Burden v. State

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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official text of the opinion.

In the
Supreme Court of Georgia
No. S26A0063
Derrick Burden
v.
The State

On Appeal from the Superior Court of DeKalb County
No. 12SC12356

Decided: June 2, 2026

LAGRUA, Justice.
Appellant Derrick Burden challenges his 2013 convictions
for malice murder and other crimes in connection with the
shooting deaths of Calvin Streater and Samuel Blizzard, Jr. 1

1 The crimes occurred on September 5, 2010. On July 17, 2012, a Fulton
County grand jury indicted Burden on two counts of malice murder (Counts 1
and 2), six counts of felony murder (Counts 3-8), armed robbery (Count 9), two
counts of aggravated assault with a deadly weapon (Counts 10 and 11), two
counts of possession of a firearm during the commission of a crime (Counts 12
and 13), and possession of a firearm by a convicted felon (Count 14). At a trial
from December 10 to 13, 2013, the jury found Burden guilty of all charges. On
December 23, 2013, the trial court sentenced Burden to serve consecutive
terms of life in prison without the possibility of parole on Counts 1 and 2, a
concurrent sentence of life imprisonment on Count 9, and five-year sentences
of imprisonment on each of the firearm possession charges, with the sentences
on Counts 12 and 13 to run consecutively to Count 2, and the sentence on Count
14 to run consecutively to Count 13. The other verdicts were vacated by
operation of law or merged. Burden’s trial counsel filed a timely motion for new
trial. At a hearing in November 2015, Burden requested conflict-free counsel
for appeal, and the trial court entered an order on June 10, 2016, directing the
Burden contends that the trial court abused its discretion in
admitting evidence about his 2012 Clayton County convictions
under OCGA § 24-4-404(b) (“Rule 404(b)”). Because we conclude
that the trial court did not clearly abuse its discretion in
admitting the Rule 404(b) evidence, we affirm.
Viewed in the light most favorable to the verdicts, the
evidence presented at trial showed that on the evening of
September 5, 2010, Streater and Blizzard were shot execution-
style in an apartment in Atlanta, and Blizzard’s laptop and
computer bag were stolen from the apartment. The initial
investigation pointed to a single suspect who had (1) interacted
with Streater on the morning of September 5 outside a
convenience store near the apartment; (2) spent time with
Streater at the apartment during the day on September 5; and (3)
fled from police a short time after the murders, dropping
Blizzard’s laptop bag, which contained the murder weapon and
Blizzard’s laptop. In January 2012, Burden was identified as a
suspect when officers learned that DNA found on a cigarette butt
in the apartment matched Burden’s DNA, and when Burden was
positively identified in a photo line-up by a person who had seen
him with the laptop bag shortly after the murders.

Georgia Public Defender Council to appoint outside appellate counsel. New
counsel entered an appearance in February 2018, but did not file an amended
motion for new trial. After another change in appointed counsel, Burden’s first
amended motion for new trial was filed on May 27, 2022, but that counsel
withdrew four months later. The Georgia Public Defender Council then
appointed a succession of new counsel until, finally, in June 2024, current
appellant counsel was appointed and filed a second amended motion for new
trial in January 2025. After an evidentiary hearing on April 10, 2025, the trial
court entered an order denying the motion on April 28, 2025. Burden filed a
timely notice of appeal, and the case was docketed in this Court to the term
beginning in December 2025 and submitted for a decision on the briefs.

2
Now, the evidence in more detail as it was presented to the
jury: Early on the morning of September 5, 2010, Streater
traveled to Atlanta from Charlotte to visit his friend Delroy
Bastian and to attend a weekend festival with Bastian and his
roommate Charles Pettaway. Bastian picked up Streater at 5:00
a.m. from the downtown bus station, and they went to an “after
hours” club, returning to Bastian’s and Pettaway’s apartment
around 8:00 a.m. Streater asked Bastian if he could borrow
Bastian’s car, and Bastian agreed; Bastian then went to his
bedroom upstairs to go to sleep. Pettaway was also asleep in his
own bedroom.
Around 8:30 a.m., Streater drove to a nearby convenience
store. Surveillance video, which was played at trial, showed
Streater talking briefly with a man and possibly exchanging
something by hand with the man. The man Streater interacted
with was of medium height and build with short dreadlocks and
was wearing distinctive clothing consisting of an oversized white
t-shirt and long, baggy black or dark blue shorts.
When Bastian woke up around 2:30 p.m. and came
downstairs, he saw Streater sitting on an air mattress in the
guest room with a man Bastian had never met. Streater told
Bastian that this man was a “friend” but did not introduce the
man to Bastian. The interaction lasted about two minutes, and
Bastian went upstairs to get ready for an event that he and his
friend Elirenzo Walker planned to attend in the early evening.
Bastian described the man as being about “five-nine, about 160,
165,” with “dread twists” and “light brown skin.”
Walker, who also knew Streater, came over to the
apartment about 3:00 p.m., and saw Streater sitting with a man
on the air mattress. Walker described the man as having “dreads”
and wearing a white shirt and black shorts. Walker greeted

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Streater and asked him who the man was. Streater told him to
“mind his business.” When Walker asked again, Streater
repeated, “mind your business.” The man with Streater did not
say anything but pulled out a black gun that resembled a 9mm,
“pulled it back like cocking it,” and pointed it at Walker. Walker
said, “Man, pick that gun up. Why you pointing that gun towards
me?” The man didn’t respond, and Walker left the room and
walked upstairs. Around 4:00 p.m., Bastian and Walker left the
apartment to run errands in preparation for the evening event,
and as they left, Walker saw the man leave the apartment.
Pettaway also had a brief interaction with the man, whom he
described as having “dreads,” “light brown skin,” and a “regular
build,” and being about the same height as Pettaway (who
testified he was five feet, 10 inches tall). While the man was in
the apartment, there was conversation among Bastian, Walker,
Pettaway, and Streater about attending an event together later
that day. Blizzard, who was Pettaway’s cousin and had just
enrolled in college, was temporarily staying at the apartment
until he could move into his dorm room, was not present at the
apartment during the day.
When Bastian and Walker returned to the apartment
about 5:30 p.m., Streater and Blizzard were there; Pettaway had
already left for the event. Around 6:15 p.m., Bastian and Walker
left again; Blizzard was on the couch with his laptop; and Streater
was lying on the air mattress, having decided not to attend the
event because he was tired but was planning to attend a second
event that started later in the evening. Bastian said he would
come back and pick up Streater for the later event.
Approximately an hour later, Raphael Parrott, who had no
connection to the victims or their friends, confronted a man who
was trespassing across the back of his mother’s property, which

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was about a mile from Bastian’s apartment. The man was slim,
with “dreads” no longer than his shoulders, wearing a white t-
shirt and dark, jean shorts that were “sagging” and fell below his
knees. The man was carrying a black computer bag. Parrott, who
was holding a gun by his side, asked the man, “Hey, didn’t my
mom tell you not to come through her backyard?,” and the man
responded, “No, your mom ain’t never said nothing to me, nothing
like that.” Parrott instructed the man to walk over to the front
stairs of Parrott’s mother’s house, and after the man did as
instructed, Parrott’s mother came outside, and “she immediately
went off,” saying, “Didn’t I tell you not to come through my yard
anymore.” The man started “getting fidgety” and said, “I got to go
home, I can’t go to jail.” When a police officer arrived about 20
minutes after Parrott had confronted the man—in response to
what the officer understood was a “hang-up 911 call”—Parrott put
down his gun, and the man walked toward the officer. The officer
told the man to stop, but the man dropped the bag and eluded
capture, jumping a fence and running into a heavily wooded area
behind the houses on the street. The bag the man dropped was
Blizzard’s and contained Blizzard’s laptop and the murder
weapon.
About 10:00 p.m., Bastian returned to the apartment and
discovered that Blizzard and Streater had been fatally shot.
Blizzard was in the living room, kneeling on the floor in front of
the couch, with his head on the couch and his hands behind his
head; he had been shot once in the back of the head and once in
the back. Streater was lying on the air mattress and had been
shot in the side of the head. Bastian was in shock and “hysterical,”
and called Walker, Pettaway, and another friend, before calling
911. During the investigation of the crime scene, officers
recovered a cigarette butt in an ashtray near the air mattress,
which was later determined to contain DNA matching Burden’s

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DNA. A few days after the murders, the lead detective canvassed
nearby convenience stores and located the surveillance video
shown at trial. The detective had flyers with a composite sketch
and “clips from the video” of the man who interacted with Streater
and distributed them in the neighborhood. The still shot from the
video depicted a man with dreadlocks covering his neck, wearing
an oversized white t-shirt and dark shorts that were long and
baggy. When shown the video surveillance footage by
investigating officers, Bastian said that the man in the video
interacting with Streater was the same man he had seen in the
apartment with Streater on the day of the murders.
A month after the murders, Burden was arrested for
possession of marijuana at a home on Browns Mill Road, which
was also near the murder scene and Parrott’s property. 2 Burden
had changed his hairstyle, cutting his hair very short, and gave
the arresting officer a false name.
In January 2012, after Burden was identified as a suspect
based on the DNA match from the cigarette butt, Parrott picked
him out of a photo line-up. At trial, Parrott testified that he had
worked for seven years as a bail bondsman, which required him
to “identify people and apprehend them.” Parrott also positively
identified Burden at trial as the man who had dropped the laptop
bag in his yard. 3

2 An officer had been called to the scene by the owner of the home
because the former tenants—Burden’s girlfriend and her mother—were at the
property removing items in violation of an eviction order.
3 For purposes of the count charging possession of a firearm by a
convicted felon, the State introduced into evidence certified copies of Burden’s
2008 felony convictions in DeKalb County for burglary and entering an
automobile.

6
In his sole enumeration of error, Burden contends that the
trial court abused its discretion in admitting evidence under Rule
404(b) about Burden’s Clayton County convictions in 2012 for
aggravated assault and burglary with intent to commit theft. We
disagree. As explained below, we conclude that the trial court did
not clearly abuse its discretion in determining that the prejudicial
value of the Clayton County crimes did not substantially
outweigh the probative value of the evidence.
1. Background
Prior to trial, the State filed a motion to admit evidence of
Burden’s convictions arising out of crimes he committed in 2012
in Clayton County, approximately 18 months after the charged
offenses. Specifically, on March 30, 2012, Burden and a young
man were seen crossing a street in Clayton County carrying
televisions. A nearby property owner, Guy Stephens, was driving
when he saw Burden and the other young man walking across a
road with televisions on their shoulders. Stephens pulled off the
road and yelled at the men to stop. Burden and the other man
dropped the TVs and ran in opposite directions from each other.
As Burden was running away towards the woods, he fired his gun
at Stephens, who was approximately 75 yards away. Officers with
the Clayton County Police Department who responded to
Stephens’s 911 call discovered that a nearby home had been
broken into when the residents were away and several electronic
items were missing. Officers also learned that one of the men
Stephens had seen lived in a home about a quarter of a mile away
through the woods and, in a search of that residence, discovered
an identification card for Burden and several guns.
After his arrest on the charged crimes, Burden was
questioned about the Clayton County crimes and, after waiving

7
his Miranda 4 rights, admitted that he forced open the door of the
Clayton County home; made two trips to get two flat screen TVs
and an Xbox 360; had a juvenile helping him and serving as a
lookout; and planned to sell the stolen items “on the street.”
Burden initially told officers that he fired one shot at Stephens
after Stephens confronted him with a handgun, which Stephens
denied. Burden ultimately pleaded guilty in connection with the
Clayton County crimes to burglary predicated on intent to commit
a theft; aggravated assault with a deadly weapon; possession of a
weapon during the commission of a crime; and possession of a
firearm by a convicted felon. He was sentenced to 10 years
imprisonment.
In addressing the admissibility of the Clayton County
evidence under Rule 404(b) before trial, the State argued that
Burden had believed the apartment where the murders occurred
would be empty and planned to burglarize it, but when he
discovered Blizzard and Streater were still there, he killed them
because he did not want to leave any witnesses—just as he shot
at Stephens when confronted after the theft in the Clayton
County crimes. The State contended that the Clayton County
crimes supported the State’s theory of intent and motive in the
charged crimes. Over Burden’s objection, the trial court ruled that
the evidence of the Clayton County crimes would be admissible to
show intent and motive and that the probative value of the
evidence was not substantially outweighed by its prejudicial
effect. 5

4 Miranda v. Arizona, 384 US 436 (1966).
5 During trial, Burden reiterated his objection.

8
2. Rule 404(b) Analysis
Under Rule 404(b), evidence of a defendant’s “other crimes,
wrongs, or acts shall not be admissible to prove the character of a
person in order to show action in conformity therewith,” but it
may “be admissible for other purposes, including, but not limited
to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” OCGA §
24-4-404(b). “Rule 404(b) is a rule of inclusion,” Henderson v.
State, 318 Ga. 752, 754 (2024) (quotation marks omitted), and the
trial court’s admission of Rule 404(b) evidence will be reversed
only if it constitutes a clear abuse of discretion, see Hall v. State,
322 Ga. 378, 382 (2025).
(a) When the State seeks to introduce evidence of a
defendant’s “other crimes, wrongs, or acts” under Rule 404(b), it
must satisfy a three-part test and show (1) that “the evidence is
relevant to an issue in the case other than the defendant’s
character”; (2) that “the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice” under
OCGA § 24-4-403 (“Rule 403”); and (3) that there is sufficient
proof that the defendant committed the other acts. Lee v. State,
322 Ga. 44, 52 (2025) (cleaned up). Here, Burden properly does
not dispute that there was sufficient proof he committed the other
acts, given that he pleaded guilty to them. See Jones v. State, 299
Ga. 377, 382 (2016) (holding that where the other acts evidence
involved crimes to which the appellant had pleaded guilty, the
evidence that the appellant committed the prior acts was
sufficient). So, we address only the first and second parts of the
Rule 404(b) test to determine whether evidence of the Clayton
County crimes was properly admitted at trial.
With regard to the first part of the test, the trial court

9
admitted the Rule 404(b) evidence as relevant to show intent. 6 It
is well settled that “[t]he relevance of other acts evidence offered
to show intent is established when the prior act was committed
with the same state of mind as the charged crime.” Henderson,
318 Ga. at 755 (quotation marks omitted). And in evaluating the
first part of the Rule 404(b) test, we may consider whether the
other acts were relevant to the issue of intent on any of the
charged offenses. See Greene v. State, 316 Ga. 584, 598 (2023).
Here, Burden concedes that the evidence was relevant for the
purpose of showing intent. Specifically, in his brief on appeal,
Burden acknowledges that he put his intent at issue by pleading
not guilty; he did not take any affirmative steps to relieve the
State of its burden to prove intent; that the Clayton County
crimes involved committing an aggravated assault with a deadly
weapon against Stephens; and that the intent involved in the
Clayton County crimes was the same intent the State was
required to show in this case. For the reasons acknowledged by
Burden, we agree that evidence about the Clayton County crimes
was relevant to the issue of intent in this case, given that the

6 As noted above, the trial court ruled that the Rule 404(b) evidence
was also relevant to show motive, but because the evidence was relevant to
show intent, we need not address Burden’s arguments that the evidence was
not relevant to show motive. See, e.g., Kirkland v. State, 318 Ga. 639, 653 n.5
(2024) (explaining that because we concluded the other act evidence was
relevant to show motive, we need not consider whether it was relevant to show
intent). Nevertheless, we note that our case law since the trial of this case in
2013 casts doubt on the trial court’s reasoning that the other acts evidence was
relevant to show motive. See Wilson v. State, 322 Ga. 76, 85–86 (2025) (holding
that State’s argument that evidence of prior armed robbery was relevant to
show that motive in charged armed robbery was “to take their things and then
to conceal any type of proof or evidence that might link him to it,” was “far too
generic” and was not “logically relevant” to prove defendant’s motive in crimes
related to murder charge).

10
Clayton County crimes included aggravated assault with a deadly
weapon (a handgun), burglary with the intent to commit a theft,
and possession of a firearm by a convicted felon, and the charged
crimes—including felony murder predicated on aggravated
assault with a deadly weapon, armed robbery, and possession of
a firearm by a convicted felon—involved the same sort of intent
as the Clayton County crimes. Additionally, the armed robbery
charged in this case shares the same sort of intent as the Clayton
County conviction for burglary with intent to commit a theft. See
OCGA § 16-8-41(a) (“A person commits the offense of armed
robbery when, with intent to commit a theft, he or she takes
property of another from the person or the immediate presence of
another by use of an offensive weapon.”). And the Clayton County
conviction for felon-in-possession is the exact same crime charged
in this case. See, e.g., Henderson, 318 Ga. at 755; Rooks v. State,
317 Ga. 743, 756 (2023) (concluding that the trial court did not
abuse its discretion in determining that evidence that the
defendant participated in a prior shooting was relevant where
prior act involved “the same sort of intent” as some of the charged
crimes, including malice murder and aggravated assault based on
shooting).
Accordingly, the trial court did not clearly abuse its
discretion in determining that evidence about the Clayton County
crimes was relevant to the issue of Burden’s intent in this case.
(b) With regard to the second part of the Rule 404(b) test,
Burden argues that the Clayton County evidence should have
been excluded under the balancing test of Rule 403 because it had
little probative value and was highly prejudicial. Under Rule 403,
evidence may be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice.” OCGA § 24-4-403.
But “[i]n close cases, balancing under Rule 403 should be in favor

11
of admissibility of the evidence.” Biggs v. State, 323 Ga. 546, 551
(2026) (cleaned up). See also Kirkland v. State, 318 Ga. 639, 653
(2024) (explaining that “the exclusion of evidence under Rule 403
is an extraordinary remedy which should be used only
sparingly”); United States v. Moore, 535 FApp’x 795, 798 (11th
Cir. 2013) (“After a defendant puts his intent at issue by pleading
not guilty, the strength of the government’s case on intent must
be ‘overwhelming’ in order to render extrinsic evidence on intent
unnecessary.” (citing United States v. Dorsey, 819 F2d 1055, 1061
(11th Cir. 1987)). “In reviewing issues under Rule 403, we look at
the evidence in a light most favorable to its admission,
maximizing its probative value and minimizing its undue
prejudicial impact,” Biggs, 323 Ga. at 550–51 (quotation marks
omitted), and apply a “common sense assessment of all the
circumstances surrounding the extrinsic act and the charged
offense,” State v. Williams, 316 Ga. 249, 254 (2023). And, of
course, “Rule 403 imposes no requirement that the government
choose the least prejudicial method of proving its case.” United
States v. Cenephat, 115 F4th 1359, 1365 (11th Cir. 2024) (quoting
United States v. Dixon, 698 F2d 445, 446 (11th Cir. 1983)). 7 Thus,
as a general matter, “the prosecution is entitled to prove its case
by evidence of its own choice.” Old Chief v. United States, 519 US
172, 186 (1997).
In considering the probative value of other act evidence to
prove intent, we consider the overall similarity to the charged
crimes, the temporal proximity or remoteness, and the
prosecutorial need for it. See Henderson, 318 Ga. at 756.

7 Because the statutes relevant to the analysis of other acts evidence
are modeled on the corresponding Federal Rules of Evidence, we look to federal
appellate court opinions for guidance in applying these provisions. See Heard
v. State, 309 Ga. 76, 85 (2020).

12
Additionally, “when other act evidence is introduced to prove
intent, a lesser degree of similarity between the charged crime
and the extrinsic evidence is required than when it is used to
prove identity.” Greene, 316 Ga. at 600 (cleaned up). Here, the
Clayton County and charged crimes had significant similarities—
both involved theft of electronic devices, the shooting of (or at)
individuals who were either present or sought to interfere with
the theft, and possession of a firearm by a convicted felon. And,
while the Clayton County crimes involved theft from a home when
the residents were not at home, and the charged offenses involved
theft from a home while the residents were present, this is not a
significant difference, given that the State’s evidence supported
the inference that Burden believed that the apartment would be
empty when he returned.
Thus, because of the similarities between the Clayton
County crimes and the charged offenses, the evidence of the other
acts was probative of Burden’s intent in this case. See Preston v.
State, slip op. S26A0122 at 17 (June 2, 2026) (holding that where
the circumstances surrounding the other acts “were sufficiently
similar to the charged crimes, the evidence of the [other acts]—
and [defendant’s] intent in carrying them out—were probative of
his intent here”); Greene, 316 Ga. at 600–01. And the differences
were not so significant that it was a clear abuse of discretion to
conclude that the evidence of the Clayton County crimes had
substantial probative value. See Preston, slip op. S26A0122 at 17
(concluding that “the differences between the [other acts] and the
charged crimes were not so significant that it was an abuse of
discretion for the trial court to conclude that the similarities gave
the evidence of the [other acts] substantial probative value”
(quotation marks omitted); Mitchell v. State, 317 Ga. 107, 111
(2023) (concluding that any differences between the prior acts and
the charged offenses were “not so significant such that it would

13
have been an abuse of discretion to conclude that the similarities
gave the other-acts evidence substantial probative value”).
And certainly, the crimes were not temporally remote,
given that the Clayton County crimes occurred approximately 18
months after the charged offenses. See Greene, 316 Ga. at 600
(concluding that other acts that occurred within two years of the
charged offenses were not temporally remote).
Finally, while the prosecutorial need to prove intent with
respect to the murder charges was limited under the facts of this
case, see Fleming v. State, 306 Ga. 240, 248 n.8 (2019) (noting
that “other acts evidence admitted for the purpose of proving the
general intent of an assault may have low probative value”), the
danger of unfair prejudice was also low, as we explain next.
(c) With regard to the prejudicial effect of the Clayton
County crimes, we note that “evidence is not considered ‘unfairly’
prejudicial merely because it is inculpatory.” Flowers, 320 Ga. at
889. Rather, the danger of unfair prejudice “refers to the capacity
of the evidence to lure the factfinder into declaring guilt on an
improper basis rather than on proof specific to the offense
charged,” such as “a defendant’s bad character or his propensity
for violence.” Id. (quotation marks omitted). Here, the nature of
the Clayton County crimes—Burden’s guilty plea to burglary with
intent to commit a theft of an unoccupied residence and shooting
at a person from 75 yards away—was not particularly
inflammatory, in comparison to the charged offenses, which
showed execution-style murders. See Flakes v. State, 323 Ga. 477,
488–89 (2026) (concluding that prior shooting in which no one was
hurt was not particularly inflammatory); Hall, 322 Ga. at 385
(recognizing that weight of unfair prejudice of other acts was
lessened where other acts “were not of a particularly
inflammatory nature” and did not involve significant injuries).

14
See also United States v. Estadella, 167 F4th 1163, 1179 (11th
Cir. 2026) (noting that “risk of undue prejudice was somewhat low
because the [prior] incident did not involve an injury or death of
a victim or any graphic crime scene evidence”).
Additionally, the jury learned that Burden had been
punished for the Clayton County crimes, which also lessened the
prejudicial impact of the evidence. See Taylor v. State, 306 Ga.
277, 283 (2019) (noting that the fact that a defendant has already
been punished for the extrinsic crime meant that “it is less likely
that a reasonable juror would have been inclined to punish him
again for that crime”); Nundra v. State, 316 Ga. 1, 7 (2016) (noting
that the fact that the defendant had been punished for other acts
mitigates unfair prejudice of such acts). Finally, the trial court
gave limiting instructions about the use of the evidence of the
Clayton County crimes, specifically instructing the jury that it
“may not infer from such evidence that the defendant is of a
character that would commit such crimes”; the trial court gave
this instruction during trial when the evidence was admitted and
in its final instructions.
In summary, given the minimally prejudicial nature of the
other acts evidence, especially in comparison to the charged
crimes of double homicide, and the limiting instructions, there
was little danger that the jury would find Burden guilty of the
charged offenses—execution-style murders—merely because he
stole a TV from an empty house and fired a gun at someone a
significant distance away. Thus, applying a common sense
assessment to all the relevant factors, see Williams, 316 Ga. at
254, we cannot say that the trial court clearly abused its
discretion in determining that the probative value of the Clayton
County evidence, even if limited, was not substantially
outweighed by its prejudicial effect. See Flakes, 323 Ga. at 489;

15
Nundra, 316 Ga. at 7. See also Momon v. State, 322 Ga. 848, 857
(2025) (in resolving an ineffectiveness of counsel claim for failing
to make a Rule 403 objection, explaining, “we cannot conclude
that this evidence, with similarly low probative value and unfair
prejudice, would have been excluded” had trial counsel raised a
Rule 403 objection).
Accordingly, Burden’s sole enumeration of error fails.
Judgment affirmed. All the Justices concur, except Warren,
P.J., not participating.

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