v. Barlow, 273 Ill. App. 3d 943, 654 N.E.2d 223 (1995). But a plain error analysis is warranted, given that we have been unable to find authority for thetrial court's decision to send defendant's statement to the jury with his signature redacted.

In light of our finding that the circumstances surrounding defendant's statement comportwith the guidelines set out in G.O., particularly the holding that the presence of a parent is onlyone factor to be considered in weighing the voluntariness of a statement (G.O., 191 Ill. 2d at 55,727 N.E.2d at 1013), the trial court's redaction of the signature was harmless error. Thedefendant's statement, in our view (and in the view of the trial judge), was voluntary. The jurorswere entitled to receive and weigh it.

Defendant next argues that the trial court erred in finding that he failed to make a primafacie case of discrimination under Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct.1712 (1986). To make a prima facie case, a defendant must show that "relevant circumstances"raise an inference of purposeful discrimination based on race. Relevant circumstances mayinclude a pattern of strikes against minority venire persons; the prosecutor's questions andstatements during voir dire and in exercising challenges; disproportionate use of peremptorychallenges against minorities; the level of minority representation in the venire as compared tothe jury; whether those excluded minority venire persons were a heterogeneous group sharingrace as their only common characteristic; and the race of the defendant, victim and witnesses. People v. Hudson, 157 Ill. 2d 401, 426, 626 N.E.2d 161, 171 (1993). A trial court's decision thata defendant has failed to establish a prima facie case is a finding of fact, which we will notoverturn unless it is against the manifest weight of the evidence. People v. Coleman, 155 Ill. 2d507, 514, 617 N.E.2d 1200, 1204 (1993).

During jury selection, the State exercised peremptory challenges against one white veniremember and both of the African-American venire members in the first panel, Ms. Love and Ms.Thomas. The trial court found that defendant made a prima facie case for a violation of Batson. The State argued that Love indicated that she might be biased because her cousin had beenaccused of murder and that she was concerned about finding care for her children during thecourse of the trial. The State also argued that both Love and Thomas were inattentive during voirdire. The trial court found that Love was inattentive and gave inconsistent answers, valid race-neutral reasons for exercising peremptory challenges, and granted the State's challenge againstLove. But the court did not find a race-neutral reason for excluding Thomas and so denied theState's peremptory challenge.

After the second panel of venire members was questioned, the State exercised peremptorychallenges against one African-American male and one Hispanic male. Defendant again made aBatson motion, arguing that three of the State's five peremptory challenges were against African-Americans, and the fourth against a Hispanic.

The trial court found that defendant failed to make a prima facie case of discrimination. The court noted that the State did not challenge several African-American venire members in thesecond panel. The court also said that a Hispanic person could not be considered part of thesame cognizable group as African-Americans. The court found no pattern of discriminationagainst Hispanic jurors. The only other Hispanic venire members were excused for cause on thecourt's own motion because one had difficulty understanding English and the other said she wasbiased in favor of the prosecution.

Here, the trial court's finding that defendant did not establish a prima facie case ofdiscrimination for the State's last two peremptory challenges was not against the manifest weightof the evidence. The trial court properly recognized that the challenges against African-American and Hispanic venire members should be analyzed separately. To decide whether aprima facie case of racial discrimination occurred, we must give separate consideration todifferent racial or ethnic groups. People v. Harris, 164 Ill. 2d 322, 344, 647 N.E.2d 893, 904(1994). The trial court properly found no prima facie case of racial discrimination where theState exercised only one peremptory challenge against a Hispanic venire member.

We believe the trial court was also correct in finding no prima facie case ofdiscrimination in the State's final peremptory challenge against an African-American. Here, theState did not challenge several other African-Americans on the panel. "To create a pattern,strikes should do more than occasionally involve venire members of a certain race. The strikesshould affect those members to such a degree or with such a lack of apparent nonracialexplanation as to suggest the possibility of racial motivation ***." People v. Hope, 137 Ill. 2d430, 463, 560 N.E.2d 849, 864 (1990). Where both the defendant and the victim are African-American, their racial characteristics do not warrant an inference, at the prima facie stage, thatthe prosecution discriminated against venire members who were African-American. People v.Figgs, 274 Ill. App. 3d 735, 745, 654 N.E.2d 555, 563 (1995), citing People v. Henderson, 142Ill. 2d 258, 289, 568 N.E.2d 1234, 1249 (1990).

Defendant's final argument is that his 40-year sentence is excessive. He argues that thetrial court failed to consider his age, potential for rehabilitation, limited mental capacity andemotional and psychological problems.

Sentencing issues not raised by objection in the trial court and in a postsentencing motionare waived on appeal. People v. Reed, 177 Ill. 2d 389, 394, 686 N.E.2d 584, 586 (1997). Wewill not reverse absent a showing that the trial court abused its discretion in imposing thesentence. People v. Beals, 162 Ill. 2d 497, 512, 643 N.E.2d 789, 796 (1994). Defendant has notfiled a postsentencing motion, but argues that the trial court committed plain error in sentencinghim to a 40-year prison term. Under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), we mayrecognize plain errors affecting substantial rights even when not brought to the attention of thetrial court.

Defendant argues that the sentence is not commensurate with his rehabilitative potential,as testified to by the witnesses in mitigation. Those witnesses, all of whom interacted withdefendant during his time at the juvenile detention center, described him as intelligent,cooperative and hard-working. They testified that he wrote and acted in plays as part of a musictheater workshop.

Defendant also argues that his sentence does not reflect that he was only 14 years old atthe time of the shooting, had an IQ score of 79, and tested poorly in reading comprehension. Healso suffered from depression after the deaths of his father, brother and cousin in 1991.

We find no plain error in this case. The evidence showed that, in a planned act ofretaliation for an earlier shooting, defendant fired seven shots into the back of an unarmed victimwho was running away from him. The trial court is in the best position to observe the defendantand consider factors such as credibility, demeanor, moral character, mentality, socialenvironment, habits and age. People v. Streit, 142 Ill. 2d 13, 19, 566 N.E.2d 1351, 1353 (1991). The trial judge's lengthy comments at the sentencing hearing show that he weighed bothaggravating and mitigating evidence before imposing a sentence.

The seriousness of the crime is an important factor to be considered in imposing sentence. People v. Costello, 224 Ill. App. 3d 500, 510, 586 N.E.2d 742, 749 (1992). "A sentence withinthe statutory guidelines that is alleged to be excessive will not be disturbed on review unless it ismanifestly disproportionate to the nature of the offense." Costello, 224 Ill. App. 3d at 510, 586N.E.2d at 749, citing People v. Cabrera, 116 Ill. 2d 474, 493-94, 508 N.E.2d 708, 716 (1987). The trial court did not abuse its discretion in imposing a 40-year sentence in this case.

We affirm the judgment of the circuit court.

Affirmed.

GORDON and McBRIDE, JJ., concur.